Case: High Court Of Punjab &amp; Haryana Etc Vs. State Of Haryana &amp; Ors. Etc

be, is illustrated by their appointment to Selection Grade posts.43. In (1972) 2 SCR 251 = (AIR 1972 SC 1028 ) a question arose as to who was the proper authority for confirming a member of the Assam Judicial Service. Sen was confirmed by the High Court in Judicial Service Grade I against the post of Subordinate Judge. The relevant rule provided that "when a person is appointed to a permanent post he will be confirmed after the period of probation in the case of Deputy Registrar and Assistant Registrar by the High Court and in other cases it will be made by the Governor in consultation with the High Court." The Accountant General refused to accept the confirmation made by the High Court. This Court held that under Article 235 the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotions is also in the High Court. The Advocate General relied on this decision and said that if the power of appointment was with the Governor under Article 233 the power of confirmation was with the Governor because the process of appointment is not complete until confirmation.44. The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.45. In the recent decision in Shamsher Singh v. State of Punjab, (Civil Appeal No. 2289 of l970 decided on 23-8-1974 = (reported in AIR 1974 SC 2192 ) this Court held that the High Court under Article 235 is vested with the control over Subordinate Judiciary. This Court said that before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or he is suitable for the post. In the absence of any rules governing the probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The suitability of a person to a post is of paramount importance in considering the question of confirmation.46. District Judges can be promoted to selection grade posts. Similarly, grant of leave to the District Judge is vested in the High Court. The control over District Judges includes also the posting of District Judges.47. The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court. The High Court of course under this control cannot terminate the services or impose any punishment on District Judges by removal or reduction. The control over District Judges is that disciplinary proceedings are commenced by the High Court. If as a result of any disciplinary proceedings any District Judge is to be removed from service or any punishment is to be imposed that will be in accordance with the conditions of service.48. The order passed by the Governor shows that the State considered Rao to have committed serious irregularities which made him unfit for confirmation. It is indisputable that Rao was promoted to the post of District and Sessions Judge. His reversion carries a stigma as well as reduction in rank, and, therefore, he was entitled to be given an opportunity to show cause against the proposed action within Rule 9.49. The conclusion of the majority judgment that the order of confirmation is to be passed by the Governor in consultation with the High Court is erroneous and is set aside. Rule 10 which confers power on the Governor to confirm is ultra vires the Constitution. The order of confirmation of District and Sessions Judge is to be passed by the High Court. The unanimous view quashing the order passed by the Governor directing the removal because the same was based on enquiry conducted by the Director, Special Enquiry Agency, otherwise than through or with the concurrence of the High Court is upheld. The unanimous view that provisions of Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules are not complied with is upheld.50. This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192 ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968.

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

Explanation:
1[ds]18. It is true that the order of appointment of Rao states that he is appointed on probation with effect from the date he assumes charge of the post Rule 10 of the Service Rules provides that the probation is for two years and that it can be extended. It is apparent that Rao was appointed on the condition that he had to give satisfactory performance with regard to his work and conduct during the period of probation in order to qualify for confirmation. Rao was directly recruited on probation in a substantive vacancy in the cadre of the Superior Judicial Service. Mere use of the words "on probation" is not conclusive. Rao was a probationer because he was appointed against a post substantively vacant with definite conditions of probation. Rao therefore became a probationer. His probation could be extended so as not to exceed three years.On the question of control by the High Court under Article 235 this Court held in Bagchis case (1966) 1 SCR 771   = (AIR 1966 SC 447  ) (supra) that the word "control" as used in Article 235 includes disciplinary control or jurisdiction over district judges. This control is vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it includes disciplinary control the very object would be frustrated. The word "control" is accompanied by the word "vest" which shows that the High Court is made the sole custodian of the control over the judiciary. Control is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction on the presiding judge. The word "control" includes something in addition to mere superintendence over these courts. The control is over the conduct and discipline of judges. The inclusion of a right of appeal against the orders of the High Court in the conditions of service indicates an order passed in disciplinary jurisdiction. The word "deal" in Article 235 also indicates that the control is over disciplinary and not mere administrative jurisdiction. The word "court" in the term "district court" is used compendiously to denote not only the court proper but also the presiding judge. The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and initial posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can 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 Article 311 (2) unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause. The High Court alone will make enquiry into disciplinaryCourt held that Article 235 read with service rules showed that a Munsif had no right to promotion which could be enforced through court. It is not correct to say that the High Court should have consulted the State Public Service Commission because Article 320 (3) (c) contemplated disciplinary matters. There was no reduction in rank of the respondent in that case. All Subordinate judges were in the same cadre and held the same rank irrespective of seniority. Losing place in the seniority list did not amount to reduction in rank.The expression "Judicial Service" is defined in Article 236 to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. The expression "district judge" includes among others an additional district judge and an additional sessions judge. The promotion of persons belonging to the judicial service but holding a post inferior to the district judge vests in the High Court. Because the expression "district judge" includes an additional district judge and an additional sessions judge, they rank above those persons whose promotion is vested in the High Court. It is the function of the Governor to promote Additional District Judge and Additional Sessions Judge to be District Judges.41. This Court held that under Article 233 the appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court. District Judges are directly appointed or are promoted from the subordinate rank of the judiciary. The initial appointment as well as the initial promotion of persons to be District Judges is with the Governor.The confirmation of persons appointed to be or promoted to be District Judges is clearly within the control of the High Court for these reasons. When persons are appointed to be District Judges or persons are promoted to be District Judges the act of appointment as well as the act of promotion is complete and nothing more remains to be done. Confirmation of an officer on successful completion of his period of probation is neither a fresh appointment nor completion of appointment. Such a meaning of confirmation would make appointment a continuing process till confirmation. Confirmation of District Judges is vested in the control of the High Court for the reason that if after the appointment of District Judges the Governor will retain control over District Judges until confirmation there will be dual control of District Judges. The High Court in that case would have control over confirmed District Judges and the Governor would have control over unconfirmed District Judges. That is not Article 235.This Court in the majority view in Shamsher Singh v. State of Punjab, C. A. No. 2289 of 1970 and Ishwar Chand Aggarwal v. State of Punjab, (Civil Appeal No. 632 of 1971) decided on 23 August, 1974 (reported in AIR 1974 SC 2192  ) pointed out that the High Court is to hold the enquiry preferably through District Judges. The members of the subordinate judiciary look up to the High Court for discipline and dignity. The enquiry conducted by the Director of Special Enquiry was unconstitutional.51. The majority view of the High Court upheld the seniority rule in the Punjab Superior Judicial Service Rules, 1953. This question was not in issue before the High Court. We have not gone into the question. We express no opinion on the seniority rule which is R. 12 in the Punjab Superior Judicial Service Rules, 1968.