STATE OF WEST BENGAL AND ORS.versusDEBASISH MUKHERJEE AND ORS.

              [2011] 13 (ADDL.) S.C.R. 1077


          STATE OF WEST BENGAL AND ORS.                        A
                             v.
           DEBASISH MUKHERJEE AND ORS.
             (Civil Appeal No. 3480 of 2005)

                  SEPTEMBER 14, 2011
                                                               B
 [R.V. RAVEENDRAN AND MARKANDEY KATJU, JJ.]

    West Bengal Service Rules (Part I):

     r.55(4) - Applicability of - Appointment of an employee c
'D' as a Section Writer/Typist in the Original Side of the
Calcutta High Court on 19.3.1964 - Promoted as Typist,
Grade I with effect from 2.4.1981 - On 9.9.1985, he was
selected to ihe post of Lower Division Assistant (LOA) - On
1.4.1989, he was awarded the second higher scale under the D
20 years Career Advancement Benefit Scheme - Claim by
employees in the cadre of LOA and senior to 'D' for re-fixation
of pay at par with the pay of 'D' ul r.55(4) or under any other
service law principle - Entitlement - Held: 'D' was given a
higher pay for wholly erroneous reasons - He was promoted E
to the post of Typist, Grade I although he was not confirmed
in the lower post at that time - 'D' was appointed as LOA as a
direct recruit on 9.9.1985 and, therefore, 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 F
benefits erroneously given were deleted, there would be no
ground for the seniors to claim any benefit on the basis of
parity of pay- Moreover, the post of LOA was neither a higher
nor a promotional post, therefore, r.55(4) was inapplicable -
              a
 The fact that mistake was committed in the case of 'D' by G
extending the benefit under Career Advancement Scheme
cannot be a ground to direct perpetuation of mistake by
directing similar benefit to other senior employees -
 Moreover, the fact that a single employee ('D') was wrongly
                            1077                                H
    1078 SUPREME COURT REPORTS [2011.] 13 (ADDL.) S.C.R.


 A given some benefit was certainly not an exceptional
   circumstance so as to invoke applicability of r.49 - Therefore,
   neither under r.55(4) nor under the general principles of
   service jurisprudence, the seniors were entitled to claim
   benefit of re-fixation of their pay at par with the pay of their
B junior 'D' - Service Law - Pay fixation - Claim for re-fixation
  of pay - Tenability.

       Constitution of India, 1950: Article 14 - Held: Guarantee
  of equality before Jaw is a positive concept and cannot be
  enforced in a negative manner - If an illegality or an
C 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 on the. reasoning that
  they have been denied the benefits which have been illegally
D or arbitrarily extended to others - Service Law.

        One 'D' 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
E 1.9.1979 and was allowed the pay-scale of Rs.230-425
   under the West Bengal Services Revision of Pay and
   Allowances Rules, 1970 (WB (ROPA) Rules, 1970). The
   said pay-scale was subsequently revised as Rs.300-685/
   - with effect from 1.4.1981 under the WB (ROPA) Rules,
F 1981. He wai; promoted as Typist, Grade I in the scale of
   Rs.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 Rs.550 in the
G scale of Rs.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.
H
STATE OF WEST 13ENGAL AND ORS. v. DEBASISH1079
           MUKHERJEE AND ORS.
     The State Government held that the Career A
Advancement benefits granted to 18 employees including
that of 'D' were in order. Immediately thereafter, fifty
employees (senior to 'D') including respondents 1 to 5,
made representation to the Chief Justice, stating that
since the State Government had found the pay fixation B
of 'D' to be in order and therefore, their pay may also be
re-fixed to be at par with the pay of their junior - 'D' by
relaxing Rule 55('4) of WBSR. Meanwhile 'D' retired from
service. The office of the Accountant General returned
the pension file of 'D' to the High Court twice to review c
the pay fixation of 'D' 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.
     The representation by respondents 1 to 5 and 45 D
other senior employees, was referred to a Three.Judge
Special Comn:iittee and the said Committee submitted a
report 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 'D'. However, when E
the memos from Accountant General's Office (stating that
the grant of career advancement benefit to 'D' was not
in order) was brought to their notice, the Special
Committee gave modified report whereby it
recommended that the memorialists be given the same F
benefit as was accorded to 'D', in keeping with the
principle of pay protection so that their pay is equivalent
to that of 'D' in relation to his appointment as Lower
Division Assistant on 9.9.1985. On 13.2.2003, the Chief
Justice of the High Court extended the benefit of pay G
protection to the 50 senior employees (including
respondents 1 to 5).

    The State Government by its letter addressed to the
High Court, traced the career and emoluments of 'D' from
1964 and pointed out that 'D' was not entitled to Grade I   H
    1080 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A promotion of Section Writer (Typist) in the scale of
   Rs.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 'D' was
   appointed as Lower Division Assistant as a direct recruit
B in the scale of Rs.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
   'D' by giving him the benefit of Grade I promotion of.
c Section Writer (Typist) with effect from 1.8.1982 instead
  of 2.4.1981. The High Court also sent a letter to the office
  of the Accountant General admitting the said mistake and
  confirming the correction in regard to grant of Grade I
  promotion to 'D'. The Calcutta Pay & Accounts Office
  requested the High Court to resubmit the bills which
0
  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
E that fixation of pay of 'D' at various stages was erroneous
  and required rectification.
       Respondents 1 to 5 approached the High Court and
  sought a declaration that they were entitled to pay
F protection as per orders of Chief Justice in the post of
  Lower Division Assistant, on and from 9.9.1985 in order
  to bring their pay at par with that of 'D', who was their
  junior. Similar writ petitions were filed by other employees
  senior to 'D' and by the State Government. The Single
G 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 admitt~d that 'D' was
  wrongly given the benefits and 'D' did not challenge the
  correction of his pay and direction for recovery of the
H amount paid in excess, it followed that 'D' was not
STATE OF WEST BENGAL AND ORS. v. DEBASISH1081
           MUKHERJEE AND ORS.
entitled to the benefits wrongly given and consequently,          A
respondents 1 to 5 and other senior employees were not
entitled to stepping up of their pay with reference to the
pay of 'D'. The Division Bench of the High Court allowed
the appeal.
                                                           B
     In the instant appeal, the questions which arose for
consideration were: (i) Whether the respondents
(employees senior to 'D') were entitled to re-fixation of
their pay at par with the pay of their junior namely 'D',
under Rule 55(4) of the WBSR (Part I) or under any other
service law principle; (ii) If the relief granted to the C
respondents (employees senior to 'D') 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 'D', was passed in exceptional D
circumstances under Rule 49 of WBSR (Part I); and iii)
Whether the order of Chief Justice dated 13.2.2003 is not
justifiable ?
    Disposing of the appeals, the Court                           E
    HELD:
Re : Question   m:
     1.1. A careful reading of Rule 55(4) of the West Bengal
Service Rules - Part I showed that two conditions have            F
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 was          G
fulfilled in the instant case. In fact, this finding was
rendered by the Single Judge and was affirmed by the
Division Bench. There is no reason to interfere with the
said concurrent finding that Rule 55(4) is inapplicable.
[Para 16] [110-G-H; 1101-A·D]                                     H
    1082 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A        State of Andhra Pradesh vs. G. Sreenivasa Rao (1989)
    2 SCC 290:1989 (1) SCR 1000; Chandigarh Administration
    vs. Naurang Singh(1997) 4 SCC 177: 1997 (2) SCR 965;
    Union of India vs. R. Swaminathan (1997) 7 SCC 690: 1997
    (4) Suppl. SCR 94 - relied on.
B
        1.2. 'D' was given a higher pay for wholly erroneous
   reasons. Firstly he was given Grade I promotion of
   Section Writer (Typist) in the scale of Rs.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
C time. Secondly, even though 'D' was appointed as Lower
   Division Assistant as a direct recruit in the scale of Rs.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
D previous service. 'D' 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
E 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
F 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 'D' was getting
  a higher pay in view of the earlier promotion as Section
  Writer/Typist, when he was selected and appointed as
G Lower Division Assistant, he was given pay pro,tection
  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
H of pay to match the pay of 'D'. Therefore, the Single Judge
STATE OF WEST BENGAL AND ORS. v. DEBASISH1083
           MUKHERJEE AND ORS.
and the Division Bench rightly held even that Rule 55(4) A
was inapplicable. The fact that a mistake was committed
in the case of 'D' 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 B
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 c
 position were not entitled to seek higher pay with
 reference to the pay of 'D'. [Para 20] [1105-C-H; 1106-A-
D]
     1.3. It is now well settled that guarantee of equality
before law is a positive concept and cannot be enforced D
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 on the E
reasoning that they have been denied the benefits which
have been illegally or arbitrarily extended to others.
Neither under Rule 55(4) of WBSR nor under the general
principles of service jurisprudence, the seniors were
entitled to claim benefit of re-fixation of their pay at par F
with the pay of their junior 'D'. [para 21] [1106-E-F; 1107-
F]
     Gursharan Singh vs. New Delhi Municipal Administration
1996 (2)SCC 459: 1996 (1) SCR 1154; Union of India vs.
Kirloskar Pneumatics Ltd. 1996 (4) SCC 433: 1996 (2)           G
Suppl. SCR 204; Union of India vs. International Trading Co.
2003 (5) SCC 437: 2003 (1) Suppl. SCR 55; State of Bihar
vs. Kameshwar Prasad Singh 2000 (9) SCC 94: 2000 (3)
SCR 764; Chandigarh Administration vs. Jagjit Singh 1995
(1) sec 745: 1995 (1) SCR 126 - relied on.                     H
    1084 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Re : Question (ii) :

          2.1. The representation given by the senior
     employees was for re-fixing their pay at par with the pay
     of 'D' by relaxing Rule 55(4) of WBSR. The basis of their
     claim was Rule 55(4) and they sought relief by relaxing
8
     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
C subsequent reports of the Committee dated 27.11.2002
     and 20.1.2003 held that the employees who were senior
     to 'D', could not get a lesser pay than 'D', 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
D 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 'D'.
    The Chief Justice concurred with the said proposal,
E without noting any other reason and thus, the Chief
    Justice merely accepted the reasons assigned by the
    Special Committee in their recommendation dated
    20.1.2003. Even in their writ petitions, the senior
   employees made the claim only based on Rule 55(4).
F 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 'D' by
G stepping up their pay at par with the pay of 'D'. 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 bt the
   Chief Justice in "his order. Nor did the 11enior employees
H who were the writ petitioners, rely upon or refer to Rule
STATE OF WEST BENGAL AND ORS. v. DEBASISH1085
           MUKHERJEE AND ORS.

49 in the writ petition, as the source of power for the A
order dated 13.2.2003. In these circumstances, it is not .
understandable 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. [Para 22] [1107-G-H; B
1108-A-F]

    2.2. Rule 49 of WBSR (Part I) relates to premature
increments and reads thus : "Save in exceptional
circumstances and under specific orders of government, C
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 State shall be exercised by the Chief D
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 E
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 F
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 ('D') was wrongly given some benefit is G
certainly r:ot an exceptional circumstance to perpetuate
the mistake in the case of all his seniors. [Para 23] [1108-
 G-H; 1109-A-D]

                                                           H
    1086 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A Re : Question (iii)

       3.1. 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
8 rule of law prevails, there is nothing like unfettered
  discretion or unaccountable action. Even prerogative
  power is subject to judicial review, but to a limited extent
  The extent, depth and intensity of judicial review may
  depend upon the subject matter of judicial review. An
C order of the Chief Justice granting certain relief to High
  Court employees whose service conditions are governed
  by Rules is justiciable. [Para 25] [1109-H; 1110-A-C]

        B.P. Singha/ vs. Union of India 2010 (6) SCC 331-
    relied on.
D
        3.2. 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
E 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
F the Rules. 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
G 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
H approval by the Governor was required. Even in Rule 41,
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1087
           MUKHERJEE AND ORS.
the reference was to the making of general orders and A
not the orders in individual cases. The order of th·e Chief
Justice granting premature increments did not therefore
require the approval of the Governor. As the Chief Justice
had the power to create posts in the High Court, it was
the C'1ief Justice who could grant premature increments B
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 c
 to Rule 40(2) of the 1976 Rules. 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
                                                               0
 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 E
 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. In view of that, none of the seniors was F
 entitled to any relief with reference to the pay of their
 junior 'O'. [Para 26, 28, 30] [1110-0, q-H; 1111-G; 1112-F- ·
  H; 1113-A-B; 1114-0-F]

     M. Gurumoorthy vs. Accountant-General, Assam and         G
Nagaland 1971(2) sec 137: 1971 (O) Suppl. SCR 420;
State of UP vs. C. L. Agrawal (1997) 5 SCC 1: 1997 (1)
Suppl. SCR 1; High Court of Judicature for Rajasthan vs.
Ramesh Chand Paliwal (1998) 3 SCC 72: 1998 (1) SCR 961
- relied on.                                                  H
     1088 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R,


A                       Case Law Reference:
        1989 (1) SCR 1000            relied on        Para 16
        1997 (2) SCR 965             relied on        Para 18
        1997 (4) Suppl. SCR 94 relied on              Para 19
B
        1996 (1) SCR 1154            relied on        Para 21
        1996 (2) Suppl. SCR 204 relied on            Para 21
        2003 (1) Suppl. SCR 55 relied on             Para 21
c       2000 (3) SCR 764             relied on       Para 21
        1995 (1) SCR 126             relied on       Para 21
        2010 (6) sec 331             relied on       Para 25
D       1971 (0) Suppl. SCR 420 relied on            Para 27
        1997 (1) Suppl. SCR 1        relied on       Para 28
        1998 (1) SCR 961             relied on       Para 29

E       CIVIL APPELLATE JURISDICTION: Civil Appeal No.
    3480 of 2005.

        From fhe Judgment & Order dated 20.1.2005 of the High
    Court at Calcutta in A.P.O. No. 689 of 2003.
F                             WITH
    C.A. No. 3481, 3482, 3483, 3484, 3485, 3486, 3650 & 3609
    of 2005.

      K.K. Venugopal, Tarun Kr. Ray, Tara Chandra Sharma,
G Neelam Sharma, Shyam Mohan Sharma for the Appellants.
                        '        '



        Jaideep Gupta, Bhaskar P. Gupta, Soumya Chekraborty,
  . Kunal Chatterjee, Rajdeep Chowdhury, Indra Sewhney, Shruti
   Chaudhary, Jayasree Singh, Swati Sinha (for Fox Manda! &
H Co.) Sarla Chandra for the Respondent.
STATE OF WEST BENGAL AND ORS. v. DEBASISH1089
           MUKHERJEE AND ORS.

    The Judgment of the Court was delivered by                    A
    R.V. RAVEENDRAN, J. 1. 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   B
facts from C.A. No.3480/2005.

      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 -C
Rs. 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 Rs.
300-685/-with effect from 1.4.1981 and under the WB (ROPA)
Rules, 1981. He was granted a promotion as Typist, Grade I D
in the scale of Rs. 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 Rs. 550
in the scale of Rs. 300-685/-, taking into account his last pay E
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.                                     F

     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 (for short 'WBSR') G
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
                                                                  H
     1090 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


 A 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) ofWBSR Part-I cannot be said to
B
         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
c        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.
D
        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) sec 459.
        See also 1998 Lab & l.C 180 and 1998 Lab & l.C 1976.
        In view of the decisions, illegality cannot be directed to be
E
        perpetuated. This illegal benefits granted to Sri Gopinath
        Dey, if any, cannot be extended to memorialists."

                                               (Emphasis supplied)

F      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.
G 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 Justice, stating that
  though seniors to Gopinath Dey, ttiey 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
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1091
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]

in order and therefore, their pay may be re-fixed to be at par        A
with the pay of their junior - Gopinath Dey, by relaxing Rule 55(4)
ofWBSR.

      5. In the meanwhile, Gopinath Dey retired from service in
the year 2001. When his service book was forwarded to the             B
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        C
 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            D
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 Gopinath Dey. The Special Committee held        E
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 2.12.19g8 proceeded on the opinion         F
     that Sri Gopinath Dey was given the benefit to which he
     was not entitled in law and Rule 55(4) of the WBSR Part-
     ! cannot be said to have any application whatsoever in this
     case.
                                                                      G
      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         H
           •.




     1092 SUPREME COURT REPORTS [2011] 13 (ADDL) S.C.R


 A        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
 B       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
C 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
D 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
  gave a further report dated 20.1.2003, modifying its earlier
  report dated 27 .11.2002 by recommending that the
E 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 th-at of Dey in relation to his appointment
  as Lower Division Assistant on 9.9.1985. We extract below the
  reason assigned for such recommendation :
F
        "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
G
        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
H
STATE OF WEST BENGAL AND ORS. v. DEBASISH1093
 MUKHERJEE AND ORS. [R.V. RAVEENDRA!'.J, J.]
    pay than Dey in keeping with the principle of Rule 55(4)      A
    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 B
 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 C
 "Please do the needful" on 13.2.2003, thereby directing that the
 50 memorialists be given pay 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    D
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' ·E
     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 F
     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."
                                                                   F
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 prol)1otion of Section Writer (Typist) in the
scale of' 380-910 under the ROPA Rules, 1981 with effect from H
     1094 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C,R.


A  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
B with effect from 1.4.1989. In view of it, the High Court corrected
  the service book of Gopinath Dey by giving him the 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
c 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
D 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
E    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
F   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 &
G   Accounts Office-II again 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
H   resubmit the bills which provided for a higher pay to the 50
STATE OF WEST BENGAL AND ORS. v. DEBASISH1095
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
employees after obtaining the clarification of the state A
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.                       B

       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 C
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 D
Judges Committee dated 20.1.2003, order of the Chief Justice
dated 13.2.2003 and the consequential orders dated 4.3.2003
 issued by the High Court, extending the stepping up benefit to
 the senior employees.
                                                                    E
        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 F
 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, G
 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 H
    1096 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A 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
B held:
       "(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
c      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
D      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
E      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.
F
      (c) The post of LOA 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
G     Division Assistant. The post held by Gopinath Dey was not
      a feeder post for the post LDA. The post of LOA 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
H     with reference to the pay of a junior, were satisfied.
STATE OF WEST BENGAL AND ORS. v. DEBASISH1097
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.)

   (d) The moment Goplnath Dey entered the post of LDA A
   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 LOA. On his
   substantive appointment to the permanent post of LOA, his
   lien in the substantive ex cadre post held· permanently B
   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 C
   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 D
   and are entitled at least to the same pay Gopinath Dey
   was given.
   (f) The Special Committee submiMed its report
   recommending pay protection which itself is an indication       E
   of an exceptional circumstance when it was found that the
   Gopinath was not entitled to fixation of pay and 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        F
   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,         G
   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   H
    1098 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A      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
B      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
c      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
D grounds:

        (i) The senior employees through their repeated
       representations sought relief under rule 55(4) of the
       WBSR. The Special Committee consciously considered
E      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
F      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 the Chief Justice
       by inferring that the Chief Justice must have gra.nted relief
       in exercise of discretion under Rule 49 of WBSR.
G      (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 P<>Y in the
       post of LOA for Gopinath Dey at par with the last pay drawn
H      by him in the old post of grade-I Typist/Section Writer could
STATE OF WEST BENGAL AND ORS. v. DEBASISH1099
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.)

    not be regarded as an 'exceptional circumstance' for                A
    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.                             B

    (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 LOA at par with the last pay drawn by him in the old post
    of Grade-l TypisUSection Writer was erroneous. Such
    wrong and illegal pay fixation will not entitle the other LDAs      C
    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.
                                                                        D
    (iv).Having held that the fixation of pay at higher initial start
    for Gopinath Dey as a LOA 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          E
    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.

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

    (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?                  G

    (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             H
     1100 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


 A        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 ?
 B
     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,
c    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,
D        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
E        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.

         The benefit of this rule shall not be admissible in case
F        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
G 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
H
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1101
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
case. In fact, this finding was rendered by the learned Single      A
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          8
    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           C
    contended by Mr. Ray. The post of LOA 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.   D

     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 pay of the seniors with   E
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 F
     members of a cadre must reteive 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 G
     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 R~l~/f:!xecutive instructions, when H
    ,, 1102 SUPREME COURT REPORTS (2011) 13 (ADOL.) S.C.R.


A        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/
B        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
c        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
D 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.
E
         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 :
F
        "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
G       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
H
STATE OF WEST BENGALAND ORS. v. DEBASISH1103
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.)
    appropriate course but their failure to do so cannot entitle A
    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 B
    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 c
    mistake."

                                          {emphasis supplied)

     19. In Union oflndia vs. R. Swaminathan-(1997) 7 SCC
690, this Court considered the government order dated             D
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 E
    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 F
    22-C which is now Fundamental Rule 22{1){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 application of Fundamental Rule 22{1){a){1 ).
    The higher pay received by a junior is on account of his G
    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 H
    1104 SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A      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.
B
       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
c      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
D             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
E            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
F            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
G            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.

             xx xx
H
 STATE OF WEST BENGAL AND ORS. v. DEBASISH1105
  MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
     There are also other instances cited in the Memorandum. A
     The Memorandum makes ii 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 B
     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."

       20. The facts narrated above, without anything more, would      C
  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 lime. Secondly, even     D
  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        E
  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                F
  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         G
  to claim any benefit on the basis of parity of pay. Even
  otherwise, as Dey was getting a higher pay in view of the eartier
  promotion as Section Writer!Typist, when he was selected and
  appointed as Lower Division Assistant, he was given pay
   protection and thus became entitled to a higher pay than what       H
     1106 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A 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
B 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
c 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.
0
        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
E invoke the jurisdiction of Courts and Tribunals to require the
  state to commit the same irregularity or illegality in their favour
  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 -
F 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.
G 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.
H
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1107
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.)

    Generally speaking, the mere fact that. the authority has A
    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 B
    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 c
     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 D
     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 E
     the rule of law."

      We are therefore of the view that neither under Rule 55(4)
of WBSR nor under the general principles of servir,e
jurisprudence, the seniors were are entitled to claim benefit of
re-fixation of their pay at par with the pay of their junior Dey.   F

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 G
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 H
    1108 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.


A 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
B 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
C Justice merely accepted the reasons assigned by the Special
   Committee in their recommendation 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
D 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
E 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.Z003. In these circumstances, it is
  ununderstandable how the division bench of the High Court,
F 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
G 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,
u provides that "the power exercisable under the West Bengal
STATE OF WEST BENGAL AND ORS. v. DEBASISH 1109
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
Service Rules by the Governor of the State shall be exercised A
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 B
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 c
 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 0
  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           E
accepted the recommendation and made an order granting
relief, are indications of exceptional circumstam:es, is
preposterous, irrational and arbitrary. The finding of the division
bench that exceptional circumstances existed for stepping up
the pay of large number of employees and therefore, the source        F
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)                                                  G
      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         H
     1110 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


 A 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
 B may depend upon the subject matter of judicial review (vide
   observation of Constitution Bench in B.P. Singha/ vs. Union
   of lndia-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
 c that an order of the Chief Justice 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
D 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
E        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,
F       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
G 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 person·s 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
H amend the Rules, he does not have the power to ignore the
STATE OF WEST BENGAL AND ORS. v. DEBASISH1111
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
Rules. Rule 23 of the Calcutta High Court Service Rules, 1960       A
provided thus :
    "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      B
    of the High Court Service, Class - I, II, Ill 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        c
     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 D
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 E
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 mocify the powers conferred F
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 G
in the High Court :
     "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    H
     1112 SUPREME COURT REPORTS (2011) 13 (ADDL.) S.C.R.


 A        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
B        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. ahd the rules,
         if they relate to salaries, allowances, etc., shall require
c        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
D
         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
E       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."
F        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
G 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,
H the reference was to the making of general orders and not the
STATE OF WEST BENGAL AND ORS. v. DEBASISH1113
 MUKHERJEE AND ORS. [R.V. RAVEENDRAN, J.]
orders in individual cases. The order of the Chief Justice A
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 B
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        C
Chand Paliwa/ - (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        D
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           E
 (Conditions of Service of Staff) Rules, 1953, made by the Chief
 Justice in 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                F
 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      G
  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       H
     1114 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A 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
B 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 administration
c 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
D 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
E 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
F circumstances, the question of assuming exceptional
  circumstances does not arise. The order dated 13.2.2003 is
  justiciable.
    Conclusion
G        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 the.se appeals, set aside the order of
    the division bench and restore the order of the learned Single
    Judge dismissing the writ petitions.
H D.G.                                        Appeals disposed of.