Full Judgment Text
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PETITIONER:
HIGH COURT OF PUNJAB & HARYANA ETC.
Vs.
RESPONDENT:
STATE OF HARYANA & ORS. ETC.
DATE OF JUDGMENT24/01/1975
BENCH:
RAY, A.N. (CJ)
BENCH:
RAY, A.N. (CJ)
KHANNA, HANS RAJ
MATHEW, KUTTYIL KURIEN
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
CITATION:
1975 AIR 613 1975 SCR (3) 365
1975 SCC (1) 843
CITATOR INFO :
R 1976 SC 404 (21)
R 1976 SC1841 (11,17)
R 1976 SC1899 (20,21,28)
RF 1977 SC1619 (13)
RF 1977 SC2328 (14)
R 1979 SC 193 (38)
R 1979 SC 478 (152)
E 1981 SC 561 (5,22,33,48,58,61,62)
R 1982 SC1579 (27)
R 1987 SC 331 (24)
R 1988 SC 488 (9)
R 1988 SC1388 (16)
ACT:
Constitution of India 1950, Article 233, 234 and
235--"Control over district courts and Courts sub-ordinate
thereto"--"Control", meaning of--Confirmation of persons
appointed to be District Judges, if within the control of
High Court.
Constitution of India, 1950, Article 235 and Punjab Superior
Judicial Service Rules, 1963, Rule 10--Promotion of a person
to be District Judge--Rule conferring power of confirmation
on the Governor, if valid.
Constitution of India, 1950, Article 235 and Punjab Civil
Service (Punishment and Appeal) Rules, Rule 9--Disciplinary
proceedings against District Judges--Enquiry by Government
without thee concurrence of High Court, if valid.
HEADNOTE:
Before Rao was appointed as Additional District and Sessions
Judge tinder Rule 9 of the Punjab Superior Judicial Services
Rules 1963, he was functioning as a District Attorney. He
assumed charge and completed two years of probation. On the
receipt of the complaint against him, the High Court
entrusted to Justice Gurnam Singh an enquiry into the
complaint. Rao was transferred to Ambala and later to
Karnal as District and Sessions Judge. The High Court
considered the report of Justice Gurnam Singh who came to
the conclusion that the charges against Rao were not
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substantiated. On 19 April, 1973 the High Court promoted
Rao as permanent District and Sessions Judge, with effect
from March 30, 1973. The Government on the same day wrote
to the High Court, saying that the view of the High Court
about competency to confirm District and Sessions Judges was
legally untenable. The High Court was requested to
reconsider the matter and the issuance of notification
confirming Rao was withheld. On 4 May, 1973 the High Court
confirmed Rao as District and Sessions Judge with effect
from July 7, 1972 on which date he completed the period of
probation. On May 26, 1973 the Government wrote to the High
Court stating that the Government did not recognise the
order of confirmation issued by the High Court. The
Government further said that Rao would be deemed to be under
extended period of probation. The Government said that the
High Court would be well advised to review their earlier
decision and send the requisite record without any further
delay. On .1 )tine, 1973 the Government wrote to the High
Court saying that the Government were of opinion that in
view of the probationary period of Rao having been found to
be unsatisfactory he was not fit to be retained on the post
of District/Additional District and Sessions Judge and
should be reverted to his substantive post of District
Attorney. The Government further requested the High Court
that the matter might be placed before the Judges
immediately so that the views of the High Court would be
available to the Governor before the High Court went into
vacation. On 2 June, 1973 the High Court replied that the
matter was under consideration of the Judges and their views
would be communicated to the State Government early. The
vacation commenced on 2 June, 1973. On 12 June, 1973 the
Government wrote to the High Court saying that if the views
of the High Court were not received, the State Government
would have no alternative but to take a final decision. On
14 June, 1973 the High Court wrote to the Government that
reply would be sent after the reopening of the High Court.
The High Court.reopened on 15 July 1973. On 21 June, 1973
the Governor wrote a note approving action proposed by the
Council of Ministers. There was a gazette notification
reverting Rao from the post of District and Sessions Judge.
Ambala to his former most of District Attorney Rao
challenged the order of the (governor in an application
under Article 226 in the High Court.
The High Court held that the order of confirmation of
District/Additional District & Sessions Judge on probation
has to be passed by the Governor in consultation with the
High Court and in this view of the matter the order of
confirma-
423 SCI/75
366
tion of Rao passed by the High Court was ineffective. The
allegation that the orders were the result of the mala fides
has not been substantiated. The orders were invalid because
they were based on an enquiry conducted by the Director,
Special Enquiry Agency, otherwise than through or with the
concurrence of the High Court and as such were violative of
Article 235. The impugned orders were passed without
effective consultation with the High Court and were
violative of Article 233 of the Constitution. Appeals have
been preferred to this Court by the State as well as by Rao.
The High Court has also preferred an-appeal.
HELD (i) The confirmation of persons appointed to be or
promoted to be District Judges is clearly within the control
of the High Court. When persons are appointed to be
District Judges or persons are promoted to be District
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Judges the act of appointment as well as the act of
promotion is complete and nothing more remains to be done.
Confirmation of an officer on successful completion of his
period of probation is neither a fresh appointment nor
completion of appointment. Such a meaning of confirmation
would make appointment a continuing process till
confirmation. Confirmation of District Judges is vested in
the control of the High Court for the reason that if after
the appointment of District Judges the Governor will retain
control over District Judges until confirmation there will
be dual control of District Judges. The High Court in that
case could have control over confirmed District Judges and
the Governor would have control over unconfirmed District
Judges. That is not Article 235. [378 G-H]
(ii) The Governor has power to pass an order of dismissal
removal or termination on the recommendations of the High
Court which are made in exercise of the power of control
vested in the High Court. The High Court under this control
cannot terminate the services or impose any punishment on
District Judges by removal or reduction. The control over
District Judges is that disciplinary proceedings are
commenced by the High Court. It as a result of any
disciplinary proceedings any District Judge is to be removed
from service or any punishment is to be imposed that will be
in accordance with the conditions of service. [379 D,E].
(iii) The conclusion of the majority judgment of the
High Court that the order of confirmation is to be passed by
the Governor in consultation with the High Court is
erroneous and has, therefore, to be set aside. Rule 10
which confers power on the Governor to confirm is ultra
vires the Constitution. The order of confirmation of
District and Sessions Judge is to be passed by the High
Court. The High Court was right in quashing the order
passed by the Governor directing the removal because the
same was based on enquiry conducted by the Director, Special
Enquiry Agency, otherwise than through or with the
concurrence of the High Court. The High Court was also
right in holding that Rule 9 of the Rules has not been
complied with. [379 F-G]
State of Assam v. S. N. Sen [1972] 2 S.C.R. 251 State of
Assam v. Kusewar Seikia & Anr. [1970] 2 S.C.R. 928, The
State of West Bengal v. Nripenidra Nath Bagchi (19661 1
S.C.R. 771; High Court, Calcutta v. Amal Kumar Rov [1963] 1
S.C.R. 437 Chandra Mohati v. State of Uttar Pradesh & Ors.
[1967] 1 S.C.R. 77, State of Assam v. Ranga Mohammed & Ors.
[1967] 1 S.C.R. 454, G. S. Naomoti v. The State of Mysore’
[1969] 3 S.C.R. 325; Chandramoulashwar Prasad v. Patna High
Court & Ors. [1970] 2 S.C.R. 666, Shamsher Singh v. State of
Punjab & Anr. [1975] 1 S.C.R. 814 and Ishitar- Chand
Aggarwal v. State of Punjab (Civil Appeal No. 632 of 1974)
decided on 23 August, 1974 referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 852, 854 and
1503 of 1974.
From the Judgment and Order dated the 6th November, 1973 of
the Punjab & Haryana High Court in C.W. No. 2147 of 1973.
R. K. Garg (In C.A. Nos. 854 and 1503 of 1974), Anand
Swarup (In CA Nos. 8-54 and 1503/74) S. P. Nayar, for the
appellants (In C.A. 852/74) and Respondent No. 3 (in CAs.
854 & 1503/74).
367
Jagan Nath Kaushal Advocate General, Haryana, Dewan Chetan
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Das, Addl. Advocate-General, Haryana, Naunit Lal and Lalita
Kohli, for the appellants (In CA No. 852/74) and Respondent
No. 3 (In CAs. 854 & 1503/74).
Hardev Singh; R. S. Sodhi, K. P. Bhandari and Surinder Singh
for the appellant (In CA No. 1503/74) and Respondent No. 3
(In CA No. 852/74) and Respondent No. 1 (In CA No. 854/74).
The Judgment of the Court was delivered by
RAY, C.J. These appeals by certificate raise the question as
to whether the confirmation of N. S. Rao was to be made by
the Governor or by the High Court.
Rao was appointed on 23 June, 1970 on probation under Rule 9
of the Punjab Superior Judicial Service Rules 1963. He was
appointed as District/Additional District & Sessions Judge.
He assumed charged on 7 July, 1970. On 7 July, 1972 he
completed two years of probation. On 13 July, 1972 the High
Court received a complaint from Mangat Rai Gaba. The High
Court entrusted to Justice Gurnam Singh an enquiry into the
complaint. On 1 September, 1972 Rao was transferred to
Ambala as District and Sessions Judge. On 5 September 1972
there was an order posting Rao as District & Sessions Judge,
Karnal. On 13 October, 1972 there was a letter from the
State Government to the High Court, declining to issue
notifications under sections 20 and 21 of the Punjab Courts
Act.
On 13 February, 1973 the State Government addressed a letter
to the High Court to send its views about the completion of
probation by Rao. The High Court on 26 February, 1973
considered the report of Justice Gurnam Singh who came to
the conclusion that the charges against Rao were not
substantiated. On 8 March, 1973 the Government wrote
another letter to the High Court asking for the record of
service of Rao and the views of the High Court about the
completion of probation by Rao. The Government also asked
about the result of the enquiry along with the report. On
10 April, 1973 the High Court replied to the above two
letters saying that the matter of confirmation of promoters
as well as of Rao a direct recruit was with the High Court
and not with the Government.
On 19 April, 1973 the High Court promoted Rao as permanent
District and Sessions Judge, with effect from 30 March,
1973. The Government on the same day wrote to the High
Court saying that the view of the High Court about
competency to confirm District and Sessions Judges was
legally untenable. The High Court was requested to consider
the, matter and withhold issuance of notification confirming
Rao. On 4 May, 1973 the High Court in modification of the
earlier notification of 19 April, 1973 confirmed Rao as
District and Sessions Judge with effect from 7 July 1972 on
which date he completed the period of probation.
On 26 May, 1973 the Government wrote to the High Court
stating that the Government did not recognise the order of
confirmation issued
368
by the High Court. The Government further said that Rao
would be deemed to be under extended period of probation.
The Government said that the High Court would be well
advised to review their earlier decision and send the
requisite record without any further delay. On 1 June, 1973
the Government wrote to the High Court saying that the
Government were of opinion that in view of the probationary
period of Rao having been found to be unsatisfactory he was
not fit to be retained on the post of District/Additional
District and Sessions Judge and should be reverted to his
substantive post of District Attorney. It may be stated
here that Rao before he was appointed as Additional District
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and Sessions Judge was a District Attorney. The Government
further requested the High Court that the matter might be
placed before the Judges immediately so that the views of
the High Court would be available to the Governor before the
High Court went into vacation. On 2 June, 1973 the High
Court replied that the matter was under consideration of the
Judges and their views would be communicated to the State
Government early. It may be stated here that the vacation
commenced on 2 June, 1973. On 12 June, 1973 the Government
wrote to the High Court saying that if the views of the High
Court were not received, the State Government would have no
alternative but to take a final decision. On 14 June, 1973
the High Court wrote to the Government that reply would be
sent after the reopening of the High Court. The High Court
reopened on 15 July, 1973. On 21 June, 1973 the Governor
wrote a note approving action proposed by the Council of
Ministers. There was a gazette notification reverting Rao
from the post of District and Sessions Judge, Ambala to his
former post of District Attorney.
Rao challenged the order of the Governor in an application
under Article 226 in the High Court of Punjab and Haryana.
The High Court by a majority judgment held that the power to
confirm is a part of the power to appoint, and, therefore,
the Governor being the appointing authority the confirmation
is to be by the Governor on the advice of the Council of
Ministers. The majority view of the High Court was that
confirmation is not a matter of control of District Courts
by the High Court.
The other findings of the High Court are Is follows
First, all enquiries against an officer of the subordinate
judiciary, whether for the purpose of punishing him, if
found guilty, or for ascertaining his suitability or
otherwise for confirmation, can be initiated and conducted
by the High Court alone. The Government or any other
authority without the concurrence of the High Court is not
competent to initiate or hold any enquiry against a District
Judge or a member of the Judicial Services of the State.
The control vested in the High Court under Article 235 of
the Constitution read together with the mandate of Article
233 of the Constitution, makes it clear that the High Court
alone is competent to certify,/’recommend, advise, as to
whether or not the probationer Rao had satisfactorily
completed the period of probation.
369
Second, there has been both direct and indirect
noncompliance with the constitutional mandate, viz., not
consulting the High Court and consulting other persons who
were not entitled to advise him. In making the order the
Governor was influenced by an extraneous consideration,
viz., the report of the Director, Special Enquiry Agency and
thereby the provisions of Articles 233 and 135 were
contravened.
Third, Rule 9 of the Appeal Rules was attracted and non-com-
pliance with the mandatory provisions of Rule 9 is fatal to
the order terminating the services of Rao.
Fourth, the order was not one of punishment, and, therefore,
Article 311 was not attracted.
Fifth, no provision of the Constitution or statutory rules
has been brought to the notice of the Court which makes
consultation with the High Court obligatory for the Governor
before framing and issuing such Rules, though as a matter of
sound administrative policy the Governor should before
framing rules for the Judicial Services of the State.
consult the High Court. Before amending and promulgating
the amendment on 21 April, 1972, the Government solicited
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the views of the High Court.
Sixth, there is no force in the contention that regulation
of seniority is entirely a matter for the control of the
High Court. This is a condition of service which can be
regulated by the Governor in exercise of his legislative
power under the proviso to Article 309 of the Constitution,
though the fixation of seniority in accordance with such a
rule would be matter within the jurisdiction of the High
Court.
The High Court held that the order of confirmation of
District/ Additional District and Sessions Judge on
probation has to be passed by the Governor in consultation
with the High Court and in this view of the matter the order
of confirmation of Rao passed by the High Court was
ineffective. The allegation that the orders were the result
of the mala fides has not been substantiated. The orders
were invalid because they were based on an enquiry conducted
by the Director, Special Enquiry Agency, otherwise than
through or with the concurrence of the High Court and as
such were violative of Article 235. The impugned orders
were passed without effective consultation with the High
Court and were violative of Article 235 of the Constitution.
The mandate of Rule 9 of the Punjab Civil Service
(Punishment and Appeal) Rules, 1952 hereinafter referred to
as the Punishment Rules has not been complied with.
Appeals were preferred ’by the State as well as by Rao. The
High Court also preferred an appeal.
On behalf of the State it is contended that the control of
the High Court under Article 235 is neither absolute nor
complete. It is subject to prescribed limitations as
mentioned in Article 235. The Advocate General of Haryana
contended that Article 233 applies to confirmation of
appointments by direct recruitment and promotion. He relied
on the
370
decisions of this Court in State of Assam v. S. N. Sen(1)
and State of Assam v. Kuseswar Seikia & Anr. (2) in support
of the proposition that the appointing authority is the
confirming authority.
The contentions of the Advocate General were these.
Confirmation is the last step in the process of appointment
which is made in the first instance on probation.
Confirmation is nothing but the substantive appointment to
service. The earlier tenure is precarious. Confirmation
makes it firm. On a parity of reasoning given in S. N.
Sen’s case (supra) that the authority which promotes should
confirm it stands to reason that the power of confirmation
should vest in the authority which appoints. Confirmation
and non-confirmation are so inextricably mixed that it will
be anomalous to say that the power of confirmation is with
the High Court and the power of termination on non-
confirmation is with the Government. Transfer has no
analogy with confirmation. Transfer brings in no change in
tenure of service while confirmation does. Confirmation can
be on appointment as well as promotion. Since both powers
of appointment and promotion are with the Governor under
Article 233 the confirming authority is the Governor.
Either confirmation is a power of appointment or it is a
condition of service. In both the situations the power lies
with the Governor. Rule 10(2) of the Punjab Superior
Judicial Service Rules hereinafter referred to as the
Service Rules which states that on the completion of the
period of probation the Governor may in consultation with
the High Court confirm the direct recruit on a cadre post
with effect from a date not earlier than the date on which
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be completes the period of probation, is a condition of
service and is therefore not ultra vires.
It is necessary at this stage to refer to the order of
appointment of Rao. The order is as follows :-
"In exercise of the powers conferred under
rule 9, of the Punjab Superior Judicial
Service Rules, 1963 the Governor of Haryana,
on the recommendations of the Punjab and
Haryana High Court, is pleased to appoint, on
probation, Shri Narender Singh Rao, Assistant
Advocate General, Haryana as
District/Additional District and Sessions
Judge, in the State of Haryana in the scale of
Rs. 900-50-100060-1600-50-1800 with effect
from the date he assumes charge of the said
Act.
2. In all matters pertaining to seniority,
probation etc. he will be governed by the
provisions of Punjab Superior Judicial Service
Rules, 1963.
3. Order relating to initial pay to be
allowed to Shri Narender Singh Rao, will be
issued separate.
Cl) [1972] 2 S.C.R. 251.
(2) [1970] 2 S.C.R. 928.
371
Note 2 : proposals regarding the fixation of
pay Of Shri Narender Singh Rao, on appointment
as District Additional District & Sessions
Judge, Haryana, may please be forwarded to
Government as early as possible".
Rule 9 of the Service Rules speaks of appointment of direct
recruits. Rule 10 of the Service Rules speaks of probation
of direct recruits. Direct recruits shall remain on
probation for a period of two years, which may be so
extended by the Governor in consultation with the High
Court, as not to exceed a total period of three years. On
the completion of the period of probation the Governor in
consultation with the High Court confirms the direct recruit
on a cadre post with effect from the date not earlier than a
date on which he completes the period of probation. If the
work or conduct of a direct recruit has, in the opinion of
the Governor, not been satisfactory he may, at any time
during the period of probation or the extended period of
probation, if any, in consultation with the High Court and
without assigning any reason dispense with tile services of
such direct recruit.
The Advocate General relied on the notes to rule 2.45 of the
Punjab Civil Service Rules which defines the probationer.
Rule 2.49 is as follows :
"Probationer" means a Government servant
employed on probation or against a substantive
vacancy in the cadre of a department. This
term does not however cover a Government
servant who holds substantively a permanent
post in a cadre and is merely appointed " on
probation", to another post".
It is stated in note 2 that no person appointed
substantively to a permanent post in a cadre is a
probationer unless definite conditions of probation have
been attached to his appointment, such as the condition that
he must remain on probation pending the passing of certain
examinations. It is said by the State, that this is not the
present case. Note 3 states that the provisions of rule
2.49 and note 2 are to be taken as complementary. Taken
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together note 3 states that they contain the essence of the
tests for determining when a Government servant should be
regarded as a probationer, or as merely ’on probation’
irrespective of whether he is already a permanent Government
servant or is merely a Government servant without a lien on
any permanent post. While a probationer is one appointed in
or against a post substantively vacant with definite con-
dition-, of probation, a person on probation is one
appointed to a post not necessarily vacant substantively for
determining his fitness for eventual substantive appointment
to that post. There is nothing in this rule to prevent a
Government servant substantive in one cadre from being
appointed as a probationer in or against a post borne on
another cadre with definite conditions of probation such
as the passing of departmental examination which are
prescribed. In such a case the Government servant should be
treated as a probationer.
372
It is said by the Advocate General that no definite
conditions of probation were attached to the appointment of
Rao and he is not a probationer but on probation, and,
therefore, rule 9 of the Service Rules is not attracted.
Rule 9 is as follows :-
"Where it is proposed to terminate the
employment of a probationer, whether during or
at the end of the period of probation, for any
specific fault or on account of the
unsatisfactory record or unfavorable reports
implying the unsuitability for the service,
the probationer shall be apprised of the.
grounds of such proposal, and given an oppor-
tunity to show cause against it, before orders
are passed by the authority competent to
terminate the appointment".
He gave two reasons as to why Rule 9 is not attracted Rao is
on probation and not a probationer and Rule 9 only speaks of
probationer. Second, it is not a case of termination of
employment because Rao was under the order asked to go back
to his substantive. post of District Attorney, and,
therefore, it was not a case of termination.
It is true that the order of appointment of Rao states that
he is appointed on probation with effect from the date he
assumes charge of the post. Rule 10 of the Service Rules
provides that the probation is for two years and that it can
be extended. It is apparent that Rao was appointed on the
condition that he had to give satisfactory performance with
regard to his work and conduct during the period of
probation in order to qualify for confirmation. Rao was
directly recruited on probation in a substantive vacancy in
tile cadre of the Superior Judicial Service. Mere use of
the words "on probation" is not conclusive. Rao was a
probationer because he was appointed against a post
substantively vacant with definite conditions of probation.
Rao therefore became a probationer. His probation could be
extended so as not to exceed three years.
Article 233 states that appointments of persons to be, and
the posting and promotion of district Judges in any State
shall be made by the Governor of the State in consultation
with the High Court exercising jurisdiction.
Article 234 states that appointments of persons other than
district judges to the Judicial service of a State shall be
made by the Governor of the State in accordance with rules
made by him in that behalf after consultation with the State
Public Service Commission and with the High Court exercising
jurisdiction in relation to such State.
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Article 235 states that the control over district courts and
courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging
to the judicial service of a State and holding any post
inferior to the post of district judge shall be vested in
the High Court but nothing in this article shall be
construed as
373
taking away from any such person any right of appeal which
he may have under the law regulating the conditions of his
service or authorising the High Court to deal with him
otherwise than in accordance with the conditions of his
service prescribed under such law.
Article 236 states that the expression "District Judge"
includes judge of a city civil court, additional district
judge, joint district judge, assistant district judge, chief
judge of a small cause court, chief presidency magistrate,
additional chief presidency magistrate, sessions judge,
additional sessions judge and assistant sessions judge.
The appointment of persons to be District Judges is vested
in the Governor of the State under Article 233. The words
"posting and promotion of district judge" in Article 233
have been construed by this Court to mean posting and
promotion of persons to be district judges. The words
"appointment of persons to be and the posting" in Article
233 have been held by this Court to mean initial appointment
by direct recruitment of persons to be district judges and
the posting mentioned there is the initial posting.
Promotion of district judges has been expanded to mean
promotion of persons to be district judges.
The Advocate General submitted that the control of the High
Court under Article 235 is subject to limitation. These
limitations are laws regulating conditions of service.
There may not only be right of appeal under the conditions
of service but in the present case Rule 10 of the Service
Rules being the conditions of service, speaks of confirma-
tion of probationer by the Governor in consultation with the
High Court. Such rules are said by the Advocate General to
be protected under Article 235 within the conditions of
service and excluded from the control of the High Court.
The question of control by High Court of Subordinate Courts
was considered by this Court in The State of West Bengal v.
Nripendra Nath Bagchi(1). Bagchi was Additional District
and Sessions Judge. Bagchi officiated as District and
Sessions Judge, but was not confirmed as such. Bagchi was
du..- to retire on 31 July, 1953. By an order dated 14
July, 1953, the State Government ordered that Bagchi be
retained in service for a period of two months commencing 1
August. 1953. By another order dated 20 July, 1953 Bagchi
was placed under suspension. On the following day Bagchi
was served with 11 charges. An enquiry into the charges was
made by an officer appointed for the purpose. The Enquiry
Officer reported that some of the charges were proved.
Bagchi was asked to show cause on 18 March. 1954 as to why
he should not be dismissed from service. Bagchi was
dismissed on 27 May, 1954.
This Court in Bagchi’s case (supra) considered two
questions. First, whether the enquiry ordered by the
Government and conducted by an executive officer of the
Government against the District and Sessions Judge
contravened the provisions of Article 235 of the Con-
stitution which vests in the High Court the control over
district courts
374
and courts subordinate thereto. Second, whether rule 75(a)
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of the West Bengal Service Rules could be utilised to extend
the service of Bagchi beyond the normal age of retirement.
This Court held in Bagchi’s case (supra) that the rule was
modeled on Rule 56(a) of the Fundamental Rules and was not
designed to be used for the purpose of retaining a person in
service for enquiry against him but to keep in employment
persons with meritorious record of service and whose
retention in service is considered necessary on public
rounds. If retention in service for enquiry was needed a
rule similar to rule 56(a) of the Fundamental Rules was
required.
On the question of control by the High Court under Article
235 this Court held in Bagchi’s case (supra) that the word
"control" as used in Article 235 includes disciplinary
control or jurisdiction over district judges. This control
is vested in the High Court to effectuate a purpose, namely,
the securing of the independence of the subordinate
judiciary and unless it includes disciplinary control the
very object would be frustrated. The word "control" is
accompanied by the word "vest" which shows that the High
Court is made the sole custodian of the control over the
judiciary. Control is not merely the power to arrange the
day to day working of the court but contemplated discip-
linary jurisdiction on the presiding judge. The word
"control" includes something in addition to mere
superintendence over these courts. The control is over the
conduct and discipline of judges. The inclusion of a right
of appeal against the orders of the High Court in the
conditions of service indicates an order passed in
disciplinary jurisdiction. The word "deal" in Article 235
also indicates that the control is over disciplinary and not
mere administrative jurisdiction. The word .,court" in the
term "district court’ is used compendiously to denote not
only the court proper but also the presiding judge. The
control which is vested in the-High Court is complete
control subject only to the power of the Governor in the
matter of appointment including dismissal and removal and
initial posting and promotion of District Judges. Within
the exercise of the control vested in the High Court, the
High Court can bold enquiries, impose punishments other than
dismissal or .removal subject however to the conditions of
service, to a right of appeal if granted by the conditions
of service and to the giving of an opportunity of showing
cause as required by Article 311(2) unless such ,in
opportunity is dispensed with by the Governor acting under
the provisos, (b) and (c) to that clause. The High Court
alone will make enquiry into disciplinary conduct.
The Advocate General on behalf of the State submitted that
the control of the High Court is subject to limitations and
these limitations ,ire conditions of service. If under the
conditions of service confirmation is to be made by the
Governor, this is said to be, a limitation on the control of
the High Court. That turns on the primary question whether
confirmation is within the power of appointment.
In the High Court, Calcutta v. Amar Kumar Roy(1) the respon-
dent asked for a declaration that he was senior in the cadre
of Sub-
(1) [1963] 1 S.C.R. 437.
375
ordinate Judges if no supersessions had taken place. This
Court held that Article 235 read with service rules slowed
that a Munsif had no. right to promotion which could be
enforced through court. It is not correct to say that the
High Court should have consulted the State Public Service
Commission because Article 320(3)(c) contemplated
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disciplinary matters. There was no reduction in rank of the
respondent in that case. All Subordinate judges were in the
same cadre and held the same rank irrespective of seniority.
Losing place in the seniority 1st did not amount to
reduction in rank.
in Chandra Mohan v. State of Uttar Pradesh & Ors.(1) this
Court considered Article 233 and the question of appointment
of District Judges. The appellant in that case challenged
the recruitment of District Judges. The Governor under the
Rules decided on the number of candidates to be selected. A
Selection Committee was constituted under the Rules. The
High Court submitted to the Government a list of candidates
considered suitable for appointment. The Governor made the
appointments from the list. It was contended that under
Article 233 the Governor has to make the appointments in
consultation with the High Court concerned and under the
rules he had to consult the Selection Committee, and,
therefore, the appointments made in consuitation with two
authorities instead of one were illegal.
It was held in Chandra Mohan’s case (supra) that under
Article 233 the Governor can appoint a person to the post of
a district judge from the services only in consultation with
the High Court. This Court said that Judicial Service is
defined in Article 236(b). The definition is exhaustive of
the service because the expression means service consisting
exclusively of persons intended to fill the post ofdistrict
judge and other civil judicial post inferior to the post of
district Judge. The judicial service is the exclusive
service of judicial officers. In the case of appointment of
persons to the Judicial Service other than District Judges,
they will be made by the Governor in accordance with rules
framed by him in consultation with the High Court and the
Public Service Commission. But the High Court has control
over all’ the district courts and courts subordinate
thereto,. subject to certain prescribed limitations.
The Selection Committee under Rule 13 in Chandra Mohan’s
case (supra) was to consist of two judges of the High Court
and the Judicoal Secretary to the Government. The Selection
Committee under Rule 17 was to draw up a list of candidates
selected. The High Court was to submit to the Governor the
list of candidates considered suitable for appointment from
two sources of recruitment, viz., direct recruitment and
recruitment by promotion. This Court said that the
Selection Committee reduced the High Court to the position
of a traasmitting authority The High Court could not
scrutinise the other applications which were screened by the
Selection Committee. The High Court could not recommend
persons for appointment not found in the list. This Court
therefore held the Rules regarding Selection Committee to be
unconstitutional.
(1) [1967] 1 S.C.R. 77.
376
In State of Assam v. Ranga Mohammed & Ors.(1) this Court
considered as to whether the High Court or the State
Government was the competent authority for transfer of a
district Judge. The High Court held that the High Court
alone could order transfer and in any event the High Court
was to be consulted and was not consulted before the orders
were made. This Court held that the Governor is only con-
cerned with the appointment, promotion and posting to the
cadre of District Judges and not with the District Judges
already appointed, promoted and posted to the Cadre. The
word "posting" in Article 233 was held to mean to station
some one at a place or to assign someone to a post. The
words "appointment, posting and promotion" indicate the
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stage where a person first gets a position or job and
"posting" by association means the assignment of an
appointee or promotee to a position in the cadre of District
Judges. The word "posting" cannot be understood in the
sense of "transfer" when the idea of appointment, and
promotion is involved in the combination. If posting was
intended lo mean transfer the draftsman would have hardly
chosen to place it between "appointment" and "promotion".
The Governor under Article 233 is only concerned with the
appointment, promotion and posting to the cadre of district
judges but not with the transfer of district judges already
appointed or promoted and posted to the cadre. Transfer is
a matter of control over district courts which is vested in
the High Court. In Article 234 the question of appointment
of persons other than district judges to the judicial
service is contemplated. In Article 235 the posting and
promotion of persons belonging to the judicial service of
the State and holding any position inferior to the post of
district judge is contemplated.- The word "post" is used
twice in Article 235 to mean the position or job and not the
station or place and therefore posting means assignment to a
position or job. In Ranga Mohammed’s case (supra) this Court
said that transfer of incumbents is a matter within the
control of district Courts including the control of persons
presiding there and the High Court is the authority to make
transfer, and there is no question of consultation on that
ground. The State Government is )lot the authority to order
transfers.
In G. S. Nagmoti v. The State of Mysore (2) this Court
considered the meaning of the word "control" in Article 235.
At the request of the High Court the Government appointed a
judge to hold the departmental enquiry into the conduct of a
judicial officer. The learned Judge of the High Court held
the departmental enquiry and found the Judicial Officer
guilty of the charge. He recommended to tile Governor that
the Judicial Officer might be reduced in rank and might not
be considered for promotion for two years. The Governor
compulsorily retired the Judicial officer from service. The
Judicial Officer thereafter filed a writ petition contending
that the compulsory retirement was in contravention of
Article 235 because it was the High Court alone which has
power of holding disciplinary proceedings against the
(1) [1967] 1 S.C.R. 454.
(2) [1969] 3 S.C.R. 325.
377
Judicial Officers. This Court held that the word "control’
in Article 235 includes disciplinary control and
jurisdiction over District Judges. The control of the High
Court is not merely the power to arrange day to day working
of the court but contemplates disciplinary jurisdiction over
the presiding Judge. This Court did not examine the
contentions of the Judicial Officer because the High Court
had dismissed the petition in limine. The matter was
remitted to the High Court for disposal in accordance with
law.
In Chandramouleshwar Prasad v. Patna High Court & Ors.(1) it
was said that under Article 233 the appointment of a person
to be District Judge rests with the Governor but he must
make the appointment in consultation with the High Court.
The Governor should make up his mind after there has been a
deliberation with the High Court. The consultation is not
complete or effective before the parties thereto make their
respective points of view known to the other or others. It
was said that the Governor cannot discharge his functions
under Article 233 if he makes the appointment of a person
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without ascertaining, the points of view of the High Court
with regard thereto.
In State of Assam & Anr. v. Kuseswar Seikia & Ors. (supra)
Article 233 was considered as to whether the appointment of
a person belonging to the State Judicial Service to
officiate as Additional District and Sessions Judge was
within the power of the Governor or the High Court. The
High Court held that the promotion of Rajkhowa by the
Government as Additional District Judge was void because he
could only be promoted by the High Court under Article 235.
The Assam Judicial Service consisted of the senior branch
and the junior branch.. The senior branch consisted of two
grades. The first grade consisted of the posts of
Registrar, Legal Remembrancer, District Judges. The second
grade consisted of the post of Additional District and
Sessions Judges. The Junior branch in Grade I consisted of
the post of Subordinate Judges and Deputy Registrar. The
Junior Branch in Grade II consisted of Munsif and Assistant
Registrar. Rajkhowa was appointed as Deputy Registrar from
the grade of Munsif. Thereafter the Governor appointed
Rajkbowa to officiate as Additional District and Sessions
Judge.
This Court held in Kuseswar Seikia’s case (supra) that the
High Court has control over district courts and courts
subordinate thereto including the posting and promotion of
and the grant of leave to, persons belonging to the Judicial
Service of a State and holding any post inferior to the post
of District Judge.
The expression "Judicial Service" is defined in Art. 236 to
mean a service consisting exclusively of persons intended to
fill the post of district judge and other civil Judicial
posts inferior to the post of district Judge. The
expression "district Judge" includes among others an
additional district Judge and an additional sessions Judge.
The promotion of persons belonging to the judicial service
but holding a post inferior to the district judge vests in
the High Court. Because the expression "district judge"
includes an additional district judge and
(1) [1970] 2 S.C.R. 666.
378
an additional sessions judge,. they ;rank above those
persons whose promotion is vested in the High ’Court. It is
the function of the Governor to promote Additional District
Judge and Additional Sessions .Judge to be District Judges.
This Court held that under Article 233 the appointment as
well as promotion of persons to be District Judges is a
matter for the Governor in consultation with the High Court.
District judges are directly appointed or are promoted from
the subordinate rank of the judiciary. The initial
appointment as well as the initial promotion of persons to
be district Judges is with the Governor.
In Kuseswar Seikia’s case (supra) this Court said that
further promotion of District Judges is a matter of control
of the High Court. Therefore, the initial appointment of
persons to be District Judges as well as the initial
promotion of persons to be District Judges is with the
Governor. Once they are appointed and promoted to be Dist-
rict Judges the entire control is thereafter vested in the
High Court. As to what further promotion of District Judges
can be, is illustrated by their appointment to Selection
Grade posts.
In State of Assam & Anr. v. S. N. Sen & Anr. (supra) a
question arose as to who was the proper authority for
confirming a member of the Assam Judicial Service. Sen was
confirmed by the High Court in Judicial Service Grade I
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against the post of Subordinate Judge. The relevant rule
provided that "when a person is appointed to a permanent
post be will be confirmed after the period of probation in
the case of Deputy Registrar and Assistant Registrar by the
High Court and in ,other cases it will be made by the
Governor in consultation with the High Court." The
Accountant General refused to accept the confirmation made
by the High Court. This Court held that under Article 235
the power of promotion of persons holding posts inferior to
that of the District Judge being in the High Court, the
power to confirm such promotions is also in the High Court.
The Advocate General relied on this decision and said that
if the power of appointment was with the Governor under
Article 233 the power of confirmation was with the Governor
because the process of appointment is not complete until
,confirmation.
The confirmation of persons appointed to be or promoted to
be District Judges is clearly within the control of the High
Court for these reasons. When persons are appointed to be
District Judges or persons are promoted to be District
Judges the act of appointment as well as the act of
promotion is complete and nothing more remains to be done.
Confirmation of an officer on successful completion of his
period of probation is neither a fresh appointment nor
completion of appointment. Such a meaning of confirmation
would make appointment a continuing process till
confirmation. Confirmation of District Judges is vested in
the control of the High Court for the reason that if after
the appointment of District Judges the Governor will retain
control over District Judges ’Until confirmation there will
be dual control of District Judges. The High Court in that
case would have control over ,confirmed District Judges and
the Governor would have control over unconfirmed District
Judges. That is not Article 235.
379
In the recent decision in Shamsher Singh v. State of Punjab
& Anr.(1) this Court held that the High Court under Article
235 is vested with the control over Subordinate Judiciary.
This Court said that before a Probationer is confirmed the
authority concerned is under an obligation to consider
whether the work of the probationer is satisfactory or he is
suitable for the post. In the absence of any rules
governing the probationer in this respect the authority may
come to the conclusion that on account of inadequacy for the
job or for any temperamental or other object not involving
moral turpitude the probationer is unsuitable for the job
and hence must be discharged. No punishment is involved in
this. The suitability of a person to a post is of permanent
importance in considering the question of confirmation.
District Judges can be promoted to selection grade posts.
Similarly grant of leave to the District Judge is vested in
the High Court The control over District Judges includes
also the posting of District Judges.
The Governor has power to pass an order of dismissal,
removal or termination of the recommendations of the High
Court which are made in exercise of the power of control
vested in the High Court. The High Court of course under
this control cannot terminate the services or impose any
punishment on District Judges by removal or reduction. The
control over District Judges is that disciplinary pro-
ceedings are commenced by the High Court. If as a result of
any disciplinary proceedings any District Judge is to be
removed from service or any punishment is to be imposed that
will be in accordance with the conditions of service.
The order passed by the Governor shows that the State
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considered Rao to have committed serious irregularities
which made him unfit for confirmation. It is indisputable
that Rao was promoted to the post of District and Sessions
Judge. His reversion carries a stigma as well as reduction
in rank, and, therefore, he was entitled to be given an
opportunity to show cause against the proposed action within
Rule 9.
The conclusion of the majority judgment that the order of
confirmation is to be passed by the Governor in consultation
with the High Court is erroneous and is set aside. Rule 10
which confers power Governor to confirm is ultra vires the
Constitution, The order confirmation of District and
Sessions Judge is to be passed by the Court. The unanimous
view quashing the order passed by the Governor directing the
removal because the same was based on enquiry conducted by
the Director, Special Enquiry Agency, otherwise, through ’or
with the concurrence of the High Court is upheld. unanimous
view that provisions of Rule 9 of the Punjab Civil Service
(Punishment and Appeal) Rules are not complied with is up
held.
This Court in the majority view in Shamsher Singh v. State
of Punjab and Anr.(1). and Ishwar Chand Aggerwal v. State of
Punjab(2).
(1) [1975] 1 S, C. R. 814.
(2) C.A. 623 of 1974 decided on 23rd August, 1974.
380
pointed out that the High Court is to hold the enquiry
preferably through District Judges. The members of the sub-
ordinate judiciary look up to the High Court for discipline
and dignity. The enquiry conducted by the Director of
Special Enquiry was unconstitutional.
The majority view of the High Court upheld the seniority
rule in the Punjab Superior Judicial Service Rules, 1963.
This question was not in issue before the High Court. We
have not gone into the question. We express no opinion on
the seniority rule which is Rule 12 in the Punjab Superior
Judicial Service Rules, 1963.
For those reasons, the appeal of Rao is accepted and the
appeal of the State is dismissed. The appeal of the High
Court is disposed of accordingly. The appellant Rao is
entitled to costs in this appeal. There will be one set of
costs to be paid by the State.
For the sake of abundant caution it is made clear that in
other cases where the order of confirmation of District
Judge has already been passed by the Governor of a State in
consultation with the High Court this judgment shall not
affect the validity of those instances of confirmation.
V.M.K. Appeal partly allowed.
381