P.K. Goswami, J. - (1.)THIS matter has come to me on a difference between Nayudu, J., as he then was and Dutta, J.
The facts necessary for our purpose may be narrated in some detail with relevant references for easy understanding: The Petitioner was a Stenographer In the Income Tax Appellate Tribunal, Calcutta 3ench. He applied for and was appointed to the temporary post of the Secretary to the Hon'ble Chief Justice of this Court. on a pay scale of Rs. 400 -20/2 -500 sanctioned by the Government on 30 -7 -56. The Petitioner joined this post on 24 -3 -56. Government sanction to the continuance of this temporary post was annually obtained up to 24th August 1959. An earlier request by the High Court to make the post permanent was not acceded to by the Government on the ground that the post had not till then completed five; years of its continuance.

The Government however, advised the High Court (vide Annexure VII dated 16 -12 -58) to submit a proposal for its permanent retention through a Schedule oil new scheme the following year.

(2.)IN 1955 the Government of Assam reorganised the Stenographers' Cadre under the Government by a Resolution dated 22 -10 -55 (Annexure VI) and the following classification with improved scales of pay was introduced:
(See scales of pay on page 27)

Finding this improvement in the case of the Stenographers serving under the Government the High Court submitted to the Government a proposal for Re -organisation of Stenographers' service in the High Court and the letter dated 14th February, 1958 (Annexure V) may be quoted:

I am directed to say that this Court is experiencing much difficulties in securing efficient Stenographers and it is hardly necessary for the Court to stress the importance of having competent Stenographers to take down their Lordships" judgment in open Court and transcribe them. Every effort was made to secure efficient Stenographers but it was without success.

2. The sanctioned strength of Stenographers of this Court's Establishment la as follows:

Stenographer Grade I -4

Stenographer Grade II -3

The nature of work of the Stenographers attached to the Hon'ble Judges is of an arduous nature. They attend their, Lordships' residences earlier than the scheduled office hours for taking dictation of judgment office files and other matters and again sometimes in the evening hours they attend the residences of Hon'ble Judges for taking dictation. They generally cannot avail themselves of any holidays in view of the volume of works entrusted to them. They do not receive any remuneration whatsoever for such ardors work. Further, the Stenographers already serving in this Court's Establishment have no incentive to do better and more efficient work as the existing Stenographers' Service do not offer sufficient incentive.
In view of the circumstances, the Hon'ble the Chief Justice has been pleased to re -organize the Stenographers Service in the Assam High Court with effect from 21 -5 -55 as below to attract competent Stenographer with sufficient incentive on the lines of the Government Notification No. AAP.274/54/25. dated 22 -10 1955.
(a) Selection Grade Stenographer -

There will be one Selection Grade Stenographer in the scale of pay of Rs. 400 -20 -600 p.m. plus dearness allowance and (Scales of Pay)

(1) Selection Grade Stenographer -Rs. 400 -20 -600

(2) Stenographer, Grade I (Senior) -Rs. 250 -10 -27CMEB -15 -360 - 20 -400.

(3) Stenographer, Grade I (Junior) -Rs. 150 -8 -190 -(EB) -10 -290 -12 -350.

(4) Stenographer, Grade II - Rs. 100 -6 -130 -EB -7 -200.

other allowances as admissible under the rules.

(b) Stenographers Grade I (Senior) -

There will be three posts of Stenographers Grade I (Senior) in the scale of pay of Rs. 250 -10 -270 -EB -15 -360 -EB -20 -400/ -p.m. plus dearness allowance and other allowances as admissible under the rules.

(c) Stenographer Grade 1 (Junior).

There will be one post of Stenographer Grade I (Junior) in the scale of pay Rs. 150 -8 -190 -EB -10 -290 -EB -12 -350/ - p.m. plus dearness allowance and other allowances as admissible under the rules.

(d) Stenographer Grade II.

There will be two posts of Stenographers Grade II in the scale of pay of Rs. 100 -6 -130 -EB -7 -200 -7 -200/ - p.m. plus dearness allowance and other allowances as admissible under the Rules. (e) Stenographers attached to the Hon'ble Judge shall be designated as Personal Assistants and they will be entitled to a special pay of Rs 50/ - p. m. Unless they hold the Selection Grade post. I am, therefore. to request the Govt. to communicate their approval to the above proposal at an early date.

The Government agreed to this proposal as per Annexure (X) dated 6 -8 -58, which also may be set out below:

With reference to our letter No. quoted above. I am directed to say that the Governor of Assam is pleased to agree to the proposed re -organization of the Stenographers Service in the Assam High Court, with effect from the 21 -5 -55 subject to the condition that, the procedure of recruitment, promotion etc should be in the same or similar manner as laid down in Govt. Resolution No. AAP.274/54/25 dated 22 -10 -55 (enclosed for ready reference).

The pay scales may also be same as accepted by Govt. on the recommendation of the Pay Committee. Everything should be on the same lines as laid down in the aforesaid Resolution and there cannot be any relaxation in the matter of qualifications.

(3.)IT Is seen that the Petitioner was tinted against the temporary post of Secretary to Chief Justice outside the cadre of the Stenographers At the time of his appointment there were already even Stenographers, which was the sanctioned strength' as noticed earlier In the High Court letter (Annexure V) a fact which was reiterated by the High Court in Annexure XII dated 15 -7 -59. Even so, We find a letter from the Registrar of the High Court to the Government dated 16 -12 -58 (Annexure XI). same as Annexure 'Q' and the following extract thereof makes the point.
It may be mentioned in this connection that although Government was pleased to communicate their sanction to the re -organization of the Stenographers service in this Court's establishment a clarification on the point whether Government sanction referred to the post of the Secretary to the Chief Justice -cum -Stenographer or a separate post in the Selection Grade of Stenographers, was sought for, to which no reply has yet been received by the Court.

I am therefore to request you to obtain clarification on the point at an early date.

For the first time, from the High Court and a combination of two posts, namely. Secretary to the Chief Justice -cum -Ste -forgather was envisaged in this paragraph.

Next. Government's reply to this letter came by way of Annexure 'R' dated 27 -4 -59, which bears quoting in extensor as correspondence now reveals more than what meets the eye.

I am directed to say that beyond prescribing some posts of Stenographers, the High Court appears to have made no rules regarding the conditions of their service: and while agreeing to the reorganization of Stenographers' service, subject to the condition that their conditions of service should be similar to those laid down in Government Resolution dated 22 -10 -55, the intention of the Government only was that there should be uniformity in service conditions throughout the State. It was far from the Government's intention to interfere in any way with the constitutional powers of the High Court.

Government, therefore, consider that the High Court should frame rules in conformity with the said Government Resolution while reorganizing the Stenographers' Service in the High Court.

Further I am to invite your attention to High Court's letter No. 4921 Estt dated 16 -12 -58, and to say that under the aforesaid Government Resolution, a Stenographer, whether a Selection Grade or Grade I or Grade II, when attached to a Minister or Chief Minister as Private Secretary is given the Gazetted Status. All other pests of Stenographers whether of Selection Grade, Grade I or Grade II in the Secretariat are non -gazette. As such a Stenographer whether of the Selection Grade, Grade I (Senior) or Junior or Grade II when attached to the Chief Justice as Private Secretary, may be given the Gazetted Status, Government's...sanction, for the Selection Grade Steno -grapher was for the post of the Secretary to the Chief Justice -cum -S Wnogra -pher only and not for an additional Selection Grade post.

The last sentence of the above paragraph has caused all confusion and maunder standing. The High Court on receipt of this letter thought that Annexure 'R' is the sanction of the Government for the purpose, of merger, of the two posts,; namely the temporary post of the Secretary and the Selection Grade post. Sinha, C.J., thereupon passed on 7 -5 -59 the following orders:

(Annexures 'S' and 'T'.)

(1) In exercise of the powers confer -red 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) Letters No. LJJ.74/56/26 dated 6th August, 1958; and (3) Letter No. LJJ.74/56/36 dated the 27th April, 1959, of the Government of Assam, Law Department 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 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(1), 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. Sri 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.

In pursuance of these orders, the Petitioner joined his new post and was even drawing salary on those terms. It stated that his lien to his substantive post is also' terminated. Already, however, a controversy regarding the regularity of the orders dated 7 -5 -59 was raised and the matter was being examined and pursued at different levels.

In this context, Sinha, C.J" discovered that by the absorption of the Petitioner as the Selection Grade Stenographer, which was one of the seven sanctioned posts already being held substantively by other permanent incumbents, he unintentionally effected retrenchment of a permanent hand. The following extract from the High Court's letter dated 15 -7 -59 (Annexure XII) may be quoted:

3. Thus while giving effect to the above Government order by appointing the Secretary to the Hon'ble Chief Justice to the Selection Grade post with effect from 24 -8 -56 one old Grade I Stenographer's post automatically stood retrenched with effect from that date for which the Court has now got to move Government again for sanction of such, post with retrospective effect.

4. So to counterbalance this unintended retrenchment and to keep all the Stenographers on their liens to the respective posts, one post of pre -organised Grade I (now Grade I Junior) is necessary with effect from 24 -8 -56.

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