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PETITIONER: HIGH COURT OF PUNJAB & HARYANA ETC.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.  ETC.

DATE OF JUDGMENT24/01/1975

BENCH: RAY, A.N. (CJ) BENCH: RAY, A.N. (CJ) KHANNA, HANS RAJ MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR  613            1975 SCR  (3) 365  1975 SCC  (1) 843  CITATOR INFO :  R          1976 SC 404  (21)  R          1976 SC1841  (11,17)  R          1976 SC1899  (20,21,28)  RF         1977 SC1619  (13)  RF         1977 SC2328  (14)  R          1979 SC 193  (38)  R          1979 SC 478  (152)  E          1981 SC 561  (5,22,33,48,58,61,62)  R          1982 SC1579  (27)  R          1987 SC 331  (24)  R          1988 SC 488  (9)  R          1988 SC1388  (16)

ACT: Constitution   of   India  1950,  Article   233,   234   and 235--"Control  over district courts and Courts  sub-ordinate thereto"--"Control",  meaning  of--Confirmation  of  persons appointed  to be District Judges, if within the  control  of High Court. Constitution of India, 1950, Article 235 and Punjab Superior Judicial Service Rules, 1963, Rule 10--Promotion of a person to be District Judge--Rule conferring power of  confirmation on the Governor, if valid. Constitution  of India, 1950, Article 235 and  Punjab  Civil Service (Punishment and Appeal) Rules, Rule  9--Disciplinary proceedings  against District Judges--Enquiry by  Government without thee concurrence of High Court, if valid.

HEADNOTE: Before Rao was appointed as Additional District and Sessions Judge tinder Rule 9 of the Punjab Superior Judicial Services Rules  1963, he was functioning as a District Attorney.   He assumed charge and completed two years of probation.  On the receipt  of  the  complaint  against  him,  the  High  Court entrusted  to  Justice  Gurnam Singh  an  enquiry  into  the complaint.   Rao  was  transferred to Ambala  and  later  to Karnal  as  District  and Sessions Judge.   The  High  Court considered  the report of Justice Gurnam Singh who  came  to the  conclusion  that  the  charges  against  Rao  were  not

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substantiated.   On 19 April, 1973 the High  Court  promoted Rao  as permanent District and Sessions Judge,  with  effect from  March 30, 1973.  The Government on the same day  wrote to  the High Court, saying that the view of the  High  Court about competency to confirm District and Sessions Judges was legally   untenable.   The  High  Court  was  requested   to reconsider  the  matter  and the  issuance  of  notification confirming Rao was withheld.  On 4 May, 1973 the High  Court confirmed  Rao  as District and Sessions Judge  with  effect from  July 7, 1972 on which date he completed the period  of probation.  On May 26, 1973 the Government wrote to the High Court  stating  that the Government did  not  recognise  the order  of  confirmation  issued  by  the  High  Court.   The Government further said that Rao would be deemed to be under extended period of probation.  The Government said that  the High  Court  would be well advised to review  their  earlier decision  and send the requisite record without any  further delay.   On .1 )tine, 1973 the Government wrote to the  High Court  saying  that the Government were of opinion  that  in view of the probationary period of Rao having been found  to be unsatisfactory he was not fit to be retained on the  post of  District/Additional  District  and  Sessions  Judge  and should  be  reverted  to his substantive  post  of  District Attorney.   The Government further requested the High  Court that   the  matter  might  be  placed  before   the   Judges immediately  so  that the views of the High Court  would  be available  to the Governor before the High Court  went  into vacation.   On 2 June, 1973 the High Court replied that  the matter was under consideration of the Judges and their views would  be communicated to the State Government  early.   The vacation  commenced on 2 June, 1973.  On 12 June,  1973  the Government wrote to the High Court saying that if the  views of  the High Court were not received, the  State  Government would have no alternative but to take a final decision.   On 14  June, 1973 the High Court wrote to the  Government  that reply  would be sent after the reopening of the High  Court. The  High Court.reopened on 15 July 1973.  On 21 June,  1973 the  Governor wrote a note approving action proposed by  the Council  of  Ministers.  There was  a  gazette  notification reverting Rao from the post of District and Sessions  Judge. Ambala   to  his  former  most  of  District  Attorney   Rao challenged  the  order of the (governor  in  an  application under Article 226 in the High Court. The  High  Court  held that the  order  of  confirmation  of District/Additional  District & Sessions Judge on  probation has  to be passed by the Governor in consultation  with  the High  Court  and  in this view of the matter  the  order  of confirma- 423 SCI/75 366 tion  of Rao passed by the High Court was ineffective.   The allegation that the orders were the result of the mala fides has not been substantiated.  The orders were invalid because they  were  based on an enquiry conducted by  the  Director, Special  Enquiry Agency, otherwise than through or with  the concurrence of the High Court and as such were violative  of Article  235.   The  impugned  orders  were  passed  without effective   consultation  with  the  High  Court  and   were violative of Article 233 of the Constitution.  Appeals  have been preferred to this Court by the State as well as by Rao. The High Court has also preferred an-appeal. HELD  (i)  The confirmation of persons appointed  to  be  or promoted to be District Judges is clearly within the control of  the  High  Court.   When persons  are  appointed  to  be District  Judges  or  persons are promoted  to  be  District

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Judges  the  act  of  appointment as  well  as  the  act  of promotion  is complete and nothing more remains to be  done. Confirmation  of an officer on successful completion of  his period  of  probation  is neither a  fresh  appointment  nor completion  of appointment.  Such a meaning of  confirmation would   make   appointment   a   continuing   process   till confirmation.  Confirmation of District Judges is vested  in the  control of the High Court for the reason that if  after the appointment of District Judges the Governor will  retain control  over District Judges until confirmation there  will be dual control of District Judges.  The High Court in  that case  could have control over confirmed District Judges  and the  Governor would have control over  unconfirmed  District Judges.  That is not Article 235. [378 G-H] (ii)  The  Governor has power to pass an order of  dismissal removal  or termination on the recommendations of  the  High Court  which  are made in exercise of the power  of  control vested in the High Court.  The High Court under this control cannot  terminate the services or impose any  punishment  on District  Judges by removal or reduction.  The control  over District   Judges  is  that  disciplinary  proceedings   are commenced  by  the  High  Court.  It  as  a  result  of  any disciplinary proceedings any District Judge is to be removed from service or any punishment is to be imposed that will be in accordance with the conditions of service. [379 D,E]. (iii)     The  conclusion  of the majority judgment  of  the High Court that the order of confirmation is to be passed by the  Governor  in  consultation  with  the  High  Court   is erroneous  and  has, therefore, to be set  aside.   Rule  10 which  confers  power on the Governor to  confirm  is  ultra vires  the  Constitution.   The  order  of  confirmation  of District  and  Sessions Judge is to be passed  by  the  High Court.   The  High  Court was right in  quashing  the  order passed  by  the Governor directing the removal  because  the same was based on enquiry conducted by the Director, Special Enquiry   Agency,  otherwise  than  through  or   with   the concurrence  of  the High Court.  The High  Court  was  also right  in  holding  that Rule 9 of the Rules  has  not  been complied with. [379 F-G] State  of  Assam v. S. N. Sen [1972] 2 S.C.R. 251  State  of Assam  v.  Kusewar Seikia & Anr. [1970] 2  S.C.R.  928,  The State  of  West Bengal v. Nripenidra Nath  Bagchi  (19661  1 S.C.R. 771; High Court, Calcutta v. Amal Kumar Rov [1963]  1 S.C.R.  437 Chandra Mohati v. State of Uttar Pradesh &  Ors. [1967] 1 S.C.R. 77, State of Assam v. Ranga Mohammed &  Ors. [1967]  1 S.C.R. 454, G. S. Naomoti v. The State of  Mysore’ [1969] 3 S.C.R. 325; Chandramoulashwar Prasad v. Patna  High Court & Ors. [1970] 2 S.C.R. 666, Shamsher Singh v. State of Punjab  &  Anr.  [1975]  1 S.C.R.  814  and  Ishitar-  Chand Aggarwal  v. State of Punjab (Civil Appeal No. 632 of  1974) decided on 23 August, 1974 referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 852, 854 and 1503 of 1974. From the Judgment and Order dated the 6th November, 1973  of the Punjab & Haryana High Court in C.W. No. 2147 of 1973. R.   K.  Garg  (In C.A. Nos. 854 and 1503  of  1974),  Anand Swarup  (In CA Nos. 8-54 and 1503/74) S. P. Nayar,  for  the appellants  (In C.A. 852/74) and Respondent No. 3  (in  CAs. 854 & 1503/74). 367 Jagan  Nath Kaushal Advocate General, Haryana, Dewan  Chetan

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Das, Addl.  Advocate-General, Haryana, Naunit Lal and Lalita Kohli, for the appellants (In CA No. 852/74) and  Respondent No. 3 (In CAs. 854 & 1503/74). Hardev Singh; R. S. Sodhi, K. P. Bhandari and Surinder Singh for  the appellant (In CA No. 1503/74) and Respondent No.  3 (In CA No. 852/74) and Respondent No. 1 (In CA No. 854/74). The Judgment of the Court was delivered by RAY, C.J. These appeals by certificate raise the question as to  whether the confirmation of N. S. Rao was to be made  by the Governor or by the High Court. Rao was appointed on 23 June, 1970 on probation under Rule 9 of the Punjab Superior Judicial Service Rules 1963.  He  was appointed as District/Additional District & Sessions  Judge. He  assumed  charged on 7 July, 1970.  On 7  July,  1972  he completed two years of probation.  On 13 July, 1972 the High Court  received a complaint from Mangat Rai Gaba.  The  High Court entrusted to Justice Gurnam Singh an enquiry into  the complaint.   On  1 September, 1972 Rao  was  transferred  to Ambala as District and Sessions Judge.  On 5 September  1972 there was an order posting Rao as District & Sessions Judge, Karnal.   On  13 October, 1972 there was a letter  from  the State  Government  to  the High Court,  declining  to  issue notifications under sections 20 and 21 of the Punjab  Courts Act. On 13 February, 1973 the State Government addressed a letter to the High Court to send its views about the completion  of probation  by  Rao.   The High Court on  26  February,  1973 considered  the report of Justice Gurnam Singh who  came  to the  conclusion  that  the  charges  against  Rao  were  not substantiated.   On  8  March,  1973  the  Government  wrote another  letter to the High Court asking for the  record  of service  of  Rao and the views of the High Court  about  the completion  of probation by Rao.  The Government also  asked about  the result of the enquiry along with the report.   On 10  April,  1973  the High Court replied to  the  above  two letters saying that the matter of confirmation of  promoters as  well as of Rao a direct recruit was with the High  Court and not with the Government. On  19 April, 1973 the High Court promoted Rao as  permanent District  and  Sessions Judge, with effect  from  30  March, 1973.   The  Government on the same day wrote  to  the  High Court  saying  that  the  view  of  the  High  Court   about competency  to  confirm  District and  Sessions  Judges  was legally untenable.  The High Court was requested to consider the, matter and withhold issuance of notification confirming Rao.   On 4 May, 1973 the High Court in modification of  the earlier  notification  of 19 April, 1973  confirmed  Rao  as District and Sessions Judge with effect from 7 July 1972  on which date he completed the period of probation. On  26  May,  1973 the Government wrote to  the  High  Court stating  that the Government did not recognise the order  of confirmation issued 368 by  the  High Court.  The Government further said  that  Rao would  be deemed to be under extended period  of  probation. The  Government  said  that the High  Court  would  be  well advised  to  review  their earlier  decision  and  send  the requisite record without any further delay.  On 1 June, 1973 the  Government  wrote  to the High Court  saying  that  the Government were of opinion that in view of the  probationary period of Rao having been found to be unsatisfactory he  was not  fit to be retained on the post  of  District/Additional District  and Sessions Judge and should be reverted  to  his substantive  post  of District Attorney.  It may  be  stated here that Rao before he was appointed as Additional District

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and Sessions Judge was a District Attorney.  The  Government further  requested the High Court that the matter  might  be placed  before the Judges immediately so that the  views  of the High Court would be available to the Governor before the High  Court  went into vacation.  On 2 June, 1973  the  High Court replied that the matter was under consideration of the Judges  and their views would be communicated to  the  State Government  early.  It may be stated here that the  vacation commenced on 2 June, 1973.  On 12 June, 1973 the  Government wrote to the High Court saying that if the views of the High Court were not received, the State Government would have  no alternative but to take a final decision.  On 14 June,  1973 the  High Court wrote to the Government that reply would  be sent after the reopening of the High Court.  The High  Court reopened  on 15 July, 1973.  On 21 June, 1973  the  Governor wrote  a  note approving action proposed by the  Council  of Ministers.   There was a gazette notification reverting  Rao from the post of District and Sessions Judge, Ambala to  his former post of District Attorney. Rao  challenged the order of the Governor in an  application under Article 226 in the High Court of Punjab and Haryana. The High Court by a majority judgment held that the power to confirm  is a part of the power to appoint, and,  therefore, the Governor being the appointing authority the confirmation is  to  be by the Governor on the advice of the  Council  of Ministers.   The  majority view of the High Court  was  that confirmation  is not a matter of control of District  Courts by the High Court. The other findings of the High Court are Is follows First,  all enquiries against an officer of the  subordinate judiciary,  whether  for the purpose of  punishing  him,  if found  guilty,  or  for  ascertaining  his  suitability   or otherwise  for confirmation, can be initiated and  conducted by  the  High  Court alone.  The  Government  or  any  other authority  without the concurrence of the High Court is  not competent to initiate or hold any enquiry against a District Judge  or  a member of the Judicial Services of  the  State. The  control vested in the High Court under Article  235  of the  Constitution read together with the mandate of  Article 233 of the Constitution, makes it clear that the High  Court alone  is  competent to certify,/’recommend, advise,  as  to whether  or  not  the  probationer  Rao  had  satisfactorily completed the period of probation. 369 Second,   there   has   been  both   direct   and   indirect noncompliance  with  the constitutional mandate,  viz.,  not consulting  the High Court and consulting other persons  who were  not entitled to advise him.  In making the  order  the Governor  was  influenced by  an  extraneous  consideration, viz., the report of the Director, Special Enquiry Agency and thereby  the  provisions  of  Articles  233  and  135   were contravened. Third, Rule 9 of the Appeal Rules was attracted and non-com- pliance with the mandatory provisions of Rule 9 is fatal  to the order terminating the services of Rao. Fourth, the order was not one of punishment, and, therefore, Article 311 was not attracted. Fifth,  no provision of the Constitution or statutory  rules has  been  brought to the notice of the  Court  which  makes consultation with the High Court obligatory for the Governor before framing and issuing such Rules, though as a matter of sound  administrative  policy  the  Governor  should  before framing  rules  for  the Judicial  Services  of  the  State. consult  the High Court.  Before amending  and  promulgating the  amendment on 21 April, 1972, the  Government  solicited

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the views of the High Court. Sixth,  there is no force in the contention that  regulation of  seniority  is entirely a matter for the control  of  the High  Court.   This is a condition of service which  can  be regulated  by  the Governor in exercise of  his  legislative power under the proviso to Article 309 of the  Constitution, though  the fixation of seniority in accordance with such  a rule  would  be matter within the jurisdiction of  the  High Court. The  High  Court  held that the  order  of  confirmation  of District/   Additional  District  and  Sessions   Judge   on probation  has to be passed by the Governor in  consultation with the High Court and in this view of the matter the order of  confirmation  of  Rao  passed  by  the  High  Court  was ineffective.  The allegation that the orders were the result of  the mala fides has not been substantiated.   The  orders were invalid because they were based on an enquiry conducted by  the  Director, Special Enquiry  Agency,  otherwise  than through  or  with the concurrence of the High Court  and  as such  were  violative of Article 235.  The  impugned  orders were  passed  without effective consultation with  the  High Court and were violative of Article 235 of the Constitution. The   mandate  of  Rule  9  of  the  Punjab  Civil   Service (Punishment and Appeal) Rules, 1952 hereinafter referred  to as the Punishment Rules has not been complied with. Appeals were preferred ’by the State as well as by Rao.  The High Court also preferred an appeal. On  behalf of the State it is contended that the control  of the  High  Court under Article 235 is neither  absolute  nor complete.   It  is  subject  to  prescribed  limitations  as mentioned  in Article 235.  The Advocate General of  Haryana contended  that  Article  233  applies  to  confirmation  of appointments by direct recruitment and promotion.  He relied on the 370 decisions  of this Court in State of Assam v. S.  N.  Sen(1) and State of Assam v. Kuseswar Seikia & Anr. (2) in  support of  the  proposition that the appointing  authority  is  the confirming authority. The   contentions  of  the  Advocate  General  were   these. Confirmation is the last step in the process of  appointment which is made in the first instance on probation. Confirmation  is nothing but the substantive appointment  to service.   The earlier tenure is  precarious.   Confirmation makes  it  firm.  On a parity of reasoning given  in  S.  N. Sen’s case (supra) that the authority which promotes  should confirm  it stands to reason that the power of  confirmation should  vest in the authority which appoints.   Confirmation and non-confirmation are so inextricably mixed that it  will be  anomalous to say that the power of confirmation is  with the  High  Court  and  the  power  of  termination  on  non- confirmation  is  with  the  Government.   Transfer  has  no analogy with confirmation.  Transfer brings in no change  in tenure of service while confirmation does.  Confirmation can be  on appointment as well as promotion.  Since both  powers of  appointment  and promotion are with the  Governor  under Article  233  the  confirming  authority  is  the  Governor. Either  confirmation  is a power of appointment or it  is  a condition of service.  In both the situations the power lies with  the  Governor.   Rule 10(2)  of  the  Punjab  Superior Judicial  Service  Rules  hereinafter  referred  to  as  the Service  Rules  which states that on the completion  of  the period  of probation the Governor may in  consultation  with the  High Court confirm the direct recruit on a  cadre  post with  effect from a date not earlier than the date on  which

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be  completes  the period of probation, is  a  condition  of service and is therefore not ultra vires. It  is  necessary  at this stage to refer to  the  order  of appointment of Rao.  The order is as follows :-               "In  exercise  of the powers  conferred  under               rule  9,  of  the  Punjab  Superior   Judicial               Service  Rules, 1963 the Governor of  Haryana,               on  the  recommendations  of  the  Punjab  and               Haryana High Court, is pleased to appoint,  on               probation, Shri Narender Singh Rao,  Assistant               Advocate       General,       Haryana       as               District/Additional   District  and   Sessions               Judge, in the State of Haryana in the scale of               Rs.  900-50-100060-1600-50-1800  with   effect               from  the date he assumes charge of  the  said               Act.               2.    In all matters pertaining to  seniority,               probation  etc.  he will be  governed  by  the               provisions of Punjab Superior Judicial Service               Rules, 1963.               3.    Order  relating  to initial  pay  to  be               allowed  to Shri Narender Singh Rao,  will  be               issued separate.               Cl) [1972] 2 S.C.R. 251.               (2) [1970] 2 S.C.R. 928.                371               Note  2 : proposals regarding the fixation  of               pay Of Shri Narender Singh Rao, on appointment               as  District  Additional District  &  Sessions               Judge,  Haryana,  may please be  forwarded  to               Government as early as possible". Rule 9 of the Service Rules speaks of appointment of  direct recruits.  Rule 10 of the Service Rules speaks of  probation of direct recruits.    Direct  recruits  shall   remain   on probation for a  period  of  two  years,  which  may  be  so extended  by  the  Governor in consultation  with  the  High Court,  as not to exceed a total period of three years.   On the  completion of the period of probation the  Governor  in consultation with the High Court confirms the direct recruit on a cadre post with effect from the date not earlier than a date on which he completes the period of probation.  If  the work  or conduct of a direct recruit has, in the opinion  of the  Governor,  not been satisfactory he may,  at  any  time during  the  period of probation or the extended  period  of probation,  if any, in consultation with the High Court  and without assigning any reason dispense with tile services  of such direct recruit. The Advocate General relied on the notes to rule 2.45 of the Punjab  Civil Service Rules which defines  the  probationer. Rule 2.49 is   as follows :                 "Probationer"  means  a  Government  servant               employed on probation or against a substantive               vacancy  in the cadre of a  department.   This               term  does  not  however  cover  a  Government               servant  who holds substantively  a  permanent               post  in a cadre and is merely appointed "  on               probation", to another post". It   is   stated  in  note  2  that  no   person   appointed substantively   to  a  permanent  post  in  a  cadre  is   a probationer  unless  definite conditions of  probation  have been attached to his appointment, such as the condition that he  must remain on probation pending the passing of  certain examinations.  It is said by the State, that this is not the present  case.   Note 3 states that the provisions  of  rule 2.49  and  note 2 are to be taken as  complementary.   Taken

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together note 3 states that they contain the essence of  the tests  for determining when a Government servant  should  be regarded  as  a  probationer, or as  merely  ’on  probation’ irrespective of whether he is already a permanent Government servant or is merely a Government servant without a lien  on any permanent post.  While a probationer is one appointed in or  against a post substantively vacant with  definite  con- dition-,  of  probation,  a  person  on  probation  is   one appointed to a post not necessarily vacant substantively for determining his fitness for eventual substantive appointment to  that post.  There is nothing in this rule to  prevent  a Government  servant  substantive  in one  cadre  from  being appointed  as  a probationer in or against a post  borne  on another   cadre  with definite conditions of probation  such as  the  passing  of  departmental  examination  which   are prescribed.  In such a case the Government servant should be treated as a probationer. 372 It  is  said  by  the  Advocate  General  that  no  definite conditions of probation were attached to the appointment  of Rao  and  he  is not a probationer but  on  probation,  and, therefore,  rule  9 of the Service Rules is  not  attracted. Rule 9 is as follows :-               "Where   it  is  proposed  to  terminate   the               employment of a probationer, whether during or               at the end of the period of probation, for any               specific   fault   or  on   account   of   the               unsatisfactory  record or unfavorable  reports               implying  the unsuitability for  the  service,               the  probationer  shall be  apprised  of  the.               grounds of such proposal, and given an  oppor-               tunity to show cause against it, before orders               are  passed  by  the  authority  competent  to               terminate the appointment". He gave two reasons as to why Rule 9 is not attracted Rao is on probation and not a probationer and Rule 9 only speaks of probationer.   Second,  it is not a case of  termination  of employment because Rao was under the order asked to go  back to   his  substantive.  post  of  District  Attorney,   and, therefore, it was not a case of termination. It is true that the order of appointment of Rao states  that he  is appointed on probation with effect from the  date  he assumes  charge of the post.  Rule 10 of the  Service  Rules provides that the probation is for two years and that it can be  extended.  It is apparent that Rao was appointed on  the condition that he had to give satisfactory performance  with regard  to  his  work  and  conduct  during  the  period  of probation  in  order to qualify for confirmation.   Rao  was directly recruited on probation in a substantive vacancy  in tile  cadre of the Superior Judicial Service.  Mere  use  of the  words  "on  probation" is not conclusive.   Rao  was  a probationer   because  he  was  appointed  against  a   post substantively vacant with definite conditions of  probation. Rao therefore became a probationer.  His probation could  be extended so as not to exceed three years. Article  233 states that appointments of persons to be,  and the  posting and promotion of district Judges in  any  State shall  be made by the Governor of the State in  consultation with the High Court exercising jurisdiction. Article  234 states that appointments of persons other  than district judges to the Judicial service of a State shall  be made  by the Governor of the State in accordance with  rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

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Article 235 states that 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 373 taking  away from any such person any right of appeal  which he  may have under the law regulating the conditions of  his service  or  authorising  the High Court to  deal  with  him otherwise  than  in accordance with the  conditions  of  his service prescribed under such law. Article  236  states that the  expression  "District  Judge" includes  judge of a city civil court,  additional  district judge, joint 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. The  appointment of persons to be District Judges is  vested in  the Governor of the State under Article 233.  The  words "posting  and  promotion of district judge" in  Article  233 have  been  construed  by this Court  to  mean  posting  and promotion  of  persons  to be district  judges.   The  words "appointment  of persons to be and the posting"  in  Article 233 have been held by this Court to mean initial appointment by  direct recruitment of persons to be district judges  and the   posting  mentioned  there  is  the  initial   posting. Promotion  of  district  judges has been  expanded  to  mean promotion of persons to be district judges. The Advocate General submitted that the control of the  High Court  under  Article 235 is subject to  limitation.   These limitations  are  laws  regulating  conditions  of  service. There  may not only be right of appeal under the  conditions of  service but in the present case Rule 10 of  the  Service Rules  being the conditions of service, speaks of  confirma- tion of probationer by the Governor in consultation with the High Court.  Such rules are said by the Advocate General  to be  protected  under Article 235 within  the  conditions  of service and excluded from the control of the High Court. The question of control by High Court of Subordinate  Courts was considered by this Court in The State of West Bengal  v. Nripendra  Nath Bagchi(1).  Bagchi was  Additional  District and  Sessions  Judge.   Bagchi officiated  as  District  and Sessions  Judge, but was not confirmed as such.  Bagchi  was du..-  to  retire on 31 July, 1953.  By an  order  dated  14 July,  1953,  the State Government ordered  that  Bagchi  be retained in service for a period of two months commencing  1 August.  1953.  By another order dated 20 July, 1953  Bagchi was  placed under suspension.  On the following  day  Bagchi was served with 11 charges.  An enquiry into the charges was made  by an officer appointed for the purpose.  The  Enquiry Officer  reported  that  some of the  charges  were  proved. Bagchi  was asked to show cause on 18 March. 1954 as to  why he  should  not  be  dismissed  from  service.   Bagchi  was dismissed on 27 May, 1954. This   Court  in  Bagchi’s  case  (supra)   considered   two questions.   First,  whether  the  enquiry  ordered  by  the Government  and  conducted by an executive  officer  of  the Government   against   the  District  and   Sessions   Judge contravened  the  provisions  of Article  235  of  the  Con- stitution  which  vests in the High Court the  control  over district courts 374 and courts subordinate thereto.  Second, whether rule  75(a)

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of the West Bengal Service Rules could be utilised to extend the service of Bagchi beyond the normal age of retirement. This  Court held in Bagchi’s case (supra) that the rule  was modeled  on Rule 56(a) of the Fundamental Rules and was  not designed to be used for the purpose of retaining a person in service  for enquiry against him but to keep  in  employment persons  with  meritorious  record  of  service  and   whose retention  in  service  is considered  necessary  on  public rounds.   If retention in service for enquiry was  needed  a rule  similar  to rule 56(a) of the  Fundamental  Rules  was required. On  the question of control by the High Court under  Article 235  this Court held in Bagchi’s case (supra) that the  word "control"  as  used  in Article  235  includes  disciplinary control or jurisdiction over district judges.  This  control is vested in the High Court to effectuate a purpose, namely, the   securing  of  the  independence  of  the   subordinate judiciary  and unless it includes disciplinary  control  the very  object  would be frustrated.  The  word  "control"  is accompanied  by  the word "vest" which shows that  the  High Court  is  made the sole custodian of the control  over  the judiciary.   Control is not merely the power to arrange  the day  to  day working of the court but  contemplated  discip- linary  jurisdiction  on  the  presiding  judge.   The  word "control"   includes   something   in   addition   to   mere superintendence over these courts.  The control is over  the conduct and discipline of judges.  The inclusion of a  right of  appeal  against  the orders of the  High  Court  in  the conditions   of  service  indicates  an  order   passed   in disciplinary  jurisdiction.  The word "deal" in Article  235 also indicates that the control is over disciplinary and not mere administrative jurisdiction.  The word .,court" in  the term  "district court’ is used compendiously to  denote  not only  the  court proper but also the presiding  judge.   The control  which  is  vested in  the-High  Court  is  complete control  subject  only to the power of the Governor  in  the matter  of appointment including dismissal and  removal  and initial  posting and promotion of District  Judges.   Within the  exercise of the control vested in the High  Court,  the High Court can bold enquiries, impose punishments other than dismissal  or .removal subject however to the conditions  of service,  to a right of appeal if granted by the  conditions of  service and to the giving of an opportunity  of  showing cause  as  required  by  Article  311(2)  unless  such   ,in opportunity  is dispensed with by the Governor acting  under the  provisos, (b) and (c) to that clause.  The  High  Court alone will make enquiry into disciplinary conduct. The  Advocate General on behalf of the State submitted  that the control of the High Court is subject to limitations  and these limitations ,ire conditions of service.  If under  the conditions  of  service confirmation is to be  made  by  the Governor, this is said to be, a limitation on the control of the High Court.  That turns on the primary question  whether confirmation is within the power of appointment. In the High Court, Calcutta v. Amar Kumar Roy(1) the respon- dent asked for a declaration that he was senior in the cadre of Sub- (1)  [1963] 1 S.C.R. 437. 375 ordinate  Judges if no supersessions had taken place.   This Court  held that Article 235 read with service rules  slowed that  a  Munsif had no. right to promotion  which  could  be enforced  through court.  It is not correct to say that  the High  Court should have consulted the State  Public  Service Commission    because   Article    320(3)(c)    contemplated

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disciplinary matters.  There was no reduction in rank of the respondent in that case.  All Subordinate judges were in the same cadre and held the same rank irrespective of seniority. Losing  place  in  the  seniority  1st  did  not  amount  to reduction in rank. in  Chandra Mohan v. State of Uttar Pradesh &  Ors.(1)  this Court considered Article 233 and the question of appointment of  District Judges.  The appellant in that case  challenged the recruitment of District Judges.  The Governor under  the Rules decided on the number of candidates to be selected.  A Selection  Committee was constituted under the  Rules.   The High Court submitted to the Government a list of  candidates considered suitable for appointment.  The Governor made  the appointments  from  the list.  It was contended  that  under Article  233  the Governor has to make the  appointments  in consultation  with  the High Court concerned and  under  the rules  he  had  to consult  the  Selection  Committee,  and, therefore,  the appointments made in consuitation  with  two authorities instead of one were illegal. It  was  held  in Chandra Mohan’s case  (supra)  that  under Article 233 the Governor can appoint a person to the post of a district judge from the services only in consultation with the  High Court.  This Court said that Judicial  Service  is defined in Article 236(b).  The definition is exhaustive  of the service because the expression means service  consisting exclusively of persons intended to fill the post  ofdistrict judge and other civil judicial post inferior to the post  of district  Judge.   The  judicial service  is  the  exclusive service of judicial officers.  In the case of appointment of persons to the Judicial Service other than District  Judges, they  will be made by the Governor in accordance with  rules framed  by him in consultation with the High Court  and  the Public  Service Commission.  But the High Court has  control over  all’  the  district  courts  and  courts   subordinate thereto,. subject to certain prescribed limitations. The  Selection  Committee under Rule 13 in  Chandra  Mohan’s case (supra) was to consist of two judges of the High  Court and the Judicoal Secretary to the Government.  The Selection Committee under Rule 17 was to draw up a list of  candidates selected.  The High Court was to submit to the Governor  the list of candidates considered suitable for appointment  from two  sources  of recruitment, viz., direct  recruitment  and recruitment   by  promotion.   This  Court  said  that   the Selection  Committee reduced the High Court to the  position of  a  traasmitting  authority  The  High  Court  could  not scrutinise the other applications which were screened by the Selection  Committee.   The High Court could  not  recommend persons  for appointment not found in the list.  This  Court therefore held the Rules regarding Selection Committee to be unconstitutional. (1)  [1967] 1 S.C.R. 77. 376 In  State  of Assam v. Ranga Mohammed & Ors.(1)  this  Court considered  as  to  whether  the High  Court  or  the  State Government  was  the competent authority for transfer  of  a district  Judge.   The High Court held that the  High  Court alone  could order transfer and in any event the High  Court was to be consulted and was not consulted before the  orders were  made.  This Court held that the Governor is only  con- cerned  with the appointment, promotion and posting  to  the cadre  of District Judges and not with the  District  Judges already  appointed, promoted and posted to the  Cadre.   The word  "posting" in Article 233 was held to mean  to  station some  one  at a place or to assign someone to a  post.   The words  "appointment,  posting and  promotion"  indicate  the

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stage  where  a  person first gets a  position  or  job  and "posting"   by  association  means  the  assignment  of   an appointee or promotee to a position in the cadre of District Judges.   The  word "posting" cannot be  understood  in  the sense  of  "transfer"  when the  idea  of  appointment,  and promotion  is involved in the combination.  If  posting  was intended  lo mean transfer the draftsman would  have  hardly chosen to place it between "appointment" and "promotion". The  Governor under Article 233 is only concerned  with  the appointment, promotion and posting to the cadre of  district judges but not with the transfer of district judges  already appointed or promoted and posted to the cadre.  Transfer  is a matter of control over district courts which is vested  in the High Court.  In Article 234 the question of  appointment of  persons  other  than district  judges  to  the  judicial service  is  contemplated.  In Article 235 the  posting  and promotion  of persons belonging to the judicial  service  of the  State and holding any position inferior to the post  of district  judge  is contemplated.- The word "post"  is  used twice in Article 235 to mean the position or job and not the station or place and therefore posting means assignment to a position or job. In Ranga Mohammed’s case (supra) this Court said  that  transfer of incumbents is a  matter  within  the control of district Courts including the control of  persons presiding there and the High Court is the authority to  make transfer,  and there is no question of consultation on  that ground.  The State Government is )lot the authority to order transfers. In  G.  S.  Nagmoti v. The State of Mysore  (2)  this  Court considered the meaning of the word "control" in Article 235. At the request of the High Court the Government appointed  a judge to hold the departmental enquiry into the conduct of a judicial officer.  The learned Judge of the High Court  held the  departmental  enquiry and found  the  Judicial  Officer guilty of the charge.  He recommended to tile Governor  that the Judicial Officer might be reduced in rank and might  not be  considered  for promotion for two years.   The  Governor compulsorily retired the Judicial officer from service.  The Judicial Officer thereafter filed a writ petition contending that  the  compulsory  retirement was  in  contravention  of Article  235 because it was the High Court alone  which  has power of holding disciplinary proceedings against the (1) [1967] 1 S.C.R. 454. (2) [1969] 3 S.C.R. 325. 377 Judicial Officers.  This Court held that the word  "control’ in   Article   235   includes   disciplinary   control   and jurisdiction over District Judges.  The control of the  High Court is not merely the power to arrange day to day  working of the court but contemplates disciplinary jurisdiction over the  presiding  Judge.   This  Court  did  not  examine  the contentions  of the Judicial Officer because the High  Court had  dismissed  the  petition in  limine.   The  matter  was remitted  to the High Court for disposal in accordance  with law. In Chandramouleshwar Prasad v. Patna High Court & Ors.(1) it was said that under Article 233 the appointment of a  person to  be  District Judge rests with the Governor but  he  must make  the appointment in consultation with the  High  Court. The Governor should make up his mind after there has been  a deliberation  with the High Court.  The consultation is  not complete or effective before the parties thereto make  their respective points of view known to the other or others.   It was  said that the Governor cannot discharge  his  functions under  Article 233 if he makes the appointment of  a  person

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without  ascertaining, the points of view of the High  Court with regard thereto. In  State of Assam & Anr. v. Kuseswar Seikia & Ors.  (supra) Article 233 was considered as to whether the appointment  of a  person  belonging  to  the  State  Judicial  Service   to officiate  as  Additional District and  Sessions  Judge  was within  the  power of the Governor or the High  Court.   The High  Court  held  that the promotion  of  Rajkhowa  by  the Government as Additional District Judge was void because  he could only be promoted by the High Court under Article  235. The  Assam Judicial Service consisted of the  senior  branch and  the junior branch.. The senior branch consisted of  two grades.    The  first  grade  consisted  of  the  posts   of Registrar, Legal Remembrancer, District Judges.  The  second grade  consisted  of  the post of  Additional  District  and Sessions Judges.  The Junior branch in Grade I consisted  of the  post of Subordinate Judges and Deputy  Registrar.   The Junior Branch in Grade II consisted of Munsif and  Assistant Registrar.  Rajkhowa was appointed as Deputy Registrar  from the  grade  of Munsif.  Thereafter  the  Governor  appointed Rajkbowa  to officiate as Additional District  and  Sessions Judge. This  Court held in Kuseswar Seikia’s case (supra) that  the High  Court  has  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. The expression "Judicial Service" is defined in Art. 236  to mean 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.    The expression   "district  Judge"  includes  among  others   an additional district Judge and an additional sessions  Judge. The  promotion of persons belonging to the judicial  service but  holding a post inferior to the district judge vests  in the  High  Court.  Because the expression  "district  judge" includes an additional district judge and (1)  [1970] 2 S.C.R. 666. 378 an  additional  sessions  judge,.  they  ;rank  above  those persons whose promotion is vested in the High ’Court.  It is the function of the Governor to promote Additional  District Judge and Additional Sessions .Judge to be District Judges. This  Court held that under Article 233 the  appointment  as well  as  promotion of persons to be District  Judges  is  a matter for the Governor in consultation with the High Court. District judges are directly appointed or are promoted  from the   subordinate  rank  of  the  judiciary.   The   initial appointment  as well as the initial promotion of persons  to be district Judges is with the Governor. In  Kuseswar  Seikia’s  case (supra) this  Court  said  that further promotion of District Judges is a matter of  control of  the High Court.  Therefore, the initial  appointment  of persons  to  be  District  Judges as  well  as  the  initial promotion  of  persons  to be District Judges  is  with  the Governor.  Once they are appointed and promoted to be  Dist- rict  Judges the entire control is thereafter vested in  the High Court.  As to what further promotion of District Judges can  be,  is illustrated by their appointment  to  Selection Grade posts. In  State  of  Assam & Anr. v. S. N. Sen &  Anr.  (supra)  a question  arose  as  to who was  the  proper  authority  for confirming a member of the Assam Judicial Service.  Sen  was confirmed  by  the High Court in Judicial  Service  Grade  I

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against  the post of Subordinate Judge.  The  relevant  rule provided  that  "when a person is appointed to  a  permanent post  be will be confirmed after the period of probation  in the case of Deputy Registrar and Assistant Registrar by  the High  Court  and  in ,other cases it will  be  made  by  the Governor   in  consultation  with  the  High   Court."   The Accountant  General refused to accept the confirmation  made by  the High Court.  This Court held that under Article  235 the power of promotion of persons holding posts inferior  to that  of  the District Judge being in the  High  Court,  the power to confirm such promotions is also in the High  Court. The  Advocate General relied on this decision and said  that if  the  power of appointment was with  the  Governor  under Article 233 the power of confirmation was with the  Governor because  the  process of appointment is not  complete  until ,confirmation. The  confirmation of persons appointed to be or promoted  to be District Judges is clearly within the control of the High Court  for these reasons.  When persons are appointed to  be District  Judges  or  persons are promoted  to  be  District Judges  the  act  of  appointment as  well  as  the  act  of promotion  is complete and nothing more remains to be  done. Confirmation  of an officer on successful completion of  his period  of  probation  is neither a  fresh  appointment  nor completion  of appointment.  Such a meaning of  confirmation would   make   appointment   a   continuing   process   till confirmation.  Confirmation of District Judges is vested  in the  control of the High Court for the reason that if  after the appointment of District Judges the Governor will  retain control over District Judges ’Until confirmation there  will be dual control of District Judges.  The High Court in  that case would have control over ,confirmed District Judges  and the  Governor would have control over  unconfirmed  District Judges.  That is not Article 235. 379 In the recent decision in Shamsher Singh v. State of  Punjab & Anr.(1) this Court held that the High Court under  Article 235  is vested with the control over Subordinate  Judiciary. This  Court said that before a Probationer is confirmed  the authority  concerned  is  under an  obligation  to  consider whether the work of the probationer is satisfactory or he is suitable  for  the  post.   In  the  absence  of  any  rules governing the probationer in this respect the authority  may come to the conclusion that on account of inadequacy for the job  or for any temperamental or other object not  involving moral  turpitude the probationer is unsuitable for  the  job and hence must be discharged.  No punishment is involved  in this.  The suitability of a person to a post is of permanent importance in considering the question of confirmation. District  Judges can be promoted to selection  grade  posts. Similarly grant of leave to the District Judge is vested  in the  High  Court The control over District  Judges  includes also the posting of District Judges. The  Governor  has  power to pass  an  order  of  dismissal, removal  or termination of the recommendations of  the  High Court  which  are made in exercise of the power  of  control vested  in the High Court.  The High Court of  course  under this  control  cannot terminate the services or  impose  any punishment on District Judges by removal or reduction.   The control  over  District  Judges is  that  disciplinary  pro- ceedings are commenced by the High Court.  If as a result of any  disciplinary  proceedings any District Judge is  to  be removed from service or any punishment is to be imposed that will be in accordance with the conditions of service. The  order  passed  by the Governor  shows  that  the  State

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considered  Rao  to have  committed  serious  irregularities which  made him unfit for confirmation.  It is  indisputable that  Rao was promoted to the post of District and  Sessions Judge.  His reversion carries a stigma as well as  reduction in  rank,  and, therefore, he was entitled to  be  given  an opportunity to show cause against the proposed action within Rule 9. The  conclusion of the majority judgment that the  order  of confirmation is to be passed by the Governor in consultation with the High Court is erroneous and is set aside.  Rule  10 which  confers power Governor to confirm is ultra vires  the Constitution,   The  order  confirmation  of  District   and Sessions Judge is to be passed by the Court.  The  unanimous view quashing the order passed by the Governor directing the removal  because the same was based on enquiry conducted  by the Director, Special Enquiry Agency, otherwise, through ’or with the concurrence of the High Court is upheld.  unanimous view  that provisions of Rule 9 of the Punjab Civil  Service (Punishment  and Appeal) Rules are not complied with  is  up held. This Court in the majority view in  Shamsher Singh v.  State of Punjab and Anr.(1). and Ishwar Chand Aggerwal v. State of Punjab(2). (1)  [1975] 1 S, C. R. 814. (2)  C.A. 623 of 1974 decided on 23rd August, 1974. 380 pointed  out  that  the High Court is to  hold  the  enquiry preferably through District Judges.  The members of the sub- ordinate judiciary look up to the High Court for  discipline and  dignity.   The  enquiry conducted by  the  Director  of Special Enquiry was unconstitutional. The  majority  view of the High Court upheld  the  seniority rule  in the Punjab Superior Judicial Service  Rules,  1963. This  question was not in issue before the High  Court.   We have  not gone into the question.  We express no opinion  on the  seniority rule which is Rule 12 in the Punjab  Superior Judicial Service Rules, 1963. For  those  reasons, the appeal of Rao is accepted  and  the appeal  of the State is dismissed.  The appeal of  the  High Court  is  disposed of accordingly.  The  appellant  Rao  is entitled to costs in this appeal.  There will be one set  of costs to be paid by the State. For  the sake of abundant caution it is made clear  that  in other  cases  where the order of  confirmation  of  District Judge has already been passed by the Governor of a State  in consultation  with  the High Court this judgment  shall  not affect the validity of those instances of confirmation. V.M.K.                                Appeal partly allowed. 381