Gauhati High Court
Page No.# 1/5 vs The State Of Assam And 4 Ors on 19 June, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/50
GAHC010106502023
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2716/2023
THE GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
AND ANR.
GUWAHATI- 1, REP. BY ITS GENERAL SECRETARY.
2: THE GENERAL SECRETARY
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
GUWAHATI- 1
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI- 781006.
2:THE PRINCIPAL SECRETARY
TO THE GOVT. OF ASSAM
FINANCE (PRU) DEPTT.
DISPUR
GUWAHATI- 6.
3:THE COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI- 6.
4:THE LEGAL REMEMBRANCER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GUWAHATI- 6.
5:THE REGISTRAR GENERAL
GAUHATI HIGH COURT
Page No.# 2/50
GUWAHATI
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
Advocates for the petitioner(s): Mr. KN Choudhury
Senior Advocate
Mr. J Patowary
Advocates for the respondent(s): Mr. TR Gogoi
Government Advocate, Assam
Mr. B Gogoi, Standing Counsel
Finance Department,
Govt. of Assam
Mr. TJ Mahanta, Senior Advocate
& Standing Counsel,
Gauhati High Court
(Principal Seat)
Mr. PP Dutta
Date of hearing & order: 19.06.2025
ORDER
Heard Mr. KN Choudhury, the learned Senior Counsel assisted by
Mr. J Patowary, the learned counsel appearing on behalf of the
petitioners. Mr. TR Gogoi, the learned Government Advocate, Assam,
who appears on behalf of the respondent Nos.1 and 4, Mr. B Gogoi,
the learned Standing Counsel, Finance Department, who appears on
behalf of the respondent Nos.2 and 3 and Mr. TJ Mahanta, the learned
Senior Counsel as well as the learned Standing Counsel for the
Gauhati High Court (Principal Seat) assisted by Mr. PP Dutta, the
learned counsel, who appears on behalf of the respondent No.5.
Page No.# 3/50
2. The present writ petition has been filed challenging the speaking
order No.FTC.8/2007/PT/196 dated 03.08.2022 whereby the approval
sought under the proviso to Article 229 of the Constitution in respect
of the Gauhati High Court (Revised Pay) Rules 2013, (Structure and
Fixation) (for short, ‘the Draft Rules of 2013’) as amended in 2021
was declined on the ground of financial crunch of the Government.
The petitioner Association further seeks for a writ in the nature of
mandamus directing the State to hold discussion with the competent
authority in the matter and thereafter grant approval to the Draft
Rules of 2013.
PRELUDE
3. The facts leading to the filing of the writ petition are narrated
herein infra:
(a). In the resolution adopted in the Chief Justice Conference
held on the 13th, 14th and 15th September 2002, it was inter alia,
resolved on the aspect pertaining to the representation of the High
Court Employees’ Federation dated 30.01.2001 addressed to the
Hon’ble Chief Justice of India regarding uniformity in Pay Structure,
Recruitment Rules and Nomenclature of the High Court Employees
throughout India that the said aspect be taken up by the respective
Chief Justices of the High Court with the State Government.
(b). Consequent thereupon, on 18.09.2003, the Hon’ble Chief
Page No.# 4/50Justice of this Court constituted a Committee comprising of Hon’ble
Mr. Justice PG Agarwal (as His Lordship then was) and Hon’ble Mr.
Justice Ranjan Gogoi (as His Lordship then was) to consider issues
relating to uniform, better and higher pay scales for the employees of
the Gauhati High Court (Principal Seat) as well as the Outlying
Benches. The said Committee submitted its report in the year 2006
with several recommendations. The report was accepted by the
Hon’ble Chief Justice and directed the Registry of this Court to move
the Government for acceptance and implementation. The Registrar
General vide letter dated 15.02.2007 forwarded the said report to all
concerned in the Government.
(c). On 19.03.2007, the LR & Secretary to the Government of
Assam forwarded the said report to the Finance Department. On a
query being made by the Finance Department, on 31.05.2007, a
request was made to the respondent No.5 i.e the Registrar General of
this Court to indicate about the financial implication/budgetary
provisions as would be required for the proposed revision of the pay.
The query so made was replied by the Registry of this Court vide the
communication dated 03.10.2007, wherein it was mentioned that the
additional amount required for implementation of the proposed pay
scale per annum would be Rs.3,77,94,673/-.
(d). On 12.08.2008, the Finance Department requested the
Judicial Department of the Government of Assam to place the matter
Page No.# 5/50
before the Assam Pay Commission 2008 in respect of the pay scales
and other benefits to the employees of the Principal Seat of this
Court. Consequently, the Judicial Department vide the letter dated
25.08.2008 communicated such decision of the Finance Department
to the Registrar General of this Court.
(e). In the meantime, in the year 2006, this Court initiated a suo
moto proceedings being WP(C) (taken up) No. 5873/2006, inter alia
on the issue regarding pay and the allowances of the officers and staff
of this Court. In the said proceedings an order dated 16.09.2008 was
passed whereby this Court took notice of the fact that the Finance
Committee of this Court in the administrative side had taken a
decision to await the decision to be taken by the State Pay
Commission. Subsequently, on 30.09.2008, the Full Bench of this
Court resolved to await the outcome/report of the Assam Pay
Commission.
(f). The Assam Pay Commission 2008,however, taking note of
the provisions of Article 229(2) of the Constitution observed that the
Pay Commission set up by the State Government did not extend to
dealing with pay, allowances, etc. of the employees of the High Court.
It was further observed that there was no specific instructions from
the Hon’ble Chief Justice to make recommendations relating to
revision of pay, allowances, etc. of the employees of the High Court.
In addition to that, the Pay Commission observed that there was no
Page No.# 6/50
material presented justifying any disturbance to the existing parity of
pay /allowances of equivalent posts in the High Court and the
Secretariat.
(g). Subsequent thereto, the Assam Services (Revision of Pay)
Rules, 2010 was notified vide the Notification dated 04.02.2010,
wherein it was expressly made clear that the said Rules shall not
apply to the officers and staff of the Gauhati High Court. Taking into
account the above, a representation was submitted by the petitioner
Association on 22.01.2010 before the Hon’ble Chief Justice and prayed
for Constitution of a Committee comprising of Hon’ble Judges and
experts to look into the matter of uniform, better and higher pay scale
for officers and staff of this Court. It was further prayed that as an
interim measure, the officers and staff of the Principal Seat be allowed
to draw pay and allowance at par with the scales recommended by
the State Government employees by the Pay Commission 2008. The
said representation was placed before the Administrative Committee
of this Court.
(h). The Administrative Committee in its meeting dated
10.02.2010 resolved to allow the officers and staff of the Principal
Seat to draw pay and allowance on the revised pay scale at par with
the equivalent post in the State Services on the basis of the Assam
Service (Revisions of Pay) Rules, 2010, (for short, the ROP, Rules of
2010) as an interim measure. The Administrative Committee further
Page No.# 7/50
resolved to request the Hon’ble Chief Justice to constitute a High
Powered Committee for a comprehensive scrutiny and
recommendations regarding disparity and anomalies generated.
(i). It is under such circumstances that the Hon’ble Chief Justice
of this Court in exercise of the powers under Article 229(2) of the
Constitution was pleased to approve the revision of the scale of pay of
the employees of the High Court w.e.f.01.01.2000 in accordance with
the scale of pay as laid down in the ROP Rules of 2010 as an interim
measure.
(j). It is further taken note of that the Hon’ble Chief Justice also
constituted a High Powered Committee comprising of three Hon’ble
Judges of this Court vide a Notification dated 17.06.2010. The High
Powered Committee after examining different aspects of the matter in
its meeting dated 26.08.2010 recommended that unless an
independent pay structure exclusively for the officers and staff of the
Gauhati High Court at the Principal Seat and its Outlying Benches is
evolved with the concurrence of the Government of the constituent
States, the rationalization thereof appears to be elusive. Such
resolution was laid before the Hon’ble Chief Justice.
(k). It is relevant to take note of that the petitioner Association
submitted a Memorandum dated 11.01.2011 before the Administrative
Committee. The Administrative Committee in its meeting dated
Page No.# 8/50
23.02.2011 resolved that such representation received from the
petitioner Association should be examined by a Committee comprised
of Hon’ble Mr. Justice I.A. Ansari (as His Lordship then was) and
Hon’ble Mr. Justice B.K. Sharma (as His Lordship then was).
Accordingly, vide order No. 14 dated 25.02.2011, the said committee
was constituted.
(l). On 02.08.2011 the said committee so constituted vide the
Notification dated 25.02.2011 resolved to request Mr. SM Deka, the
then Director of NEJOTI to furnish a report on the pay structure as
may be adequate for the officers and employees of the Gauhati High
Court. On such request, Mr. SM Deka, the then Director NEJOTI
submitted his report on appropriate pay structure for the officers and
staff of the Gauhati High Court on 10.01.2013.
(m). While these proceedings were going on, in a judicial
proceedings i.e. WP(C) No.3848/2001 (Taken-Up), the learned
Advocate Generals of all the constituent States suggested that
exchange of views amongst the learned Advocate Generals may be
helpful in resolving the issue of parity of pay scales of the employees
and accordingly, vide the order dated 15.09.2011, this Court
appointed the Registrar (Judicial) to facilitate and to coordinate such
discussion. Consequently, the meeting of the learned Advocate
Generals was held on 02.11.2011 and 03.02.2012, wherein it was
decided to suggest framing of common Rules governing the
Page No.# 9/50
employees as contemplated under Article 229(2) of the Constitution.
Accordingly, this Court vide a judicial order dated 27.11.2012 in MC
No.1322/2012 arising out of WP(C) No.3848/2001 accepted the
proposals so made by the learned Advocate Generals of the
constituent States to take appropriate decision by the Hon’ble Chief
Justice under Article 229 of the Constitution.
(n). It is further relevant to take note of that the committee
which was constituted on 25.02.2011 was reconstituted on
01.06.2012 and subsequently again reconstituted. The said
Committee on 09.04.2013 considered the grievances of the petitioner
Association as well as the report dated 10.01.2013 furnished by Mr.
SM Deka, the then Director NEJOTI and opined that the report so
submitted was confined only to Pay Upgradation and not to
allowances and amenities. Accordingly, the committee resolved to
defer the decision for Upgradation of allowances and amenities until
further relevant information is obtained from other High Courts.
(o). The Hon’ble Chief Justice of this Court was pleased to direct
framing of Draft Rules relating to revision of pay as articulated under
Article 229(2) of the Constitution. The said Draft Rules upon being
framed was placed before the Full Court Meeting held on 20.08.2013,
wherein the Draft Rules as well as the report of the Committee was
accepted and was directed to be forwarded to the State Government
for concurrence. Accordingly, by the letter dated 29.08.2013, the Draft
Page No.# 10/50
Rules so framed were forwarded to the Government for concurrence.
It is relevant to observe that during this period, there appears to
be a shift from the very initial concept of having a Pay Rules for the
employees of the Gauhati High Court i.e. the Principal Seat and
Outlying Benches to having a Pay Rules duly for the Principal Seat.
The apparent shift further appears to be on the ground that the
petitioner Association was only following it up whereas the Association
of employees of the Outlying Benches did not take any steps in that
regard.
(p). The Finance Department on receipt of the said Rules made
certain queries which was communicated to the Registry of this Court
by a letter dated 11.11.2013 issued by the LR & Secretary Judicial
Department. The queries made in the said communication dated
11.11.2013 being relevant are reproduced hereinunder:
“1. What are the existing provision applicable for the employees of the Gauhati High
Court against SI.12 & 13 of the Gauhati High Court (Revised Pay) Rules, 2013, i.e,
T.A./D.A and pensionary benefits respectively.
2. What are the pay scales as applicable in other High Courts indicating the
difference with that of the employees of Gauhati High Court. Relevant copies of pay
revision rules from other High Courts like West Bengal, Orissa, Chatisgarh, Jharkhand
and Madhya Pradesh may be furnished.”
(q). In response to such query, the Registry of the High Court
on 04.12.2013 submitted a detailed reply which included the pay
scales as applicable to 18 other High Courts and three outlying
Page No.# 11/50
Benches of this Court. However, there was no response from the
respondent State. Situated thus, the Hon’ble Chief Justice was pleased
to convene a meeting on 10.03.2014, which was attended by the
Chief Secretary to the Government of Assam as well as the Additional
Chief Secretary to the Government of Assam, Finance and other
Government officials. In the said meeting, the said officials agreed to
expedite the process of granting approval to the Rules framed by
Hon’ble Chief Justice in exercise of the powers conferred under Article
229 of the Constitution. Subsequent thereto, on 09.05.2014, a
communication was issued by the Judicial Department on instruction
of the Finance Department of the Government of Assam dated
09.05.2014 thereby informing that the reasons for the proposed
increase of pay scales in respect to many posts is not in existent and
asked the Register General of this Court to justify the need for
increase in such cases. The Register General was requested to cause
re-examination of the issues raised by the Finance Department in
detail and to resubmit the proposal with required information or
justification.
(r). The Registrar General of this Court by the letter dated
13.06.2014 submitted a detailed point-wise reply to the issues raised
by the Finance Department. However, nothing further progressed
which necessitated the petitioner Association to again request the
Hon’ble Chief Justice to intervene in the matter and consequently
Page No.# 12/50
during the month of October 2014, the Hon’ble Chief Justice had a
meeting with the Principal Secretary Finance Department. Subsequent
thereto, a meeting was held on 07.11.2014 between the Registrar
General and the Principal Secretary Finance Department. In the said
meeting, the representative of the State Government, inter alia
contended that the substantial mid-term enhancement of pay and
allowances of non-judicial officers and staff of the High Court may
upset the delicate balance with their counterparts in the Secretariat
and other Government Departments. On the other hand, the Registrar
General of this Court apprised in the meeting that the pay scales in
the outlying benches are higher than the pay scale of officers and
staff of the Principal Seat. On the ground that the said information
was not furnished by the Judicial Department, it was decided to
request the Judicial Department to furnish the information relating to
pay scale of the Outlying Benches and also to consider the idea of
enhancement of the grade pay in selected deserving cases only.
(s). Subsequent thereto on 12.12.2014, the Registrar General of
this Court in reply to the minutes of the Finance Department furnished
certain information to the Judicial Department wherein it was clearly
highlighted the views taken by the Finance Department in the meeting
dated 07.11.2014 were not sustainable and tantamounted to
questioning the authority of the Hon’ble Chief Justice to frame Rules
towards the conditions of service of officers and servants of this Court
Page No.# 13/50
as provided under Article 229 of the Constitution. Subsequent to the
said communication dated 12.12.2014, the Government of Assam did
not take any steps towards granting of approval by the Governor to
the Rules of 2013. However, as nothing was done, the petitioner
Association being aggrieved filed a writ petition before this Court
which was registered and numbered as WP(C) No.1724/2015.
Pursuant to the filing of the said writ petition, a meeting was held
between the Hon’ble Chief Minister, Assam and the Hon’ble Chief
Justice (Acting) of this Court on 25.06.2015 to discuss various issues
relating to the judiciary. Proposal for providing better and higher pay
to the officers and staff of the Gauhati High Court (Principal Seat) was
discussed as an additional item. Following the said meeting, a series
of meetings of the High Powered Committee took place.
(t). Initially an affidavit was filed on 12.10.2015 before this Court
in WP(C) No.1724/2015. The justification given in the said affidavit
was, however, not accepted by this Court, for which, the respondent
No. 2 filed a detailed affidavit on 05.11.2015, referring to the minutes
of the High Powered Committee held on 11.09.2015, wherein it was
decided that the Finance Department would come up with an
alternative option having regard to the special characteristics of
working of the employees of the Gauhati High Court (Principal Seat).
(u). It is relevant to take note of that on 04.04.2016, when the
said writ petition being WP(C)No.1724/2015 was taken up for
Page No.# 14/50
admission, this Court passed an order providing as an interim
measure for payment of additional Principal Seat Pay (for short, ‘the
PSP’) to the officers and staff of the Gauhati High Court (Principal
Seat) including such PSP while calculating the dearness allowance,
house rent allowances, pension etc. Paragraphs 29 and 30 of the said
order being relevant are reproduced hereinunder:
“29. Having regard to the discussions made above, as an interim measure,
respondent Nos.1, 2 and 3 are directed to give effect to the proposal of the Finance
Department, Govt. of Assam, with regard to payment of additional ‘Principal Seat Pay’
(PSP) to the officers and staff of the Gauhati High Court (Principal Seat) including such
PSP while calculating Dearness Allowance, House Rent Allowance, pension, etc. It shall
be given effect to from 01.01.2006 for the purpose of notional benefits and from
01.04.2008 for the purpose of calculating arrear pay. It is clarified that the above
payment would be in addition to such benefits which the officers and staff of the
Gauhati High Court (Principal Seat) may be entitled as granted to the State Government
employees under the 2010 Rules. Let Principal Seat Pay be paid as part of the current
salary with effect from 01.07.2016 and the arrears from 01.04.2008 to 30.06.2016 shall
be paid during the month of July, 2016.
30. In the meanwhile, Registrar General, Gauhati High Court, would continue the
deliberations through the High Powered Committee constituted following the meeting
between Hon’ble the Chief Justice (Acting) and Hon’ble Chief Minister, Assam, on
25.06.2015. Let the next meeting of the High Powered Committee be convened in the
first week of May, 2016, whereafter deliberations may be continued and outcome of
such deliberations shall be placed before the Court on the next date. ”
(v). It is further seen from the records that on the basis of the
order dated 04.04.2016, a Notification dated 16.08.2016 was issued
by the Judicial Department of the Government of Assam, thereby
Page No.# 15/50notifying that the Governor of Assam was pleased to approve
payment of PSP to the officers and staff of the Gauhati High Court
(Principal Seat) as an interim measure in addition to the existing pay
and allowances to be given notional effect from 01.01.2006 and
arrears w.e.f. 01.04.2008.
(w). On 09.12.2016, an additional affidavit was filed by the
respondent No.2 herein in the said writ proceedings to bring on record
the subsequent developments which took place during the pendency
of the case, more particularly, the minutes of the meeting of the High
Powered Committee held on 04.11.2016 and the letter dated
23.11.2016. Subsequent thereto, the said writ petition being
WP(C)No.1724/2015 was disposed of by the judgment and order
dated 06.04.2017. While disposing of the said writ petition, the
Coordinate Bench of this Court passed the following directions, which
are at paragraphs 20, 21 and 22 of the judgment and order dated
06.04.2017 and the same being relevant are reproduced hereinunder:
“20. Court has also noticed that there is a broad consensus at the Bar that the 2013
Rules, as framed, may have to be revisited in view of the subsequent developments as
notice above. Accordingly and in the light of the above, respondent No. 4 i.e., Registrar
General, Gauhati High Court is directed to place the matter before Hon’ble the Chief
Justice at an early date so that necessary modification may be made to the 2013 Rules
or altogether a new set of Rules may be framed having regard to the grant of Principal
Seat Pay to the officers and staff of the Gauhati High Court (Principal Seat) and taking
into consideration the revised pay scales provided to the State Government employees
as per recommendations of the 7th Assam Pay and Productivity Commission. Once the
Page No.# 16/50said exercise is completed at the level of the Gauhati High Court, the same may be
forwarded to the State Government which in turn shall take appropriate decision
thereon within a period of four months from the date of receipt of fresh proposal from
the Gauhati High Court having regard to the mandate of Article 229 of the Constitution
of India, as explained above.
21. Till finalization of the Rules as above, benefits extended to the State
Government employees by the Government of Assam in terms of the 7th Assam Pay and
Productivity Commission shall also be extended to the officers and staff of the Gauhati
High Court (Principal Seat).
Needless to say, the Principal Seat Pay granted to the officers and staff would be in
addition to the above.
22. Before parting with the record, Court hopes and trusts that the State
Government will rise to the occasion and do the needful so that the officers and staff of
the Gauhati High Court (Principal Seat) are given their due and that they do not feel
compelled to approach the Court again.”
(x). The petitioner Association who were the writ petitioners in
WP(C)No.1724/2015, thereafter filed an appeal being WA No.93/2018
before the learned Division Bench of this Court against the judgment
and order dated 06.04.2017 passed in WP(C)No.1724/2015 primarily
on the ground that the directions so issued by the learned Coordinate
Bench of this Court in its judgment and order dated 06.04.2017 did
not provide adequate relief. The said appeal was disposed of by an
order dated 30.03.2021, whereby the judgment and order passed by
Coordinate Bench of this Court dated 06.04.2017 was upheld and
directions were issued that the exercise as contemplated in the
judgment and order dated 06.04.2017 be carried out by the Registrar
General as expeditiously as possible. It was further observed that
Page No.# 17/50
once the Rules are forwarded to the Judicial Department for
necessary approval, steps in the light of Article 229 of the Constitution
of India be initiated expeditiously and a decision in the matter of
approval of the Rules be communicated to the High Court within 60
days from the date of receipt of the Rules.
(y). Inspite of the said directions, the Respondent State did not
take any steps in that regard, which resulted in filing of Contempt
Proceedings being Cont.Cas(C)No.158/2022, alleging willful and
deliberate violation of the order dated 30.03.2021. Upon receipt of the
said notice, in the contempt proceedings, the Government in the
Finance (Pay Research Unit), Department passed an speaking order
on 03.08.2022 whereby approval sought under the proviso to Article
229(2) of the Constitution in respect of the Draft Rules of 2013 was
declined on the ground of financial crunch of the Government, for
which, the contempt case was closed vide the order dated 25.08.2022
with liberty to assail the speaking order dated 03.08.2022.
(z). The petitioner Association being aggrieved challenged the
order dated 25.08.2022 in SLP (C) Diary No.41620/2022 before the
Supreme Court of India. Vide an order dated 27.02.2023, the said
Special Leave Petition was disposed of thereby granting liberty to the
petitioner Association to initiate appropriate proceedings and upon
such initiation, the Supreme Court requested this Court to decide the
matter expeditiously, preferably within six months from the date of
Page No.# 18/50
filing of the same. It is under such circumstances, the present petition
has been filed, seeking the relief as above-mentioned.
STAND OF THE STATE OF ASSAM AND THE JUSTIFICATION TO THE
ORDER DATED 03.08.2022
4. It is relevant to take note of that upon filing of the instant writ
petition, notice was issued vide order dated 19.05.2023. The record
reveals that respondent No.3 had filed an affidavit-in- opposition on
29.09.2023. In the said affidavit-in-opposition, it was stated that the
officers and staff of the Principal Seat of the Gauhati High Court draw
their salary and allowances from the Consolidated Fund of the State.
The pay and allowances of the officers and staff of the Principal Seat
of the Gauhati High Court vary from State to State keeping in mind
the resource availability of the concerned State.
5. It was further mentioned that the Outlying Benches of the
Gauhati High Court are the Itanagar Bench, Aizawl Bench and the
Kohima Bench respectively. The officers and staff of the Outlying
Benches at Naharlagun as well as the officers and staff of the
Government of Arunachal Pradesh draw pay and allowances as per
the Central Pay Scale, while the officers and staff of the other
Outlying benches as well as the officers and staff of the State
Government of Nagaland and Mizoram draw pay and allowances as
per the ROP Rules of the concerned State depending upon the
resource position of their respective State.
Page No.# 19/50
6. It was further mentioned that the respective State Governments
have adopted either the 7th Central Pay Commission or their own
ROP, but what was pertinent that the employees of the State of
Arunachal Pradesh also draw higher pay than drawn by officers and
employees of the Government of Assam.
7. It was also mentioned that as the officers and staff of the Gauhati
High Court have already drawn pay and allowances as per the ROP
Rules of 2010 plus PSP with effect from 01.01.2006 to 31.03.2016 and
are presently drawing revised pay as per ROP Rules 2017 plus PSP
which is more than the pay of the officers and employees of the State
Government who draw pay as per the ROP Rules of 2017 and in view
of the financial crunches, the Government of Assam in the Finance
(PRU) Department with the approval of the Cabinet disposed of the
proposal of the Draft Rules of 2013 with a decision to continue drawal
of pay and allowances as per the ROP Rules 2010 w.e.f. 01.01.2006 to
31.03.2016 and as per the ROP, Rules 2017 w.e.f. 01.04.2016
onwards with additional PSP already allowed instead of adopting the
Draft Rules of 2013 by the speaking order.
8. It is relevant to take note of that from the stand of the
Respondent-State of Assam as could be discerned from the affidavit-
in-opposition is that the approval to the Draft Rules were declined for
two reasons. First, on account of financial crunch of the State of
Assam and secondly, on the ground that the employees of the Gauhati
Page No.# 20/50
High Court (Principal Seat) are already enjoying the benefit of the
PSP, which is in addition to what employees of the State Government
are enjoying as per the ROP Rules of 2017.
AFFIDAVIT-IN-REPLY FILED BY THE PETITIONER ASSOCIATION
9. An affidavit-in-reply was filed on 18.06.2024, wherein the
petitioner Association apart from reiterating what has been stated in
the writ petition stated that the Government in the Finance
Department had never considered the matter in the proper
perspective, namely, the disparity in pay existing between the
Principal Seat and the Outlying Benches of the Gauhati High Court,
although employees, whether in the Principal Seat or the Outlying
Benches, perform similar work and are governed by common service
conditions framed under the authority of the Hon’ble Chief Justice.
10. It was further stated that the respondent authorities have
completely ignored the fact that no exercise for determination of
appropriate pay for employees of the Gauhati High Court (Principal
Seat) has ever been carried out as had been done by the State
Government and the Central Government regularly for its officers and
staff and unfortunately, the pay scales determined by the State
Government and the Central Government for its own employees are
simply borrowed or imposed upon the officers and staff of the Gauhati
High Court.
Page No.# 21/50
11. It was further mentioned that in terms with Article 229 of the
Constitution, the Hon’ble Chief Justice can consider the grievances of
the officers and staff and revise the pay and allowances of the officers
and staff of the Gauhati High Court at regular intervals and such
power is akin to the power of the State Government under Article 309
which is adhered to usually once every 10 years for revision of the
pay of its employees. It was stated that the quantum and burden of
work is the highest in the Principal Seat of the Gauhati High Court, in
view of the ever increasing litigation coupled with the fact that it is
the Principal Seat, which controls and coordinates with all Outlying
Benches, coordinates with the Government of India, State
Governments, Hon’ble Supreme Court and other High Courts,
Statutory bodies, etc.
12. It was further stated that the stand so taken by the Finance
Department for rejecting the Draft Rules of 2013 by solely relying
upon the pay scales applicable for the respective State Government
employees and the State Government which is funding the
expenditure, if accepted, then in that event the same would have the
potential of nullifying the prescription envisaged under Article 229 of
the Constitution insofar as the determination of pay and allowances of
the employees of the Gauhati High Court by the Hon’ble Chief Justice
is concerned. It was stated that this would result in an incongruous
situation, where neither the employees of the High Court would be
Page No.# 22/50
covered by the terms of reference of any Pay Commission nor any Pay
Rules framed by the Hon’ble Chief Justice would be acceptable to the
Government and thereby paving the way for Executive to be the
determiner of the service conditions and pay of the employees of the
High Court. It was further stated that the special nature of the work
done by the employees of the Gauhati High Court can only be
measured and appreciated by the Hon’ble Chief Justice and His
Colleagues and not the State Government.
ADDITIONAL AFFIDAVIT BY THE PETITIONER ASSOCIATION
13. It is further seen that on 24.04.2025, an additional affidavit was
filed by the petitioner Association, whereby the Revised Draft Rules of
2013 which was forwarded pursuant to the order dated 30.03.2021 in
WA No.93/2018 was brought on record.
SUBMISSIONS MADE ON BEHALF OF THE PARTIES
14. Mr. KN Choudhury, the learned Senior Counsel appearing on
behalf of the petitioner Association submitted that it is completely
inconceivable as to how the respondent State, more particularly, in
the Finance Department is addressing the issue, taking note of Article
229 of the Constitution. By referring to Article 229 of the Constitution,
the learned Senior counsel submitted that the conditions of service of
officers and servants of a High Court shall be such as may be
prescribed by the Rules made by the Chief Justice of the Court or by
Page No.# 23/50
some other Judges or Officer of the Court authorized by the Chief
Justice to make Rules for the purpose. He further stated that the
proviso added to Article 229(2) stipulates that insofar as when the
Rules relates to salaries, allowances, leave or pension, it shall require
the approval of the Governor of the State. The learned Senior
Counsel, therefore, submitted that when a high authority like the
Chief Justice of a High Court makes the Rules, the Government, in
normal circumstances ought to approve the said Rules. The learned
Senior Counsel submitted that if the Rules are not approved for good
reasons, it amounts to interference with the independence of the
Judiciary which is the basic structure of the Constitution.
15. By referring to the ROP Rules of 2010 as well as the ROP Rules
of 2017, the learned Senior Counsel submitted that those ROP Rules
of 2010 and ROP Rules of 2017 are not applicable to the officers and
staff of the Gauhati High Court in view of the constitutional mandate
contained in Article 229(2) of the Constitution and this very aspect
can be seen from the very Rules itself. The learned Senior Counsel
further submitted that what the State is doing is as a stop-gap
arrangement for the last more than two decades have allowed the
ROP Rules 2010 as well as the ROP Rules 2017 to the officers and
staff of the Gauhati High Court (Principal Seat). The learned Senior
Counsel submitted that financial crunch cannot be a ground for the
State not to accept the Rules so sent for approval of the Governor as
Page No.# 24/50
has been held by the Supreme Court in two decisions which are in the
case of all India Judges’ Association and others Vs. Union of India and
Others, reported in (1993) 4 SCC 288 as well as in the case of the
High Court Employees Welfare Association, Calcutta and others Vs.
the State of West Bengal and others reported in (2004) 1 SCC 334. He
submitted that the impugned order by which the approval to the
revised Draft Rules of 2013 was declined vide the order dated
03.08.2022 is contrary to the law laid down by the Supreme Court,
wherein it has been categorically held that financial crunch cannot be
a ground for not granting an approval to the Rules made by the Chief
Justice of a High Court in exercise of the powers under Article 229(2)
of the Constitution. He further referred to a recent order passed by
the Supreme Court in the case of the State Of Himachal Pradesh &
Anr. Vs. Himachal Pradesh High Court Non Gazetted
Employees/Official Employees Association & Anr. dated 14.02.2025 in
SLP(C)No.11322/2023 whereby the Supreme Court upheld the order
passed by the High Court of Himachal Pradesh, whereby there was a
direction to the Chief Justice of the High Court to constitute a
Committee consisting of at least two Judges of the said High Court
along with various officials from the State as well as two
representatives of the Association, who filed the writ petition. He,
therefore, submitted that in both the judgments i.e. in the case of the
High Court Employees Welfare Association, Calcutta (supra), as well as
Page No.# 25/50
in the Himachal Pradesh High Court, Non-Gazetted Employees Official
Employees Association (supra), the Supreme Court has been very
clear as to how the situation is required to be resolved. He, therefore,
submitted that the second relief so sought for in the petition is in that
respect.
16. Per contra, Mr. B. Gogoi, the learned counsel appearing on
behalf of the Finance Department of the Government of Assam relied
on the affidavit-in-opposition filed by the Finance Department and
supported the speaking order dated 03.08.2022 on the ground that if
the payment is to be given as per the Revised Draft Rules of 2013, the
State of Assam would have difficulty to make payment on account of
the resources of the State Government. He further submitted that the
employees of the Principal Seat of the Gauhati High Court are already
getting higher pay than the counterparts working in the State
Government on account of the PSP and further, the question of
equating the salary of the employees working in the Principal Seat of
the Gauhati High Court with the Outlying Benches of the Gauhati High
Court does not arise, taking into account that their salary is being
fixed as per the resources available with the concerned State. In this
context, he referred to the Judgment of the Supreme Court in the
case of High Court Employees Welfare Association, Calcutta and
Others Vs. the State of West Bengal and others reported in (2007) 3
SCC 637 and submitted that this judgment was in continuation to the
Page No.# 26/50
Judgment in the case of Court Employees Welfare Association,
Calcutta and others (supra). The judgment reported in (2007) 3 SCC
637 is hereinafter referred to as the High Court Employees Welfare
Association, Calcutta(2) (Supra) for the sake of convenience.
POINTS FOR CONSIDERATION
(i) Whether the order dated 03.08.2022 by which the approval
sought for was declined under the proviso to Article 229(2) of the
Constitution to the Revised Draft Rules, 2013 as amended in 2021
requires any interference?
(ii) What relief/reliefs the petitioners are entitled to?
ANALYSIS AND DETERMINATION
First Point for consideration:-
17. The narration made to the facts at paragraph No.3 herein above
would show that the impugned order dated 03.08.2022 was passed
pursuant to the directions passed by the learned Division Bench of
this Court dated 30.03.2021 in Writ Appeal No.93/2018 for
consideration on the aspect of approval of the Draft Rules of 2013. It
would be seen from the affidavit-in-opposition filed by the Finance
Department of the Government of Assam as well as the submission so
made by the learned counsel appearing on behalf of the Finance
Department that the reasons for declining the approval is on the
grounds that if the approval is given, there would be manifold
Page No.# 27/50increase in the total additional financial outlay and the financial crunch
of the State of Assam did not permit such additional expenditure. The
second reason so assigned is that the Cabinet in its meeting dated
05.07.2022 had expressed the feeling that the provision of PSP had
created disparity between the officers and staff of the Gauhati High
Court vis-a-vis the other employees and staff of the State Government
who also have been working hard and tirelessly. Apart from that, it
further transpires from the stand taken in the affidavit on the aspect
pertaining to the different pay scales in the Principal Seat and
Outlying Benches of the Gauhati High Court is on account of adoption
of different pay scales by the State Governments of the Outlying
Benches, vis-à-vis, the pay scale of the State of Assam, wherein the
Principal Seat is situated.
18. The question, therefore, arises as to whether the reasons so
assigned can be said to be justifiable reasons for declining the
approval in terms with the proviso to Article 229 of the Constitution.
19. The present case comes within the ambit of Clause (2) of Article
229 of the Constitution, which being relevant, is reproduced herein
under:-
“(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
Page No.# 28/50Provided 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.”
20. A perusal of the above provision of the Constitution would show
that by virtue of Article 229 of the Constitution of India, the Chief
Justice of the High Court has been empowered to prescribe by Rules
the conditions of service of officers and servants of the High Court.
However, such Rules shall be subject to:(i) the provision of any law
made by the Legislature of the State; and (ii) the approval of the
Governor of the State so far as it relates to salary, allowances, leave
or pension. Therefore, the mandate of Article 229(2) of the
Constitution makes it clear that it is only the Chief Justice of the High
Court, who would regulate the conditions of service of the employees
of the High Court including on the aspect pertaining to salary,
allowances, leave or pension. The natural corollary, therefore, is that
both the Central Government as well as the State Government would
not have the power to regulate the conditions of service of the
employees of the High Court.
21. At this stage, it is relevant to take note of that Article 229(2) of
the Constitution is similarly worded to Article 146(2) of the
Constitution. The difference being that Article 146 of the Constitution
is in relation to officers and servants of the Supreme Court for which
the power has been conferred upon the Chief Justice of India to make
Page No.# 29/50
Rules relating to conditions of service of officers and servants of the
Supreme Court and the said Rules when it relates to salaries,
allowances, leave or pension would require the approval of the
President. The question, however, arises as to why the Constitution
has specifically empowered with the Chief Justice of India insofar as,
the Supreme Court is concerned and the Chief Justices of the High
Courts insofar as, the High Courts are concerned to make Rules
prescribing the conditions of service of officers and servants of the
Supreme Court or the High Courts as the case may be which would
also include Rules relating to salaries, allowances, leave or pension
etc. The Supreme Court in the case of the State of Rajasthan and
Others vs. Ramesh Chandra Mundra and Others , reported in (2020) 20
SCC 163 had observed that the correct Constitutional approach in
respect to the understanding of Article 229(2) and Article 146(2) is
one of comity between different institutions working under the
Constitution. The emphasis is not on supremacy of one institution or
demarcating the boundary of the other. It is about ensuring
institutional integrity of one while respecting the functional domain of
the other. The Supreme Court further observed that these provisions
are meant to facilitate a dialogue of governance between high
Constitutional Functionaries. The Supreme Court further, in the said
judgment, took into consideration that the independence of judiciary
is a part of the basic structure of the Constitution. The Supreme Court
Page No.# 30/50
observed that the Constitution had insulated the judiciary from
outside influences both from the Legislature and the Executive. Not
only the Supreme Court, the High Courts, but also the Subordinate
Courts have been insulated. The Supreme Court in the said judgment
observed that “An integral part of “the 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”. In this regard, this Court finds it relevant to
take note of paragraph Nos.22 & 27 of the said judgment which is
reproduced herein under:-
“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.
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
Page No.# 31/50
“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.”
22. Therefore, from the above, it is clear that independence of the
judiciary, which is one of the basic feature of the Constitution, can be
attained if there is an institutional independence which would include
the financial freedom or autonomy which the judiciary must possess
and enjoy. The provisions of Article 202(3), 204(2), as well as 229(3)
of the Constitution are pointers towards the financial freedom or
autonomy guaranteed by the Constitution of India lending support to
the independence of the judiciary which is a basic feature of the
Constitution.
23. Before further dealing with the Article 229(2) of the Constitution,
this Court finds it relevant to take note of some of the Articles of the
Constitution which would show the uniqueness of the Gauhati High
Court. Chapter III of Part VI of the Constitution specifically refers to
the State Legislature. In terms with Article 168 of the Constitution, for
every State, there shall be a Legislature which shall consist of the
Governor and one or two Houses of the Legislature of the State. The
Constitution does not perceive that there shall be one Legislature for
two or more States. On the other hand, Chapter V of Part VI of the
Constitution deals with the High Courts in the States. Though Article
214 of the Constitution stipulates that there shall be a High Court for
Page No.# 32/50
each State, but a reading of Article 231 of the Constitution would
show that notwithstanding anything contained in the preceding
provisions of Chapter V of Part VI of the Constitution, the Parliament
by law can establish a common High Court for two or more States and
a Union Territory. This aspect is relevant taking into consideration that
vide the Assam High Court Order, 1948, the High Court of Assam was
established on 05.04.1948 thereby empowering the High Court of
Assam to exercise jurisdiction in respect to the territories which were
included within the Province of Assam. Subsequently, in the year
1962, the Parliament by an Act, namely, the State of Nagaland Act,
1962 which led to the formation of the State of Nagaland by law
ordained that there shall be a common High Court called “the High
Court of Assam and Nagaland”. Subsequent thereto, in terms with the
North-Eastern Areas (Reorganisation) Act, 1971, the High Court of
Assam and Nagaland ceased to function and a common High Court for
the States of Assam, Nagaland, Meghalaya, Manipur and Tripura was
ordained to be known as the Gauhati High Court. Furthermore, in
terms with the State of Arunachal Pradesh Act, 1986, and the State of
Mizoram Act, 1986, a common High Court called the Gauhati High
Court was established, which was the common High Court for the
States of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and
Arunachal Pradesh. It is also relevant to take note of that vide
amendments made to the North-Eastern Areas (Reorganisation) Act,
Page No.# 33/50
1971 by the North Eastern Areas (Reorganisation) and Other Related
Laws (Amendment) Act, 2012, separate High Courts for the States of
Meghalaya, Manipur, Tripura were established, and at present, the
Gauhati High Court is the High Court of the States of Assam,
Nagaland, Mizoram and Arunachal Pradesh.
24. The Chief Justice of the Gauhati High Court, therefore, is
empowered under Article 229 of the Constitution to prescribe the
conditions of service of the officers and servants of the Gauhati High
Court by Rules made by the Chief Justice of the Gauhati High Court
which would also include conditions of service relating to salaries,
allowances, leave or pension. It is apposite herein to observe that
under the authority of the Chief Justice, the Gauhati High Court
(Appointment, Conditions of Service and Conduct) Rules, 1967 (for
short, ‘the Rules of 1967’) were made which has been amended from
time to time. The Rules of 1967 deal with the service conditions of the
officers and servants of the Gauhati High Court which includes the
Principal Seat at Guwahati as well as the Outlying Permanent Benches
at Naharlagun, Aizawl and Kohima. It is, however, relevant to take
note of that the Rules of 1967 do not deal with the salaries,
allowances, leave or pension of the officers and servants of the
Gauhati High Court. It is in that context, the Draft Rules of 2013 were
made. The chronology of the events as narrated in Paragraph No.3 of
the instant order would clearly show that initiation was taken till steps
Page No.# 34/50
were taken for drafting of the Pay Rules with the perspective of
providing a uniform, better and higher pay scale for the employees of
the Gauhati High Court which includes the Principal Seat and the
Outlying Benches.
25. This Court at this stage finds it relevant to take note of the
judgment of the Supreme Court in the case of State of Maharashtra
vs. Association of Court Stenos, P.A., P.S, and Another , reported in
(2002) 2 SCC 141. The Supreme Court in the said judgment opined
that a plain reading of Article 229(2) of the Constitution would show
that the Chief Justice is the sole authority for fixing the salaries etc. of
the employees of the High Court subject to the Rules made under the
said Article, i.e. such Rules shall be subject to the provision of any law
made by the Legislature of the State and in view of the proviso to
Sub-Article (2) of Article 229 of the Constitution, the Rule relating to
salaries, allowances, leave or pension of the employees of the High
Court would require the approval of the Governor before the same
can be enforced. The Supreme Court further observed that this
approval of the Governor which is a condition precedent to the validity
of the Rules made by the Chief Justice in so far as it relates to fixation
of salaries, allowances, leave or pension is not merely on his
discretion but being advised by the Government. It was categorically
observed that apart from any power conferred by the Rules framed
under Article 229 of the Constitution, the Government cannot fix the
Page No.# 35/50
salary or authorize any particular pay scale of an employee of the
High Court. The Supreme Court also observed that notwithstanding
the Constitutional provision that the Rules framed by the Chief Justice
of the High Court so far as they relate to salaries and other
emoluments are concerned, require the prior approval of the
Governor, but it is always expected that when the Chief Justice of a
High Court makes Rules, providing a particular pay scale for its
employees, the same should be ordinarily approved by the Governor
unless there is any justifiable reason not to approve the same.
Paragraph No.5 of the said judgment being pertinent to the instant
dispute is reproduced hereinunder:-
“5. Under the Constitution of India, appointment of officers and servants of a High
Court is required to be made by the Chief Justice of the High Court or such other Judge
or officer of the Court as the Chief Justice directs. The conditions of service of such
officers and servants of the High Court could be governed by a set of rules made by the
Chief Justice of the High Court and even the salaries and allowances, leave or pension
of such officers could be determined by a set of rules to be framed by the Chief Justice,
but so far as it relates to salary and allowances etc. it requires approval of the Governor
of the State. This is apparent from Article 229 of the Constitution. On a plain reading of
Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the
salaries etc. of the employees of the High Court, subject to the Rules made under the
said article. Needless to mention, rules made by the Chief Justice will be subject to the
provisions of any law made by the legislature of the State. In view of proviso to sub-
article (2) of Article 229, any rule relating to the salaries, allowances, leave or pension
of the employees of the High Court would require the approval of the Governor, before
the same can be enforced. The approval of the Governor, therefore, is a condition
Page No.# 36/50precedent to the validity of the rules made by the Chief Justice and the so-called
approval of the Governor is not on his discretion, but being advised by the Government.
It would, therefore, be logical to hold that apart from any power conferred by the Rules
framed under Article 229, the Government cannot fix the salary or authorise any
particular pay scale of an employee of the High Court. It is not the case of the
employees that the Chief Justice made any rules, providing a particular pay scale for the
employees of the Court, in accordance with the constitutional provisions and that has
not been accepted by the Governor. In the aforesaid premises, it requires consideration
as to whether the High Court in its discretionary jurisdiction under Article 226 of the
Constitution, can itself examine the nature of work discharged by its employees and
issue a mandamus, directing a particular pay scale to be given to such employees. In
the judgment under challenge, the Court appears to have applied the principle of “equal
pay for equal work” and on an evaluation of the nature of duties discharged by the
Court Stenographers, Personal Assistants and Personal Secretaries, has issued the
impugned directions. In Supreme Court Employees’ Welfare Assn. v. Union of India this
Court has considered the powers of the Chief Justice of India in relation to the
employees of the Supreme Court in the matter of laying down the service conditions of
the employees of the Court, including the grant of pay scale and observed that the Chief
Justice of India should frame rules after taking into consideration all relevant factors
including the recommendation of the Pay Commission and submit the same to the
President of India for his approval. What has been stated in the aforesaid judgment in
relation to the Chief Justice of India vis-à-vis the employees of the Supreme Court,
should equally apply to the Chief Justice of the High Court vis-à-vis the employees of
the High Court. Needless to mention, notwithstanding the constitutional provision that
the rules framed by the Chief Justice of a High Court, so far as they relate to salaries
and other emoluments are concerned, require the prior approval of the Governor. It is
always expected that when the Chief Justice of a High Court makes a rule, providing a
particular pay scale for its employees, the same should be ordinarily approved by the
Governor, unless there is any justifiable reason, not to approve the same. The aforesaid
assumption is on the basis that a high functionary like the Chief Justice, before framing
any rules in relation to the service conditions of the employees of the Court and
Page No.# 37/50granting any pay scale for them is expected to consider all relevant factors and fixation
is made, not on any arbitrary basis. It is important to notice that in the aforesaid
judgment, the observation has been made:
“It is not the business of this Court to fix the pay scales of the employees of
any institution in exercise of its jurisdiction under Article 32 of the Constitution. If
there be violation of any fundamental right by virtue of any order or judgment, this
Court can strike down the same but, surely, it is not within the province of this
Court to fix the scale of pay of any employee in exercise of its jurisdiction under
Article 32 of the Constitution.”
The Court also expressed the view in the aforesaid case that the Chief Justice of
India is the appropriate authority to consider the question as to the distinctive nature
and personality of the employees of the Supreme Court and before laying down the pay
scales of the employees, it may be necessary to ascertain the job contents of various
categories of employees and nature of duties which are performed by them. Further, at
the time of preparing the rules for prescribing the conditions of service, including the
fixation of the pay scales, the Chief Justice of India will consider the representations and
suggestions of the different categories of employees of the Supreme Court, also keeping
in view the financial liability of the Government. In view of the aforesaid decision of this
Court, it is difficult for us to sustain the impugned judgment, whereunder the High
Court in exercise of its jurisdiction under Article 226, has issued the mandamus,
directing a particular pay scale to be given to the Court Stenographers, Personal
Assistants and Personal Secretaries attached to the Hon’ble Judges of the Court. In All
India Judges’ Assn. v. Union of India after a thorough analysis of Articles 233 to 235 of
the Constitution, this Court no doubt has issued certain directions, ameliorating the
service conditions of the Presiding Officers of the subordinate courts and also dealt with
the appropriate pay scales for such Presiding Officers, but ultimately did not propose to
finally examine the propriety of the pay scale nor directed that any particular pay scale
should be fixed. It is no doubt true that the doctrine of “equal pay for equal work” is an
equitable principle but it would not be appropriate for the High Court in exercise of its
discretionary jurisdiction under Article 226 to examine the nature of work discharged by
Page No.# 38/50
the staff attached to the Hon’ble Judges of the Court and direct grant of any particular
pay scale to such employees, as that would be a matter for the learned Chief Justice
within his jurisdiction under Article 229(2) of the Constitution. We, however, hasten to
add that this may not be construed as total ouster of jurisdiction of the High Court
under Article 226 to examine the nature of duties of an employee and apply the
principle of “equal pay for equal work” in an appropriate case.”
26. The above also deals with what the Chief Justice of the High Court
is required to do while making Rules relating to fixation of salary and
emoluments of the officers and servants of the High Court. The Chief
Justice is required to consider the distinctive nature and personality of
the employees of the High Court. The Chief Justice as per the
observations of the Supreme Court is required to ascertain the job
contents of various categories of employees and the nature of duties
which are required to be performed by them. Further, the Chief
Justice has to also take into consideration the representations and
suggestions of the different categories of employees keeping in view
the financial capabilities of the State. In short, what the Pay
Commissions under the Central Government or the State Governments
are required to take into consideration, the Chief Justice of the High
Court is required to carry out a similar exercise insofar as, the
employees of the High Court are concerned. It may be apposite to
observe that the Pay Commissions, amongst others, are required to
take into consideration factors viz: inflation, economic conditions, the
Page No.# 39/50
cost of living, prevailing market rates etc.
27. All the above aspects as stated can only be taken into
consideration by the Chief Justice of the High Court while fixing the
pay and allowances of the employees of the High Court. It is also
pertinent to observe that insofar as, the State Governments and
Central Government are concerned, periodical revisions have taken
place in intervals of 10 years. The employees of the State Government
and the Central Government have rights to submit representations as
well as suggestions and based upon representations and suggestions,
the State Government as well as the Central Government makes
necessary changes taking into account the grievances. For example:
for the State of Assam, the Assam Services (Revision of Pay) Rules,
2017 was made applicable on the basis of a Notification dated
17.03.2017 giving effect from 01.04.2016. On the basis of the
representations and suggestions submitted by the State Government
employees, modifications were made on the basis of anomalies vide a
Notification dated 09.03.2019.
28. However, in the case of the employees of the Gauhati High
Court, in view of Article 229(2) of the Constitution, neither the Central
Pay Commission nor the State Pay Commission can decide on their
entitlements or even take into account the representations or
suggestions. This is so because the Constitution of India solely vests
the authority insofar as the Gauhati High Court is concerned upon the
Page No.# 40/50
Chief Justice of the Gauhati High Court who would be required to
form a Special Pay Commission for the employees of the Gauhati High
Court. Similarly, the conditions of service relating to leave, pension,
allowances etc., are required to be regulated only by the Chief Justice
or His delegates by making appropriate Rules.
29. It is disheartening to take note of that even after a passage of 77
years from the date of establishment of the Gauhati High Court, the
conditions of service of the employees of the Gauhati High Court in
respect to pay, leave, pension, allowances are yet to see the light of
the day inspite of the clear mandate of Article 229(2) of the
Constitution. The employees of the Gauhati High Court have been
given the pay and the emoluments as a stop-gap arrangement by the
State Governments of Assam, Nagaland, Mizoram and Arunachal
Pradesh thereby extending the applicable Pay Rules. It is not out of
place to mention that in respect to the employees of the Gauhati High
Court inspite of the Draft Pay Rules being made in the year 2013, the
same is yet to see the light at end of the tunnel.
30. Now, let this Court take note of the reasons so assigned by the
Finance Department for declining the approval. The first reason is
financial crunch. This Court finds it relevant at this stage to take note
of the judgment of the Supreme Court in the case of the High Court
Employees Welfare Association, Calcutta and Others (1) (supra),
wherein the Supreme Court did not agree that financial burden would
Page No.# 41/50
be a justifiable reason to withhold the approval. The Supreme Court
further taking into account that there being a necessity of a meeting
point between the Calcutta High Court and the State Government,
issued directions for formation of a Special Pay Commission consisting
of Judges and Administrators to be constituted by the Chief Justice in
consultation with the Government to make a report and on the basis
of such report, it was observed that the Chief Justice and the
Government shall thrash out the problems and work out of an
appropriate formula. Paragraph Nos.8 to 11 of the said judgment is
reproduced herein under:-
“8. The purpose and scope of Article 229(2) has been discussed and explicated by
this Court in a number of cases. In M. Gurumoorthy v. Accountant General, Assam &
Nagaland it was held that the Governor’s approval must be sought because the finances
have to be provided by the Government and to the extent there is any involvement of
expenses, the Government has to approve of it. Therefore, the Governor’s approval is
an exception to the power of the Chief Justice contemplated by Article 229. It was
further held in State of A.P. v. T. Gopalakrishnan Murthi that the grant of approval by the
Governor under Article 229 is not a mere formality.
9. In the case of Supreme Court Employees’ Welfare Assn. v. Union of India it
was held that:
Not only does the Chief Justice have to apply his mind to the framing of the
rules but also the Government has to apply its mind to the question of approval of
the rules framed by the Chief Justice. This condition should be fulfilled and should
appear to have been so fulfilled from the records of both the Government and the
Chief Justice. The application of mind will include exchange of thoughts and views
between the Government and the Chief Justice and it is highly desirable that there
should be consensus between the two. The rules framed by a very high dignitary
Page No.# 42/50such as the Chief Justice of India should be looked upon with respect and unless
there is very good reason not to grant approval, the approval should always be
granted.
10. In the instant case, the primary reason for refusal of grant of approval by the
Governor has been the Government’s claim of inability to bear the financial burden
imposed by the Draft Rules. The Governor, under Article 229(2) has the power to refuse
grant of approval, provided there is “very good reason” for the same. It cannot be said
that there has been no exchange of views between the Chief Justice and the State
Government. The correspondence between the State Government and the Chief Justice
commencing from 21-11-1998 reveals sufficient degree of exchange of ideas. During
the negotiation between the Government and the Chief Justice, both sides expressed
their respective views on the matter. However, there is no meeting point.
11. The Government will have to bear in mind the special nature of the work done
in the High Court which the Chief Justice and his colleagues alone could really
appreciate. If the Government does not desire to meet the needs of the High Court, the
administration of the High Court will face severe crisis. Hence, a Special Pay Commission
consisting of Judges and Administrators shall be constituted by the Chief Justice in
consultation with the Government to make a report and on receipt of such report, the
Chief Justice and the Government shall thrash out the problem and work out an
appropriate formula in regard to pay scales to be fixed for the High Court employees.
Let such action be taken within six months from today.”
31. This Court further finds it relevant to take note of the judgment
referred to by the learned counsel appearing on behalf of the Finance
Department, i.e. the High Court Employees Welfare Association,
Calcutta (2) (supra). A perusal of the judgment, i.e. the High Court
Employees Welfare Association, Calcutta and Others (2) (supra) would
show that the said judgment was rendered pursuant to the directions
Page No.# 43/50
passed by the Supreme Court in High Court Employees Welfare
Association, Calcutta and Others (1) (supra). It appears therefrom that
pursuant to the Special Pay Commission so constituted on the basis of
the order passed in High Court Employees Welfare Association,
Calcutta and Others (1) (supra), a report was submitted and
thereupon there was an agreement reached in between the State
Government and the Chief Justice of the Calcutta High Court and on
the basis thereof, the second paragraph of Rule 4 was deleted upon a
consensus arrived at. It is under such circumstances that the
judgment in the High Court Employees Welfare Association, Calcutta
and Others (2) (supra) was rendered by the Supreme Court wherein
the Supreme Court observed that the second paragraph of Rule 4 of
the modified Draft Pay Rules was not in consonance with what had
been agreed upon by the State Government and the Chief Justice and
therefore was required to be deleted. It is further seen that the
Supreme Court in the said judgment did not issue any mandamus as
the State Government had agreed and had given assurance to the
approval of the modified Draft Pay Rules excluding the second part of
Rule 4. In the opinion of this Court, a similar exercise is required to be
carried by the Chief Justice of the Gauhati High Court.
32. This Court further finds it relevant to observe that the reason so
assigned in the impugned order dated 03.08.2022 is mainly on the
question of financial crunch. The Finance Department of the
Page No.# 44/50
Government of Assam had only taken into consideration that it would
lead to additional financial outlay which the State Government would
not like to incur. The Finance Department, however, did not consider
that the Chief Justice of the Gauhati High Court had formulated the
Draft Rules by taking into consideration various relevant factors.
These relevant factors, which formed the basis of the Draft Rules as
well as that the Chief Justice is the sole authority to assess the
relevant factors were not taken into consideration. At this stage, this
Court would again reiterate the observations made by the Supreme
Court in the case of Ramesh Chandra Mundra (supra) wherein the
Supreme Court observed that adequate budgeting is an integral part
of judicial functioning which touches on the aspect of judicial
independence.
33. The impugned order dated 03.08.2022 further do not address the
issue as to why there should not be a Uniform Pay Scale for all the
employees of the Gauhati High Court, both in the Principal Seat as
well as its Outlying Benches taking into account the special
characteristics of the work performed by the employees of the
Gauhati High Court. Merely on the ground that a Principal Seat Pay
(PSP) had been paid to the employees of the Gauhati High Court
(Principal Seat), that too, with effect from 01.01.2006 cannot be a
ground to decline the approval without arriving at a finding that with
the Principal Seat Pay (PSP) along with the Pay as per the Assam
Page No.# 45/50
Services (Revision of Pay) Rules, 2017 was adequate for the
employees of the Gauhati High Court even if the work performed were
different from the employees of the State Government. In fact, in the
opinion of this Court, the State Government cannot have a say on the
special characteristics of the work performed by the employees of the
Gauhati High Court as it is only the Chief Justice and His companion
Justices would have a better knowledge of the work performed by the
employees of the Gauhati High Court. In that view of the matter, the
impugned order dated 03.08.2022 is required to be interfered with.
34. This Court further takes note of the order passed by the Supreme
Court in case of Himachal Pradesh High Court Non-Gazetted
Employees/Officials Employees Association and Another (supra)
wherein the judgment of the High Court of the Himachal Pradesh was
upheld wherein at paragraph 94 of the said judgment of the High
Court, there was a direction for formation of a Committee. Paragraph
94 of the judgment of the learned Himachal Pradesh High Court is
reproduced hereinunder:
“94. In light of the aforesaid discussion, we deem it appropriate to direct that this
judgment be placed before Hon’ble the Chief Justice of this High Court to constitute a
Committee consisting of at least two Hon’ble Judges of this High Court, Additional Chief
Secretary (Home), Additional Chief Secretary (Finance) to the Government of Himachal
Pradesh, Principal Secretary, Law, to the Government of Himachal Pradesh or any other
person, Registrar General, Registrar (Vigilance) and Registrar (Judicial) of this High
Court and two representatives of the Petitioner-Association. The Hon’ble Committee
Page No.# 46/50shall go into the details with respect to grant of hike as per prayer clause of the petition
keeping in view the nature of duties and responsibilities discharged by the staff working
under various cadres in the adjoining High Courts of Punjab and Haryana and Delhi
before recommending the pay pattern as was done by the Division Bench of the Madras
High Court in R.N.Arul Jothi’s case (supra). Since, Article 229 of the Constitution of India
contemplates framing of rules for salary, allowance, leave or pension etc., Hon’ble the
Chief Justice may empower the Hon’ble Committee to frame the appropriate rules for
the aforesaid purpose for the future. The above exercise may be completed preferably
within a period of four months. Ordered accordingly.”
35. This Court also cannot be unmindful of the fact that the
jurisdiction under Article 226 of the Constitution in the matters of the
present nature is very limited. The jurisdiction so conferred in matters
of the present kind has to be delicately balanced by keeping in mind
the authority of the Chief Justice under Article 229(2) of the
Constitution and equally the right of the State Governments to have
justifiable reasons. This Court, therefore, is to point out the defects
which had led to the declining of the approval and pass appropriate
orders so that the High Court as well as the State Governments can
act together in making the Rules governing the employees of the
Gauhati High Court in respect to pay, leave, pension, allowances etc.
36. This Court further finds it relevant to take note of the Draft Rules
of 2013. The said Draft Rules of 2013 only relates to the Principal Seat
and not the outlying Benches. This appears to be on account of the
litigations filed by the Petitioner Association herein challenging the
action of the State Government of Assam. At the cost of repetition, it
Page No.# 47/50
is observed that the Gauhati High Court is the High Court of the four
States i.e. Assam, Nagaland, Mizoram and Arunachal Pradesh. The
Constitution provides that it is only the Chief Justice who has to frame
the Rules pertaining to the condition of services of the employees of
the High Court and therefore the Pay Rules so drafted is required to
be made in such a manner that it applies to the Principal Seat as well
as the Outlying Benches else it may result in disparity amongst the
employees of the Gauhati High Court. Additionally, confining the Rules
only to the Principal Seat and not having Rules applicable to the
Outlying Benches may appear that the power under Article 229(2) of
the Constitution which is specifically reserved only for Chief Justice to
exercise is yielded to the State Governments of Arunachal Pradesh,
Mizoram & Nagaland. In fact, the process as delineated in Paragraph 3
hereinabove was initiated keeping that aspect in mind that the Rules
would be applicable both for the Principal seat and the Outlying
Benches of the Gauhati High Court. However, it further appears that
as the Petitioner Association took active interest and the employees
Association/representatives of the Outlying Benches remained silent,
the Draft Pay Rules remained confined only to the Principal Seat.
Taking into account the settled position of law and Article 229(2) of
the Constitution, it is the opinion of this Court that there is a
requirement of Rules relating to pay, pension, leave, allowances etc.,
for the employees of the Gauhati High Court which should not only be
Page No.# 48/50
confined to the Principal Seat, but also applicable to the employees of
the Outlying Benches. The above view of this Court is further
strengthened by the fact that the Rules of 1967 applies to all
employees of the Gauhati High Court whether they are employed in
the Principal Seat or the Outlying Benches.
SECOND POINT FOR CONSIDERATION
37. Accordingly, this Court deems it proper to pass the following
observation(s) and direction(s):
(i) The impugned order dated 03.08.2022 whereby the
approval to the Draft Rules, 2013 in terms with the proviso to
Article 229(2) of the Constitution was declined is not in
consonance with the well settled principles of law as discussed
hereinabove for which the same is set aside and quashed.
(ii) The Hon’ble Chief Justice of the Gauhati High Court on the
administrative side is required to constitute a Committee taking
into account the observations made by the Supreme Court in the
case of High Court Employees Welfare Association, Calcutta (1)
(supra) as well as paragraph 94 of the judgment of the learned
High Court of Himachal Pradesh as reproduced in Himachal
Pradesh High Court Non-Gazetted Employees/Officials Employees
Association and Another (supra) and on the basis thereof, the saidCommittee so formed be directed to submit a Report to the
Page No.# 49/50Hon’ble Chief Justice. It is observed that the Committee should
have representation of the State Governments of Assam,
Nagaland, Mizoram and Arunachal Pradesh as well as
representatives from the Employees of the Principal Seat and the
Outlying Benches. The Hon’ble Chief Justice on the basis of the
said Report, if required, on the administrative side hold
discussions with the four State Governments and thrash out any
issue in respect to the approval of the Rules governing the service
conditions in respect to pay, leave, pension, allowances so made
by the Hon’ble Chief Justice under Article 229(2) of the
Constitution.
(iii). The Registry is directed to place the present order before
the Hon’ble Chief Justice, Gauhati High Court for doing the
needful.
(iv) Taking into account that the Rules relating to the
conditions of service pertaining to pay, leave, pension, allowances
would have an impact upon the States of Nagaland, Mizoram and
Arunachal Pradesh as well as the employees’
Association/representatives who represent the interest of the
employees of the Outlying Benches of the Gauhati High Court, this
Court directs the petitioner Association to file appropriate
applications for impleading them as parties in the instant writ
proceedings.
Page No.# 50/50
(v). The present writ petition is kept pending and the Registrar
General of the Gauhati High Court is directed to submit a Report
as to what had transpired to the observation(s) and direction(s)
mentioned in paragraph (ii) hereinabove. The said Report be
placed before this Court on or before 18.12.2025.
38. List accordingly.
JUDGE
Comparing Assistant