IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 4TH JANUARY 2008 / 14TH POUSHA 1929 WP(C).No. 31662 of 2007(R) --------------------------------------- PETITIONERS: --------------------- 1. M VALSAKUMARI, OFFICE SUPERINTENDENT, HIGH COURT OF KERALA, RESIDING AT KANNAT HOUSE, KORATTY SOUTH, THRISSUR DISTRICT. 2. M. SUJATHA, SR.GRADE TYPIST, HIGH COURT OF KERALA, RESIDING AT KARTHIKA, VIKASVANI, THENGODE P.O., KOCHI. 3. V. KANAKALATHA, COURT OFFICER, HIGH COURT OF KERALA, RESIDING AT VRINDAVAN, NETTOOR P.O., KOCHI. 4. REGHUPATHY P.K., ATTENDER GRADE I, HIGH COURT OF KERALA, RESIDING AT PERIYAKAVIL HOUSE, PUTHIYAKAVU, TRIPUNITHURA, ERNAKULAM. 5. V.M. REMANI, SELECTION GRADE TYPIST, HIGH COURT OF KERALA, RESIDING AT HOUSE NO.1273, CHOOTATH PARAMBU, PACHALAM, KOCHI-12. 6. GOPALA KRISHNA PILLAI, PEON GRADE I, HIGH COURT OF KERALA, RESIDING AT THIRUVATHIRA HOUSE, NEAR GOVT. U.P.S. KAKKANAD, ERNAKULAM. 7. K.K. YOGIDASAN, DUPLICATOR OPERATOR, HIGH COURT OF KERALA, RESIDING AT SRIMURUGA, KANMOTH HOUSE,KIZHAKKEPRAM, N. PARUR. W.P.(C). NO.31662/2007: 8. B. SUDHAN, COURT OFFICER, HIGH COURT OF KERALA, ERNAKULAM, RESIDING AT SAILAM, K.K.PADMANABHAN ROAD, KOCHI-18 9. P.P. VIJAYAN, SELECTION GRADE TYPIST-COPYIST, HIGH COURT OF KERALA, ERNAKULAM, RESIDING AT PRABHAKARA VILASOM, AROOR P.O., ALAPPUZHA DISTRICT. 10. V.K. SURESH BABU, LIBRARY ASSISTANT HIGHER GRADE, HIGH COURT OF KERALA, RESIDING AT VATTATHARA HOUSE, NEAR AMBEDKAR STADIUM, KOCHI-35. BY ADV. SRI.P.SREEKUMAR, SRI.K.S.MANU, SRI.P.S.SIDHAN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE HON'BLE CHIEF JUSTICE, HIGH COURT OF KERALA, ERNAKULAM. 4. THE REGISTRAR GENERAL, HIGH COURT OF KERALA, KOCHI-18. BY ADVOCATE GENERAL SRI. C.P. SUDHAKARA PRASAD, SR.GOVERNMENT PLEADER SRI. P. NANDAKUMAR, R3 BY ADV. SRI.K.R.B.KAIMAL (SR.), ADV. SRI.B.UNNIKRISHNA KAIMAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2007,ALONG WITH W.P.(C). NO. 31665/2007 AND CONNECTED CASES, THE COURT ON 04/01/2008 DELIVERED THE FOLLOWING: W.P.(C). NO.31662/2007-R: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE RELEVANT PORTION OF THE KERALA HIGH COURT SERVICE RULES, 2007. EXT.P.2: COPY OF THE COMMUNICATION DTD. 17/01/2007 ADDRESSED FROM THE R.4. ADDRESSED TO THE R.2. EXT.P.3: COPY OF THE COMMON JUDGMENT DTD. 13/08/2007. EXT.P.4: COPY OF THE RELEVANT PORTION OF THE PAY COMMISSION REPORT. EXT.P.5: COPY OF THE GOVERNMENT ORDER DTD. 17/03/2006. EXT.P.6: COPY OF THE ORDINANCE NO. 61/07 PUBLISHED IN KERALA GAZETTE-VIDE NOTIFICATION NO. 22274/LEG. B1/07/LAW DTD. 22/10/2007. EXT.P.7: COPY OF THE OFFICE MEMORANDUM NO. A1-83540/2004 DTD. 27/10/2007 ISSUED BY THE R.4. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. V.GIRI, J. ------------------------- W.P.(C).No.31662, 31665, 32756, 33186 & 33846 of 2007 ------------------------- Dated this the 4th day of January, 2008. JUDGMENT Seminal questions, inter alia, involving interpretation of Article 229(2) of the Constitution of India, arise for consideration in these writ petitions. Since the issues are common, they have been heard together and are being disposed of by this common judgment. For the sake of convenience, reference is made to W.P.(C)No.31662/07. 2. The petitioners were/are officers and members of the staff of the High Court of Kerala and are governed by the Kerala High Court Service Rules, 2007 {for short “the Rules, 2007”}. The said Rules have been brought into force by the Hon'ble Chief Justice exercising powers under Article 229(2) of the Constitution of India. The Rules which were earlier in force in Kerala from 1970 were revised and published in the gazette dated 13.2.2007 and were brought into force with effect from 1.1.2007. The Rules, in operation prior to the 2007 Rules, were the High Court Service Rules W.P.(C).NO.32756/07 & Con.Cases :: 2 :: 1970, which were enforced with the approval of the Governor. Rule 35 of the 1970 Rules provided that the various service rules in the State of Kerala, applicable to the Officers and servants and subject to the Rule making control of the Governor or the Government of Kerala, as the case may be, shall, subject to the High Court Service Rules, govern the members of the service in the matter of their pay, allowances, leave, leave salary, pension and other conditions of service. Thus, the provisions of the Kerala Service Rules were also made applicable to the members of the High Court staff. Consequently, by virtue of Rule 60(a) of Part I of the Kerala Service Rules, the age of retirement of the High Court staff was also 55 years. When the Rules were framed in 2007, an express provision was made as regards the age of retirement, vide Rules 37(1) of the Rules which reads as follows: "Except as otherwise provided in these Rules, the compulsory retirement on superannuation of a member of the Service shall take effect from the afternoon of the last day of the month in which he attains the age of 58 years.” W.P.(C).NO.32756/07 & Con.Cases :: 3 :: 3. Consequently, insofar as the High Court staff are concerned, the age of retirement stood enhanced from 55 to 58. The petitioners, therefore, contended that they are eligible to continue till the age of 58 years. Apparently, the State Government took up the stand that the enhancement of the retirement age 55 to 58 for the High Court staff as per Rule 37(1) of the Rules cannot be accepted. The Government declined to disburse the salaries due to the persons who continued in service after the age of 55 by virtue of Rule 37(1) of the Rules, 2007. This was challenged in a batch of writ petitions before this court, and ultimately led to the judgment dated 13.8.2007. This court found that Rule 37(1) of the Rules, which provided for enhancement of the retirement age of the High Court Staff from 55 to 58 is a prescription made by the Hon'ble Chief Justice in exercise of his powers under Article 229(2) of the Constitution of India. The stand taken by the Government, that the said Rules, insofar as it relates to the prescription of the retirement age, will be W.P.(C).NO.32756/07 & Con.Cases :: 4 :: comprehended by the proviso to Article 229(2) of the Constitution and therefore, it requires the approval of the Governor of the State, was considered by this court and negatived. Regarding the prescription of the age of retirement, this court found that it does not relate to the salary, leave, leave salary or pension and therefore, the Rule prescribing the retirement age does not require the approval of the Governor of the State. It was so declared and a writ of mandamus was issued commanding the Government to draw and disburse the salary due to the petitioners in the said cases. 4. The State preferred appeals against the said judgment of this court before the Division Bench as W.A.No.2254/07 and connected cases. The appeals are pending before the Division Bench, though there is no order of stay as such. 5. It is thereafter that an Ordinance was issued as the Kerala High Court Service (Determination of Retirement Age) Ordinance, 2007, [Ordinance 61/07] {hereinafter W.P.(C).NO.32756/07 & Con.Cases :: 5 :: referred to as “the Ordinance”}. The Ordinance is stated to have come into force on 1st of January, 2007 and it declares to be “an Ordinance to determine the retirement age of the officers and servants of the High Court of Kerala”. Sections 2 and 3 of the Ordinance are relevant in the context and are extracted hereunder: “2. It shall be deemed to have come into force on the 1st day of January, 2007. 3. Determination of Retirement Age in High Court Services:- Notwithstanding anything contained in any other law for the time being in force, or in any rule, or in any judgment, decree or order of any court, the compulsory retirement on superannuation of an officer or servant of the High Court of Kerala shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years.” 6. The Ordinance was promulgated on 22.10.2007. Consequent thereupon, by Ext.P7 order dated 24.10.2007, the petitioners were intimated that they are deemed to have retired on superannuation, on the last day of the month in which they have attained the age of 55 and that W.P.(C).NO.32756/07 & Con.Cases :: 6 :: their service in the High Court stands terminated on 22.10.2007, as mandated in the Ordinance. It is thereupon, the petitioners have approached this court, inter alia, seeking the following reliefs: (a) To declare that the Ordinance as not valid as the same was promulgated in violation of Article 213 of the Constitution of India (b) To declare that Rule 37(1) of the Rules made under Article 229(2) of the Constitution is not subject to the Ordinance promulgated under Article 213 of the Constitution. (c) To declare that the petitioners are entitled to continue in service till the age of 58 years in terms of Rule 37(1) of the Rules. Petitioners have also sought for a writ of certiorari, both in relation to the Ordinance as also in relation to the order of termination issued by the Registrar General. 7. Counter affidavit has been filed by the Government, inter alia, supporting the validity of the Ordinance. The Government has also taken up a contention that, as a matter of fact, Rule 37(1) of the Rules, is comprehended by the proviso to Article 229(2) of the Constitution and consequently the same requires the W.P.(C).NO.32756/07 & Con.Cases :: 7 :: approval of the Governor. According to the Government, the stand taken up by the government in this regard should have been accepted by this court in the earlier round of litigation and at any rate, according to it, the issue is pending before the Division Bench. Apart from the same, it is also contended that the power of the Chief Justice under Article 229(2) of the Constitution of India is subject to the provisions of the law made by the State Legislature, in terms of Article 229(2) of the Constitution regulating the conditions of service of officers and servants of the High Court. The power of the Governor to promulgate an Ordinance is plenary and an Ordinance, therefore, is law, within the meaning of Article 13 of the Constitution. Once, therefore, there is a plenary law prescribing the retirement age of the staff of the High Court, the Rule made by the Chief Justice under Article 229(2) of the Constitution will have to be read as subject to this. It is contended that the age of retirement of the Government staff is still restricted to 55 years. It is open to the legislature of the State and W.P.(C).NO.32756/07 & Con.Cases :: 8 :: consequently, it is open to the Governor, exercising powers under Article 213 of the Constitution of India, to declare that the age of retirement of High Court staff will be restricted to 55 years. Once, therefore, the law declares the age of retirement as 55 years, the petitioners are bound to be superannuated on attaining the age of 55. The period of service rendered by the petitioners, after attaining the age of 55 years till 24.10.2007 when their services were terminated, is saved for the purpose of salary and allowances, which they have been drawing in terms of Section 3 of the Ordinance. It is contended that the Ordinance is a valid piece of legislation and consequently, the petitioners are not entitled to any of the reliefs prayed for in the writ petitions. 8. The High Court has not filed any counter affidavit in the writ petitions. But Mr.K.R.B.Kaimal, learned Senior Counsel, made submissions on behalf of the High Court. I will refer to the said submissions at the appropriate stage. W.P.(C).NO.32756/07 & Con.Cases :: 9 :: 9. Taking into account the width and sweep of the questions involved in the writ petitions, elaborate submissions were made by Mr.Kurian George Kannamthanam, Senior counsel, Mr.P.Sreekumar and Ms.Pinku H.Thaliath, on behalf of the petitioners; Advocate General Mr.C.P.Sudhakara Prasad, assisted by Mr.P.Nandakumar on behalf of the State and Mr.K.R.B.Kaimal assisted by Mr.Unnikrishna Kaimal on behalf of the High Court. 10. Learned counsel for the petitioners have also submitted argument notes also on conclusion of arguments. 11. There is no dispute to the facts, which I have already narrated above, in the opening portion, while referring to the contentions of the petitioners. The question that could be formulated in simple terms would be “whether the Ordinance is valid and constitutional and are there any grounds to declare the Ordinance as unconstitutional, invalid and inoperative?” W.P.(C).NO.32756/07 & Con.Cases :: 10 :: 12. If the Ordinance is valid and constitutional, then obviously, the age of retirement of the petitioners will be governed by Section 2 thereof. 13. Since the contentions of the parties are centered around Article 229 of the Constitution of India, it is only appropriate to extract the same in its entirety. “229. Officers and servants and the expenses of High Courts – (1) 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. 1. 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 authorised by the Chief Justice to make rules for the purpose: W.P.(C).NO.32756/07 & Con.Cases :: 11 :: 2. Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor 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 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.” 14. For the sake of convenience, I find it advantageous to formulate the contentions raised by the learned counsel for the petitioners in the following terms: (i) The Hon'ble Chief Justice of the High Court has exclusive power to prescribe the conditions of service of the officers and servants of the High Court. Once Rule 37(1) has been prescribed by the Chief Justice, it cannot be set at naught by any subsequent legislation brought into force by the State legislature and it obviously cannot be done by any Ordinance promulgated by the Governor in that behalf. (ii) The words “Subject to the provisions of any law made by the legislature of the State”, as occurring in the opening portion of Article 229 (2) of the Constitution postulates the W.P.(C).NO.32756/07 & Con.Cases :: 12 :: existence of a law prescribing the conditions of service of officers and servants of a High Court prevailing and in force at that point of time when the Chief Justice exercises powers under Article 229(2). In the present case, admittedly, there was no plenary statute as on 1.1.2007 when the Hon'ble Chief Justice brought into force the Rules, 2007. The effect of Rule 37(1) of the Rules cannot be nullified by a subsequent legislation. (iii) Though the power of the Governor to promulgate an Ordinance will extend to areas where the legislature of the State is also competent to enact laws, taking into account the fact that Article 229 contemplates conferment of power on high constitutional functionaries to frame Rules, “provisions of any law” as contemplated under Article 229 (2) means provisions of any plenary law made by the State legislature and not the provisions as contained in an Ordinance promulgated by the Governor. (iv) Independence of judiciary, which has been identified and highlighted by the Supreme Court in more than one case as part of the basic structure of the Constitution behoovesthat Rules made by the Hon'ble Chief Justice under Article 229(2) of the Constitution should not be attempted to be diluted in its operation or brought into W.P.(C).NO.32756/07 & Con.Cases :: 13 :: conflict with the provisions of an Ordinance promulgated by the Governor. The power ought not to have been exercised by the Governor in circumstances where the operation of the Ordinance comes into conflict with the Rule made by the Chief Justice under Article 229(2) of the Constitution. 15. I will consider each one of the contentions separately. 16. The ambit of the powers of the Chief Justice of a High Court under Article 229 of the Constitution in the context of a recalcitrant attitude shown by the State to pass a pay slip of an officer appointed by the Chief Justice was considered by the Supreme Court in Gurumurthy v. Accountant General, Assam & Nagaland {AIR 1971 SC 1850}. Paragraph 8 of the said judgment, insofar as it is relevant in the context, is extracted hereunder: “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 or his nominee who W.P.(C).NO.32756/07 & Con.Cases :: 14 :: is to be the supreme authority and there can be no interference by the executive except to the limited extent that it 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 Judges 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 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.” W.P.(C).NO.32756/07 & Con.Cases :: 15 :: 17. The above mentioned passage has been considered as the locus classicus on the subject, inasmuch as in several decisions rendered by the Supreme Court on subsequent occasions either with reference to Article 146 of the Constitution dealing with the powers of the Chief Justice of India or with Article 229 of the Constitution, the Court has drawn sustenance from the above mentioned passage. The Supreme Court, therefore, held that Clause (1) read with Clause (2) of Article 229 deals with conferment of power on the Chief Justice firstly in the matter of appointments and secondly with regard to the conditions of service of officers and servants of a High Court. Insofar as the power to effect appointments are concerned, as has been noted by the Supreme Court, the conferment of power on the Chief Justice is in absolute terms. As has been noted above, 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. W.P.(C).NO.32756/07 & Con.Cases :: 16 :: 18. The power under Article 229(2) of the Constitution is subject to two factors. In the matter of salary, allowances, leave and pension, the Rules require the approval of the Governor. The second aspect relates to a law made by the State legislature with regard to the matters covered by Article 229(2) of the Constitution. It is up to the Chief Justice to prescribe the conditions of service of officers and servants of the High Court and obviously, this is done by the Hon'ble the Chief Justice by formulating the Rules in that behalf. The crucial question is whether the Rules framed under Article 229(2) of the Constitution are subject to the provisions of any law made by the State legislature. The Supreme Court itself has spoken on several occasions as to the nature of the power exercised by the Governor under the proviso to Article 229(2) of the Constitution, in the matter of grant of approval of the Rules made under Article 229(2) of the Constitution, by the Chief Justice, insofar as such Rules relate to the salaries, allowances, leave or pension. W.P.(C).NO.32756/07 & Con.Cases :: 17 :: 19. But apparently, there is no judgment either of the Supreme Court or the other higher courts of the land dealing with the nature of the power exercised by the Hon'ble Chief Justice in relation to the operation of any Rule made by the Hon'ble Chief Justice under Article 229(2) vis- a-vis, any Rule made by the State legislature dealing with one of the aspects covered by the Rules made by the Hon'ble Chief Justice. 20. The answer to the question would obviously require an understanding of the nature of the powers exercised by the Hon'ble Chief Justice under Article 229 of the Constitution of India. 21. Insofar as Article 229(1) is concerned, as observed by the Hon'ble Supreme Court in Gurumurthy {AIR 1971 SC 1850}, the power conferred on the Hon'ble Chief Justice is absolute and clear. It is a power conferred under the Constitution on a high constitutional functionary and it is not open even for the legislature to pass any law, which has the effect of interfering with or diluting the W.P.(C).NO.32756/07 & Con.Cases :: 18 :: exercise of such power by the Hon'ble Chief Justice. The said position of law does not admit of any equivocation as such. 22. What is the nature of the power exercised by the Chief Justice, while formulating the Rules under Article 229(2) of the Constitution? Is it legislative or statutory? 23. The issue was considered by the Supreme Court in the decision reported in Supreme Court Employees Welfare Association v. Union of India {AIR 1990 SC 334}. In separate concurring judgments, M.M.Datt, J. and Dr.T.Kochu Thommen, J. held that the power exercised by the Hon'ble Chief Justice of India under Article 146(2) of the Constitution (Article 229(2) is in pari materia with Article 146(2) of the Constitution) is legislative in character. Paragraphs 46 and 96 of the judgment of the Supreme Court deal with this aspect. The Supreme Court also held that the conditions of service of the employees of the Supreme Court that are laid down by the Chief Justice of India, while framing the Rules, will be final and W.P.(C).NO.32756/07 & Con.Cases :: 19 :: conclusive, except where the same relates to salaries, allowances, leave or pension, in which case, the approval of the President of India is required. It was held that the power exercised by the President while considering the question of approval is also legislative in character. 24. Once it is held that, while framing the Rules under Article 229(2) of the Constitution, the Hon'ble Chief Justice exercises legislative power, then it also follows that the exercise of power will be subject only to such limitations as are imposed by the Constitution. As noted by the Supreme Court in Gurumurthy {AIR 1971 SC 1850}, there are limitations on the exercise of power by the Hon'ble Chief Justice under Article 229(2). One is with regard to the approval to be obtained from the Governor insofar as the Rules relate to four aspects mentioned in the proviso to Article 229(2). Though there is a contention