Sri Sajal Chakraborty vs The State Of Tripura
2023 Latest Caselaw 348 Tri

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                 HIGH COURT OF TRIPURA
                       AGARTALA
                 WP(C) NO.861 OF 2021

Sri Sajal Chakraborty,
S/o. Late Jagadish Chakraborty,
R/o- Ramnagar, Road No.3,
High Court Staff Quarter,
Agartala, West Tripura, Pin-799002,
Age-55 years.
                                         ......... Petitioner(s)
                Vs.

1. The State of Tripura,
(To be represented by the Principal Secretary, Department of
Finance, Government of Tripura), New Secretariat Complex,
New Capital Complex, Kunjaban, P.S. New Capital Complex,
Agartala, West Tripura PIN-799010.

2. The Secretary,
Department of Law, Govt. of Tripura,
New Secretariat Building, New Capital Complex,
Kunjaban, P.S.- New Capital Complex, Agartala,
West Tripura, Pin-799010.

3. The Director,
O/o the Director of Treasuries,
Finance Department, Govt. of Tripura,
PN. Complex, Gurkhabasti, Agartala,
West Tripura, PIN-799006.

4. The Treasury Officer,
Treasury No.II, Finance Department,
Govt. of Tripura, Agartala, West Tripura,
Pin-799001.

5. The Hon'ble High Court of Tripura,
To be represented by the Registrar General,
Hon'ble High Court of Tripura, Lichu Bagan,
P.O.- Kunjaban, Agartala, West Tripura, Pin-799006.

6. The Registrar General,
Hon'ble High Court of Tripura, Lichu Bagan,
P.O- Kunjaban, Agartala, West Tripura, Pin-799006.
                                      ....... Respondent(s)

For the Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate.

Mr. S. Bhattacharjee, Advocate.

Mr. K. Nath, Advocate.

For the Respondent(s) : Mr. B.N. Majumder, Sr. Advocate.

Mr. A. Bhaumik, Advocate.

Mr. D.J. Saha, Advocate.

Date of hearing            : 11.04.2023

Date of delivery of
Judgment & Order           : 28.04.2023.

Whether fit for reporting : YES.


            HON'BLE THE CHIEF JUSTICE(ACTING)

                        JUDGMENT AND ORDER

The petitioner herein has filed this present writ

petition under Article 226 of the Constitution of India and sought

for necessary direction upon the respondents to clear and pass a

Bill for an amount of Rs.1,38,950/- towards the payment of

charge allowance for the petitioner in terms of the order, dated

25.08.2020, issued by the Registrar General, High Court of

Tripura.

2. The brief fact of this present case is that the

petitioner is presently serving as Registrar (Admn., Planning &

Management) under the High Court of Tripura. The petitioner

became Joint Registrar on 06.09.2017. On the retirement of

Saradindu Bhattacharjee, Registrar, .w.e.f. 01.05.2018, there

was vacancy in the post of Registrar,(Admn, P&M).

3. During the period from 01.05.2018 to 31.08.2019,

the petitioner held the full charge of the Registrar (Admn. P&M)

while the petitioner was holding the substantial post of Joint

Registrar.

4. The Hon'ble Chief Justice, High Court of Tripura

allowed the petitioner to draw charge allowance for holding the

full charge of the Registrar(Admn, P&M) for the period from

01.05.2018 to 31.08.2019, in terms of FR-49 read with FR-35.

The Registrar General, vide Order, dated, 25.08.2020, conveyed

the said decision of the Hon'ble High Court & accordingly

ordered that the petitioner will get basic pay without other

allowances of the post of Registrar,(Admn P&M) after deducting

the basic pay of the post of Joint Registrar drawn by the

petitioner at the relevant time. Accordingly, the Due & Drawn

statement was prepared and an amount of Rs.1,38,950/-

became net payable to the petitioner. Accordingly, Bill No.34,

dated 31.08.2020, for Rs1,38,950/- was raised and submitted to

the Treasury Officer, Agartala, Treasury No.II.

5. The Deputy Secretary, Finance Department, Govt.

of Tripura by Note dated 08.12.2020 returned the Bill on the

ground that the Finance Department memorandum dated

24.07.2020 has fixed pay under FR-49 & restricted it to

Rs.1500/- per month for Grade-A & Grade-B Officer & Rs.1000/-

for Grade-C & Grade-D employees. In the Note, it is stated,

that, the memorandum dated 24.07.2020, is applicable to the

High Court employees & officiating pay shall be restricted to

Rs.1500/- per month.

6. The Registrar Judicial of the Hon'ble High Court of

Tripura, vide letter dated 08.12.2020 communicated to the

Principal Secretary, Finance Department, whereby referring to

Article-229 of the Constitution of India, it is stated that the

Hon'ble Chief Justice, is the sole authority under Article 229 of

the Constitution of India. It is also stated that the administrative

instruction of the Government cannot be enforced upon the High

Court. Further, it is stated that, once a budget is appropriated to

the High Court & placed at the disposal of the High Court, no

approval/sanction from the Finance Department, is at all

required. It is also stated that after careful examination done by

the Hon'ble Chief Justice in the exercise of power under FR-49

read with FR-35, Sri Chakraborty i.e. the petitioner herein was

allowed to be paid the differences of the basic pay of the post of

Joint Registrar & higher post of Registrar (Admin P&M) as charge

allowance, which is less than 10% of the basic pay is paid as

concurrent charge allowance as per Judicial Pay Commission

report accepted by Supreme Court of India & Finance

Department, Govt. of Tripura.

7. Even thereafter, the State respondents did not

yield & continued to refuse the petitioner's entitlement of charge

allowance. Memorandum dated 24.09.2020, issued by the

Finance Department providing clarification on the Honorarium

for holding full duty charge of the higher post has not been

adopted by the High Court of Tripura.

8. Aggrieved thereby, the petitioner has filed this

present appeal praying for the following reliefs:-

" i. Issue Rule upon the Respondents to show cause as to why writ in the nature of Mandamus and/or Order/direction shall not be issued whereby quashing and cancelling the letter dated 31.03.2021, issued by the Deputy Secretary, Govt. of Tripura, Finance Department, to the Treasury Officer, Treasury No.II, Agartala, West Tripura.

ii. Issue Rule upon the Respondent to show cause as to why writ in the nature of mandamus and/or order/direction shall not be issued whereby quashing & cancelling the letter, dated, 12.07.2021, issued by the Treasury Officer, Agartala, Treasury No.II to the Registrar(DDO) & Head of Office, High Court of Tripura.

iii. Issue Rule upon the Respondent to show cause as to why writ in the nature of mandamus and/or order/direction shall not be issued whereby quashing & cancelling the letter, dated 17.12.2020, issued by the Treasury Officer, Agartala Treasury No.II to the Registrar(Admn, P&M), DDO & Head of Office, High Court of Tripura.

iv. Issue Rule upon the Respondent to show cause as to why writ in the nature of mandamus and/or order/direction shall not be issued whereby & whereunder, declaring that, memos dated 24.07.2020 & 24.09.2020 issued by the Finance Department Govt. of Tripura have no manner of application so far the grant of charge allowance to the petitioner by Order dated, 25.08.2020, issued by the Registrar General, High Court of Tripura, is concerned.

v. Issue Rule upon the Respondent to show cause as to why writ in the nature of mandamus and/or order/direction shall not be issued whereby directing the state respondents to pass the bill for an amount of Rs.1,38,950/- towards payment of charge allowance to the petitioner in terms of the order, dated 25.08.2020, issued by the Registrar General High Court of Tripura.

vi. Make the rules absolute.

vii. Call for records.

viii. Pass any further order/orders as this Hon'ble Court considered fit and proper."

9. Heard Mr. P. Roy Barman, learned Sr. counsel

assisted by Mr. S. Bhattacharjee, learned counsel, and Mr. K.

Nath, learned counsel appearing for the petitioner as well as Mr.

A. Bhaumik, learned counsel appearing for the State-

respondents and Mr. B.N. Majumder, learned Sr. counsel

assisted by Mr. D.J. Saha, learned counsel appearing for

respondents No.5 and 6.

10. Mr. P. Roy Barman, learned counsel appearing for

the petitioner submits that State Government cannot impose

any administrative instruction upon the Hon'ble High Court

unless it is approved by the High Court. Once a budget is

appropriated to the High Court and placed at the disposal of the

High Court, no approval/sanction from the Finance Department

is required. The State government cannot impose its

memorandum on the Hon'ble High Court.

In support of his argument, learned Sr. counsel placed

reliance on Para-10 of the Judgment of the Rajasthan High

Court passed in Subhash Purohit Vs. State of Rajasthan and

anr., reported in ALL India SLJ 1994 Vol-1, Page-194 which

is reproduced herein under:-

"10. In this constitutional background, the position that emerges is that the expenditures of the High Court have to be charged

upon the Consolidated Fund of the State and even the estimates of such expenditures which shall be charge upon the Consolidated Fund of the State shall not be subject to the vote of the legislative assembly, though it can be debated but such estimates are not subject to the vote of the legislative assembly. The idea behind this constitutional provision is that the High Court should for all purposes be treated as an autonomous body so as to be a watch dog on the two wings of the State i.e. Executive as well as Legislature. If the expenditure of the High Court are subject to the vote of the assembly then the very idea of independent judiciary will loose its sanctity. Thus , keeping in view this constitutional Provision the founding father of our Constitution have accorded a financial autonomy to the High Court and even the fund and the expenditure of the High Court have not been made subject to the vote of the legislative assembly."

11. On the other hand, Mr. A. Bhaumik, learned

counsel appearing for the State-respondents submits that the

petitioner was appointed as Joint Registrar on promotion vide

notification dated 6th September 2017 w.e.f the date of joining.

Thereafter, vide notification dated 27.04.2019, Sri Saradinbu

Bhattacharjee, Registrar (Administration, Planning &

Management) was asked to hand over charge to the petitioner

on 30.04.2018. Accordingly, the petitioner held the charge for

the post of Registrar (Administration, Planning & Management)

w.e.f. 01.05.2018 to 31.08.2019. As per the High Court of

Tripura, Services (Appointment, Condition of Service and

Conduct) Rules, 2014, the post of Registrar Administration,

Planning & Management) is to be filled up by promotion from

the post of Joint Registrar, eligibility criteria being two years as

Joint Registrar. Therefore the petitioner did not have any

eligibility criteria of 2(two) years of service as Joint Registrar.

12. Learned counsel further submits that as per

Residuary power of the High Court of Tripura Services

(Appointment, Conditions of Service & Conduct) Rules, 2014

i.e. Rule26(1) of the said Rules, it is clearly stated that 'Nothing

in these rules shall be deemed to affect the power of the Chief

Justice to make such order from time to time as he may deems

fit in regard to all matters, incidental or ancillary to these rules

not specifically provided for herein or in regard to the matters

as have not been sufficiently provided for.

Provided, that if any such order relates to salary,

allowances, leave or pension of the member of the service, the

same shall be made with the approval of the Governor.

In terms of the above rules, the said charge allowance

was not approved by the Governor, so the same is not liable to

be paid to the petitioner herein.

13. Mr. A. Bhaumik, learned counsel appearing for the

State-respondents submits that in the case of State of Punjab

& anr. Vs. Dharmapal reported in (2017) 9 SCC 395, the

Hon'ble Apex Court has extended the higher pay scale attached

to the higher post subject to those petitioners having the

qualifications prescribed by the Rules for the higher post.

Mr. Bhaumik, learned counsel in support of his

claim further referred to Para-19 of the Judgment of the

Hon'ble Apex Court reported in (1998) 3 SCC 72 passed in

High Court of Judicature for Rajasthan Vs. Ramesh

Chand Paliwal and anrs, wherein it is stated that:-

"19. The rule-making power of the Chief Justice is subject to three restrictions:-

(i) If the rules relate to salaries, allowances, leave or pensions, they have to approved by the Governor of the State.

(ii) If the Legislature of the State has made any law, the rules made by the Chief Justice will operate subject to that law.

(iii) If the Governor of the State has, by rule, provided that no person not already attached to the Court, shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission, the Chief Justice while making appointment on such post shall first consult the State Public Service Commission.

Stating thus, learned counsel urged to dismiss this present

petition.

14. Heard both sides and perused the evidence on

record.

CONCLUSION

15. This Court is of the view that a clear principle

needs to be laid down in the question of law as raised in this

writ petition.

16. Mr. Bhowmik, learned counsel appearing for

State-respondents while mentioning Rule 26(1) of the High

Court of Tripura Services (Appointment, Conditions of Service &

Conduct) Rules, 2014 submitted that Hon'ble Chief Justice is

not empowered to sanction charge allowance to the petitioner

herein for the post of Registrar(Admn, P&M) since the same

needs approval of the Governor. But contrary to that if Rule

26(1) of the High Court of Tripura Services (Appointment,

Conditions of Service & Conduct) Rules, 2014 is read, it is

clearly stated that it specifically deals in regard to all matters,

incidental or ancillary to these rules not specifically provided for

herein or in regard to the matters as have not been sufficiently

provided for. But here the post of Registrar(Admn, P&M) is

already appropriated. Once appropriated, the State has nothing

to say in it. Approval of the Governor is required when a fresh

appointment is made because salary and allowances have to be

fixed. Here the thing is different, it is not a new sanction,

already a person has been working in the said post and

because he is not there for some reason or other, his work is

given to someone else. Because the petitioner herein is doing

double duty, he is eligible for such charge allowance. So the

argument of Mr. Bhaumik, learned counsel that the petitioner

herein is not eligible for charge allowance on the ground of Rule

26(1) of the High Court of Tripura Services (Appointment,

Conditions of Service & Conduct) Rules, 2014 is devoid of

merit.

17. Further, learned counsel appearing for the State

respondents submitted that the petitioner herein is not eligible

to hold the charge of Registrar (Admn, P&M). Here it is

pertinent to mention that the post of Registrar(Admn, P&M) felt

vacate from 01.05.2018 to 31.08.2019 and the petitioner

herein rendered his service of both Joint Registrar and held the

full charge of the post of Registrar(Admn,P&M). So, this Court

is of the view that the petitioner rendered additional duties and

he is entitled to the said charge allowances. The State has

availed his services and now it would be wrong to say that the

petitioner herein is not entitled to be paid for such services.

Further, here if we apply the boarder aspect of 'equal work

equal pay', this Court is of the view that when a person has

rendered his services, and the State has taken his services,

now the State cannot say that he is not entitled to such

payment.

18. Further it is needless to mention that the

administrative order of the Hon'ble High Court will always have

an overriding effect over the memorandum of the State and

state government guideline until and unless specifically adopted

by the Hon'ble High Court, the same is not applicable.

19. So in view of the above discussion and reasoning,

this Court is of the view that Rule 26, i.e. the Residuary Power

will not apply to this present case. Moreover, applying the

principle of 'equal work equal pay' and having accepted the

additional services of the petitioner herein, the State-

respondents is unjust in barring his legitimate right to be paid.

Further, the benefits extended by the State-Government in

similarly situated cases with regard to the pay of allowances for

additional charges cannot be made applicable to the High Court

unless it is expressly adopted.

20. In view of the above aspects, the Judgments

referred by Mr. Bhaumik, learned counsel also has no relevance

to the fact and circumstance of this case.

21. With the above observation and direction, this

present writ petition stands allowed and thus disposed of. Stay

if any stands vacated. Pending application(s), if any stand

closed.

CHIEF JUSTICE (ACTING)

suhanjit