Jammu & Kashmir High Court – Srinagar Bench
Latief Hussain Khan And Ors vs Ut Of Jk And Others on 17 December, 2024
Sr. No. 37
Supplementary List I
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP(C) 778/2022
CM 1928/2022
CM 7683/2023
Latief Hussain Khan and Ors. ...Petitioner(s)/Appellant(s)
Through: Mr. Syed Faisal Qadri, Sr. Advocate with
Mr. Sikander Hayat Khan, Advocate
Vs.
UT of JK and others ...Respondent(s)
Through: Mr. Abdul Rashid Malik, Sr. AAG with
Mr. Mohd Younis Hafiz, Assisting Counsel for 1 & 3
Mr. Shah Amir, Advocate with
Mr. Aatir Kawoosa, Advocate for 2
CORAM:
HON'BLE MR. JUSTICE ATUL SREEDHARAN, JUDGE
HON'BLE MR. JUSTICE MOHD YOUSUF WANI, JUDGE
ORDER
17.12.2024
Per Atul Sreedharan-J (Oral):
1. Today, arguments have been forwarded with regard to the manner in
which the Hon’ble Lieutenant Governor of the UT of J&K has dealt
with the order dated 04.03.2024 passed by this Court. The said order
reads as follows:
“After having heard all the parties through their
learned counsels, we requested the learned Advocate
General to place the matter before the Hon’ble Lieutenant
Government in accordance with Article 229 of the
Constitution so that the same may be decided strictly in
accordance with Article 229 and the decision thereof be
placed before this Court.”
2. Pursuant to the said order, the Hon’ble Lieutenant Governor issued
order bearing No. 14111-JK (LD) of 2024, dated 06.08.2024, whereby
the recommendation of the Lord Chief Justice under Article 229 to
consider the enhancement of salaries and emoluments of post of
Restorers to bring them at par with Restorers of other Courts like Delhi
and Punjab & Haryana High Courts, was declined.
3. At the very outset, learned counsel for the petitioners have withdrawn
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their response to the decision of the Lt. Governor dated 10.12.2024.
Instead Ld. Counsel for the Petitioners questioned the aforementioned
order passed by the Hon’ble Lieutenant Governor, through the Law
Secretary, by which the said proposal put forth by the Lord Chief
Justice of Article 229, was rejected.
4. Learned counsel for the petitioners has argued forcefully that the said
order must be set aside and the matter remanded to the office of the
Hon’ble Lieutenant Governor as it is not in accordance with the
constitutional spirit and mandate of Article 229, which according to the
learned senior counsel, is an exclusive power vested with the Lord Chief
Justice of the High Court or to such judge or judges that he may
delegate it to. The involvement of the Hon’ble Lieutenant Governor’s
office is only in a situation where a particular proposal involves
financial implications which have to be borne by the State
Government/Union Territory Government.
5. The attention of this Court has been drawn to the order dated
06.08.2024 which, as already stated hereinabove, was passed pursuant
to the order dated 04.03.2024, which is also extracted hereinabove. The
considerations for rejecting the proposal commenced from page 3 of the
order dated 06.08.2024. The considerations leading to the rejection of
the proposal took into account facets like eligibility for the post of
Restorers, their qualification, the nature of duties performed by the
Restorers, and how the position of Restorers is akin to Multi-Tasking
Staff (MTS) in the Government Departments and the relative pay scale
levels existing between the Restorers today and their counterparts in the
Union Territory Government and how the proposal to enhance the pay
scale of the petitioners/Restorers would unsettle the parity existing
between the class of employees performing similar functions in the
Union Territory of Jammu & Kashmir and those working in the
establishment of the High Court. It is further the opinion of the Hon’ble
Lieutenant Governor that given the parity of the post of Restorers and
that of the Multi-Tasking Staff (MTS), if higher pay scales are granted
to the Restorers, the same “will have huge financial implications”. In
view of the precedential nature of the proposal, or in other words that
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similar enhancement of pay scale may also be demanded by the Multi-
Tasking Staff (MTS) in the State Government.
6. It has also been considered that the posts of Restorers do not exist in the
High Courts of Uttar Pradesh and Uttarakhand and therefore, there is no
uniformity in pay scales of these posts. The Hon’ble Lieutenant
Governor is further of the opinion that the pay scales have to be
decided, based on experience, educational qualification and the mode of
recruitment of such posts. The Hon’ble Lieutenant Governor has also
held that there is no comparison of experience and educational
qualification among these posts in different High Courts and, therefore,
the issue of parity associated with the pay scales does not arise.
7. Lastly, the Hon’ble Lieutenant Governor of UT of J&K has referred to
the judgment of the Hon’ble Supreme Court in case Civil Appeal No.
23-24 of 2024, titled “State of Uttar Pradesh Vs. Association of
Retired Supreme Court and High Court Judges, Allahabad” [(2024)
3 SCC 1]. However, learned senior counsel for the petitioners has
argued that the Hon’ble Lieutenant Governor has totally misconstrued
the ambit of scope of Article 229 by passing the aforementioned order,
thereby encroaching upon the exclusive domain of the Lord Chief
Justice of this Court.
8. Referring to Article 229 of the Constitution, the learned senior counsel
for the petitioners has argued that the powers under Article 229 vest
exclusively with the Lord Chief Justice of the High Court or to such
judge/judges that he may be delegate it to. The consultative process with
the Hon’ble Lieutenant Governor of UT of J&K only arises where there
are financial implications in any policy that is sought to be enforced.
However, if the aspect of the financial implications does not arise,
Article 229 does not require any consultative process with the Hon’ble
Lieutenant Governor.
9. Learned counsel for the respondent-UT, on the other hand has stated
that the order passed by the Hon’ble Lieutenant Governor pursuant to
the directions given by this Court vide order dated 04.03.2024, is in the
spirit of the constitutional mandate where the Governor has exercised
his exclusive discretion with regard to the financial requirements of this
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Court, where it would have to pay and enhance salary and emoluments
to the Restorers if the proposal is accepted by the Hon’ble Lieutenant
Governor.
10. He has further submitted that the financial matters are exclusively
within the domain of the Union Territory headed by the Hon’ble
Lieutenant Governor and the order passed by him rejecting the proposal
of the Lord Chief Justice under Article 229 cannot be scrutinized for its
legality by this Court. In this regard, the learned counsel for the
respondent-UT has relied upon the judgment of the Hon’ble Supreme
Court in case titled “State of Andhra Pradesh and Another Vs. T.
Gopalkrishna Murthi & Ors.” [(1976) 2 SCC 883]. He has
specifically relied on paragraph 6 of the said judgment, wherein the
Hon’ble Supreme Court has held that under Clause (3) of Article 229,
the Administrative expenses of the High Court including all salaries,
allowances and pensions payable to or in respect to the officers and
servants of the Court, are a charge upon the Consolidated Fund of the
State and that there is no separate fund or power to raise it at the
disposal of the High Court for the purposes of meeting the salaries etc.
of the High Court Staff.
11.Learned senior counsel for the petitioners relied upon the same
paragraph of the aforesaid judgment, where the Hon’ble Supreme Court
has observed that there is an expectation in the fitness of things and in
view of the spirit of Article 229 that “ordinarily and generally” the
approval should be accorded. But in continuation of the same reflects
that the Hon’ble Supreme Court also held that it would be incorrect to
say that the approval is a mere formality and in no case it is open to the
Government to refuse. This Court shall advert to the judgment in a later
part of this order.
12.In the course of his arguments, the learned senior counsel for the
petitioners has referred and relied upon the judgment of the Hon’ble
Supreme Court passed in case titled “High Court of Judicature for
Rajasthan Vs. Ramesh Chand Paliwal & Anr.” [(1998) 3 SCC 72]
with specific reference to paragraph 25 in which, the Chief Justice’s
power under article 229 of the constitution has been discussed. The
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Supreme Court held that the power to engage the staff and officers of
the High Court was the exclusive domain of the chief justice and where
there is a financial implication, there had to be a consultative process
with the Governor viz., the State Government where the Supreme Court
hoped that the institutional requirement of the High Court would
acceded to by the State Government. But in Gopalkrishna Murthy‘s case
supra, the Supreme Court had held that the consultative process was not
a mere formality and that entertaining a writ for mandamus merely
because the government erred in not accepting the Chief Justice’s view
and do not accord approval, 229, would not be right.
13.The Ld. Counsel for the UT relied upon Gopalkrishna Murthy‘s case to
impress upon this Court that the Hon’ble Lt. Governor had considered
the requirement of the opinion of the Lord Chief Justice to enhance the
pay scale of restorers of this Court so as to bring them at par with
similarly situated persons in the Delhi High Court and the High Court of
Punjab and Haryana and Chandigarh and that the same was rejected by
the Hon’ble Lt. Governor by a considered and detailed order and now,
this Court must refrain from passing a mandamus on the judicial side
directing the UT Government to give effect to the order of the Lord
Chief Justice, as the same has been prohibited by the Supreme Court in
Gopalkrishna Murthy’s case1.
14.Much water has flown under the bridge since Gopalkrishna Murthy. If
the institutional requirement of the High Court under article 229 is not
accepted by the State Government, and the same results in injustice or
affects the efficiency or the very functioning of the High Court, would
the High Court be helpless all together? The law as it exists on date
provides for the matter being taken up on the judicial side and
mandamus being issued in reasonable and justifiable circumstances.
15.The Supreme Court in a case in 2004 held that the High Court should
not ordinarily issue a writ of or in the nature of a mandamus and ought
to refer the matter back to the central or the state government as the case
may be, with suitable directions pointing out the irrelevant factors
which are required to be considered. The Supreme Court also held that
Arif Hameed State of Andhra Pradesh and Anr Vs. T. GopalKrishna Murthy – (1976) 2 SCC 883
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the statutory duties should be allowed to be performed by the statutory
authority at the first instance and only in exceptional cases, the High
Court may interfere on the judicial side, but ordinarily it would not do
so. The only caveat added by the Hon’ble Supreme Court is that in the
event the need arises, the powers on the judicial side should be
exercised with care and circumspection2.
16.In the same judgement, the Supreme Court held that there can be no
doubt whatsoever that the recommendations of the Chief Justice should
ordinarily be approved by the State and refusal must be based for
“strong and adequate” reasons, and held “… it is the primary duty of
the Union of India or the state concerned normally to accept the
suggestion made by a holder of a high office like the Chief Justice of
a High Court and differ with his recommendations only in
exceptional cases. The reason for differing with the opinion of the
holder of such high office must be cogent and sufficient..”.3
Thereafter, the Supreme Court observed that “it is unfortunate that the
recommendations made by a high functionary like the Chief Justice
were not promptly attended to and the private respondent had to
file a writ petition. The question as regards fixation of a revision of
the scale of pay of the High Court being within the exclusive
domain of the Chief Justice of the High Court, subject to the
approval, the State is expected to accept the same recommendations
save and except for good and cogent reasons”4 same as in this case.
17.The reasons given by the UT for rejecting the recommendations of the
Lord Chief Justice vide order dated 06.08.2024, are not “good and
cogent reasons”. The said order has indulged in an unwarranted surgical
dissection of the recommendations which have been laid down
elaborately in paragraph 5 and 6 supra. The main reason given is that
the enhancement of the pay scales for the restorers would lead to
corresponding claims for an increase in pay by similarly situated
employees working in the Government is grossly misplaced. In this
regard, it would be useful to reproduce the relevant portion of the
2
Union of India Vs. S,B Vohra – (2004) 2 SCC 150 – paragraph 52 and 53
3
Union of India Vs. S,B Vohra – (2004) 2 SCC 150 – paragraph 46
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Union
I attest to the accuracy and
of India Vs. S,B Vohra – (2004) 2 SCC 150 – paragraph 51
authenticity of this document
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Supreme Court’s opinion in SB Vora wherein it held “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 other employees
of the State.”5
18. What must not be lost sight of is that the consultative process with the
Governor or the Lt. Governor as the case may be is only required under
the proviso to Art. 229 clause (2) when there is financial implication
and not otherwise.
19. Thus, in view of what has been argued before this Court and held by it
hereinabove, this Court is of the view that the order dated 06.08.2024
passed by the UT rejecting the recommendation of the Lord Chief
Justice is not in accordance with the constitutional mandate of Art.
229(2) and is quashed. The recommendations of the Lord Chief Justice
are remanded to the Hon’ble Lt. Governor to reconsider the same afresh
by restricting his views only to the financial wherewithal of the UT and
not venture to assess the suitability, legality or the effect of the
recommendation of the Lord Chief Justice on the employees of the UT.
The Hon’ble Lt. Governor must bear in mind that the employees of the
UT are Government Servants and Public Servants while the employees
of the High Court are not Government Servants though they are Public
Servants. It is the High Court that pays the salary of its employees and
not the UT Government and the disciplinary control over them is also of
the High Court. Thus any comparison between the employees of the
High Court and the UT Government is unwarranted and specious. Let
the re-consideration by the Hon’ble Lt. Governor be done before the
next date of hearing. List this case on 19/02/2025.
(MOHD YOUSUF WANI) (ATUL SREEDHARAN)
JUDGE JUDGE
SRINAGAR:
17.12.2024
ARIF
Arif Hameed Union of India Vs. S,B Vohra - (2004) 2 SCC 150 - paragraph 48
5
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