IMPORTANT POINTS
1. If a person chosen for appointment in Assam Legal Service is a judicial officer, he cannot be appointed without consulting the High Court, such consultation being mandatorily required.
2. If the services of a competent judicial officers 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.

Headnote:(i) Constitution of India-Article 235-Subordinate Judiciary-High Court s control-Mandatory constitutional requirement-Respondent 1 appointed as a judicial officer in Assam Judicial Services Grade III-He was posted as Judicial Magistrate Second Class-Advertisement inviting applications for appointment for a post of Deputy Secretary in Grade III of Assam Legal Service-Respondent s application forwarded by High Court-Respondent appointed temporarily and until further orders in Assam Legal Service-Appointment on regular basis as Deputy Secretary-Promotion of respondent from Grade III to Grade II of Assam Legal Service-Failure to comply with mandatory constitutional requirement-While lien of respondent 1 in judicial service stood automatically terminated-(No)-Failure to comply with mandatory constitutional requirement of consultation with High Court.
       Held : The appointment of respondent No.1 as Deputy Secretary in Assam Legal Service Grade-III was made initially on temporary and ad-hoc basis to satisfy the immediate need of the State Government. For that purpose the application by respondent No. 1 seeking such appointment was forwarded by the High Court and his services were also spared for taking over the new assignment. However, thereafter the respondent No. 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 the respondent No. 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 above quoted. Similarly while promoting the respondent No.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 it was 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. (Para 18)
       The notification, posting the respondent No.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 judicial office lying vacant. So also the Division Bench ignored the impact of constitutional provision while forming an opinion that the lien of respondent No.1 in judicial service stood automatically terminated as the appointment of respondent No.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 No.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. (Para 20)
       (ii) Service Law-Judicial Service-High Court s powers-Respondent, Judicial Officer in Assam Judicial Service, appointed temporarily in Assam Legal Service-Subsequent appointment on regular basis and promotion in legal service, made without consultation with High Court-Whether High Court could have recalled respondent s deputation?-(Yes)-However, respondent having been in legal service since 1986, i.e. for a period of about 16 years-Marginal number of years left for retirement of respondent-His son having a serious neurological problem which can be taken care of by his continuance in legal services-Directions made-Assam Legal Service Rules 1962-Rule 7.
       Held : Keeping in view the triple factors: (i) that the respondent No. 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 No. 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 the respondent No. 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;
        (3) If the abovesaid direction cannot be carried out then at the end of six weeks the respondent No.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. (Para 21)

JUDGMENT

R.C. Lahoti, J.-Leave granted.

2. On 2.7.1977, Kuladhar Phukan, the respondent No.1, was appointed as a judicial officer in Assam Judicial Services Grade-III and on 5.7.1977, he was posted as Judicial Magistrate Second 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 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 the 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. The respondent No.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 the 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 the respondent No.1 informing him that as soon as the post was advertised by the APSC, he should apply to the 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 sent its recommendation to the Government as early as possible.

3. On 29.7.1986, the High Court directed the respondent No. 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 the respondent No.1 were being placed at the disposal of the Government of Assam consistently with the appointment made. On 11.9.1986, the respondent No.1 was confirmed in Assam Judicial Service Grade III. His relative seniority was determined in Grade II of Assam Judicial Service 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 on the post of Deputy Secretary, in response to which, the respondent No.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 No.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 the respondent No.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 No.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 Service Grade III. The respondent No.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 the Grade III of the Assam Judicial Service", "I was appointed regularly and permanently" in 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 re-consideration and

Click Here to Read the rest of this document

2002 Supreme(SC) 415

Cases Referred (6)