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

2. 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. 400-20-500 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 them were 4 posts of Stenographer Grade I and 3 posts of Stenographer Grade II. It seems that the Government had re- organised 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 saving 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 II. In other words there were to be 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 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.3. 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 August 6, 1958 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 post 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 particularlysanction 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 GradeMay 7, 1959, Shri C. P. Sinha the then Chief Justice of the High Court of Assam passed two orders which may beIn exercise of the powers conferred on me under Article 229 of the Constitution of India, read with (1) Rule 11 of the Assam High Court Appointment and Conditions of Service Rules; (2) Letter No. LIJ. 74/56/26 dated the 6th August, 1958; and (3) Letter No. LIJ 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 Honble 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. Gurmoorthy was appointed.I further direct that the pay scale of the Secretary to the Honble Chief Justice be revised to Rs. 450-30-600/p. m. with effect 1st October 1956 as recommended by the Pay Committee and accepted by the"In exercise of the powers conferred on me under Article 229 of the Constitution of India, read with Rules 5 (1) Part II of the Assam High Court Appointment and Conditions of Service Rules, I hereby appoint Sri. M. Gurumoorthy, as Secretary to the Honble 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, Sri. M. Gurumoorthy will be deemed to have been placed on probation with effect from 24th August 1956, under Rules 4 (ii) Part II of the Assam High Court Appointment and Conditions of Serviceletter 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 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 the prereorganisation 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, para 12, but it was added that the Accountant General 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:postsNew posts as result of re-organisationPrivate Secy. to Chief Justice1Private Secy. to Chief Justice1Grade I Steno4Selection Grade Steno (By upgrading)3Grade II Steno3Grade Inew creation of a post as proposed by the High Court was stated to be necessary. The following portion from that letter may be setam 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 Governments 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 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 re-examined 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 cost 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 Art. 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 Art. 311 (2). He, therefore vacated the order made by Shri H.Deka and restored that of Shri C. P. Sinha.4. Once an order had been passed by the Chief Justice of the High Court in exercise of his power under Art. 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 beCreation of a permanent post of Secretary to the Honble 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 Honble Chief Justice.(2). Pending finalistaion of the above proposal, the petitioner would be allowed to draw pay in the above 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 Rupees 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 Courts proposal. This was followed by a long correspondence but the Accountant General revived his demand for refund of a sum of Rupees 15,621.2 np. On account of the salary which was stated to have been overdrawn by the appellant.5. 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. Nayadu 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.

Reasoning:
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.