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R.M. Gajjar Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 2265 of 1974
Judge
Reported inAIR1978Guj102; (1977)GLR738
ActsConstitution of India - Articles 235 and 236; ;Gujarat Civil Services (Discipline and Appeal) Rules, 1971 - Rule 23
AppellantR.M. Gajjar
RespondentState of Gujarat and ors.
Appellant Advocate S.B. Majumdar, Adv.
Respondent Advocate J.R. Nanavati, Asst. Govt. Pleader,i/b., H.M. Bhagat, Adv. ofAmbubhai Divanji & Co. and; G.N. Desai
Cases ReferredAmar Singh v. C. J. Punj
Excerpt:
service - power of high court - articles 235 and 236 of constitution of india and gujarat civil services (discipline and appeal) rules, 1971 - power of control vested in high court under article 235 - power may be exercised over judicial officer as well as ministerial officers and servants on establishment of subordinate court. - - 30, 1974,observing that it was not safe to continue persons like the delinquents who have committed a serious and grave misconduct in the service of the judicial department. 23 and as the relevant rule merely provided this review power being exercised by the authority to which an appeal against the order imposing the penalty would lie and as no such authority could be clearly spelt out in the rules, the learned single judge after considering the relevant.....j.b. mehta, ag. c.j.1. in this petition the two petitioners who were appointed as class iii employees on the establishment of the civil courts at rajpipla and jambusar, in the district of broach, by the district judge, broach, have challenged the final order of the district judge along with the order of the high court at annexures g and h as per which they have been removed from service. the petitioners had been charge-sheeted by the district judge on dec. 22. 1971, for falsely identifying three persons before the then civil judge, junior division, and judicial magistrate, f. c. savli, as per ex. a. in the disciplinary enquiry which was instituted on this charge sheet at annexure a, the petitioners had admitted the charges and prayed for mercy. the district judge by the order dated june.....
Judgment:

J.B. Mehta, Ag. C.J.

1. In this petition the two petitioners who were appointed as class III employees on the establishment of the Civil Courts at Rajpipla and Jambusar, in the District of Broach, by the District Judge, Broach, have challenged the final order of the District Judge along with the order of the High Court at Annexures G and H as per which they have been removed from service. The petitioners had been charge-sheeted by the District Judge on Dec. 22. 1971, for falsely identifying three persons before the then Civil Judge, Junior Division, and Judicial Magistrate, F. C. Savli, as per Ex. A. In the disciplinary enquiry which was instituted on this charge sheet at Annexure A, the petitioners had admitted the charges and prayed for mercy. The District Judge by the order dated June 5, 1974 at Annexure D. passed the order to withhold future promotions with permanent effect. The High Court, however, considered the punishment grossly inadequate and, therefore, under R. 23 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, hereinafter referred to as 'the rules', issued a show cause notice at Annexure E, on Sept. 6, 1974 to enhance the punishment to one of removal from service. After hearing the petitioners the High Court passed an order at Annexure G, dated Dec. 30, 1974,observing that it was not safe to continue persons like the delinquents who have committed a serious and grave misconduct in the service of the Judicial Department. The penalty imposed upon them by the competent authority being grossly inadequate, it was considered that adequate punishment looking to the serious and grave misconduct of the Petitioners could not be less than removal from service. Accordingly, the District Judge, Broach, by the order at Annexure H, in pursuance of the High Court, order has removed from Government service the two petitioners with effect from Dec. 23, 1974. It is these two orders at Annexures G and H by the High Court and by the District Judge removing the present petitioners which are challenged in this petition.

2. When the matters came up for bearing before the learned Single Judge as the question arose as to the competence of the High Court to review the penalty by exercising powers under R. 23 and as the relevant rule merely provided this review power being exercised by the authority to which an appeal against the order imposing the penalty would lie and as no such authority could be clearly spelt out in the rules, the learned Single Judge after considering the relevant provisions and the historical background of the various constitutional reforms wanted to rest the source of this power in the constitutional control of the High Court under Art. 235 consistent with which alone all these disciplinary rules could be properly read. The difficulty which, however, the learned Single Judge experienced was that a Division Bench in Ramesh C. Mashruvala v. State 16 Guj LR 277 : (1975 Lab IC 578) had in that case of the Registrar, Small Cause Court proceeded on a restricted interpretation of Article 235 as being confined only to persons in the judicial service of the State as defined in Art. 236(b) on misapprehension of the true ratio of State of West Bengal v. Nripendra Nath Bagchi's, case, : (1968)ILLJ270SC . This being the question of wide public importance as to the true interpretation of Art. 235, which embodied the cardinal principle of the independence oil judiciary, he has made this reference to this larger bench formulating the following two questions In this reference

(1) Whether the High Court on Its administrative side has jurisdiction to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate Court in exercise of the powers of review conferred by R. 23 of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971?

(2) Whether the control vested in the High Courts under Art 235 of the Constitution is exercisable only over members of the judicial service of the State as defined in Art. 236(b) or whether the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control?

3. It is true that while this reference was pending, the decision in Mashruvala's case has been set aside by their Lordships in the decision in State of Gujarat v. R. C. Mashravala, : AIR1977SC1619 . Their Lordships reversed the view an facts of the Division Bench by holding that on a true interpretation of the various provisions of the Presidency Small Cause Courts Act, 1882 the Registrar of a Small Cause Court exercised judicial powers, heard suits; passed decrees which appealable and, therefore. he was a person holding a civil judicial post inferior to the post of a District Judge and was in judicial service as defined in Art. 236(b) which means, 'a service consisting exclusively of persons intended to fill the post of District Judge and other civil Judicial posts inferior to the post of District Judge'. Therefore, their Lordships held that the Registrar inasmuch as be exercised judicial functions, was a judicial Officer in Judicial Service and clearly cam within the scope and intent of Arts, 235 and 236 because Article 235 in fact vested control in the High Court in respect of persons belonging to the judicial service of a State and holding any post inferior to the post of a District Judge. It was further pointed out that the fact that the High Court was not the appointing authority was not relevant in regard to the disciplinary jurisdiction of the High Court which was clearly vested under Art. 235, Finally at page 14, ft was held that the High Court had abdicated its own disciplinary jurisdiction. The independence of the judiciary had been emphasised by the Supreme Court In unmistakable terms in the decision in High Court of Punjab and Haryana v. State of Haryana : [1975]3SCR365 and Samsher Singh v. State of Punjab : (1974)IILLJ465SC . These decisions have proceeded only an a true interpretation of the later part of Art. 235 because Art. 235 clearly includes in this wide control after the present Constitution even persons in the judicial service- as defined in Art. 236(b). It was sufficient for their Lordships to rest their decision on this narrow ground because the Registrar having been found to be a member of the judicial service because of his judicial functions, in terms fell in the later part of Art. 235 because, of the inclusive clause. The wider question, therefore, which was assumed by the Division Bench that Art, 235 ever, in the earlier portion, when it was worded in the widest language as vesting control over the District Courts and Court, sub, ordinate thereto, would also get confined in its scope only to the persons in the judicial service was a question which still remains to be answered in the present reference. The entire catena of decisions of the Supreme Court have been only so far as inclusive later part is concerned where by the very terms of this inclusion the framers of the Constitution have clinched this question of the disciplinary control over the members of the judicial service.

4. We shall take lip first the second question, as argued by Mr. Majumdar about the true construction of Art. 235, Article 235 and the interpretation clause in Art. 236 run as under: -

'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.'

'236, In this Chapter :-

(a) the expression 'District Judge' includes Judge of a City Civil Court, Additional District Judge, Assistant District Judge, Chief Judge of a Small Cause Court. Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge;

(b) the expression 'judicial service' means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge.'

Article 235 being the constitutional provision in the context of the independence of the subordinate judiciary, the provision would have to be carefully interpreted in the light of the entire context and setting so as to give full effect to it, As pointed out In the Full Bench decision in S. H. Sheth v. Union of India : (1976)17GLR1017 , the Constitution being a revelation of great purposes which were intended to be achieved by it as a continuing instrument for the organic growth of the country all source on statutory interpretation or relevant material would have to be explored by a purposeful functional interpretation looking to the object, considering the mischief, social and historical background and the entire provision as a whole in its proper context and setting. Such an important constitutional provision could not be read in vacuo but as occurring in a single complex pragmatic organic instrument in which one part may throw light on another and. therefore, we must give due regard to all the relevant materials by exploring all the avenues for ascertaining the true legislative intention by (1) examining the historical background to identify the state of affairs existing at the time of the enactment of the provisions (2) a conspectus of the entire scheme of the provisions made, regarding the Subordinate Courts, (3.) with particular regard to the entire scheme, object and purpose underlying and as unravelled from the preamble or title, (4) scrutiny of the actual words of this provision which would have to be interpreted in the light of the established canons of interpretation, and (5) examination of the other provisions which had been relied upon as throwing light un the particular words which are the subject of interpretation in the entire context and setting. It would, thereafter be possible for us to find out whether those various avenues or approaches lead in different directions or whether they lead to an identical conclusion,

5. (A) Historical and social background and the real objective behind the provisions in Chap. VI for the independence of the subordinate judiciary and the nature of this control in Art, 235 as per the settled legal position.

The entire history of these provisions has been exhaustively examined in State of West Bengal v. Nripendra Nath Bagchi : (1968)ILLJ270SC , with a view to bringing into bold relief the necessity of enacting Part VI even though special provision was made in Part XIV with regard to services under the Union and States. It appears that in Part IX of the Government of India Act, 015, provision was made for the constitution and jurisdiction of the Indian High Courts and in S. 107 gave to the High Court superintendence over all Courts for the time being subject to its appellate jurisdiction and enumerated the things that the High Court could do. The subjects, however, did not include appointment, promotion or transfer or control of the District Judges. High Courts could only exercise over them such control as came within their power of superintendence over the Courts subordinate to their appellate jurisdiction. The Government of India Act, 1935, made certain special provisions with regard to the District Judges and the subordinate judiciary and they were to be found in Ss. 254 to 256 of the said Act. These provisions were enacted as a part of Chap. 2 of Part X, which dealt with the civil services under the Crown in India. Briefly stated, the effect of those provisions was to place in the hands of the High Court the posting, promotion and grant of leave of persons belonging to the subordinate judicial service of a Province and holding any post inferior to the post of District Judge, 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 service prescribed by the Rules. As regards the District Judges, the posting and promotion 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. The Act was silent about the control over the District Judges and the subordinate judicial service, The administrative control of the High Court under S. 224 over the Courts subordinate to it extended only to the enumerated topic and to superintendence over them. The independence of the subordinate judicial service and of the District Judges was thus assured to a certain extent. When India attained independence and the Constitution was drafted, the advance made by the 1935 Act was somehow lost sight of and no provision similar to those made in the Government of India Act, 1935, in respect of the subordinate judiciary found place in the draft Constitution. The unfortunate omission, however, attracted timely attention and consequently Chapter VI was enacted as an independent Chapter. This was said to be the history lying behind the enactment of Articles 233 to 237. About these Articles, their Lordships have held at page 453 that these Arts. 232 to 237 in Chapter V on services were not placed in the Chapter on services, but were immediately after Chapter V making the provisions in regard to the High Courts The Articles went a little further than the corresponding sections of the Government of India Act, by vesting the 'control' of the District Courts and the Courts subordinate thereto in the High Courts. Therefore the term 'control' was interpreted in the light of this relevant history behind enactment of these Articles which indicated that the '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. Looking to the prior, state of the law the evil sought to be re moved and the process by which the law was evolved, it was held that the word 'control' when accompanied with the word 'vest' clearly shows that the High Court is made the sole custodian of the control over the Judiciary. Control, therefore, was not merely the power to arrange the day-to-day working of the Court but contemplated disciplinary jurisdiction over the Presiding Judge, Art. 227 gave, to the High Court superintendence over those Courts, while control under Art. 235 had a different content which included something in addition to mere superintendence. It was in terms held to be control over the conduct and discipline of the Judges. It was pointed out that this conclusion was further strengthened by two other indications pointing clearly in the same directions. The first is that the order of the High Court was made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicated 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 pointed to disciplinary and not mere administrative jurisdiction Further proceeding at page 454 it was pointed out that control was useless if it was not accompanied by disciplinary powers and it was emphasised that the High Court could not be expected to run to the Government or the Governor in such disciplinary matters. It was, therefore, emphasised that them articles went to show that by vesting 'control', in the High Court the independence of the subordinate judiciary was in view. This was the trend which is prevalent since 1935 Act and which had been given full effect by the drafters of the present Constitution. This construction was said to be in accord with the Directive Mandate in Art. 50 of the Constitution that the State shall take steps to separate the judiciary from the executive in the public services of the State, it should also be kept in mind that the question before their Lordships was the converse question than the one before us as to whether the control in Art. 235 over the District Courts and the Courts subordinate thereto ewers also the control over the District Judges. That 2s why at pap 453 it was in terms held:-

'We are not Impressed by the argument that the word 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 also the Presiding Judge. 'The latter part of Art. 235 talks of the man who holds the office.' In the case of the judicial service subordinate to the District Judge the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of posting, promotion and grant of leave and the control of the Courts are vested in the High Court'

6. The historical perspective which has been examined in this decision reveals the great purpose which was to be achieved by vesting this control in the High Court of securing of independence of the subordinate judiciary which would be completely defeated without the disciplinary, control, and also to successfully implement the Directive Mandate of Art. 50 of a complete separation of the judiciary from the executive. The true setting and context or the purpose of Art. 235 was to make the determined advance in this direction by special provision in Chap. V1 for the subordinate Courts and the Judicial services. The previous control which existed by way of administrative superintendence ever the Courts subject to the appellate jurisdiction of the High Court was thus sought to be finally extended by vesting specifically even the disciplinary control both over the Courts and the persons in the judicial service in the High Court, to advance those ends of the independent judiciary and to implement the Directive Mandate of complete separation of judicial from the executive. In the next decision in Chandra Mohan v State of U. P., AIR 1966 SC 1987, it is held that to secure independence of the judiciary hum the executive, the Constitution has introduced this group of articles in Chap. VI under the heading 'Subordinate Courts'. At the time when the Constitution was enacted, in most of the States, the magistracy was under the direct control of the executive and there was a strong agitation that the judiciary should be separated from the executive for, unless that was done, the independence of the judiciary at the lower levels would be, a mockery. So Art. 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public service of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control. It is against this historical background and the policy of the Constitution that the provisions in Chapter VI and, in particular Art. 235, are required to be examined for ascertaining its true meaning. We should also bear in mind the entire catena of decisions which has examined the scope and ambit of the wide power of this control not only as regards the three enumerated topics included in the latter part of Art, 235 i.e. posting, promotion and grant of leave, but in the entire spectrum of administrative control as pointed out by no in S. H. Sheth v. Union of India. : (1976)17GLR1017 as under: -

'It is not confined merely to administrative jurisdiction or to general superintendence or to arranging the day to day work of the Court but it comprehends control over the conduct and discipline of District Judges. (State of West Bengal v. Nripendra Nath Bagchi : (1968)ILLJ270SC ; their further promotions and confirmations (State of Assam Y. Kuseswar : [1970]2SCR928 and Joginder Math v. Union of India : [1975]2SCR553 ); their seniority, disputes (State of Bihar v. Madan Mohan : (1976)ILLJ288SC ; their transfers (State of Assam v. Ranga Muhammad : (1968)ILLJ282SC ; the placing of their services at the disposal of the Government for an ex-cadre, post (State of Orissa v. Sudhansu Sekhar Misra : (1970)ILLJ662SC , considering their fitness for being retained in service and recommending their discharge from service (Ram Gopal v. State of Madhya Pradesh AIR 1970 SC SC 158); exercise of complete disciplinary jurisdiction ever them including initiation of the inquiry, (Punjab and Haryana High Court v. State of Haryana : [1975]3SCR365 and in the matter of premature retirement (State of Haryana v. Inder Prakash, AIR 197ca SC 1841).'

The scope and ambit of the power conferred on the Governor under Art. 233 which was exercisable an the advice of the Council of Ministers in consultation with the High Court had been confined in this catena of decisions to the initial appointment or initial promotion of persons to be District Judges and to their assignment to a post in the said cadre and to the removal or dismissal of such persons. Therefore, it was held in S. H. Sheth's case that the power of the Governor under Art. 233(c) ceased after he had made the initial appointment or initial promotion and assignment to a post in the cadre and thereafter he came into the picture again only in the case of dismissal or removal on the conclusion of the enquiry initiated by the High Court, when the final order was to be passed or actual reduction in rank or dismissal had to be done by the Governor and not by the High Court, as held in Baradakanta Mishra v. Orissa High Court : AIR1976SC1899 . In these matters of control, it was pointed out that the Government would have to act on the recor6mendation of the High Court which was the broad basis of Art. 235. In Samsher Singh v. State of Punjab : (1974)IILLJ465SC and State of Haryana v. Inder Prakash : AIR1976SC1841 , it was held that the vesting of complete control over the subordinate judiciary in the High Court led to this that the decision of the High Court in matters within its jurisdiction will bind the State. That of is why this wide ambit power conferred under Art. 235 in its opening part is held not to be curtailed even by concluding portion of the said Article, except to the extent therein specified and even if some rules framed under Art. 309 impinged upon the power of control, those rules had to be held ultra vires. (State of Assam v. S. N. Sen : [1972]2SCR251 at p. 1030).

7. In Samsher Singh's case : (1974)IILLJ465SC the learned Chief Justice considered it as an act of complete self abnegation by the High Court to hold an enquiry over the member of subordinate judiciary through the Director of Vigilance because not only the members were under the control of the High Court but they were. also under the care and custody of the High Court. The members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. Even His Lordship Iyer, J. made the pertinent observation as under (at page 2230, para 155) : -

'The second spinal issue in the case, as earlier indicated. bears on fearless justice, another prominent creed of our Constitution. The independence of the Judiciary is a fighting faith of our founding document. Since the days of Lord Coke, Judicial independence from executive control has been accomplished in England. The framers of our Constitution, impressed by this example, have fortified the cherished value of the rule of law by incorporating provisions to insulate the judicature. Justice becomes fair and free only if institutional immunity and autonomy are guaranteed (of course there are other dimensions to Judicial independence which are important but irrelevant for the present discussion). The exclusion of executive interference with the subordinate judiciary, i.e. grass-roots justice, can prove a teasing illusion if the control over them is vested in two matters, viz. the High Court and the Government, the latter being otherwise stronger. Sometimes a transfer could also be more harmful than punishment and disciplinary control by the High Court can also be stultified by an appellate jurisdiction being vested in Government over the High Court's administrative orders. This constitutional perspective informed the framers of' our Constitution when they enacted the relevant Arts. 233 to 237. Any interpretation of administrative jurisdiction of the High Court over its subordinate limbs must be aglow with the thought that separation of the Executive from the Judiciary is a cardinal principle of our Constitution.'

One more decision which concludes this line of decisions is Baldev Raj v. Punjab and Haryana High Court : [1977]1SCR425 , where their Lordships in terms held at p. 2496 that the inner significance of the constitutional provisions relating to the subordinate judiciary was that in this context of recommendation of disciplinary action of the High Court in respect of judicial officers they should always be accepted by the Governor and it, was inconceivable that without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court contrary to the contemplation in the Constitution. Even regarding the recommendation of the Public Service Commission where it is necessary under Art. 320(3)(c) in respect of judicial officers unlike the case in our State where the 1960 regulations did not provide the necessity of such recommendation for judicial officers, Their Lordships pointed out that on a parity of decisions in Pradyat Kumar Bose v. Hon'ble the Chief Justice of Calcutta High Court : [1955]2SCR1331 , the advice should be of no other authority than the High Court in the matter of judicial officers. This was the plain implication of Art. 235. as judicial officers were not serving under the State Government, To give any other interpretation to Art. 320(3)(c) would be to defeat the supreme object underlying Art, 235 of the Constitution specially intended for protection of the judicial officers and necessarily the independence of the subordinate judiciary. It was emphasised that it was absolutely clear that the Governor could not consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There was no room for any outside body between the Governor and the High Court. Therefore, the aforesaid catena of decisions brings out in bold relief the supreme purpose of Art. 235 as a constitutional Charter of the independence of the subordinate judiciary which in such control matters is so widely interpreted that the whole control. would exclusively vest only in the High Court and there would be no room for any outside body, even the Governor or Public Service Commission to have their say, and it was with that object in view that the subordinate Courts and persons in judicial service have been taken out from the general Chap. XIV of services and have been specially put up in Chap. V1, immediately after the High Court in Chap. V.

8. (B) Preamble, title of the provision and the true construction of Art. 235. Even the preamble or title which unravels the meaning of these salutary provisions of Chapter VI is eloquent as it mentions 'Subordinate Courts' and as even the heading for Art. 235 is 'Control over Subordinate Courts'. A bare perusal of Art. 35 emphasises that the provision is of widest control over 'District Courts and Courts Subordinate thereto', and the width of this control is measured by the inclusive clause, where not only three specific topics are enumerated, of posting, promotion and grant of leave, but specific mention is made of the entire class of judicial officers i.e. of the persons of the subordinate judicial service and holding any post inferior to the post of District Judge, so that all doubt is finally settled as to the width of this inclusion. Article 236(b) defines judicial service as a service consisting exclusively of persons intended to fill the post of District Judge as widely defined in Article 236(a), and other civil judicial posts inferior to the post of District Judge. Therefore, the wide inclusion of judicial officers had initially a limited operation only to the subordinate civil judiciary, because the Directive Mandate of complete separation of judiciary from the executive could only be implemented gradually, and that is why Art. 237 in terms provides that the provisions of this Chap. VI could be applied by public notification by the Governor in relation to any class or classes of Magistrates in the State as they applied to persons of the judicial service. Such notifications have been issued in our State. So that exclusion of Magistrates also does not remain. It was to emphasise this wide inclusion even of the judicial officers that the latter part of Art. 235 had been so enacted that on such extension even class of Magistrates would be included. On no statutory principle of construction, therefore, this Article should be rewritten by recasting the opening part as if it was merely: 'the control over persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge (including the posting and promotion of and the grant of leaves to such persons) because that would be rendering otiose the entire opening clause of Art. 235, whose import is emphasised both in the preamble of the Chapter and in the title of this Article to unravel its true meaning and by deliberate change of language from the earlier Ss. 254-256 of the Government of India Act, 1935. On no settled principle of construction a constitutional provision can be so interpreted as to render these opening words 'control over the District Courts and Courts subordinate thereto' mere surplus age or to render substantial portion thereof as otiose, except for compelling reasons. Redundancy is not a fault which could ever be attributed to our founding Fathers, and still if we confine this Art. 235 only to control over judicial officers belonging to the judicial service as defined in Article 236(b), this result would be reached. Even the constitutional history of the earlier provisions in Ss. 254 to 256, where only three topics of control, posting, promotion and leave to only the members of the subordinate civil Judiciary had been mentioned, would clinch the issue that the change in language of the opening part of Art. 235 by the founding Fathers in the final draft was deliberate to leave no room for doubt that the control was not only over Courts proper in the compendious sense of its whole organism, but also the members of the judicial service defined in Art. 236(b) and that too in the widest sense, not limited to three enumerated topics in this later inclusive part. Therefore, on a plain grammatical construction keeping in our mind the constitutional behest of securing independence of judiciary and the direction of growth envisaged in Art. 50 of complete separation of judiciary from the executive, the whole purpose would be frustrated if the disciplinary control cannot be exercised over the entire Subordinate Courts, including the administrative staff, which was always treated as pointed out in Bagchi's case as historically inhering even in the limited administrative superintendence or control over the District Court and Courts subordinate thereto. Any other interpretation would be wholly destructive of the harmonious, efficient and effective working of the Subordinate Courts, if the High Court would be denuded of powers of control over the other administrative functionaries and ministerial staff of the District Court and the Subordinate Courts other than judicial officers. The Courts are institutions or organisms where all the limbs complete the whole Court and when the constitutional provision of control in Art. 235 is of such wide amplitude to cover both the Courts and persons belonging to the judicial service there would be no reason to exclude from the scope of control all the other limbs of the Court, namely, administrative functionaries and ministerial staff of its establishment. Limitation may, of course, come in because of the concluding part as the persons concerned have a guarantee of the right of appeal under the law regulating conditions of service and because the High Court is also required to deal with them not otherwise than in accordance with the conditions of service prescribed under such law. Therefore, if these functionaries and ministerial staff have been appointed by the District Judge as defined in Art. 236(a), the disciplinary authority who would initiate the enquiry would not be the District Judge, and the controlling jurisdiction would be of the original character but the appellate or revisional or review jurisdiction in accordance with the relevant conduct and discipline rules or when the High Court is appointing authority, such controlling Jurisdiction may also be original disciplinary jurisdiction where the High Court itself would have to initiate the enquiry. That would be beside the point, for resolving the present question as to whether this wide Art. 235 which covers both within its ambit of control, the District Courts and Courts subordinate to as well as persons of the judicial service, manning this Court, should be limited only to the later category against all canons of statutory construction. Nothing compelling in the context is indicated for adopting such a construction which would defeat the whole purpose of this wide clause and the purpose intended to be secured by this salutary, control jurisdiction.

9. (C) Conspectus of other provisions and light that could be had from them and from the entire context and setting. Nothing compelling in the context is shown to give the limited construction to this wide constitutional control measure in Art. 235 so as to confine it only to the judicial officers i.e. the members of the judicial service. It is true that other Arts. 233 to 237 in this Chapter. which deal with appointments are so confined, and the interpretation clauses in Art. 236(b) so defines even such judicial service, with its , further extension after a public notification even to Magistrate class, so that that class of Magistrates even as per the evolutionary mandate of Art. 50 gets completely assimilated with the civil judicial service. That, however, does not compel this limitation to be introduced in the whole of Art. 235, which on its own warding has a totally wide context both of Courts as well as persons of judicial service, in the limited or extended sense, dependent on the issuance of the notification under Art. 235. To narrow down the clear words of this Art. 235, by reference to these other Articles in Chap. VI which apply in their context only to the members of the judicial service is against all canons of construction, and is tantamount to rewriting-Art. 235, forgetting its past history and the reasons why this change phraseology was adopted by the founding fathers from the existing pattern under the Government of India Act, 1935 in cerresponding Ss. 254, 255 and 256, which only mentioned members of judicial ser vice and enumerated only three matters of posting, promotion and leave to. As explained in Bagchi's case : (1968)ILLJ270SC this is - to reverse the determined trend prevailing in this direction by'fur ther extension by advisedly using this wide expression 'control over the Dis trict Courts and Courts subordinate thereto', in the final draft, along -with taking out these provisions in Chap. VI from the Services Chap. XIV and placing them immediately after the High Court in chap. V.

10. This is further borne out on consideration of even some of the provisions in Chap. V relating to the High Court. Under Art. 229 the Chief Justice has been put in the control of the administrative staff, including even the power of appointment and dismissal etc. and the prescription of their conditions of service, except in financial matters. Therefore, it would be unreasonable to conclude that the High Court itself, or and through other presiding officers of the Subordinate Courts would be denuded of the powers of control over the ministerial staff. Besides, under Art. 225, the existing jurisdiction, administrative or otherwise which would be exercised by the High Court is preserved and even under Art. 227, the superintendence is both administrative and judicial over the Subordinate Courts, even after the said Article is truncated in the present 42nd Constitutional Amendment Package, because of the words 'generality in Art. 227(2) without prejudice to the quality of the foregoing provisions', as explained in Waryarn Singh v. Amarnath : [1954]1SCR565 , even when now the limitation similar to the original S. 224(2) in the Government of India Act, 1935, is reintroduced by way of sub-clause (5) to Art. 227 in Baradakanta Mishra v. Registrar, Orissa High Court : 1974CriLJ631 , at pp. 720-722, the entire administrative jurisdiction is held to be consistently regarded by statutes as functions in the administration of justice. It is held:

'The Presiding Judge of a Court embodies in himself the Court, and when engaged in the task of administering justice is assisted by a complement of clerks and ministerial officers whose duty it is to protect and maintain the records, prepare the writs, serve the processes etc. The acts in which they are engaged are acts in aid of administration of justice by the Presiding Judge. The power of appointment of clerks and ministerial officers involves administrative control by the Presiding Judge over them and though such control is described as administrative to distinguish it from the duties of a Judge sitting in the seat of justice, such control is exercised by the Judge as a Judge in the course of judicial administration. Judicial administration is an integrated function of the Judge and cannot suffer any dissection so far as maintenance of high standards of rectitude in judicial administration is concerned. The whole set up of a Court is for the purpose of administration of justice, and the control which the Judge exercises over its assistants has also the object of maintaining the purity of administration of justice, These observations apply to all Courts of Justice in the land whether they are regarded as superior or inferior courts of justice.'

Again, further proceeding at p. 721 :

'In a country which has a hierarchy of Courts one above the other, it is usual to find that the one which is above is entrusted with disciplinary control over the one below it. Such control is devised with a view to ensure that the lower Court functions properly in its judicial administration. A Judge can foul judicial administration by misdemeanour while engaged in the exercise of the functions of a Judge. It is, therefore, as important for the superior Court to be vigilant about the conduct and behaviour of the Subordinate Judge as a Judge, as it is to administer the law, because both functions are essential for administration of justice. The Judge of the superior Court in whom this disciplinary control is vested functions as much as a Judge in such matters as when he hears and disposes of cases before him. The procedures may, be different. The place where he sits may be different. But the powers are exercised in both instances in due course of judicial administration. If superior Courts neglect to discipline Subordinate Courts, they will fail in an essential function of judicial administration and bring the whole administration of justice into contempt of disrepute.'

Thereafter provisions in clause 9 of the Letters Patent of various High Courts and in S. 9 of the High Courts Act, 1861, and S. 106 of the Government of India Act, 1935 were referred to as showing that :-...... several jurisdictions of the High Court and all their powers and authority are in 'relation to the administration of justice including powers to clerks and other ministerial officers of the Court.'

'Section 223 of the Government of India Act, 1935 preserves the jurisdictions of the existing High Courts and the respective powers of the Judges thereof in relation to the administration Of justice in the Courts. Section 224 of that Act declares that the High Court shall have superintendence over an Courts in India for the time being subject to its appellate jurisdiction and this superintendence, it is now settled, extends both to administrative and judicial functions of the subordinate courts, When we come to our Constitution we find that whereas Arts. 225 and 227 preserve and to some extent extend these powers in relation to administration of justice, Art. 235 vests in the High Court the control over District Courts and Courts Subordinate thereto in the State of West Bengal v, Nripendra Nath Bagchi. AIR 1966 SC 447, this Court has Pointed out the control under Art. 235 is control over the conduct and discipline of the Judge. That is a function which, as we have already seen, is undoubtedly connected with administration of justice The disciplinary control over the misdemeanours of the subordinate judiciary in their judicial administration is a function which the., High courts must exercise in the interest of administration of justice. It is a function which is essential for the administration of justice in the wide connotation it has received and therefore, when the High Court functions in a disciplinary capacity, it only does so in furtherance of administration of justice.

We thus reach the conclusion that the Courts of justice in a State from the highest to, the lowest are by their constitution entrusted with functions directly connected with the administration of justice, and it is the expectation and confidence of all those who have or likely to have business therein. that the Courts perform all their functions an a high level of rectitude without fear or favour, affection or ill-will.

This extensive quotation brings out in bold relief how compelling is this context of Judges of superior Courts exercising their disciplinary administrative control over the lower Courts personnel, as well as other functionaries and the ministerial staff, so much so that any neglect in this essential function would bring the whole judicial administration of justice into contempt and disrepute. Such jurisdiction over the clerks and ministerial staff was always from the beginning vesting in the High Court and Arts 225 and 227 were held to have preserved that jurisdiction and to some extent extended the same Article 235 was held to take this control over the conduct and discipline of the Judges as well. Therefore, if the power off superintendence over all Courts by way of administrative control, in this compelling context is so wide as to take in both the Courts and other administrative functionaries or ministerial staff who are all various limbs to complete the whole organism called 'courts', equally this control in Art. 235 must extend both to the Judges as well as the whole Courts, when the same language is, advisedly used at the time of the final draft by the opening words in Art. 235.

11. Therefore, all these statutory resources lead to an inevitable conclusion as to the legislative intention being clearly to use the term 'Court' compendiously in Art. 235 to cover not only those judicial officers specifically included in the later part i.e. members of the judicial service, but even, other administrative functionaries or, ministerial staff of the Court as well.

12. What appeals to us on sound canons of construction or on principle is borne out even by the decisions as to the meaning to be given to the term 'Court' in Art. 235. In Bagchi's case, when the question arose in the converse context when the District Judge had contended that the control being over the Courts, it could not be exercised over Judges, the categorical answer was 'the Court is used compendiously to denote not only the Court proper but also the Presiding Judge. The latter part of Art. 235 talks of the man who holds the office.' It should be borne in mind that in Bagehi's case : (1968)ILLJ270SC , the original Full Bench decision of the Calcutta High Court in : (1961)IILLJ312Cal had already approved in that decision the earlier decision in Mahomed Ghouse v. State of A. P. : AIR1959AP497 , holding that the word 'Court' occurring in Art. 235 must be interpreted as including 'not only the person presiding over that Court but also all the functionaries of that Court and any matters pertaining thereto.' Therefore, when the Supreme Court gave this interpretation of the later part of Art. 235 on the basis that the Presiding Judges were also included, it must be treated as a settled interpretation of the term 'Court' as being used compendiously in the widest sense by not being confined only to the Presiding Judge but also as including other functionaries and ministerial staff. This is the view taken even by the Full Bench of the Punjab and Haryana High Court in Amar Singh v. C. J. Punj & Har High Court, , that, 'the control vested in the High Court squarely extends to the Presiding Officers and also to functionaries and ministerial staff attached to the District Courts and the Courts subordinate thereto.' The Full Bench in a well considered judgment, with which. we are in complete agreement, negatived the very contention in the context of such clerical staff by holding that Art, 235 was not confined or limited only to the members of the subordinate judicial service oi the State, as any other view would lead to the fault of redundancy and surplusage and would defeat the whole purpose of enactment of Art. 235. Both on principle and authority, we must, therefore, answer the second question by holding that the control vested in the High Courts under Art. 235) of the, Constitution is exercisable not only over members of the judicial service of the State as defined under Art, 236(b) but even the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control.

13. Now turning to the first question, the answer is obvious as it is categorically laid down in State of Assam v, S. N. Sen : [1972]2SCR251 at p. 1030 as earlier pointed out that this wide ambit of power conferred under Art. 235, the opening part was held not to be curtailed down even by the concluding portion of the said Article except to the extent therein specified, and even if some rule framed under Art. 309 impinged upon the power of control, such rule was held to be ultra vires. Therefore, every attempt will have to be made to read down such rules to make them intra vires as not impinging upon the wide Constitutional control under Art. 235 by holding that such rules, laying down procedure for dealing with the delinquent and his right of appeal, could not lay down any authority other than the High Court. As per the settled legal position, out of the three competent authorities in the field, neither the State nor the Public Service Commission would have any jurisdiction so far as disciplinary matters or control matters falling under Art. 235 are concerned, where the jurisdiction of the High Court is exclusive. As per the settled legal position, no such outside authority could have any voice even if the rules are silent as to the authority to whom the appeal would lie in such control matters or even if the rule provides some other outside authority for such appeal or review as in R. 22 or by making the decision of the Government final under R. 28. Such omission would have to be filled or the language of the rules suitably modified so that the rule is read down consistently with this Art. 235 by vesting this power only in the High Court. Therefore, the authority to whom the appeal lies over the District Judge would be both in view of the administrative or disciplinary control under Arts. 225, 227 and 235 as per the settled legal position, only the High Court which alone can, exercise this jurisdiction under R. 23 to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the sub-ordinate Courts in exercise of powers of review under that rule, because under R. 23 this review power in disciplinary cases, is to be exercised by the authority to which the ,appeal against the order on any of the penalties of R. 6 lies. Under R. 1 (c) all civil servants are governed by the Gujarat Civil Services (Discipline and Appeal) Rules, 1971. The petitioners would be governed by these rules. Under R. 2 (f) words and expressions used but not defined in these rules shall have the meanings assigned to them in the Bombay Civil Services Rules, 1959, or in the rules relating to the recruitment and classification of services for the time being in force. Rule 6 defines various penalties - minor and major. Rule 7 deals with the disciplinary authority, under R. 7 (1) the Government may impose any of the minor penalties specified in items (1) and (2) of R. 6 on any Government servant; while under R. 7 (2) without prejudice to the provisions of sub-r. (1) the Head of the Department may impose any of the minor penalties specified in items (1) and (2) of R. 6 on any Government servant of State Service, Class II, under his administrative control. Under R. 7 (3) without prejudice to the provisions of sub-rr. (1) and (2). Heads of Departments and Heads of offices may impose any of the penalties mentioned in R. 6 upon any Government servant of subordinate services serving under them whom they have power to appoint. The District Judge being the authority with power to appoint the petitioners, he could take the disciplinary action as a disciplinary authority. Rule 8 gives further authority to the Government or any other authority empowered by the disciplinary authority to institute a disciplinary proceeding on whom he is competent to impose any of the penalties specified in R. 6. Under R. 18 appealable orders are provided where appeal lies at the instance of the Government servant and in such appeals in the procedure which is prescribed in the subsequent rules. R. 21 provides in clause (d) that where the penalty imposed is excessive adequate or inadequate, after consultation with the Commission, if such consultation is necessary in the case, the appellate authority can pass orders (i) setting aside, reducing, confirming or enhancing the penalty, provided that (i) the appellate authority shall not so enhance the penalty as to inflict a penalty which neither such authority nor the authority which made the order appealed against is competent to impose in the case under appeal; (ii) and no order for enhancing the penalty shall be passed unless the- appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty. Rule 22 gives the Government a power to review notwithstanding anything contained in these rules. Rule 23 is the material provision in the present case of review of orders:

'23. Review of orders in disciplinary cases:-The authority to which an appeal against an order imposing any of the penalties specified in R. 6 lies may, of its own motion or otherwise, call for the record of any proceeding under these rules and review any order passed in such a case and may, after consultation with the Commission where such consultation is necessary, pass such orders as it deems fit as if the Government servant had preferred an appeal against such order.

Provided that no action under this rule shall be taken after the expiry of a period of more than six months from the date of such order.'

Rule 28 provides for removal of doubts as under:-

'28. Removal of doubts: - Where a doubt arises as to who is the Head of any office or as to whether any authority is subordinate to or higher than any other authority or as to the interpretation of any of the provisions of these rules, the matter shall be referred to the, Government whose decision thereon shall be final.'

It is in the context of these rules and particularly R. 23 that we have to consider the question as to whether the High Court would be the authority to which the appeal against the order imposing penalty specified in R. 6 would he, when that order is passed by the District Judge. As the rules are silent as to the authority for the purposes of R. 23, the learned single Judge in view of R. 2 (f) tried to trace the entire historical background by reference to the Bombay Civil Services Rules, 1959 and the recruitment rules known as the 'establishment rules' under the Civil Court Manual. In fact, under S. 9 of the Bombay Civil Courts Act, 1869, the District Judge shall have the general control over all the Civil Courts, and their establishments within the district and the District Judge shall also refer to the High Court all such matters which appear to him to require that a rule of that Court should be made thereon. Under S. 10, the District Judge shall obey all writs, orders or processes issued to him by the High Court, and shall make such returns or reports thereto under his signature. Section 38 which is material provides as under:-

'All ministerial officers of the Civil Courts in each District shall be appointed, and may be fined, suspended or dismissed, by the District Judge, subject to such rules as the High Court may from time to time prescribe.

Provided that the Judge of every Subordinate Court may, subject to the like rules, appoint the ministerial officers of such Court, whose salaries do not exceed Rs. 10 per mensem, and may by order fine, suspend or dismiss any ministerial officer of such Court who is guilty of any misconduct or neglect in the performance of the duties of his office.

Every such order shall be Subject to appeal to the District Judge; and the rules for the time being applicable to appeals to the Court of Session from orders of the Criminal Courts subordinate thereto shall apply to all appeals under this section.'

Section 39 enabled the High Court to prescribe rules for the duties of the ministerial officers. Therefore the High Court of Bombay could frame rules relating to the ministerial staff under,- Ss. 9 and 38 of the Bombay Civil Courts Act, 1869 and these rules were included in the Civil Manual published in 1940. Under S. 107 of the Government of India Act, 1915, the High Court was given superintendence power over all Courts for the time being subject to the appellate jurisdiction of the High Court and the High Court may call for returns and make and issue general rules. Therefore, in the Civil Manual, Volume I, 1940, Edition, in Chapter XIV under the heading 'Establishments', the first rule in terms mentioned that S. 38 having been repealed on coming into force of the 1935 Act from April 1, 1937, the appointment of ministerial officers is now governed by S. 242 of the Government of India Act. 1935, which appeared to have been mentioned by mistake in place of S. 224, for the former in clause (3) dealt with only appointment of staff attached to the High Court and for the appointment of the subordinate judicial service the provisions were made in Ss. 253 to 256 and the administrative superintendence was under S. 224 corresponding to old S. 107 really. In fact, after Baradakanta's case : AIR1976SC1899 , it would be hardly necessary to go into this detailed history of these establishment rules because the District Court had control over that staff and had also the power of appointment under the repealed S. 38, which had now come by way of administrative superintendence of the High Court in view of the Constitutional changes. Therefore, even though the B. C. S. Rules, 1959 .. or the Establishment Manual Rules whether in 1940 or 1960, edition, did not give a clear clue as to the authority to whom the appeals would lie, in view of the fact that the High Court has administrative superintendence and now the constitutional control over the District Courts and the Subordinate Courts, it is obvious that the High Court is that authority, when rules are silent or when the language of the rules has to be modified to make it consistent with the administrative superintendence or the control jurisdiction of the High Court under the Constitution. Mr. Majmundar however, vehemently argued that the 1971 rules could not apply to judiciary at all, This could not be accepted in view of the categorical language of R. 1 (c) that the rules shall apply to all persons appointed to civil services and posts of the State. Merely because Government is mentioned or the Head of the Department in R. 6 as the disciplinary authority and the High Court is not specifically mentioned, these benevolent rules, prescribing the conditions of service as to how the Government servant shall be dealt with and also his rights of appeal, could not be construed so as, to exclude the administrative and ministerial staff of the Courts. It was really a contention of despair which could not be urged because the Constitution being the ground-norm, it must always prevail and these rules must conform to the Constitutional Mandate, rules like 22, 28 notwithstanding.

14. Mr. Majmundar next argued that under Rule 8 the Government is directed to institute a disciplinary proceeding, That is a complete misreading because that is an additional power possessed by the Government or other authority empowered by it by general or special order to direct the authority to institute disciplinary proceedings against a Government servant. when the disciplinary authority is not exercising jurisdiction under Rule 7. Besides, the Government having been so prescribed as the authority for disciplinary control could not come in the way of the High Court exercising its constitutional powers of administrative superintendence or control jurisdiction, so long as the procedural rules are complied with. The term 'Government' whenever used anywhere in these rules would have to be modified in the disciplinary control context so as to conform to the constitutional mandate as only High Court would have jurisdiction and no other authority like the Public Service Commission or the Government would have any say in the matter of the disciplinary control over the Courts. Finally, Mr. Majmundar argued that there is intrinsic evidence in R. 23 because review power has to be exercised in consultation with the Commission and the order has to be passed as if the Government servant had preferred an appeal. If the Government servant had appealed, no order can be passed against the Government servant. This argument is equally misconceived because in Government servant's appeal even R. 21 provides in clause (d) for enhancing the penalty, as per the two limitations provided for in the proviso. The Public Service Commission is to come in where its consultation is necessary and that also, as earlier pointed out, would not come in when the Controlling jurisdiction is of the High Court, The only question in such cases is whether it is the original control jurisdiction or appellate or review jurisdiction, which would depend on the terms of the rules in question. Therefore, even on the first question we cannot agree with Mr. Majmundar that R. 23 could not be invoked by the High Court on its administrative side to exercise its jurisdiction to enhance the penalty imposed by the District Judge upon members of the ministerial staff.

15. Therefore, this Reference must be disposed of by answering the two questions posed by the learned Single Judge as under:-

(1) That the High Court on its administrative side had jurisdiction to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the Subordinate Court in exercise of the powers of review conferred by R. 23 of the Gujarat Civil Services (Discipline and Appeal), Rules. 1971;

(2) That the control vested in the High Court under Art. 235 of the Constitution is exercisable not only over the members of the judicial service of the State as defined in Art. 236(b), but the ministerial officers and servants on the establishment of the Subordinate Courts are also ultimately subject to such control.

The Reference is accordingly disposed of with no order as to costs in the circumstances of the case, and, the matter shall now go before the learned Single Judge for disposal in the light of the aforesaid answers.

16. Mr. Majmundar asked for a certificate under Arts. 132 and 133(1). Without going into the question whether this is a final judgment in this particular matter, we have followed only the settled interpretation of Arts. 235 and 236 as per the various decisions relied on by us and therefore, we do not find any substantial question of law of any general importance involved in this matter which could be certified as fit for appeal to the Supreme Court. The request is, therefore, summarily rejected.

17. Reference answered accordingly.


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