Gauhati High Court
Page No.# 1/4 vs The State Of Assam And 10 Ors on 12 March, 2025
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/41
GAHC010039642024
2025:GAU-AS:2672
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1009/2024
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
AND ANR.
GUWAHATI- 1, REP. BY ITS GENERAL SECRETARY, SRI MOON KUMAR
BORAH (AGE- 42 YEARS).
2: THE GENERAL SECRETARY
I.E. SRI MOON KUMAR BORAH
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
GUWAHATI- 1
VERSUS
THE STATE OF ASSAM AND 10 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, DISPUR,
GUWAHATI- 6.
2:THE PRINCIPAL SECRETARY TO THE GOVERNMENT OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI- 6.
3:THE LEGAL REMEMBRANCER CUM COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GUWAHATI- 6.
4:THE GAUHATI HIGH COURT
REP. BY THE REGISTRAR GENERAL
GUWAHATI- 1.
5:THE REGISTRAR VIGILANCE
GAUHATI HIGH COURT
GUWAHATI- 1.
Page No.# 2/41
6:SRI PRITHWI BALAY DUTTA
JOINT REGISTRAR
ITANAGAR BENCH
GUWAHATI HIGH COURT
CURRENTLY POSTED AS OFFICER ON SPECIAL DUTY
PROTOCOL IN THE PRINCIPAL SEAT
GAUHATI HIGH COURT.
7:SMT. MARGARET LALRINSANGI
JOINT REGISTRAR
ESTABLISHMENT BRANCH
AIZAWL BECH
GAUHATI HIGH COURT.
8:SHRI RAJENLUNG
JOINT REGISTRAR
KOHIMA BENCH
GAUHATI HIGH COURT.
9:SHRI DIPAK KUMAR NATH
JOINT REGISTRAR (FINANCE)
PRINCIPAL SEAT
GAUHATI HIGH COURT.
10:SHRI MADHU NATH SARMA
JOINT REGISTRAR (ADM-II)
PRINCIPAL SEAT
GAUHATI HIGH COURT.
11:SRI JAYANTA KUMAR NANDI
JOINT REGISTRAR
PRINCIPAL SEAT
GAUHATI HIGH COURT
Advocate for the Petitioner : MR. D DAS SR. ADV, MS S SHARMA,MR. K MOHAMMED,R
SARMAH
Advocate for the Respondent : GA, ASSAM, MR. A CHAMUAH (r -10),SC, FINANCE,SC, GHC
Linked Case : WP(C)/3024/2024
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION AND
Page No.# 3/41
ANR
GUWAHATI- 1
REP. BY ITS GENERAL SECRETARY
SRI MOON KUMAR BORAH (AGE- 42 YEARS).
2: THE GENERAL SECRETARY
I.E. SRI MOON KUMAR BORAH
GAUHATI HIGH COURT (PRINCIPAL SEAT) EMPLOYEES ASSOCIATION
GUWAHATI- 1.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR
GUWAHATI- 6.
2:THE PRINCIPAL SECRETARY
TO THE GOVERNMENT OF ASSAM
FINANCE DEPTT.
DISPUR
GUWAHATI- 6.
3:THE LEGAL REMEMBRANCER CUM COMMISSIONER AND SECRETARY
TO THE GOVT. OF ASSAM
JUDICIAL DEPTT.
DISPUR
GUWAHATI- 6.
4:THE GAUHATI HIGH COURT
REP. BY THE REGISTRAR GENERAL
GUWAHATI- 1.
5:THE REGISTRAR VIGILANCE
GAUHATI HIGH COURT
GUWAHATI- 1.
6:SRI PRITHWI BALAY DUTTA
JOINT REGISTRAR
ITANAGAR BENCH
GUWAHATI HIGH COURT
CURRENTLY POSTED AS OFFICER ON SPECIAL DUTY
PROTOCOL IN THE PRINCIPAL SEAT
GAUHATI HIGH COURT
GUWAHATI-01
------------
Page No.# 4/41 Advocate for the Petitioners : Mr. D. Das, Sr. Advocate : Mr. K. Mohammed, Advocate Advocate for the Respondents : Mr. D. Nath, Sr. Govt. Advocate : Mr. R. Borpujari, SC, Finance : Mr. T. J. Mahanta, SC, GHC : Mr. P. P. Dutta, Advocate Date of Hearing : 06.03.2025 Date of Judgment : 12.03.2025 BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH JUDGMENT AND ORDER (CAV) Heard Mr. D. Das, the learned Senior Counsel assisted by Mr. K. Mohammed, the learned Counsel appearing on behalf of the petitioners. I have also heard Mr. D. Nath, the learned Senior Government Advocate, Assam appearing on behalf of the Respondent Nos.1 & 3; Mr. R. Borpujari, the learned counsel appearing on behalf of the Respondent No.2 and Mr. T. J. Mahanta, the learned Senior Counsel as well as the learned Standing Counsel of the Gauhati High Court assisted by Mr. P. P. Dutta, the learned Counsel appearing on behalf of the Respondent Nos.4 & 5. None appears on behalf of the private respondents.
2. Both the writ petitions are taken up together for disposal as Page No.# 5/41 they are inter-connected.
3. The question involved in WP(C) No.1009/2024 is as to whether the post of Registrar (Establishment) which is a post created for the Principal Seat of the Gauhati High Court can only be filled up by incumbents from the Principal Seat or can also be filled up by incumbents from the Permanent Benches of the Gauhati High Court at Itanagar, Kohima and Aizawl?
4. To decide the said question, let this Court briefly take note of the facts which led to the filing of the writ petitions before this Court infra.
5. The post of Registrar (Establishment) along with other posts were sanctioned by the State of Assam on 10.08.2015. It is the case of the Petitioner No.1 which is an Association of Officers and Staff working in the Principal Seat of the Gauhati High Court (hereinafter referred to as 'the Petitioner Association') that at their request the post of Registrar (Establishment) was created. It is the specific case of the Petitioner Association that this very post of Registrar (Establishment) was all along filled up by incumbents from the Principal Seat of the Gauhati High Court. However, a notice dated 22.02.2024 was issued by the Respondent No.5 whereby not only the eligible candidates from the Principal Seat of the Gauhati High Court were called for but Page No.# 6/41 also the Joint Registrars of the Outlying Benches were requested to appear in an interview fixed on 23.02.2024 for selection to the post of Registrar (Establishment). The Petitioner Association immediately thereupon, submitted a representation on 22.02.2024. But as there was no redressal of their grievances, WP(C) No.1009/2024 was filed. In this writ petition, the Petitioner Association not only sought for setting aside the notice dated 22.02.2024 but also sought for declaration that the post of Registrar (Establishment) should be restricted to the incumbent holding the post of Joint Registrar at the Principal Seat of the Gauhati High Court.
6. It is seen from the records that vide an order dated 23.02.2024, the learned Coordinate Bench of this Court passed an order thereby permitting the interview process to be held on 23.02.2024 to proceed but directed that the final outcome of the interview process shall not be declared till 28.02.2024. It is further relevant to take note of that in view of the said order passed on 23.02.2024 by the learned Coordinate Bench of this Court, the Interview process which was initiated was deferred in as much as the Selection Committee was of the opinion that although there was no stay order with regard to the interview process, yet the propriety demands that the interview process should be deferred.
Page No.# 7/41
7. It is relevant to take note of that pursuant thereto on 24.05.2024, the Hon'ble Chief Justice of the Gauhati High Court had entrusted Shri Prithwi Balay Dutta, Joint Registrar, Itanagar Permanent Bench to discharge the duties of the Registrar (Establishment) in-Charge w.e.f. 24.05.2024. This order dated 24.05.2024 is the subject matter of challenge in the second writ petition being WP(C) No.3024/2024. The edifice of the case of the Petitioners in the second writ petition is that the order dated 24.05.2024 was passed to circumvent the order dated 23.02.2024 passed in WP(C) No.1009/2024 by the learned Coordinate Bench of this Court. Be that as it may, the learned Coordinate Bench of this Court though issued notice but did not stay the order dated 24.05.2024.
8. At this stage, it is also relevant to take note of that during the pendency of the present proceedings, vide notification dated 04.12.2024, the said Shri Prithwi Balay Dutta, who was holding charge of Registrar (Establishment) (in-Charge) and Officer on Special Duty of Protocol in the Principal Seat of the Gauhati High Court was released so as to enable him to resume his duties as Joint Registrar in Itanagar Permanent Bench of the Gauhati High Court at Yupia w.e.f. 16.12.2024. It is also pertinent to mention that the said Shri Prithwi Balay Dutta, in the meantime, had also superannuated w.e.f. 31.12.2024. Consequently, the challenge Page No.# 8/41 made to the order dated 24.05.2024 in the second writ petition, i.e. WP(C) No.3024/2024 had become infructuous.
9. In the backdrop of the above, taking into account that WP(C) No.3024/2024 has become infructuous, let this Court deal with the question involved in WP(C) No.1009/2024 and for that purpose the submissions so made by the learned counsels appearing on behalf of the petitioners as well as the respondents are noted herein under:-
Submission made on behalf of the Petitioners
10. Mr. D. Das, the learned senior counsel appearing on behalf of the petitioners submitted the following:-
(A) It was a long standing demand of the Petitioner Association that the officers and staff in the Principal Seat of the Gauhati High Court do not have representation in the higher cadres of the High Court Services. On such demand being made, the then Hon'ble Chief Justice of the Gauhati High Court was pleased to approve such request. The State, on the basis of the approval given, vide the letter dated 10.08.2015, sanctioned and created 78(seventy eight) posts for the Principal Seat of the Gauhati High Court which included the post of Registrar (Establishment). The learned Senior Counsel for the petitioners submitted that the expenditure in respect to the said post of Registrar Page No.# 9/41 (Establishment) is borne by the State of Assam.
(B) The learned Senior Counsel for the petitioners submitted that the post of Registrar (Establishment), since then, by convention was filled up from amongst the officers of the Principal Seat of the Gauhati High Court. In that respect, he submitted that as there was no specific Rule framed specifying the mode of recruitment to the post of Registrar (Establishment), the convention so followed for filling up the post of Registrar (Establishment) from the incumbents of the Principal Seat of the Gauhati High Court was the norm.
(C) The learned Senior Counsel for the Petitioners submitted that the Principal Seat of the Gauhati High Court as well as the Permanent Seats of the Gauhati High Court maintain separate Gradation Lists. Under such circumstances, though the criteria for promotion is merit-cum-seniority, it would be next to impossible to bring some incumbents from outside the Gradation List within the zone of consideration for the post of Registrar (Establishment).
(D) The learned Senior Counsel for the Petitioners referred to Rule 17A of the Gauhati High Court (the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Services (Appointment, Conditions of Service and Conduct) Rules, 1967 Page No.# 10/41 (for short, 'the Rules of 1967') and submitted that the said Rule only permits transfer from one station to the other in the exigency of public service, but the said Rule does not permit appointment and promotion of officers and staff of the Permanent Seats of the Gauhati High Court to the post earmarked for the Principal Seat of the Gauhati High Court. He further submitted that even a perusal of the Rule 17A of the Rules of 1967 only mentions of the Permanent Benches of Kohima, Imphal and Agartala and not the Permanent Benches of Itanagar and Aizawl, and as such, by virtue of Rule 17A of the Rules of 2017, the Joint Registrars of Aizawl and Itanagar could not have been brought within the zone of consideration for the post of Registrar (Establishment) in absence of any specific provision in the Rules of 1967.
(E) The learned Senior Counsel for the Petitioners submitted that although in terms with the notification dated 02.03.2021 issued by the Gauhati High Court, against one post, the zone of consideration would be 5 incumbents but from a perusal of the impugned notice dated 22.02.2024, it would be seen that 6 incumbents were called for which is also in violation to the notification dated 02.03.2021.
(F) The learned Senior Counsel for the Petitioners submitted that in the letter dated 29.05.2015 whereby proposal for creation of Page No.# 11/41 the post in question was sent to the Government, the then Hon'ble Chief Justice (Acting) was pleased to approve the proposal for creation of additional/new posts only in respect to the Principal Seat of the Gauhati High Court which included the post of Registrar (Establishment). He therefore submitted that the post of the Registrar (Establishment) is required to be filled up from amongst the incumbents from the Principal Seat of the Gauhati High Court and not from the Outlying Benches.
(G) The learned Senior Counsel for the Petitioners further submitted that the resolution adopted on 16.02.2024 by the Committee of Judges appears to have been a resolution adopted without being apprised of the entire background and the facts of the matter regarding the creation of the post of the Registrar (Establishment). He submitted that if the Hon'ble Judges forming the Committee would have been apprised of the facts on the basis of which the post of Registrar (Establishment) was created, the Hon'ble Committee would have passed the resolution on 16.02.2024.
(H) The learned Senior Counsel submitted that the Hon'ble Chief Justice having found discrepancies and deficiencies in the Rules of 1967 had formed a Committee of Judges to look into the Rules of 1967 and the said Judges Committee so far have neither recorded any discrepancy regarding the provision for filling up Page No.# 12/41 the post of the Registrar (Establishment) nor resolved/recommended any change to the current procedure so followed.
On the basis of the above submissions, learned Senior Counsel for the Petitioners had submitted that there was no requirement for making a departure from the established norms of filling up the post of the Registrar (Establishment) from incumbents from the Principal Seat of the Gauhati High Court.
Submission made on behalf of the Gauhati High Court
11. Per contra, Mr. T. J. Mahanta, the learned Senior Counsel appearing on behalf of the Gauhati High Court submitted as follows:-
(A) In the resolution dated 16.02.2024 which was approved by the Hon'ble Chief Justice, it was categorically mentioned that the post of the Registrar (Establishment) has to be filled up from eligible Joint Registrars belonging to the High Court service of the Principal Seat as well as the Outlying Benches of the Gauhati High Court by way of promotion. This resolution so adopted is not the subject matter of challenge in the instant proceedings and without a challenge to the said resolution, the petitioners cannot challenge the notice dated 22.02.2024 as well as seek declaration to the effect that the post of the Registrar Page No.# 13/41 (Establishment) has to be filled up only from incumbents of the Principal Seat and not from the Outlying Benches of the Gauhati High Court.
(B) The learned Senior Counsel for the Gauhati High Court submitted that the memorandum of the Petitioners' Association which was submitted for having representation in the Higher Cadres of the High Court Services was endorsed to a Committee by the Hon'ble Chief Justice and the said Committee took a resolution on 04.03.2015 and recommended for creation of one post of Joint Registrar and not the Registrar (Establishment). The said recommendation was also included in the subsequent proposal dated 26.05.2015 placed before the Hon'ble Chief Justice. The learned Senior Counsel submitted that as per the said proposal dated 26.05.2015, the reason for creation of the post of the Registrar (Establishment) was to alleviate the workload of the Registrar (Administration) and to manage the administrative affairs of the Registry. This proposal dated 26.05.2015 not only included the post of Registrar (Establishment) but also various other posts in the rank of gazetted, ministerial, non-ministerial and Grade-IV posts.
(C) The learned Senior Counsel for the Gauhati High Court submitted that the post of the Registrar (Establishment) is to be filled up as per order dated 13.08.2015 issued by the then Page No.# 14/41 Hon'ble Chief Justice (Acting) wherein it was mentioned that the post of Registrar (Establishment) is to be filled up by way of promotion from the Cadre of Joint Registrar (Class 1A) of the High Court services and the names of the Joint Registrars from the General Cadre as well as from the Stenographer Stream be placed in the zone of consideration in order of seniority for consideration of the promotion.
(D) The learned Senior Counsel for the Gauhati High Court submitted that Rule 2(c) of the Rules of 1967 defines "High Court" to mean the Gauhati High Court (the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) and as per Rule 2(f) of the Rules of 1967, "The Services of the High Court"
includes gazetted officers, ministerial posts, special post, posts in the Subordinate Service and post of extra typist or copyist. Rule 6(a) of the Rules of 1967 further provides that all appointments to the post of the services of the High Court Gazetted rank and all promotions shall be made by the Hon'ble Chief Justice in his absolute discretion. The learned Senior Counsel submitted that all appointments have been made to the post of the Registrar (Establishment) till date were with the due approval of the Hon'ble Chief Justice. The learned Senior Counsel further referred to Rule 7 (1) of the Rules of 1967 which provides that the Registrar shall be either a member of the State Judicial Page No.# 15/41 Service Grade-I; or a practicing Advocate of not less than 10 years standing at the Bar; or any other person considered suitable by the Hon'ble Chief Justice.
(E) On the question of as to whether there was a transfer amongst officers from the Principal Seat of the Gauhati High Court to the Outlying Benches and vice-versa, the learned Senior Counsel for the Gauhati High Court submitted that Rule 17A of the Rules of 1967 is not what the learned Senior Counsel for the Petitioners had submitted. In terms with Rule 17A of the Rules of 1967, any employee in the service of the High Court including those in the Benches of Kohima, Aizawl and Itanagar may be transferred from one station to the other in the exigency of public service and such transfer in the case of Gazetted Officers shall be notified in the Official Gazette. He, therefore, submitted that in terms with the said Rule 17A of the Rules of 1967, one Shri Rabindra Nath Barman who was serving as the Upper Division Clerk in the Aizawl Bench of the Gauhati High Court was transferred from Aizawl Bench to the Principal Seat as the Lower Division Assistant and thereupon transferred from the Principal Seat to the Kohima Bench in the year 2005 and then to the Itanagar Permanent Bench in the year 2013. Likewise, Shri Prithwi Balay Dutta who was the Joint Registrar in the Itanagar Permanent Bench was appointed as the Officer in Special Duty Page No.# 16/41 Protocol in the Principal Seat of the Gauhati High Court. Shri K. Debasish Sinha was transferred from the erstwhile Agartala Bench of the Gauhati High Court to the Principal Seat of the Gauhati High Court and Shri Dulal Boro of the erstwhile Imphal Bench was also transferred to the Principal Seat of the Gauhati High Court.
(F) On the contention made by the Petitioners that six persons were called for the interview inspite of the notification dated 02.03.2021 mandating 5(five) incumbents against 1(one) post, the learned Senior Counsel for the Gauhati High Court submitted that it is true that there was an extra candidate, but as one of the candidate was to retire on 29.02.2024 and being an exceptional circumstance, the said criteria as stated in the notification dated 02.03.2021 was relaxed. He submitted that all the three Joint Registrars of the Principal Seat of the Gauhati High Court and all the Joint Registrars, one each of the three Outlying Benches were requested to appear for the interview for the promotion to the post of the Registrar (Establishment) in the light and spirit of the resolution dated 16.02.2024. The learned Senior Counsel for the Gauhati High Court submitted that the interview was deferred in view of the interim order passed by this Court on 23.02.2024.
(G) The learned Senior Counsel for the Gauhati High Court Page No.# 17/41 therefore submitted that as the Hon'ble Chief Justice has the absolute discretionary power to make appointment of the officers and servants of the Gauhati High Court and that being the Constitutional mandate and further there being no provision in the Rules of 1967 debarring incumbents from Outlying Benches of the Gauhati High Court to participate in the selection process to the post of Registrar (Establishment) and the Hon'ble Chief Justice having approved the decision on 16.02.2024 of the Committee of Judges, the challenge so made in the instant writ petition is misconceived and not tenable for which the instant writ petition is required to be dismissed.
Submission on behalf of the Respondent State of Assam
12. The learned counsels appearing on behalf of the Finance Department as well as the Government of Assam submitted that the posts were created as per the approval of the Hon'ble Chief Justice of the Gauhati High Court and the said posts have been placed at the disposal of the Hon'ble Chief Justice of the Gauhati High Court. Considering the above and taking into account the powers of the Hon'ble Chief Justice under Article 229 of the Constitution, the learned counsels submitted that the instant proceedings is purely a matter within the High Court for which the State of Assam would not make any comment.
Analysis and Determination:-
Page No.# 18/41
13. For deciding the question involved in the instant proceedings, it is relevant to take note of the Constitutional provisions contained in Chapter V of the Constitution of India. Article 214 of the Constitution stipulates that there shall be a High Court for each State, Article 231 of the Constitution however stipulates that notwithstanding anything contained in the preceding provisions of the Chapter V, Parliament by law can established a common High Court for two or more States and a Union territory. This aspect is relevant taking into consideration that the Gauhati High Court is at present a High Court of the four States, i.e. Assam, Nagaland, Mizoram and Arunachal Pradesh.
14. Before proceeding further, this Court finds it relevant to trace out the origin and evolution of the Gauhati High Court. The territories included in the Province of Assam prior to 05.04.1948 came within the jurisdiction of the Calcutta High Court or by the Governor of Assam exercising the functions of the High Court. The Governor General, in exercise of powers conferred by Section 229 of the Government of India Act, 1935 and as adopted by the India Provincial Constitution (Amendment) Order, 1948 issued an order in the name and style of "Assam High Court Order, 1948" which established the High Court of Assam on 05.04.1948 thereby empowering the High Court of Assam to exercise jurisdiction in respect of the territories which were Page No.# 19/41 included in the Province of Assam. In the year 1962, the Parliament by an Act, namely, the State of Nagaland Act, 1962 (for short, 'the Act of 1962'), led to the formation of the State of Nagaland. In terms with Section 13(1) of the Act of 1962, it was ordained that there shall be a common High Court called the High Court of Assam and Nagaland. In terms with Sub-section (3) of Section 13 of the said Act of 1962, expenditure in respect to the salaries and allowances of the Judges of the common High Court shall be allocated between the States of Assam and Nagaland in such proportion as the President may by order determine.
15. The Act of 1962 was followed by the North-Eastern Areas (Reorganization) Act, 1971 (for short, "the Act of 1971"). By this enactment, it led to the establishment of the States of Manipur and Tripura and for formation of the State of Meghalaya and the Union territories of Mizoram and Arunachal Pradesh by reorganizing the existing State of Assam. Part IV of the said Act of 1971 is titled 'High Court'. This Part IV contains Sections 28 to
43. In terms of Section 28 of the said Act of 1971, on and from the appointed date, the High Court of Assam and Nagaland shall cease to function and was abolished. It was ordained that there shall be a common High Court for the States of Assam, Nagaland, Meghalaya, Manipur and Tripura to be the Gauhati Page No.# 20/41 High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura). In terms of Section 29 of the said Act of 1971, on and from the appointed date, the common High Court shall have, in respect of the territories comprised in the States of Assam, Manipur, Meghalaya, Nagaland and Tripura, all such jurisdiction, powers and authority as under the law in force immediately before the appointed date, are exercisable in respect of those territories by the High Court of Assam and Nagaland or the Court of the Judicial Commissioner for Manipur or the Court of the Judicial Commissioner for Tripura as the case may be.
16. In the year 1986, the Parliament enacted two Acts: The State of Arunachal Pradesh Act, 1986 and the State of Mizoram Act, 1986. On the basis of the said two enactments, the States of Arunachal Pradesh and Mizoram were established. Section 18 of the State of Arunachal Pradesh Act, 1986 and Section 15 of the State of Mizoram Act, 1986 are more or less similarly worded and when read together would evince that there would be a common High Court for the State of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh to be called the Gauhati High Court (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh).
17. The common thread that runs through the developments in the years 1962, 1971 and 1986 as above noted is that as and Page No.# 21/41 when the jurisdiction of the High Court of Assam and thereafter the Gauhati High Court came to be enlarged and extended to the States other than Assam, all the seven sister States in the North Eastern part of the country agreed to bear the expenditure in respect to the salaries and allowances of the Judges of the common High Court as shall be allocated amongst the States in such proportion by an order of the President.
18. It is also pertinent to take note of that the Act of 1971 was amended by the North-Eastern Areas (Reorganization) and other Related Laws (Amendment) Act, 2012 (for short, 'the Amending Act of 2012') whereby separate High Courts for the States of Meghalaya, Manipur and Tripura were established and the definition of "Common High Court" in Section 2(d) of the Act of 1971 was amended to mean the Gauhati High Court (the High Court of Assam, Arunachal Pradesh, Mizoram and Nagaland). As of today, the Gauhati High Court is the common High Court therefore exercising the jurisdiction throughout the States of Assam, Nagaland, Mizoram and Arunachal Pradesh. It may not be out of place to mention that Judges of the Gauhati High Court in the past and at present have been alleviated from amongst Advocates and Judicial Officers hailing from the aforesaid States. Furthermore, the Chief Justice of the Gauhati High Court would be the Chief Justice of the common High Court, i.e. the Gauhati Page No.# 22/41 High Court (the High Court of Assam, Arunachal Pradesh, Mizoram & Nagaland).
19. In the backdrop of the origin and evolution of the Gauhati High Court, it is relevant to take note the powers of the Chief Justice in relation to officers and servants of the Gauhati High Court. Article 229 of the Constitution specifically deals with the power of the Chief Justice in so far as officers and servants of the High Court. Article 229 of the Constitution reads as under:-
Article 229 in Constitution of India
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:
Page No.# 23/41 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 moneys taken by the Court shall form part of that Fund.
20. Clause (1) of Article 229 of the Constitution 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 the Chief Justice may direct, i.e. his nominee. The proviso to Clause (1) of Article 229 of the Constitution empowers the Governor of the State to require by Rule in certain cases to make appointments after consultation with the State Public Service Commission. It is very apposite herein to mention that Article 367 (1) of the Constitution mandates that the General Clauses Act, 1897 apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India. It is however relevant herein to mention that the application of the General Clauses Act, 1897 would be subject to any adaptation and modifications that may be made under Article 372 of the Constitution. In this regard, this Court finds it Page No.# 24/41 pertinent to take note of the judgment of the Supreme Court in the case of Chief Justice of Andhra Pradesh & Others vs. L.V.A. Dixitulu & Others, reported in (1979) 2 SCC 34 wherein the Constitution Bench of the Supreme Court specifically dealt with the power conferred upon the Chief Justice of the High Court in terms with Article 229 (1) of the Constitution. Paragraph No. 29 of the said judgment is reproduced herein below:-
"29. Now, let us see what is the ambit and scope of the power "appointment" in Article 229(1). In the context of Article 229, read as a whole, this power is of wide amplitude. The word "appointment" in Article 229(1) is to be construed according to axiom that the greater includes the less. This cardinal canon of interpretation underlies Section 16 of the General Clauses Act which has been made applicable by Article 317(1) of the Constitution. Construed in the light of this juristic principle, the power of "appointment" conferred by Article 229(1) includes the power to suspend, dismiss, remove or compulsorily retire from service. In short, in regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal, removal, suspension, reduction in rank, compulsory retirement etc., including the power to prescribe their conditions of service, the sole preserve of the Chief Justice, and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent, indicated in the Provisos. In conferring such exclusive and supreme powers on the Chief Page No.# 25/41 Justice, the object which the founding fathers had in view, was to ensure independence of the High Court."
21. Clause (2) of Article 229 of the Constitution contains two important parts. The first is that the conditions of service of officers and servants of the High Court shall be such as may be prescribed by the 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, leave or pensions, require the approval of the Governor.
22. The Rules of 1967 are Rules made in exercise of the powers conferred under Article 229 (2) of the Constitution. Before proceeding further, this Court finds it relevant to take note of another judgment of the Supreme Court in the case of S. B. Mathur & Others vs. Chief Justice of Delhi High Court & Others , reported in 1989 Supp (1) SCC 34 wherein the Supreme Court observed that administrative instructions cannot override the Rules framed in exercise of the powers conferred under Article 229 of the Constitution although the Authority issuing the administrative instructions may be the same Authority who prescribed the Rules. This aspect is important which would be dealt with in the later segments of the instant judgment.
Page No.# 26/41
23. Clause (3) of Article 229 of the Constitution is of vital significance for the purpose of the instant proceedings, as it declares that 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.
24. This Court finds it relevant at this stage to take note of Article 202 of the Constitution which stipulates that the Governor shall in respect of every financial year cause to be laid before the House or the Houses of the Legislature of the State, a statement of the estimated receipts and expenditure for that year. Clause (2) of Article 202 of the Constitution stipulates that the estimates of expenditure embodied in the annual financial statement shall be shown 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 proposed to be made from the Consolidated Fund of the State.
25. Clause (3) of Article 202 of the Constitution further stipulates the expenditure which shall be charged on the Consolidated Fund of each State. Sub-clause (d) of Article 202 (3) of the Page No.# 27/41 Constitution refers to the expenditure in respect of the salaries and allowances of the Judges of any High Court. Sub-clause (f) of Article 202 (3) of the Constitution stipulates any other expenditure declared by the Constitution or by the Legislature of the State by law to be charged. Therefore, a conjoint reading of Article 202 (3)(f) with Article 229(3) of the Constitution would show that the administrative expenses of a High Court including all salaries, allowances, leave 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 a part of the said Fund. The above analysis is important taking into consideration that it is the contention of the Petitioners that the post of the Registrar (Establishment) is a post created by the State of Assam and the administrative expenses in respect to the said post is borne out of the Consolidated Fund of the State of Assam.
26. This Court further finds it relevant to take note of Article 203 of the Constitution which stipulates that 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 of the Constitution 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 Page No.# 28/41 fund. Clause (2) of Article 204 of the Constitution 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.
27. The analysis of the above provisions of the Constitution, i.e. Articles 202, 203 & 204 of the Constitution is for the purpose of determining the scope and power of the Chief Justice under Article 229 of the Constitution keeping in mind that the framers of the Constitution wanted to ensure the independence of the High Court. It is also pertinent to observe that the framers of the Constitution in enacting Article 229 of the Constitution had clearly intended that in the matter of appointment of officers and servants of the High Court, the Chief Justice or his nominee would be the Supreme Authority and there can be no interference by the Executive except to the limited extent that is provided in Article 229 of the Constitution itself as referred to herein above. In this regard, this Court finds it relevant to refer to Paragraph No.11 of the judgment of the Constitution Bench of the Supreme Court in the case of M. Gurumoorthi vs. Accountant General Assam and Nagaland & Others, reported in (1971) 2 SCC
137. The said paragraph is reproduced herein under:-
"11. The unequivocal purpose and obvious intention of the Page No.# 29/41 framers of the Constitution in enacting Article 229 is that in the matter of appointment of officers and servants 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 is essentially to secure and maintain the independence of the High 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 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 (1), read with clause (2) of Article 229 conferred 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. In the matter of appointments even the Legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval 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 Page No.# 30/41 Chief Justice of the Court under Section 242(4), read with Section 241 of the Government of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Clause (5) provides:
"Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of 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."
28. From the above quoted paragraph, it would transpire that Article 229 of the Constitution contemplates full freedom to the Chief Justice in the matter of appointment of officers and servants of the High Court and their conditions of service. This can be prescribed by the Rules made by him. Apart from the special situation contemplated by the proviso to Clause (1) of Article 229 of the Constitution, the only exception is the Governor's approval must be sought when the Rules relate to salaries, allowances, leave or pension. This exception has been made because the finances have to be provided by the Government, and to that extent when there is any involvement of expenses, the Government has to approve it.
Page No.# 31/41
29. From the above analysis, what can be discerned is that the Gauhati High Court is the High Court of the four States i.e. Assam, Nagaland, Mizoram and Arunachal Pradesh. The Act of 1962 and the Amending Act of 2012 clearly envisage that the Gauhati High Court apart from having its Principal Seat at Guwahati would have Permanent Benches at Yupia (Itanagar Bench), Kohima (Kohima Bench) and Aizawl (Aizawl Bench).
30. Article 229 of the Constitution makes it apparently clear that the Chief Justice of the High Court has the complete administrative control over the functioning of the High Court. The Chief Justice may delegate his authority, but the fact remains that it is under the authority of the Chief Justice, the administration of a High Court runs. For the purpose of functioning the High Court, administrative expenses as referred to in Article 229 (3) of the Constitution would be required. These administrative expenses also include the salaries, allowances and pensions payable to or in respect of the Officers and servant of the High Court. These administrative expenses are required to be defrayed from the Consolidated Fund of the State.
31. The Chief Justice being in the helm of the administrative control of the High Court taking into account the necessity on the basis of the workload of the High Court is required to grant Page No.# 32/41 approvals for the creation of posts. It may not be out of place to mention that creation of posts would involve administrative expenses which would be charged to the Consolidated Fund of the State and as such, the State Government has to sanction the creation of the posts. The State Government upon sanctioning the creation of the posts places the created posts at the disposal of the Chief Justice. In the context of the Gauhati High Court, the Hon'ble Chief Justice taking into account the necessity on the basis of the workload of each of the four Benches of the Gauhati High Court grants approval for creation of posts. The respective State Governments i.e. the Government of Assam, Nagaland, Mizoram and Arunachal Pradesh as the case may be sanctions the creation of the posts and places the said posts at the disposal of the Hon'ble Chief Justice. The Hon'ble Chief Justice in exercise of powers conferred under Article 229(1) of the Constitution appoints Officers and servants to the said posts placed at the disposal of the Hon'ble Chief Justice. Who is to man those posts so placed at the disposal of the Hon'ble Chief Justice is absolutely within the discretion of the Hon'ble Chief Justice. The Executive has no role in that regard. This aspect of the matter can be discerned from the approval granted by the then Hon'ble Chief Justice on 26.05.2015 enclosed as Annexure- A to the affidavit-in-opposition filed by the Gauhati High Court. It Page No.# 33/41 is seen from the statement mentioned in the said approval dated 26.05.2015 that based upon the workload of each of the Seats of the Gauhati High Court, approval was granted by the Hon'ble Chief Justice for creation of the posts. Subsequent thereto on 10.08.2015, the State of Assam sanctions the creation of posts and placed the same at the disposal of the Hon'ble Chief Justice.
For the sake of clarity, it is pertinent to mention that once the posts are created and placed at the disposal of the Hon'ble Chief Justice of the Gauhati High Court, it is absolutely within the domain of the Hon'ble Chief Justice or his nominee to appoint officers and servants to those posts, however, subject to the mandate of Articles 14 and 16 of the Constitution and the Rules framed under Article 229 (2) of the Constitution.(see Renu and Ors. Vs. District and Sessions Judge, Tis Hazari Courts, Delhi, reported in (2014) 14 SCC 50 paragraphs 34, 35.2).
32. As already stated above, the Rules of 1967 are Rules made under Article 229 (2) of the Constitution. The Rules of 1967 stipulates the conditions of service of officers and servants of the Gauhati High Court. A perusal of Rule 2(c) of the Rules of 1967 would show that the term "High Court" has been defined to be the Gauhati High Court (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) and Rule 2(d) defines the "Chief Justice" to mean the Chief Justice of the Gauhati High Page No.# 34/41 Court (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh). Rule 2(e) defines the term "Cadre" to mean the sanctioned strength of the service. Rule 2(f) defines the term "The Services of the High Court" to include gazetted posts, ministerial posts, special posts, posts in the Subordinate Service and post of extra typists and copyists. Rule 3 deals with classification of the services of the High Court to consist of both gazetted and non-gazetted posts. Rule 6(a) stipulates that all appointments to the post in the services of the High Court, gazetted rank and all promotions would be made by the Hon'ble Chief Justice in his absolute discretion. In terms with Rule 6(b), appointment to the post of Class III and Class IV shall be made by the Registrar by direct recruitment after competitive examination in the case of the former and after selection test in the case of the later, except for the post of Usher and Court Keeper. Rule 7 relates to Gazetted Officer. Rule 7(1) stipulates that the Registrar shall be either a member of the State Judicial Service Grade-I; or a practicing Advocate of not less than 10 years standing at the Bar or any other person considered suitable by the Hon'ble Chief Justice including those who had served in the State Judicial Service Grade-I and retired. Rule 7 (1A) of the Rules of 1967 stipulates that the appointment of a Joint Registrar shall be made from the State Judicial Service Grade-II; or by Page No.# 35/41 promotion from the post of the Deputy Registrar or by direct recruitment of an Advocate having not less than 10 years continuous experience.
33. It is relevant to take note of that the Rules of 1967 do not distinguish between officers and servants of the Outlying Benches of the Gauhati High Court with officers and servants of the Permanent Bench of the Gauhati High Court. Rather, it is seen from the Rules of 1967 that any employee in the service of the Gauhati High Court would include any employee of the Principal Seat of the Gauhati High Court as well as any employee of the Permanent Benches of the Gauhati High Court. It is relevant to take note of that the Rules of 1967 do not specifically mention from which category of post the said post of Registrar (Establishment) is to be filled up. In absence of such specifications, in the opinion of this Court, the Chief Justice has the power under Article 229 of the Constitution to prescribe the Feeder Category for the post of the Registrar (Establishment). The then Hon'ble Chief Justice (Acting) issued an order dated 13.08.2015 that the post of the Registrar (Establishment) shall be filled by way of promotion from the cadre of the Joint Registrar of the High Court Services and the names of the Joint Registrars from the General Cadre as well as the Stenographer stream be placed in the zone of consideration in order of Page No.# 36/41 seniority for consideration of the promotion. It is further seen that vide the resolution dated 16.02.2024 which was approved by the Hon'ble Chief Justice, a decision was taken that the Feeder Category to the post of Registrar (Establishment) would be the eligible Joint Registrars belonging to the High Court service of the Principal Seat as well as the Outlying Benches of the Gauhati High Court. This decision so taken in the resolution dated 16.02.2024 is not in conflict with the Rules of 1967 as the Rules of 1967, as already stated above do not mention the feeder category to the post of Registrar (Establishment).
34. In the backdrop of the above analysis, now let this Court deal with contentions of the parties. The foremost contention of the Petitioners is that the post in question was created at the request of the Petitioner Association and the said post was created in the Principal Seat of the Gauhati High Court. In the opinion of this Court, once a post is created, sanctioned and placed at the disposal of the Hon'ble Chief Justice of the Gauhati High Court; it is absolutely within his authority to determine how the said post is required to be filled up. The discretion to be exercised shall be subject to Articles 14 and 16 of the Constitution and the Rules of 1967. The Rules of 1967 do not distinguish the employees in the services of the Gauhati High Court working in the Principal Seat with that of the Permanent Page No.# 37/41 Seats. Under such circumstances, the said submission is misconceived.
35. It was the case of the petitioners that the post of the Registrar (Establishment) is required to be only filled up from the incumbents from the Principal Seat. In the opinion of this Court, the said submission merely appears to be a mere plea which is not backed by any legal right which would entitle the members of the Petitioner Association to the declaration sought for. At the expense of repetition, this Court reiterates that it is absolutely within the discretion of the Hon'ble Chief Justice whom to appoint or to promote to the posts so created and sanctioned by the State Governments for the respective Benches of the Gauhati High Court.
36. The submission so made by the learned Senior Counsel for the petitioners that it has been an established norm, in the opinion of this Court cannot be the basis for interpreting a Constitutional provision, i.e. Article 229 of the Constitution, which empowers the Chief Justice to appoint the Officers and servants of the High Court.
37. This Court further finds it relevant to observe that a combined reading of Article 229 (1) of the Constitution with Rule 6 (a) of the Rules of 1967 empowers the Hon'ble Chief Justice of Page No.# 38/41 the Gauhati High Court to appoint or promote any Gazetted Officer. The reference to Gazetted Officer herein is for the reason that the posts of Registrar (Establishment) and Joint Registrars are Gazetted rank posts. As observed by the Constitution Bench of the Supreme Court in L.V.A. Dixitulu (supra), this powers so conferred upon the Chief Justice includes the power to promote, dismiss, transfer, suspend etc. Rule 17A of the Rules of 1967 empowers the Chief Justice to transfer any employee of the services of the High Court from one seat to another. Rule 18 of the Rules of 1967, further stipulates that the vacancies in the higher grades of the Ministerial Services shall be filled according to merit and ordinarily promotion from the lower grades and seniority be counted when merit is equal. Therefore, in the opinion of this Court, there cannot be any impediment on the powers of the Hon'ble Chief Justice to appoint an officer who is a Joint Registrar of any of the Seats of the Gauhati High Court as Registrar (Establishment) of the Principal Seat of the Gauhati High Court.
38. This Court further takes note of the submission of the learned Senior Counsel for the Petitioners that separate Gradation List are prepared for the Principal Seat as well as the Permanent Benches of the Gauhati High Court. It is relevant at this stage to take note of the submissions which were made by Page No.# 39/41 the learned counsel for the Gauhati High Court in the case of Rabindra Nath Barman vs Gauhati High Court through Registrar General, reported in 2024 SCC Online GAU 209 as reflected at paragraph 8.1 of the said judgment to the effect that there was no Gradation List prior to 2014 of the officers and staff of the Principal Seat published. On 29.09.2014, a Draft Gradation List was published and the Final Gradation List was published only on 20.01.2016 asking all the concerned employees to submit their objections, if any, by 30.01.2016. Subsequent thereto, on 22.06.2018, the Gradation List of the Principal Seat was published. Therefore, it would be seen that the publication of the Gradation List is of recent phenomenon.
39. This Court further takes note of that the Rules of 1967 do not conceive for preparation of a separate Gradation List for the Principal Seat as well as separate Gradation List for the Permanent Benches. On the other hand, it appears that all employees in the Registry of the Gauhati High Court in the Principal Seat as well as the Permanent Benches are in the services of the Gauhati High Court.
40. This Court also takes note of the submission made as regards Rule 18 of the Rules of 1967 by the learned Senior Counsel appearing on behalf of the petitioners that vacancies in the higher grades of the ministerial services shall be filled up Page No.# 40/41 according to merits and ordinarily by promotion from the lower grades and the seniority being counted only when the merit is equal. It is the submission of the learned Senior Counsel for the petitioners that when merit is equal, a question would arise as regards the seniority and if there are different Graduation Lists for different seats of the Gauhati High Court, it would be difficult to decide on the question of seniority when the merit is equal. The said submission though looks attractive at the first glance, but in the opinion of this Court, the said submission falls within the realm of "ifs and buts" and as such it would not be proper on the part of this Court in exercise of the jurisdiction under Article 226 of the Constitution to issue any directions in that regard. This Court, however, observes that in a case when merit is adjudged equal and a question arises in respect to seniority, the individual(s) would be at liberty to approach this Court.
41. Accordingly, the instant petitions stands disposed of with the following observations and directions:-
(i) WP(C) No.3024/2024 stands closed, as it has become infructuous.
(ii) The writ petition being WP(C) No.1009/2024 lacks merit, and accordingly, stands dismissed.
(iii) Taking into account that the Selection Committee had Page No.# 41/41 deferred the selection process on account of the pendency of the present proceedings, the Hon'ble Chief Justice would now be at liberty to direct steps to be taken for selection and appointment to the post of the Registrar (Establishment) in terms with the order dated 13.08.2015 read alongwith the Resolution dated 16.02.2024.
(iv) There shall be no order for costs.
JUDGE Comparing Assistant