IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 29356 of 2008(T) --------------------------------------- PETITIONER(S): ---------------------- T.D. PARAMESWARAN UNNI. ADVOCATE, FORMERLY, SECRETARY, BAR COUNCIL OF KERALA, RESIDING AT VEERAMANGALATHU MADOM, UDAYAMPEROOR, ERNAKULAM -682 307. BY MR.T.P.KELU NAMBIAR, SENIOR ADVOCATE ADV. MR.P.G. RAJAGOPALAN, MR.M. GOPIKRISHNAN NAMBIAR. RESPONDENT(S): ------------------------ 1. THE BAR COUNCIL OF KERALA REPRESENTED BY ITS SECRETARY BAR COUNCIL BHAVAN, HIGH COURT CAMPUS, KOCHI- 682 031. 2. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. R2 BY SR. GOVERNMENT PLEADER SMT.ANU SIVARAMAN. R1 BY ADV. MR.GEORGE THOMAS (MEVADA) . THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2009, THE COURT ON 10/11/2009 DELIVERED THE FOLLOWING: WP(C) NO. 29356/2008-T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE REPRESENTATION DATED 24/04/1999, SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL COMMITTEE OF THE BAR COUNCIL OF KERALA. EXT.P2: COPY OF THE LETTER NO.KBC/CP/782/99, DATED 18/08/1999 ADDRESSED BY THE BAR COUNCIL OF KERALA TO THE PETITIONER. EXT.P3: COPY OF THE REPRESENTATION DATED 24/02/2002, SUBMITTED BY THE PETITIONER BEFORE THE BAR COUNCIL OF KERALA WITH STATEMENT OF CALCULATION. EXT.P4: COPY OF THE LETTER NO.BCK/STAFF/875/2005, DATED 13/05/2005 WITH THE REPORT OF THE SUB COMMITTEE OF THE BAR COUNCIL OF KERALA, ADDRESSED BY THE BAR COUNCIL OF KERALA TO THE PETITIONER. EXT.P5: COPY OF THE LETTER NO.KBC/478/08, DATED 06/03/2008, OF THE BAR COUNCIL OF KERALA TO THE PETITIONER. EXT.P6: COPY OF THE LETTER NO.BCK/2236/08, DATED 30/07/2008, OF THE BAR COUNCIL OF KERALA TO THE PETITIONER. RESPONDENT'S EXHIBITS: EXT.R2A: COPY OF THE REPORT OF THE SUB COMMITTEE. EXT.R2B: COPY OF THE TABULATION SHEET WHICH LED TO THE CONCLUSION BY THE COMMITTEE. //TRUE COPY// P.S. TO JUDGE rs. P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No. 29356 of 2008 - T ---------------------------------------- Dated 10th November, 2009 Judgment The petitioner, an advocate by profession, was appointed as full time Secretary of the Bar Council of Kerala with effect from 6.4.1981 in the scale of pay of Rs.800-25-900-30-1200. He was also entitled to dearness allowance at the applicable rates. He held office as full time Secretary of the Bar Council of Kerala till 30.11.1998. Thereafter, he continued on extended service as Secretary of the Bar Council of Kerala till 31.5.1999. 2. After the petitioner was appointed as full time Secretary of the Bar Council of Kerala, the post of Secretary of the Bar Council of Kerala was equated with the post of Subordinate Judge with effect from 1.4.1990 and placed in the scale of pay of Rs.2640-85-2725-100-2925-125-3675-140-3815 as per resolution No.57/91 dated 7.4.1991 of the Bar Council of Kerala. The Bar Council of Kerala also resolved to pay DA, HRA and CCA admissible to Government servants from time to time with effect from 1.4.1990. The petitioner was thereupon W.P.(C) No.29356/2008 2 placed in the said scale of pay with effect from 1.4.1990 and given DA, HRA and CCA admissible to Government servants from to time. Later, by resolution No.106/95 dated 27.8.1995, the Bar Council of Kerala resolved as follows: “Resolved that the Secretary be paid the scale of pay of District Judge of Rs.5100-150-5700 with admissible DA, HRA, CCA applicable to the post from time to time with effect from 1.1.1995.” 3. The petitioner states that it was the usual practice in the Bar Council of Kerala to implement the pay revision orders issued by the Government from time to time and extend the benefits flowing therefrom to the Secretary and other members of the staff of the Bar Council of Kerala. After the Bar Council of Kerala adopted the resolution dated 27.8.1995 referred to above, the Government issued G.O.(P) No.3000/98/Fin. dated 25.11.1998 revising the scale of pay of Government servants. The said revision of pay was not implemented in the case of the Secretary of the Bar Council of Kerala since the scale of pay of District Judge was not revised by the State Government. However, pursuant to the decision of the Special Committee of the Bar Council of Kerala, the revision of pay ordered by the W.P.(C) No.29356/2008 3 Government in G.O.(P) No.3000/98/Fin. dated 25.11.1998 was made applicable to the subordinate staff of the Bar Council of Kerala. 4. The term of the Bar Council of Kerala that was constituted on 28.1.1992 expired on 27.1.1997. Shortly before the said term expired, the Bar Council of Kerala moved the Bar Council of India seeking extension of its term by six months. After the term of five years expired, the Bar Council of India passed a resolution extending the term of the Bar Council of Kerala by a period of six months. During the said period of six months, elections were held and the Bar Council of Kerala was re-constituted. The election thus held during the extended term of Bar Council of Kerala was challenged in this Court mainly on the ground that as the term of the Bar Council expired on 27.1.1997, it ceased to have any jurisdiction to conduct the election. The writ petition filed challenging the election was dismissed by this Court and the decision dismissing the writ petition was affirmed by the Division Bench in writ appeal. It was held that the term of the Bar Council of Kerala should be treated to have been extended by the Bar W.P.(C) No.29356/2008 4 Council of India before the expiry of its original term. The petitioner who moved this Court carried the matter in appeal to the Apex Court. By judgment delivered on 16.3.1999 in Babu Varghese v. Bar Council of Kerala (1999 (1) KLT 836 SC), the Apex Court held that the Bar Council of Kerala constituted on 28.1.1992 ceased to have any jurisdiction on the expiry of its term on 27.1.1997 and that the extension of its term by the Bar Council of India after the said date is illegal. Consequently, the Apex Court held that the election held by the Bar Council of Kerala during its extended term was of no consequence. The Apex Court held that only a Special Committee appointed by the Bar Council of India under section 8A of the Advocates Act, 1961 (hereinafter referred to as 'the Act' for short) could have held the elections after 27.1.1997. The Apex Court accordingly directed the Bar Council of India to appoint a Special Committee as contemplated by section 8A of the Act. A Special Committee consisting of the then Advocate General and two members of the former Bar Council of Kerala was accordingly constituted under section 8A of the Act. W.P.(C) No.29356/2008 5 5. As noticed earlier, though the scale of pay of Government servants was revised by G.O.(P) No.3000/98/Fin. dated 25.11.1998 and the said pay revision order was implemented in the case of the subordinate staff of the Bar Council of Kerala, it was not implemented in the case of the Secretary of the Bar Council of Kerala. This was for the reason that the said Government order did not apply to judicial officers. Shortly thereafter, the petitioner retired from service on 30.11.1998. In the meanwhile, the First National Judicial Pay Commission chaired by Hon'ble Mr. Justice K.Jagannatha Shetty recommended grant of interim relief to judicial officers. The Government of Kerala implemented the said recommenda- tion by issuing G.O. (Ms.) No.116/98/Home dated 30.5.1998 whereby judicial officers in the State of Kerala were granted interim relief at the rate of 35% of basic pay plus D.A. as on 1.1.1996, with effect from 1.7.1996. The petitioner, who was placed on the scale of pay of District Judge, with admissible DA, HRA and CCA applicable to the post of District Judge thereupon submitted Ext.P1 representation dated 24.4.1999 before the Chairman of the Special Committee of the Bar Council of Kerala W.P.(C) No.29356/2008 6 requesting that as he has been placed in the scale of pay of District Judge with admissible DA, HRA and CCA, necessary orders may be issued implementing G.O. (Ms.) No.116/98/Home dated 30.5.1998 with effect from 1.7.1996 and interim relief at the rate of 35% of the basic pay plus D.A. as on 1.1.1996 may be given to him with effect from 1.7.1996 till his retirement on 30.11.1998. The Special Committee of the Bar Council of Kerala constituted under section 8A of the Act considered Ext.P1 representation and resolved to pay the petitioner the sum of Rs.1,09,214/- being 35% of the basic pay plus D.A. as on 1.1.1996 as interim relief for a period of 29 months from 1.7.1996 to 30.11.1998. Payment was also effected by cheque dated 17.8.1999, that was sent to the petitioner along with Ext.P2 letter dated 18.8.1999. 6. Nearly two years thereafter, State Government issued G.O. (Ms.) No.231/01/Home dated 12.12.2001 revising the scale of pay of judicial officers in the light of the recommendations of the First National Judicial Pay Commission chaired by Hon'ble Mr. Justice K.Jagannatha Shetty, with effect from 1.7.1996. In the meanwhile, the Bar Council of Kerala was W.P.(C) No.29356/2008 7 reconstituted after fresh elections. The petitioner thereupon submitted Ext.P3 representation dated 24.2.2002 before the Bar Council of Kerala claiming the benefit of G.O. (Ms.) No.231/01/Home dated 12.12.2001, a copy of which was also enclosed along with the said representation. In Ext.P3, the petitioner claimed that as the scale of pay of District Judge has been revised by the Government order dated 12.12.2001 from Rs.5100-150-5700 to Rs.16750-400-19150-450-20500 with effect from 1.7.1996, he is entitled to have his pay revised with effect from 1.7.1996 and for payment of arrears together with DA, HRA and CCA admissible to the post of District Judge as claimed in the statement appended to Ext.P3. In Ext.P3, the petitioner claimed payment of the total sum of Rs.2,94,532/-. The petitioner also brought to the notice of the Bar Council of Kerala that he was given interim relief sanctioned to District Judges by the Special Committee of the Bar Council of Kerala after G.O. (Ms.) No.116/98/Home dated 30.5.1998 was issued. 7. The Bar Council of Kerala considered Ext.P3 representation and referred it to a sub committee. The sub committee conducted a hearing on 3.1.2004 in which the W.P.(C) No.29356/2008 8 petitioner was heard. The sub committee thereafter submitted a report to the Bar Council of Kerala wherein the committee took the stand that Bar Council of Kerala had at its meeting held on 19.8.2001 fixed the pay of the petitioner's successor in the scale of pay of Rs.12600-375-15000 with DA at 32% of the basic pay, HRA and CCA, with effect from 1.9.2001. In the report, one of the members of the sub committee had also stated that the words “from time to time” occurring in the resolution dated 27.8.1995, qualifies only the admissible DA, HRA and CCA applicable to the post of District Judge and not the scale of pay of District Judge and therefore, the scale of pay of the Secretary of the Bar Council of Kerala will remain static at Rs. 5100-150-5900 even if the scale of pay of District Judge is later revised. The Bar Council of Kerala that met on 11.9.2004 and 9.10.2004 approved the report of the sub committee and rejected the petitioner's request in Ext.P3. Ext.P4 letter dated 13.5.2005 was thereupon sent to the petitioner enclosing a copy of the report of the sub committee and informing him that his request has been rejected. Aggrieved by the stand taken by the sub committee W.P.(C) No.29356/2008 9 of the Bar Council of Kerala in its report and by the Bar Council of Kerala which accepted it, the petitioner submitted a representation dated 7.3.2007 pointing out the fallacy of reasoning of the sub committee. The Bar Council of Kerala that met on 16.9.2007 considered the said representation and resolved to reject it. The decision taken by the Bar Council of Kerala rejecting the representation dated 7.3.2007 was communicated to the petitioner by Ext.P5 letter dated 6.3.2008. The petitioner thereafter sent a letter on 25.7.2008 requesting the Secretary of the Bar Council of Kerala to furnish him the full text of the resolution adopted by the Special Committee at its meeting held on 12.8.1999. The information sought was furnished to the petitioner by Ext.P6 letter dated 30.7.2008 wherein the resolution adopted by the Special Committee of the Bar Council of Kerala on 12.8.1999 granting the petitioner interim relief with effect from 1.7.1996 pursuant to the recommendations of the First National Judicial Pay Commission was extracted. This writ petition was thereupon filed challenging Exts.P4 and P5 and seeking the following reliefs: W.P.(C) No.29356/2008 10 “(i) declare that the writ petitioner is entitled to the benefit of Resolution No.106/95 of the Bar Council of Kerala, whereunder his claim for the increase in the salary had to be conceded (ii) issue a writ of certiorari or any other appropriate writ, order or direction, quashing the decisions of the Bar Council of Kerala, which were communicated to the writ petitioner under Exhibits P4 and P5, rejecting the claim of the writ petitioner for enhanced salary as claimed in Exhibit P3; (iii) issue a writ of mandamus or any other appropriate writ, order or direction, directing the Bar Council of Kerala to concede the request of the writ petitioner in Exhibit P3 and disburse to him the amount claimed therein with interest; (iv) issue a writ of certiorari or any other appropriate writ, order or direction, quashing the report of the Sub committee of the Bar Council, as communicated to the writ petitioner in Exhibit P4;” 8. The petitioner contends that in the light of the resolution adopted by the Special Committee of the Bar Council of Kerala on 12.8.1999 which is set out in Ext.P6 and resolution No.106/95 dated 27.8.1995 adopted by the Bar Council of Kerala, he is entitled to have his pay fixed as claimed in Ext.P3 with effect from 1.7.1996 and for payment of arrears thereof together with DA, HRA and CCA applicable to the post of District Judge from time to time. The petitioner contends that W.P.(C) No.29356/2008 11 the reasoning of the sub committee of the Bar Council of Kerala referred to in the report and the interpretation placed by the sub committee on resolution No.106/95 are faulty and incorrect. The petitioner contends that as long as resolution No.106/95 stands and as his claim for interim relief has been conceded and granted by the Special Committee of the Bar Council of Kerala, the stand taken by the sub committee of the Bar Council of Kerala and the Bar Council of Kerala in Exts.P4 and P5 cannot be sustained. He also contends that as there is no ambiguity in resolution No.106/95 adopted by the Bar Council of Kerala and the terms and stipulations therein are clear and cogent, he is entitled to increased salary and allowances payable to District Judges. 9. A counter affidavit has been filed on behalf of the Bar Council of Kerala. Relying on the report of the sub committee constituted by the Bar Council of Kerala a copy of which is produced as Ext.R2 (a), it is contended that there is no conflict between the findings and conclusions in the said report and resolution No.106/95. It is contended that the sub committee had dealt with the claim put forward by the petitioner, that the W.P.(C) No.29356/2008 12 reasoning of the sub committee is perfectly valid and legal, that the petitioner was not a District Judge and a member of the judicial service and therefore, the benefits flowing from G.O. (Ms.) No.231/01/Home dated 12.12.2001 will apply only if it is adopted by the Bar Council of Kerala after due deliberation. It is also contended that the scale of pay granted to the petitioner's successor was only R.12600-375-15000 with DA at 32% of the basic pay, HRA and CCA with effect from 1.9.2001. 10. I heard Sri.T.P.Kelu Nambiar, the learned Senior Advocate appearing for the petitioner, Sri.George Thomas Mevada, the learned counsel appearing for the Bar Council of Kerala and Smt.Anu Sivaraman, the learned Senior Government Pleader appearing for the State of Kerala. I have considered the pleadings and the submissions made at the Bar by the learned counsel appearing on either side and gone through copies of the various resolutions that were made available by the learned counsel appearing for the Bar Council of Kerala. The dispute raised in this writ petition, in my opinion, centres round the interpretation to be placed on resolution No.106/95 dated 27.9.1995 adopted by the Bar W.P.(C) No.29356/2008 13 Council of Kerala. The petitioner was appointed as Secretary of the Bar Council of Kerala in the scale of pay of Rs.800-25- 900-30-1200 with admissible DA. Later, with effect from 1.4.1990, the post of Secretary was equated with the post of Subordinate Judge and placed in the scale of pay of Rs.2640- 85-2725-100-2925-125-3675-140-3815, as per resolution No.57/91 dated 7.4.1991. The said resolution reads as follows: “Resolved that the Secretary be and is hereby placed in a new scale of pay of Rs.2640-85-2725-100- 2925-125-3675-140-3815 with effect from 1.4.1990. Resolved further that the Secretary be and is hereby permitted to draw increment in the revised scale of pay with effect from 1.4.1990. Further resolved that the Dearness Allowance, HRA, CCA admissible to Government servants from time to time be paid to the Secretary from 1.4.1990 onwards.” 11. Though by resolution dated 7.4.1991, the scale of pay of the Secretary of Bar Council of Kerala was equated with the then scale of pay of Subordinate Judge, the resolution dated 7.4.1991 did not state in express terms that the post of Secretary is equated with that of Subordinate Judge. Instead, the Secretary was only given the then scale of pay of W.P.(C) No.29356/2008 14 Subordinate Judge with effect from 1.4.1990. That resolution also did not stipulate that as and when the scale of pay of Subordinate Judge is revised, the scale of pay of the Secretary will be revised. Later, the Bar Council of Kerala that met on 27.8.1995 , resolved that the Secretary be paid the scale of pay of District Judge with admissible DA, HRA and CCA applicable to the post from time to time with effect from 1.1.1996. The wordings of the resolution dated 7.4.1991 are totally different from the resolution dated 27.8.1995. While in the former, the words “from time to time” are singularly lacking, by the latter resolution, the Bar Council of Kerala resolved to place the Secretary of the Bar Council of Kerala in the scale of pay of District Judge with admissible DA, HRA and CCA applicable to the post “from time to time”. From the resolution dated 27.8.1995, it is evident that whenever the scale of pay of District Judge is revised, the Secretary of the Bar Council will be entitled to such revision. The Special Committee of the Bar Council of Kerala constituted under section 8A of the Act that met on 12.8.1999 understood the resolution dated 27.8.1995 as one entitling the petitioner to receive payment of interim W.P.(C) No.29356/2008 15 relief granted to District Judges in terms of G.O. (Ms.) No.116/98/Home dated 30.5.1998. The petitioner's request for interim relief was accepted by the Special Committee and payment was also effected. The petitioner retired from service on 30.11.1998. A few days prior to that date, G.O.(P) No.3000/98/Fin. dated 25.11.1998 was issued revising the scale of pay of Government employees. However, the said pay revision order did not apply to judicial officers. The scale of pay of judicial officers was revised by G.O. (Ms.) No.231/2001/Home dated 12.12.2001 with retrospective effect from 1.7.1996. The petitioner thereupon claimed arrears of salary and allowances based on the revised scale of pay of District Judge with which post, the post of Secretary of the Bar Council had been equated by resolution dated 27.8.1995. 12. Section 8A of the Advocates Act, 1961 contemplates the appointment of a Special Committee to discharge the functions of the State Bar Council until a Bar Council is constituted under the Act. It was in exercise of the said power that a Special Committee of the Bar Council of Kerala was constituted on the expiry of the term of the Bar Council of W.P.(C) No.29356/2008 16 Kerala on 27.1.1992 pursuant to the decision of the Apex Court in Babu Varghese v. Bar Council of Kerala (supra). On the terms of section 8A of the Act, the decision taken by the Special Committee of the Bar Council of Kerala at its meeting held on 12.8.1999 should be deemed to be a decision taken by the Bar Council of Kerala for the reason that it was discharging the functions of the State Bar Council. The petitioner's claim for payment of salary and allowances at the rate applicable to a District Judge in terms of G.O. (Ms.) No.231/2001/Home dated 12.12.2001 is resisted on two grounds. The first ground is that the Bar Council of Kerala has not adopted the said Government order. The second is that the words “applicable to the post from time to time” relate only to the DA, HRA and CCA applicable to the post of District Judge and not the scale of pay. The Bar Council of Kerala does not dispute the fact that resolution No.106/95 dated 27.8.1995 was adopted by the Bar Council of Kerala in furtherance of the decision to equate the post of Secretary with the post of District Judge. The then scale of pay of District Judge was Rs.5100-150-5700. The Bar Council of Kerala also decided to pay to the Secretary of the W.P.(C) No.29356/2008 17 Bar Council, DA, HRA and CCA applicable to the post of District Judge with effect from 1.1.1995. It is also not in dispute that the Secretary of the Bar Council of Kerala was placed in the scale of pay of District Judge and was also paid DA, HRA and CCA applicable to the post of District Judge. The words “applicable to the post from time to time”, in my opinion, qualify not only the DA, HRA and CCA, but also the scale of pay mentioned in resolution No.106/95. The scale of pay of District Judge was revised only by G.O.(P) No.231/01/Home dated 12.12.2001 with effect from 1.7.1996. On the terms of the resolution dated 27.8.1995, the petitioner was entitled to have his pay fixed in the revised scale of pay with effect from 1.7.1996 and not merely to the revised DA, HRA and CCA with effect from that date. Therefore, it has to be necessarily held that on the terms of the resolution dated 27.8.1995, the petitioner became entitled to be placed in the scale of pay of Rs.16750-400-19150-450-20500 and for payment of salary and allowances in the said scale of pay with effect from 1.7.1996 as claimed by him in Ext.P3 representation. The stand taken by the sub committee and accepted by the Bar Council of Kerala W.P.(C) No.29356/2008 18 cannot therefore be sustained. 13. The pleadings and the materials placed on record disclose that before the petitioner retired from service as Secretary of the Bar Council of Kerala, Sri.N.S.Gopakumar was appointed as Assistant Secretary of the Bar Council of Kerala as per resolution of Bar Council of Kerala dated 27.9.1998 and he jointed duty on 5.10.1998. After the petitioner attained the age of superannuation on 30.11.1998, he was permitted to continue for a period of six months on a consolidated pay of Rs.15,000/- per mensem. The said period came to an end on 30.5.1999. Sri.N.S.Gopakumar, Assistant Secretary was given charge of the Secretary from 30.5.1999 onwards. The Special Committee of the Bar Council of Kerala constituted under section 8A of the Act, that met on 14.1.2000 resolved to appoint him as the Secretary of the Bar Council of Kerala from 14.1.2000 and also resolved that he be paid salary in the scale of pay of District Judge with DA, HRA and CCA admissible to the post from time to time with effect from 14.1.2000. The Special Committee also resolved that he will be on probation for a period of six months from 14.1.2000. The petitioner's successor W.P.(C) No.29356/2008 19 Sri.N.S.Gopakumar was thus placed in the scale of pay of District Judge. Thereafter, the Bar Council of Kerala was reconstituted. The Executive