The Supreme Court, last month, directed the Rajasthan Government to reconsider two decade old proposal of the then Chief Justice of Rajasthan High Court to upgrade 16 posts of its Private Secretaries as Senior Private Secretaries which it had declined without even forwarding the same to the Governor.
Interpreting the term 'approval' in the proviso to Article 229(2) of the Constitution of India, the bench comprising Justice SA Bobde, Justice R. Subhash Reddy and Justice BR Gavai observed that the only ground on which the Government may refuse such proposal of the Chief Justice is that the proposal is not in conformity with the pay scales in civil services.
The Chief Justice of Rajasthan High Court made a recommendation to upgrade 16 posts of Private Secretaries as Senior Private Secretaries in the pay scale of Rs.3450-5000/- with the special pay of Rs.350/- from the pay scale of Rs.2500-4250/-. The Government, in April 1998, wrote a letter by which it declined to accept the upgradation and the recommendations of the Chief Justice were never sent to the Governor.
Later in 2004, the High Court allowing the writ petition filed by the affected Private Secretaries, held that the decision of the Chief Justice to upgrade the posts is part of the power to increase or reduce the strength of the staff attached to the High Court and there was no requirement of approval of the Governor under the proviso to Article 229(2) of the Constitution of India. The High Court set aside the letter declining to accept the decision of the Chief Justice of Rajasthan High Court and directed that the letter cannot be an impediment in exercise of such authority. The result is that the High Court has held that the approval of the government to the proposal is not necessary.
In appeal filed by the State [State of Rajasthan vs. Shri Ramesh Chandra Mundra], the bench observed that the High Court is correct to the extent it held that the decision to upgrade any post can be taken only by the Chief Justice and the said decision cannot be questioned by any authority. But the matter clearly had financial implications which would require the approval of the Government of the State, the bench added.
Article 229(2) Constitution of India
This provision reads as follows:
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.
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:
Meaning, scope and ambit the word "approval" appearing in the proviso 229(2)
The bench then discussed the meaning, scope and ambit the word "approval" appearing in the proviso 229(2) of the Constitution of India. Referring to Constitutional Assembly Debates in this regard, the bench said that the real object of the proviso is to ensure that the pay-scales between officers of constitutional courts and civil services are kept equal. It said:
"In the present case, this purpose has not been violated. It is not open to the government to reject a proposal which is not in violation of this object. In other words, the only ground on which the Government may refuse the proposal of the Chief Justice is that the proposal is not in conformity with the pay scales in civil services."
The court further elaborated:
It seems to us that the proviso to 229(2) (as also Article 146), does not reflect an architecture of hierarchy. We think that the correct constitutional approach is one of comity between different institutions working under the Constitution. The emphasis is not on the supremacy of one institution or demarcating the boundaries of the other. It is about ensuring institutional integrity of one while respecting the functional domain of the other. These provisions are meant to facilitate a dialogue of governance between high constitutional functionaries. A healthy dialogue, perhaps, even a debate is necessary for an efficient constitutional polity. The constitutional vision is not to draw "lakshman rekhas" between constitutional functionaries; its command is for the constitutional functionaries to efficiently coordinate to best achieve constitutional goals. It is this constitutional essence that was ignored when the request of the Ld. Chief Justice was not even placed before the Governor.
Integral part of 'Independence of Judiciary', as a constitutional value is the 'Institutional Independence'
The Court further went on to observe that the Independence of Judiciary takes within its sweep independence of the individual Judges in relation to their appointments, tenure, payment of salaries and also non-removal except by way of impeachment. The bench made these observations in the order:
"An integral part of 'Independence of Judiciary', as a constitutional value is the 'Institutional Independence' i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy. This effective involvement of the judicial branch in budgeting, staff and infrastructure has also been recognized by the international community." "Adequate budgeting so as to meet the judiciary's work demands, so as to ensure proper, infrastructure and facilities is integral to judicial functioning. In that sense, it is an aspect of judicial independence. That independence of Judiciary is part of the basic structure of the Constitution is by now well entrenched. An integral part of 'Independence of Judiciary', as a constitutional value is the 'Institutional Independence' i.e. the aspect concerning the financial freedom or autonomy which the judiciary must possess and enjoy." The scheme of Article 229 of the Constitution of India obviously requires a joint consideration of the proposal which the Chief Justice may make in regard to appointments, conditions of services, etc., in accordance with the Rules. Undoubtedly, if the Chief Justice takes a decision which has financial implications and that decision cannot be questioned by any authority, the financial implications which such decision may have imposed, should receive due consideration at the hands of the State Government and eventually the Governor.
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