Bindu K.K v. High Court of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942** ## **WP(C).No.36889 OF 2018(R)** ## **PETITIONER:** **BINDU.K.K AGED 48 YEARS** **PERSONAL ASSISTANT TO THE CHIEF JUSTICE, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY ADVS.** **SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** ## **RESPONDENTS:** |**1**|**HIGH COURT OF KERALA**| |---|---| ||**REPRESENTED BY ITS REGISTRAR GENERAL,**| ||**ERNAKULAM-682 031.**| |**2**|**REGISTRAR GENERAL,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM-682031.**| |**3**|**REGISTRAR (FINANCE)**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM-682031.**| |**4**|**STATE OF KERALA**| ||**REPRESENTED BY ITS CHIEF SECRETARY TO**| ||**GOVERNMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM-695001.**| |**5**|**ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,**| ||**HOME (C) DEPARTMENT, GOVERNMENT OF KERALA,**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| **WP(C).No.36889 OF 2018(R) 2** - **6 ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT,GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY ADVS.** **R1-3 SRI.ELVIN PETER P.J, SC R4-6 SRI.SUNILKUMARKRIAKOSE (SR.GP)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No.36889 OF 2018(R) 3** ## **JUDGMENT** The petitioner is stated to have been functioning as the Personal Assistant to the Chief Justice, High Court of Kerala, at the time when this writ petition was filed. 2. Called into question by the petitioner in this writ petition is Ext.P9 Government Order, which was followed by Ext.P18 order (which was, in fact, issued pending this _lis_ and consequent to the interim order of this Court) dated 30.09.2020, whereby, the Rules framed by the Hon'ble Chief Justice under Article 229 (2) of the Constitution of India, with respect to the pay scale for the post of Personal Assistant to Chief Justice, has been “rejected” for certain reasons. The petitioner says that the impugned orders are illegal and improper, since, going by the judgment of the Hon'ble Supreme Court in **State of Rajasthan v. Ramesh Chandra Mundra [2019(4) SCT 30],** Government could not have “rejected” the proposals of the Hon'ble Chief Justice made under the afore provisions of the Constitution, in the manner as has been presently done. ## **WP(C).No.36889 OF 2018(R) 4** 3. I have heard Sri.K.Jaju Babu, learned Senior Counsel, instructed by Sri.Brijesh Mohan, learned counsel appearing for the petitioner; Sri.Elvin Peter P.J, learned counsel appearing for High Court of Kerala and Sri.Sunil Kumar Kuriakose, learned Government Pleader, appearing on behalf of the State of Kerala and its functionaries. 4. I do not require to speak elaborately on the various forensic issues impelled for consideration in this writ petition because I have already answered them in the judgment in W.P(C) No.25933/2017, which relates to the proposals made by the Chief Justice under Article 229 (2) of the Constitution with respect to the post of Private Secretary to Chief Justice of Kerala. I have already affirmatively concluded therein that Government could not have “rejected” the Rules proposed by the Chief Justice unilaterally and without a proper dialogue or deliberation; which view was implicitly guided by the judgment of the Hon'ble Supreme Court in **Ramesh Chandra Mundra** (supra). 5. There is no doubt that my findings and conclusions in the judgment in W.P(C) No.25933/2017 apply in all its fours ## **WP(C).No.36889 OF 2018(R) 5** to the facts of this case, since the only factual difference is that the post involved in this case is that of the Personal Assistant to the Chief Justice, with a different scale of pay recommended. 6. Compendiously, the Hon'ble Chief Justice framed Rules under Article 229 (2) of the Constitution with respect to the post in question and forwarded it to the Government, along with his remarks explaining why the scale of pay was so fixed. The remarks available along with the proposal made to the Government are to the following effect: “At present the Personal Assistant to the Chief justice is in the scale of pay of Rs.22,36037,940 on par with that of Private Secretary (HG) to judge. He is bound to attend office even on holidays. Considering the heavy and onerous nature of duties and responsibilities and in view of the fact that Private Secretary (HG) is recommended a scale of pay of Rs.72,0001,10,400 the same scale of pay of Rs.72,0001,10,400 is recommended for Personal Assistant to Chief Justice”. 7. However, when the Government considered the proposal, they chose to disregard the afore extracted remarks and “rejected” it through Ext.P9 stating as follows: “The scale of Personal Assistant to the Excellency the Governor's of Kerala in the Governor's ## **WP(C).No.36889 OF 2018(R) 6** Secretariat is only 39,500-83,000 (pre 20,74036,140). The scale of pay of the category is on higher side at present and the scale recommended is above the pre-revised scale of 24,040-38,840 where in hike revised scale of 24,040-38,840 where in hike above corresponding revision is not granted as per general decision. Hence the recommendation is rejected”. 8. Thereafter, when the matter was considered by another learned Judge of this Court, an interim order was issued on 30.09.2020-a copy of which is on record as Ext.P17directing the Government to reconsider the matter and issue an appropriate order. This led the Government to issue P18, wherein, they partially acceded to the recommended scale of pay but, instead of approving it, decided to place it before the 11[th] Pay Revision Commission for examination. 9. It is in the afore factual background that this writ petition is being considered by me today. As has been already declared in the judgment in W.P(C).No.25933/2017, Government could not have “rejected” the recommendations of the Chief Justice made under Article 229 (2) of the Constitution in the manner done in Ext.P9. My views and holdings in the said judgment are available in paragraphs 6 to ## **WP(C).No.36889 OF 2018(R) 7** ## 8 thereof, which are extracted for ease of referrence: “6. It is thus irrefragable that the Constitutional Scheme, now granted binding jural reiteration, is that the Executive obtains no dominance or supremacy while considering the recommendations and Rules made and framed by the Chief Justice under Article 229 of the Constitution of India and that, at the best, the proviso to the said Article is designed and intended to facilitate a dialogue of governance between the two high functionaries. The inviolable concepts and established precepts of independence of Judiciary is of acme importance when decisions and actions are taken by the Government under the proviso to Article 229(2) of the Constitution of India and as a normal Rule, they ought to be approved and sanctioned, except in the case of legitimate and justified reasons being recorded. 7. In the backdrop of the afore observations, when one looks through the proceedings of the Government, dated 28.04.2018, namely Ext.P7, the recommended scale of pay to the Private Secretary of the Chief Justice has been declined by stating the following: _“Proposed scale of pay is above the pre-revised scale of 24040-38840 where hike in scale of pay is not allowed as per the general decision taken on revision of scale of pay and allowances. The existing scale of pay of the post is 40640 - 57440. Even the scale of pay of the Private Secretary to His Excellency the Governor of Kerala in the Governor's Secretariat is only 42500 – 87000. Hence the recommendation stands rejected.”_ 8. As is perspicuous from the above, the reasons stated by the Government in Ext.P7 are that the scale of pay is above the pre-revised scale; and further that it is higher than that of the Private Secretary to the Governor of Kerala”. 10. That said, as regards Ext.P18, it does not require ## **WP(C).No.36889 OF 2018(R) 8** much of an expatiation that in the conspectus of what I have already held in the judgment in W.P.(C).No.25933/2017, the action of the Government in passing it over for examination of the next Pay Revision Commission is certainly legally unacceptable, particularly when it appears to have found justification in the scale of pay proposed by the Chief Justice. This is because the proposal was made edificed on the recommendations of 10[th] Pay Revision Commission and the Rules were framed by the Chief Justice invoking his Constitutional power, taking into account all necessary and relevant inputs. Therefore, Government could never have taken the stand that the proposal so made will be considered only after 11[th] Pay Revision Commission examines the same. It is, therefore, without any doubt in my mind that this position of the Government cannot be legally countenanced or accepted. 11. It is thus evident that both Exts.P9 and P18 fail from the touchstone of the imperative Constitutional propriety, which ought to have been exhibited by the Government, while dealing with the recommendations of the Hon'ble Chief Justice ## **WP(C).No.36889 OF 2018(R) 9** under Article 229 (2) of the Constitution. This becomes irrefragable, if one examines the facts of this case, juxtaposed by the declarations of law by the Hon'ble Supreme Court in **Ramesh Chandra Mundra** (supra). 12. I am thus of the firm view that Government should now issue orders accepting the recommendations made by the Chief Justice of Kerala, with respect to the scale of pay to the post of Personal Assistant to Chief Justice of Kerala at 68700110400. 13. I am inclined to pass an affirmative order because, as is unmistakable from the records-and which is also admitted-the post of Personal Assistant to Chief Justice has been equated with the pay scale to the Post of Private Secretary to Judge (HG) and because the scale of pay of the latter post has been revised by the Government, through Ext.P5 Order, bringing it to 68700-110400. Ineluctably, therefore, the post of Personal Assistant to Chief Justice of Kerala will also have to obtain the same scale. I, therefore, allow this writ petition and direct the fourth respondent to issue appropriate orders approving the Rules **WP(C).No.36889 OF 2018(R) 10** framed by the Chief Justice of Kerala with respect to the post of Personal Assistant to the Chief Justice. Consequently, Ext.P9, to the extent to which it relates to the post in question and Ext.P18 order will stand quashed. The afore exercise shall be completed by the Government as expeditiously as is possible but not later than two months from the date of receipt of a copy of this judgment. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **LEK** **WP(C).No.36889 OF 2018(R) 11** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OFFICIAL MEMORANDUM DATED 17.5.2000 VIDE No.A1-26112/2000 ISSUED BY THE 1ST RESPONDENT.** **EXHIBIT P2 TRUE COPY OF THE ORDER No.A5-39848/ 2016 DATED 23.6.2016 ISSUED BY THE 2ND RESPONDENT APPOINTING THE PETITIONER AS PERSONAL ASSISTANT TO THE CHIEF JUSTICE.** **EXHIBIT P3 TRUE COPY OF G.O.(P)No.180/2016/HOME DATED 20.6.2016 ISSUED BY THE GOVERNMENT EXHIBIT P4 TRUE COPY OF THE ORDER No.A5-43891/ 2015(2)DATED 22.10.2016 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P5 TRUE COPY OF G.O.(MS)No.40/2017/HOME DATED 4.3.2017 ISSUED BY THE GOVERNMENT** - **EXHIBIT P6 TRUE COPY OF THE ORDER No.FW3-49631/14 DATED 18.3.2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P7 TRUE COPY OF THE ORDER NO.A543891/2015(1) DATED 12.6.2017 ISSUED BY THE 2ND RESPONDENT** - **EXHIBIT P8 TRUE COPY OF THE ORDER No.A5- 43891/ 2015(2) DATED 12.6.2017 ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE G.O.(P)No.19/2018/ HOME DATED 28.4.2018 ISSUED BY THE GOVERNMENT** **EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 21.5.2018 SUBMITTED BY THE PETITIONER** ## **WP(C).No.36889 OF 2018(R) 12** - **EXHIBIT P11 TRUE COPY OF THE LETTER No.FW349631/2014 DATED 4.9.2018 SENT BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE G.O.(MS) No.230/2006/ HOME DATED 26.12.2006 ALONG WITH RELEVANT EXTRACT OF THE REVISED SCALE OF PAY OF VARIOUS POSTS ISSUED BY THE GOVERNMENT** - **EXHIBIT P13 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(MS) No.257/2011/HOME DATED 18.11.2011 ISSUED BY THE GOVERNMENT** - **EXHIBIT P14 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(P) No.145/2006/FIN DATED 25.03.2006 ISSUED BY THE GOVERNMENT** - **EXHIBIT P15 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(P) No.85/2011/FIN DATED 26.2.2011 ISSUED BY THE GOVERNMENT** - **EXHIBIT P16 TRUE COPY OF THE RELEVANT EXTRACT OF G.O.(P) No.7/2016/FIN DATED 20.01.2016 ISSUED BY THE GOVERNMENT** - **EXHIBIT P17 TRUE COPY OF THE ORDER DATED 30.09.2020 IN W.P.(C) No.36889/2018(R) OF THIS HON'BLE COURT** - **EXHIBIT P18 TRUE COPY OF THE G.O.(Rt) No.2778/ 2020/HOME DATED 25.11.2020** - **EXHIBIT P19 TRUE COPY OF G.O.(MS) No.253/2014/HOME DATED 5.12.2014** - **EXHIBIT P20 TRUE COPY OF THE JUDGMENT DATED 7.1.2015 IN CONT.CASE (C)No.945 OF 2014 OF THIS HON'BLE COURT.** - **EXHIBIT P21 TRUE COPY OF THE JUDGMENT DATED 2.11.2016 IN CONT.CASE (C)No.1766 OF 2016 OF THIS HON'BLE COURT** - **EXHIBIT P22 TRUE COPY OF THE ORDER DATED 6.10.2017 IN CONT.CASE (C)No.1766/2016 OF THIS HON'BLE COURT.** ## **WP(C).No.36889 OF 2018(R) 13** **EXHIBIT P23 TRUE COPY OF THE G.O.(Ms) No.215/2017/HOME DATED 26.10.2017.**