GROVER - (1.) , J. : - This is an appeal by certificate from a judgment of the High Court of Assam and Nagaland dismissing a petition filed by the appellant under Article 226 of the Constitution.
(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 13/07/1948. IT appears from the letter of the Registrar of the High Court to the Secretary, Judicial Department, dated 25/08/1955 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 20/02/1955. From 21/02/1955 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. 50.00 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 21/05/1955. The Selection Grade Stenographer was given the scale of pay of Rs. 400-20-600 plus allowances. On 14/02/1956 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 16/04/1956 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. 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 1/07/1952. 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 30/07/1956. By a letter dated 6/08/1958 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 21/05/1955 "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 22/10/1955". 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 3/10/1958 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 16/12/1958). On 27/04/1958 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 7/05/1959, 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 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 6/08/1958; and (3) Letter No. LIJ 74/56/36, dated the 27/04/1959 of the Government of Assam, Law Deptt. I hereby direct that the post of Secetary to the Hon'ble Chief Justice be merged into the post of Selection Grade Stenographer with effect from 24/08/1956 the date when the present incumbent, Sri M. Gurmoorthy 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 1/10/1956 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 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 Hon'ble Chief Justice of Assam cum-Selection Grade Stenographer, in a substantive capacity in the pay scale of Rs. 450-30-600.00 p. m. with effect from 24/08/1958, Sri. M. Gurumoorthy will be deemed to have been placed on probation with effect from 24/08/1956, under Rules 4 (ii) Part II of the Assam High Court Appointment and Conditions of Service Rules." The letter of the Registrar dated 23/12/1959 to the Government referred to the material correspondence which led to the passing of the order by the Chief Justice dated 7/05/1959 which the appellant was appointed as Secretary to Chief Justice-cum-Selection Grade Stenographer substantively with effect from 24/08/1956. In this letter sanction was asked for the post of the prereorganisation Grade I Stenographer (Grade I Junior) with effect from 24/08/1956. It is noteworthy that prior to the orders of the Chief Justice dated 7/05/1959 there were seven posts of Stenographer of all grades and one temporary post of Secetary 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 7/05/1959 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 1/10/1956. 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 1/09/1959 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 12/01/1961 the Finance Minister, Assam, wrote to the Chief Justice in reply to the letter dated 15/11/1960 from him saying that from the Charge Report of the Appellant dated 28/08/1956 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 : - JUDGEMENT_137_2_1971Html1.htm 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 7/05/1959. 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 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 1/10/1956 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 9/02/1961 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 24/08/1961 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 7/05/1959 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. 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 7/10/1961. 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 12/07/1963 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 finalistaion of the above proposal, the petitioner would be allowed to draw pay in the above mentioned grade at Rs. 570.00 per month subject to adjustment in the light of the finalisation of the matter." On 23/07/1963 the Registrar wrote to the Government enclosing a copy of the High Court order dated 12/07/1963. 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 24/08/1956 the date on which the appellant joined on a pay scale of Rupees 450-30-600. On 1/10/1963 the Government wrote to the Registrar intimating sanction of the Governor to the creation of a permanent post of Secretary with effect from 7/05/1959. The Registrar in his letter of 12/11/1963 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 Rupees 15,621.2 np. On account of the salary which was stated to have been overdrawn by the appellant.
(3.) ON 15/11/1965 the appellant filed a petition under Article 226 of the Constitution which was heard on 2/01/1967 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. The main point raised in the petition related to the ambit of the powers of the Chief Justice of a High Court under Art. 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 appellant was controverted in every way by the respondents.;