TMI Blog1976 (5) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... dre for the purposes of the Constitution must be considered to be one of, other than that of District Judges. It will be governed by Art. 234 and not by Art. 233 which applies to the District Judges who are placed in the Superior Judicial Service. (3) After the cadre was created, the appellant was superseded, but later on was appointed by the Governor as Additional District Magistrate (Judicial). He was later on reverted to the position of a Sub-ordinate Judge and then again promoted to the position of an Additional District Magistrate (Judicial), by a notification issued by the Government. On the 31st July, 1968, he was appointed by the Governor as an Additional District Judge (4) on 8-12-72, by a notification No. 2291 dated 8-12- 72 he was reduced in rank from the Senior branch of the Superior Judicial Service to the Junior branch of the same Judicial Service, i.e. he was reduced to position of an Additional District Magistrate (Judicial) from the position of an Additional District Judge. (5) Later by notification No. 307A dated 3-12-73 he was dismissed from service; again on the same date by another Notification No. 308, he was dismissed from service for the second time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The High Court can conduct an enquiry but cannot dismiss. The High Court will send the report and the recommendation to the Governor who will on consideration of the entire matter pass an order of dismissal if it pleases him, (Ram Gopal v. State of M.P. [1970] I S.C.R. 472, 478) or may reject the recommendation or may ask the High Court to reconsider the whole matter again. Because the Governor is the appointing authority he alone can dismiss (Nripendra Bagchi v. State of West Bengal [1966] 1 S.C.R. 771.) So, appointments, promotion and posting , includes dismissal. (9) The question is who will pass an order reducing a District Judge to the position of an Additional District Magistrate. In the case of Nripendra Bagchi v. State of West Bengal, it was held as follows- Articles '233 and 235 make a mention of two distinct powers. The first is appointment of persons, their posting and promotions and the other is control. It has been decided in the case of Nripendra Bagchi that order of dismissal of a District Judge is to be passed by the Governor. (p. 788). Section 16 of the General Clauses Act provide that the appointing authority is the dismissing authority unless it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they are allowed to do so they contradict mutually. Finally, if a small power like transfer is given to the Governor, it cannot be imagined that an order which means his removal from the category of officers governed by Art. 233 to the category of officers governed by Art. 234 will be done by any authority other than the Governor. (11) The High Court was wrong, ill holding that the reduction in rank could be done by them. Some confusion might have arisen from the fact that District Judges were the members of the Superior Judicial Service and the Additional District Magistrate (Judicial) were also placed in that Service but in the Junior branch. So the High Court might have considered that it was mere matter of promoting and reduction within the same sphere. In common parlance it may so appear, but the Constitution puts them in two different categories. Hence, High Court had no power to pass the order or reduction by the Notification No. 2291 dated December 8, 1972. The two subsequent notifications being based on it are equally null and void. It was urged that the order of the Governor confirming the orders of dismissal will prevail. It cannot be so. The initial order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 13 of the C.C.A. Rules, cl. (VI) is the penalty of reduction in rank, and cl. (IX) is dismissal from service. So, the High Court cannot reduce or dismiss a District Judge. Second question.-Whether the High Court can suspend a District Judge. Rule 12 of C.C.A. Rules and s. 16 of the General Clauses Act, debar the High Court to effect such suspension. Provisions of the General Clauses Act are applicable for interpretation of the Constitution ( vide Art. 367 ( 11 ) . Third question.-Whether the High Court can dismiss an Addl. Dist. Magistrate (Judl.). If the reduction of the appellant, for the above reasons, is without jurisdiction, then the appellant is deemed to be continuing as a District Judge, and in view of the above submission, the High Court cannot dismiss him. Even otherwise, the High Court cannot dismiss him. This is clear from the observation of this Hon'ble Court in Bagchi's case, reported in A.I.R. 1966 S.C. 447 (454)-[1966] 1 S.C.R. 711. Reading the above with Arts. 233 and 234, he (Mr. Sen) contends, and rightly that a District Judge or a Judge, subordinate to the District Judge cannot be dismissed or removed by any authority other than the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the High Court of Orissa (O.J.C. No. 168 of 1964) but the writ petition was dismissed by judgment reported at ILR [1966] Cuttack 503. The Appellant preferred a petition for special leave to appeal to the Supreme Court - SLP (Civil) No. 53 of 1967 - but the same was rejected. And the matter stood concluded. f. The Appellant committed acts of misconduct while working as Sub-Judge, Sundergarh, after his reversion aforesaid. An enquiry was held; the Appellant was found guilty and the punishment awarded was stoppage of two increments. The Appellant was under suspension from 15-5-64 to 9-4-1967. g. The High Court appointed the Appellant to the post of ADM(J), by promotion, on 5.2.1968. Under Rule 10 of the Orissa Superior Judicial Service Rules, 1963, the High Court is the appointing authority empowered to appoint ADM(J)s by promotion from the rank of Sub-Judge. The Governor has no power to appoint ADM(J)s (or to appoint Sub-Judges under the Orissa Judicial Service Rules, 1964, which relate to Munsifs and Sub-Judge; the High Court alone can appoint Sub-Judges by promoting Munsiffs). h. The Appellant was promoted officiating Additional District Judge by the Governor. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-1973 and filed O.J.C. No. 1033 of 1973, which gave rise to CA No. 1513 of 1974. The Appellant did not however appear before the High Court to show cause against the punishment proposed to be awarded. o. The Appellant was dismissed on two counts, which were recorded in two separate orders as the orders were passed on two separate proceedings. (i) By order dated 30-11-1973, the Appellant was dismissed for having been found guilty of the charge of having deserted service. (ii) By another order also dated 30.11.1973-the High Court also awarded the punishment of dismissal on account of the Appellant's conduct leading to his conviction for contempt of court, which was upheld by the Supreme Court in [1974] 2 SCR 282. (iii) Based on the aforesaid orders, two notifications, both dated 3-12-1973, were issued by the High Court dismissing the Appellant from service. (vi) The High Court consulted the Public Service Commission regarding the proposed punishment of dismissal to be awarded to the Appellant, and the PSC had concurred therein. p. The Appellant field O.J.C. No. 1087 of 1973 in the High Court challenging, inter alia, the orders of dismissal, the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M(J) is made only by the High Court by promotion of Sub-Judges r. 10. The Governor makes appointment to the post of District Judge, whether by direct recruitment or by promotion: rr. 8 9. e. These two sets of Rules are in accord with the provisions of Arts. 233, 234 and 235 of the Constitution. And they are also in accord with the two decisions referred to above: [1970] 2 SCR 928, and AIR 1971 A. P. 320. f. It may be mentioned that in Shamsher Singh case [1975] 1 SCR 814-the power of dismissal was rightly held to be in the Governor because the dismissal was of a Sub-judge who had been directly recruited by the Governor, the post of Sub-judge who had been lowest post in the judicial service of Punjab. 3. High Court's power to impose penalties on District Judges-other than those of dismissal or removal. The High Court has power to impose the penalty of reduction in rank. a. The nature and extent of the High Court's control over the subordinate judiciary (including District Judges) under Article 235 of the Constitution was authoritatively determined in Bagchi's case-[1966] 1 SCR 771. And the law so laid down by the Supreme Court has been followed by the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction. emphasis added. The first sentence describes the power to terminate, remove and dismiss as being vested in the Governor. The next sentence excludes the power of termination, removal and reduction from the High Court control. g. It is submitted that the word reduction which occurs in the aforesaid sentence is a non sequitur to what is being discussed/recapitulated in that passage, and appears to have crept in place of the word dismissal in view of the preceding sentence in that passage. The Court in Rao was not at all concerned with the High Court's power to impose penalties and certainly not with the penalty of reduction in rank. h. In any event, the existence of the word reduction in the aforesaid sentence cannot have the effect overruling, or curtailing, or even re-interpreting the High Court's disciplinary control under Article 235 as laid down in Bagchi. Also, Rao does not purport to differ from Bagchi in any manner. Rao cannot be pressed into service by the Appellant in support of the contention that the High Court could not reduce him in rank from the post of District Judge to that of ADM(J). 4. Whether a division Bench can decide the que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment dated 3 December, 1973 of the High Court of Orissa The appellant filed a writ petition for quashing the order of the High Court dated 8 December, 1972 reducing the appellant in rank and for quashing orders dated 3 December, 1973 passed by the High Court dismissing the appellant from service. The High Court dismissed the petition of the appellant. The questions for consideration are two. First, whether the High Court was competent to reduce the appellant in rank. Second whether the High Court could pass orders dismissing the appellant from service. The appellant was appointed by the Governor as a Munsiff in the State of Orissa in 1947. He was in course of time promoted to the post of a Subordinate Judge. The appellant was appointed by the Governor on 28 March, 1962 as Additional District Magistrate (Judicial). In 1961 a separate cadre of Additional District Magistrates (Judicial) was created by the Government. This new cadre was called Superior Judicial Service Junior Branch This cadre is not the same as that of District Judges and Additional District Judges who belonged to Superior Judicial Service Senior Branch. The appellant was on 15 January, 1963 rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered. The Enquiring Judge also found The appellant guilty of tampering with the records of the Court. The Enquiring Judge also found the appellant guilty of the charge that though the appellant was ordered by the Court pending enquiry and during his suspension to fix the Headquarters at Cuttack he did not comply with the order. In the background of this Enquiry the High Court ordered that the appellant be reduced to the rank of Additional District Magistrate. The appellant challenged this order. After the order of reduction on 8 December, 1972 the High Court issued orders posting the appellant as Additional District Magistrate Sambalpur and directed him to join at his new station. The appellant did not join the new station nor did he apply for leave. A fresh disciplinary proceeding was started against the appellant for wilful absence from duty. The matter was enquired into by a Judge of the High Court The appellant submitted that the order reducing him was beyond the powers of the High Court. The Enquiring Judge found him guilty The appellant was given an opportunity to show cause against the order. The appellant did not do so. The High Court thereupon imposed the punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointment, posting and promotion of District Judge is by the Governor. The posting of a District Judge is the initial or the first posting as District Judge. The promotion of District Judge is appointment of persons by promotion to District Judges. When a Subordinate Judge is appointed as a District Judge the appointment is by promotion but it is a fresh appointment by promotion to be a District Judge. Article 234 provides that appointment of persons other than District Judge to the Judicial Service of a State shall be made by the Governor in consultation with the State Public Commission and with the High Court. Article 235 is relevant for the purpose of present appeal. The Article states that control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial Service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of course cannot terminate the services or impose any punishment no District Judge by removal or reduction. The control over District Judge is that disciplinary proceedings are commenced by the High Court. If as a result of any disciplinary proceeding 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. It is indisputable that the appellant was promoted to the post of Additional and Sessions Judge. That is the cadre of District and Sessions Judge. He was reduced in rank. Reduction in rank is one of the major punishment mentioned in Article 311. The major punishments are dismissal, removal, or reduction in rank. The words dismiss, remove or reduce in rank have stigma, namely, the meaning which they bear as three major punishments in Service Rules. The difference between dismissal and removal is that dismissal ordinarily disqualifies any future employment and removal ordinarily does not (See Parshotam Lal Dhingra v. Union of India. If o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the initial authority is void an order of the appellate authority cannot make it valid. The order of the Governor used the word confirm . The appellant filed appeals to the Government. The appeals were dismissed. The confirmation by the Governor cannot have any legal effect because that which is valid can be confirmed and not that which is void. For the foregoing reasons as is pointed out in N. S. Rao's case the High Court cannot terminate the services or impose any punishment on the District Judge. If as a result of a disciplinary proceeding any District Judge is to be removed from service or any punishment is to be imposed that should be in accordance with the conditions of service. In the present case the conditions of the Civil Services (Classification, Control and Appeal) Rules 1962, framed under Article 309 provides in Rule 14(4) that the appointing authority alone can impose penalties as specified in clauses (vi) to (ix) of Rules 13. Clause (vi) is the penalty of reduction in rank and clause (ix) is dismissal from service. Therefore, under the conditions of service the High Court cannot reduce in rank or dismiss a District Judge. If the reduction of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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