S.N. Phukan, J.

1. This writ petition is by six Senior Translators of this High Court against the High Court and the State of Assam. At the time of hearing, the Gauhati High Court Employees Association joined as Intervener.

2. All the petitioners as stated in the petition are academically highly qualified, the eligibility criteria for the post being Graduation with distinction or Honours, Master Degree or Degree in Law from any recognised University. In the petition it has been mentioned that for appointment to the post of lower Division Assistant, which post is classed as Class-III under the Gauhati High Court (Appointment, Conduct and Conditions of Service) Rules, 1967, for short the Rules, minimum qualification required is Graduation from any recognised University. The main grievance of the petitioners is that inspite of Tendering service for a period extending from 10 to 15 years, neither they have been confirmed as Senior Grade Translators nor they have been given the status of Gazetted Officers, thereby putting hurdle in their promotional avenue. According to the petitioners an ordinary Lower Division Assistant with lesser qualification and experience can climb the ladder of promotional channel to the post of Deputy Registrar and so also in the case of Stenographers, but this privilege has been dented to the petitioners.

3. After Rule Nisi was issued on 19.8.88 an additional affidavit was filed by the petitioners, wherein it was stated that though in the letters of initial appointment the expression `probation was not used, but considering the circumstances, it may be deemed that the petitioner were appointed on probation and after completion of the period of probation, the petitioners have acquired the right to be confirmed. Regarding the provision for test before confirmation it has been alleged that this Rule is absolute as it has not been adhered to in case of other employees of the High Court.

4. An affidavit has been filed by the Registrar(Administration) on behalf of the High Court. No counter has been filed on behalf of the State of Assam. This affidavit is not specifically on the points urged in the petition. It has been stated in this affidavit that Translators "opted to remain as Ex-cadre," but what is Ex-cadre has not been explained and we shall state this in the appropriate place that the term Ex-cadre is not found in the Rules. In the writ petition, it has been alleged that the post of Translator-cum-In-charge, Paper Book Section for Agartala Bench of this Court was given the status of Gazetted, which was denied to the petitioners. In the counter, it has been stated that the Translator-cum-in-charge, Paper Book Section has to do supervisory work but it was not the case in respect of the petitioners herein. The point which also requires our consideration is whether under the Rules, Gazetted status can be given unless the Rules are amended but it has not been dealt with in the counter affidavit. We shall deal with this affidavit in detail at the appropriate place.

5. Before entering into the controversy in this matter a short history of creation of Translators as set out in paragraph 4 of the writ petition may be stated. In the counter filed bythe Registrar (Admn) on behalf of the Respondents 1 and 2, the statements made in the said paragraph 4 have been admitted to be correct. Earlier translation work for the High Court used to be done by the Office of the District and Sessions Judge. In the year 1965 this practice was stopped and accordingly posts of translators in all the Offices of District and Sessions Judges were abolished and five posts of translators on temporary basis was sanctioned by the Government for the High Court for this translation work and accordingly five persons were recruited. They were also confirmed in the post of translators in the year1976. The High Court moved the State Government to give the same pay scale to the translators of the High Court as enjoyed by the translators of the Assam Secretariat. This request was made as all the posts in the High Court upto the rank of Deputy have been given the corresponding pay scale of the Assam Secretariat since 1964. The proposal was however, not agreed to by the State Government and gave a counter suggestion for creation of a separate cadre of translators and requested the High Court to lay down appropriate qualifications, experience and method of recruitment to the cadre. Further request was made to the High Court to send proposal for creation of two posts of Senior Grade Translators as creation of separate cadre of translators would likely to take some time. The said letter dated 22nd December, 1980 issued by the Secretary to the Govt. of Assam, Judicial Department is available at Annexure-1(B) to the writ petition. Accordingly, a proposal was sent for creation of two posts of selection grade translators. The then Honble Chief Justice also decided to create a separate cadre of translators consisting of 10 posts and also suggested requisite qualification for the post, which was communicated to the State Government with a request to create five more posts of translators to make the cadre of 10 posts as five posts were already sanctioned. The said letter from the Registrar(Administration) to the State Government dated 26th August, 1981 is available at Annexure-1(D) to the petition. There was some controversy between the State Government and the High Court regarding the pay scale for senior translators and a writ petition was filed, which was registered as Civil Rule No. 536 of 1982. The said petition was disposed of by a Division Bench of this Court by order dated 8.3.1983, vide Annexure-1(F) to the present petition. The Court recorded the statement of the learned Senior Government Advocate that the Government agreed to create two more posts of selection grade translators in the pay scale of Rs. 650/- to 1025/-, in other words, 4 posts of selection grade translators in the above scale. The Court expressed the hope that the State Government would agree to create one more posts in the selection grade to give benefit to all five translators, who were originally appointed. Ultimately, one more post of Senior Grade Translator was also created, thereby, increasing such posts to 5. As the revised pay scale or the said post is Rs. 1075/- to 1725/-, the petitioners have claimed the Gagetted status in the present writ petition. The criteria for giving Gazetted Status as contended by the learned counsel for the petitioners has been laid down in Appendix-III to the resolution adopted by the Government in the year 1983 on the Report of the Assam Pay Commission 1979. The said criteria for giving gazetted status has been quoted in paragraph 10 of the writ petition, which runs as follows;

"A post fulfilling condition at (A) and at least 2 (two) of the condition at (B) below may be given gazetted status.

(A) The post should carry the scale of pay of Rs. 670/-Rs. 1500/- or above.

(B) The post should:

(i) Involve supervision of an independent office, (ii) involve exercise of drawing and disbursing power, (iii) require exercises of statutory power, (iv) require independent decision excluding decision of routine type, (v) require inter-departmental liaison as a part of normal work with gazetted officers of other departments.

For the purpose of conferring gazetted status to a particular post, the Secretary of the Department should be the authority to decide as to whether required conditions have been fulfilled in respect of such posts."

6. We may quote the relevant provisions of Constitution and the Rules at this stage. Article 229 of the Constitution runs as follows:

"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:

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."

7. It may be stated that this Article was amended by the Constitution (Seventh Amendment) Act, 1956 and the words "in which the High Court has its principal seat" was omitted in the proviso to Clause (1) and (2) of this Article. No law has been made by any State under the jurisdiction of this Court regarding conditions of service of officers and servants of the High Court and as such relevant provisions of the Rules have to be looked into for the purpose of determining the controversies in this present writ petition.

Clause (e) and (f) of Rule 2 of the Rules runs as follows:

"(e) "Cadre" means the sanction strength of the service.

(f) "The Service of the High Court" includes Gazetted Posts, ministerial posts, special posts, posts in the Subordinate Service and posts of extra-typists or copysts".

Rule 3 of the Rules classifies both Gazetted and Non-gazetted posts in the High Court.

The Gazetted posts are-(i) The High Court service Class I,(ii) The High Court Service-Class II and IIA, (iii) The High Court Service of Stenographers Grade-I (Special Class) Class IIB, (iv) The High Court (Ministerial) Service-Class IIC, (v) Special Posts-Class IIB. Non-Gazetted Staff includes, firstly, the Ministerial Establishment i.e. the High Court Ministerial Service- Class HI, Non-Ministerial Establishment i.e.(i) The High Court Subordinate Service(Superior)-Class IV,(ii) The High Court Service of Extra Typists or Copyists Class IV, and(iv) The High Court Subordinate Service(Inferior) Class v. Rule 7, inter alia, gives the list of Gazetted Officers in the High Court and this list includes Registrar, Joint Registrar, Deputy Registrar, Principal Private Secretary Assistant Registrar and employees included under the heading Class II(B), (C) and (D) as shown in Schedule-Ito the Rules. The Schedule-I is very clear and this not only includes the posts which. are Gazetted but also non-gazetted. This list also includes non-ministerial establishment, High Court Subordinate Service (Inferior). This Rule 7 also provides the mode of appointment to the above posts. In Part-III of the Rules under heading `Conditions of Service, Rule 11 is included, which runs as follows:

"The Cadres of the different classes of service in the court including the number and character of posts and the scale of pay attached to them, shall be those as set out in Schedule I hereto".

Rule 14, inter alia, provides that every person on appointment to the High Court Service shall be on probation for a period of one year unless otherwise ordered by the Chief Justice. According to Rule 15, a member of the High Court Service Class-I and Class II and the High Court Ministerial Service may be confirmed in the post to which he has been appointed or promoted when (a) he has completed the period of probation and (b) the Honble Chief Justice is satisfied that he is fit for confirmation. Sub-rule (ii) of Rule 15 further provides that a member of the Subordinate Service may also be like-wise confirmed in the post to which he has been appointed only when the Registrar is satisfied that he is fit for confirmation, with the prior approval of the Honble Chief Justice. According to Rule 16, the person holding any post mentioned in the said Rule shall not be confirmed unless he has passed the tests prescribed in Schedule-II to the Rules and the post of Translators is also included in the list. We are not concerned with sub-rule (ii) of Rule 16 for the purpose of the case in hand. Rule 37, inter-alia, provides that subject to the provisions of these Rules, the rules and orders for the time being in force and applicable to the Government servants of corresponding classes in the service of the State shall mutatis mutandis regulate the service of persons serving on the Staff attached to the High Court, provided that the powers exercisable under the said rules and orders by the Governor of the State of Assam or by any authority subordinate to the Governor of the State of Assam shall be exercisable by the Chief Justice or any such person as he may, by special or general order direct. Rule 63 contains the residuary power of Honble Chief Justice and Rule 63 A empowers the Honble Chief Justice to relax age or qualifications for appointment to the service of the High Court in appropriate cases according to his discretion.

8. From reading paragraphs 45, 46 and 47 of the judgment of the Apex Court in B.S.Yadav vs. State of Haryana and others, AIR 1981 SC 561 [LQ/SC/1980/441] , it is clear that the power of the Governor under proviso to Article 309 to make appropriate rules is legislative power and under the said Article the Governor substitutes for the legislature as the legislature has not yet exercised its power to pass an appropriate law on the subject. It was also held by the Lordships that whether it is the legislature who passes an Act or the Governor makes rules under Article 309, the end product is `law.

9. If we read Clause (2) of Article 229 and compare it to in Article 309 of the Constitution, we are constrained to hold that the power conferred by this Article on the Honble Chief Justice is also legislative power and any Rule made under this clause is a `law. Only restriction placed regarding framing of the Rules by the Honble Chief Justice is that if such rules relate to salaries, allowances, leave or pension, these Rules shall require prior approval of the Governor of the State. This law making power of the Honble Chief Justice is subject to provisions of any law made by the legislature of the State. There is no dispute that regarding conditions of service of officers and servants of this High Court, no law has been framed. Clause (1) of Article 229 of the Constitution gives unfettered power to the Honble Chief Justice regarding appointment of officers and servants of an High Court. The main object of the Article 229 of the Constitution is to keep the independence of the judiciary intact as envisaged by the framers of our Constitution. Keeping in view of the other provisions of the Constitution in respect of Governors role regarding expenditure from the consolidated fund of a State, restrictions have been placed on the law making power of the Chief Justice under this Article regarding approval of the Governor.

10. A Division Bench of this Court in M. Gurumoothy vs. Accountant General, Assam & Nagaland and others, AIR 1969 Assam and Nagaland 25, held as follows:

Regarding Article 229 of the Constitution-"It, therefore, remains for the Chief Justice of the High Court to make rules regarding the conditions of service of officers and servants thereof. This power of the Chief Justice can be exercised by any Judge or officer of the Court authorised by the Chief Justice to make the Rules. Even if these Rules are made under Clause (2), they will be subject to the provisions of any law made by the State Legislature, but, as pointed" out earlier, no such laws have been made. While under Clause (2) the Chief Justice is authorised to make the Rules in respect of the conditions of service of officers and servants of the High Court, the proviso to this clause requires that the rules so made, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. It will be seen that the conditions of service mentioned in Clause (2) are wide enough to include all kinds of conditions of service of officers and servants and without the proviso it might have been embraced the salaries, allowances, leave or pensions. Under Article 229 it is necessary for the Chief Justice to make the rules under Clause (2) and also to obtain the approval of the Governor in respect of those rules which he makes relating to salaries, allowances, leave or pensions. It is, therefore, clear that although the Chief Justice makes the rules regarding the conditions of service and even can at the first instance propose rules relating to those relating to the letter have got to receive the approval of the Governor of the State before these can be enforced. The rules regarding the conditions of service in general which have nothing to do with salaries, allowances, leave or pensions need not be sent to the Governor for approval............."

11. The present Rules in question were framed by the Chief Justice under Article 229 of the Constitution and with the approval of the Governor so far as the Rules relates to salaries, allowances, leave and pension etc. Thus these rules are law and the present dispute have to be decided within four corners of these Rules.

12. First, let us consider the statement made in the counter filed by the Registrar (Administration) "that although the post of Translators were created in the year 1969, the holders of those posts opted to remain as ex-cadre`. This statement is absolutely vague. Rule 11 of Rules, specifically states that the cadre of different classes of service in the Court shall be those as set out in. Schedule I to the Rules. On perusal of Schedule I we find that under the head "(II) Ministerial Establishment (Non Gazetted)" the posts of Translators have been included alongwith other posts in item (v). Thus the post of Translators are Cadre post and cannot be treated as Ex-cadre. Now the question is regarding the status of a Senior Translators. We have already stated the history for creation of these posts. It is true that the post of Senior Translators have not been mentioned in Schedule I. We find that `Librarian-cum-Research Officer was included under the sub-head "Class (ii) (d)`under the head "In Gazetted Officers". Subsequently, we find from the letter No. LJJ. 161/75/Pt/35 dated 24th April, 1976 from the Government of Assam, Law Department, that this posts was upgraded by giving the pay scale of Rs. 500/- to Rs. 1225/-. Consequently, this post ought to have been included in some other class under the head "I. Gazetted officers" in Schedule I to the Rules. But this has not been done and for that it cannot be said that the post is an Ex-cadre post.

13. That apart the word "Cadre" means "strength of service" vide Rule 2(e). The service consequently means `the service of the High Court as defined in Rule 2(f). This Clause (f) has already been quoted and this is an inclusive definition. Reading this definition, we are of the opinion that "the service of the High Court" means all the employees of the High Court appointed by the Honble Chief Justice or the Registrar with the approval of the Honble Chief Justice under Rule 6 of the Rules. Thus the statement made in the counter affidavit of the Registrar(Administration) that the post of Senior Grade Translator are Ex-cadre post has no force at all. It has been stated that in view of Rule 11 of Rules, these posts, cannot be treated as Cadre post as these posts have not been included in Schedule I to the Rules. This view has no force as we have already stated regarding the position of Librarian-cum-Research. Officer. What possibly the Registrar wants to mean is that these posts of Senior Grade Translators are not feeder posts for promotion to the post of Superintendent, Assistant Registrar etc. In that sense, possibly the term Ex-cadre has been used. This view has considerable force inasmuch as reading Rule 7 of Rules, we are of the opinion that these posts have been excluded from the classes of posts to be considered for promotion to the higher post as mentioned in Schedule-I to the Rules.

14. Now the next question is whether in this petition we can direct that these posts shall be included under the appropriate clause of Gazetted Officer for consideration for promotion to a higher post. We have already given the background regarding creation of Senior Grade Translators, From this back ground it is absolutely clear that the intention was to have a separate cadre for translators. That being the position these persons cannot claim as a matter of right promotion to the higher post in the normal channel of promotion as stated in the Schedule I to the Rules.

15. Most important point is that the power "of the Honble Chief Justice under Article 229 of the Constitution for framing Rules is a legislative power and this Court cannot issue any direction for making legislation. In other words, no direction can be given to amend the rules framed under Article 229 of the Constitution. We are, therefore, unable to accept the contention on behalf of the petitioners that the petitioners are entitled to be considered for promotion to higher post.

16. The learned counsel for the petitioners has urged that every employee has to be given an opportunity to advance in his career within the organisation. In this connection, decisions of Apex Court have been cited. There cannot be any dispute on this point. As a separate service of translators was decided to be constituted it is expected that the line of promotion in this service so constituted should be there. Another grievance of the petitioners is that considering the qualifications and the nature of work the action of the High Court in asking them to serve under the Superintendent, who is appointed not from their service, but from general cadre is unjust and unfair. We are of the opinion that as it has been decided to have a separate cadre for these posts and nature of work of these translators including Senior Translators are different, this contention has force and we, accordingly, direct the Registrar that the translators being a separate service shall not be asked to serve under the Superintendent of the General Branch. The Registrar shall prepare a scheme to constitute a separate service as decided earlier for all the Translators including Senior Grade Translators. There will be, however, no bar on the part of the High Court Administration to place this wing of the High Court under a Higher Officer such as Registrar or Deputy Registrar till a separate cadre is constituted as agreed to earlier between the High Court and the State Government. As the creation of the higher posts for the Translators will involve more funds, it will require prior approval of the Governor under Article 229 of the Constitution. We hope, the State Government would consider the proposal favourably, in view of the earlier commitment and such proposal shall be sent from the High Court Registry, if approved by the Honble Chief Justice.

17. Now the second question is regarding conferring Gazetted status on the translators. We are of the opinion that giving such status does not relate to salaries, allowances, leave or pension as mentioned in the proviso to Clause (2) of Article 229 of the Constitution and accordingly we hold that it is within the legislative power of the Honble Chief Justice. We have already quoted the guideline laid down by the Pay Commission regarding giving Gazetted status. It is again for the Honble Chief Justice to consider as to whether such guideline would be adopted to the employees of the High Court to keep uniformity in respect of all Government employees of the State. We have perused the Rule and we do not find any Rule conferring powers on the Chief Justice to give Gazetted Status except those mentioned in Schedule I to the Rules. So for laying down the conditions and giving such Gazetted status to officers other than those included in Schedule I to the Rules, the Rules would require amendment. There is also no provision in the Rule for giving Gazetted status independently and thereafter equating the post to any of the classes mentioned under the head "I. Gazetted status" in Schedule I to the Rules. We make it very clear that by conferring gazetted status to any employees of the High Court, it is not necessary to place such class of officers in any of the classes mentioned in Schedule I to the Rules and independently Rules can also be so amended that Gazetted status can be given without conferring any right on such officers to claim promotion to the posts in the channel laid down in Schedule I. In fact, as it has been decided to have a separate cadre for Translators including Senior Grade Translators their scope for future promotion may be different considering their nature of work. We may also state that these Translators have genuine grievance as they are stagnating as Senior Translators for a long period.

18. That last grievance of the petitioner is regarding their confirmation. In the counter filed, Registrar (Administration) has made a statement that it is under consideration. Drawing our attention to Rules 14 and 15 of the Rules and the Additional Affidavit filed on behalf of the petitioner it has been urged that the petitioners may be deemed to have been appointed on probation and as such they are entitled for consideration of their confirmation after 1 year of service on probation.

19. Rule 14, inter alia, provides that every person on appointment to the High Court Service shall be on probation for a period of 1 year unless otherwise ordered by the Chief Justice. Reading Rule 15 we find that a member of High Court Service Class I & II and the High Court Ministerial Service may be confirmed in the post to which he has been appointed or promoted when (a) he has completed the period of probation and the Honble Chief Justice is satisfied that he is fit for confirmation.

20. Admittedly, the petitioners were not put on probation. A person can be put on probation only if there is a permanent post. Reading the above two rules it is clear that confirmation of an employee after 1 year of service is not automatic as the Honble Chief Justice has to be satisfied that he is fit for confirmation. Of Course, an employee after putting in one year of probation has got a right to be considered by the Honble Chief Justice for confirmation.

21. In the affidavit though it has been stated that the cases for confirmation of the petitioners are under consideration it has not been specifically stated whether there are permanent posts and whether the Translators were treated as on probation against such permanent posts and further whether their cases were put up for consideration by the Honble Chief Justice.

22. In view of the above position we are of the opinion that the petitioners are entitled to get a direction from us that the Registrar shall examine all these aspects and if their cases have not been put up for confirmation before the Honble Chief Justice it shall be done immediately unless in the meantime petitioners have been confirmed.

23. Regarding Rule 16, i.e the requirement to pass the prescribed test for confirmation of the employees mentioned in the said Rule it has been categorically stated in the petition that in case of other employees/class of employees confirmation was done without such test. There is no clear averment in the affidavit of the Registrar (Administration) denying this assertion of the petitioners. If in case of other classes of employees specified in the said rule 16 no test was held before confirmation, it will follow that in case of present petitioners also this rule cannot be applied as it may amount to discrimination thereby attracting the provisions of Article 14 of the Constitution. If this is the actual position, Registrar may examine the matter and put up before the Honble the Chief Justice as to whether this rule requires deletion as it has not been followed strictly in case of all the employees. However, under Rule 14 of the Rules, the Chief Justice has to be satisfied that the person is fit for confirmation and this power is wide enough and the Chief Justice may even test the employee in whatever manner the Chief Justice may deem fit and proper.

24. In the result, the petition is disposed of with the direction to the Registrar to frame a scheme within three months for the purpose of constituting a separate independent service of Translators with necessary scope for promotion in that line and put up to the Chief Justice for consideration. As this scheme may have financial implications it shall be favourably considered by the State Government in view of the earlier commitment for creation of separate service for Translators, if the scheme is approved by the Chief Justice and sent to the Government. We further direct the Registrar to prepare a scheme for "amendment of the Rules for conferring Gazetted status in addition to the classes of officers mentioned in Schedule I to the Rules, making it clear, it is not necessary that by giving Gazetted status any employee can claim promotion in the line already laid down in Rule 7 read with Schedule I to the Rules. This scheme shall also be prepared within three months and put up before the Chief Justice for consideration. We, however, make it clear that it is purely within the discretion of the Honble Chief Justice to decide whether the Rules shall be amended or not for giving Gazetted status. We further direct that the cases for confirmation of the petitioners shall be taken up by the Registrar as per our earlier direction and put up to the Chief Justice for consideration.

The petition is disposed of with the above directions. There will be no order as to costs.