The Chief Justice has the discretion to relax qualifications for appointment to the Secretary's post, and judicial review does not permit substituting the Chief Justice's discretion unless arbitrary.

JUDGMENT :

M. Zothankhuma, J.

Heard Mr. K.K. Mahanta, learned Senior Counsel for the appellant in WA No. 5 of 2023 and Mr. H.K. Das, learned counsel for the Gauhati High Court (Appellant in WA No. 71 of 2023). Also heard Mr. K.N. Choudhury, learned Senior Counsel assisted by Mr. J. Patowary, learned counsel for the private respondents/writ petitioners. The placement of the parties in the Cause Title in WA No. 5 of 2023 is being applied while disposing of the above two appeals.

2. The two appeals have been made against the common Judgment & Order dated 05.01.2023 passed by the learned Single Judge in WP(C) No. 1376/2019 and WP(C) No. 3845/2021 wherein, it has held that the appointment of the appellant as Secretary to the Hon’ble Chief Justice, Gauhati High Court on officiating basis and the subsequent order regularizing his service was unsustainable in law.

3. The appellant’s case is that the appellant, who was holding the post of Senior Judicial Assistant, had been appointed to the post of Protocol Officer vide Notification dated 25.11.2016, on the basis of a selection process that had been preceded by an option for being considered for the said post in terms of Notice dated 02.09.2016. The appellant, amongst others, had applied for the said post by giving his option for consideration for the post and in the selection process, he was selected and consequently appointed temporarily to the said post. However, the appointment order of the appellant as Protocol Officer contained a condition to the effect that the seniority of the appellant shall be maintained in the grade of Senior Judicial Assistant and his further promotion was to be considered on that basis.

4. The appellant was thereafter appointed temporarily as Secretary to the Hon’ble Chief Justice on officiating basis in the Pay Band of Rs. 30000-110000/-with Grade Pay of Rs. 14500/-, vide Notification dated 10.09.2018. The Notification carried a condition that the appellant would maintain his seniority in his original cadre i.e., Senior Judicial Assistant and his further promotion would be made on that basis. Thereafter, in exercise of the power conferred under Article 229 of the Constitution of India read with Rule 63A of the Gauhati High Court Services (Appointment, Conditions and Conduct) Rules, 1967 (hereinafter referred to as “the 1967 Rules”), the Hon’ble Chief Justice (hereinafter referred to as the HCJ) was pleased to regularize the appointment of the appellant as Secretary to the Hon’ble Chief Justice, with effect from 04.07.2020, vide Notification dated 24.08.2020. The stand of the appellant is that as he had been appointed to the post of Protocol Officer, which was never put to challenge by the writ petitioners, he came into the cadre of Class-II(C) posts, which is in Schedule-I of the 1967 Rules and which had been made in pursuance to Rule 11 of the 1967 Rules.

5. The appellant’s further case is that in view of Rule 7(3A) of Part-II of the Gauhati High Court Service Rules, 1967, the appellant who was holding a Class-II(C) post as a Protocol Officer, was in the feeder post for being considered and appointed to the next promotional post of Secretary to the Hon’ble Chief Justice. Further, the appointment to the post of Secretary to the Hon’ble Chief Justice was to be made on the sole discretion of the Hon’ble Chief Justice in terms of Rule 63A of the 1967 Rules. The counsel for the appellant submits that the appointment to the post of Protocol Officer had been made on the basis of the Resolution passed by the “Committee constituted for dealing with all matters relating to Officers and Staffs of the High Court” in it’s meeting held on 09.03.2015 read with Resolution adopted on 25.07.2014. He submits that there is no service rule for appointment of Protocol Officer, except the Resolutions stated above.

6. The regularization of the officiating appointment of the appellant as Secretary to the Hon’ble Chief Justice, vide notification dated 24.08.2020, had been made with the