Civil Appeal No 908 of 1975
Appeal from the Judgment and Order dated 13 3 75 of the Punjab and Haryana High Court in Civil Writ No 258671 and CIVIL APPEAL No 1041 oF 1975
Appeal from the Judgment and Order dated 13 3 75 of the Punjab  Haryana High Court in Civil Writ No 258671
Kapil Sibal and SK Gambir for the Appellant in CA No 90875
Anand Sarup and HS Marwah for Respondent No 1 in CA 90875 and for Respondent No 2 in CA 104175
Naunit Lal MN Shroff and RN Sachthey for Respond ent No 3 in CA 90875 for the Appellant in CA 104175
The Judgment of the Court was delivered by GOSWAMI J
These two appeals are by certificate from the judgment of the Full Bench of the High Court of Punjab and Haryana
Both the appeals question the decision of the High Court one by the Judicial Officer and the other by the State Government
The appellant in Civil Appeal No 908 of 1975 hereinaf ter to be referred to as the officer was originally a member of the Punjab Civil Service Judicial Branch
He was appointed as a Subordinate Judge IV Class on February 27 1956
Thereafter he was promoted as a SubJudge First Class and was duly confirmed
While as a Subordinate Judge cum Magistrate First Class in Amloh District Patiala the Bar Association of Amloh on May 11 1965 sent a resolu tion to the High Court levelling certain charges against the officer affecting his integrity and impartiality
The High Court ascertained the facts through a preliminary enquiry held by the District Judge apparently ex parte at this stage
Thereafter on the report of the District Judge a regular departmental enquiry was instituted
The officer was suspended by the Government on June 6 1966 at the instance of the High Court
The District Judge Sangrur was appointed as the Enquiry Officer on July 21 1966
He enquired into the charges levelled against the officer
The Enquiry Officer submitted his report and found him guilty of all the charges except one
The High Court agreed with the Enquiry Officer and came to a tentative conclu sive that the officer should be removed from service
Meanwhile the services of the officer were allocated to the State of Haryana with effect from November 1 1966
428 The High Court recommended to the State Government of Haryana to serve a notice under Article 3112 of the Con stitution asking the officer to show cause why the penalty of removal from service should not be imposed on him
This was done by the State Government on March 13 1967
The officer submitted his explanation through the High Court on April 20 1967
The High Court found the explanation to be unsatisfactory and recommended to the Government that the officer should be removed from service
The State Government although on its own showing was inclined to agree with the views of the High Court and with the recommendation made by it however referred the case to the Haryana Public Service Commission for advice purporting to act under Article 3203c of the Consti tution
The Commission advised that no case had been made out against the officer and that he should be exonerated
The Governor accepted the advice of the Commission and passed the order on August 24 1968 reinstating the officer in service with immediate effect
The High Court was re quested by the Government to post the officer on his rein statement
The High Court did not issue any posting order to the officer as it was of the opinion that the order of the Government was illegal for the vice of consultation with the Public Service Commission and for accepting its advice disregarding the recommendation of the High Court
The High Court requested the Government to review its order but the Government did not take any action on that suggestion
Since the High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court of Punjab and Haryana a petition under Arti cle 226 of the Constitution on July 12 1971 praying for a writ of mandamus directing the High Court to issue an appro priate order of posting and also for a mandamus directing the Government to disburse full salary to the officer including the salary for the period under suspension and other consequential reliefs
While the writ petition was pending before the Full Bench the Governor accepting the recommendation of the High Court passed an order on December 16 1974 issuing three months  notice of compulsory retirement to the officer and the officer thus retired on March 18 1975 after at taining the age of 55 under the service Rules
The officer challenged the notice of retirement by way of a writ petition in the High Court on March 10 1975
The same was however withdrawn by the officer on March 13 1975 on which date judgment of the Full Bench was delivered in the other writ application out of which the present appeals have arisen
The officer however later on filed a writ petition No 747 of 1975 in this Court against the order of compulsory retirement and he was allowed by us to withdraw the same on July 30 1976
The  retirement of the officer is there fore not in dispute
429 The High Court by a majority of four learned Judges held as follows  1Since the impugned order exonerating the petitioner from all charges and reinstating him was not passed in accordance with the mandatory provision of the Constitution embodied in Article 235 of the Constitution order is void and non est being ultra vires Article 235 of the Constitution and the High Court was right in not giving effect to it
They also observed that any recommendation made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor
2 Since the Public Service Commission was an extraneous body and could not be consulted and was able to influence the decision of the punishing authority the order suffers from a grave constitu tional infirmity and is therefore liable to be declared ultra vires Article 235 of the Constitu tion and hence void and non est on this ground too
The High Court was therefore right in disregarding that order and not implementing it by giving the posting orders to the petitioner
The fifth learned Judge Gujral J did not agree with the majority with regard to the conclusion on the aforemen tioned first point
He however agreed with the majority with regard to the second point and also agreed with the final decision
The High Court dismissed the officer s writ application under Article 226 and held that he could not claim any relief on the basis of the order of reinstatement of the Governor of August 24 1968
The High Court further held that the dismissal of the petition would not bar the State Government from passing an order against the petition er in accordance with the recommendation of the High Court completely ignoring and keeping out of consideration the advice tendered by the Public Service Commission
Firstly the appellants contend that the Governor being the appointing authority is not bound to accept the recom mendation of the High Court and the order of reinstatement is well within his powers under Article 311 read with the Rules for Appointment of Subordinate Judges in Haryana and the Punjab Civil Service Punishment and Appeal Rules 1952 and is perfectly valid
Secondly they contend that the Governor is entitled under Article 3203c of the Constitution to consult the Public Service Commission with regard to the matter in question arising out of a disci plinary proceeding
Thirdly it is contended on behalf of the officer that in view of the fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with the order of rein statement it is no longer possible for the Governor to pass the order of removal of a person who has already retired from service
it is submitted that m that view of the matter the writ application had become infructuous
and even the High Court 430 need not have decided the writ application
It is there fore submitted on behalf of the officer that since on his reinstatement the order of suspension lapsed and he had retired he would be entitled to his full salary during the entire period of suspension upto the date of his retirement
On behalf of the High Court it is submitted that under Article 235 of the Constitution the sole and exclusive disciplinary control over the subordinate judiciary being vested in the High Court the High Court s recommendation is binding on the Governor and the Governor ought to have accepted the recommendation and passed an order of removal of the officer
It is further submitted that the order of reinstatement passed by the Governor after consulting the Public Service Commission is absolutely void and ultra vires
The controversies such as we have to deal with have raised their unpicturesque heads from time to time
We are therefore not required to write on a clean slate on this subject
Even so one aspect of the matter viz that relating to the consultation with the Public Service Commis sion by the Governor with regard to judicial officers  misconduct assumes a great importance in this case in a manner that has not arisen earlier before this Court
The controversy in these appeals is rather disquieting
In view of several decisions of this Court wherein different facets of like problems were noticed and resolved one would have thought that a healthy convention has grown and taken firm roots by now in fulfilment of one of the cherished Directive Principles of the Constitution in Article 5 which is based on the bed rock of the principle of independence of the judiciary
Here the High Court after a full enquiry which has not been questioned at any stage came to the conclusion that the charges of misconduct of a judicial officer were established and that the officer was of dubious integrity
Who else but the High Court in such a situation is better posted to determine the issue and advise the Governor  Yet the stark reality is that the High Court s recommendation was given a go by and the Commission s contrary advice was preferred by the Governor
Time and again this Court has been observing hopefully that it will be in the best interest of a high and healthy tradition for the Governor to ordinarily accept the recommendation of the High Court in a disciplinary matter concerning judicial officers  We are concerned in these appeals with regard to a disciplinary proceeding in respect of a Subordinate Judge and hence falling within the purview of Article 235 of the Constitution
That Article reads as follows  article 235
The control over district courts and courts subordinate thereto including the posting and promotion d and the grant of leave W persons belonging to the judicial service of a State and holding any post inferior to the post 431 of district Judge shall be vested in the High Court but nothing in this article shall be con strued as talking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him other vise than in accordance with the conditions of his service prescribed under such law
In The State of West Bengal vs Nripendra Nath Bachi1 this Court in an elaborate judgment went into the history of Articles 233 to 237 of the Constitution
This Court held The word control  as we have seen was used for the first time in the Constitution and it is accom panied by the word vest  which is a strong word
It shows that the High Court is made the sole custodian of the control over the judiciary
Control therefore is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge
Dealing with the argument based on Article 311 this Court further observed in the above case as follows  There is therefore nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power m it
In our judgment the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and posting and promotion of District Judges
Within the exercise of the control vested in the High Court the High Court can hold enquiries impose punishments other than dismiss al 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 el
2 of article 311 unless such opportunity is dispensed with by the Governor acting under the provisos b and c to that clause
The High Court alone could have held the enquiry in this case
To hold other wise will be to reverse the policy which has moved determinedly in this direction
Article 235 makes reference to the conditions of service which are prescribed under Article 309 of the Constitution
The Punjab Civil Services Punishment and Appeal Rules 1952 hereinafter to he referred to as the Punishment Rules were made by the Governor of Punjab in exercise of the powers conferred under Article 309 of the Constitution
The judicial officers also hold posts in connecton with the affairs of the State and the rules made under Article 309 so far as applicable would govern their conditions of service
There are also the Rules relating to the Appointment of Subordinate Judges in 1  432 Haryana hereinafter to be referred to as the Appointment Rules which were promulgated by the Governor in exercise of the powers conferred by Article 234 read wire proviso to Article 309 of the Constitution
These Rules were made by the Governor after consultation with the State Public Serv ice Commission and with the High Court
Under rule 14 Part F of the Appointment Rules relating to Discipline Penalties and Appeals it is provided as follows  In matters relating to discipline penalties and appeal including orders specified in Appendix B members of the Service shall be governed by The Punjab Civil Services Punishment and Appeal Rules 1952  as amended from time to time
Provided that the nature of penalties which may be inflicted the authority empowered to impose such penalties or pass such orders and the appel late authority shall be as specified in Appendices A  and B  below   In Appendix A  it is provided in item f that the punish ing authority in case of removal from the service which does not disqualify from future employment is the Government and there is no appeal therefrom
In item g of Appendix A  dismissal is also provided for in similar terms
In Appendix B  the authority competent to pass an order of termination of the service of a Subordinate Judge is the Government and there is no appeal against such an order
It will be seen that under rule 14 of the Appointment Rules of the Subordinate Judges the Punishment Rules are being made applicable to the Subordinate Judges
Under rule 4vi of the Punishment Rules read with Appendix A  of Part F of the Appointment Rules
the competent authority to remove a Subordinate Judge from service is the Government
It was therefore appropriate that the High Court after close of the departmental en quiry when it was satisfied that the officer was guilty of misconduct deserving removal from service recommended to the Governor for his removal
Upto this stage there was no difficulty
Trouble arose when the Government although on its own showing was inclined to agree with the High Court thought it proper to obtain the advice of the Public Service Commission as is usually done in the case of other civil servants
As stated earlier the Commission tendered its advice contrary to the recommendation of the High Court and held the opinion that the officer should be exonerated from the charges
The Government accepted the advice of the Commission and reinstated the officer which resulted in refusal to accept the recommendation of the High Court
In the above premises the questions that are raised are 1 Whether the Governor is bound under the Constitution to accept the recommendation of the High Court and to pass an order of removal of the judicial officer
433 2 Whether consultation with the Public Service Commission in a matter of a disciplinary proceeding relating to the judicial officer under the control of the High Court is unconstitutional
Is the order of reinstatement passed by the Government constitutionally valid  3 If not what will be the position of the officer on the date of the officer s compulsory retirement  Is an order of removal possible after that date  There is no dispute that the appointing authority of a Subordinate Judge under Article 235 as well as under the Appointment Rules is the Governor
Under Article 235 itself the Subordinate Judge will be governed by the Appointment Rules made under Article 234 read with Article 309
The Appointment Rules by reference bring in the Punishment Rules whereby the punishing authority for removal is the Government mentioned in the former Rules
With regard to the first question the appellants submit that the Governor being the appointing authority both under Article 235 and the Appointment Rules read with the Punish ment Rules is the final authority to pass the order of removal of the officer and is not under any constitutional obligation to be bound by the recommendation of the High Court
They rely upon Article 311 of the Constitution read with the aforementioned service Rules and submit that the control of the High Court under Article 235 does not impinge upon the power of the Governor to refuse to accept the recommendation of the High Court and to pass an appropriate order
The learned counsel for the High Court on the other hand submits that Article 235 of the Constitution leaves no option to the Governor to refuse to accept its recommenda tion in a disciplinary matter in respect of a judicial officer
He draws our attention to a very recent decision of this Court in State of Haryana vs Inder Prakash Artand HCS and Others1 to support his submission
He particu larly relies upon paragraph 18 of that decision which reads The control vested in the High Court is that if the High Court is of opinion that a particular judicial officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss remove reduce in rank or terminate the appointment
In such cases it is the contemplation in the Constitution that the Governor as the Head of the State will act in harmony with the recommen dation of the High Court
If the recommendation of the High Court is not held to be binding on the State consequences will be unfortunate
It is in public interest that the State will accept the recommendation of the High Court
The vesting of complete control over the subordinate judiciary in the High Court leads to this that the decision of the High Court in matters within its 1 1976 supp
SCR 603
434 jurisdiction will bind the State The Governor will act on the recommendation of the High Court
That is the broad basis of Article 235
See Shamsher Singh  Anr
vs State of Punjab at page 8411 It is pointed out by the appellants that in Inder Pra kash Anand s case supra the question was whether the State Government could compulsorily retire a Senior Subordinate Judge cum Chief Judicial Magistrate under the Punjab Civil Services Rules against the recommendation of the High Court and that it was not a case relating to dismissal or removal on the disciplinary side
Though the question involved in IP Anand s case related to a different matter the above quoted observations of this Court useful for all occasions have hopefully a wider cast and their significance can be overlooked only at some peril of the desideratum nurtured in the Constitution
The High Court in making its recommendation to the Governor for passing the order of removal has rightly conceded the authority of the Governor to pass the same
The question is Is the recommendation of the High Court binding on the Governor  Since the Governor is the ultimate authority to pass the order of removal it will not be cor rect always to insist that he has no authority even under certain extraordinary circumstances to decline to accept forthwith the particular recommendation
Ordinarily and as a matter of graceful routine recommendations of the High Court are and should be always accepted by the Governor
That is ordinarily so and should be in practice the rule as a matter of healthy convention
Articles 233 to 237 relating to the subordinate judici ary are specially carved out and placed in the safe niche of a separate chapter Chapter VI in Part VI of the Constitu tion under sub title Subordinate Courts 
This by itself is significant
It is a major breakthrough in the Constitu tion from the position under the Government of India Act 1935 so far as the subordinate judiciary is concerned and clearly unfolds the keen awareness of the rounding fathers in what has been a passionate and raging topic with regard to independence of the judiciary all through over the years
For the first time in the country s history appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts
The quality of exclusive control of the High Court does not appear to be whittled by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration
When therefore the High Court exercising disciplinary control over the subordinate judiciary finds
after a proper enquiry that a certain officer is guilty of gross misconduct and is unworthy to be retained in judicial service and therefore recommends to the Governor his removal or dismissal it is difficult to conceive how and under what circumstances such a recommendation should be rejected by the Governor acting with the aid and advice 1  435 of the council of ministers or as is usually the case of one of the ministers
It is in this context that this Court has more than once observed that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor
This is the inner significance of the constitutional provisions relating to the subordinate judiciary
Whenever in an extraordinary case rare in itself the Governor feels for certain reasons that he is unable to accept the High Court s recommendations these reasons will be communicated to the High Court to enable it to reconsider the matter
It is however inconceivable that without reference to the High Court the Governor would pass an order which had not been earlier recommended by the High Court
That will be contrary to the contempla tion in the Constitution and should not take place
It is not necessary to pursue the matter in further depth as sought to be canvassed by the parties taking ex treme stances in the view taken by us on the second ques tion
With regard to the second submission we are clearly of opinion that consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer is not warranted by the provisions of Article 235
It is true that under Article 235 as well as under the Appointment and Punishment Rules the Governor is the ap pointing and punishing authority
But under Article 235 the High Court is the sole custodian over the discipline of the judicial officers
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer
It is submitted on behalf of the appellants that Article 3203c provides that the Public Service Commission shall be consulted on all disci plinary matters affecting a person serving under the Govern ment of a State in a civil capacity
Judicial Officers although holding posts in civil capacity are not serving under the Government of a State
They hold posts in connec tion with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of con trol and discipline
There is therefore no constitution al justification or sanction for the Governor even if he wishes to consult the Public Service Commission under Article 320 3 c in respect of judicial officers
Con sultation with the Public Service Commission in this case and preference accorded to its advice ignoring the recommen dation of the High Court have introduced a serious consti tutional infirmity in the final order of reinstatement passed by the Governor
The appellants drew our attention to a decision of this Court in Pradvat Kumar Bose vs The Hon ble The Chief Justice of Calcutta High Court1 where this Court had to deal with one of the arguments founded on Article 3203c of the Constitution
In the above decision Pradyat Kumar Bose who was Registrar and Accountant General of the High Court on its original side and who was the 1 19552 SCR 1331
436 appointee of the Chief Justice was dismissed by the Chief Justice after a full and thorough enquiry held by one of the Judges of the High Court whose findings were accepted by the Chief Justice
Inter alia it was contended before this Court that the order of dismissal by the Chief Justice was vitiated as the Chief Justice did not consult the State Public Service Commission prior to dismissal of the Regis trar as provided for under Article 3203c
This Court repelled the contention holding that Article 3203c was contrary to the implications of Article 229 and the language thereof was also not applicable to the High Court staff since the members of the High Court staff did not serve under the Government of the Union or of the State
It is submitted by the appellants that this court held that Article 3203 e was not applicable since the Chief Justice was the sole appointing and punishing authority so far as the High Court staff was concerned under Article 229 of the Constitution
On a parity of reasoning it is con tended by the appellants that since the Governor is the sole appointing and punishing authority under the Appointment and Punishment Rules Article 3203c is therefore clearly attracted since according to them if Article 229 were not there the matter would have been considered by this Court in a different light
We are unable to accept this submission since as we have pointed out just as the High Court staff are not serving under the Government of the State the judicial officers are also not serving under the State Government
The appellants also relied upon a decision 01 this Court in The High Court Calcutta vs Amal Kumar Roy1
In this case also a submission was made in this Court that the High Court should have consulted the State Public Service Commission in superseding seniority of a Munsif as a result of his exclusion from consideration for promotion in a particular year which resulted in his loss of eight places in the cadre of Subordinate Judges at the time he was actu ally appointed to act as an Additional Subordinate Judge
The particular officer s case in substance was that this exclusion by the High Court amounted in law to the penalty of withholding of promotion
It was contended that the High Court should have consulted the State Public Service Commission since article 3203c contemplated disciplinary matters
This Court disposed of this submission by holding that losing places in a rank was not reduction in rank  and that no disciplinary proceedings had been started against the particular officer and hence there could be no occasion for the State Public Service Commission being consulted
It is submitted by the appellants that this Court did not reject the submission based on Article 3203c out of hand holding that the Article was not applicable
It is true that the aforesaid submission was disposed of in this particular manner by this Court in the above decision
That however does not mean that this Court categorically held Article 3203c was attracted in the case of judicial officers
The question did not arise in that form
1 1963 1 SCR437
437 The matter should not be considered from the angle of supremacy of one organ over the other
That will be an entirely erroneous approach
The Constitution reposes certain power in the Governor even under Article 235
He is the authority to pass the order of removal albeit on the recommendation of the High Court
That is the constitution al scheme
The Governor however cannot pass any order as has been done in this case without reference to the High Court and except on its recommendation
Solution must be found in harmony and not in cold war between the two organs
The Governor could not have passed any order on the advice of the Public Service Commission in this case
The advice Should be no other authority than the High Court in the matter of judicial officers
This is the plain implication of Article 235
Article 320 3 c is entirely out of place so far as the High Court is concerned dealing with judicial officers
To give any other interpretation to Article 3203c will be to defeat the supreme object underlying Article 235 of the Constitution specially intend ed for protection of the judicial officers and necessarily the independence of the subordinate judiciary
It is abso lutely clear that the Governor cannot consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it
There is no room for any outside body between the Governor and the High Court
The Governor in relying upon the advice of the Public Service Commission in this case took alien considerations into account and acted erroneously in passing the order of reinstatement based on the same
The order of the Governor is therefore constitutionally invalid and is liable to be quashed and we order accordingly
That brings us to the third submission of the appellants
At one stage we thought that we would not consider this submission since this may arise at the time of payment of salary for the period of suspension as the officer has already retired
We however find that even in the writ application there was a prayer for a mandamus to the Govern ment to disburse the officer s full salary during the entire period of suspension upto the date of his retirement
The learned counsel for the officer has also argued the matter fully before us
We would therefore deal with the same
Since the order of reinstatement of August 24 1968 is quashed the officer is reverted to the status quo ante as on the date prior to the aforesaid order
It is undisputed that he had been under suspension during that period
It is submitted that on the passing of the order of reinstatement the order of suspension merged in that order and since there is no other order of suspension passed thereafter either by the High Court or by the Governor the officer on his compulsory retirement will be entitled to his full salary as an officer who had already ceased to be under suspension
It is submitted that the principle of merger which is generally invoked when an order of dismissal is passed against an officer under suspension should apply also in the case of reinstatement
438 We are however unable to accept this submission
The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely dif ferent
Suspension is a step to dismissal and may culminate in dismissal
When an officer is suspended no work is taken from him but he does not cease to be in service
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal
Nothing re mains to be done about his suspension
When however a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect
The suspended officer on reinstatement goes back to serv ice
A further order may have to be passed by the authority as to in what manner the period of suspension will be treat ed
That will be therefore a distinct and separate pro ceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed
If therefore the order of reinstatement is set aside the officer is bound to revert to his immediate anterior status of suspension
There may be certain service rules to take care of this position but even otherwise the position will be automatic and the order of reinstatement being quashed the position of the officer in absence of any order in that behalf from the court will be what he was earlier viz that of a suspended officer
In this view of the matter since the order of reinstatement stands quashed and the officer had been under suspension in a departmental proceeding awaiting orders of the Governor for removal on the recommendation of the High Court he would have the status of a suspended officer on the date of his compulsory retirement
The officer in this case was there fore compulsorily retired while he was under suspension from service
It is not for us to decide whether being in such a position he would be entitled to his full salary for the entire period of suspension and we refrain from expressing any opinion on that aspect of the matter
It should however be observed that since the officer has already retired it will not be necessary for the Governor to consider the recommendation of the High Court for the pur pose of removal of the officer
We however do not fail to see that the Government on its own
was inclined to accept the recommendation of the High Court at the initial stage
In the result the appeals are dismissed and the order of reinstatement of the officer passed by the Governor stands quashed for the reasons given in this judgment
There will be no order as to costs


Summary:
The appellant was a member of the Subordinate Judicial Service of the State
On receipt of certain allegations the High Court made a preliminary enquiry and the State Govern ment suspended him from service
After the final enquiry the High Court recommended to the State Government to remove him from service
The State Public Service Commission on reference by the Government stated that he should be exon erated
On the basis of this recommendation the Governor ordered the appellant s reinstatement but the High Court did not give him a posting on the view that the order of the Governor was illegal because of consultation with the Serv ice Commission and in accepting its advice disregarding the High Court s own recommendation
The High Court therefore suggested to the Government to review its order of rein statement but the Government did not take any action
The appellant then filed a writ petition in the High Court challenging its refusal to give him a posting
In the mean time the Governor compulsorily retired the appellant from service on his attaining 55 years of age
Dismissing the writ petition the High Court held that the Governor s order reinstating the appellant was void and non est because i it was not passed in accordance with the provisions of article 235 of the Constitution and ii the Government could not have consulted the Public Service Commission which was an extraneous body
In appeal to this Court it was contended for the appellant that i the Governor was not bound by the recom mendation of the High Court ii the Governor was entitled under article 3203c to consult the Public Service Commis sion on the question arising out of a disciplinary proceed ing and iii since the appellant was later compulsorily retired the order of suspension merged with the order of reinstatement and since no other order of suspension was passed thereafter he was entitled to full salary upto the date of his compulsory retirement
Dismissing the appeal HELD 1a Articles 233 to 237 relating to the subor dinate judiciary are specially carved out and placed in the safe niche of a separate chapter
For the first time in the country s history appeared in the Constitution of India the concept of control over subordinate courts to vest in the High Courts
But the appointing authority of a Subordinate Judge under article 235 as well as under the Appointment Rules is the Governor
The High Court in making its recommenda tion to the Governor for passing the order of removal had rightly conceded the authority of the Governor
Ordinarily and as a matter of graceful routine recommendations of the High Court are and should always be accepted by the Gover nor
This is ordinarily so and should be in practice the rule as a matter of healthy convention
But it will not be correct always to insist that the Governor has no authority even under extraordinary circumstances to send the matter for reconsideration
b The quality of exclusive control of the High Court is not whittled down by the constitutional device of all orders being issued in the name of the Governor as the head of the State administration
When therefore
the High Court exercising disciplinary control over the subordinate judiciary found after a proper enquiry that a certain officer was guilty of gross misconduct and was unworthy to be retained in judicial service and therefore recommended to the Governor his removal or dismissal it is difficult to conceive how and under what circumstances such a recommenda tion could be rejected by the Governor acting with the aid and advice of ministers or of one of them
434 G H The State of West Bengal vs Nripendra Nath Bagchi   and State of Haryana vs Inder Prakash Anand HCS and others 1976 Supp
SCR 603
referred to
c Whenever in an extraordinary ease the Governor feels for certain reasons that he is unable to accept the High Court s recommendations these reasons will be communicated to the High Court to enable it to reconsider the matter
There is no warrant for introducing another extraneous body between the Governor and the High Court in the matter of disposal of a disciplinary proceeding against a judicial officer
The Governor could not have passed any order on the advice of the Public Service Commission in this case
The advice should be of no other authority than the High Court in the matter of judicial officers
This is the plain impli cation of Article 235
There is no room for any outside body between the Governor and the High Court
In relying upon the advice of the Commission the Governor took alien considerations into account and acted erroneously in passing the order of reinstatement
435 B E F Consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer was not warranted by the provisions of article 235
Under the Constitution the High Court is the sole custodian over the discipline of judicial officers
435 D 2 a Just as the High Court staff are not serving under the Government of the State the judicial officers are also not under the State Government
They hold posts in connection with the affairs of the State but are entirely under the jurisdiction of the High Court for the purpose of control and discipline
article 3203c is entirely out of place so far as the High Court is concerned dealing with judicial officers
D Pradvat Kumar Bose vs The Hon ble the Chief Justice of Calcutta High Court  and The High Court Calcutta vs Amal Kumar Roy 19631 SCR 437 distinguished and held inapplicable
b The Governor cannot pass any order without reference to the High Court and except on its recommendation
The matter should not be considered from the angle of supremacy between one organ over the other
Solution must be found in harmony and not in cold war between the two organs
437 A B 3 The character of the order of dismissal and that of the order of reinstatement in a departmental enquiry is absolutely different
Suspension is a step to dismissal and may culminate in dismissal
When an officer is suspended no work is taken from him but he does not cease to be in serv ice
When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal
When however a suspended officer is reinstated an order which is different in content and quality from that of suspension takes effect
The suspended officer on rein statement goes back to service
A further order may have to be passed by the authority as to in what manner the period of suspension will be treated
That will be there fore a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of rein statement was passed
If the order of reinstatement is set aside the officer is bound to revert to his immediate ante rior status of suspension in the absence of any order in that behalf from the Court
438 A C In the instant case since the order of reinstatement stood quashed the appellant would have the status of a suspended officer on the date of his compulsory retirement
It is not for this Court to say whether he would be entitled to his 427 full salary while on suspension
Since the officer had already retired it is not necessary for the Governor to consider the recommendation of the High Court for the pur pose of his removal
438 E F