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TMI Blog1965 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... 1, 1953 preparatory to retirement. The leave was held inadmissible. He was, however, granted leave from July 17, 1953 to the end of his service. Bagchi, however, reported on April 27, 1953 that he had gone to Puri on April 25, 1953 because his son was ill and asked for one month's leave from April 27, 1953. Leave for 3 weeks was granted which, at his request, was extended to June 5, 1953. 3. By an order dated July 14, 1953 Government ordered that Bagchi be retained in service for a period of two months commencing from August 1, 1953. The order reads : I am directed to state that Government have been pleased to sanction, under Rule 75(a) of the West Bengal Service Rules, Part I, the retention in service of Nripendra Nath Bagchi, Additional District and Sessions Judge, 24-Parganas for a period of two months with effect from 1st August, 1953, the date of his compulsory retirement, in the interest of the public service. 4. Rule 75(a) which was invoked reads as follows :- Rule- 75(a). Except as otherwise provided in this rule, the date of compulsory retirement of a Government servant other than a member of the clerical staff or a servant in inferior service is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of Rule 75(a) of the West Bengal Service Rules have not been complied with. (2) That the service of a civil servant cannot be extended merely for the purpose of dismissal. (3) That the control over the District Courts and the Courts subordinate thereto are vested with the High Court under Article 235 of the Constitution, and the authority competent to take disciplinary proceedings and action against the petitioner or to deal with in any way was the High Court and not any other authority. (4) That the provisions of the Civil Service (Control, Classification and Appeal) Rules in so far as they authorise any authority other than the High Court to take disciplinary action against the person holding the post of petitioner are ultra vires and void under Article 235 of the Constitution. (5) That, in any event, the entire departmental enquiry and proceedings have been conducted in violation of the principle of natural justice. 6. At the final hearing this appeal was confined to the first three points. The fourth point and the allegations about denial of natural justice were not discussed. The three points may be summarized into two : (1) whether the enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ern this case, Even if Rule 56(d) of Fundamental Rules was available it was not utilized. Repeated orders were passed under rule 75(a), West Bengal Service Rules and these orders said that the retention of Bagchi was in the interest of public service. Rule 75 (a) is hardly designed to be used for this purpose. It is intended to be used to keep in employment persons with a meritorious record of service who, although superannuated, can render some more service and whose retention in service is considered necessary on public grounds. This meaning is all the more clear when we come to the end of the rule where it is stated that a government servant is not to be retained after he attains the age of sixty years except in very special circumstances. This language hardly suits retention for purposes of departmental enquiries. 9. Mr. Justice P. B. Mukherji pointed out very appositely the contrast between rule 56 [a] and [d] of the Fundamental Rules. Rule 56 [a] corresponds to rule 75 [a] but rule 56 [d] opens with the words notwithstanding anything contain in clause [a]....... [of the Rule 56]. This shows that they cover different situations and the matters in Rule 56 [d] do not cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such state. [2].......................................... 234 Recruitment of persons other than district judges to the Judicial service. 12. Appointments of persons other than district judges to the juridical 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 he High Court exercising jurisdiction in relation to such state. 235. Control over subordinate courts. The control over district courts and courts sub-ordinate 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 constructed 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 deal with him otherwise than in accordance with the conditions of his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al service. 15. [1] The Governor of each Province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a province. 16. In this section, the expression ' subordinate civil judicial service means a service consisting exclusively of persons intended to fill civil judicial posts inferior to the post of district judge. 17. [2] The Provincial Public Service Commission for each Province, after holding such examinations, if any, as the Governor may think necessary, shall from time to time out of the candidates for appointment to the subordinate civil judicial service of the Province make list or list of the persons whom they consider fit for appointment to that service, and appointments to that service shall be made by the Governor form the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different communities in the Province. 18. [3] The posting and promoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate in Council may make rules for regulating the classification of the civil service in India, the methods of their recruitment, their conditions of service, pay and allowance, and discipline and conduct. Such rules may, to such extent and in respect of such matters as may be prescribed, delegate the of making rules to the Governor General in Council or to local Government, or authorise the Indian legislature or local legislatures to make laws regulating the public services. 22. The Fundamental Rules and the Civil Services (Classification, Control and Appeal) Rules were made by the Secretary of State in Council under the above rule-making power. These rules governed the judicial services except the High Court. Part IX of the Government of India Act dealt with the Indian High Courts, their constitution and jurisdiction. Section 107 gave to the High Courts superintendence over all courts for the time being subject to its appellate jurisdiction and enumerated the things the High Court could do. They did not include the appointment, promotion, transfer or control of the District Judges. High Courts could only exercise such control as came within their superintendence over the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judiciary and his suggestion was to leave to the Provincial Legislatures the genera! power but to introduce in the Constitution a provision which would in one respect override those powers, namely, a provision vesting in the High Courts, as part of their administrative authority, power to select the individuals for appointment to the Civil Judicial Services, to lay down their qualifications, and to exercise over the members of the service die necessary administrative control. He said that the powers of the local Government should be to fix the strength and pay of the services to which the High Court would recruit and to lay down, if they so thought fit, any general requirements...... . During the debates Marquis of Salisbury asked a question with regard to the general powers of the High Courts and the control over the subordinate courts. It was : As I understood the Secretary of State in his statement, the control of the High Court over the Subordinate judge in civil matters has to be as complete as possible and maintained. Is that so? The answer was, Yes, [No. 7937]. 25. The recommendations of the Joint Committee also followed the same objective. In the repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servant was not to be dismissed by an authority subordinate to that which appointed him, the Governor was also the dismissing authority. The Government of India Act, 1935 was silent about the control over the District Judge and the subordinate judicial services. The administrative control of the High Court under s. 224 over the courts subordinate to it extended only to the enumerated topics and to superintendence over them. The independence of the subordinate judiciary and of the District Judges was thus assured to a certain extent, but not quite. 27. When the Constitution was being drafted the advance made by the 1935 Act was unfortunately lost sight of. The draft Constitution made no mention of the special provisions, not even similar to those made by the Government of India Act, 1935, in respect of the subordinate judiciary. If that had remained, the judicial services would have come under Part XIV dealing with the services in India. An amendment, fortunately, was accepted and led to the inclusion of Arts. 233 to 237. These articles were not placed in the Chapter on services but immediately after the provisions in regard to the High Courts. The articles went a little further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he word control are the Disciplinary Rules. Further, as we have already shown, the history which lies behind the enactment of these articles indicate that control was vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. This aid to construction is admissible because to find out the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sought to be removed and the process by which the law was evolved. The word control , as we have seen, was used for the first time in the Constitution and it is accompanied by the word vest which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge. Art. 227 gives to the High Court superintendence over these courts and enables the High Court to call for returns etc. The word control in Art. 235 must have a different content. It includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eparate the judiciary from the executive in the public services of the State. 31. Mr. Sen next argues that Arts. 309 to 311 (particularly Art. 311) gave a clue to the meaning of the word control . The argument is that the legislation regarding services of the State falls within the jurisdiction of the State Legislature and Art. 309 gives the power of the Style Legislature to regulate the recruitment and conditions of service of person appointed to public cervices and posts in conciliation with the affairs of the State. This is perhaps true. But Mr. Sen seems to make no distinction between legislative and executive powers. Under Art. 162 the power of the Executive of the State is coextensive with that of the Legislature of the State but all that is subject to the other provisions of the Constitution. That the Legislature has the power to make laws relating to the services does not show that the Executive enjoys corresponding executive power if the Constitution indicates otherwise. Art. 310 does no more than state the tenure of the office of the persons serving the Union or the State. That has no bearing upon the present dispute. Art. 311 is, therefore, the only article which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and (c) to Clause (2). He says that by reason of proviso (b), Clause (2) does not apply if the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that it is not reasonably practicable to give to that person an opportunity of showing cause and under Clause (3) the decision of that authority is made final. Again, by the proviso (c), says he, the Governor may dispense with the enquiry altogether if he is satisfied that in the interest of the security of the State it is not expedient to give to any person an opportunity of showing cause. Mr. Sen contends that as the Governor alone can appoint or dismiss or remove District Judges and as he alone can decide whether, for any of the two reasons mentioned in provisos (b) and (c) an opportunity to a District Judge of showing cause against the charges levelled against him shall be denied, the Governor alone can initiate enquiries and cause them to be held and the High Court cannot claim to hold them. In this way, he contends, the extent of control exercisable by the High Courts under Art. 235 must be so cut down as to keep disciplinary jurisdiction out. 37. This argument was not presented in the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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