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service rules of judicial employees of west bengal-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 – 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.

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 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. 

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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 

 3

(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 

 4

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 

 5

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 

 6

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 

 7

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 

 8

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 

 9

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 

 10

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 :

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"(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 

 12

 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 

 13

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. 

 14

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. 

 15

 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 

 16

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. 

 17

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 

 18

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."

 19

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 

 20

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 

 21

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 

 22

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 

 23

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 

 24

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 

 25

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 

 26

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 : 

 27

 "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 : 

 28

 "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 

 29

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 

 30

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 

 31

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 

 32

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. 

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