State of West Bengal Vs. High Court Employees’ Welfare Association [Calcutta High Court, 23-06-2016]

West Bengal Services (Revision of Pay and Allowances) Rules – High Court Employees – A vibrant judiciary can only perform to its optimum level if the employees who assist in the administration of justice are not dissatisfied. Their expectation to be paid salary at a reasonable level, in tune with the employees of other High Courts is justified.


IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION ORIGINAL SIDE

PRESENT: The Hon’ble Justice Nishita Mhatre And The Hon’ble Justice Tapash Mookherjee

Judgment on : 23.06.2016

A.P.O. 185 of 2011 W.P. 1630 of 2010

State of West Bengal & Others … Appellants vs. The High Court Employees’ Welfare Association & Others
… Respondents

With G.A. 3594 of 2015 APOT 544 of 2015 C.C. No. 28 of 2012

Hari Krishna Dwivedi, Principal Secretary, Department of Finance, Government of West Bengal vs. The High Court Employees’ Welfare Association & Another For the State/Appellants: Mr. Jayanta Kumar Mitra, Ld. A.G.  Mr. Lakshmi Kumar Gupta, Ld. Addl. A.G. Mr. Joytosh Majumdar Mr. Pinaki Dhole Mr. Arindam Mondal For the High Court Employees’ Welfare Associateion/Respondent : Mr. Partha Sarathi Sengupta Mr. Soumya Majumdar Mr. Victor Chatterjee For the Hon’ble High Court : Mr. Siddhartha Banerjee

Nishita Mhatre, J.

1. The employees of the High Court at Calcutta have been waiting patiently to have the recommendations of the Special Pay Commission which were submitted on 24th August, 2010 with regard to their pay allowances and other service conditions, implemented. These recommendations have been tossed to and fro between the State Government and the High Court Administration and have been the subject matter of litigation without any substantial justice being done to the employees. Besides 2 (two) increments which have been given to them after the interim report was submitted on 22nd April, 2009, the employees have got no further benefit pursuant to the recommendations of Special Pay Commission.

2. A Special Pay Commission was appointed in 1996 by the Hon’ble Chief Justice of the Calcutta High Court with only Hon’ble Judges of this High Court as its members for recommending the pay scales and allowances payable to the staff and officers of the High Court. The recommendations made by the Special Pay Commission of 1996 were accepted by the Full Court, and the State Government was requested to agree to pay them. However, the State Government refused to accept these recommendations. This led the respondent, i.e., the

High Court Employees’ Welfare Association

(hereinafter referred to as “Welfare Association”) to file a writ petition directly under Article 32 of the Constitution of India before the Supreme Court being Writ Petition (Civil) No. 134 of 1999. An interim order was passed in this writ petition on 16th November, 2003 where the Supreme Court noted its earlier judgment in the

Supreme Court Employees’ Welfare Association vs. Union of India reported in (1989) 4 SCC 187.

The Supreme Court had observed in that judgement: “the rules framed by a very high dignitary such as the Chief Justice of India should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted.” The Supreme Court noted in the case of the Calcutta High Court employees that the primary reason for the Governor to refuse to approve the proposed draft rules containing the recommendations of the Special Pay Commission was the inability of the State to bear the financial burden. The Court observed that there was an exchange of correspondence between the State Government and the Hon’ble Chief Justice. However, there was no meeting point. The Court then observed as under:

“The Government will have to bear in mind the special nature of the work done in the High Court of which the Chief Justice and his colleagues alone could really appreciate, if the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis. Hence, a Special Pay Commission consisting of Judges and the Administrators shall be constituted by the Chief Justice in consultation with the Government to make a report and on receipt of such report, the Chief Justice and the Government shall thrash out the problem and work out an appropriate formula in regard to pay scales to be fixed for the High Court employees. Let such action be taken within 6 months from today”

3. The State Government constituted the Fifth Pay Commission in the year 2008 for recommending the pay and allowances for government employees. The Finance Secretary by his letter dated 1st September, 2008 sought the consent of the High Court for making the recommendations of the Fifth Pay Commission applicable to the High Court employees. The Registrar General of the High Court, by his letter dated 14th November, 2008, conveyed the approval for inclusion of the employees of the High Court on both the Original and the Appellate Side as well as the employees of the High Guest House and of the West Bengal Judicial Academy (hereinafter referred to as “High Court employees”) within the terms of reference before the Fifth Pay Commission. Later, the High Court decided to withdraw its employees from the purview of the Fifth Pay Commission and in exercise of its powers under Article 229(2) of the Constitution of India, the Hon’ble Chief Justice of the Calcutta High Court constituted a Special Pay Commission for the High Court Employees. The Special Pay Commission consisted of three Hon’ble Judges of the Calcutta high Court and two Officers of the State Government and their mandate was to recommend the pay structure and allowance for the high court employees in the light of the special nature of work performed by them.

4. By a unanimous decision, interim recommendations were made by the Special Pay Commission. It accepted the pay-band and grade pay which were introduced by the Fifth Pay Commission for the State Government employees. It recommended that the pensionary benefits granted to the State Government employees should apply mutatis mutandis to the employees under the zone of consideration of the Special Pay Commission to whom the