Appeal No 391 of 1964
Appeal from the judgment and order dated July 1 1960 of the Calcutta High Court in Civil Rule No 520 of 1955
C K Daphtary Attorney General B Sen section C Bose and P K Bose for the appellants
N C Chatterjee Sukumar Ghose for section C Mazumdar for the respondent
B R L Iyengar section K Mehta and K L Mehta for inter vener No 1
Arun B Saharya and Sardar Bahadur for intervener No 2
Naunit Lal for intervener No 3
section V Gupte Solicitor General and B R G K Achar for intervener No 4
N Krishnaswamy Reddy Advocate General Madras and A V Rangam for intervener No 5
D Sahu Advocate General Orissa B P Jha and R N Sachthey for intervener No 6
R N Sachthey for intervener No 7
Haradev Singh for intervener No 8
The Judgment of the Court was delivered by Hidayatullah J
This is an appeal by the State of West Bengal and its Chief Secretary against the judgment of the Calcutta High Court dated July 1 1960 by which the order dismissing N N Bagchi the respondent from service was quashed
The High Court certified the case as fit for appeal to this Court under articles 1321 and 1331c of the Constitution
N N Bagchi was appointed a Munsif on November 10 1927
After promotions he became an Additional District  Sessions Judge and officiated at several stations as District  Sessions Judge but he was never confirmed as such
He last acted as a District  Sessions Judge at Birbhum in March 1953
In April of the same year he was transferred to Alipore as an Additional District  Sessions Judge
In the ordinary course Bagchi was due to superannuate and retire on July 31 1953
On April 17 1953 he applied for leave from April 27 1953 to July 31 1953 preparatory to retirement
The leave was held inadmissible
He 774 was however granted leave from July 17 1953 to the end of his service
Bagchi however reported on April 27 1953 that he had gone to Puri on April 25 1953 because his son was ill and asked for one month s leave from April 27 1953
Leave for 3 weeks was granted which at his request was extended to June 5 1953
By an order dated July 14 1953 Government ordered that Bagchi be retained in service for a period of two months commencing from August 1 1953
The order reads  I am directed to state that Government have been pleased to sanction under Rule 75a of the West Bengal Service Rules Part 1 the retention in service of Nripendra Nath Bagchi Additional District and Sessions Judge 24 Parganas for a period of two months with effect from 1st August 1953 the date of his compulsory retirement in the interest of the public service
Rule 75a which was invoked reads as follows Rule 75a
Except as otherwise provided in this rule the date of compulsory retirement of a Government servant other than a member of the clerical staff or a servant in inferior service is the date on which he attains the age of 55 years
He may however be retained in service beyond that date with the sanction of Government on public grounds which should be recorded in writing but he shall not be retained after attaining the age of 60 years except in very special circumstances
 By another order dated July 20 1953 Bagchi was placed under suspension and on the following day he was served with 11 charges and was asked to file a written reply within 15 days
An enquiry into these charges followed and it was entrusted to Mr B Sarkar
ICS Commissioner later Member Board of Revenue by the Government of West Bengal
The enquiry continued for a long time and Bagchi was retained in service though kept under suspension by repeated orders of different durations under rule 75a
Mr Sarkar made his report to the Government on December 21 1953 holding that some of the charges were proved
He did not recommend any punishment as he thought that punishment would depend upon Bagchi s record of service
On March 18 1954 Bagchi was asked to show cause why he should not be dismissed from service and after he had 77 5 shown cause he was dismissed on May 27 1954
The Public Service Commission was consulted but not the High Court
He appealed to the Governor unsuccessfully
On February 15 1955 he applied to the High Court at Calcutta under articles 226 and 227 of the Constitution against his dismissal and a rule was issued
On the recommendation of Mr Justice D N Sinha the case was placed before a Full Bench as important questions of constitutional law were involved
The Full Bench by its judgment dated July 1 1960 made the rule absolute and quashed the order of dismissal as well as the enquiry
On the application of the Government of West Bengal the High Court certified the case as fit for appeal to this Court and the present appeal was filed
At an earlier hearing this Court ordered that notices be issued to all the Advocates General of the States and to the High Courts because the questions involved were of considerable general and constitutional importance
In answer to the notices some of the States and the High Courts intervened arguing either in favour of or against the judgment under appeal
While making his recommendation D N Sinha J drew up the points of controversy in the case
They may be set down here  1 That the provisions of Rule 75a of the West Bengal Service Rules have not been compiled with
2 That the service of a civil servant cannot be extended merely for the purpose of dismissal
3 That the control over the District Courts and the Courts subordinate thereto are vested with the High Court under Article 235 of the Constitution and the authority competent to take disciplinary proceedings and action against the petitioner or to deal with in any way was the High Court and not any other authority
4 That the provisions of the Civil Service Control Classification and Appeal Rules in so far as they authorise any authority other than the High Court to take disciplinary action against the person holding the post of petitioner are ultra vires and void under Article 235 of the Constitution
5 That in any event the entire departmental enquiry and proceedings have been conducted in violation of the principle of natural justice
7 76 At the final hearing this appeal was confined to the first three points
The fourth point and the allegations about denial of natural justice were not discussed
The three points may be summarized into two  1 whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District  Sessions Judge contravened the provisions of article 235 of the Constitution which vests in the High Court the control over the District Court and the courts subordinate thereto and 2 whether the provisions of rule 75a West Bengal Service Rules could be utilized to extend the service of Bagchi beyond the normal age of retirement
On hearing arguments we are satisfied that the answer to both the questions must be against the Government
We shall now proceed to give our reasons
We may begin with Rule 75a because that question although not so important as the other causes less trouble
The rule which was earlier set out  may be compared with rules 56a and 56d of the Fundamental Rules 56a Except as otherwise provided in the other Clauses of this Rule the date of Compulsory retirement of a Government servant other than a ministerial servant is the date on which he attains the age of 55 years
He may be retained in service after the date of compulsory retirement with the sanction of the Local Government on public grounds which must be recorded in writing but he must not be retained after the age of 60 years except in very special circumstances 56d Notwithstanding anything contained in clauses a b and c a Government servant under suspension on a charge of misconduct shall not be required or permitted to retire on reaching the date of compulsory retirement but shall be retained in service until the enquiry into the charge is concluded and a final order is passed thereon by competent authority
 It was conceded in the High Court that rule 5 6 d of the Fundamental Rules framed under section 96 B of the Government of India Act did not apply to District  Sessions Judges
The West Bengal Service Rules were made by the Governor under section 241 of the Government of India Act 1935 and they were made applicable to the services of the Government of West Bengal
When the West Bengal Service Rules were made the Fundamental Rules were available
Rule 75a was modelled on Rule 56a of the Fundamental Rules but no rule like Rule 56d which 7 7 7 we have quoted was included
Under section 276 of the Govern ment of India Act 1935 the West Bengal Service Rules would prevail over the Fundamental Rules and it is conceded that they alone govern this case
Even if Rule 56d of Fundamental Rules was available it was not utilized
Repeated orders were passed under rule 75a West Bengal Service Rules and these orders said that the retention of Bagchi was in the interest of public service
Rule 75a is hardly designed to be used for this purpose
It is intended to be used to keep in employment persons with a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds
This meaning is all the more clear when we come to the end of the rule where it is stated that a government servant is not to be retained after he attains the age of sixty years except in very special circumstances
This language hardly suits retention for purposes of departmental enquiries
Mr Justice P B Mukherji pointed out very appositely the contrast between rule 56a and d of the Fundamental Rules
Rule 56a corresponds to rule 75a but rule 56d opens with the words notwithstanding anything contained in clause a
 of Rule 56
This shows that they cover different situations and the matters in Rule 56d do not cover matters in Rule 56a
In dealing with the application of the rules the learned Judge observed No consent of the petitioner for retaining his service was called or obtained
The two expressions in the above order 1 Retention in Service and 2 in the interest of public service do not on the facts of this case mean what they say
Here retention in service means suspension from service because from the date when he was retained in service he was suspended from service
The other expression the interest of the public service does not mean actual service to the public but meant only departmental enquiry against him
His service was extended from time to time with a view to enable the Government to start and conclude the departmental enquiry against him during which the petitioner was allowed to live on a bare subsistence allowance
 We find it sufficient to say that we agree that the retention of Bagchi in service under rule 75a for the purpose of enquiry was not proper and the extension of the service was illegal
778 We now come to the next question whether Government Or the High Court should order initiate and hold enquiries into the conduct of District Judges
This problem would not have arisen if there was no special provision for District Judges in the Constitution in Chapter VI entitled Subordinate Courts immediately after Chapter V which deals with the High Courts in the States
Chapter VI consists of five articles Nos 233 to 237
The last article in this list merely provides for the application of the provisions of this Chapter to Magistrates in the State as they apply in relation to persons appointed to the Judicial Service of the State subject however to such exceptions and modifications as may be specified
The expression judicial service is defined in the preceding article 236b and it means 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 word district judge is also  defined in the same article by cl
a and it includes among others an additional district judge
The other three articles are important and the relevant parts may be set out here  254
Appointment of district judges
1 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 in relation to such State
2 234
Recruitment of persons other than district judges to the judicial service
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 235
Control over subordinate courts
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 77 9 taking 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 otherwise than in accordance with the conditions of his service prescribed under such law
 These articles deal with the appointments of the persons to be and postings and promotions of district judges and appointment postings and promotions of judges subordinate to the District Judge and the control over the District Court and the courts subordinate thereto
They also provide for special rules to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to each State
This group of articles is intended to make special provision for the judicial service of the State
What it intends to do is of course the bone of contention between the parties
To understand why this special Chapter was necessary when there is Part XIV dealing with Services under the Union and the States it is necessary to go into a little history of this constitutional provision
Before we set down briefly how this Chapter came to be enacted outside the Part dealing with Services and also why the articles were worded as they are we may set down the corresponding provisions of the Government of India Act 1935
There too a special provision was made in respect of judicial officers but it was included as a part of Chapter 2 of Part X which dealt with the Civil Services under the Crown in India
The cognate sections were sections 254 to 256 and they may be reproduced here  254
District Judges  c 1 Appointments of persons to be and the posting and promotion of district judges in any Province shall be made by the Governor of the Province exercising his individual judgment and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor
2 A person not already in the service of His Majesty shall only be eligible to be appointed a district judge if he has been for not less than five years a barrister a member of the Faculty of Advocates in Scotland or a pleader and is recommended by the High Court for appointment
7 80 3 In this and the next succeeding section the expression district judge includes additional district judge joint district judge assistant district judge chief judge of a small cause court chief presidency magistrate sessions judge additional sessions judge and assistant sessions judge
 255
Subordinate civil judicial service
1 The Governor of each Province shall after consultation with the Provincial Public Service Commission and with the High Court make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a Province
In this section the expression subordinate civil judicial service means a service consisting exclusively of persons intended to fill civil judicial posts inferior to the post of district judge
2 The Provincial Public Service Commission for each Province after holding such examinations if any as the Governor may think necessary shall from time to time out of the candidates for appointment to the subordinate civil judicial service of the Province make a list or lists of the persons whom they consider fit for appointment to that service and appointments to that service shall be made by the Governor from the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different communities in the Province
3 The posting and promotion of and the grant of leave to persons belonging to the subordinate civil judicial service of a Province and holding any post inferior to the post of district judge shall be in the hands of the High Court but nothing in this section shall be construed as taking away from any such person the right of appeal required to be given to him by the foregoing provisions of this chapter or as authorising the High Court to deal with any such person otherwise than in accordance with the conditions of his service prescribed thereunder
 7 81 256
Subordinate criminal magistracy
No recommendation shall be made for the grant of magisterial powers or of enhanced magisterial powers to or the withdrawal of any magisterial powers from any person save after consultation with the district magistrate of the district in which he is working or with the Chief Presidency magistrate as the case may be
 It way be pointed out at once that in the present Constitution these provisions have been lifted from the Chapter dealing with Services in India and placed separately after the provisions relating to the High Courts of the States
As far back as 1912 the is Commission stated that the witnesses before the Commission demanded two things  1 recruitment from the Bar to the superior judicial service namely the District judgeship and 2 the separation of the judiciary from the executive
The Commission stated in its report  Opinion in India is much exercised on the question of the separation of the executive and the judicial functions of the officers  and observed that to bring this about legislation would be required
The Commission made its report on August 14 1915 a few days after the Government of India Act 1915 5  6 Geo
V c 61 was enacted
The Act did not therefore contain any special provision about the judicial services in India
The World War I was also going on
In 1919 Part VII A consisting of sections 96 B to 96 E was added in the Government of India Act 1915
Section 96 B provided that every person in the Civil Service of the Crown in India held office during His Majesty s pleasure but no person in that service might be dismissed by any authority subordinate to that by which he was appointed
The only section that concerns us is section 96 B Sub section
2 of that section reads as follows 2 The Secretary of State in Council may make rules for regulating the classification of the civil service in India the methods of their recruitment their conditions of service pay and allowances and discipline and conduct
Such rules may to such extent and in respect of such matters as may be prescribed delegate the power of making rules to the Governor General in Council or to local Governments or authorise the Indian legislature or local legislatures to make laws regulating the public services   7 82 The Fundamental Rules and the Civil Services Classification Control and Appeal Rules were made by the Secretary of State in Council under the above rule making power
These rules governed the judicial services except the High Court
Part IX of the Government of India Act dealt with the Indian High Courts their constitution and jurisdiction
Section 107 gave to the High Courts superintendence over all courts for the time being subject to its appellate jurisdiction and enumerated the things the High Court could do
They did not include the appointment promotion transfer or control of the District Judges
High Courts could only exercise such control as came within their superintendence over the courts subordinate to their appellate jurisdiction
In the Devolution Rules item 17 in Part II dealing with the Provincial subjects read as follows  Administration of justice including constitution powers maintenance and Organisation of civil courts and criminal jurisdiction within the Province subject to legislation by the Indian legislature as regards High Courts Chief Courts and Courts of Judicial Commissioners and any Courts of criminal jurisdiction
It would thus appear that the problem about the independence of judicial officers which was exercising the minds of the people did not receive full attention and to all intents and purposes the Executive Government and Legislatures controlled them
The recommendations of the Islington Commission remained a dead letter
When the Montague Chelmsford enquiry took place the object was to find out how much share in the legislative and executive fields could be given to Indians
The post of the District Judge was previously reserved for Europeans
The disability regarding Indians was removed as a result of the Queen s Proclamation in 1870 and rules were framed first in 1873
In 1875 Lord Northbrook s Government framed rules allowing Indians to be appointed and Lord Litton s Government framed Rules fixing 15th quota for the Indians
There was no fixed principle on which Indians were appointed and the report of the Public Service Commission presided over by Sir Charles Atchison in 1886 contains the system followed in different Provinces
This continued down to 1919
The Government of India Act had introduced Dyarchy in India and the question of control of services in the transferred field was closely examined when the Government of India Act 1935 was enacted
It was apprehended that if transference of power enabled the Ministers to control the services the flow of Europeans to the civil services 783 would become low
Government appointed several Committees chief among them the Mac Donnelly Committee considered the position of the Europeans vis a vis the services There was more concern about Europeans than about the independence of the judiciary
The Indian Statutory Commission did not deal with the sub ject of judicial services but the Joint Committee dealt with it in detail
It is interesting to know that the Secretary of State made a preliminary statement on the subject of subordinate civil judiciary and his suggestion was to leave to the Provincial Legislatures the general power but to introduce in the Constitution a provision which would in one respect override those powers namely a provision vesting in the High Courts as part of their administrative authority power to select the individuals for appointment to the Civil Judicial Services to lay down their qualifications and to exercise over the members of the service the necessary administrative control He said that the powers of the local Government should be to fix the strength and pay of the services to which the High Court would recruit and to lay down if they so thought fit any general requirements 
During the debates Marquis of Salisbury asked a question with regard to the general powers of the High Courts and the control over the subordinate courts
It was  As I understood the Secretary of State in his statement the control of the High Court over the Subordinate judges in civil matters has to be as complete as possible and maintained
Is that so  The answer was Yes
No 7937
The recommendations of the Joint Committee also followed the same objective
In the report paragraph 337 p 201 the following observations were made  337
Necessity for securing independence of subordinate judiciary
by the Crown and their independence is secure but appointments to the Subordinate Judiciary must necessarily be made by authorities in India who will also exercise a certain measure of control over the Judges after appointment especially in the matter of promotion and posting
We have been greatly impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed 7 84 to pressure from members of a popularly elected Legislature
Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister and recent examples not in India have shown very clearly the pressure which may be exerted upon a magistracy thus situated by men who are known or believed to have the means of bringing influence to bear upon a Minister
It is the Subordinate Judiciary in India who are brought most closely into contact with the people and it is no less important perhaps indeed even more important that their independence should be placed beyond question than in the case of the superior Judges
As a result when the Government of India Act 1935 was passed it contained special provisions sections 254 256 already quoted with regard to District Judges and the subordinate judiciary
It will be noticed that there was no immediate attempt to put the subordinate criminal magistracy under the High Courts but the posting and promotion and grant of leave of persons belonging to the subordinate judicial service of a Province was put in the hands of High Court though there was right of appeal to any authority named in the rules and the High Courts were asked not to act except in accordance with the conditions of the service prescribed by the Rules
As regards the District Judges the posting and promotions of a District Judge was to be made by the Governor of the Province exercising his individual judgment and the High Court was to be consulted before a recommendation to the making of such an appointment was submitted to the Governor
Since section 240 of the Government of India Act 1935 provided that a civil servant was not to be dismissed by an authority subordinate to that which appointed him the Governor was also the dismissing authority
The Government of India Act 1935 was silent about the control over the District Judge and the subordinate judicial services
The administrative control of the High Court under section 224 over the courts subordinate to it extended only to the enumerated topics and to superintendence over them
The independence of the subordinate judiciary and of the District Judges was thus assured to a certain extent but not quite
When the Constitution was being drafted the advance made by the 1935 Act was unfortunately lost sight of
The draft Constitution made no mention of the special provisions not even similar to those made by the Government of India Act 1935 785 in respect of the subordinate judiciary
If that had remained the judicial services would have come under Part XIV dealing with the services in India
An amendment fortunately was accepted and led to the inclusion of articles 233 to 237
These articles were not placed in the Chapter on services but immediately after the provisions in regard to the High Courts
The articles went a little further than the corresponding sections of the Government of India Act
They vested the control of the district courts and the courts subordinate thereto in the High Courts and the main question is what is meant by the word control
The High Court has held that the word control means not only a general superintendence of the working of the courts but includes disciplinary control of the presiding judges that is to say the District Judge and judges subordinate to him
It is this conclusion which is challenged before us on various grounds
Mr B Sen appearing for the West Bengal Government contends that the word control must be given a restricted meaning He deduces this a on a suggested reading of article 235 itself and b on a comparison of the provisions of Chapter VI with those of Part XIV of the Constitution
We shall examine these two arguments separately as they admit of separate treatment
The first contention is that control means only control of the day to day working of the courts and emphasis is laid on the words of article 235 district courts and courts subordinate thereto
It is pointed out that the expressions district judge and judges subordinate to him are not used
It is submitted that if the incumbents were mentioned control might have meant disciplinary control but not when the word court is used
Lastly it is contended that conditions of service are outside control envisaged by article 235 because the conditions of service are to be determined by the Governor in the case of the District Judge and in the case of judges subordinate to the District Judge by the Rules made by the Governor in that behalf after consultation with the State Public Service Commission and with the High Court
We do not accept this construction
The word control is not defined in the Constitution at all
In Part XIV which deals with Services under the Union and the States the words disciplinary control or disciplinary jurisdiction have not at all been used
It is not to be thought that disciplinary jurisdiction of services is not contemplated
In the context the word control must in our judgment include disciplinary jurisdiction
Indeed
L8Sup
C165 7 786 the word may be said to be used as a term of art because the Civil Services Classification Control and Appeal Rules used the word control and the only rules which can legitimately come under the word control are the Disciplinary Rules
Further as we have already shown the history which lies behin the enactment of these articles indicate that control was vested in the High Court to effectuate a purpose namely the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated
This aid to construction is admissible because to find out the meaning of a law recourse may legitimately be had to the prior state of the law the evil sought to be removed and the process by which the law was evolved
The word control as we have seen was used for the first time in the Constitution and it is accompanied 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
article 227 gives to the High Court superintendence over these court  and enables the High Court to call for returns etc
The word  control in article 235 must have a different content
It includes something in addition to mere superintendence
It is control over the conduct and discipline of the judges
This conclusion is further strengthened by two other indications pointing clearly in the same direction
The first is that the order of the High Court is made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicates an order passed in disciplinary jurisdiction
Secondly the words are that the High Court shall deal with the judge in accordance with his rules of service and the word deal also points to disciplinary and not mere administrative jurisdiction
Articles 233 and 235 make a mention of two distinct powers first is power of appointments of persons their postings and promotion and the other is power of control
In the case of the District Judges appointments of persons to be and posting and promotion are to be made by the Governor but the control over the District Judge is of the High Court
We are not impressed by the argument that the term used is district court because the rest of the article clearly indicates that the word court is used compendiously to denote not only the court proper but also the presiding Judge
The latter part of article 235 talks of the man who holds the office
In the case of the judicial service subordinate to the District judge the appointment has to be made 7 87 by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of posting promotion and grant of leave and the control of the courts are vested in the High Court
What is vested includes disciplinary jurisdiction
Control is useless if it is not accompanied by disciplinary powers
It is not to be expected that the High Court would run to the Government or the Governor in every case of indiscretion however small and which may not even require the punishment of dismissal or removal
These articles go to show that by vesting control in the High Court the independence of the subordinate judiciary was in view
This was partly achieved in the Government of India Act 1935 but it was given effect to fully by the drafters of the present Constitution
This construction is also in accord with the Directive Principles in article 50 of the Constitution which reads  50
The State shall take steps to separate the judiciary from the executive in the public services of the State
Mr Sen next argues that articles 309 to 311 particularly article 311 gave a clue to the meaning of the word control
The argument is that the legislation regarding services of the State falls within the jurisdiction of the State Legislature and article 309 gives the power to the State Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State
This is perhaps true
But Mr Sen seems to make no distinction between lelegislative and executive powers
Under article 162 the power of the Executive of the State is coextensive with that of the Legislature of the State but all that is subject to the other provisions of the Constitution
That the Legislature has the power to make laws relating to the services does not show that the Executive enjoys corresponding executive power if the Constitution indicates otherwise
article 310 does no more than state the tenure of the office of the persons serving the Union or the State
That has no bearing upon the present dispute
article 311 is therefore the only article which has relevance
That article reads as follows  311
Dismissal removal or reduction in rank of persons employed in civil capacities under the Union or a State
1 No person who is a member of a civil service of the Union or an all India service or a civil service of 788 the State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed
2 No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him Provided that this clause shall not apply a where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge b where an authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason to be recorded by that authority in writing it is not reasonably practicable to give to that person an opportunity of showing cause or c where the President or Governor as the case may be is satisfied that in the interest of the security of the State it is not expedient to give to that person such an opportunity
3 If any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause 2 the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank as the case may be shall be final Mr Sen argues somewhat syllogistically as follows  Under clause 1 of the Article no person in the service of the Union or the State can be dismissed or removed by an authority subordinate to that by which he is appointed
Under cl
2 no such person can be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause
Reading the above with articles 233 and 234 he contends and rightly that a District Judge or a Judge subordinate to the District Judge cannot be dismissed or removed by any authority other than the Governor
Mr Sen argues that this power of the Governor determines that the enquiry must be made by or under the directions of the Governor or the Government To lend support to this contention Mr Sen draws pointed attention to provisos b and c to cl
He says that by reason of 789 proviso b cl
2 does not apply if the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to give to that person an opportunity of showing cause and under cl
3 the decision of that authority is made final
Again by the proviso c says he the Governor may dispense with the enquiry altogether if he is satisfied that in the interest of the security of the State it is not expedient to give to any person an opportunity of showing cause
Mr Sen contends that as the Governor alone can appoint or dismiss or remove District Judges and as he alone can decide whether for any of the two reasons mentioned in provisos b and c an opportunity to a District Judge of showing cause against the charges leveled against him shall be denied the Governor alone can initiate enquiries and cause them to be held and the High Court cannot claim to hold them
In this way he contends the extent of control exercisable by the High Courts under article 235 must be so cut down as to keep disciplinary jurisdiction out
This argument was not presented in the High Court and does credit to the ingenuity of Mr Sen but it is fallacious
That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying
That does not impinge upon the control of the High Court
It only means that the High Court cannot appoint or dismiss or remove District Judges
In the same way the High Court cannot use the special jurisdiction conferred by the two provisos
The High Court cannot decide that it is not reasonably practicable to give a District Judge an opportunity of showing cause or that in the interest of the security of the State it is not expedient to give such an opportunity
This the Governor alone can decide
That certain powers are to be exercised by the Governor and not by the High Court does not necessarily take away other powers from the High Courts
The provisos can be given their full effect without giving rise to other implications
It is obvious that if a case arose for the exercise of the special powers under the two provisos the High Court must leave the matter to the Governor
In this connection we may incidentally add that we have no doubt that in exercising these special powers in relation to inquiries against District Judges the Governor will always have regard to the opinion of the High Court in the matter
This will be so whoever be the inquiring authority in the State
But this does not lead to the further conclusion that the High Court must not hold the enquiry any more than that the Governor should personally hold the enquiry
790 There is therefore nothing in article 311 which compels the A conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if article 235 vested such a power in 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 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 cl
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 otherwise will be to reverse the policy which has moved determinedly in this direction
The High Court was thus right in its conclusions
The appeal fails and is dismissed
It is clear that the conduct of Bagchi may not now be inquired into but that is a result which we can only regret
In the circumstances we make no order about costs
Appeal dismissed


Summary:
The respondent was appointed a Munsif on November 10 1927
After promotion he became an Additional District and Sessions Judge and officiated at several stations as District and Sessions Judge but was never confirmed as such
In the ordinary course he was due to superannuate and retire on July 31 1953
By an order dated July 14 1953 the Government of West Bengal ordered that the respondent be retained in service for a period of two months commencing from August 1 1953
The order purported to be under Rule 75a of the West Bengal Service Rules Part 1
By another order dated July 20 1953 the respondent was placed under suspension and on the following day he wag served with charges and asked to file a written reply within 15 days
An enquiry into the charges was made by an officer appointed for the purpose
During the period of the enquiry the respondent was retained in service though kept in suspen sion by repeated orders under rule 75a
The enquiry officer reported that some of the charges were proved
On March 18 1954 the respondent was asked to show cause why he should not be dismissed from service and after be had shown cause he was dismissed on May 27 1954
The Public Service Commission was consulted but not the High Court
The respondent appealed to the Governor unsuccessfully
Thereafter he applied to the High Court at Calcutta under articles 226 and 227 of the Constitution against his dismissal
The High Court quashed the order of dismissal as well as the enquiry
The Government of West Bengal appealed to this Court on a certificate granted by the High Court
The questions that fell for consideration were  1 Whether the enquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions Judge contravened the provisions of article 235 of the Constitution which vests in the High Court the control over the District Court and the courts subordinate thereto and 2 whether the provisions of rule 75a West Bengal Service Rules could be utilised to extend the service of the respondent beyond the normal age of retirement
HELD  i Rule 75a which was modelled on Rule 56a of the Fundamental Rules 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 a meritorious record of service who although superannuated can render some more service and whose retention in service is considered necessary on public grounds
If retention in service for the first reason was considered necessary a rule like Rule 56d of the Fundamental Rules was required
777 E C 7 72 ii There is special provision for District Judges in the Constitution in articles 233 to 237
These articles deal with the appointment of persons to be and postings and promotions of District Judges and appointment postings and promotions of Judges subordinate to the District Court and the courts subordinate thereto
They also provide for special rules to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to each State
These articles were not placed in the Chapter on services but immediately after the provisions in regard to the High Courts
The articles went a little further than the corresponding sections of the Government of India Act 1935
They vested the control  of the district courts and the courts subordinate thereto in the High Courts
779 B E 785 B iii The word control  as used in article 235 includes disciplinary control or jurisdiction over District Judges
The history which lies behind the enactment of these articles indicates that control  was vested in the High Court to effectuate a purpose namely the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated
786 B The word control  moreover is accompanied 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 on the presiding Judge
786 C D Article 227 gives to the High Court superintendence over these Courts and enables the High Court to call for returns etc
The word control  in article 235 must have a different content
It includes something in addition to mere superintendence
It is control 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 necessarily indicates an order passed in disciplinary jurisdiction and the word deal  also points to disciplinary and not mere administrative jurisdiction
786 D F iv Although the term used is district court the word court  is used compendiously to denote not only the court proper but also the presiding Judge
786 G H v That the Legislature has under article 309 the power to make laws relating to the services does not show that the Executive under article 162 enjoys corresponding executive power when the Constitution indicates otherwise
787 F G vi There is nothing in article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the inquiry if article 235 vested some power in it
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 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 cl
2 of article 31 1
unless such an opportunity is dispensed with by the Governor acting under the provisos b and c to that clause
790 A C The High Court alone could have held inquiry in this case
To hold otherwise would be to reverse the trend which has moved determinedly in this direction
790 C D 773