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TMI Blog2002 (3) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... g. 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 send its recommendation to the Government as early as possible. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he time-being then held by him he could exercise his option either to continue in the Assam Legal Service or to revert to his parent service, i.e., Assam Judicial Service. The respondent no.1 neither expressed his option nor gave any response to the High Court. On 19.8.1992 the Government of Assam promoted the respondent no.1 temporarily and until further orders from the post of Deputy Secretary to Grade II of the Assam Legal Service and posted him as Joint Legal Remembrancer to the Government of Assam, Judicial Department, with effect from the date of his taking over charge. Copy of the notification was sent to the Registrar, Gauhati High Court. Here again there was no consultation by the Government with the High Court before (or even after) directing such promotion. The controversy erupted when on 23.2.1995 the High Court informed the Government of Assam, and the respondent no.1, of its decision to recall the respondent no.1 to his parent department and that a suitable substitute in place of respondent no.1 will be provided in due course. On 4.4.1995, the Registrar (Judicial) once again requested the State Government to take immediate steps to replace the services of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssam also cancelled its two notifications dated 20.3.1996. On 2.6.2000 the Division Bench of the High Court allowed the writ appeal of respondent no.1 and quashed the notifications dated 10.4.1995 and 20.3.1996 forming an opinion that the appointment of respondent no.1 in Assam Legal Services was a substantive appointment. He could not have held lien against two substantive posts. The Division bench went on to state, we are, therefore, unequivocally of the view that the appellant has acquired a substantive post in the Assam Legal Service subsequently since from 18.7.1986 and his lien in the judicial service automatically stands terminated by operation of law with effect from 18.7.1986 . Feeling aggrieved by the judgment of the Division Bench of the High Court, the Gauhati High Court and its Registrar have filed this appeal by special leave. It appears that the respondent no.1 does not wish to be repatriated to the judicial service and wishes to continue in Assam Legal Service. During the course of hearing before this Court we had asked the learned counsel for the High Court to have instructions if the High Court is agreeable not to pursue the matter and leave the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were handed over outside the cadre temporarily and until further orders and therefore it was open for the High Court to recall the respondent no.1 and post him as Presiding Officer of a District Court. The State Government endorsed the act of the High Court as unassailable as the lien of respondent no.1 in his substantive post in his parent service, viz., Assam Judicial Service still continues . On point of fact, the State Government agreed, that the respondent no.1 had not applied to the APSC with the permission of and under intimation to the High Court while seeking regular appointment. It is strange to notice a complete somersault taken by the State of Assam before this Court by having abandoned the stand taken in the High Court and taking a stand completely at variance. In its reply affidavit dated 3.11.2001 the State of Assam has stated that the respondent no.1 was a direct recruit to the Assam Legal Service, on a regular basis and with the consent of the Gauhati High Court. On 28.8.1998 on his confirmation in Assam Legal Service Grade II, his lien in Assam Judicial Service stood automatically terminated by operation of law. Strangely enough the Government of Assam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the influence of the executive and the legislature. Article 234 provides for appointments of persons other than District Judges to the judicial services of a State being made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court the control over district courts and courts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the control of the High Court. Once a person has entered in the judicial service, he cannot depart therefrom save by the leave of the High Court. It is settled by a catena of decisions that the word control referred to in Article 235 of the Constitution has been used in a comprehensive sense and includes the control and superintendence of the High Court over the subordinate courts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may take a decision, the decision cannot be taken save ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... flict between the High Court and the government. Except for very good reasons we think the High Court should always be willing to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers. The government, in its turn, should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested interest in the secretariat. Both the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should, then there is no room for conflict and no question of one dominating the other arises. Each of the organs of the State has a special role of its own. But our Constitution expects all of them to work in harmony in a spirit of service. In State of Bihar Anr. Vs. Bal Mukund Sah Ors., (2000) 4 SCC 640, the Constitution Bench has again brought to fore and thrown light on the complete and insulated scheme for subordinate judiciary services handed down by the founders of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id : 7. Selection of Candidates (1) In the case of selecting persons for appointment to the service directly, the Governor shall make selection from qualified legal practitioners or judicial officers taking into consideration the person s legal qualifications, tact, general intelligence, integrity and previous experience, if any: Provided that in the case of appointment of a person to the service from amongst the Judicial Officers, no such appointment shall be made without consulting the Assam High Court.* (2) It shall not be necessary for the Governor to consult the Public Service Commission for filling up the posts in Grade-I and Grade-II of the Service, but appointments to Grade-III and Grade- IV of the Service shall always be in consultation with the Public Service Commission. *(now Gauhati High Court). An ad-hoc appointment required to be made immediately in the public interest may be made dispensing with reference to the Public Service Commission. However, if a candidate already in judicial service is to be appointed, obviously his services shall have to be spared by the High Court failing which he cannot be appointed even ad-hoc. A post w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancer serving under the government though a judicial officer whose services have been placed at the disposal of the government by the High Court has a crucial role to play. He is a vital link of communication between the High Court and the government and his relationship with the two wings strategically enables a healthy and appropriate relationship being maintained between the two. As held by this Court in Sudhansu Sekhar Mishra s case (supra), the State Government requesting the services of a competent judicial officer being made available to it and the High Court conceding to such request is by consent and willingness of the two. Neither the High Court can be compelled to spare a particular judicial officer nor can the High Court thrust upon the services of a particular judicial officer on the Government. A consensus can be arrived at by dialogue. However, if the services of a competent judicial officer 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. We are, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft for his retirement. It was submitted at the end by the learned counsel for respondent No.1 that the respondent No.1 would have even given up his contest in this appeal by special leave filed by the Gauhati High Court but for the fact that his son is unfortunately not well and is suffering from serious neurological problem, taking treatment under the expert guidance and supervision of an expert neurologist at Gauhati, who is the Professor and Head of Department of Neurology in Gauhati Medical College. It would be difficult to shift his son from Gauhati to elsewhere except at grave risk to the health of his son. The learned counsel for the appellants made a statement under instructions that in the event of the respondent No.1 being brought back to judicial service the High Court would take a sympathetic and humane view of the problem of the respondent No.1 and he would be posted at a station wherefrom he can, without any inconvenience, continue neurological treatment of his son. It was also submitted that the High Court would have no serious objection to the respondent No.1 continuing in legal service and even on being treated as absorbed therein but subject to reservation that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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