# THE STATE OF WEST BENGAL v. NRIPENDRA NATH BAGCfil

- **Citation:** [1966] 1 S.C.R. 771
- **Court:** Supreme Court of India
- **Decided:** 1965-09-10
- **Bench:** P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah, J.C. Shah, Ands. M. S!Kri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-west-bengal-v-nripendra-nath-bagcfil-3614
- **Pages:** 20

## Headnote

17 l
Constitution of India Art. 235-High Court's Control over subordinate
courts-Control whether includes disciplinary powers-Inquiry Into Conduct
of District Judge whether to be made by High Court or by the State Government-West Bengal Service Rules-Rule ?5(a)-Service period whether
can be extended for purpose of enquiry against officer.
The respondent was appointed a Munsif on November 10, 1927. After
promotion he became an Additional District and Sessions Judge and offi·
ciated at several stations as District and Sessions Judge but was never
confirmed as such.
In the ordinary course he was due to superannuate:
and retire on July 31, 1953.
By an order dated July 14, 1953 the Govern·
ment of West Bengal ordered that the respondent be retained in servico
for a period of two months commencing from August I, 1953. The order
purported to be under Rule 75(a) of the West Bengal Service Rules, Part L
By another order dated July 20, 1953, the respondent was placed under
suspension and on the following day he waSJ served with 11 charges and
asked to file a written reply within 15 days.
An enquky into the charges
was made by an officer appointed for the purpose. During the period of
the enquiry the respondent was retained in service, though kept in suepension, by repeated orders under rule 75(a). The enquiry officer reported
that some of the charges were proved. On March 18. 1954 the re•pondent
was asked to show cause why he should not be dismi9sed from service
and after he had shown cause he was dismissed on May 27, 1954. The
Public Service Commission was consulted but not the High Court. The
respondent appealed to the Governor unsuccessfully. Thereafter he applied
to the High Court at Calcutta under Arts. 226 and 227 of the Constitution
against hls dismissal. The High Court quashed the order of dismissal as
well as the enquiry.
The Government of West Bengal appealed to this
Court on a certificate granted by the High Court.
Tue questions that fell for consideration were : (I) ~ether the
enquiry ordered by the Government and conducted by an Executive Officer
of the Government against a District and Sessions Judge contravened the
provisions of Art. 235 of the Constitution which vests in the High Court
the control over the DiS<trict Court and the courts subordinate thereto;
and (2) whether the provi•ions of rule 75(a) West Bengal Service Rules
could be utilised to extend the service of the respondent beyond the normal
age of retirement.
HELD: (i) Rule 75(a) which was modelled on Rule 56(a) o! !he
Fundamental Rules was not designed to be used for the purpose of reta1n1ng
a peroon in service for enquiry against him but to keep in employment
persons with a meritorious record of service who although superannuated
can render some more service and whose ret·ention in service is considered
necessary on public grounds.
I~ retention in s-arvice for the first reason
wao consid~red necessary a rule like Rule S6(d) of the Fundamental Rules
was required. [777 E-C]
772
SUPREME COURT
REPORTS
[1966] l S.C.R.
(ii) There is special provision for District Judges in the Conslilution
A
in Arts. 233 to 23 7.
These articles deal with the appointment of persona
to be, and postings and promo'.ions of, District Judges and appointment.
postings and promotions of Judges subordinate to 1hc District (:ourt and
the courts subordinat·, thcre'o. They abo provide for special rules to b<:
made by the Go\crnor of the Slate after consultation with the Stale Public
Service Commission and the lligh Court cx·~rcising jurisdic:ion in relation
to each State.
These articles were not placed in the Chapter on services
but immediately after the provisions in regard to the High Courts. Tho
B
article'i v.·ent a little further than the corresponding sections of the Govern·
men( of lndia Act, 1935.
They vested the 'control' of the district courll
and the courts subordinate thereto in the High Courts. [779 B-E; 785 BJ
(iii) The word 'con>rol' as used in An. 235 includes disciplinary con

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THE STATE OF WEST BENGAL
v.
NRIPENDRA NATH BAGCfil
September 10, 1965
[P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO,
M. HIDAYATULLAH, J.C. SHAH, ANDS. M. S!KRI, JJ.)
17 l
Constitution of India Art. 235-High Court's Control over subordinate
courts-Control whether includes disciplinary powers-Inquiry Into Conduct
of District Judge whether to be made by High Court or by the State Government-West Bengal Service Rules-Rule ?5(a)-Service period whether
can be extended for purpose of enquiry against officer.
The respondent was appointed a Munsif on November 10, 1927. After
promotion he became an Additional District and Sessions Judge and offi·
ciated at several stations as District and Sessions Judge but was never
confirmed as such.
In the ordinary course he was due to superannuate:
and retire on July 31, 1953.
By an order dated July 14, 1953 the Govern·
ment of West Bengal ordered that the respondent be retained in servico
for a period of two months commencing from August I, 1953. The order
purported to be under Rule 75(a) of the West Bengal Service Rules, Part L
By another order dated July 20, 1953, the respondent was placed under
suspension and on the following day he waSJ served with 11 charges and
asked to file a written reply within 15 days.
An enquky into the charges
was made by an officer appointed for the purpose. During the period of
the enquiry the respondent was retained in service, though kept in suepension, by repeated orders under rule 75(a). The enquiry officer reported
that some of the charges were proved. On March 18. 1954 the re•pondent
was asked to show cause why he should not be dismi9sed from service
and after he had shown cause he was dismissed on May 27, 1954. The
Public Service Commission was consulted but not the High Court. The
respondent appealed to the Governor unsuccessfully. Thereafter he applied
to the High Court at Calcutta under Arts. 226 and 227 of the Constitution
against hls dismissal. The High Court quashed the order of dismissal as
well as the enquiry.
The Government of West Bengal appealed to this
Court on a certificate granted by the High Court.
Tue questions that fell for consideration were : (I) ~ether the
enquiry ordered by the Government and conducted by an Executive Officer
of the Government against a District and Sessions Judge contravened the
provisions of Art. 235 of the Constitution which vests in the High Court
the control over the DiS<trict Court and the courts subordinate thereto;
and (2) whether the provi•ions of rule 75(a) West Bengal Service Rules
could be utilised to extend the service of the respondent beyond the normal
age of retirement.
HELD: (i) Rule 75(a) which was modelled on Rule 56(a) o! !he
Fundamental Rules was not designed to be used for the purpose of reta1n1ng
a peroon in service for enquiry against him but to keep in employment
persons with a meritorious record of service who although superannuated
can render some more service and whose ret·ention in service is considered
necessary on public grounds.
I~ retention in s-arvice for the first reason
wao consid~red necessary a rule like Rule S6(d) of the Fundamental Rules
was required. [777 E-C]
772
SUPREME COURT
REPORTS
[1966] l S.C.R.
(ii) There is special provision for District Judges in the Conslilution
A
in Arts. 233 to 23 7.
These articles deal with the appointment of persona
to be, and postings and promo'.ions of, District Judges and appointment.
postings and promotions of Judges subordinate to 1hc District (:ourt and
the courts subordinat·, thcre'o. They abo provide for special rules to b<:
made by the Go\crnor of the Slate after consultation with the Stale Public
Service Commission and the lligh Court cx·~rcising jurisdic:ion in relation
to each State.
These articles were not placed in the Chapter on services
but immediately after the provisions in regard to the High Courts. Tho
B
article'i v.·ent a little further than the corresponding sections of the Govern·
men( of lndia Act, 1935.
They vested the 'control' of the district courll
and the courts subordinate thereto in the High Courts. [779 B-E; 785 BJ
(iii) The word 'con>rol' as used in An. 235 includes disciplinary control
or jurisdiction over District Judges.
The history which lies behind tho
enactment of these articles indicates that 'control' was vested in the High
Court to ef!eotuate a purpose, namely, the securing of the independence
C
of the subordinate judiciary and unless it included disciplinary e<>otrol ..
well the very object would bo frustrated. [786 BJ
The word 'control', moreover, is accompanied by the word 'vest' which
is a strong word.
It shows that the High Court is made the sole custodian
of the control oYer the judiciary.
Control therefore is not merely the
power to arrange the day-lo-day working of lhe court but contemplate&
<li.sciplinary jurisdic'ion on the presiding Judge. [786 C-DJ
Article 227 gives to the High Court superintendence over these courlll
and enables the l·Iigh Court to call for returns etc.
The word 'control' in
Art. 235 mu'it hJ.vc a different content.
It includes something in addition
to mere superintendence.
It is control over the conduct and discipline of
Judges. The inclusion of a right of appeal against the orders of the High
Court in the conditions of service necessarily indicates an order passed
in disciplinary jurisdic1ion, and the word 'deal' alc;o points to disciplinary
and not mere adminis~rativc jurisdlc:ion. [786 D-F]
(iv) Although the term used is "district court'" the word 'court' i!I
used compendiously lo denote not only the court proper but also the
presiding Judge. [786 G-Hl
(v) That the Legislature has under Art. 309 the power to make Jaws
relating to the services does not show that the Executive under Arr. 162
enjoys corresponding executi\"e power, when the Constitution indicate,,
otherwise. (787 F-G]
(vi) There is nothing in An. 311 which compels the conclusion that
the High Court is ousted of the jurisdiction lo hold the inquiry if An. 235
vested some power in it.
The control \\'hich is vested in the High Court
is a complete control subject only to the power of the
Governor in the
ma 1ter of appointment (inclu<lin~ dlsmi9Sal and rcmovttl) and postin.~ and
promotion of District Jud~es. Within ~he exercise of the control vc~ted in
the H!~h Court. the Hi;?h Court C:ln hold enquiries. impose punishments
other than d!smissal or removal subject however to the condition, of service, to a right of appeal if r,ran•~d by the condition, of service. and to the
~iving of nn opportunity of showing came as required by cl. (2) of Art.
3 t t. unless such an opportunity is dispensed with hy the Governor acting
under th-! provisos (b) and (c) to that clause. [790 A-CJ
The High Court alone could have held inquiry in this case. To hold
otherwise would he to reverse the trend which has movc<I detennioc<lly
in this direction. (790 C-DJ
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STATE v. N. N. BAGCHI (Hidayatullah, I.)
773
A
C!vIL APPELLATE JURISDICTION: Civil Appeal No. 391 of
1964.
Appeal from the judgment and order dated July l, 1960 of
the Calcutta High Court in Civil Rule No. 520 of 1955.
C. K. Daphtary, Attorney-General, B. Sen, S. C. Bose and
B
P. K. Bose, for the appellants.
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N. C. Chatterjee, Sukumar Ghose for S. C. Mazumdar, for
the respondent.
B. R. L. Iyengar, S. K. Mehta and K. L. Mehta, for in.tervener No. 1.
Arun B. Saharya and Sardar Bahadur, for intervener No. 2Naunit Lal, for intervener No. 3.
S. V. Gupte, Solicitor-General and B. R. G. K. Achar, for
intervener No. 4.
N. Krishnaswamy Reddy, Advocate-General,
Madras
and
A. V. Rangam, for intervener No. 5.
D. Sahu, Advocate-General, Orissa, B. P. Iha and R. N.
Sachthey, for intervener No. 6.
E
R. N. Sachthey, for intervener No. 7.
Hardev Singh, for intervener No. 8.
The Judgment of the Court was delivered by
Hidayatullah, J.
This is an appeal by the State of West
F
Bengal and its Chief Secretary against the
judgment
of the
Calcutta High Court dated July 1, 1960 by which the order dismissing N. N. Bagchi (the respondent) from service was quashed.
The High Court certified the case as fit for appeal to this Court
under Arts. 132(1) and 133(1) (c) of the Constitution.
N. N. Bagchi was appointed a Munsif on November 10, 1927.
G
After promotions he became an Additional District & Sessions
Judge and officiated at several stations as District
&
Sessions
Judge but he was never confirmed as such.
He last acted as a
District & Sessions Judge at Birbhum in March 1953. In April
of the same year he was transferred to Alipore as an Additional
District & Sessions Judge.
In the ordinary course Bagchi was
H
due to superannuate and retire on July 31, 1953. On April 17,
1953 he applied for leave from April 27, 1953 to July 31, 1953
preparatory to retirement. The leave was held inadmissible. He
774
SUPRl!MB COURT REPORTS
[1966] 1 S.CJI..
was, however, granted leave from July 17, 1953 to the end of
A
his service.
Bagchi, however, reported on April 27, 1953 that
he had gone to Puri on April 25, 1953 because his son was ill
and asked for one month's leave from April 27, 1953. Leave
for 3 weeks was granted which, at his request, was extended to
June 5, 1953.
By an order dated July 14, 1953 Government ordered that
Bagchi be retained in service for a period of two months commencing from August I, 1953. The order reads :
"I am directed to state that Government have been
pleased to sanction, under Rule 75(a) of the
West
Bengal Service Rules, Part I, the retention in service of
Nripendra Nath
Bagchi, Additional District and
Se.;sions Judge, 24-Parganas for a period of two months
with effect from 1st August, 1953,
the date of
his
compu:sory retirement,
in the interest of the public
service''.
Rule 75(a) which was invoked reads as follows:-
Rule-"7 5 (a). Except as
otherwise provided in
this rule, the date of compulsory retirement of a Government servant other than a member of the clerical
staff or a servant in inferior service is the
date on
which he attains the age of 55 years.
He may, how.
ever, be retained in service beyond that date with the
sanction of Government on public
grounds
which
should be recorded in writing; but he shall not be retained after attaining the age of 60 years except in very
special circumstances."
By another order dated July 20, 1953 Bagchi was placed under
suspension and on the following day he was
served
with 11
charges and was asked to file a written reply within 15 days. An
enquiry into these charges followed and it was entrusted to Mr.
B
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B. Sarkar. l.C.S., Commissioner, (later Member, Board of Revenue) by the Government of West Bengal.
The enquiry contiG
nued for a long time and Bagchi was retained in service, though
kept under suspension, by repeated orders of different durations
under rule 75(a). Mr. Sarkar made his report to the Government on December 21, 1953 holding that some of the charges
were proved.
He did not recommend any punishment as
he
thought that punishment would depend upon Bagchi's record of
H
service.
On March 18, 1954 Bagchi was asked to show cause
why he should not be dismissed from service and after he had
,.
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STATE v. N. N. BAGCHI (Hidayatullah, I.)
175
A shown cause he was dismissed on May 27, 1954. The Public
Service Commission was consulted but not the High Court. He
appealed to the Governor unsuccessfully.
On February
15,
1955 he applied to the High Court at Calcutta under Arts. 226
and 227 of the Constitution against his dismissal and a rule was
issued. On the recommendation of Mr. Justice D. N. Sinha, the
B case was placed before a Full Bench, as important questions of
constitutional law were involved.
The Full Bench by its judgment dated July 1, 1960 made the rule absolute and quashed
the order of dismissal as well as the enquiry. On' the application
of the Government of West Bengal the High Court certified the
case as fit for appeal to this Court and the present appeal was
c filed.
At an earlier hearing this Court ordered that notices be
issued to all the Advocates General of the States and to the
High Courts, because the questions involved were of considerable
general and constitutional importance. Jn answer to the notices
some of the States and the High Courts intervened arguing either
0
in favour of or against the judgment
under
appeal.
While
making his recommendation D. N. Sinha J. drew up the points of
controversy in the case. They may be set down here :
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"(1) That the provisions of Rule 75(a)
of the
West Bengal Service Rules have not been compiled
with.
(2) That the service of a civil servant cannot be
extended merely for the purpose of dismissal.
( 3) That the control over the District Courts and
the Courts subordinate thereto are vested with the
High Court under Article 235 of the Constitution, and
the authority competent to take disciplinary proceedings and action against the petitioner or to deal with in
any way was the High Court and not any other
authority.
( 4) That the provisions of the Civil Service (Control, Classification and Appeal)
Rules in so far as
they authorise any authority other than the High Court
to take disciplinary action against the person holding
the post of petitioner are ultra vires and void under
Article 235 of the Constitution.
( 5) That, in any event, the entire departmental
enquiry and proceedings
have been conducted in
violation of the principle of natural justice.
776
SUPREME COURT
REPORTS
[1966] I S.CR.
A
At the final hearing this appeal was confined to the first three
points.
The fourth point and the allegations about denial of
natural justice were not discussed.
The three points may be
summarized into two : (I) whether the enquiry ordered by the
Goverrunent and conducted by an Executive Officer of the Government against a District & Sessions Judge contravened the provisions of Art. 235 of the Constitution which vests in the High
B
Court the control over the District Court and the courts subordinate thereto; and (2) whether the provisions of rule 75(a)
West Bengal Service Rules could be utilized to extend the service
of Bagchi beyond the normal age of retirement.
On hearing
arguments we arc satisfied that the answer to both the questions
must be against the Government.
We shall now proceed to give
our reasons.
We may begin with Rule 75(a)
because
that
question,
although not so important as the other, causes less trouble. The
rule, which was earlier set out, may be compared
with
rules
c
56(a) and 56(d) of the Fundamental RulesD
"56(a) Except as otherwise provided in the other
Clauses of this Rule
the date of Compulsory retirement of a Government servant other than a ministerial
servant, is the date on which he attains the age of 55
years.
He may be retained in service after the date of
compulsory retirement with the sanction of the Local
Government on public grounds, which must he r~cordecl
in writing. but he must not be retained after the age
of 60 years except in very special circumstances."
"56 ( d) Notwithstanding
anything
contained
in
clauses {a), (b) and (c), a Government servant under
suspension
on a charge of mis-conduct shall not be
required or permitted to retire on reaching the date of
compulsory retirement, but shall be retained in service
until the enquiry into the charge is concluded and a
final order is passed thereon by competent authority."
It was conceded in the High Court that rule 56(d) of the Fundamental Rules framed under s. 96-B of the Government of India
Act did not
apply to District & Sessions Judges.
The
West
Bengal Service Rules were made by the Governor under s. 241
of the Government of India Act, 1935 and they were made applicable to the services of the Government of West Bengal.
When
the West Bengal Service Rules were made,
the
Fundamental
Rules were available.
Rule 75{a) was modelled on Rule 56(a)
of the Fundamental Rules but no rule like Rule 56(d), which
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STATE v. N. N. BAGCHI (Hidayatullah, J.)
777
we have quoted, was included.
Under s. 276 of the Government of India Act, 1935, the West Bengal Service Rules would
prevail over the Fundamental Rules, and it is conceded that they
alone govern this case.
Even if Rule 56(d) of Fundamental
Rules was available it was not utilized.
Repeated orders were
passed under rule 75(a), West Bengal Service Rules and these
B orders said that the retention of Bagchi was in the interest of
public service.
Rule 7 5 (a) is hardly designed to be used for
this purpose. It is intended to be used to keep in employment
persons with a meritorious record of service who,
although
superannuated, can render some more service and whose retenc tion in service is considered necessary on public grounds. This
meaning is all the more clear when we come to the end of the
rule where it is stated that a government servant is not to be
retained after he attains the age of sixty years except in very
special circumstances.
This language hardly suits retention for
purposes of departmental enquiries.
D
Mr. Justice P. B. Mukherji pointed out very appositely the
contrast between rule 56(a) and (d) of the Fundamental Rules.
Rule 56(a) corresponds to rule 75(a) but rule 56(d) opens
with the words "notwithstanding anything contained in clause
(a) ... " (of Rule 56). This shows that they cover different
situations and the matters in Rule 56(d) do not cover matters in
E Rule 56(a).
In dealing with the application of the rules the
learned Judge observed :
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"No consent of the petitioner for retaining his
service was called for or obtained. The two exp•essions
in the above order (1) "Retention in Service" and (2)
"in the interest of public service" do not on the facts
of this case mean what they say.
Here "retention in
service" means suspension from service because from
the date when he was
"retained" in service he was
suspended from service.
The other expression
"the
interest of the public service" does not mean actual
service to the public but meant only departmental
enquiry against him.
His service was extended from
time to time with a view to enable the Government to
start and conclude the departmental enquiry against
him during which the petitioner was allowed to live on
a bare subsistence allowance."
We find it sufficient to say that we agree that the retention of
Bagchi in service under rule 75(a) for the purpose of enquiry
was not proper and the extension of the service was illegal.
,,.
SUPREME COURT
REPORTS
(1966) 1 S.C.I..
We now come to the next question whether Government or
the High Court should order, initiate, and hold enquiries into the
conduct of District Judges.
This problem would not have arisen
if there wa3 no special provision for District Judges in the Constitution in Chapter VI entitled "Subordinate Courts" immediately
after Chapter V which deals with the High Courts in the States.
Chapter VI consists of five articles, Nos. 233 to 237.
The last
article in this list mere:y provides for the application of the provisions of this Chapter to Magistrates in the State as they apply
in relation to persons appointed to the Judicial Service of the
State subject, however, to such exceptions and modif:cations as
may be specified.
The expression "judicial service" is defined
in the ;irc~eding Art. 236 ( b) and it means service consisting
exclusively of persons intended to fill the post of district Judge
A
B
c
and other civil judicial posts inferior to the post
of
district
judge.
The word "district judge" is also defined in the same
article by ci. (a) and it includes, among others, an additional
district judge.
The other three articles are important and the
I>
relevant parts may he set out here :
"233. Appointment of district judges'.
(I) Appointments of persons to be, and the posting
and promotion of, district judges in any State shall be
made by the Governor of the State in consultation with
E
the High Court exercising jurisdiction in relation to such
State.
(2) .
"
~234. Recruitment of persons other
than district
judges to the judicial service.
F
Appointments of persons other than district judges
to the judicial service of a State shall be made by the
Govc'nor of the State in accordance with rules made
by him in that behalf after consultation with the State
Public Service Commission and with the High Court
exercising jurisdiction in relation to such State."
"235. Control over subordinate courts.
The control over district courts and
courts
sul>-
ordinate thereto including the posting and promotion of,
and the grant of leave to, persons belonging
to the
judicial service of a State and holding any post inferior
to the post of district judge shall be vested in the High
Court, but nothing in this article shall be construed as
H
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SfATI! v. N. N. BAGCHI (Hidayatullah, J.)
779
ta.king 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."
These articles deal with the appointments of the persons to be,
and postings and promotions of district judges and appointment,
postings and promotions of judges subordinate to the District
Judge and the control over the District Court and the courts subordinate thereto.
They also provide for special rules to be made
C by the Governor of the State after consultation with the State
Public Service Commission and the High Court exercising jurisdiction in relation to each State. This group of articles is intended
to make special provision for the judicial service of the State.
What it intends to do is, of course, the bone of contention between the parties. To understand why this special Chapter was
D necessary when there is Part XIV dealing with Services under
the Union and the States, it is necessl!ry to go into a little history
of this constitutional provision.
Before we set down briefly how
this Chapter came to be enacted outside the Part dealing with
Services and also why the articles were worded, as they are, we
may set down the corresponding provisions of the Government
E of India Act, 1935. There too a special provision was made
in respect of judicial officers but it was included as a part of
Chapter 2 of Part X which dealt with the Civil Services under
the Crown in India. The cognate sections were ss. 254 to 256
and they may be reproduced here :
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"254. District Judges, &c.
( 1) Appointments of persons to be, and the posting and promotion of, district judges in any Province
shall be made by the Governor of the Province, exercising his individual judgment, and the High Court
shall be consulted before a recommendation as to the
making of any such appointment is submitted to the
Governor.
(2) A person not already
in the service of His
Majesty shall only be eligible to be appointed a district
judge if he has been for not Jess than five years a barrister, a member of the Faculty of Advocates in Scotland,
or a pleader and is recommended by the High Court for
'
appointment.
780
SUPREME COvRT REPORTS
(1966] 1 S.C·R.
(3) In this and the next succeeding
section the
expression "district judge" includes additional district
judge,
joint
district
judge,
assistant
district
judge, chief judge of a small cause court, chief presidency magistrate, sessions judge,
additional sessions
judge, and assistant sessions judge."
255. Subordinate civil judicial service.
(I) The Governor of each Province
shall, after
consultation with the Provincial Public Service Commission and with the High Court, make rules defining the
standard of qualifications to be attained
by persons
desirous of entering the subordinate civil judicial service
of a Province.
In this section, the expression
"subordinate civil
judicial service" means a service consisting exclusively
of persons intended to fill civil judicial posts inferior to
the post of district judge.
( 2) The Provincial Public Service Commission for
each Province, after holding such examinations, if any,
as the Governor may think necessary, shall from time
to time out of the candidates for appointment to the
sub<>rdinate civil judicial secvice of the Province make
a li;t or lists of the persons whom they consider fit for
aprointment to that service, and appointments to that
service shall be made by the Governor from the persons
included in the list or lists in accordance with
such
regulations as may from time to time be made by him
as to the number of persons in the said service who
arc to belong to the
different communities in
the
Province.
( 3) The posting and promotion of, and the grant of
leave to, persons belonging
to the
subordinate civil
judicial service of a Province and holding
any post
inferior to the
post of district
judge, shall he in
the hands of the High Court, but nothing in this section
shall be construed as taking away from any such person
the right of appeal required to be given to him by the
foregoing provisions of this chapter, or as authorising
the High Court to deal with any such person otherwise
than in accordance with the conditions of his service
prescribed thereunder."
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STATE V. N. N. BAGCHI (Hidayatullah, J.)
781
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"256. Subordinate criminal magistracy.
No recommendation shall be made for the grant of
magisterial powers or of enhanced magisterial powers
to, or the withdrawal of any magisterial powers from,
any person save after consultation with the district
B
magistrate of the district in which he is working, or with
the Chief Presidency magistrate, as the case may be."
It 01ay be pointed out at once that in the present Constitution
these provisions have been lifted from the Chapter dealing with
Services in India and placed separately after
the
provisions
C relating to the High Courts of the States.
As far back as 1912 the Islington Commission stated that
the witnesses before the Commission demanded two thin gs : ( 1)
recruitment from the Bar to the superior judicial service, namely,
the District judgeship; and (2) the separation of the judiciary
D
from the
executive.
The Commission stated in its report :
"Opinion in India is much exercised on the question of the sepa·
ration of the executive and the judicial functions of the officers"
.... and observed that "to bring this about legislation would be
required".
The Commission made its report on August 14, 1915
a few days after the Government of India Act, 1915 ( 5 & 6
E
Geo. V, c. 61) was enacted. The Act did not, therefore, contain
any special provision about the judicial services in India.
The
World War I was also going on.
In 1919, Part VII-A consisting of ss. 96-B to 96-E was added in the Government of India
Act 1915. Section 96-B provided that every person in the Civil
Service of the Crown in India held office during His Majesty's
F pleasure but no person in that service might be dismissed by any
authority subordinate to that by which he was appointed. The
only section that concerns us is s. 96-B.
Sub-s. (2) of that
1ection reads as follows :
G
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" ( 2) The Secretary of State in Council may make
rules for regulating the classification of the civil service
in India, the methods of their recruitment, their conditions of service, pay and allowances, and discipline and
conduct.
Such rules may, to such extent and in respect
of such matters as may be prescribed,
delegate the
power of making rules
to the Governor-General in
Council or to local Governments,
or authorise the
Indian legislature or local legislatures to make laws
regulating the public services : "
782
SUPREME COURT REPORTS
(1966] l S.C.R.
"Administration of justice, including constitution,
powers, maintenance and organisation of civil courts
and criminal jurisdiction within the Province; subject
to legislation by the Indian legislature as regards High
Courts, Chief Courts, and Courts of Judicial Commissioners and any Courts of criminal jurisdiction''.
It would thus appear that the problem about the independence
of judicial officers, which was exercising the minds of the people
D
did not receive full attention and to all intents and purposes the
II:
Executive Government and Legislatures controlled them.
The
recommendations of the Islington Commission remained a dead
letter. When the Montague-Che'.msford enquiry took
place the
object was to find out how much share in the legislative and
executive fields could be given to Indians.
The
post of the
District hdge was previously reserved
for
Europeans.
The r
disability
regarding
Indians
was removed as a result of the
Queen's Proclamation in 1870 and
rules were framed first in
1873.
In 1875 Lord Northbrook's Government framed rules
allowing Indians to be appointed and Lord Lytton's Government
framed Rules fixing I/5th quota for the Indians. There was no
fixed principle on which Indians were appointed and the report
G
of the Public Service Commission presided over by Sir Charles
Aitchison in 1886 contains the system
followed
in
different
Provinces.
This continued down to 1919.
The
Government
of India Act had introduced Dyarchy in I,ndia and the question
of control of services in the transferred field was closely examined
when the Government of India Act, 1935 was enacted. It was
apprehended that if transference of power enabled the Ministers to
control the services, the llow of Europeans to the civil serviCCI
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STATE v. N. N. BAGCHI (Hidayatullah, ].)
78~
would become low.
Government appointed several Committees,
chief among them the MacDonnell Committee considered the
p05ition of the Europeans vis-a-vis the services.
There was more
concern about Europeans than about the independence of the
judiciary.
The Indian Statutory Commission did not deal with the subject of judicial services but the Joint Committee dealt with it in
detail.
It is interesting to know that the Secretary of State made
a preliminary statement on the subject of subordinate civil judiciary and his suggestion was "to leave to the Provincial Legislatures the general power" but to introduce in the Constitution "a
provision which would in one respect override those powers,
namely, a provision vesting in the High Courts, as part of their
administrative
authority, power to select
the individuals
for
appointment to the Civil Judicial Services, to lay down their
qualifications, and to exercise over the members of the service
the necessary administrative control." He said that "the powers
of the local Government should be "to fix the strength and pay
of the services to which the High Court would recruit" and to lay
down, if they so thought fit, any general requirements ...... ".
During the debates Marquis of Salisbury asked a question with
regard to the general powers of the High Courts and the control
over the subordinate courts.
It was :
"As I understood the Secretary of State in his statement, the control of the High Court over the Subordinate judges in civil matters has to be as complete as
possible and maintained.
Is that so ?"
The answer
was, "Yes''. (No. 7937).
The recommendations of the Joint Committee also followed
the same objective. In the report (paragraph 337 p. 201) the·
following observations were made :
"337. Necessity for securing independence of subordinate judiciary .
. . . . . . . . The Federal and High Court Judges will
be appointed by the Crown and their independence is
secure; but appointments to the Subordinate Judiciary
must necessarily be made by authorities in India who
will also exercise a certain measure of control over the
Judges after appointment, especially in the matter of
promotion and posting. We have been greatly impressed
by the mischiefs which have resulted elsewhere from a
sy~te~. und~r which. ~romotion from grade to grade in
a JUd1c1al hierarchy IS m the hands of a Minister exposed
784
SUPREME COURT REPORTS
[1966] ! S.C.R.
to pressure from members of a popularly elected Legislature.
Nothing is more likely to sap the independence
of a magistrate than the knowledge that
his
career
depends upon the favour of a Minister; and recent examples (not in India) have shown very clearly the pressure which
may be exerted
U!>On a magistracy thus
situated by men who are known, or believed, to have
the means of bringir.g influence to bear upon a Minister.
It is the Subordinate Judiciary in India who arc brought
most closely into contact with the people, and it is no
less important, perhaps indeed even more
important,
that their independence should be placed beyond question than in the case of the superior Judges.
. ..... ".
As a result, when the Government of India Act 1935 was passed
it contained special provisions (sections 254-256 already quoted)
with regard to District
Judges and the subordinate judiciary.
It will be noticed that there was no immediate attempt to put the
subordinate criminal magistracy under the High Courts but the
posting and promotion and grant of leave of persons belonging
to the subordinate judicial service of a Province was put in the
hands of High Court though there was right of appeal to any
authority named in the rules and the High Courts were asked
not to act except in accordance with the conditions of the service
prescribed by the Rules.
As regards the District
Judges the
posting and promotions of a District Judge was to be made by
the Governor of the Province exercising his individual judgment
and the High Court was to be consulted before a recommendation
to the making of such an appointment was submitted to the
Governor.
Since s. 240 of the Government of India Act, 1935
provided that a civil servant was not to be dismissed by an
authority subordinate to that which appointed him, the Governor
was also the dismissing authority.
The Government of India
Act, 1935 was silent about the control over the District Judge
and the subordinate judicial services. The administrative control
of the High Court under s. 224 over the courts subordinate to
it extended only to the enumerated topics and to superintendenca
over them.
The independence of the subordinate judiciary and
of the District Judges was thus assured to a certain extent. but
not quite.
When the Constitution was being drafted the advance made
by the 1935 Act was
unfortunately lost sight of.
The draft
Constitution made no mention of the special provisions, not even
similar to those made by the Government of India Act, 1935,
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STATE v. N. N. BAGCHI (Hidayatul/ah, !.)
785
A in respect of the subordinate judiciary. If that had remain~,
the judicial services would have come under Part XIV dealmg
with the services
in India.
An amendment, fortunately, was
accepted and led to the inclusion of Arts. 233 to 237. These
articles were not placed in the Chapter on services but immediately after the provisions in regard to the High Courts. The
B articles went a little further than the corresponding sections of
the Government of India Act. They vested the "control" of the
district courts and the courts subordinate thereto in the High
Courts and the main question is what is meant by the word
"control".
The High Court has held that the word "control"
means not only a general superintendence of the working .of the
C courts but includes disciplinary control of the presiding judges,
that is to say, the District Judge and judges subordinate to him.
It is this conclusion which is challenged before us on various
grounds.
Mr. B. Sen appearing for the West Bengal Government conn tends that the word "control" must be given a restricted meaning.
He deduces this (a) on a suggested reading of Art. 235 itself
and (b) on a comparison of the provisions of Chapter VI with
those of Part XIV of the Constitution. We shall examine these
two arguments separately as they admit of separate trea1ment.
The first contention is that "control" means only control of the
E
day to day working of the courts and emphasis is laid on the
words of Art. 235 "district courts"
and "courts subordinate
thereto".
It is pointed out that the expressions "district judge"
and "judges subordinate to him" are not used.
It is submitted
that if the incumbents were mentioned control might have meant
disciplinary control but not when the word
"court" is used.
JI
Lastly, it is contended that conditions of service are outside
"control" envisaged by Art. 235 because the conditions of service
are to be determined by the Governor in the case of the District
Judge and in the case of judges subordinate to the District Judge
by the Rules made by the Governor in that behalf after consultation with the State Public Service Commission and with the
G High Court.
We do not accept this construction.
The word "control" is
not defined in the Constitution at all.
In Part XIV which deals
~ith Services under the Union and the States the words "disciplinary control" or "disciplinary jurisdiction" have not at all been
H
used.
It is not to be thought that disciplinary jurisdiction of
services is not contemplated. In the context the word "control"
must, in our judgment, include disciplinary jurisdiction. Indeed.
LSSup.CI/65-7
786
SUPREME COURT REPORTS
[1966] l S.C.R.
the word may be said to be used as a term of art because the
Civil Services (Classification Control and Appeal) Rules used
the word "control" and the only rules which can legitimately
come under the word "control" are the Disciplinary Rules. Further, as we have already shown, the history which lies behind
the enactment of these articles indicate that "control" was vested
in the High Court to effectuate a purpose, namely, the securing
of the independence of the subordinate judiciary and unless it
included disciplinary control as well the very object would be
frustrated.
This aid to construction is admissible because to
find out the meaning of a law, recourse may legitimately be had
to the prior state of the law, the evil sought to be removed and
the process by which the law was evolved. The word "control'',
as we have seen, was used for the first time in the Constitution
and it is accompanied by the word ''vest" which is a strong word.
It shows that the High 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. Art.
227 gives to the High Court superintendence over these court•
and enables the High Court to call for returns etc.
The word
"contco!" in Art. 235 must have a different content.
Tt include•
something in addition to mere superintendence. It is control over
the conduct and discipline of the judges.
This conclusion is
further strengthened by two other indications pointing clearly in
the same direction.
The first is that the order of the High Court
is made subject to an appeal if so provided in the law regulating
the conditions of service and this necessarily indicates an order
passed in disciplinary jurisdiction.
Secondly, the words are that
the High Court shall "deal" with the judge in accordance with
his rules of service and the word "deal" also points to disciplinary
and not mere administrative jurisdiction.
Articles 233 and 235 make a mention of two distinct power,;
The first is power of appointments of persons, their postings and
promotion and the other is power of control. In the case of the
District Judges, appointments of persons to be and posting and
promotion are to be made by the Governoc but the control over
the District Judge is of the High Court. We are not impressed
by the argument that the term used is "district court" because
the rest of the article clearly indicates that the word "court" is
used compendiously to denote not only the court proper but ~lso
the presidina Judge.
The latter part of Art. 235 talks of the
man who h~lds the office.
In the case of the judicial service
subordinate to the District judge the appointment has to be made
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