Case: Baldev Raj Guliani &amp; Others Vs. The Punjab &amp; Haryana High Court &amp; Others

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 320(3)(c) was attracted in the case of judicial officers. The question did not arise in that form. 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 constitutional 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 320(3)(c) will be to defeat the supreme object underlying Article 235 of the Constitution specially intended for protection of the judicial officer s and necessarily the independence of the subordinate judiciary. It is absolutely 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.23. 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 Government to disburse the officers full salary during the entire period of suspension up to 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.24. 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 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 service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains 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 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, therefore, a distinct and separate proceeding 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 t he 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, therefore, 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 purpose 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Statebrings 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 Government to disburse the officers full salary during the entire period of suspension up to 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 ofare, 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 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 service. When he is dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. Nothing remains 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 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, therefore, a distinct and separate proceeding 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 t he 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, therefore, 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 purpose 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.