PETITIONER:
BALDEV RAJ GULIANI & OTHERS
Vs.
RESPONDENT:
THE PUNJAB & HARYANA HIGH COURT & OTHERS
DATE OF JUDGMENT30/08/1976
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1976 AIR 2490 1977 SCR (1) 425
1976 SCC (4) 201
ACT
Constitution of India, 1950--Art. 235--Disciplinary
action over subordinate judiciary--Governor--If bound by
the recommendation of the High Court-Consultation with
State Public Service Commission--If warranted by Art. 235.
Suspended officer reinstated and later compulsorily re-
tired--Effect of--If order of suspension merged with order
of reinstatement.
HEADNOTE
The appellant was a member of the Subordinate Judicial
Service of the State. On receipt of certain allegations the
High Court made a preliminary enquiry and the State Govern-
ment suspended him from service. After the final enquiry
the High Court recommended to the State Government to remove
him from service. The State Public Service Commission, on
reference by the Government, stated that he should be exon-
erated. On the basis of this recommendation, the Governor
ordered the appellant’s reinstatement; but the High Court
did not give him a posting on the view that the order of the
Governor was illegal because of consultation with the Serv-
ice Commission and in accepting its advice, disregarding the
High Court’s own recommendation. The High Court, therefore,
suggested to the Government to review its order of rein-
statement, but the Government did not take any action. The
appellant then filed a writ petition in the High Court
challenging its refusal to give him a posting. In the mean-
time the Governor compulsorily retired the appellant from
service on his attaining 55 years of age.
Dismissing the writ petition the High Court held that
the Governor’s order ;reinstating the appellant was void and
non-est because: (i) it was not passed in accordance with
the provisions of Art. 235 of the Constitution and (ii) the
Government could not have consulted the Public Service
Commission which was an extraneous body.
In appeal to this Court it was contended for the
appellant that (i) the Governor was not bound by the recom-
mendation of the High Court; (ii) the Governor was entitled
under Art. 320(3)(c) to consult the Public Service Commis-
sion on the question arising out of a disciplinary proceed-
ing; and (iii) since the appellant was later compulsorily
retired, the order of suspension merged with the order of
reinstatement, and since no other order of suspension was
passed thereafter, he was entitled to full salary upto the
date of his compulsory retirement.
Dismissing the appeal,
HELD: (1)(a) Articles 233 to 237 relating to the subor-
dinate judiciary are specially carved out and placed in the
safe niche of a separate chapter. For the first time in the
country’s history appeared in the Constitution of India the
concept of control over subordinate courts to vest in the
High Courts. But the appointing authority of a Subordinate
Judge under Art. 235 as well as under the Appointment Rules,
is the Governor. The High Court, in making its recommenda-
tion to the Governor for passing the order of removal, had
rightly conceded the authority of the Governor. Ordinarily
and as a matter of graceful routine, recommendations of the
High Court are and should always be accepted by the Gover-
nor. This is ordinarily so and should be in practice the
rule as a matter of healthy convention. But it will not be
correct always to insist that the Governor has no authority
even under extraordinary circumstances to send the matter
for reconsideration. [434 E; G; D]
426
(b) The quality of exclusive control of the High Court
is not whittled down by the constitutional device of all
orders being issued in the name of the Governor as the head
of the State administration. When, therefore. the High
Court, exercising disciplinary control, over the subordinate
judiciary found, after a proper enquiry, that a certain
officer was guilty of gross misconduct and was unworthy to
be retained in judicial service and, therefore, recommended
to the Governor his removal or dismissal, it is difficult to
conceive how and under what circumstances such a recommenda-
tion could be rejected by the Governor acting with the aid
and advice of ministers or, of one of them. [434 G-H]
The State of West Bengal v. Nripendra Nath Bagchi [1966]
1 S.C.R. 771; and State of Haryana v. Inder Prakash Anand
H.C.S., and others [1976] Supp. S.C.R. 603. referred to.
(c) Whenever in an extraordinary ease, the Governor feels,
for certain reasons, that he is unable to accept the High
Court’s recommendations, these reasons will be communicated
to the High Court to enable it to reconsider the matter.
There is no warrant for introducing another extraneous body
between the Governor and the High Court in the matter of
disposal of a disciplinary proceeding against a judicial
officer. The Governor could not have passed any order on the
advice of the Public Service Commission in this case. The
advice should be of no other authority than the High Court
in the matter of judicial officers. This is the plain impli-
cation of Article 235. There is no room for any outside
body between the Governor and the High Court. In relying
upon the advice of the Commission the Governor took alien
considerations into account and acted erroneously in passing
the order of reinstatement. [435 B, E-F]
Consultation with the Public Service Commission after
receipt of the recommendation of the High Court for removal
of the officer was not warranted by the provisions of Art.
235. Under the Constitution the High Court is the sole
custodian over the discipline of judicial officers. [435 D]
(2) (a) Just as the High Court staff are not serving
under the Government of the State, the judicial officers are
also not under the State Government. They hold posts in
connection with the affairs of the State but are entirely
under the jurisdiction of the High Court for the purpose of
control and discipline. Art. 320(3)(c) is entirely out of
place so far as the High Court is concerned dealing with
judicial officers. [435 F; 436 D]
Pradvat Kumar Bose v. The Hon’ble the Chief Justice of
Calcutta High Court [1955] 2 SCR 1331 and The High Court,
Calcutta v. Amal Kumar Roy [1963]1 SCR 437 distinguished and
held inapplicable.
(b) The Governor cannot pass any order without reference
to the High Court and except on its recommendation. The
matter should not be considered from the angle of supremacy
between one organ over the other. Solution must be found in
harmony and not in cold war between the two organs. [437
A-B]
(3) The character of the order of dismissal and that of
the order of reinstatement in a departmental enquiry is
absolutely different. Suspension is a step to dismissal and
may culminate in dismissal. When an officer is suspended no
work is taken from him but he does not cease to be in serv-
ice. When he is dismissed the link with the service is
snapped and naturally the order of suspension merges in
dismissal. When, however, a suspended officer is reinstated
an order which is different in content and quality from that
of suspension takes effect. The suspended officer, on rein-
statement, goes back to service. A further order may have
to be passed by the authority as to in what manner the
period of suspension will be treated. That will be there-
fore a distinct and separate proceeding apart from the
earlier departmental proceeding in which the order of rein-
statement was passed. If the order of reinstatement is set
aside the officer is bound to revert to his immediate ante-
rior status of suspension in the absence of any order in
that behalf from the Court. [438 A-C]
In the instant case since the order of reinstatement
stood quashed, the appellant would have the status of a
suspended officer on the date of his compulsory retirement.
It is not for this Court to say whether he would be entitled
to his
427
full salary while on suspension. Since the officer had
already retired, it is not necessary for the Governor to
consider the recommendation of the High Court for the pur-
pose of his removal. [438 E-F]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 908
of 1975.
Appeal from the Judgment and Order dated 13-3-75 of the
Punjab and Haryana High Court in Civil Writ No. 2586/71 and
CIVIL APPEAL No. 1041 oF 1975.
Appeal from the Judgment and Order dated 13-3-75 of the
Punjab & Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S.K. Gambir, for the Appellant in C.A.
No. 908/75.
Anand Sarup and H.S. Marwah, for Respondent No. 1 in
C.A. 908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M.N. Shroff and R.N. Sachthey, for Respond-
ent No. 3 in C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by
GOSWAMI, J.--These two appeals are by certificate from
the judgment of the Full Bench of the High Court of Punjab
and Haryana. Both the appeals question the decision of the
High Court---one by the Judicial Officer and the other by
the State Government.
The appellant in Civil Appeal No. 908 of 1975 (hereinaf-
ter to be referred to as the officer) was originally a
member of the Punjab Civil Service (Judicial Branch). He
was appointed as a Subordinate Judge, IV Class, on February
27, 1956. Thereafter he was promoted as a SubJudge, First
Class, and was duly confirmed. While, as a Subordinate
Judge-cum-Magistrate First Class in Amloh, District Patiala,
the Bar Association of Amloh on May 11, 1965, sent a resolu-
tion to the High Court levelling certain charges against the
officer affecting his integrity and impartiality. The High
Court ascertained the facts through a preliminary enquiry
held by the District Judge, apparently, ex parte, at this
stage. Thereafter, on the report of the District Judge a
regular departmental enquiry was instituted. The officer
was suspended by the Government on June 6, 1966, at the
instance of the High Court. The District Judge, Sangrur,
was appointed as the Enquiry Officer on July 21, 1966. He
enquired into the charges levelled against the officer.
The Enquiry Officer submitted his report and found him
guilty of all the charges except one. The High Court agreed
with the Enquiry Officer and came to a tentative conclu-
sive that the officer should be removed from service.
Meanwhile, the services of the officer were allocated to
the State of Haryana with effect from November 1, 1966.
428
The High Court recommended to the State Government of
Haryana to serve a notice under Article 311(2) of the Con-
stitution asking the officer to show cause why the penalty
of removal from service should not be imposed on him. This
was done by the State Government on March 13, 1967. The
officer submitted his explanation through the High Court on
April 20, 1967. The High Court found the explanation to
be unsatisfactory and recommended to the Government that the
officer should be removed from service.
The State Government, although on its own showing,
"was inclined to agree with the views of the High Court and
with the recommendation made by it", however, referred the
case to the Haryana Public Service Commission for advice
purporting to act under Article 320(3)(c) of the Consti-
tution. The Commission advised that no case had been made
out against the officer and that he should be exonerated.
The Governor accepted the advice of the Commission and
passed the order on August 24, 1968, reinstating the officer
in service with immediate effect. The High Court was re-
quested by the Government to post the officer on his rein-
statement. The High Court did not issue any posting order
to the officer as it was of the opinion that the order of
the Government was illegal for the vice of consultation with
the Public Service Commission and for accepting its advice
disregarding the recommendation of the High Court. The High
Court requested the Government to review its order but the
Government did not take any action on that suggestion.
Since the High Court refused to pass any posting order
notwithstanding his several prayers the officer preferred in
the High Court of Punjab and Haryana a petition under Arti-
cle 226 of the Constitution on July 12, 1971, praying for a
writ of mandamus directing the High Court to issue an appro-
priate order of posting and also for a mandamus directing
the Government to disburse full salary to the officer
including the salary for the period under suspension and
other consequential reliefs.
While the writ petition was pending before the Full
Bench, the Governor, accepting the recommendation of the
High Court, passed an order on December 16, 1974, issuing
three months’ notice of compulsory retirement to the officer
and the officer thus retired on March 18, 1975, after at-
taining the age of 55 under the service Rules. The officer
challenged the notice of retirement by way of a writ
petition in the High Court on March 10, 1975. The same
was, however, withdrawn by the officer on March 13, 1975, on
which date judgment of the Full Bench was delivered in the
other writ application out of which the present appeals have
arisen.
The officer, however, later on filed a writ petition No.
747 of 1975 in this Court against the order of compulsory
retirement and he was allowed by us to withdraw the same on
July 30, 1976. The ’ retirement of the officer is, ’there-
fore, not in dispute.
429
The High Court by a majority of four learned Judges
held as follows :--
(1)"Since the impugned order, exonerating the
petitioner from all charges and reinstating him,
was not passed in accordance with the mandatory
provision of the Constitution embodied in Article
235 of the Constitution, order is void and non est
being ultra vires Article 235 of the Constitution
and the High Court was right in not giving effect
to it". They also observed that any recommendation
made by the High Court in exercise of power under
Article 235 must be held to be binding on the
Governor.
(2) "Since the Public Service Commission was
an extraneous body and could not be consulted and
was able to influence the decision of the punishing
authority, the order suffers from a grave constitu-
tional infirmity and is, therefore, liable to be
declared ultra vires Article 235 of the Constitu-
tion and hence void and non est on this ground
too. The High Court was, therefore, right in
disregarding that order and not implementing it by
giving the posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not agree with
the majority with regard to the conclusion on the aforemen-
tioned first point. He, however, agreed with the majority
with regard to the second point and also agreed with the
final decision. The High Court dismissed the officer’s writ
application under Article 226 and held that he could not
claim any relief on the basis of the order of reinstatement
of the Governor of August 24, 1968. The High Court further
held that the dismissal of the petition would "not bar the
State Government from passing an order against the petition-
er in accordance with the recommendation of the High Court
completely ignoring and keeping out of consideration the
advice tendered by the Public Service Commission".
Firstly, the appellants contend that the Governor being
the appointing authority is not bound to accept the recom-
mendation of the High Court and the order of reinstatement
is well within his powers under Article 311 read with the
Rules for Appointment of Subordinate Judges in Haryana and
the Punjab Civil Service (Punishment and Appeal) Rules,
1952, and is perfectly valid. Secondly, they contend that
the Governor is entitled under Article 320(3)(c) of the
Constitution to consult the Public Service Commission with
regard to the matter in question arising out of a disci-
plinary proceeding. Thirdly, it is contended on behalf of
the officer that in view of the fact that he was ultimately
compulsorily retired on the recommendation of the High Court
and the order of suspension merged with the order of rein-
statement it is no longer possible for the Governor to pass
the order of removal of a person who has already retired
from service. it is submitted that m that view of the matter
the writ application had become infructuous. and even the
High Court
430
need not have decided the writ application. It is, there-
fore, submitted on behalf of the officer that since on his
reinstatement the order of suspension lapsed and he had
retired, he would be entitled to his full salary during the
entire period of suspension upto the date of his retirement.
On behalf of the High Court it is submitted that under
Article 235 of the Constitution the sole and exclusive
disciplinary control over the subordinate judiciary being
vested in the High Court the High Court’s recommendation is
binding on the Governor and the Governor ought to have
accepted the recommendation and passed an order of removal
of the officer. It is further submitted that the order of
reinstatement passed by the Governor after consulting the
Public Service Commission is absolutely void and ultra
vires.
The controversies, such as we have to deal with, have
raised their unpicturesque heads from time to time. We are,
therefore, not required to write on a clean slate on this
subject. Even so, one aspect of the matter, viz., that
relating to the consultation with the Public Service Commis-
sion by the Governor with regard to judicial officers’
misconduct assumes a great importance in this case in a
manner that has not arisen earlier before this Court.
The controversy in these appeals is rather disquieting.
In view of several decisions of this Court wherein different
facets of like problems were noticed and resolved one would
have thought that a healthy convention has grown and taken
firm roots by now in fulfilment of one of the cherished
Directive Principles of the Constitution in Article 5 which
is based on the bed-rock of the principle of independence of
the judiciary.
Here, the High Court, after a full enquiry, which has
not been questioned at any stage, came to the conclusion
that the charges of misconduct of a judicial officer were
established and that the officer was of dubious integrity.
Who else but the High Court, in such a situation, is better
posted to determine the issue and advise the Governor ? Yet,
the stark reality is that the High Court’s recommendation
was given a go-by and the Commission’s contrary advice was
preferred by the Governor. Time and again this Court has
been observing hopefully that it will be in the best
interest of a high and healthy tradition for the Governor
to ordinarily accept the recommendation of the High Court in
a disciplinary matter concerning judicial officers !
We are concerned in these appeals with regard to a
disciplinary proceeding in respect of a Subordinate Judge
and hence falling within the purview of Article 235 of the
Constitution. That Article reads as follows :--
Art. 235. "The control over district courts and courts
subordinate thereto including the posting and promotion d,
and the grant of leave W, persons belonging to the judicial
service of a State and holding any post inferior to the post
431
of district Judge shall be vested in the High
Court, but nothing in this article shall be con-
strued as talking 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 other,
vise than in accordance with the conditions of his
service prescribed under such law".
In The State of West Bengal v. Nripendra Nath Bachi(1)
this Court in an elaborate judgment went into the history of
Articles 233 to 237 of the Constitution. This Court held:
"The word ’control’ as we have seen, was used for
the first time in the Constitution and it is accom-
panied 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".
Dealing with the argument based on Article 311 this Court
further observed in the above case as follows :--
"There is, therefore, nothing in Art. 311
which compels the conclusion that the High Court is
ousted of the jurisdiction to hold the enquiry if
Art. 235 vested such a power m it. In our judgment,
the control which is vested in the High Court is a
complete control subject only to the power of the
Governor in the matter of appointment (including
dismissal and removal) and posting and promotion of
District Judges. Within the exercise of the control
vested in the High Court, the High Court can hold
enquiries, impose punishments other than dismiss-
al 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 el. (2)
of Art. 311 unless such opportunity is dispensed
with by the Governor acting under the provisos (b)
and (c) to that clause. The High Court alone could
have held the enquiry in this case. To hold other-
wise will be to reverse the policy which has moved
determinedly in this direction".
Article 235 makes reference to the conditions of service
which are prescribed under Article 309 of the Constitution.
The Punjab Civil Services (Punishment and Appeal) Rules,
1952 (hereinafter to he referred to as the Punishment
Rules), were made by the Governor of Punjab in exercise of
the powers conferred under Article 309 of the Constitution.
The judicial officers also hold posts in connect;on with the
affairs of the State and the rules made under Article 309 so
far as applicable, would govern their conditions of service.
There are also the Rules relating to the Appointment of
Subordinate Judges in
(1) [1966] 1 S.C.R. 771.
432
Haryana (hereinafter to be referred to as the Appointment
Rules) which were promulgated by the Governor in exercise of
the powers conferred by Article 234 read wire proviso to
Article 309 of the Constitution. These Rules were made by
the Governor after consultation with the State Public Serv-
ice Commission and with the High Court.. Under rule 14,
Part F of the Appointment Rules relating to Discipline,
Penalties and Appeals, it is provided as follows :---
"In matters relating to discipline, penalties
and appeal including orders specified in Appendix
B, members of the Service shall be governed by ’The
Punjab Civil Services (Punishment and Appeal)
Rules, 1952’ as amended from time to time.
Provided that the nature of penalties which
may be inflicted, the authority empowered to impose
such penalties or pass such orders and the appel-
late authority shall be as specified in Appendices
’A’ and ’B’ below :--"
In Appendix ’A’ it is provided in item (f) that the punish-
ing authority in case of removal from the service which does
not disqualify from future employment is the "Government"
and there is no appeal therefrom. In item (g) of Appendix
’A’ dismissal is also provided for in similar terms. In
Appendix ’B’ the authority competent to pass an order of
termination of the service of a Subordinate Judge is the
"Government" and there is no appeal against such an order.
It will be seen that under rule 14 of the Appointment
Rules of the Subordinate Judges, the Punishment Rules are
being made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read with
Appendix ’A’ of Part (F) of the Appointment Rules. the
competent authority to remove a Subordinate Judge from
service is the ,Government". It was, therefore, appropriate
that the High Court, after close, of the departmental en-
quiry, when it was satisfied that the officer was guilty of
misconduct deserving removal from service, recommended to
the Governor for his removal. Upto this stage there was no
difficulty. Trouble arose when the Government, although on
its own showing, was inclined to agree with the High Court
thought it proper to obtain the advice of the Public Service
Commission as is usually done in the case of other civil
servants. As stated earlier, the Commission tendered its
advice contrary to the recommendation of the High Court and
held the opinion that the officer should be exonerated from
the charges. The Government accepted the advice of the
Commission and reinstated the officer which resulted in
refusal to accept the recommendation of the High Court.
In the above premises the questions that are raised .are---
(1) Whether the Governor is bound under the
Constitution to accept the recommendation of the
High Court and to pass an order of removal of the
judicial officer.
433
(2) Whether consultation with the Public Service
Commission in a matter of a disciplinary proceeding
relating to the judicial officer under the control
of the High Court is unconstitutional. Is the
order of reinstatement passed by the Government
constitutionally valid ?
(3) If not, what will be the position of the
officer on the date of the officer’s compulsory
retirement ? Is an order of removal possible after
that date ?
There is no dispute that the appointing authority of a
Subordinate Judge under Article 235 as well as under the
Appointment Rules is the Governor. Under Article 235 itself
the Subordinate Judge will be governed by the Appointment
Rules made under Article 234 read with Article 309. The
Appointment Rules by reference, bring in the Punishment
Rules whereby the punishing authority for removal is the
"Government" mentioned in the former Rules.
With regard to the first question the appellants submit
that the Governor being the appointing authority both under
Article 235 and the Appointment Rules read with the Punish-
ment Rules, is the final authority to pass the order of
removal of the officer and is not under any constitutional
obligation to be bound by the recommendation of the High
Court. They rely upon Article 311 of the Constitution read
with the aforementioned service Rules and submit that the
control of the High Court under Article 235 does not impinge
upon the power of the Governor to refuse to accept the
recommendation of the High Court and to pass an appropriate
order.
The learned counsel for the High Court, on the other
hand, submits that Article 235 of the Constitution leaves no
option to the Governor to refuse to accept its recommenda-
tion in a disciplinary matter in respect of a judicial
officer. He draws our attention to a very recent decision
of this Court in State of Haryana v. Inder Prakash Artand
H.C.S. and Others(1) to support his submission. He particu-
larly relies upon paragraph 18 of that decision which reads:
"The control vested in the High Court is that
if the High Court is of opinion that a particular
judicial officer is not fit to be retained in
service the High Court will communicate that to the
Governor because the Governor is the authority to
dismiss, remove, reduce in rank or terminate the
appointment. In such cases it is the contemplation
in the Constitution that the Governor as the Head
of the State will act in harmony with the recommen-
dation of the High Court. If the recommendation of
the High Court is not held to be binding on the
State consequences will be unfortunate. It is in
public interest that the State will accept the
recommendation of the High Court. The vesting of
complete control over the subordinate judiciary in
the High Court leads to this that the decision of
the High Court in matters within its
(1) [1976] supp. S.C.R. 603.
434
jurisdiction will bind the State. ’The Governor
will act on the recommendation of the High Court.
That is the broad basis of Article 235. (See
Shamsher Singh & Anr. v. State of Punjab at page
841)".(1)
It is pointed out by the appellants that in Inder Pra-
kash Anand’s case (supra) the question was whether the State
Government could compulsorily retire a Senior Subordinate
Judge-cum-Chief Judicial Magistrate under the Punjab Civil
Services Rules against the recommendation of the High Court
and that it was not a case relating to dismissal or removal
on the disciplinary side. Though the question involved in
I.P. Anand’s case related to a different matter the above-
quoted observations of this Court, useful for all occasions,
have, hopefully, a wider cast and their significance can be
overlooked only at some peril of the desideratum nurtured in
the Constitution.
The High Court, in making its recommendation to the
Governor for passing the order of removal, has rightly
conceded the authority of the Governor to pass the same.
The question is: Is the recommendation of the High Court
binding on the Governor ? Since the Governor is the ultimate
authority to pass the order of removal it will not be cor-
rect always to insist that he has no authority even under
certain extraordinary circumstances to decline to accept
forthwith, the particular recommendation. Ordinarily and as
a matter of graceful routine, recommendations of the High
Court are and should be always accepted by the Governor.
That is ordinarily so and should be in practice the rule as
a matter of healthy convention.
Articles 233 to 237 relating to the subordinate judici-
ary are specially carved out and placed in the safe niche of
a separate chapter, Chapter VI in Part VI of the Constitu-
tion under sub-title ’Subordinate Courts’. This by itself
is significant. It is a major breakthrough in the Constitu-
tion from the position under the Government of India Act
1935 so far as the subordinate judiciary is concerned and
clearly unfolds the keen awareness of the rounding fathers
in what has been a passionate and raging topic with regard
to independence of the judiciary all through, over the
years.
For the first time, in the country’s history, appeared
in the Constitution of India the concept of control over
subordinate courts to vest in the High Courts. The quality
of exclusive control of the High Court does not appear to be
whittled by the constitutional device of all orders being
issued in the name of the Governor as the head of the State
administration. When, therefore, the High Court exercising
disciplinary control over the subordinate judiciary finds.
after a proper enquiry, that a certain officer is guilty of
gross misconduct and is unworthy to be retained in judicial
service and, therefore, recommends to the Governor his
removal or dismissal, it is difficult to conceive how and
under what circumstances such a recommendation should be
rejected by the Governor acting with the aid and advice
(1) [1975] 1 S.C.R. 814.
435
of the council of ministers or, as is usually the case, of
one of the ministers. It is in this context that this Court
has more than once observed that the recommendation of the
High Court in respect of judicial officers should always be
accepted by the Governor. This is the inner significance of
the constitutional provisions relating to the subordinate
judiciary. Whenever in an extraordinary case, rare in
itself, the Governor feels, for certain reasons, that he is
unable to accept the High Court’s recommendations, these
reasons will be communicated to the High Court to enable it
to reconsider the matter. It is, however, inconceivable
that, without reference to the High Court, the Governor
would pass an order which had not been earlier recommended
by the High Court. That will be contrary to the contempla-
tion in the Constitution and should not take place.
It is not necessary to pursue the matter in further
depth as sought to be canvassed by the parties taking ex-
treme stances in the view taken by us on the second ques-
tion.
With regard to the second submission we are clearly of
opinion that consultation with the Public Service Commission
after receipt of the recommendation of the High Court for
removal of the officer is not warranted by the provisions of
Article 235.
It is true that under Article 235 as well as under the
Appointment and Punishment Rules the Governor is the ap-
pointing and punishing authority. But under Article 235 the
High Court is the sole custodian over the discipline of the
judicial officers. There is no warrant for introducing
another extraneous body between the Governor and the High
Court in the matter of disposal of a disciplinary proceeding
against a judicial officer. It is submitted on behalf of
the appellants that Article 320(3)(c) provides that the
Public Service Commission shall be consulted on all disci-
plinary matters affecting a person serving under the Govern-
ment of a State in a civil capacity. Judicial Officers
although holding posts in civil capacity are not serving
under the Government of a State. They hold posts in connec-
tion with the affairs of the State but are entirely under
the jurisdiction of the High Court for the purpose of con-
trol and discipline. There is, therefore, no constitution-
al justification or sanction for the Governor, even if he
wishes, to consult the Public Service Commission under
Article 320 (3) (c) in respect of judicial officers. Con-
sultation with the Public Service Commission in this case
and preference accorded to its advice ignoring the recommen-
dation of the High Court have introduced a serious consti-
tutional infirmity in the final order of reinstatement
passed by the Governor.
The appellants drew our attention to a decision of this
Court in Pradvat Kumar Bose v. The Hon’ble The Chief Justice
of Calcutta High Court(1) where this Court had to deal with
one of the arguments founded on Article 320(3)(c) of the
Constitution. In the above decision Pradyat Kumar Bose,
who was Registrar and Accountant-General of the High Court
on its original side and who was the
(1) [1955]2 S.C.R. 1331.
436
appointee of the Chief Justice, was dismissed by the Chief
Justice after a full and thorough enquiry held by one of the
Judges of the High Court whose findings were accepted by
the Chief Justice. Inter alia, it was contended before this
Court that the order of dismissal by the Chief Justice was
vitiated as the Chief Justice did not consult the State
Public Service Commission prior to dismissal of the Regis-
trar as provided for under Article 320(3)(c). This Court
repelled the contention holding that Article 320(3)(c) was
contrary to the implications of Article 229 and the language
thereof was also not applicable to the High Court staff
since the members of the High Court staff did not serve
under the Government of the Union or of the State.
It is submitted by the appellants that this court held
that Article 320(3) (e) was not applicable since the Chief
Justice was the sole appointing and punishing authority so
far as the High Court staff was concerned under Article 229
of the Constitution. On a parity of reasoning it is con-
tended by the appellants that since the Governor is the sole
appointing and punishing authority under the Appointment and
Punishment Rules, Article 320(3)(c) is, therefore, clearly
attracted, since, according to them, if Article 229 were not
there the matter would have been considered by this Court in
a different light. We are unable to accept this submission
since, as we have pointed out, just as the High Court staff
are not serving under the Government of the State, the
judicial officers are also not serving under the State
Government.
The appellants also relied upon a decision 01 this Court
in The High Court, Calcutta v. Amal Kumar Roy(1). In this
case also a submission was made in this Court that the
High Court should have consulted the State Public Service
Commission in superseding seniority of a Munsif as a result
of his exclusion from consideration for promotion in a
particular year which resulted in his loss of eight places
in the cadre of Subordinate Judges at the time he was actu-
ally appointed to act as an Additional Subordinate Judge.
The particular officer’s case in substance was that this
exclusion by the High Court amounted in law to the penalty
of "withholding of promotion". It was contended that the
High Court should have consulted the State Public Service
Commission since article 320(3)(c) contemplated disciplinary
matters. This Court disposed of this submission by holding
that losing places in a rank was not ’reduction in rank’ and
that no disciplinary proceedings had been started against
the particular officer and hence there could be no occasion
for the State Public Service Commission being consulted. It
is submitted by the appellants that this Court did not
reject the submission based on Article 320(3)(c), out of
hand, holding that the Article was not applicable. It is
true that the aforesaid submission was disposed of in this
particular manner by this Court in the above decision. That
however, does not mean that this Court categorically held
Article 320(3)(c) was attracted in the case of judicial
officers. The question did not arise in that form.
(1) [1963] 1 S.C.R.437.
437
The matter should not be considered from the angle of
supremacy of one organ over the other. That will be an
entirely erroneous approach. The Constitution reposes
certain power in the Governor even under Article 235. He is
the authority to pass the order of removal, albeit, on the
recommendation of the High Court. That is the constitution-
al scheme. The Governor, however, cannot pass any order, as
has been done in this case, without reference to the High
Court and except on its recommendation. Solution must be
found in harmony and not in cold war between the two organs.
The Governor could not have-passed any order on the advice
of the Public Service Commission in this case. The advice
Should be no other authority than the High Court in the
matter of judicial officers. This is the plain implication
of Article 235. Article 320 (3) (c) is entirely out of
place so far as the High Court is concerned dealing with
judicial officers. To give any other interpretation to
Article 320(3)(c) will be to defeat the supreme object
underlying Article 235 of the Constitution specially intend-
ed for protection of the judicial officers and necessarily
the independence of the subordinate judiciary. It is abso-
lutely clear that the Governor cannot consult the Public
Service Commission in the case of judicial officers and
accept its advice and act according to it. There is no room
for any outside body between the Governor and the High
Court.
The Governor in relying upon the advice of the Public
Service Commission in this case took alien considerations
into account and acted erroneously in passing the order of
reinstatement based on the same. The order of the Governor
is, therefore, constitutionally invalid and is liable to be
quashed and we order accordingly.
That brings us to the third submission of the appellants.
At one stage we thought that we would not consider this
submission since this may arise at the time of payment of
salary for the period of suspension as the officer has
already retired. We, however, find that even in the writ
application there was a prayer for a mandamus to the Govern-
ment to disburse the officer’s full salary during the entire
period of suspension upto the date of his retirement. The
learned counsel for the officer has also argued the matter
fully before us. We would, therefore, deal with the same.
Since the order of reinstatement of August 24, 1968, is
quashed the officer is reverted to the status quo ante as on
the date prior to the aforesaid order. It is undisputed
that he had been under suspension during that period. It is
submitted that on the passing of the order of reinstatement
the order of suspension merged in that order -and since
there is no other order of suspension passed thereafter
either by the High Court or by the Governor the officer on
his compulsory retirement will be entitled to his full
salary as an officer who had already ceased to be under
suspension. It is submitted that the principle of merger
which is generally invoked when an order of dismissal is
passed against an officer under suspension should apply also
in the case of reinstatement.
438
We are, however, unable to accept this submission. The
character of the order of dismissal and that of the order of
reinstatement in a departmental enquiry is absolutely dif-
ferent. Suspension is a step to dismissal and may culminate
in dismissal. When an officer is suspended no work is taken
from him but he does not cease to be in service. When he is
dismissed the link with the service is snapped and naturally
the order of suspension merges in dismissal. Nothing re-
mains to be done about his suspension. When, however, a
suspended officer is reinstated an order which is different
in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes back to serv-
ice. A further order may have to be passed by the authority
as to in what manner the period of suspension will be treat-
ed. That will be, therefore, a distinct and separate pro-
ceeding apart from the earlier departmental proceeding in
which the order of reinstatement was passed. If, therefore,
the order of reinstatement is set aside the officer is bound
to revert to his immediate anterior status of
suspension.There may be certain service rules to take
care of this position but even otherwise the position
will be automatic and the order of reinstatement
being quashed the position of the officer, in absence
of any order in that behalf from the court, will be what he
was earlier, viz., that of a suspended officer. In this
view of the matter, since the order of reinstatement stands
quashed and the officer had been under suspension in a
departmental proceeding awaiting orders of the Governor for
removal, on the recommendation of the High Court, he would
have the status of a suspended officer on the date of his
compulsory retirement. The officer in this case was, there-
fore, compulsorily retired while he was under suspension
from service. It is not for us to decide whether being in
such a position he would be entitled to his full salary
for the entire period of suspension and we refrain from
expressing any opinion on that aspect of the matter. It
should, however, be observed that since the officer has
already retired it will not be necessary for the Governor to
consider the recommendation of the High Court for the pur-
pose of removal of the officer. We, however, do not fail to
see that the Government, on its own. was inclined to accept
the recommendation of the High Court at the initial stage.
In the result the appeals are dismissed and the order of
reinstatement of the officer passed by the Governor stands
quashed for the reasons given in this judgment. There will
be no order as to costs.
P.B.R. Appeals dismissed
439