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Brij Mohan Vs. High Court of Judicature of Allahabad and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ Petn. No. 7619 of 1979
Judge
Reported inAIR1985All254; [1985(51)FLR294]
ActsConstitution of India - Articles 233 and 235
AppellantBrij Mohan
RespondentHigh Court of Judicature of Allahabad and ors.
Appellant AdvocateVishnu Sahai B. Dayal and ;S.P. Gupta, Advs.
Respondent AdvocateStanding Counsel
DispositionPetition allowed
Excerpt:
constitution - powers of high court - articles 233 and 235 of constitution of india - promotion of civil judge on recommendation of high court by governor in temporary officiating capacity as civil and sessions judge - power of reversion given to the appointing authority that is governor - reversion by high court in the original post of civil judge - held, order of high court is illegal and void. - - (2) a person not already in the service of the union or of the state shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the high court for appointment......2, whereby the petitioner was reverted from the post of additional district judge to the post of civil judge. 2. the subordinate judiciary consists of two branches. the munsifs and civil judges belong to the u. p. civil (judicial) service, the additional district judges and district judges belong to the u. p. higher judicial service. appointment to the higher judicial service is made by direct recruitment from the bar and promotion from the u. p. civil (judicial) service. u. p. higher judicial service rules 1953 provided for appointment as civil and sessions judge. the u. p. higher judicial service (abolition of cadre of civil and sessions judges) rules 1974, abolished the posts of civil and sessions judges and designated all civil and sessions judges as additional district and.....
Judgment:

O.P. Saxena, J.

1. By this petition under Article 226 of the Constitution, the petitioner has prayed for a writ of certiorari quashing the order dt. 18th Aug., 1979, Annexure 2, whereby the petitioner was reverted from the post of Additional District Judge to the post of Civil Judge.

2. The subordinate judiciary consists of two branches. The Munsifs and Civil Judges belong to the U. P. Civil (Judicial) Service, The Additional District Judges and District Judges belong to the U. P. Higher Judicial Service. Appointment to the Higher Judicial Service is made by direct recruitment from the bar and promotion from the U. P. Civil (Judicial) Service. U. P. Higher Judicial Service Rules 1953 provided for appointment as Civil and Sessions Judge. The U. P. Higher Judicial Service (Abolition of Cadre of Civil and Sessions Judges) Rules 1974, abolished the posts of Civil and Sessions Judges and designated all Civil and Sessions Judges as Additional District and Sessions Judges. U. P. Higher Judicial Service Rules, 1975 provide for appointment of Additional District and Sessions Judges.

3. The petitioner was appointed Munsif on the basis of a competitive examination held by the U. P. Public Service Commission. He took over charge as Munsif Havali at Lucknow on 3rd July 1957. He was later on promoted as Civil Judge. He took over charge as Civil Judge, Agra on 8th May 1964.

4. Rule 5(1) of the U. P. Higher Judicial. Service Rules 1953 provided for recruitment to the U. P. Higher Judicial Service by promotion from U. P. Civil (Judicial) Service. Rule 13 provided the method of recruitment by promotion. Rule 19(2) provided that the Governor could make appointments in a temporary vacancy from amongst persons who are eligible for appointment to the service by promotion.

5. In 1972, the petitioner was approved for promotion as Civil and Sessions Judge. The Governor appointed the petitioner Civil and Sessions Judge, Orai, District Jalaun vide notification dated 6th July 1972. The petitioner took over charge as Civil and Sessions Judge, Orai on 10th July 1972. In 1974, the petitioner was designated as Additional District and Sessions Judge. He continued to work as such till 18th Aug. 1979, when the High Court reverted him as Civil Judge, vide order Annexure 2. The petitioner continued to work as Civil Judge until his retirement on 30th April 1984, his date of birth being 17th April 1926.

6. The petitioner has assailed the validity of the reversion order as it violated R, 26 of the U. P. Higher Judicial Service Rules 1975 and Articles 233 and 311(2) of the Constitution.

7. The respondents contested the petition on the pleas that as the petitioner was appointed a temporary Civil and Sessions Judge, he had no lien on the said post, that the petitioner was not found suitable for being approved for promotion against a substantive vacancy, that he has been, therefore, ordered to be sent back to his original post and that the impugned order does not amount to reversion in the true sense.

8. We have heard the learned counsel for the parties. Article 233 of the Constitution provides as below : --

'233(1) 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 the High Court exercising jurisdiction in relation to such State.

'(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an Advocate or a pleader and is recommended by the High Court for appointment.'

Art. 235 of the Constitution provides as below :--

'235. The control over district courts and courts subordinate 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 taking away from any such person any right of appeal which he may have under the law 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.'

9. Article 236(a) of the Constitution provides that the 'expression'. District Judge includes an 'Additional District Judge'.

10. State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447 is an authority for the proposition that the word 'control' in Article 235 of the Constitution includes 'disciplinary jurisdiction'. The High Court can hold inquiries, impose punishment other than dismissal or removal, subject, however, to the conditions of service and a right of appeal, if granted thereby. The power to appoint includes the power to impose the major punishments of dismissal, removal or reduction in rank. In the High Court of Punjab and Haryana v. State of Haryana, AIR 1975 SC 613, it was held on p. 622 para 47 : --

'The Governor has power to pass an order of dismissal, removal or termination on the recommendations of the High Court which are made in exercise of the power of control vested in the High Court. The High Court of course under this control cannot terminate the services or impose any punishment on District Judges by removal or reduction. The control over District Judges is that disciplinary proceedings are commenced by the High Court. 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 the conditions of service'.

11. The petitioner was promoted and appointed Civil and Sessions Judge on the recommendation of the High Court. The appointment was made by the Governor. The High Court was competent to make a recommendation that the petitioner was not fit to be confirmed and should be reverted. On this recommendation the Governor could have passed an order reverting the petitioner.

12. The petitioner may have had no lien on the post of Civil and Sessions Judge/ Additional District Judge as he was promoted in a temporary officiating capacity. Posting an Additional District Judge as a Civil Judge is not merely sending him back to his original post. It is a reversion pure and simple. The appointing authority i.e. the Governor alone could pass the reversion order.

13. In view of the legal position, we hold j that the order of reversion passed by the High Court is illegal and void and is liable to be quashed.

14. The writ petition is allowed and the order dt. 18th Aug. 1979, Annexure 2 reverting the petitioner as Civil Judge is quashed. The petitioner shall be deemed to have continued to hold the post of Additional District Judge till his retirement on 30th April, 1984. He will be entitled to all pay and allowances for the post of Additional District Judge less the pay and allowances already paid to him. He will be also entitled to pensionary benefits on the basis that he retired as an Additional District Judge. The respondents will complete the formalities and forward the necessary authority for payment of arrears of salary, gratuity and provident fund and pension papers to the Office of the Accountant General, Allahabad within six months from today. There will be no order as to costs.


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