IMPORTANT POINT
The second para of Rule 4 of the Calcutta High Court (Appellate Side and Original Side) Services (Revision of Pay & Allowance) Rules, 1998 being not in consonance with what has been agreed upon by the State Government and the Chief Justice at the meeting, therefore, requires to be deleted.

Headnote:SERVICE LAW—Constitution of India—Article 229(2), Proviso—Calcutta High Court (Appellate Side & Original Side) Services (Revision of Pay & Allowance) Rules, 1998—Rule 4, second para—Fixation of initial pay in the revised scale—Power to make rules in regard to pay and allowances of the High Court employees—On representation of employees of the Calcutta High Court, the Chief Justice of the High Court appointed a Committee to examine feasibility of making pay rules—Chief Justice approved the Rules drafted by the Committee and sent them to the State Government for approval of the Governor under the proviso to Article 229(2) of the Constitution—State Government expressed its inability to recommend the two Draft Rules—Petition filed challenging refusal of the State Government—Supreme Court directing constitution of a Special Pay Commission by the Chief Justice—Meeting held between the Chief Justice and the Ministers to work out a satisfactory solution based on recommendations of the Special Pay Commission—High Court modified the draft Pay Rules in accordance with the decisions taken at the meeting—Modified draft Pay Rules forwarded to the State Government—State Government objected to the second para of Rule 4 and sought its deletion—All other issues sorted out—State Government will now forward the modified draft Pay Rules, excluding the second para of Rule 4, to the Governor for his approval.
       Held : Though the power to make rules in regard to pay and allowances of the High Court employees is vested in the Chief Justice subject to any law made by the Parliament, the Constitution has advisedly made the power of the Chief Justice to make such rules conditional upon approval of such rules by the Governor of the State, that is the State Government. The requirement of approval under the proviso Clause 2 of Article 229 is not a mere formality. We find that the State has approved all provisions except one clause. It has expressed its inability to agree to para 2 of Rule 4 as it provides for a general increase in pay of all existing employees by two stages, after fixation of pay in the revised pay scale. The non-approval is in consonance with the Minutes of the meeting dated 13/18.4.2005 between the Chief Justice and the Ministers representing the State. But for the unfortunate misunderstanding relating to second para of Rule 4 of the modified draft Pay Rules, the High Court and the State Government have shown understanding of each other’s problems and by exchange of views and discussions, sorted out the outstanding issues, thereby maintaining the high constitutional traditions. Therefore there is no need for any interference. (Para 25)
       As all issues have now been sorted out, the State Government will, as agreed by it, now forward the modified draft Pay Rules, excluding the second para of Rule 4, to the Governor for his approval. In view of the assurance made on behalf of the State Government to give approval to the modified draft Pay Rules we find no need to issue any mandamus. As the matter has been pending for long, we are sure that the State will act with expedition so that the modified draft Rules will come into force without any delay and the employees of the High Court will get all their dues in accordance with the said Rules.(Para 26)

JUDGMENT

R.V. Raveendran, J.—The Government of West Bengal appointed the Fourth Pay Commission in the year 1995. With the concurrence of the High Court, the State Government included the Calcutta High Court employees in the reference. Subsequently, on the representation of the employees of the Calcutta High Court, the Chief Justice of the High Court appointed a Three Judges Committee to examine the feasibility of making pay rules for them in exercise of powers under Article 229 of the Constitution of India. After examining the said committee’s report, the Full Court resolved to constitute a Committee of five-Judges to advise the Chief Justice in framing the relevant rules. The five-Judge Committee examined the matter in detail and made two sets of draft Rules - the Calcutta High Court Services (Conditions of Service & Recruitment) Rules, 1998 and the Calcutta High Court Services (Revision of Pay & Allowances) Rules, 1998. The Chief Justice approved the said two sets of Rules (for short the ‘draft Service Rules’ and ‘draft Pay Rules’) and sent them to the State Government for approval of the Governor under the proviso to Article 229(2).

2. The State Government sent a reply dated 21.11.1998 expressing its inability to recommend the two Draft Rules for approval of the Governor, for the following four reasons:

(a)Creation of new posts by the Chief Justice, proposed under the draft Service Rules, was not contemplated under Article 229.

(b)The terms of reference to the Fourth Pay Commission included the High Court employees. The report of the said Pay Commission had already been received by the Government on 31.5.1998.

(c)Approval of the draft Pay Rules for the High Court employees will result in treating them on a basis different from other Government employees and that will create unjust inequality, apart from administrative problems to the State Government.

(d)The State was unable to bear the financial burden that would arise if the two sets of rules were introduced.

3. The High Court in its letter dated 21.12.1998 expressed the view that such rejection was not proper and against the spirit of Article 229. This brought forth a reply dated 11.1.1999 from the Chief Secretary (second respondent) to the Registrar of the High Court, pointing that on three earlier occasions (in the years 1971, 1981 and 1990), the High Court employees were included in the reference to the State Pay Commissions with the concurrence of the High Court and the recommendations of the said Pay Commissions were fully implemented in the case of High Court employees also. The letter further stated that the State’s decision not to recommend the draft Rules for approval of the Governor was in conformity with the constitutional provisions. Being aggrieved, the petitioner, an association of High Court employees, filed this petition challenging the refusal by the State Government, to approve the draft Service Rules and draft Pay Rules. The petitioner sought the following reliefs : (i) a declaration that the first respondent has acted arbitrarily, irrationally and in a discriminatory manner and its communications dated 21.11.1998 and 11.1.1999 are unconstitutional, null and void; (ii) a direction to the State Government to recommend to the Governor, approval of the said Rules under Article 229(2); and (iii) a declaration that the first respondent and/or the Governor should grant approval to the draft Service Rules and draft Pay Rules.

4. On hearing the petition, this Court made an order dated 18.11.2003 directing the constitution of a Special Pay Commission. The operative portion of the said order is extracted below :

“In the instant case, the primary reason for refusal of grant of approval by the Governor has been the Government’s claim of inability to bear the financial burden imposed by the draft rules. The Governor, under Article 229(2) has the power to refuse grant of approval, provided there is “very good reason” for the same. It cannot be said that there has bee

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