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PETITIONER: SMT. BEENA TIWARI & ANR. ETC.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ANR. ETC.

DATE OF JUDGMENT18/12/1987

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) MISRA RANGNATH

CITATION:  1988 AIR  488            1988 SCR  (2) 492  1988 SCC  Supl.  213     JT 1987 (4)   686  1987 SCALE  (2)1371

ACT:      Madhya Pradesh Government Servants (Temporary and Quasi Permanent) Service  Rules, 1960:  Sections 3A and 12-Whether Section  33-A  applicable  to  members  of  the  Subordinate Judicial Service.      Madhya   Pradesh   Judicial   Service   (Classification Requirement &  Conditions of  Service) Rules, 1955: Rule l6- Civil Judges-Appointed  on temporary  and officiating basis- Confirmahon of-Sole concern of the High Court under Art. 235 of the Constitution of India.

HEADNOTE: %      The appellants in C.A. Nos. 59 and 60 of 1982, who were appointed as Civil Judges on temporary and officiating basis on probation,  were not  confirmed after  the expiry  of the period of probation or the extended period of probation, and their services were terminated by the State Government under Rule 12 of the Madhya Pradesh Government Services (Temporary and Quasi-Permanent  Service) Rules,  1960. They  filed writ petitions before  the High  Court, challenging the orders of termination of  service as  illegal and  invalid, contending that in  view of  Rule  3-A,  providing  that  a  Government servant in  respect of  whom a declaration under cl. (ii) of Rule 3  had not  been issued,  but  had  been  in  temporary service continuously  for five years in a service or post in respect of  which such  declaration could  be made, shall be deemed to  be in  quasi-permanent service unless for reasons to be  recorded in  writing they  should be  deemed to be in Quasi-Permanent Service, since no declaration under cl. (ii) of Rule  3 had  been issued  and they  had been  in  service continuously for five years.      On behalf  of the respondents it was contended that the question of  confirmation came within the purview of Article 235 of  the Constitution  vesting in  the High Court control over subordinate  courts and, consequently, the provision of Rule  3-A   had  no   application  to  the  members  of  the Subordinate Judicial Service.      Division Bench  of the High Court took the view that if in Rule 3-A in place of the words "appointing authority" the words "competent  authority" be  read it would be consistent

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with Article 235 of the 493 Constitution, and  dismissed the writ petitions holding that the resolution passed in the Court meeting, adjudicating the appellants unfit for confirmation, satisfied the requirement of Rule  3-A as  continuance in Quasi-Permanent capacity was included within the ambit of confirmation.      The services  of the respondent in .A. No. 2860 of 1985 were also terminated under Rule 12 of the Rules. In the writ petition filed  by him,  the Full  Bench of  the High Court, while approving the aforesaid view expressed by the Division Bench, held  that the  findings of  the High  Court  in  its resolution,   considering    the   respondent    unfit   for confirmation, could  not be  regarded as  reasons within the meaning of  Rule 3-A,  and quashed  the impugned termination order.      Disposing of the appeals, ^      HELD: Whether  a member of Subordinate Judicial Service should be  confirmed or not is absolutely the concern of the High Court.  The question  of  confirmation  falls  squarely within Article 235 of the Constitution and no rule framed by the State  Government can  interfere with the control vested in the High Court under Rule 235. [498A-B ]      B.S. Yadav  v. State  of Haryana, [1981] 1 SCR 1024 and High Court of Punjab & Haryana v. State of Haryana, [1975l 3 SCR 365 relied on.      Both the  Full Bench  and the Division Bench were wrong in placing  reliance upon  Rule 3-A  of the  M.P. Government Service (Temporary  and Quasi-Permanent) Rules, 1960. As the High Court  did not  confirm the  omcials, the  question  of their being deemed to be in Quasi-Permanent Service does not arise.  Further,   as  the   question  of  confirmation  was completely within  the domain  of the  control of  the  High Court under  Article 235  of the  Constitution, there  is no necessity to  read the  words "competent authority" in place of "appointing  authority", for Rule 3-A was inapplicable to the members  of the  Subordinate Judicial Service. Moreover, there is  a specific provision in the termination of service of a  Judicial officer  who is found by the High Court to be unfit for  confirmation as  provided in  Rule 16(5)  of  the Madhya Pradesh Judicial Service (Classification, Requirement JUDGMENT:      Although Rule  3-A was not applicable to the members of the  Subordinate   Judicial  Service  and  the  question  of confirmation of judi- 494 cial officer  was completely within the domain of control of the HighCourt  under Article  235 of  the  Constitution  the findings of  the High  Court that the officers should not be confirmed cannot be accepted. [499E-F]      The judgment  and orders  of  the  Division  Bench  set aside. Appellants  reinstated in service with the arrears of pay since  the date  of termination.  The orders of the Full Bench  quashing   the  impugned   order  of  termination  of respondent in  C.A. No.  2860 of  1985 affirmed, but not the reasons for such quashing. [499G-H]

&      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 59 & 60 of 1982 etc.      From the  Judgment and  Order  dated  9.4.1981  of  the Madhya Pradesh  High Court in Misc. Petition Nos. 61 and 120

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of 1980.      Dr. Y.S. Chitale, G.L. Sanghi, Mrs. A.K. Verma, Miss F. Desai, S.  Sukumaran, D.N.  Mishra, Vivek  Gambhir and  S.K. Gambhir for the Appellants.      R.P. Bhatt, T.C. Sharma, Shri Narain and Sandeep Narain for the Respondents.      The Judgment of the Court was delivered by      DUTT,  J.   The   only   question   that   arises   for consideration in  these appeals  by special leave is whether Rule 3-A  of M.P.  Government Service  (Temporary  &  Quasi- Permanent Service)  Rules, 1960,  hereinafter referred to as ’the Rules’, is applicable to the members of the Subordinate Judicial Service of the Madhya Pradesh Government.      In Civil  Appeals Nos.  59  &  60  of  1982,  both  the appellants were  appointed Civil  judges  on  temporary  and officiating basis  for a  period of  six months for training and thereafter for a period of two years on probation. It is not necessary  to state  in detail the facts, and suffice it to  say   that  both  the  appellants  were  not  ultimately confirmed by  the High  Court-after the expiry of the period of probation  or the  extended period of probation. The High Court  recommended   the  termination  of  services  of  the appellants to  the State  Government and  pursuant  to  such recommendation, the State Government terminated the services of  the  appellants  under  Rule  12  of  the  Rules.  Being aggrieved by  the orders  of termination  of their services, the appellants filed writ petitions 495 before the  Madhya Pradesh  High Court.  It was contended by them A that in view of Rule 3-A of the Rules, they should be deemed to  be in  guasi-permanent service. Rule 3-A provides as follows:           "R. 3-A.  Government servant  in respect of whom a           declaration under  clause (ii)  of Rule  3 has not           been issued  but has  been  in  temporary  service           continuously for  five years  in a service or post           in respect of which such declaration could be made           shall be  deemed to  be in quasi-permanent service           unless for  reasons to  be recorded in writing the           appointing authority otherwise order."      As a  declaration under  clause (ii)  of Rule 3 had not been issued  and as the appellants were in temporary service continuously for  five years  in the post of Civil Judges in respect of  which such  declaration could  be made,  it  was contended they  should be  deemed to  be in  quasi-permanent service, and that, accordingly, the orders of termination of their services were illegal and invalid.      It was, however, contended on behalf of the respondents that the question of confirmation came within the purview of Article 235 of the Constitution of India vesting in the High Court control over subordinate courts and, consequently, the provision of  Rule 3-A  had no application to the members of Subordinate Judicial Service. The Division Bench of the High Court took  the view  that if  in Rule  3-A in  place of the words   "appointing   authority",   the   words   "competent authority" be  read, it would be consistent with Article 235 of  the  Constitution.  The  Division  Bench  overruled  the contention of  the appellants  that although  the High Court considered them  unfit for  confirmation, yet Rule 3-A would apply as it did not record any reason why they should not be deemed to be in quasi-permanent service, as provided in Rule 3-A. The Division Bench observed as follows:           "It was also argued by the learned counsel for the           Petitioners that  the case  of the petitioners was           considered  by  the  High  Court  only  for  their

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         confirmation and not suitability for employment in           a quasi-permanent  capacity, when a resolution was           passed   declaring    them   to   be   unfit   for           confirmation. On  this basis,  it was  argued that           the High  Court’s resolution could not, therefore,           be construed  as ’otherwise order’ contemplated by           the latter  part of Rule 3-A. There is no merit in           this contention.  The  resolution  passed  in  the           Court  meeting   adjudging  them   not   fit   for           confirmation 496           satisfies  the   requirement,  as  continuance  in           quasi-permanent capacity  is included  within  the           ambit or confirmation against the post held by the           petitioners."       Accordingly,  the Division  Bench dismissed  the  writ petitions filed by the appellants.      In Civil  Appeal No.  2860 of  1985, the  High Court of Madhya Pradesh  has assailed  the judgment  and order of its Full  Bench.  The  respondent,  in  that  appeal  also,  was appointed a Civil Judge on a temporary and officiating basis for a period of six months for training and thereafter for a period of two years on probation. In his case also, the High Court  did   not  confirm   him  after  the  expiry  of  the probationary period  and he  continued without  an order  of confirmation or  discharge. In  a Full Court Meeting held on February 27,  1981,  it  was  decided  not  to  confirm  the respondent, presumable  in view  of certain  adverse remarks against him  which were  directed to be communicated to him. Ultimately, his  services were  terminated under  Rule 12 of the Rules.  Aggrieved  by  the  order  of  termination,  the respondent filed a writ petition in the High Court of Madhya Pradesh. The  learned Single  Judge referred the petition to the Full Bench for answering the following question:           "Whether the resolution of the Court Meeting dated           27.2.  1981   satisfies  the   requirement  of  an           otherwise order  of the  appointing  authority  by           recording reasons in writing as contemplated under           Rule 3-A of the Madhya Pradesh Government Servants           (Temporary and  Quasi-Permanent Ser  vice)  Rules,           1960?"      The Full  bench approved  of the  view expressed by the Division Bench  in its judgment which is under appeal in the above Civil  Appeals Nos. 59 & 60 of 1982 to the extent that in Rule  3-A in  place of  the words "appointing authority", the words "competent authority" should be read so as to make the rule  workable and  consistent with  Article 235  of the Constitution. The  Full Bench,  however, did  not agree with the Division Bench that the finding of the High Court in its resolution that the respondent was not fit for confirmation, could not  be regarded  as ’reasons’  within the  meaning of Rule 3-A,  but was  the ’conclusion’  of the High Court. The full Bench  also made  a distinction  between  ’reason’  and ’conclusion’ and  took the  view that as no reason was given by the  High Court  as to  why the  respondent should not be deemed to  be in quasi-permanent service, the impugned order of 497 termination of the service of the respondent was illegal and invalid. In  that view of the matter, the Full Bench quashed the impugned  order of  termination of  the  respondent  and allowed the writ petition, although the learned Single Judge referred the  writ petition  to the Full Bench for answering the question as mentioned above.      Dr. Chitale, learned Counsel appearing on behalf of the

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High Court,  submits that  both the  Division Bench  and the Full Bench  proceeded on  an erroneous  view that  Rule  3-A would apply  to the  members  of  the  Subordinate  Judicial Service. He  has drawn  our attention  to the Madhya Pradesh Judicial Service  (Classification, Requirement  & Conditions of Service)  Rules, 1955,  hereinafter referred  to as ’M.P. Judicial Service Rules’, framed under the proviso to Article 309 of  the Constitution.  There can  be no  doubt the  M.P. Judicial Service  Rules are  special rules  applying to  the members of  the Subordinate Judicial Service of the State of Madhya Pradesh. Rule 16 provides as follows:           "R. 16.  ( 1)  Every person appointed to the cadre           by direct recruitment shall be required to undergo           training for  a period  of one  year at the end of           which he shall be placed on probation for a period           of one year.                (2) The  training shall  be such  as  may  be           prescribed by the High Court.                (3) Every  such person  shall be  required to           pass the  departmental examinations prescribed for           Civil Judges.                (4) The  probationers may,  at the end of the           period of their probation, be confirmed subject to           their  fitness  for  confirmation  and  to  having           passed the departmental examinations by the higher           standard.                (5) The  High Court may in any case recommend           the extension  of the  period of  probation  by  a           period not  exceeding  one  year.  If  the  person           concerned is  not considered  fit for confirmation           at the  end of  such period,  or fails to pass the           prescribed departmental examinations, his services           shall be dispensed with."      Rule 16(5)  provides, inter  alia, that  if the  person concerned is  not considered  for confirmation at the end of the probationary  period, his  services. shall  be dispensed with. Whether a member of Subordinate 498 Judicial Service  should be  confirmed or  not is absolutely the concern  of the High Court. The question of confirmation falls squarely within Article 235 of the Constitution and no rule framed  by the  State Government can interfere with the control vested  in the High Court under Article 235. In B.S. Yadav v.  State of Haryana, [1981] 1 SCR 1024 a Constitution Bench of  this  Court  held  that  the  question  whether  a particular judicial  officer has  successfully completed his probation or not is a matter which is exclusively within the domain of  the High  Court to decide. In an earlier decision of this  Court in High Court of Punjab & Haryana v. State of Haryana, [1975]  3 SCR 365 it was held that the confirmation of persons appointed to be or promoted to be District Judges was clearly  within the  control of  the  High  Court  under Article 235 of the Constitution.      In view  of the  above decisions of this Court, it must be held that both the Full Bench and the Division Bench were wrong in placing reliance upon Rule 3-A of the Rules. As the High Court  did not  confirm the appellants in Civil Appeals Nos. 59  & 60 of 1982 and the respondent in Civil Appeal No. 2860 of  1985, the  question of  their being deemed to be in quasi-permanent service  does not  arise.  Further,  as  the question of confirmation was completely within the domain of the control  of the  High Court  under Article  235  of  the Constitution, there  was no  necessity  to  read  the  words "competent authority"  in place  of  the  words  "appointing authority", for  Rule 3-A was inapplicable to the members of

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the  Subordinate  Judicial  Service.  Moreover,  as  already noticed, there  is a  specific provision  for termination of service of a judicial officer who is found by the High Court to be  unfit for  confirmation as  provided in Rule 16(5) of the M.P. Judicial Service Rules.      Dr. Chitale,  learned Counsel  for the  High Court, has produced before  us the  confidential service records of all these judicial  officers. We have carefully gone through the yearly reports  of the  appellants in Civil Appeal Nos. 59 & 60 of  1982. Whatever  might be  the adverse remarks against the appellant  No. 1,  the report  of the learned District & Sessions Judge  dated March  31, 1978,  is quite  favourable except that  it has  been pointed out in the report that she should be careful to see that all her judgments are properly paragraphed and  findings  are  noted  against  all  issues. Further, it  has  been  observed  that  there  is  need  for improvement in  the quality of her work. In view of the said report of  the District  & Sessions  Judge, we  do not think that the High 499 Court was justified in not confirming the appellant.      So far  as appellant No. 2 in Civil Appeal Nos. 59 & 60 of 1982  is concerned,  the report  for the period from 1-4- 1977 to  31-3-1978 contains  the remark  "very good". It was also  recorded   under  the  general  remarks  "He  is  very industrious. During  the year under report he disposed of 68 old civil  suits;’ In  the  report  for  the  period  ending September 30,  1978 it  has been observed "His reputation is bad at  present. He  has been  asked to  improve his image." This observation  is somewhat  vague.  The  report  for  the period ending  March 31,  1979 is,  however,  completely  in favour of  the appellant.  The performances of the appellant have been found to be highly satisfactory.      As regards  the respondent  in Civil Appeal No. 2860 of 1985, although  he succeeded  before the  Full  Bench  on  a technical plea  based on  Rule 3-A of the Rules which is not applicable, we  are of  the view  that the  High  Court  had justification  for   not  confirming   the  respondent.  It, however, appears  from the  records that  the respondent has improved much  and, indeed,  the report  for the period from 24-10-1985  to  31-3-1986  shows  that  his performances for the said period were satisfactory. The subsequent report for the period from 1-4-1986 to 31-3-1987 also shows that on the whole his  performances were  satisfactory. Accordingly,  we are not  inclined to  interfere with  the order  of the Full Bench.      In the circumstances, although we accept the contention made on  behalf of the High Court that Rule 3-A of the Rules was  not  applicable  to  the  members  of  the  Subordinate Judicial Service,  and that  the question of confirmation of judicial officer was completely within the domain of control of the  High Court under Article 235 of the Constitution, we are unable  to accept the finding of the High Court that the appellants in  Civil Appeals  Nos. 59  & 60  of 1982 and the respondent in  Civil Appeal  No. 2860  of 1985 should not be confirmed as Civil Judges.      In view  of the discussion made above, we set aside the judgment and  order of  the Division  Bench in Civil Appeals Nos.  59   &  60  of  1982  and  also  the  impugned  orders terminating the  services of  the appellants. The appellants are reinstated  in service  with arrears  of pay,  since the date of  termination, to  be paid  within three  months from date.      So far  as Civil  Appeal No. 2860 of 1985 is concerned, we affirm  the order of the Full Bench quashing the impugned

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order of  termination of services of the respondent, but not the reasons for such quash- 500 ing and  direct  that  for  a  period  of  three  years  the respondent shall be      The appeals  are disposed  of  as  above.  There  will, however, be no order as to costs in any of them. N.P.V.                                  Appeals disposed of. 501