{"id":201810,"date":"1971-04-21T00:00:00","date_gmt":"1971-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-gurumoorthy-vs-accountant-general-assam-on-21-april-1971"},"modified":"2018-06-17T11:04:58","modified_gmt":"2018-06-17T05:34:58","slug":"m-gurumoorthy-vs-accountant-general-assam-on-21-april-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-gurumoorthy-vs-accountant-general-assam-on-21-april-1971","title":{"rendered":"M. Gurumoorthy vs Accountant General Assam & … on 21 April, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. Gurumoorthy vs Accountant General Assam & … on 21 April, 1971<\/div>\n
Equivalent citations: 1971 AIR 1850, \t\t 1971 SCR 420<\/div>\n
Author: A Grover<\/div>\n
Bench: Sikri, S.M. (Cj), Mitter, G.K., Hegde, K.S., Grover, A.N., Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nM. GURUMOORTHY\n\n\tVs.\n\nRESPONDENT:\nACCOUNTANT GENERAL ASSAM & NAGALAND & ORS.\n\nDATE OF JUDGMENT21\/04\/1971\n\nBENCH:\nGROVER, A.N.\nBENCH:\nGROVER, A.N.\nSIKRI, S.M. (CJ)\nMITTER, G.K.\nHEGDE, K.S.\nREDDY, P. JAGANMOHAN\n\nCITATION:\n 1971 AIR 1850\t\t  1971 SCR  420\n 1971 SCC  (2) 137\n\n\nACT:\nConstitution of India, 1950, Art. 229--Appointment of  Court\nemployees  by High Court-Government while sanctioning  posts\ncannot\tlay down conditions on which appointments are to  be\nmade to said posts.\n\n\n\nHEADNOTE:\nThe  appellant was appointed Secretary to the Chief  Justice\nof  Assam  with\t effect\t from  August  24,  1956  against  a\npermanent   post   sanctioned  by  the\t State\t Government.\nThereafter the stenographers' service in the High Court\t was\nreorganised  with  the\tsanction of  the  State\t Government.\nUnder  the reorganisation scheme one of the seven  posts  of\nstenographer was to be that of Selection Grade Stenographer.\nOn April 27, 1958 the Government informed the Registrar that\na stenographer whether of Selection Grade, Grade I  (Senior)\nor  Grade II when attached to the Chief Justice\t as  Private\nSecretary  was to have gazetted status.\t The letter went  on\nto,  say:  \"Government's sanction for  the  selection  Grade\nStenographer was for the post of the Secretary to the  Chief\nJustice-cum-Stenographer  only\tand not\t for  an  additional\nSelection  Grade  Post.\" On May 7, 1959\t the  Chief  Justice\nappointed  the\tappellant as  Secretary-cum-Selection  Grade\nStenographer  after merger of the two posts.  The order\t was\nto  take  effect  retrospectively  from\t the  date  of\t the\nappellant's appointment as Secretary.  The State  Government\nobjected  to  the  appointment on the ground  that  the\t ap-\npointment  of  the  appellant was to  the  post\t of  Private\nSecretary  exclusively and that the Post of Secretary  could\nnot  be\t merged with that of Selection\tGrade  Stenographer.\nThe  controversy  not having been  resolved  the  Accountant\nGeneral under the Governments instructions withheld the\t ap-\npellants  pay-slips.   In  a  writ  petition  filed  by\t the\nappellant  Nayudu J. and Dutta J. took different views,\t the\nformer\tagainst the appellant and the latter in his  favour.\nThe  third  Judge dismissed the\t appellant's  petition.\t  In\nappeal by certificate,\nHELD:\t  (i)  Dutta  J.  was  right  in  holding  that\t the\nGovernment  had authority to sanction the post but it  could\nnot  interfere\twith  the  choice  of  the  incumbent  which\nundoubtedly was to be of the Chief Justice under Art. 229 of\nthe Constitution. [430G-H].\nClause\t(1)  of the Art. 229 provides that  appointments  of\nofficers  and servants of a High Court shall be made by\t the\nChief Justice of the Court or such other Judge or officer of\nthe  Court as he may direct i.e. his nominee.\tThe  proviso\nempowers  the  Governor of the State to require by  Rule  in\ncertain\t cases to make appointments after consultation\twith\nthe  state  Public Service Commission.\tClause\t(2)  of\t the\nArticle\t contains  two important provisions.  The  first  is\nthat  conditions  of service of officers and servants  of  a\nHigh Court shall be such as may be prescribed by Rules\tmade\nby  the\t Chief\tJustice or his\tnominee.   This\t is  however\nsubject to provisions of any law made by the legislature  of\nthe  State.   The second is that the Rules so  far  as\tthey\nrelate\tto  salaries,  allowance and  pensions\trequire\t the\napproval of the Governor. [427H-428B].\n421\nThus cl. (1) read with cl. (2) of Art. 229 confers exclusive\npower not only in the matter of appointments but also  with\nregard to prescribing the conditions of service of  officers\nand  servants of a High Court by Rules on the Chief  Justice\nof  the\t Court.\t This is subject to any legislation  by\t the\nState  Legislature  but\t only in respect  of  conditions  of\nservice. [429A]\nIn  the matter of appointments even the\t legislature  cannot\nabridge or modify the powers conferred on the Chief  Justice\nunder  cl. (1).\t The approval of the Governor as noticed  in\nthe  matter of the Rules is confined only to such  rules  as\nrelate\tto  salaries, allowances, leave\t or  pension.\tThis\nexception  had\tto be made because the finances have  to  be\nprovided  by the Government and to the extent there  is\t any\ninvolvement of expense the Government has to approve of\t it.\n[429B ; 430A]\nThe  object  of\t Art.  229 is to  secure  and  maintain\t the\nindependence  of  the  High  Courts.   The  anxiety  of\t the\nConstitution makers to achieve that object is fully shown by\nputting\t  the  administrative  expenses\t of  a\tHigh   Court\nincluding  all\tsalaries, allowances and pension  to  or  in\nrespect\t of officers and servants of the Court at  the\tsame\nlevel  as the salaries and allowances of the Judges  of\t the\nHigh Court nor can the amount of any expenditure so  charged\nbe varied even by the legislature.  Under the provisions  of\nArt.  229(3) and Arts. 202, 203 and 204 all  these  expenses\nare  charged on and appropriated from the Consolidated\tFund\nof the State. [428C-H]\n[Provisions  of Art. 229 contrasted with those of  Art.\t 148\nrelating  to Auditor General of India and Art. 187  relating\nto the staff of the House of Legislature.] [429E-H]\n(iii)\t  On  the facts of the present case it could not  be\nsaid  that  there was any financial burden involved  in\t the\nappointment  of\t the  appellant\t as  Secretary-cum-Selection\nGrade  Stenographer and it was difficult to  understand\t how\nthe  Government could interfere in the choice of the  person\nwho  was appointed or insist on his having certain  type  of\nqualifications.\t  The post of selection grade  stenographer-\ncum-secretary to Chief Justice had been sanctioned vide\t the\nletter dated April 27, 1959.  The appellant was appointed to\nthat  post by the Chief Justice who was competent to  do  so\nunder  Art. 229.  If there were any technical  difficulties\nthey could be easily sorted out by mutual cooperation  which\nis essential between the Chief Justice of the High Court and\nthe  State Government in such matters.\tThe unusual step  of\nthe  Accountant General withholding the pay slips under\t the\ndirections  of the Government had no legal justification  or\nwarrant. [431G-432A]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2023  of
\n1968.\n<\/p>\n
Appeal from the judgment and order dated May 9, 1968 of\t the
\nAssam-and Nagaland High Court in Civil Rule No. 377 of 1965.
\nS.   V.\t Gupte,\t R.  B.\t Datar and S.  N.  Prasad,  for\t the
\nappellant.\n<\/p>\n
M.   N.\t Phadke and Naunit Lal, for respondents Nos.  1\t and\n<\/p>\n
2.
\n422<\/span>
\nThe Judgment of the Court was delivered by
\nGrover, J.-This is an appeal by certificate from a  judgment
\nof the High Court of Assam & Nagaland dismissing a  petition
\nfiled\tby   the  appellant  under  Article   226   of\t the
\nConstitution.\n<\/p>\n
It  is\tnecessary  to set out the  facts  and  the  relevant
\ncorrespondence\tin order to determine the points which\thave
\nto be decided.\tThe Assam Government had sanctioned the post
\nof Secretary to the Chief Justice on a temporary basis\twith
\na  pay scale of Rs. 40020-500 for a period of one year\twith
\neffect\tfrom July 13, 1948.  It appears from the  letter  of
\nthe Registrar of the High Court to the Secretary, Judicial
\nDepartment,  dated  August 25,’1955 that although  the\tsaid
\npost  had  been sanctioned but there was  hardly  sufficient
\nwork for a whole time Secretary at that time.  The post\t was
\nnot filled up and the duties of the Secretary were performed
\nby the Stenographer attached to the Chief Justice.  He got a
\nspecial\t pay of Rs. 50 per mensem which had been  sanctioned
\nby the Government in 1950.  This arrangement continued\ttill
\nFebruary 20, 1955.  From February 21, 1955 a Lower  Division
\nAssistant  was\tappointed to perform the duties\t of  Private
\nSecretary  in  addition to his own duties.  He\talso  got  a
\nspecial pay of Rs. 50 per mensem by the aforesaid letter the
\nview  of the Chief Justice was conveyed that services  of  a
\nwhole  time Secretary were indispensable and  necessary\t for
\nproper\tdischarge of administrative functions and work of  a
\nconfidential   character  which\t had  gradually\t  increased.
\nRequest\t was, therefore, made to the Government to  sanction
\nthe  post  of a whole time Secretary to\t the  Chief  Justice
\npermanently  on the same scale which had been sanctioned  in
\n1948.\t It  may  be  mentioned\t that  at  that\t  time\t the
\nStenographers’\tService\t in the High Court  consisted  of  7
\npermanent posts.  There was one temporary post of  Secretary
\nto  the Chief Justice.\tOut of the 7 permanent\tposts  there
\nwere  4\t posts\tof  Stenographer Grade 1,  and\t3  posts  of
\nStenographer  Grade  11.  It seems that the  Government\t had
\nreorganised  the  Secretariat  Stenographers  Service\twith
\neffect from May 21, 1955.  The Selection Grade\tStenographer
\nwas   given  the  scale\t of  pay  of  Rs.  400-20-600\tplus
\nallowances.  On February 14, 1956 the Registrar addressed  a
\nletter to the Chief Secretary saying that the Chief  Justice
\nhad reorganised the Stenographers Service in the High  Court
\n(presumably  on\t the  same lines as had\t been  done  by\t the
\nGovernment)  with a view to providing them  with  sufficient
\nincentive.   There was to be a selection grade\tStenographer
\nin  the scale of pay of Rs. 400-20-600 plus  allowances\t and
\nthere  were to be 3 posts of Stenographer Grade I  (Senior).
\nOne  post  of Stenographer Grade I (Junior) and 2  posts  of
\nStenographers  Grade 11.  In other words there were 7  posts
\nof  permanent  Stenographers in addition to the\t post  of  a
\nSecretary.   On April 16, 1956 the Government wrote  to\t the
\nRegistrar conveying the sanction of
\n423<\/span>
\nthe  Governor to the creation of a post of Secretary to\t the
\nChief Justice for the time being in the same scale as before
\nsubject to the revision by the Pay Committee.
\nThe  appellant was originally working as a  Stenographer  in
\nthe Ministry of Law, New Delhi, and had been confirmed as  a
\nStenographer  in  the Income tax Appellate  Tribunal,  Delhi
\nBranch, with effect from July 1, 1952.\tIt is stated that on
\nthe  basis  of a competitive examination and  interview\t the
\nChief  Justice\tappointed him as his  Secretary\t temporarily
\nwith  effect from the date on which he was appointed to\t the
\npost  on a scale of Rs. 400-20-500, by an order\t dated\tJuly
\n30,  1956.  By a letter dated April 6, 1953  the  Government
\nintimated  to the Registrar that the Governor had agreed  to
\nthe proposed reorganisation of the Stenographers Service  in
\nthe High Court with effect from May 21, 1955 “subject to the
\ncondition that the procedure of recruitment, promotion\tetc.
\nshould be in the same or similar manner as laid down in\t the
\nGovernment  resolution………… dated October 22,  1955”.
\nThe pay scales were to be same as accepted by the Government
\non  the recommendation of the Pay Committee.  The  Registrar
\naddressed  a  letter on October 3, 1958\t to  the  Government
\npointing  out  that the conditions which  had  been  imposed
\nrelating  to the procedure of- recruitment,  promotion\tetc.
\ncould not be so imposed in view of the provisions of Article
\n229  of the Constitution as it was for the Chief Justice  to
\nregulate  the  conditions  of service of  the  officers\t and
\nemployees  of the High Court.  The Court had framed its\t own
\nRules in that behalf.  The Government was requested to waive
\nthe  conditions as laid down in Government resolution in  so
\nfar  as the reorganisation of the Stenographers\t Service  of
\nthe  court was concerned and to issue revised  orders.\t The
\nHigh  Court  also  asked for a clarification  on  the  point
\nwhether the Government sanction referred to the poet of\t the
\nSecretary  to  the  Chief  Justice-cum-Stenographer  or\t the
\nseparate post in the selection grade of Stenographer (letter
\nfrom  the Registrar dated December 16, 1958).  On April\t 27,
\n1958   the   Government\t informed  the\tRegistrar   that   a
\nStenographer  whether  of  the\tselection  grade,  Grade   I
\n(Senior)  or Grade II when attached to the Chief Justice  as
\nPrivate\t Secretary  was\t to have the  Gazetted\tstatus.\t The
\nfollowing    portion   of  that\t letter\t  deserves   to\t  be
\nparticularly noticed :\n<\/p>\n
\t      “Government’s sanction for the Selection Grade
\n\t      Stenographer was for the post of the Secretary
\n\t      to the Chief Justice-cum-Stenographer only and
\n\t      not for an additional Selection Grade post.”
\n\t      On May 7, 1959 Shri C. P. Sinha the then Chief
\n\t      Justice of the High Court of Assam passed\t two
\n\t      orders which may be reproduced :-
\n\t      (1) “In exercise of the powers conferred on me
\n\t      under  Art. 229 of the Constitution of  India,
\n\t      read with (1) Rule
\n\t      424<\/span>
\n\t      11  of  the Assam High Court  Appointment\t and
\n\t      Conditions  of Service Rules ; (2) Letter\t No.
\n\t      LLJ.  74 \/ 56 \/ 26 dated the 6th August  1958;
\n\t      and (3) Letter No. LLJ 74 \/ 56 \/ 36 dated\t the
\n\t      27th  April 1959 of the Government  of  Assam,
\n\t      Law  Deptt., I hereby direct that the post
\n\t      of  Secretary to the Hon’ble Chief Justice  be
\n\t      merged  into  the\t post  of  Selection   Grade
\n\t      Stenographer,  with effect from  24th  August,
\n\t      1956 the date when the present incumbent,\t Sri
\n\t      M. Gurumoorthy was appointed.\n<\/p><\/blockquote>\n
\t      I\t further  direct that the pay scale  of\t the
\n\t      Secretary\t to  the Hon’ble  Chief\t Justice  be
\n\t      revised  to  Rs. 450-30-600 p.m.\twith  effect
\n\t      from  1st October 1956 as recommended  by\t the
\n\t      Pay Committee and accepted by the Government.”
\n\t      (2)   “In exercise of the powers conferred  on
\n\t      me  under Article 229 of the  Constitution  of
\n\t      India,  read  with Rule 5(i) Part\t II  of\t the
\n\t      Assam High Court Appointment and Conditions of
\n\t      Service\tRules,\tI  hereby  appoint  Sri\t  M.
\n\t      Gurumoorthy, as Secretary to the Hon’ble Chief
\n\t      Justice\t of    Assam-cum-Selection     Grade
\n\t      Stenographer, in a substantive capacity in the
\n\t      pay  scale of Rs. 450-30-600 p.m. with  effect
\n\t      from  24th August, 1958.\tShri M.\t Gurumoorthy
\n\t      will   be\t deemed\t to  have  been\t placed\t  on
\n\t      probation\t with effect from 24th August  1956,
\n\t      under  Rule 4(ii) Part II of the,\t Assam\tHigh
\n\t      Court  Appointment and Conditions\t of  Service
\n\t      Rules.”\n<\/p><\/blockquote>\n
The  letter of the Registrar dated December 23, 1959 to\t the
\nGovernment referred to the material correspondence which led
\nto  the passing of the order by the Chief Justice dated\t May
\n7, 1959 by which the appellant was appointed as Secretary to
\nChief Justice-cum-Selection Grade Stenographer substantively
\nwith  effect from August 24, 1956.  In this letter  sanction
\nwas  asked  for the post of one pre-reorganisation  Grade  I
\nStenographer  (Grade I Junior) with effect from\t August\t 24,
\n1956.\tIt  is noteworthy that prior to the  orders  of\t the
\nChief  Justice dated May 7, 1959 there were seven  posts  of
\nStenographer  of  all  grades  and  one\t temporary  post  of
\nSecretary  to the Chief Justice.  After the  appointment  of
\nthe appellant as Secretary-cum-Selection Grade\tStenographer
\nsubstantively  only  6 posts of Stenographer were  left\t and
\ntherefore the High Court asked for sanction for the post  of
\na  Stenographer as above As stated in para. 27 of  the\twrit
\npetition  the Accountant General was fully  satisfied  about
\nthe  validity of the order dated May 7, 1959 passed  by\t the
\nChief  Justice and the necessary pay slips  authorising\t the
\nappellant to draw salary in the scale of Rs. 450-30-600 were
\nissued\tfrom  time to time by the  Accountant  General\twith
\neffect\tfrom  October  1, 1956.\t This was  admitted  in\t the
\nreturn,
\n425<\/span>
\npara.  12, but it was added that the Accountant General\t was
\nsimultaneously\tcorresponding for a formal sanction for\t the
\ncreation of a permanent post of selection grade Stenographer
\nand a definite assurance had been given by the High Court in
\nits  letter  dated September 1, 1959 that action  was  being
\ntaken  separately to make the necessary modification in\t the
\nHigh Court Appointment and Conditions of Service Rules.\t  By
\na letter dated January 12, 1961 the Finance Minister, Assam,
\nwrote  to  the Chief Justice in reply to  the  letter  dated
\nNovember  15,  1960  from him saying that  from\t the  Charge
\nReport\t of  the  appellant  dated  August  28,\t  1956\t his
\nappointment was exclusively to the post of Private Secretary
\nand he could not be held to have been appointed in any other
\npost.  That post was a separate one and could not be  merged
\nwith  any other post as was ordered by the High\t Court.\t  He
\nmade  certain  suggestions  for consideration  of  the\tHigh
\nCourt.\t It was pointed out that if those  suggestions\twere
\naccepted the position would be as follows :\n<\/p>\n
Existing posts\t\t\tNew posts as resulted of re-<\/p>\n
\norganisation\nPrivate Secy. to    ChiefPrivate Secy. to Chief\n     Justice   1\t      Justice\t     1\n\t\t\t      Selection Grade Steno\n\t\t\t     (By upgrading)  1\nGrade I Steno  4\t      Grade I Steno  3\n\t\t\t      Grade II Steno 3\nGrade II Steno 3\n\t   ---------\t\t       --------\nTOTAL\t     8\t\t\t  TOTAL\t     8\n\t   -----------\t\t\t  -------\n<\/pre>\n
No new creation of a post as proposed by the High Court\t was
\nstated\tto  be necessary.  The following portion  from\tthat
\nletter may be set out :\n<\/p>\n
\t      “I am however to point out once more that\t the
\n\t      main  difficulty\tin the matter, lies  on\t the
\n\t      question\tof appointing Sri Gurumoorthy  as  a
\n\t      Selection\t  Grade\t Steno\tfrom  his   original
\n\t      appointment as Private Secretary to the  Chief
\n\t      Justice which was a separate post.”\n<\/p><\/blockquote>\n
This  letter  was addressed to Shri H. Deka who\t had  become
\nChief  Justice by that time.  After receipt of\tthis  letter
\nthe Chief Justice passed an order vacating the orders of his
\npredecessor  dated May 7, 1959.\t He expressed the view\tthat
\nthe post of the Secretary to the Chief Justice could not  be
\nmerged\twith  that  of\tthe  Selection\tGrade\tStenographer
\ninasmuch  as  the  incumbent  was  not\ta  Selection   Grade
\nStenographer.\tHe agreed with the  Government’s  suggestion
\ncontained  in  the aforesaid letter and\t vacated  the  order
\nmerging\t the post of Secretary with that of Selection  Grade
\nStenographer and of absorbing the appellant substantively in
\nthe
\n426<\/span>
\npermanent  cadre and in the post of  Secretary-cum-Selection
\nGrade Stenographer.\t He asked for sanction to revise the
\npay scale of the Secretary    to Rs. 450-30-600 with  effect
\nfrom October 1, 1956 in view of his\torder\twhich\t was
\nlikely\tto result in reduction of pay which was being  drawn
\nby  the appellant.  In September 1961 Shri Gopalji  Mehrotra
\nwho  had succeeded Shri H. Deka as Chief Justice  reexamined
\nthe  whole matter and observed that from the orders  of\t his
\npredecessor  dated February 9, 1961 two consequences.  would
\nflow; firstly the appellant would have to refund the  salary
\nwhich he had overdrawn and secondly even if the sanction was
\ngranted from August 24, 1961 or his post was made  permanent
\nhe  might  get\tsalary on the old scale.  In  his  view\t the
\nappointment of the appellant by the Chief Justice Shri C. P.
\nSinha  on May 7, 1959 was a valid appointment and the  Chief
\nJustice had full powers to pass the said order under Article
\n229  of the Constitution.  He, further considered that\tonce
\nthe appellant had been appointed substantively he could\t not
\nbe asked to vacate that post in violation of the  provisions
\nof Article 311(2).  He, therefore, vacated the order made by
\nShri H. Deka and restored that of Shri C. P. Sinha.
\nOnce  an order had been passed by the Chief Justice  of\t the
\nHigh Court in exercise of his power under Article 229 of the
\nConstitution  the only course open to the Government, if  it
\nwanted\tto challenge those orders, was to  take\t appropriate
\nproceedings either by way of persuading the Chief Justice to
\nrescind or amend his order on the administrative side or  to
\nfile  a\t writ petition challenging his orders  in  the\tHigh
\nCourt.\t But  the  Government  took  the  extraordinary\t and
\nsomewhat  unusual step of directing the\t Accountant  General
\nnot  to\t issue\tany pay slip to the  appellant\tuntil  final
\norders\tof the Government were issued.\tThis is\t clear\tfrom
\nthe letter of the Government to the Accountant General dated
\nOctober\t 7, 1961.  It appears that the appellant  challenged
\nthe  directions\t given by the Government to  the  Accountant
\nGeneral by a petition under Article 226 of the Constitution.
\nThat  petition was, however, withdrawn on July 12,  1963  in
\nview of an assurance given by the Advocate General that if a
\nproposal was sent to the Government by the High Court on the
\nfollowing lines it would be accepted
\n\t      (1) Creation of a permanent post of  Secretary
\n\t      to  the  Hon’ble Chief  Justice,\toutside\t the
\n\t      cadre  of Stenographers, in the scale  of\t Rs.\n<\/p>\n
\t      450-30-600 with retrospective effect, the date
\n\t      with reference to which this would take effect
\n\t      being    decided\t by   the   Government\t  in
\n\t      consultation with the Hon’ble Chief Justice.
\n\t      (2)   Pending   finalisation  of\t the   above
\n\t      proposal,\t the petitioner would be allowed  to
\n\t      draw pay in the above
\n\t      427<\/span>
\n\t      mentioned\t grade at Rs. 570 per month  subject
\n\t      to adjustment in the light of the finalisation
\n\t      of the matter”.\n<\/p>\n
On  July  23,  1963 the Registrar wrote\t to  the  Government
\nenclosing  a  copy of the High Court order  dated  July\t 12,
\n1963.\tIt was stated that in accordance with that  order  a
\nproposal  was  being sent to the Government for\t creating  a
\npermanent post of Secretary to the Chief Justice with effect
\nfrom August 24, 1956, the date on which the appellant joined
\non  a pay scale of Rs. 450-30-600.  On October 1,  1963\t the
\nGovernment wrote to the Registrar intimating sanction of the
\nGovernor  to the creation of a permanent post  of  Secretary
\nwith  effect from May 7, 1959.\tThe Registrar in his  letter
\nof  November  12,  1963 pointed out that  the  sanction\t was
\ninconsistent  with  the\t High Court’s  proposal.   This\t was
\nfollowed by a long correspondence but the Accountant General
\nrevived his demand for refund of a sum of Rs. 15,621.2nP. on
\naccount\t of  the  salary  which\t was  stated  to  have\tbeen
\noverdrawn by the appellant.\n<\/p>\n
On  November 15, 1965 the appellant filed a  petition  under
\nArticle\t 226 of the Constitution which was heard on  January
\n2,  1967 by a division bench consisting of C. S. Nayudu\t and
\nS.  K.\tDutta  JJ.  The learned\t Judges\t differed  in  their
\ndecision.   Nayudu J. dismissed the petition where Dutta  J.
\nallowed\t it.   The petition was referred to  a\tthird  Judge
\nGoswami J., who agreed with the judgment of Nayudu J.
\nThe  main point raised in the petition related to the  ambit
\nof  the\t powers of the Chief Justice of a High\tCourt  under
\nArticle\t 229  of the Constitution and the authority  of\t the
\nState Government to interfere with or override those  orders
\nof the Chief Justice by directing the Accountant General not
\nto issue the pay slips to the officer whose appointment\t had
\nbeen  made  by\tthe  Chief  Justice  as\t his  Secretary-cum-
\nStenographer.\tIndeed, it was stressed, this had been\tdone
\nafter  the State Government had accorded sanction  in  clear
\nterms for such a post.\tThe position taken up by the  appel-
\nlant was controverted in every way by the respondents.
\nWe may now refer to the constitutional provisions for deter-
\nmining\tthe  power and authority of the Chief Justice  of  a
\nHigh  Court  in the matter of appointment  of  officers\t and
\nservants of that court.\t Clause (1) of Article 229  provides
\nthat  appointments of officers and servants of a High  Court
\nshall  be  made by the Chief Justice of the  Court  or\tsuch
\nother  judge or officer of the court as be may\tdirect\ti.e.
\nhis nominee.  The proviso empowers the Governor of the State
\nto  require  by Rule in certain cases  to  make\t appointment
\nafter consultation with the State Public Service Commission.
\nClause (2) of the Article contains two important provisions.
\nThe
\n428<\/span>
\nfirst is that conditions of service of officers and servants
\nof a High Court shall be such as may be prescribed by  Rules
\nmade by the Chief Justice or his nominee.  This is, however,
\nsubject to the provisions of any law made by the legislature
\nof  the State.\tThe second is that the Rules so far as\tthey
\nrelate\tto  salaries, allowances and  pensions\trequire\t the
\napproval  of  the Governor.  Clause (3)\t declares  that\t the
\nadministrative\texpenses  of  a\t High  Court  including\t all
\nsalaries,  allowances  etc.  in\t respect  of  officers\t and
\nservants of the court shall be charged upon the Consolidated
\nFund of the State.  Under Article 202 the Governor shall, in
\nrespect of every financial year, cause to be laid before the
\nHouse or Houses of the legislature of the State a  statement
\nof  the\t estimated receipts and expenditure for\t that  year.
\nUnder  clause  (2) the estimates of expenditure\t shall\tshow
\nseparately  (a)\t the  sums  required  to  meet\t expenditure
\ndescribed  by the Constitution as expenditure  charged\tupon
\nthe Consolidated Fund of the State and (b) the sums required
\nto meet other expenditure.  Clause (3) gives the expenditure
\nwhich  shall  be charged on the Consolidated  Fund  of\teach
\nState.\tClause (f) reads “any other expenditure declared  by
\nthis Constitution or by the legislature of the State by\t law
\nto  be so charged”.  Under Article 203 the  estimates  which
\nrelate to expenditure charged upon the Consolidated Fund  of
\nthe  State  shall  not\tbe submitted  to  the  vote  of\t the
\nlegislative assembly.  Article 204 relates to  Appropriation
\nBills.\t The  bill to provide for appropriation out  of\t the
\nConsolidated Fund of the State must include the\t expenditure
\ncharged\t on  that Fund.\t Clause (2) prevents  any  amendment
\nbeing proposed to an Appropriation Bill which will have\t the
\neffect,\t inter alia, of varying the amount or  altering\t the
\ndestination   of  any  grant  or  varying  the\t amount\t  of
\nexpenditure  charged on the Consolidated Fund of the  State.
\nArticle\t 146  contains provisions relating to  officers\t and
\nservants of the Supreme Court in terms analogous to  Article
\n229 the other provisions being also similar.
\nThe unequivocal purpose and obvious intention of the framers
\nof  the Constitution in enacting Article 229 is that in\t the
\nmatter\tof appointments of officers and servants of  a\tHigh
\nCourt  it is the Chief Justice or his nominee who is  to  be
\nthe  supreme authority and there can be no  interference  by
\nthe executive except to the limited extent that is  provided
\nin the Article.\t This was essentially to secure and maintain
\nthe  independence  of the High Courts.\tThe anxiety  of\t the
\nconstitution makers to achieve that object is fully shown by
\nputting\t the  administrative expenses of a  High  Court\t in-
\ncluding\t all salaries, allowances and pension payable to  or
\nin respect of officers and servants of the court at the same
\nlevel  as the salaries and allowances of the judges  of\t the
\nHigh Court nor can the amount of any expenditure so  charged
\nbe  varied  even by the legislature.  Clause (1)  read\twith
\nclause (2) of Article 229 confers
\n 429<\/span>
\nexclusive  power not only in the matter of appointments\t but
\nalso with regard to prescribing the conditions of service of
\nofficers and servants of a High Court by Rules on the  Chief
\nJustice of the Court.  This is subject to any legislation by
\nthe  State legislature but only in respect of conditions  of
\nservice.  In the matter of appointments even the legislature
\ncannot\tabridge or modify the powers conferred on the  Chief
\nJustice under clause (1).  The approval of the Governor,  as
\nnoticed\t in  the matter of Rules, is confined only  to\tsuch
\nrules  as relate to salaries, allowances, leave or  pension.
\nAR  other rules in respect of conditions of service  do\t not
\nrequire\t his approval.\tEven under the Government  of  India
\nAct  the power to make rules relating to the  conditions  of
\nservice\t of the staff of the High Court vested in the  Chief
\nJustice of the Court under Section 242 (4) read with Section
\n241  of\t the  Government  of India Act,\t 1935.\t By  way  of
\ncontrast  reference may be made to Article 148\trelating  to
\nthe-Comptroller\t and Auditor General of India.\t Clause\t (5)
\nprovides :\n<\/p>\n
\t      “Subject\t  to   the   provisions\t  of\tthis
\n\t      Constitution and of any law made by Parliament
\n\t      the  conditions of service of persons  serving
\n\t      in  the Indian Audit and\tAccounts  Department
\n\t      and   the\t  administrative   powers   of\t the
\n\t      Comptroller and Auditor General shall be\tsuch
\n\t      as  may  be prescribed by rules  made  by\t the
\n\t      President\t  after\t  consultation\t with\t the
\n\t      Comptroller and Auditor General.”\n<\/p><\/blockquote>\n
It  is significant that the Comptroller and Auditor  General
\nunlike the Chief Justice of a High Court has not been  given
\nthe power to prescribe the conditions of service of  persons
\nserving\t in the Indian Audit and Accounts Department in\t the
\nsame  terms as are embodied in Article 229 (2).\t  There\t the
\nRules  have to be made by the President\t after\tconsultation
\nwith  him.  Article 187 may also be noticed.  Clause (2)  of
\nthat Article provides that the legislature of a state may by
\nlaw  regulate the recruitment and conditions of\t service  of
\npersons\t appointed to the secretarial staff of the House  or
\nHouses\tof  legislature.  Clause (3) is to the\teffect\tthat
\nuntil  provision is made under clause (2) the Governor\tmay,
\nafter  consultation  with  the Speaker\tof  the\t legislative
\nassembly  or the Chairman of the Legislative  Council,\tmake
\nrules  regulating  the\trecruitment and\t the  conditions  of
\nservice\t or persons appointed to the secretarial  staff\t of
\nthe  Assembly of Council.  Thus Article 229 has\t a  distinct
\nand  different scheme and contemplates fall freedom  to\t the
\nChief Justice in the matter of appointments of officers\t and
\nservants of the High Court and their conditions of  service.
\nThese  can be prescribed by rules made by him.\t Apart\tfrom
\nthe special situation contemplated by the proviso to  clause
\n(1) the only exception is that the Governor’s approval\tmust
\nbe sought to the extent the rules relate to salaries,  leave
\nor pension.\n<\/p>\n
430<\/span><\/p>\n
This  exception;  it  is abundantly clear, has\tto  be\tmade
\nbecause\t the finances have to be provided by the  Government
\nand  to the extent there is any involvement of\texpense\t the
\nGovernment has to approve of it.\n<\/p>\n
Dutta J., in his judgment considered that there was no\tdis-
\npute  on  the following position.  There were  originally  7
\nsanctioned  posts of stenographers in the High\tCourt.\t The
\nCourt  sent a proposal the Stenographers’ Service should  be
\nreorganised.  This included the post of one selection  grade
\nstenographer.\tThere was also a separate proposal  to\tmake
\nthe post of Secretary to Chief Justice permanent with a\t pay
\nscale  similar\tto that of a selection\tgrade  stenographer.
\nThe  Government\t accepted the proposal with  regard  to\t the
\nreorganisation of the Stenographers Service.  The pay scales
\nof  the selection grade stenographer was first fixed at\t Rs.
\n400-600\t with effect from May 21, 1955.\t It was\t revised  to
\nRs. 450-600 from October 1, 1956 but it was afterwards fixed
\nat  Rs.\t 600-900 with effect from September  1,\t 1959.\t The
\nGovernment  had\t made it clear that the person\tholding\t the
\npost  of  selection grade stenographer should also  work  as
\nSecretary  to the Chief Justice and that the temporary\tpost
\nof the Secretary to the Chief Justice should cease to exist.
\nDutta  J.  repelled the contention of the  counsel  for\t the
\nState\tthat  no  post\tof   Secretary-cum-selection   grade
\nstenographer had been created by the Government or that such
\na  post\t could\tnot be created except by  means\t of  framing
\nrules.\t It  was  pointed out by the learned  judge  that  a
\nnumber\tof posts had been created with different pay  scales
\nby  the\t Government or the High Court and several  of  these
\nposts and pay scales were never integrated in any rule.\t The
\nGovernment  never took up the position that all those  posts
\ndid  not  legally exist.  When a post was created  with\t the
\napproval  of  the Government in the High Court and  the\t pay
\nscale was sanctioned for it, its inclusion in the rules\t was
\na  mere\t formality.   It  was also  held  by  him  that\t the
\nconditions laid down while sanctioning the post of selection
\ngrade  stenographer  in the letter of the  Government  dated
\nAugust\t6, 1958 that the procedure of recruitment should  be
\non the same or similar lines as laid down in the  Government
\nResolution  dated October 22, 1955 came into  conflict\twith
\nthe powers of the Chief Justice under Art. 229 and it was so
\naccepted by the Government itself in the letter dated  April
\n27, 1959.  His view finally was that the Government had\t the
\nauthority to sanction the post.\t But it could not  interfere
\nwith the choice of the incumbent which undoubtedly was to be
\nof the Chief Justice under Article 229 of the  Constitution.
\nWe are inclined to concur with the reasoning and  conclusion
\nof Dutta J.\n<\/p>\n
It is unnecessary to refer to the decision of Nayudu J., who
\nacceded to certain contentions raised on behalf of the State
\nwhich  were wholly untenable and have not been sought to  be
\nsupported
\n431<\/span>
\nbefore us.     By way of illustration, one of the  arguments
\nwhich was accepted  was\t that  the letter  annexure-R  dated
\nApril  27, 1959 from the Secretary to Government  of  Assam,
\nLaw Department, to the Registrar and which he was  obviously
\nwriting\t on  behalf  of the  Government,  which\t meant,\t the
\nGovernor, did not satisfy the requirements of Article 166 of
\nthe Constitution.  In view of the tenor and contents of that
\nletter such a contention could never have been sustained.
\nGoswami\t J., did not fall into the same errors as Nayudu  J.
\nand  his  comprehension\t of  the  true\tlegal  position\t was
\nsubstantially  correct.\t  But  he erred\t in  coming  to\t the
\nconclusion that the Government had not accorded sanction for
\nthe post to which the appellant was appointed by the  orders
\nof  Sinha C. J. dated May 7, 1959.  His reasoning  was\tthat
\nthere  were  seven  permanent  stenographers  holding  seven
\nposts.\t By  the appointment of the appellant  as  selection
\ngrade stenographer-cum-secretary the strength was raised  to
\neight for which no sanction of the Government existed.\tGos-
\nwami  J. further took into consideration the fact  that\t the
\nGovernment  had made it clear that the selection grade\tpost
\nshould be filled by promotion strictly on merits from  among
\nthe stenographers grade I.\n<\/p>\n
It  may be stated at once that any restrictions\t imposed  by
\nthe  Government of the above nature while communicating\t the
\nsanction could not bind the Chief Justice in view of Article
\n229  of\t the  Constitution.   This  was\t recognised  by\t the
\nGovernment itself in its letter dated April 27, 1959.\tEven
\nas regards the strength of the cadre of stenographers  which
\nwas  seven there was evidence that at the relevant time\t all
\nthe posts were not filled up (see the affidavit filed by the
\nappellant  in the High Court dated August 7,  1967  together
\nwith  annexure\t1).  At any rate the Government\t had  itself
\ntaken up. the position in para 6(vii) of the affidavit dated
\nDecember 12, 1965 that as a result of the order of the Chief
\nJustice\t of  May 7, 1959 one post of  grade  I\tstenographer
\nstood  automatically  retrenched.  If that  be\tthe  correct
\nposition  there was no additional financial burden  involved
\nin  the\t appointment  of  the  appellant  as  secretary-cum-
\nselection   grade  stenographer\t and  it  is  difficult\t  to
\nunderstand how the Government could interfere in the  choice
\nof  the\t person who was appointed or insist  on\t his  having
\ncertain\t type  of  qualifications, as  seems  to  have\tbeen
\nemphasized  in some of the letters.  It may also be  pointed
\nout  that  the\tpost of\t selection  grade  stenographer-cum-
\nsecretary  to  Chief Justice had been  sanctioned  vide\t the
\nletter dated April 27, 1959.  The appellant was appointed to
\nthat  post by the Chief Justice who was competent to  do  so
\nunder Article 229.  If there were any technical difficulties
\nthey could be easily sorted out by mutual cooperation  which
\nis essential between the Chief Justice of the High Court and
\n432<\/span>
\nthe State Government in such matters.  But instead of  doing
\nso  the unusual step of the Accountant\tGeneral\t withholding
\nthe  pay  slips under the directions of the  Government\t was
\ntaken for which there was no legal justification or warrant.
\nThe  appeal is consequently allowed and the judgment of\t the
\nHigh  Court is-set aside.  An appropriate writ or  direction
\nshall issue to the respondents to give effect to the  orders
\nof  Sinha C. J.. dated May 7, 1959 and Mehrotra C. J.  dated
\nSeptember  27,\t1961.  The appellant will get his  costs  in
\nthis Court.\n<\/p>\n
G. C.\t\t\t\t     Appeal allowed.\n433<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. Gurumoorthy vs Accountant General Assam & … on 21 April, 1971 Equivalent citations: 1971 AIR 1850, 1971 SCR 420 Author: A Grover Bench: Sikri, S.M. (Cj), Mitter, G.K., Hegde, K.S., Grover, A.N., Reddy, P. Jaganmohan PETITIONER: M. GURUMOORTHY Vs. RESPONDENT: ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS. DATE OF JUDGMENT21\/04\/1971 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-201810","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. 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