PETITIONER: M. GURUMOORTHY Vs. RESPONDENT: ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS. DATE OF JUDGMENT21/04/1971 BENCH: GROVER, A.N. BENCH: 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 ap- pointment 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 ap- pellants 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] JUDGMENT:
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 of- recruitment, 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 re-
organisation
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 appel-
lant was controverted in every way by the respondents.
We may now refer to the constitutional provisions for deter-
mining 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 in-
cluding 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 dis-
pute 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. Gos-
wami 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.
433