THE HON'BLE Mr. JUSTICE V.V.S.RAO and THE HON'BLE Mr. JUSTICE C.V.RAMULU +WRIT PETITION No.18415 of 2002 %Dated 11-6-2008 # Between: Sri P. Hari Hara Prasad & another ..... PETITIONERS AND The High Court of A.P., represented by its Registrar General, High Court Buildings, Hyderabad and others .....RESPONDENTS !Counsel for the petitioner : SHRI C. KODANDA RAM ^Counsel for Respondents: SMT. M. BHASKARA LAKSHMI SHRI J. SUDHEER SPECIAL GOVT.PLEADER <GIST: > HEAD NOTE: ? Cases referred 1. AIR 1971 SC 1850 2. 1997(5) SCC 1 3. AIR 1998 SC 1079 4. 2001(5) ALD 212 5. 2004(1) SCC 334 6. 2004(2) SCC 150 7. 2007(3) SCC 637 8. 2004 AIR SCW 5441 9. AIR 1975 SC 889 10. AIR 1976 SC 123 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE ELEVENTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE V.V.S.RAO and THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No.18415 of 2002 Between: 1. Sri P. Hari Hara Prasad, S/o Venkateshwara Rao, R/o IS 43, Erramanzil Colony, Hyderabad-500 082 2. The A.P. High Court Junior Officers’ Association, represented by its President, Md.Mohmood Ali ..... PETITIONERS AND 1. The High Court of A.P., represented by its Registrar General, High Court Buildings, Hyderabad. 2. The Government of A.P., represented by its Secretary (Law), LA & J (Courts.C1) Department, Secretariat, Hyderabad. 3. The Government of A.P., represented by its Principal Secretary, Finance & Planning Department, Secretariat, Hyderabad. 4. The Pay and Accounts Officer, Government of A.P., Exhibition Grounds, Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ, direction or order more particularly one in the nature of Writ of Certiorari: (a) calling for the records pertaining to issuance of G.O.Rt.No.1805, Law (LA&J Courts.C1) Department, dated 22-10-2005 and consequently set aside the G.O.Rt.No.1805, Law (LA&J Courts.C1) Department, dated 22- 10-2005 declaring it as illegal, without jurisdiction and violative of Art.229(1)(2) and (b) also declare the continuation of Schedule III of Rule 21(3) of Andhra Pradesh High Court Service Rules,1975 (for short ‘the Rules’) without incorporating the approval of the Hon’ble the Chief Justice for upgradation of 24 posts of Deputy Section Officers to that of Section Officers as arbitrary, illegal and contrary to the sanction of the Hon’ble the Chief Justice and (c) consequently issue a writ of mandamus to the first respondent to treat the recommendations of the Hon’ble Chief Justice of High Court of A.P. dated 6-7-1992 as a sanction and comply with the same immediately by paying the arrears from 6-7- 1992 to till date and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioners: M/S C.KODANDA RAM Counsel for the Respondents: SMT.M.BHASKARA LAKSHMI & SRI J. SUDHEER,SPL.G.P. The Court made the following : THE HON’BLE SRI JUSTICE V.V.S. RAO and THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.18415 of 2002 O R D E R: (per C.V.Ramulu,J) This Writ Petition is filed seeking a Certiorari (i) to call for the records pertaining to G.O.Rt.No.1805, Law (LA&J Courts.C1) Department, dated 22-10-2005 and declare the same as arbitrary and illegal, (ii) to declare the continuation of Schedule III of Rule 21(3) of Andhra Pradesh High Court Service Rules,1975 (for short ‘the Rules’) without incorporating the recommendation of the Chief Justice for upgradation of 24 posts of Deputy Section Officers to that of Section Officers as arbitrary and illegal; and (iii) consequently, to direct the first respondent to treat the recommendations of the Chief Justice dated 6-7- 1992 as a sanction and comply with the same immediately and pay the arrears from 6-7-1992 till date. The Writ Petition is filed by one P.Hari Hara Prasad, Retired Section Officer of the High Court of Andhra Pradesh and the Andhra Pradesh High Court Junior Officers’ Association, represented by its President Md.Mohmood Ali, initially, challenging G.O.Rt.No.1221, Law (L.A.&J Courts.C1) Department, dated 5-8-2002 issued by the second respondent, rejecting the approval of the recommendation made by the Chief Justice for upgradation of 24 posts of Deputy Section Officers/Translators to that of Section Officers, on the ground that it was issued without jurisdiction and contrary to Article 229(2) of the Constitution of India and further to declare continuation of Sl.No.7 in Schedule III of Rule 31(3) of the Rules as arbitrary and illegal. However, during the pendency of the Writ Petition, on the feeling expressed by a Division Bench of this Court that the case of the petitioners was not properly considered as is required, the matter was taken up again and G.O.Rt.No.1805, dated 22-10-2005 was issued reiterating the same stand as was taken earlier. Thereafter, the prayer in the Writ Petition was amended to the effect of challenging the said G.O. dated 22-10- 2005. According to the petitioners, there are 60 posts of Deputy Section Officers/Translators in the High Court of Andhra Pradesh. The said posts are enumerated as Category I of Division II under A.P. High Court Service Rules,1975. Further promotion from the post of Deputy Section Officer/Translator is to that of Section Officer. In view of certain exigencies of service, the Chief Justice while exercising powers under Article 229 of the Constitution of India recommended for upgradation of 24 posts of Deputy Section Officers to that of Section Officers, as the Deputy Section Officers are being entrusted with various responsibilities and attending to duties, such as, Heads of certain Sections like Vernacular Records, English Records etc., besides scrutiny and translation works. The posts of Deputy Section Officers/Translators in the High Court are equated with the posts of Translators in the Law Department of Secretariat, Government of Andhra Pradesh, in fixing the cadre and scale of pay. Responsibilities discharged by Deputy Section Officers/Translators in the High Court are much more in quantity and onerous than that of Translators in the Law Department. When the petitioners earlier filed a Writ Petition in W.P.No.4650 of 1991 seeking upgradation of the posts of Deputy Section Officers to that of Section Officers, it was disposed of by an Order dated 28-11-1991 with an observation that it is open to the petitioners to make a representation to the High Court on administrative side and the Registrar (Administration) shall consider the same and may accordingly recommend the case of the petitioners to the Government. In view of the same, Deputy Section Officers/Translators made a representation on 6-1-1992 pointing out the anomalies and seeking to recommend for upgradation of 24 posts of Deputy Section Officers to that of Section Officers. In turn, the Registrar (Management) vide his letter Roc.No.647/E.1/92-1, dated 6-7-1992 addressed the Principal Secretary to Government, Home (Courts-A) Department with a positive recommendation. Registrar also informed the Government that the approval of the said proposal would not involve any much financial burden. However, the proposals were rejected by the Government through letter No.30444/Cts.C/93-5, dated 22-7-1993 on two grounds; firstly, there is a financial burden involved in the matter and secondly, it does not satisfy the ratio of feeder posts vis-à-vis promotional posts i.e. 4:1. While that being so, a second Writ Petition was filed by the petitioners in W.P.No.15133 of 2001 seeking a direction to the Government to pass appropriate orders on the proposals sent by the High Court for upgradation of 24 posts of Deputy Section Officers to that of Section Officers, as per the recommendations made by the Chief Justice. However, the said Writ Petition was disposed of on 21-11-2001 with a direction to the State Government to consider the representation of the petitioners as well as the recommendation of the Chief Justice dated 6-7-1992 and pass appropriate orders within a period of one month. Even after those directions, Government did not issue any orders, which resulted in filing a contempt case in C.C.No.200 of 2002. However, during the hearing of the said contempt case, Government through its counsel informed the Court that it had issued G.O.Rt.No.1221, dated 5-8-2002 rejecting the proposals on fresh ground. Aggrieved by the same, the present Writ Petition is filed. However, as noticed above, during the pendency of the Writ Petition, a Division Bench of this Court expressed unhappiness as to the way in which the matter was dealt with and on the advice of the learned Advocate General, the case of the petitioners was once again examined and felt that it is not feasible to consider the request for upgradation of Deputy Section Officers posts to that of Section Officers and thus rejected the case of the petitioners vide G.O.Rt.No.1805, Law (LA & J Courts C1) Department, dated 22-10-2005. Thus, the prayer in the Writ Petition was amended to the effect of challenging the said G.O. It is the contention of the petitioners that under Article 229(2) of the Constitution of India, the appointment of Officers and servants of the High Court shall be made by the Chief Justice of the High Court or such other Judge or Officer of the Court as the Chief Justice may direct. Therefore, under Article 229(1) any recommendation made by the Chief Justice is absolute and no limitations can be imposed by the Government. The control over the staff of the High Court is free from interference by the Government. The object of the Article is to secure independence of judiciary, which is not possible unless the authority is vested in the Chief Justice to appoint subordinate staff with complete control over them. The Chief Justice is vested with wide powers to run the administration of High Court independently without interference from the other wings. The Chief Justice can create and reorganize the cadre of A.P. High Court services as per administrative requirement without any approval or consent from the Government. Therefore, the impugned Order is arbitrary, illegal and contrary to Article 229(1) of the Constitution of India. Respondent No.1 filed counter supporting the case of the petitioners. Whereas, other respondents filed separate counters and additional counters denying allegations made by the petitioners and asserting that recommendation of the Chief Justice regarding upgradation of the posts of Deputy Section Officers to that of Section Officers was examined and it was felt that if recommendations of the High Court are accepted, it would disturb the ratio between the promotion posts and feeder posts. Government also considered that the Sheristadars of District Courts are holding higher responsibilities than that of Deputy Section Officers of High Court and that the duties and responsibilities of both the categories are different and, therefore, they are not entitled for equal pay. Further, Government also examined the matter thoroughly and felt that if the posts of Deputy Section Officers are upgraded to that of Section Officers, then the Section Officers strength would be 84+24=108 + Sheristadars 64 (existing + upgraded). Thus, the strength of Section Officers would be 172. Since the strength in the lower category posts are 26, the ratio would become 172:26, which is not in accordance with the rules, because the feeder category should always be more than that of promotion category of any service, so that the personnel in lower category will get promotions in routine course. In the additional counter filed by the 3rd respondent, it is stated thus: “3………….W.P.No.18415/2002 was filed by the petitioner against the orders of the Government issued in G.O.Rt.No.1221, Law (LA&F Courts.C) Department, dated 5-8-2002. Thereon the matter has been taken up third time with this Department and it was again opined that taking into account the duties and responsibilities of both these cadres i.e. Deputy Section Officer and Section Officer and different pay scales assigned to them, there is no justification in their request. The following pay scales were assigned for the above categories based on the recommendations of successive Pay Revision Commissions from time to time: PRC SECTION OFFICER DEPUTY SECTION OFFICER 1978 800-1450 750-1300 1986 1550-3050 1380-2750 1993 3110-6380 2750-5960 1999 5980-12100 5300-11300 2005 9385-21550 7770-18675 Moreover Deputy Section Officer is the feeder channel for the promotion to the post of Section Officer. The Anomalies Committee has also not accepted the proposal. The request was examined several times from 1992 onwards. If these posts are upgraded there would be an increase in the scales and apart from involving huge financial implications, the upgradation also involved change from Non- Gazetted to Gazetted cadre, without any justification. If this is conceded, flood gates will open and similar requests may arise from number of cadres from various Departments of the State Government and thus it is not advisable to concede to this request. In view of the above, the matter has been circulated by Secretary, Law Department upto Hon’ble C.M. through C.S./M(L.&C)/M (Finance) and orders have been issued rejecting the proposal vide G.O.Rt.No.1805, Law (LA&J Courts.C1) Department, dated 22-10-2005. As the matter has been negatived by the Government and hence neither any financial implications are involved in the matter nor any policy decision taken by the Government and it is only a request for upgradation of the post of Deputy Section Officer to that of Section Officer, which is negatived by the Government. Now again on this petition, the Secretary to Government, Legislative and Justice, Law Department has filed an additional counter affidavit on 7-9- 2006.” Sri C. Kodanda Ram, learned counsel for the petitioner, strenuously contended that it is the prerogative of the Chief Justice to create/upgrade posts in the A.P. High Court establishment. Government cannot enter into the arena of creation or upgradation of posts and ordinarily refuse the recommendation made by the Chief Justice under Article 229 of the Constitution, except in exceptional cases where huge financial burden is involved. Further, the rejection of the recommendation of the Chief Justice without any consultation/discussion with the Chief Justice is arbitrary and illegal. This is a dead lock between two constitutional authorities i.e. Executive and the Judiciary. The Chief Justice, under the powers vested in him under Article 229 recommended upgradation of 24 posts of Deputy Section Officers to that of Section Officers and it was made clear that no much financial burden was involved and proportionately the posts of Deputy Section Officers would be reduced. Therefore, the contention of the Government that the posts of Deputy Section Officers are feeder posts for the posts of Section Officers and, as such, after upgradation of 24 posts of Deputy Section Officers to that of Section Officers, total number of Section Officers posts will come to 108 and not 172 as stated by the Government is not correct and the further contention that the ratio was also not properly maintained is incorrect. This is only an imaginary position taken up by the Government. Even after upgradation of 24 posts of Deputy Section Officers, the posts of Deputy Section Officers remain to be 36. Therefore, absolutely there is no financial burden involved. The very rejection of the case of the petitioner is contrary to the recommendations of the Chief Justice under Article 229. Once the recommendation of the Chief Justice is made, the Government is bound to accept the same; otherwise it amounts to belittling the institution of the Chief Justice. In this case, absolutely there is no financial burden and the Government could have accepted the recommendations of the Chief Justice as it is; instead of that, they have made a hue and cry. In support of his contention, the learned counsel relied upon the decisions reported i n M.GURUMOORTHY v. ACCOUNTANT GENERAL[1], STATE OF U.P. v. C.L. AGRAWAL[2], HIGH COURT OF RAJASTHAN v. RAMESH CHAND PALIWAL[3], P.Ss. AND C.Ms. ASSOCIATION v. SECRETARY, FINANCE[4], HIGH COURT EMPLOYEES WELFARE ASSOCIATION, CALCUTTA v. STATE OF WEST BENGAL[5], UNION OF INDIA v. S.B.VOHRA[6], HIGH COURT EMPLOYEES’ ASSOCIATION, CALCUTTA v. STATE OF WEST BENGAL[7] and STATE OF U.P. v. SECTION OFFICER BROTHERHOOD[8]. Sri J. Sudheer, learned Special Government Pleader appearing for respondents 2 to 4, submitted that the power of the Chief Justice under Article 229 is not absolute and it is subject to the constitutional limitations and the very Article 229 limits the power of the Chief Justice insofar as creation, upgradation and appointments, which are again subject to approval of the Government, wherever financial burden is involved. Once the power of the Government is not in doubt, it is always open for this Court to examine as to whether the rejection of the approval was right or wrong. In this case, 24 posts are sought to be upgraded and that results in great financial burden on the State exchequer. Therefore, Government has rightly rejected the proposals for upgradation of 24 posts of Deputy Section Officers to that of Section Officers, since they involve financial burden. The power of the Chief Justice under Article 229 is not absolute and it is subject to limitations prescribed in the very same Article. Generally speaking, the recommendations of the Chief Justice are not desirable to be rejected, but that does not mean that the Government could not have refused to accord approval to the recommendations made by the Chief Justice in this case. Though it is not desirable in every case to reject the recommendations of the Chief Justice, but the Government is vested with the power, under the Constitution, to approve or to reject the same. Therefore, the contention of the learned counsel for the petitioner that the power vested under Article 229 with the Chief Justice is absolute is not correct and the power is further subject to scrutiny by the Government in certain areas. In the present case, since it involved financial burden, Government has rightly rejected the proposals. Further, no Mandamus can be issued straightaway and the judicial review has to be exercised coupled with factual scenario. Upgradation is a creation of post and it involves financial implications and creation of posts is the prerogative of the Government and not the High Court. No rule is made or sought to be amended for creation of the cadre strength. The recommendation of the Chief Justice seems to be not on the exigencies of service, but on the representation of the employees’ association and further the Chief Justice has not invoked the power under Article 229. The Writ Petition is devoid of merits and is liable to be dismissed. In support of his contention, learned Special Government Pleader relied upon the decisions in STATE OF ASSAM v. BHUBHAN CHANDRA[9], STATE OF A.P. v. T.GOPALAKRISHNAN[10], STATE OF U.P. v. C.L. AGRAWAL (2 supra) and UNION OF INDIA v. S.B. VOHRA (6 supra). We have given our earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned Order and other material made available on record. From the pleadings noticed above, the following questions arise for consideration: 1. Whether the power of the Chief Justice under Article 229 of the Constitution of India is absolute and recommendation made by him is binding on the Government and whether the Government can reject the approval of the recommendation of the Chief Justice ? 2. Whether the proposals sent by the Chief Justice, in this case, could not have been rejected by the Government? It appears, the Association of the Junior Officers of the A.P. High Court earlier filed a Writ Petition in W.P.No.4650 of 1991 seeking upgradation of the posts of Deputy Section Officers in the High Court to that of Section Officers. The said Writ Petition was disposed of on 28-11-1991 with an observation that it is always open for the petitioners to make a representation to the Chief Justice on administrative side. Subsequently, a representation was made by the Deputy Section Officers/Translators on 6-1-1992 pointing out the anomalies in the pay scales and recommending for upgradation of the posts of Deputy Section Officers to that of Section Officers, since they are discharging onerous responsibilities. On the said representation, the then Chief Justice passed an Order dated 26-6-1992 to the following effect: “At present 24 posts of D.S.Os should be upgraded to that of S.Os and equivalent posts in the existing cadre of D.S.Os may be abolished. This should not involve much financial burden. On the contrary, it may result in some saving. Write to the Government stating that HCJ strongly recommends accordingly. This should also meet to some extent the legitimate grievance of the A.P. High Court Service Association.” In turn, the Registrar (Management) addressed a letter to the Government on 6-7-1992 stating that the Chief Justice strongly recommended the legitimate request of the Deputy Section Officers/Translators of the High Court establishment and requested to issue orders for upgradation of 24 posts of Deputy Section Officers to that of Section Officers. From the above, it is clear that it is not forwarding of the representation of the Association by the Registrar, but on the strong recommendation made by the Chief Justice while invoking the powers under Article 229. Therefore, we need not go into the controversy raised by the learned Special Government Pleader that there was no such recommendation as required under Article 229(2) of the Constitution. Thereafter, Government sent a letter dated 22-7-1993 stating that the post of Deputy Section Officer/Translator is a feeder category post to that of Section Officer and if 24 posts of Deputy Section Officers are upgraded, the remaining posts would come down to 26 and the total number of feeder category posts will be 26, while promotion posts are 172. In fact, we have looked into the letter dated 22-7-1993 and the same was not in good taste and the way in which it was to be dealt with was not dealt and the learned Special Government Pleader also conceded the same. However, when a further recommendation was made by the Registrar vide Proceedings No.647.E1/92-3 reiterating the request for approval of the upgradation of 24 posts, G.O.Rt.No.1221, dated 5-8-2002 was issued. Initially, the Writ Petition is filed challenging the said G.O. It seems, when the matter had come up for hearing on 1-9-2005, a Division Bench of this Court expressed unhappiness over the manner in which the whole issue was dealt with. Learned Advocate General has brought this to the notice of the Government. Thereafter, the matter was reexamined by the Government and felt that it is not feasible to consider the request of upgradation of 24 posts of Deputy Section Officers to that of Section Officers and thus again rejected the request of the petitioners vide G.O.Rt.No.1805, Law (LA&J Courts.C1) Department, dated 22-10-2005. The prayer in the Writ Petition was, thereafter, amended to the effect of challenging the said G.O. Now, we may notice various decisions relied upon by learned counsel for the petitioners a under: In M.GURUMOORTHY (1 supra), the Apex Court held as under: “(4) Once an order had been passed by the Chief Justice of the High Court in exercise of his power under Art. 229 of the Constitution the only course open to the Government, if it wanted to challenge those orders, was to take appropriate proceedings either by way of persuading the Chief Justice to rescind or amend his order on the administrative side or to file a writ petition challenging his orders in the High Court. But the Government took the extraordinary and somewhat unusual step of directing the Accountant General not to issue any pay slip to the appellant until final orders of the Government were issued. This is clear from the letter of the Government to the Accountant General dated 7/10/1961. It appears that the appellant challenged the directions given by the Government to the Accountant General by a petition under Article 226 of the Constitution. That petition was however, withdrawn on 12/07/1963 in view of an assurance given by the Advocate General that if a proposal was sent to the Government by the High Court on the following lines it would be accepted:" (1) Creation of a permanent post of Secretary to the Hon'ble Chief Justice, outside the cadre of Stenographers, in the scale of Rs.450-30-600 with retrospective effect the date with reference to which this would take effect being decided by the