# ( - • ( BARADAKANTA MISHRA v. HIGH COURT OF ORISSA & ANOTHER - **Citation:** [1976] Supp. 1 S.C.R. 561 - **Court:** Supreme Court of India - **Decided:** 1974-05-07 - **Case number:** Civil Appeals Nos. 1512 and 1513 of 1974 - **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/baradakanta-mishra-v-high-court-of-orissa-another-7181 - **Pages:** 19 ## Headnote 56 l Constitution of India, 1950, Article 235-Control of Iligh Court over District Judges-Appointnient by Governor-Dismissal by High Co'urt-Legality. The appellant was appointed a Munsi:ff and promoted as· a Subordinate Judge. A B He was later appointed as Mditional District Magistrate (Judicial) and then as C a'n .A.dditional District Judge by the Governor of the State. As a result .of an enquiry into certain charges he was reduced in rank as Additional District Magistrate (Judicial) by the High C'Ourt. After such reduction, he did not join duty. A fresh disciplinary proceeding was, therefore, started against him, and after enquiry, the Hij?h Court dismissed him. On the same day, the High c·ourt passed another order of d:smissal oh the ground that he was convicted on a charge of criminal contempt by a judgment of the High Court which was COU· firmed by this Court. The appeals against the orders of dismissal were dismiss .. ed by the Governor. A writ petition filed by the appellant in the High Court D for quashing the orders was dismissed. Allowing the appeal to lhis Court, HELD : (l) The control vested in the High Court under Art. 235 over district courts ahd courts subordinate thereto includes disciplinary control over district Judges and Judges inferior to the post of District Judges. If as a reSult of any disciplinary proceeding any punishment is to be imposed on any District E Judge that has to be in accordance with the conditions of service. The cond~ tions of service in the Civil Service (Classification, Control and Appeal) Rules, 1962, framed under Art. 309 provide in r. 14(4) that the appointing authority alone can impose the penalties specified in els. (vi) to (ix) of r. 13. Clause (vi) refers to the penalty of reduction in rank and cl. (ix) to dismissal from service. Therefore, under the conditiohs of service, the High Court cannot reduce in rank or dismiss a District Judge, who has been appointed by the Governor. The High Court, within the power and control vested under Art. 235, would hold disciplinary proceedings against the District Judge and recommend F the impositioh of a punishment of reduction in rank on him. But the actual power of imposition of one oi' the major punlishment5i, namely reduction in rank, is exercisable only by the Governor who is the appointing authority. In exercising such special pcwers, the Governor will always have regard to the opinioh of the High Court in the matter. Therefore, in the present case, the order passed by the Hi2h Court reducing the appellant in rank is unconstitutional. [576E578C, E-Hl G (2) (a) The two orders of dismissal based on the order 'of reduction in rahk cannot have legal effect because the substratum of the orders of dismissal is an unconstitutional order. If the reduction of the appellant is without jurisdic .. tion then the appellant is deemed to dontinue as a Distri.ct Judge ahd the High Court could not dismiss him.[578C-D] (b) There is no question of merger of the orders of the High! Court in the orders passed by the Governor. If the order of the initial authority is void an order of the appellate authority cannot make it valid. The confirmation by .the Governor in appeal cannot have any legal effect because it is only that which is valid that can be confirmed and not that which is void. [578D-EJ 3f-f::CIJ Oj76 H 562 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771; High Courl of Calcutta v. An1al Kun1ar Roy [1963] 1 S.C.R. 437; High Court of Punjab & Haryana v. State of Haryana (In the 1natter of N. S. Rao) [1975] 3 S.C.R. 365: Parshottam Lal Dhi11gra v. Union of India [1958] S.C.R. 828; Debesh Chandra Das v. Union of India & Others [1970] 1 S.C.R. 220; and Shamsher Singh & Anr. v. State of Punjab [1975] I S.C.R. 814, referred to. B ## Text _Characters 0–39,955 of 50,993. This is a partial read: ask again with offset=39955 for what follows._ ( - • ( BARADAKANTA MISHRA v. HIGH COURT OF ORISSA & ANOTHER May 6. 1976 (A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, jJ.] 56 l Constitution of India, 1950, Article 235-Control of Iligh Court over District Judges-Appointnient by Governor-Dismissal by High Co'urt-Legality. The appellant was appointed a Munsi:ff and promoted as· a Subordinate Judge. A B He was later appointed as Mditional District Magistrate (Judicial) and then as C a'n .A.dditional District Judge by the Governor of the State. As a result .of an enquiry into certain charges he was reduced in rank as Additional District Magistrate (Judicial) by the High C'Ourt. After such reduction, he did not join duty. A fresh disciplinary proceeding was, therefore, started against him, and after enquiry, the Hij?h Court dismissed him. On the same day, the High c·ourt passed another order of d:smissal oh the ground that he was convicted on a charge of criminal contempt by a judgment of the High Court which was COU· firmed by this Court. The appeals against the orders of dismissal were dismiss .. ed by the Governor. A writ petition filed by the appellant in the High Court D for quashing the orders was dismissed. Allowing the appeal to lhis Court, HELD : (l) The control vested in the High Court under Art. 235 over district courts ahd courts subordinate thereto includes disciplinary control over district Judges and Judges inferior to the post of District Judges. If as a reSult of any disciplinary proceeding any punishment is to be imposed on any District E Judge that has to be in accordance with the conditions of service. The cond~ tions of service in the Civil Service (Classification, Control and Appeal) Rules, 1962, framed under Art. 309 provide in r. 14(4) that the appointing authority alone can impose the penalties specified in els. (vi) to (ix) of r. 13. Clause (vi) refers to the penalty of reduction in rank and cl. (ix) to dismissal from service. Therefore, under the conditiohs of service, the High Court cannot reduce in rank or dismiss a District Judge, who has been appointed by the Governor. The High Court, within the power and control vested under Art. 235, would hold disciplinary proceedings against the District Judge and recommend F the impositioh of a punishment of reduction in rank on him. But the actual power of imposition of one oi' the major punlishment5i, namely reduction in rank, is exercisable only by the Governor who is the appointing authority. In exercising such special pcwers, the Governor will always have regard to the opinioh of the High Court in the matter. Therefore, in the present case, the order passed by the Hi2h Court reducing the appellant in rank is unconstitutional. [576E578C, E-Hl G (2) (a) The two orders of dismissal based on the order 'of reduction in rahk cannot have legal effect because the substratum of the orders of dismissal is an unconstitutional order. If the reduction of the appellant is without jurisdic .. tion then the appellant is deemed to dontinue as a Distri.ct Judge ahd the High Court could not dismiss him.[578C-D] (b) There is no question of merger of the orders of the High! Court in the orders passed by the Governor. If the order of the initial authority is void an order of the appellate authority cannot make it valid. The confirmation by .the Governor in appeal cannot have any legal effect because it is only that which is valid that can be confirmed and not that which is void. [578D-EJ 3f-f::CIJ Oj76 H 562 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A State of West Bengal v. Nripendra Nath Bagchi [1966] I S.C.R. 771; High Courl of Calcutta v. An1al Kun1ar Roy [1963] 1 S.C.R. 437; High Court of Punjab & Haryana v. State of Haryana (In the 1natter of N. S. Rao) [1975] 3 S.C.R. 365: Parshottam Lal Dhi11gra v. Union of India [1958] S.C.R. 828; Debesh Chandra Das v. Union of India & Others [1970] 1 S.C.R. 220; and Shamsher Singh & Anr. v. State of Punjab [1975] I S.C.R. 814, referred to. B CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1512 and 1513 of 1974. Appeals by Special Leave from the Judgments and Orders dated + 7th May 1974 and 30th November 1973 of Orissa High Court in • O.J.C. Nos. 1097 and 1033 of 1973 respectively. C Purshottam Chatterjee and C. S. S. Rao, for the appellants. D E F G H Sachin Chaudhary and Vinoo Bhagat, for the respondent No. l. Gobind Das and B. Parthasarathi, for respondent No. 2. ARGUMENTS For the Appellants : (I) This appeal relates to the Writ Petition No. O.J.C. No. 1097 of 1973. The Appellant was appointed by the Governor as a Munsiff in 194 7. He was in course of time promoted to the post of a Subordinate Judge. (2) In 1961, a separate cadre of Additional District Magistrate (Judicial) was created by the Government carrying a scale of pay higher than that of a Subordinate Judge, and lower than that of a District Judge. This new cadre was called Superior Judicial Service junior Branch but such cadre for the purposes of the Constitution must be considered to be one of, other than that of District Judges. It will be governed by Art. 234 and not by Art. 233 which applies to the District J udgcs who are placed in the Superior Judicial Service. (3) After the cadre was created, the appellant was superseded, but later on was appointed by the Governor as Additional District Magistrate (Judicial). He was later on reverted to the position of a Sub-ordinate Judge and then again promoted to the position of an Additional District Magistrate (Judicial), by a notification issued by the Government. On the 31st July, 1968, he was appointed by the Governor as an Additional District Judge. (4) On 8-12-72, by a notification No. 2.291 dated S-12-72 he was reduced in rank from the Senior branch of the Superior Judicial Service to the Junior branch of the same Judicial Service, i.e. he was reduced to position of an Additional District Magistrate (Judicial) from the position of an Additional District Judge. ' r B. MISHRA v. ORISSA HIGH COURT 563 (5) Later by notification No. 307A dated 3-12-73 he was dismissed from service; . again on tbe same date by another Notification No. 308, he was dismissed from service for the second time. In both the notifications he was described as belonging to the Orissa Judicial Service Class I, officiating in the Junior Branch of the Superior Judicial Service. The questions in this appeal are :-Whether the three Notifications aforesaid issued by High Court were valid as issued by a competent authority. A B • (6) Under the Constitution Subordinate Courts have been divided into two classes :-(a) District Judges, (b) other than the District , Judges. Art. 233 relates to the District Judges. Art. 234 relates to others in Judicial service than the District Judges. Art. 235 relates to , the control by the High Court of the mem~rs of both the branches of C Judicial Service (i) Art. 233 provides that:- (A) appointments of persons to be District Judges i.e. persons who are in Judicial service or persons who are not in Judicial service shall be appointed as D District Judges by the Governor in consultation of the High Court, (B) the posting of District Judges i.e. after a person is appointed a District Judge, the posting of a District Judge shall be made by the Governor in consultation E with the High Court, (C) the promotions of District Judges i.e. promotions or' persons already appointed as District Judges shall be made by the Governor in consultation with the High Court. Jn Orissa there are five selection posts. Under the Constitution if a Subordinate Judge is appointed as a District Judge, he is elevated from the category of, Judicial officers governed by Art. 234 to the category of those governed by Art. 233. So it is fresh appointment-promotion refers to promotions of District Judges; appointment refers to persons "to be appointed" as District Judges. (ii) Art. 234 provides that appointment of persons to the judicial service other than District Judges shall be made by the Governor in consultation· with the Public Service Coinmission and the High Court. F G (iii) Art. 235 refers to control by the High Court. These three H Articles should be read in a manner that conflict between the High Court and the Governor may be eliminated. A B c 564 SUPREME COURT REPORTS [1976] SUPPLEMENTARY (7) This leads to the position that the High Court has control over the District Judges in all matters except those reserved to the Governor under Art. 233. So in matters of appointment, promotion and posting and matters included therein the Governor is the competent authority bul he has to act in consultation of tli,e High Court. (8) The High Court can conduct an enquiry but cannot dismiss. The High Court will send the report and the recommendation to the Governor who will on consideration of the entire matter pass an order of dismissal if it pleases him, (Ram Gopal v. State of M.P. [1970] l S.C.R. 472, 478) or may reject the recommendation or may ask the High Court to reconsider the whok matter again. Because the Governor is the appointing authority he alone can dismiss (Nripendra Bagchi v. State· of West Bengal [1966] 1 S.C.R. 771.) So, "appointments, promotion and posting", includes dismissal. ' (9) The question is who will pass an order reducing a District _;;. Judge to the position of an Additional District Magistrate. In rhe case of Nripendra Bagchi v. State of West Bengal, it was held as follows - D Articles 233 and 23.5 make a mention of two distinct powers. The first is appointment of persons, their posting and promotions and the other is control. It has been decided in the case of Nripendra Bagchi that order of dismissal of a District Judge is to be passed by the Governor. (p. 788). Section 16 of the General Clauses Act provide that the appointing E authority is the dismissing authority unless it otherwise appears, F G H Following this principle and considering all the subsequent dec;sions, the Supreme Court held in the case of High Court of Punjab and l:laryana v. State of llaryana (in the matter of N. S. Rao) [1975] 3 S.C.R. 365, 379. "The High Court under this (Art. 235) control cannot terminate the service or impose any punishment on the district Judge by removal or reduction''. (10) It has been pointed out already that the Constitution recognises two classes of subordinate courts. The powers of the High Court with respect to them are different. The order for appointment of a District Judge and matters included therein must be passed by the Governor. Whe_n a person so appointed is removed from service or reduced to the lower rank governed by Art. 234, the order of the Governor appointing him as District Judge is impliedly cancelled; without catlcellation of the order of the Governor appointing him to the post of District Judge, he cannot be removed from the rank governed by Art. 233. This cancellation cannot be made by any body other than the Governor because he was the competent and the only authority so to appoint; hence the Governor is the only person who can remove or reduce in rank a District Judge. Again, snpposing a ' I. r " B. MISHRI\ V. ORISSA HIGH COURT 565 District Judge is appointed as a Judicial Secretary or a Legal Remembrancer or his services are placed at the disposal of the Governor, the High Court is out of the scene, he can be reduced in rank by the Governor. Secondly, Section 16 of the General Clauses Act authorities the appointing authority unless otherwise provided, to suspend or to dismiss. It does not mean that· appointing authority has merely the power to suspend and to impose merely the highest punishment, the substance is that the appointing authority has the power beginning from suspension and ending the power to dismissal unless otherwise provided elsewhere. Hence all intermediate punishments may also be imposed by the appointing authority provided that there is nothing to the contrary. Hence Governor alone has the power of removal and reduction. Thirdly, removal entails interference with the order of appointment which is clearly reserved to the Governor; hence removal has to be made by the Governor. But reduction also entails the order of appointment. The order for appointment as District Judge and an order for reduction cannot stand at the same time; if they are allowed to do so they contradict mutually. Finally, it a small power like transfer is given to the Governor, it cannot be imagined that an order which means his removal fr0m the category of officers governed by Art. 233 to the category of < officers go\·erned by Art. 234 will be done by any authority other A B c D than the Governor. · E 1 ( 11 ) The High Court was wrong in holding that the reduction in rank could be done by them. Some confusion might have arisen from the fact that District Judges were the members of the Superior Judicial Service and the Additional District Magistrate (Judicial) were also placed in that Service but in the Junior brancl1. So the High Court might have considered thaflt was mere matter of promotion and F reduction within the same sphere. In common parlance it may so appear, but the Constitution puts them in two different categories. Hence, High Court had no power to pass the order or reduction ·' by the Notification No. 2291 dated December 8, 1972. f The two subsequent notifications being based on it arc equally null G and void. It was urged that the order of the Governor confirming the orders of dismissal will prevail. It cannot be so. The initial order being bad all orders based on it are bad [1953] S.C.R. 136, 143. (12) It has been said that the order of the High Court having merged in the order of the Governor, the latter order prevails being H the order in appeal. That again i~ not so. If the order of initial authority is null and void, and an order of :t competent authority in appeal ca1111ot make it competant (l~edgord v. Hill 13 IA 134). 566 SUPREME COURT REPORTS [1976] SUPPLEMENTARY A Finally, the officers of the Governor have used the word "CONFIRMED" wrongly. The appellant filed appeals which wern dismissed but they have wrongly used confirmed though the effect of the order may be confirmation, if the initial order of the High Court was valid but what was confirmed was, a null and void order. B Tf the first order of reduction was null and void, the appellant ' remained a District Judge and he was never dismissed as ;uch. Fiually even if he was correctly reduced in rank by a proper .II authoritv. the order of dismissal must come from the Governor as he Ill was api)ointed as an Additional District Magistrate by the Governor , C ([1%6] 1 S.C.R. 771, 788). • D E F G H ( 13) ( i) First question.-Whether the High Court in exercise of powers under Articles 235 of the O'nstitntion can impose any punishment on a District Judge by removal or reduction in rank. (ii) The reply is found in the decision of N. S. Rao's case, reported in A.I.R. 1975 S.C. 613 (622)-[1975] 3 S.C.R. 365(369), which is quoted below- "xx xx The High Court of coum\ under this coRtrol, cannot terminate the services or impose any punishment on District Judge by removal or reduction xxx if as a result of any disciplinary proceedings, any District Judge is to be removed from service or any punishment is to be imposed, that will be in accordance with conditions of service". (iii) 'Conditions of service' in this instance, means, as embodied in the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962 (hereinafter referred to as "the C.C.A. Rules". So, the C.C.A. Rules framed under Article 309 of the Constit11tion are accepted to he constitutional. These C.C.A. Rules are undoubtedly applicable to District Judges and Additional District Magistrates (Judi.) in view of r. 18 of the Orissa Superior Judicial Service Rules, 1963. Thus, as per r. 14(4) of the C.C.A. Rules, the appointing authority, tl1at is the Governor, alone, can impose penalties, as specified in els. (VI) to (IX) of r. 13 of the C.C.A. Rules, cl. (VI) is the penalty of reduction in rank, and cl. (IX) is dismissal from service. So, the High Court cannot reduce or dismiss a District Judge. Second question.-Whether the High Court can suspend a. District Judge. Rule 12 of C.C.A. Rules and s. 16 of the General Clauses Act, debar the High Court to effect such suspension. Provisions of the General Clauses Act are applicable for interpretation of the Constitution ( vide Art. 367 (11). r B. MISHRA V. ORISSA HIGH COURT 567 Third question.-Whether the High Court can dismiss an Addi. Dist. Magistrate (Judi.). If the reduction of the appellant, for the above reasons, is without jurisdiction, then the appellant is deemed to be continuing as a District Judge, and in view of the above submission, the High Court cannot dismiss him. Even otherwise, the High Court cannot dismiss him. This is clear from the observation of this Hon'ble Court in Bagchi's case, reported in A.LR. 1966 S.C. 447 (454)-[1966] 1 S.C.R. 711. "Reading the above with Arts. 233 and 234, he (Mr. Sen) contends, A B and rightly that a District Judge or a Judge, subordinate to the District Judge cannot be dismissed or removed by any authority other than the C Govetnor. The next question :-Whether the reduction of the appellant from the rank of Addi. Dist. Magistrate (Jud!.) in January 1962, is hit by Art. 311 (2) of the Constitution .. Annexure-3 will clearly disclose that the said reduction was as a measure of penalty and hence the proviD sions of Art. 311 (2) are attracted. There having been no enquiry, it is liable to be quashed. This reduction had been challenged in a previous writ proceeding, whether the State Government and the High Court as the O.Ps suppressed the truth, as had been in the Annexure 3 and thus, practised fraud E on the Court Hence, that decision is revisable under the broad principle of Sec. 151, C.P.C. or otherwise. The reasons given by the High Court to refuse this relief are not acceptable in law. Hence all the orders may be quashed and the appeal be allowed with costs, as the appellant has done nothing to disentitle, him from getting costs. For Respondent No. 1 1. Facts and dates a. The Appellant was appointed as a Munsiff, on probation, in 1947; and was confirmed in iliat cadre in 1948. The Appellant was appointed Sub-Judge by promotion and was confirmed as such on 20.9.1958. F G b. In 1961, a new cadre of Additional District Magistrates H (Judicial) was created by Government : ADM(J)'s ranked between Sub-Judge and District Judge. The Appellant was supperscded by fo\Jr judicial officers when appointments were made to the new cadre A B c 568 SUPREME COURT REPORTS [1976] SUPPLEMENTARY of ADM(J) on 28-9-1968. The Appellant made a representation to Government against this supersession but the same was rejected, The Appellant was superseded again when more appointments were made to posts of ADM (J) ; the Appellant was considered but found unfit. The Appellant was superseded innumerable times and at practically every stage of his career. c. On 28.3.1962, the Appellant was, for the first time, appointed to officiate as ADM(J). The appointment was made by Government as the Orissa Superior Judicial Service Rules, 1963, had not then come into force; and Article 235 had not been interpreted in Bagchi's case - [1966] 1 SCR 771 - by the Supreme Court. d. By notification No. 1068, dated 15-1-1963, issued by Government, the Appellant was reverted from the post of temporary ADM(J) to his substantive rank of Sub-Judge; and he was posted as Sub-Judge, Sundergarh. e. The above order of reversion was challenged by the Appellant in a writ petition before the High Court of Orissa (0.J.C. No. 168 of D 1964) but the writ petition was dismissed by judgment reported at > E F G ILR [1966] Cuttack 503. The Appellant preferred a petition for special leave to appeal to the Supreme Court - SLP (Civil) No. 53 of 1967 - but the same was rejected. And ~he matter stood concluded. f. The Appellant committed acts of misconduct while working as Sub-Judge, Sundergarh, after his reversion aforesaid. An enquiry was held; the Appellant was found guilty and the punishment awarded was stoppage of two increments. The Appellant was under suspension ftom 15-5-64 to 9-4-1967. g. The High Court appointed the Appellant to the post of ADM(J), by promotion, on 5.2.1968. Under Rule 10 of the Orissa Superior Judicial Service Rules, 1963, the High Court is the appointing authority empowered to appoint ADM(J) s by promotion from the rank of Sub-Judge. The Governor has no power to appoint ADM(J)s (or to appoint Sub-Judges under the Orissa Judicial Service Rules, 1964, which relate to Munsiffs and Sub-Judge; the High Court alone can appoint Sub-Judges by promoting Munsiffs). h. The Appellant was promoted officiating Additional District Judge by the Governor. Thereafter, he worked under Government as Joint . Secretary, Law Department and later on as Endowment Commissioner. Subsequently, he was appointed officiating Additional District & Sessions Judge, Cuttack. H i. Three departmental proceedings had been started against the Appellant in respect of his work as Endowment Commissioner; and he had also been convicted for contempt of court. While working as Additional District & Sessions Judge, Cuttack, the Appellant committed r • B. MISHRA V. ORIS.SA HIGH COURT 569 acts of indiscipline, and was found to have tampered with judicial A records. j. The Appellant was thereupon reverted to the rank of ADM(J) -0n 1-9-1971. But subsequently, on 21-3-1972, the order of reversion was cancelled by the Governor, who suggested that departmental proceedings could be drawn up against the Appellant. This act of cancellation of the reversion order has been commented on by this B Hon'ble Court in [1974] 2 SCR 282 at 288-Baradakanta Mishra vs. Registrar of Orissa High Court & anr. k. Disciplinary proceedings were started against the Appellant by the High Court, and the Appellant was placed under suspension. The Appellant was found guilty of the charges framed against him. By order dated 8 .12 .1972, the High Court imposed the punishment C of reduction in rank from Additional District & Sessions Judge to ADM(J); tl1e Public Service Commission was consulted regarding the imposition of this punishment and it concurred. l. The Appellant was posted as ADM(J), Sambalpur, by notification dated 8-12-1972, which was served on him on 9-12-1972. The Appellant did not proceed to Sambalpur, and never joined his post D as ADM(J). The Appellant remained absent from duty for one year until he was eventually dismissed in December 1973 (by notification dated 3 . 12 1973). m. A disciplinary proceeding was started against the Appellant on 1.2.1973 for deserting service. By order dated 25.G.1973, the Inquiring Judge found the Appellant guilty of the charge of wilful E absence from duty. n. The Appellant was offered an opportunity of being heard personally by the Full Court on 27-11-73, but the Appellant wrote to the High Court on 24 .. 11 . 73 that he was seriously ill and had been advised complete rest for a fortnight. The High Court rejected his request for adjournment and fixed the hearing for 30-11-73. The F Appellant-notwithstanding that he claimed to be seriously ill-came to the High Court on 27-11-1973 and filed O.J.C. No. 1033 of 1973, which gave rise to CA No. 1513 of 1974. The Appellant did not however appear before the High Court to show cause against the > punishment propooed to be awarded. o. The Appellant was dismissed on two counts, \Vhich were G recorded in two separate orders as the orders were passed on two separate proceedings. (i) By order dated 30-11-1973, the Appellant· was dismissed for having been found guilty of the charge of having deserted service. (ii) By another order also dated 30.11.1973-the High Court H also awarded the punishment of dismissal on acconnt of the Appellant's conduct leading to his conviction for contempt of court, which was uphdd by the Supreme Court in [1974] 2 SCR 282. A B 570 SUPRE]\IE COURT REPORTS [1976] SUPPLEMENTARY (iii) Based on the aforesaid orders, two notifications both dated 3-12-1973: were issued by the High Court dismissing the Appellant from service. (vi) The High Court consulted the Public Service Commission regarding the proposed punishment of dismissal to be awarded to the Appellant, and the PSC had concurred therein. p. The Appellant field O.J.C. No. 1087 of 1973 in the High Court challenging, inter alia, the orders of dismissal, the order of reduction in rank, and seeking a declaration that he should be considered senior to one B. R. Rao, who superseded him in 1961, and as holding the post of District Judge before B. R. Rao. The High Court dismissed the said O.J.C. No. 1087 of 1973 by judge ment dated 7.5.1974: this judgment is impugned in CA No. 1512 of 1974. D E F G Submissions 2. The High Court was competent to dismiss the Appellant from his post of ADM(J). a. The words "posting and promotion" in Article 233 of the Constitution mean appointment of a District Judge by promotion from the preceding, lower rank in the judicial service-State of Assam & anr, vs. Kuseswar Saikia & ors. (1970) 2 SCR 928. The same words-posting and promotion-in Article 235 must also bear the same meaning and must mean appointment by promotion of judges , subordinate to District Judges. Therefore, Article 235 confers the ., power of appointment by promotion (as distinguished from appointment by direct recruitment) on the High Court, just as the similar power in respect of District J udge5 is conferred on the Governor by Art. 233. 2(a) (i). The Supreme Court has held in The High Court of Calcutta vs. Amal Kumar Roy-(1963) I SCR 437 at 447-that, 'It is therefore, clear that after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial .Service, holding any post inferior to that of a District Judge.' It is not contended by the plaintiff-respondent that there is anv other authority which could have dealt with him in the matter of promotion from the post of a Munsiff to that of a Subordinate Judge. b. Article 234 governs the appointment by direct recruitment of persons to posts subordinate to that of District Judge. Article 235 governs the subsequent appointment by promotion to such subordinate JJOSts (e.g., from Munsiff to Sub-Judge, and from Sub-Judge to· ADM-(J)-Sat!iya Kumar & ors. vs. State of Andhra Pradesh & ors. AIR 1971 A. P. 320. ' j c. Under the provisions of the Orissa Judicial Service Rules, H 1964, recruitment to the post of Munsiff is made by the Governor by ' means of a competitive examination : r. 5 Recruitment to the post of Sub-Judge is made only by the High Court by promotion from amongst Munshiffs r. 4. r B. MISHRA V. ORISSA HIGH COURT 5 71 d. Similarly, under the Orissa Superior Judicial Service Rules, 1963, recruitment to post of ADM(J) is made only by the High Court by promotion of Sub-Judges r. 10. The Gove~nor mahs appointment to the post of District Judge, Wilcther by direct recruitment or by promotion: rr. 8 & 9. A e. These two sets of Rules are in accord with the provisions of Arts. 233, 234 and 235 of the Constitution. AnJ they are also B in accord with the two decisions referred to above: [1970] 2 SCR 928, and AIR 1971 A. P. 320. f. It may be mentioned that in Shamsher Singh's case [1975] l SCR 814-the power of dismissal was rightly he!J to be in the Governor because the dismissal was of a Sub-judge who had been directly recruited by the Governor, the post of Sub-judge who had been lowest post in the judicial service of Punjab. 3. High Court's power to impose penalties on District Judgesother than, those of dismissal or removaL The High Court has power to impose the penalty of reduction in rank. a. The nature and extent of the High Court's "control" over the subordinate judiciary (including District Judges) under Article 235 of the Constitution was authoritatively determined in Bagchi's case-[1966] I SCR 771. And the Jaw so laid down by the Supreme Court has been followed by the High Court. b. It was held in Bagchi that the High Court's disciplinary control over District Judges is complete-subject only to the power cf the Governor in the matter of appointment and dismissal or removaL In exercise of power under Art. 235, the High Court can hold inquiries against District Judges under Art. 311 (2), and can impose all punilg authority empowered to appoint Additional District Magistrates (Judi,,ial) by promotion frum the rank of Subordinate Judge. On 31 July, 1968 the appellant was appointed by the Governor ' as an Additional District Judge. ~ On 8 December, 1972 the High Court imposed on the appellant the punishment of reduction in rank from the post of Additional District and Sessions Judge to an Additional District Magistrate (Judicial). The order passed by the High Court dated 8 December, 1972 records that in pursuance of the control vested in the High Court under Article 235 of the Constitution in a disciplil1ary proceeding initiated on charges dated 29 April, 1972 against the appellant an officiating member of the Orissa Superior Judicial Service Senior Branch the appellant is reduced in rank with immediate effect and 1s released from suspension. On 30 March, 1972 the High Court passed an order in exercise of powers unl1er Article 235 fo the effect that the appellant wos placed ' under suspension forthwith because a disciplinary proceeding against the appellant was contemplated. On 29 April, 1972 charges were serv~d on the appellant. He was asked to submit an explanation. He did not