Judgment Case ID: 5576

Judgment:
icable to the members of the Subordinate Judicial Service and the question of confirmation of judi 494 cial officer was completely within the domain of control of the HighCourt under Article 235 of the Constitution the findings of the High Court that the officers should not be confirmed cannot be accepted. [499E F] The judgment and orders of the Division Bench set aside. Appellants reinstated in service with the arrears of pay since the date of termination. The orders of the Full Bench quashing the impugned order of termination of respondent in C.A. No. 2860 of 1985 affirmed	 but not the reasons for such quashing. [499G H] & CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 59 & 60 of 1982 etc. From the Judgment and Order dated 9.4.1981 of the Madhya Pradesh High Court in Misc. Petition Nos. 61 and 120 of 1980. Dr. Y.S. Chitale	 G.L. Sanghi	 Mrs. A.K. Verma	 Miss F. Desai	 section Sukumaran	 D.N. Mishra	 Vivek Gambhir and S.K. Gambhir for the Appellants. R.P. Bhatt	 T.C. Sharma	 Shri Narain and Sandeep Narain for the Respondents. The Judgment of the Court was delivered by DUTT	 J. The only question that arises for consideration in these appeals by special leave is whether Rule 3 A of M.P. Government Service (Temporary & Quasi Permanent Service) Rules	 1960	 hereinafter referred to as 'the Rules '	 is applicable to the members of the Subordinate Judicial Service of the Madhya Pradesh Government. In Civil Appeals Nos. 59 & 60 of 1982	 both the appellants were appointed Civil judges on temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation. It is not necessary to state in detail the facts	 and suffice it to say that both the appellants were not ultimately confirmed by the High Court after the expiry of the period of probation or the extended period of probation. The High Court recommended the termination of services of the appellants to the State Government and pursuant to such recommendation	 the State Government terminated the services of the appellants under Rule 12 of the Rules. Being aggrieved by the orders of termination of their services	 the appellants filed writ petitions 495 before the Madhya Pradesh High Court. It was contended by them A that in view of Rule 3 A of the Rules	 they should be deemed to be in guasi permanent service. Rule 3 A provides as follows: "R. 3 A. Government servant in respect of whom a declaration under clause (ii) of Rule 3 has not been issued but has been in temporary service continuously for five years in a service or post in respect of which such declaration could be made shall be deemed to be in quasi permanent service unless for reasons to be recorded in writing the appointing authority otherwise order. " As a declaration under clause (ii) of Rule 3 had not been issued and as the appellants were in temporary service continuously for five years in the post of Civil Judges in respect of which such declaration could be made	 it was contended they should be deemed to be in quasi permanent service	 and that	 accordingly	 the orders of termination of their services were illegal and invalid. It was	 however	 contended on behalf of the respondents that the question of confirmation came within the purview of Article 235 of the Constitution of India vesting in the High Court control over subordinate courts and	 consequently	 the provision of Rule 3 A had no application to the members of Subordinate Judicial Service. The Division Bench of the High Court took the view that if in Rule 3 A in place of the words "appointing authority"	 the words "competent authority" be read	 it would be consistent with Article 235 of the Constitution. The Division Bench overruled the contention of the appellants that although the High Court considered them unfit for confirmation	 yet Rule 3 A would apply as it did not record any reason why they should not be deemed to be in quasi permanent service	 as provided in Rule 3 A. The Division Bench observed as follows: "It was also argued by the learned counsel for the Petitioners that the case of the petitioners was considered by the High Court only for their confirmation and not suitability for employment in a quasi permanent capacity	 when a resolution was passed declaring them to be unfit for confirmation. On this basis	 it was argued that the High Court 's resolution could not	 therefore	 be construed as 'otherwise order ' contemplated by the latter part of Rule 3 A. There is no merit in this contention. The resolution passed in the Court meeting adjudging them not fit for confirmation 496 satisfies the requirement	 as continuance in quasi permanent capacity is included within the ambit or confirmation against the post held by the petitioners. " Accordingly	 the Division Bench dismissed the writ petitions filed by the appellants. In Civil Appeal No. 2860 of 1985	 the High Court of Madhya Pradesh has assailed the judgment and order of its Full Bench. The respondent	 in that appeal also	 was appointed a Civil Judge on a temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation. In his case also	 the High Court did not confirm him after the expiry of the probationary period and he continued without an order of confirmation or discharge. In a Full Court Meeting held on February 27	 1981	 it was decided not to confirm the respondent	 presumable in view of certain adverse remarks against him which were directed to be communicated to him. Ultimately	 his services were terminated under Rule 12 of the Rules. Aggrieved by the order of termination	 the respondent filed a writ petition in the High Court of Madhya Pradesh. The learned Single Judge referred the petition to the Full Bench for answering the following question: "Whether the resolution of the Court Meeting dated 27.2. 1981 satisfies the requirement of an otherwise order of the appointing authority by recording reasons in writing as contemplated under Rule 3 A of the Madhya Pradesh Government Servants (Temporary and Quasi Permanent Ser vice) Rules	 1960?" The Full bench approved of the view expressed by the Division Bench in its judgment which is under appeal in the above Civil Appeals Nos. 59 & 60 of 1982 to the extent that in Rule 3 A in place of the words "appointing authority"	 the words "competent authority" should be read so as to make the rule workable and consistent with Article 235 of the Constitution. The Full Bench	 however	 did not agree with the Division Bench that the finding of the High Court in its resolution that the respondent was not fit for confirmation	 could not be regarded as 'reasons ' within the meaning of Rule 3 A	 but was the 'conclusion ' of the High Court. The full Bench also made a distinction between 'reason ' and 'conclusion ' and took the view that as no reason was given by the High Court as to why the respondent should not be deemed to be in quasi permanent service	 the impugned order of 497 termination of the service of the respondent was illegal and invalid. In that view of the matter	 the Full Bench quashed the impugned order of termination of the respondent and allowed the writ petition	 although the learned Single Judge referred the writ petition to the Full Bench for answering the question as mentioned above. Dr. Chitale	 learned Counsel appearing on behalf of the High Court	 submits that both the Division Bench and the Full Bench proceeded on an erroneous view that Rule 3 A would apply to the members of the Subordinate Judicial Service. He has drawn our attention to the Madhya Pradesh Judicial Service (Classification	 Requirement & Conditions of Service) Rules	 1955	 hereinafter referred to as 'M.P. Judicial Service Rules '	 framed under the proviso to Article 309 of the Constitution. There can be no doubt the M.P. Judicial Service Rules are special rules applying to the members of the Subordinate Judicial Service of the State of Madhya Pradesh. Rule 16 provides as follows: "R. 16. ( 1) Every person appointed to the cadre by direct recruitment shall be required to undergo training for a period of one year at the end of which he shall be placed on probation for a period of one year. (2) The training shall be such as may be prescribed by the High Court. (3) Every such person shall be required to pass the departmental examinations prescribed for Civil Judges. (4) The probationers may	 at the end of the period of their probation	 be confirmed subject to their fitness for confirmation and to having passed the departmental examinations by the higher standard. (5) The High Court may in any case recommend the extension of the period of probation by a period not exceeding one year. If the person concerned is not considered fit for confirmation at the end of such period	 or fails to pass the prescribed departmental examinations	 his services shall be dispensed with." Rule 16(5) provides	 inter alia	 that if the person concerned is not considered for confirmation at the end of the probationary period	 his services. shall be dispensed with. Whether a member of Subordinate 498 Judicial Service should be confirmed or not is absolutely the concern of the High Court. The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed by the State Government can interfere with the control vested in the High Court under Article 235. In B.S. Yadav vs State of Haryana	 ; a Constitution Bench of this Court held that the question whether a particular judicial officer has successfully completed his probation or not is a matter which is exclusively within the domain of the High Court to decide. In an earlier decision of this Court in High Court of Punjab & Haryana vs State of Haryana	 ; it was held that the confirmation of persons appointed to be or promoted to be District Judges was clearly within the control of the High Court under Article 235 of the Constitution. In view of the above decisions of this Court	 it must be held that both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3 A of the Rules. As the High Court did not confirm the appellants in Civil Appeals Nos. 59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985	 the question of their being deemed to be in quasi permanent service does not arise. Further	 as the question of confirmation was completely within the domain of the control of the High Court under Article 235 of the Constitution	 there was no necessity to read the words "competent authority" in place of the words "appointing authority"	 for Rule 3 A was inapplicable to the members of the Subordinate Judicial Service. Moreover	 as already noticed	 there is a specific provision for termination of service of a judicial officer who is found by the High Court to be unfit for confirmation as provided in Rule 16(5) of the M.P. Judicial Service Rules. Dr. Chitale	 learned Counsel for the High Court	 has produced before us the confidential service records of all these judicial officers. We have carefully gone through the yearly reports of the appellants in Civil Appeal Nos. 59 & 60 of 1982. Whatever might be the adverse remarks against the appellant No. 1	 the report of the learned District & Sessions Judge dated March 31	 1978	 is quite favourable except that it has been pointed out in the report that she should be careful to see that all her judgments are properly paragraphed and findings are noted against all issues. Further	 it has been observed that there is need for improvement in the quality of her work. In view of the said report of the District & Sessions Judge	 we do not think that the High 499 Court was justified in not confirming the appellant. So far as appellant No. 2 in Civil Appeal Nos. 59 & 60 of 1982 is concerned	 the report for the period from 1 4 1977 to 31 3 1978 contains the remark "very good". It was also recorded under the general remarks "He is very industrious. During the year under report he disposed of 68 old civil suits; ' In the report for the period ending September 30	 1978 it has been observed "His reputation is bad at present. He has been asked to improve his image." This observation is somewhat vague. The report for the period ending March 31	 1979 is	 however	 completely in favour of the appellant. The performances of the appellant have been found to be highly satisfactory. As regards the respondent in Civil Appeal No. 2860 of 1985	 although he succeeded before the Full Bench on a technical plea based on Rule 3 A of the Rules which is not applicable	 we are of the view that the High Court had justification for not confirming the respondent. It	 however	 appears from the records that the respondent has improved much and	 indeed	 the report for the period from 24 10 1985 to 31 3 1986 shows that his performances for the said period were satisfactory. The subsequent report for the period from 1 4 1986 to 31 3 1987 also shows that on the whole his performances were satisfactory. Accordingly	 we are not inclined to interfere with the order of the Full Bench. In the circumstances	 although we accept the contention made on behalf of the High Court that Rule 3 A of the Rules was not applicable to the members of the Subordinate Judicial Service	 and that the question of confirmation of judicial officer was completely within the domain of control of the High Court under Article 235 of the Constitution	 we are unable to accept the finding of the High Court that the appellants in Civil Appeals Nos. 59 & 60 of 1982 and the respondent in Civil Appeal No. 2860 of 1985 should not be confirmed as Civil Judges. In view of the discussion made above	 we set aside the judgment and order of the Division Bench in Civil Appeals Nos. 59 & 60 of 1982 and also the impugned orders terminating the services of the appellants. The appellants are reinstated in service with arrears of pay	 since the date of termination	 to be paid within three months from date. So far as Civil Appeal No. 2860 of 1985 is concerned	 we affirm the order of the Full Bench quashing the impugned order of termination of services of the respondent	 but not the reasons for such quash 500 ing and direct that for a period of three years the respondent shall be The appeals are disposed of as above. There will	 however	 be no order as to costs in any of them. N.P.V. Appeals disposed of.

Summary:
% The appellants in C.A. Nos. 59 and 60 of 1982	 who were appointed as Civil Judges on temporary and officiating basis on probation	 were not confirmed after the expiry of the period of probation or the extended period of probation	 and their services were terminated by the State Government under Rule 12 of the Madhya Pradesh Government Services (Temporary and Quasi Permanent Service) Rules	 1960. They filed writ petitions before the High Court	 challenging the orders of termination of service as illegal and invalid	 contending that in view of Rule 3 A	 providing that a Government servant in respect of whom a declaration under cl. (ii) of Rule 3 had not been issued	 but had been in temporary service continuously for five years in a service or post in respect of which such declaration could be made	 shall be deemed to be in quasi permanent service unless for reasons to be recorded in writing they should be deemed to be in Quasi Permanent Service	 since no declaration under cl. (ii) of Rule 3 had been issued and they had been in service continuously for five years. On behalf of the respondents it was contended that the question of confirmation came within the purview of Article 235 of the Constitution vesting in the High Court control over subordinate courts and	 consequently	 the provision of Rule 3 A had no application to the members of the Subordinate Judicial Service. Division Bench of the High Court took the view that if in Rule 3 A in place of the words "appointing authority" the words "competent authority" be read it would be consistent with Article 235 of the 493 Constitution	 and dismissed the writ petitions holding that the resolution passed in the Court meeting	 adjudicating the appellants unfit for confirmation	 satisfied the requirement of Rule 3 A as continuance in Quasi Permanent capacity was included within the ambit of confirmation. The services of the respondent in .A. No. 2860 of 1985 were also terminated under Rule 12 of the Rules. In the writ petition filed by him	 the Full Bench of the High Court	 while approving the aforesaid view expressed by the Division Bench	 held that the findings of the High Court in its resolution	 considering the respondent unfit for confirmation	 could not be regarded as reasons within the meaning of Rule 3 A	 and quashed the impugned termination order. Disposing of the appeals	 ^ HELD: Whether a member of Subordinate Judicial Service should be confirmed or not is absolutely the concern of the High Court. The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed by the State Government can interfere with the control vested in the High Court under Rule 235. [498A B ] B.S. Yadav vs State of Haryana	 ; and High Court of Punjab & Haryana vs State of Haryana	 ; relied on. Both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3 A of the M.P. Government Service (Temporary and Quasi Permanent) Rules	 1960. As the High Court did not confirm the omcials	 the question of their being deemed to be in Quasi Permanent Service does not arise. Further	 as the question of confirmation was completely within the domain of the control of the High Court under Article 235 of the Constitution	 there is no necessity to read the words "competent authority" in place of "appointing authority"	 for Rule 3 A was inapplicable to the members of the Subordinate Judicial Service. Moreover	 there is a specific provision in the termination of service of a Judicial officer who is found by the High Court to be unfit for confirmation as provided in Rule 16(5) of the Madhya Pradesh Judicial Service (Classification	 Requirement