IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 WP(C).No. 35907 of 2005(R) -------------------------------------- PETITIONERS: --------------------- 1. KERALA HIGH COURT GAZETTED OFFICERS ASSOCIATION,RAM MOHAN PALACE,ERNAKULAM, REPRESENTED BY ITS SECRETARY, P.S.JOSEPH,COURT FEE EXAMINER, HIGH COURT OF KERALA,ERNAKULAM. 2. A.J.ANTONY,COURT OFFICER (HIGHER GRADE), HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENTS: --------------------- 1. STATE OF KERALA,REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVT. OF KERALA, HOME DEPARTMENT,GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 2. HIGH COURT OF KERALA,ERNAKULAM, KOCHI-31,REPRESENTED BY ITS REGISTRAR GENERAL. *3. A. RAVEENDRAN, SELECTION GRADE TYPIST, HIGH COURT OF KERALA, ERNAKULAM. *4. P.P. VIJAYAN, SELECTION GRADE TYPIST COPYIST, HIGH COURT OF KERALA. *ADDL. R3 AND R4 ARE IMPLEADED AS PER ORDER DATED 28/03/2006 IN IA NO. 4746/2006. R3 AND R4 BY ADV. SRI.P.C.SASIDHARAN GOVERNMENT PLEADER SRI. RAVINDRANATH R2 BY ADV. SRI. ELVIN PETER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/02/2008 ALONG WITH WPC NO. 3850 OF 2007, THE COURT ON 22/02/2008 DELIVERED THE FOLLOWING: WP(C) NO: 35907/2005 APPENDIX PETITIONER'S EXHIBITS EXT.P1. COPY OF THE JUDGMENT DT. 4/2/98 IN OP NO. 16175/96 OF THIS HON'BLE COURT. EXT.P2. COPY OF THE GOVT. ORDER GO (MS) NO. 743/2004/LAW DT. 14/5/2004. EXT.P3. COPY OF THE REPRESENTATION SUBMITTED BY THE COURT OFFICERS, HIGH COURT OF KERALA. EXT.P4. COPY OF THE GOVT. LETTER NO. 5669/C2/2005/HOME DT. 18/10/2005 SENT BY THE R1 TO THE R2. EXT.P5. COPY OF THE JUDGMENT IN WPC NO. 24940 AND 27954/2005 OF THIS HON'BLE COURT. EXT.P6. COPY OF THE LETTER DT. 22/1/2005 FROM THE REGISTRAR OF THIS HON'BLE COURT VIDE LETTER NO. A1/17693/97 (IN I.A. NO. 8223/2006). EXT.P6. COPY OF THE GO P NO. 572/07/83/FIN DT. 29/1/2007 ISSUED BY THE GOVT. OF KERALA. (IN I.A. NO. 16367/2007). RESPONDENT'S EXHIBITS NIL. True copy tga V.GIRI, J. --------------------------- W.P.(C)No.35907 of 2005 & 3850 OF 2007 --------------------------- Dated this the 22nd day of February, 2008. JUDGMENT The parties in these two writ petitions are common and common issues arise for consideration. Therefore, they have been heard together and are being disposed of by this common judgment. Reference is essentially made to W.P.(C)No.35907/05. 2. The first petitioner is an Association of Gazetted Officers belonging to the High Court service and the second petitioner is a member of the first petitioner Association, who holds the post of Court Officer (Higher Grade). The Court Officers and other staff working on the judicial side of the High Court service were paid a compensatory allowance at the rate of Rs.200/- per month in connection with the preparation of the cause list. This was taking note of the fact that they have to remain in the office for about 2 to 3 hours, after regular office hours in connection with the work in relation to the preparation of the cause list. In O.P.No.16175/96, this court considered the plea made by W.P.(C).NO.35907/05 & Con.Case :: 2 :: the petitioners, along with two others, for sanction and disbursal of Compensatory Allowance to the Court Officers and Typists of the High Court service, on a par with the Compensatory Allowance paid to the staff of the Advocate General's Office working in the court section in connection with the preparation of the cause list. Initially when Compensatory Allowance was paid to the staff of the Advocate General's Office at the rate of Rs.40/- per month, the same was not made available to the Court Officers and Typists of the High Court service. It was later made available. The Compensatory Allowance was raised to Rs.200/- with effect from 1.12.1995, the benefit of the revision was claimed by the High Court staff. During the pendency of the writ petition, the Government issued G.O.(MS) No.175/97/Home dated 14.7.1997 revising the Compensatory Allowance to the Court Officers and Typists of the High Court service at the rate of Rs.200/- with effect from 1.12.1995. Taking note of this Government Order, this court directed the Government to pass appropriate orders with regard to the W.P.(C).NO.35907/05 & Con.Case :: 3 :: retrospective effect claimed for the Compensatory Allowance and apparently, taking note of Ext.P1 judgment, Court Officers and Typists of the High Court service were given such benefits as well. 3. While so, by Ext.P2 order dated 14.5.2004, the officers in the Advocate General's Office attending the preparation of cause list were sanctioned Compensatory Allowance at the rate of Rs.400/- per month i.e Compensatory Allowance was enhanced from Rs.200/- to Rs.400/- per month. Ext.P3 representation was submitted by the High Court staff before the Hon'ble Chief Justice for a similar benefit. Pursuant to the directions of the Hon'ble Chief Justice, the Registrar General of this court, as per Ext.P6 dated 22.1.2005, wrote to the Government to enhance the Compensatory Allowance to the staff of the High Court involved in the cause list work from Rs.200/- to Rs.400/-. This was met with Ext.P4 order issued by the Government, stating that there is no parity between the staff of the High Court attending the cause list work and the staff of the Advocate General's office doing the same work, as W.P.(C).NO.35907/05 & Con.Case :: 4 :: regards the number of beneficiaries or date of effect of payment etc. But the staff of the High Court are covered by a separate pay revision order i.e. G.O.(MS) No.176/99/Home dated 29.09.1999. The proposal to enhance the Compensatory Allowance was, therefore, not accepted. The proposal for giving retrospective effect to the Compensatory Allowance, at the rate of Rs.200/- on a par with the allowance given to the staff of the Advocate General's office was also rejected. Ext.P4 has been challenged by the petitioner in W.P.(C) No.35907/05 and consequential direction to the Government to sanction Compensatory Allowance at the rate of Rs.400/- per month to the Court Officers and Typists of the High Court service attending the cause list work on a par with Ext.P2 (which provides for revision of the Compensatory Allowance from Rs.200/- to Rs.400/- per month in the case of the staff of the Advocate General's office) has also been sought for. The petitioners, inter alia, rely on Ext.P5 judgment. 4. During the pendency of W.P.(C)No.35907/05, the Government issued G.O.(MS)No.230/06/Home dated W.P.(C).NO.35907/05 & Con.Case :: 5 :: 26.12.2006 re-fixing the pay and allowances of the staff of the High Court with effect from 1.7.2004. It may be mentioned in this context, that this was pursuant to a proposal forwarded by the Registrar General, as ordered by the Hon'ble Chief Justice, after considering the report of a Committee constituted by two learned Judges of this court {to recommend revision of pay and allowances to employees of the High Court}. The said report was submitted on 28.7.2006. 5. While dealing with the allowances payable to the different staff of the High Court, the Compensatory Allowance for persons involved in the cause list work was confined to Assistant (Selection Grade) and Assistant (Senior Grade) and that too at the rate of Rs.200/- per month. Consequential upon Ext.P4, steps were taken to recover the allowances which were being granted to the Court Officers, Section Officers and Typists of the High Court service, doing cause list work. The petitioners filed W.P.(C)No.3850/07, inter alia, seeking a writ of certiorari quashing Ext.P4 order passed by the Government to the extent to which it declined W.P.(C).NO.35907/05 & Con.Case :: 6 :: Compensatory Allowance to the Court Officers, Section Officers and Typists of the High Court service, for doing cause list work. Further consequential reliefs were also sought for. 6. Counter affidavits have been filed by the Government as also by the High Court. 7. In the counter affidavit filed in W.P.(C) No.35907/05, the stand taken by the Government is to the effect that the Compensatory Allowance to the staff attending the cause list work in the Advocate General's office was not granted to the staff of the High Court essentially because, no parity exists between the staff of the High Court and the staff of the Advocate General's office as regards the number of beneficiaries, date of effect of payment etc.; that the staff of the High Court are covered by a separate pay revision order. 8. In the counter affidavit filed in I.A.No.1637/07, it is contended that the pay revision commission noticed that special allowance or Compensatory Allowances are being drawn by a large number of employees of various categories in the High W.P.(C).NO.35907/05 & Con.Case :: 7 :: Court. The Commission is of the view that such allowances ought to be drawn only in very exceptional cases; that when an employee is appointed or promoted against a post, he is fully aware of not only the scale of pay of the post, but also the nature of duties and responsibilities involved in the assignment; that claiming a special or compensatory allowance merely on account of the workload is not justified; that the pay revision commission had taken note of all these aspects and after careful consideration, recommended continuance of special/compensatory allowance at the same or higher rates on a selective basis and granted the Assistant (Selection Grade) Assistants (Senior Grade) and Assistant/Junior Accountant compensatory allowance at the rate of Rs.200/- for attending the cause list work. The Government has not filed a separate counter affidavit as such in W.P.(C)No.3850/07. 9. In the counter affidavit filed in W.P.(C) No.3850/07 by the High Court, it has been affirmed that Court Officers were allowed Compensatory Allowance at the rate of Rs.200/- per month till Ext.P4 pay revision W.P.(C).NO.35907/05 & Con.Case :: 8 :: order was issued; that in Ext.P4, Compensatory Allowance has not been allowed to the Court Officers; that the Registrar has pointed out this as a anomaly and has taken up the matter with the Government for restoration of the same. Orders are yet to be passed in that regard. In other words, the Registrar had affirmed the recommendation made earlier, by the Registrar as per the orders of the Hon'ble Chief Justice for payment of Compensatory Allowance to the gazetted officers and other members of the High Court for doing cause list work on a par with the allowance being paid to the staff of the Advocate General's office. 10. I heard learned counsel for the petitioners Mr.Jaju Babu, learned Senior Government Pleader Sri.K.K.Ravindranath and Sri.Unnikrishna Kaimal on behalf of the Registrar General. 11. Learned counsel for the petitioners pointed out that the stand taken by the Government in Ext.P4 dated 26.12.2006 and reiterated in their counter affidavit, to the effect that Compensatory Allowance cannot be paid to the staff of the High Court doing cause W.P.(C).NO.35907/05 & Con.Case :: 9 :: list work, is really untenable. Reference in this regard is made to Ext.P5 judgment in W.P.(C)No.35907/05. A learned single Judge of this court had, in the said judgment, considered the nature of duties and responsibilities of the staff of the High Court, who attend to the listing of cases and operating of duplicator and also publication of the daily cause lists. Such staff are retained in the High Court office after regular office hours. This court referred to the fact that as early as on 24.4.2000, the Chief Justice of the High Court had recommended to the Government for sanctioning of allowances for the staff involved in the listing work for the reason that they have to work beyond office hours every day. Reference was made to a meeting held between the Chief Justice and the Chief Minister on 20.7.2002 and the decision which was, apparently, taken therein that parity be maintained between the members of the staff of the High Court and the corresponding staff of the Government or of the Advocate General's office. A specific finding made in Ext.P5 judgment, on a comparison of the workload of the Advocate General's W.P.(C).NO.35907/05 & Con.Case :: 10 :: office and the staff of the High Court, is noteworthy. “A comparison between the workload of the staff of the Advocate General's office and the staff of the High Court obviously and indisputable makes it clear and necessary that the staff of the High Court, who are involved in the preparation of cause list and other connected matters, are entitled to compensatory allowance in that regard. “ 12. The finding rendered in Ext.P5 judgment is binding on the Government. It is a finding of fact to the effect that there is functional parity in the workload of the staff of the Advocate General's office and the staff of the High Court, who are involved in the preparation of cause lists and other connected matters. The finding is also to the effect that the staff of the High Court, who are involved in the cause list work, are entitled to Compensatory Allowance, on a par with the staff of the Advocate General's office. I think, it is significant to note that this is a finding of fact, which is in the form of a declaration made by this court in Ext.P5 judgment and is binding on the Government as such. It is binding in the context that this court had undertaken a comparison of W.P.(C).NO.35907/05 & Con.Case :: 11 :: the workload of the staff of the Advocate General's office on one hand and the staff of the High Court on the other, in the context of preparation of the cause list. This was taking note of the fact that both the staff of the High Court and the staff of the Advocate General's office involved in cause list work are required to remain in the office for 2 to 3 hours after the regular office hours. The work done by them is vital to the functioning of the court. If, therefore, the Government deems it appropriate to give Compensatory Allowance to the staff of the Advocate General's office, who are involved in cause list work, then the staff of the High Court, who are involved in the cause list work are also entitled to 'Compensatory Allowance' in that regard. Ext.P5 judgment has become final. The Government, which is a party to the judgment, is obviously bound by such finding. The said finding is final, both as regards the finding of fact that the staff of the High Court, who are involved in the cause list work are entitled to Compensatory Allowance and also as regards the parity to be maintained between the staff of the High Court and W.P.(C).NO.35907/05 & Con.Case :: 12 :: the corresponding staff in the Advocate General's office in the preparation of the cause list. 13. Government had always thought it appropriate to give Compensatory Allowance to the staff of the Advocate General's office, who are involved in the cause list work. Pursuant to the directions issued by this court, such Compensatory Allowance was paid to the Court Officers, Section Officers and Typists of the High Court service, for doing cause list work as well. Disinclination on the part of the Government to give a similar benefit to the High Court staff was shown only when the Compensatory Allowance to the staff in the Advocate General's office was revised from Rs.200/- to Rs.400/- and the same benefit was not extended to the staff of the High Court, who were, then being paid Compensatory Allowance at the rate of Rs.200/-. It is extremely difficult to discern the logic behind the stand taken by the Government in this regard. The Government had, at one point of time, accepted the fact that Court Officers and other staff of the High Court, who are involved in the preparation of the cause list, are W.P.(C).NO.35907/05 & Con.Case :: 13 :: entitled to Compensatory Allowance and it is, therefore, that such Compensatory Allowance was paid at the rate of Rs.200/- per month. Obviously, such Compensatory Allowance must have been given after the Government was convinced of the fact that there is functional parity between the staff of the Advocate General's office and the staff of the High Court, at least, in the context of preparation and publication of the cause list. How did such satisfaction undergo a change when a request was made for revision of Compensatory Allowance, granted under Ext.P2 order dated 14.05.2004 to the staff of the Advocate General's office, to the staff of the High Court, who are involved in similar work. A reading of Ext.P2 Government Order dated 14.05.2004 shows that Compensatory Allowance being paid to the staff of the Advocate General's office for the work of preparation of the cause list was decided to be extended on a representation made by the Advocate General's Office Staff Association. This was taken note of by this court in Ext.P5 judgment and it is after this that the court had found the fact that there is parity in the work being W.P.(C).NO.35907/05 & Con.Case :: 14 :: discharged by the staff of the High Court and the staff of the Advocate General's office in the context of preparation of the cause list. The Government, which is a party to Ext.P5 judgment, is bound by the finding of fact and declaration and consequentially had to pass orders on Ext.P6 recommendation keeping in mind the fact that it is bound by the factual finding and such declaration made in Ext.P5. 14. The Government has also to take into account the law laid down by the Supreme Court in the decision reported in Gurumurthy v. Accountant General, Assam & Nagaland {AIR 1971 SC 1850} and Supreme Court Employees Welfare Association v. Union of India {AIR 1990 SC 334} as also the law laid down by the High Court in High Court Non- graduate Staff Association v. State of Kerala {1997 (2) KLT 665}. The Hon'ble Chief Justice directed the Registrar General to make a recommendation for revision of the Compensatory Allowance to the staff of the High Court for doing cause list work from Rs.200/- to Rs.400/-. This was after taking note of the report of the W.P.(C).NO.35907/05 & Con.Case :: 15 :: committee constituted by two learned Judges of this Court dated 28.7.2006. Paragraph 25 of the said report deals with this aspect. The same is relevant and extracted herein: “The Pay Revision Commission has suggested that Compensatory Allowance of Rs.200/- be paid to Assistants doing listing work. In the case of others, the committee has suggested that the Registrar General may decide on the eligibility for grant of Compensatory Allowance or Special Allowance. Section Officers, Court Officers, Office Superintendents, Typist and Typist-Copysts are now being paid Compensatory Allowance at the rate of Rs.200/- p.m. The Committee does not find any reason to deny them the benefit. It is therefore recommended that all the officers who are receiving Compensatory Allowance at present shall be eligible to the same on revision of their pay and allowances.” 15. The Hon'ble Chief Justice had accepted this recommendation and this was forwarded by the Registrar General. Apparently, the recommendation was accepted by the Government in part, inasmuch as that W.P.(C).NO.35907/05 & Con.Case :: 16 :: Compensatory Allowance for cause list work is sanctioned by the Government in Ext.P4 only to Assistant (Selection Grade), Assistant (Senior Grade), Assistant/Junior Accountant for cause list work. This fact has been admitted in the counter affidavit filed by the Government in I.A.No.16367/07 in W.P.(C)No.35907/05. If that be so, there should have been weighty reason for the Government not to accept the recommendation for Compensatory Allowance for all the categories of the staff of the High Court, who are involved in the cause list work. The nature of the duties being discharged by the different categories of the High Court Staff, in the preparation and publication of the cause list is obviously an aspect which was dealt with by the committee of the Judges, which had submitted the report dated 28.7.2006. This was obviously a factor which would have weighed with the Hon'ble Chief Justice in recommending grant of such Compensatory Allowance to the staff of the High Court. Assuming that there was some reason which weighed with the Government not to accept the recommendation in toto, it was obviously necessary for W.P.(C).NO.35907/05 & Con.Case :: 17 :: the Government to indicate their views in that regard to the Registrar General. This seems to be an absolute requirement, going by the law declared by the Supreme Court in the aforementioned decisions. When a High Constitutional functionary like the Chief Justice makes such a recommendation touching upon the functions of a section of the High Court staff dealing with their pay or allowances, it is normally binding on the Government. The possibility of a different view by the Government is not ruled out completely. But a reason for such dissent must not only be weighty, but should, in the first instance, be communicated to the Registrar General. In the words of the Supreme Court, there must be exchange of views between the constitutional functionaries before the Government decides to adopt a dissentient note in that regard. No such attempt has been made by the Government before issuing Ext.P4 order. The stand taken is clearly illegal. 16. I would have, in the normal course, directed the Government to take a fresh decision, keeping in mind the law declared by the Supreme Court W.P.(C).NO.35907/05 & Con.Case :: 18 :: as to the nature of the recommendations made by the Hon'ble Chief Justice under Article 229(2) of the Constitution and the obligation, which is imposed on the Government by the Constitution, in dealing with such recommendations, in the context of the proviso to Article 229(2) of the Constitution. But, in the present case, there is already a finding by the High Court in Ext.P5 judgment that there is parity in the work discharged by the staff of the High Court and the staff of the Advocate General's office in the context of preparation of the cause lists. The said finding has become final and it is obviously binding on the Government. Apparently, the Government has accepted the correctness of the finding, inasmuch that it did not deem it appropriate to prefer an appeal against Ext.P5. But the finding is one of fact in the existence of a factual situation. Obviously, it is conclusive as regards the existence of the factual situation. 17. If, therefore, there is functional parity between the staff of the High Court staff and the staff of the Advocate General's office in the context of W.P.(C).NO.35907/05 & Con.Case :: 19 :: preparation of the cause list and the Government thinks it appropriate to grant Compensatory Allowance to the staff of the Advocate General's office, who are engaged in the preparation of the cause list work, then denial of such Compensatory Allowance to the staff of the High Court, who are involved in a similar work, would be a negation of the 'right to equality' guaranteed under Articles 14 and 16 of the Constitution. In these circumstances, I deem it appropriate to issue a positive direction to the Government in this regard. In the result, the writ petitions are allowed. It is declared that Ext.P4 Government Order, in W.P.(C) No.3850/07 viz., G.O.(MS)No.230/06/Home dated 26.12.2006, insofar as it does not provide for Compensatory Allowance to the Court Officers and other staff of the High Court, who are involved in the cause list work, is illegal and unconstitutional. The 1st respondent Government shall take steps to pass orders to the effect that the Court Officers and other staff of the High Court, who are doing cause list work, be given Compensatory Allowance, at such rates as are being granted or given, W.P.(C).NO.35907/05 & Con.Case :: 20 :: from time to time, to the staff of the Advocate General's office, who are doing cause list work. Such orders shall be passed within three months from the date of receipt of a copy of this judgment. Consequential benefits shall also be disbursed to the eligible members of the staff of the High Court within the aforementioned period. Sd/- (V.GIRI) JUDGE sk/ //true copy//