Citation Codes

Equivalent Citations

citation codes

Case Number

O.P No. 1000 of 1990

Attorney(S)

For the Appellant: S. Narayanan Poti
For the Respondent: 3rd Government Pleader (N. Sankara Menon)
For the Respondent: 1 & 2

Judges

Usha, J.

Acts

Article 229 of the Constitution, read with Rule 35 of the High Court Service Rules, 1970 and Rule 60(a) Part I of Kerala Service Rules,
provisions contained in Art. 229 of the Constitution and Rule 35 of the High Court Service Rules. Art. 229(1) of the Constitution
1964 Punjab 285. Rule 29 of the High Court Establishment (Appointment and Condition of Service) Rules, 1952
Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules and Rule 60(a)
Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules, 1970.20.
General of India.14. Clause (5) provides:Subject to the provisions of this Constitution
Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules.
S. 242(4) read with S. 241 of the Government of India Act, 1935.
provisions of Rule 29 of the High Court Establishment Rules,
Rule 35, the provisions contained in Kerala Service Rules
State.9. Rule 35 of the High Court Service Rules, 1970
Art. 309 of the Constitution of India.17. Rule 1.8
Rule 1.8 of the Punjab Civil Services Rules,
Rule 7(1) of S. IV of the New Pension Rules,
Constitution enacting Article 229
GOVERNMENT OF INDIA ACT
pension.11. Rule 60(a)

See more information ...

Smart Summary

Concise Analytical Summary of the Opinion

Factual and Procedural Background

The petitioner, a former Army man with 25 years of service, was appointed Security Officer of the Kerala High Court on an order of the Chief Justice dated 16-1-1978 and joined on 23-1-1978. After probation, he became a full member of the High Court Service. His date of birth was 30-6-1931, making his normal retirement date 30-6-1986. Because he had insufficient qualifying service for pension, the petitioner requested extension of service from 1-7-1986 to 31-12-1987; the High Court recommended this and the State Government sanctioned it. The Accountant General (2nd respondent) sought clarification about entitlement to increments during the extension; the Government replied (5-9-1986) that the petitioner was entitled to all service benefits during the extended period.

On expiry of that extension the Chief Justice issued a further proceeding dated 31-12-1987 extending the petitioner's service from 1-1-1988 "until further orders," on account of no suitable replacement. The High Court informed the State Government that on proper interpretation of Art. 229 read with Rule 35 and Rule 60(a) Part I K.S.R., Government concurrence was not necessary for such an extension. The petitioner retired on 31-12-1988.

After the petitioner completed 10 years qualifying service (22-1-1988), he sought higher grade and other benefits effective 23-1-1988. Correspondence between the High Court, Accountant General and State Government followed about entitlement to increments, leave and pension for the period 1-1-1988 to 31-12-1988. The Accountant General refused to disburse pensionary benefits for that period unless the Government regularised the service, prompting the petitioner to seek relief under Article 226.

Legal Issues Presented

Whether an order of the Chief Justice of the Kerala High Court extending the period of service of a High Court employee beyond the date of superannuation (i.e., beyond the age of 55 years under Rule 60(a) Part I K.S.R.) requires the concurrence or sanction of the State Government.

Arguments of the Parties

Petitioner

The petitioner sought recognition that he continued in service until 31-12-1988 and therefore was entitled to revised pension, grade promotion, increments and leave salary for the period 1-1-1988 to 31-12-1988.
He made representations (Ext. P4, P6) to the Registrar to regularise his higher grade and surrender of leave, and relied on the Chief Justice's order extending his service.

High Court / Registrar's Position

The Registrar and the High Court explained that concurrence from the State Government was sought earlier by mistake and that, on proper interpretation, the Chief Justice has the power under Article 229 read with Rule 35 of the High Court Service Rules to extend service without seeking Government concurrence.
The High Court repeatedly communicated this legal position to the State Government and to the Accountant General.

First Respondent (State Government) / 1st Respondent's Arguments

The first respondent contended that the Chief Justice's action in extending the petitioner's service from 1-1-1988 "until further orders" was not in order because the original extension was sanctioned by the Government.
Even if the Chief Justice can re-employ a retired Government servant, the State argued this principle does not extend to extending service where such extension automatically confers benefits (full pay/allowances, leave, pension) that, the State maintained, require Government sanction under Rule 60(a) and under the proviso to Rule 35.
The State argued that because the first period of extension was referred to the Government, there was no justification for the Chief Justice to extend a subsequent period without reference to the Government.

Second Respondent (Accountant General)

The Accountant General sought clarification from the State Government on entitlement to increments and later informed the petitioner that unless the Government regularised his service for 1-1-1988 to 31-12-1988, retirement benefits would be computed only up to 31-7-1987 (or otherwise not including the disputed period).
The Accountant General persisted in withholding pensionary benefits unless the State Government's concurrence/regularisation was obtained.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
M. Gurumoorthy v. The Accountant General, Assam and Nagaland, (1971) 2 SCC 137; AIR 1971 SC 1850	Explains the purpose and scope of Article 229: the Chief Justice (or his nominee) has primary authority over appointments and conditions of service of High Court staff; Governor's approval is limited to rules relating to salaries, allowances, leave or pension. Emphasises High Court independence and limits on executive interference.	The court relied on this decision to interpret Article 229 as conferring exclusive authority on the Chief Justice over High Court appointments and service conditions and to support the view that the Chief Justice can exercise control over staff matters, subject only to the limited proviso concerning salaries/allowances/leave/pension in rule-making.
Kidar Nath v. Punjab Government, AIR 1964 Punjab 285	Held that under Article 229 and the relevant High Court Establishment Rules (Rule 29 there), the Chief Justice had power to relax rules and to make orders in favour of High Court employees (including treating periods of unpaid service as qualifying for pension) — i.e., the Chief Justice can exercise the powers for staff matters and relax rules to meet hardship.	The court placed reliance on the Punjab High Court decision to support the proposition that the Chief Justice is competent to relax rules or make orders affecting eligibility for pension and related benefits, and thus is the proper authority to retain an employee beyond the age of compulsory retirement in suitable circumstances.
Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu, (1979) 2 SCC 34; AIR 1979 SC 193	Illustrates that the Chief Justice has powers over suspension, dismissal, removal or compulsory retirement of High Court employees — i.e., matters that affect pay and other conditions remain within the Chief Justice's competence.	Used to rebut the State's contention that matters affecting pay/salary/leave/pension cannot be properly dealt with by the Chief Justice; the court observed that even matters which impact emoluments may still fall within the Chief Justice's powers over High Court staff.

Court's Reasoning and Analysis

The court proceeded by textual and precedential analysis of Article 229 of the Constitution, Rule 35 of the High Court Service Rules, 1970, and Rule 60(a) of Part I of the Kerala Service Rules (K.S.R.).

Interpretation of Article 229:
The court recited Article 229(1) and (2) and emphasised the constitutional design: appointments and prescribing conditions of service of High Court officers and servants are vested in the Chief Justice (or his nominee), with the proviso that rules relating to salaries, allowances, leave or pension require the Governor's approval. The court relied on M. Gurumoorthy to establish that Article 229 confers primary control on the Chief Justice to secure judicial independence and to limit executive interference.
Analysis of Rule 35 (High Court Service Rules, 1970):
Rule 35 makes various State service rules applicable to High Court members but explicitly provides that, except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or Government under those rules. The proviso further requires the Chief Justice to issue specific orders sanctioning scales of pay and allowances as sanctioned by the Government.

The court emphasised that Rule 35 places State rules into effect for High Court staff but reserves the Chief Justice's authority for matters other than those four financial categories when acting under those rules.
Role of Rule 60(a) Part I K.S.R.:
Rule 60(a) provides that compulsory retirement at age 55 takes effect from the afternoon of the last day of the relevant month, and that an officer may be retained after this date only with the sanction of Government on public grounds recorded in writing. The court noted that the power referred to in Rule 60(a) is the power of the Government which, in practice, had been exercised in the present matter by the Chief Justice in retaining the petitioner from 1-1-1988 to 31-12-1988.
Rebuttal of the State's contentions:
The court rejected the State's arguments that (a) because an earlier extension had been referred to the Government, the Chief Justice could not later extend service without referral, and (b) that extension which carries pay, leave and pensionary consequences must be by the Government. The court found these contentions untenable because Article 229 and Rule 35 confer authority on the Chief Justice to manage High Court staff matters; reliance on the Governor's approval is relevant at the rule-making stage for salaries/allowances/leave/pension but does not oust the Chief Justice's competence to issue orders extending service.
Precedential support:
The court relied on Kidar Nath (Punjab High Court) where the Chief Justice's power to relax rules in favour of High Court staff (including pension-related relief) was upheld, and on the Andhra Pradesh decision (L.V.A. Dikshitulu) to show the Chief Justice's competence to effect actions that impact emoluments (suspension/dismissal/compulsory retirement). The court concluded these authorities support the proposition that the Chief Justice is the competent authority to retain an employee beyond age 55 in suitable circumstances.
Conclusion of analysis:
Applying these legal principles to the facts, the court held that the Chief Justice validly extended the petitioner's service until 31-12-1988 and that no concurrence from the State Government was necessary to give effect to that order. Consequently, respondents are required to recognise and give effect to the petitioner's continued service for pensionary and other service benefits.

Holding and Implications

Core Holding: Original petition allowed.

Direct consequences ordered by the court (as stated in the opinion):

Respondents 1 and 2 are directed to take necessary steps to grant the petitioner revised pension, grade promotion, increments and leave salary on the basis that he continued in service until 31-12-1988.
Arrears due to the petitioner on these counts are to be paid within two months from the date of the judgment, with interest at the rate of 12% per annum from the due date to the date of payment.
The original petition is allowed and the order concluding with "Allowed" is recorded in the opinion.

Broader implications: The court applied existing constitutional and rule-based authorities to resolve the dispute; the opinion does not purport to announce a novel, standalone precedent beyond applying and affirming established principles (i.e., Article 229 and the interplay with Rule 35 and Rule 60(a)). The direct effect is to vindicate the Chief Justice's order and to require administrative action by the respondents to give the petitioner the monetary and service benefits for the period 1-1-1988 to 31-12-1988.

Show full summary ...

M.V.K Nambiar v. State Of Kerala

1. When the Chief Justice of the Kerala High Court extends the period of service of an employee of the High Court beyond the date of superannuation in exercise of his power under Article 229 of the Constitution, read with Rule 35 of the High Court Service Rules, 1970 and Rule 60(a) Part I of Kerala Service Rules, does it require the concurrence of the State Government, is the question to be decided in this Original Petition. The petitioner, with 25 years of service in Army was appointed as Security Officer of the Kerala High Court as per the order of the Chief Justice dt. 16-1-1978. He joined duty on 23-1-1978. His probation was declared with effect from 23-1-1980 and he was appointed as a full member of the High Court Service. Petitioner's date of birth being 30-6-1931, he was to retire from service on 30-6-1986 at the age of 55 years. Since there was deficiency in the period of his service for claiming pension, the petitioner made a request for extension of his service from 1-7-1986 to 31-12-1987. The High Court recommended the above request of the petitioner and the Government granted sanction for the same. The second respondent, Accountant General, sought a clarification from the Government as to whether the petitioner was eligible for increment that falls within the period of his extended service. The Government informed the 2nd respondent by Ext. P1 communication dated 5-9-1986 that he is entitled to get all service benefits including increment during the extended period of his service.

2. The petitioner was to retire after the period of extention on 31-12-1987. Since no suitable candidate was available for being appointed as Security Officer, the Chief Justice decided to continue the service of the petitioner until further orders in the interest of the administration of the High Court. Ext. P2 proceeding dt. 31-12-1987 was therefore issued extending the period of service of the petitioner from 1-1-1988 until further orders. The 1st respondent was informed about the order issued by the Chief Justice under Ext. P3 communication dated 8-2-1988. In the above communication, it was made clear that the Government was requested to extend the period of service of the petitioner at the first instance from 1-7-1986 to 31-12-1987 without proper examination of the power of the Chief Justice under Art. 229 of the Constitution. On a proper interpretation of the power given to the Chief Justice under Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules and Rule 60(a) of Part I of the Kerala Service Rules, it was found that there was no necessity to get orders from the Government to extend the period of service of an employee of the High Court. The petitioner retired from service on 31-12-1988.

3. Since the petitioner completed 10 years of service on 22-1-1988, he was entitled to a higher grade as provided under G.O(P) No. 515/85.Fin dt. 16-9-1985. He submitted Ext. P4 representation before the Registrar of the High Court for taking steps to grant him the higher grade with effect from 23-1-1988; The Registrar, in his turn, recommended the petitioner's request under Ext. P5 letter dt. 4-5-1988 to the Government. The petitioner made a further application, Ext. P6, for surrender of leave. The above request was accepted by the High Court under proceedings dt. 29-8-1988. A copy of the proceedings is produced as Ext. P7. On receipt of the above communication, the Accountant General again addressed a communication, Ext. P8 dt. 30-8-1988 to the State Government seeking a clarification whether the petitioner is entitled to all service benefits such as leave and increments during the period of his extended service from the afternoon of 31-12-1987. The Registrar of the High Court thereupon addressed Ext. P9 letter dt. 14-9-1988 to the State Government, explaining the position that the petitioner is entitled to all benefits during the extended period from 1-1-1988 to 31-12-1988, as in the case of the first term of extension, namely, from 1-7-1986 to 31-12-1987. He requested the State Government to give necessary directions to the Accountant General.

4. After the retirement of the petitioner, High Court again addressed a communication dt. 19-12-1988 to the Government requesting for necessary directions to be given to the Accountant General to disburse all service benefits to the petitioner, including increment and leave surrender during the period of extension of his service. This was followed by yet another communication dt. 24-12-1988 by the Registrar. Three months thereafter, the petitioner received a communication from the 2nd respondent informing him that unless the Government issues orders regularising his service for the period from 1-1-1988 to 31-12-1988, he can be issued retirement benefits like pension, gratuity etc., taking into consideration only the service upto 31-7-1987. On receipt of the above, the Registrar addressed letters both to the State Government as well as to the 2nd respondent on 7-4-1989 pointing out the incorrect stand taken by the Accountant General. But, the 2nd respondent persisted in his view that unless concurrence is granted by the State Government, the petitioner is not entitled to the pensionary benefits during the period from 1-1-1988 to 31-12-1988. In spite of a further letter from the High Court on 4-8-1989, explaining the legal position that sanction of the Government is necessary when the Chief Justice is exercising his power under Art. 229 of the Constitu-tion, no action was taken by the 2nd respondent to disburse the pensionary benefits to the petitioner, which necessitated the petitioner in approaching this Court under Art. 226 of the Constitution.

5. The correspondence between the respondents is dealt with in detail in order to show that from 8-2-1988 onwards, the High Court was endeavouring to impress upon the first respondent the legal position regarding the scope of the power of the Chief Justice under Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules and Rule 60(a) Part I of K.S.R and that this is a relevant aspect to be taken into consideration in moulding the relief to be granted to the petitioner, by way of interest for delayed payment.

6. A counter-affidavit has been filed by the 1st respondent in which the definite stand taken is taken is that the action of the High Court in extending the service of the petitioner from 1-1-1988 until further orders was not in order, especially since the original order of extension was issued by the Government. It is further submitted that even if the Chief Justice of a High Court is competent to re-employa retired Government servant, the above principle cannot be applied in the case of extension of service, since grant of extension of service carries along with it, automatically the benefits of full pay and allowances, right to earn leave and counting of such service and emoluments for pensionary benefits. According to the 1st respondent, the provisions contained in Rule 35 restricts the power of the Chief Justice and therefore no order can be issued extending the service of an employee of the High Court, which would make him eligible for benefits of full pay and allowances, earned leave and pensionary benefits.

7. Even in the counter-affidavit, the first respondent reiterates its stand that since for the first period of extension the matter was referred to the Govt., there is no justification for the Chief Justice to order granting extension for a subsequent period without referring the matter to the Government.

8. The contentions raised by the first respondent are untenable in the light of the provisions contained in Art. 229 of the Constitution and Rule 35 of the High Court Service Rules. Art. 229(1) of the Constitution provides that “appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct.” Cl. (2) of Art. 229 provides:

“Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pension, require the approval of the Governor of the State”.

9. Rule 35 of the High Court Service Rules, 1970 reads as follows:

“35. Pay, allowances, leave salary, pension and other conditions of service.-The Travancore Service Regulations, the Cochin Service Regulations, the Kerala Service Rules, The Government Servants Conduct Rules, the General Provident Fund (Kerala) Rules, the State Provident Fund Rules (Travancore), the Provident Fund Rules (Cochin), the Fundamental Rules, the Madras Leave Rules, Madras Pension Code, the General Provident Fund (Madras) Rules, the Madras Contributory Provident Fund Pension Insurance Rules, 1950 and the rules relating the pay of the services for the time being in force applicable to the officers under the rule making control of the Governor or Government of Kerala, as the case may be shall, subject to these rules, govern the members of the service in the matter of their pay, allowance, leave, leave salary, pension and other conditions of service:

Provided that except with regard to salaries, allowances, leave and pension, the Chief Justice shall exercise the powers vested in the Governor or the Government under any of the aforesaid rules:

Provided further that the Chief Justice shall specifically issue orders sanctioning the grant of the scales of pay and allowances to the members of the service in accordance with those sanctioned by the Government.”

10. Thus, under Rule 35, the provisions contained in Kerala Service Rules are made applicable to the employees of the High Court also and the Chief Justice is to exercise powers vested in the Governor or the Government in respect of matters covered by Kerala Service Rules, except with regard to salaries, allowances, leave and pension.

11. Rule 60(a) of Part I K.S.R provides as follows:

“Except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years. He may be retained after this date only with the sanction of Government on public grounds which must be recorded in writing, but he must not be retained after the age of 60 years except in very special circumstances.”

12. It is this power of the Government given under Rule 60(a) which has been exercised by the Chief Justice in retaining the petitioner in service from 1-1-1988 to 31-12-1988. Merely because the Government's concurrence was sought for retaining the petitioner in service from 1-7-1987 to 31-12-1987, it cannot be contended by the first respondent that the Chief Justice has no power to issue an order retaining in service, an employee of the High Court beyond the age of 55 years as provided under Rule 60(a). The High Court had explained to the first respondent repeatedly that concurrence was sought from the Government by a mistake, without properly examining the power of the Chief Justice, under Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules. The above position has been reiterated in the counter-affidavit filed by the Registrar of the High Court. Therefore, the contention taken by the 1st respondent is only to be rejected.

13. The contention raised by the first respondent that the Chief Justice has no power to issue an order retaining an employee of the High Court beyond the age of 55, in the interest of the administration of the High Court, cannot be accepted at all. The importance of the provision contained under Art. 229 of the Constitution has been taken note of by the Supreme Court in M. Gurumoorthy v. The Accountant General, Assam and Nagaland, (1971) 2 SCC 137 : AIR 1971 SC 1850, in the following manner:

“The unequivocal purpose and obvious intention of the framers of the Constitution enacting Article 229 is that in the matter of appointments of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fulfy shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) reads with Clause (2) of Article 229 confers exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). The approval of the Governor, as noticed in the matter of Rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under S. 242(4) read with S. 241 of the Government of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India.

14. Clause (5) provides:

“Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General.”

9. It is significant that the Comptroller and Auditor General unlike the Chief Justice of a High Court has not been given the power to prescribe the conditions of service of persons serving in the Indian Audit and Accounts Department in the same terms as are embodied in Art. 229(2). There the Rules have to be made by the President after consultation with him. Artilce 187 may also be noticed. Clause (2) of that Article provides that the legislature of a State may by law regulate the recruitment and conditions of service of persons appointed to the secretarial staff of the House or Houses of legislature. Clause (3) is to the effect that until provision is made under clause (2) the Governor may, after consultation with the Speaker of the legislative assembly or the Chairman of the Legislative Council, make rules regulating the recruitment and the conditions of service of persons appointed to the secretarial staff of the Assembly or Council. Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governor's approval must be sought to the extent the rule relate to salaries, leave or pension. This exception, it is abundantly clear, had to be made because the finances have to be provided by the Government and to the extent there is any inolvement of expense the Government has to approve of it.”

15. The power of the Chief Justice of a High Court to issue an order relaxing certain provisions of the rules in favour of an employee of the High Court in order to make him eligible for obtaining pension, came up for consideration before the High Court of Punjab, in Kidar Nath v. Punjab Government, AIR 1964 Punjab 285. Rule 29 of the High Court Establishment (Appointment and Condition of Service) Rules, 1952 issued by the Chief Justice of the High Court of Punjab in exercise of the powers conferred under Art. 229 of the Constitution after previous reference to the Governor, read as follows:

“(29) (I) Subject to any special provisions contained in these rules, the rules and orders for the time being in force and applicable to Government servants of corresponding classes in the service of the Government of the Punjab shall regulate the conditions of service of persons serving on the staff attached to the High Court:

Provided that the powers exercisable under the said rules and orders by the Governor of the Punjab or the Government of the Punjab or by any authority subordinate to the Governor of Government shall be exercisable by the Chief Justice or by such person as he may, by general or special order, direct

(2) Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the High Court shall be decided by the Chief Justice.”

16. The Chief Justice of Punjab High Court had issued an order in favour of an employee of the High Court who retired on 14th August, 1956 that the periods of his unpaid service between 24th November, 1930 and the 11th August, 1940 be treated as continuous temporary service as he had actually worked in the service. It was also ordered that he be allowed to add half of the entire service, both paid and unpaid, to his qualifying service after excluding therefrom the period of extraordinary leave under Rule 7(1) of S. IV of the New Pension Rules, and thus removing a hardship suffered by the employee in the matter of loosing a fair amount of pension. In issuing such an order, the Chief Justice exercised his power under “Note 2 to Rule 1.8 of the Punjab Civil Services Rules, Vol. 1, Part I, issued by the Governor under the proviso to Art. 309 of the Constitution of India.

17. Rule 1.8 together with the ‘Notes’ are extracted below:

“The power of interpreting, changing and relaxing these rules is vested in the Finance Department.

Note 1. Communications regarding the interpretation and alteration of these rules should be addressed to the Finance Department through the Administrative Department concerned.

Note 2. Where the Finance Department is satisfied that the operation of any of these rules regulating the conditions of service for State Government servants or any class of such Government servants, causes undue hardship in any particular case, it may by order dispense with or relax the requirements of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner.

18. The expression “State Government Servants” means all persons whose conditions of service may be regulated by rules made by the Governor of Punjab under the proviso to Article 309 of the Constitution.”

19. The Government of Punjab took the view that only the Finance Department of the Government has got the power to relax the rules in favour of the employee of the High Court and the order passed by the Chief Justice was without jurisdiction. A Division Bench of the Punjab High Court rejected the above contention. It was held that in view of Art. 229 of the Constitution, which vests complete control in the Chief Justice over the persons serving on the staff of the High Court and the express provisions of Rule 29 of the High Court Establishment Rules, there can be no doubt that the power to relax the rule in order to meet any hardship as contemplated by Rule 1.2 could be exercised only by the Chief Justice. The situation which is available in the present case is more or less the same, which was considered by the Division Bench of the Punjab High Court I am in respectful agreement with the view taken by Their Lordships of the Punjab High Court. There cannot be any doubt that the Chief Justice is the only authority who can issue an order retaining an employee of the High Court after he attained the age of 55 years as provided under Rule 60(a) of Part I K.S.R in the light of the power given under Art. 229 of the Constitution read with Rule 35 of the High Court Service Rules, 1970.

20. An attempt is made in the counter-affidavit filed by the first respondent to draw a distinction between an order of re-employment and an order passed under Rule 60(a) of Part IK.S.R and to contend that an order passed under Rule 60(a) retaining an employee beyond the age of 55 years would come within the exception in the proviso to Rule 35. The above contention is also untenable. An order passed under Rule 60(a) retaining an employee beyond the age of 55 years may make him eligible to salary, allowances, leave, pension etc., in respect of the period in which he was thus allowed to work after attaining the age of 55 years. The salary, allowances, leave etc., of an employee of the High Court will be affected if he is suspended, dismissed, removed or compulsorily retired from service. But still, it is only the Chief Justice who has got the power to suspend, dismiss, remove or compulsorily retire an employee of the High Court. (Vide Chief Justice of Aridhra Pradesh v. LVA. Dikshitulu, (1979) 2 SCC 34 : AIR 1979 SC 193)

21. In the light of the above discussions, it has to be held that Chief Justice is fully competent to extend the period of service of the petitioner from 1-1-1988 to 31-12-1988. No concurrence is necessary from the first respondent in enforcing the above order issued by the Chief Justice. Respondents land 2 are bound to grant the petitioner, revised pension, grade promotion, increments and leave salary due to him in accordance with the rules, taking into account, his service for the period from 1-1-1988 to 31-12-1988 also.

22. In the result, there will be a direction to the respondents to take necessary steps to grant the petitioner revised pension, grade promotion, increments and leave salary on the basis that he continued in service till 31-12-1988. Arrears due to the petitioner on the above count will be paid within a period of two months from today, with interest at the rate of 12% per annum from the due date to the date of payment The original petition is allowed as above.

23. Allowed.

M.V.K Nambiar v. State Of Kerala

Concise Analytical Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner

High Court / Registrar's Position

First Respondent (State Government) / 1st Respondent's Arguments

Second Respondent (Accountant General)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

M.V.K Nambiar v. State Of Kerala

Comments