Gauhati High Court
The Gauhati High Court vs The State Of Assam And Ors. on 1 April, 1992
Equivalent citations: AIR1993GAU11, AIR 1993 GAUHATI 11, (1992) 1 GAU LR 450
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Bhat, C.J.
1. Gauhati High Court, represented by the Registrar "(Judicial) has filed this petition under Article 226 of the Constitution of India seeking a declaration that Rules 13 to 16 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, 1964 Rules) in so far as they apply to members of Assam Judicial Service governed by the Assam Judicial Service Rules (for short, 1967 Rules) in respect of disciplinary matters are ultra vires the Constitution and seeking a Writ of Certiorari quashing Notification dated 2-6-90 issued by the Secretary, Judicial Department, Government of Assam and the order on the basis of which the Notification has been issued. By this Notification, third respondent, a Judicial Officer, who had been earlier dismissed from service by the Governor of Assam on the recommendation of the High Court was reinstated setting aside the decision of the High Court that he is guilty of gross misconduct warranting punishment of dismissal from service. Respondents have filed counter affidavits. We have heard Shri N. M. Lahiri, learned counsel for the petitioner, learned Advocate General, Assam and Shri D. N. Choudhury, learned counsel for third respondent.
2, 3. The fact of the case can be summarised as follows:--
(a) In 1988 third respondent was working as Chief Judicial Magistrate, Darrang, Mangaldol. High Court received several complaints against him. State Government also received complaints against him which were forwarded to the High Court. A preliminary enquiry was conducted through Registrar (Inspection and Enquiry). Meanwhile, third respondent was transferred to Lakhimpur as Chief Judicial Magistrate. The High Court on 6-10-88 resolved to initiate disciplinary proceedings against third respondent and to place him under suspension. Accordingly, third respondent was placed under suspension by order dated 12-10-88. Charges were framed against him on 25-11-88 ?nd copy of the same along with statement of allegations were served on third respondent, who on 9-12-88 submitted written statement denying the charges. The High Court on 6-12-89 considered the written statement, did not accept the same and requested one of the Judges (Hemchoudhury, J.) to act as Enquiry Officer. The Enquiry Officer conducted enquiry and sub- mitted report.
(b) Of the two charges framed against third respondent, charge No. (a) relates to his conduct in having close intimacy with a temporary member of the staff in his establishment and the wife of a Grade IV employee in his establishment and the visits of the former to his residence at odd hours and his own visit to the residence of the latter and his conduct in spending nights in her residence (specifically on two dates identified in the charge): and charge No. (b) relates to his conduct in bringing a girl with the assistance of a Process Server of his establishment and keeping the girl on the night mentioned in the charge at his residence for satisfying his lust. The Enquiry Officer held that charge No. (b) and that part of No. (a) relating to his intimacy with a member of his staff were not proved but the latter part of charge No. (a) relating to his intimacy with the wife of a Grade IV employee of his establishment and his visits to her residence on the two nights in question were proved. High Court on 9-5-89 considered the report and accepted the same and provisionally resolved that proper punishment would be one of dismissal from service and further resolved to issue show cause notice to the third respondent. He submitted explanation against the show cause notice. High Court on 14-8-89 considered and rejected his explanation and resolved to recommend to the Governor imposition of punishment of dismissal from service. By letter dated 7-9-89 the Secretary, Judicial Department to the State Government wrote to the Registrar requesting the High Court to reconsider the decision and the Registrar on 22-11 -89 sent a reply intimating that the High Court stood by its recommendation and requested the Government to pass orders, particularly, in the light of the decision in AIR 1988 SC 1388. The Governor on 23-11-89 passed the order of dismissal.
(c) Third respondent preferred an appeal to the Governor against the order of dismissal. The Secretary, Judicial Department to the State Government wrote to the Registrar requesting the High Court to offer parawise comments. The High Court on 9-3-90 declined to offer parawise comments on the ground that appeal to the Governor was not maintainable. The High Court also resolved to request the State Government to carry out appropriate amendments to the 1964 Rules by replacing the provision for appeal by a provision for review before the High Court. It appears, the then Minister for Law issued notices to Registrar of the High Court and the third respondent to appear before him and to submit arguments, heard the counsel for the third respondent (Registrar did not appear before him) and passed an order holding that the conclusion of the Enquiry Officer against the third respondent was not sustainable and revoking the earlier order of dismissal. In due course, the Secretary, Judicial Department to the State Government issued the revocation order and directing that the third respondent would be entitled to full pay and allowances for the suspension period. The request of the High Court to bring about appropriate changes in the 1964 Rules was rejected by the Government as seen in the letter dated 16-8-90 of the Secretary, Judicial Department of the State Government addressed to the Registrar of the High Court. The appeallate order of the Governor (Government) has constrained the High Court through Registrar to file this writ petition challenging the Rules 13 to 16 of the 1964 Rules as also the appellate decision.
4. Shri Lahiri, learned counsel for the petitioner has taken us through the relevant provisions of the Constitution including Article 235 and also almost all the decisions of the Supreme Court having a bearing on the subject and a decision of the Andhra Pradesh High Court to contend that the provision for appeal to the Government against the penalty imposed on a Judicial Officer governed by Article 235 and the 1967 Rules is ultra vires Article 235 as it militates against the doctrine of independence to Judiciary enshrined in Article 235 and other provision, the right of appeal to the Governor is unconstitutional and, therefore, the order of the Government reinstaing third respondent is bad in law. Learned counsel, dealing with the the protection in Article 235 to conditions of service and right of appeal granted to a Judicial Officer by the Rules framed by the Governor, submitted that as long as the right of appeal is provided in the Rules, the Judicial Officer has the right to invoke it but if a Minister or the Government or Secretary to the Government is to hear such an appeal and pass an order sitting in judgment over the report of the Enquiry Officer, in this case, a Judge of the High Court and the recommendation of the High Court, such action would be violative of Article 235 and the principle of independence of Judiciary enshrined in the Constitution. To a query by the Court as to how the right of appeal is to be effectuated if the Governor or the Government cannot be the appellate authority, Shri Lahiri submitted that either there should be a right of appeal to the Full Court of the High Court on the Administrative side and not a right of appeal to the Governor or the Government or, if appeal could lie to the Governor or Government, the appeal should be forwarded to the High Court and the recommendation of the High Court as to the manner of disposing the appeal has to be obtained from the High Court and the Governor/ Government should act on the recommendation and dispose of the appeal. Learned Advocate General, Assam and Shri D. N. Choudhury supported the vires of the impugned Rules and contended that there is nothing wrong in the Governor/Government sitting in judgment over a decision of the High Court on the Administrative side as it is consistent with the service conditions of Judicial Officers of the State and the provisions of 1967 Rules, that neither the provisions in the 1964 Rules, nor the impugned order violate the principle of independence of Judiciary or Article 235 of the Constitution. They contended that since conditions of service and the Rules provide for appeal as specifically permitted by the later part of Article 235 they cannot be held to be illegal. Control of the High Court over Judicial Officers is subject to the operation of the later part of Article 235. They also argued on the merits in support of the impugned order, which according to Shri Lahiri is insupportable on facts.
5. The following points arise for consideration :
(1) Whether any of the impugned Rules in the 1964 Rules are ultra vires the Constitution;
(2) Whether the impugned order of the State Government is liable to be quashed as violative of Article 235 of the Constitution or for any other reason.
6. 1967 Rules were framed by the Governor of Assam in exercise of the powers under proviso to Article 309 read with Article 234 of the Constitution of India and in consultation with Gauhati High Court and Assam Public Service Commission. The Assam Judicial Service consists of three Grades -- Grade I taking in Selection Grade District and Sessions Judge, District and Sessions Judge and Registrar; Grade II taking in Chief Judicial Magistrate, Assistant District and Sessions Judge, Deputy Registrar and Special Judge; and Grade III taking in Munsiff, Judicial Magistrate, Sub-Divisional Judicial Magistrate and Assistant Registrar. Posts of Registrar, Deputy Registrar and Assistant Registrar are to be filled up by the Chief Justice by virtue of Article 229(1) of the Constitution. Appointment to posts in Grade I except the post of Selection Grade District and Session Judge is to be made by the Governor either by promotion from Grade II in consultation with the High Court or by direct recruitment from the Bar on the recommendation of the High Court. Appointment to the post of Selection Grade District and Sessions Judge is to be made by the High Court by promotion from Grade I. Appointment to the post of Chief Judicial Magistrates in Grade II is to be made by the High Court by promotion from Grade III and appointment to the post of Assistant District Judge in Grade II is to be made by the Governor by promotion from Grade III in consultation with the High Court. Appointment to post of Special Judge is to be made by the Government in consultation with the High Court. Appointment to posts in Grade III in any year is to be made by the Governor by filling up 50% of the posts in the result of a competitive examination to be conducted by the Public Service Commission arid the remaining 50% of the posts by selection from amongst the members of the Bar conducted by the High Court. The Rules prescribe qualifications for recruitment to various Grades, generally qualifications, training requirement. They also provide for probation, confirmation, pay, rules of seniority, leave, pension, etc.. There are certain features in these Rules which are objectionable and we will consider the same later.
7. 1964 Rules are applicable to all State Government employees except those except-ed in Rule 3. Members of Assam Judicial Service are not excepted. According to Rule 5, all appointments to State Services shall be made by the authorities specified in the Schedule. Item Nos. 3 to 5 in the Schedule are respectively Assam Judicial Service Grade I, Assam Judicial Service Grade II and Assam Judicial Service Grade III. Column (2) of the Schedule shows Governor as the Appointing Authority for all the three Grades. Column (3) shows the Appellate Authority in relation to these three Grades in the Governor. We notice that under the Schedule Appointing and Appellate Authority for all the services is the Governor. Rule 6 dealing with suspension states that the Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Governor in that behalf may place a Government servant under suspension if the conditions mentioned therein are satisfied. Part IV deals with "Discipline". Rules 7 indicates various penalties which may be imposed on a delinquent Government employee' Rule 8 states that the Governor may impose any one or more of the penalties specified in Rule 7 on any Government servant. Any one or more of these panalties can be imposed by the Appointing Authority or by any other authority empowered in this behalf by a general or special order of the Government, provided that no major penalties (clauses (iv) to (viii of Rule 7) shall be imposed by an authority lower than the Appointing Authority. Rule 9 deals with the procedure for imposing penalties. Rule 10, deals with special procedure in certain cases. Part V deals with appeals. Rule 13 states that every Government servant shall be entitled to appeal against an order passed by an authority (a) placing him under suspension under Rule 6; or (b) imposing upon him any of the penalties specified in Rule 7. According to Rule 14, appeal an order of suspension shall lie to the authority to which the authority which made or is deemed to have made the order is immediately subordinate. According to Rule 15, appeal lies against an order imposing penalties specified in Rule 7 to the appellate authority specified in the Schedule and there shall be no appeal against the order of the appellate authority. Against other orders not covered by Rules 13 to 15, a Government servant may appeal to the authority to which the authority passing such order is immediately subordinate and where the order is passed by the Governor, to the Governor. According to Rule 19, every appeal is to be submitted to the authority which made the order appealed against and in the case of serving officers, through the head of the office in which the appellant is serving for the time being. Rule 20 dealing with withholding of appeal states that the authority which made the order appealed against may withhold the appeal if it is an appeal, against an order from which no appeal lies; or does not comply with any of the provisions of Rule 18; or if it is not submitted within the period specified in Rule 17 and no sufficient cause is shown for the delay; or it is a repetition of an appeal already decided and new facts or circumstances of material importance are not adduced. Rule 21 requires the authority withholding an appeal to furnish to the appellate authority a list of the appeals withheld during the previous quarter with the reasons for withholding them. Rule 22 requires the authority which made the order appealed against to transmit to the appellate authority every appeal which is not withheld under Rule 20, together with its comments thereon and the relevant records. Consideration of appeal is dealt with in Rule 23. Sub-rule (1) provides for confirmation or revocation of an order of suspension. Sub-rule (2) contains some provisions regarding appeal against an order imposing penalties under Rule 7. The appellate authority has to consider whether the prescribed procedure has been complied with, and, if not, whether such non-compliance has resulted in violation of any provision of the Constitution or in failure of justice; whether the findings are justified; and whether the penalty imposed is excessive, adequate or inadequate. Appeal-late Authority before passing a final order has to consult the Public Service Commission if such consultation is necessary. Part VI deals with review. Governor has power to review. Governor may, on his own motion or otherwise, call for the records of the case and review any order which is made or is appealable these Rules, and pass appropriate orders after consultation with the Commission where such consultation is necessary.
8. Rules 13 to 16 of the 1964 Rules which are challenged in this case insofar as they affect the Judicial Officers of the State are the provisions regarding appeals. The challenge, as we have indicated, is based entirely on the doctrine of independence of Judiciary, which is a basic feature of the Constitution, on Article 235 of the Constitution and related provisions.
9. We may now advert to some of the relevant provisions in the Constitution. Article 50 in Part IV of the Constitution states that the State shall take steps to separate the judiciary from the executive in the public services of the State. Chapter IV of Part V containing Articles 124 to 147 deals with the Union Judiciary. Chapter V of Part VI containing Articles 214 to 232 deals with the High Courts. Chapter VI of Part VI containing Articles 233 to 237 relates to Subordinate Courts. For the purpose of this Chapter, the expression "District Judge" includes, inter alia, additional, district judge, assistant district judge, sessions judge, additional sessions judge and assistant sessions judge, and the expression "judicial service" means 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. Article 233 deals with appointment of District Judges. Appointment 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 concerned. No person shall be eligible to be appointed a District Judge if he is not recommended by the High Court for appointment. Article 234 States that appointment 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 the High Court concerned. Article 235 reads as follows:
"235. Control over subordinate courts. --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 taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
10. Article 235 is in two parts, First part mandates that control over district courts and subordinate courts including posting and promotion and the grant of leave to persons belonging to the judicial service of a State shall be vested in the High Court. This provision is intended to safeguard independence of the subordinate judiciary and protect the officers by making the High Court their guardian and vesting with High Court control over them. The second part of Article 235 is intended to make it clear that the control vested in the High Court in respect of members of the State judicial service shall not involve taking away from any such member any right of appeal which he may have under any law regulating the conditions of his service and the High Court cannot deal with any such member otherwise than in accordance with the conditions of his service prescribed under such law. The second part therefore is a sort of a proviso to the first part.
11. Articles 233 to 235 in Chapter VI of Part VI of the Constitution containe special provisions relating to district judiciary or subordinate judiciary. They constitute definite improvement over the parallel provisions contained in Sections 254 to 256 of the Government of India Act, 1935. Article 233 deals with appointment, posting and promotion of district Judges to be made by the Governor in consultation with the High Court. Article 234 deals with recruitment of persons other than district judges to the judicial service of a State being required to be made by the Governor in accordance with rules framed after consultation with the State Public Service Commission and the High Court. Article 235 deals with control over district courts and courts subordinate thereto including 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 contained in Article 235 shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
12. The Supreme Court has considered the connotation of the word "control" used in Art. 235 and the contours of the control which it is constitutionally permissible for the High Court to exercise over subordinate Courts and Officers in the following decisions:
"The High Court, Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704, State of West Bengal v. N.N. Bagchi, AIR 1966 SC 447, The State of Assam v. Ranga Muhammad, AIR 1967 SC 903, State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, G. S Nagmoti V. State of Mysore (1969) 3 SCC 325, Ratn Gopal Chaturvedi v. State of Madhya Pra-desh, AIR 1970 SC 158, Chandramouleshwar Prasad v. The Patna High Court, AIR 1970 SC 370. The State of Assam v. Kuseswar Saikia, AIR 1970 SC 1616, State of Assam v. S.N. Sen, AIR 1972 SC 1028 : (1972 Lab 1C 571), Samsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974 Lab 1C 1380), The High Court of Punjab and Haryana v. The State of Haryana, AIR 1975 SC 613 : (1975 Lab 1C 375), State of Haryana y. Inder Prakash Anand, AIR 1976 SC 184"l : (1976 Lab 1C 1190), Baradakanta Mishra v. High Court of Orissa, AIR 1976 SC 1899 : (1976 Lab 1C 1202), Baldev Raj Guliani v. The P & H High Court, AIR 1976 SC 2490 : (1976 Lab 1C 1633), State of U.P. v. Ratuk Deo Pati Tripathi, 1978 (2) SLR 1: (1978 Lab 1C 839), Chief Justice, Andhra Pradesh v. L.V.A. Dixitulu, (1979) 2 SCC 34 : (AIR 1979 SC 193), B. S Yadav v. State of Haryana, AIR 1981 SC 561 : (1981 Lab 1C 104), Ranjit Prasad Sinha v. State of Bihar, AIR 1987 SC 1894: 1987 Lab 1C 1633.
13. From the decisions of the Supreme Court referred to earlier, the following principles can be gathered :--
(a) Control over the district judiciary or subordinate judiciary vests in the High Court. The expression "control" is not defined in the Constitution. "Control" is exclusive in nature, comprehensive in extent and effective in operation. Control is vested exclusively in the High Court and, therefore, there cannot be any duality of control. The expression must necessarily include disciplinary control or jurisdiction. Such control should vest in the High Court necessarily to assure independence of subordinate judiciary, since any vesting of such control in outside authority will be destructive of such independence. "Control" includes administrative control, disciplinary control, power to hold disciplinary enquiry and impose punishments other than those referred to in Article 311, power to transfer and post judges, declare satisfactory completion of probation and confirmation, power to promote judges holding posts inferior to that of district Judge, power to grant promotion to district Judges as selection grade district Judges, power to determine seniority of Judges subject, of course, to provisions of any statute or rules governing the same. It will be in the fitness of things for the Governor to consult the High Court even in framing rules or amending rules.
(b) Reading Article 235 with Article 311 it is clear that while the power of imposing punishment of dismissal or removal vests in the Governor, the Governor in exercise of his power shall have due regard to the recommendation of the High Court and act in harmony with such recommendation. Similarly, though it is the Governor who as head of the State has to pass an order prematurely retiring) a judge, he has to, act in harmony with the recommendation of the High Court. It is in public interest that the Governor acts on the recommendation of the High Court. There is no question of supremacy of one organ or the other. It is difficult to conceive how the recommendation of the High Court could be rejected by the Governor acting with the aid and advice of his Council of Ministers, or, as is usually the case, one of the Ministers. The control which the High Court has under Article 235 is subject to any right of appeal which a member of the district judiciary may have under the law regulating the conditions of his service. Conditions of service prescribed by law and right of appeal under the law regulating his conditions of service are protected by Article 235. Such right of appeal cannot be denied to the judicial officer.
14. The writ petitioner does not challenge the prescription of right of appeal in the 1967 Rules, but challenges the location of the appellate power in the Governor being an outside authority as violative of Article 235 and militating against the doctrine of independence of the judiciary. The Supreme Court had no occasion to consider such a specific contention in any of the reported cases. Shri Lahiri places strong reliance on the decision of the Full Bench of the Andhra Pradesh High Court in The High Court of Andhra Pradesh at Hyderabad, represented by the Registrar v. Government of Andhra Pradesh, represented by its Principal Secretary, Home (Courts C) Department, Hyderabad 1988 (2) Andhra Law Times Reports 356 (FB): (1989 Lab 1C 193). Second respondent before the Andhra Pradesh High Court was recruited as District Munsiff and temporarily promoted by the High Court as Subordinate Judge. The High Court placed' him under suspension and departmental enquiry was conducted against him and the Enquiry Officer found him guilty of all charges and recommended infliction of penalty of removal from service. After considering the explanation of the Officer in response to show cause notice, the High Court passed final order removing him from service. The Officer filed an appeal before the Governor under Rule 21(2) of the Andhra Pradesh Civil Services (CCA) Rules, 1963 and the Governor allowed the appeal and set aside the 6rder of removal passed by the High Court. The Registrar of the High Court filed writ petition challenging the order of the Governor and the writ petition was dismissed by a learned single Judge of the Court. The Registrar filed an appeal which was heard by a Full Bench. The Registrar of High Court also filed another writ petition seeking declaration that the rule providing a right of appeal to the Governor against the orders passed by the High Court in its disciplinary jurisdiction is unconstitutional.
15. The Full Bench of the High Court exhaustively reviewed all the decisions of the Supreme Court having a bearing on the subject in controversy, set aside the order of the learned single Judge, upheld the order of the High Court removing the second respondent from service, quashed the order of the Governor and issued a writ of Mandamus directing the State Government not to entertain any appeals or proceedings preferred against the orders passed by the High Court in exercise of its disciplinary jurisdiction over the members of the subordinate judiciary including District Judges in pursuance to Rule21(2) of the 1963 Rules. The reasoning of the Andhra Pradesh High Court can be summarised as follows:
(i) Order imposing major penalty has to be passed by the Governor in accordance with the recommendation of the High Court, which is final and binding on the Governor and, therefore, there cannot be any further appeal as the Governor is the highest authority.
(ii) If Order imposing minor penalty by the High Court can be set aside by the appellate authority, it will be incongruous since the order imposing major penalty is not appealable. Such power in an outside appellate authority is inconsistent with the control vested in the High Court since it would mean that the decision of the High Court is not binding on the Governor. If control over members of the judicial service vesting in the High Court is full and complete, the decision of the High Court has to prevail, whether the formal order is required to be issued by the Governor or by the High Court. If the right of appeal is conceded to any outside authority in the case of imposition of minor penalty, such authority can set aside the penalty or enhance it and this would deprive the High Court of full and effective control vested in it. Therefore, the correct approach is to hold that the right of appeal cannot be to any outside authority in respect of matters affecting the disciplinary control vested in the High Court regarding imposition of penalties on members of the Judicial Service and hence there can be no question of an appeal in such matters. The right of appeal saved under Article 235 cannot take in appeals affecting disciplinary control. The right of appeal saved under Article 235 must relate to matters such as fixation of pay and allowances, pension, etc., i.e., matters relating to conditions of service other than control including disciplinary jurisdiction, which affect the finances of the State. Any law which has the effect of limiting or impining upon such exclusive and comprehensive disciplinary jurisdiction of the High Court would be ultra vires Article 235.
(iii) Rule 21(2) need not be struck down as ultra vires as it is of a general nature and is not expressly stated to be against the orders passed by the High Court in exercise of its exclusive disciplinary jurisdiction. The Rule is therefore read down so as not to render redundant the right of appeal recognized by Article 235. The High Court is the authority competent to impose major as well as minor penalties and there can be no right of appeal against such orders. However, the order imposing major penalties on District Judges, appointed directly or by promotion, and Munsiffs, recruited directly or by transfer, has to be by the Governor. In case of other members of subordinate judiciary, such as, Judicial Magistrate Second Class, District Munsiffs promoted from the cadre of such Magistrates, Subordinate Judges promoted from the cadre of District Munsiffs, since High Court is the appointing authority, High Court alone can impose major as well as minor punishments.
(iv) Rule 11 (I) of the Rules which limits the power of the High Court in imposition of penalties on members of Judicial Service is ultra vires Article 235 to the extent it denies the High Court the authority to impose punishments regarded as necessary and proper in disciplinary enquiries in the case of Judicial Officers holding posts to which they have been appointed by the High Court.
(v) The Governor cannot exercise any appellate power and cannot call upon the High Court to submit the records of enquiry.
16. The Andhra Pradesh High Court placed strong reliance on certain passages at pages 152 to 156 of Volume 2 of the Constitutional Law of India published by the Bar Counsil of India Trust and edited by M. Hidayatullah, former Chief Justice of India. The extracts are seen in paragraphs 40 and 44 of the judgment. The former Chief Justice of India was not the author of the book. The book consists of collection Articles and the passages quoted and relied on by the Andhra Pradesh High Court are from an article by Rana Jois, J. of the Karnataka High Court. The passages placed strong reliance on certain observations in two decisions of the Supreme Court and we refer to the same. In Barada-kanta Mishra's case, AIR 1976 SC 1899 to justify that the word "control" includes disciplinary control it was observed in paragraph 20 at Page 1903 -
"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 control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment ........ Within the exercise of the control vested in the High Court, the High Court can hold enquiries, impose punishments other than dismissal or removal subject however to the conditions of service to a right of appear if granted by the conditions or service....."
Relying on the observations emphasised by us, the article quoted by Andhra Pradesh High Court draws an inference that right of appeal arises only against penalties other than dismissal or removal imposed by the High Court and cannot enure against order of dismissal passed by the Government on the recommendation of the High Court. In The State of Assam v. S. N. Sen, AIR 1972 SC 1028, the Supreme Court considered the question whether High Court had power to confirm the promotion granted to a Munsiff as Subordinate Judge. The Supreme Court held that the rule in the Assam Rules providing for confirmation by the Governor is invalid as it is in conflict with Article 235 of the Constitution; The reasoning was that since the power of such promotion was vested in the High court under the provisions of the Constitution, the power to confirm should vest in the High Court. The sentence relied in the above referred article was one in paragraph 16 of the judgment in S. N. Sen's case which reads thus at page 1030 -
"On the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words _of the first part of this article, this argument has no basis."
The correctness of the judgment of Andhra Pradesh High Court is under challenge in the Supreme Court in Civil Appeal Nos. 2165/89, 2166/89 and 2167/89.
17. There can be four different views in regard to the impugned Rule providing for right of appeal to the Governor :
(i) The provision of right of appeal to Governor is valid;
(ii) The provision for right of appeal to Governor is ultra vires Article 235 and viola-tive of the principle of independent judiciary;
(iii) The right of appeal is valid but the location of the appellate power in an authority outside the judicial system is unconstitutional;
(iv) The impugned provision is valid if it is understood as requiring the Governor to decide the appeal in consultation with and on the recommendation of the High Court.
18. The view that since the punishment is imposed by the Governor in accordance with the recommendation of the High Court there cannot be a further appeal as the Governor is the highest authority, does not appear to be reasonable. Though ordinarily the appellate authority must be somebody different from and higher than the authority which passed the order appealed against, there is no legal principle which militates against both the powers being vested in the same authority. Power of review must necessarily vest in the same authority which passed the order sought to be reviewed. The appellate power can also be vested in the authority whose decision is sought to be challenged. Under Rule 14 of the 1964 Rules every order imposing any penalty prescribed in Rule 7, that is, either major or minor, is appellable. Existence of right of appeal is consistent with principles of natural justice and the security which is to be assured to members of the subordinate judiciary. There is nothing incongruous in a right of appeal. The "right of appeal" protected under the later part of Article 235 is expressed in the widest possible terms and without any limitation. There is no reason to construe the expression "right of appeal" in Article 235 as limited to matters, such as, fixation of pay, allowances, pension etc., that is matters relating to conditions of service other than those relating to disciplinary jurisdiction and which affect the finance of the State. Indisputedly matters such as fixation of pay, allowances, pension etc., at any rate, of judicial officers, are within the purview of the Accountant General and there is hardly any opportunity for the High Court to interfere in those matters. Many of these matters affecting finances of the State being outside the decisional jurisdiction of the High Court, if the view of Andhra Pradesh High Court is to be accepted, the right of appeal protected under Article 235 would be illusory. No provision of any law, much less the Constitution, can be so interpreted as to render it illusory. There is also no warrant for making a distinction between punishment of dismissal or removal on the one hand and other punishments on the other so far as the right of appeal is concerned. The observation in paragraph 16 of the judgment of the Supreme Court in S. N. Sen's case AIR 1972 SC 1028 was made in the context of the discussion about the power of the High Court to make promotion's. We do not think this will help us in coming to the conclusion that right of appeal protected under Article 235 cannot relate to punishments imposed by or on the recommendation of the High Court. The right of appeal referred to relates to right of appeal granted under statutory rules.
19. In one sense it is true that the Governor is an authority outside the judicial hierarchy. But then it is to be seen that he is the constitutional head of the State and the appointing authority in regard to the direct recruitment of judicial officers under Articles 233 and 234 of the Constitution. 1967 Rules go a step further in making the Governor the appointing authority, even in regard to the promotee Assistant District Judges. Appointment to posts of District Judge, Assistant District Judge and 50 per cent of the posts in Grade III can be made only by the Governor on the recommendation of the High Court. It is the mandate of Article 311 that the appointing authority, namely, the Governor alone can impose the punishment of dismissal or removal or reduction in rank. The Supreme Court in several decisions has made it clear that the Governor should impose such punishment acting on recommendation of the High Court. The final order must be passed in accordance with the recommendation of the High Court. Article 311, in so far as it effects the members of the subordinate judiciary, has been understood by the Supreme Court in such a manner as to bring it in harmony with the control vested in the High Court under Article 235.
20. The entire basis of the argument that the Governor is an outside authority and therefore location of appellate power in the outside authority is violative of Article 235 is that the Governor while exercising the appellate power would be acting on the advice of the Council of Ministers or the Law Minister and without the benefit of recommendation of the High Court. There is no warrant for any such assumption. Indisputedly the Governor cannot act on his own or in exercise of his own personal discretion. Except in rare areas delineated by the Supreme Court, Governor acts on the aid and advice of the Council of Ministers. But in regard to the matters effecting judicial officers the Governor is required to act in harmony with the recommendation of the High Court. The right of appeal provided under 1964 Rules, and the location of the appellate authority in the Governor must be understood in the light of the constitutional perspective as expounded by the Supreme Court. If so understood there is no difficulty in arriving at the conclusion that in disposing the appeal, the Governor acts in harmony with the recommendation of the High Court which the Governor or the Government would seek from the High Court on receipt of the appeal through the High Court. In other words, when an appeal against the punishment is received, the Government has a constitutional duty to accept the recommendation of the High Court as to the manner in which the appeal should be disposed of and the Government and the Governor will act in harmony with such recommendation. This protects the right of appeal as well as the independence of the judiciary and safeguards the control vested in the High Court.
21. It has been suggested at the bar that there is no real protection to a judicial officer if the Governor or the Government in disposing of the appeal are to act in harmony with the recommendation of the High Court. We are not able to agree. The recommendation we referred to is not the original recommendation made by the High Court on the basis of which Governor issued the order imposing the punishment but the fresh recommendation which is sought by the Gov-rnor or the Government from the High Court and which is to be made by the High Court on an objective and judicious consideration of the various grounds raised in the memorandum of appeal submitted by the delinquent officer. We have no doubt that in such circumstances the High Court as a high constitutional body endowed with judicial qualities, objective temperament and impartiality would consider the grounds of appeal objectively sincerely and impartially and make suitable recommendation. The High Court cannot be suspected, in such circumstances, of acting in pique or perversity. Naturally when the appeal is considered by the High Court, it should invariably be considered by the Full Court and not by any Committee dealing with disciplinary action or punishment. We are indicating aspects which assure us that the judicial officer who prefers an appeal would be assured of justice.
22. If the provision of appeal to the Governor contained in the 1964 Rules is understood in the above manner as provision for appeal which is required to be disposed of by the appellate authority in consultation and in harmony with the recommendation to be obtained from the High Court on the appeal, the provision cannot be said to impinge on the control vested in the High Court under Article 235 or the principle of independence of judiciary or the comprehensive disciplinary jurisdiction of the High Court. With respect, we are unable to agree with the view taken by the Andhra Pradesh High Court or the opinion expressed by Rama Jois, J. in the article published in the IInd Volume of the Constitutional Law of India. The impugned rules are valid if read down and understood in the above manner.
23. Sri Lahiri has pointed out the disastrous consequences, which would result if the right of appeal is understood as investing in the Governor or the Government power to act without calling for recommendation of the High Court or in disharmony with the recommendation of the High Court. Under the Secretariat Rules of Business Ministers can exercise certain powers and Secretaries to the Government can exercise certain powers. In this case the Minister for Law issued notice to the appellant and Registrar of High Court to appear before him to address arguments in the appeal. Naturally the Registrar of the High Court declined to appear before the Law Minister to address arguments in support of the order of dismissal. The appellant appeared before him through Counsel and addressed arguments and the Minister considered the arguments at length and came to the conclusion that the finding of guilt arrived at by the High Court is erroneous. The Minister of Law even went to the extent of making adverse comments against the conduct of the Enquiring Officer, a Judge of the High Court. The position would be worse if appeal is to be heard by the Secretary to the Government in the department of law, who is invariably a District Judge under the control of the High Court. These consequences would undoubtedly infringe on "control" vesting in the High Court and the principle of independence of judiciary. This will strengthen our conclusion that in disposing of the appeal the Government should act in harmony with the recommendation of the High Court and not act on its own view or act against the recommendation of the High Court made in the appeal.
24. The impugned order was passed by the Governor on the recommendation of Minister for Law, who exercised his own judgment without requesting the High Court to, make its own recommendation on the appeal. We are aware that the Law Secretary addressed a letter to the Registrar of the High Court calling for para-wise comments and the High Court declined to do so. High Court was justified in doing so. Government could not have called for para-wise comments. Instead the Government should have requested the High Court to consider and make appropriate recommendation to enable the Government to dispose of the appeal acting in harmony with the recommendation, the disposal of the appeal would be consistent with Article 235 only if it is disposed of in the manner laid down by us, namely, in harmony with the recommendation of the High Court. Since the disposal of the appeal was made in a totally contrary manner and in a manner so as to violate the control vested in the High Court under Article 235, the order cannot stand. It is only to be quashed.
25. We are distressed that this matter which was initiated in 1988 cannot see the end of the day immediately. In the view we have taken, naturally the appeal would stand revived and the Government will have to request the High Court for its recommendation in regard to the manner of disposal of the appeal and act in harmony with such recommendation. This, would entail further delay. We suggested at the bar th'at if both sides so desire we could arrive at our own conclusion in regard to the grounds raised in the memorandum of appeal and dispose of the matter finally. Sri Lahiri appearing for the Registrar, High Court could not naturally make any concession while Sri Choudhury personally felt that though that would be the best course to be adopted, but he could not agree in view of his instructions. We are, therefore, constrained to send the matter back to the Government. Since we have heard all relevant aspects at great length, before leaving the case, we would like to point out a few anomalies in the 1964 Rules and 1967 Rules.
26. We would like to invite the attention of the State Government to the judgment of the Supreme Court in the State of Assam v. Kuseswar Saikia, AIR 1970 SC 1616, a case which werit up from this State. The Supreme Court referred to Act XII of 1967 by which the designation of Subordinate Judge was altered to Assistant District Judge. On 16-8-1967 new Rules for the Assam Judicial Service were brought into force. The High Court thought that the change in the designation and the change of the Rules was a fraud upon the Constitution. The Supreme Court observed that the High Court should not ignore the hierarchy of Courts in Assam as established by law and the remedy is to have the amendment rescinded. The Supreme Court further observed:
"....We are of the view that the change is likely to lead to an impairment of the independence of the judiciary at the lowest levels whose promotion which was vested by the Constitution in the High Court advisedly, will no longer be entirely in the hands of the High Court. The remedy for it is by amendment of the law to restore the former position. We may say that we do not approve of the change of mere name without any additional bene-fits."
The State Government must necessarily act on the above observations of the Supreme Court since the observations cannot be regarded as mere obiter dieta and even obiter dicta of Supreme Court have force.
27. The Assam Judicial Service Rules, 1967.
(A) Rule 4(3) empowers the Government from time to time to leave unfilled or hold in abeyance any post in the cadre in consultation with the High Court. This provision certainly is of doubtful validity since it impinges on the control vested in the High Court under Article 235 of the Constitution.
(B) Rule 5(4)(c) lays down two methods of appointment to posts in Grade III-- (1) based on the result of the competitive examination to be conducted by the Public Service Commission, and (2) by selection from, among, members of the Bar by the High Court. Since the High Court is the best Judge of suitability of candidates for appointment to judicial posts as repeatedly pointed out by Supreme Court, the Rule requires to be amended to ensure that selection for all the posts in Grade III is made by the High Court.
(C) According to Rule 12(1) the seniority inter se of the members of Grade I and Grade II of the service shall be determined by the Governor in consultation with the High Court. This rule is unconstitutional in the light of decision of the Supreme Court in B. S. Yadav v. State of Haryana, AIR 1981 SC561.
28. The Rules governing the staff of the subordinate Courts vest some sort of control and power in the Governor. Since the control of the subordinate Courts vests completely in the High Court under Article 235, the control of the staff must necessarily vest in the High Court. Such control on the part of the Governor would definitely impinge on the principle of independence of judiciary under Article 235 of the Constitution.
29. The Assam Services (Discipline and Appeal) Rules, 1964.
(A) Rule 6 dealing with suspension must necessarily be understood, in the light of Article 235 of the Constitution and the discussion in this judgment, as vesting the power in the High Court.
(B)The Schedule to the Rules requires modification in the light of the Supreme Court decisions and the observations in this judgment, particularly, in regard to imposition of minor penalties.
(C) Rules regarding appeals shall be understood in the light of this judgment.
(D) Rules 26 and 27 shall not apply to Judicial Officers of the State as such uninhibited power of review vesting in the Governor would be violative of Article 235 of the Constitution and the principle of independence of Judiciary.
30. In the result, we dispose of the writ petition as follows:
(1) We declare that Rules 13 to 16 of the Assam Services (Discipline and Appeal) Rules, 1964 in so far as they apply to the members of the Assam Judicial Service governed by the Assam Judicial Service Rules, 1967 shall be read down as meaning that the Governor as appellate authority shall dispose of the appeal only after obtaining the recommendation of the High Court and acting on such recommendation. The Governor/ Government cannot dispose of the appeal on their own without conforming to the recommendation which may be made by the High Court in regard to the disposal of the appeal.
(2) Since the disposal of the appeal in this case and Annexure-XI judgment and order dated 2-6-90 purportedly delivered by the Minister of Law and the Annexure-XII notification dated 2-6-90 issued by the Government allowing the appeal and revoking the order of dismissal of the 3rd respondent and reinstating him in service with full pay and allowances from the date of suspension till the date of reinstatement treating the intervening period as on duty for all purposes are contrary to the law above declared, the disposal of the appeal, the judgment and order and the notification are quashed as unconstitutional and violative of Article 235 of the Constitution and the principle of independence of the Judiciary which is the basic structure of the Constitution.
(3) Respondents 1 and 2 are directed to ensure that the appeal is dealt with in accordance with the principle referred to in Clause (l) above.
(4) Respondents 1 and 2 are directed to take up the aspects dealt with in paragraphs 27 to 29 and deal with the same in accordance with law and in the light of the observations contained in this judgment.
(5) There shall be no order as to costs.
D.N. Baruah, J.
31. I agree.