Case: M. Gurumoorthy Vs. Accountant General Assam &amp; Nagaland &amp; Ors

Government has to approve of it.10. Dutta J. in his Judgment considered that there was no dispute on the following position. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent a proposal that 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 scale 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.11. 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 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.12. Goswami J., did not fall into the same errors as Nayudu J. and his comprehension of the true legal position was substantially correct. But he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959. His reasoning was that there were seven permanent stenographers holding seven posts. By the appointment of the appellant as selection grade stenographer-cum-Secretary the strength was raised to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be filled by promotion strictly on merits from among the stenographers grade I.13. 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 recoginsed 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 I). 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 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 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. 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 recoginsed 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 I). 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 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 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and 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.