M. Gurumoorthy Vs. Accountant General
Assam & Nagaland & Ors [1971] INSC 120 (21 April 1971)
GROVER, A.N.
GROVER, A.N.
SIKRI, S.M. (CJ) MITTER, G.K.
HEGDE, K.S.
REDDY, P. JAGANMOHAN
CITATION: 1971 AIR 1850 1971 SCR 420 1971 SCC
(2) 137
ACT:
Constitution of India, 1950, Art.
229--Appointment of Court employees by High Court-Government while sanctioning
posts cannot lay down conditions on which appointments are to be made to said
posts.
HEADNOTE:
The appellant was appointed Secretary to the
Chief Justice of Assam with effect from August 24, 1956 against a permanent
post sanctioned by the State Government.
Thereafter the stenographers' service in the
High Court was reorganised with the sanction of the State Government.
Under the reorganisation scheme one of the
seven posts of stenographer was to be that of Selection Grade Stenographer.
On April 27, 1958 the Government informed the
Registrar that a stenographer whether of Selection Grade, Grade I (Senior) or
Grade II when attached to the Chief Justice as Private Secretary was to have
gazetted status. The letter went on to, say: "Government's sanction for
the selection Grade Stenographer was for the post of the Secretary to the Chief
Justice-cum-Stenographer only and not for an additional Selection Grade Post."
On May 7, 1959 the Chief Justice appointed the appellant as
Secretary-cum-Selection Grade Stenographer after merger of the two posts. The
order was to take effect retrospectively from the date of the appellant's
appointment as Secretary. The State Government objected to the appointment on
the ground that the appointment of the appellant was to the post of Private
Secretary exclusively and that the Post of Secretary could not be merged with
that of Selection Grade Stenographer.
The controversy not having been resolved the
Accountant General under the Governments instructions withheld the appellants
pay-slips. In a writ petition filed by the appellant Nayudu J. and Dutta J.
took different views, the former against the appellant and the latter in his
favour.
The third Judge dismissed the appellant's
petition. In appeal by certificate,
HELD: (i) Dutta J. was right in holding that
the Government had authority to sanction the post but it could not interfere
with the choice of the incumbent which undoubtedly was to be of the Chief
Justice under Art. 229 of the Constitution. [430G-H].
Clause (1) of the Art. 229 provides that
appointments of officers and servants of a High Court shall be made by the
Chief Justice of the Court or such other Judge or officer of the Court as he
may direct i.e. his nominee. The proviso empowers the Governor of the State to
require by Rule in certain cases to make appointments after consultation with
the state Public Service Commission. Clause (2) of the Article contains two
important provisions. The first is that conditions of service of officers and
servants of a High Court shall be such as may be prescribed by Rules made by
the Chief Justice or his nominee. This is however subject to provisions of any
law made by the legislature of the State. The second is that the Rules so far
as they relate to salaries, allowance and pensions require the approval of the
Governor. [427H-428B].
421 Thus cl. (1) read with cl. (2) of Art.
229 confers exclusive power not only in the matter of appointments but also
with regard to prescribing the conditions of service of officers and servants
of a High Court by Rules on the Chief Justice of the Court. This is subject to
any legislation by the State Legislature but only in respect of conditions of
service. [429A] In the matter of appointments even the legislature cannot
abridge or modify the powers conferred on the Chief Justice under cl. (1). The
approval of the Governor as noticed in the matter of the Rules is confined only
to such rules as relate to salaries, allowances, leave or pension. This
exception had to be made because the finances have to be provided by the
Government and to the extent there is any involvement of expense the Government
has to approve of it.
[429B ; 430A] The object of Art. 229 is to secure
and maintain the independence of the High Courts. The anxiety of the
Constitution makers to achieve that object is fully shown by putting the
administrative expenses of a High Court including all salaries, allowances and
pension to or in respect of officers and servants of the Court at the same
level as the salaries and allowances of the Judges of the High Court nor can
the amount of any expenditure so charged be varied even by the legislature.
Under the provisions of Art. 229(3) and Arts. 202, 203 and 204 all these
expenses are charged on and appropriated from the Consolidated Fund of the
State. [428C-H] [Provisions of Art. 229 contrasted with those of Art. 148
relating to Auditor General of India and Art. 187 relating to the staff of the
House of Legislature.] [429E-H] (iii) On the facts of the present case it could
not be said that there was any financial burden involved in the appointment of
the appellant as Secretary-cum-Selection Grade Stenographer and it was
difficult to understand how the Government could interfere in the choice of the
person who was appointed or insist on his having certain type of
qualifications. The post of selection grade stenographer cum-secretary to Chief
Justice had been sanctioned vide the letter dated April 27, 1959. The appellant
was appointed to that post by the Chief Justice who was competent to do so
under Art. 229. If there were any technical difficulties they could be easily
sorted out by mutual cooperation which is essential between the Chief Justice
of the High Court and the State Government in such matters. The unusual step of
the Accountant General withholding the pay slips under the directions of the
Government had no legal justification or warrant. [431G-432A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2023 of 1968.
Appeal from the judgment and order dated May
9, 1968 of the Assam-and Nagaland High Court in Civil Rule No. 377 of 1965.
S. V. Gupte, R. B. Datar and S. N. Prasad,
for the appellant.
M. N. Phadke and Naunit Lal, for respondents
Nos. 1 and 2.
422 The Judgment of the Court was delivered
by Grover, J.-This is an appeal by certificate from a judgment of the High
Court of Assam & Nagaland dismissing a petition filed by the appellant
under Article 226 of the Constitution.
It is necessary to set out the facts and the
relevant correspondence in order to determine the points which have to be
decided. The Assam Government had sanctioned the post of Secretary to the Chief
Justice on a temporary basis with a pay scale of Rs. 40020-500 for a period of
one year with effect from July 13, 1948. It appears from the letter of the
Registrar of the High Court to the Secretary, Judicial Department, dated August
25,'1955 that although the said post had been sanctioned but there was hardly
sufficient work for a whole time Secretary at that time. The post was not
filled up and the duties of the Secretary were performed by the Stenographer
attached to the Chief Justice. He got a special pay of Rs. 50 per mensem which
had been sanctioned by the Government in 1950. This arrangement continued till
February 20, 1955. From February 21, 1955 a Lower Division Assistant was
appointed to perform the duties of Private Secretary in addition to his own
duties. He also got a special pay of Rs. 50 per mensem by the aforesaid letter
the view of the Chief Justice was conveyed that services of a whole time
Secretary were indispensable and necessary for proper discharge of
administrative functions and work of a confidential character which had
gradually increased.
Request was, therefore, made to the
Government to sanction the post of a whole time Secretary to the Chief Justice
permanently on the same scale which had been sanctioned in 1948. It may be
mentioned that at that time the Stenographers' Service in the High Court
consisted of 7 permanent posts. There was one temporary post of Secretary to
the Chief Justice. Out of the 7 permanent posts there were 4 posts of
Stenographer Grade 1, and 3 posts of Stenographer Grade 11. It seems that the
Government had reorganised the Secretariat Stenographers Service with effect
from May 21, 1955. The Selection Grade Stenographer was given the scale of pay
of Rs. 400-20-600 plus allowances. On February 14, 1956 the Registrar addressed
a letter to the Chief Secretary saying that the Chief Justice had reorganised
the Stenographers Service in the High Court (presumably on the same lines as
had been done by the Government) with a view to providing them with sufficient
incentive. There was to be a selection grade Stenographer in the scale of pay
of Rs. 400-20-600 plus allowances and there were to be 3 posts of Stenographer
Grade I (Senior).
One post of Stenographer Grade I (Junior) and
2 posts of Stenographers Grade 11. In other words there were 7 posts of
permanent Stenographers in addition to the post of a Secretary. On April 16,
1956 the Government wrote to the Registrar conveying the sanction of 423 the
Governor to the creation of a post of Secretary to the Chief Justice for the
time being in the same scale as before subject to the revision by the Pay Committee.
The appellant was originally working as a
Stenographer in the Ministry of Law, New Delhi, and had been confirmed as a
Stenographer in the Income tax Appellate Tribunal, Delhi Branch, with effect
from July 1, 1952. It is stated that on the basis of a competitive examination
and interview the Chief Justice appointed him as his Secretary temporarily with
effect from the date on which he was appointed to the post on a scale of Rs.
400-20-500, by an order dated July 30, 1956. By a letter dated April 6, 1953 the
Government intimated to the Registrar that the Governor had agreed to the
proposed reorganisation of the Stenographers Service in the High Court with
effect from May 21, 1955 "subject to the condition that the procedure of
recruitment, promotion etc.
should be in the same or similar manner as
laid down in the Government resolution............ dated October 22,
1955".
The pay scales were to be same as accepted by
the Government on the recommendation of the Pay Committee. The Registrar
addressed a letter on October 3, 1958 to the Government pointing out that the
conditions which had been imposed relating to the procedure ofrecruitment,
promotion etc.
could not be so imposed in view of the
provisions of Article 229 of the Constitution as it was for the Chief Justice
to regulate the conditions of service of the officers and employees of the High
Court. The Court had framed its own Rules in that behalf. The Government was
requested to waive the conditions as laid down in Government resolution in so
far as the reorganisation of the Stenographers Service of the court was
concerned and to issue revised orders. The High Court also asked for a
clarification on the point whether the Government sanction referred to the poet
of the Secretary to the Chief Justice-cum-Stenographer or the separate post in
the selection grade of Stenographer (letter from the Registrar dated December
16, 1958). On April 27, 1958 the Government informed the Registrar that a
Stenographer whether of the selection grade, Grade I (Senior) or Grade II when
attached to the Chief Justice as Private Secretary was to have the Gazetted
status. The following portion of that letter deserves to be particularly
noticed :
"Government's sanction for the Selection
Grade Stenographer was for the post of the Secretary to the Chief
Justice-cum-Stenographer only and not for an additional Selection Grade
post." On May 7, 1959 Shri C. P. Sinha the then Chief Justice of the High
Court of Assam passed two orders which may be reproduced :(1) "In exercise
of the powers conferred on me under Art. 229 of the Constitution of India, read
with (1) Rule 424 11 of the Assam High Court Appointment and Conditions of
Service Rules ; (2) Letter No.
LLJ. 74 / 56 / 26 dated the 6th August 1958;
and (3) Letter No. LLJ 74 / 56 / 36 dated the
27th April 1959 of the Government of Assam, Law Deptt., I hereby direct that
the post of Secretary to the Hon'ble Chief Justice be merged into the post of
Selection Grade Stenographer, with effect from 24th August, 1956 the date when
the present incumbent, Sri M. Gurumoorthy was appointed.
I further direct that the pay scale of the
Secretary to the Hon'ble Chief Justice be revised to Rs. 450-30-600 p.m. with
effect from 1st October 1956 as recommended by the Pay Committee and accepted
by the Government." (2) "In exercise of the powers conferred on me
under Article 229 of the Constitution of India, read with Rule 5(i) Part II of
the Assam High Court Appointment and Conditions of Service Rules, I hereby
appoint Sri M.
Gurumoorthy, as Secretary to the Hon'ble
Chief Justice of Assam-cum-Selection Grade Stenographer, in a substantive
capacity in the pay scale of Rs. 450-30-600 p.m. with effect from 24th August,
1958. Shri M. Gurumoorthy will be deemed to have been placed on probation with
effect from 24th August 1956, under Rule 4(ii) Part II of the, Assam High Court
Appointment and Conditions of Service Rules." The letter of the Registrar
dated December 23, 1959 to the Government referred to the material
correspondence which led to the passing of the order by the Chief Justice dated
May 7, 1959 by which the appellant was appointed as Secretary to Chief
Justice-cum-Selection Grade Stenographer substantively with effect from August
24, 1956. In this letter sanction was asked for the post of one pre-reorganisation
Grade I Stenographer (Grade I Junior) with effect from August 24, 1956. It is
noteworthy that prior to the orders of the Chief Justice dated May 7, 1959
there were seven posts of Stenographer of all grades and one temporary post of
Secretary to the Chief Justice. After the appointment of the appellant as
Secretary-cum-Selection Grade Stenographer substantively only 6 posts of
Stenographer were left and therefore the High Court asked for sanction for the
post of a Stenographer as above As stated in para. 27 of the writ petition the
Accountant General was fully satisfied about the validity of the order dated
May 7, 1959 passed by the Chief Justice and the necessary pay slips authorising
the appellant to draw salary in the scale of Rs. 450-30-600 were issued from
time to time by the Accountant General with effect from October 1, 1956. This
was admitted in the return, 425 para. 12, but it was added that the Accountant
General was simultaneously corresponding for a formal sanction for the creation
of a permanent post of selection grade Stenographer and a definite assurance
had been given by the High Court in its letter dated September 1, 1959 that
action was being taken separately to make the necessary modification in the
High Court Appointment and Conditions of Service Rules. By a letter dated
January 12, 1961 the Finance Minister, Assam, wrote to the Chief Justice in
reply to the letter dated November 15, 1960 from him saying that from the
Charge Report of the appellant dated August 28, 1956 his appointment was
exclusively to the post of Private Secretary and he could not be held to have
been appointed in any other post. That post was a separate one and could not be
merged with any other post as was ordered by the High Court. He made certain
suggestions for consideration of the High Court. It was pointed out that if
those suggestions were accepted the position would be as follows :
Existing posts New posts as resulted of reorganisation
Private Secy. to ChiefPrivate Secy. to Chief Justice 1 Justice 1 Selection
Grade Steno (By upgrading) 1 Grade I Steno 4 Grade I Steno 3 Grade II Steno 3
Grade II Steno 3 ---------------TOTAL 8 TOTAL 8 ----------------No new creation
of a post as proposed by the High Court was stated to be necessary. The
following portion from that letter may be set out :
"I am however to point out once more
that the main difficulty in the matter, lies on the question of appointing Sri
Gurumoorthy as a Selection Grade Steno from his original appointment as Private
Secretary to the Chief Justice which was a separate post." This letter was
addressed to Shri H. Deka who had become Chief Justice by that time. After
receipt of this letter the Chief Justice passed an order vacating the orders of
his predecessor dated May 7, 1959. He expressed the view that the post of the
Secretary to the Chief Justice could not be merged with that of the Selection
Grade Stenographer inasmuch as the incumbent was not a Selection Grade
Stenographer. He agreed with the Government's suggestion contained in the aforesaid
letter and vacated the order merging the post of Secretary with that of
Selection Grade Stenographer and of absorbing the appellant substantively in
the 426 permanent cadre and in the post of Secretary-cum-Selection Grade
Stenographer. He asked for sanction to revise the pay scale of the Secretary to
Rs. 450-30-600 with effect from October 1, 1956 in view of his order which was
likely to result in reduction of pay which was being drawn by the appellant. In
September 1961 Shri Gopalji Mehrotra who had succeeded Shri H. Deka as Chief
Justice reexamined the whole matter and observed that from the orders of his
predecessor dated February 9, 1961 two consequences. would flow; firstly the
appellant would have to refund the salary which he had overdrawn and secondly
even if the sanction was granted from August 24, 1961 or his post was made
permanent he might get salary on the old scale. In his view the appointment of
the appellant by the Chief Justice Shri C. P.
Sinha on May 7, 1959 was a valid appointment
and the Chief Justice had full powers to pass the said order under Article 229
of the Constitution. He, further considered that once the appellant had been
appointed substantively he could not be asked to vacate that post in violation
of the provisions of Article 311(2). He, therefore, vacated the order made by
Shri H. Deka and restored that of Shri C. P. Sinha.
Once an order had been passed by the Chief
Justice of the High Court in exercise of his power under Article 229 of the
Constitution the only course open to the Government, if it wanted to challenge
those orders, was to take appropriate proceedings either by way of persuading
the Chief Justice to rescind or amend his order on the administrative side or
to file a writ petition challenging his orders in the High Court. But the
Government took the extraordinary and somewhat unusual step of directing the
Accountant General not to issue any pay slip to the appellant until final
orders of the Government were issued. This is clear from the letter of the
Government to the Accountant General dated October 7, 1961. It appears that the
appellant challenged the directions given by the Government to the Accountant
General by a petition under Article 226 of the Constitution.
That petition was, however, withdrawn on July
12, 1963 in view of an assurance given by the Advocate General that if a
proposal was sent to the Government by the High Court on the following lines it
would be accepted (1) Creation of a permanent post of Secretary to the Hon'ble
Chief Justice, outside the cadre of Stenographers, in the scale of Rs.
450-30-600 with retrospective effect, the
date with reference to which this would take effect being decided by the
Government in consultation with the Hon'ble Chief Justice.
(2) Pending finalisation of the above
proposal, the petitioner would be allowed to draw pay in the above 427
mentioned grade at Rs. 570 per month subject to adjustment in the light of the
finalisation of the matter".
On July 23, 1963 the Registrar wrote to the
Government enclosing a copy of the High Court order dated July 12, 1963. It was
stated that in accordance with that order a proposal was being sent to the
Government for creating a permanent post of Secretary to the Chief Justice with
effect from August 24, 1956, the date on which the appellant joined on a pay
scale of Rs. 450-30-600. On October 1, 1963 the Government wrote to the
Registrar intimating sanction of the Governor to the creation of a permanent
post of Secretary with effect from May 7, 1959. The Registrar in his letter of
November 12, 1963 pointed out that the sanction was inconsistent with the High
Court's proposal. This was followed by a long correspondence but the Accountant
General revived his demand for refund of a sum of Rs. 15,621.2nP. on account of
the salary which was stated to have been overdrawn by the appellant.
On November 15, 1965 the appellant filed a
petition under Article 226 of the Constitution which was heard on January 2,
1967 by a division bench consisting of C. S. Nayudu and S. K. Dutta JJ. The
learned Judges differed in their decision. Nayudu J. dismissed the petition
where Dutta J.
allowed it. The petition was referred to a
third Judge Goswami J., who agreed with the judgment of Nayudu J.
The main point raised in the petition related
to the ambit of the powers of the Chief Justice of a High Court under Article
229 of the Constitution and the authority of the State Government to interfere
with or override those orders of the Chief Justice by directing the Accountant
General not to issue the pay slips to the officer whose appointment had been
made by the Chief Justice as his Secretary-cum stenographer. Indeed, it was
stressed, this had been done after the State Government had accorded sanction
in clear terms for such a post. The position taken up by the appellant was
controverted in every way by the respondents.
We may now refer to the constitutional
provisions for determining the power and authority of the Chief Justice of a
High Court in the matter of appointment of officers and servants of that court.
Clause (1) of Article 229 provides that appointments of officers and servants
of a High Court shall be made by the Chief Justice of the Court or such other
judge or officer of the court as be may direct i.e. his nominee. The proviso
empowers the Governor of the State to require by Rule in certain cases to make
appointment after consultation with the State Public Service Commission.
Clause (2) of the Article contains two
important provisions.
The 428 first is that conditions of service
of officers and servants of a High Court shall be such as may be prescribed by
Rules made by the Chief Justice or his nominee. This is, however, subject to
the provisions of any law made by the legislature of the State. The second is
that the Rules so far as they relate to salaries, allowances and pensions
require the approval of the Governor. Clause (3) declares that the
administrative expenses of a High Court including all salaries, allowances etc.
in respect of officers and servants of the court shall be charged upon the Consolidated
Fund of the State. Under Article 202 the Governor shall, in respect of every
financial year, cause to be laid before the House or Houses of the legislature
of the State a statement of the estimated receipts and expenditure for that
year.
Under clause (2) the estimates of expenditure
shall show separately (a) the sums required to meet expenditure described by
the Constitution as expenditure charged upon the Consolidated Fund of the State
and (b) the sums required to meet other expenditure. Clause (3) gives the
expenditure which shall be charged on the Consolidated Fund of each State.
Clause (f) reads "any other expenditure declared by this Constitution or
by the legislature of the State by law to be so charged". Under Article
203 the estimates which relate to expenditure charged upon the Consolidated
Fund of the State shall not be submitted to the vote of the legislative
assembly. Article 204 relates to Appropriation Bills. The bill to provide for
appropriation out of the Consolidated Fund of the State must include the
expenditure charged on that Fund. Clause (2) prevents any amendment being
proposed to an Appropriation Bill which will have the effect, inter alia, of
varying the amount or altering the destination of any grant or varying the
amount of expenditure charged on the Consolidated Fund of the State.
Article 146 contains provisions relating to
officers and servants of the Supreme Court in terms analogous to Article 229
the other provisions being also similar.
The unequivocal purpose and obvious intention
of the framers of the Constitution in enacting Article 229 is that in the
matter of appointments of officers and servants of a High Court 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. This was essentially to secure and maintain the independence of
the High Courts. The anxiety of the constitution makers to achieve that object
is fully shown by putting the administrative expenses of a High Court including
all salaries, allowances and pension payable to or in respect of officers and
servants of the court at the same level as the salaries and allowances of the
judges of the High Court nor can the amount of any expenditure so charged be
varied even by the legislature. Clause (1) read with clause (2) of Article 229
confers 429 exclusive power not only in the matter of appointments but also
with regard to prescribing the conditions of service of officers and servants
of a High Court by Rules on the Chief Justice of the Court. This is subject to
any legislation by the State legislature but only in respect of conditions of
service. In the matter of appointments even the legislature cannot abridge or
modify the powers conferred on the Chief Justice under clause (1). The approval
of the Governor, as noticed in the matter of Rules, is confined only to such
rules as relate to salaries, allowances, leave or pension.
AR other rules in respect of conditions of
service do not require his approval. Even under the Government of India Act the
power to make rules relating to the conditions of service of the staff of the
High Court vested in the Chief Justice of the Court under Section 242 (4) read
with Section 241 of the Government of India Act, 1935. By way of contrast
reference may be made to Article 148 relating to the-Comptroller and Auditor
General of India. Clause (5) provides :
"Subject to the provisions of this
Constitution and of any law made by Parliament the conditions of service of
persons serving in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor General shall be such as
may be prescribed by rules made by the President after consultation with the
Comptroller and Auditor General." It is significant that the Comptroller
and Auditor General unlike the Chief Justice of a High Court has not been given
the power to prescribe the conditions of service of persons serving in the
Indian Audit and Accounts Department in the same terms as are embodied in
Article 229 (2). There the Rules have to be made by the President after
consultation with him. Article 187 may also be noticed. Clause (2) of that
Article provides that the legislature of a state may by law regulate the
recruitment and conditions of service of persons appointed to the secretarial
staff of the House or Houses of legislature. Clause (3) is to the effect that
until provision is made under clause (2) the Governor may, after consultation
with the Speaker of the legislative assembly or the Chairman of the Legislative
Council, make rules regulating the recruitment and the conditions of service or
persons appointed to the secretarial staff of the Assembly of Council. Thus
Article 229 has a distinct and different scheme and contemplates fall freedom
to the Chief Justice in the matter of appointments of officers and servants of
the High Court and their conditions of service.
These can be prescribed by rules made by him.
Apart from the special situation contemplated by the proviso to clause (1) the
only exception is that the Governor's approval must be sought to the extent the
rules relate to salaries, leave or pension.
430 This exception; it is abundantly clear,
has to be made because the finances have to be provided by the Government and
to the extent there is any involvement of expense the Government has to approve
of it.
Dutta J., in his judgment considered that
there was no dispute on the following position. There were originally 7
sanctioned posts of stenographers in the High Court. The Court sent a proposal
the Stenographers' Service should be reorganised. This included the post of one
selection grade stenographer. There was also a separate proposal to make the
post of Secretary to Chief Justice permanent with a pay scale similar to that
of a selection grade stenographer.
The Government accepted the proposal with
regard to the reorganisation of the Stenographers Service. The pay scales of
the selection grade stenographer was first fixed at Rs. 400-600 with effect
from May 21, 1955. It was revised to Rs. 450-600 from October 1, 1956 but it
was afterwards fixed at Rs. 600-900 with effect from September 1, 1959. The
Government had made it clear that the person holding the post of selection
grade stenographer should also work as Secretary to the Chief Justice and that
the temporary post of the Secretary to the Chief Justice should cease to exist.
Dutta J. repelled the contention of the
counsel for the State that no post of Secretary-cum-selection grade
stenographer had been created by the Government or that such a post could not
be created except by means of framing rules. It was pointed out by the learned
judge that a number of posts had been created with different pay scales by the
Government or the High Court and several of these posts and pay scales were
never integrated in any rule. The Government never took up the position that
all those posts did not legally exist. When a post was created with the
approval of the Government in the High Court and the pay scale was sanctioned for
it, its inclusion in the rules was a mere formality. It was also held by him
that the conditions laid down while sanctioning the post of selection grade
stenographer in the letter of the Government dated August 6, 1958 that the
procedure of recruitment should be on the same or similar lines as laid down in
the Government Resolution dated October 22, 1955 came into conflict with the
powers of the Chief Justice under Art. 229 and it was so accepted by the
Government itself in the letter dated April 27, 1959. His view finally was that
the Government had the authority to sanction the post. But it could not
interfere with the choice of the incumbent which undoubtedly was to be of the
Chief Justice under Article 229 of the Constitution.
We are inclined to concur with the reasoning
and conclusion of Dutta J.
It is unnecessary to refer to the decision of
Nayudu J., who acceded to certain contentions raised on behalf of the State
which were wholly untenable and have not been sought to be supported 431 before
us. By way of illustration, one of the arguments which was accepted was that
the letter annexure-R dated April 27, 1959 from the Secretary to Government of
Assam, Law Department, to the Registrar and which he was obviously writing on
behalf of the Government, which meant, the Governor, did not satisfy the
requirements of Article 166 of the Constitution. In view of the tenor and
contents of that letter such a contention could never have been sustained.
Goswami J., did not fall into the same errors
as Nayudu J.
and his comprehension of the true legal
position was substantially correct. But he erred in coming to the conclusion
that the Government had not accorded sanction for the post to which the
appellant was appointed by the orders of Sinha C. J. dated May 7, 1959. His
reasoning was that there were seven permanent stenographers holding seven
posts. By the appointment of the appellant as selection grade
stenographer-cum-secretary the strength was raised to eight for which no
sanction of the Government existed. Goswami J. further took into consideration
the fact that the Government had made it clear that the selection grade post
should be filled by promotion strictly on merits from among the stenographers
grade I.
It may be stated at once that any
restrictions imposed by the Government of the above nature while communicating
the sanction could not bind the Chief Justice in view of Article 229 of the
Constitution. This was recognised by the Government itself in its letter dated April 27, 1959. Even as regards the strength of the cadre of stenographers which was seven
there was evidence that at the relevant time all the posts were not filled up
(see the affidavit filed by the appellant in the High Court dated August 7,
1967 together with annexure 1). At any rate the Government had itself taken up.
the position in para 6(vii) of the affidavit dated December 12, 1965 that as a
result of the order of the Chief Justice of May 7, 1959 one post of grade I
stenographer stood automatically retrenched. If that be the correct position
there was no additional financial burden involved in the appointment of the
appellant as secretary-cum selection grade stenographer and it is difficult to
understand how the Government could interfere in the choice of the person who
was appointed or insist on his having certain type of qualifications, as seems
to have been emphasized in some of the letters. It may also be pointed out that
the post of selection grade stenographer-cum secretary to Chief Justice had
been sanctioned vide the letter dated April 27, 1959. The appellant was
appointed to that post by the Chief Justice who was competent to do so under
Article 229. If there were any technical difficulties they could be easily
sorted out by mutual cooperation which is essential between the Chief Justice
of the High Court and 432 the State Government in such matters. But instead of
doing so the unusual step of the Accountant General withholding the pay slips
under the directions of the Government was taken for which there was no legal
justification or warrant.
The appeal is consequently allowed and the
judgment of the High Court is-set aside. An appropriate writ or direction shall
issue to the respondents to give effect to the orders of Sinha C. J.. dated May
7, 1959 and Mehrotra C. J. dated September 27, 1961. The appellant will get his
costs in this Court.
G. C. Appeal allowed.
Back