State of Kerala v. P.C. Sahajan and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE AMIT RAWAL** ## **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA MONDAY, THE 18[TH] DAY OF DECEMBER 2023 / 27TH AGRAHAYANA,** # **1945** **WA NO. 1422 OF 2021** **AGAINST THE JUDGMENT DATED 18.02.2021 IN WP(C)NO.21069/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/RESPONDENT 1 IN THE W.P.(C).:** THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. BY ADVS. GOVERNMENT PLEADER ADDITIONAL ADVOCATE GENERAL SRI.ASOK M.CHERIAN (B/O) AND GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY (B/O) ## **RESPONDENTS/PETITIONERS & RESPONDENT 2 IN THE WP(C):** 1 P.C.SAHAJAN, (RETD. LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031), RESIDING AT PALARI HOUSE, KIZHAKKEPRAM, NORTH PARAVUR, ERNAKULAM-683 513. 2 JOHNY K.P., LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 3 MOTHILAL K.R., LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 4 XAVI M.J., LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 5 A.C.NANDAKUMAR, LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. ## **W.A.No.1422 of 2021** 2 6 T.K. ROMIO, LIBRARY ASSISTANT (SENIOR GRADE), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 7 THE HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, ERNKUALM, KOCHI, PIN-682 031. BY ADVS. S.P.ARAVINDAKSHAN PILLAY B.G.HARINDRANATH N.SANTHA V.VARGHESE PETER JOSE CHRISTO S.A.ANAND K.N.REMYA L.ANNAPOORNA VISHNU V.K. ABHIRAMI K. UDAY ## **OTHER PRESENT:** SR.GP. SRI JUSTIN JACOB **THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 18.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.A.No.1422 of 2021** 3 **AMIT RAWAL & C.S.SUDHA, JJ.** ## **------------------------------------------------------Writ Appeal No.1422 of 2021** **----------------------------------------------------** **Dated this the 18[th] day of December, 2023** ## **J U D G M E N T** ## **Amit Rawal, J.** While exercising the powers entrusted to the Hon'ble Chief Justice envisaged under Article 229 of the Constitution of India, the then Chief Justice of this Court _vide_ letter dated 06/11/2015 passed the order granting various benefits, including the Selection Grade II to the High Court Library Assistants involved in the present case. The aforementioned recommendation was pending with the Government for a number of years and ultimately was accorded sanction with effect from 30/04/2019 but the revised arrears were restricted with effect from 01/04/2019 instead of 01/04/2016. 2. Six petitioners out of which one had retired from service on 30/04/2019 from the post of Sr. Grade Library Assistant and two petitioners working as Sr. Grade Library Assistants and petitioners 4 **W.A.No.1422 of 2021** 4 to 6 Higher Grade Library Assistants had been raising demand for grant of Selection Grade to them. Considering their request, the order in Ext.P6 was passed whereby recommendation was made for granting the Selection Grade in the ratio of 2:2:1:1, that is, Library Assistant Grade-II : Higher Grade : Sr. Grade : Selection Grade. The order of the Government in the impugned communication dated 30/04/2019 in Ext.P13, did not assign any reason. When the matter was taken up, the counter affidavit reveals financial constraints. Learned Single Bench rejected the contention of the state and modified the order Ext.P13 to be construed to be effective, viz-a-viz., the arrears with effect from 01/04/2016. 3. Mr.Justin Jacob, learned Govt. Pleader appearing on behalf of the State in support of the _intra_ court appeal submitted that judgment is not only vitiated by errors apparent but patent. The reason for not granting the monetary benefits clarified in the counter was the financial constraints owing to 2017 and 2018 flood. Pay revision benefits are sanctioned based upon financial conditions of the State. Though the notional fixations has already been granted with effect **W.A.No.1422 of 2021** 5 from 01/04/2016 but owing to the financial constraints, the arrears was confined to be from 01/04/2019. 4. On the other hand, Mr.Varghese and Mr.Harindranath, the learned counsel representing the petitioners and as well as the High Court, strenuously and vehemently opposed the aforementioned grounds and supported the order of the single Bench. In support of the contention, relied upon the _ratio decidendi_ culled out in paragraph 27 of the judgment of the Supreme Court in **State of Rajasthan & ors. v. Ramesh Chandra Mundra & ors. [(2020)20 SCC 163]** and it was submitted that the explanation of denying the benefits despite fixing the notional benefits for the first time surfaced in the counter affidavit could not have sustained as it lacks plausibility and justiciability and urged this Court for upholding the order of the Single Bench under challenge. 5. We have heard the counsel for the parties and appraised the paper book. 6. The then Hon'ble Chief Justice while exercising the powers under Article 229 of the Constitution of India, in Ext.P6 decided to **W.A.No.1422 of 2021** 6 grant Selection Grade in the ratio aforementioned in the following ## manner - |Sl.<br>No.|Posts|Total<br>Strength|Existing<br>Ratio|Revised Ratio| |---|---|---|---|---| |11|Among<br>Senior<br>Grade<br>Library<br>Assistant, Higher<br>Grade<br>Library<br>Assistant <br>and<br>Library Assistant|12|1:2:3|2:2:1:1 among Library<br>Assistant,<br>Library<br>Assistant HG, Library<br>Assistant Sr.G and<br>Library Assistant Sel.G| 7. The then Government kept on lingering the aforementioned letter and finally had given accord after a gap of four (4) years vide Ext.P13. On a perusal it can be seen that in Ext.P13 the Government while fixing the notional Selection Grade w.e.f. the arrears and restricted 01/04/2016, did not assign any reasons _qua_ from 01/04/2019. The decision of the Chief Justice would definitely involve financial intrications and the Government cannot ward off such orders on the premise of financial constraints, since the work of the Judiciary demands not only infrastructure facility which are integral to judicial functioning. Paragraphs 27 and 28 of the judgment in **Ramesh Chandra Mundra** ( _Supra_ ) read as under - **W.A.No.1422 of 2021** 7 _“_ _**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 judiciary is part of the basic structure of the Constitution is by now well entrenched. 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._ _**28.** The scheme of Article 229 of the Constitution of India obviously requires a joint consideration of the proposal which the Chief Justice may make in regard to appointments, conditions of services, 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 which such decision may have imposed, should receive due consideration at the hands of the State Government and eventually the Governor. In this regard, this Court in Supreme Court Employees' Welfare Assn. [Supreme Court Employees' Welfare Assn.v. Union of India, (1989) 4 SCC 187 : 1989 SCC (L&S) 569] , observed the following in relation to an identical constitutional scheme : (SCC pp. 221-22, paras 57 & 62)_ _“57. So far as the Supreme Court and the High Courts are concerned, the Chief Justice of India and the Chief Justice of the High Court concerned, are empowered to frame rules subject to this that when the rules are framed by the Chief Justice of India or by the Chief Justice of the High Court relating to salaries, allowances, leave or pensions, the approval of the President of India or the Governor, as the case_ **W.A.No.1422 of 2021** 8 _may be, is required. It is apparent that the Chief Justice of India and the Chief Justice of the High Court have been placed at a higher level in regard to the framing of rules containing the conditions of service. It is true that the President of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions, but it is equally true that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India._ _* * *_ _62. Thus a delegated legislation or a subordinate legislation must conform exactly to the power granted. So far as the question of grant of approval by the President of India under the proviso to Article 146(2) is concerned, no such conditions have been laid down to be fulfilled before the President of India grants or refuses to grant approval. By virtue of Article 74(1) of the Constitution, the President of India shall, in exercise of his functions, act in accordance with the advice of the Council of Ministers. In other words, it is the particular department in the Ministry that considers the question of approval under the proviso to Article 146(2) of the Constitution and whatever advice is given to the President of_ **W.A.No.1422 of 2021** 9 _India in that regard, the President of India has to act in accordance with such advice. On the other hand, the Chief Justice of India has to apply his mind when he frames the rules under Article 146(2) with the assistance of his officers. In such circumstances, it would not be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind. So, not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to salaries, allowances, leave or pensions.”_ ## 8. We do not find any infirmity or illegality in the order of the **W.A.No.1422 of 2021** 10 Single Bench by rejecting the feeble attempt of the Government in not giving any plausible explanation for granting the benefit w.e.f. 01/04/2019. For the reasons aforementioned, this _intra_ court appeal _sans_ merit and accordingly dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/AMIT RAWAL JUDGE** **Sd/C.S.SUDHA JUDGE** ak **W.A.No.1422 of 2021** 11 ## **APPENDIX OF WA 1422/2021** PETITIONER'S ANNEXURES:- Annexure I TRUE COPY OF THE GOVERNMENT ORDER (MS) NO. 345/2017(67)/FIN. DATED 25/07/2017. Annexure II TRUE COPY OF THE GO(MS) NO.346/2017/ (68)/FIN. DATED 25/07/2017. Annexure III TRUE COPY OF THE GO(MS) NO.373/2017/ (76)/FIN. DATED 10/08/2017. Annexure IV TRUE COPY OF THE GO(MS) 200/2018/ (102)/FIN. DATED 11/06/2018. Annexure V TRUE COPY OF THE GO(MS) NO. 282/2019/ (115)/FIN. DATED 26/07/2019.