Back
2007 Supreme(Gau) 26
IN THE HIGH COURT OF GAUHATI
B.S. Reddy and Hrishikesh Roy, JJ.
Bipul Kumar - Appellants
Vs.
State of Assam and Ors. - Respondent
Decided On: 10.01.2007
The High Court has exclusive control over the appointment and payment of salaries of ministerial and subordinate staff working under the Courts functioning under the High Court, as per Article 235 of the Constitution of India.
Headnote:
Salary Payment - Appointment under District & Sessions Judge - Article 235 of the Constitution of India - [Article 235]
Fact of the Case:
The petitioner, a Grade-IV appointee, filed a petition for non-payment of salary from January 2006 and sought direction for payment of arrear salary and timely disbursal of salary and allowances. The petitioner was initially appointed as a 'Mali' and later as an office Peon. The salary was not paid from January 2006 onwards, leading to the petition.
Finding of the Court:
The Court held that the High Court exercises control over the appointment and payment of salaries of ministerial and subordinate staff working under the Courts functioning under the High Court, as per Article 235 of the Constitution of India. The insistence on concurrence of the Finance Department for payment of salary to such appointees was considered an unauthorized intrusion, and the withholding of the petitioner's salary on this ground was unjustified.
Issues: Non-payment of salary, jurisdiction over appointment and salary payment, necessity of Finance Department's concurrence
Ratio Decidendi: The High Court has exclusive control over the appointment and payment of salaries of ministerial and subordinate staff working under the Courts functioning under the High Court, as per Article 235 of the Constitution of India. The insistence on concurrence of the Finance Department for payment of salary to such appointees was considered an unauthorized intrusion.
Final Decision: The Court directed the payment of salary due to the petitioner from January 2006 and ordered the regular salary to be paid without insisting on concurrence of the Finance Department. The writ petition was allowed with no cost.
Hrishikesh Roy, J.
1. Heard Mr. U.K. Nair, learned advocate for the petitioner, Ms B. Goyal, learned advocate representing the State and Mr. B.C. Das, learned senior advocate for the respondent No. 2.
The present petition has been filed by a Grade-IV appointee in the establishment of District & Sessions Judge, Barpeta making a grievance of non-payment of his salary from the month of January, 2006, The petitioner has prayed for a direction for payment of his arrear salary as well as for further direction for ensuring timely disbursal of his salary and allowances by the respondent-authorities.
2. The writ petitioner on the basis of appointment order dated 20.01.1998 (Annexure-1) issued by the District and Sessions Judge, Kamrup, Guwahati was appointed as a 'Mali' at a fixed salary of Rs. 900/- per month. It is averred that the said appointment had been made as per the practice and procedure followed for a long time whereby under the establishment of the District and Sessions Judge, engagement of Grade-IV employees, in the event of requirement, is permissible.
By the nature of engagement of the writ petitioner, he was attached to Mr. K. Sarma, District and Sessions Judge and movement of the Judge by way of transfer, also entailed movement of the writ petitioner as per the posting of the said District and Sessions Judge. In such manner, the petitioner has served in different places in different capacities and copies of orders of engagement of the petitioner are collectively enclosed to the writ petition as Annexure-2 series.
3. Eventually when Mr. K. Sarma was posted as the District and Sessions Judge, Barpeta, the petitioner was appointed as a 'Mali' on wage basis in the residential bungalow of the Judge by issuance of appointment order dated 19-05-2005.
While the petitioner was engaged as aforesaid, a post of office Peon fell vacant under the establishment of the District and Sessions Judge, Barpeta because of promotion of the regular incumbent to a higher post. The petitioner being eligible applied for appointment to the said post of office peon.
4. Thereafter, as per the established practice and procedure followed over a number of years, a selection Board was constituted for making selection for appointment to the post of office Peon and the petitioner having been found suitable, recommendation for his appointment against the said post was made by the selection Board. Following the said recommendation, the District and Sessions Judge, Barpeta issued an appointment order dated 01-12-2005 (Annexure-4) appointing the writ petitioner as office Peon in the office of the District and Sessions Judge, Barpeta. The said appointment in the scale of pay of Rs. 2450-3670/- per month was made against the vacancy created on promotion of one Brajen Das, the earlier incumbent in the said post.
5. On getting the appointment as aforesaid the writ petitioner immediately joined as an office Peon and it appears that he also received salary for the month of December, 2005. But from the month of January, 2006 onwards the petitioner was not paid his salary.
The District and Sessions Judge, Barpeta thereafter made correspondences with the Judicial Department of Government of Assam for ensuring salary payment to the petitioner. In response, through letter dated 21-04-2006 (Annexure-6) it was indicated by the Deputy Secretary of the Judicial Department, Assam that after the dissolution of the State Level Empowered Committee, (S.L.E.C.) It is necessary to obtain the concurrence of the Finance Department for making direct recruitment and the District and Sessions Judge, Barpeta was asked to furnish justification through the Registrar General of the High Court so that Finance department could be moved for their concurrence.
Further correspondences were exchanged between the authorities in the State Government and the Court but possibly because concurrence was not given by the Finance Department, the salary of the petitioner was not paid.
6. Being aggrieved by
