# H. L YNGDOH & ORS v. GROML YN L YNGDOH, JUDGE

- **Citation:** [1971] 3 S.C.R. 903
- **Court:** Supreme Court of India
- **Decided:** 1971-03-02
- **Bench:** K. S. Hegde, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/h-l-yngdoh-ors-v-groml-yn-l-yngdoh-judge-5451
- **Pages:** 5

## Headnote

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903
Asmm Fundamental Rules, rr. 9(22), ~6-Age of Superannuation 55
years-Me1nber of Assan1 Judicial Service appointed temporarily as Judge
vf Distric~ Council Court of the Autonomous District of United Khasijaintia Hills-Continued in service after superannuation by order of District Council and placed in regular scale-Whether bcco1nes per;nanent
employee within meaning of r. 9(22).
On January 26, 1950 the Autonomous District of United Khasi-Jaintia
Hills was constituted by virtue of the provisions of cl. 2 of Art. 244 and the
Sixth Schedule of the Constitution of India, and the Gove~or of Assam
was empowered to administer the said Autonomous District. Pursuant
thereto the Assam Autonomous District (Constitution of District Councils)
Rules, 1961 were enforced as from
October 15, 1951. On June 27,
1952 a District Council and an Executive
Committee was constituted
for the
said autonomous
District. The District
Council
was empowered to constitute courts and appoint suitable persons as Presiding
Officers. On June 7, 1954 the United Khasi-Jaintia Hills Autonomous
District (Administration of Justice) Rules. 1953 were framed by
the
District Council.
Under r. 9 a District Council Court was constituted
for the Autonomous District. Judges were to be appointed by the Executive Committee with the app'roval of the Governor.
In the absence of
any rules framed by the District Council under r. 15 of the Constitution
of District Council Rules, the Assam Fundamental Rules. subsidiary Rules
and instructions were applicable to the officers and staff or the District
Council.
The respondent who was an Additional District Judge in the
senior Grade of the Assam Judicial Service was appointed with effect from
7-1-1954 temporarily as a Judge of the District Council Court without
the approval of the Oovemor.
The Governor however appointed him
also as an Additional District Judge, Lower Assam District.
The scale
of pay was Rs. 750--960-1000. On 16-2-1957 the respondent attained
the age of superannuation on his completion of 55 years. Notwithstanding this the District Council continued him in service and by its order
dated 22-4-1965 placed him in the regular scale of Rs. 1200--60 (E.B.)--
60-1500 with effect from 1-4-1965. However subsequently the Executive
Committee terminated his services with effect from August 31, 1966. The
respondent challenged this order by writ petition in the High Court. Thereafter .by special leave the matter came up in appeal before this Court. The
question for consideration was whether in view of the definition of a permanent. post under Assam Furrdamental Rule 9(22) as a post 'carrying
a defimte scale of pay. sanctioned without limit of time', the respondent
'-''as a permanent emp1oyee.
. HELD : The respondent's employment was temporary and was conhnumg as su.ch. ¥erely placing him in a scale of pay which was different
to the one m which he was temporarily appointed did not make him a
pem1anent employee.
To become permanent he must be confirmed but
that question could ~ever arise ?ecause under Fundamental Rule 56 which
was .1dm1ttedly apphcable to h1!11 the date of his compulsory retirement
was the date on which he attamed the age of 55 years.
After this he
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904
SUPREME COURT REPORTS
[1971] 3 S.C.R.
could bt: retained with the sanction of the Government which adn1iitcdlv
A
in his cas.e had not been .given.
Even if the validity of his appointmedr
by the D1str1ct Council without the sanct_ion of the Governor which \\-'as
'~ necessary condition for valid appointment was overlooked he cc:iuld not
complain that his termination by the very Council wa; without the
Governor's sanction. [906 E-G]
The argument that the Governor had invested the Respondent with
B
powers for the. Schedule Districts and lower Assam was unhelpful because
this was done. m 1954 long prior to his attaining the age of superannuatlon. when without a valid extension of the service he could not continue in service after that date. [906 HJ
. Accordingly

## Text

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H. L YNGDOH & ORS.
v.
GROML YN L YNGDOH, JUDGE
March 2, 1971
[K. S. HEGDE AND P. JAGANMOHAN REDDY, JJ.]
-- -
903
Asmm Fundamental Rules, rr. 9(22), ~6-Age of Superannuation 55
years-Me1nber of Assan1 Judicial Service appointed temporarily as Judge
vf Distric~ Council Court of the Autonomous District of United Khasijaintia Hills-Continued in service after superannuation by order of District Council and placed in regular scale-Whether bcco1nes per;nanent
employee within meaning of r. 9(22).
On January 26, 1950 the Autonomous District of United Khasi-Jaintia
Hills was constituted by virtue of the provisions of cl. 2 of Art. 244 and the
Sixth Schedule of the Constitution of India, and the Gove~or of Assam
was empowered to administer the said Autonomous District. Pursuant
thereto the Assam Autonomous District (Constitution of District Councils)
Rules, 1961 were enforced as from
October 15, 1951. On June 27,
1952 a District Council and an Executive
Committee was constituted
for the
said autonomous
District. The District
Council
was empowered to constitute courts and appoint suitable persons as Presiding
Officers. On June 7, 1954 the United Khasi-Jaintia Hills Autonomous
District (Administration of Justice) Rules. 1953 were framed by
the
District Council.
Under r. 9 a District Council Court was constituted
for the Autonomous District. Judges were to be appointed by the Executive Committee with the app'roval of the Governor.
In the absence of
any rules framed by the District Council under r. 15 of the Constitution
of District Council Rules, the Assam Fundamental Rules. subsidiary Rules
and instructions were applicable to the officers and staff or the District
Council.
The respondent who was an Additional District Judge in the
senior Grade of the Assam Judicial Service was appointed with effect from
7-1-1954 temporarily as a Judge of the District Council Court without
the approval of the Oovemor.
The Governor however appointed him
also as an Additional District Judge, Lower Assam District.
The scale
of pay was Rs. 750--960-1000. On 16-2-1957 the respondent attained
the age of superannuation on his completion of 55 years. Notwithstanding this the District Council continued him in service and by its order
dated 22-4-1965 placed him in the regular scale of Rs. 1200--60 (E.B.)--
60-1500 with effect from 1-4-1965. However subsequently the Executive
Committee terminated his services with effect from August 31, 1966. The
respondent challenged this order by writ petition in the High Court. Thereafter .by special leave the matter came up in appeal before this Court. The
question for consideration was whether in view of the definition of a permanent. post under Assam Furrdamental Rule 9(22) as a post 'carrying
a defimte scale of pay. sanctioned without limit of time', the respondent
'-''as a permanent emp1oyee.
. HELD : The respondent's employment was temporary and was conhnumg as su.ch. ¥erely placing him in a scale of pay which was different
to the one m which he was temporarily appointed did not make him a
pem1anent employee.
To become permanent he must be confirmed but
that question could ~ever arise ?ecause under Fundamental Rule 56 which
was .1dm1ttedly apphcable to h1!11 the date of his compulsory retirement
was the date on which he attamed the age of 55 years.
After this he
------
904
SUPREME COURT REPORTS
[1971] 3 S.C.R.
could bt: retained with the sanction of the Government which adn1iitcdlv
A
in his cas.e had not been .given.
Even if the validity of his appointmedr
by the D1str1ct Council without the sanct_ion of the Governor which \\-'as
'~ necessary condition for valid appointment was overlooked he cc:iuld not
complain that his termination by the very Council wa; without the
Governor's sanction. [906 E-G]
The argument that the Governor had invested the Respondent with
B
powers for the. Schedule Districts and lower Assam was unhelpful because
this was done. m 1954 long prior to his attaining the age of superannuatlon. when without a valid extension of the service he could not continue in service after that date. [906 HJ
. Accordingly the appeal must be allowed and
the writ petition <lisn11sscd.
[Pers.anal remarks by the Chief .Justice of the High Court against
another Judge of that Court disapproved.]
C1VJL APPELLATE JURISDICTION: Civil Appeal No. 1929 of
1967.
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Appeal by special leave from the judgment and order dated
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September 15, 1967 of the Assam and Nagala,nd High Court in
Civil Rule No. 359 of 1966.
M. C. Chagla and D. N. Mukher;ee, for the appellants.
Sar;oo Prasad, R. B. Datar and S. N. Prasad, for the respondent.
E
The Judgment of the Court was delivered by
P. Jaganmohan Reddy, J.-The short question in this
Appeal which is against the Judgment of the High Court of As~am
and Nagaland by Special leave is whether the Respondent's serF
vices as Judge District Council Court of the Autonomous 'District
of United Khasi-Jaintia Hills could be terminated by the District
Council. The facis relevant for the appeal are that on the 26th
January 1950 the Autonomous District of United Khasi-Jaintia
Hills by virtue of the Provisions of Clause 2 of Art. 244 and the
Sixth Schedule to the Constitution of India was constituted and
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the Governor of Assam was empowered to administer the said
Autonomous District Pursuant thereto the Assam Autonomous
Districts (Constitution of District Councils) Rules 1951 were
enforced as from the 15th October 1951.
On the 27th June
1952 a District Council and an Executive Committee was constituted for the said autonomous District. The District Council was
H
empowered to constitute Courts and appo!nt suitab!e ~er~ons . as
Presiding Officers. On 7th June 1954 Umted Khas1-Jamtta Hi!ls
Autonomous District (Administration of Justice)
Rules
19)3
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LYNGDOH v. LYNGDOH (P. Jaganmohan Reddy, /.)
905
were framed by the District Council with the approval of the
Governor, rule 9 of which reads as follows:
"Constitution of District Council Court-(1) There
shall be one District Council Court for the United
Khasi-Jaintia Hills Autonomous District which shall be
called the United Khasia-Jaintia Hills District Council
Court. The Court shall consist of one or more Judicial
Officers to be designated as Judge or Judges -appointed
by the Executive Committee with the approval of the
Governor.
Provided that the Chief Executive
Member or
Member of the Executive Committee or any other members of the District Council shall not be entitled to hold
office as Judicial
Officer of the
District Council
Court."
It is admitted that no rules were made by the District Council
under Rule 15 of the Constitution of District Council rules which
empowered it to regulate conditions of service of Officers and
staff appointed to the services and posts in connection wit11 the
affairs of the District Council. In the absence of these rules it is
also admitted that the Assam Fundamental Rules subsidiary Rules
and instructions were applicable to the Officers and staff of the
District Council.
The Respondent who was an Additional District Judge in the
senior grade of the Assam Judicial service was appointed with
effect from 7-1-1954 temporarily as a Judge of the District Council without the approval of the Governor. The Governor however appointed him also as an Additional District Judge Lower
Assam Diltrict for the purpose of disposal of Civil and Criminal
matters under the respeciive codes.
On 16-2-1957 the Respondent attained the age of superannuation which was on his completion of 55 years. It would however appear
that notwithstanding his having reached .the age of superannuation the District
Council continued him in service and by its order dated 22-4-1965
placed him in the Regular scale of Rs. 1200-60(EB)-601500 with effect from 1-4-1965.
Thereafter on 30-7-1956 the
Executive Committee of the District Council served notice upon
him that his services alongwith the services of others mentioned
in the oriler were terminated from 31st August 1966. It is this
impugned order that was challenged in a Writ Petition which the
Respondents filed in the High Court. The High Court came to
the conclusion that unless the contrary is shown that the Respon'-
dent was appointed by the District Council with the approval of
the Governor while the termination was by the Council without
906
SUPREME COURT REPORTS
[1971] 3 S.C.R.
the approval of the Governor, though we observe that even with
respect to this nothing contrary was shown that the Governor had
not given his approval.
In our view a perusal of the order of appointment would show
that it was issued by the Chief Executive Member District Council and it specifically states that the appointment is temporary.
Immediately after the R'espondent had reached the age of superannuation the High Court wrote to the Chief Executive Member
on 5-3-57 enquiring whether the Respondent has been given an
extension. In reply it was informed on 25-3-57 that he was
appointed on the 10th February 1954 as Judge of the District
Council Courts on a temporary basis; "and he will as such continue to perform his duties till further orders made by the Council". The initial temporary appointment as will be seen from the
order of 10th February 1954 was on the scale of pay Rs. 75030-960-1000 but later he was placed in a regular scale of
pay of Rs. 1200 to Rs. 1500 as already adverted to. It is this
order that is being urged as having given the Respondent a permanent post, because as the learned Advocate submits, a permanent employee is one who is appointed to a permanent post which
is defined under Assam Fundamental Rule 9 (22)
as
a post
"carrying a definite scale of pay sanctioned without limit of time".
As we have already noticed the Respondent:s appointment was
temporary and was continuing as such. Merely placing him in a
scale of pay which is different to the one in which he was temporarily appointed does not make him a permanent employee. To
become permanent he must be confirmed, but that question can
never arise because under those very Fundamental Rules which
it is not denied apply to him in the absence of any rules made by
the District Council the d<rte of his compulsory retirement
according to Fundamental Rule 56 is the date on which. he attains
the age of 55 years and if he is retained after this date it can only
be done with the sanction of the Government which admittedly
in his case has not been given. Even if the validity of his appointment by the District Council without the sanction of the Governor
which was a necessary condition for valid appointment is overlooked he cannot complain that his termination by the very Council is without the Governor's sanction. We can find no justification for his continuance nor has any rule or regulation Fundamental otherwise shown to us to continue him in service without
the sanction and under some valid rule. The argument that the
Governor had invested -the Respondent with powers for the Schedule Districts and lower Assam is equally unhelpful because this
was also admittedly done in 1954 long prior to his attaining the
age of superannuation when without a valid extension of the ser-
·vice he could not continue in service after that date.
Viewed
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LYNGDOH v. LYNGDOH (P. Jaganmohan Reddy, /.)
907
from any angle the respondent's l'lea is untenable, as such the
appeal is allowed and the writ petition dismissed, but ,fn the circumstances without costs.
Before we part with the case we were distressed to note certain personal remarks made by the learned Chief Justice against
one of the Hon'ble Judges of that Court. To us these remarks do
not appear to be either proper or just. By making these remarks
the learned Chief Justice has let down bis office as well as his
Court. In the· objective discharge of judicial functions there is
little justification nay, none-at-all to assume an~ attitude other.
than of judicial restraint or to use a language w!lile referring to
one's colleagues other than that which has been hitherto adopted
by lonl!; usage.
G.C.
Appeal allowed and petition dismissed.