(1) The dispute in this case is if I may say so domestic as the contestants are all members of the staff of this High Court.
(2) Prior to the 1st November 1956 there were in existence two States being the previous State of Punjab and the State of Pepsu. There was a High Court in Pepsu. By the States Reorganisation Act, 1956, the two States were merged to form the present state of Punjab and the Pepsu High Court an were absorbed here. A question arose at the time as to how the integration of the tow staffs was to be effected, The Punjab State had framed certain integration rules and the Chief Justice of the Punjab High Court adopted most of those rules with certain modification and ordered integration to be made accordingly. A joint list was then prepared indicating the inter e seniority of the members of the joint staff. Speaking generally it appears that the officials who has come from the Pepsu High Court were not fully satisfied and a large number of representations were made to the Chief Justice. Those were considered and decided. Representations however continued to be made and the staff of the previous Pepsu High Court desired that their representations under Ss. 115 and 117 of the States Reorganisation Act, 1956. This request was at first declined but subsequently in November, 1962, the Chief Justice of this Court obtained the opinion of three Judges on the administrative side in order to ascertain whether the Central Government has no jurisdiction but of course nothing was decided judicially. The Chief Justice considered this matter and he finally decided that the representations made by the previous Pepsu employees might be set to Government without any comment or commitment. Those representations therefore went to the Central Government and the Central Government took a view which disturbed the previous decision made by the Chief Justice. Those view-of the Central Government were communicated to the Chief Justice through the Punjab State and the Chief Justice made a direction that a view seniority list of the entries staff should be prepared conforming to the decision of the Central Government. It is against that decision that the present writ petition under art. 226 of the Constitution has been brought on behalf of 77 members of staff of the High Court as it was before the merger and who can conveniently be called 'Punjab employees' as against a set of respondent who were previously employed in the Pepsu High Court and can conveniently be called 'Pepsu employees'. When the petition was filed the only respondent were the Union of India the State of Punjab and the Chief Justice of this Court along with the Registrar but later on at the instance of the 'Pepsu employees' they were quite properly joined in the writ petition and now figure as the 5th respondent.
(3) The writ petition says in substance that the only constitutional authority competence to make any decision concerning the staff of this High Court is the Chief Justice and no outside authority has any legal power to interfere with his decision and the decision of the Central Government therefore touching the servants of the High Court, is entirely illegal and cannot be given effect to. I have said that that is the substance of the petition because in its form some difficulty has arisen to which I will presently refer. The claim made in the prayer clause is that a writ should issue to the Chief Justice and to the Registrar of this Court not to give effect to the directions of the Central Government issued under S. 117 of the States Reorganisation Act and that the decisions previously made by the Chief Justice should be enforced. There are then certain ancillary prayers which are not material.
(4) In answer to this writ-petition the Union of India have appeared through their counsel and the 'Pepsu employees' are represented through another counsel while the learned Advocate General has appeared on behalf of the state of Punjab as well as the Chief Justice of this Court.
(5) On behalf of the Union of India on objection taken is that the new seniority list in suppression of the previous seniority list is being prepared under the order of the Chief Justice dated 31st August, 1964, but that order is to being impugned and no prayer is made for quashing that order and in the Circumstances the present petitioners is futile. Alternatively, it is claimed on behalf of the Central Government that they had authority to consider the representations made by the 'Pepsu employees' and to issue direction under the States Reorganisation Act under Ss. 115 and 117.
(6) On behalf of the 'Pepsu employees' stand taken is that under the provisions of the State Reorganisation Act the Central Government is the final authority for the integration's State servants including High Court servants and the Central Government was therefore competent to make the directions now being impugned. Apart from this the learned Advocate general contends and this he does not only on behalf of the Punjab state but also for the Chief Justice of this Court that as a matter of fact the decision which is intended to be implemented now is the decision of the Chief Justice made on the 31st August, 1964, and to that no objection is being taken or can be taken on the case set up on behalf of the petitioners. What is said by the learned Advocate General is that apart form the question whether the Central Government had or did not have authority to make any binding decision concerning the staff of this High Court the actual decisions and the only decisions which is going to be implemented is the decisions of the Chief Justice and since no objection can be taken to the authority of the Chief Justice there is no point in the present petition. We are, therefore, faced with two questions-
(1) Is the Chief Justice of this Court the sole authority to decide a dispute like the present and the Central Government in spite of the States Reorganisation Act 1956 has no authority to make any decision concerning the integration of the staff of the High Court?
(2) Whether the decision settling the inter seniority of the staff is the decision of the Chief Justice of this Court dated the 31st August, 1964, and being his decision it cannot be questioned?
(7) Article 229 of the Constitution empowers the Chief Justice of a High Court to make appointments of officers an servants of that High Court and also to prescribe their conditions of service. This power is to be exercised by the Chief Justice himself or by any other Judge or officer nominated by him. it is common ground that the real object behind the constitutional provision is speaking generally the completed independence of a High Court from outside interference. As observed in a recent decision of this Court, Kidar Nath v. Punjab Government, ILR (1964) 1 Punj 377: (AIR 1964 Punj 285),
'the intention of the framers of the Constitution when they declared and provided in Article 229 that appointments of officers and servants of a High Court shall be made by the Chief Justice or such other Judge or officer of the Co as he may direct was to secure and maintain the independence of the High Courts which was the sine qua non for establishing and working an essentially and highly developed democratic form of Government in this country.'
It is on this principle that considerable stress is laid by Mr. Bhagirath Dass in support of the present petition. He admits of course that this power under Article 229 of the Constitution which is in ordinary Circumstances immune for interference by any out-side authority can be made the subject of legislation by Parliament under Article 3 of the Constitution, as Article 4 provides that nay law made under Article 3, Article 4 provides that any law made under Article 3 which concerns the reorganization of States can make 'such supplemental, incidental and consequential provisions ' as Parliament may deem necessary. It is not denied therefore that the States Reorganisation Act, 1956, which was a measure undertaken under Article 3 of the Constitution could legitimately make provisions which would override to some extend the power of the Chief Justice under Article 229 of the Constitution. The question is whether the States Reorganisation Act has done so and when Mr. Bhagirath Dass invokes the high principle that the independence of the High Court is desired always to be maintained, by the constitution, he relies on it not to say that the States Reorganisation Act could not have interfered with Article 229 of the Constitution but that it was highly unlikely that Parliament shout have wished to so. It is this background that the provision of the States Reorganisation Act have to be viewed. Part X of the Act deals with services and leaving S. 114 which is in the first section in that part and which is not very material to the present controversy we come to S. 115 sub-s (1) which says:
'(1) Every person who immediately before the appointed day is serving in connection with the affairs of the union under the administrative control of the Lieutenant-Governor of Chief Commissioner in any of the existing states of Ajmer, Bhopal, Coorg, Kutch and Vindhya Pradesh or is serving in connection with the affairs of any of the existing States of Mysore, Punjab, Patiala and East Punjab States Union and Saurashtra shall form the at day be deemed to have been allotted to serve in connection with the affairs of the successor State to that existing State.
(2) * * * * *
The employees of the Pepsu High Court were undoubtedly serving in the State of Patiala and East Punjab states Union and we are bound to hold in view of the Supreme Court decision in Pradyat kumar Bose v, Chief Justice of Calcutta High Court, (S) AIR 1956 SC 285 that those servants of the Pepsu High Court were 'serving in connection with the affairs of the State of Pepsu'. Similarly the servants of the Punjab High Court prior to the 1st November, 1956, were serving in connection with the affairs of the Punjab Stated. By virtue of S. 115 both these sets of servants stood allotted to the new state of Punjab which came into being on the 1st November, 1956. So far there is no difficult and no real controversy between the parties. Leaving the sub-ss. (2), (3) and 94) of S. 115 which are not very material we come to sub-s (5) and that says:
'(5) The Central Government may be order establish one or more Advisory Committees for the purpose of assisting it is regard to:
(a) the division and integration of the services among the new States and the States of Andhra Pradesh and Madras; and
(b) the ensuring of fair and equitable treatment to all persons affected by the provisions of this section and the proper consideration of any representations made by such persons.'
Sub-section (6) exempts form these provisions the case of persons covered by S. 114 and that is not material and then comes sub-s. (7) in these words:
'(7) Nothing in this section shall be deemed to affect after the appointed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the Union or any State:
Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-s. (1) or sub-s (2) shall not be varies to his disadvantages except with the previous approval of the Central Government.'
(8) The main controversy centers round the meaning of sub-s (5). Mr. Bhagirath Dass maintains that the Central Government when establishing Advisory Committees for the integration of the services among the new States and for considering representations made by service personnel, does not deal with servants of any High Court. The respondent say that the servants of the High Court are included. Before considering the merits of the contentions it is useful to refer S. 116 which runs:
'(1) Every person who immediately before the appointed day is holding or discharging the duties of any post or office in connection with the affairs of the Union of an existing State in any area which on that day falls within another existing State or a new Part A State or a Part C State shall except where by virtue or in a consequence of the provisions of this Act such post or office ceases to exist on that day continue to hold the same post or office in the other existing State or new Part A State or Part C State in which such area in included on that day and shall be deemed as form that day to have been duly appointed to such poster office by the Government of or other appropriate authority in such State or by the Central Government or other appropriate authority in such Part C State as the case may be.
(2) * * * * *
This is followed by S. 117 in these terms-
'The Central Government may at any time before or after the appointed day give such directions to any State Government as may appear to it to be necessary for the purpose of giving effect to the foregoing provisions of this Part and the State Government shall comply with such directions.'
(9) The learned Advocate General argues that if sub-s (1) of S. 115 refers to includes High Court employees then it is unreasonable to think that the subsequent sub-sections do not include such employees as the subject dealt with according to him would be the same. Mr. Bhagirath Dass however contends that since certain High Court like the contends that since certain High Court like the Pepsu High Court were abolished and something had necessarily to be done about the servants of those High Court a general provisions was necessary for them, and therefore, sub-s (1) of S. 115 speaks of persons serving in connections with the affairs of the existing State so that such employees may stand allotted to the new State, but that noting else was necessary as far as High Court employees were concerned and there is no reason therefore to think that sub-s (5) also includes high Court employees. On the other hand he says such an implication would cut deeply into the principle of independence of High Court and that is not to be lightly inferred.
(10) no decided case dealing exactly with this matter has been brought to our notice. There are however in my opinion two brad clues to be found in the provisions of the States Reorganisation Act which support Mr. Bhagirath Dass's view. the first it will be observed that sub-s (5) authorises the Central Government to set up Advisory Committees for the purpose of assisting it in regard to the division and integration of services and for the purpose of considering and disposing of representations made by those affected by the division and integration so as to ensure equitable treatment to all. Sub-section (7) then says that this authority under the Union and the States'. Article 309 is particular in point here; for that Article authorises the appropriate Legislature to lay down conditions of service of persons in public services or holding posts in connection with the affairs of the Union or any State and then follows a proviso which is important making it competent for the President and in the case of the States present for the President and in the case of tastes the Governor 'to make rules regulating the recruitment and the conditions of service pending of course the framing of law if any by the appropriate Legislature'. It is power of the appropriate authority such as the Governor to make rules that is being preserved by sub-s (7) of S. 115 of the States Reorganisation Act. The object of this sub-sections plain enough and it is just because Parliament has authorised the Central Government to deal with certain matters concerning to the services it does not mean that such power is to go on for ever overriding the power of the Governor under Art. 309. Sub-s (7) therefore as that after appointed day the provision of Chap I of Part XIV of the Constitution will continue to operate. The significant fact is that all mention of Art. 229 is omitted. Assuming for a moment that Parliament was in sub-s (5) providing for each and every service including the servants of the High Court it is surprising that when 'saving the normal powers of the appropriate authorities by sub-s (7) Parliament did not think of the normal seems to me that no thought was given to Art. 229 of the Constitution when enacting sub-s. (7) because nothing regarding the High Court employees was enacted in sub-s. (5). Under S. 117 the Central Government is authorised to give directions to the State Government in order to have its decisions implemented but no mention is made of any decisions implemented but no mentioned is made of nay direction to the High Courts. The learned Advocate General says that the High Courts. The learned Advocate-General says that the omission of the High Courts in S. 117 is not significant because ordinary the channel of communication from the Central Government to any other authority is the State Government. Regarding sub-s. (7) of S. 115 he says that Chap I of Part XIV of the Constitution covers all the services both under the Union as will as the States and therefore no special mention of Article 229 of the Constitution was necessary I am not however persuaded that Chap I of XIV of the Constitution that is the services of there are in the Constitution several other provisions for certain services and although some of the provisions of Chap. 1 of Part XIV do certainly apply to all the services Art. 309 obviously does not apply to servants of the High Courts who are governed by Art. 229. It does not apply to servants of the Legislature for whom a separate provisions is made in the Constitution in Art. 187 as far as the State Legislature for whom a separate provisions is made in the Constitution in Art. 187 as far as the Central Parliament is concerned. Similarly there is a special provision regarding the Indian Audit and Accounts Department and the powers of the Comptroller and Auditor-General under Art. 148. It is not correct therefore to say that Art. 309 or for that matter Chap I of Part XIV of the Constitution contains all the provision regarding all the services nor am I impressed by the suggestion regarding S. 117 that the State Governments being the Channel of communication no directions were thought necessary to be given to any other authority and therefore no other authority was mentioned by Parliament in that section.
(11) Reference was made before us to S. 116 and some inspiration sought to be drawn from it but I doubt if S. 116 says anything very significant except this that persons holding posts which are not abolished by or because of the States Reorganisation Act would continue to hold those posts and will be deemed to have been appointed to those posts by the appropriated competent authorities. This was a necessary provision so that State servants holding particular posts may continue to carry on their work as before without the necessity of any separate formal orders. The employees of the Pepsu High Court however could not continue to occupy the posts they previously did because of the abolition of the Pepsu High Court, and therefore, it was necessary that some provision should be made for them and that was made in sub-s (1) of S. 115 by saying that they were allotted to the new State of Punjab. I am not suggesting that they were just left provided for an quite naturally when allotted to the new State of Punjab they were given posts in the new High Court. The question before us is about the method of integrating them into the new set up. In that connection it seems to me that the Central Government was not given any authority for had it been the intention of the Parliament that the Central Government and the not the Chief Justice was to finally decide the question of integration concerning High Court servants some clearer provisions would have found place in the states Reorganisation Act. In my opinion therefore Mr. Bhagirath Das is right in maintaining that there is nothing in the States Reorganisation Act to establish that the Central Government and not the Chief Justice of this High Court is the final authority to decide any matter touching the integration of the servants of the High Court consequent on the merger of the two States brought about by the States Reorganisation Act.
(12) The second question is in substance one of the fact although as placed before us it has to be inferred from other facts. Two opposing views are urged before us. One is on behalf of the petitioners and it is that the Chief Justice has not decided anything by his order dated the 31st August, 1964, but has merely felt obliged to obey an carry out the direction of the Central Government, which in law he was not bound to do The other view put forward on behalf of the respondent is that the Chief Justice has considered the views of the Central Government and has found those views a acceptable, but that the final decision is essentially his own decision and nobody can, therefore, question it. The learned Advocate General, who has, I should think, received instructions from the Chief Justice, stated in Court that the decision of the 31st August, 1964, is the decision of the Chief Justice. It is true that no return has been filed on behalf by the learned Advocate General. The omission to file a return is explained by the Circumstances that there was nothing much for the Chief Justice to say in this case beyond what is matter of record and he may well have felt that the return filed by the Registrar of this Court which we are sufficiently clear. That return supports the learned Advocate General's assertion that after the representations has been sent to the Central Government without any commitment and after the views of the Central Government were received back they were considered by the Chief Justice in the light of all the Circumstances and because he thought those views sufficiently reasonably he decided to act accordingly not because he felt compelled to do so but because as Chief Justice of this Court he was competent to this advice form any quarter he thought necessary and then decide and act as he considered best. The question is whether there is anything before us to negative this assertions? We have been referred to the order of the Chief Justice which only consists of the singly words 'Yes' signifying his approval of the proposal made to him by the Registrar of the Court. That proposal consists in a long and reasoned note mentioning all the previous facts and Circumstances. The note indicates besides the previous history of the case what the views of the Central Government have been and then inquires if a new seniority list should be prepared in accordance with the views of the Central Government and effect given to those views. To this course the Chief Justice 'agrees'. Can we say that the decision is not his? It is in this connection that the objection taken on behalf of the Government of India namely that the decision of the Chief Justice dated the 31st August, 1964, is not being questioned at all in these petition becomes pertinent. Mr. Bhagirath Dass concedes that he has not questioned the decision of the Chief justice for it was in fact his decision it is beyond challenge. On the fact of the order of the Chief Justice the decision seems to be his and there is no indication that he was compelled to made that decision by any outside authority and in any case no evidence before us to show that he felt so compelled. In my opinion therefore it cannot be concluded that the present order of the Chief Justice dated the 31st August 1964, is not his order made in exercise of his own judgment and since the validity of that order as such is not being challenged and on Mr. Bhagirath Dass's argument could hardly be challenged it is not possible to interfere with it.
(13) I have said that in law the Chief Justice is the final authority concerning the servants of this High Court in spite of the states Reorganisation Act and should it turn out that my conclusion of fact on the second question is wrong there is apparently noting to prevent the Chief Justice form considering the matter and taking a decision according to his own judgment. As matters stand however there is no ground for issuing any direction interfering with the decision of the Chief Justice and I would dismiss the petition and in view of the Circumstances of the case leave the parties of their own costs.
D.K. Mahajan, J.
(14) I agree
P.C. Pandit, J.
(15) I have gone through the judgment prepared by my learned brother Dulat J I concur that this writ petition should be dismissed but with very great respect to him I have not been able to persuade myself to agree with his finding that it is the Chief Justice of this Court and not the Central Government which is the final authority to decide any matter touching the integration of the servant of the High Court consequent on the merger of the Pepsu and Punjab States brought about by the states Reorganisation Act. It is however not necessary to me to write a detailed judgment since the writ petition is being dismissed by him on the second question namely that in the present case the decision dated 31-8-1964 was in fact the decision of the Chief Justice of this Court and could therefore not be questioned.
(16) I am fully alive to the high principle so much emphasised by the learned counsel for the petitioners that the 'the independence of the High Courts is deserted always to be maintained by the Constitution.' and it is just because of that independence that I feel compelled to record my dissent to the views expressed by my learned brother on the first question.
(17) The States Reorganisation Act, 1956, was enacted in pursuance of Article 3 of the Constitution and as provided in Article 4(1) of the Constitution it makes provision supplemental incidental and consequential to the Reorganisation of the states. The matters with regard to the allotment distribution and integration of services of the various States involved in this process had therefore to be provided for in this Act and only Part X deals with the same. This Part must be deemed to be dealing with all services including those connected with the High Court. Sections 114 and 118 which occur in this very Chapter deal with the provision relating to All India Services and the State Public Service Commissions. Sections 115 of the Act therefore applies to all the services excepting those dealt with in sections 114 and 118. It is was the intention of the Parliament to exclude the serves connected with the High Court form the scope of S. 115 then a special provision with regard to them would have been made in S. 115 as was done in sub-s (6) thereof in relation to the All India Services because otherwise the scheme relating to the integration of the services would remain incomplete. It cannot be assumed that the Parliament was oblivious of the fact that the integration of the staff of the High Court has as to be done. These provisions do not in my opinion however in any way affect the powers of the Chief Justice of the High Court conferred upon him under Article 229 of the Constitution because it is only the integration of the services consequent on the Reorganisation of the States that has been taken over by the Central Government. Subsequent to this integration the Chief Justice may exercise his powers under Article 229. It has been rightly point out by Dulat J., if I may so with respect on the basis of the Supreme Court decision in (S) AIR 1956 S C 285, that the servants of the Pepsu High Court were 'serving in connection with the affairs of the State of Pepsu' and similarly the servants of the Punjab High Court proof to 1-11-1956 'were serving in connection with the affairs of the Punjab State.' By virtue of S. 115(1) both these sets of servants stood allotted to the new State of Punjab which came into being on 1-11-1956. Sub-section (5) of S. 115 in my opinion clearly lays down that the Central Government has to establish Advisory Committees to assist if for the following purposes:
(1) The division and integration of these services amongst the new States;
(2) ensuring fairs and equitable treatment to all persons affected by the provisions of this section; and
(3) the proper consideration of any representations made by such persons.
The language of this sub-section is quiet explicit and is capable of no other meaning except this that the integration of the services is to be done by the Central Government although it could establish Advisory Committees for its assistance in this regards, the task being a complicated the voluminous one. As mentioned in a Bench decisions of the Mysore High Court in M. A. Jaleely v. State of Mysore, AIR 1961 Mys 210 'for such amalgamation the posts in the services of the one State has to be equated with the posts in the services of another and in making that equation the attributes of the post of one States has to be comported with those of another. These were problems involving manifold difficulties requiring the application of the mind of an Authority whose stature and permanence inspired confidence and guaranteed even-handed treatment. It is clear that Parliament selected the Central Government as the Authority to accomplish that important and difficult work of making an imperial and fair integration at the highest level'. Under these Circumstances the task of division and integration was the special responsibility of the Central Government which it could perform with the assistance of the Advisory Committees.
(18) Its vehemently argued by the learned counsel for the petitioners that in sub-s. (7) of S. 115, there was no mention of Article 229 and, therefore, nothing about the High Court staff was provided in sub-s (5) of S. 115, because if sub-s (5) was providing for each and every service, including the servants of the High Court, it was surprising that when saving the normal powers of the appropriate Authorities by sub-s (7), Parliament did not think of the normal powers of the Chief Justice of the High Court. If follows therefrom that no thought was given to Art. 19 of the Constitution when enacting sub-s (7) because nothing regarding the High Court employees was provided in sub-s (5).
(19) In my view there is no force in this contention. It was not necessary to make a mention of Art. 229 in sub-s (7) because Chap I of Part XIV of the Constitution which is mentioned in this sub-section includes Arts. 308 to 314 and the opening words of Art 309 are 'subject to the provisions of this Constitution', which obviously refer to Art. 229 as well and thereby the Parliament did save the normal powers of the Chief Justice of a High Court under Art. 229 of the Constitution. On this ground it was also not necessary for the Parliament to include Arts. 98, 148 and 187 of the Constitution in sub-s (7). Moreover, in the provisos to sub-s (7) it has been clearly laid done that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-s (1) or sub-s (2) shall not be varied to his disadvantage except with the previous approval of the Central Government. It has already been held above the provisions of sub-s (1) apply to the employees of the High Court as well. Therefore the mention of sub-s (1) in this proviso clearly shows that the provisions of sub-s (7) did preserve the powers of the Chief Justice under Art. 229 of the Constitution.
(20) It was then contended by the learned counsel for the petitioners that a perusal of Act would show that the Central Government was competent to issue directions to the State Government and not to any other Authority. In case the Parliament intended that the provisions of S. 115 Parliament intended that the provisos of S. 115 should apply to the High Court staff as well then words 'or any other appropriate Authority' would also have been use after the words 'State Government', wherever they occurred in S. 117 because in the absence of the same even if the Central Court it could not issue the directions in this respect to the High Court.
(21) In my opinion there is no substance in this contention as well. It is undisputed that whenever the Central Government wishes to communicate anything to the appropriate Authority / High Court the proper channel for doing so is the State Government. Likewise if some matters requires the determination by the Central Government it is sent by the appropriate Authority to the State Government which transmits the same to the Central Government. In other words the channel for sending communication to the receiving communications from the Central Government is the State Government. It was in this view of the matter that the Parliament did not wish to add the words 'or any other appropriate Authority' after the words 'State Government' in S. 117. The scope of the words 'State Government' appearing in this section is therefore wide and the absence of the words 'or nay other appropriate Authority' does not make any difference. Learned counsel for the petitioners could not advance any valid reasons against this interpretation. Moreover when the Parliament entrusted the job of integration of services including the High Court staff under S. 115(5) as already held above then it is implied that the Central Government could issue directions to all concerned Authorities in this respect:
(22) In view of what I have said above I am of the opinion that under the States Reorganisation Act it was the Central Government and not the Chief Justice which was the final Authority to make decisions regarding the integration of the staff of the erstwhile Pepsu and Punjab High Courts.
(23) In view of my finding on the first question, it is needless for me to decide the second questions.
(24) The result is that this petition fails and is dismissed. In the Circumstances of this case, however, I would leave the parties to bear their own costs.
(25) Petition dismissed.