DIPAV. Chief Librarian, High Court of Kerala, Ernakulam vs State of Kerala and High Court of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945 WP(C) NO. 25945 OF 2023`** ``` PETITIONERS: ``` ``` DIPAV. CHIEFLIBRARIAN,HIGHCOURTOFKERALA, – ERNAKULAM,KOCHI,PIN682031 BYADVS. V.VARGHESE VISHNUV.K. ABHIRAMIK.UDAY ``` ``` RESPONDENTS: ``` ``` 1STATEOFKERALA REPRESENTEDBYTHESECRETARYTOGOVERNMENT, HOMEDEPARTMENT,SECRETARIAT, – THIRUVANANTHAPURAM,PIN695001 2HIGHCOURTOFKERALA REPRESENTEDBYITSREGISTRARGENERAL, – ERNAKULAM,KOCHI,PIN682031 BYADVS. ADVOCATEGENERALOFFICEKERALA V.AMUHAMMED SHRI.C.E.UNNIKRISHNAN,SPL.GOVERNMENTPLEADER() SRI.VAMUHAMMED,SCFORHIGHCOURTOFKERALA ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON16.10.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` **W.P.(C) No. 25945/2023** ## **`:2:`** ## **J U D G M E N T** The petitioner is working as the Chief Librarian in the High Court of Kerala. She has approached this Court being aggrieved by Exts.P3 and P7 orders by which the Government has declined the grant of special allowance to the post of Chief Librarian despite the positive recommendation made by the High Court in accordance with the directions issued by the Hon’ble Chief Justice. ## 2. Short facts are as under: The petitioner asserts that the position of Librarian Grade-I (Chief Librarian) was granted a special allowance during the 7th, 8th, and 9th Pay Revisions. However, this allowance was denied to the petitioner in the 10th and 11th Pay Revisions, as determined by Government Orders on 20.6.2016 and 26.3.2021. It is contended that prior to the 10th Pay Revision, the 2nd respondent, by way of the Ext.P4 letter dated 29.4.2015, had requested a revision in the pay scales and allowances for the High Court Employees. In the said request, the 2nd respondent had made it emphatically clear that such allowances were conceived after thorough consideration of the work's **W.P.(C) No. 25945/2023** ``` :3: ``` nature, workload, and other associated factors for each position. Insofar as the Chief Librarian is concerned, the High Court proposed that the special allowance for the Chief Librarian be adjusted from Rs.600 to Rs.1800/-. However, the request for revision of allowance was not ceded to in the 10th pay revision. In the lead-up to the 11th Pay Revision, the petitioner sought both the restoration and revision of the special allowance and submitted Ext.P5 representation narrating her grievances before the 2nd respondent. The 2nd respondent, after being satisfied that the grievances were genuine, forwarded the proposal highlighting the directives issued by the Hon’ble Chief Justice to consider and grant special allowance for the Chief Librarian. In the said proposal, the 2nd respondent emphasized the demanding nature of the role of the Chief Librarian and recommended the sanctioning of the special allowances. However, the request was rebuffed as per Ext.P7 single-line Letter. The only rationale provided was the government had taken a decision to postpone the proposal. The petitioner asserts that the Ext.P7 response is cryptic and vague, and the stand taken by the 1st respondent is violative of the constitutional principles of comity between Constitutional functionaries. It is on these assertions that this writ petition has been filed seeking the following reliefs: ``` :4: ``` ## **W.P.(C) No. 25945/2023** - a. To call for the records leading to Ext P3 and P7 and quash them to the extent they do not grant special allowance to the post of chief librarian, High Court of Kerala. - b. To declare that the petitioner is entitled to special allowance at the rate of proportionate revision of the amount recommended by the High Court as per Ext P4 with retrospective effect from 1.02.2017 with all the consequential benefits, including arrears thereof. - c. Issue a writ of mandamus or any other appropriate writ, order, or direction commanding the 1st respondent to restore the grant of special allowance to the Chief Librarian of the High Court and sanction special allowance to the petitioner at the rate of proportionate revision of the amount recommended by the high Court as per Ext P4 with retrospective effect from 1.2.2017 and disburse to the petitioner all consequential monetary benefits including arrears thereof, within a time limit to be fixed by this Hon’ble Court ## 3. A counter affidavit has been filed on behalf of the 1st respondent. It is stated in the counter that the Government has not rejected the demand of the petitioner but instead had deferred it on account of the financial stringency faced by the Government and would be re-examined once the financial condition of the State Government improves. **W.P.(C) No. 25945/2023** ``` :5: ``` 4. Sri. V. Varghese, the learned counsel appearing for the petitioner, submitted that the post of Chief Librarian is a supervisory and stagnated post. The Chief Librarian is required to handle administrative as well as technical responsibilities related to the Library Section. The post also demands extra hours of work beyond office hours. It is also submitted that all technical staff of the High Court Library have been granted allowances, but the Chief Librarian has been sidelined from the 10th Pay Revision onwards. It is further submitted that the Government has disregarded and ignored the recommendations of the Chief Justice, which is unprecedented and against the principles of law laid down by the Apex Court. 5. In response, the learned Senior Government Pleader submitted that the request for special allowance has not been rejected but has only been deferred due to financial stringencies. 6. I have considered the submissions advanced. Article 229 reads as under: “ **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 **W.P.(C) No. 25945/2023** ``` :6: ``` attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) 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: 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.” 7. Clause (2) of Article 229 enacts that conditions of service of officers and servants of the High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court, subject to the provisions of any law made by the Legislature of the State. The proviso carves out the exception, requiring the approval of the Governor of the State only in respect of the rules “so far as they relate to salaries, allowances, leave or pensions.” 8. The Hon’ble Supreme Court in **Gurumurthy v. Accountant General, Assam & Nagaland[1]** had occasion to consider the scope and ambit of the powers of the Chief Justice of the High Court under Article 229 of the Constitution of India. Paragraph 8 of the judgment reads as under: > 1 [AIR 1971 SC 1850] ``` :7: ``` ## **W.P.(C) No. 25945/2023** “The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Art.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 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. Cl.(1) read with Cl.(2) of Art.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 Cl.(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.” 9. From the observations above, it needs no further clarification on the point that the power exercised under Article 229(1) of the Constitution is absolute and plenary. It is constitutionally conferred, and it is not subject to any legislative power either by the competent legislature or in the exercise of **W.P.(C) No. 25945/2023** ``` :8: ``` the power by the Governor under Article 213 of the Constitution. The conferment of such power on the Hon'ble Chief Justice under Article 229(1) of the Constitution is to secure the independence of the judiciary and obviously to insulate the officers and servants of the High Court also from the influence of the executive in any manner. Any law made by the State legislature relatable to the conditions of service of officers and servants of the High Court as comprehended by Article 229(2) cannot operate in such a manner as to interfere with the exercise of the plenary power by the Chief Justice under Article 229(1) of the Constitution. 10. In **Union of India v. S.B. Vohra[2]** , it has been held by the Apex Court as under: 46. Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the State concerned normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such a difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant, unfortunately, did not perform its own duties. > 2 (2004) 2 SCC 150) ``` :9: ``` ## **W.P.(C) No. 25945/2023** 47. In a matter of this nature, the appellant, with a view to show that its action is reasonable, was bound to perform its duties within a reasonable time. Reasonableness being the core of Article 14 of the Constitution of India would imply that the constitutional duties be performed within a reasonable time so as to satisfy the test of reasonableness adumbrated under Article 14 of the Constitution of India. 48. It has to be further borne in mind that it is not always helpful to raise the question of financial implications vis-à-vis the effect of grant of a particular scale of pay to the officers of the High Court on the ground that the same would have adverse effect on the other employees of the State. Scale of pay is fixed on certain norms; one of them being the quantum of work undertaken by the officers concerned as well as the extent of efficiency, integrity etc. required to be maintained by the holder of such office. This aspect of the matter has been highlighted by this Court in the case of the judicial officers in All India Judges' Assn. v. Union of India [(1992) 1 SCC 119 as well as the report of the Shetty Commission. 11. The Apex Court has unequivocally held in no unmistakable terms that it is the primary duty of the Union of India or the State concerned to accept the suggestion made by the Chief Justice of a High Court. It would be open to them to differ with the recommendations only in exceptional cases, and that too for sufficient and cogent reasons. The proper course would be to discuss the issue among themselves and to iron out the differences. Under no circumstances can the recommendation issued by the **W.P.(C) No. 25945/2023** ``` :10: ``` Chief Justice under 229(2) of the Constitution be disregarded by raising the issue of financial implications vis-à-vis the effect of the grant of a particular scale of pay to the officers of the High Court. The quantum of work undertaken by the officers concerned, as well as the extent of efficiency, integrity, etc., required to be maintained by the holder of such office, are to be reckoned. ## 12. In **State of Rajasthan v. Ramesh Chandra Mundra[3]** , it was held as under: 21. It seems to us that the proviso to Article 229(2) (as also Article 146) does not reflect an architecture of hierarchy. We think that the correct constitutional approach is one of comity between different institutions working under the Constitution. The emphasis is not on the supremacy of one institution or demarcating the boundaries of the other. It is about ensuring institutional integrity of one while respecting the functional domain of the other. These provisions are meant to facilitate a dialogue of governance between high constitutional functionaries. A healthy dialogue, perhaps, even a debate is necessary for an efficient constitutional polity. The constitutional vision is not to draw “lakshman rekhas” between constitutional functionaries; its command is for the constitutional functionaries to efficiently coordinate to best achieve constitutional goals. It is this constitutional essence that was ignored when the request of the learned Chief Justice was not even placed before the Governor. > 3 (2020) 20 SCC 163 ``` :11: ``` ## **W.P.(C) No. 25945/2023** 22. That independence of judiciary is part of the basic structure of the Constitution is now well entrenched. The Constitution has insulated the judiciary from outside influences both by the executive and legislature. Articles 223 to 234 in Chapter VI in Part VI of the Constitution dealing with the courts below the High Courts also show that the Constitution-makers were equally keen to insulate even subordinate judiciary. Independence of judiciary takes within its sweep independence of the individual Judges in relation to their appointments, tenure, payment of salaries and also non-removal except by way of impeachment. An integral part of “Independence of judiciary”, as a constitutional value is the “Institutional Independence” i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. This effective involvement of the judicial branch in budgeting, staff and infrastructure has also been recognised by the international community. ## xxxxxx xxxxxx xxxxx 27. Adequate budgeting so as to meet the judiciary's work demands, so as to ensure proper infrastructure and facilities is integral to judicial functioning. In that sense, it is an aspect of judicial independence. That independence of the judiciary is part of the basic structure of the Constitution is by now well entrenched. An integral part of “independence of the judiciary”, as a constitutional value, is the “institutional independence,” i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. 28. The scheme of Article 229 of the Constitution of India obviously requires joint consideration of the proposal which the Chief Justice may make in regard to appointments, conditions of services, **W.P.(C) No. 25945/2023** ``` :12: ``` etc. in accordance with the Rules. Undoubtedly, if the Chief Justice takes a decision which has financial implications and that decision cannot be questioned by any authority, the financial implications that such decision may have imposed, should receive due consideration at the hands of the State Government and eventually, the Governor. 13. The Supreme Court has emphasized the need for cooperation among different institutions governed by the Constitution rather than one dominating the other. The goal is to maintain the integrity of each institution while respecting the roles of others. This balance allows for open dialogue between top constitutional figures. Additionally, the Apex Court has underscored the importance of institutional independence of the judiciary, not only in decision-making but also in terms of financial autonomy. This means the judiciary should have a say in its budget, staffing, and infrastructure. Article 229 of the Constitution implies that any proposal by the Chief Justice related to appointments or service conditions should be considered jointly with relevant authorities. If a decision made by the Chief Justice has financial consequences, it is essential that the State Government and, ultimately, the Governor give it the proper attention and consideration. Under no circumstances could the 1st respondent ignore the recommendations made by the Chief Justice or defer the same on the ground of financial stringency as it would not augur well for maintaining the comity between different institutions **W.P.(C) No. 25945/2023** ``` :13: ``` working under the Constitution and safeguarding institutional independence. 14. In light of the discussion above, the Ext.P7 letter issued by the 1st respondent cannot be sustained under the law. The same is quashed. The 1st respondent shall reconsider Ext.P6 in light of the recommendations made by the Hon’ble Chief Justice of Kerala and pass fresh orders within eight weeks from today. This writ petition is allowed. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/9/10/2023 **W.P.(C) No. 25945/2023** ``` :14: ``` ## **`APPENDIX OF WP(C) 25945/2023`** ``` PETITIONEREXHIBITS ``` |`Exhibit-P1`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`RELEVANT`<br>`EXTRACT`<br>`OF`| |---|---| ||`G.O.(MS)`<br>`NO.230/2006/HOME`<br>`DATED`| ||`26.12.2006`| |`Exhibit-P2`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`RELEVANT`<br>`EXTRACT`<br>`OF`| ||`G.O.(MS)`<br>`NO.257/2011/HOME`<br>`DATED`| ||`18.11.2011`| |`Exhibit-P3`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`RELEVANT`<br>`EXTRACT`<br>`OF`| ||`G.O.(P)`<br>`NO.33/2021/HOME`<br>`DATED`| ||`26.03.2021`| |`Exhibit-P4`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`LETTER`| ||`NO.FW/J3/49631/14`<br>`DATED`<br>`29.04.2015`<br>`OF`| ||`THE`<br>`2ND`<br>`RESPONDENT`<br>`ALONG`<br>`WITH`| ||`ANNEXURE-IV THEREOF.`| |`Exhibit-P4(a)`|`TRUE COPY OF THE LETTER NO.PIO 206/2023`| ||`DATED`<br>`16.06.2023`<br>`OF`<br>`THE`<br>`PUBLIC`| ||`INFORMATION OFFICER OF THE HIGH COURT.`| |`Exhibit-P5`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`| ||`SUBMISSION/REPRESENTATION`<br>`DATED`| ||`02.06.2022`<br>`FILED`<br>`BY`<br>`THE`<br>`PETITIONER`| ||`BEFORE THE HIGH COURT.`| |`Exhibit-P6`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`FORWARDING`<br>`LETTER`| ||`NO.FW1-55000/2019/FW7`<br>`DATED`<br>`24.08.2022`| ||`OF`<br>`THE`<br>`2ND`<br>`RESPONDENT`<br>`WITHOUT`<br>`ITS`| ||`ENCLOSURE.`| |`Exhibit-P7`|`TRUE`<br>`COPY`<br>`OF`<br>`THE`<br>`GOVERNMENT`<br>`LETTER`| ## **W.P.(C) No. 25945/2023** ## **`:15:`** ``` BEARINGNO.C2/417/2022/HOMEDATED 09.05.2023 Exhibit-P7a)TRUECOPYOFTHEHIGHCOURTENDORSEMENT ONHCKL/3493/2022-FW7DATED20.05.2023 OFTHEFINANCEOFFICEROFTHEHIGH COURT. Exhibit-P8TRUECOPYOFTHESUBMISSIONDATED 10.10.2019FILEDBYTHEPETITIONER BEFORETHE11THPAYCOMMISSION. Exhibit-P9TRUECOPYOFTHEREPRESENTATIONDATED 12.03.2020FILEDBYTHEPETITIONER ALONGWITHTHEOFFICERGRADESTAFFOF THEHIGHCOURTLIBRARY ```