K.S. Sidhu, J.
1. The Petitioners In This Application Under Article 226 Of The Constitution of India are employed on non-gazetted posts on the Secretariat Staff of the Rajasthan Legislative Assembly. They are seeking herein manifold relief including an appropriate writ against the Speaker, Rajasthan Legislative Assembly, the State of Rajasthan and some other functionaries prohibiting them from paying any amount to the gazetted officers of the secretarial staff of the Rajasthan Legislative Assembly by way of honorarium.
2. The Assembly Secretariat consists of a Secretary, a number of other gazetted officers and a large number of ministerial officials and class IV servants Article 187 of the Constitution lays down, inter alia, that until provision is made by the Legislature of the State, the Governor may, after consultation with the Speaker of the Legislative Assembly, make rules regulating the recruitment, and the conditions of service persons appointed to the secretariat staff of the Assembly and any rules so made shall have effect subject to the provisions of any law made under clause (2) of this Article. It is common ground between the parties that the Rajasthan Legislative Assembly has not so far made any law regulating the recruitment and the conditions of service of persons appointed to the secretarial staff. The Governor of Rajasthan has, however, framed rules under Article 187, after consultation with the Speaker of the Rajasthan Legislative Assembly, regulating the recuirtment and conditions of service of persons appointed to the secretariat staff. These rules called the Rajasthan Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1952, and will hereafter be referred to as the Assembly Secretariat Rules for the sake of brevity.
3. It appears that the Governor of Raj, has been sanctioning on yearly basis two-fold expenditure, namely, (i) at the 'discretion' and (ii) at the 'disposal' of the Speaker of the Rajasthan Legislative Assembly. The expenditure is provided for out of a budgetary head from out of the Consolidated Fund of the State. For example, the discretionary grant placed at the disposal of the Speaker under category (i) for the year 1983-84 is Rs. 10,000/- and an additional grant of Rs. 50,000/- has been placed at his disposal under categor (ii) for the same year.
4. The case of the petitioners is that both these grants, though placed at the disposal & discretion of the Hon'ble Speaker, can be administered & expended by him subject to the Assembly Secretarial Rules & the Rajasthan Service Rules,1951, as amended from time to time. On the other hand, the stand taken by the learned Advocate General appearing on behalf of the respondents including the State of Rajasthan and the Speaker of the Rajasthan Legislative Assembly is that though the grant sanctioned by the Governor under category (i) is administered by the Speaker subject to certain rules (item No. 3 annexed to the writ petition), approved by the Governor of Rajasthan, there is on such restriction under rules or otherwise on the power of the Speaker in the matter of expenditure by him from the amount placed at his disposal under category (ii) and that, therefore, the Speaker may, in his unfettered discretion, make payment of any amount out of the budget allocation under category (ii) to any persons including a person appointed to a post or service under the administrative control or in connection with the affairs of the State of Rajasthan.
5. Another argument raised by the learned Advocate General is that that the Speaker is not amenable to the writ jurisdiction of this Court in the matter of incurring expenditure out of any of the two categories of grants placed at his disposal and that this writ petition deserves to be dismissed on that short ground alone.
6. In order to be able to appreciate the merits of rival stands, it is necessary to refer to the relevant provisions of Article 187, the Assembly Secretariat Rules and the Rajasthan Service Rules. They read as under:
7. Article 187 of the Constitution:
187. Secretariat of State Legislative:
(1) ... ... ...
(2) The Legislature of a State may by law regulate the recruitment and the conditions of service of person appointed, t he secretarial staff of the House or Houses of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under clause (2) the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recuritment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council and any rules so made shall have effect subject to the provisions of any law made under the said clause.
8. Assembly Secretariat Rules
5. Pay and Allowance and other conditions of service:
(1) The Secretary, other Gazetted Officers and members of the ministerial and class IV establishment shall draw such pay and allowance as the Governor may from time to time determine in consultation with the Speaker.
(2) Other conditions of their services such as leave, gratuity, pension and the like shall be those applicable to person holding corresponding appointments in the Government Secretariat; and, Service Rules as amended from time to time shall apply.
9. Matters not specifically provided:
Any matters relating to appointments in the Assembly Secretariat and the conditions of service of persons so appointed, for which no specific provision is made in the rules, shall be governed by the rules and orders for the time being applicable to corresponding appointments or as the case may be, to persons holding corresponding appointments, in the Government Secretariat.
9. Rajasthan Service Rules, 1951.
2(i) Extent of application: These rules apply.
(i) to all persons appointed by the Government of Rajasthan to posts or services under its administrative control or in connection with the affairs or the State of Rajasthan on or after the seventh day of April, 1949.
7(13) Honorarium: Honrarium means recurring or non recurring payment granted to a Govt. Servant form the Consolidated Fund (of the State or the Consolidated Fund of India or of another State) as remuneration for special work of an occasional or intermittent character.
(1) No honorarium should be paid in respect of any work which can fairly be regarded as part of the legitimate duties of the Government servant concerned.
(2) It is one of the liabilities of the Government servant to have to work outside office hours on exceptional times and circumstances. No honoraria should ordinarily be given on this account, but continuous working out of the office hours may justify a claim to honoraria or to special pay.
13. Fundamental Conditions of Service; Unless in any case it be otherwise distinctly provided the whole-time of a Government servant is at the disposal of the Government and he may be employed in any manner required by proper authority, without claim for additional remuneration, whether the services required of him are such as would be remunerated or not, which is wholly or substantially owned or controlled by the Government or form Panchayat Samiti/Zila Parishad Fund constituted under the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 (Act No. 37 of 1959).
43(c) Circumstances in which Honorarium can be granted--Government may grant or permit a Government servant to receive an honorarium from the Consolidated Fund as remuneration for work performed which is occasional or intermittent in character and either so laborious or of such special merit as to justify such a reward. Except when special reasons which should be recorded in writing exist for a departure from this provision sanction to the grant or acceptance of an honorarium should not be given unless the work has been undertaken with the prior consent of the Government and its amount has been settled in advance.
43.(d) Reasons for grant to be recorded: In the case of both fees and honoraria the sanctioning authority shall record in writing that due regard has been paid to the general principles enunciated in Rule 13 and shall also record the reasons which in his opinion justify the grant of the extra remuneration.
The grant of honoraria is not justified to a Government servant merely because there is temporary increase in his work e.g., the holding of a special Conference under the auspicies of his department. Such temporary increases are normal incidents of Government service and form part of the legitimate duties of Government servants. Consequently they have no claim for extra remuneration.
10. Taking the second argument of the learned Advocate General first, the precise contention raised is that since the Rajasthan Legislative Assembly has not so far made any law under Article 187(2), the Assembly Secretariat Rules made under Article 187(3), reign supreme, and that therefore it will not be correct to refer to any other rules, not even the Rajasthan Service Rules, 1951, to adjudge the validity of the expenditure incurred by the Speaker from out of any of the two grants mentioned above. Now this argument on the face of it does not lend any support to the broad thesis propounded by the learned Advocate General to the effect that the Speaker is not answerable to the writ jurisdiction of this Court even in the matter of incurring expenditure out of the grants placed at his disposal. On the contrary, this argument means, by necessary implication, that this Court can examine the validity of a particular expenditure, on an application by a person having locus standi in the matter, on the touchstone of the Assembly Secretariat Rules alone to the exclusion of all other rules. If it be so, the second argument that the Speaker is not amenable at all to the writ jurisdiction of this Court in the matter of incurring expenditure out of the budgetary allocations placed at his disposal must fail.
11. Let us now take up the first argument of the learned Advocate General. Here the learned Advocate General drew a distinction between an expenditure incurred by Hon'ble Speaker out of 'discretionary amount' (referred to as category (i) above) and disposal amount' (referred to as category (ii) above) and argued that though the expenditure out of the first category is governed by rules framed by the Governor (item 3 annexed to the writ petition), there are no rules governing the expenditure of the second category. In other words, the argument is that the discretion of Hon'ble Speaker to make payments to any person, including a person appointed to a post or service under the administrative control or in connection with the affairs of the State of Rajasthan out of the 'disposal amount' (category ii) is unrestricted and unfettered, being beyond the pale of all existing rules. This argument is not quite convincing for, in my opinion the distinction drawn by the learned Advocate General between the so called, discretionary amount' and the 'disposal amount' is without any materia difference insofar as the power of the Speaker to make payments from either of the two grants to gazetted officers of the secretarial staff of the Assembly is concerned. If the rules as per item 3 annexed to the writ petition prohibit the Speaker from making any payment to the gazetted officers from the discretionary grant placed at his disposal, it will be reasonable to hold that under the selfsame rules the Speaker is also prohibited from making such payments from the so-called 'disposal amount' which is after all no better or worse than a 'discretionary amount' placed at his disposal. Call them by what ever n'me you will, both the amounts are placed at the disposal of the speaker to be disbursed by him in his discretion, which of course is governed by the rules.
12. Even assuming that the Assembly Secretariat Rules have an overriding effect over rules in the matter of payment of allowances and honoararia to the secetarial staff of the Rajasthan Legislative Assembly, a close study of the Assembly Secretariat Rules, especially rules 5 and 9, would reveal that these very Rules provide for the application of other statutory rules & orders in respect of payment of such allowances and honoraia to the said staff After providing in Sub-rule (1) of rule 5 that the secretariat staff of the Assembly shall draw such pay and allowances as the Governor may from time to time determine in consultation with the Speaker, Sub-rule (2) of Rule 5 further lays down that 'other condition of their services such as leave, gratuity pension and the like shall be those applicable to persons holding corresponding appointments in the Government Secretariat and save as otherwise provided in these rules the Rajasthan Service Rules as amdnded from to time shall apply No provision is made in the Assembly Secretariat Rules in respect of payment of honoraria to gazetted officer of the Assembly. Therefore, payment of such honoraria to gazetted officers of the Assembly shall be governed by the Rajasthan Service Rules. This conclusion is inescapable from the plain language of rule 5 itself. It is further confirmed on a perusal of rule 9 which lays down in terms that any matters relating to appointment in the Assembly Secretariat and the conditions of service of the person so appointed for which no provision is made in the Assembly Secretariat Rules shall be governed by the time being applicable to corresponding appointments or, as the case may be, to persons holding corresponding appointments in the Government Secretariat. This means that if the gazetted officers in the Government Secretariat are not entitled to the payment of honorarium, persons holding similar gazetted pests in the Assembly Secretariat are also not entitled to receive payment of any honorarium.
13. The learned Advocate General quite frankly admitted that so far as the Rajasthan Service Rules, 1951 are concerned, rules 43 (c) and 43 (d) and the Government of Rajasthan Instructions, appended as foot notes to the said rules, clearly prohibit the payment of any honorariam to a gazetted officer for any work which is part or incidental to his normal duties even if he has to work beyond office hours. Of course the Government may grant or permit a Government servant to receive honorarium in exceptional circumstances specified in rule 4 (c). This rule further lays down that sanction to the grant or acceptance of an honorarium should not be given unless the work has been undertaken with the prior consent of the Government and its amount has been settled in advance. Any departure from this rule is prohibited except for reasons to be recorded in writing Rule 43 (d) enjoins the authority sanctioning the honorarium to record in writing that due regard has been paid to the general principles enunciated in rule 13 and he shall also record reasons which in his opinion justify the grant of the extra remuneration.
14. It will thus be seen that under the Rajasthan Service Rules which are also applicable to the secretriat staff of the Legislative Assembly id the matter of payment of honorarium, by virtue of rules 5 and 9 of the Assembly Secretariat Rules, the payment of honorarium lo a gazetted Government servant is permissible in very rare cases and that too is depended upon the prior Consent of the Government before the work necessitating such payment is undertaken and the amount of the honorarium is settled in advance. It would not therefore be legal for the Hon'ble Speaker to make payment of any honorarium to any gazetted officer of the secretriat staff of the Legislative Assembly without compliance with the provisions of the Rajasthan Service Rules, 1951 adverted to above.
15. Before concluding discussion on this aspect of the case, I may mention here that the learned Advocate General brought to my notice during the course of arguments that the Government has itself taken cognizance of the correct position under the rules and apprised the Legislative Assembly secretariat about it vide their letter, dated, August 2, 1983. A copy of this letter was placed on the record during the course of arguments. The Government has issued instructions to the Secretary, Rajasthan Legislative Assembly to the effect that in future no such payments may be made to the gazetted officer in the form of honorarium or ex-gratia payment or compensation out of the fund placed at the disposal of Hon'ble Speaker for meeting unforseen expenditure'. As for such payments made in the past, the Government has, as the letter further says, waived the recovery of the amounts paid to the gazetted officers including the Secretary of the Legislative Assembly himself. The petitioners in the instant case who were, earlier seeking a direction from this Court to Government to realise from all gazetted officers, including the Secretary of the Assembly, the illegal payments so far made seem to have reconsidered the matter having regard to the fart that the amount involved in the illegal payments in the past may not be worth the efforts and expenses involved in realising it. Mr. Bhartiya, learned Counsel for the petitioner, therefore made a statement at the Bar that the petitioners are no longer desirous of pressing their petition in respect of the relief as respect to recovery of the amount illegally disbursed as honoraria to the gazetted officers in the past. After some discussion he was further good enough to abandon the items of relief mentioned at clauses (i), (iii), (iv), (v) and (vi).
16. For the reasons given above, I partly allow this writ petition and direct that no payment will be made by Hon'ble Speaker to any gazetted officer by way of honorarium without compliance with the provisions of the Assembly Secretariat Rules and the Rajasthan Service Rules, 1951, as amended from time to time. The petition is dismissed as respect to the other items of the relief. J he parties are left to bear their own costs.