Case: State Of Andhra Pradesh &amp; Anr Vs. T. Gopalakrishna Murthi &amp; Ors

the Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide and arbitarily.7. In Gurumoorthys case (supra) Grover, J. delivering the judgment on behalf of the Constitution Bench of this Court has stated at page 429."Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governors approval must be sought to the extent the rules relate to salaries, leave or pension. This exception; it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expense the Government has to approve of it".8. The more apposite and direct case on the point is the decision of this Court in Bhubhan Chandra Duttas case (supra) where following the decision in Gurumoothys case, Ray, C. J. has said while delivering the judgment on behalf of the Court at page 5:"Article 229 of the Constitution confers power on the Chief Justice of the High Court to appoint officers and servants of the High Court. Article 229 (2) states that 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. It is also provided that the rules made under Article 229(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. It is not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1, 500 per month with special allowance of Rs. 250 per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500 with a special salary of Rs. 250 per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on the Government (See M. Gurumoorthy v. A. G. Assam &Nagaland)."We share the sentiment expressed by the High Court in its judgment and yet find it difficult to allow our sentiment to cross the boundary of law engrafted in the proviso to clause (2) of Article 229.9. Rule 19(1) of the 1959 Rules on which reliance was placed on behalf of the respondents to sustain the judgment of the High Court has be en quoted therein. After quoting the rules, the High Court has said:"We may observe in passing that this rule has not been happily worded. There is reference to the Rules of 1932, the Rules of 1947, the Rules of 1950 relating to gratuities, provident fund etc., and the rules of 1947 relating to scales of pay. Whatever might have been the power of the Government in the matter of fixing pay or making rules in the pre-constitution days, that position h as changed after the constitution in view of Article 229 of the Constitution."10. Mr. Gupte pointed out that the 1959 Rules framed by the Chief Justice under Article 229(1) and (2) of the Constitution were with the approval of t he Governor of Andhra Pradesh in so far as the Rules related to salaries, allowances, leave or pensions. Rule 19(1) authorised the Chief Justice to regulate the pay of the High Court staff in the manner he thought it fit and proper to do without any further reference to the Governor. We do not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the pay schedules. This was further made clear by the first proviso of Rule 19(1) which reads as follows:"Provided that except with regard to salaries, allowances, leave and pensions, the Chief Justice shall exercise the powers vested in the Governor under any of the aforesaid rules;"For the reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.11.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]On the facts and in the circumstances of this case and in the background of the conditions which are prevalent in other States Government could have been well-advised to accord approval to the suggestion of the Chief Justice, as the suggestion was nothing more than to equate the pay scales of the High Court staff with those of the equivalent posts in the Secretariat. That merely because the Government is not right in accepting the Chief Justices view and refusing to accord the approval is no ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justices Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay etc. It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Article 226 of the Constitution as if the refusal of the State Government was ultra vires or made mala fide anddo not find any such words in Rule 19(1) to lead to the above conclusion. The reference to "the Rules regulating the pay of the Services included in the Pay Schedule and other rules for the time being in force applicable to officers under the rule-making control of the Government of Andhra Pradesh" was merely a reference to the rules and not to the paythe reasons stated above we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction.