H. Lyngdoh & Ors. v. Gromlyn Lyngdoh, Judge

P. Jaganmohan Reddy, J.-The short question in this Appeal which is against the Judgment of the High Court of As~am and Nagaland by Special leave is whether the Respondent's ser-vices as Judge District Council Court of the Autonomous 'District of United Khasi-Jaintia Hills could be terminated by the District Council. The facis 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 consti-tuted for the said autonomous District. The District Council was empowered to constitute Courts and appo!nt suitab!e ~er~ons . as Presiding Officers. On 7th June 1954 Umted Khas1-Jamtta Hi!ls Autonomous District (Administration of Justice) Rules 19)3

LYNGDOH v. LYNGDOH (P. Jaganmohan Reddy, /.) 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 mem-bers 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 wit11 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 Coun-cil without the approval of the Governor. The Governor how-ever appointed him also as an Additional District Judge Lower Assam Diltrict for the purpose of disposal of Civil and Criminal matters under the respeciive codes. On 16-2-1957 the Respon-dent attained the age of superannuation which was on his com-pletion of 55 years. It would however appear that notwith-standing 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)-60-1500 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 oriler 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 Respon'- dent was appointed by the District Council with the approval of the Governor while the termination was by the Council without 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 Coun-cil and it specifically states that the appointment is temporary. Immediately after the R'espondent had reached the age of super-annuation the High Court wrote to the Chief Executive Member on 5-3-57 enquiring whether the Respondent has been given an extension. In reply it was informed on 25-3-57 that he was appointed on the 10th February 1954 as Judge of the District Council Courts on a temporary basis; "and he will as such con-tinue to perform his duties till further orders made by the Coun-cil". The initial temporary appointment as will be seen from the order of 10th February 1954 was on the scale of pay Rs. 750-30-960-1000 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 per-manent post, because as the learned Advocate submits, a perma-nent 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 tempo-rarily 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 d<rte of his compulsory retirement according to Fundamental Rule 56 is the date on which. he attains the age of 55 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 appoint-ment by the District Council without the sanction of the Governor which was a necessary condition for valid appointment is over-looked he cannot complain that his termination by the very Coun-cil is without the Governor's sanction. We can find no justifica-tion for his continuance nor has any rule or regulation Funda-mental 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 Sche-dule 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 ser-i ·vice he could not continue in service after that date. Viewed

LYNGDOH v. LYNGDOH (P. Jaganmohan Reddy, /.) 907 from any angle the respondent's l'lea is untenable, as such the appeal is allowed and the writ petition dismissed, but ,fn the cir-cumstances 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 bis office as well as his Court. In the· objective discharge of judicial functions there is little justification nay, none-at-all to assume an~ attitude other. than of judicial restraint or to use a language w!lile referring to one's colleagues other than that which has been hitherto adopted by lonl!; usage.

C1VJL 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 Nagala,nd High Court in Civil Rule No. 359 of 1966.

M. C. Chagla and D. N. Mukher;ee, for the appellants. Sar;oo Prasad, R. B. Datar and S. N. Prasad, for the respon-dent.