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

1. These appeals by certificate raise the question as to whether the confirmation of N. S. Rao was to be made by the Governor or by the High Court.2. Rao was appointed on 23 June, 1970 on probation under Rule 9 of the Punjab Superior Judicial Service Rules 1953. He was appointed as District, Additional District and Sessions Judge. He assumed charge on 7 July, 1970. On 7 July, 1972 he completed two years of probation. On 15 July, 1972 the High Court received a complaint from Manbat Rai Gaba. The High Court entrusted to Justice Gurnam Singh an enquiry into the complaint. On 1 September, 1972 Rao was transferred to Ambala as District and Sessions Judge. On 5 September, 1972 there was an order posting Rao as District and Sessions Judge, Karnal. On 13 October, 1972 there was a letter from the State Government to the High Court, declining to issue notifications under Sections 20 and 21 of the Punjab Courts Act.3. On 13 February, 1973 the State Government addressed a letter to the High Court to send its views about the completion of probation by Rao. The High Court on 26 February, 1973 considered the report of Justice Gurnam Singh who came to the conclusion that the charges against Rao were not substantiated. On 6 March, 1973 the Government wrote another letter to the High Court asking for the record of service of Rao and the views of the High Court about the completion of probation by Rao. The Government also asked about the result of the enquiry along with the report. On 10 April, 1973 the High Court replied to the above two letters saying that the matter of confirmation of promotees as well as of Rao a direct recruit was with the High Court and not with the Government.4. On 19 April, 1973 the High Court promoted Rao as permanent District and Sessions Judge, with effect from 30 March, 1973. The Government on the same day wrote to the High Court saying that the view of the High Court about competency to confirm District and Sessions Judges was legally untenable. The High Court was requested to reconsider the matter and withhold issuance of notification confirming Rao. On 4 May, 1973 the High Court in modification of the earlier notification of 19 April, 1973 confirmed Rao as District and Sessions Judge with effect from 7 July, 1972 on which date he completed the period of probation.5. On 26 May, 1973 the Government wrote to the High Court stating that the Government did not recognise the order of confirmation issued by the High Court. The Government further said that Rao would be deemed to be under extended period of probation. The Government said that the High Court would be well advised to review their earlier decision and send the requisite record without any further delay. On 1st June, 1973 the Government wrote to the High Court saying that the Government were of opinion that in view of the probationary period of Rao having been found to be unsatisfactory he was not fit to be retained on the post of District Additional District and Sessions Judge and should be reverted to his substantive post of District Attorney. It may be stated here that Rao before he was appointed as Additional District and Sessions Judge was a District Attorney. The Government - further requested the High Court that the matter might be placed before the Judges immediately so that the views of the High Court would be available to the Governor before the High Court went into vacation. On 2-6-1973 the High Court replied that the matter was under consideration of the Judges and their views would be communicated to the State Government early. It may be stated here that the vacation commenced on 2 June, 1973. On 12 June, 1973 the Government wrote to the High Court saying that if the views of the High Court were not received, the State Government would have no alternative but to take a final decision. On 14 June, 1973 the High Court wrote to the Government that reply would be sent after the reopening of the High Court. The High Court reopened on 15 July, 1973. On 21 June, 1973 the Governor wrote a note approving action proposed by the Council of Ministers. There was a gazette notification reverting Rao from the post of District and Sessions Judge, Ambala to his farmer post of District Attorney.6. Rao challenged the order of the Governor in an application under Article 226 in the High Court of Punjab and Haryana.7. The High Court by a majority judgment held that the power to confirm is a part of the power to appoint and, therefore, the Governor being the appointing authority the confirmation is to be by the Governor on the advice of the Council of Ministers. The majority view of the High Court was that confirmation is not a matter of control of District Courts by the High Court.8. The other findings of the High Court are as follows :First, all enquiries against an officer of the subordinate judiciary, whether for the purpose of punishing him, if found guilty, or for ascertaining his suitability or otherwise for confirmation, can be initiated and conducted by the High Court alone. The Government or any other authority without the concurrence of the High Court is not competent to initiate or hold any enquiry against a District Judge or a member of the judicial services-of the State. The control vested in the High Court under Article 235 of the Constitution read together with the mandate of Article 233 of the Constitution, makes it clear that the High Court alone is competent to certify/recommend, advice, as to whether or not the probationer Rao had satisfactorily completed the period of probation.Second, there has been both direct and indirect non-compliance with the constitutional mandate, viz., not consulting the High Court and consulting other persons who were not entitled to advice him. In making the order the Governor was influenced by an extraneous consideration viz, the report of the Director, Special Enquiry Agency and thereby the provisions of Articles 233 and 235 were contravened.Third Rule 9 of the Appeal Rules was attracted and non-compliance with the mandatory provisions of Rule 9 is fatal to the order terminating the services of Rao.Fourth, the order was not one of punishment, and, therefore, Article 311 was not attracted.Fifth, no provision of the Constitution or statutory rules has been brought to the notice of the Court which makes consultation with the High Court obligatory for the Governor before framing and issuing such Rules, though as a matter of sound administrative policy the Governor should before framing rules for the Judicial Services of the State, consult the High Court. Before amending and promulgating the amendment on 21 April, 1972, the Government solicited the views of the High Court.Sixth, there is no force in the contention that regulation of seniority is entirely a matter for the control of the High Court. This is a condition of service which can be regulated by the Governor in exercise of his legislative power under the proviso to Article 309 of the Constitution, though the fixation of seniority in accordance with such a rule would be matter within the jurisdiction of the High Court.9. The High Court held that the order of confirmation of District/Additional District and Sessions Judge on probation has to be passed by the Governor in consultation with the High Court and in this view of the matter the order of confirmation of Rao passed by the High Court was ineffective. The allegation that the orders were the result of the male fides has not been substantiated. The orders were invalid because they were based on an enquiry conducted by the Director, Special Enquiry Agency, otherwise than through or with the concurrence of the High Court and as such were violative of Article 235. The impugned orders were passed without effective consultation with the High Court and were violative of Article 233 of the Constitution. The mandate of Rule 9 of the Punjab Civil Service (Punishment and Appeal) Rules, 1952 hereinafter referred to as the Punishment Rules has not been complied with.10. Appeals were preferred by the State as well as by Rao. The High Court also preferred an appeal.

Reasoning:
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.