Gauhati
High Court & Anr Vs. Kuladhar Phukan & Anr [2002] Insc 163 (22 March 2002)
R.C.
Lahoti & K.G. Balakrishnan R.C. Lahoti, J.
Leave
granted.
On
2.7.1977, Kuladhar Phukan, the respondent No.1, was appointed as a judicial
officer in Assam Judicial Services Grade-III and on 5.7.1977, he was posted as
Judicial Magistrate Second Class at Tinsukia. On 27.2.1986, the Government of
Assam, Judicial Department : Judicial Branch made an advertisement inviting
applications for appointment for a post of Deputy Secretary in Grade III of
Assam Legal Service. Such appointment was to be made under Regulation 3(e) of
APSC (Limitation of Function) Regulations, 1951 to meet the immediate need. The
appointment was temporary and terminable without notice on the post being filled
up through the Assam Public Service Commission (APSC) by way of regular
recruitment. The field of recruitment was advocates or pleaders with five years
practice or judicial officers with five years standing. The respondent No.1
made an application which was forwarded by the High Court of Assam. He was
selected and appointed "temporarily and until further orders" in
Grade III of the Assam Legal Service.
Copies
of notification of appointment dated 18.7.1986 were sent to the Registrar, Gauhati
High Court, Gauhati with a request to release the officer immediately so as to
enable him to join the new assignment; to the respondent No.1 informing him
that as soon as the post was advertised by the APSC, he should apply to the
APSC for regularization of his ad-hoc appointment; and to the Secretary, APSC
stating that the appointment became necessary in the interest of public service
and the Commission was requested to advertise the post immediately and send its
recommendation to the Government as early as possible.
On
29.7.1986, the High Court directed the respondent No.1 to hand over charge of
his office to another judicial officer and proceed to join his new assignment
immediately. The Government was informed that the services of the respondent
No.1 were being placed at the disposal of the Government of Assam consistently
with the appointment made. On 11.9.1986, the respondent No.1 was confirmed in
Assam Judicial Service Grade III. His relative seniority was determined in
Grade II of Assam Judicial Service and he was placed on probation in Grade II.
Thus,
all went well. The seeds of controversy were sown when the Government of Assam,
Judicial Department : Judicial Branch invited applications for regular
appointment on the post of Deputy Secretary, in response to which, the
respondent No.1 also made an application. He was selected by Assam Public
Service Commission and pursuant to the recommendation made by the Commission,
the Government of Assam "regularized" the appointment of respondent
No.1 as Deputy Secretary to the Government of Assam, Legislative Department. A
notification to this effect was issued on 10.9.1987 copy whereof was sent to
the Registrar(Judicial), Gauhati High Court, Gauhati. We may hasten to add here
itself that it is not disputed that for seeking regular appointment the
respondent No.1 did not have his application forwarded by the High Court to the
Commission or the Government. Before or after regularization of the appointment
of respondent No.1, there was no consultation by the Government with the High
Court. We will revert back to details of this aspect of the matter a little
later.
On
11.9.1986 the High Court notified seniority list of judicial officers in Assam
Judicial Service Grade III. The respondent no.1 had some grievance about the
place to which he was assigned in the seniority list. On 24.6.1988 he made a
representation to the High Court wherein he stated, inter alia, "basically
I was and still am a judicial officer in the Grade III of the Assam Judicial
Service", "I was appointed regularly and permanently" in
judicial service, and that failure "to confirm our service and fix our
inter se seniority" in the service violated principles of natural justice
and Articles 14, 16 and 311 of the Constitution. He prayed for re-consideration
and re-fixation of his confirmation and seniority in the judicial service. On
7.4.1992, the respondent no.1 was amongst six judicial officers who were
promoted by the High Court from Grade III to Grade II of the Assam Judicial
Service though he and one other were allowed to continue in their "present
post" until further orders. On 9.4.1992 the respondent no.1 was informed
that in view of such promotion and having been allowed to continue in his
"present assignment for the time-being" then held by him he could
exercise his option either to continue in the Assam Legal Service or to revert
to his parent service, i.e., Assam Judicial Service. The respondent no.1
neither expressed his option nor gave any response to the High Court.
On
19.8.1992 the Government of Assam promoted the respondent no.1
"temporarily and until further orders" from the post of Deputy
Secretary to Grade II of the Assam Legal Service and posted him as Joint Legal Remembrancer
to the Government of Assam, Judicial Department, with effect from the date of
his taking over charge. Copy of the notification was sent to the Registrar, Gauhati
High Court. Here again there was no consultation by the Government with the
High Court before (or even after) directing such promotion.
The
controversy erupted when on 23.2.1995 the High Court informed the Government of
Assam, and the respondent no.1, of its decision to recall the respondent no.1
to his parent department and that a suitable substitute in place of respondent
no.1 will be provided in due course. On 4.4.1995, the Registrar (Judicial) once
again requested the State Government to take immediate steps to replace the
services of respondent no.1 at the disposal of the High Court so that the
officer could be repatriated and be posted as Assistant District & Sessions
Judge, North Lakhimpur on or before 24.4.1995. On
10.4.1995 the High Court notified the posting of respondent no.1 as Assistant
District & Sessions Judge, Lakhimpur. On 26.4.1995 the respondent no.1 sent
a communication to the Registrar (Judicial), Gauhati High Court wherein, for
the first time, he stated that he was a direct recruit in the Assam Legal
Service through the Assam Public Service Commission and that he had expressed
his desire indicating his option for permanent absorption in the Assam Legal
Service. It was further stated that it was expected that his service in the
Assam Legal Service would be confirmed as Hon'ble Minister (Law etc.) had
ordered for such confirmation. He requested for his posting as Judicial Officer
at North Lakhimpur being cancelled. On 20.3.1996 the
Government of Assam notified the services of respondent no.1 being placed at
the disposal of the Gauhati High Court. By yet another notification of the same
date the Government of Assam released the respondent no.1 from the post of
Joint Legal Remembrancer and Joint Secretary so that he could join as Assistant
District & Sessions Judge, Lakhimpur pursuant to the notification of the
High Court.
It
appears that from the date of the abovesaid two notifications dated 20.3.1996
the respondent no.1 was on leave. On 26.3.1996 the respondent no.1 filed a writ
petition in the High Court laying challenge to the notification dated 10.4.1995
issued by the High Court and the two notifications dated 20.3.1996 issued by
the State Government. A learned Single Judge of the High Court admitted the
writ petition for hearing and stayed the impugned notifications. On 6.5.1996
the learned Single Judge dismissed the writ petition filed by respondent no.1
holding that the respondent no.1 was a member of Assam Judicial Service and
could not have been regularized or absorbed in Assam Legal Service without
consultation with the High Court. On 17.5.1996 the respondent no.1 preferred a
writ appeal. A Division Bench of the High Court stayed the judgment of the learned
Single Judge. On 17.9.1996 the High Court recalled its notification dated
10.4.1995 as the respondent no.1 had not assumed charge of the post and the
same was lying vacant. On 2.6.1998 the Government of Assam also cancelled its
two notifications dated 20.3.1996. On 2.6.2000 the Division Bench of the High
Court allowed the writ appeal of respondent no.1 and quashed the notifications
dated 10.4.1995 and 20.3.1996 forming an opinion that the appointment of
respondent no.1 in Assam Legal Services was a substantive appointment. He could
not have held lien against two substantive posts. The Division bench went on to
state, "we are, therefore, unequivocally of the view that the appellant
has acquired a substantive post in the Assam Legal Service subsequently since
from 18.7.1986 and his lien in the judicial service automatically stands
terminated by operation of law with effect from 18.7.1986".
Feeling
aggrieved by the judgment of the Division Bench of the High Court, the Gauhati
High Court and its Registrar have filed this appeal by special leave.
It
appears that the respondent no.1 does not wish to be repatriated to the
judicial service and wishes to continue in Assam Legal Service. During the
course of hearing before this Court we had asked the learned counsel for the
High Court to have instructions if the High Court is agreeable not to pursue
the matter and leave the respondent no.1 where he is. We were informed that the
High Court was not so very serious about the respondent no.1 being brought back
to the judicial services __ the right place to which he belongs and ought to
be, but the High Court was certainly concerned about its stand being vindicated
for preserving the independence of judiciary and the sanctity of Article 235 of
the Constitution being maintained.
It was
also submitted by the learned counsel for the High Court that the impugned
judgment of the Division Bench if sustained would create serious and anomalous
situations where the judicial officers sent on deputation to various Government
departments or whose services are temporarily loaned and placed at the disposal
of employers other than the High Court in the interest of public convenience
and better public administration may in future claim having been absorbed at
such other places without the consent of the High Court and without the High
Court having been consulted which would create a chaotic situation. We
appreciate the concern of the High Court and a fair stand taken by it, and
therefore, proceed to decide the matter on merits.
Before
we may embark upon the principal issue for determination it would be
appropriate to place on record the stand taken by the Government of Assam. In
the writ petition filed by the respondent no.1, the High Court filed a
counter-affidavit disputing correctness of the stand taken by the respondent
no.1 but the State Government did not choose to file any counter-affidavit.
Instead written arguments were filed wherein very clearly and categorically the
stand taken by the State Government is that the appointment of respondent no.1
in Assam Legal Services on the post of Deputy Secretary as also on the post of
Joint Legal Remembrancer and Joint Secretary, Judicial Department was temporary
and until further orders i.e. a purely temporary arrangement. It was
"absolutely untrue" that the respondent no.1 was confirmed as a
regular member of the Assam Legal Service. The conduct of the respondent no.1
was commented upon by alleging that the respondent no.1 was managing to get the
best of both the worlds. Placing reliance on the decision of this Court SCR
154, the State Government contended that the respondent no.1 was a member of
Assam Judicial Service and his services were handed over outside the cadre
'temporarily and until further orders' and therefore it was open for the High
Court to recall the respondent no.1 and post him as Presiding Officer of a
District Court. The State Government endorsed the act of the High Court as
"unassailable" as the lien of respondent no.1 in his substantive post
in his parent service, viz., Assam Judicial Service "still
continues". On point of fact, the State Government agreed, that the
respondent no.1 had not applied to the APSC with the permission of and under
intimation to the High Court while seeking regular appointment.
It is
strange to notice a complete somersault taken by the State of Assam before this
Court by having abandoned the stand taken in the High Court and taking a stand
completely at variance. In its reply affidavit dated 3.11.2001 the State of
Assam has stated that the respondent no.1 was a direct recruit to the Assam
Legal Service, on a regular basis and with the consent of the Gauhati High
Court. On 28.8.1998 on his confirmation in Assam Legal Service Grade II, his
lien in Assam Judicial Service stood automatically terminated by operation of
law. Strangely enough the Government of Assam now proceeds to deny that the
consultation with the High Court for the appointment of respondent no.1 in the
Assam Legal Service was necessary. Here itself we may state that during the
course of hearing we had asked the learned counsel for the parties that if
consultation with the High Court was necessary, and if so, then how and in what
manner the requirement of consultation was satisfied? Both the learned counsel
very fairly stated that the requirement of consultation could not be dispensed
with. However, the requirement was satisfied, submitted the learned counsel for
respondents No.1 and No.2, inasmuch as every step taken by the respondent no.1
or by respondent no.2 was brought to the notice of the High Court and the High
Court although having knowledge of all the developments in the service career
of the respondent no.1 whilst in Assam Legal Service and yet never objected or
reacted to the continuance of the respondent no.1 in Assam Legal Service and
also on his being promoted from Grade III to Grade II in Assam Legal Service
never objected, much less protested, to what was being done. The inference
which necessarily follows is that the High Court was agreeable to such
continuance and promotion which satisfies the requirement of consultation. We
will examine the validity of this contention a little later.
Article
235 of the Constitution provides:
"235.
Control over subordinate courts.__ The control over district courts and courts
subordinate thereto including the posting and promotion of, and the grant of
leave to, persons belonging to the judicial service of a State and holding any
post inferior to the post of district judge shall be vested in the High Court,
but nothing in this article shall be construed as taking away from any such
person any right of appeal which he may have under the law regulating the
conditions of his service or as authorizing the High Court to deal with him
otherwise than in accordance with the conditions of his service prescribed
under such law." The doctrine of separation of powers and the need for
having an independent judiciary as a bulwark of constitutional democracy
persuaded the founding fathers of Constitution assigning a place of distinction
to judiciary. Chapter VI of the Constitution dealing with subordinate courts
seeks to achieve the avowed object of insulating even the subordinate judiciary
from the influence of the executive and the legislature. Article 234 provides
for appointments of persons other than District Judges to the judicial services
of a State being made by the Governor of the State in accordance with the rules
made by him in that behalf after consultation with the State Public Service
Commission and with the High Court exercising jurisdiction in relation to such
State. Article 235 vests in the High Court the control over district courts and
courts subordinate thereto. All the matters touching the service career of
incumbents in subordinate judiciary including their posting and promotion are
subject to the control of the High Court. Once a person has entered in the
judicial service, he cannot depart therefrom save by the leave of the High
Court. It is settled by a catena of decisions that the word 'control' referred
to in Article 235 of the Constitution has been used in a comprehensive sense
and includes the control and superintendence of the High Court over the
subordinate courts and the persons manning them, both on the judicial and the
administrative side. Even in such matter in which the Governor may take a
decision, the decision cannot be taken save by consultation with the High
Court. The consultation is mandatory and the opinion of the High Court is
binding on the State Government;
else
the control, as contemplated by Article 235, would be rendered negated. Such
control and consultation are not a matter of mere formality; they are the
constitutional power and privilege of the High Court, also its obligation, and
cannot be diluted by sheer inaction or failing to act when the High Court must
act. The Governor cannot proceed to act in any matter relating to subordinate
judiciary and bypass the process of consultation merely because the High Court,
though 'informed', did not act or respond. The consultation here means
meaningful, effective and conscious consultation. In Tej Pal a matter affecting
the service career of a judicial officer ordinarily the initiative for an
action must come from the High Court and even otherwise in the absence of
recommendation of the High Court an action taken by the Governor would be
illegal and devoid of constitutional validity. Such error, if committed, would
be incurable and even an ex-post facto approval would not cure the invalidity.
(supra),
it was held that the High Court is made by the Constitution the sole custodian
of the control of the judiciary. It will be useful to extract and reproduce the
following passage from the judgment of the Constitution Bench (at pp.
163-164):- "While sparing the service of any judicial officer to the
government it is open to the High Court to fix the period during which he may
hold any executive post. At the end of that period, the government is bound to
allow him to go back to his parent department unless the High Court agrees to
spare his services for some more time. In other words, the period during which
a judicial officer should serve in an executive post must be settled by
agreement between the High Court and the government. If there is no such
agreement it is open to the government to send him back to his parent
department at any time it pleases. It is equally open to the High Court to
recall him whenever it thinks fit. If only there is mutual understanding and
appreciation of the difficulties of the one by the other, there will be
harmony.
There
is no reason why there should be any conflict between the High Court and the
government. Except for very good reasons we think the High Court should always
be willing to spare for an agreed period the services of any of the officers
under its control for filling up such executive posts as may require the
services of judicial officers. The government, in its turn, should appreciate
the anxiety of the High Court that judicial officers should not be allowed to
acquire vested interest in the secretariat. Both the High Court and the
government should not forget the fact that powers are conferred on them for the
good of the public and they should act in such a way as to advance public
interest. If they act with that purpose in view as they should, then there is
no room for conflict and no question of one dominating the other arises. Each
of the organs of the State has a special role of its own. But our Constitution
expects all of them to work in harmony in a spirit of service." 4 SCC 640,
the Constitution Bench has again brought to fore and thrown light on the
complete and insulated scheme for subordinate judiciary services handed down by
the founders of the Constitution which cannot be tinkered with by anyone. Any
rules framed affecting the service structure of judicial services must be
preceded by consultation with the High Court else it results in truncating the
powers of High Court playing a vital role in preserving the independence of
judiciary. Even rules framed by the Governor under Article 234 read with
Article 309 proviso must satisfy the requirement of consultation with the High
Court which cannot be given a go-by.
SCC
396, this Court has held that the three words, namely, 'posting', 'promotion'
and 'grant of leave' used in Article 235 of the Constitution are only
illustrative in character and do not limit the extent of control exercised by
the High Court over the officers of the subordinate judiciary. In Chief Justice
of Andhra Pradesh & anr. Constitution Bench clarified the meaning of the
expression 'control' over District Courts and Courts subordinate thereto
'vesting' in the High Court and clearly stated that, amongst others, transfers
and promotions and confirmation of such promotions of persons holding posts in
the judicial service, transfers of District Judges and recall of District Judges
posted on ex-cadre posts or on deputation on administrative posts vests in the
High Court. Constitution Bench Sekhar Misra & Ors., (supra), also took the
same view.
Rule
3(1) of Assam Public Service (Ad-hoc) Appointment Rules, 1986, and Rule 7 of
Assam Legal Service Rules, 1962, which are relevant for our purpose, provide as
under:- Rule 3(1) abovesaid :
"Ad
hoc appointment- (1) Notwithstanding anything contained in any Service Rules,
ad hoc appointment by direct recruitment to a temporary post created under the
government may be made, if it is necessary in the public interest that the
appointment should be made immediately and reference to the commission would
cause undue delay:
Provided
that if the post has been sanctioned for or is likely to last for more than
four months, the commission shall, as soon as possible, be consulted for making
the appointment on regular basis, as provided for in clause (c) of sub-rule (2)
of this rule.
Rule 7
abovesaid :
7.
Selection of Candidates (1) In the case of selecting persons for appointment to
the service directly, the Governor shall make selection from qualified legal
practitioners or judicial officers taking into consideration the person's legal
qualifications, tact, general intelligence, integrity and previous experience,
if any:
Provided
that in the case of appointment of a person to the service from amongst the
Judicial Officers, no such appointment shall be made without consulting the
Assam High Court.* (2) It shall not be necessary for the Governor to consult the
Public Service Commission for filling up the posts in Grade-I and Grade-II of
the Service, but appointments to Grade-III and Grade- IV of the Service shall
always be in consultation with the Public Service Commission." *(now Gauhati
High Court).
An
ad-hoc appointment required to be made 'immediately' in the public interest may
be made dispensing with reference to the Public Service Commission. However, if
a candidate already in judicial service is to be appointed, obviously his
services shall have to be spared by the High Court failing which he cannot be
appointed even ad-hoc. A post which has been sanctioned for, or is likely to
last for, more than four months, has to be filled up by making appointment on
regular basis in consultation with the Public Service Commission.
If the
person chosen for such appointment is a judicial officer, he cannot be
appointed without consulting the High Court, such consultation being mandatorily
required by Rule 7. The provision for consultation in the rule brings it in
conformity with the Constitution.
The
appointment of respondent No.1 as Deputy Secretary in Assam Legal Service
Grade-III was made initially on temporary and ad-hoc basis to satisfy the
immediate need of the State Government.
For
that purpose the application by respondent No.1 seeking such appointment was
forwarded by the High Court and his services were also spared for taking over
the new assignment. However, thereafter the respondent No.1 and the State
Government gave a complete go-by to the constitutional requirement of
consultation. While seeking an appointment on regular basis as Deputy
Secretary, neither the respondent No.1 felt the need of having his application
forwarded by the High Court nor did the Government feel the need of
'consulting' the High Court, though mandatorily required by the Constitution as
also by Rule 7 above quoted. Similarly while promoting the respondent No.1 from
Grade-III to Grade-II of Assam Legal Service and appointing him as Joint
Secretary and Legal Remembrancer, the High Court was not consulted. Merely
because the State Government sent a copy of its notifications to the High
Court, the requirement of consultation cannot be said to have been satisfied.
Neither it was initiated by the State Government nor did the High Court exercise,
avail or discharge its power, privilege and obligation of consultation.
An
invalidity caused by failure to comply with mandatory constitutional
requirement, such as of consultation, cannot be cured by sheer inaction on the
part of one or both of the functionaries between whom the requirement was to be
fulfilled or by mere lapse of time.
In
almost all the States and Union Territories in the country services of judicial
officers are loaned by High Courts to the governments for being utilized in
litigation, judicial, law and legislative affairs departments of governments,
by whatever name the departments may be called. The Secretary (Law) or a Legal Remembrancer
serving under the government though a judicial officer whose services have been
placed at the disposal of the government by the High Court has a crucial role
to play. He is a vital link of communication between the High Court and the
government and his relationship with the two wings strategically enables a
healthy and appropriate relationship being maintained between the two. As held
by this Court in Sudhansu Sekhar Mishra's case (supra), the State Government
requesting the services of a competent judicial officer being made available to
it and the High Court conceding to such request is by consent and willingness
of the two. Neither the High Court can be compelled to spare a particular
judicial officer nor can the High Court thrust upon the services of a
particular judicial officer on the Government. A consensus can be arrived at by
dialogue.
However,
if the services of a competent judicial officer who would otherwise be useful
to the High Court were to be permanently appropriated by the State Government
without the consent of the High Court that will be destructive of the very
system and healthy practice apart from breach of a constitutional provision.
We
are, therefore, clearly of the opinion that there is no merit in the plea that
the service of the respondent No.1 stood absorbed in the Assam Legal Services
and the High Court could not have recalled the respondent No.1's deputation.
Equally meritless is the plea that the lien of respondent No.1 in the State
Judicial Services has come to an end and he had acquired a lien in Assam Legal
Service. The Division Bench of the High Court was unnecessarily influenced by
the factum of the High Court having recalled on 17.9.1996 its notification
dated 10.4.1995 ignoring the reason behind recalling the notification. The
notification, posting the respondent No.1 as a judicial officer, had to be
recalled as it was not carried out and required to be recalled so as to issue
another notification filling up judicial office lying vacant. So also the
Division Bench ignored the impact of constitutional provision while forming an
opinion that the lien of respondent No.1 in judicial service stood
automatically terminated as the appointment of respondent No.1 to legal
service, whilst he was a member of judicial service, was made without
consultation with the High Court and hence was invalid. The question of
respondent No.1 acquiring a lien in legal service and the lien in judicial
service being terminated did not arise. The judgment of the Division Bench of
the High Court cannot be sustained and is liable to be set aside.
The
constitutional and legal position having been set at rest, the question which
still remains to be decided is as to the manner in which the relief should be
constructed in the peculiar facts and circumstances of this case. As noted
earlier in this judgment, the learned counsel for the appellants made it very clear
during the course of hearing that Gauhati High Court has not approached this
Court as a litigant and the High Court was also not interested so much in the
respondent No.1 being brought back to the fold of the judicial services as was
its purpose to vindicate the correct position of law and service jurisprudence
concerning members of judicial services. That has been done. The learned
counsel for the respondent No.1 submitted that ever since 1986, i.e. for a
period of little less than 16 years by this time, he has remained posted in
legal service of the State and now he is nearing the end of his service career
in view of just a few years having been left for his retirement. It was
submitted at the end by the learned counsel for respondent No.1 that the respondent
No.1 would have even given up his contest in this appeal by special leave filed
by the Gauhati High Court but for the fact that his son is unfortunately not
well and is suffering from serious neurological problem, taking treatment under
the expert guidance and supervision of an expert neurologist at Gauhati, who is
the Professor and Head of Department of Neurology in Gauhati Medical College.
It would be difficult to shift his son from Gauhati to elsewhere except at
grave risk to the health of his son. The learned counsel for the appellants
made a statement under instructions that in the event of the respondent No.1
being brought back to judicial service the High Court would take a sympathetic
and humane view of the problem of the respondent No.1 and he would be posted at
a station wherefrom he can, without any inconvenience, continue neurological
treatment of his son. It was also submitted that the High Court would have no
serious objection to the respondent No.1 continuing in legal service and even
on being treated as absorbed therein but subject to reservation that he was not
posted either as Judicial Secretary or as Legal Remembrancer because that may
cause some embarrassment to the High Court. The learned counsel for the State
of Assam made a statement under instructions that if the respondent No.1 was
allowed to be retained in State Legal Services, he would not be posted as
Judicial Secretary. Whether the State was agreeable to not to post him as a
Legal Remembrancer also, the learned counsel for the State sought for time for
having instructions and later reported that she had not received any
instructions and, therefore, was not in a position to give any assurance to the
High Court or make any statement eitherway before this Court.
That
being the position and keeping in view the triple factors:
(i) that
the respondent No.1 has been away from the main judicial stream and discharged
executive functions only for a period of more than 15 years,
(ii) that
a marginal number of years is left for the retirement of respondent No.1, and
(iii)
that his son has a serious neurological problem which can be better taken care
of by his continuance in legal services and consequently continued stay at Gauhati,
we dispose of the appeal in terms of the following directions:-
1) The
judgment of the Division Bench of the High Court is set aside insofar as
findings on questions of law are concerned;
2)
Within a period of six weeks from today, the State of Assam shall take a
decision if the respondent No.1 can be posted in an office other than that of
Secretary (Judicial) and Legal Remembrancer in which case he shall continue in
Assam Legal Service and need not be repatriated;
3) If
the abovesaid direction cannot be carried out then at the end of six weeks the
respondent No.1 shall be repatriated to the High Court as a member of judicial
service and he shall be given a posting accordingly and consistently with the
assurance given on behalf of the High Court.
The
appeal stands disposed of in the abovesaid terms without any order as to the
costs.
.J.
( R.C.
LAHOTI ) J.
(K.G.
BALAKRISHNAN) March 22,
2002.
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