W.P. (C) No. 27855 of 2009. Case: Asokan Vs State of Kerala. High Court of Kerala (India)
| Case Number | W.P. (C) No. 27855 of 2009 |
| Counsel | For Appellant: K. Jaju Babu, M.U. Vijayalakshmi, Brijesh Mohan, T.R. Sadeesan and A. Haroon Rasheed, Advs. And For Respondents: O.V. Radhakrishnan, Sr. Adv., K. Radhamani Amma, Adv. and K. Sandesh Raja, Government Pleader |
| Judges | T.R. Ramachandran Nair, J. |
| Issue | General Clauses Act - Section 16; Kerala High Court Service Rules, 2007 - Rule 4; Kerala High Court Service Rules, 1970 - Rule 35; K.S. and S.S.R. - Rule 5; Constitution of India - Articles 14, 146, 202, 203, 204, 213, 229, 229(1), 229(2) and 317(1); High Court Services (Determination of Retirement Age) Ordinance, 2007 |
| Citation | 2011 (1) KLT 931 |
| Judgement Date | February 11, 2011 |
| Court | High Court of Kerala (India) |
Judgment:
T.R. Ramachandran Nair, J.
1. In this Writ Petition the Petitioner 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. tilled 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 Judges 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 order. Mainly, it is contended that the condition was insisted by the Government in order to check the tendency of engaging surplus staff even when there are no required number of Judges. This 'decision was approved by the Council of Ministers also. With regard to Ext.P2 order, it is stated that the Law Officers are posted for three years on a consolidated pay and the nature of their work is also not comparable to that of the Petitioners or any of the posts mentioned in Ext.P1 Govt. Order.
9. In the counter affidavit filed by the Registrar General of the High Court, the illegality in the condition imposed in Ext.P1, has been explained.
10. The fact that 9 posts of Judges have been created, is the requirement to sanction the posts. The total number of posts sanctioned is 90, as per Ext.P1, The further question is after sanctioning the posts, can there there be a restriction on the power of the Chief Justice to fill up the posts?
11. The relevant article under the Constitution is Article 229(1) which reads as follows:
229. Officers and servants and the expenses of High Courts. - (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
Clauses (2) and (3) are not relevant for the purpose of this case, since Clause (2) relates to prescription of conditions of service of officers of the High Court by making rules by the Chief Justice of the Court and the proviso states that such rule relating to salaries, allowances, leave or pension, require the approval of the Governor of the State and Clause (3) states that the administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
12. Shri O.V. Radhakrishnan, learned Senior Counsel appearing for the High Court submitted that in the light of the decisions of the Apex Court by two different Constitution Benches, the issue is no longer res Integra. Itis therefore, pointed out that there cannot be any restriction with regard to the power conferred on the Chief Justice to make appointment of officers under Article 229(1) of the Constitution.
13. The first of those decisions is M. Gurumoorthy v. The Accountant General Assam and hlagaland and Ors. AIR 1971 SC 1850. The facts of the case show that therein, the Government by letter dated 6.8.1958 agreed to the proposed re-organisation of the Stenographers Service in the High Court with...
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