LexGAUHATI HIGH COURT AND ANR. versus KULADHAR PHUKAN AND ANR.
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/ 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 of High 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 of judicial 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. A Later on respondent No.1 was confirmed. Thereafter applications were 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 C 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 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 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 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 F G a person has entered the judicial service, he cannot depart therefrom save H 810 SUPRE
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