W.P(C).NO.33513/18-R

W.P(C).NO.33513/18-R 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** ## **WP(C).No.33513 OF 2018(R)** ## **PETITIONERS:** - **1 KERALA HIGH COURT EMPLOYEES UNION, HIGH COURT OF KERALA, ERNAKULAM REPRESENTED BY ITS SECRETARY.** - **2 KERALA HIGH COURT STAFF FEDERATION HIGH COURT OF KERALA, ERNAKULAM REPRESENTED BY ITS SECRETARY.** - **3 KERALA HIGH COURT CHAUFFEURS ASSOCIATION, HIGH COURT OF KERALA, ERNAKULAM REPRESENTED BY ITS SECRETARY.** - **4 K.RAJAN, AGED 48 YEARS, OFFICE ATTENDANT (HIGHER GRADE), HIGH COURT OF KERALA, ERNAKULAM.** - **5 ANVER N.M, AGED 37 YEARS, FULLTIME SANITATION WORKER, HIGH COURT OF KERALA, ERNAKULAM.** - **6 SEEJA C.H, AGED 46 YEARS, PART TIME SWEEPER, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SRI.K.JAJU BABU (SR.) SMT.M.U.VIJAYALAKSHMI KUM.NEETU VINOD** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.** W.P(C).NO.33513/18-R 2 - **2 THE ADDITIONAL CHIEF SECRETARY FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001.** - **3 THE HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM - 682031.** **SPL. GOVERNMENT PLEADER TO AG SRI.N.MANOJ KUMAR R3 BY ADV. SRI.SUNIL JACOB JOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C).NO.33513/18-R 3 ## _**P.V.ASHA, J.**_ **--------------------------** W.P(C).No.33513 of 2018-R ------------------------------------------- _Dated this the 7[th] day of January, 2020_ ## _**JUDGMENT**_ Employees' Associations in the High Court along with individual employees have filed this Writ Petition, aggrieved by the action of the Government in not sanctioning the posts recommended by the Honourable the Chief Justice in Ext.P4 proposal. They are also aggrieved by the decision in Ext.P11 that creation of the 5 posts of Computer Assistants and conversion of 38 posts of Office Attendants as Escort Attendants are not possible in view of the precarious financial position. As early as on 09.07.2010, the High Court addressed the Government as per Ext.P1 letter requesting for sanctioning of 38 posts of Escort Attendants, stating as follows: _“The Peons in the High Court are posted as Escorts to the Honourable Judges. The Security Officer, who is in charge of the Last Grade Staff, deputes Peons for Escort duty. Usually senior members of the category of Peon are deputed for Escort Duty. The Government, as per the G.O. Read above, have sanctioned special allowance @ Rs.300/- per month to the Peons who are posted for Escort duty. They escort the Honourable Judges on all occasion both official and unofficial. They have to reach the residence of the Honourable Judges early morning to accompany the Honourable Judges from Their Lordships' residence to the Court and from the Court to the residence or to any other places Their Lordship visit. So the escort Peon can return home only after Their Lordships return home. Most of the Peons deputed for escort duty are neraing retirement. There is no post of Escort Peons sanctioned in the High Court as such. In the absence of such posts, the incumbents posted for escort duty may not get any monetary benefit from the Governmentor from the Pay Revision Commission, other than special allowance sanctioned._ _The Honourable the Chief Justice, after having considered the matter in_ W.P(C).NO.33513/18-R 4 _detail, has ordered to address the Government for sanctioning the post of Escorts in the scale of pay of Rs.6080-9830 commensurate with the number of Honourable Judges in the High Court. The annual financial commitment involved in the proposal is Rs.48,11,256/- (Rupees forty eight lakh eleven thousand two hundred and fifty six only). The Head of Account is 2014-AJ-102-99-01-salaries (NonPlan), Charged) and sufficient funds are available at present to meet the requirement.”_ Thereafter on 15.10.2012, as per Ext.P2 letter the High Court again addressed the Government pointing out the immediate requirement for sanctioning of 284 posts in various categories including the 38 posts of Escort Attendants as mentioned in the table annexed to the letter, for the smooth and effective functioning of the High Court. While these requests were pending without action, the 10[th] Pay Revision Commission submitted its report regarding the staff of the High Court to the Honourable the Chief Justice. The Judges' committee which was constituted to examine the same made certain additional recommendations including one relating to Escort Attendants. Instead of creation of posts, it was recommended to convert 38 posts of Office Attendants as Escort Attendants. Based on this report, the Honourable the Chief Justice framed rules under Article 229(2) of the Constitution of India and forwarded it to the Governor, for approval of pay revision of High Court Staff. As the recommendations of the Honourable the Chief Justice were not reflected in the pay revision ordered by the Government on 20.06.2016, the High Court addressed the Government on 07.10.2016 requesting to rectify the anomalies. Thereafter Ext.P3 reminder was sent on 18.4.2017 requesting for sanctioning of conversion of 38 posts of Office Attendants as Escort Attendants in the scale of pay of 18,000-41,500 on par with Daffedar in the High Court. Thereafter, referring to the Chief justice-Chief Minister discussion held on W.P(C).NO.33513/18-R 5 15.07.2017, another letter Ext.P4 was sent to the Government on 28.11.2017 pointing out the extremely emergent requirement of 222 posts shown in the Annexure B to it, out of 420 posts for which request was pending, including for conversion of 38 existing posts as Escort Attendants, all covered by the discussion. The 222 posts which were required immediately, included 13 posts of Chauffeur Gr.II, 5 posts of Computer Assistants and 10 posts of Attender Gr.II and 38 by conversion of existing posts as Escort Attendants. Ext.P4 letter was followed by Ext.P5 reminder on 04.05.2018 and Ext.P6 reminder on 17.05.2018, pointing out the discussion held on 09.05.2018 in Chief Secretary's committee room and the inaction on the request for sanctioning conversion of 38 posts of Office Attendants as Escort Attendants. 2. It is pointed out that in view of the implementation of the Unified Case Information System (CIS) National Core Version 1.0 in the High Court, the requirement of Computer Assistants has become inevitable. Though the Government created certain posts in the High Court as per Ext.P10 order issued on 04.09.18, no posts were created in the category of Computer Assistants and Attender Gr.II. Sanction was not accorded for conversion of Office Attendants as Escort Attendants also. As against the request for 13 posts of Chauffeur Gr.II, only 5 posts were sanctioned. 3. In this context, this Court had passed an interim order on 22.01.2019 directing the 1[st] respondent to take a decision on the creation of 5 posts of Computer Assistants covered by Ext.P4 and regarding the conversion of 38 posts W.P(C).NO.33513/18-R 6 of Office Attendants as Escort Attendants referred to therein within a period of one month. Thereupon, Ext.P11 order was issued on 12.03.2019 stating that the Government is not in a position to consider the proposal for creation of the post of Computer Assistants/conversion of the post of Office Attendants as Escort Attendants in view of the precarious financial condition. It was stated therein that 319 posts were created exclusively for the High Court establishment within a span of last three years and 948 posts for State Subordinate Judiciary. 4. In this Writ Petition, the petitioners are concerned with the sanctioning of conversion of 38 posts of Office Attendants as Escort Attendants, sanctioning of the posts of Computer Assistants, Attender Gr.II and Chauffeur Gr.II. They are challenging the orders Exts.P10 and P11 orders to the extent those posts are not sanctioned as requested. 5. The respondents have filed a counter affidavit. The High Court has, in the counter affidavit filed, pointed out the immediate necessity of the posts of Chauffeur Gr.II, Attender Gr.II, Computer Assistant, Photocopier Operator, Watchman, Sweeper and Office Attendants as well as conversion of Office Attendants as Escort Attendants in its proposals made from 1.3.2017 onwards which are pending before the Government. It is stated that in the high level meeting convened between the Honourable Chief Minister and the Honourable the Chief Justice on 15.07.2017, the proposal for creation of 499 posts was placed. Thereafter, the Government sanctioned 48 posts in various categories on 07.10.2017 including 6 posts of Chauffeur Gr.II and 12 posts of Office Attendants. W.P(C).NO.33513/18-R 7 It is stated that subsequent to another meeting held on 13.10.2017, a consolidated list of 222 posts which was required emergently out of 420 posts, was forwarded, as per Ext.P4. It is also stated that those 222 posts including the sanctioning of conversion of 38 posts were covered by the CJ-CM discussion held on 15.7.2017. It is further stated that the Chief Secretary to Government convened a high level meeting on 9.5.2018 at Trivandrum for discussing the proposal for creation of posts and it was decided to create 167 posts. Thereafter, Ext.P10 order was issued sanctioning only 105 posts. It is stated that as on 4.9.2018 altogether 303 posts were pending sanction before the Government, out of which 99 posts covered by Ext.R3(h) are extremely urgent. It is also stated that the request for creation of posts is made with the approval of the Hon'ble the Chief Justice, in view of the acute necessity of staff in the High Court, found necessary, on careful examination of all material aspects, such as enhanced Judges' strength, smooth functioning of the High Court Registry, full fledged functioning of the Kerala Judicial Academy, strengthening of Vigilance Cell of the High Court, etc. 6. The Government has filed a counter affidavit stating as follows in paragraphs 6 and 8: _“6. Exhibit P11 has been issued by the 1[st] respondent after analyzing all aspects existing thereon. The creation of posts in the High Court establishment can only be allowed after assessing the financial situation of the State, since creation of posts, as proposed will incur additional expenditure. The financial status of the State is in a precarious situation and it has been further crippled by the unprecedented flood that had devastated the State. Now, the primary concern of the State is the post-flood rebuilding activities, for which Government have to provide financial assistance._ _xxxx xxxx xxxx xxx_ _8. The financial situation of the State is less amenable for conceding with further demands for creation of posts, as fought for. The Government have taken earnest efforts to comply with the recommendations put forth by this Hon'ble Court._ W.P(C).NO.33513/18-R 8 _However, the present proposal cannot be accepted, for the time being. Such a discretion was exercised by the 1[st] respondent considering the paramount interest and welfare of the State. It was so necessitated to maintain the financial position of the State in a manageable level. Contrary to the averments and allegation in the Writ Petition, the incumbents are eligible for promotion in due course, as against the existing posts. Be that as it may, it is not legal or proper on the part of the incumbents to seek for promotion after creating new posts. Such a recourse shall be depreciated.”_ 7. Sri. Jaju Babu, the learned Senior Counsel relying on the judgment of this Court in _**High Court Non-Grad.Staff Assn. v. State of Kerala**_ [1997 (2) KLT 665 , _**Asokan v. State of Kerala**_ [2011 (1) KLT 931 and _**K.G.Rajamohan v. State of Kerala**_ [2013 (3) KLT 803] and the judgment Ext.P12 argued that when there is a proposal made by the Hon'ble the Chief Justice for sanctioning of posts, the same cannot be considered as in the case of requests from other Departments under the Government and defer the same for the orders of pay revision committee. 8. It was pointed out that each proposal is made on being convinced of the acute necessity. It is pointed out that in the absence of orders sanctioning the posts of Computer Assistants, even after the introduction of the Unified Case Information System, the day to day functioning of the court as well as all the stakeholders is adversely affected and therefore the financial difficulties cannot stand in the way of sanctioning those posts. Similarly, the learned Senior Counsel pointed out that the Judges in District Courts are already provided with Escort Attendants. Therefore, the denial of the same in the High Court, that too, only by conversion of existing posts is highly unfair and unjust. The sanctioning of the posts of Chauffeur Gr.II as well as Attender Gr.II also is inevitable for the day to day functioning of the High Court. According to the learned Counsel for the High W.P(C).NO.33513/18-R 9 Court, all the posts for which sanction is requested from time to time are absolutely necessary in the interest of all concerned. 9. The learned Special Government Pleader argued that the financial position of the State, followed by successive natural calamities, does not permit sanctioning of any new posts. It is his contention that newly constituted Pay Revision Commission would consider all these matters and it would be submitting its report within a period of six months. It is also pointed out that all the Departments are facing various difficulties consequent to the non availability of sufficient number of staff in various posts. 10. Heard Sri. Jaju Babu, the learned Senior Counsel for the petitioners, Sri. Sunil Jose, the learned Standing Counsel and Sri. N. Manojkumar, the learned Special Government Pleader. 11. Ext.P4 proposal was made based on Rules framed by the Honourable the Chief Justice under Article 229(2) of the Constitution of India. The Apex Court and this Court has on several occasions held that the Government is not expected to treat the proposals made and rules framed by the Chief Justice under Article 229(2) on par with the request from other departments or Public sector Undertakings. In the judgment in _**Supreme Court Employees’ Welfare Assn. v. Union of India**_ [ (1989) 4 SCC 187] **,** the Apex Court while considering the case of Supreme Court employees which are governed by provisions in pari materia with rules under Article 229(2) held 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 W.P(C).NO.33513/18-R 10 is very good reason not to grant approval, the approval should always be granted. It was held that before declining approval, there must be exchange of thoughts between the President of India and the Chief Justice of India. 12. In the judgment in _**High Court Non-Graduate Staff Association v. State of Kerala**_ [1997 (2) KLT 665], while considering the claim of Typists of the High Court for enhanced scale of pay, higher grades, etc. and while considering the impact of the rules framed under Article 229(2), it was held that a constitutional obligation is cast on the Chief Justice of a High Court to get the approval of the Governor of a State and that constitutional duty is vested in the Governor to grant approval to such request. It was also held that in the event of any situation where the Governor of the State is of the view that approval cannot be granted, there should be exchange of views between the Chief Justice and the Governor. It was held that the request made by the Chief Justice of the State would be looked upon by the Governor with respect and unless there is very good reason not to grant approval, the approval should always be granted. 13. In _**High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal**_ [(1998) 3 SCC 72], while considering an issue regarding revision of pay the Apex Court reiterated that once the Chief Justice, has taken steps for creation of posts or fixation of pay of the staff of the High Court, in the interest of administration, the State Government would not normally raise any objection to it. In _**High Court Employees Welfare Assn. v. State of W.B**_ [(2004) 1 SCC 334] _,_ the Apex Court cautioned the Government to bear in mind that the rules are framed W.P(C).NO.33513/18-R 11 by the Chief Justice having regard to the special nature of the work done in the High Court which the Chief Justice and his colleagues alone could really appreciate and that if such needs of the High Court are not met, the administration of the High Court will face severe crisis. Similarly, the Apex Court in _**Union of India v. S.B. Vohra**_ [(2004) 2 SCC 150], after discussing a series of such judgments on similar matters, reiterated the position and held that it is the primary duty of the Union of India or the State concerned normally to accept the suggestions 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. It was held that the reason for differing with the opinion of the holder of such high office must be cogent and sufficient and that in the event of any difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. Regarding the refusal to approve revised scale of pay on the ground of financial implications, the Apex Court in para.48 of the judgment held as follows: _“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. Xxx.”_ 14. In _**Asokan v. State of Kerala**_ [2011 (1) KLT 931], this Court was considering whether the executive can impose any restrictions while sanctioning posts or in the matter of appointment of staff in the High Court. After elaborate consideration of various constitution bench judgments it was held that power of the Chief Justice to make appointment, under Art.229(1) is absolute and plenary and that it cannot be abridged by the competent legislature or by the Governor and W.P(C).NO.33513/18-R 12 that Chief Justice is the supreme authority in the matter of appointment of the officers and servants of the High Court. Conferment of such power is to secure the independence of the judiciary. 15. In _**K.G.Rajmohan vs. State of Kerala**_ [2013 (3) KLT 803], while considering the claim of Chief Librarian for revision of pay, this Court found that the request was rejected without holding any discussion to sort out the difference of opinion and directed the Government to pass orders in the light of the aforesaid directions of the Apex Court. 16. Though the only reason stated for not sanctioning the posts is the financial stringency, it is seen that there had not been any discussion and hence no exchange of views between the Hon'ble the Chief Justice and the Hon'ble Chief Minister since May, 2017. In the light of the dictum laid down in the aforesaid judgments, it is necessary to have exchange of views between the Hon'ble the Chief Justice and the Hon'ble Chief Minister for resolving the issues on proposals made under Article 229(2) of the Constitution of India. Therefore, I am of the view that the 1[st] respondent has to take steps for convening a meeting of the Honourable the Chief Justice and the Honourable Chief Minister to have a discussion on the matters covered by the proposals pending for sanctioning of posts including Ext.P4 and for a decision thereafter without waiting for the next pay revision. W.P(C).NO.33513/18-R 13 17. It is seen that the proposal for creation of 38 posts of Escort Attendants was changed as a proposal for conversion of the existing 38 posts of Office Attendants as Escort Attendants, after the meeting held between the Hon'ble the Chief Justice and the Hon'ble the Chief Minister. The requirement of Escort Attendants to each of the Judges was explained in Ext.P1 letter while requesting for creation of posts. Even after alteration of that request in order to reduce the financial implication, the request pending since 2010 was modified subsequently as conversion, which is also not considered favourably. In Ext.P11 it was rejected on the ground of financial condition. In the light of the judgment in _**S.B. Vohra**_ 's case ( _supra_ ), the financial position cannot be a reason for rejecting that request, even after the same was covered by the discussion between the Hon'ble the Chief Justice and the Honourable the Chief Minister. 18. Therefore, the Writ Petition is disposed of with the following directions: (1) Ext P11 order is set aside. (2) The 1[st] respondent shall pass orders sanctioning conversion of the 38 posts of Office Attendants as Escort Attendants within a period of three months from the date of receipt of a copy of the judgment. (3) The 1[st] respondent shall reconsider the proposals in Ext.P4 and other requests pending before the Government for sanctioning of posts in the High Court with respect to the posts which are not sanctioned in Ext.P10 giving due preference to the posts of Chauffeur Gr.II, Attender Gr.II and Computer W.P(C).NO.33513/18-R 14 Assistants, after a meeting is convened for exchange of views between the Honourable the Chief Justice and the Honourable Chief Minister, as expeditiously as possible and to pass orders thereon without further delay. _**Sd/- (P.V.ASHA, JUDGE)** rtr/_ W.P(C).NO.33513/18-R 15 ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**EXHIBIT P1**|**COPY OF THE REQUEST VIDE NO.A3-45110/2010**| |---|---| ||**DATED 09.07.2010 OF THIS HON'BLE COURT TO**| ||**THE GOVERNMENT.**| |**EXHIBIT P2**|**COPY OF THE RELEVANT EXTRACT OF THE REQUEST**| ||**VIDE NO.A5-24118/2010 DATED 15.10.2012 OF**| ||**THIS HON'BLE COURT TO THE GOVERNMENT.**| |**EXHIBIT P3**|**COPY OF THE RELEVANT EXTRACT OF THE REQUEST**| ||**VIDE NO.FW3-49631/2014(2) DATED 18.04.2017**| ||**OF THIS HON'BLE COURT TO THE GOVERNMENT.**| |**EXHIBIT P4**|**COPY OF THE RELEVANT EXTRACT OF THE**| ||**RECOMMENDATION VIDE NO.A1-116861/2016 DATED**| ||**28.11.2017 OF THIS HON'BLE COURT TO THE**| ||**GOVERNMENT.**| |**EXHIBIT P5**|**COPY OF THE REMINDER VIDE NO.A1-116861/2016**| ||**DATED 04.05.2018 OF THIS HON'BLE COURT TO**| ||**THE GOVERNMENT.**| |**EXHIBIT P6**|**COPY OF THE LETTER DATED 17.05.2018 GIVEN**| ||**BY THIS HON'BLE COURT TO THE GOVERNMENT.**| |**EXHIBIT P7**|**COPY OF THE ORDER VIDE NO.A1-435/2018 DATED**| ||**01.08.2018 PUBLISHED BY THIS HON'BLE COURT.**| |**EXHIBIT P8**|**COPY OF THE ORDER NO.A1-80774/2015/A7 DATED**| ||**31.8.2018 ISSUED BY THIS HON'BLE COURT.**| |**EXHIBIT P9**|**COPY OF THE GOVERNMENT ORDER GO(MS)**| ||**NO.123/2016/HOME DATED 07.04.2016.**| |**EXHIBIT P10**|**COPY OF THE GOVERNMENT ORDER GO(MS)**| ||**NO.142/2018/HOME DATED 4.9.2018.**| |**EXHIBIT P11**|**COPY OF THE COMMUNICATION DATED 12.03.2019**| ||**ISSUED BY THE 2ND RESPONDENT TO THE 3RD**| ||**RESPONDENT.**| |**EXHIBIT P12**|**COPY OF THE JUDGMENT DATED 09.01.2018 IN**| ||**W.P.(C).NO.30000/2016 OF THIS HON'BLE**| ||**COURT.**| W.P(C).NO.33513/18-R 16 ## **IST RESPONDENT'S EXHIBITS** **ANNEXURE R1(a) : TRUE COPY OF THE CHART SHOWING THE DETAILS OF POSTS CREATED FOR HIGH COURT ESTABLISHMENT AFTER 25.5.2016 (RELEVANT PAGES ONLY).** **3RD RESPONDENT'S EXHIBITS** **EXT.R3(a): PHOTOCOPY OF THE ORDER G.O(Ms).NO.69/17 HOME DATED 31.3.2017.** **EXT.R3(b): PHOTOCOPY OF THE ORDER G.O(Ms).NO.80/2017/HOME DATED 11.4.2017.** **EXT.R3(c): PHOTOCOPY OF THE ORDER G.O(Ms)NO.93/17/HOME DTED 4.5.17.** **EXT.R3(d): PHOTOCOPY OF THE ORDER G.O(Ms)NO.144/2017 DT.4.7.17.** **EXT.R3(e): PHOTOCOPY OF THE GOVERNMENT ORDER DT.7.10.17.** **EXT.R3(f): PHOTOCOPY OF THE GOVERNMENT ORDER DT.5.11.17.** **EXT.R3(g): PHOTOCOPY OF THE MINUTES OF THE MEETING HELD ON 9.5.2018.** **EXT.R3(h): PHOTOCOPY OF THE CONSOLIDATED LIST OF POSTS PENDING SANCTION OF THE GOVERNMENT.** **EXT.R3(i): PHOTOCOPY OF THE DETAILS OF THE EXTREMELY URGENT POSTS PENDING SANCTION OF THE GOVERNMENTS.**