Holding

Consultation with the High Court is a mandatory constitutional requirement for any appointment, regularisation or promotion of a judicial officer to the legal service, and failure to obtain such consultation renders the appointment invalid.

Summary

Kuladhar Phukan, a judicial officer of the Assam Judicial Service, was appointed ad‑hoc as Deputy Secretary in the Assam Legal Service in 1986 after his application was forwarded by the High Court and his services were spared. He was later regularised and promoted in the Legal Service without any consultation with the High Court, contrary to Article 235 of the Constitution and Rule 7 of the Assam Legal Service Rules. The High Court recalled him to the judicial service, but he preferred to remain in the Legal Service. The High Court dismissed his writ petition; the Division Bench of the High Court later held his Legal Service appointment substantive and his lien in the judicial service terminated. The Supreme Court set aside the Division Bench’s legal findings, reiterating that consultation with the High Court is a mandatory constitutional requirement for any appointment, regularisation or promotion of a judicial officer to the legal service, and that mere forwarding of notifications does not satisfy it. The Court directed the State to decide within six weeks whether the officer can continue in the Legal Service (excluding the posts of Secretary (Judicial) and Legal Remembrancer) or, failing that, to repatriate him to the judicial service.

Issues considered

The appointment, regularisation and promotion of a judicial officer in the Assam Legal Service without consultation of the High Court under Article 235 are valid.
Whether the lien of a judicial officer in the judicial service terminates automatically upon appointment in the legal service without High Court consultation.
Whether sending copies of notifications to the High Court satisfies the constitutional requirement of consultation.
The correctness of the Division Bench’s legal findings on the above matters.

Legislation cited

Constitution of Indias. Article 234, s. Article 235

Subjects

Article 235judicial servicelegal serviceconsultationHigh Court controllienad‑hoc appointmentpromotionsubordinate judiciaryconstitutional lawservice law

Judgment

A GAUHATI HIGH COURT AND ANR.
v.
KULADHAR PHUKAN AND ANR.
-
MARCH 22, 2002

B [R.C. LAHOTI AND K.G. BALAKRISHNAN, JJ.]

Constitution of India, 1950, Article 235:

Control over subordinate courts-Control ofHigh Court and consultation
C with High Court-Scope and extent of-Word 'Control' used in comprehensive
sense and 'consulation' means meaningful, effective and conscious
consultation-Such control and consultation are not mere formalities.

'Consultation' with High Court-Requirement of-Sending copy of
D notification to High Court by the State Government after appointment-Whether
satisfies requirement of 'consultation '-Held, no-Further invalidity caused J(

by non-compliance with the mandatory constitutional requirement, cannot be
cured by sheer inaction on the part of one or both the functionaries.

/ Lien in service-Judicial officer appointed temporarily in State
E Government-Later regularised-No consultation with High Court-Whether
lien ofjudicial officer in judicial services automatically stood terminated on
his appointment in legal services-Held, in such a case lien in judicial service
does not get terminated

Assam Public Service (Ad-hoc) Appointment Rules, 1986/Assam Legal
p Service Rules, 1962-Rules 3(1)/Rule 7-Ad-hoc appointment-Judicial Officer
in state service-Previous Consultation with High Court-Requirement of-
Whether mandatory-Held, yes.

Respondent No.I was appointed as a judicial officer in Assam Judicial
Service Grade-III. After few years an advertisement was issued inviting
G applications for appointment for a post of Deputy Secretary in Grade III of
Assai,i Legal Service. Appointment was temporary and terminable without
notice on the post being filled up through the Assam Public Service
Commission (APSC) by way of regular recruitment Respondent No.I filed
application which was forwarded by the High Court of Assam and was
temporarily appointed. High Court spared his service for taking over new
H 808

)
GAUHATI HIGH COURT v. KULADHAR PHUKAN 809

- appointment. Then the notification of appointment was issued.

Later on respondent No.1 was confirmed. Thereafter applications were
A

invited for regular appointment on the post of Deputy Secretary. Respondent
No.1 also filed application but not through High Court. He was then selected
and was "regularized" as Deputy Secretary, Assam Legislative Department.
Notification was issued to this effect. Before or after regularization of the B
appointment of respondent No.1, there was no consultation by the
Government with the High Court.

Respondent No. I was promoted by High Court from Grade Ill to

.. Grade II of the Assam Judicial Service though he was allowed to continue in
the "present post" until further orders. Thereafter respondent No.I was
informed that he could exercise his option either to continue in the Assam
Legal Service or to revert to Assam Judicial Service. Respondent No.I neither
C

expressed his option nor gave any response.

Government of Assam then promoted respondent No.I "temporarily D
and until further orders" from the post of Deputy Secretary to Grade II of
the Assam Legal Service and notification was issued. Again there was no
consultation by the Government with the High Court before or even after
directing such promotion.

High Court decided to recall respondent No.I to his parent department E
and to post him as Assistant District and Sessi01is Judge. However, respondent
No. I desired for permanent absorption in the Assam Legal Service. He then
filed writ petition. Single Judge of High Court dismissed the writ petition
holding that respondent No. I was a member of Assam Judicial Service and
could not have been regularized or absorbed in Assam Legal Service without
consulting the High Court. Respondent No.I then filed a writ appeal. Division F
Bench allowed the same holding that the appointment of respondent No.1 in
Assam Legal Service was on substantive post and he could not have held lien
against two substantive posts. Hence the present appeal.

---<•
Disposing of the appeal, the Court
G
HELD: I. Article 235 of the Constitution 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
tlleir posting and promotion are subject to the control of the High Court Once
a person has entered the judicial service, he cannot depart therefrom save H
810 SUPREME COURT REPORTS (2002] 2 S.C.R.

A by the leave of the High Court 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 by consulation with the High Court. The
B consultation the mandatory and the opinion of the High Court in binding on
the State Government; else the control, as contemplated by Article 235, would
be rendered negated. Such control and consulation are not a matter of mere
formality; they are the constitutional power and privilege of the High Court,
also its obligation, and cannot be diluted by sheer inaction of failing to act
C when the High Court must act The Governor cannot proceed to act in any
matter relating to subordinate judiciary and bypass the process of consultation
merely because the High Court, though 'informed', did not act or respond.
The consultation here means meaningful, effective and conscious consultation.
[818-B-E]

D Te} Pal Singh v. State of UP. and Anr., (1986] 3 SCC 604, relied on.

State of Orissa v. Sudhansu Sekhar Misra and Ors., (1968) 2 SCR 154;
State ofBihar and Anr. v. Bal Mukund Shah and Ors., [2000] 4 SCC 640; Madan
Mohan Choudhary v. State of Bihar and Ors., [1999] 3 SCC 396; ChiefJustice r
E ofAndhra Pradesh and Anr. etc. v. L. V.A. Dikshitulu and Ors., etc., [1979] 2 SCC
34 and The State of West Bengal and Anr. v. Nripendra Nath Bagchi, [1966] 1
SCR 771, referred to.

2.1. An ad-hoc appointment required to be made 'immediately' in the
public interest may be made dispensing with reference to the Public Service
F 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 which has been
sanctioned for, or is likely to last for more then four months, has to be filled
up by making appointment on regular basis in consultation with the Public
G Service Commission. If the person chosen for such appointment is a judicial
officer, he cannot be appointed without consulting the High Court, such
consulation being mandatorily required by Rule 7. The provision for -
consultation in the rule brings it in conformity with the Constitution.
[821-B-D]

H 2.2. Respondent No. 1 was appointed as Deputy Secretary in Assam
GAUHATI HI.OH COURT v. KULADHAR PHUKAN 811

Legal Service Grade-III on temporary and ad-hoc basis to satisfy the A
immediate need of the State Government. For that purpose the application
by respondent No. 1 was forwarded by the High Court and his services were
also spared for taking over the new assignment. However, while seeking an
appointment on regular basis as Deputy Secretary, Respondent No. 1 and the
State Government gave a complete go-by to the constitutional requirement
of consulation. Similarly while promoting respondent No. 1 from Grade-III B
to Grade II of Assam Legal Service and appointing him as Joint Secretary
and Legal Remembrancer, the High Court was not consulted. Merely because
the State Government sent a copy of its notifications to the High Court, the
requirement of consultation cannot be said to have been satisfied. An invalidity
caused by failure to comply with mandatory constitutional require~ent. Such C
as of consulation, cannot be cured by sheer inaction on the part of one or
both of the functionaries between whom the requirement was to be fulfilled
or by mere lapse of time. 1821-D, E, F, G, HJ

2.3. There is no merit in the plea that the service of respondent No. I
stood absorbed in the Assam Legal Services and the High Court could not D
have recalled the first respondents deputation and that the lien of respondent
No. 1 in the State Judicial Services has come to an end and he had acquired
a lien in Assam Legal Service. The Division Bench of the High Court was
unnecessarily influenced by the factum of the High Court having recalled its
notification posting respondent No.I as judicial officer ignoring the reason E
behind recalling the notification. This notification had to be recalled as it was
not carried out and required to be recalled so as to issue another notification
filling up judicial office lying vacant. So also the Division Bench ignored the
impact of constitutional provision while forming an opinion that the lien of
respondent No.1 in judicial service stood automatically terminated as the
appointment of respondent No.I to legal service, whilst he was a member of F
judicial service, was made without consultation with the High Court and hence
was invalid. The question of respondent No.1 acquiring of a lien in legal service
and the lien the judicial service being terminated did not arise. Therefore,
the judgment of the Division Bench cannot be sustained and is liable to be set
aside. (822-E-H; 823-A) G
2.4. The State Government shall take a decision as to whether
'Respondent No.I could be posted in an officer other than that of Secretary
(Judicial) and Legal Remembrancer in which case be may continue in Assam
Legal Service and need not be repatriated; in case such a decision is not taken
within 6 weeks then respondent No.I should be repatriated to the High Court H
812 SUPREME COURT REPORTS [2002] 2 S.C.R.

A as a member of judicial service. [824-C-D]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2337 of
2002.

From the Judgment and Order dated 2.6.2000 of the Gauhati High
B Court in W.A. No. 177 of 1996.
Vijay Hansaria, Sunil Kumar Jain for MIS. Jain Hansaria and for the
Appellant.

P.K. Goswami, R. Rahim and Rajiv Mehta for the Respondents No. 2
c Ms. Asha G. Nair, V.K. Sidatharan and Ms. Krishna Sarma for Mis.
Corporate Law Group for State of Assam

The .Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted.
D
On 2.7.1977, Kuladhar Phukan, the respondent No.I , was appointed as
a judicial officer in Assam Judicial Services Grade-III and on 5.7 .1977, he
was posted as Judicial Magistrate Second Class at Tinsukia. On 27.2.1986,
the Government of Assam, Judicial Department : Judicial Branch made an
E advertisement inviting applications for appointment for a post of Deputy
Secretary in Grade III of Assam Legal Servke. Such appointment was to be
made under Regulation 3(e) of APSC (Limitation of Function) Regulations,
1951 to meet the immediate need. The appointment was temporary and
terminable without notice on the post being filled up through the Assam
Public Service Commission (APSC) by way of regular recruitment. The field
F of recruitment was advocates or pleaders with five years practice or judicial
officers with five years standing. The respondent No. I 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
G the officer immediately so as to enable him to join the new assignm~nt; to
the respondent No. I 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
-H to advertise the post immediately and send its recommendation to the
GAUHATIHIGHCOURT v.KULADHARPHUKAN [R.C.LAHOTl,l.] 813

Government as early as possible. A
On 29.7.1986, the High Court directed the respondent No.I 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. I were being placed at the disposal of the Government
of Assam consistently with the appointment made. On 11.9.1986, the B
respondent No. I was confirmed in Assam Judicial Service Grade III. His
relative seniority was determined in Grade II of Assam Judicial Service and
he was placed on probation in Grade II.

Thus, all went well. The seeds of controversy were sown when the
Government of Assam, Judicial Department : Judicial Branch invited C
applications for regular appointment on the post of Deputy Secretary, in
response to which, the respondent No. I also made an application. He was
selected by Assam Public Service Commission and pursuant to the
recommendation made by the Commission, the Government of Assam
"regularized" the appointment of respondent No. I as Deputy Secretary to the
Government of Assam, Legislative Department. A notification to this effect D
was issued on 10.9.1987 ·copy whereof was sent to the Registrar (Judicial),
Gauhati High Court, Gauhati. We may hast•en to add here itself that it is not
disputed that for seeking regular appointrn•ent the respondent No. I did not
have his application forwarded. by the High Court to the Commission or the
Government. Before or after regularization of the appointment of respondent E
No.I, there was no consultation by the Government with the High Court. We
will revert back to details of this aspect of the matter a little later.

On 11.9.1986 the High Court notified seniority list of judicial officers
in Assam Judicial Service Grade III. The respondent no. I had some grievance
about the place to which he was assigned in the seniority list. On 24.6.1988 F
he made a representation to the High Cou:ct wherein he stated, inter alia,
"basically I was and still am a judicial officer in the Grad~ Ill of the Assam
Judicial Service'', "I was appointed regularly and permanently" in judicial
service, and that failure "to confirm our servi.:e and fix our inter se seniority"
in the service violated principles of natural justice and Articles 14, 16 and
311 of the Constitution. He prayed for re-consideration and re-fixation of his G
confirmation and seniority in the judicial service. On 7.4.1992, the respondent
no. I was amongst six judicial officers who were promoted by the High Court
from Grade III to Grade II of the Assam Judicial Service though he and one '
other were allowed to continue in their "present post" until further orders. On
9.4.1992 the respondent no. I was informed that in view of such promotion H
814 SUPREME COURT REPORTS (2002) 2 S.C.R.

A and having been allowed to continue in his "present assignment for the time-
being" then held by hµn 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. I neither expressed his option nor gave any
response to the High Court.

B On I9.8.I992 the Government of Assam promoted the respondent no.I
"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 )-.....
C 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.I995 the High Court informed
the Government of Assam, and the respondent no. I, of its decision to recall
D the respondent no. I to his parent department and that a suitable substitute in
place of respondent no. I 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 respondent no. I at the disposal of
the High Court so that the officer could be repatriated and be posted as
Assistant District and Sessions Judge, North Lakhimpur on or before 24.4.1995.
E On I 0.4.1995 the High Court notified the posting of respondent no. I as
Assistant District and Sessions Judge, Lakhimpur. On 26.4. I 995 the respondent
no. I sent a communication to the Registrar (Judicial), Gauhati High Court
wherein, for the first time, he stated that he was a direct recruit in the Assam
Legal Service through the Assam Public Service Commission and that he had ~
F expressed his desire indicating his option for permanent absorption in the ...-
Assam Legal Service. It was further stated that it was expected that his
service in the Assam Legal Service would be confirmed as Hon'ble Minister
(Law etc.) had ordered for such confirmation. He requested for his posting
as Judicial Officer at North Lakhimpur being cancelled. On 20.3 .1996 the
Government of Assam notified the services of respondent no.1 being placed
G at the disposal of the Gauhati High Court. By yet anotfl.er notification of the
same date the Government of Assam released the respondent no. I from the
post of Joint Legal Remembrancer and Joint Secretary so that he could join
as Assistant District and Sessions Judge, Lakhimpur pursuant to the notification
of the High Court.

H It appears that from the date of the abovesaid two notifications dated
GAUHATI HIGH COURT v. KULADHAR PHVKAN (R.C. LAHOTI, J.) 815

~ 20.3.1996 the respondent no.I was on leave. On 26.3.1996 the respondent A
t'.o. l filed a writ petition in the High Court laying challenge to the notification
' dated 10.4.1995 issued by the High Court and the !wo notifications dated
20.3.1996 issued by the State Government. A learned Single Judge of the
High Court admitted the writ petition for hearing and stayed the impugned
notifications. On 6.5.1996 the learned Single Judge dismissed the writ petition
filed by respondent no. I holding that the respondent no. I was a.member of B
Assam Judicial Service and could npt have been regularized or absorbed in
Assam Legal Service without consultation with the High Court. On 17.5.1996
the respondent no.1 preferred a writ appeal. A Division Bench of the High
Court stayed the judgment of the learned Single Judge. On 17 .9 .1996 the
High Court recalled its notification dated 10.4.1995 as the respondent no.] c
had not assumed charge of the post and the same was lying vacant. On
2.6.1998 the Government of Assam 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 D
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. 7.198'6 and his lien in the judicial service automatically stands terminated
by operation of law with effect from 18.7.1986". E
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. I does not wish to be repatriated to :F
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 respondent no. I where he is. We were informed
that the High Court was not so very serious about the respondent no. I being
brought back to the judicial services the right place to which he belongs and G
--..
ought to be, but the High Court was certainly concerned about its stand being
vindicated for preserving the independence of judiciary and the sanctity of
Article 235 of the Constitution being maintained. It was also submitted by
the learned counsel for the High Court that the impugned judgment of the
Division Bench if sustained would create serious and anomalous situations H
816 SUPREME COURT REPORTS [2002] 2 S.C.R.

A where the judicial officers sent on deputation to various Government
departments or whose services are temporarily .loaned and placed at the disposal
of employers other than the High Court in the interest of public convenience
and better public administration may in future claim having been absorbed at
such other places without the consent of the High Court and without the High
Court having been consulted which would create a chaotic situation. We
B appreciate the concern of the High Court and a fair stand taken by it, and
therefore, proceed to decide the matter on merits.

Before we may embark upon the principal issue for determination it
would be appropriate to place on record the stand taken by the Government ·
C of Assam. In the writ petition filed by the respondent no. I, the High Court
filed a counter-affidavit disputing correctness of the stand taken by the
respoq,dent no. I but the State Government did not choose to file any counter-
affidavit. Instead written arguments were filed wherein very clearly and
categorically the stand taken by the State Government is that the appointment
of respondent no. I in Assam Legal Services on the post of Deputy Secretary
D as also on the post of Joint Legal Remembrancer and Joint Secretary, Judicial
Df.'.partment was temporary and until further orders i.e. a purely temporary
artangement. It was "absolutely untrue" that the respondent no. I was confirmed
as a regular member of the Assam Legal Service. The conduct of the
respondent no. I was commented upon by alleging that the respondent no. I
E was managing to get the best of both the worlds. Placing reliance on the
decision of this Court in State of Orissa v. Sudhansu Sekhar Misra and Ors.,
[ 1968] 2 SCR 154, the State Government contended that the respondent no. I
was a member of Assam Judicial Service and his services 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. I and post him as Presiding
F Officer of a District Court. The State Government endorsed the act of the
High Court as "unassailable" as the lien of respondent no. I 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. I had not
applied to the APSC with the permission of and under intimation to the High
G 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
3.11.200 I the State of Assam has stated that the respondent no. I was a direct
H recruit to the Assam Legal Service, on &.• regular basis and with the consent
.,

\
GAUHATI HIGH COURT v.,~ULADHAR PHUKAN [R.C. LAHOTI, J.] 817

of the Gauhati High Court. On 28.8.1998 on his confirmation in Assam Legal A
Service Grade II, his lien in Assam ~udicial Service stood automatically
terminated by operation of law. Strangely enough the Government of Assam
now proceeds to deny that the consultation with the High Court for the
appointment of respondent no. I in the Assam Legal Service was necessary.
Here itself we may state that during the course of hearing we had asked the B
learned counsel for the parties that if consultation with the High Court was
necessary, and if so, then how and in what manner the requirement of
consultation was satisfied? Both the learned counsel very fairly stated that
the requirement of consultation could not be dispensed with. However, the
requirement was satisfied, submitted the learned counsel for respondents No.I
and No.2, inasmuch as every step taken by the respondent no. I or by C
respondent no.2 was brought to the notice of the High Court and the High
Court although having knowledge of all the developments in the service
career of the respondent no. I whilst in Assam Legal Service and yet never
objected or reacted to the continuance of the respondent no. I in Assam Legal
Service and also on his being promoted from Grade III to Grade II in Assam
Legal Service never objected, much less protested, to what was being done. D
The inference which necessarily follows is that the High Court was agreeable
to such continuance and promotion which satisfies the requirement of
consultation. We will examine the validity of this -contention a little later.

Article 235 of the Constitution provides:
E
"235. Control over subordinate courts. The control over district courts
and courts subordinate thereto including the posting and promotion
... of, and the grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district judge
shall be vested in the High Court, but noihing in this article shall be F
construed as taking away from any such person any right of appeal
which he may have under the law regidating the conditions of his
service or as authorizing the High Court to deal with him otherwise
than in accordance with the conditions of his service prescribed under
such law."
The doctrine of separation of powers and the need for having an G
independent judiciary as a bulwark of constitutional democracy persuaded
the founding fathers of Constitution assigning a place of distinction to judiciary.
Chapter VI of the Constitution dealing with subordinate courts seeks to achieve
the avowed object of insulating even the subordinate judiciary from the
influence of the executive and the legislature. Article 234 provides for H
818 SUPREME COURT REPORTS (2002] 2 S.C.R.

A 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
B incumbents in subordinate judiciary including their posting and promotion
are s!Wject 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
C 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 by consultation with the High
Court. The consultation is mandatory and the opinion of the High Court is
binding on the State Government; else the control, as contemplated by Article
D 235, would be rendered negated. Such control and consultation are not a
matter of mere formality; they are the constitutional power and privilege of
the High Court, also its obligation, and cannot be diluted by sheer inaction
or failing to act when the High Court must act. The Governor cannot proceed
to act in any matter relating to subordinate judiciary and bypass the process
E of consultation merely because the High Court, though 'informed', did not
act or respond. The consultation here means meaningful, effective and
conscious consultation. In Tej Pal Singh v. State of UP. and Anr., [1986) 3
sec 604, it was held that in a matter affecting the service career of a judicial
officer ordinarily the initiative for an action must come from the High Court ,,,.,.
and even otherwise in the absence of recommendation of the High Court an ~
F action taken by the Governor would be illegal and devoid of constitutional
validity. Such error, if committed, would be incurable and even an ex-post
facto approval would not cure the invalidity.
In The State of Orissa v. Sudhansu Sekhar Misra and Ors., (supra), it
was held that the High Cotirt is made by the Constitution the sole custodian
G of the control of the judiciary. It will be useful to extract and reproduce the
following passage from the judgment of the Constitution Bench (at pp. 163-
164):-
"While sparing the service of any judicial officer to the government
it is open to the High Court to fix the period during which he may
H hold any executive post. At the end of that period, the government is
GAUHATI HIGH COURT v. KULADHAR l'HUKAN [R.C LAH UT I J] 8 l 9

bound to allow him to go back to his parent department unkss the A
High Court agrees to spare his services for some more time. In other
words, the period during which a judicial officer should serve in an
executive post must be settled by agreement between the High Court
and the government. If there is no such agreement it is open to the.
government to send him back to his parent department at any time it
pleases. It is equally open to the High Court to recall him whenever B
it thinks fit. If only there is mutual understanding and appreciation of
the difficulties of the one by the other, there will be harmony. There
is no reason why there should be any conflict 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 C
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 tum, 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 D
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 E
in a spirit of service."

In State of Bihar and Anr. v. Bal Mukund Sah and 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 Constitution which cannot be tinkered with by F
anyone. Any rules framed affecting the service structure of judicial services
must be preceded by consultation with the High Court else it results in
truncating the powers of High Court playing a vital role in preserving the
independence of judiciary. Even rules framed by the Governor under Article
234 read with Article 309 proviso must satisfy the requirement of consultation G
with the High Court which cannot be given a go-by. In Madan Mohan
Choudhary v. State of Bihar and Ors., [1999] 3 SCC 396, this Court has held
that the three words, namely, 'posting', 'promotion' and 'grant of leave' used
in Article 235 of the Constitution are only illustrative in character and do not
limit the extent of control exercised by the High Court over the officers of
the subordinate judiciary. In Chief Justice of Andhra Pradesh and Anr. etc. H
820 SUPREME COURT REPORTS (2002) 2 S.C.R.

A v. L. V.A. Dikshitulu and Ors. etc., (1979] 2 SCC 34, the Constitution Bench
clarified_ the meaning of, the expression 'control' over District Courts and
Courts. subordinate thereto 'vesting' in the High Court and clearly stated that,
amongst others, tr·ansfers and promotions and confirmation of such promotions
of persons -holding posts in _the judicial service, transfers of District Judges
and recall of District Judges posted on ex-cadre posts or on deputation on
B administrative posts vests in the High Court. Constitution Bench decision in
The State of West Bengal and Anr. v. Nripendra Nath Bagchi, (1966] I SCR
771 and in State of Orissa v. Sudhansu Sekhar Misra and Ors., (supra), also
took the same view.

C Rule 3(1) of Assam Public Service (Ad-hoc) Appointment Rules, 1986,
and Rule 7 of Assam Legal Service Rules, 1962, which are relevant for our
purpose, provide as under:-

Rule 3(1) abovesaid :

"Ad hoc appointment- (!)Notwithstanding anything contained in any
D Service Rules, ad hoc appointment by direct recruitment to a temporary
post created under the government may be made, if it is necessary in ..
the public interest that the appointment should be made immediately
and reference to the commission would cause undue delay:

Provided that if the post has been sanctioned for or is likely to last
E for more than four months, the commission shall, as soon as possible,
be consulted for making the appointment on regular basis, as provided
for in clause (c) of sub-rule (2) of this rule.

Rule 7 abovesaid :

F 7. Selection of Candidates -

(I) 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

G
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.*

H (2) It shall not be necessary for the Governor to consult the Public
GAUHATIHIGH COURT v. KULADHAR PHUKAN [R.C. LAHOTI, J.] 821

Service Commission for filling up the posts in Grade-I and Grade-ll A
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).
B
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 which has been
sanctioned for, or is likely to last for, more than four months, has to be filled C
up by making appointment on regular basis in consultation with the Public
Service Commission. If the person chosen for such appointment is a judicial
officer, he cannot be appointed witbout consulting the High Court, such
consultation being mandatorily required by Rule 7. The provision for
;... consultation in the rule brings it in conformity with the Constitution. D
The appointment of respondent No. I as Deputy Secretary in Assam
Legal Service Grade-III was made initially on temporary and ad-hoc basis to
satisfy the immediate need of the State Government. For that purpose the

- application by respondent No. I seeking such appointment was forwarded by
the High Court and his services were also spared for taking over the new E
assignment. However, thereafter the respondent No. I and the State Government
gave a complete go-by to the constitutional requirement of consultation. While
seeking an appointment on regular basis as Deputy Secretary, neither the
respondent No. I felt the need of having his application forwarded by the
High Court nor did the Government feel the need of 'consulting' the High
Court, though mandatorily required by the Constitution as also by Rule 7 F
above quoted. Similarly while promoting the responderit'No. l from Grade-
\ III to Grade-II of Assam Legal Service and appointing him a:s Joint Secretary
and Legal Remembrancer, the High Court was_not consulted. Merely because
the State Government sent a copy of its notifications to the High Court, the
requirement of consultation cannot be said to have been satisfied. Neither it G
was initiated by the State Government nor did the fiigh Court exercise, avail
or discharge its power, privilege and obligation of consultation. An invalidity
caused by failure to comply with-mandatory constitutional requirement, such
-· as of consultation, cannot be cured by sheer inaction on the part of one or
both of the functionaries between whom the requirement was to be fulfilled
or by mere lapse of time. H
822 SUPREME COURT REPORTS [2002] 2 S.C.R.

.A In almost all the States and Union Territories in the country services
of judicial officers are loaned by High Courts to the governments for being
utilized in litigation, judicial, law and legislative affairs departments of
governments, by whatever name the departments may be called. The Secretary
-
(Law) or a Legal Remembrancer serving under the government though a
judicial officer whose services have been placed at the disposal of the
B 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
C 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
'D 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.

E We are, therefore, clearly of the opinion that there is no merit in the
plea that the service of the respondent No. I stood absorbed in the Assam
Legal Services and the High Court could not have recalled the respondent
-·
No.l's deputation. Equally meritless is the plea that the lien of respondent
No. I in the State Judicial Services has come to an end and he had acquired
a lien in Assam Legal Service. The Division Bench of the High Court was
F unnecessarily influenced by the factum of the High Court having recalled on
17.9.1996 its notification dated 10.4.1995 ignoring the reason behind recalling
the notification. The. notification, posting the respondent No. I as a judicial
officer, had to be recalled as it was not carried out and required to be recalled
so as to issue another notification filling up judicial office lying vacant. So
G also the Division Bench ignored the impact of constitutio11al provision while
forming an opinion that the lien of respondent No. l in judicial service stood
- "
automatically terminated as the appointment of respondent No. I to legal
service, whilst he was a member of judicial service, was made without
consultation with the High Court and hence was invalid. The question of
respondent No. l acquiring a lien in legal service and the lien in judicial
H service being terminated did not arise. The judgment of the Division Bench
GAUHATl HIGH COURT v. KULADllAR PHUKAN [R.C. LAHOTI, J.j 823

of the High Court cannot be sustained and is liable to be set aside. A
The constitutional and legal position having been set at rest, the question
which still remains to be dec~ded is as to the manner in which the relief
should be constructed in the peculiar facts and circumstances of this case. As
noted earlier in this judgment, the learned counsel for the appellants made it
very clear during the course of hearing that Gauhati High Court has not B
approached this Court as a litigant and the High Court was also not interested
so much in the respondent No. I being brought back to the fold of the judicial
services as was its purpose to vindicate the correct position of law and service
jurisprudence concerning members of judicial services. That has been done.
The learned counsel for the respondent No. I submitted that ever since 1986, C
i.e. for a period of little less than 16 years by this time, he has remained
posted in legal service of the State and now he is nearing the end of his
service career in view of just a few years having been left for his retirement.
It was submitted at the end by the learned counsel for respondent No. I that
the respondent No. I 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 D
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 soil
from Gauhati to elsewhere except at grave risk to the health of his son. The E
learned counsel for the appellants made a statement under instructions that in
the event of the respondent No. I being brought back to judicial service the
High Court would take a sympathetic and humane view of the problem of the
respondent No. I and he would be posted at a station wherefron: 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 F
respondent No. I continuing in legal service and even on being treated as
absorbed therein but subject to reservation that he was not posted either as
Judicial Secretary or as Legal Remembrancer because that may cause some
embarrassment to the High Court. The learned counsel for the State of Assam
made a statement under instructions that if the respondent No. I was allowed G
to be retained in State Legal Services, he would not be posted as Judicial
Secretary. Whether the State was agreeable to not to post him as a Legal
Remembrancer also, the learned counsel for the State sought for time for
having instructions and later reported that she had not received any instructions
and, therefore, was not in a position to give any assurance to the High Court
or make any statement eitherway before this Court. That being the position H
824 SUPREME COURT REPORTS [2002] 2 S.C.R.

A and keeping in view the triple factors: (i) that the respondent No. l has been
away from the main judicial stream and discharged executive functions only
for a period of more than I 5 years, (ii) that a marginal number of years is
left for the retirement of respondent No. I, and (iii) that his son has a serious
neurological problem which can be better taken care of by his continuance
in legal services and consequently continued stay at Gauhati, we dispose of
B the appeal in terms of the following directions:-

(1) The judgment of the Division Bench of the High Court is set
aside insofar as findings on questions of law are concerned;
(2) Within a period of six weeks from today, the State of Assam shall
c take a decision if the respondent No. I can be posted in an office
other than that of Secretary (Judicial) and Legal Remembrancer
in which case he shall continue in Assam Legal Service and need
not be repatriated;
-
(3) If the abovesaid direction cannot be carried out then at the end of
D six weeks the respondent No. l shall be repatriated to the High
Court as a member of judicial service and he shall be given a
posting accordingly and consistently with the assurance given on
behalf of the High Court.

The appeal stands disposed of in the abovesaid terms without any order
E as to the costs.

N.J. Appeal disposed of.

•·