D.K. Seth, J.:— Facts: These groups of appeals have since been preferred by the appellants, who were writ petitioners in six writ petitions and respondents in three writ petitions preferred by the State of West Bengal, all of which were heard analogously by the learned single Judge and disposed of by a common judgment dated 17th of November 2003.

2. The State of West Bengal, respondents, had filed three writ petitions in which the State Government sought to defend their actions since challenged in those six writ petitions. Thus, the basis of the cause of action and the reliefs asked for are identical. In each of the six writ petitions the respective appellants sought for identical reliefs on identical grounds viz., they are entitled to the pay fixed by Hon'ble the Chief Justice under order dated 13th of February 2003 in the post of Lower Division Assistant on and from 9th of September 1985 in order to bring their pay at par with one Sri Gopinath Dey (Gopinath), an employee junior to the petitioners. Writ of certiorari was prayed for quashing of the Return memos dated 21st April 2003, 29th April 2003 and 6th May 2003 and for release of arrears and the salary and allowances accordingly. In the circumstances for the sake of convenience, we may summarize the facts in WP No. 985 of 2003. The petitioners no. 1 to 4 entered into service as Lower Division Assistant (LDA) on 26th July 1976, 14th March 1977, 2nd July 1979 and 8th September 1980 respectively. The petitioner no. 5 entered into service as Salaried Typist on 12th June 1978; after haying been successful in the Selection Examination, he was appointed on the post of LDA [Scale of Rs. 300-685/-. (unrevised Rs. 230-425/-)] on 9th of September 1985. Gopinath was initially appointed as a Section Writer Typist on 19th of March 1964. He appeared in the Selection Examination and upon being successful was appointed to the post of LDA on 9th of September 1985 along with the petitioner no. 5. However, the petitioner no. 5 having been placed higher in the Selection Panel his name figured above that of Gopinath in the Gradation List of LDA.

3. Thereafter the petitioners were promoted to the post of Upper Division Assistant (UDA) on 15th March 1993, 2nd June 1994, 16th July 1994, 7th September 1994 and 7th November 1995 respectively. Whereas Gopinath was promoted to the post of UDA on 4th of February 1998, namely long after the petitioner no. 5. At the time of fixation of Pay of Gopinath pursuant to the ROPA Rules 1990 with effect from 1st of August 1986, he was given pay higher than those of the petitioners. Upon a representation made on 27th of June 1997, the Committee appointed by the Chief Justice opined that Gopinath could not be given the higher pay since his period of service in the Ex-cadre post could not be counted on his appointment to LDA. Therefore, the grant of pay to Gopinath being not in order would not entitle the petitioners to any benefit. Subsequently, when Gopinath retired, objection was raised by the Principal Accountant General (A & E West Bengal) whereupon Gopinath's pay was re-fixed. Even upon such re-fixation, the pay of Gopinath remained higher than those of the petitioners. The petitioners then made a representation on 10th January 2001, whereupon the Chief Justice constituted a three Judges' Committee.

4. This Committee opined that Gopinath was not entitled to the benefit that was given to him in law and, therefore, Rule 55(4) would not apply. But the pay of Gopinath having been found in order, subsequently the petitioners were held to be entitled to pay not lesser than Gopinath, who was, admittedly, junior to the petitioners. Thereupon the Chief Justice accepted the said report of the three, Judges' Committee and by an order dated 9th of December 2002 directed two letters dated 21st December 2001 and 9th May 2002 to be placed before the said Committee. Thereupon the Committee submitted further report on 20th of January 2003.

5. In the said report, it was found that the benefit of career advancement scheme awarded to Gopinath was in order. The Committee further recommended that the petitioners could not get lesser pay than Gopinath. The Committee directed giving the same benefit, as was given to Gopinath, to the petitioners with effect from 9th of September 1985, the date of appointment of Gopinath in LDA. By his order dated 13th of February 2003, Hon'ble the Chief Justice approved the recommendation and in exercise of his power conferred upon him under Article 229(2) of the Constitution of India, directed that 50 employees, who were senior to Gopinath be given the same benefit. However, such benefit was sought to be given under Rule 55(4) of the West Bengal Service Rule (WBSR) Part-1.

6. This was objected to by the respondent/State due to which the benefit could not be relesed or given to the appellants. Therefore, these six writ petitions were filed. Challenging the order of the Chief Justice the State filed those three writ petition. The learned single Judge by a common order dated 17th of November 2003 dismissed the six writ petitions and allowed those three. Hence these groups of appeals were filed.

7. It may be noted that the First Committee of a single Judge found the petitioners ineligible on the ground that Gopinath was not entitled to the benefit given to him. Whereas, subsequently when the objection was raised by the Accounts Department, certain modifications were made and some amount was recovered from Gopinath and ultimately the pay that was allowed to be retained by Gopinath was held to be in order. This was decided after the attention of the Gopinath was drawn to the situation. This has not been challenged. Thus, on the ground that Gopinath's pay having been in order, as found subsequently, the petitioners were entitled to the benefit of Rule 55(4) of the WBSR Part-I. In fact, at all material time the three Judges' Committee and the Chief Justice proceeded to give the benefit to the petitioners under Rule 55(4). In fact, in the writ petitions also the petitioners had claimed the benefit under Rule 55(4). However, at one place, relaxation of Rule 55(4) was claimed. It may, however, be noted further that when the WBSR was adopted for the purpose of governing the condition of services of the employees of the High Court, Rule 55(4) was not there. After Rule 55(4) was inserted in WBSR, High Court did not adopt the same. This fact is not in dispute.

Respondent's contention:

8. One of the contentions raised by Mr. Balai Chandra Ray, learned Advocate General, ably assisted by Mr. Tarun Kumar Roy, was that the claim having been based on Rule 55(4) and the pleadings being confined on Rule 55(4), the petitioners are not entitled to deviate from the pleadings and based their claim on any other rule. He has also pointed out that in case of Gopinath. Rule 42 was applied. The petitioners, therefore, are not entitled to depend upon Rule 49, which, even on facts, is inapplicable. To support his contention, he relied on the decision in S.S. Sharma v. Union of India, (1981) 1 SCC 397 : AIR 1981 SC 588 : [1980 (3) SLR 511 (SC)]. He also contended that despite this objection being raised in the Affidavit-in-Opposition the pleading was not changed. He further contended that Gopinath was entitled to the fixation under Rule 42(1)(ii). Accordingly, the pay of Gopinath was so fixed there under and correctly. To support this contention, he relied on the decisions in State of Andhra Pradesh v. G. Sreenivasa Rao, (1989) 2 SCC 290 (para 15) and Government of A.P. v. M. Pandurang, (1996) 7 SCC 11 (para-6) : [1996 (1) SLR 33 (SC)].

9. The other point that was urged was that huge arrear would be required to be paid if the order of the High Court is implemented. It would be a great hardship on the State exchequer. Rule 49 can be applied only if there are exceptional circumstances. No exceptional circumstances have been pleaded in the writ petition, neither the High Court has proceeded on the basis of any exceptional reason as contemplated in Rule 49.

Appellant's contention:

10. Mr. Saktinath Mukherjee, learned Senior Counsel appearing on behalf of the appellants, contended that Rule 55(4) does not apply in this case for two reasons. First, that Rule 55(4) was never adopted by the High Court and as such the benefit thereof cannot be available to an employee of the High Court in its absence. Second, that the principle of Rule 55(4) is inapplicbale in the facts and circumstances of the case since the field of operation thereof is completely different.

11. According to him, the High Court and the Judges' Committee proceeded on a misconception about the applicability of Rule 55(4) and though had referred to the said provision, but had exercised the power, which is otherwise available to the High Court without Rule 55(4) namely under Rule 49. When the power is in existence, the same can very well be exercised. If the pleading is founded on fact, the same cannot be allowed to be deviated from; but if on facts there is no deviation and it is only on law, then the principle enunciated in S.S. Sharma (supra), relied upon by Mr. Ray, would not apply. If a party seeks on a misconceived principle of law, though the right existed and flowed from other principle not pleaded, but argued before the Court of the first instance and the other side had the opportunity to counter the same, it cannot be said that it would cause prejudice to the other side. If power exists, misquotation of source would not imperil the action. It was not a misquotation of some source, but a deliberate exercise of a particular power that exists. Inasmuch as the source of power was the rule. The misquotation of a rule, no power from which flowed, would be wholly irrelevant. In support Mr. Mukherjee relied upon High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712 : [2003 (2) SLR 729 (SC)].

12. Once it is contended that Gopinath's Pay was fixed correctly under Rule 42, then it cannot be said that it was a wrong fixation pursuant to which no relief can be had. At the same time, whether wrongly or rightly fixed, if a junior got higher Pay, then the seniors could not continue on a lesser Pay. The fixation under Rule 42 could not be made until there was an existence of lien in favour of Gopinath, Lien was guided and governed by Rules 17 to 24 of WBSR. Under the said rules the lien ceased on the appointment to the LDA, a substantive post. Gopinath was a Section Writer Typist, an Ex-cadre post, which was not a feeder post of LDA. The post of LDA was a post filled up by direct recruitment and a bottom post. Therefore, the principle of lien could not continue in the post of LDA Gopinath of his own choice had competed in the Selection Examination and was selected and having been appointed, he could not get a pay higher than his seniors, who were appointed before him. This was also reflected at the time of promotion to the post of UDA. Gopinath was never given the seniority.

13. Article 229(2) of the Constitution of India gives an explicit power in the Chief Justice. When any rule involves financial implication, the exercise of power under Article 229(2) is subject to approval of the Governor. Once the rule is framed and the Governor grants approval, exercising of power flowing from such rule needs no further approval. If it is so, in that event, the Chief Justice cannot function. If in each step while exercising power under the rules since approved, fresh approval is required, then it would completely jeopardize the exercise of the function under the rule. Then the approval of the Governor obtained would be of no relevance. Such a proposition would be contrary to Article 229(2) and would be against its spirit. In support, he relied upon the decision in State of U.P. v. C.L. Agarwal, (1997) 5 SCC 1 : [1997 (4) SLR 259 (SC)] wherein it was held that the approval is with regard to the making of the rule. Once the rule is approved, action taken under the rule does not require further approval at each stage.

14. Under Rule 49 in exceptional circumstances, increment can be granted and this case is definitely an exceptional circumstance. Once the Chief Justice decides that the circumstance is exceptional, the same is not justiciable unless it is shown to be perverse or mala fide. If there are some circumstances, which might indicate to be exceptional and if it so occurs to the Chief Justice, the justification thereof cannot be decided by anyone else even by the Court. According to him, under usual circumstances Gopinath was not entitled it the increment, but the Government had approved. With the approval of Gopinath's case, the petitioners' case acquires a new dimension to justify grant of higher Pay to the petitioners in an exceptional circumstance where the junior (Gopinath) despite not being entitled in law was getting Pay higher than the seniors. Whether the circumstance is exceptional or not is a question to be decided by the Chief Justice in his wisdom and discretion. The wisdom of the Chief Justice cannot be questioned. The note appertaining to Rule 49 is not exhausive, it is a guidance for the sub-ordinates. The note does not limit the power of the Government or the Chief Justice.

High Court's contention:

15. Mr. P.K. Das, Senior Advocate, appearing on behalf of the High Court had supported Mr. Mukherjee and had contended that the power of the Chief Justice cannot be questioned and that the power has, in this case, been rightly exercised. In elaboration of his contention, he drew support from Baidynath Mukherjee v. Vivekananda Goswami, 2000 (1) CHN 72 (FB) : [2000 (2) SLR 314 (Cal.)]; Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187 : AIR 1990 SC 334; M. Gurumoorthy v. The Accountant General, Assam and Nagaland, (1971) 2 SCC 137 : AIR 1971 SC 1850 : [1971 (2) SLR 934 (SC)] and State of H.P. v. P.D. Attri, (1999) 3 SCC 217 : [1999 (1) SLR 641 (SC)].

Reply on behalf of the respondent:

16. After Mr. Mukherjee had concluded his reply, Mr. Ray wanted to address the Court since Mr. Mukherjee had relied on some decisions, which he did not reply at the initial stage. Such leave was granted. In reply, Mr. Ray contended that whether the undue hardship would entitle the Chief Justice to exercise his power under Rule 49, when Rule 49 speaks of exceptional circumstances, is a question can be gone into by the Court. Inasmuch as it is a question whether undue hardship and exceptional circumstances mean the same thing. The source of power cannot be disclosed for the first time in the appeal. In case of wrongful grant of scale, no right accrues to the others. The fixation of pay is governed by Chapter 5 WPSR Part-I. The learned single Judge did not examine whether exceptional circumstances existed. The Appeal Court has to exercise it for the first time and that there was no pleading and submission from the bar until before the Appellate Court. This cannot be done in appeal. He relied on Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : AIR 1997 SC 2366 : [1997 (4) SLR 333 (SC)] in relation to Rule 42(1)(ii). He relied on State of Gujarat v. C.G. Desai, (1974) 1 SCC 188 : AIR 1974 SC 246 : [1974 (1) SLR 420 (SC)] (paras 16-18) to contend that if a party takes a definite stand in the proceeding, he cannot deviate from the same.

The scope:

17. We may divide the contentions and counter-contentions raised in these appeals under two groups. The first may consist of two principal grounds and the second, a few subsidiary grounds ancillary to these two principal grounds. The two principal grounds are (1) when the power exercised by the Chief Justice exists for granting benefit of Pay to the employees of the High Court whether the wisdom of the Chief Justice can be questioned or in other words the decision of the Chief Justice is justiciable (2) when the power to grant the relief exists and follows from a different rule would misquotation or wrong quotation of power invalidate the action.

Article 229: Scope and Extent vis-a-vis power of the Chief Justice:

18. In order to deal with these two principal points, it would be necessary for us to examine the scope of the power conferred upon the Chief Justice under Article 229(2) of the Constitution of India and also to note the scope and extent of Rule-49 and Rule 42 read with Rule 17 to 24 of WBSR Part-I relied upon by the respective counsel.

19. Article 229 confers power on the Chief Justice to appoint officers and servants of the High Court. Sub-Article (2) provides that 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. The proviso contemplates that the rules made under clause (2) so far as relate to salaries, allowances, leave or pension shall required the approval of the Governor of the State In this case, WBSR has since been adopted by the High Court, which had since received the approval of the Governor. Admittedly such rules involve matters, which come under the proviso requiring approval of the Governor. Once the rules are approved by the Governor, the exercise of power flowing from such rules does not require further approval in each stage or otherwise. When the Chief Justice discharges his function in accordance with the rules so approved, the Chief Justice stands at the footing equal to that of the Governor. If the rules confer such power on the Chief Justice nothing can for bear him from exercising such power.

20. Once the rules are approved, the Chief Justice is not required to seek approval of the Governor once against while exercising the power conferred by the Rules in each individual case. It would be then wholly against the spirit of Article 229(2), which grants an autonomy in the administration of the High Court by the Chief Justice. Such autonomy is only subject to the condition in relation to fiscal matters concerning the condition of service of the employees of the High Court requiring approval of the Governor, which ends with the approval of the rules leaving the autonomy absolute for the Chief Justice. While discharging his function under the rules and exercising the power conferred upon him by the rules approved by the Governor, the Chief Justice is not more required to take fresh approval in each case. The only question that can be looked into is as to whether the function discharged or the jurisdiction exercised is in consonance with the rules or not. Once it is found that the exercise is in consonance with the rules, the wisdom or discretion of the Chief Justice in such exercise is no more justiciable unless it is shown that the exercise of such power is perverse or mala fide. If there is some justifiable reasons in taking such a decision, the wisdom of the Chief Justice in taking such decision and the discretion exercised therefore is non-justiciable.

21. In order to support the above proposition, we may refer to the decision in State of U.P. v. C.L. Agarwal, (1997) 5 SCC 1; Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187 : AIR 1990 SC 334 : [1990 (6) SLR 36 (SC)] and High Court of Judicature For Rajasthan v. Ramesh Chand Paliwal, (1998) 3 SCC 72 : [1998 (2) SLR 200 (SC)]. In C.L. Agarwal (supra) it was held that when the rules are approved by the Governor and the Chief Justice acts in terms of such rules, particularly, in granting premature increment, the same did not require the approval of the Governor. In Supreme Court Employees Welfare Association (supra), it was held that the framing and approval of the rule is one thing and exercising power conferred by the rules is another. Once the rules are approved, nothing limits the power of the Chief Justice to discharge the function and exercise the power conferred by the rules.

22. In M. Gurumoorthy v. The Accountant General, Assam and Nagalanad, (1971) 2 SCC 137 : AIR 1971 SC 1850, it was held that Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointment of officers and servants of the High Court and their conditions of service. This can be prescribed by rules made by him apart from the special situation contemplated by the proviso that the Governor's approval must be sought to the extent the rules relate to salaries, allowances 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 involvement of expenses, the Government has to approve it.

23. In Baidynath Mukherjee v. Vivekananda Goswami, 2000 (1) Cal HN 72, the Full Bench of this Court following the decision in (1) Karam Pal v. Union of India, (1985) 2 SCC 457 : AIR 1985 SC 744 : [1985 (1) SLR 639 (SC)] (2) High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, (1998) 3 SCC 72, State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1 (3) Supreme Court Employees' Welfare Association v. Union of India, (1989) 4 SCC 187 : AIR 1990 SC 334, State of U.P. v. C.L. Agarwal, (1997) 5 SCC 1, B.S. Yadav v. State of Haryana, 1980 Supp SCC 524 : AIR 1981 SC 561 : [1980 (3) SLR 591 (SC)] (4) Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364 : AIR 1989 SC 1899 : [1989 (3) SLR 735 (SC)], Narender Chand Hem Raj v. Lt. Governor, Union Territory Himachal Pradesh, (1971) 2 SCC 747 : AIR 1971 SC 2399 (1971 Tax LR 1734), State of Himachal Pradesh v. A Parent of a Student of Medical College, (1985) 3 SCC 169 : AIR 1985 SC 910 and B.N. Nagarajan v. State of Mysore, AIR 1996 SC 1942 held that (1) in the absence of any challenge to any legislative rules, the resultant situation flowing from compliance of such rules are not open to attack; (2) under Article 229 of the Constitution of India, the Chief Justice is the sole authority to make rules in matters relating to appointment, removal, fixation of salaries, conditions of service, revision of pay etc. related to financial obligations, subject to the approval of the Governor of the State; (3) powers conferred upon the Chief Justice under Article 229 of the Constitution of India is a legislative power which is akin to the power of the Chief Justice of India under Article 146(2) thereof and can be compared with that of the Governor of a State conferred by proviso to. Article 309 of the. Constitution of India; (4) the Constitution does not permit the Court to direct or advise the executive in matters of policy or to surmonize qua in matter which under the Constitution lies within the sphere of legislative or executive.

24. Thus, it is now a settled proposition of law that once the rules are framed and is approved by the Governor in relation to financial matters, so long there is no legislation by the State legislature, action taken under the powers conferred by rules cannot be questioned and when such powers exercised by the Chief Justice stands on the equal footing as that of the Governor.

25. Recommendations of the Chief Justice and the State Government.

26. The power exercised by the Chief Justice under the rules, since approved by the Governor, cannot be questioned by the executives. The State Government cannot raise any objection to the recommendation for fixation salary, sanction of creation of post or evision of pay in case of disparity or in cases involving exceptional circumstances and particularly when it is aimed at ameliorating the service condition of the petitioners. Such actions cannot be sermonized or questioned by the executives or even by the Court when exercised bona fide and is within the scope of the power conferred.

27. In State of H.P. v. P.D. Attri (supra), the Apex Court had held that the recommendations of the Chief Justice of the High Court were to be given due deference and utmost consideration by the State Government. It certainly changed after the decision of the Apex Court in Punjab & Haryana v. Sunder Sham Kapoor, (1997) 9 SCC 174 : [1997 (1) SLR 748 (SC)] where Revisors in the Punjab and Haryana Court were to be given benefit of pay scale of Superintendent (Grade II) from 5.8.1980 from which date the respondents are agreeable to the benefit granted to them. The Apex Court commended the State Governments, following the observations in Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 (para 57): (SCC p. 221), which we prefer to quote:

“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 pensions, 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 straightway refuse to grant such approval but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India.”

28. The Apex Court again in High Court of Judicature of Rajasthan v. Ramesh Chand Paliwal, (1998) 3 SCC 72 : 1998 SCC (L&S) 786 : (1998) 2 (JT) SC 1 restarted that a State Government is expected to respect the recommendations made by the Chief Justice of the High Court in the following words:

“25. Since, under the Constitution, the Chief Justice has also the power to make rules regulating the conditions of service of the rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the scale of pay. Since such rule would involve finances, it has been provided in the constitution that it will require the approval of the Governor which, in other words, means the State Government. This Court in State of A.P. v. T. Gopalakrishnan Murthi, (1976) 2 SCC 883 : 1976 SCC (L&S) 363 : AIR 1976 2 SC 123 : (1976) 1 SCR 1008 had expressed the hope that one should accept in the fitness of things, and in view of the spirit of Article 229 that the approval, ordinarily and generally, would be accorded. This was reiterated by this Court in Supreme Court Employees' Welfare Assn. v. Union of India. We again reiterate the hope and feel that once the chief Justice, in the interest of High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officer and staff working under him, the State Government would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for the post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised.”

Exercise of power by Chief Justice: How far justiciable:

29. Now it is necessary to examine as to whether the power exercised is justiciable; in case it is, the extent thereof The principles of justiciability may now be examined in the light of the scope that the Court can exercise under Article 226 of the Constitution of India in reviewing an action taken by the Chief Justice.

30. the action of the Chief Justice can be justiciable only on limited grounds. It may also be kept in mind that the Chief Justice acts as delegate by virtue of conferment of power. He must in this regard necessarily act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. The validity of the action taken under the powers is open to question if it is ultra vires the Constitution or the governing Act or repugnant to the general principles of laws of the land or it is so arbitrary or unreasonable that no fair mind authority could have even made it. These are some of the general principles, which must guard the repository of power in all his action, they apply with equal force to the exercise of power contemplated under Article 146(2) including the proviso as well as Article 229(2) and the proviso. These principles, must, therefore, necessarily weigh with the Court Whenever the action of a constitutional or statutory authority is under challenge. These principles are, however, subject, is stated earlier, to the overriding consideration is to the amiability of the impugned subject matter to judicial review, that of course, is a question which must in each case, when challenged, be decided by the Court with reference to the facts in issue. Then against, the exercise of power legislative or administrative can be set aside if there is manifest error in the exercise of such power or the exercise of power is manifestly arbitrary or suffers from nonconsideration or non-application of mind to relevant factors which can be regarded as manifestly erroneous or that it was exercised on the basis of facts, which do not exist and which are patently erroneous. It was so held in Supreme Court Employees Welfare Association (supra).

31. In the present case, we are left with the scope of deciding the validity of the order within the ambit as laid down therein and examine how far it can be questioned. When brought before the Court, it is open to the Court to examine the situation and arrive at a conclusion in order to settle the dispute between the parties litigating before it. Applying the principle, we are to find out as to whether the exercise bf the power that existed in the Chief Justice could be brought within the purview of the justiciability as referred to therein.

Source of power: Misquoting or wrong quoting: Whether invalidate action:

32. In case the power exists and such power is exercised either on a misconception of source of the power or on the misapprehension thereabout the misquoting of the rule or the source of power or wrong quotation of the rule or source of the power would not invalidate the exercise of power. The power is exercised by reason of the power or jurisdiction conferred upon it. The source of power is the rule governing the condition of service of the employees since approved by the Governor. If one or the other rule confers the power or in other words the source of power is within the rule, the purported quoting of a different rule or misquoting or wrong quoting of another rule would not change the nature and character of the power so exercised. It is the power that exists that is being exercised.

33. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat, (2003) 4 SCC 712, the Apex Court had laid down that non-mentioning or wrong mentioning of a provision of law would not invalidate an order if the source therefore can be found out either under a general law or a statute law.

34. Admittedly, Rule 55(4) is not applicable on two reasons. First, that Rule 55(4) was inserted in WBSR subsequent to its adoption by the High Court. Admittedly, the High Court did not adopt the same. On account thereof, benefit of Rule 55(4) would not be available to the employees of the High Court. Second, Rule 55(4) applies in case of promotion or officiation in a higher post, as rightly contended by Mr. Ray. The post of LDA is neither a higher nor a promotional post. Rule 55(4) would, therefore, not be applicable in this case.

The source of power: Exercise thereof vis-a-vis the present case: Test of justifiability: Whether satisfied:

35. It is contended by Mr. Ray that the fixation of Pay of Gopinath on induction to LDA from an Ex-cadre post, admittedly, not being a feeder post, was made pursuant to Rule 42. Mr. Mukherjee, on the other hand, contended that in the case of Gopinath, Rule 42 would not be applicable. On the other hand, both Mr. Mukherjee and Mr. Das sought to support the action taken by the Chief Justice under Rule 49 as the source of the power to do so.

36. In case it is found that the pay of Gopinath could be rightly fixed under Rule 42 in that event, the hardship or exceptional circumstances would not be available in the case of the petitioners. At the same time, if the pay was fixed wrongly, then it would definitely be an exceptional circumstance. Inasmuch as the Constitution provides for equal pay for equal work under Article 39(d). The principle of parity has been reiterated by the Apex Court and the High Courts time and again.

37. In this context Mr. Ray had relied on the decision in State of Andhra Pardesh v. G. Sreenivasa Rao, (1989) 2 SCC 290. Relying on paragraph 15, he contended that the ‘equal pay for equal work’ does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority. Ordinarily grant of higher pay to a junior would ex facie be arbitrary, but if there are justifiable grounds in doing so the seniors cannot invoke the equality doctrine. He also relied on the decision in Government of A.P. v. M. Pandurang (supra) Relying on paragraph 16, he contended that if some juniors by the circumstances of the length of service drew higher pay, parity cannot be claimed by seniors on that basis.

38. It may be noted that the principle laid down there are not absolute to entitle a person, despite being junior to higher pay than his seniors on the strength of length of service alone. It is dependent on various factors namely seniority, source of recruitment, educational qualifications and various other incidence of service. When a single running pay scale is provided in the cadre, the constitutional mandate for equal pay for equal work is satisfied. Now the grounds on which higher pay to a junior can be justifiable may be illustrated namely: when pay fixation is done under valid statutory rules/executive instructions; when persons recruited from different source are given pay protection; when a senior is stopped at efficiency bar; when promotee from lower cadre or a transferee from another cadre is given pay protection; when advance increments are given for experience/passing a test/acquiring higher qualification or as incentive for efficiency. These examples may not be exhaustive but are some of the eventualities when a junior may be drawing higher pay than his seniors without violating the mandate of equal pay for equal work. The differentia on these grounds is to be based on intelligible criteria having rational nexus with the object sought to be achieved.

39. It was exactly the proposition that was laid down by the Apex Court in G. Sreenivasa Rao (supra) In M. Pandurang (supra) the ratio laid down in G. Sreenivasa Rao (supra) was followed on the basis of the facts involved in the said case, namely that one of the juniors was granted Selection Grade Scale of pay, another drawing higher scale of pay due to length of service in the feeder cadre, which was permissible under the fundamental rules for the purpose of granting special pay to a candidate in the higher promotional post.

40. Thus, these two decisions do not lay down any absolute proposition to hold the length of service would justify grant of higher pay to a junior. The length of service can be taken into consideration if such length is relevant to the feeder post or if the candidate has been transferred from another cadre or the recruitment was effected from different sources or that such protection was given on a promotional post

41. In the present case, as we find that Gopinath was holding an Ex-cadre post which was not one of the sources of recruitment to the post of LDA. The post held by Gopinath was not a feeder post for the post of LDA. The post of LDA was not a promotional post. The post of LDA was filled up by direct recruitment. The post of LDA was the bottom post in the cadre in which the recruitment was made. Therefore, none of the factors in which higher pay could be justified to a junior, is satisfied.

Direct Recruitment: Effect of: Lien: When available:

42. Now we may look into the effect of direct recruitment, in the context of Rule 42 vis-a-vis Rules 17 to 24 read with Rule 5(23) of the WBSR.

Direct recruitment:

43. In State of Gujarat v. C.G. Desai (supra), the Apex Court held that if a person, to avoid the long tortuous wait leaves his position in the never ending queue looking for promotion and takes a short-cut through the direct channel to Class II Service, he gives up once for all, the advantages and disadvantages that go with the channel of promotion and accept all handicaps and benefits attached to the group of direct recruits. He cannot, after his direct recruitment, claim the benefit of his pre-selection service and thus have the best of both the worlds. It is well settled that so long as the classification is reasonable and the persons falling in the same class are treated alike there can be no question of violation of the constitutional guarantee of equal treatment. Referring to Ganga Ram v. Union of India, (1970) 1 SCC 377 : AIR 1970 SC 2178 : [1970 SLR 755 (SC)], the Apex Court observed that in applying the wide language of Articles 14 and 16 to concrete cases, doctrinaire approach should be avoided and the matter should be considered in a practical way. If the pre-selection service is considered or countered, it would create serious complications in running the administration; it would result in inequality of treatment rather than removing it. If pre-selection service of a direct recruit is taken into account for the purpose of promotion it will create two classes amongst the same group and result in discrimination against those direct recruits who had no such preselection service to their credit. Inasmuch as the smooth working and uniform application of the principle of seniority would be seriously disturbed. The department would be faced with anomalous situation of a junior officer becoming eligible to be considered for promotion over the head of the seniors in the same group.

Lien: When available:

44. In Jagdish Lal v. State of Haryana (supra) dealing with the question of lien, the Apex Court had held that a Government servant shall have a lien on the post and, simultaneously, he shall not have right to hold any lien on more than one post. A Government servant's lien on the post stands terminated on his acquiring a lien on a permanent post outside the cadre on which he is borne. Such lien is available when a person is promoted to officiate in a different post or he is transferred to another post or he is promoted to a post subject to provision or otherwise. An employee cannot simultaneously enjoy the benefit of two posts/service/grade/cadre nor is he eligible to hold lien on two posts. The lien of the feeder post or the source post can continue until the cycle of acquiring lien in the new post is complete.

45. This principle of lien we may consider now. Rule 5(23) of WBSR defines lien to mean the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post, including tenure post, to which he has been appointed substantively.

46. This lien is governed under Rules 17 to 24 of the WBSR Part-I. We may quote the rules so far relevant for our present purpose:

“Rule 17. Lien-Unless in any case it be otherwise provided in these rules, a Government servant on substantive appointment to any permanent post acquires a lien on the post and ceases to hold any lien previously acquired on any other post.

*********

Rule 19. Unless his lien is suspended under rule 20 or transferred under rule 23, & Government servant holding substantively a permanent post retains a lien on the post—

(a) while performing the duties of that post:

(b) while on foreign service, or holding a temporary post, or officiating in another post;

(c) during joining time on transfer to another post; unless he is transferred substantively to a post on lower pay, in which case his lien is transferred to the new post from the date on which he is relieved of his duties in the old post;

(d) while on leave; and

(e) while under suspension.

*********

Rule 20. (1) The lien of a Government servant on a permanent post which he holds substantively shall be suspended if he is appointed in a substantive capacity—

(a) to a tenure post, or

(b) to a permanent post outside the cadre on which he is borne, or

(c) provisionally, to a post on which another Government servant would hold a lien had his lien not been suspended under this rule.

(2) The lien of Government servant on a permanent post which he holds substantively may be suspended if he is deputed out of India or transferred to foreign service, or, in circumstances not covered by subrule (1), is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.

(3) Notwithstanding anything contained in sub-rules (1) and (2), a Government servant's lien on a tenure post may in no circumstances be suspended. If he is a appointed substantively to another permanent post, his lien on the tenure post must be terminated.

(4) If a Government servant's lien on a post is suspended under sub-rule (1) or (2), the post may be filled substantively, and the Government servant appointed to hold it substantively shall acquire a lien on it: provided that the arrangements shall be reversed as soon as the suspended lien revives.

Note 1: Unless any rule or order otherwise directs, this clause shall apply if the post concerned is a post a selection grade of a cadre.

Note 2: When a post is filled substantively under this clause, the appointment will be termed a provisional appointment: the Government servant appointed will hold provisional lien on the post and that lien will be liable to suspension under sub-rule (1) or (2) of this rule.

(5) A Government servant's lien which has been suspended under sub-rule

(1) shall review as soon as he ceases to hold a lien on a post of the nature specified in that sub-rule.

(6) A Government servant's lien which has been suspended under sub-rule

(2) shall revive as soon as he ceases to be on deputation out of India or on foreign services or to hold a post in another cadre, provided that a suspended lien shall not review because the Government servant takes leave if there is reason to believe that he will, on return from leave, continue to be on deputation out of India or on foreign service or to hold a post in another cadre and the total period of absence on duty will not fall short of three years or that he will hold substantively a post of the nature specified in sub-rule (1).

Rule 21. (1) A Government servant's lien on a post may in no circumstances be terminated, even with his consent, if the result will be to leave him without a lien or a suspended lien upon a permanent post.

(2) In a case covered by clause (b) of sub-rule (1) of rule 20 the suspended lien may not except on the written request of the Government servant concerned, be terminated while the Government servant remains in Government service.

Note: In a case covered by rule 20(1) of W.B.S.R. Part I, where a Government servant is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne, rule 21(2), ibid precludes the termination of his suspended lien unless and until a written request to that effect is received from him. The result is that it is possible for such a Government servant to stop his suspended lien being removed from the present cadre indefinitely and thus cause inconvenience to the parent office. In order to meet such situation, Government have decided that a Government servant who is transferred to a post outside the permanent cadre should not be appointed substantively to such a post unless he agrees in writing to forego his lien on the old post.

Rule 22.1 Omitted.

Rule 23. Subject to the provision of the rule 24, the lien of a Government servant who is not performing the duties of the post to which the lien relates, even if that lien has been suspended, may be transferred to another permanent post in the same cadre.

Rule 24. (1) A Government servant my be transferred from one post to another:

Provided that, except (i) on account inefficiency or misbehaviour, or (ii) on his written request, he shall not be transferred substantively to, or except in a case converted by rule 65, appointed to officiate in, a post carrying less pay than the pay of the permanent post on which he holds a lien, or would hold lien had it not been suspended under Rule 20:

Provided further that unless the transfer is from one cadre post to another, the post to which a Government servant may be transferred shall be a post (i) which carries a scale of pay comparable to that of the post presently held by the Government servant, (ii) for which the Government servant possesses at least the minimum of the prescribed qualifications and (iii) in the recruitment rules for which there is no bar to the appointment of the Government Servant to the post by transfer. [Notification No. 3571 F./1/R-18(36)/61, dated 5th October, 1967]

(2) Nothing in sub-rule (1) of this rule or in clause (23) of Rule 5 shall operate to prevent the retransfer of a Government servant to the post on which he would hold a lien, had it not been suspended in accordance with the provisions of sub-rule (1) of Rule 20.”

47. Under Rule 17 on substantive appointment to a permanent post a Government servant acquires a lien on that post and ceases to hold any lien previously acquired on any other post. However, under Rule 19, unless suspended under Rule 20 or transferred under Rule 23, the Government servant can retain the lien acquired in the substantive post held by him, (a) while performing duties in that post; (b) while on foreign service, or holding a temporary post, or officiating in another post; (c) during joining time on transfer to another post; unless he is transferred substantively to a post lower on pay, in which case his lien is transferred to the new post from the date he is relieved of his duty in the old post; (d) when on leave; and (e) while under suspension. Under Rule 20, lien held in substantive permanent post is suspended (1) on appointment in a substantive capacity (a) to a tenure post, or (b) to a permanent post outside cadre on which he is borne, or (c) provisionally to a post on which another person holds lien not suspended under Rule 20: (2) if deputed out of India, or transferred to foreign service, or transferred in officiating or substantive capacity to a post in another cadre if the absence in the lien post is three years and above. On appointment to a substantive post, the lien in tenure post stand terminated. Under Rule 21 a Government servant transferred to a post outside the permanent cadre shall not be appointed substantively to such post unless he agrees to forego his lien on the old post. Under Rule 24 a Government servant cannot be transferred substantively to permanent post of lower pay except on account of inefficiency, misbehaviour or on his own request provided there is no bar, in the recruitment rules, of appointment by transfer.

48. The above provisions make it clear having regard to the facts and circumstances of the case that Gopinath could not claim lien of his Ex-cadre post as soon he had given up the benefit of that post and opted to compete in the Selection Examination for being directly recruited in the bottom post of LDA of which the post held by him was neither a source of recruitment nor a feeder post and in the recruitment rules whereof there was no provision for appointment by transfer Gopinath is not transferred from his Ex-cadre permanent post to the present post nor he has been promoted, neither he had been officiating. The moment he was inducted through direct recruitment in the post of LDA he had given up, as was held in the case of C.G. Desai (supra), all the benefits and advantages of the post he held and opted for the benefits and advantages of the post of LDA. Therefore, the moment he entered the post of LDA through direct recruitment, he could not hold Hen of two posts. The moment he entered the post of LDA, he acquires the lien of that post. He could not hold the lien of another cadre when he came through direct recruitment to the cadre of LDA. On his substantive appointment to the permanent post of LDA, his lien in the substantive Ex-cadre post held permanently stood terminated. Thus, it appears that Gopinath could not claim any benefit on account of his length of service by reason of any lien.

Rule 42: Fixation of pay:

49. Elaborate argument has been made by Mr. Ray to contend that Gopinath's pay was fixed under Rule 42 under which the pay of a Government servant appointed substantively to a post on a time scale of pay is regulated. Under sub-rule (1)(ii), a person, if holds lien on a permanent post other than a tenure post or would hold a lien on such a post had his lien not been suspended, when appointed to the new post without involving assumption of duties or responsibilities of greater importance, he will draw his initial pay at the stage of the time scale which is equal to his substantive pay in respect of the old post unless the minimum pay of the time scale of the new post is higher than his substantive pay of the old post, in which case he will draw the minimum as initial pay in the new post. In terms of sub-rule (2) unless the conditions prescribed in clause (1) are fulfilled, he will draw as initial pay at the minimum of the time scale. This question is dependent on the availability of the lien in the post. If the lien ceases then Rule 42 would not be available.

50. Lien can be claimed if the post to which he was serving is a feeder post to which he is appointed or the post held by him was one of the sources from which recruitment was permissible or if the post now held is a post where he is promoted or is promoted to officiate provided he could be inducted to the said post by transfer, officiation, deputation or otherwise. His lien in the Ex-cadre permanent post was terminated as soon he was substantively appointed to the permanent post of LDA in view of the Rules 17 and 24 as discussed hereinbefore. As soon Gopinath opted to get himself directly recruited to the post of LDA giving up the post he was holding, he gave up all the benefits and advantages attached to the said post and has to be treated along with all other candidates directly recruited and in absence of any lien, his pay was supposed to be fixed at the bottom of the time scale of pay in view of Rule 42(2) since he does not satisfy the test contemplated in Rules 42(1). His seniority was correctly fixed below the appellant No. 5 and got promotion long after the appellants got promotion to the post of UDA. Admittedly, he was junior to all the direct recruits. Unless lien was available to him, he could not claim fixation of pay at a higher stage than those of his seniors. If the rules do not permit fixation of pay at a higher stage, in that event, if his pay is fixed at a higher stage and it is claimed by the respondent that this fixation was in order, then it is no more open to the respondent to contend that the appellants/petitioners are not entitled to parity of pay. Surely a senior cannot get pay lesser than his junior. Gopinath joined this post with his eyes open, abandoning his right to the other post in order to claim the benefit attached to the post of LDA. Therefore, it cannot be said that Gopinath's pay was correctly fixed under Rule 42. If it is so, the petitioners are entitled to pay as was given to Gopinath with effect from the date when Gopinath's pay was fixed at a higher stage. Once the respondent claims that the pay of Gopinath was correctly fixed, it cannot contend that the petitioners cannot claim parity on the basis of a wrong fixation of pay of Gopinath. When the pay was wrongly fixed and Gopinath was given a higher pay, the petitioners/appellants being senior to him cannot be paid less and are entitled at lest to the some pay Gopinath was given.

Hardship on the part of the State: Whether a ground for denial:

51. That huge arrear would be required to be paid and that it would be a great hardship on the State imposing financial burden cannot be ground to refuse the benefit of Article 39(d) of the Constitution of India or to object to the order passed or action taken by the Chief Justice in exercise of the power under Article 229(2) thereof. If the legal principle is clear and entitlement is apparent, difficulty of the State Government cannot be a ground to deny the same, even if such benefit is granted with reference to a wrong provision.

Rule 49 WBSR: Scope and effect: Justiciability of the action taken:

52. On the other hand, Rule 49 prescribes:

“Rule 49. Premature increment-Save in exceptional circumstances and under specific orders of Government, no Government servant on a time-scale of pay may be granted a premature increment in that time-scale:

Provided that increment shall be drawn with effect from the 1st day of the month in which it becomes otherwise due under the rules (Proviso added vide No. 6944F dt. 3.9.1973)

Note 1:— It is contrary to the principle of time-scale pay to grant an increment before it is due, and no recommendation that such a grant should be made will be entertained except in circumstances which would justify the grant of personal pay to a Government servant whose pay is non-incremental.”

53. In terms of the above rule, increment in time-scale of pay can be granted only in exceptional circumstances. Now we may consider whether such exceptional circumstances did exist.

54. As observed that exceptional circumstances did exist. Inasmuch as this was drawn to the attention of the Chief Justice. Having regard to the situation the Chief Justice appointed two Committees. The first Committee submitted its report which itself is an indication of an exceptional circumstance where it was found that the Gopinath was not entitled to the fixation of pay and that the petitioners were not entitled to the benefit of Rule 55(4). Therefore, those circumstances on the face of it, appears to be exceptional.

55. Whether these circumstances are exceptional or not it is the discretion of the Chief Justice to decide. The exercise of such discretion is based on the wisdom of the Chief Justice. Whether this is exceptional circumstance or not when decided at the wisdom of the Chief Justice unless it is shown to be perverse or arbitrary or it suffers from manifest error in the exercise of power or from non-consideration of or non-application of mind to relevant factors, such wisdom is non-justiciable and cannot be questioned. Once in his wisdom the Chief Justice takes an action, the same cannot be questioned if the action of the Chief Justice is followed by such source of power. Rule 49 is the source of power. How it is exercised, unless it comes within the scope and ambit of justiciability, as discussed above, the same is immune from being questioned. The note appended to Rule 49 is a guideline for recommendation. When the Chief Justice exercises his power under Rule 49, he does not do on the basis of the recommendation. The discharge of such function by the Chief Justice is not recommendatory in nature. The principal function is Rule 49. The note does not limit or circumstance that function. It is only a guidance to the subordinate in making recommendation.

56. The Chief Justice, in this case, had considered the case by examining the report of the two Committees. It is open to the Chief Justice to accept or not to accept the report of the three Judges' Committee. One it is accepted and when it is shown that the source of power is there and that there is nothing to show that the Chief Justice had exercised it mala fide or arbitrary or erroneously; and we have found that, it could have been exercised in law and that the wisdom of the Chief Justice in the exercise of such power is non-justiciable; in the absence of any of the grounds on which it can be justiciable, we do not think that the State Government, can object to it. At the same time, the Court is also not supposed to scrutinize the same or examine the same except to the extent to which the justiciability can be examined.

57. After having examined the facts and circumstances of the case, in our view, the present action of the Chief Justice is non-justiciable. As already held by us hereinbefore that once the Chief Justice takes an action pursuant to the rules since approved by the Governor, such action does not require any further approval. If no approval of the Governor is necessary, the State Government has no right to question the same. Such right will run contrary to the autonomy of the Chief Justice as contemplated under Article 229(2) of the Constitution of India.

Rules of pleading: Deviation from: How far permissible:

58. It is contended by Mr. Ray that the petitioners had claimed their right under Rule 55(4). The first Committee reported that Rule 55(4) is not available to the petitioners. Whereas the subsequent three Judges' Committee had proceeded on the principles of Rule 55(4). The Chief Justice had also proceeded to grant the relief in execise of power misconceivably under Rule 55(4). In the writ petition also the entire ground that has been made out is under Rule 55(4). That Rule 55(4) is not available was pointed out by the respondent in the Affidavit-in Opposition. Admittedly, the writ petitioners did not amend the writ petition, therefore, the writ petitioners are not entitled to deviate from the pleadings and take altogether a new point at the bar, depriving the respondent of its right to contest the said point to their prejudice.

59. True that this pleading was not there. A party is not permitted to deviate from the pleadings as was held in S.S. Sharma (supra) cited by Mr. Ray, wherein it was held that the Courts should ordinarily insist on the parties being confined to their, specific written pleadings and should not be permitted to deviate from them by way of modification or supplementation except through the well-known process for formally applying for amendment. It is not that justice should be available to those who approach the Court confined in a straight-jacket. But there is a procedure known to the law, and long established by codified practice and good reason, for seeking amendment of the pleadings. Besides this, oral submissions raising new points for the first time tend to do grave injury to the contesting party by depriving it of the opportunity: to which the principles of natural justice hold it entitled viz; of adequately preparing its response.

60. In the present case, admittedly, though the pleadings did not contain this particular point but this was urged before the Court of first instance and this was the main ground on which the case was contested. This is sufficiently noted in the judgment under appeal. Before this Court also, this was so argued. Even if for argument's sake, we may presume that adequate preparation was not possible before the learned counsel single Judge, even then it is inconceivable that the respondents could not prepare themselves to argue the case before the Appeal Court without adequate preparation. Then again the matter was hotly contested before the learned single Judge and was argued days together. Therefore, we do not think that there was sufficient scope for adequate preparation on behalf of the respondents.

61. In fact, if the pleading is related to facts, the Court cannot permit deviation; but if it is a question of principle of law based on the facts and relates to the exercise of power, which is the bone of contention and a wrong reference to the source of power when the source of power exists would not amount to deviation. The point was not at all new. It was the same point but it was sought to be supported by the source of power under which it could be exercised instead of the misquoted source. In such a situation, it is the question of prejudice, which would be material. When it is a principle of law applied on the facts pleaded, the principle of prejudice would not apply. Inasmuch as in course of argument such legal principle can be countered and if necessary after seeking of adjournment.

62. In any event, the matter had since been argued before this Court at length and the learned Court below, we do not think that any prejudice could be said to have been operated against the respondents so far as this case is concerned. It would be the pleadings founded on fact, which cannot be allowed to be deviated from. But if on facts no deviation is made and it is only on law, then this principle of deviation would not apply. A party seeking on a misconceived principle of law (there cannot be any estoppel in law)., though the right existed and flowed from other principle not pleaded but argued before the Court of first instance and the other side had the opportunity to counter the same, no prejudice can be said to have occurred to the other side.

 Conclusion:

63. Having regard to the facts and circumstances of the case, it appears that Rule 49 is the source of power, which the Chief Justice had exercised. While exercising such power, the Chief Justice had applied his mind and took into consideration the relevant factors when the reports were sought for and were gone through and approved. Therefore, it is not a case of non-application of mind or nonconsideration of material factor as was sought to be contended by Mr. Ray.

64. Under the usual circumstances Gopinath would not have been entitled to the increment, by the Government had approved the same, thus it had acquired new dimension to justify the grant of higher pay to the petitioners. The circumstances, in which it were granted, were found to be exceptional due to which the Chief Justice had exercised his discretion. The, discretion is given to the Chief Justice. Such discretion is to be exercised according to the wisdom of the Chief Justice. The wisdom being non-justiciable in the absence of any of the grounds on which it can be said to be justiciable, the State Government cannot object to the same.

Order:

65. In the result, the appeal succeeds and is allowed. The orders appealed against are hereby set aside. The three writ petitions filed by the State stand dismissed. The six writ petitions filed by the appellants stand allowed. (1) The return memos dated 21st April 2003, 29th April 2003 and 6th May 2003 issued by the Pay and Account Office Calcutta and the purported note sheet issued by the respondent authorities as forwarded vide memo No. 2613-J dated 7th April 2003 are hereby quashed. A Writ of Certiorari do issue accordingly. (2) Let a Writ of Mandamus do issue declaring that the appellants/petitioners are entitled to their pay fixation in terms of order dated 13th of February 2003 in the post of LDA on and from 9th September 1984 at par with Gopinath as subsequently approved by the Government. (3) Let a Writ of Mandamus do issue commanding the respondent authorities and each one of them and their men, agents, servants, subordinates, and assigns to release the arrears in respect of pay of the appellants/petitioners in with effect from 9th of September 1985 at par with Gopinath and to re-fix their pay accordingly and to go on paying their current salary at such rate and all other service benefits ancillary thereto. (4) The respondents are directed to take all such steps in terms of this order for Pay fixation and release of arrears and payment of current salary within period of six months from this date.

66. There will, however, be no order as to costs. Xerox certified copy of this Judgment be made available to the parties, if applied for, within seven days from the date of such application.

R.N. Sinha, J.:— I agree.

67. Appeal allowed.