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PETITIONER: RANJIT PRASAD SINHA

       Vs.

RESPONDENT: STATE OF BIHAR & ANOTHER

DATE OF JUDGMENT16/07/1987

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) MISRA RANGNATH SINGH, K.N. (J)

CITATION:  1987 AIR 1894            1987 SCR  (3) 523  1987 SCC  (3) 650        JT 1987 (3)    84  1987 SCALE  (2)35

ACT:     Civil  Services  (Classification,  Control  and  Appeal) Rules, 1930-- Rules 14, 18 and 57(5)--Read with Constitution of  India--Art.235--Right  of appeal against  imposition  of penalty--Whether accrues to a member if a Provincial Service in the absence of a notification issued under r. 18.

HEADNOTE:     Rule  14  of the Civil Services Rules,  1930  classifies Public Services in India into a number of categories and one such  category is constituted of the ’Provincial  Services’; and.  r. 18 thereof declares that it shall consist  of  such services  under  the  administrative control  of  the  Local Government of a Governor’s Province as the Local  Government may from time to time declare, by notification in the  local Official Gazette, to be included in the Provincial  Services of  that  Province. Rule 49 specifies  the  penalties  which could be imposed upon the members of the Services  specified in r. 14. Rule 56 read with sub-r. (5) of r. 57 confers on a person belonging to any of the classified services specified in r. 14 a right of appeal to the Governor against an  order imposing  any  of the penalties specified in  r.  49,  which right is saved by Art. 235 of the Constitution.     The  appellant, a member of the Bihar Judicial  Service, challenged  an order of punishment served on him inter  alia on  the ground that the appeal filed by him to the  Governor against  the order of punishment should not have been  with- held  by the High Court but should have been  despatched  to the  State  Government  for consideration.  The  High  Court dismissed  the writ petition holding that no appeal  lay  to the State Government. Dismissing the appeal,     HELD: In the absence of positive material providing that the  Subordinate Judicial Service can be regarded as  having been brought within the scope of the Civil Services Rules of 1930.  it is not open to the appellant to rely on the  right of appeal created by those Rules. [525G] 524     In  this case, neither counsel was able to refer to  any notification  designating the Subordinate Judicial  Service,

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of  which the appellant was a member. as one of the  Provin- cial Services specified in r. 14. [525F-G]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3534  of 1986.     From  the  Judgment and Order dated 17.2.  1986  of  the Patna High Court in C.W.J.C. No. 6215 of 1985.     Govind  Mukhoty, S.K. Bhattacharya and U.S.  Prasad  for the Appellant.     Jaya Narain, R.P. Singh, B.P. Singh and Ranjit Kumar for the Respondent. The Judgment of the Court was delivered by     PATHAK,  CJ.  This appeal by Special Leave  is  directed against  the Judgment and Order of the High Court  of  Patna dismissing a Writ Petition filed by the appellant.     The appellant is an Additional Subordinate Judge in  the Bihar Judicial Service. Disciplinary proceedings were  taken against him and ended in an order imposing the punishment of censure, the withholding of annual increments for two years, postponement of his case for promotion for a like period and the denial of emoluments in excess of the subsistence allow- ance  for  the period of suspension. The appellant  filed  a Writ  Petition  in the High Court challenging the  order  of punishment on several grounds but did not succeed. He  urged also  that the appeal filed by him to the  Governor  against the order of punishment should not have been withheld by the High  Court  but should have been despatched  to  the  State Government  for consideration. The High Court held  that  no appeal  lay to the State Government and  therefore  rejected the plea.     On  16 September, 1986 this Court granted special  leave to the appellant confined to the question whether an  appeal lay  to  the Governor against the order of the  High  Court. That is the sole question for consideration before us. To  support  his claim to a right of  appeal  the  appellant relies on  525 the  Civil  Services (Classification,  Control  and  Appeal) Rules  1930.  It is pointed out that  these  Civil  Services Rules  of 1930 have been kept in force by the State  Govern- ment by notification No. III/RI/10 1/63-8051A dated 3  July, 1963 issued under the proviso to Article 309 of the  Consti- tution. The submission of the appellant is that the right of appeal is saved by Article-235 of the Constitution.  Article 235  of  the  Constitution provides 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 the State  and holding  any  post inferior to the post  of  District  Judge shall  be vested in the High Court but that nothing in  that Article may be construed as taking away from any such person any right of appeal which he may have under the law regulat- ing the conditions of service.     The question is whether the appellant is governed by the Civil Services Rules of 1930, Rule 14 classifies the  Public Services in India into a number of categories, and one  such category is constituted of the Provincial Services. Rule  18 declares that the Provincial Services shall consist of  such services  under  the  administrative control  of  the  Local Government of a Governor’s Province as the Local  Government may from time to time declare, by notification in the  local official Gazette, to be included in the Provincial  Services

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of  that  Province. Rule 49 specifies  the  penalties  which could  be imposed upon members of the Services specified  in Rule  14.  Rule  56 confers a right of appeal  on  a  person belonging  to  any of the classified Services  specified  in Rule  14  against  an order imposing any  of  the  penalties specified in Rule 49. Rule 57(5) provides:               "A  member  of a Provincial  Service   .......               may  appeal  to  the Governor  from  an  order               passed by the Local Government". We  enquired  of learned counsel for the parties  whether  a Notification  had  been issued designating  the  Subordinate Judicial Service, of which the appellant is a member, as one of  the  Provincial Services specified in Rule  14.  Neither counsel  was able to refer to any Notification in  that  be- half. In the absence of positive material providing that the Subordinate Judicial Service can be regarded as having  been brought  within  the scope of the Civil  Services  Rules  of 1930,  it is not open to the appellant to rely on the  right of appeal created by those Rules.     Our attention has been drawn to the fact that the  Civil Services  Rules of 1’930 were continued with effect from  22 December 1956, by 526 Notification  No. III/RI/101/63-8051-A dated 3  July,  1963. That does not advance the case of the appellant any  further because the Notification can take effect in respect of  such Service only as has already been brought within the scope of those Rules.     Before leaving this case, we must give expression to our great disappointment that neither party was able to indicate what  were the Rules which governed the Judicial Service  to which the appellant belonged. If no Notification was  issued applying  the Civil Service Rules of 1930 to  such  Judicial Service, there must surely be some other body of Rules which does apply. And if there is none, it is time that such  body of Rules was framed. The present regrettable state of confu- sion must be ended. It would certainly be a matter of grati- fication for the Judicial officers of the State of Bihar  to know where they stand.     In the result, the appeal fails and is dismissed but  in the circumstances we make no orders as to costs. A.P.J.                                          Appeal  dis- missed. 527