Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3480 OF 2005

State of West Bengal & Ors. … Appellants

Vs.

Debasish Mukherjee & Ors. … Respondents

With  

Civil Appeal No.3481 of 2005 Civil Appeal No.3482 of 2005  Civil Appeal No.3483 of 2005  Civil Appeal No.3484 of 2005  Civil Appeal No.3485 of 2005  Civil Appeal No.3486 of 2005  Civil Appeal No.3650 of 2005  Civil Appeal No.3609 of 2005

J U D G M E N T

R.V.RAVEENDRAN, J.

All these appeals question the common order dated 20.1.2005 of the  

Calcutta High Court allowing a batch of appeals by the employees of the  

High Court. The facts are similar and for convenience, we will refer to the  

facts from C.A. No.3480/2005.   

1

2. One  Gopniath  Dey  (for  short  ‘Dey’)  was  appointed  as  a  Section  

Writer/Typist in the Original Side of the Calcutta High Court on 19.3.1964.  

He  was  brought  under  the  regular  establishment  on  1.9.1979  and  was  

allowed the pay-scale of ` 230-425 under the West Bengal Services Revision  

of Pay and Allowances Rules, 1970 (for short ‘WB (ROPA) Rules, 1970).  

The said pay-scale was subsequently revised as ` 300-685/- with effect from  

1.4.1981  and  under  the  WB  (ROPA)  Rules,  1981.  He  was  granted  a  

promotion as Typist, Grade I in the scale of  ` 380-910/- with effect from  

2.4.1981. He appeared in the selection examination for the post of Lower  

Division Assistant  and was selected and appointed on 9.9.1985. On such  

appointment his pay was fixed as  ` 550 in the scale of  ` 300-685/-, taking  

into account his last pay drawn in the former Grade-I Post. On exercising  

option under the W.B. ROPA Rules, 1990, his pay scale was revised and re-

fixed with effect from 1.8.1986. On 1.4.1989, he was awarded the second  

higher scale under the 20 years Career Advancement Benefit Scheme.

3. Sixty three employees who were senior to Gopinath Dey in the cadre  

of  Lower  Division  Assistants,  working  in  the  Original  Side  of  the  High  

Court,  submitted  a  representation  to  the  Chief  Justice  on  27.6.1997  

requesting that by relaxing Rule 55(4) of West Bengal Service Rules – Part I  

2

(for short ‘WBSR’) their pay be stepped up and re-fixed on par with the pay  

of their junior Gopinath Dey. The Chief Justice referred the representation to  

a Special Committee of three Judges and the said Committee submitted a  

report dated 2.12.1998 recommending rejection of the representation with  

the following observations :

“In our opinion Gopinath Dey has been given certain benefits to which he  was not entitled to in law. We are of the view, the Rule 55(4) of WBSR  Part-I cannot be said to have any application whatsoever in this case.  

It appears to us that Sri Gopinath Dey was granted undue benefits. The  whole fact was not placed before us as to how he could be granted such  benefits to which he was not entitled. If an illegality has been committed  in the case of one employee, it is well settled in law, that on the basis of  such illegality another person cannot claim the same benefit. Illegality is  incurable as has been held in AIR 1974 SC 2177 and AIR 1995 SC 705.  

Furthermore,  Article 14 of the Constitution of India contains a positive  concept. Reference may be made in this connection the decision reported  in 1996 (2) SCC 459. See also 1998 Lab & I.C 180 and 1998 Lab & I.C  1976.  In  view  of  the  decisions,  illegality  cannot  be  directed  to  be  perpetuated.  This  illegal  benefits  granted  to  Sri  Gopinath  Dey,  if  any,   cannot be extended to memorialists.”

(Emphasis supplied)

4. Some time thereafter, the Dy. Secretary, Government of West Bengal,  

Judicial Department, by memo dated 5.12.2000 returned the Service Books  

of 18 employees (including that of Gopinath Dey) stating that the Career  

Advancement benefits granted to all of them were in order. Taking a cue  

therefrom, immediately thereafter, fifty employees (senior to Dey) including  

respondents 1 to 5, made another representation dated 10.1.2001 to the Chief  

3

Justice,  stating that  though seniors to Gopinath Dey,  they were getting a  

lesser  pay  than  Gopinath  Dey,  that  by  memo  dated  5.12.2000,  the  state  

government had found the pay fixation of Gopinath Dey to be in order and  

therefore, their pay may be re-fixed to be at par with the pay of their junior -  

Gopinath Dey, by relaxing Rule 55(4) of WBSR.

5. In the meanwhile, Gopinath Dey retired from service in the year 2001.  

When  his  service  book was  forwarded  to  the  Accountant  General,  West  

Bengal,  for processing his pensionary claim, the office of the Accountant  

General returned the pension file to the High Court twice under cover of  

memo dated 21.12.2001 and again on 9.5.2002 to review the pay fixation of  

Gopinath Dey on the ground that awarding of second higher grade directly  

on 1.4.1989 was not in order and that career advancement benefit could be  

awarded to him only by reckoning the service from 9.9.1985.  

6. The representation dated 10.1.2001 given by respondents 1 to 5 and  

45  other  senior  employees,  was  also  referred  to  a  Three-Judge  Special  

Committee  and the  said  Committee  submitted  a  report  dated  27.11.2002  

recommending  that  the  said  senior  employees  may  be  given  the  pay  

protection by stepping up their pay, so that their pay is not less than that of  

4

Gopinath Dey. The Special Committee held that the report dated 2.12.1998  

of the earlier Special Committee was no longer effective, on the following  

reasoning :  

“We find that the Special Committee of the three Judges in their report  dated  2.12.1998  proceeded  on  the  opinion  that  Sri  Gopinath  Dey  was  given the benefit to which he was not entitled in law and Rule 55(4) of the  WBSR Part-I cannot be said to have any application whatsoever in this  case.  

But now it has been held that allowing the Career Advancement Benefit to  Sri  Gopinath  Dey  is  in  order  and  this  has  neither  challenged  in  any  proceeding nor set aside by any appropriate forum. In such circumstances,  we are of the opinion that observations of the earlier Special Committee of  three  Judges  has  lost  its  force  as  it  preceded  on  an  opinion about  the  irregularity in granting such benefit to Sri Gopinath Dey but presently, the  same  having  been  found  to  be  in  order,  we  fell  that  the  present  fifty  memorialists are also entitled to pay protection so that they are not to get a  pay lesser than Sri Gopinath Dey who is admittedly much junior to all the  present memorialists.”

7. The  Special  Committee  was  thus  clearly  of  the  view  that  if  the  

fixation of pay of Gopinath Dey was erroneous or illegal, the memorialists  

would not be entitled to stepping up of pay to be on par with Gopinath Dey,  

but if the grant of Career Advancement benefit to Gopinath Dey was legal  

and valid, his seniors in the cadre would be entitled to stepping up of their  

pay so that their pay will not be less than that of Gopinath Dey. However,  

when the memos dated 21.12.2001 and 9.5.2002 from Accountant General’s  

Office (stating that the grant of career advancement benefit to Dey was not  

in order) was brought to their notice, the Three-Judge Special Committee  

5

gave  a  further  report  dated  20.1.2003,  modifying  its  earlier  report  dated  

27.11.2002  by  recommending  that  the  memorialists  be  given  the  same  

benefit  as  was  accorded  to  Dey,  in  keeping  with  the  principle  of  pay  

protection so that their pay is equivalent to that of Dey in relation to his  

appointment as Lower Division Assistant on 9.9.1985. We extract below the  

reason assigned for such recommendation :  

“Admittedly,  all  the memorialists  are senior to Dey but were receiving  lesser pay that Dey and even if Dey’s service as Lower Division Assistant  from 9.9.1985, it is to be taken into consideration for the purpose of grant  of benefit of Career Advancement Scheme the memorialists would also be  entitled to the same benefit taking the date of consideration in their case  also from 9.9.1985. Whatever be the method of calculation as far as the  fixation of Dey’s pay is concerned, the memorialist, who are all senior to  him in the same cadre, cannot get a lesser pay than Dey in keeping with  the principle of Rule 55(4) of the West Bengal Service Rules-Part-I.”  

8. The Registrar (Original Side), High Court, placed the said report dated  

20.1.2003 before the learned Chief Justice, with the following submission  

note : “I further submit before your Lordship for the reasons aforesaid, if  

your  Lordship  approved  the  recommendations  of  the  Hon’ble  Judges  

Committee for the said 50 memorialists be allowed and pay protection be  

given effect as per recommendations with intimation to the Government.”  

On the said note, the Chief Justice made an order “Please do the needful” on  

13.2.2003,  thereby  directing  that  the  50  memorialists  be  given  pay  

6

protection as per the recommendation of the Special Committee in its report  

dated 20.1.2003.

9. The Registrar (Original Side) of the High Court issued the following  

note of acceptance dated 4.3.2003 extending the benefit of pay protection to  

the 50 senior employees (including respondents 1 to 5) :  

“In approving the recommendation of the Hon’ble Judges’ Committee on  the memorial of fifty employees, the Hon’ble The Chief Justice in exercise  of powers conferred under Clause 2 of Article 229 of the Constitution of  India has been pleased to allow under order dated 13.2.2003 the following  fifty employees who are seniors to Sri Gopi Nath Dey, the same benefit as  given to Sri Gopi Nath Dey in keeping with the principle of pay protection  under Rule 55(4) of the WBSR, Part-I so that their pay is equivalent to  that of Sri Gopinath Dey in relation to his appointment as Lower Division  Assistant on and from 9.9.1985.”

 The State Government by its letter dated 7.3.2003 addressed to the High  

Court, traced the career and emoluments of Gopinath Dey from 1964 and  

pointed out that Dey was not entitled to Grade I promotion of Section Writer  

(Typist) in the scale of ` 380-910 under the ROPA Rules, 1981 with effect  

from 2.4.1981 as he had not been confirmed in that post at that time. The  

state  government  further  pointed  out  as  Dey  was  appointed  as  Lower  

Division Assistant as a direct recruit in the scale of ` 300-685/-, with effect  

from 9.9.1985,  he  was not  entitled  to  the  second higher  scale  under  the  

career  advancement  scheme with effect  from 1.4.1989. In view of it,  the  

High Court corrected the service book of Gopinath Dey by giving him the  

7

benefit  of Grade I promotion of Section Writer (Typist)  with effect  from  

1.8.1982  instead  of  2.4.1981.  The  High  Court  also  sent  a  letter  dated  

9.4.2003 to the office of the Accountant General admitting the said mistake  

and confirming the correction in regard to grant of Grade I promotion to  

Gopinath Dey. In the said letter, the Registrar (Original Side) High Court  

also admitted that extension of twenty years Career Advancement Scheme  

Benefit  to  Dey  with  effect  from 1.4.1989  was  a  mistake  and  the  order  

granting such benefit was cancelled and the service book of Dey had been  

correct.  

10. When the pay bills of the 50 senior employees who were given the  

pay protection by increasing their pay at par with that of Gopinath Dey, were  

sent to the Calcutta Pay & Accounts Office-II, they were returned with a  

Return  Memo  dated  21.4.2003  stating  that  before  allowing  any  benefit  

relating to salary,  allowances,  leave and pension to the employees of the  

High Court, the prior approval of the Governor of the State was required.  

The High Court immediately sent a reply dated 24.4.2003 stating that the  

Chief Justice is empowered to dispense with or relax the requirement of all  

or any of the rules to such extent and subject to such conditions as he may  

consider necessary, for dealing with the employees of the High Court in a  

just  and equitable manner.  The Calcutta  Pay & Accounts  Office-II  again  

8

returned the pay bills with a Return Memo dated 29.4.2003 stating that it  

had no authority  to pay the bill  amounts  without  the directions from the  

State Government. By another Return Memo dated 6.5.2003, the Calcutta  

Pay & Accounts Office requested the High Court to resubmit the bills which  

provided  for  a  higher  pay  to  the  50  employees  after  obtaining  the  

clarification of the state government, regarding applicability of Rule 55(4)  

and the consent of the Governor. On 7.5.2003, the Government requested the  

High Court to review the entire matter in view of the fact that fixation of pay  

of Gopinath Dey at various stages was erroneous and required rectification.  

11. At this juncture, respondents 1 to 5 approached the High Court and  

sought a declaration that they were entitled to pay protection as per orders of  

Chief Justice dated 13.2.2003 in the post of Lower Division Assistant, on  

and from 9.9.1985 in order to bring their pay at par with that of Gopinath  

Dey, who was their junior. They also sought cancellation of the return memo  

dated 21.4.2003, 29.4.2003 and 6.5.2003 of the Calcutta Pay & Accounts  

Office.   Similar  writ  petitions  were  filed  by  other  employees  senior  to  

Gopinath  Dey.  The  West  Bengal  Government  also  filed  writ  petitions  

challenging the report of the Judges Committee dated 20.1.2003, order of the  

Chief Justice dated 13.2.2003 and the consequential orders dated 4.3.2003  

9

issued by the High Court, extending the stepping up benefit to the senior  

employees.  

12. The six writ petitions filed by the employees and three petitions filed  

by the state  government were heard and disposed of by a learned Single  

Judge by a common order dated 17.11.2003. The learned Single Judge inter  

alia held Rule 55(4) was inapplicable as the two conditions for applicability  

of the said Rule were admittedly absent. As it was also admitted that Dey  

was wrongly given the benefits and Dey has not challenged the correction of  

his pay and direction for recovery of the amount paid in excess, it followed  

that Dey was not entitled to the benefits wrongly given and consequently,  

respondents 1 to 5 and other senior employees were not entitled to stepping  

up of  their  pay with reference to the pay of  Dey.  He dismissed the writ  

petitions  by  the  employees  and  allowed  the  writ  petitions  by  the  state  

government  and  directed  that  any  excess  amount  paid  to  the  senior  

employees by stepping up their pay, should be recovered from them.  

13. Feeling aggrieved, the employees filed appeals and those appeals were  

allowed by a Division Bench of the High Court by a common order dated  

20.2.2005. The Division Bench held :

10

“(a) The Chief Justice had made the Calcutta High Court Rules,  1960 with the approval of the Governor of the State in so far as the rules  relate  to  salaries,  allowances,  leave  or  pension.  Once  rules  had  been  framed by the Chief Justice and were approved by the Governor in relation  to  financial  matters,  so  long  as  there  is  no  legislation  by  the  State  Legislature, action taken under the powers conferred by the rules cannot  be questioned,  when such powers exercised by the Chief Justice stood on  equal footing to that of Governor.  

(b) The state government could not raise any objection to the  recommendation for fixation of salary,  sanction of  creation of posts  or  grant  of  increase  in  case  of  disparity  in  exceptional  circumstances,  particularly when it is aimed at the ameliorating the service conditions of  the employees of the High Court. Such action of the Chief Justice, when  exercised bona fide and when within the scope of the powers conferred on  him, cannot be questioned by the executive or even by the court.  

(c) The post of LDA is neither a higher nor a promotional post.  Rule 55(4) would therefore not be applicable. Gopinath Dey was holding  an ex cadre post which was not one of the sources of recruitment to the  post of Lower Division Assistant. The post held by Gopinath Dey was not  a feeder post for the post LDA. The post of LDA was not a promotional  post.  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 with reference to the pay of a junior, were satisfied.  

(d) The  moment  Gopinath  Dey  entered  the  post  of  LDA  through direct recruitment, he acquired 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 Gopinath Dey could not claim any benefit on account of  his length of service by reason of any lien. Unless lien was available to  him, he could not claim fixation of pay at a higher stage than those of his  seniors.

(e) Once the state government claim that the pay of Gopinath  Dey  was  correctly  fixed,  it  cannot  contend  that  the  senior  employees  cannot claim parity on the basis of  a wrong fixation of pay of Gopinath.  When the pay was wrongly fixed and Gopinath Dey was given a higher  pay,  the  respondents  being  senior  to  him cannot  be  paid  less  and  are  entitled at least to the same pay Gopinath Dey was given.  

(f) The Special Committee  submitted its report recommending  pay protection which itself is an indication of an exceptional circumstance  when it was found that the Gopinath was not entitled to fixation of pay and  

11

the senior  employees  were not  entitled to the benefit  of  Rule 55(4)  of  WBSR Part-I.  

(g) Once in his wisdom the Chief Justice takes action to grant  increase in the pay of senior employees to bring their pay at par with that  of Gopinath Dey, such action cannot be questioned if the action of the  Chief  Justice is  based on a  source of  power.  Rule 49 is  the  source of  power. The exercise of such power is immune from being questioned, as it  is not justiciable.  

(h) Once the Chief Justice takes an action pursuant to the rules  which have been 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, as that will run contrary to  the autonomy of the Chief Justice as contemplated under Article 229(2) of  the Constitution of India. The action of Chief Justice is non-justiciable.  Under  the  usual  circumstances,  Gopinath  Dey  would  not  have  been  entitled to the increment, but the government had approved the same. Thus  it had acquired a new dimension to justify the grant of higher pay to the  respondents. The circumstances in which it was granted, were found to be  exceptional due to which the Chief Justice has exercised his discretion.  The wisdom of Chief Justice being non-justiciable, the state government  cannot object to the same.”

14. The said order is challenged in these appeals by special leave by the  

State of West Bengal on the following grounds  :  

(i) The senior employees through their  repeated representations sought  

relief under rule 55(4) of the WBSR. The Special Committee consciously  

considered the merits of their claim with reference to the Rule 55(4) and  

made  its  recommendations  expressly  under  the  said  Rule.  The  learned  

Chief  Justice  by  his  order  dated  13.2.2003  merely  accepted  the  said  

recommendation  based on Rule  55(4).  The learned Single  Judge and the  

division bench found that Rule 55(4) was not attracted. Having reached such  

conclusion, the division bench could not justify the order dated 13.2.2003 of  

12

the Chief Justice by inferring that the Chief Justice must have granted relief  

in exercise of discretion under Rule 49 of WBSR.

(ii) Even assuming that Rule 49 of the WBSR could be regarded in itself  

as a source of  power,  in the absence of any consideration either by the  

Special Committee or by the Chief Justice, as to whether the fixation of pay  

in the post of LDA for Gopinath Dey at par with the last pay drawn by him  

in the old post of grade-I Typist/Section Writer could not be regarded as an  

‘exceptional circumstance’ for granting all Senior Lower Division Assistants  

pay protection. In the absence of exceptional circumstances,  which is the  

condition precedent for the exercise of the power under Rule 49, the said  

rule cannot be invoked to justify the order of the Chief Justice.  

(iii) In  view  of  Rule  42  (1)(ii)  of  the  WBSR,  the  fixation  of  pay  of  

Gopinath Dey at higher initial start in the pay scale of LDA at par with the  

last pay drawn by him in the old post of Grade-I Typist/Section Writer was  

erroneous.  Such wrong and illegal  pay  fixation  will  not  entitle  the  other  

LDAs senior to him, to the same higher initial start, when all of them were  

being paid pay admittedly according to the pay scale for LDAs and at the  

stages to which they were otherwise entitled.  

(iv) Having held that the fixation of pay at higher initial start for Gopinath  

Dey as a LDA was incorrect in terms of Rule 42(i)(ii) of the WBSR and  

Rule 55(4) of the WBSR was not applicable, the Division Bench could not  

justify the order of the Chief Justice extending pay protection to his seniors  

with reference to Rule 49 of WBSR. The Division Bench also fell into an  

error in holding that the order of the Chief Justice was non-justiciable in writ  

jurisdiction.   

13

15. On  the  contentions  urged,  the  following  questions  arise  for  our  

consideration :

(i) Whether the respondents (employees senior to Dey) were entitled to  

re-fixation of their pay at par with the pay of their junior namely Dey, under  

Rule 55(4) of the WBSR (Part I) or under any other service law principle?  

(ii) If  the  relief  granted  to  the  respondents  (employees  senior  to  Dey)  

could not be supported with reference to Rule 55(4), whether it could be  

inferred that the order of the Chief Justice permitting the pay of the said  

senior employees to be brought at par with the pay of Dey, was passed in  

exceptional circumstances under Rule 49 of WBSR (Part I)?

(iii) Whether the order of Chief Justice dated 13.2.2003 is not justiciable ?

Re : Question (i) :

16. Rule 55(4) of WBSR, on which the senior employees placed reliance,  

to claim parity with the pay of Gopinath Dey, reads thus :

“55(4). If a government employee while officiating in a higher post draws  pay at a rate higher than his senior officer either due to fixation of his pay  in the higher post under the normal rules, or due to revision of pay scales,  the pay of the government employees senior to him shall be re-fixed at the  same stage and from the same date his junior draws the higher rate of pay  irrespective of whether the lien in the lower post held by the senior officer  is terminated at the time of re-fixation of pay, subject to the conditions that  both the senior and junior officers should belong to the same cadre and the  pay scale of the posts in which they have been promoted are also identical.  

14

The benefit  of  this rule shall  not be admissible  in case where a senior  government employee  exercises his option to retain un-revised scale of  pay, or where the pay drawn by the senior officer in the lower post before  promotion to the higher post was also less than that of his junior.”  

On a careful reading of Rule 55(4), it is evident that two conditions will have  

to be fulfilled for attracting the benefit under the said rule. The first is that  

the  junior  employee  as  also  the  senior  employees  must  be  promotees.  

Secondly, they must come from the same cadre having the same scale of pay  

in their feeder post. Neither of the said conditions is fulfilled in this case. In  

fact, this finding was rendered by the learned Single Judge and was affirmed  

by the Division Bench. The Division Bench held :

“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 of thereof,  benefit of Rule 55(4) would not applicable to the employees of the High  Court. Second, Rule 55(4) applies in case of promotion or officiation in a  higher port, 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.”  

On a  careful  consideration,  we  find  no  reason  to  interfere  with  the  said  

concurrent finding that Rule 55(4) is inapplicable.

17. We may now consider whether the private respondents are entitled to  

stepping up of their pay to bring it at par with that of Dey under the general  

principle of service jurisprudence. The principles relating to stepping up of  

15

pay of the seniors with reference to the higher pay of a junior are now well  

settled. We may refer to a few of the decisions of this Court in that behalf. In  

State of Andhra Pradesh vs. G. Sreenivasa Rao – (1989) 2 SCC 290, this  

Court observed :  

"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, source of  recruitment,  educational  qualifications  and  various  other  incidents  of  service.  When  a  single  running  pay-scale  is  provided  in  a  cadre  the  constitutional mandate of equal pay for equal work is satisfied. 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. To illustrate,  when pay-fixation is  done under  valid  statutory  Rules/executive  instructions,  when  persons  recruited  from  different   sources are given pay protection, when promotee from lower cadre or a  transferee from another cadre is given pay protection,  when a senior is  stopped  at  Efficiency  Bar  when  advance  increments  are  given  for  experience/passing a test/acquiring higher qualifications or as incentive for  efficiency ; 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  would  be  based  on  intelligible criteria which has rational nexus with the object sought to be  achieved.”

(emphasis supplied)

This Court held that High Courts and Tribunals should not, in an omnibus  

manner come to the conclusion that whenever and for whatever reasons, a  

junior  is  given higher  pay,  the doctrine of ‘equal  pay for  equal  work’ is  

violated  and the  seniors  are  entitled  to  the  same pay,  irrespective  of  the  

scope of the relevant  Rules and the reasons which necessitated fixing of  

higher pay for juniors.  

16

18. In  Chandigarh  Administration  vs.  Naurang Singh –  (1997)  4  SCC  

177, this Court held that principle of ‘equal pay for equal work’ and stepping  

up of pay would not apply where higher scale was granted to some persons  

by an evident mistake. This Court held :  

“We  are,  however,  of  the  opinion  that  a  mistake  committed  by  the  Administration cannot furnish a valid or legitimate ground for the Court or  the Tribunal to direct the Administration to go on repeating that mistake.  The proceedings placed before us clearly show that the pay revision of  September 19, 1975 was an unscheduled one, effected merely on the basis  of a letter written by the Principal of the College. The Administration no  doubt could have rectified that mistake. That would have been the most  appropriate course but their failure to do so cannot entitle the respondents   to say that mistake should form a basis for giving the higher pay scale to   them also. The proceedings of the Administration dated 19.8.1982 clearly  shows that the said higher pay scale was treated as personal to the then  existing  incumbents.  As  stated  above  that  was  really  the  pay  scale  admissible  to  the  post  of  Assistants  which  was  a  promotion  post  to  storekeepers. Both these posts cannot be given the same pay scale….An  evident  mistake  cannot  constitute  a  valid  basis  for  compelling  the  administration to keep on repeating that mistake.”  

(emphasis supplied)

19. In Union of India vs. R. Swaminathan  – (1997) 7 SCC 690, this Court  

considered  the  government  order  dated  4.2.1966  issued  for  removal  of  

anomaly by stepping up of pay of a senior on promotion drawing less pay  

than his junior. This Court held :  

“11.  As  the  Order  itself  States,  the  stepping  up  is  subject  to  three  conditions: (1) Both the junior and the senior officers should belong to the  same cadre and the posts in which they have promoted should be identical  and in the same cadre; (2) the scales of pay of the lower and higher posts  should be identical and: (3) anomaly should be directly as a result of the  application of Fundamental Rule 22-C which is now Fundamental Rule  22(I)(a)(1). We are concerned with the last condition. The difference in  the pay of a junior and a senior in the cases before us is not a result of the  

17

application of Fundamental Rule 22(I)(a)(1). The higher pay received by a  junior is on account of his earlier officiation in the higher post because of  local  officiating  promotions  which  he  got  in  the  past.  Because  of  the  proviso to Rule 22 he may have earned increments in the higher pay scale  of the post to which he is promoted on account of his past service and also  his previous pay in the promotional post has been taken into account in  fixing his pay on promotion. It is these two factors which have increased  the pay of the juniors. This cannot be considered as an anomaly requiring  the stepping of the pay of the seniors.

The  Office  Memorandum  dated  4.11.1993.  Government  of  India,  Department of  Personnel  & Training,  has set  out  the various instances  where stepping of pay cannot be done. It gives, inter alia, the following  instances which have come to the notice of the department with a request  for stepping up of pay. These are:

(a) Where a senior proceeds on Extra Ordinary Leave which results  in  postponement  of  date  of  Next  Increment  in  the  lower  post,  consequently he starts drawing less pay than his junior in the lower  grade  itself.  He,  therefore,  cannot  claim pay parity  on  promotion  even though he may be promoted earlier to the higher grade

(b) If a senior foregoes/refuses promotion leading to his junior being  promoted/appointed to the higher post earlier,  junior draws higher  pay than the senior. The senior may be on deputation while junior  avails of the ad hoc promotion in the cadre. The increased pay drawn  by a junior either due to ad hoc officiating/ regular service rendered  in  the  higher  posts  for  periods  earlier  than  the  senior,  cannot,  therefore, be an anomaly in strict sense of the term.

(c)  If  a  senior  joins  the  higher  post  later  than  the  junior  for  whatsoever reasons, whereby he draws less pay than the junior, in  such cases senior cannot claim stepping up of pay at par with the  junior.

x x x x There  are  also  other  instances  cited  in  the  Memorandum.  The  Memorandum makes it clear that in such instances a junior drawing more  pay than his senior will not constitute an anomaly and, therefore, stepping  up of pay will not be admissible. The increased pay drawn by a junior  because of ad hoc officiating or regular service rendered by him in the  higher post for periods earlier than the senior is not an anomaly because  pay does not depend on seniority alone nor is seniority alone a criterion  for stepping up of pay.”

18

20. The facts narrated above, without anything more, would clearly show  

that Dey was given a higher pay for wholly erroneous reasons. Firstly he  

was given Grade I promotion of Section Writer (Typist) in the scale of  `  

380-910  under  the  ROPA  Rules,  1981  with  effect  from  2.4.1981  even  

though he was not confirmed in the lower post at that time. Secondly, even  

though Dey was appointed as Lower Division Assistant as a direct recruit in  

the scale of ` 300-685 with effect from 9.9.1985, he was given the benefit of  

second  higher  scale  under  the  Career  Advancement  Scheme,  with  effect  

from 1.4.1989, by taking note of his previous service. Dey voluntarily chose  

to appear for selection as a Lower Division Assistant which carried a lesser  

pay scale when compared to the pay scale to which he was entitled as a  

Grade-I  Typist,  obviously  because  of  better  future  prospects  available  to  

Lower  Division  Assistants.  Having  been  appointed  as  a  Lower  Division  

Assistant on 9.9.1985, he was not entitled to the benefit of second higher  

scale with effect from 1.4.1989, as that benefit was available only at the end  

of  20  years  service  under  the  career  advancement  scheme.  If  these  two  

benefits erroneously given were deleted, there would be no ground for the  

seniors to claim any benefit on the basis of parity of pay. Even otherwise, as  

Dey was getting a higher pay in view of the earlier promotion as Section  

Writer/Typist,  when  he  was  selected  and  appointed  as  Lower  Division  

19

Assistant, he was given pay protection and thus became entitled to a higher  

pay than what he would have normally received. His case was completely  

different  from the case of his seniors  and his seniors could not  therefore  

claim  parity  in  pay  and  stepping  up  of  pay  to  match  the  pay  of  Dey.  

Therefore,  the  learned Single  Judge and the Division  Bench rightly  held  

even  that  Rule  55(4)  was  inapplicable.  The  fact  that  a  mistake  was  

committed in the case of Dey by extending the benefit of second higher scale  

under Career Advancement Scheme cannot be a ground for the Chief Justice  

to direct  perpetuation of the mistake by directing similar  benefit  to other  

senior employees. Further, in view of his previous service between 1964 and  

1985 and in view of the fact he was getting a higher pay (in a higher pay  

scale)  when  he  was  appointed  thereby  entitling  him  to  benefit  of  pay  

protection,  his  seniors  who  were  not  in  a  comparable  position  were  not  

entitled to seek higher pay with reference to the pay of Dey.  

21. It  is  now  well  settled  that  guarantee  of  equality  before  law  is  a  

positive concept and cannot be enforced in a negative manner. If an illegality  

or an irregularity has been committed in favour of any individual or group of  

individuals, others cannot invoke the jurisdiction of Courts and Tribunals to  

require the state to commit the same irregularity or illegality in their favour  

20

on the reasoning that they have been denied the benefits which have been  

illegally or arbitrarily extended to others. [See :  Gursharan Singh vs. New  

Delhi  Municipal  Administration  -  1996 (2)  SCC 459,  Union of  India vs.   

Kirloskar  Pneumatics  Ltd.  -  1996  (4)  SCC  433,  Union  of  India  vs.   

International  Trading  Co.  -  2003  (5)  SCC  437,  and  State  of  Bihar  vs.   

Kameshwar  Prasad  Singh -  2000  (9)  SCC  94.  This  question  was  

exhaustively  considered  in  Chandigarh  Administration  vs.  Jagjit  Singh -  

1995 (1) SCC 745, wherein this Court explained the legal position thus :  

“8. The basis or the principle, if it can be called one, on which the writ  petition has been allowed by the High Court is unsustainable in law and  indefensible  in  principle.  Generally  speaking,  the  mere  fact  that  the  authority  has  passed  a  particular  order  in  the  case  of  another  person  similarly situated can never be the ground for issuing a writ in favour of  the petitioner on the plea of discrimination. The order in favour of the  other person might be legal and valid or it might not be. That has to be  investigated first before it can be directed to be followed in the case of the  petitioner. If the order in favour of the other person is found to be contrary  to law or not warranted in the facts and circumstances of his case, it is  obvious that such illegal or unwarranted order cannot be made the basis of  issuing a writ compelling the respondent-authority to repeat the illegality  or to pass another unwarranted order. The extra-ordinary and discretionary  power  of  the  High  Court  cannot  be  exercised  for  such  a  purpose.  By  refusing to direct the respondent-authority to repeat the illegality, the court  is  not condoning the earlier  illegal  act/order nor can such illegal  order  constitute the basis for a legitimate complaint of discrimination. Giving  effect to such pleas would be prejudicial to the interests of law and will do  incalculable mischief to public interest. It will be a negation of law and the  rule of law.”  

We are therefore of the view that neither under Rule 55(4) of WBSR nor  

under the general principles of service jurisprudence, the seniors were are  

21

entitled to claim benefit of re-fixation of their pay at par with the pay of their  

junior Dey.

Re : Question (ii) :

22. The representation given by the senior employees was for re-fixing  

their pay at par with the pay of Dey by relaxing Rule 55(4) of WBSR. The  

basis of their claim was Rule 55(4) and they sought relief by relaxing the  

said  rule.  The  first  report  of  the  Special  Committee  dated  2.12.1998  

considered the claim of senior employees under Rule 55(4) and categorically  

held  that  the  said  rule  was  inapplicable  to  their  claim.  The  subsequent  

reports  of  the  Committee  dated  27.11.2002  and  20.1.2003  held  that  the  

employees who were senior to Dey, could not get a lesser pay than Dey, in  

keeping with the principle of Rule 55(4) and recommended grant of relief  

accordingly. The Registrar (Original Side), High Court put up a note placing  

the report of the Special Committee dated 20.1.2003 and sought approval of  

the said recommendation of the Special Committee for the senior employees  

being granted relief by way of pay protection by stepping up their pay at par  

with  that  of  Dey.  The  Chief  Justice  concurred  with  the  said  proposal,  

without noting any other reason and thus, the Chief Justice merely accepted  

the  reasons  assigned  by  the  Special  Committee  in  their  recommendation  

22

dated 20.1.2003. Even in their writ petitions, the senior employees made the  

claim only based on Rule 55(4). Neither the claim of the senior employees,  

nor the report of the Special Committee nor the order of the Chief Justice at  

any point of time, in any document, refer to any exceptional circumstances  

warranting the grant of increments prematurely to the employees senior to  

Dey by stepping up their pay at par with the pay of Dey. Rule 49 of WBSR  

was neither  relied  upon nor  referred to  by  the  senior  employees in  their  

representation, or by the Special Committee in their recommendations or by  

the Chief Justice in his order. Nor did the senior employees who were the  

writ petitioners,  rely upon or refer to Rule 49 in the writ petition, as the  

source of power for the order dated 13.2.2003. In these circumstances, it is  

ununderstandable how the division bench of the High Court, having held in  

the impugned order that Rule 55(4) was inapplicable, could justify the order  

of the Chief Justice with reference to Rule 49.        

23. Rule 49 of WBSR (Part I) relates to premature increments and reads  

thus  :  “Save  in  exceptional  circumstances  and  under  specific  orders  of   

government, no government employee on a time scale of pay may be granted   

a premature increment in that time scale”. The proviso to Rule 23 of the  

Calcutta High Court Service Rules, 1960, no doubt, provides that “the power  

exercisable under the West Bengal Service Rules by the Governor of the  

23

State shall be exercised by the Chief Justice” in regard to the members of  

High Court service. If Rule 49 had to be invoked, exceptional circumstances  

should have existed and should have been referred to in the recommendation  

by  the  Special  Committee  or  in  the  order  of  the  Chief  Justice.  The  

assumption made by the division bench that  when an order of the Chief  

Justice granting relief cannot be justified with reference to any Rule or legal  

principle,  it  should  be  inferred  that  the  order  was  made  in  exceptional  

circumstances, is erroneous and cannot be accepted. A provision for granting  

higher  pay  by way of  premature  increment in  exceptional  circumstances,  

cannot be used to give relief to a large number of employees, without the  

existence of any exceptional circumstances. The fact that a single employee  

(Dey)  was  wrongly  given  some  benefit  is  certainly  not  an  exceptional  

circumstance to perpetuate the mistake in the case of all his seniors.  

24. The  division  bench  does  not  refer  to  any  other  exceptional  

circumstances.  The logic of the division bench that the very fact  that the  

Special Committee has made a recommendation and  the very fact that the  

Chief Justice had accepted the recommendation and  made an order granting  

relief,  are  indications  of  exceptional  circumstances,  is  preposterous,  

irrational and arbitrary. The finding of the division bench that exceptional  

24

circumstances existed for stepping up the pay of large number of employees  

and therefore, the source of power for the order dated 13.2.2003 of the Chief  

Justice,  is  Rule  49  of  WBSR  is  erroneous  and  improper  and  cannot  be  

sustained.   

Re : Question (iii)

25. We may next consider the correctness of the finding of the division  

bench that the order dated 13.2.2003 of the Chief Justice is not justiciable  

and the state government cannot challenge it in a court of law. At the outset,  

we  may  note  that  in  a  democracy,  governed  by  rule  of  law,  where  

arbitrariness in any form is eschewed, no government or authority has the  

right to do whatever it pleases. Where rule of law prevails, there is nothing  

like unfettered discretion or unaccountable action. Even prerogative power is  

subject to judicial review, but to a very limited extent. The extent, depth and  

intensity of judicial review may depend upon the subject matter of judicial  

review (vide observation of Constitution Bench in B.P. Singhal vs. Union of   

India – 2010 (6) SCC 331). The fact that in regard to certain types of action  

or orders of Chief Justice, the scope of judicial review may be very narrow  

and  limited  is  different  from  saying  that  an  order  of  the  Chief  Justice  

25

granting certain relief to High Court employees whose service conditions are  

governed by Rules, is not justiciable. Such orders are justiciable.  

26. We may refer to the principles relating to the power and discretion of  

a Chief Justice of a High Court under Article 229(2) which reads thus :  

“229(2). Subject to the provisions of any law made by the Legislature of  the State, the conditions of service of officers and servants of a High Court  shall be such as may be prescribed by rules made by the Chief Justice of  the Court or by some other Judge or officer of the court authorized 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…”  

In exercise of the powers conferred by Article 229 of the Constitution of  

India, the Chief Justice of the High Court of Calcutta, with the approval of  

the  Governor  of  the  State  of  West  Bengal,  so  far  as  the  rules  relate  to  

salaries,  allowances,  leave  and  pensions,  made  the  Calcutta  High  Court  

Service Rules, 1960, with respect to the appointment of persons to, and the  

conditions of service of persons serving on, the staff attached to the High  

Court. While the Chief Justice has the power to amend the Rules, he does  

not have the power to ignore the Rules. Rule 23 of the Calcutta High Court  

Service Rules, 1960 provided thus :  

26

“Subject to the following exceptions, the provisions of the West Bengal  Service Rules in so far as they relate to salaries, leave and allowances,  shall apply to the members of the High Court Service, Class – I, II, III and  IV, as they apply to government servants of the corresponding classes in  the service of the Government of West Bengal.  

Provided that the powers exercisable under the West Bengal Service Rules  by the Governor of the State shall be exercised by the Chief Justice and  the power exercisable by any authority sub-ordinate to the Governor shall  be exercised by the Chief Justice or by such person or persons as he may,  by general or special order, direct.”   

27. In  M. Gurumoorthy vs. Accountant-General, Assam and Nagaland –  

1971  (2)  SCC  137,  this  Court  held  that  Article  229  contemplates  full  

freedom to the Chief Justice  of the High Court in the matter of appointment  

of officers and servants of the High Court and their conditions of service.  

The unequivocal and obvious intention of the framers of the Constitution in  

enacting Article  229 is  that  in the matter  of  such appointments,  it  is  the  

Chief Justice or his nominee who is to be the supreme authority and there  

can be no interference by the executive except to the limited extent that is  

provided in the article. Even the Legislature cannot abridge or modify the  

powers conferred on the Chief Justice.  

28. In  State of UP vs. C. L. Agrawal  - (1997) 5 SCC 1, a Constitution  

Bench of this Court considered a dispute relating to the competence of the  

Chief Justice of the High Court to grant advance/premature increments to an  

employee working in the High Court :  

27

“The state government was of the view that the Chief Justice could not  grant  advance/premature  increments  without  prior  approval  of  the  Governor. Instead of directly challenging the Chief Justice’s competence,  the State Government refused to take into account premature increments  sanctioned to the respondent by the Chief Justice of the Allahabad High  Court,  while  determining  respondent’s  pensionary  benefits.  The  matter  was examined with reference to, (i) Article 229(2) and proviso thereunder,  which lay down that the conditions of service of officers and servants of a  High court shall be regulated by the rules made by the Chief Justice, etc.  and  the  rules,  if  they  relate  to  salaries,  allowances,  etc.,  shall  require  Governor’s approval; (ii) Rule 3, two provisos to Rule 40(2) and proviso  to Rule 41 of the Allahabad High Court Officers and Staff (Conditions of  Service  and  Conduct)  Rules,  1976,  which  provide  for  creation  of  temporary posts with the approval of the Governor; applicability of state  government rules to the High Court staff with such modifications, etc., as  the Chief Justice may specify; obtaining of the Governor’s approval where  such modification, etc., relates allowances, leave or pensions; exercise of  Governor’s power by the Chief Justice in relation to High Court staff; (iii)  Rule 27 of the Financial Handbook, Vol.II, Parts II to IV, which says that  ‘an authority may grant a premature increment to a government servant on  a time scale of pay if it has power to create a post in the same cadre on the  same scale of pay.”

Reading together the two provisos to Rule 40(2) of the Allahabad High court  

Officers and Staff (Conditions of Service and Conduct)  Rules,  1976, this  

Court held that it was apparent that the rules and orders referred to therein  

were  the  rules  and  orders  of  a  general  nature  and  not  orders  made  in  

individual cases; that insofar as officers and servants of the High Court were  

concerned,  it  was  enough  that  the  Chief  Justice  exercised  the  powers  

conferred upon the Governor under such rules and orders of the government  

and no further approval by the Governor is required. This Court also held  

that even in Rule 41, the reference was to the making of general orders and  

28

not the orders in individual cases. The order of the Chief Justice granting  

premature increments did not therefore require the approval of the Governor.  

It was held that as the Chief Justice had the power to create posts in the High  

Court, it was the Chief Justice who could grant premature increments under  

Rule 27 of the Financial Handbook,  to the officers and servants of the High  

Court, and even if it was to be assumed that advance increments under Rule  

27  could  be  granted  by  the  Governor,  the  Chief  Justice  would  exercise  

Governor’s power by virtue of second proviso to Rule 40(2) of the 1976  

Rules.   

29. In High Court of Judicature for Rajasthan vs. Ramesh Chand Paliwal  

– (1998) 3 SCC 72, this Court was considering the correctness of a direction  

given  under  Article  226,  by  a  division  bench  of  the  High  Court  to  the  

Registrar  to  prepare  a  report  regarding  the  practicability  of  certain  posts  

being  manned  by  the  officers  from the  establishment  of  the  High  Court  

instead of  by Higher Judicial  Officers and place it  before the Full  Court  

through the Chief  Justice  for  taking a  decision  whether  Judicial  Officers  

could be relieved of such administrative posts in the High Court.  This Court  

found that  Rules 2,  2-A of,  and Schedule  I  to the Rajasthan High Court  

(Conditions of Service of Staff) Rules, 1953, made by the Chief Justice in  

29

exercise of power conferred by Article 229, specified the posts on which  

officers  of  the  Rajasthan  Higher  Judicial  Service  or  Rajasthan  Judicial  

Service  were  to  be  appointed.  The  method  of  recruitment  had  also  been  

indicated.  All appointments on these posts were to be made by the Chief  

Justice. The rules could be altered, amended or rescinded only by the Chief  

Justice who alone has the rule making power. This Court held that the real  

purport of the directions issued by the division bench on the judicial side  

was to override not only the constitutional provisions contained in Article  

229 but also the rules made in exercise of powers available to the Chief  

Justice  under  that  article.  Even  if  the  Registrar,  in  compliance  of  the  

impugned directions,  is  to  report  that  the  posts  on  which  officers  of  the  

Rajasthan  Higher  Judicial  Service  or  Rajasthan  Judicial  Service  are  

appointed on deputation, could well be manned by the High Court staff itself  

and even if such report is placed before the Full Court, the Full Court cannot  

give a direction to the Chief Justice not to fill up those posts by bringing  

officers on deputation but to fill up those posts by promotion from amongst  

the  High Court  staff.  A Judge  of  the  High Court  individually  or  all  the  

Judges  sitting  collectively,  as  in  the  Full  Court,  cannot  either  alter  the  

constitutional provisions or the rules made by the Chief Justice. The Chief  

Justice  has  been  vested  with  wide  powers  to  run  the  High  Court  

30

administration independently so as not to brook any interference from any  

quarter, not even from his brother Judges who, however, can scrutinize his   

administrative action or order, on the judicial side, like the action of any  

other authority.  

30. It is therefore clear that the Chief Justice has the power and authority  

to grant premature increments in exceptional circumstances. But the Chief  

Justice cannot grant such relief in an irrational or arbitrary manner. If the  

Rules  provide  that  premature increments could be granted in exceptional  

circumstances, there should be a reference to the existence of exceptional  

circumstances and application of mind to those exceptional circumstances.  

When neither the recommendation considered by the Chief Justice nor the  

order of the Chief Justice referred to any exceptional circumstances and did  

not  even  refer  to  the  Rule  relating  to  grant  of  relief  in  exceptional  

circumstances, the question of assuming exceptional circumstances does not  

arise.  The order dated 13.2.2003 is justiciable.  

Conclusion  

30. In view of the above, none of the seniors was entitled to any relief  

with reference to the pay of their junior Gopinath Dey. We therefore, allow  

31

these appeals, set aside the order of the division bench and restore the order  

of the learned Single Judge dismissing the writ petitions.  

……………………….J [R. V. Raveendran]

……………………….J [Markandey Katju]

New Delhi; September  14, 2011.  

32