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PETITIONER: T. LAKSHMI NARASIMHA CHARI, GOVERNMENT OF ANDHRA PRADESH, K.

       Vs.

RESPONDENT: HIGH COURT OF ANDHRA PRADESH & ANR.

DATE OF JUDGMENT:       09/05/1996

BENCH: SUJATA V. MANOHAR, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH              CIVIL APPEAL NOS. 2166-67 OF 1989                             WITH              WRIT PETITION (C) NO. 331 of 1994                       J U D G M E N T J.S. Verma, J.      All these appeals are against the same judgment.      The appellant - T. Lakshmi Narasimha Chari was selected for the  Andhra Pradesh State Judicial Service and appointed as District  Munsiff on  21.1.1974 by  the Governor.  He was confirmed as  District Munsiff  on 25.5.1979.  He  was  then promoted  temporarily   to  act   as  Subordinate  Judge  on 20.2.1980. A preliminary enquiry was made into an allegation of misconduct,  which had  led to  the appellant’s arrest by the police on 26.91976, in which a prima facie case was made out  against   the   appellant.   Accordingly,   a   regular departmental  enquiry   was  initiated  on  the  charges  of misconduct. The  allegation   against the appellant was that when he  was posted as Munsiff Magistrate, Hyderabad (East), he had  forced a  woman, who  was a  litigant before him, to have an illicit relationship with him; and the appellant was arrested on  the night of 26.9.1976 on the complaint of that woman when  the police  found him  with her  in a  hotel.  A criminal case  was registered  against the  appellant  under Section 5(2) of the Prevention of Corruption Act and Section 509, I.P.C.  and sanction of the State Government was sought for his  prosecution. However, the Government did not accord the sanction  and took  the decision  of not prosecuting him without even  consulting the High Court. In the departmental enquiry held  by the Session Judge, who was appointed as the enquiry officer,  the charge  of misconduct was found proved and the  punishment of removal from service was recommended. The High Curt accepted the findings and itself made an order dated 20.1.1982 removing the appellant from service.      Apparently, the Andhra Pradesh High Court took the view that the  order of removal from service could be made by the High Court  itself and  it was  not necessary  for the  High Court to  make  its  recommendations  to  the  Governor  for issuing the  order imposing  the  penalty  of  removal  from service. The appellant challenged the order dated 20.1.19822

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made by  the High  Court removing  him from  service, in  an appeal to  the Governor  under  Rule  21(2)  of  the  Andhra Pradesh Civil  Services (Classification, Control and Appeal) Rules, 1963.  By G.O.Ms.  No. 534  dated  14.9.1984  of  the Government of  Andhra Pradesh,  Home Department, that appeal was allowed  by the  Governor on  the ground  that the  High Court is  not the competent authority to order the dismissal or removal from service of the Subordinate Judicial Officer. The order  also granted  all consequential  benefits to  the appellant.      The Andhra  Pradesh High  Court filed Writ Petition No. 14588/1984 in  the High  Court for  quashing G.O.Ms. No. 534 dated 14.9.1984,  by which  the  Governor  has  allowed  the appeal and  set aside  the order  dated 20.1.1982, issued by the High  Court, removing  the appellant  from service. This writ petition  was dismissed  on  16.10.1988  by  a  learned single Judge  of the High Court. Writ Appeal No. 130 of 1980 has then  filed by  the High  court against the dismissal of the writ  petition, before  a Division  Bench  of  the  High Court. In addition, Writ Petition No. 13691 of 1986 was also filed by  the High  Court challenging  the validity  of Rule 21(2) of  the Andhra Pradesh Civil Services (Classification, Control and  Appeal) Rules,  1963, which  provides an appeal from an  order passed  by the  High Court to the Governor of Andhra Pradesh.  The writ  appeal and the said writ petition were both  referred for decision to a Full Bench of the High Court, which  allowed both  of them by the impugned judgment dated 25.8.1988.  The Full  Bench of  the High  Court in the impugned judgment  has upheld  the contentions  of the  High Court that  the order  of removal from service could be made by the  High Court itself; and that the provision for appeal against the High Court’s order to the Governor is invalid. A further direction was issued therein that the Governor could not entertain any appeal preferred under Rule 21 (2) against any order  made by  the High  Court in  the exercise  of its disciplinary  jurisdiction   over   the   members   of   the subordinate judiciary.      C.A. No.2165/1989  is by T.Lakshmi Narasimha Chari, the concerned judicial officer, against the judgment of the Full Bench. C.A.  Nos.2166/2167/1989 are  by  the  Government  of Andhra Pradesh against the same judgment of the Full Bench.      Writ Petition  (C) No.331/1994  is by  K.David  Wilson, another  member  of  the  subordinate  judiciary  in  Andhra Pradesh   who was  removed from  service by  an order  dated 01.12.1993, issued  by the  High Court  after a departmental enquiry into  the charges  of misconduct against him. He too was a  District  Munsiff  in  the  Andhra  Pradesh  Judicial Service, who  was  temporarily  promoted  as  a  Subordinate Judge, when  the order for his removal from service was made by the  High Court. In view of the above Full bench decision of the  High  Court,  the  petitioner-K.  David  Wilson  has challenged the  order of  removal from  service directly  by this petition  filed under  Article 32  of the Constitution. This writ  petition also  is being  decided by  this  common judgment since  it involves  a common  question of  law  for decision namely,  the competence of the High Court to itself issue the order of removal from service.      Before we proceed to consider the questions which arise for decision,  the  material  conclusions  in  the  impugned judgment of the Full Bench may be summarised thus: (1)  Article 235  of the  Constitution of  India  vests  the control over  District Courts  and  the  courts  subordinate thereto,  in  the  High  Court.  The  control  includes  the disciplinary control  over the conduct and discipline of the members of the subordinate judiciary.

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(2)  In the  State of Andhra Pradesh except for the posts of District Judges filled by direct recruitment or by promotion and  the   posts  of  District  Munsiffs  filled  by  direct recruitment or  by transfer  for which the appointments have to be  made by  the Governor of the State of Andhra Pradesh, it is  the High  Court which  is the appointing authority to the posts of Judicial Second Class Magistrates, to the posts of District  Munsiffs by  promotion  from  the  category  of Judicial Second  Class  Magistrates  and  to  the  posts  of Subordinate Judges  by promotion  from the cadre of District Munsiffs. (3)  In the  case of  persons appointed  of promoted  to  be District Judges  or the District Munsiffs appointed directly or by transfer by the Governor, if the High Court exercising disciplinary control over them recommends to the Governor to impose on  them the major penalty of dismissal or removal or reduction in  rank, such  a recommendation is binding on the Governor by virtue of Article 235 of the Constitution. (4)  Rule 11  (1)  of  the  Andhra  Pradesh  Civil  Services (Classification, Control  and Appeal)  Rules 1963  is  ultra vires Article 235 of the Constitution in so far as it denies to the  High Court the authority to impose punishments, both major  and  minor,  regarded  as  necessary  and  proper  in disciplinary enquiries held against the subordinate judicial officers who  have been holding the posts to which they have been either  initially appointed  or promoted  by  the  High Court. (5)  There is  no right  of appeal  under Rule  21(2) of the Andhra Pradesh  Civil Services  (Classification, Control and Appeal) Rules, 1963 to the Governor against the order of the High  Court   passed  in   exercise  of   its   disciplinary jurisdiction against  all the  members  of  the  subordinate judiciary including District Judges. Rule 21(2) must be read down to  mean that  the right  of appeal saved under Article 235 of  the Constitution  is available  only in  respect  of matters not  relating to  the disciplinary control vested in the High  Court over  members of  the  Subordinate  Judicial Service.      The first  question is  whether the  orders of  removal from service  issued by  the High  Court itself  against  T. Lakshmi Narasimha  Chari and  K. David  Wilson  are  validly made. Admittedly,  both these  subordinate judicial officers were directly  recruited as  District Munsiffs  and had been confirmed on that post. At the time of removal from service, the substantive  rank held by each of them was of a District Munsiffs and  they were  promoted temporarily as Subordinate Judges. Since  their lien  was in  their substantive rank as District Munsiff, the orders of removal from service had the effect of terminating their service as District Munsiff. The validity of  the orders  of removal from service made by the High Court has to be adjudged on these facts.      One of  the conclusions  rightly reached  by  the  High Court is  that  the  appointing  authority  for  a  directly recruited District  Munsiff  is  the  Governor.  Both  these persons were  directly recruited as District Munsiffs and it was this  substantive rank  held  by  them  when  they  were removed from  service. The  High Court has further correctly concluded that  the major penalty of dismissal or removal or reduction in  rank can  be imposed  on a  directly appointed District Munsiff  only on  the recommendation  of  the  High Court which  is binding  on the Governor. The result is that the order  of removal  from service  of a person holding the substantive rank  of District Munsiff has to be made only by the  Governor,   even  though   the  Governor  must  act  in accordance with  the recommendation  of the High Court which

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is binding  on the Governor. This the true import of Article 235  of  the  Constitution  which  vests  control  over  the District Courts  and the  courts subordinate  thereto in the High Court. This is well settled by a catena of decisions of this Court.  It is sufficient to refer the decisions in B.S. Yadav and  Others etc. vs. State of Haryana and Others etc., (1981) 1 S.C.R. 1024 and Chief Justice of Andhra Pradesh and Others vs. L.V.A. Dixitulu and Others etc., (1979) 2 SCC 34.      Applying the  settled legal principle to the undisputed facts  in  the  case  of  both  these  subordinate  judicial officers who held the substantive rank of directly appointed District Munsiff  at the  time of  issuance of  the order of removal from  service by  the High Court itself, it is plain that the  order of  removal from service in the case of each of them  had to  be made by the Governor and not by the High Court itself. It is equally plain that the recommendation of the High  Court for  their removal  from service  after  the charges of  misconduct were found proved in the disciplinary inquiry, was  binding on  the Governor  who had to issue the order of  removal in accordance with the recommendation made by the High Court. Unfortunately the High Court, in spite of the settled  legal  position,  did  not  adopt  the  correct procedure for  issuance of the order of removal from service of these  two judicial  officers. The High Court, instead of sending its  recommendation to  the Governor for issuing the order of removal from service, which would be binding on the Governor, proceeded  to issue  the  order  of  removal  from service  itself.   The  State   Government  also  failed  to appreciate the  correct legal position and to make amends by issuing the  order  of  removal  in  the  name  of  Governor treating the  action of the High Court as its recommendation for  removal   from  service.  Such  an  action  would  have corrected the formal defect in the order of removal. Another opportunity to  correct the mistake in this manner came when the appeal  was filled  under Rule  21(2)  by  the  judicial officer. However,  that too  was missed.  It is  this  error which has  enabled these  judicial officers to challenge the orders of removal from service.      The next  question is  of the  effect of  GOMs No.  534 dated 14.9.1984  issued by  the Governor allowing the appeal under Rule  21(2) filed  by T.  Lakshmi Narasimha  Chari. In view of the conclusion reached by us on the first point that the order of removal issued by the High Court itself was not validly made  since it  had to  be issued by the Governor on the recommendation made by the High Court, this question has to be  viewed in  this background.  In the present case, the practical effect  of the  answer to  this question  may have relevance only  for moulding  the  relief  in  view  of  the conclusion reached on the above first question.      It would be appropriate at this stage to first consider the need  for examining  the correctness of the High Court’s conclusion that  Rule 11(1)  is ultra  vires Article 235 and Rule 21(2)  has to  be read  down to  confer only  a limited right of appeal to the Governor.      The  relevant   provisions  of   the   Andhra   Pradesh (Classification, Control  and Appeal)  Rules,  1963  may  be referred. Admittedly,  these rules  are  applicable  to  the Andhra Pradesh  State Higher Judicial Service and the Andhra Pradesh State  Judicial Service which are items 32 and 33 in Schedule I  to the  Rules which  has to  be read with Rule 6 which says that the State Services shall consist of services included in  Schedule I  to these Rules. Relevant provisions of the Rules are as under:-      "PART III- CONTROL      8. (1) The following penalties may,

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    for good  and sufficient reason and      as hereinafter provided, be imposed      upon a member of a Civil Service or      holder of  Civil post  specified in      Rule 2, namely:-      (G.O.Ms. No.  691, Ser. C, dated 4-      11-1980)      (i) Censure;      (ii) Fine;      (iii) Withholding  of increments or      promotion;      (iv) Reduction  to a  lower rank in      the seniority  list or  to a  lower      post not  being lower  than that to      which he was directly recruited.      (v) Recovery  from pay of the whole      or any  part of  the pecuniary loss      caused to  the State  Government or      the  Central  Government  or  to  a      local authority.      (vi) Reduction  to a  lower rank in      the seniority  list or  to a  lower      post not  being lower  than that to      which he was directly recruited.      (v) Recovery  from pay of the whole      or any  part of  the pecuniary loss      caused to  the State  Government or      the  Central  Government  or  to  a      local authority.      (vi)     Compulsory     retirement,      otherwise than  under sub-rules (2)      and (2A)  or rule  3 of  the Andhra      Pradesh Liberalised  Pension Rules,      1961, or  under rules  292, 293 and      293-A  of   the   Hyderabad   Civil      Services Rules, or under the Andhra      Pradesh     Government     Servants      Premature Retirement  Rules,  1975,      or under  Article 465  (2) or under      Note I  to  Article  465-A  of  the      Civil Services  Regulations  or  in      the case  of members  of the  Civil      Service of  the erstwhile Hyderabad      Government,  compulsory  retirement      before completion of 30 years or 25      years   of    qualifying    service      according  as  the  member  of  the      service is  governed by  the Revise      Pension Rules, 1951 or by the rules      in force  before that  date, as the      case may  be (hereinafter  referred      to as compulsory retirement);      (vii)  Removal   from   the   civil      service of the State;      (viii)  Dismissal  from  the  civil      service of the State;      (ix) Suspension, where a person has      already been  suspended under  rule      13 (1),  to the  extent  considered      necessary.      xxx          xxx              xxx      "11. (1)  The High  Court of Andhra      Pradesh may  impose on  members  of      the Andhra  Pradesh State  Judicial      Service,  any   of  the   penalties

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    specified in items (i), (iii), (iv)      and (v) of rule 8:      Provided that  the  High  Court  of      Andhra Pradesh  may impose  on  the      Judicial Second  Class  Magistrates      any of  the penalties  specified in      rule 8.      xxx             xxx            xxx      "PART IV - APPEALS      20. Every person who is a member of      any of  the  service  specified  in      rule  5,   shall  be   entitled  to      appeal,  as  hereinafter  provided,      from  an   order   passed   by   an      authority-      (a) imposing  upon him  any of  the      penalties specified  in rule  8  or      rule 9;      xxx          xxx               xxx      21.(2)  An  appeal  from  an  order      passed by  the High Court shall lie      to the Governor of Andhra Pradesh.      xxx               xxx           xxx      In view  of the  fact that neither T. Lakshmi Narasimha Chari nor  K. David  Wilson, determination of whose services has given  rise to this litigation, were initially appointed directly  as  District  Munsiffs  by  the  High  Court,  the question of  considering the validity of Rule 11(1) does not arise in  this case.  It was, therefore, unnecessary for the High Court  to have  raised that  question and  then to have considered and  decided the  same in  the abstract.  For the same reason,  we consider  it unnecessary  to pronounce  any concluded opinion  on that point and leave that question for decision in  an appropriate  case, wherein that question may arise directly. The decision of the High Court on this point is, therefore,  set  aside  for  this  reason  alone,  being unnecessary, leaving  the question  open for  decision in an appropriate case.      The only  surviving question  now is the correctness of the High Court’s decision relating to Rule 21(2) that it has to be  read down to confer only a limited right of appeal to the Governor in some cases alone.      In  our  opinion  Rule  21(2)  can  be  interpreted  in conformity with  Article  235  without  the  requirement  of reading any  limitation therein  as indicated  by  the  High Court. The second part of Article 235 enables the framing of such a  rule to  confer a  right of appeal. Such a provision for appeal  must be construed to mean that the appeal to the Governor against  the order  of the  High Court provides for reconsideration of  the High  Court’s order by the Governor, but in  keeping with the requirement of Article 235 that the power of  control over  persons belonging  to  the  judicial service of  a State  vests in  the High  Court, and that the appeal must  be decided  by the  Governor only in accordance with the  opinion of the High court. In other words, such an appeal has to be forwarded by the Governor to the High Court for its  opinion, which  would  enable  the  High  Court  to reconsider its  earlier decision and give its opinion to the Governor, in  accordance with which the Governor must decide the appeal.  In short, the remedy of such an appeal provided by the rules which have been framed in consultation with the High  Court   is  in   the  nature   of  a   provision   for reconsideration or  review by  the High Court of its earlier decision. The  High Court  on reconsideration  of the matter has to  give its  opinion to  the Governor  and the Governor

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must invariably  act in accordance with the opinion so given by the  High Court.  The Governor  has no option to act in a manner different  from that  recommended by  the High Court. This procedure  requirests reconsideration by the High Court of its  earlier opinion  and the  opinion given  by the High Court after reconsideration indicates the manner of decision f that  appeal. There  is thus  no erosion  in  the  control vested in  the High  Court  over  persons  belonging  o  the judicial service  of a  State; and  the  requirement  of  an appeal i.e.  reconsideration of the earlier decision is also satisfied. In  this process, any comments by the Governor on the merits  of the  case would also receive consideration of the High  court  before  it  forms  the  final  opinion  and forwards its  recommendation to the Governor for decision of the appeal  in accordance  with that  opinion. This  is  the scheme and  requirement of Article 235. We are informed that similar provision  exists for  appeal in the case of persons belonging to  the judicial  service in some other States and the  rule   is  worked  in  the  manner  indicated.  Such  a construction of  the rule  gives effect to the provision for appeal consistent  with the  right of appeal available under the second  part of  Article 235  and is consistent with the vesting of  control in  the High  Court over the subordinate judiciary.      There is  no need to read down Rule 21(2) in the manner in which  it has  been done  by the  High  court.  The  High Court’s decision overlooks this aspect.      The question  now is  of the  kind of final order to be made in  these cases.  In the  cases of both these officers, namely, T.  Lakshmi Narasimha Chari and K. David Wilson, the order of removal made by the High Court is set aside for the reasons already given. However, the action of the High Court against  both   these  judicial   officers  who   held   the substantive rank  of District  Munsiff, is  to be treated as the recommendation  of the  High Court  to the  Governor for their removal from service. In view of the control over them vested in  the High  Court by  virtue of  Article 235 of the Constitution, the Governor is bound, in each case, to act in accordance with  the recommendation  of the  High Court  and each of  them  has  to  be  removed  from  service  for  the misconduct found  proved by the High Court against them. The Governor of  the State  of Andhra  Pradesh is to proceed and make the  necessary consequential  orders in accordance with the recommendation  of the  High  Court  in  each  came,  in accordance with law. It was submitted by learned counsel for T. Lakshmi  Narasimha Chari  that he has attained the age of superannuation in the meantime. Any such subsequent event is to be  brought to the notice of the High Court and it is for the High  court to consider and decide the effect thereof in making  any  further  recommendation  to  the  Governor.  In formulating its recommendation, the High Court is to keep in view the  relevant rules  and the decisions relating to this aspect. No  such question  arises for consideration by us in this appeal  and, therefore,  we need  not  deal  with  this aspect any  further. All  consequential actions  are  to  be considered and  taken by  the High  Court in accordance with law.      Consequently, these  appeals and  the writ petition are decided in the above manner.