- (1.) THIS is a public interest litigation filed by a public spirited person for maintaining the independence of the judiciary and speedy disposal of the cases.
(2.) THE petitioner felt pained to see that a number of posts in the Subordinate Judiciary are lying vacant and the same could not be filled in because of the administrative problems and because of the time to time ban imposed by the Government on recruitment of the staff resulting in delay in the disposal of the cases for want of proper staff. He has filed this public interest litigation that since the entire administrative control of the Subordinate Judiciary vests in the High Court and once the funds are made available to the High Court, then subsequently, there should not be any government interference like issuing circulars from time to time imposing ban on the recruitment. This public interest litigation was received from a public interest litigation was received from a public spirited person and the same was registered as a writ petition on 7. 4. 1991 and notices were issued to the High Court as well as the State Government. A reply was filed by the State and the State Government has taken the position that it is true that the entire control of the Subordinate Judiciary vest in the High Court but the orders issued on 6. 6. 1990 and 16. 6. 1990 whereby the surplus work-charged employees are required to be absorbed against the vacant posts carrying scale Nos. 1 to 6 does not amount to interference in the independent functioning of judiciary. It is further submitted that these orders were issued so as to avoid extra Financial burden on the public exchequer and the order does not amount to interference in the administration of the High Court. Mr. Vyas, learned counsel appearing for the petitioner has invited my attention to a large number of cases on the. subject and submitted that according to the Constitutional provisions as well as the law laid down by the Hon'ble Supreme Court. Right from the beginning, it has been held that the entire control of the Subordinate Judiciary vests in the High Court including appointment and recruitment. Therefore, the Government after allotting the budget has no control over the matter and they cannot issue orders/circular as to how the services of the surplus employees could be absorbed in the offices of the Subordinate Judiciary and they also cannot impose ban on the recruitment from time to time on the Subordinate Judiciary on recruitment. In order to appreciate, the contentions raised by the learned counsel, we have to examine the constitutional provision on the subject. Article 229 of the Constitution of India says that the officers and servants of the High Court shall be appointed by the Chief Justice of the Court and the administrative expenses of a High Court including all salaries, allowances, and pension payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other money taken by the Court shall form part of that Fund. Article 229 of the Constitution of India reads as under: - "229. Officers and servants and the expenses of High Courts - (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances leave or pensions, require the approval of the Governor of the State. (3) The administrative expenses of a High Court, including all salaries, allowances, and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other money taken by the Court shall form part of that Fund. "'
(3.) ACCORDING to Article 229 of the Constitution of India, all the staff of the High Court shall be recruited by the Chief Justice and the Chief Justice will be competent to frame the rules and all the salaries, allowances and pensions shall be charged upon the Consolidated Fund of the State. This is the setup regarding the High Court. So far as the Subordinate Judiciary is concerned, it is governed by Article 235 of the Constitution of India. The control over the District Courts and courts subordinate thereof including the posting and promotion and all other incidental matters of entire Subordinate Judiciary including that of staff is to be controlled by the High Court. Article 235 of the Constitution of India reads as under: - "235. Control over Subordinate Courts - The control over District Courts and courts subordinate thereof including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. " According to sub-clause (3) of Article 229 of the Constitution of India all expenses of the High Court shall be charged upon the Consolidated Fund of the State. Under Article 202 the Governor shall, in respect of every financial year, cause to be laid before the House or Houses of the Legislature of the State a statement of the estimated receipts and expenditure of that year. Under clause (2) the estimates of expenditure shall show separately (a) the sums required to meet expenditure described by the Constitution as expenditure charged upon the Consolidated Fund of the State and (b) the sums required to meet other expenditure. Clause 3 gives the expenditure which shall be charged on the Consolidated Fund of each State. Clause (d) says about expenditure in respect of the salaries and allowances of Judges of any High Court. Article 203 of the Constitution of India says that the estimates which relate to the expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the Legislative Assembly. Article 204 relates to Appropriation Bills. The bill to provide for appropriation out of the Consolidated Fund of the State must include the expenditure charged on the Fund. Clause (2) prevents any amendment being proposed to an Appropriation Bill which will have the effect, inter alia, of varying the amount or altering the destination of any grantor varying the amount of expenditure charged on the Consolidated Fund of the State. ;