IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932 WP(C).No. 27855 of 2009(R) -------------------------- PETITIONERS: --------------------- 1. N.ASOKAN, PRIVATE SECRETARY TO JUDGE, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. 2. R.THULASIDAS, PRIVATE SECRETARY TO JUDGE HIGH COURT OF KERALA, ERNAKULAM, COCHIN-31. BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN SRI.T.R.SADEESAN SRI.A.HAROON RASHEED RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY ADDL.CHIEF SECRETARY AND SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVT.SECRETARIAT, TRIVANDRUM. 2. THE HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031, REPRESENTED BY ITS REGISTRAR GENERAL. 3. THE ACCOUNTANT GENERAL (A&E) AUDIT, KERALA, TRIVANDRUM. R1 & R3 BY GOVERNMENT PLEADER, SRI.SANDOSH RAJA R2 BY ADVS. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.K.RADHAMANI AMMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21.12.2010, THE COURT ON 11/02/2011 DELIVERED THE FOLLOWING: WP(C).No. 27855 of 2009(R) ------------------------------------ APPENDIX --------------- PETITIONER'S EXHIBITS -------------------------------------- EXT.P1. COPY OF G.O.(MS) NO.114/2008/HOME DATED 14.7.2008 ISSUED BY THE 1ST RESPONDENT. EXT.P2. COPY OF G.O. (MS) NO.62/09/LAW DATED 11.5.09 ISSUED BY THE 1ST RESPONDENT. EXT.P3. COPY OF REPRESENTATION DATED 11.6.09 VIDE NO.A1-86563/2007 OF THE 2ND RESPONDENT ALONG WITH LETTER NO.PIO 262/2009 DATED 29.09.09 ISSUED TO THE 2ND PETITIONER BY THE PUBLIC INFORMATION OFFICER. EXT.P4. COPY OF LETTER NO.A2-13354/2007 DATED 10.9.09 ISSUED BY THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXT.P5. COPY OF OFFICIAL MEMORANDUM NO.A5-42812/2009 DATED 17.9.09 ISSUED BY THE 2ND RESPONDENT. EXT.P6. COPY OF JUDGMENT DATED 8.12.04 IN W.P.(C) NO.24940/04 OF THIS HON'BLE COURT. RESPONDENT'S EXHIBITS : --------------------------------------- EXT. R1(A). COPY OF THE LETTER DATED 22.11.2008 EXT.R1 (B). COPY OF THE LETTER DATED 25.5.2009 / TRUE COPY / P.A. TO JUDGE VK T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 27855 of 2009-R - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of February, 2011. JUDGMENT In this writ petition the petitioners are aggrieved by the conditions imposed in Ext.P1 order passed by the Government while sanctioning 90 additional posts in the High Court of Kerala. The sanction was ordered subject to the condition that “out of the sanctioned and existing posts, only so many shall be operated (i.e. filled up) as are commensurate with the number of Judges actually in position. This reduced strength should alone be taken not only for recruitment in the entry cadre posts, but also for filling up posts by promotion.” 2. The petitioners are now working in the cadre of Private Secretary to Judge in the High Court service. Their service conditions are governed by the Kerala High Court Service Rules, 2007 (for short 'the Rules'). As per the said rules the post of Private Secretary is in Category 1, Sub Division (6) of Division 1 under Rule 4 of the Rules. The next promotion is to the post of Private Secretary to Judge (Higher Grade) in Category 1, Sub Division (6) of Division 1. It is stated that they are the seniormost persons in the category of Private Secretary to Judge, eligible and entitled for promotion as wpc 27855/2009 2 Private Secretary to Judge (Higher Grade) in the next arising vacancies. The promotion to the post of P.S. to Judge and P.S. to Judge (Higher Grade) is made in the ratio 1 : 2. 3. In Ext.P1 order 9 posts of P.S. to Judge have been sanctioned. Therefore, the promotion to the above posts are normally to be effected in the ratio 1 : 2 as mentioned above. When they claimed promotion by filing a representation, they came to know about the condition in Ext.P1 mentioned above. 4. The petitioners further point out that at the same time the Government passed Ext.P2 order whereby 18 new additional posts of Law Officers (9 Senior Govt. Pleaders and 9 Govt. Pleaders) have been created specifically in the light of the creation of 9 additional posts of Judges in the High Court. Actually, the creation of new posts in Ext.P1 is because of the creation of 9 additional posts of Judges. It is therefore submitted that there cannot be any different yardsticks in respect of the same situation. It is also submitted that the High Court even though requested the Government to delete the said condition in Ext.P1 as per Exts.P3 and P4 communications, the same have not been positively considered. The petitioner also rely upon the legal position discernible from Ext.P6 judgment of this Court in W.P. (C) No.24940/2004. Therein, this Court held that the recommendations wpc 27855/2009 3 made by the Hon'ble Chief Justice have to be looked upon with respect and regard and ought not be kept away for consideration unless there are very good reasons. 5. The Government as well as the High Court have filed separate counter affidavits. 6. Heard learned counsel for the petitioners Shri K. Jaju Babu, Shri O.V. Radhakrishnan, learned Senior Counsel appearing for the High Court and Shri Sandesh Raja, learned Govt. Pleader. 7. Learned counsel for the petitioners submitted that the creation of new posts is in tune with the sanctioning of 9 additional posts of Judges in the High Court. It is pointed out that the restriction in Ext.P1 cannot be sustained for more reasons than one. Firstly, it is against the Constitutional scheme of Article 229(1) of the Constitution of India. The power of appointment of the Chief Justice under Article 229(1) of the Constitution cannot be curtailed by the Government in any manner. The action is therefore without any legal sanction. It is also pointed out that while creating 18 posts of Government Pleaders taking into consideration the creation of 9 new posts of Judge in the High Court, the Government has not imposed any such condition. Therefore, it is submitted that with regard to the High Court service alone, the Government has treated the matter in a wpc 27855/2009 4 discriminatory manner which cannot be justified in the light of Article 14 of the Constitution of India. 8. The first respondent has filed a counter affidavit supporting the order. Mainly, it is contended that the condition was insisted by the Government in order to check the tendency of engaging surplus staff even when there are no required number of Judges. This decision was approved by the Council of Ministers also. With regard to Ext.P2 order, it is stated that the Law Officers are posted for three years on a consolidated pay and the nature of their work is also not comparable to that of the petitioners or any of the posts mentioned in Ext.P1 Govt. Order. 9. In the counter affidavit filed by the Registrar General of the High Court, the illegality in the condition imposed in Ext.P1, has been explained. 10. The fact that 9 posts of Judges have been created, is the requirement to sanction the posts. The total number of posts sanctioned is 90, as per Ext.P1. The further question is: after sanctioning the posts, can there there be a restriction on the power of the Chief Justice to fill up the posts? 11. The relevant article under the Constitution is Article 229(1) which reads as follows: “229. Officers and servants and the expenses of High Courts.-- (1) wpc 27855/2009 5 Appointments of officers and servants of a High Court shall be made by the Chief Justice 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 Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.” Clauses (2) and (3) are not relevant for the purpose of this case, since clause (2) relates to prescription of conditions of service of officers of the High Court by making rules by the Chief Justice of the Court and the proviso states that such rule relating to salaries, allowances, leave or pension, require the approval of the Governor of the State and clause (3) states that the administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund. 12. Shri O.V. Radhakrishnan, learned Senior Counsel appearing for the High Court submitted that in the light of the decisions of the Apex Court by two different Constitution Benches, the issue is no longer res integra. It wpc 27855/2009 6 is therefore, pointed out that there cannot be any restriction with regard to the power conferred on the Chief Justice to make appointment of officers under Article 229(1) of the Constitution. 13. The first of those decisions is M. Gurumoorthy v. The Accountant General, Assam and Nagaland and others (AIR 1971 SC 1850). The facts of the case show that therein, the Government by letter dated 6.8.1958 agreed to the proposed re-organisation of the Stenographers Service in the High Court with effect from 21.5.1955 “subject to the condition that the procedure of recruitment, promotion, etc. should be in the same or similar manner as laid down in the Government resolution dated October 2, 1955.” The legality of the same was the subject matter of consideration by the Apex Court. The Apex Court considered the question in detail in paragraph 7 which is extracted below: “7. We may now refer to the constitutional provisions for determining the power and authority of the Chief Justice of a High Court in the matter of appointments of officers and servants of that court. Clause (1) of Art. 229 provides that appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the court as he may direct i. e. his nominee. The proviso empowers the Governor of the State to require by Rule in certain cases to make appointments after consultation with the State Public Service Commission. Clause (2) wpc 27855/2009 7 of the Article contains two important provisions. The first is that 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 or his nominee. This is, however, subject to the provisions of any law made by the legislature of the State. The second is that the Rules so far as they relate to salaries, allowances and pensions require the approval of the Governor. Clause (3) declares that the administrative expenses of a High Court including all salaries, allowances etc. in respect of officers and servants of the court shall be charges upon the Consolidated Fund of the State. Under Article 202 the Governor shall, in respect of every financial year, cause to be laid before the House or House of the legislature of the State a statement of the estimated receipts and expenditure for that year. Under clause (2) the estimates of expenditure shall show separately (a) the sums required to meet expenditure described by the Constitution as expenditure charged upon the Consolidated Fund of the State and (b) the sums required to meet other expenditure. Clause (3) gives the expenditure which shall be charged on the Consolidated Fund of each State. Clause (f) reads "any other expenditure declared by this Constitution or by the legislature of the State by law to be so charged." Under Art. 203 the estimates which relate to expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the legislative assembly. Article 204 relates to Appropriation Bills. The bill to provide for appropriation out of the Consolidated Fund of the State must include the expenditure charged on that Fund. Clause (2) wpc 27855/2009 8 prevents any amendment being proposed to an Appropriation Bill which will have the effect, inter alia, of varying the amount or altering the destination of any grant or varying the amount of expenditure charged on the Consolidated Fund of the State. Article 146 contains provisions relating to officers and servants of the Supreme Court in terms analogous to Art. 229 the other provisions being also similar.” Paragraph 8 is also important which delineates the Constitutional scheme and laid down that Chief Justice is the Supreme Authority. The principle relevant have been laid down thus: “8. The unequivocal purpose and obvious intention of the framers of the 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 of his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judge of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) read with Clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard wpc 27855/2009 9 to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval.” 14. It is evident from the above dictum that in the matter of appointments, even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1) of Article 229 of the Constitution. The approval of the Governor is confined only to such rules as relates to salaries, allowances, leave or pension. It is clear from the principles stated by the Apex Court that it is the Chief Justice who is the supreme authority and there can be no interference by the executive authority in the matter of appointment of officers. The same has to be maintained to secure the independence of the High Courts. Thus, there cannot be any interference of such powers by any authorities, evidently. Ultimately, in para 13 their Lordships held, while considering the conditions stipulated by the Government, as follows: “It may be stated at once that any restrictions imposed by the wpc 27855/2009 10 Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution.” 15. A similar question was considered by another Constitution Bench in Chief Justice of Andhra Pradesh v. V.A. Dikshitulu and others (AIR 1979 SC 193). Therein, after referring to the decision in M. Gurumoorthy's case (AIR 1971 SC 185), it was held thus in para 27: “In the context of Article 229, read as a whole, the power of appointment vested in the Chief Justice of High Court is of wide amplitude. The word “appointment” in Art. 229 (1) is to be construed according to the axiom that the greater includes the less. The cardinal canon of interpretation underlies S.16 of the General Clauses Act which has been made applicable by Art. 317(1). Construed in the light of the juristic principle the power of “appointment” conferred by Art. 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Art. 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement, etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the Provisions. In conferring such exclusive and supreme powers wpc 27855/2009 11 on the Chief Justice, the object which the Founding Fathers had in view, was to ensure independence of the High Court.” 16. The next important decision relied upon by the learned counsel for the petitioners and learned Senior Counsel appearing for the High Court is that of the Apex Court in Union of India and another v. S.B. Vohra and others {(2004) 2 SCC 150}. Therein, a three Judges Bench of the Apex Court was considering the scope of Article 229(2) and the proviso. The principle that independence of the High Court and that the power vested in the High Court should be free from interference by the Government was specified therein. In para 11 it was held thus: “11. Independence of the High Court is an essential feature for working of the democratic form of government in the country. An absolute control, therefore, has been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in clause (2) of Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the rules containing provisions as regards salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course.” wpc 27855/2009 12 Hence, for the purpose of Article 229(2) the approval of the Governor is required in respect of the rules concerning salary, allowances, leave or promotion. Obviously, the power conferred under Article 229(1) is not subject to any limitations. 17. This Court in High Court Non-Graduate Staff Association v. State of Kerala (1997 (2) KLT 665) elaborately considered various aspects and the Constitutional scheme was examined in detail. That was a case where the benefits granted to certain categories of posts in the Secretariat were not extended to similar categories of posts in the High Court. The posts in question were the posts of Typist Grade II, Typist Grade I, Senior Grade Typist, etc. etc. Paragraphs 15 and 16 of the judgment are relevant for the purpose of this case which are extracted below: “The object of Art. 229 of the Constitution of India is to secure independence of the High Court, which is essential for the working of the democratic form of Government in this country by giving the High Court the absolute control over its staff, subject only to the limitations imposed by the Article itself and free from interference by the Government. Object of the Article is to secure independence of the High Court which is not possible, unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. However, in the matter of salaries, allowances, leave or pensions, approval has to be obtained from the Governor of wpc 27855/2009 13 the State. Art. 229 is a Code by itself for making rules for appointment of members of staff of the High Court as well as for prescribing conditions of service. The Chief Justice of Kerala in exercise of the powers conferred by Art. 229 of the Constitution of India, also framed the Kerala High Court Service Rules, 1970 with regard to conditions of service of Officers and servants of the High Court. R. 35 of the Rules also emphasises that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or the Government under the Rules. However, Chief Justice can specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the service in accordance with those sanctioned by the Government. As per Art. 229 read with R. 35 of the Kerala High Court Service Rules, 1970, Chief Justice is to get approval of the Governor of the State with regard to salaries, allowances, leave or pensions.” Therefore, it is evident from the above dictum also that the power of the Chief Justice with regard to the appointment, cannot be interfered with by the executive. The limited power under clause (2) of Article 229 is with regard to the approval for rules governing salaries, allowances, leave or pension. It was held further in para 18 that “it is true that the Chief Justice of the State has been placed at a higher level in regard to the framing of rules containing the conditions of service.” After referring to the decisions wpc 27855/2009 14 of the Apex Court, finally it was held that as per Article 229 read with Rule 35 of the Kerala High Court Service Rules, 1970, Chief Justice is to get approval of the Governor of the State with regard to salaries, allowances, leave or pension. Hence, the scheme under Article 229(1) is quite different. 18. I may also refer to some other decisions cited at the Bar with regard to the various aspects of the power conferred under Article 229 and the scheme thereof. 19. In State of U.P. and another v. C.L. Agrawal and another {(1997) 5 SCC 1) another Constitution Bench considered the question whether the Governor's prior approval is required with regard to the sanction of advance/premature increments to the staff of the High Court by the Chief Justice. It was held that the same is not required. Therein also, the Constitutional scheme was examined in detail. 20. In High Court Employees' Welfare Assn. Calcutta and others v. State of W.B. and others {(2007) 3 SCC 637}, the Apex Court was considering the scheme under Article 229(2) alone and not Article 229(1). 21. In fact, learned Govt. Pleader relied upon the same to contend that the restriction imposed by Ext.P1 can be justified. Evidently, the said wpc 27855/2009 15 judgment was concerning the scope of Article 229(2) alone. Therein also, various decisions of the Apex Court have been considered in detail. 22. This Court had occasion to consider the scheme of Article 229 (2) of the Constitution, in Valsalakumari v. State of Kerala (2007 (3) KLT 805). The same was one concerning enhancement of retirement age. The entire scheme was analysed in the light of various decisions of the Apex Court referred to above and other decisions. It was held in para 13 that “Independence of Judiciary is one of th basic features of our Constitution. Various provisions are included in the Constitution to guarantee the independence of the judiciary and to insulate it from the influence of the Executive. Art. 229(2) is one among them. But the founding fathers have taken care to ensure that at least in relation to four main matters involving financial commitment, the approval of the Governor is necessary. But in relation to other matters not covered by the four enumerated items, which may involve financial commitment, the approval of the Governor is not necessary.” The scheme was further analysed in Valsalakumari v. State of Kerala (2008 (1) KLT 672). Therein, the challenge was in respect of the Ordinance, viz. High Court Services (Determination of Retirement Age) Ordinance, 2007. The learned Judge wpc 27855/2009 16