High Court
Case Details
WP(C) 2674/2012 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R (ORAL)
Legal Reasoning
Heard Mr. S. Shyam, learned counsel for the petitioner, Mr. S.K. Medhi, learned Standing Counsel, Gauhati High Court, Mr. B.Gogoi, learned Stand ing Counsel, Finance Department, Mr. J. Handique, learned Government Advocate, A ssam and Mr. C. Baruah, learned Standing Counsel, Accountant General, Assam. 2. By way of the present petition under Article 226 of the Constitu tion of India, petitioner seeks a direction to the respondents to settle the pen sion, gratuity and other retirement benefits due to the petitioner and to releas e the same without any delay. 3. 4. Facts of the case may be briefly noted. Petitioner was working as Stenographer Grade III in the establishment of the Advocate General, Mizoram in the Gauhati High Court in the year 1989, drawi ng basic pay of Rs.1,520/- per month. An advertisement was issued by the Gauhati High Court, Guwahati for recruitment to the post of Stenographer Grade II. Peti tioner applied for the said post and was selected. On being released by the Gove rnment of Mizoram, petitioner joined the post of Stenographer Grade II in the Ga uhati High Court, Guwahati on 13.6.1989. At the time of joining the post of Sten ographer Grade II, the basic pay of the petitioner was fixed at Rs. 1,500/- per month under FR 22 granting him pay protection in the pay scale (pre-revised) of Rs. 670-1500/- per month. Subsequently, the petitioner was promoted to the rank of Stenographer Grade I w.e.f. 13.11.1990. 5. A few Grade I Stenographers working in this Court filed a writ petition before this Court, which was registered and numbered as Civil Rule No. 4538/1996 , seeking pay parity with the pay of the petitioner and others granted by way of pay protection. By the judgment and order dated 25.11.1998, a Single Bench of t his Court dismissed the said writ petition. In the said proceeding, pay fixation of the petitioner and others were held to have been done lawfully. The said dec ision has since been reported in 1999 (1) GLT 307 (Nandeswar Kalita & Ors -vs- R egistrar(Judicial), Gauhati High Court & Ors). The matter was carried in appeal in WA No. 84/1999. A Division Bench of this Court by the judgment and order date d 22.7.2002 dismissed the appeal by upholding the decision of the Single Bench. The Division Bench judgment is reported in 2002 (2) GLT 691. 6. Petitioner retired from service on attaining the age of superannuation o n 1.2.2010. When the service book of the petitioner and other papers were forwar ded to the office of the Accountant General (A&E), Assam (respondent No. 4), the Senior Accounts Officer (respondent No. 5) initially raised objection to the pa y protection granted to the petitioner on his joining service in the High Court on 13.6.1999, as approval of the Finance Department, Govt. of Assam was not obta ined. Respondent No. 5 wrote to the Registrar General, Gauhati High Court vide l etter dated 2.9.2010 stating that no pay protection is admissible to the petitio ner for his past service as he came from other Government. Matter was requested to be taken up with the Finance Department, Government of Assam for a final deci sion. 7. Registrar General, Gauhati High Court vide his letter dated 22.2.2011 wr ote to the Judicial Department, Govt. of Assam to take up the matter with the Fi nance Department to accord ex post facto approval to the protection/fixation of pay of the petitioner. 8. Judicial Department wrote back to the Registrar General, Gauhati High Co urt vide letter dated 28.3.2012 stating that the Finance (Esst.A) Department had accorded ex post facto concurrence to the fixation of pay of the petitioner in the post of Stenographer Grade II at Rs. 1500/- per month in the pay scale of Rs . 670-1500/- under FR 22 on protection of his last pay drawn in earlier post. 9. Despite the said ex post facto approval given by the Finance Department, respondent Nos. 4 and 5 did not release the pension of the petitioner but conti nued to raise objection on the issue of pay protection granted to the petitioner . 10. Petitioner is suffering from serious ailment requiring treatment outside the State. He is in need of substantial amount of money for his treatment. But because of the action of respondent Nos. 4 and 5, he has not been paid his pensi onary and other retirement dues. 11. Petitioner’s contention is that the matter relating to pay fixation and protection of pay of the petitioner was decided by the High Court on its adminis trative side. Such pay protection was also upheld by this Court on the judicial side, firstly by the Single Bench in 1999 (1) GLT 307 and thereafter, by the Div ision Bench in 2002 (2) GLT 691. The Finance Department, Govt. of Assam had also granted ex post facto approval to such pay protection. Therefore, questioning t he pay protection given to the petitioner by the High Court is wholly untenable and devoid of all logic. 12. Respondent Nos. 4 and 5 in their counter affidavit have taken the stand that the initial fixation of pay of the petitioner w.e.f. 13.6.1989 was not corr ect. According to the said respondent, the basic pay of the petitioner was requi red to be fixed at Rs. 670/- on 13.6.1989 without any pay protection as he came from other Government i.e. from Mizoram Government. Since the petitioner came fr om Mizoram Government, his last pay under the Mizoram Government was to be prote cted at the time of fixation of pay on 13.6.1989, in the manner provided in G.I. O (24) below F.R 22 (CCS FR & SR) and not directly under FR 22. It is stated tha t the matter was taken up with the Finance Department to review the pay fixation matter of the petitioner to enable the office of the respondent No. 4 to finall y settle the pension case of the petitioner. According to the calculation given by respondent Nos. 4 and 5, petitioner’s last pay at the time of retirement shou ld have been Rs. 25,660/- whereas the High Court Registry had allowed Rs. 31,420 /-. The difference in the basic pension and DCRG calculation have been outlined as under:- (cid:28) Basic Pension as per Pr.A.G’s view Rs. 25,660÷2 = Rs.12,830/-per month Basic Pe nsion as per Deptt’s Calculation Rs.31,420÷2 = Rs15,710/-per month D.C.R.G as per Pr. A.G’s view Rs 25,660/- (+) 35% Rs 8,981/- Rs 34,641/- x 66÷4= = Rs 5,71,577/- D.C.R.G as per D eptt’s calculation Rs 31,420/- (+)35% Rs 10,997/- Rs 42,417/- x 66÷4= = Rs 6,99,881/- (cid:28) 13. Petitioner in his reply affidavit has reiterated that initial fixation o f pay w.e.f. 13.6.1989 was correct. When objection was raised by the office of r espondent Nos. 4 and 5, the High Court referred the matter to the Finance Depart ment through the Judicial Department. The Finance Department, after due examinat ion, accorded ex post facto approval to the fixation of pay of the petitioner. T he matter regarding pay fixation of the petitioner has been judicially settled b y this Court and has attained finality. It is not open to respondent Nos. 4 and 5 to question such decision. Reliance on the Government of India Office Memorand um has been contended to be without any substance as the same relates to grantin g pay protection to persons coming to the Central Government from Public Sector Undertakings. After the Finance Department concurred with the decision of the Hi gh Court, which in any case had attained finality, there cannot be any question of reopening of the same. 14. - This Court passed an interim order on 14.8.2012 to the following effect: (cid:28)We have perused the averments made in the affidavit filed on behalf of Accountant General (A&E), Assam and the Senior Accounts Officer of his office, w hich disclose that as per their computation, the petitioner is inter alia entitl ed to an amount of Rs. 5,71,577/- towards Death-cum-Retirement Gratuity. Having regard to the fact that the petitioner has retired from service o n 31.01.2010 and is presently suffering from a terminal disease requiring substa ntial amount to meet the expenditure in connection therewith, we are of the view , without prejudice to the rights and contentions of the parties, that it would
Decision
meet the ends of justice, for the present if we direct payment of monthly provis ional pension of Rs. 15,710/- together with an amount of Rs.5,71,577/- as Death- cum-Retirement Gratuity in his favour. Ordered accordingly. We make it clear tha t these releases would be subject to the final outcome of the instant proceeding s. The provisional pension at the above rate would be released to the petit ioner from the month of February, 2012. The respondents, having regard to the ex ceptional facts and circumstances confronting the petitioner are hereby required to disburse the arrear, provisional pension and the sum towards Death-cum-Retir ement Gratuity indicated hereinabove within a period of 2(two) weeks herefrom. T he respondents would thereafter duly release his provisional pension on monthly basis without fail (cid:29) 15. The Finance Department i.e. respondent No. 2 in their affidavit filed on 16.11.2012 stated in clear terms that Finance Department had already accorded e x post facto concurrence to the fixation of initial pay of the petitioner in the post of Stenographer Grade II at Rs. 1500/- per month in the scale of pay of Rs . 670-1500/- under FR 22 on protection of his last pay drawn in the earlier post by endorsement dated 2.2.2012 in Judicial Department’s file No. JDJ 81/2011. It is further stated that office of respondent No. 4 vide letter dated 15.6.2012 r equested the Finance Department to review the pay fixation matter of the petitio ner. Accordingly, the Finance Department re-examined the same and vide letter da ted 7.9.2012 had intimated the respondent No. 4 that there was no mistake in the pay fixation and that the Finance Department stood by the ex post facto approva l of the initial pay fixation of the petitioner as per its earlier endorsement d ated 2.2.2012. 16. Mr. S. Shyam, learned counsel for the petitioner submits that following the decision of this Court in 2002 (2) GLT 691, whereby this Court had upheld th e pay fixation of the petitioner, respondent Nos. 4 and 5 cannot reopen the matt er. He submits that the objection of respondent Nos. 4 and 5 to the pay fixation of the petitioner does not stand to reason. Reliance placed on the Government o f India instruction is wholly misplaced as the same is not at all attracted in t he facts and circumstances of the case. Learned counsel submits that when the Hi gh Court had fixed the initial pay of the petitioner by protecting his last pay under FR 22, ordinarily the State Government has to accept such decision except for good and compelling reason. In the present case, the decision of the High Co urt has been concurred with by the State Government. Therefore, the objection of respondent Nos. 4 and 5 to the pay fixation of the petitioner is without any le gal basis. He has placed reliance on a decision of this Court in the case of Ram Sankar Bhattacharjee -vs- Gauhati High Court and Ors reported in 2011 (1) GLT 2 04. He finally submits that because of the unreasonable and obstinate stand of t he respondent Nos. 4 and 5, petitioner has been put to great sufferings as he is facing financial constraints in meeting his medical treatment of his serious ai lment, related documents of which have been placed on record. He, therefore, sub mits that not only the Court should intervene in the matter in an appropriate ma nner, but adequate compensatory cost may be imposed on respondent Nos. 4 and 5 f or causing undue harassment to the petitioner. 17. Mr. Medhi, learned Standing Counsel of the High Court submits that petit ioner joined the Gauhati High Court as Stenographer Grade II in the pay scale of Rs. 670-1500/- (pre-revised scale). He was released by the Mizoram Government o n 12.6.1989 and joined his new assignment on 13.6.1989. On his joining, his basi c pay was protected at Rs. 1500/- under FR 22. Thereafter, as per ROP Rules, 199 0, the corresponding basic pay of the petitioner was fixed at Rs. 3275/- in the revised pay scale of Rs. 1475-3835/- with the approval of the Hon’ble Chief Just ice. 18. aken by Mr. Medhi, learned Standing Counsel, Gauhati High Court. 19. Mr. B. Gogoi, learned Standing Counsel, Finance Department referred to t he affidavit filed by the Finance Department and submits that ex post facto appr oval was given by the Finance Department on 2.2.2012. Matter was reexamined agai n on request of respondent No. 4 but after due consideration, no mistake was fou Mr. J. Handique, learned Govt. Advocate, Assam also supports the stand t nd in such pay fixation of the petitioner and the Finance Department reiterated its ex post facto approval to the pay fixation of the petitioner. 20. Mr. C. Baruah, learned counsel appearing for respondent Nos. 4 and 5 sub mits that petitioner received benefits under the 4th Central Pay Commission w.e. f. 1.1.1986 as at that time the Mizoram Government was following Central Pay Com mission. After his appointment to the High Court Registry, his pay was again rev ised w.e.f. 13.6.1989 under the 4th Assam Pay Commission. Objection raised is th at pay of the petitioner was protected both under the 4th Central Pay Commission as well as in terms of 4th Assam Pay Commission within a service period of just 4 years, initially on 1.1.1986 and thereafter on 13.6.1989. This discrepancy ca me to the notice of respondent No. 4 only after receipt of the pension case of t he petitioner on 7.1.2010. Respondent Nos. 4 and 5 were not parties to the proce edings before this Court in the earlier round of litigation. As petitioner was e arlier an employee of Mizoram Government, pay protection under FR 22 or FR 22-C is not admissible since he was not an employee of Assam Government. Submissions made have been considered. 21. The facts have already been narrated above and are not in dispute. 22. 23. Petitioner on his joining the Registry of the High Court on 13.6.1989, i n the pay scale of Rs. 670-1500/-, his basic pay was protected at Rs. 1,500/- un der FR 22/22-C. Thereafter, as per ROP Rules, 1990, the corresponding basic pay of the petitioner was fixed at Rs. 3,275/- in the revised pay scale of Rs. 1475- 3825/- with the approval of the Hon’ble Chief Justice. Thereafter, on his promot ion to the post of Stenographer Grade I on 13.11.1990, his pay was fixed at Rs. 3,575/- in the scale of pay of Rs. 2275-4450/-. This was a subject matter in a w rit proceeding before this Court in 1999 (1) GLT 307 wherein the present petitio ner was also arrayed as a respondent. A Single Bench of this Court held that all the relevant matters were placed before the competent authority. Thereafter, th e fixation of pay was worked out in conformity with the provision of FR 22-C. It was placed before the Hon’ble Chief Justice who approved the same. After observ ing that no malafide or improper exercise of power could be inferred, the Single Bench categorically held that pay fixation was done lawfully by the authority a s per the statutory rules. The officers/persons were recruited from different so urces and they were given protection. When the matter was carried in appeal, a D ivision Bench of this Court in 2002 (2) GLT 691 affirmed the findings of the Sin gle Bench and held that the materials on record disclosed that the competent aut hority of this Court granted pay protection to the respondents of that case (inc luding the present petitioner) on the basis of the pay which they were drawing i n their parent departments/offices. On the face of the record, no illegality, ma lafide or improper exercise of power was discernible in the decision of the comp etent authority to fix the basic pay of those respondents on the basis of their higher pay in their parent departments/offices by invoking provisions of FR 22/2 2-C. 24. The matter did not rest at that. The Finance Department accorded ex post facto concurrence to the fixation of initial pay of the petitioner in the post of Stenographer Grade II at Rs. 1500/- per month in the scale of pay of Rs. 670- 1500/- under FR 22 on protection of his last pay drawn in the earlier post. On a request made by the office of the Accountant General to review the matter, the Finance Department re-examined the matter but came to the conclusion that there was no mistake in the pay fixation of the petitioner and, therefore, the Finance Department stood by the ex post facto approval granted earlier. 25. Article 229 of the Constitution of India deals with officers and servant s and the expenses of High Court. For ready reference, the said Article is quote d here under:- (cid:28)229. Officers and servants and the expenses of High Courts.-(1) Appoint ments of officers and servants of a High Court shall be made by the Chief Justic e of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Cou rt shall be appointed to any office connected with the Court save after consulta tion with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorized by the Chief Justice to m ake rules for the purpose: Provided that the rules made under this clause shall, so far as they rel ate to salaries, allowances, leave or pensions, require the approval of the Gove rnor of the State. (3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants o f the court, shall be charged upon the Consolidated Fund of the State, and any f ees or other moneys taken by the Court shall form part of that Fund. (cid:29) 26. From a careful reading of the aforesaid Article, it becomes evident that it is the Chief Justice of the High Court who is the competent authority to dea l with the administrative expenses of the High Court, including all salaries, al lowances and pensions payable to or in respect of the officers and servants of t he High Court. 27. The above Article was examined by the Hon’ble Supreme Court, though in a somewhat different context in the case of M. Gurumoorthy -vs- Accountant Genera l, Assam and Nagaland and Others reported in 1971 (2) SCC 137 (AIR 1971 SC 1850) . It was held that once an order had been passed by the Chief Justice of the Hig h Court in exercise of his power under Article 229 of the Constitution, the only course open to the Government, if it wanted to challenge such order, was to tak e resort to appropriate proceeding either by way of persuading the Chief Justice to rescind or amend his order on the administrative side or to file a writ peti tion challenging his order in the High Court. The action of the Government in th at case in directing the Accountant General not to issue any pay slip to the app ellant until further orders of the Government were issued was deplored. In M. Gu rumoorthy (supra), which was a case from this Court, the Apex Court explained th e object of Article 229 in the following words:- (cid:28)8. The unequivocal purpose and obvious intention of the framers of th e Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executiv e except to the limited extent that is provided in the Article. This is essentia lly to secure and maintain the independence of the High Courts. The anxiety of t he Constitution-makers to achieve that object is fully shown by putting the admi nistrative expenses of a High Court including all salaries, allowances and pensi on payable to or in respect of officers and servants of the Court at the same le vel as the salaries and allowances of the Judges of the High Court nor can the a mount of any expenditure so charged be varied even by the legislature & & & & & & & & &. (cid:29) (cid:28)9. &..Thus, Article 229 has a distinct and different scheme and contempl ates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be pr escribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governor’s approval mus t be sought to the extent the rules relate to salaries, leave or pension. This e xception, it is abundantly clear, had to be made because the finances have to be provided by the Government and to the extent there is any involvement of expens e the Government has to approve of it. (cid:29) 28. In the present case, the Government has not even questioned the decision of the High Court. On the contrary, it has given ex post facto approval to the decision of the High Court, which on re-examination was reaffirmed. In such circ umstances, the Accountant General could not have raised the objection to the pay protection granted to the petitioner by the High Court, which had the approval of the Hon’ble Chief Justice. Since this is the core issue which has been answered in the above manner 29. , it is not necessary to delve into the other contentions raised by the office o f the Accountant General. 30. In view of the discussions made above, objections raised by the responde nt Nos. 4 and 5 to the pay fixation of the petitioner by the Gauhati High Court is legally untenable. Accordingly, respondent Nos. 4 and 5 are directed to immed iately settle the pension, gratuity and other retirement dues payable to the pet itioner, including the arrear amount, after adjusting the amount already release d to the petitioner in terms of interim order of this Court dated 14.8.2012. The above exercise shall be carried out within a period of 6(six) weeks from the da te of receipt of a certified copy of this order. 31. This Court would also like to place on record its disapproval of the act ion of the respondent Nos. 4 and 5 which has resulted in holding up payment of r etirement dues of the petitioner for a long time. In view of above, cost of Rs. 10,000/- is imposed, which shall be paid b 32. y the respondent Nos. 4 and 5 to the petitioner within a period of 6(six) weeks from the date of receipt of a certified copy of this order. 33. Writ petition is accordingly allowed.