# M. GURUMOORTHY v. ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS

- **Citation:** [1971] Supp. 1 S.C.R. 420
- **Court:** Supreme Court of India
- **Decided:** 1971-04-21
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-gurumoorthy-v-accountant-general-assam-nagaland-ors-5261
- **Pages:** 13

## Headnote

420
A
M. GURUMOORTHY
v.
ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS.
April 21, 1971
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(S. M. SIKRI, C. J., G. K. MITTER, K. S. HEGDE, A. N. GROVE!\ ANO.
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P. JAGANMOHAN REDDY, JJ.J
Constitution of India, 1950, Art. 229-Appointment of Court emptu.
yee1 by High Court-Government while sanctioning posts cannot lay dow1r
condiiions on which appointments are to be made to said posts.
The appellant was appointed Secretary to the Chief Justice of Assam
with effect from August z~., 1956 against a permanent post sanctioned by
the State Government. Thereafter the stenographers' service in the High
Court 'Nas reorganised with the sanction of the State Government. Under
the reorganisation scheme one of the seven posts of stenographer was to
be that of Selection Grade Stenographer. On April 27, 1958 the Government informed the Registrar that a stenographer whether of Selection
Grade, Grade I (Senior) or Grade II when attached to the Chief Justice
as Private Secretary was to have gazetted status. The letter went on to
say: "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 May 7, 1959 the Chief
Justice appointed the appe.llant as Secretary-cum-Selection Grade Stenographer after merger of the two posts. The order was to take effect retrospectively from the date of the appellant's appointment as Secretary. The
State Government objected to the appointment on the ground that the appointment of the appellant -was to the post of Private Secretary exclusively and that the post of Secretary could not be merged with that of Selection
Grade Stenographer. The controversy not having been resolved the Accountant General under the Government's instructions withheld the appellant's pay-slips. In a wrl! petition filed by the appellant Nayudu J.
and Dutta J. took different views, the former against the appellant and
the latter in his favour. The third Judge dismissed the appellant's petition.
In appeal by certillca!e,
HELD: (i) Dutta J. was right in holding that the Government bad
authority to sanction the post but it could not interfere with the choice
of the incumbent which undoubtedly was to be of the Chief Justice under
Art. 229 of tho Constitution. [430G-H].
Clause (I) of the Art. 229 provides that appointments of officers and
servants of a High Court shall be made by the O>ief Justice of the Court
or such other Judge or oflicer of the Court as he may direct i.e. his
nominee. The proviso emp::>wers the Governor of the State to require
by Rule in certain cases to 1nake appointments after consultation with the
State Public Service Commission. Clause (2) of the Article contains twr;
important provisions.
The first is that 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 or his nominee. This is however subject to provisions of any law made by the legislature of the St!.te. The second is
that the Rules so far as thc~y relate to salaries, allowance and pensions
require the approval of the Governor. [427H-428BJ.
GURUMOORTHY v. ACCT. GENERAL (Grover ,J.)
Thus cl. (1) read with cl. (2) of Art. 229 confers exclusive power not
only in the matter of appointments but also with regard to prescribing
the conditions of service of officers and servants of a High Court by Rules
on the Chief Justice of the Court This is subject to any legislation by the
State Legislature but only in respect of conditions of service.
[429AJ
Ia the matter of appointments even the legislature cannot abridge or
modify the powers conferred on the Chief Justice under cl. (1). The •P·
proval of the Governor as noticed in the matter of the Rules is confined
only to such rules as relate to salaries, allowances, leave or pension. This
exception had to be made because the finances have to be provided by the
Govern1r:ent and to the extent there is any involvement of expense

## Text

420
A
M. GURUMOORTHY
v.
ACCOUNTANT GENERAL ASSAM & NAGALAND & ORS.
April 21, 1971
B
(S. M. SIKRI, C. J., G. K. MITTER, K. S. HEGDE, A. N. GROVE!\ ANO.
c
D
E
F
G
H
P. JAGANMOHAN REDDY, JJ.J
Constitution of India, 1950, Art. 229-Appointment of Court emptu.
yee1 by High Court-Government while sanctioning posts cannot lay dow1r
condiiions on which appointments are to be made to said posts.
The appellant was appointed Secretary to the Chief Justice of Assam
with effect from August z~., 1956 against a permanent post sanctioned by
the State Government. Thereafter the stenographers' service in the High
Court 'Nas reorganised with the sanction of the State Government. Under
the reorganisation scheme one of the seven posts of stenographer was to
be that of Selection Grade Stenographer. On April 27, 1958 the Government informed the Registrar that a stenographer whether of Selection
Grade, Grade I (Senior) or Grade II when attached to the Chief Justice
as Private Secretary was to have gazetted status. The letter went on to
say: "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 May 7, 1959 the Chief
Justice appointed the appe.llant as Secretary-cum-Selection Grade Stenographer after merger of the two posts. The order was to take effect retrospectively from the date of the appellant's appointment as Secretary. The
State Government objected to the appointment on the ground that the appointment of the appellant -was to the post of Private Secretary exclusively and that the post of Secretary could not be merged with that of Selection
Grade Stenographer. The controversy not having been resolved the Accountant General under the Government's instructions withheld the appellant's pay-slips. In a wrl! petition filed by the appellant Nayudu J.
and Dutta J. took different views, the former against the appellant and
the latter in his favour. The third Judge dismissed the appellant's petition.
In appeal by certillca!e,
HELD: (i) Dutta J. was right in holding that the Government bad
authority to sanction the post but it could not interfere with the choice
of the incumbent which undoubtedly was to be of the Chief Justice under
Art. 229 of tho Constitution. [430G-H].
Clause (I) of the Art. 229 provides that appointments of officers and
servants of a High Court shall be made by the O>ief Justice of the Court
or such other Judge or oflicer of the Court as he may direct i.e. his
nominee. The proviso emp::>wers the Governor of the State to require
by Rule in certain cases to 1nake appointments after consultation with the
State Public Service Commission. Clause (2) of the Article contains twr;
important provisions.
The first is that 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 or his nominee. This is however subject to provisions of any law made by the legislature of the St!.te. The second is
that the Rules so far as thc~y relate to salaries, allowance and pensions
require the approval of the Governor. [427H-428BJ.
GURUMOORTHY v. ACCT. GENERAL (Grover ,J.)
Thus cl. (1) read with cl. (2) of Art. 229 confers exclusive power not
only in the matter of appointments but also with regard to prescribing
the conditions of service of officers and servants of a High Court by Rules
on the Chief Justice of the Court This is subject to any legislation by the
State Legislature but only in respect of conditions of service.
[429AJ
Ia the matter of appointments even the legislature cannot abridge or
modify the powers conferred on the Chief Justice under cl. (1). The •P·
proval of the Governor as noticed in the matter of the Rules is confined
only to such rules as relate to salaries, allowances, leave or pension. This
exception had to be made because the finances have to be provided by the
Govern1r:ent and to the extent there is any involvement of expense the
Government has to 'approve of it.
[429B; 430A]
The object of Art. 229 is to secure and maintain the indepeodenre
of the Higl! Courts. The anxiety of the Constitution makers to achieve
that object is fully shown by putting the administrative expenses of a High
Court including all salaries, allowances and pension to or in respect of
officers and servants of the Court at the same level as the salaries and
allowanc~s of the Judges of the High Court nor can the amount of any
expenditure so charged be varied even by the legislature. Under the provisions of Art. 229(3) and Arts. 202, 203 and 204 all these expenses are
charged on and appropriated from tho Consolidated Fund of the State.
[428C-H]
[Provisions of Art. 229 contrasted with those of Art. 148 relating to
Auditor General of India and Art. 187 relating to the staff of the House
o.f Legislature.] [429E-H]
(iii) On the facts of the present case it could not be said that there
was any financial burden involved in tho appointment of tho appellant as
Secretary-cum-Selection Grade Stenographer and it was difficult to understand ho\v the Government could interfere in the choice of the person who
was appointed or insist on his having certain type of qualifications. 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 Art. 229. If there were any technical difficulties they could be
easily sorted oui by mutual cooperation which is essential between the
Chief Justice of, the High Court and the State Government in such matters.
The unusual step of tho Accountant General withholding the pay slips
under the d!rections of the Government bad no legal justification or warrant. [431G-432A]
OVJL APPELLATE JURISDICTION : Civil Appeal No. 2023 of
1968.
Appeal from the judgment and order dated May 9, 1968 of
the Assam and Nagaland High Court in Civil Rule No. 377 of
1965.
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S. V. Gupte, R. B. Datar and S. N. Prasad, for the appellant.
H
M. N. Phadke and Naunit Lal, for respondents Nos. I and 2.
422
SUPRE;\IE COURT RBPORTS
.[1971) SUPP. S.C.ll.
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The Judgment of the Court was delivered by
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Grover, J.-This is an appeal by certificate from a judgment
of the High Court of Assam & Nagaland dismissing a petition filed by the appellant unde:r Article 226 of the Constitution.
It is necessary to set out the facts and the relevant correspon·
dence 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. 4002().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 sanc:tioned but there was hardly
sufficient work for a whoile 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 th~ view of the Chief Justice was conveyed that services of a whole time Secretary were indispensible 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 Secre:tary 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 Justic1:.
Out of the 7 permanent
posts there were 4 posts of Stenographer Grade I, and 3 posts of
Stenographer Grade II.
It seems that the Government had reorganised 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 saying 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 wer:~ 7 posts of permanent Stenographers
in addition to the post of a Secretacy. On April 16, 1956
the Government wrote to the Registrar conveying the sanction of
GURUMOORTHY v. ACCT. GENERAL (Grover, J.)
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 July I, 1952.
It is stated that on the basis of
a competitive examination and interview the Chief Justice appoint·
ed 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 April 6, 1953
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 te 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 reorgani·
sation 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 parti·
cularly noticed :
"Government's sanction for the Selection Grade
Stenographer was for the post of the Secretary to the
Ch!ef Justice-cum.Stenographer only and not for an addi·
tional Selection Grade post"
On May 7, 1959 Shri C. P. Sinha the then Chief Justice of the
High Coun of Assam passed two orders which may be reproduc·
ed :-
(I) "In exercise of the powers conferred on me under
Art 229 of the Constitution of India, read with (I) Rule
423
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SUPRBME COURT REPORTS
[1971] SUPP. s.c.R.
11 of the Assam High Court Appointment and Conditions of Service Rules; (2) Letter No. LLJ. 74/56/26 dated the 6th August 1958; and (3) Letter No. LLJ 74/56/36
dated the 27th Ap1il 1959 of the Government of Assam,
Law Dept!., 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 direc1: that the pay scale of the Secretary
to the Hon'ble Chief 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(i) 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. Shri 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 Cottrt Appointment and Conditions of
Service Rules."
The Jetter 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 by
which the appellant was a.ppointed as Secretary to Chief Justicecum-Selection Grade Stenographer substantively with effect from
August 24, 1956. In this letter sanction was asked for the post
of one pre-reorganisation 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 tbe 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 l, 1956.
This was admitted in the return,
GURUMOORTHY \'.ACCT. GENERAL (Grover,J.)
para. 12, but it was added that the Accountant General was simultaneously corresponding for a formal sanction for the creation of
a permanent post of selection grade Stenographer and a defini~e
assurance had been given by the High Court in its Jetter 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 Jetter dated November 15, 1960 from him saying that from
the Charge Report of the appellant dated August 28, 1956 his
appointment was exclu,sively 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 :
Existing po~ts
Private Secy. to Chief
Justice
1
Grade I Steno
4
Grade II Steno
3
TOTAL
8
New posts ~!S resulted of re-organisation
Priv~ltc Secy. to Chief
Justice
Selection Grade Steno
(By upgrading)
I
Grade I Steno
3
Grade I! Steno
3
TOTAL
8
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 Jetter was addressed to Shri H. Deka who had become
Chief Justice by that time. After receipt of this Jetter 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 10 the Chief Justice could not be merged with that o!
the Selection Grade Stenographer inasmuch as the incumbent was
not a Selection Grade Stenographer.
He agreed with the Govern·
ment's suggestion contained in the aforesaid letter and vacated the
order merging the post of Secretary with that of Selection Grad~
Stenographer and of absorbing the appellant substantively in the
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SUPREME COURT REPORTS
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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 ~f pay
which was being drawn by the appellant.
In September 1961
Shri Gopalji Mehrotra who had suce<:eded Shri H. Deka as Chief
Justice re-examined the whole matter and observed that from the
orders of his predecessor dated February g, 1961 two consequences
wo!lld 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 hi; post was made permanent
he might get salary on the old scale.
In his view the appointment
vf the appellant by the 01ief Justice Shri C. P. Sinha on May 7,
1959 was a valid appointment and the Chief Justice had fult
powers to pass the said order under Article 229 of the Constitution.
He, further considered that once th: appellant had been
appointed substantively he could not be asked to vacate that post
in violation of the provisions of Article 311(2).
He, therefore,
vacated the order made by Shri H. Deka and restored that of Shri
C. P. Sinha.
Once an order had bi:en passed by the Chief Justice of the
High Court in exercise of his power under Article 229 of the Constitution the only course open to the Government, if it wanted to
challenge those orders, was to take appropriate proceedini:s either
by way of persuading the Chief Justice to rescind or amend his
order on the adminstrative 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 appear~ that t11e 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 be accepted:-
"(l) Creation of a permanent post ot 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 Govemment in consultation with the
Hon'ble Chief Justice.
(2) Pending finalisation of the above proposal, the
petitioner would be allowed to· draw pay in the above
GURUMOORTHY v. ACCT. GENERAL (Grover, J.)
mentioned grade at Rs. 570 per month subject to adjustment in the light of tlie 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 Rs. 450-30-600. On
October I, 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
Jetter of November 12, 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 Rs. 15,621.2nP. on account of the
salary which was stated to have been overdrawn by the appellant.
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. Nayudu 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.
427
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The main point raised in the petition related to the ambit of
the powers of the Chief Justice of a High Court under Article 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
F
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 appel~
!ant was controverted in every way by the respondents.
We may now refer to the constitutional provisions for deterG
mining the power and authority of the Chief Justice of a High
Court in the matter of appoinmens of officers and servants of that
court.
Clause (1) of Article 229 provides that 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 i.e. his nominee. The proviso empowers the GoverH
nor of the State to require by Rule in certain cases to make appointment after consultation with the State Public Service Commission.
Qause (2) of the Article contains two 'important provisions. The
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[1971] SUPP. s.c.R.
first is that 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 or his nominee.
This is, however, subject to the
provisions of any law made by the legislature of the State.
The
second is that the Rules so far as they relate to salaries, allowances
and pensions require the approval of the Governor.
Clause (3)
declares that the administrative expenses of a High Court includ·
ing all salaries, allowance:; etc. in respect of officers and servants
of the court
shall be
charged
upon the Consolidated
Fund
of
the
State.
Under
Article
202
the
Gol'·
~rnor 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 for that year.
Under clause (2) the estimates of expenditure shall show separately
(a) the sums required to m"et 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 (f) reads "any other expenditure
declared by this Constitution or by the legislature of the State by
law to be so charged".
Under Article 203 the estimates which
relate to 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 that 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 grant or varying the amount of expenditure
charged on the Consolidated Fund of the State.
Article 146 con·
tains provisions relating to officers and servants of the Supreme
Court in terms analogous to Article 229 the other provisions being
also similar.
The unequivocal purpose and obvious intention of the framers
of the Constitution in enacting Article 229 is that in the matter of
appointments of officers and .iervants of a High Court it is the Chief
Justice or his nominee who is to be the supreme authority and
there can be no interference by the executive except to the limited
extent that is provided in the Article.
This was essentially to
secure and maintain the independence of the High Courts.
The
anxiety of the constitution makers to achieve that object is fully
;hown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the court at the same level as the
salaries and allowances of the judges of the High Court nor can
the amount of any expenditure so charged be varied even by the
legislature. Clause (!) read with clause (2) of Article 229 confers
GURUMOORTHY v. ACCT. GENERAL (Grover,J.)
429
exclusive power not only in the matter of appointments but also
A
with regard to prescribing the conditions of service of officers and
servants of a High Court by Rules on the Chief Justice of the
Court. This is subject to any legislation by the State legislature
but only in respect of conditions of service. In the matter of
appointments even the legislature cannot abridge or modify the
powers conferred on the Chief Justice under clause (!).
Tile
B
apprnval of the Governor, as noticed in the matter of Rules, is
confined only to such rules as relate to salaries, allowances, leave
or pension. All other rules in respect of conditions of service do
not require his approval. Even under the Government of India
Act the power to make rules relating to the conditions of service
of the staff of the High Court vested in the Chief Justice of the
Court under Section 242 (4) read with Section 241 of the GovernC
ment of India Act, 1935. By way of contrast reference may be
made to Article 148 relating to the Comptroller and Auditor General of India. Gause (5) provides :
"Subject to the provisions of this Constitution and of
any law made by Parliament the conditions of service of
D
persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller
and Auditor General shall be such as may be prescribed
by rules made by the President after consultation with
the Comptroller and Auditor General."
It is significant that the Comptroller and Auditor General
unlike fhe Chief Justice of a High Court has not been given the
power to prescribe the conditions of service of persons servingin
the Indian Audit and Accounts Department in the same terms as
are embodied in Article 229 (2).
There the Rules 'have to be
made by the President after consultation with him.
Article 187
may also be noticed. Clause (2) of that Article provides that the
legislature of a state may by law regulate the recruitment and conditions of service of persons appointed to thy secretarial staff of
the House or Houses of legislature. Gause (3) is to the' effect that
until provision is made under clause (2) the Governor may, after
consultation with the Speaker of the legislative assembly or tile
Chairman of the Legislative Council, make rules regulating tile
recruitment and the conditions of
service
or
persons
appointed to the secretarial staff of the Assembly of Council. Th'iis
Article 229 has
a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers' and sel'Vants of the High Court and their conditions of service. These can be prescribed by rules made by him.
Apart from the special situation contemplated by the proviso to
clause (!) the only exception is that the Governor's approval must
be sought to the extent the rules relate to salaries, leave or pension.
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This exception; it is abundantly clear, has to be made because the
financ~s hav~ to be provided by the Govern11Jent and to the extent
the~e IS any mvolvement of expense the Government has to approve
Of II.
Dutta J., in his judgment considered that there was no dispute on the following po:iition. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent
a proposal the Stenographers' Service should be reorganised. This
included the post of one selection grade stenographer.
There was
also a separate proposal to make the post of Secretary to Chief
Justice permanent with a pay scale similar to that of a selection
grade stenographer. The Government accepted the proposal with
regard to the reorganisation of the Stenographers Service..
The
pay scales of the selection grade stenographer was first fixed at
Rs. 400.600 with effect from May 21,
1955. It was revised to
Rs. 450.600 from October l, 1956 but it was afterwards fixed at
Rs. 600-900 with effect from September 1, 1959. The Government
had made it clear that the person holding the post of selection
grade stenographer should also work. as Secretary to the Chief
Justice and that the temporary post of the Secretary to the Chief
Justice should cease to exist.
Dutta J. repelled the contention of
the counsel for the State that no. post of Secretary-cum-selection
grade stenographer had lx:en created by the Government or that
such a post could not be created except by means of framing rules.
Jt was pointed out by the learned judge that a number of posts
had been created with different pay scales by the Government or
the High Court and several of these posts and pay scales were never
integrated in any rule.
The Government never took up the position that all those posts did not legally exist.
When a post was
created with the approval of the Government in the High Court
and the pay scale was sarn:tioned for it, its inclusion in the rules
was a mere formality.
It was also held by him that the conditions
laid down while sanctioning the post of selection grade stenographer
in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as
laid down in the Government Resolution dated October 22, 1955
came into conflict with the powers of the Chief Justice under Art.
229 and it was so accepted by the Government itself in the letter
dated April 27, 1959.
His view finally was that the Government
had the authority to sanction the post.
But it could not interfere
with the choice of the incumbent which undoubtedly was to be of
the Chief Justice under Article 229 of the Constitution. We are
inclined to concur with the reasoning and conclusion of Dutta J.
It is unnecessary to refer to the decision of Nayudu J., who
acceded to certain contentions raised on behalf of the State which
were wholly untenable and have not been sought to be supportea
GURUMOORTl!Y v. ACCT. GENERAL tGrover,J.)
before us.
By way of illustration, one of the arguments which
was accepted was that the letter annexure-R dated April 27, 1959
from the Secretary to Government of Assam, Law Department, to
the Registrar and which he was obviously writing on behalf of the
Government, which meant, the Governor, did not satisfy the
requirements of Article 166 of the Constitution. In view of the
tenor and contents of that letter such a contention could never
.have been sustained.
Goswami J., did not fall into the same errors as Nayudu J.
and his comprehension of the true legal position was substantially
correct.
But he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959.
His reasoning was that there were seven permanent stenographers
holding seven posts.
By the appointment of the appellant as
selection graqe st~nographer-cum-secretary the strength was raised
to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be
filled by promotion strictly on merits from among the stenographers grade I.
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 recognised 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(viil 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 person 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 selectioq,;grade stenographer-cum-secretary to Chief Justice had
been s;itis;tjolled vide the letter dated April 27, 1959.
The appellant was appointed to that post by the Chief Justice who was compet~iJt;.!fo do so under Article 229.
If there were any technical
diffkUltics they could be easily sorted out by mutual cooperation
·which is,essential between the Chief Justice of the High Court and
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the State Government in such matt1:rs. 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.
·
The appeal is cons1:quently allowed and the judgment of the
High Court is-set aside
An appropriate writ or direction shall
issue to the respondents to give effect to the orders of Sinha C. 1.
dated May 7, 1959 and Mehrotra C. J. dated September 27, 1961.
The appellant will get his costs in this Court.
G.C.
Appeal allowed.