# BALDEV RAJ GULIANI & OTHERS v. THE PUNJAB & HARYANA HIGH COURT & OTHERS

- **Citation:** [1977] 1 S.C.R. 425
- **Court:** Supreme Court of India
- **Decided:** 1976-08-30
- **Bench:** Y. V. Chandrachud, P. K. Goswami, P. N. Shinghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baldev-raj-guliani-others-v-the-punjab-haryana-high-court-others-6931
- **Pages:** 14

## Headnote

Constitution of India 1950-Art. 235-Di.<ciplinary action over subordinate
judiciary-Governor-If' bound by the recommendation of the High CourtConsultation with State Public Service Commission-If warranted by Art. 235.
A
B
Suspended officer reinstated and later compulsorily retired-Effect of-If order
C
of suspension merged with order of reinstatement.
·
The appellant was a member of the Subordinate Judicial Service of the State.
On receipt of certain allegations the High Court made a preliminary enquiry and
the State Government suspended him from service. After the final enquiry the
High Court recommended to the State Government to remove him from service.
The State Public Service Commission, on reference by the Government, stated
that he should be exonerated. On the basis of this recommendation, the Governor
ordered the appellant's reinstatement; but the High Court did not give him a
posting on the view that the order of the Governor was illegal because of consultation with the Service Commission and in accepting its advice, disregarding
the High Court's own recommendation.
The High Court, therefore, suggested
to the Government to review its order of reinstatement, but the Government
did not take any action.
The appellant then filed a writ petition in the High
Court challenging its refusal to give him a posting. In the meantime the Governor
compulsorily retired the appellant from service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that the Governor's order
!reinstating the appellant was void and non-est because : (i) it was not passed
in accordance with the provisions of Art. 235 of the Constitution and (ii) the
Government could not have consulted the Public Service Commission which was
an extraneous body.
In appeal to this Court it was contended for the appellant that (i) the
Governor was not bound by the recommendation of the High Court; (ii) the
Governor was entitled under Art. 320(3)(c) to consult the Public Service Commission on the question arising out of a disciplinary proceeding; and (iii) since
the appellant was later compulsorily retired, the order of suspension merged with
the order of reinstatement, and since no other order of suspension was passed
thereafter, be was entitled to full salary upto the date of his coinpulsory
retirement.
Dismissing the appeal,
HELD: (l)(a) Articles 233 to 237 relating to the subordinate judiciary are
specially carved out and placed in the safe niche of a separate chapter. For the
first time in the country's history appeared in the Constitution of India the concept of control over subordin&te courts to vest in the High Courts. But the appointing authority of a Subordinate Judge under Art. 235 as well as under the
Appointment Rules, is the Governor.
Tile High Court, in making its recommendation to the Governor for passing the order of removal, had rightly conceded the authority of the Governor.
Ordinarily and as a matter of graceful
routine, recommendati?n~ of t~e f!:igh Court are and sh.ould always be accepted
by the Governor. Tius 1s ordmarily so and should be m practice the rule as a
matter of healthy convention. But it will not be correct always to insist that the
Governor has no authority even under extraordinary circumstances to send the
matter for reconsideration.
(434 E; G; DJ
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G
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426
SUPREME COURT REPORTS
[1977] 1 S.C.R.
(b) The quality of exclusive control of the High Court is not whittled down
by the constitutional device of all orders being issued in the name of the Governor
as the head of the State administration. When, therefore, the High Court, exercising disciplinary control, over the subordinate judiciary found, after a proper
enquiry, that a certain officer was guilty of gross misconduct and was unworthy
to be retained in judicial service and, therefore, recommended to the Governor
his removal or dismissal, it is diffic4lt to conceive how and under what circumi;tances such a recommendatiori could be rejected

## Text

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425
BALDEV RAJ GULIANI & OTHERS
v.
THE PUNJAB & HARYANA HIGH COURT & OTHERS
August 30, 1976
[Y. V. CHANDRACHUD, P. K. GOSWAMI & P. N. SHINGHAL, JJ.]
Constitution of India 1950-Art. 235-Di.<ciplinary action over subordinate
judiciary-Governor-If' bound by the recommendation of the High CourtConsultation with State Public Service Commission-If warranted by Art. 235.
A
B
Suspended officer reinstated and later compulsorily retired-Effect of-If order
C
of suspension merged with order of reinstatement.
·
The appellant was a member of the Subordinate Judicial Service of the State.
On receipt of certain allegations the High Court made a preliminary enquiry and
the State Government suspended him from service. After the final enquiry the
High Court recommended to the State Government to remove him from service.
The State Public Service Commission, on reference by the Government, stated
that he should be exonerated. On the basis of this recommendation, the Governor
ordered the appellant's reinstatement; but the High Court did not give him a
posting on the view that the order of the Governor was illegal because of consultation with the Service Commission and in accepting its advice, disregarding
the High Court's own recommendation.
The High Court, therefore, suggested
to the Government to review its order of reinstatement, but the Government
did not take any action.
The appellant then filed a writ petition in the High
Court challenging its refusal to give him a posting. In the meantime the Governor
compulsorily retired the appellant from service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that the Governor's order
!reinstating the appellant was void and non-est because : (i) it was not passed
in accordance with the provisions of Art. 235 of the Constitution and (ii) the
Government could not have consulted the Public Service Commission which was
an extraneous body.
In appeal to this Court it was contended for the appellant that (i) the
Governor was not bound by the recommendation of the High Court; (ii) the
Governor was entitled under Art. 320(3)(c) to consult the Public Service Commission on the question arising out of a disciplinary proceeding; and (iii) since
the appellant was later compulsorily retired, the order of suspension merged with
the order of reinstatement, and since no other order of suspension was passed
thereafter, be was entitled to full salary upto the date of his coinpulsory
retirement.
Dismissing the appeal,
HELD: (l)(a) Articles 233 to 237 relating to the subordinate judiciary are
specially carved out and placed in the safe niche of a separate chapter. For the
first time in the country's history appeared in the Constitution of India the concept of control over subordin&te courts to vest in the High Courts. But the appointing authority of a Subordinate Judge under Art. 235 as well as under the
Appointment Rules, is the Governor.
Tile High Court, in making its recommendation to the Governor for passing the order of removal, had rightly conceded the authority of the Governor.
Ordinarily and as a matter of graceful
routine, recommendati?n~ of t~e f!:igh Court are and sh.ould always be accepted
by the Governor. Tius 1s ordmarily so and should be m practice the rule as a
matter of healthy convention. But it will not be correct always to insist that the
Governor has no authority even under extraordinary circumstances to send the
matter for reconsideration.
(434 E; G; DJ
D
E
. F
G
A
B
c
D
E
F
G
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426
SUPREME COURT REPORTS
[1977] 1 S.C.R.
(b) The quality of exclusive control of the High Court is not whittled down
by the constitutional device of all orders being issued in the name of the Governor
as the head of the State administration. When, therefore, the High Court, exercising disciplinary control, over the subordinate judiciary found, after a proper
enquiry, that a certain officer was guilty of gross misconduct and was unworthy
to be retained in judicial service and, therefore, recommended to the Governor
his removal or dismissal, it is diffic4lt to conceive how and under what circumi;tances such a recommendatiori could be rejected by the Governor acting with
the aid and advice of ministers or, of one of them.
[434 0-HJ
The State of West Bengal v. Nripendra Nath Bagchi [1966] 1 S.C.R. 771;
and Stute of Haryana v. lnder Prakash Anand H.C.S., and. 01hers [1976] Supp.
S.C.R. 603. referred to.
( c) Whenever in an extraordinaty case, the Governor feels, for certain rea11ons, that he is unable to accept the High Court's recommendations, these re11sons will be communicated to the ~igh Court to enable it to reconsider the
matter. There is no warrant for introducing another extraneous body between
the Governor and the High .Court in the matter of disposal of a disciplinary proceeding against a judicial officer. The Governor could not have passed any order
on the advice of the Public Service Commission in this case. The advice should
be of no other authority than the High Court in the matter of judicial officers.
This is the plain implication of Arti¢le 235. There is no room for any outside
body between the Governor and th~ High Court.
In relying upon the advice
of the Commission the Governor took alien considerations into account and acted
erroneously in pa~sing the order of reinstatement. [435 B, E-F]
Consultation with the Public Service Commission after receipt of the recommendation of the High Court for removal of the officer was not warranted by
the provisions of Art. 235. Under the Constitution the High Court is the sole
custodian over the discipline of judicial offi1:ers.
[435 DJ
(2)(a) Just as tho High Court staff are not serving under the Government
of the State, the judicial officers are 111so not under the State Government. They
hold posts in connection with the affairs of the State but are entirely under the
jurisdiction of the High Court for the purpose of control and discipline.
Art.
320(3)(c) is entirely out of place so.far as the High Court is concerned dea!ini:
with judicial officers.
[435 F: 436 DJ
·
Pradvat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court
[1955] 2 SCR 1331 and The High Court, Calcutta v. Amal Kumar Roy [1963]1
SCR 437 distinguished and held inapplicable.
·
(b) The .Governor cannot pass any order without reference to the High Court
and except on its recommendation. The matter should not be considered from
the angle of supremacy between one' organ over the other.
Solution must be
found in harmony and not in cold w<ir between the two organs.
[437 A-BJ
(3) The character of the order of dismissal and that of the order of reiustatement in a departmental enquiry is absolutely different.
Suspension is a
step to dismissal and may culminate in dismissaL When an officer is suspended
no work is taken from him but he does not cease to be in service. When he is
dismissed the link with the service is snapped and naturally the order of suspension merges in dismissal. When, however, a suspended officer is reinstated an
order which is different in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes back to service.
A further order
may have to be passed by the authority as to in what manner the period of suspension will be treated. That will be therefore a distinct and separate proceeding apart from the earlier departmental proceeding in which the order of reinstatement was passed. If the order 9f reinstatement is set aside the officer is
bound to revert to his immediate anterior status of suspension in the absence
of any order in that behalf from the Court. [438 A-Cl
In the instant case siuce the order of reinstatement stood quashed, the appellant would have the status of a suspended officer on the date of his compulsory
retirement. It is not for this Court t<il say whether he would be entitled to hi'
(
BALDEV RAJ GULIANI v. PUNJAB & HARYANA H.C. (Goswami, J.) 427
full salary while on suspension. Since the officer had already retired, it is not
A
necessary for the Governor to consider the recommendation of the High Court
for the purpose of his removal. [438 E-F]
CNIL APPELLATE JURISDICTION : Civil Appeal No.
908 of
1975.
Appeal from the Judgment and Order dated 13-3-75 of the Punjab
and Haryana High Court in Civil Writ No. 2586/71 arid
B
CIVIL APPEAL No. 1041 OF 1975.
Appeal from the Judgment and Order dated 13-3-75 of the Punjab
& Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S. K. Gambir, for the Appellant in C.A. No.
c
908/75.
Anand Sarup and H. S. Marwah, for Respondent No. 1 iμ C.A.
908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M. N. Shroff and R. N. Sachthey, for Respondent No.
3 i_n C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by
D
"
GOSWAMI, J.-These two appeals are by certificate
from
the
judgment of the Full Bench of the High Court of Punjab and Haryana.
Both the appeals question the decision of the High Court-one by
the Judicial Officer and the other by the State Government.
The appellant in Civil Appeal No. 908 of 1975 (hereinafter to
be referred to as the officer) was originally a member of the Punjah
Civil Service (Judicial Branch). He was appointed as a Subordinate
Judge, IV Class, on February 27, 1956.
Thereafter he was promoted as a Sub-Judge, First Class, and was duly confirmed.
While,
as a Subordinate Judge-cum-Magistrate First Class in Amloh, Dis ..
trict Patiala, the Bar Association of Amloh on May 11, 1965, sent
a resolution to the High Court levelling certain -charges against the
officer affecting his integrity and impartiality. , The
High
Court·
ascertained the facts through a preliminary enquiry held
by
the
District Judge, apparently, ex parte, at this stage. Thereafter, on
the report of the District Judge a regular departmental enquiry was
instituted.
The officer was suspended by the Government on June
6, 1966, at the instance of the High Court.
The DMrict Judge,
Sangrur, was appointed as the Enquiry Officer on July 21, 1966.
He enquired into the charges levelled against
the
officer.
The
Enquiry Officer submitted his report and found him guilty of all the
charges except one.
The High Court agreed with
the
Enquiry
Officer and came to a tentative conclusive that the officer should be
removed from service.
Meanwhile, the· services of the officer were allocated to the State
of Haryana with effect from November 1, 1966.
E
F
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428
SUPREME COURT REPORTS
(1977] 1 S.C.R.
The High Court recommended to the
State
Government
of
Haryana to serve a notice under Article 311 (2) of the Constitution
asking the officer to show cause why the penalty of removal from
service should not be imposed on him.
This was done by the
State Government on March 13, 1967.
The officer submitted his
explanation through the High Court on April 20, 1967. The High
Court found the explanation to be unsatisfactory and recommended
to the Government that the officer should be removed from service.
The State Government, although on its own
showing,
"was
inclined to agree with the views of the High Court and with the
recommendation made by it'', however, referred the case
to
the
Haryana Public Service Commission for advice purporting to
act
under Article 320(3) (c) of the
Constitution.
The
Commission
advised that no case had been made out against the officer a11d that
he should be exonerated. The Governor accepted the advice of the
Commission and passed the order on August 24, 1968, reinstating
the officer in service with immediate effect.
The High Court was
requested by the Government to post the officer on his reinstatt:-
ment. The High Court did not, issue any posting order to the officer
as it was of the opinion that the order of the Government was
illegal for the vice of consultation with the Public Service Commission
and for accepting its advice disregarding the recommendation of the
High Court.
The High Court requested the Government to review
its order but the Government did not take any action on that suggestion.
Since the High Court refused to pass any posting order notwithstanding his several prayers the officer preferred in the High Court
of Punjab and Haryana a peti~ion under Article 226 of the Constitution on July 12, 1971, praying for a writ of mandamus directing
the High Court to issue an appropriate order. of posting and also
for a mandamus directing the Government to disburse full salary to
the officer including the salary for the period under suspension and
other consequential reliefs.
While the writ petition was pending before the Full Bench, the
Governor, accepting the recommendation of the High Court, passed
an order on December 16, 1974, issuing three months' notice of compulsory retirement to the officer and the officer thus retired on March
18, 1975, after attaining the age of 55 under the service Rule.5.
The officer challenged the notice of retirement by way of a writ
petition in the High Court on March 10,
1975. The same was
however, withdrawn by the officer on March 13, 1975, on which
date judgment of the Full Bench was delivered in the other writ
application out of which the present appeals have arisen.
The officer, however, later on filed a writ petition No. 747 of
1975 in this Court against the order of compulsory retirement and
he was allowed by us to withdraw the same on July 30, 1976. The
retirement of the officer is, therefore, not in dispute.
+
,l
BALDEV RAJ GULIAN( v. PUNJAB & HARYANA H.C. (GOBwami, J.)429
The High Court by a majority of four learned Judges held as
follows
_J
(l)"Since the impugned order, exonerating the
petitioner from all charges and reinstating him,
was
not
passed in accordance with the mandatory provision of the
Constitution embodied in Article 235 of the Constitution,
order is void and 1wn est being ultra vires Article 235 of
the Constitution and the High Court was right in not giving
effect to it". They also observed that any recommendation
made by the High Court in exercise of power under Article 235 must be held to be binding on the Governor.
(2) "Since the Public Service Commission was an extraneous body and could not be consulted and was able
to influence the decision of the punishing authority, the
order suffers from a grave constitutional infirmity and is,
therefore, liable to be declared
ultra vires Article 235 of
the Constitution and hence void
and
non est
on
this
ground too.
The High Court was, therefore, right in disregarding that order and not implementing it by giving the
posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not agree
with
the
majority with regard to the conclusion on the aforementioned first
point.
He, however, agreed with the majority with regard to the
second point and also agreed with the final decision.
The High,
Court dismissed the officer's writ application under Article 226 and
held that. he could not claim any relief on the basis of the ·order of
reinstatement of the Governor of August 24, 1968. The High Court
further held that the dismissal of the petition would "not bar the
State Government from passing an order against the petitioner in
accordance with the recommendation of the High Court completely
ignoring and keeping out of consideration the advice tendered by the
Public Service Commission".
Firstly, the appellants contend that the Governor being the appointing authority is not bound to accept the recommendation of the
High Court and the order of reinstatement is well within his powers
under Article 311 read with the Rules for Appointment of Subordinate
Judges in Haryana and the Punjab Civil Service (Punishment and
Appeal) Rules, 1952, and is perfectly valid.
Secondly, they contend that the Governor is entitled under Article 320(3) (c)
of the
Constitution to consult the Public Service Commission with regard to
the matter in question arising out of
a
disciplinary
proceeding.
Thirdly, it is contended on behalf of the officer that in vi~w of the
fact that he was ultimately compulsorily retired on the recommendation of the High Court and the order of suspension merged with
the order of reinstatement it is no longer possible for the Governor
to pass the order of removal of a person who has already retired
from service.
It is £ubmitted that in that view of the matter the
writ application had become infructuous and even the High Court
A
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430
SUPREME COURT REPORTS
(1977) 1 S.C.R.
A
need not have decided the writ application.
It is, therefore,
submitted on behalf of the officer that since on his reinstatement the
order of suspension lapsed and he had retired, he would be entitled
to his full salary during the entire period of suspension upto the date
of his retirement. ·
·
On behalf of the High Court it is submitted that under Article
B
235 of the Constitution the sole, and exclusive disciplinary control
over the subordinate judiciary being vested in the High Court the
High Court's recommendation is binding on the Governor and tho
Governor ought to have accepted the recommendation and passed
\
an order of removal of the officer. It is further submitted that the
order of reinstatement passed by the Governor after consulting !he
Public Service Commission is absolutely void and ultra vires.
c
The controversies, such as we have to deal with, have raised
...
their unpicturesque heads from time to time.
We are, therefore, not
required to write on a clean .slate on this subject.
Even so, -0ne
aspect of the matter, viz., that relating to the consultation with the
Public Service Commission by the Governor with regard to judicial
officers' misconduct assumes a great importance in this case in a
D
manner that has not arisen earlier before this Court.
E
F
G
H
The controversy in these appeals is rather disquieting.
In view
o[ several decisions of this Court wherein different facets of like
problems were noticed and resolved one would have thought that
a healthy convention has grown and taken firm roots by now in
fulfilment of one of the cherished Directive Principles of the Constitution in Article 5 which is based on the bed-rock of the principle
of independence of the judiciary.
Here, the High Court, after a full enquiry, which has not been
questioned at any stage, came to the conclusion that the charges
of misconduct of a judicial officer were established and that the
officer was of dubious integrity.
Who else but the High Court, in
such a situation, is better posted to determine the issue and advise
the Governor ? Yet, the stark reality is that the High Court's recommendati9n was given a go-by and the Commission's contrary ·
advice was preferred by the Governor.
Time and again this Court
has been observing hopefully that it will be in the best interest of
a high and healthy tradition for the Governor to ordinarily accept
the recommendation of the High Court in a disciplinary matter concerning judicial officers !
We are C-Oncerned in these appeals with regard to a disciplinary
proceeding in respect of a Subordinate Judge and hence falling within the purview of Article 235 of the Constitution. That Article reads
ns follows :-
.
Art. 235. "The e-0ntrol over district c<;>urts .and courts
subordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging to the judicial
rervice of a State and holding any post inferior to the post
+-
~
:
BALDEV i\AJ GULIAN! v. PUNJAB & HARYANA H.C. (Goswami, 1.)431
of district Judge shall be vested in the High <;ourt, but
nothing in this article shall be construed as takmg
away
from any such person any right of appeal which he may
have under the Jaw regulating the conditions of his service
or as authorising the High Court to deal with him otherwise
than in accordance with the conditions of his service prescribed under such law".
In The State of West Bengal ·v. Nripendra Nath Bachie) this
Court in an elaborate judgment went into the history of Articles 233
to 237 of the Constitution. This Court held :
•
"The word 'control' as we have seen, was· used for the
· first time in the Constitution and it is accompanied by the
A
B
word 'vest' which is a strong word. It shows that the High
c
Court is made the sole custodian of the control over the
judiciary.
Control, therefore, is not merely the power to
arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge".
Dealing with the argwnent based on Article 311 this Court further
observed in the above case as follows :-
D
"There is, therefore, nothing in Art. 311 which compels
the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry if Art. 235 vested such a power in
it. In our judgment, the control which is vested in the High
Court is a complete control subject only to the power of the
Governor in the matter of appointment (including dismissal
E
and removal) and posting and promotion of Distrct 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 cl. (2) of Art. 311 unless
F
such opportunity is dispensed with by the Governor acting
under the provisos (b) and (c) to that clause.
The High
Court alone could have held the enquiry in . this case.
To
bold otherwise will be to reverse the policy which has moved determinedly in this direction".
Article 235 makes reference to the conditions of service which are
G
prescribed under Article 309 of the Constitution. The Punjab Civil
Services (Punishment and Appeal) Rules, 1952 (hereinafter to be
referred to as the Punishment Rules) , were made by the Governor .of
Punjab in exercise of the powers conferred under Article 309 of the
Constitution. The judicial officers also hold posts in connection with
the affairs of the State and the rules made under Article 309 so far
as applicable, would govern their conditions of service.
There are
H
also lhe Rules relating to the Appointment of Subordinate Judges in
(l) [1966] 1 S.C.R. 771.
A
B
c
D
E
F
G
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432
SUPREME COURT REPORTS
[1977) 1 S.C.R.
Haryana (hereinafter to be referred to as the Appointment Rules)
which were promulgated by the Governor in exercise of the powers
conferred by Article 234 read wit!h proviso to
Article 309 or
the
Constitution.
These Rules were made by the Governor after consultation with the State Public Service Commission and with the High
Court. Under rule 14, Part F of the Appointment Rules relating to
Discipline, Penalties and Appeals, it is provided as follows :--
"In matters relating to discipline, penalties and appeal
including orders specified in Appendix B, members of the
Service shall be governed by 'The Punjab Civil Services
(Punishment .and Appeal) Rules, 1952' as amended from
time to time.
Provided that the nature of penalties which may be inflicted, the authority empowered to impose such penalties
or pass such orders and the appellate authority shall be as
specified in Appendices 'A' and 'B' below :-"
In Appendix 'A' it is provided in item (f) that the punishing authority
in case of removal from the service which does not disqualify from
future employment is the ''Government" and there is no appeal therefrom.
In item (g) of Appendix 'A' dismissal is also provided for in
similar terms.
In Appendix 'B' the authority competent to pass an
order of termination of the service of a Subordinate Judge is the
"Government" and there is no appeal against such an order.
It will be seen that under rule 14 of the Appointment Rules of
the Subordinate Judges, the Punishment Rules are being made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read with AppendLx.
'A' of Part (F) of the Appointment Rules, the competent authority
to remove a Subordinate Judge from service is the "Government". It
was, therefore, appropriate that the High Court, after close of the
departmental enquiry, when it was satisfied that the officer was guilty
of misconduct deserving removal from service, recommended to the
Governor for his removal.
Upto this stage there was no difficulty ..
Trouble arose when the Government, although on its own showing,
was inclined to agree with the High Court thought it proper to obtain
the advice of the Public Service Commission as is usually done in
the case of other civil servants.
As stated earlier, the Commission
tendered its advice contrary to the recommendation of the High Court
and held the opinion that the officer should be exonerated from the
charges.
The Government accepted the advice of the Commission
and reinstated the officer which resulted in refusal to accept the recommendation of the Hi11;h Court.
In the above premises the questions that are raised are-
( 1) Whether the Governor is bound under the Constitution
to accept the recommendation of the High
Court and
to pass an order of removal of the judicial officer.
BALDEV RAJ GULIANI v. PUNJAB & HARYANA H. c. (Goswami, !.) 433
(2)
(3)
Whether consultation with the Public Service Commission
in a matter of a disciplinary proceeding relating to the
judicial officer under the control of the High Court is
unconstitutional. Is the order of reinstatement passed by
the Government constitutionally valid ?
If not, what wili be the position of· the officer on the
date of the officer's compulsory retirement ? Is an order
of removal possible after that date ?
;
There is no dispute that the appointing authority of a Subordinate
A
B
Judge under Article 235 as well as under the Appointment Rules is
the Governor.
Under Article 235 itself the Subordinate Judge will
be governed by the Appointment Rules made under Article 234 read
with Article 309. The Appointment Rules by reference bring in the
C
Punishment Rules whereby the punishing authority for removal is the
"Government'! mentioned in the former Rules.
With regard to the first question the appellants submit that the
Governor being the appointing authority both under Article 235 and
the Appointment Rules read with the Punishment Rules, is the final
authority to pass the order of removal of the officer and is not under
any constitutional obligation to be bound by the recommendation of
the High Court. They rely upon Article 311 of the Constitution read
with the aforementioned service Rules and submit that the control
of the High Court under Article 235 does not impinge upon the power
of the Governor to refuse to accept the recommendation of the High
Court and to pass an appropriate order.
The learned counsel for the High Court, on the other hand, submits that Article 235 of the Constitution leaves no option to the
Governor to refuse to accept its recommendation in a disciplinary
matter in respect of a judicial officer.
He draws our attention to
a very recent decision of this Court in State of Haryana v. l1Uler
Prakash Anand H.C.S. and Others(1) to support his submission. He
particularly relies upon paragraph 18 of that decision which reads :
"The control vested in the High Court is that if the High
Court is of opinion that a particular judicial officer is not
fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the
appointment. In such cases 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.
If the recommendation of the High Court is not held to be
binding on the State consequences will be unfortunate. It
is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control.
over the subordinate iudiciary in the High Court leads to this
that the decision of the High Court in matters within its
(!) [1976] Supp. S.C.R. 603.
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jurisdiction will bind the State.
·rile Governor will act on
the recommendation of the High Court.
That is the broad
'basis of Article 235, (See Shamsher Singh & Anr. v. State of
Punjab at page 841)".C)
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It is pointed out by the appellants that in Imler Prakash Anand's
case (supra) the question was whether the State Government could
compulsorily retire a Senior Subordinate
Judge-cum-Chief
Judicial
Magistrate under the Punjab Civil Services Rules against the recommendation of the High Court and that it was not a case relating to
dismissal or removal on the disciplinary side.
Though the question
involved in J.P. Anand's case related to a different matter the abovequoted observations of this Court, useful for all occasions, have,
hopefully, a wider cast and their significance can be overlooked only
at some peril of the desideratum nurtured in the Constitution.
The High Court, in making its recommendation to the Governor
for passing the order of removal, has rightly conceded the authority
of the Governor to pass the same.
The question is : Is the recommendation of the High Court binding on the Governor ? Since the
Governor is the ultimate authority to pass the order of removal it
will not be correct always to insist that he has no authority even
under certain extraordinary circumstances to decline to accept forthwith, the particular recommendation.
Ordinarily and as a matter of
graceful routine, recommendations of the High Court are and should
be always accepted by the Governor.
That is ordinarily so and
should be in practice the rule as a matter of healthy convention.
Articles 233 to 23 7 relating to the subordinate judiciary are
specially carved out and placed in the safe niche of a separate chapter,
Chapter VI in Part VI of the Constitution under sub-title 'Subordinate
Courts'.
This by itself is significant. It is a major breakthrough in
the Constitution from the position under the Government of India
Act 1935 so far as the subordinate judiciary is concerned and clearly
unfolds the keen awareness of the founding fathers in what has been
a passionate and raging topic with regard to independence of the
judiciary all through, over the years.
For the first time, in the country's history, appeared in the Constitution of India the con.cept of control over subordinate courts to
vest in the High Courts. The quality of exclusive control of the High
Court does not appear to be whittled by the constitutional device
of all orders being issued in ·the name of the Governor as the head
of the State administration.
When, therefore, the High ·eourt exer-
. cising disciplinary control over the subordinate judiciary finds. after
· a proper enquiry, that a certain officer is guilty of gross misc6nduct
and is unworthy to be retained in judicial service
and.
therefore,
recommends to the Governor his removal or dismissal, it is difficult to
conceive how and under what circumstances such a recommendation
should be rejected by the Governor acting with the aid and advice
()) [1975] l S.C.R. 814.
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BALDEV RAJ GULIANI v. PUNJAB & HARYANA H. c. (Goswami, /.)435
of the council of ministers or, as is usually the case, of one of the
ministers. It is in this context that this Court has more than once
observed that the recommendation of the High Court in respect of
judicial officers should always be acc~pt~d by the . qovernor: . This
is the inner significance of the const1tut10nal prov1S1ons relatmg to
the subordinate judiciary.
Whenever in an extraordinary case, rare
in itself the Governor feels, for certain reasons, that he is unable to
accept the High Court's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter.
It is however, inconceivable that, without reference to the High Court,
the Governor would pass 7tn order which had not been earlier recommended by the High Court. That will be contrary to the contemplation in the Constitution and should not take place.
It is not necessary to pursue the matter in further depth as sought
to be canvassed by the parties taking extreme stances in the view
taken by us on the second question.
With regard to the second submission we are clearly of opinion
that consultation with the Public Service Commission after receipt of
the recommendation of the High Court for removal of the officer is
not warranted by the provisions of Article 235.
It is true that under Article 235 as well as under the Appointment
and Punishment Rules the Governor is the appointing and punishing
authority. But under Article 235 the High Court is the sole custodian
over the discipline of the judicial officers.
There is no warrant for
introducing another extraneous body between the Governor and the
High Court in the matter of disposal of a disciplinary proceeding
against a judicial officer.
It is submitted on behalf of the appellants
that Article 320(3) (c) provides that the Public Service Commission
shall be consulted on all disciplinary matters affecting a person serving
under the Government of a State in a civil capacity. Judicial Officers
although holding posts in civil capacity are not serving under the
Government of a State. They hold posts in connection with the affairs
of the State but are entirely under the jurisdiction of the High Court
for the purpose of control and discipline.
There is, therefore
no
constitutional justification or sanction for the Governor, even ' if he
wishes, to consult the Public Service Commission under Article 320
(3 )( c) in respect of judicial officers.
Consultation with the Public
Service Commission in this case and preference accorded to its advice
ignoring the recommendation of the High Court have introduced a
serious
constitutional
infirmity in the final order of reinstatement
passed by the Governor.
The appellants drew our attention to a decision of this Cqurt in
Pradvat Kumar Bose v. The Hon'ble The Chief Justice of Calcutta
High Court(') where this Court had to deal with one of the arguments founded on Article 320(3) (c) of the Constitution.
In the
above decision Pradyat Kumar Bose, who was Registrar and Account-
:mt-General of the. High Court on its original side and who was the
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appointee of the Chief Justice, was dismissed by the Chief Justice
after a full and thorough enquiry '.held by one of the Judges of the
High Court whose findings were accepced by the Chief Justice.
Inter
alia, it was contended before this Court that the order of
dismissal
by the Chief Justice was vitiated as the Chief Justice did not consult
the State Public Service Commission prior to disimissal of the Registrar
as provided for under Article 3 20 ( 3) ( c) .
This Court repelled the
contention holding that Article 320(3) (c) was contrary to the implications of Article 229 and the language thereof was also not applicable
to the High Court staff since the members of . the High Court staff
did not serve under the Government of the Union or of the State.
It is submitted by the appellants that this Court held that Article
320(3) (c) was not applicable since the Chief Justice was the sole
appointing and punishing authority so far as the High Court staff
was concerned under Article 229 of the Constitution.
On a parity
of reasoning it is contended by the appellants that since the Governor
is the sole appointing and punishing authority under the Appointment and Punishment Rules, Article 320(3) (c) is, therefore, clearly
attracted, since, according to them, if Article 229 were not there the
matter would have been considered by this Court in a different light
We are unable to accept this submission since, as we have pointed
out, just as the High Court staff are not serving under the Government of the State, the judicial officers are also not serving under the
State Government.
The appellants also relied upon a decision of thls Court in 1'he
High Court, Calcutta v. Amal Kumar Roy('). In this case also
a
submission was made in this Court that the High Court should have
consulted the State Public Service Commission in superseding seniority
of a Munsif as a result of his exclusion from consideration for promotion in a particular year which resulted in his loss of eight places in
the cadre of Subordinate Judges at the time he was actually appointed
to act as an Additional Subordinate Judge.
The particular officer's
case in substance was that this exclusion by the High Court amounted
in law to the penalty of "withholding of promotion". It was contended that the High Court should have consulted the State Public
Service Commission since article 320(3) (c) contemplated disciplinary
matters.
This Court disposed of this submission by h<'\ding that
losing places in a rank was not 'reduction in rank' and that no disciplinary proceedings had been started against the particular officer and
hence there could be no occasion for the State Public Service Commission being consulted. It is submitted by the appellants that this
Court did not reject the submission based on Article 320(3) (c), out
of hand, holding that the Article was not applicable.
It is true that
the aforesaid submission was disposed of in this particular manner
by this Court in the above decision.
That. however. does not mean
that this Court catel!orically held Article 320(3) ( c) was attracted
in the case of judicial officers.
The question did not arise in that
form.
(1) [1963] l S.C.R.437.
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BALDEV RAJ GULIANI v. PUNJAB & HARYANA H. c. (Goswami, l.) 437
The matter should not be oon.sidered from the angle of supremacy of one organ over the other. That will be an ~ntirely erroneous
approach.
The Constitution reposes
certai~ power m the Governor
even under Article 235.
He is the authority to pass the order of
removal, albeit, on the recommendation of the High Court.
That is
the constitutional scheme.
The Governor, however, cannot pass any
order, as has been done in this case, without reference to the High
Court and except on its recommendation.
Solution must be found
in harmony and not in cold war between the two organs.
The Governor could not have passed ~y order on the advice of
the Public Service Commission in this case. The advice should be
of no other authority than the High Court in the matter of judicial
Officers.
This is the plain implication of Article 235.
Article 320
(3) (c) is entirely out of place so far as the High Court is concerned
dealing with judicial officers.
To give any other interpretation to
Article 320(3) (c) will be to defeat the supreme object underlying
Article 235 of the Constitution specially intended for protection of
the judicial officers and necessarily the independence of the subordinate
judiciary.
It is absolutely clear that the· Governor cannot consult
. the Public Service Commission in the case of judicial officers and
accept its advice and act according to it. There is no room for any
outside body between the Governor and the High Court.
The Governor in relying upon the advice of the Public Service
Commission in this case took alien considerations into account and
acted erroneously in passing the order of reinstatement based on the
same.