K.S Radhakrishnan, J.:— The question that has come up for consideration in these cases is whether, the Governor of the State is bound to give approval when the Chief Justice of the State makes a proposal with regard to salaries, allowances, leave or pension of the staff of the High Court in exercise of the powers conferred under Art. 229 of the Constitution of India.
2. The Kerala High Court Non-graduate Staff Association which represents Typists Grade II, Grade I, Senior Grade Typist, Selection Grade Typist, Office Superintendent, etc., along with a member, has filed O.P No. 19040 of 1996 seeking parity of scale of pay and allowances which were extended to similar categories of posts in the Secretariat Vide Government order G.O (P) No. 230/95.Fin. dated 18.3.1995 O.P No. 4643 of 1997 was moved by the cataloguer working in the High Court Library seeking a direction to the first respondent to fix the pay of the petitioner on the same scale as that of the cataloguer of the Legislative Library of the Kerala Legislature. State Government is maintaining parity in the matter of scale of pay and allowances between the corresponding categories of staff of the High Court and that of the Secretariat for the last many years. Typists of the High Court of Kerala, all long, were having identical scale of pay and allowances and ratio for promotion between various grades in that category with those of the typists in the Secretariat. As earlier as in 1955, Government of Travancore Cochin in G.O.R Dis. No. 30227/55.Fin. dated 7.12.1955 accepted the recommendation of the Pay Commission that the staff of the High Court should be placed in the same scales of pay as the staff of the Secretariat. This uniformity and equality in the matter of scales of pay and allowances were available not only between the typists of the Secretariat and of the High Court, but also between other categories of officers such as Assistants, Section Officers, Junior Superintendents, Assistant Registrars, etc.
3. Pay Commissions and Pay Equalisation Committee have always treated the Typist and Office Superintendent of the High Court equal to the corresponding categories of posts in the Secretariat. It is, therefore, the policy of the State Government to have uniform pay-scales for the corresponding posts in the High Court as well as in the Secretariat. The stand of the Government was reiterated in the counter affidavit filed in O.P Nos. 2716 of 1994 and 15800 of 1993. In this connection, it is profitable to extract a portion of the counter affidavit filed in O.P No. 15800 of 1993:
“Generally the scales of pay of the Staff of the High Court are made on comparison with a corresponding equated category of the staff in the Secretariat of the State concerned only……The orders issued by the Government have generally maintained the parity in the scales of pay for all most all categories of staff which existed prior to Revision. The Officers and servants of the High Court have now comparable Central Scales as in the case of the staff of the Secretariat also….. In all the previous revision of pay scales and in the latest Pay Revision sanctioned from 1.3.1992, the Government had granted equal pay scales to the comparable category of staff of Public Service Commission, Government Secretariat, Advocate General's Office, Governor's Secretariat, etc., along with the staff of the High Court All along the High Court Staff have been compared, especially with regard to pay scales only with the Secretariat staff….It has been the well established practice that the High Court staff is compared with the corresponding and equated stiff of the Secretariat. For example, the Assistants in the High Court are compared with Assistants in the Secretariat. The Section Officers are compared with Section Officers in the Secretariat. Office Superintendents are compared to the Office Superintendents in the Secretariat. Assistant Registrars are compared with the Under Secretaries in the Secretariat. There are similar other equated posts in the High Court and in the Secretariat”.
4. Government issued an order dated 18.3.1995 modifying the scale of pay of Confidential Assistants, Typists and Office Superintendents in the Secretariat. It was ordered that Typists working in the Government Secretariat (including Finance and Law) would be treated as a separate category from Typists of all other offices. The line of promotion and scales of pay of the different grades of Typists in the Government Secretariat were ordered as follows:
Typists Grade II Rs. 1125-1720 Typists Grade I Rs. 1350-2200 Typist Senior Grade Rs. 1640-2900 Typist Selection Grade Rs. 1760-3050 Office Superintendent Rs. 1760-3050 (with Special Pay) Office Superintendent (Higher Grade) Rs. 2000-3200
5. It was also ordered one-third of the total strength of the Office Superintendents would be placed in the Higher Grade of Office Superintendents in the scale of pay of Rs. 2000-3200. Remaining two-thirds of the Office Superintendents would continue in the scale of pay of Rs. 1760-3050 with a special pay of Rs. 60/- per mensem. The order would apply only to the Condifential Assistants and Typists working in the Government Secretariat and not to the staff of any other establishment. Order was given effect to from 1.3.1992, but with monetary benefit from 1.4.1995
6. Even though parity in the matter of pay and allowances was maintained between the equated categories of posts in the Secretariat and High Court, the benefits granted to similar categories of posts in the Secretariat were not extended to those categories of posts in the High Court. Petitioner-Association therefore, submitted a representation before the Hon'ble Chief Justice seeking parity in the matter of scale of pay and allowances with that of the Secretariat staff and to implement the order dated 18.3.1995 to the corresponding categories of posts in the High Court as well. Request of the petitioners were favourably considered by the Hon'ble Chief Justice. Accordingly Registrar of the High Court was directed to address the Government for extending the benefit to similar categories of posts in the High Court. Government was addressed in June, 1995. Since no action was taken by the Government, petitioners submitted yet another representation in February, 1996.
7. Government, in the meanwhile, extended the same benefit to similar categories of posts in the Kerala Public Service Commission, Local Fund Audit and Advocate General's office with certain modification vide its order dated 6.1.1996 However, in the case of Superintendents eventhough scale of pay was fixed at Rs. 1760-3050 with special pay of Rs. 60 per mensem, no higher grade in the scale of pay of Rs. 2000-3200 was given to one-third of total strength of the Office Superintendents. The benefit was extended only from 1.4.1995 and not from 1.3.1992 Even this benefit was not extended to the staff of the High Court.
8. The Association then submitted yet another representation dated 1.3.1996 before the Hon'ble Chief Justice. Hon'ble Chief Justice again recommended the matter to the Government. Since no action was taken by the Government, petitioners have approached this court for a direction to the first respondent to implement Government order dated 18.3.1995 to the corresponding categories of posts in the High Court.
9. While the matter was pending before this Court, Government, however, issued Ext. P5 order dated 21.6.1997 extending the same benefit which was extended to corresponding categories of posts in the Office of the Kerala Public Service Commission, Local Fund Audit and Advocate General, to the staff of the High Court. However, Government order dated 18.3.1995 was not fully extended to the similar categories of posts in the High Court. That is, one-third of the total strength of Office Superintendents were not placed in the higher grade and that the order was given effect only from 1.4.1995 and not from 1.3.1992
10. Petitioner in O.P No. 4643 of 1997 was appointed as Cataloguer in the High Court and joined the service on 13.1.1995 in the scale of pay of Rs. 865-1450 which was a newly created post. P & ARD team had earlier recommended the post of Cataloguer should be on par with that of the Legislative Library of the Kerala Legislature. An extract of the report submitted by the said study team was also produced by the petitioner as Ext. P1, which would indicate the volume of work transacted in the High Court Library. In the High Court Library, there is only one post of Cataloguer. However, in the case of Legislative Library, there is also a post of Catalogue Assistant in the scale of pay of Rs. 1520-2660. Method of appointment and qualification for the post of Cataloguer in the High Court and Catalogue Assistant in the Legislative Library of the Kerala Legislature are one and the same. Consequently, the scale of pay should also be one and the same.
11. Having convinced of the anomaly the Hon'ble Chief Justice recommended the case of the petitioner to the Government for parity in the scale of pay, at least with that of the Catalogue Assistant Legislative Library of the Kerala Legislature. Since no action was taken by the first respondent for parity in the scale of pay, petitioner has approached this Court.
12. A counter affidavit has been filed on behalf of the first respondent in O.P No. 19040 of 1996. Most of the factual contentions raised by the petitioners are not disputed. It was stated a discussion was held by the Chief Minister with the Chief Justice on 4.11.1995 and it was decided to extend the benefit of G.O(MS) No. 705/95.Fin. dated 25.10.1995 to the Typists of the High Court. Pursuant to the meeting held on 4.11.1995 the benefit of the ratio 1:1:1:1 was also extended to the staff of the High Court as per G.O(MS) No. 845/95.Fin. dated 20.11.95 with effect from 1.3.92 with monetary benefit from 1.4.95 With regard to the rest of the benefit it was stated Government would examine the same and appropriate orders would be passed.
13. In the counter affidavit filed in O.P No. 4643 of 1997, eventhough it has been stated that the method of appointment and qualification for the post of Catalogue Assistant in the Legislative Library and the Cataloguer in the High Court are the same, the nature of work, staff pattern and pay structure in the High Court are different from that of the Legislative Secretariat. However, it was stated that the Pay Revision Committee since constituted is the appropriate authority to consider the request. Accordingly, Registrar of the High Court was requested to refer the matter to the Pay Revision Committee.
14. In order to resolve the controversy it is necessary to examine the relevant constitutional provision giving power to the Hon'ble Chief Justice to make rules or pass orders with regard to conditions of service of officers and servants of the High Court and the power given to Governor for grant of approval to the rules made by the Hon'ble Chief Justice so far as they relate to salaries, allowances, leave or pensions, which is contained in Art. 229 of the Constitution of India. Article is extracted below:
“229. Officers and Servants and the expenses of High Courts. (1) 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:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of the 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 pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of the Officers and servants of the Court shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.”
15. The object of Art. 229 of the Constitution of India is to secure independence of the High Court, which is essential for the working of the democratic form of Government in this country by giving the High Court the absolute control over its staff, subject only to the limitations imposed by the Article itself and free from interference by the Government. Object of the Article is to secure independence of the High Court which is not possible, unless the authority to appoint supporting staff with complete control over them is vested in the Chief Justice. However, in the matter of salaries, allowances, leave or pensions, approval has to be obtained from the Governor of the State. Art. 229 is a Code by itself for making rules for appointment of members of staff of the High Court as well as for prescribing conditions of service.
16. The Chief Justice of Kerala in exercise of the powers conferred by Art. 229 of the Constitution of India, also framed the Kerala High Court Service Rules, 1970 with regard to conditions of service of Officers and servants of the High Court. R. 35 of the Rules also emphasises 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 the Rules. However, Chief Justice can 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. As per Art. 229 read with R. 35 of the Kerala High Court Service Rules, 1970, Chief Justice is to get approval of the Governor of the State with regard to salaries, allowances, leave or pensions.
17. The anxiety of the Constitution makers to achieve that object is fully 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) read with clause (2) of Art. 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. Under clause (3) the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of the officers and servants of the court shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken tty the Court shall form part of that Fund. There is no separate power to raise it at the disposal of the High Court for the purpose of meeting the salaries, allowances, etc., of the High Court staff.
18. A constitutional obligation is cast on the Chief Justice of a High Court to get the approval of the Governor of a State. Constitutional duty is also vested in the Governor of a State as well to grant approval to the request made by the Chief Justice of the High Court. Situation may arise where the Governor of the State may refuse to give approval. It is true that the Chief Justice of the State has been placed at a higher level in regard to the framing of rules containing the conditions of service. It may not be possible to compel the Governor to grant approval to the rules framed by the Chief Justice of the State relating to salaries, allowances, leave or pension. Supreme Court, in its decision in Supreme Court Employees Welfare Association v. Union of India (1989) 4 SCC 187 : AIR 1990 SC 334, held as follows:
“It is true that the President of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pension, but it is equally true that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such approval, but before doing so, there must be exchange of thoughts between President of India and the Chief Justice of India”.
19. While considering the scope of Art. 146(2) of the Constitution which gives power to the Chief Justice of India to make rules, in the above mentioned decision, Supreme Court further held:
“In such circumstances, it would not be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pension of the Officers and servants of the Supreme Court involved by necessary inplication, the application of mind. So not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pension. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to salaries, allowances, leave or pension”.
20. The above mentioned principle laid down by the Supreme Court was later quoted with approval by a Five-Judge Bench of the Supreme Court in State of U.P v. C.L Agrawal, JT 1997 (5) SC 551. Constitutional duty cast upon the Government to consider the request of the Chief Justice of the State and to grant approval under the proviso to clause (2) or Art. 229 of the Constitution was also re-emphasised. Supreme Court in its recent decision in Satnam Singh v. Punjab & Haryana High Court (1997) 3 SCC 353 considering the proviso to clause 2 of Art. 229 reiterated the position that approval has to be sought from the Governor in respect of rules which relate to salaries, allowances, leave or pension, etc. by the Chief Justice of the State. It is therefore evident from the pronouncement of the Supreme Court, approval of the Governor is a constitutional requirement As held by the Supreme Court in Supreme Court Employees Welfare Association's Case, the request made by the Chief Justice of the State would be looked upon by the Governor with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the Governor of the State is of the view that the approval cannot he granted, he cannot straight away refuse to grant such approval, hut before doing so there must be exchange of thoughts between the Governor of the State and the Chief Justice of the State. In other words, the recommendation made by the Chief Justice of the State with regard to salaries, allowances, leave or pension in all fairness he accepted by the Government.
21. I have already mentioned, State Government is always maintaining parity in the matter of scale of pay and allowances of similar categories of posts in the High Court and Secretariat, for the last many years. All the Pay Commissions and Pay Equalisation Committee also treated Typists and Office Superintendents of the High Court equal to the corresponding categories of posts in the Secretariat. It is for the said reason evidently the Hon'ble Chief Justice, on more than one occasion, recommended the case of the petitioners to the Government for equal treatment. In other words, all those equated categories of posts in the High Court and Secretariat should be treated as a class by themselves.
22. Article l4 enjoins equality among equals and protects similarly placed persons against discriminatory treatment. Equality between corresponding categories of posts was recognised and maintained by the State Government. In order to deny the said benefit, there must be good reasons since those categories of posts were already grouped together. In other words, the State Government should give valid reasons for the said discriminatory treatment. Equals cannot be treated as unequals. There cannot be any inequality among equals.
23. 20A. Supreme Court in Randhir Singh v. Union of India (1982) 1 SCC 618 : AIR 1982 SC 879, held that equation of posts and equation of pay are matters primarily for the Executive Government and not for Courts but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be granted differently in the matter of their pay merely because they belong to different departments. Supreme Court also in Re. Special Courts Bill, 1978, (1979) 1 SCC 380 : AIR 1979 SC 478 held that the principle underlined in Art. 143 of the Constitution is that similarly placed and circumscribed persons should be treated alike both in previleges conferred and liabilities imposed. Supreme Court in Prem Chand Somachand Shah v. Union of India (1991) 2 SCC 48 held as follows:
“Article 14 enjoins equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumscribed shall be treated alike both in privileges conferred and liabilities imposed. Even amongst persons similarly situate, different treatment would be permissible between one class and the other. In that event it is necessary that the different treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that the differential treatment must have a rational relationship to the object sought to be acheived.”
24. In the instant case, first respondent has maintained parity in the matter of scale of pay and allowances for equated categories of posts in the Secretariat and in the High Court all these years. Therefore, there is no justification in extending certain benefits only to some equated categories of posts in the Secretariat alone, leaving out similar categories of posts in the High Court, when the equality and uniformity have been already recognised and maintained by the State Government between corresponding categories of posts in the Secretariat as well as in the High Court, the burden is entirely on the Government to prove as to why a differential treatment has been meted out only to certain categories of posts in the Secretariat and not to the High Court. I am of the view, this burden has not been discharged by the first respondent. Therefore, the denial of the benefit extended by Ext. P1 order to certain categories of posts in the Secretariat, to similarly placed categories in the High Court is illegal, discriminatory and violative of Art. 14 and 16 of the Constitution of India.
25. Counsel for the petitioners contended that there should be equal pay for equal work. I have already found that Government have maintained parity in the matter of scale of pay and allowances in the equated categories of posts in the Secretariat and the High Court. In other words, staff of the High Court and the Secretariat have always been treated as of equal status. This stand has been recognised by all the previous Pay Commissions and Pay Equalisation Committee. Equal pay for equal work is implicit in the doctrine of equality enshrined in Art. 14, it flows from it. The rule is as much a part of Art. 14 as it is of clause (1) of Art. 16. Equality of opportunity guaranteed by Art. 16(1) necessarily means and involves equal pay for equal work. Supreme Court in Sandhir Singh v. Union of India (1982) 1 SCC 618 held as follows:
“We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all tilings are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the power, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.”
26. The above mentioned principle was later elaborately considered by the Supreme Court in State of M.P v. Pramod Bhartiya, (1993) 1 SCC 539. In a recent decision in State of Haryana v. Ram Chander, (1997) 5 SCC 253 : AIR 1997 SC 2468, Supreme Court held as follows:
“Having given out anxious consideration to these rival contentions, we find that before a set of employees can claim parity of pay scales on the principles of ‘Equal Pay for Equal Work’, it has to be shown by such claimants that qualitatively and quantitatively the work which they do is of the same type and nature as that of their counter parts whose pay scales are pressed in service for getting the parity”.
27. As long as it is not a case of discrimination under Art. 14 of the Constitution, the abstract doctrine of equal pay for equal work as envisaged by Art. 39(d) of the Constitution has no manner of application, nor is it enforceable in view of Art. 37 of the Constitution. However, in the instant case, since parity has already been maintained by the Government all these years, it presupposes that equal pay has been maintained for equal work. In fact, the Hon'ble Chief Justice was convinced of the inequality and recommended the case of the petitioners on more than one occasion. Hon'ble Chief Justice only recommended for parity of pay scales and allowances with the Secretariat staff. In a given case, it may be possible for the Hon'ble Chief Justice even to recommend salaries and allowances much more than that is already being paid to staff of the Secretariat, depending upon the nature of work of the staff of the High Court. It is not a case where Hon'ble Chief Justice recommended more than what is already being paid to the staff of the Secretariat. Hon'ble Chief Justice has only recommended parity in the matter of pay scales and allowances. Since parity has already been maintained, I am of the view, there is no justification in not maintaining equality between the staff of the Secretariat as well as the staff of the High Court.
28. It is pertinent to note that petitioner in O.P No. 4643 of 1997 eventhough is working as Cataloguer in the High Court, she is not even getting the salary of Catalogue Assistant of the Legislative Library of the Kerala Legislature. Method of appointment and qualification for the post of Cataloguer in the High Court and Catalogue Assistant in the Legislative Library of the Kerala Legislature are one and the same. In the Legislative Library there is a post of Cataloguer and also a post of Catalogue Assistant. However in the High Court Library even the Cataloguer is not paid the scale of pay of Catalogue Assistant in the Legislative Library. This was found to be an anomaly by the Chief Justice. Hence Hon'ble Chief Justice recommended the case of the Cataloguer to the Government for parity in the matter of pay scale and allowances with that of the Catalogue Assistant in the Legislative Library of the Kerala Legislature. I do not find any good reason for not considering the recommendation made by the Hon'ble Chief Justice.
29. It was contended by counsel for the petitioner that this Court should issue a writ of mandamus directing the State Government to implement the recommendations made by the Hon'ble Chief Justice. Counsel for the petitioners relied on the decision of the Madras High Court in M.S Saraswathi v. State of Tamil Nadu, (1996) 2 MLJ 84 : (1996) 2 KLT SN. 45. In the aforesaid decision, a learned single Judge of the Madras High Court took the view that since the Hon'ble Chief Justice recommended the case of selection grade typist for parity in the scale of pay with that of the corresponding post in the Secretariat, State is bound to implement the said recommendation. Learned Single Judge has held as follows:
“The nature of the work performed by the officials in the Court is best known to the court and not to the Government and when a recommendation is made by the Hon'ble Chief Justice to the effect that the work performed by the petitioners employed in Court is similar to that of the persons similarly placed in the Secretariat and the scale of pay of the two posts should be identical, it is not permissible for the Government to disregard the recommendations and persist in holding a contrary view. Such an attitude of the Government is wholly impermissible having regard to the object of Art. 229.”
30. Accordingly, learned single Judge of the Madras High Court issued a writ of mandamus to the Tamil Nadu Government to act on the basis of the recommendation of the Hon'ble Chief Justice. The above reasoning of the Madras High Court in my humble view is an over-statement of the law in the light of various decisions of the Supreme Court. There may be situations where the Governor may have justifiable grounds for not accepting the recommendation and holding a contrary view, justifiability of the view may be subject to judicial review.
31. Supreme Court in the State of A.P v. T. Gopalakrishnan Murthi (1976) 2 SCC 883 has considered the question whether High Court is justified in issuing a writ of mandamus to the Governor so as to accept the recommendation made by the Chief Justice of the State. That was a case where Chief Justice of A.P wanted the High Court Staff to be paid at the scales of pay of equivalent posts in the Secretariat staff of the Government of Andhra Pradesh. Government did not agree to do so. Consequently, members of the Staff of the High Court service moved the Andra pradesh High Court and sought for a writ of mandamus. Accordingly the Andhra Pradesh High Court issued a writ of mandamus directing the Government to give effect to the recommendations of the Chief Justice embodied in the letter of the Registrar of the High Court dated 31.3.1969 and 1.7.1969 with such allowances and such benefits as are admissible to the members of the Secretariat service in the Secretariat, to the High Court Staff. Matter was then taken up before the Supreme Court. Supreme Court in the above case held as follows:
“On the facts and in the circumstances of the case, and in the backg round of the conditions which are prevalent in other States, Government could have been well-advised to accord approval to the suggestion of the Chief Justice, as the suggestion was nothing more than to equate the pay scales of the High Court staff with those of the equivalent posts in the Secretariat. That merely because the Government is not right in accepting the Chief Justice's view and refusing to accord the approval is not ground for holding that by a writ of mandamus the Government may be directed to accord the approval. The High Court staff has not always been treated at par with the Secretariat staff in the matters of scales of pay. The matter has been taken up in the Chief Justice's Conference and with several State Governments. Most of them have acceded to the request of the High Court to bring its staff at par with the Secretariat staff in the matter of pay, etc. It is however not possible to take the view that merely because the State Government, does not see its wav to give the required approval, it will justify the issuance of a writ, of mandamus under Art. 226 of the Constitution as if the refusal of the State Government was ultra vires or malafide and arbitrary.”
(emphasis supplied)
32. Concluding the Judgment, the Supreme Court stated as follows:
“For the reasons stated above, we do not find it possible to sustain the judgment of the High Court in law. We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andra Pradesh to obliterate the distinction in the matter of pay scales, etc. between the High Court and the Secretariat staff. There does not seem to be any good and justifiable reason for maintaining the distinction.”
33. Earlier Supreme Court also in State of Assam v. Bhuban Chandra Datta, (1975) 4 SCC 1 : AIR 1975 SC 889 reversed the judgment of the Assam High Court stating that High Court was wrong in granting a writ of mandamus since proposal made by the Hon'ble Chief Justice required the approval of the Government. Supreme Court also in its decision in Supreme Court Employees Welfare Association's Case (Supra) held that the President of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions but it is equally true when such rules are framed by a very high dignitary of the State, they should be looked upon with respect and unless there is very good reason for not granting approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President and the Chief Justice of India. The above principle laid down by the Supreme Court was quoted with approval by a Five-Judge Bench of the Supreme Court in State of U.P v. C.L Agrawal, JT 1997 (5) SC 551.
34. In T. Gopalakrishnan Murthi's case, Supreme Court shared the sentiment expressed by the High Court in its judgment, but did not allow the sentiment to cross the boundary of law engrafted in the proviso to clause (2) of Art. 229 of the Constitution of India. The facts that we get in the above case are almost identical to the facts of the present case. Even though the Supreme Court found that there does not seem to be any justifiable reason for maintaining distinction between the staff of the Secretariat and that of the High Court in the matter of scale of pay and allowances, it held that the High Court was not justified in issuing a writ of mandamus as such. Supreme Court only directed the State Government to reconsider the matter in the light of the principle laid down by the Supreme Court. In view of the above mentioned legal position, I am of the view that this Court is not justified in issuing a writ of mandamus, merely because the Governor did not pass any orders on the recommendation made by the Hon'ble Chief Justice. At the same time, the Governor has to consider the recommendation made by the Hon'ble Chief Justice which is a constitutional mandate. The recommendation made by the Hon'ble Chief Justice should be looked upon with respect and unless there is very good reason for not granting the approval, approval should always be granted. If the Governor is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such an approval, but before doing so, there must be exchange of thoughts between the Governor and the Chief Justice. When the Chief Justice makes a recommendation, it is impermissible on the part of the Governor/Government to inform the Registrar of the High Court to wait till the Pay Commission makes a recommendation or to take up the matter with the Pay Revision Committee. I am of the view, State Government should have bestowed their serious attention with regard to the recommendation made by the Hon'ble Chief Justice, and should have taken a decision in accordance with the proviso to clause (2) of Art. 229 of the Constitution of India.
35. Accordingly these Writ Petitions are disposed of with a direction to State Government to consider the recommendation made by the Hon'ble Chief Justice in the light of the findings rendered by this Court and take a decision within a period of three months from the date of receipt of a copy of this judgment, in accordance with the proviso to clause (2) of Art. 229 of the Constitution of India.
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