# [1975] 3 S.C.R. 365

- **Citation:** [1975] 3 S.C.R. 365
- **Court:** Supreme Court of India
- **Decided:** 1975-01-24
- **Case number:** Civil Appeal No. 852, 854 and 1503 of 1974
- **Bench:** A. N. Ray, H. R. Khanna, K. K. Mathew, M. H. Beg, Y. v. CHANDRACHUD
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1975-3-s-c-r-365-6394
- **Pages:** 16

## Headnote

Constitwion of India 1950, Article 233, 234 a11d 235-"Contro/ orer district
u'.urts a11d Co11.rts .111h-ordi1111te ther1•to"-"Cflwro::', 111<•1111i11g of-Co11firmatio11
.01 pe1·sons appo111ted to be District J11dge.1·, if lilithin the co11trol of Hig/1 Court.
Constitution of /11di"· 1950, Article 235 11111/ Puniab S11perior Judlcial Sen•ice
!Rules, 1963, Rufr IO-Pro111otio11 of a person to·he District J11dge-R11/c co11ferfi11g poll'er of co11finw1tio11 011 the Govem?'" ifi valid.
Constit11tio11 of /11di11. 1950, Article 235 and P11ni"b Ciril Serrice (P11ni.1hmenr
1111£1 Appe11/ J R11.'es. R11/e 9-Di.\"cip/i11ary proceedings agai11st District Judges-
~11q111ry by Gorcm111c11t ll'ithout tl1e conc111n11ce of High Court, if 1·11/id.
Before Rao 1rns appointed as Additional District and Sessions Judge under
Rul~ 9 .of the Punjab Superior Judicial Services Rules I 963. he wus functioning as
a D1stnct Attorney. He assumed charge and completed two years of probation.
0
On the receipt of the complaint against him, the High Court entruited to Justice
Gurnam Sing~ :1n cnquirr i~to the complaint. Rao was tr~1nsferred to A!11ba1~
and later to Kamal as D1stncl and Sessions Judge. The High Court considered
the report of .lustic~ Gurnam Singh who cume to the conclmion thut the charges
uguinst Rao were not substantiated. On J 9 April, 197~ the High Court promoted
Rao as purmuncnt District and Sessions Judge, with effect from Murch ·30, 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
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the i~suance of notification confirming Rao WH! withheld.
Un 4 May, 1973 the
High Court confirmed Rao as District and Sessions Judge with effect from July 7.
1972 on which date he completed the period of probation. On 1\-lay 26. I 973 the
Governm~nt 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 thllflfao would be deemed to_ be under extended period of probation.
The Governn1ent said that the HiglfCourt wo11ld.li_e-welL1d,.ised to re"iew their
_ carlicr-·decision:.:i11d--send·the ·requisite record without any further delay. On I
June, 1973 the Co1ernment wrote to the High Court saying that the Government
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were of opinion that in view of the probationary period of Rao having been found
!o 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 sub3tantive post of 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 June. 1973 the High Court replied that the matter was under consideration of
!he Judg~s and their views would be communicated to the State Government early.
G
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 re·
ceived, the State Government would have no alternative but to take a final de·
cision. On 14 June. 1973 the High Court wrote to the Government that reply
would be sent after the reopening of the High Comt. The High Court. reope~ed
on 15 Julv. 1973. On 21 June. 1973 the Governor wrote n note approvmg actton
propcised by the Council of Ministe.rs. There was a gazette notification reverting
Rao from the post of District and Sessions Judge. Amba!a to his former nost of
District Attornev.
Rao challenged the order of the Governor in an application
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under ;A.rticle 226 in the High Court.
The High Court held that the order of confirmation of District/ Additional
District & Sessions J.udge on ·probation ha• to be nassed bv the Governor in consultation with the High Court and in this view of

## Text

_Characters 0–39,636 of 50,460. This is a partial read: ask again with offset=39636 for what follows._

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365
HlGH COURT OF PUNJAB & HARYANA ETC.
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STATE OF HARYANA & ORS. ETC.
January 24, 1975
[A. N. RAY, C.J., H. R. KHANNA, K. K. MATHEW, M. H. BEG AND
Y. v. CHANDRACHUD, JJ .J
Constitwion of India 1950, Article 233, 234 a11d 235-"Contro/ orer district
u'.urts a11d Co11.rts .111h-ordi1111te ther1•to"-"Cflwro::', 111<•1111i11g of-Co11firmatio11
.01 pe1·sons appo111ted to be District J11dge.1·, if lilithin the co11trol of Hig/1 Court.
Constitution of /11di"· 1950, Article 235 11111/ Puniab S11perior Judlcial Sen•ice
!Rules, 1963, Rufr IO-Pro111otio11 of a person to·he District J11dge-R11/c co11ferfi11g poll'er of co11finw1tio11 011 the Govem?'" ifi valid.
Constit11tio11 of /11di11. 1950, Article 235 and P11ni"b Ciril Serrice (P11ni.1hmenr
1111£1 Appe11/ J R11.'es. R11/e 9-Di.\"cip/i11ary proceedings agai11st District Judges-
~11q111ry by Gorcm111c11t ll'ithout tl1e conc111n11ce of High Court, if 1·11/id.
Before Rao 1rns appointed as Additional District and Sessions Judge under
Rul~ 9 .of the Punjab Superior Judicial Services Rules I 963. he wus functioning as
a D1stnct Attorney. He assumed charge and completed two years of probation.
0
On the receipt of the complaint against him, the High Court entruited to Justice
Gurnam Sing~ :1n cnquirr i~to the complaint. Rao was tr~1nsferred to A!11ba1~
and later to Kamal as D1stncl and Sessions Judge. The High Court considered
the report of .lustic~ Gurnam Singh who cume to the conclmion thut the charges
uguinst Rao were not substantiated. On J 9 April, 197~ the High Court promoted
Rao as purmuncnt District and Sessions Judge, with effect from Murch ·30, 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
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the i~suance of notification confirming Rao WH! withheld.
Un 4 May, 1973 the
High Court confirmed Rao as District and Sessions Judge with effect from July 7.
1972 on which date he completed the period of probation. On 1\-lay 26. I 973 the
Governm~nt 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 thllflfao would be deemed to_ be under extended period of probation.
The Governn1ent said that the HiglfCourt wo11ld.li_e-welL1d,.ised to re"iew their
_ carlicr-·decision:.:i11d--send·the ·requisite record without any further delay. On I
June, 1973 the Co1ernment wrote to the High Court saying that the Government
F
were of opinion that in view of the probationary period of Rao having been found
!o 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 sub3tantive post of 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 June. 1973 the High Court replied that the matter was under consideration of
!he Judg~s and their views would be communicated to the State Government early.
G
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 re·
ceived, the State Government would have no alternative but to take a final de·
cision. On 14 June. 1973 the High Court wrote to the Government that reply
would be sent after the reopening of the High Comt. The High Court. reope~ed
on 15 Julv. 1973. On 21 June. 1973 the Governor wrote n note approvmg actton
propcised by the Council of Ministe.rs. There was a gazette notification reverting
Rao from the post of District and Sessions Judge. Amba!a to his former nost of
District Attornev.
Rao challenged the order of the Governor in an application
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under ;A.rticle 226 in the High Court.
The High Court held that the order of confirmation of District/ Additional
District & Sessions J.udge on ·probation ha• to be nassed bv the Governor in consultation with the High Court and in this view of the matter the order of confirma-
!'-42; SCT/75
366
ll975]i 3 s.c."!.
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SUPREME COURT REPORTS
tion of Rao passed by t~e High Court was ineffective. The alleg*ion that the
orders were the result ot the mala fides has not been sub5tantiated. The orders
were. invalid .b~causc they were _based on an enquiry cond111:ted by the Director,
S~ecial Enqlllry 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 l'iol;1tive of
Article 233 of the Coostitution. Appeals have been preferred to this Court bv the
State as well as by Rao. The High Court has also preferred an ·appeal.
·
HELD (i) The confirmation of persons appointed to be or promoted to be
District Judges is clearly within the control of the High Court. When persons are
appointed to be Oi~trict Judges or persons are promoted to be District Judges the
act of appointment as w<:II 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 rcarnn 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 could ha\'e control
over confirmed District Judges and the Governor would have control over unconfirm~d District Judges. That is not Article 235. [378 G·HJ
(ii) The Governor has power to pass an order of dismissal, removal ·Or ter•
mination on the recommendations of the High Court which are made in exercise
of the power of control vested
iri 'the High Court. The High Court 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 ar~ commenced by the High Court. It as a result of any di>ciplinary
proceedings any Distnct Judge is to be removed fro~ service or any punbhment
is to be impos<~d that will be in accordance with the conditions
cf service.
[379 D-E].
(iii) The conclusion of the majority judgment of the High Court that th<: order
of confirmation is to be passed by the Governor in consultation with the High
Court is erroneous and has. therefore, to be set aside. Rule 10 which c:onfers
power on the Governor to confirm is ultra l'ires the ConstitutiOQ, The ordter of
confirmation of District and Sessions Judge is to be passed by the High Court. The
High Court was right in quasing the order passed by the Governor directing the
removal because the sam~ was based on enquiry conducted by the Director, Special Enquiry Agency, oth(,rwise than through or with the concurrence of thi~ High
Court. The High Court was also right in holding that Rule 9 of the Rules has not
been complied with. [379 F-G]
State of Avsam v. S. N. Sen [19721 2 S.C.R. 251 State of Assam\'. Kusewar
Seikia & A nr. [l.9701 2 S.C.R. 928, The State of West Bengal v. Nripendra Nath
Bartclri [19661 1 S.C.R. 771; Hi1/11 Court. Calcutta v. Amal Kumar Roy [19631 1
S.C.R. 437 Chandra Mo'1a11 v. State of Uttar Pradesh & Ors. [19671 1 S.C.R. 77:
State 'of Assam v. R@ga Mohammad & Ors. [1967[ 1 S.C.R. 454, G. S. Naomoti
v. The State of Mysore [1969] 3 S.C.R. 325; Chandramoulashwar .Prasad v. Patna
Higli Cow·t & Ors. [197012 S.C.R. 666, Slzamsher Singh v. State of Pun/ab & Anr.
fl975) 1 .S.C.R. 814 and lshwar Chand Aggarwal v. State of Punjab
(Civil
Appeal No. 632 of 1974) dedded on 23 August, 1974 referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 852, 854 and
1503 of 1974.
From the Judgment and Order dated the. 6th November, 1973 of
the Punjab & Haryana High Court in C.W. No. 2147 of 1973.
R. K. Garg (In C.A. Nos. 854 and 1503 of 1974), Anand
Swarup (Jn CA Nos. 854 and 1503/74) S. P. Nayar, for the appellants
(In C.A. 852/74) and Respondent No. 3 (In CAs. 854 & 1503/74) ..
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PUNJ. & HAR. H.C. v. HARYANA (Ray, C. /.)
367
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Jagan Nath Kaushal, Advocate General, Haryana, Dewan Chetan
Das, Addi. Advocate-General, Haryana, Naunit Lal and Lalita Kohli,
for the appellants (In CA No. 852/74) and Respondent Ne.'. 3 (In CAs ..
854 & 1503/74).
Hardev Singh; R. S. Sodhi, K. P, Bhandari and Surinder Singh
for the appellant (In CA No. 1503/74) and Respondent No. 3 (In
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CA No. 852/74) and Respondent No. 1 (In CA No. 854/74).
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The Judgment of the Court was delivered by
RAY, C.J. 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.
Rao was appointed on 23 June, 1970 on probation under Rule 9
of the Punjab Superior Judicial Service Rules 1963.
He was appointed as District/ Additiom1l District & Sessions
Judge. He
assumed
charged on 7 July, 1970.
On 7 July, 1972 he completed two years
of probation.
On J 3 July, 1972 the High Court received a complaint
from Mangat Rai Gaoa.
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 Sep1.ember 1972 there was an order posting Rao as District & Sessions
Judge, Karna!.
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.
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 t.b.at the charges
agaiast Rao were not substantiated. On 8 March, 1973 the Government wrote another letter to the High Court asking for the record of
servict> 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 wita the High
Court and not with the Government.
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 compt1~ency to confirm District and
Sessions Judges was legally untenable.· The High Court was requested
to consider 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.
On 26 May, 1973 the Government wrote to the High Court stating
that the Government did not recognise the order of confirmation issued
368
SUPREME COURT REPORTS
[19751 3 s.c.R.
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 l June, 197 3 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 Di,gtrict/ 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 June, 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 vac:ation
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. 0.n 21 June,
1973 the Governor wrote a note upproving uction proposed by the
Council of Ministers. There was a gazette notification reverting Rao
from the post of District and Sessions Judge, Ambala to his former
post of District AtJorney.
Rao challenged th<: order of the Governor in an application under
Article 226 in the High Court of Punjab and Haryana.
The High Court by a majorit~· judgment held that the power to conB
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firm 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
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view of the High Court was that confirmation is not a matter of control of District Courts by the High Court.
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 ascer-
. taining 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 initiat..: or hold any enquiry against a District Judge or a member
of the Judicial Services of the Stak. The control vested in the High
Court under Article 235 of the Constitution read together with the
mandate of Article 233 of thi.: Constitution, makes it clear that the High
Court alon~ is competent to ccrtify1'recomm'!nd, advise, as to whether
or not the probationer Rao had satisfactorily completed the period of
probation.
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PUNJ. & HAR. H.C. v. HARYANA (Ray, C. J.)
369
Second, there has been both direct and indirect non-compliance
with the constitutional mandate, viz., not consulting the High .Court
and consulting ot11cr persons who were not entitled to advise him. In
making the order the Governor was influenced by an extraneous consideration, viz., the. report of the Director, Special Enquiny Agency
and thereby the provisions of Articles 233 and 135 were contravented.
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 ordGr was not one of punishment, and, therefore, Article .
3 11 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 ob!igafory 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 ~eniority
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
he matter within the jurisdiction of the High Court.
The High Court held that the order of confirmation of District/ .
Additional District and Sessions Judge on probation bas to be passed
hy 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 mala {ides has not been substantiated. The orders were invalid
beca,u'se 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 witl:l
the High Court and were violative of Article 235 of the Constitution.
The mandate of Rule 9 of the Punjab Civil Service (Punishment and
Appeal) Rules, l 952 hereinafter referred to as the Punishment Rules
has not been complied with.
Appeals. were preferred by the State as well. as by Rao. The High
Court also preferred an appeal.
On behalf of the State it is contended that the control of the High
Court under Article 235 is neither absolute nor complete. It is subje'ct
to prescribed limitations as mentioned in Article 235. The Advocate:
'General of Haryana contended that Article 233 applies to confirmation
of appointments by direct recruitment and promotion. He relied on the
370
SUPREME COURT REPORTS
[19751 3 s.c.R.
decisions of this Court in Seate of Assam v. S. N. Sen(!) and State
of Assam v. Kuseswar Seikia & Anr. (") in support of the proposition
that the appointing authority is the confirming authority.
The contentions of the Advocate G\~neral were these. Confirmation is the last step in the process of appointment which is made in the
first instance on probation.
Confirmation is nothing but the substantive appointment to service.
The earlier tenure is precarious. Confirmation makes it firm. On a
parity of reasoning given in S. N. Sen's case (supra) that the authority
which promotes should confirm it stands to reason that the power of
confirmation shou'.d vest in the authority which appoints. Confirmation m1d non-confirmation arc so inextricably mixed that it will be
anomalous to say that the power of confirmation is with the High Court
and the power of termination on non-confirmation is with the Govern-
. ment.
Transfer _has no analogy with confirmation.
Transfer brings
in no change in tenure of service while confirmation does. Confirmation can be on appointment as well as promotion. Since both powers
of appointment and promotion are with the Governor under Article
233 the confirming authority is the Governor.
Either confirmation
is a power of appointment or it is a condition of service. In both the
situations the power lies with the Governor. Rule 10(2) of the Punjab
Superior J udic:ial Service Rules hereinafter referred to as the Service
Rules which states that on the completion of the period of probation
the Governor may in consultation with the High Court confirm the
direct recruit on a cadre post with effect from a date not earlier than
the date on which be completes the period of probation, is a condlition
of service and is therefore not ultra vires.
1 t is necessary at this stage to refer to the order of appointment
of Rao. The order is as follows :-
''In exercise of the powers conferred under rule 9, of
the Punjab Superior Judicial
Service
Rules,
1963
the
Governor of Haryana, on the recommendations of the Punjab
and Haryana High Court, is pleased to appoint, on probation,
Shri
Narendcr Singh
Rao, Assistant Advocate General,
Haryana as District/ Additional District and Sessions Judge,
in the State of Haryana in the scale of Rs. 900-50-1000-·-
60-1600-50-1800 with effect from the date he assume>
charge of the said Act.
2 .. In all matters pertaining to seniority. probation etc.
he will be governed by the provisions of Punjab Superior
Judcial Service Rules, 1963.
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3. Order relating to initial pay to be allowed to Shri
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__ Narender Singh Rao, will be issued separate.
(Dc1972Jls:ER:--251.
(2) [1970]
2 S.C.R.
9~'1 .
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PUNJ. & HAR. H.C. V. HARYANA (Ray,--C. !.)
371
No(e 2 : Pt1oposals regarding the fixation of pay of
Shri Narender Singh Rao, on
appointment
as
District/
Additional District & Sessions Judge, Haryana, may please
be forwarded to Government as early as possible"
Rule 9 of the Service Rules speaks of appointment
of
direct
recruits.
Rule 10 of the Service Rules
speaks
of
probation
of
direct recruits.
Direct recruits shall remain
on probation for
a
period of two years, which may be so extended by the Governor
in consultation with the High Court, us not to exceed a total period
of three years. On the completion of the period of probation tne
Governor in consultation with the High Court confirms the direct
recruit on a cadre post with effect from the date not earlier than
a date on which he ·completes the period of probation. If the work
or conduct .of a direct recruit has, in the opinion of the Governor,
not been satisfactory he may, at any time during the period of probauon or the extended period of probation, if any, in consultation with
the High Court and without assigning any reason dispense with the
services of such direct recruit.
The Advocate Gcr.eral relied on the notes
Punjab Civil 'Service Rules which defines the
2.49. is as follows :
to rule 2.45 of the
probationer.
Rule
·' ''Probationer" means a Government servant employed
c1n probation or against a substantive vacancy in the cadre
L'f a department. This term does not however cover a Go-
\'crnment servant who holds
substantively ·a
permanent
post in a cadre and is merely appointed "on probation'',
~o another post".
It is stated in note 2 that no person appointed substantively to a
permanent post in a cadre is a probationer unless definite conditions
of probation have been attached to his appointment, such
as
the
condition that he must remain on probation pending the passing of
certain examinations.
It is said by the State that this is not the
present case.
Note 3 states that the provisions of rule 2.49 and
note 2 are to be taken as complementary.
Taken together :note 3
states that they contaiti the essence of the tests
for
determining
when a Government servant should be regarded as a probationer,
or as merely 'on probation' irrespective of whether he is already a
permanent Government servant or is merely- a Government servant
without a lien on any permanent post.
While a probJtioner is one
appointed in or against a post substantively vacant with definite conditions of probation, a person on probation is one appointed to a post
not necessarily vacant substantively for determining his fitness
for
eventual substantive appoii~tment to that post. There is nothing in this
rule to prevent a Government servant substantive in one cadre from
being appointed as a probationer in or against a post borne on another
cadre with definite co~ditions of probation such as the passing of departmental examination which are prescribee.
In such a case the Government servant should be treated as a probationer.
372
SUPREME COURT REPORTS
[1975] 3 s.c.R.
It is_ said by the Advocate General that no definite conditions
of probation were attached to th~ appointment of Rao and he is ~ot
a probatiortcr but on probation, and, therefore, rule 9 of the Service
Rules is not attracted. Rule 9 is as follows :-
"Where it is proposed to terminate the employment of
a proba·ioner, whether during or at the end of the period
of probation, for any specific fault or on ac~ount. of the
unsatisfactory record or unfavourable reports 1mplymg the
unsuitability for the service, the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed
by the authority competent to terminate the appointment".
He gave two reasons as to why Rule 9 is not attracted. ·First,
Rao is on probation and not a probationer and Rule 9 only :>peaks
of probationer.
Second, it is not a case of termination of employ-
·ment because Rao was under the order asked to go back lo his
substantive post of District Attorney, and, therefore, it was not a
case of termination.
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 performanace with regard to his work and \:Onduct during
the period of probation in order to qualify for confirmation.
Rao
was directly recruited on probation in a substantive vacancy in lhc
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
proh1tion
could be extended so as not to exceed three years.
Article 233 states that appointments of persons to be, and the
postmg and promotion of district Judges in any State shall be made
by the Governor- of the State in consultation with the Hi2h Court
exercisiog jurisdiction.
~
.
Article 234 states that appointments of persons other than district
Judges to the Judicial service of a State shall be made bv the GO\ ::rnor
of the State in accordance with rules made by him-in that bclmlf after
consultation with the State Public Service Commission and with the
High Court exercising jurisdiction i·a relation to such State.
Article 235 states that the control over district courts and courts
subordinate thereto including the posting and promotion of, and the
grant of leave to. pers.ons belonging to the judicial service of a State
and holdinl!' any Post inferior to the post of district judge shall be vested in the High Conrt but nothing in this article shail be construed
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PUNJ. & HAR. H.C. V. HARYANA (Ray, C. J.)
37 3
takin~ away from any such person any right of appeal which he may
have under the· Jaw regulating the conditions of his service or authorising the High Court to deal with him otherwise than in accordance
with th~ conditions of his servic'e prescribed under such law.
Article 236 states that the expression "District Judge" includes
judge of a city civil court, additional district judge, joint district judge,
assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions
judge, additional sessions judge and assistant sessions judge.
The appointment of persons to be District Judges; is vested in the
Gov·ernor of the State under Article 233.
The words "posting and
promotion of district judge'' in Article 233 have been constru·ed by
this Court to mean posting and promotion of persons to be district
judges. The words '·appointment of persons to be and the posting"'
in Article 233 have been held by this Court to mean initial appointment by dire{:t recruitment of persons to! be district judges and the
posting mentioned there is the initial posting.
Promotion of district
judges has heen expanded to mean promotion of persons to be district
judges.
The Advocate General submitted that the control of
the High
-court under Article 235 is subject to limitation. These limitations arclaws regulating conditions of service. Ther·e may not only be right of
appeal under the conditions of service but in the present case Rule 10
of the Service Rules being the conditions of service speaks of confirmation .al.p_n:~bationer by the Governor in consultation with the High
1
Court. Such rules are said by the Advocate General to be prokct::d
under ·\rtick 235 within the conditions of service and excluded from
the control of the High Court.
The question of control by High Court of Subordinate Coun.; was i
considered by this Court in The State of West Bengal v. Nrire;:drn · \,
Nath Bagchi(i). Bagchi was Additional District and Sessions Judge. "\
Bagchi of-liciatcd as District and Sessions Judge, but was not conlirmcd
\1
as "such.
Bagchi was du;~ to retire on 31 July, 1953.
By an crdcr j'
dated 14 July, 1953, the State Government ordered that Bag.chi be
retained in service for a period of two months commencing 1 August.
1953. By another order dated 20 July, 1953 Bagchi was p!:tccd
under susp·~nsion. On the following day Bagchi was served with 11
charges. An enquiry into the charges was made by an officer ap;iointcd for the purpose.
The Enquiry Officer reported that some of the
charges were proved. Bagchi was asked to show cause on 18 March.
1954 as to why he should not be dismissed from service. Bagch: 1ras
dismissed on 27 May, 1954.
This Court in Bagchi's case (supra) considered
two · questions.
First. whether the enquiry ordered by the Government and conducted
by an executive officer of tJ-.e Government against the District and
Sessions Judge contravened the provisions of Article 235 of the Constitution which vests in the High Court the control over clistrkt c0urts
<I) [1966] I S.C.R. 771.
374
SUPREME COURT REPORTS
[ 197 5] 3 s.c.R.
anJ l'uurts subordinate thereto.
Second, whether rule 75(a) or the
\Vest Bengal Service Rules could be utilised to extend the service of
Bagchi bc)'ond the normal ag:e of retirement.
This Cour~ hdd in flogchi'.1 ~asc (supra) tlrnt the rule wcis moJelkLI on Ruk 56(a J of the Fundamental Rules and was not d<:signed to
b,· used for 1hc purpose of r~taining: a person in service for enquiry
against him but to keep in employment persons with meritorious n:cord
of service and whose retention in service is considered ncccssarv on
public grounds.
If retention in service for enquiry was needed a· rule
'i111il,1r to rule> 56(~1) of the Fundamental Rules was required.
On the question of control by the High Court under Article 235
this Cuurt hdd in Bagclti's case
(supr~) that the word "control" as
used in Arlid: 235 includes disciplinary control or jurisdiction over
di,!rict jud!.!Cs.
This control is vested in the High Court to effec:tua!e
a purpose, ~iamely, the securing of the independe~cc of the subordinak
j11Jici~1ry and unless it includes disciplinary control the very object
would be frustrated. The word "control'' is accompani·~d by the word
"vest'' which shol''S that the High Court is made the sole custodian
of the control over the judiciary. Control is not merely the power to
~11Tangc the day to d<1y working of the court but contemplated disciplinary jurisdiction on lhc pn'siding judg:.c. The word "control" inc:bdes
sorn2thing in addition to mere superintendence over these courts. The
contr,11 is over the conduct and discipline of judges. The inclusion of
a right or appeal ~1g:iinst the orders of the High Court in the conditions
or smicc indicates an order p<lSScd i'n disciplinary jurisdiction. The
word "deal" in Article 235 also indicates that the control is over
discipli1rnry and not i11Cl'C
administrative
jurisdiction.
The
word
"court" in
th<~ term 'idistrict court' is used compendiousiy to d.enote
n;1t oril\ the court pron;r but also the prc:;iding judge. The control
which is wstcd in th(: High Court is complete control subject only to
the pnwC'r of the Governor in the matter of appointment including dismisd :incl removal and initial posting and promotion of District Judges.
Within thL' cxl'rcisc' of the control vested in the High Court, the High
Court c:111 hold enquiries, impose punishments other than dismissal or
removal subject howcvC'r to the conditions of service, to a right of
::ppcal if grnntcd by the conditions of service and to the giving of an
opportunity of showing: cause as required b\' Article 311 (2)
unless
such :rn opportunity is dispensed with by the Governor acting under
the' nr,wisos. ( h) and ( c) to tha: clamc. The High Court alone will
make :nquiry into disciplinary conduct.
The Advocate· Gcn0ral on behalf of the State submitted that the
control nf the Hit1h Cnurt is subject to lirnitations and these limitations
:ire w11ditio11s of scnice. If under the conditions of service confirm:1tion i-; to he m:1de 111 the Governor, this is said to h~ a limitDtion
on the' c',rnt1 nl of the High Court. Th:it turns on the prinnry question \\'hcth,~r confir111atic111 is 1Yithin the polV<.'r \lf appointment.
-.l
1;, the Hi!.;11 (',,.,,.,, Calrnua v. Al/111!
K111•wr Ra1·( 1) the respondent ::,keel f11r ;1 dccltr:1:i,,n t'1:1t he 'n,: srnior in the: cadre of Sub1.ll [1%)]
I 5.C.R. -ir
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PUNJ. & HA t. H.C. V. HARYANA (Ray, C. !.)
37 5
ordi11a1c Judges if no -;u lcrsessions had taken place. This Court held
Jn: .\rtic:ie 2:<5 read w th service rules showed -that a Munsif had ne
rigiH w pro111l11.ion whic;i could be enforced through court. It is n0t
\.:\~rr.c~ to s;1' that the High Court should have consulted the
State
Public Sccvic,: Crnnmiss•on because Article 320 (3) ( c) contemplated
disciμJinary rn;:ttcrs. There was no reduction in rank of ·the respond~;]( in that case. All ~<1L,ordinate judges were in the same cadre Ui'• 1
held 1hc sam~ rank irrespective of seniority. Losing place
in
tli<'
seniorit)
Es~ cid not amo~mt to reduction in rank.
1'1 Cliwdra Mohan v. State of VIiar Pradesh & Ors.(1) this Cou1.
consid·.:rcd Article 233 and the question of· appointment of Distr:.
llld~cs. The appellant in that case challenged the recruitment of D
trice .lucl!.!cs.
The Governor under the Rules decided on the num:.
d ca:1didatcs to be selected.
A Selection Committee was constiu:.:.
under the Rules. The High Court submitted to the Government a .:' ·
of candidates considered suitable for appointment. The Govern,
mad.: the appointments from
the fot. It was contended that unu..:
Article 233 the Governor has to make the appointments in consultation
with the Hi1rh Court concerned and under the rules he had to consult
the Sckctio11 Committee, and, therefore, the appointments made in consultation with two authorities instead of one were illegal.
It was held in Chandra. Mofwn's case (supra) that under Article
233 the Governor can appoL1t 'a person to the post of a district judge
from the services
only in consultation with the High Court. This
Court said that Judicial Service is defined in Article 236 (b). The
definition is exhaustive of the serYice
because the expression means
&crvice consisting exclusively of persons intended to fill the post of
district judge and other civil judicial post i•aferior to the post of district
hidf:l'. The judicial service is the exclusive service of judicial officers.
In the case of 2-ppointment of persons to the Judicial Service othe"
than District Judges, they will be made by the Governor in accorda.1
·with rules framed by him in consultation with the High Court and : ·
Public Service Commission. But the High Co.urt has control over
the district courts and courts subordinate thereto, subject to certau.
p(cscrib~d limitations.
The Selectio"1 Committee under Rule 13 in Chandra Mohan' s case
(supra) was to consist of two judges of the High Court and the Judic:Oal Secretary to the Government.
The Selection Committee under
Rule 17 was to draw up a list of candidates selected. The High Court
was to submit to the Governor the list of candidates considered suitable for appointment from two sources of recruitment, viz., d[rect recruitment and recruitment by prom0tion.
This Court said
that the·
Selection Committee reduced the High Court to the position of a traasmitrin2 authority. The High Court could not scrutinise the other applications which were screened by the Selection Committee .. The High
Court could not recommend persons for •appointment not found in the
list. This Court thereiore held the Rules regarding Selection Committee to be uncaastitutional.
(l) [1967! 1 S.C.R. 77.
376.
SCPREf\IE COURT REPORTS
[1975] 3 S.CR.
In State of Assam v. Ranga Molzammed & Ors.(') this Court cc~-
A
sidcrcd as to whether the High Court or the State Government wa;;
' '
the competent authority for transfer of a district Judge. The
Hi~h
,Court held that the High Court alone could order transfer aml in any
. event the High Court was'to be consulted and was not consulted b<:foc~
·the orders were made. This Court held that the Governor is only ccnccrncU with the appointment, promotion and posting to thi3: cadre o:
Dis!rict Judges and not with the District Judges already appointed, pc0e:.-·
mow] and posted to the Cadre. The word ""postin~'' in Artie!.! 233
. \Vas held to nican to station sonic one at a place ·or~ to assign som~0;;.:
to a post.
The \Vords '"appoint1ncnt, posting and pron1otion.·· indi..:3:..:·
1hc stage \vhcre a person first gets a position or job and "posting .. t~y.
association means the ao;signmcnt of an appointee or pron1otce to a po.;;!-·
tion in tho;:: cadre of District Judges. The \Vord "posting'' ca1mct
:-.~
und~rstooU in the scnsl! of '"transfer"' \\'hen the idea of appoirttn1.:-;1-.
C
a11d pr·")n1otion is involved in the con1bination. If p::>sting: \\'3~ intcntl1..-J
to moan tr:msfcr tho draftsman would have hardly chosen l<> place it
b('l\V('Cll .. appoint1ncnf' and ~·pro111otion".
The Governor under Article 233 is only concerned with 1ho a;:--
pointmcnt, promotion and posting to the cadre of district judges btit·
not with the tramfcr of district judges already appointed o;- prnmot~,;
and posted to the· cadre. Transfer is a matter of control over district
. courts \\·hich is ves.tcJ in the High Court. Jn Article 23~ thl) qu·~st!.J::
of appointment of persons other than district judges to the judi..:;.:il '
scr,·icc is conten1platc<l.
ln Article 235 the p05ting and pron1otioi1 .,,i
persons bclongi'.1g to the judic;•JI service pf the State and l10lding any
position inferior to the post
of <li~trict judge is contc111pla~d-; _Tb.:.
'vord •·post"' i.:; used t\vicc in J-\rticlc 235 to n1can the position. t..lf jcO
and not the station or p?acc and therefore posting n1cans assignnr.:n:
to a position or job.
In Ranga .Mahan1111ad's case (supra) thi~ Cour:
·said that transfer of incumbents is a matter wi<hin the control- <>f di<-
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trict Courts including the control of persons presiding there nml tho
High Court is the authority to 1nakc transf1..~r~ and there is no questi.._.n
-1'
of con-.ultation on that tr:round.
The
State Gorcrnn1..:-nt
is 1'10[
t!~.: · -
authority to order tra.1sfers.
In G . . ). •"'·iag111oti v. The Shue of J..1ysore('2) this Court' consit~r.:-.. ~
the meaning of the word "'control"' in Article 235 .. At the requ,,st ,-:,
the High Court the Government appointed a judge to hold the de;i~::c.- ·
mental enquiry into the conduct of a judic::il officer.
The kartL',' ' G
Judge of .the High Court held the departmental enquiry anJ foun,'
the Judicial Officer guilty of the charge..
He rccon1n1cndcd tl· ·
Govcr.ior that the Judicial Otllccr .n1ight be reduced in rank a1Hl n1~ _
not be considered for promotion for two years. 'The GoYcrnor cc.
pulsorily retired the Judicial Officer from sen'ice. The Judicial Oflic
thereafter filed a writ pe!ition contendin~ that the colflpulsory retire
n1cnt \Vas in contraYention of Article 235 hcc.iusc it ._.,.as thc-Hh:d1 (\"~i--L
alone \\'hich has· po\\·er of holding disciplinary proceC"tj_ings ag'iiinst tl~.:-
. -
·-
tll [1967] 1 S.C.R. 454.
(2) [1969]
3 S.C.R. ;:;.
378
SUPREME COURT REPORTS
[1975] 3 s.c.R.
an additional sessions judge. they rank above those persO'as
whose
promotion is vested in the High Court.