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2011 Supreme(Ker) 160
High Court of Kerala
THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR
N. Asokan, Private Secretary to Judge & Another
Versus
State Of Kerala, Represented By Addl Chief Secretary and Secretary to Government & Others
WP(C).No. 27855 of 2009(R)
Decided on : 11-02-2011
The power of appointment vested in the Chief Justice of the High Court under Article 229(1) of the Constitution is absolute and plenary, and cannot be abridged by the legislature or the Governor.
Headnote:
Appointment - High Court Service - Article 229(1) of the Constitution
Fact of the Case:
The petitioners, working as Private Secretaries to Judges in the High Court, challenged the conditions imposed in Ext.P1 order by the Government, which restricted the filling up of sanctioned posts based on the number of Judges in position. The petitioners claimed promotion to the post of Private Secretary to Judge (Higher Grade) in the ratio 1:2, as per the rules.
Finding of the Court:
The court found that the conditions in Ext.P1 interfered with the power of the Chief Justice to make appointments, which is exclusive to maintain the independence of the judiciary. The court held that the executive fiat cannot be recognized in the light of the Constitutional scheme and various decisions of the Apex Court.
Issues: The main issue was whether the conditions imposed in Ext.P1 were violative of Article 229(1) of the Constitution, which confers exclusive power on the Chief Justice for appointment of staff in the High Court.
Ratio Decidendi: The court relied on various decisions of the Apex Court, emphasizing that the power of appointment vested in the Chief Justice of the High Court is absolute and plenary, and cannot be abridged by the legislature or the Governor. The court held that any restrictions imposed by the Government while communicating the sanction could not bind the Chief Justice.
Final Decision: The court quashed the conditions in Ext.P1 as violative of Article 229(1) of the Constitution and directed the consideration of the petitioners' promotion as Private Secretary to Judge (Higher Grade) depending upon the number of vacancies and the dates of occurrence of vacancies.
1. In this writ petition the petitioners are aggrieved by the conditions imposed in Ext.P1 order passed by the Government while sanctioning 90 additional posts in the High Court of Kerala. The sanction was ordered subject to the condition that "out of the sanctioned and existing posts, only so many shall be operated (i.e. filled up) as are commensurate with the number of Judges actually in position. This reduced strength should alone be taken not only for recruitment in the entry cadre posts, but also for filling up posts by promotion."
2. The petitioners are now working in the cadre of Private Secretary to Judge in the High Court service. Their service conditions are governed by the Kerala High Court Service Rules, 2007 (for short 'the Rules'). As per the said rules the post of Private Secretary is in Category 1, Sub Division (6) of Division 1 under Rule 4 of the Rules. The next promotion is to the post of Private Secretary to Judge (Higher Grade) in Category 1, Sub Division (6) of Division 1. It is stated that they are the seniormost persons in the category of Private Secretary to Judge, eligible and entitled for promotion as Private Secretary to Judge (Higher Grade) in the next arising vacancies. The promotion to the post of P.S. to Judge and P.S. to Judge (Higher Grade) is made in the ratio 1 : 2.
3. In Ext.P1 order 9 posts of P.S. to Judge have been sanctioned. Therefore, the promotion to the above posts are normally to be effected in the ratio 1 : 2 as mentioned above. When they claimed promotion by filing a representation, they came to know about the condition in Ext.P1 mentioned above.
4. The petitioners further point out that at the same time the Government passed Ext.P2 order whereby 18 new additional posts of Law Officers (9 Senior Govt. Pleaders and 9 Govt. Pleaders) have been created specifically in the light of the creation of 9 additional posts of Judges in the High Court. Actually, the creation of new posts in Ext.P1 is because of the creation of 9 additional posts of Judges. It is therefore submitted that there cannot be any different yardsticks in respect of the same situation. It is also submitted that the High Court even though requested the Government to delete the said condition in Ext.P1 as per Exts.P3 and P4 communications, the same have not been positively considered. The petitioner also rely upon the legal position discernible from Ext.P6 judgment of this Court in W.P.(C) No.24940/2004. Therein, this Court held that the recommendations made by the Hon'ble Chief Justice have to be looked upon with respect and regard and ought not be kept away for consideration unless there are very good reasons.
5. The Government as well as the High Court have filed separate counter affidavits.
6. Heard learned counsel for the petitioners Shri K. Jaju Babu, Shri O.V. Radhakrishnan, learned Senior Counsel appearing for the High Court and Shri Sandesh Raja, learned Govt. Pleader.
7. Learned counsel for the petitioners submitted that the creation of new posts is in tune with the sanctioning of 9 additional posts of Judges in the High Court. It is pointed out that the restriction in Ext.P1 cannot be sustained for more reasons than one. Firstly, it is against the Constitutional scheme of Article 229(1) of the Constitution of India. The power of appointment of the Chief Justice under Article 229(1) of the Constitution cannot be curtailed by the Government in any manner. The action is therefore without any legal sanction. It is also pointed out that while creating 18 posts of Government Pleaders taking into consideration the creation of 9 new posts of Judge in the High Court, the Government has not imposed any such condition. Therefore, it is submitted that with regard to the High Court service alone, the Government has treated the matter in a discriminatory manner which cannot be justified in the light of Article 14 of the Constitution of India.
8. The first respondent has filed a counter affidavit supporting the o
