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PETITIONER: H.   LYNGDOH & ORS.

       Vs.

RESPONDENT: GROMLYN LYNGDOH, JUDGE

DATE OF JUDGMENT02/03/1971

BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SHELAT, J.M.

CITATION:  1971 AIR 1110            1971 SCR  (3) 903  1971 SCC  (1) 754

ACT: Assam Fundamental Rules, rr. 9(22), 56-Age of Superannuation 55   years-Member  of  Assam  Judicial   Service   appointed temporarily  as  Judge  of District  Council  Court  of  the Autonomous  District of United Khasijaintia  Hills-Continued in service after superannuation by order of District Council and  placed  in  regular  scale-Whether  becomes   permanent employee within meaning of r. 9(22).

HEADNOTE: On January 26, 1950 the Autonomous District of United Khasi- Jaintia Hills was constituted by virtue of the provisions of cl. 2 of Art. 244 and the Sixth Schedule of the Constitution of  India.  and  the  Governor of  Assam  was  empowered  to administer  the said Autonomous District.  Pursuant  thereto the  Assam  Autonomous District  (Constitution  of  District Councils)  Rules.  1961 were enforced as  from  October  15, 1951.  On June 27, 1952 a District Council and an  Executive Committee was constituted for the said autonomous  District. The District Council was empowered to constitute courts  and appoint  suitable persons as Presiding Officers. On June  7, 1954    the    United   Khasi-Jaintia    Hills    Autonomous District(Administration of Justice) Rules, 1953 were  framed by  the  District Council.  Under r. 9  a  District  Council Court  was constituted for the Autonomous District.   Judges were  to  be appointed by the Executive Committee  with  the approval  of  the  Governor.  In the absence  of  any  rules framed   by  the  District  Council  under  r.  15  of   the Constitution   of   District  Council   Rules,   the   Assam Fundamental  Rules, subsidiary Rules and  instructions  were applicable  to  the  officers  and  staff  or  the  District Council.   The  respondent who was  an  Additional  District Judge in the senior Grade of the Assam Judicial Service  was appointed  with effect from 7-1-1954 temporarily as a  Judge of  the District ’Council Court without the approval of  the Governor.   The  Governor however appointed him also  as  an Additional District Judge, Lower Assam District.  The  scale of  pay was Rs. 750-960-1000.  On 16-2-1957  the  respondent attained  the age of superannuation on his completion of  55 years.  Notwithstanding this the District Council  continued him  in service and by its order dated 22-4-1965 placed  him in  the  regular scale of Rs.  1200-60  (E.B.)-60.1500  with

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effect  from 1-4-1965.  However subsequently  the  Executive Committee  terminated his services with effect  from  August 31,  1966.   The respondent challenged this  order  by  writ petition in the High Court.  Thereafter by special leave the matter  came up in appeal before this Court.   The  question for consideration was whether in view of the definition of a permanent post under Assam Fundamental Rule 9(22) as a  post ’carrying a definite scale of pay, sanctioned without  limit of time’, the respondent was a permanent employee. HELD  :  The respondent’s employment was temporary  and  was continuing  as such.  Merely placing him in a scale  of  pay which  was different to the one in which he was  temporarily appointed did not make him a permanent employee.  To  become permanent he must be confirmed but that question could never arise because under Fundamental Rule 56 which was admittedly applicable to him the date of his compulsory retirement  was the  date on which he attained the age of 55  years.   After this he 9 0 4 could be retained with the sanction of the Government  which admittedly  in  his case had not been given.   Even  if  the validity of his appointment by the District Council  without the sanction of the Governor which was a necessary condition for valid appointment was overlooked, he could not  complain that  his  termination by the very Council was  without  the Government’s sanction. [906 E-G] The  argument that the Governor had invested the  Respondent with  powers for the Schedule Districts and lower Assam  was unhelpful  because this was done in 1954 long prior  to  his attaining  the age of superannuation, when without  a  valid extension  of the service he could not continue  in  service after that date. [906 H] Accordingly the appeal must be allowed and the writ petition dismissed. [Personal  remarks  by the Chief Justice of the  High  Court against another judge of that Court disapproved.]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1929  of 1967. Appeal  by special leave from the judgment and  order  dated September  15, 1967 of the Assam and Nagaland High Court  in Civil,Rule No. 359 of 1966. M. C. Chagla and D. N. Mukherjee, for the appellants. Sarjoo Prasad, R. B. Datar and S. N. Prasad, for the respon- dent. The Judgment of the Court was delivered by P.   Jaganmohan Reddy, J.-The short question in this  Appeal which is against the Judgment of the High Court of Assam and Nagaland  by Special leave is whether the Respondent’s  ser- vices  as  Judge District Council Court  of  the  Autonomous Disirict  of United Khasi-Jaintia Hills could be  terminated by the District Council.  The facts relevant for the  appeal are that on the 26th January 1950 the Autonomous District of United  Khasi-Jaintia Hills by virtue of the  Provisions  of Clause  2  of  Art.  244  and  the  Sixth  Schedule  to  the Constitution  of India was constituted and the  Governor  of Assam  was  empowered  to  administer  the  said  Autonomous District  Pursuant  thereto the Assam  Autonomous  Districts (Constitution of District Councils) Rules 1951 were enforced as  from  the 15th October 1951.  On the 27th  June  1952  a District Council and an Executive Committee was  constituted for the said autonomous District.  The District Council  was

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empowered to constitute Courts and appoint suitable  persons s Presiding Officers.  On 7th June 1954 United Khasi-Jaintia Hills Autonomous District (Administration of Justice)  Rules 1953 905 were framed by the District Council with the approval of the Governor, rule 9 of which reads as follows:               "Constitution  of  District  Council  Court(1)               There shall be one District Council Court  for               the  United  Khasi-Jaintia  Hills   Autonomous               District  which shall be called   ,the  United               Khasia-Jaintia  Hills District Council  Court.               The  Court  shall  consist  of  one  or   more               Judicial Officers to be designated as Judge or               Judges  appointed by the  Executive  Committee               with the approval of the Governor.               Provided  that the Chief Executive  Member  or               Member of the Executive Committee or any other               members  of the District Council shall not  be               entitled  to hold office as Judicial  Officer’               of the District Council court." It  is  admitted  that no rules were made  by  the  District Council  under  Rule  15 of  the  Constitution  of  District Council  rules which empowered it to regulate conditions  of service of Officers and staff appointed to the services  and posts  in  connection  with  the  affairs  of  the  District Council.  In the absence of these rules it is. also admitted that  the  Assam  Fundamental  Rules  subsidiary  Rules  and instructions  were applicable to the Officers and  staff  of the District Council. The  Respondent who was an Additional District Judge in  the senior  grade  of the Assam Judicial service  was  appointed with  effect  from 7-1-1954 temporarily as a  Judge  of  the District Council without the approval of the Governor.   The Governor  however  appointed  him  also  as  an   Additional District  Judge  Lower  Assam District for  the  purpose  of disposal of Civil and Criminal matters under the  respective codes.   On  16-2-1957 the Respondent attained  the  age  of superannuation which was on his completion of 55 years.   It would however appear that notwithstanding his having reached the age of superannuation the District Council continued him in  service and by its order dated 22-4-1965 placed  him  in the Regular scale of Rs. 1200-60(EB)-601500 with effect from 1-4-1965.   Thereafter on 30-7-1956 the Executive  Committee of  the  District Council served notice upon  him  that  his services  alongwith the services of others mentioned in  the order  were  terminated from 31st August 1966.  It  is  this impugned order that was challenged in a Writ Petition  which the  Respondents  filed in the High Court.  The  High  Court came  to  the conclusion that unless the contrary  is  shown that  the Respondent was appointed by the  District  Council with the approval of the Governor while the termination  was by the Council without 906 the  approval of the Governor, though we observe  that  even with  respect  to this nothing contrary was shown  that  the Governor had not given his approval. In our view a perusal of the order of appointment would show that  it was issued by the Chief Executive  Member  District Council  and it specifically states that the appointment  is temporary.  Immediately after the Respondent had reached the age  of  superannuation the High Court wrote  to  the  Chief Executive Member on 5-3-57 enquiries whether the  Respondent has  been given an ,extension.  In reply it was informed  on 25-3-57  that ha was appointed on the 10th February 1954  as

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Judge of the District ,Council Courts on a temporary  basis; "and  he will as such continue- to perform his  duties  till further orders made by the Council".  The. initial temporary appointment as will be seen from the order of 10th  February 1954 was on the scale of pay Rs. 75030-960-1000 but later he was placed in a regular scale of pay of Rs. 1200 to Rs. 1500 as  already  adverted to.  It is this ,order that  is  being urged  as  having  given the Respondent  a  permanent  post, because  as  the  learned  Advocate  submits,  a   permanent employee  is one who is appointed to a permanent post  which is  defined  under Assam Fundamental Rule 9(22)  as  a  post carrying a definite scale of pay sanctioned without limit of time".    As  we  have  already  noticed  the   Respondent’s appointment  was  temporary  and  was  continuing  as  such. Merely placing him in a scale of pay which is different  to the one in which he was temporarily appointed does not  make him  a permanent employee.  To become permanent he  must  be confirmed,  but that question can never arise because  under those very Fundamental Rules which it is not denied apply to him in the absence of any rules made by the District Council the   date  of  his  compulsory  retirement   according   to Fundamental Rule 56 is the date on which he attains the  age of  5 5 years and if he is retained after this date it can only  be  done  with the sanction of  the  Government  which admittedly  in  his case has not been given.   Even  if  the validity of his appointment by the District Council  without the sanction of the Governor which was a necessary condition for valid appointment is overlooked he cannot complain  that his   termination  by  the  very  Council  is  without   the Governor’s  sanction.  We can find no justification for  his continuance  nor  has  any rule  or  regulation  Fundamental otherwise shown to us to continue him in service without the sanction  and under some valid rule.  The argument that  the ,Governor  had invested the Respondent with powers  for  the Schedule  Districts  and lower Assam  is  equally  unhelpful because this was also admittedly done in 1954 long prior  to his attaining the age of superannuation when without a valid extension  of the service he could not continue  in  service after that date.  Viewed 907 from  any angle the respondent’s plea is untenable, as  such the  appeal is allowed and the writ petition dismissed,  but in the circumstances without costs. Before we part with the case we were distressed to note cer- tain  personal  remarks made by the  learned  Chief  Justice against  one  of the Hon’ble Judges of that  Court.   To  us these remarks do not appear to be either proper or just.  By making these remarks the learned Chief Justice has let  down his office as well as his Court.  In the objective discharge of  judicial  functions there is little  justification  nay, none-at-all  to assume any attitude other than  of  judicial restraint  or  to use a language while  referring  to  one’s colleagues  other than that which has been hitherto  adopted by long usage. G.C.              Appeal allowed and petition dismissed. 908