Case: State Of Assam Vs. Bhubhan Chandra Datta &amp; Anr

2. On 28 April, 1967 Bhubhan Chandra Dutta was appointed Registrar of the High Court of Assam. The appointment was made by the Chief Justice of the Assam High Court in exercise of powers conferred by Article 229 of the Constitution of India and Rules 7 and 13 of the Assam and Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules, 1967.3. The order of appointment of the Registrar was as follows:"He shall be entitled to draw an initial pay of Rs. 1500/- per month less the pension, if any, he has been drawing from the Government. He shall. in addition to the pay, be entitled to draw a special nay of Rs. 250/- per month admissible under the Rules to the Registrar of the High Court. He shall, hold the appointment for a minimum period of two years in the first instance, This period may, however, be extended as considered suitable and necessary by the Chief Justice."4. It may be stated here that Bhubhan Chandra Dutta had previously been Additional District Judge and also the Registrar of the High Court.On 1 July, 1958 Bhubhan Chandra Dutta attained the age of 55 years. He was then the Registrar of the High Court. He was given an extension of one year. On 1 July, 1959 he retired as Registrar of the High Court.5. On 25 July, 1968 the Deputy Registrar of the High Court under the direction of the Chief Justice wrote to the Secretary to the Government of Assam m the Law Department to instruct the Accountant General to issue provisional pay slip to Bhubhan Chandra Dutta for Rs.1500/-as pay plus special pay of 250/-. On 2 August, 1968 the Accountant General issued a Provisional pay slip for the period 1 May, l967 to 31 October, 1967 authorising Bhubhan Chandra Dutta to draw a sum of Rupees 870-75 as provisional pay. The special pay of Rs. 250/- was not included in the pay slip.6. Bhubhan Chandra Dutta thereafter filed a writ petition in 1969 in the High Court at Assam for a mandamus to give effect to the notification dated 28 April, 1967 appointing him to the post of Registrar fixing the pay and special pay allowable to him and a further mandamus on the Accountant General, Assam and Nagaland, Shillong to issue pay slip to Bhubhan Chandra Dutta for the full amount payable to him in terms of the said notification.7. The High Court issued a mandamus directing the appellant to issue pay slip to Bhubhan Chandra Dutta at the rate of Rs. 1500/per month minus his pension and a special pay of Rs. 250/- per month. Bhubhan Chandra Dutta, according to the mandamus issued by the High Court, became entitled to the said salary as Registrar for two years with effect from 1 May, 1967.

Reasoning:
8. There is no dispute that under Article 229 of the Constitution the appointment of the Registrar is to be made by the Chief Justice of the High Court. It may be stated here that under Rule 7 of the Assam and Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules. 1967, a person who had retired from the State Judicial Service Grade I could be appointedview of the fact that Bhubhan Chandra Dutta had already retired from the Judicial Service and was drawing pension, it is common ground that the pension that he was drawing was to be deducted from the salary of Rs. 1500/-.1500/-.15. At no stage could the Chief Justice fix the initial pay up to the maximum of the scale of pay which remained constant - at Rs. 1500/- all throughout, notwithstanding the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice was empowered to fix the initial pay higher than Rs. 1200/-. When the scale of Pay was revised in 1964 it is significant to know that the power of the Chief Justice to fix the initial pay was reduced from Rs. 1200/- to Rs. 1180/-.16. Just because the initial pay of the Registrar in 1967 became Rupees 1200/- and with five increments the salary would be Rs. 1500/- no implication can arise on the power of the Chief Justice to appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could appoint the Registrar at the initial pay of Rs, 1200/- or at Rs. 1180/- which showed that the initial pay of Rs. 1200/or Rs. 1180/- gave six increments at the time of initial appointment, there is no warrant for implying the power to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it could carryis not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/-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 theHigh Court interpreted Rule 3 (1) - to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special Pay of Rs. 250/- per month. On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judicial Service (Senior) Grade I.This post was included in the Assam Judicial Service on 17 August 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.The High Court held that the Chief Justice under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the Registrar at Rs.1500/-, Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3 (1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1). The revision of pay scales cannot have the effect of transferring the power - from Rule 3 (1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229 (2) of the Constitution. Any fixation of pay by the Chief Justice apart from Rule 3 (1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3 (1) on the strength of Rule 11.22. The High Court was wrong in granting a mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial pay of Rs. 1200/- less pension and (pension) (sic) equivalent to gratuity. The amount was calculated by the Accountant General at list 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.In view of the fact that the appeal is by special leave we need not express any opinion on the contention advanced on behalf of the State that the High Court should not have entertained a. writ for the enforcement of a contractual claim or a monetary claim.