H K AGNIHOTRI Vs. DELHI HIGH COURT

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner, a permanent Assistant Superintendent ] to the District and Sessions Judge, Delhi who, on the date of the presentation of the petition was posted as Head Copyist. Incharge Copying Agency (Sessions) Delhi, challenges an order made by the then Chief Justice of this Court, appointing respondents Nos. 3 and 4 as Superintendents to the District and Sessions Judge on the ground that the then Chief Justice of this Court was not competent to make the appointments and that the appointment was made in disregard of the material provisions of the Rules framed in that behalf and the questions that this petition raises is as to the correct interpretation of the term "Hon'ble Judges of the High Court" and the true effect and import of the system of enrolment of candidates and constitution of a panel provided for by the said Rules.

(2.) The facts and circumstances leading to the present petition are not in dispute and may be briefly stated. The petitioner has been on the rolls of the Civil Court Establishment of the erstwhile State of Punjab, later of East Punjab and after the High Court of Delhi was constituted of Delhi and has been in service for over 30 years. At the material time the petitoner was a permanent Assistant Superintendent to the District and Sessions Judge, Delhi. Under Section 241(1) of the Government of India Act, 1935, except as expressly provided by that Act, all appointments to the civil services of. and civil posts under the Crown in India, shall be made in the case ol services of the Federation and posts connected with the affairs of the Federation, by the Governor-General or "such person as he may direct" and in the case of services of a Province, and posts in connection with the affairs of a Province, by the Governor "or such person as he may direct-" Sub-section (2) further provided that, except as expressly provided by that Act, the conditions of service of persons serving in a civil capacity in India shall, subject to the provisions of this Section, be such as may be prescribed in the case of persons serving in connection with the affairs of the Federation by the Governor-General and in the case of persons serving in connection with the affairs of a Province by the Governor, by rules "of by some person or persons authorised" by them. By sub-section (3) of Section 313 of the said Act, it was provided that the references in the provisions of that Act to the Governor-General, as regards matters with respect to which the Governor-General was required by the said provision to act in his discretion, be construed as references to the Governor-General in Council. In exercise of the powers conferred by sub-sections (1) & (2) of Section 241 read with sub-section (3) of Section 313 of the said Act, the Governor-General in Council by notification of February 17. 1941, copy of which is annexure PI/A to the petition directed that, subject to such general rules as may be made by the "Hon'ble Judges of the High Court of Judicature at Lahore", appointments to posts on the establishment of the Civil Court at Delhi specified in the first column of the schedule to the notification shall be made by the officer specified in the corresponding entry in the second column of the schedule and authorised the "Hon'ble Judges of the High Court of Judicature at Lahore" to make "subject to the previous approval of the Central Government" rules prescribing the conditions of service of all persons appointed to the said post. In the schedule to the notification, Item No. 1 dealt with the District Court and the authority named in the correspoinding entry in the second column was the District and Sessions Judge. There is no material on the record to indicate if any general rules were made by the Hon'ble Judges of the High Court of Judicature at Lahore pursuant to the delegation of the authority conferred in that behalf in the said notification. The aforesaid notification was apparently issued by the Governor-General in Council in the wake of a similar notification by the Governor of Punjab empowering the "Hon'ble Judges of the High Court of Judicature at Lahore" to frame general rules with regard to the appointment to the posts on the establishment of the Civil Courts in Punjab which the District and Sessions Judges in Punjab were empowered to make. It appears that subsequently, the power conferred on the District Judges to make appointments to the said posts were withdrawn to the extent they related to the appointment of Clerks of Courts to the District Judges in Punjab, now called the Superintendents and the power was in term delegated to the Hon'ble Judges of the High Court of Judicature at Lahore in exercise of the same powers under the aforesaid provisions, by the Governor of Punjab. It further appears that pursuant to the powers conferred on the Hon'ble Judges of the High Court of Judicature at Lahoure, Rules, copy of which is annexure P I to the petition, were framed. As the then Chief Commissioner's Province of Delhi, was within the jurisdiction of the Lahore High Court, the said High Court by its letter of February 17, 1941 forwarded to the then Chief Commissioner of Delhi copy of the aforesaid Rules approved by the Governor of Punjab relating to the appointment of Clerks of Courts to District and Sessions Judges in Punjab and informed the Chief Commissioner that the powers of appointment and control of the Clerks of Court in the Punjab had been delegated to the Hon'ble Judges of the High Court and requested the Chief Commissioner to obtain approval of the Central Government to : "(i) the delegation to the Judges of the power to appoint the Clerk of Court to the District and Sessions Judge. Delhi; and (ii) the application of the Punjab Rules to that post". It was further pointed out that the substance of these rules will be incorporated in the rules to be made under the Government of India Act for the establishment of the Civil & Sessions Courts at Delhi. The communication further pointed out that the Hon'ble Judges had received complaints of corruption against these officials and felt that the position of Clerk of Court afforded considerable opportunity for corruption and "the Hon'ble Judges consider it necessary that they should appoint Clerks of Court to District and Sessions Judges chosen by selection from the establishment of Subordinate Courts in general to a provincial cadre whose members will be liable to serve throughout Punjab and Delhi". A copy of this letter is annexure P1/C to the petition. Copy of the aforesaid rules which are identical to annexure PI was enclosed with the communication. Pursuant to this order in exercise of power conferred on him by sub-section (1) of Section 241 of the Act, the Governor-General in Council by a notification of June 18, 1942 directed that "appointments to the posts of the Clerk of Court to the District and Sessions Judge, Delhi shall be made by the Hon'ble Judges of the High Court of Judicature at Lahore". Copy of this notification is annexure P1/E to the petition. By a separate communication of the same date, the Home Department to the Chief Commissioner, Delhi informed the High Court that the Government of India had approved "the application to the post o Clerk of Court to the District and Sessions Judge, Delhi of the Rules relating to the appointment and control of Clerks of Court to the District and Sessions Judges in the Punjab. "The copy of this communication is annexure PI/D, to the petition, and the rules to which it refers are the same of which a copy is annexure PI to the petition. The Rules were later amended and the amendments were similarly approved by the Central Government. It appears that pursuant to Rule 3 of the said Rules, the High Court of Judicature at Lahore used to maintain a list of condidates for appointment to the said posts and the names of the candidates used to be enlisted on the basis of the recommendation which was called for from the District Judges all over the State of Punjab and the then Province of Delhi. On the partition of India, the notifications, as indeed, the Rules continued to be applicable to the East Punjab High Court which was set up by the High Courts (Punjab) Order. 1947, issued in exercise of power conferred by Section 9 of the Indian Independence Act, 1947 and later the Punjab High Court and still later when the High Court of Delhi was set up under the Delhi High Court Act, 1966 of the various persons who were on the said list were described by the Registrar of the then Punjab High Court as "persons considered fit to be tried as Superintendents", three were from the staff of the Civil & Sessions Court, Delhi and the name of the petitioner was on the top of this list. According to the communication of October 31, 1966 from the Registrar of the then Punjab High Court to the Registrar of this Court, it was pointed out that "the Shankar Committee have advised us that the Personnel on the approved list of persons considered fiit to be tried as Superintendents to the District and SessionJudges should be divided by the High Court itself". The letter then proceeded to give the names mentioned above and it was suggested that they can "profitably be absorbed in the re-organised judicial set up of Delhi". It is not clear if any steps were taken by this court pursuant to the said notification and any list of such persons was drawn or not. It, however, appears that although no fresh panel was constituted, the applications received from time to time for the post of Superintendents were forwarded by the District Judge to the High Court but without any recommendation. When two posts of the Superintendent to the District Judge fell vacant, the Registrar of this Court addressed a communication to the District and Sessions Judge. Delhi requesting him to examine the claim of all the applicants whose names were set out in the communication and included respondents No. 3 and 4 whose applications were forwarded to the High Court from time to time and "also consider the names of Sarvshri Hari Krishan Agnihotri and Amrao Singh whose names were borne on the panel, for the posts of Superintendent, framed as far back as 1963". The learned District and Sessions Judge was requested to "recommend a panel of 5 or 6 names to this Court". A copy of this communication is aimexure P/5 to the petition. In reply to this communication, learned District and Sessions Judge, Delhi recommended the names of the petitioner and the said Amrao Singh, two of the original panelists, the third having meanwhile been absorbed elsewhere, and expressed his inability to recommend any other member of the staff, for being considered for the said post on which by his communication of the then Chief Justice, who was pleased to direct that the service records of the applicants whose applications had been forwarded from time to time and that of the petitioner and Amrao Singh, the only two persons who had been left on the panel to be forwarded to the High Court be called for interview. These candidates were interviewed by the then Chief Justice who was pleased to appoint respondents No. 3 and 4 as Superintendents against the two vacant posts and an intimation of it was sent by the Registrar of this Court to the District and Sessions Judge, Delhi by his communication of April 5, 1972, copy of which is Anx. P/6.

(3.) Aggrieved by the aforesaid appointment and feeling that the petitioner had thereby been deprived of the right to the appointment to one of the said posts, the petitioner challenges the validity of the appointment of respondents No. 3 and 4 to the said posts on the grounds that, in the first instance by virtue of the delegation made by the Governor General in Council and of the Rules copy of which is annexure PI, the power to make the appointment was conferred on "the Hon'ble Judges of the High Court of Judicature at Lahore" and therefore, of this Court and Hon'ble the Chief Justice, therefore, was not competent to make the appointment and in the second instance, that the appointment militates against the provisions of the aforesaid Rules inasmuch as the claims of persons other than those who were on the panel constituted under the Rules for appointments to the said posts were also considered thereby impliedly negativing the right of the petitioner to be considered for appointment to the posts only alongwith the persons on the panel and to the exclusion of those who were either not on the panel or whose names had not been recommended by the District Judge in terms of the Rules. The petitioner, therefore, prayed for the order of appointment of respondents No. 3 and 4 being quashed by appropriate writs and/or a direction that the petitioner be appointed to one of the posts and in the alternative that the two posts be filled in accordance with the aforesaid Rules and "practices and procedure" as detailed in the communication of the Registrar, Punjab High Court, Chandigarh, dated March 31, 1966 addressed to the District and Sessions Judges, Punjab and Delhi, copy of which is annexure P 2, to the petition. The petitioner has also prayed for such orders of further directions as may appear to this Court to be just and proper in the circumstances of this case.