RAM MANDIRI Vs. RANGANATHA NAIDU

JUDGEMENT

(1.) K.A. Swami, CJ. These two writ appeals are preferred against the common judgment dated 21.1.1993, passed in W.P.Nos.3642,939 and 14035 of 1992. W.P.No.3642 of 1992 was filed by Sri P.Manogaran, Secretary, Pondicherry Bar Association, whereas W.P.No.9391 of 1992 was filed by the Pondicherry Bar Association and W.P.No. 10435 of 1992 was filed by one R.Vadivelu. The prayers made in W.P.Nos.3642 and 9391 of 1992 are similar inasmuch as they have sought for quashing of the appointment of Sri Edward Kumar, V.A., Special Officer-cum-Subordinate Judge, Judicial Department, Pondicherry, with a only difference that in W.P.No.9391 of 1992, a writ of quo warranto to oust him from the office and whereas in W.P.No.l()435ofl992,apart from challenging the appointment of Sri Edward Kumar, V.A., the appointment of S.R.Pushpavalli, L.Veeranath Rao, G.Patric and G.Rajesurya, is challenged. Learned single Judge has held that the appointment of Sri Edward Kumar is not in accordance with the rules of recruitment and the provisions of the Constitution. Therefore, the appointment of Edward Kumar, V.A., has been quashed, whereas the appointments of others have been upheld. While parting with the case, the learned single Judge has also observed that though the jurisdiction of the High Court of Madras has been extended to Pondicherry, but nevertheless the administrative control of the High Court over the judicial wing of the Union Territory of Pondicherry has not been given effect to. Therefore, it is high time that the High Court should assume its administrative control over the judicial wing of the Union Territory of Pondicherry. Both the appeals are filed by the Union of India, District Judge and Secretary to Government. Edward Kumar, V. A., though filed a writ appeal, against the order of the learned single Judge, setting aside his appointment. Subsequently withdrew that appeal and the same was dismissed as withdrawn. Therefore, there is not much to be decided in the appeals. However, it is urged on behalf of the respondents that the question as to the administrative control of the High Court over the judicial wing of the Union Territory of Pondicherry is necessary to be decided since in the absence of any authoritative pronouncement, the Union Territory of Pondicherry is of the opinion that the administrative control of the High Court of Madras does not extend over the judicial wing of the Union Territory of Pondicherry. In the light of this, it is submitted by the learned counsel appearing for the appellants that they would also like to have the decision of the High Court on this matter, so that the legal position may become clear to them.

(2.) IN the light of these submissions we have heard both sides on the question as to whether extending of the jurisdiction of the High Court of Madras to Pondicherry did not include, or did not vest in the High Court of Madras, the administrative control over the judicial wing of the Union Territory of Pondicherry as contemplated by Chapter VI of Part VI of the Constitution.

(3.) THE extent of the power of the High Court, as contained in Chapters V and VI of Part VI of the Constitution, has been explained in clear terms by the Supreme Court in Chief Justice of Andhra Pradesh v. Dixitulu, A.I.R. 1979 S.C. 193, thus: "33. We now turn to Chapter VI. It is captioned: 'subordinate courts". It consists of Articles which provide for matters relating inter alia to appointment and control of persons who man posts in the subordinate judiciary. According to the scheme of this Chapter, subordinate judiciary has been classified into District Judges and members of the "Judicial Service". Art.236 defines the expression "District Judge" to include "Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of Small Causes Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge". THE Article defines "judicial service" 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. 34. Art.233 gives the High Court an effective voice in the appointment of District Judges. Clause (1) of Article peremptorily requires that "appointments of persons to be and the posting and promotion of District Judges" shall be made by the Governor in consultation with the High Court". Clause (2) of the Article provides for direct appointment of District Judges from Advocates or pleaders of not less than seven years standing, who are not already in the service of the State or of the Union. In the matter of such direct appointments, also, the Governor can act only on the recommendation of the High Court. Consultation with the High Court under Art.233 is not an empty formality. An appointment made in direct or indirect disobedience of this constitutional mandate, would be invalid. (See: Chandra Mohan v. State of UP, A.I.R. 1966 S.C. 1987 and Chandramouleshwar v. Patna High Court, A.I.R. 1970S. C. 370. 'service" which under Clause (1) of Art.233 is the first source of recruitment of District Judges by promotion, means the"judicial services" as defined in Art.236. 35. THE word "posting" as used in Art.233, in the context of" appointment" and" promotion "means the first assignment of an appointee or pro-motee to a position in the cadre of District Judges. It cannot be understood in the sense of "transfer". (See: Ranga Mohammed case, A. I. R. 1976 S.C. 903). 36. Art.234 enjoins that the rules in accordance with which appointments of persons other than District Judges to the judicial service of a State are to be made, shall be framed by the Governor in consultation with the High Court and the Public Service Commission. THE expression "judicial service" in this Article, carries the same connotation as defined in Art.2.36. 37. Art.235 is the pivot around which the entire scheme of the chapter revolves. Under it, "the control over District Courts and courts subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of a State" is vested in the High Court. 38. THE interpretation and scope of Art.235 has been the subject of several decisions of this Court. THE position crystallised by these decisions is that the control over the subordinate judiciary vested in the High Court under Art.235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes: (a)(i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Art.311(2). (ii) In Art.235, the word "control" is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary. THE control vested in the High Court being exclusive and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority. State of West Bengal v. Nripendra Nath Bagchi, A.I.R. 1966 S.C. 447, Shamsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192: 1974 Lab.I.C 1280 and Punjab and Haryana High Court v. State of Haryana (sub nom Narendra Singh Rao, A.I.R. 1975 S.C. 613. (iii) Suspension from service of a member of the judiciary with a view to hold a disciplinary inquiry. (b) Transfers, promotions and confirmation of such promotions, of persons holding posts in the judicial service, inferior to that of District Judge. State of Assam v. S.N.Sen, (1972)2 S.C.J. 558: A.I.R. 1972 S.C. 1028 and State of Assam v. Kuseswar Saikia, A.I.R. 1970 S.C. 1616. (c) Transfers of District Judges. State of Assam v. Ranga Mohammed, A.I.R. 1976 S.C. 903 and Chandramouleshwar v. Patna High Court, AIR. 1970 S.C. 370. (d) Recall of District Judges posted on ex-cadre posts or on deputation on administrative posts. (State of Orissa v. sudhasu Sekhar Misra, A.I.R. 1968 S.C. 647). (e) Award of selection grade to the members of the judicial service, including District Judges, being their further promotion after their initial appointment to the cadre (Stare of Assam v. Kuseswar Saikia, A.I.R. 1970S.C. 1616. (f) Confirmation of District Judges, who have been on probation or are officiating, after their initial appointment or promotion by the Governor to the cadre of District Judges under Art.233. (Punjab and Haryana High Court v. State of Haryana, A.I.R. 1975 S.C. 613.) (g) Premature or compulsory retirement of Judges of the District Courts and of Subordinate Courts. (Stare of UP. v. Batuk Deo Pati Tripathi). 39. Since in both these appeals, orders of the premature retirement of the respondents, viz. of Shri Dikshitulu made by the Chief Justice, and of Shri Krishnamurthy by the Governor in consonance with the decision of the High Court arc in question, it will be appropriate to amplify the point a little. It is well settled that compulsory retirement simpliciter, in accordance with the terms and conditions of service, does not amount to dismissal or removal or reduction in rank under Art.31 or under the Service Rules because, the Government servant does not lose the terminal benefits already earned by him. (See: Tara Singh v. State of" Rajasthan .A.I.R. 1975 S.C. 1487 and State of Haryana v. Inder Prakash Anand, A.I.R. 1976 S.C. 1841.) 40. In the last mentioned case the Government servant, was officiating in the cadre of District Judges. THE High Court recommended that he should be reverted to his substantive post of senior Subordinate Judge/Chief Judicial Magistrate and, as such, allowed to continue in service till the age of 58 years. Contrary to the recommendation of the High Court, the Slate Government passed an order under Rule 5.32(c) of the Punjab Civil Service Rules, compulso-rily retiring him from service at the age of 55 years. Holding that the order of compulsory retirement was invalid, this Court stressed that the power of deciding whether a judicial officer should be retained in service after attaining the age of 55 years upto the age of 58 years, vests in the High Court and to hold otherwise "will seriously affect the independence of the judiciary and take away the control vested in the High Court". THE formal order of retirement, however, is passed by the Governor acting on the recommendation of the High Court, that being "the broad basis of Art.235". It was explained that "in such eases it is the contemplation in the Constitution, that the Governor as the head of the State will act in harmony with the recommendation of the High Court". It was concluded that, "the vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State". In other words, while in form, the High Court's decision to compulsorily retire a subotdinate judicial office in the exercise of its administrative or disciplinary jurisdiction under Art.235 is advisory, in substance and effect, it is well-nigh peremptory. 41. Recently, in State of" Uttar Pradesh v. Batuk Deo Pati Tripathi, this Court succinctly summed up the whole position as follows: "THE ideal which inspired the provision that the control over District Courts and courts subordinate thereto shall vest in the High Courts is thai those wings of the judiciary should be independent of the executive.....It is in order to effectuate that high purpose that Art.235 as construed by the court in various decisions requires that all matters relating to the subordinate judicial including compulsory retirement and disaplinary proceedings, but excluding the imposition of punishments falling within the scope of Art.311 and the first appointments and promotions, should he dealt with and decided upon by the High Courts in the exercise of the control vested in them. 42. In sum, the entire scheme of Chapters V and VI in Part VI. epitomised in Arts.229 and 235, has been assiduously designed by the Founding fathers to ensure independence of the High Court and the subordinate judiciaty. [Italics supplied] In joginder Nath and others v. Union of India, A.I.R. 1975 S.C. 511, while dealing with Art.234 of the Constitution, the Supreme Court has held that the word 'state" in Art.234 would include a Union Territory also.