Page No.# 1/4 vs The State Of Assam And 10 Ors on 12 March, 2025

March 14, 2025

Gauhati High Court

Page No.# 1/4 vs The State Of Assam And 10 Ors on 12 March, 2025

Advocate for the Petitioners : Mr. D. Das, Sr. Advocate
: Mr. K. Mohammed, Advocate
Advocate for the Respondents : Mr. D. Nath, Sr. Govt. Advocate
: Mr. R. Borpujari, SC, Finance
: Mr. T. J. Mahanta, SC, GHC
: Mr. P. P. Dutta, Advocate

Date of Hearing : 06.03.2025
Date of Judgment : 12.03.2025

BEFORE
HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (CAV)

Heard Mr. D. Das, the learned Senior Counsel assisted by
Mr. K. Mohammed, the learned Counsel appearing on behalf of
the petitioners. I have also heard Mr. D. Nath, the learned Senior
Government Advocate, Assam appearing on behalf of the
Respondent Nos.1 & 3; Mr. R. Borpujari, the learned counsel
appearing on behalf of the Respondent No.2 and Mr. T. J.
Mahanta, the learned Senior Counsel as well as the learned
Standing Counsel of the Gauhati High Court assisted by Mr. P. P.
Dutta, the learned Counsel appearing on behalf of the
Respondent Nos.4 & 5. None appears on behalf of the private
respondents.

2. Both the writ petitions are taken up together for disposal as
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they are inter-connected.

3. The question involved in WP(C) No.1009/2024 is as to
whether the post of Registrar (Establishment) which is a post
created for the Principal Seat of the Gauhati High Court can only
be filled up by incumbents from the Principal Seat or can also be
filled up by incumbents from the Permanent Benches of the
Gauhati High Court at Itanagar, Kohima and Aizawl?

4. To decide the said question, let this Court briefly take note
of the facts which led to the filing of the writ petitions before this
Court infra.

5. The post of Registrar (Establishment) along with other posts
were sanctioned by the State of Assam on 10.08.2015. It is the
case of the Petitioner No.1 which is an Association of Officers
and Staff working in the Principal Seat of the Gauhati High Court
(hereinafter referred to as ‘the Petitioner Association’) that at
their request the post of Registrar (Establishment) was created.
It is the specific case of the Petitioner Association that this very
post of Registrar (Establishment) was all along filled up by
incumbents from the Principal Seat of the Gauhati High Court.
However, a notice dated 22.02.2024 was issued by the
Respondent No.5 whereby not only the eligible candidates from
the Principal Seat of the Gauhati High Court were called for but
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also the Joint Registrars of the Outlying Benches were requested
to appear in an interview fixed on 23.02.2024 for selection to the
post of Registrar (Establishment). The Petitioner Association
immediately thereupon, submitted a representation on
22.02.2024. But as there was no redressal of their grievances,
WP(C) No.1009/2024 was filed. In this writ petition, the
Petitioner Association not only sought for setting aside the notice
dated 22.02.2024 but also sought for declaration that the post of
Registrar (Establishment) should be restricted to the incumbent
holding the post of Joint Registrar at the Principal Seat of the
Gauhati High Court.

6. It is seen from the records that vide an order dated
23.02.2024, the learned Coordinate Bench of this Court passed
an order thereby permitting the interview process to be held on
23.02.2024 to proceed but directed that the final outcome of the
interview process shall not be declared till 28.02.2024. It is
further relevant to take note of that in view of the said order
passed on 23.02.2024 by the learned Coordinate Bench of this
Court, the Interview process which was initiated was deferred in
as much as the Selection Committee was of the opinion that
although there was no stay order with regard to the interview
process, yet the propriety demands that the interview process
should be deferred.

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7. It is relevant to take note of that pursuant thereto on
24.05.2024, the Hon’ble Chief Justice of the Gauhati High Court
had entrusted Shri Prithwi Balay Dutta, Joint Registrar, Itanagar
Permanent Bench to discharge the duties of the Registrar
(Establishment) in-Charge w.e.f. 24.05.2024. This order dated
24.05.2024 is the subject matter of challenge in the second writ
petition being WP(C) No.3024/2024. The edifice of the case of
the Petitioners in the second writ petition is that the order dated
24.05.2024 was passed to circumvent the order dated
23.02.2024 passed in WP(C) No.1009/2024 by the learned
Coordinate Bench of this Court. Be that as it may, the learned
Coordinate Bench of this Court though issued notice but did not
stay the order dated 24.05.2024.

8. At this stage, it is also relevant to take note of that during
the pendency of the present proceedings, vide notification dated
04.12.2024, the said Shri Prithwi Balay Dutta, who was holding
charge of Registrar (Establishment) (in-Charge) and Officer on
Special Duty of Protocol in the Principal Seat of the Gauhati High
Court was released so as to enable him to resume his duties as
Joint Registrar in Itanagar Permanent Bench of the Gauhati High
Court at Yupia w.e.f. 16.12.2024. It is also pertinent to mention
that the said Shri Prithwi Balay Dutta, in the meantime, had also
superannuated w.e.f. 31.12.2024. Consequently, the challenge
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made to the order dated 24.05.2024 in the second writ petition,
i.e. WP(C) No.3024/2024 had become infructuous.

9. In the backdrop of the above, taking into account that
WP(C) No.3024/2024 has become infructuous, let this Court deal
with the question involved in WP(C) No.1009/2024 and for that
purpose the submissions so made by the learned counsels
appearing on behalf of the petitioners as well as the respondents
are noted herein under:-

Submission made on behalf of the Petitioners

10. Mr. D. Das, the learned senior counsel appearing on behalf
of the petitioners submitted the following:-

(A) It was a long standing demand of the Petitioner Association
that the officers and staff in the Principal Seat of the Gauhati
High Court do not have representation in the higher cadres of
the High Court Services. On such demand being made, the then
Hon’ble Chief Justice of the Gauhati High Court was pleased to
approve such request. The State, on the basis of the approval
given, vide the letter dated 10.08.2015, sanctioned and created
78(seventy eight) posts for the Principal Seat of the Gauhati High
Court which included the post of Registrar (Establishment). The
learned Senior Counsel for the petitioners submitted that the
expenditure in respect to the said post of Registrar
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(Establishment) is borne by the State of Assam.

(B) The learned Senior Counsel for the petitioners submitted
that the post of Registrar (Establishment), since then, by
convention was filled up from amongst the officers of the
Principal Seat of the Gauhati High Court. In that respect, he
submitted that as there was no specific Rule framed specifying
the mode of recruitment to the post of Registrar (Establishment),
the convention so followed for filling up the post of Registrar
(Establishment) from the incumbents of the Principal Seat of the
Gauhati High Court was the norm.

(C) The learned Senior Counsel for the Petitioners submitted that
the Principal Seat of the Gauhati High Court as well as the
Permanent Seats of the Gauhati High Court maintain separate
Gradation Lists. Under such circumstances, though the criteria
for promotion is merit-cum-seniority, it would be next to
impossible to bring some incumbents from outside the Gradation
List within the zone of consideration for the post of Registrar
(Establishment).

(D) The learned Senior Counsel for the Petitioners referred to
Rule 17A of the Gauhati High Court (the High Court of Assam,
Nagaland, Mizoram and Arunachal Pradesh) Services
(Appointment, Conditions of Service and Conduct) Rules, 1967
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(for short, ‘the Rules of 1967’) and submitted that the said Rule
only permits transfer from one station to the other in the
exigency of public service, but the said Rule does not permit
appointment and promotion of officers and staff of the
Permanent Seats of the Gauhati High Court to the post
earmarked for the Principal Seat of the Gauhati High Court. He
further submitted that even a perusal of the Rule 17A of the
Rules of 1967 only mentions of the Permanent Benches of
Kohima, Imphal and Agartala and not the Permanent Benches of
Itanagar and Aizawl, and as such, by virtue of Rule 17A of the
Rules of 2017, the Joint Registrars of Aizawl and Itanagar could
not have been brought within the zone of consideration for the
post of Registrar (Establishment) in absence of any specific
provision in the Rules of 1967.

(E) The learned Senior Counsel for the Petitioners submitted that
although in terms with the notification dated 02.03.2021 issued
by the Gauhati High Court, against one post, the zone of
consideration would be 5 incumbents but from a perusal of the
impugned notice dated 22.02.2024, it would be seen that 6
incumbents were called for which is also in violation to the
notification dated 02.03.2021.

(F) The learned Senior Counsel for the Petitioners submitted that
in the letter dated 29.05.2015 whereby proposal for creation of
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the post in question was sent to the Government, the then
Hon’ble Chief Justice (Acting) was pleased to approve the
proposal for creation of additional/new posts only in respect to
the Principal Seat of the Gauhati High Court which included the
post of Registrar (Establishment). He therefore submitted that
the post of the Registrar (Establishment) is required to be filled
up from amongst the incumbents from the Principal Seat of the
Gauhati High Court and not from the Outlying Benches.

(G) The learned Senior Counsel for the Petitioners further
submitted that the resolution adopted on 16.02.2024 by the
Committee of Judges appears to have been a resolution adopted
without being apprised of the entire background and the facts of
the matter regarding the creation of the post of the Registrar
(Establishment). He submitted that if the Hon’ble Judges forming
the Committee would have been apprised of the facts on the
basis of which the post of Registrar (Establishment) was created,
the Hon’ble Committee would have passed the resolution on
16.02.2024.

(H) The learned Senior Counsel submitted that the Hon’ble Chief
Justice having found discrepancies and deficiencies in the Rules
of 1967 had formed a Committee of Judges to look into the Rules
of 1967 and the said Judges Committee so far have neither
recorded any discrepancy regarding the provision for filling up
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the post of the Registrar (Establishment) nor
resolved/recommended any change to the current procedure so
followed.

On the basis of the above submissions, learned Senior
Counsel for the Petitioners had submitted that there was no
requirement for making a departure from the established norms
of filling up the post of the Registrar (Establishment) from
incumbents from the Principal Seat of the Gauhati High Court.

Submission made on behalf of the Gauhati High Court

11. Per contra, Mr. T. J. Mahanta, the learned Senior Counsel
appearing on behalf of the Gauhati High Court submitted as
follows:-

(A) In the resolution dated 16.02.2024 which was approved by
the Hon’ble Chief Justice, it was categorically mentioned that the
post of the Registrar (Establishment) has to be filled up from
eligible Joint Registrars belonging to the High Court service of
the Principal Seat as well as the Outlying Benches of the Gauhati
High Court by way of promotion. This resolution so adopted is
not the subject matter of challenge in the instant proceedings
and without a challenge to the said resolution, the petitioners
cannot challenge the notice dated 22.02.2024 as well as seek
declaration to the effect that the post of the Registrar
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(Establishment) has to be filled up only from incumbents of the
Principal Seat and not from the Outlying Benches of the Gauhati
High Court.

(B) The learned Senior Counsel for the Gauhati High Court
submitted that the memorandum of the Petitioners’ Association
which was submitted for having representation in the Higher
Cadres of the High Court Services was endorsed to a Committee
by the Hon’ble Chief Justice and the said Committee took a
resolution on 04.03.2015 and recommended for creation of one
post of Joint Registrar and not the Registrar (Establishment). The
said recommendation was also included in the subsequent
proposal dated 26.05.2015 placed before the Hon’ble Chief
Justice. The learned Senior Counsel submitted that as per the
said proposal dated 26.05.2015, the reason for creation of the
post of the Registrar (Establishment) was to alleviate the
workload of the Registrar (Administration) and to manage the
administrative affairs of the Registry. This proposal dated
26.05.2015 not only included the post of Registrar
(Establishment) but also various other posts in the rank of
gazetted, ministerial, non-ministerial and Grade-IV posts.

(C) The learned Senior Counsel for the Gauhati High Court
submitted that the post of the Registrar (Establishment) is to be
filled up as per order dated 13.08.2015 issued by the then
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Hon’ble Chief Justice (Acting) wherein it was mentioned that the
post of Registrar (Establishment) is to be filled up by way of
promotion from the Cadre of Joint Registrar (Class 1A) of the
High Court services and the names of the Joint Registrars from
the General Cadre as well as from the Stenographer Stream be
placed in the zone of consideration in order of seniority for
consideration of the promotion.

(D) The learned Senior Counsel for the Gauhati High Court
submitted that Rule 2(c) of the Rules of 1967 defines “High
Court” to mean the Gauhati High Court (the High Court of
Assam, Nagaland, Mizoram and Arunachal Pradesh) and as per
Rule 2(f) of the Rules of 1967, “The Services of the High Court”

includes gazetted officers, ministerial posts, special post, posts in
the Subordinate Service and post of extra typist or copyist. Rule
6(a) of the Rules of 1967 further provides that all appointments
to the post of the services of the High Court Gazetted rank and
all promotions shall be made by the Hon’ble Chief Justice in his
absolute discretion. The learned Senior Counsel submitted that
all appointments have been made to the post of the Registrar
(Establishment) till date were with the due approval of the
Hon’ble Chief Justice. The learned Senior Counsel further
referred to Rule 7 (1) of the Rules of 1967 which provides that
the Registrar shall be either a member of the State Judicial
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Service Grade-I; or a practicing Advocate of not less than 10
years standing at the Bar; or any other person considered
suitable by the Hon’ble Chief Justice.

(E) On the question of as to whether there was a transfer
amongst officers from the Principal Seat of the Gauhati High
Court to the Outlying Benches and vice-versa, the learned Senior
Counsel for the Gauhati High Court submitted that Rule 17A of
the Rules of 1967 is not what the learned Senior Counsel for the
Petitioners had submitted. In terms with Rule 17A of the Rules of
1967, any employee in the service of the High Court including
those in the Benches of Kohima, Aizawl and Itanagar may be
transferred from one station to the other in the exigency of
public service and such transfer in the case of Gazetted Officers
shall be notified in the Official Gazette. He, therefore, submitted
that in terms with the said Rule 17A of the Rules of 1967, one
Shri Rabindra Nath Barman who was serving as the Upper
Division Clerk in the Aizawl Bench of the Gauhati High Court was
transferred from Aizawl Bench to the Principal Seat as the Lower
Division Assistant and thereupon transferred from the Principal
Seat to the Kohima Bench in the year 2005 and then to the
Itanagar Permanent Bench in the year 2013. Likewise, Shri
Prithwi Balay Dutta who was the Joint Registrar in the Itanagar
Permanent Bench was appointed as the Officer in Special Duty
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Protocol in the Principal Seat of the Gauhati High Court. Shri K.
Debasish Sinha was transferred from the erstwhile Agartala
Bench of the Gauhati High Court to the Principal Seat of the
Gauhati High Court and Shri Dulal Boro of the erstwhile Imphal
Bench was also transferred to the Principal Seat of the Gauhati
High Court.

(F) On the contention made by the Petitioners that six persons
were called for the interview inspite of the notification dated
02.03.2021 mandating 5(five) incumbents against 1(one) post,
the learned Senior Counsel for the Gauhati High Court submitted
that it is true that there was an extra candidate, but as one of
the candidate was to retire on 29.02.2024 and being an
exceptional circumstance, the said criteria as stated in the
notification dated 02.03.2021 was relaxed. He submitted that all
the three Joint Registrars of the Principal Seat of the Gauhati
High Court and all the Joint Registrars, one each of the three
Outlying Benches were requested to appear for the interview for
the promotion to the post of the Registrar (Establishment) in the
light and spirit of the resolution dated 16.02.2024. The learned
Senior Counsel for the Gauhati High Court submitted that the
interview was deferred in view of the interim order passed by
this Court on 23.02.2024.

(G) The learned Senior Counsel for the Gauhati High Court
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therefore submitted that as the Hon’ble Chief Justice has the
absolute discretionary power to make appointment of the officers
and servants of the Gauhati High Court and that being the
Constitutional mandate and further there being no provision in
the Rules of 1967 debarring incumbents from Outlying Benches
of the Gauhati High Court to participate in the selection process
to the post of Registrar (Establishment) and the Hon’ble Chief
Justice having approved the decision on 16.02.2024 of the
Committee of Judges, the challenge so made in the instant writ
petition is misconceived and not tenable for which the instant
writ petition is required to be dismissed.

Submission on behalf of the Respondent State of Assam

12. The learned counsels appearing on behalf of the Finance
Department as well as the Government of Assam submitted that
the posts were created as per the approval of the Hon’ble Chief
Justice of the Gauhati High Court and the said posts have been
placed at the disposal of the Hon’ble Chief Justice of the Gauhati
High Court. Considering the above and taking into account the
powers of the Hon’ble Chief Justice under Article 229 of the
Constitution, the learned counsels submitted that the instant
proceedings is purely a matter within the High Court for which
the State of Assam would not make any comment.

Analysis and Determination:-

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13. For deciding the question involved in the instant
proceedings, it is relevant to take note of the Constitutional
provisions contained in Chapter V of the Constitution of India.
Article 214 of the Constitution stipulates that there shall be a
High Court for each State, Article 231 of the Constitution
however stipulates that notwithstanding anything contained in
the preceding provisions of the Chapter V, Parliament by law can
established a common High Court for two or more States and a
Union territory. This aspect is relevant taking into consideration
that the Gauhati High Court is at present a High Court of the four
States, i.e. Assam, Nagaland, Mizoram and Arunachal Pradesh.

14. Before proceeding further, this Court finds it relevant to
trace out the origin and evolution of the Gauhati High Court. The
territories included in the Province of Assam prior to 05.04.1948
came within the jurisdiction of the Calcutta High Court or by the
Governor of Assam exercising the functions of the High Court.
The Governor General, in exercise of powers conferred by
Section 229 of the Government of India Act, 1935 and as
adopted by the India Provincial Constitution (Amendment) Order,
1948 issued an order in the name and style of “Assam High Court
Order, 1948” which established the High Court of Assam on
05.04.1948 thereby empowering the High Court of Assam to
exercise jurisdiction in respect of the territories which were
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included in the Province of Assam. In the year 1962, the
Parliament by an Act, namely, the State of Nagaland Act, 1962
(for short, ‘the Act of 1962’), led to the formation of the State of
Nagaland. In terms with Section 13(1) of the Act of 1962, it was
ordained that there shall be a common High Court called the
High Court of Assam and Nagaland. In terms with Sub-section
(3) of Section 13 of the said Act of 1962, expenditure in respect
to the salaries and allowances of the Judges of the common High
Court shall be allocated between the States of Assam and
Nagaland in such proportion as the President may by order
determine.

15. The Act of 1962 was followed by the North-Eastern Areas
(Reorganization) Act, 1971 (for short, “the Act of 1971”). By this
enactment, it led to the establishment of the States of Manipur
and Tripura and for formation of the State of Meghalaya and the
Union territories of Mizoram and Arunachal Pradesh by
reorganizing the existing State of Assam. Part IV of the said Act
of 1971 is titled ‘High Court’. This Part IV contains Sections 28 to

43. In terms of Section 28 of the said Act of 1971, on and from
the appointed date, the High Court of Assam and Nagaland shall
cease to function and was abolished. It was ordained that there
shall be a common High Court for the States of Assam,
Nagaland, Meghalaya, Manipur and Tripura to be the Gauhati
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High Court (the High Court of Assam, Nagaland, Meghalaya,
Manipur and Tripura). In terms of Section 29 of the said Act of
1971, on and from the appointed date, the common High Court
shall have, in respect of the territories comprised in the States of
Assam, Manipur, Meghalaya, Nagaland and Tripura, all such
jurisdiction, powers and authority as under the law in force
immediately before the appointed date, are exercisable in respect
of those territories by the High Court of Assam and Nagaland or
the Court of the Judicial Commissioner for Manipur or the Court
of the Judicial Commissioner for Tripura as the case may be.

16. In the year 1986, the Parliament enacted two Acts: The
State of Arunachal Pradesh Act, 1986 and the State of Mizoram
Act, 1986. On the basis of the said two enactments, the States of
Arunachal Pradesh and Mizoram were established. Section 18 of
the State of Arunachal Pradesh Act, 1986 and Section 15 of the
State of Mizoram Act, 1986 are more or less similarly worded and
when read together would evince that there would be a common
High Court for the State of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram and Arunachal Pradesh to be called
the Gauhati High Court (The High Court of Assam, Nagaland,
Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh).

17. The common thread that runs through the developments in
the years 1962, 1971 and 1986 as above noted is that as and
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when the jurisdiction of the High Court of Assam and thereafter
the Gauhati High Court came to be enlarged and extended to the
States other than Assam, all the seven sister States in the North
Eastern part of the country agreed to bear the expenditure in
respect to the salaries and allowances of the Judges of the
common High Court as shall be allocated amongst the States in
such proportion by an order of the President.

18. It is also pertinent to take note of that the Act of 1971 was
amended by the North-Eastern Areas (Reorganization) and other
Related Laws (Amendment) Act, 2012 (for short, ‘the Amending
Act of 2012′) whereby separate High Courts for the States of
Meghalaya, Manipur and Tripura were established and the
definition of “Common High Court” in Section 2(d) of the Act of
1971 was amended to mean the Gauhati High Court (the High
Court of Assam, Arunachal Pradesh, Mizoram and Nagaland). As
of today, the Gauhati High Court is the common High Court
therefore exercising the jurisdiction throughout the States of
Assam, Nagaland, Mizoram and Arunachal Pradesh. It may not
be out of place to mention that Judges of the Gauhati High Court
in the past and at present have been alleviated from amongst
Advocates and Judicial Officers hailing from the aforesaid States.
Furthermore, the Chief Justice of the Gauhati High Court would
be the Chief Justice of the common High Court, i.e. the Gauhati
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High Court (the High Court of Assam, Arunachal Pradesh,
Mizoram & Nagaland).

19. In the backdrop of the origin and evolution of the Gauhati
High Court, it is relevant to take note the powers of the Chief
Justice in relation to officers and servants of the Gauhati High
Court. Article 229 of the Constitution specifically deals with the
power of the Chief Justice in so far as officers and servants of
the High Court. Article 229 of the Constitution reads as under:-

Article 229 in Constitution of India

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.

(2) Subject to the provisions of any law made by the Legislature of
the State, the conditions of service of officers and servants of a High
Court shall be such as may be prescribed by rules made by the Chief
Justice of the Court or by some other Judge or officer of the Court
authorised by the Chief Justice to make rules for the purpose:

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Provided that the rules made under this clause shall, so far
as they relate to salaries, allowances, leave or pensions, require the
approval of the Governor of the State.

(3) 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.

20. Clause (1) of Article 229 of the Constitution provides that
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 the Chief Justice may direct, i.e. his
nominee. The proviso to Clause (1) of Article 229 of the
Constitution empowers the Governor of the State to require by
Rule in certain cases to make appointments after consultation
with the State Public Service Commission. It is very apposite
herein to mention that Article 367 (1) of the Constitution
mandates that the General Clauses Act, 1897 apply for the
interpretation of the Constitution as it applies for the
interpretation of an Act of the Legislature of the Dominion of
India. It is however relevant herein to mention that the
application of the General Clauses Act, 1897 would be subject to
any adaptation and modifications that may be made under Article
372 of the Constitution. In this regard, this Court finds it
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pertinent to take note of the judgment of the Supreme Court in
the case of Chief Justice of Andhra Pradesh & Others vs. L.V.A.
Dixitulu & Others, reported in (1979) 2 SCC 34 wherein the

Constitution Bench of the Supreme Court specifically dealt with
the power conferred upon the Chief Justice of the High Court in
terms with Article 229 (1) of the Constitution. Paragraph No. 29
of the said judgment is reproduced herein below:-

“29. Now, let us see what is the ambit and scope of the power

“appointment” in Article 229(1). In the context of Article 229, read
as a whole, this power is of wide amplitude. The word
“appointment” in Article 229(1) is to be construed according to
axiom that the greater includes the less. This cardinal canon of
interpretation underlies Section 16 of the General Clauses Act which
has been made applicable by Article 317(1) of the Constitution.
Construed in the light of this juristic principle, the power of
“appointment” conferred by Article 229(1) includes the power to
suspend, dismiss, remove or compulsorily retire from service. In
short, in regard to the servants and officers of the High Court,
Article 229 makes the power of appointment, dismissal, removal,
suspension, reduction in rank, compulsory retirement etc., including
the power to prescribe their conditions of service, the sole preserve
of the Chief Justice, and no extraneous executive authority can
interfere with the exercise of that power by the Chief Justice or his
nominee, except to a very limited extent, indicated in the Provisos.
In conferring such exclusive and supreme powers on the Chief
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Justice, the object which the founding fathers had in view, was to
ensure independence of the High Court.”

21. Clause (2) of Article 229 of the Constitution contains two
important parts. The first is that the conditions of service of
officers and servants of the High Court shall be such as may be
prescribed by the Rules made by the Chief Justice or his
nominee. This is, however, subject to the provisions of any law
made by the Legislature of the State. The second is that the
Rules, so far as they relate to salaries, allowances, leave or
pensions, require the approval of the Governor.

22. The Rules of 1967 are Rules made in exercise of the powers
conferred under Article 229 (2) of the Constitution. Before
proceeding further, this Court finds it relevant to take note of
another judgment of the Supreme Court in the case of S. B.
Mathur & Others vs. Chief Justice of Delhi High Court & Others ,

reported in 1989 Supp (1) SCC 34 wherein the Supreme Court
observed that administrative instructions cannot override the
Rules framed in exercise of the powers conferred under Article
229 of the Constitution although the Authority issuing the
administrative instructions may be the same Authority who
prescribed the Rules. This aspect is important which would be
dealt with in the later segments of the instant judgment.

Page No.# 26/41

23. Clause (3) of Article 229 of the Constitution is of vital
significance for the purpose of the instant proceedings, as it
declares 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.

24. This Court finds it relevant at this stage to take note of
Article 202 of the Constitution which stipulates that the Governor
shall in respect of every financial year cause to be laid before the
House or the Houses of the Legislature of the State, a statement
of the estimated receipts and expenditure for that year. Clause
(2) of Article 202 of the Constitution stipulates that the estimates
of expenditure embodied in the annual financial statement shall
be shown separately:-

(a) The sums required to meet expenditure described by
the Constitution as expenditure charged upon the
Consolidated Fund of the State; and

(b) The sums required to meet other expenditure proposed
to be made from the Consolidated Fund of the State.

25. Clause (3) of Article 202 of the Constitution further stipulates
the expenditure which shall be charged on the Consolidated Fund
of each State. Sub-clause (d) of Article 202 (3) of the
Page No.# 27/41

Constitution refers to the expenditure in respect of the salaries
and allowances of the Judges of any High Court. Sub-clause (f)
of Article 202 (3) of the Constitution stipulates any other
expenditure declared by the Constitution or by the Legislature of
the State by law to be charged. Therefore, a conjoint reading of
Article 202 (3)(f) with Article 229(3) of the Constitution would
show that the administrative expenses of a High Court including
all salaries, allowances, leave 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
money taken by the Court shall form a part of the said Fund. The
above analysis is important taking into consideration that it is the
contention of the Petitioners that the post of the Registrar
(Establishment) is a post created by the State of Assam and the
administrative expenses in respect to the said post is borne out
of the Consolidated Fund of the State of Assam.

26. This Court further finds it relevant to take note of Article
203 of the Constitution which stipulates that estimates which
relate to expenditure charged upon the Consolidated Fund of the
State shall not be submitted to the vote of the Legislative
Assembly. Article 204 of the Constitution relates to Appropriation
bills. The bill to provide for appropriation out of the Consolidated
Fund of the State must include the expenditure charged on that
Page No.# 28/41

fund. Clause (2) of Article 204 of the Constitution prevents any
amendment being proposed to an appropriation bill which will
have the effect inter-alia of varying the amount or altering the
destination of any grant or varying the amount of expenditure
charged on the Consolidated Fund of the State.

27. The analysis of the above provisions of the Constitution, i.e.
Articles 202 , 203 & 204 of the Constitution is for the purpose of
determining the scope and power of the Chief Justice under
Article 229 of the Constitution keeping in mind that the framers
of the Constitution wanted to ensure the independence of the
High Court. It is also pertinent to observe that the framers of the
Constitution in enacting Article 229 of the Constitution had
clearly intended that in the matter of appointment of officers and
servants of the High Court, the Chief Justice or his nominee
would be the Supreme Authority and there can be no
interference by the Executive except to the limited extent that is
provided in Article 229 of the Constitution itself as referred to
herein above. In this regard, this Court finds it relevant to refer
to Paragraph No.11 of the judgment of the Constitution Bench of
the Supreme Court in the case of M. Gurumoorthi vs. Accountant
General Assam and Nagaland & Others, reported in (1971) 2 SCC

137. The said paragraph is reproduced herein under:-

“11. The unequivocal purpose and obvious intention of the
Page No.# 29/41

framers of the Constitution in enacting Article 229 is that in the
matter of appointment of officers and servants of a High Court it
is the Chief Justice or his nominee who is to be the supreme
authority and there can be no interference by the executive
except to the limited extent that is provided in the article. This is
essentially to secure and maintain the independence of the High
Courts. The anxiety of the Constitution-makers to achieve that
object is fully shown by putting the administrative expenses of a
High Court including all salaries, allowances and pension payable
to or in respect of officers and servants of the Court at the same
level as the salaries and allowances of the Judges of the High
Court nor can the amount of any expenditure so charged be
varied even by the Legislature. Clause (1), read with clause (2) of
Article 229 conferred exclusive power not only in the matter of
appointments but also with regard to prescribing the conditions
of service of officers and servants of a High Court by Rules on the
Chief Justice of the Court. This is subject to any legislation by the
State Legislature but only in respect of conditions of service. In
the matter of appointments even the Legislature cannot abridge
or modify the powers conferred on the Chief Justice under clause
(1). The approval of the Governor, as noticed in the matter of
rules, is confined only to such rules as relate to salaries,
allowances, leave or pension. All other rules in respect of
conditions of service do not require his approval. Even under the
Government of India Act the power to make rules relating to the
conditions of service of the staff of the High Court vested in the
Page No.# 30/41

Chief Justice of the Court under Section 242(4), read with Section
241 of the Government of India Act, 1935. By way of contrast
reference may be made to Article 148 relating to the Comptroller
and Auditor General of India. Clause (5) provides:

“Subject to the provisions of this Constitution and of any law

made by Parliament the conditions of service of persons
serving in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor General
shall be such as may be prescribed by rules made by the
President after consultation with the Comptroller and Auditor
General.”

28. From the above quoted paragraph, it would transpire that
Article 229 of the Constitution contemplates full freedom to the
Chief Justice in the matter of appointment of officers and
servants of the High Court and their conditions of service. This
can be prescribed by the Rules made by him. Apart from the
special situation contemplated by the proviso to Clause (1) of
Article 229 of the Constitution, the only exception is the
Governor’s approval must be sought when the Rules relate to
salaries, allowances, leave or pension. This exception has been
made because the finances have to be provided by the
Government, and to that extent when there is any involvement
of expenses, the Government has to approve it.

Page No.# 31/41

29. From the above analysis, what can be discerned is that the
Gauhati High Court is the High Court of the four States i.e.
Assam, Nagaland, Mizoram and Arunachal Pradesh. The Act of
1962 and the Amending Act of 2012 clearly envisage that the
Gauhati High Court apart from having its Principal Seat at
Guwahati would have Permanent Benches at Yupia (Itanagar
Bench), Kohima (Kohima Bench) and Aizawl (Aizawl Bench).

30. Article 229 of the Constitution makes it apparently clear
that the Chief Justice of the High Court has the complete
administrative control over the functioning of the High Court. The
Chief Justice may delegate his authority, but the fact remains
that it is under the authority of the Chief Justice, the
administration of a High Court runs. For the purpose of
functioning the High Court, administrative expenses as referred
to in Article 229 (3) of the Constitution would be required. These
administrative expenses also include the salaries, allowances and
pensions payable to or in respect of the Officers and servant of
the High Court. These administrative expenses are required to be
defrayed from the Consolidated Fund of the State.

31. The Chief Justice being in the helm of the administrative
control of the High Court taking into account the necessity on the
basis of the workload of the High Court is required to grant
Page No.# 32/41

approvals for the creation of posts. It may not be out of place to
mention that creation of posts would involve administrative
expenses which would be charged to the Consolidated Fund of
the State and as such, the State Government has to sanction the
creation of the posts. The State Government upon sanctioning
the creation of the posts places the created posts at the disposal
of the Chief Justice. In the context of the Gauhati High Court, the
Hon’ble Chief Justice taking into account the necessity on the
basis of the workload of each of the four Benches of the Gauhati
High Court grants approval for creation of posts. The respective
State Governments i.e. the Government of Assam, Nagaland,
Mizoram and Arunachal Pradesh as the case may be sanctions
the creation of the posts and places the said posts at the
disposal of the Hon’ble Chief Justice. The Hon’ble Chief Justice in
exercise of powers conferred under Article 229(1) of the
Constitution appoints Officers and servants to the said posts
placed at the disposal of the Hon’ble Chief Justice. Who is to
man those posts so placed at the disposal of the Hon’ble Chief
Justice is absolutely within the discretion of the Hon’ble Chief
Justice. The Executive has no role in that regard. This aspect of
the matter can be discerned from the approval granted by the
then Hon’ble Chief Justice on 26.05.2015 enclosed as Annexure-
A to the affidavit-in-opposition filed by the Gauhati High Court. It
Page No.# 33/41

is seen from the statement mentioned in the said approval dated
26.05.2015 that based upon the workload of each of the Seats of
the Gauhati High Court, approval was granted by the Hon’ble
Chief Justice for creation of the posts. Subsequent thereto on
10.08.2015, the State of Assam sanctions the creation of posts
and placed the same at the disposal of the Hon’ble Chief Justice.

For the sake of clarity, it is pertinent to mention that once
the posts are created and placed at the disposal of the Hon’ble
Chief Justice of the Gauhati High Court, it is absolutely within the
domain of the Hon’ble Chief Justice or his nominee to appoint
officers and servants to those posts, however, subject to the
mandate of Articles 14 and 16 of the Constitution and the Rules
framed under Article 229 (2) of the Constitution.(see Renu and
Ors. Vs. District and Sessions Judge, Tis Hazari Courts, Delhi,
reported in (2014) 14 SCC 50 paragraphs 34, 35.2).

32. As already stated above, the Rules of 1967 are Rules made
under Article 229 (2) of the Constitution. The Rules of 1967
stipulates the conditions of service of officers and servants of the
Gauhati High Court. A perusal of Rule 2(c) of the Rules of 1967
would show that the term “High Court” has been defined to be
the Gauhati High Court (The High Court of Assam, Nagaland,
Mizoram and Arunachal Pradesh) and Rule 2(d) defines the
“Chief Justice” to mean the Chief Justice of the Gauhati High
Page No.# 34/41

Court (The High Court of Assam, Nagaland, Mizoram and
Arunachal Pradesh). Rule 2(e) defines the term “Cadre” to mean
the sanctioned strength of the service. Rule 2(f) defines the term
“The Services of the High Court” to include gazetted posts,
ministerial posts, special posts, posts in the Subordinate Service
and post of extra typists and copyists. Rule 3 deals with
classification of the services of the High Court to consist of both
gazetted and non-gazetted posts. Rule 6(a) stipulates that all
appointments to the post in the services of the High Court,
gazetted rank and all promotions would be made by the Hon’ble
Chief Justice in his absolute discretion. In terms with Rule 6(b),
appointment to the post of Class III and Class IV shall be made
by the Registrar by direct recruitment after competitive
examination in the case of the former and after selection test in
the case of the later, except for the post of Usher and Court
Keeper. Rule 7 relates to Gazetted Officer. Rule 7(1) stipulates
that the Registrar shall be either a member of the State Judicial
Service Grade-I; or a practicing Advocate of not less than 10
years standing at the Bar or any other person considered suitable
by the Hon’ble Chief Justice including those who had served in
the State Judicial Service Grade-I and retired. Rule 7 (1A) of the
Rules of 1967 stipulates that the appointment of a Joint Registrar
shall be made from the State Judicial Service Grade-II; or by
Page No.# 35/41

promotion from the post of the Deputy Registrar or by direct
recruitment of an Advocate having not less than 10 years
continuous experience.

33. It is relevant to take note of that the Rules of 1967 do not
distinguish between officers and servants of the Outlying
Benches of the Gauhati High Court with officers and servants of
the Permanent Bench of the Gauhati High Court. Rather, it is
seen from the Rules of 1967 that any employee in the service of
the Gauhati High Court would include any employee of the
Principal Seat of the Gauhati High Court as well as any employee
of the Permanent Benches of the Gauhati High Court. It is
relevant to take note of that the Rules of 1967 do not specifically
mention from which category of post the said post of Registrar
(Establishment) is to be filled up. In absence of such
specifications, in the opinion of this Court, the Chief Justice has
the power under Article 229 of the Constitution to prescribe the
Feeder Category for the post of the Registrar (Establishment).
The then Hon’ble Chief Justice (Acting) issued an order dated
13.08.2015 that the post of the Registrar (Establishment) shall
be filled by way of promotion from the cadre of the Joint
Registrar of the High Court Services and the names of the Joint
Registrars from the General Cadre as well as the Stenographer
stream be placed in the zone of consideration in order of
Page No.# 36/41

seniority for consideration of the promotion. It is further seen
that vide the resolution dated 16.02.2024 which was approved
by the Hon’ble Chief Justice, a decision was taken that the
Feeder Category to the post of Registrar (Establishment) would
be the eligible Joint Registrars belonging to the High Court
service of the Principal Seat as well as the Outlying Benches of
the Gauhati High Court. This decision so taken in the resolution
dated 16.02.2024 is not in conflict with the Rules of 1967 as the
Rules of 1967, as already stated above do not mention the
feeder category to the post of Registrar (Establishment).

34. In the backdrop of the above analysis, now let this Court
deal with contentions of the parties. The foremost contention of
the Petitioners is that the post in question was created at the
request of the Petitioner Association and the said post was
created in the Principal Seat of the Gauhati High Court. In the
opinion of this Court, once a post is created, sanctioned and
placed at the disposal of the Hon’ble Chief Justice of the Gauhati
High Court; it is absolutely within his authority to determine how
the said post is required to be filled up. The discretion to be
exercised shall be subject to Articles 14 and 16 of the
Constitution and the Rules of 1967. The Rules of 1967 do not
distinguish the employees in the services of the Gauhati High
Court working in the Principal Seat with that of the Permanent
Page No.# 37/41

Seats. Under such circumstances, the said submission is
misconceived.

35. It was the case of the petitioners that the post of the
Registrar (Establishment) is required to be only filled up from the
incumbents from the Principal Seat. In the opinion of this Court,
the said submission merely appears to be a mere plea which is
not backed by any legal right which would entitle the members
of the Petitioner Association to the declaration sought for. At the
expense of repetition, this Court reiterates that it is absolutely
within the discretion of the Hon’ble Chief Justice whom to
appoint or to promote to the posts so created and sanctioned by
the State Governments for the respective Benches of the Gauhati
High Court.

36. The submission so made by the learned Senior Counsel for
the petitioners that it has been an established norm, in the
opinion of this Court cannot be the basis for interpreting a
Constitutional provision, i.e. Article 229 of the Constitution, which
empowers the Chief Justice to appoint the Officers and servants
of the High Court.

37. This Court further finds it relevant to observe that a
combined reading of Article 229 (1) of the Constitution with Rule
6 (a) of the Rules of 1967 empowers the Hon’ble Chief Justice of
Page No.# 38/41

the Gauhati High Court to appoint or promote any Gazetted
Officer. The reference to Gazetted Officer herein is for the reason
that the posts of Registrar (Establishment) and Joint Registrars
are Gazetted rank posts. As observed by the Constitution Bench
of the Supreme Court in L.V.A. Dixitulu (supra), this powers so
conferred upon the Chief Justice includes the power to promote,
dismiss, transfer, suspend etc. Rule 17A of the Rules of 1967
empowers the Chief Justice to transfer any employee of the
services of the High Court from one seat to another. Rule 18 of
the Rules of 1967, further stipulates that the vacancies in the
higher grades of the Ministerial Services shall be filled according
to merit and ordinarily promotion from the lower grades and
seniority be counted when merit is equal. Therefore, in the
opinion of this Court, there cannot be any impediment on the
powers of the Hon’ble Chief Justice to appoint an officer who is a
Joint Registrar of any of the Seats of the Gauhati High Court as
Registrar (Establishment) of the Principal Seat of the Gauhati
High Court.

38. This Court further takes note of the submission of the
learned Senior Counsel for the Petitioners that separate
Gradation List are prepared for the Principal Seat as well as the
Permanent Benches of the Gauhati High Court. It is relevant at
this stage to take note of the submissions which were made by
Page No.# 39/41

the learned counsel for the Gauhati High Court in the case of
Rabindra Nath Barman vs Gauhati High Court through Registrar
General, reported in 2024 SCC Online GAU 209 as reflected at

paragraph 8.1 of the said judgment to the effect that there was
no Gradation List prior to 2014 of the officers and staff of the
Principal Seat published. On 29.09.2014, a Draft Gradation List
was published and the Final Gradation List was published only on
20.01.2016 asking all the concerned employees to submit their
objections, if any, by 30.01.2016. Subsequent thereto, on
22.06.2018, the Gradation List of the Principal Seat was
published. Therefore, it would be seen that the publication of the
Gradation List is of recent phenomenon.

39. This Court further takes note of that the Rules of 1967 do
not conceive for preparation of a separate Gradation List for the
Principal Seat as well as separate Gradation List for the
Permanent Benches. On the other hand, it appears that all
employees in the Registry of the Gauhati High Court in the
Principal Seat as well as the Permanent Benches are in the
services of the Gauhati High Court.

40. This Court also takes note of the submission made as
regards Rule 18 of the Rules of 1967 by the learned Senior
Counsel appearing on behalf of the petitioners that vacancies in
the higher grades of the ministerial services shall be filled up
Page No.# 40/41

according to merits and ordinarily by promotion from the lower
grades and the seniority being counted only when the merit is
equal. It is the submission of the learned Senior Counsel for the
petitioners that when merit is equal, a question would arise as
regards the seniority and if there are different Graduation Lists
for different seats of the Gauhati High Court, it would be difficult
to decide on the question of seniority when the merit is equal.
The said submission though looks attractive at the first glance,
but in the opinion of this Court, the said submission falls within
the realm of “ifs and buts” and as such it would not be proper on
the part of this Court in exercise of the jurisdiction under Article
226 of the Constitution to issue any directions in that regard.
This Court, however, observes that in a case when merit is
adjudged equal and a question arises in respect to seniority, the
individual(s) would be at liberty to approach this Court.

41. Accordingly, the instant petitions stands disposed of with
the following observations and directions:-

(i) WP(C) No.3024/2024 stands closed, as it has become
infructuous.

(ii) The writ petition being WP(C) No.1009/2024 lacks merit,
and accordingly, stands dismissed.

(iii) Taking into account that the Selection Committee had
Page No.# 41/41

deferred the selection process on account of the pendency
of the present proceedings, the Hon’ble Chief Justice would
now be at liberty to direct steps to be taken for selection
and appointment to the post of the Registrar
(Establishment) in terms with the order dated 13.08.2015
read alongwith the Resolution dated 16.02.2024.

(iv) There shall be no order for costs.

JUDGE

Comparing Assistant

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Hindustan Petroleum Corporation Ltd., … vs Shivaji S/O Gangadas Patel And Others on 6 March, 2025

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Author: Devashis Baruah

Bench: Devashis Baruah

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