Gauhati High Court And Another v. Kuladhar Phukan And Another

R.C Lahoti, J.— Leave granted.

2. On 2-7-1977, Kuladhar Phukan, Respondent 1, was appointed as a judicial officer in Assam Judicial Services Grade III and on 5-7-1977, he was posted as Judicial Magistrate, IInd Class at Tinsukia. On 27-2-1986, the Government of Assam, Judicial Department: Judicial Branch made an advertisement inviting applications for appointment for a post of Deputy Secretary in Grade III of Assam Legal Service. Such appointment was to be made under Regulation 3(e) of the APSC (Limitation of Function) Regulations, 1951 to meet the immediate need. The appointment was temporary and terminable without notice on the post being filled up through Assam Public Service Commission (APSC) by way of regular recruitment. The field of recruitment was advocates or pleaders with five years' practice or judicial officers with five years' standing. Respondent 1 made an application which was forwarded by the High Court of Assam. He was selected and appointed “temporarily and until further orders” in Grade III of Assam Legal Service. Copies of notification of appointment dated 18-7-1986 were sent to the Registrar, Gauhati High Court, Gauhati with a request to release the officer immediately so as to enable him to join the new assignment; to Respondent 1 informing him that as soon as the post was advertised by APSC, he should apply to APSC for regularization of his ad hoc appointment; and to the Secretary, APSC stating that the appointment became necessary in the interest of public service and the Commission was requested to advertise the post immediately and send its recommendation to the Government as early as possible.

3. On 29-7-1986, the High Court directed Respondent 1 to hand over charge of his office to another judicial officer and proceed to join his new assignment immediately. The Government was informed that the services of Respondent 1 were being placed at the disposal of the Government of Assam consistently with the appointment made. On 11-9-1986, Respondent 1 was confirmed in Assam Judicial Services Grade III. His relative seniority was determined in Grade II of Assam Judicial Services and he was placed on probation in Grade II.

4. Thus, all went well. The seeds of controversy were sown when the Government of Assam, Judicial Department: Judicial Branch invited applications for regular appointment to the post of Deputy Secretary, in response to which, Respondent 1 also made an application. He was selected by Assam Public Service Commission and pursuant to the recommendation made by the Commission, the Government of Assam “regularized” the appointment of Respondent 1 as Deputy Secretary to the Government of Assam, Legislative Department. A notification to this effect was issued on 10-9-1987, copy whereof was sent to the Registrar (Judicial), Gauhati High Court, Gauhati. We may hasten to add here itself that it is not disputed that for seeking regular appointment Respondent 1 did not have his application forwarded by the High Court to the Commission or the Government. Before or after regularization of the appointment of Respondent 1, there was no consultation by the Government with the High Court. We will revert back to details of this aspect of the matter a little later.

5. On 11-9-1986 the High Court notified seniority list of judicial officers in Assam Judicial Services Grade III. Respondent 1 had some grievance about the place to which he was assigned in the seniority list. On 24-6-1988 he made a representation to the High Court, wherein he stated, inter alia, “basically I was and still am a judicial officer in Grade III of Assam Judicial Services, I was appointed regularly and permanently” in the judicial service, and that failure “to confirm our service and fix our inter se seniority” in the service violated principles of natural justice and Articles 14, 16 and 311 of the Constitution. He prayed for reconsideration and refixation of his confirmation and seniority in the judicial service. On 7-4-1992, Respondent 1 was amongst six judicial officers who were promoted by the High Court from Grade III to Grade II of Assam Judicial Services though he and one other were allowed to continue in their “present post” until further orders. On 9-4-1992 Respondent 1 was informed that in view of such promotion and having been allowed to continue in his “present assignment for the time being” then held by him he could exercise his option either to continue in Assam Legal Service or to revert to his parent service i.e Assam Judicial Services. Respondent 1 neither expressed his option nor gave any response to the High Court.

6. On 19-8-1992 the Government of Assam promoted Respondent 1 “temporarily and until further orders” from the post of Deputy Secretary to Grade II of Assam Legal Service and posted him as Joint Legal Remembrancer to the Government of Assam, Judicial Department, with effect from the date of his taking over charge. Copy of the notification was sent to the Registrar, Gauhati High Court. Here again, there was no consultation by the Government with the High Court before (or even after) directing such promotion.

7. The controversy erupted when on 23-2-1995 the High Court informed the Government of Assam, and Respondent 1, of its decision to recall Respondent 1 to his parent department and that a suitable substitute in place of Respondent 1 will be provided in due course. On 4-4-1995, the Registrar (Judicial) once again requested the State Government to take immediate steps to replace the services of Respondent 1 at the disposal of the High Court so that the officer could be repatriated and be posted as Assistant District and Sessions Judge, North Lakhimpur on or before 24-4-1995. On 10-4-1995 the High Court notified the posting of Respondent 1 as Assistant District and Sessions Judge, Lakhimpur. On 26-4-1995 Respondent 1 sent a communication to the Registrar (Judicial), Gauhati High Court wherein, for the first time, he stated that he was a direct recruit in Assam Legal Service through Assam Public Service Commission and that he had expressed his desire indicating his option for permanent absorption in Assam Legal Service. It was further stated that it was expected that his service in Assam Legal Service would be confirmed as the Hon'ble Minister (Law etc.) had ordered for such confirmation. He requested for his posting as judicial officer at North Lakhimpur being cancelled. On 20-3-1996 the Government of Assam notified the services of Respondent 1 being placed at the disposal of the Gauhati High Court. By yet another notification of the same date the Government of Assam released Respondent 1 from the post of Joint Legal Remembrancer and Joint Secretary so that he could join as Assistant District and Sessions Judge, Lakhimpur pursuant to the notification of the High Court.

8. It appears that from the date of the abovesaid two notifications dated 20-3-1996 Respondent 1 was on leave. On 26-3-1996 Respondent 1 filed a writ petition in the High Court laying challenge to the notification dated 10-4-1995 issued by the High Court and the two notifications dated 20-3-1996 issued by the State Government. A learned Single Judge of the High Court admitted the writ petition for hearing and stayed the impugned notifications. On 6-5-1996 the learned Single Judge dismissed the writ petition filed by Respondent 1 holding that Respondent 1 was a member of Assam Judicial Services and could not have been regularized or absorbed in Assam Legal Service without consultation with the High Court. On 17-5-1996 Respondent 1 preferred a writ appeal. A Division Bench of the High Court stayed the judgment of the learned Single Judge. On 17-9-1996 the High Court recalled its notification dated 10-4-1995 as Respondent 1 had not assumed charge of the post and the same was lying vacant. On 2-6-1998 the Government of Assam also cancelled its two notifications dated 20-3-1996. On 2-6-2000 the Division Bench of the High Court allowed the writ appeal of Respondent 1 and quashed the notifications dated 10-4-1995 and 20-3-1996 forming an opinion that the appointment of Respondent 1 in Assam Legal Service was a substantive appointment. He could not have held lien against two substantive posts. The Division Bench went on to state,

“we are, therefore, unequivocally of the view that the appellant has acquired a substantive post in Assam Legal Service subsequently since from 18-7-1986 and his lien in the judicial service automatically stands terminated by operation of law with effect from 18-7-1986”.

9. Feeling aggrieved by the judgment of the Division Bench of the High Court, the Gauhati High Court and its Registrar have filed this appeal by special leave.

10. It appears that Respondent 1 does not wish to be repatriated to the judicial service and wishes to continue in Assam Legal Service. During the course of hearing before this Court we had asked the learned counsel for the High Court to have instructions if the High Court is agreeable not to pursue the matter and leave Respondent 1 where he is. We were informed that the High Court was not so very serious about Respondent 1 being brought back to the judicial services — the right place to which he belongs and ought to be, but the High Court was certainly concerned about its stand being vindicated for preserving the independence of judiciary and the sanctity of Article 235 of the Constitution being maintained. It was also submitted by the learned counsel for the High Court that the impugned judgment of the Division Bench, if sustained, would create serious and anomalous situations where the judicial officers sent on deputation to various government departments or whose services are temporarily loaned and placed at the disposal of employers other than the High Court in the interest of public convenience and better public administration may, in future claim having been absorbed at such other places without the consent of the High Court and without the High Court having been consulted, which would create a chaotic situation. We appreciate the concern of the High Court and a fair stand taken by it, and therefore, proceed to decide the matter on merits.

11. Before we may embark upon the principal issue for determination it would be appropriate to place on record the stand taken by the Government of Assam. In the writ petition filed by Respondent 1, the High Court filed a counter-affidavit disputing the correctness of the stand taken by Respondent 1 but the State Government did not choose to file any counter-affidavit. Instead written arguments were filed, wherein very clearly and categorically the stand taken by the State Government is that the appointment of Respondent 1 in Assam Legal Service to the post of Deputy Secretary as also to the post of Joint Legal Remembrancer and Joint Secretary, Judicial Department was temporary and until further orders i.e a purely temporary arrangement. It was “absolutely untrue” that Respondent 1 was confirmed as a regular member of Assam Legal Service. The conduct of Respondent 1 was commented upon by alleging that Respondent 1 was managing to get the best of both the worlds. Placing reliance on the decision of this Court in State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647, (1968) 2 SCR 154 the State Government contended that Respondent 1 was a member of Assam Judicial Service and his services were handed over outside the cadre “temporarily and until further orders” and therefore it was open for the High Court to recall Respondent 1 and post him as Presiding Officer of a District Court. The State Government endorsed the act of the High Court as “unassailable” as the lien of Respondent 1 in his substantive post in his parent service viz. Assam Judicial Services “still continues”. On point of fact, the State Government agreed, that Respondent 1 had not applied to APSC with the permission of and under intimation to the High Court while seeking regular appointment.

12. It is strange to notice a complete somersault taken by the State of Assam before this Court by having abandoned the stand taken in the High Court and taking a stand completely at variance. In its reply affidavit dated 3-11-2001 the State of Assam has stated that Respondent 1 was a direct recruit to Assam Legal Service, on a regular basis and with the consent of the Gauhati High Court. On 28-8-1998 on his confirmation in Assam Legal Service Grade II, his lien in Assam Judicial Services stood automatically terminated by operation of law. Strangely enough, the Government of Assam now proceeds to deny that the consultation with the High Court for the appointment of Respondent 1 in Assam Legal Service was necessary. Here itself we may state that during the course of hearing we had asked the learned counsel for the parties that if consultation with the High Court was necessary, and if so, then how and in what manner the requirement of consultation was satisfied? Both the learned counsel very fairly stated that the requirement of consultation could not be dispensed with. However, the requirement was satisfied, submitted the learned counsel for Respondents 1 and 2, inasmuch as every step taken by Respondent 1 or by Respondent 2 was brought to the notice of the High Court and the High Court although having knowledge of all the developments in the service career of Respondent 1 whilst in Assam Legal Service and yet never objected or reacted to the continuance of Respondent 1 in Assam Legal Service and also on his being promoted from Grade III to Grade II in Assam Legal Service, much less protested, to what was being done. The inference which necessarily follows is that the High Court was agreeable to such continuance and promotion which satisfies the requirement of consultation. We will examine the validity of this contention a little later.

13. Article 235 of the Constitution provides:

“235. Control over subordinate courts.—The control over District Courts and courts subordinate thereto 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 authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.”

14. The doctrine of separation of powers and the need for having an independent judiciary as a bulwark of constitutional democracy persuaded the founding fathers of the Constitution assigning a place of distinction to the judiciary. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influence of the executive and the legislature. Article 234 provides for appointments of persons other than District Judges to the judicial services of a State being made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court the control over District Courts and courts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the control of the High Court. Once a person has entered in the judicial service, he cannot depart therefrom save by the leave of the High Court. It is settled by a catena of decisions that the word “control” referred to in Article 235 of the Constitution has been used in a comprehensive sense and includes the control and superintendence of the High Court over the subordinate courts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may make a decision, the decision cannot be taken save by consultation with the High Court. The consultation is mandatory and the opinion of the High Court is binding on the State Government; else the control, as contemplated by Article 235, would be rendered negated. Such control and consultation are not a matter of mere formality; they are the constitutional power and privilege of the High Court, also its obligation, and cannot be diluted by sheer inaction or failing to act when the High Court must act. The Governor cannot proceed to act in any matter relating to subordinate judiciary and bypass the process of consultation merely because the High Court though, “informed”, did not act or respond. The consultation here means meaningful, effective and conscious consultation. In Tej Pal Singh v. State of U.P (1986) 3 SCC 604 it was held that in a matter affecting the service career of a judicial officer ordinarily the initiative for an action must come from the High Court and even otherwise in the absence of recommendation of the High Court an action taken by the Governor would be illegal and devoid of constitutional validity. Such error, if committed, would be incurable and even an ex-post facto approval would not cure the invalidity.

15. In State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647, (1968) 2 SCR 154 it was held that the High Court is made by the Constitution the sole custodian of the control of the judiciary. It will be useful to extract and reproduce the following passage from the judgment of the Constitution Bench (at SCR pp. 163F-164C):

“While sparing the service of any judicial officer to the Government it is open to the High Court to fix the period during which he may hold any executive post. At the end of that period, the Government is bound to allow him to go back to his parent department unless the High Court agrees to spare his services for some more time. In other words, the period during which a judicial officer should serve in an executive post must be settled by agreement between the High Court and the Government. If there is no such agreement it is open to the Government to send him back to his parent department at any time it pleases. It is equally open to the High Court to recall him whenever it thinks fit. If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony. There is no reason why there should be any conflict between the High Court and the Government. Except for very good reasons we think the High Court should always be willing to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers. The Government, in its turn, should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the Secretariat. Both the High Court and the Government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our Constitution expects all of them to work in harmony in a spirit of service.”

16. In State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 the Constitution Bench has again brought to the fore and thrown light on the complete and insulated scheme for subordinate judiciary services handed down by the founders of the Constitution, which cannot be tinkered with by anyone. Any rules framed, affecting the service structure of judicial services must be preceded by consultation with the High Court else it results in truncating the powers of the High Court playing a vital role in preserving the independence of judiciary. Even rules framed by the Governor under Article 234 read with Article 309 proviso must satisfy the requirement of consultation with the High Court, which cannot be given a go-by. In Madan Mohan Choudhary v. State of Bihar (1999) 3 SCC 396 this Court has held that the three words, namely, “posting”, “promotion” and “grant of leave” used in Article 235 of the Constitution are only illustrative in character and do not limit the extent of control exercised by the High Court over the officers of the subordinate judiciary. In Chief Justice of A.P v. L.V.A Dixitulu (1979) 2 SCC 34 the Constitution Bench clarified the meaning of the expression “control” over District Courts and courts subordinate thereto “vesting” in the High Court and clearly stated that, amongst others, transfers and promotions and confirmation of such promotions of persons holding posts in the judicial service, transfers of District Judges and recall of District Judges posted on ex-cadre posts or on deputation on administrative posts vests in the High Court. The Constitution Bench decision in State of W.B v. Nripendra Nath Bagchi AIR 1966 SC 447, (1996) 1 SCR 771 and in State of Orissa v. Sudhansu Sekhar Misra AIR 1968 SC 647, (1968) 2 SCR 154 also took the same view.

17. Rule 3(1) of the Assam Public Service (Ad hoc) Appointment Rules, 1986, and Rule 7 of the Assam Legal Service Rules, 1962, which are relevant for our purpose, provide as under:

Rule 3(1) abovesaid

“3. (1) Ad hoc appointment.—(1) Notwithstanding anything contained in any service rules, ad hoc appointment by direct recruitment to a temporary post created under the Government may be made, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay:

Provided that if the post has been sanctioned for or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted for making the appointment on regular basis, as provided for in clause (c) of sub-rule (2) of this Rule.”

Rule 7 abovesaid

“7. Selection of candidates.—(1) In case of selecting persons for appointment to the service directly, the Governor shall make selection from qualified legal practitioners or judicial officers taking into consideration the person's legal qualifications, tact, general intelligence, integrity and previous experience, if any:

Provided that in the case of appointment of a person to the service from amongst the judicial officers, no such appointment shall be made without consulting the Assam High Court.*

(2) It shall not be necessary for the Governor to consult the Public Service Commission for filling up the posts in Grade I and Grade II of the service but appointments to Grade III and Grade IV of the service shall always be in consultation with the Public Service Commission.”

*(now Gauhati High Court)

18. An ad hoc appointment required to be made “immediately” in the public interest may be made dispensing with reference to the Public Service Commission. However, if a candidate already in judicial service is to be appointed, obviously his services shall have to be spared by the High Court failing which he cannot be appointed even ad hoc. A post which has been sanctioned for, or is likely to last for, more than four months, has to be filled up by making appointment on regular basis in consultation with the Public Service Commission. If the person chosen for such appointment is a judicial officer, he cannot be appointed without consulting the High Court, such consultation being mandatorily required by Rule 7. The provision for consultation in the Rule brings it in conformity with the Constitution.

19. The appointment of Respondent 1 as Deputy Secretary in Assam Legal Service Grade III was made initially on a temporary and ad hoc basis to satisfy the immediate need of the State Government. For that purpose the application by Respondent 1 seeking such appointment was forwarded by the High Court and his services were also spared for taking over the new assignment. However, thereafter Respondent 1 and the State Government gave a complete go-by to the constitutional requirement of consultation. While seeking an appointment on regular basis as Deputy Secretary, neither Respondent 1 felt the need of having his application forwarded by the High Court nor did the Government feel the need of “consulting” the High Court, though mandatorily required by the Constitution as also by Rule 7 quoted above. Similarly while promoting Respondent 1 from Grade III to Grade II of Assam Legal Service and appointing him as Joint Secretary and Legal Remembrancer, the High Court was not consulted. Merely because the State Government sent a copy of its notifications to the High Court, the requirement of consultation cannot be said to have been satisfied. Neither was it initiated by the State Government nor did the High Court exercise, avail or discharge its power, privilege and obligation of consultation. An invalidity caused by failure to comply with mandatory constitutional requirement, such as of consultation, cannot be cured by sheer inaction on the part of one or both of the functionaries between whom the requirement was to be fulfilled or by mere lapse of time.

20. In almost all the States and Union Territories in the country services of judicial officers are loaned by High Courts to the Governments for being utilized in litigation, judicial, law and legislative affairs departments of the Governments, by whatever name the departments may be called. The Secretary (Law) or a Legal Remembrancer serving under the Government though is a judicial officer whose services have been placed at the disposal of the Government by the High Court has a crucial role to play. He is a vital link of communication between the High Court and the Government and his relationship with the two wings strategically enables a healthy and appropriate relationship being maintained between the two. As held by this Court in Sudhansu Sekhar Misra case AIR 1968 SC 647, (1968) 2 SCR 154 the State Government requesting the services of a competent judicial officer being made available to it and the High Court conceding to such request is by consent and willingness of the two. Neither can the High Court be compelled to spare a particular judicial officer nor can the High Court thrust upon the services of a particular judicial officer on the Government. A consensus can be arrived at by dialogue. However, if the services of a competent judicial officer who would otherwise be useful to the High Court were to be permanently appropriated by the State Government without the consent of the High Court that will be destructive of the very system and healthy practice apart from breach of a constitutional provision.

21. We are, therefore, clearly of the opinion that there is no merit in the plea that the service of Respondent 1 stood absorbed in Assam Legal Service and the High Court could not have recalled Respondent 1's deputation. Equally meritless is the plea that the lien of Respondent 1 in the State judicial services has come to an end and he had acquired a lien in Assam Legal Service. The Division Bench of the High Court was unnecessarily influenced by the factum of the High Court having recalled on 17-9-1996 its notification dated 10-4-1995 ignoring the reason behind recalling the notification. The notification, posting Respondent 1 as a judicial officer, had to be recalled as it was not carried out and required to be recalled so as to issue another notification filling up the judicial office lying vacant. So also the Division Bench ignored the impact of constitutional provision while forming an opinion that the lien of Respondent 1 in judicial service stood automatically terminated as the appointment of Respondent 1 to legal service, whilst he was a member of judicial service, was made without consultation with the High Court and hence was invalid. The question of Respondent 1 acquiring a lien in legal service and the lien in judicial service being terminated did not arise. The judgment of the Division Bench of the High Court cannot be sustained and is liable to be set aside.

22. The constitutional and legal position having been set at rest, the question which still remains to be decided is as to the manner in which the relief should be constructed in the peculiar facts and circumstances of this case. As noted earlier in this judgment, the learned counsel for the appellants made it very clear during the course of hearing that the Gauhati High Court has not approached this Court as a litigant and the High Court was also not interested so much in Respondent 1 being brought back to the fold of the judicial services as was its purpose to vindicate the correct position of law and service jurisprudence concerning members of judicial services. That has been done. The learned counsel for Respondent 1 submitted that ever since 1986 i.e for a period of little less than 16 years by this time, he has remained posted in the legal service of the State and now he is nearing the end of his service career in view of just a few years having been left for his retirement. It was submitted at the end by the learned counsel for Respondent 1 that Respondent 1 would have even given up his contest in this appeal by special leave filed by the Gauhati High Court but for the fact that his son is unfortunately not well and is suffering from serious neurological problem, taking treatment under the expert guidance and supervision of an expert neurologist at Gauhati, who is the Professor and Head of the Department of Neurology in Gauhati Medical College. It would be difficult to shift his son from Gauhati to elsewhere except at grave risk to the health of his son. The learned counsel for the appellants made a statement under instructions that in the event of Respondent 1 being brought back to the judicial service the High Court would take a sympathetic and humane view of the problem of Respondent 1 and he would be posted at a station wherefrom he can, without any inconvenience, continue neurological treatment of his son. It was also submitted that the High Court would have no serious objection to Respondent 1 continuing in the Legal Service and even on being treated as absorbed therein but subject to reservation that he was not posted either as Judicial Secretary or as Legal Remembrancer because that may cause some embarrassment to the High Court. The learned counsel for the State of Assam made a statement under instructions that if Respondent 1 was allowed to be retained in the State legal services, he would not be posted as Judicial Secretary. Whether the State was agreeable to not to post him as a Legal Remembrancer also, the learned counsel for the State sought for time for having instructions and later reported that she had not received any instructions and, therefore, was not in a position to give any assurance to the High Court or make any statement either way before this Court. That being the position and keeping in view the triple factors: (i) that Respondent 1 has been away from the main judicial stream and discharged executive functions only for a period of more than 15 years, (ii) that a marginal number of years is left for the retirement of Respondent 1, and (iii) that his son has a serious neurological problem which can be better taken care of by his continuance in legal services and consequently continued stay at Gauhati, we dispose of the appeal in terms of the following directions:

(1) the judgment of the Division Bench of the High Court is set aside insofar as findings on questions of law are concerned;

(2) within a period of six weeks from today, the State of Assam shall take a decision if Respondent 1 can be posted in an office other than that of Secretary (Judicial) and Legal Remembrancer, in which case he shall continue in Assam Legal Service and need not be repatriated; and

(3) if the abovesaid direction cannot be carried out then at the end of six weeks Respondent 1 shall be repatriated to the High Court as a member of judicial service and he shall be given a posting accordingly and consistently with the assurance given on behalf of the High Court.

23. The appeal stands disposed of in the abovesaid terms without any order as to the costs.