JUDGMENT
Vijender Jain, Acting C.J.
Page 2162
1. Mr. M.S. Rohilla, an erstwhile Officer of the Delhi Higher Judicial Service has filed this writ petition and has challenged an order dated 15.2.1995 passed by this Court on Administrative Side whereby it was decided not to Page 2163 place him on probation and to revert him back to the substantive post in Delhi Judicial Service. Earlier this writ petition was heard by a Bench of two Judges of this Court, but on 10.5.2002, when the matter came up for hearing before the then Chief Justice and A.K. Sikri, J, the Bench was pleased to pass the following order:-
This Writ Petition raises interesting question of interpretation of Article 235 vis.a.vis Rule 7 and 16 of the Delhi Higher Judicial Services Rules. According to the petitioner, he had been appointed by the Administrator in terms of Rule 7 of the Rules. The High Court could not have passed the impugned order dated 15th February, 1995 whereby and whereunder, having not been selected, he was reverted to the substantive post. In support of the said contention, reliance is placed in the case of Brij Mohan versus High Court of Judicature of Allahabad Ors. . Learned Counsel for the respondent, on the other hand, contended that having regard to the fact that the petitioner was appointed only in a temporary post may be in officiating capacity, having not been placed on probation, the impugned order could be passed by this Court in terms of Article 235 of the Constitution of India. Keeping in view the importance of the question involved in this Petition, we are of the opinion that this matter be heard by the Full Bench
2. This is how the matter has come up before us to examine the powers of the High Court under Article 235 of the Constitution of India vis-a-vis Rules 7 and 16 of the Delhi Higher Judicial Service Rules in relation to Judicial Officers under the control of the High Court.
3. Before adverting to the facts of this case, we would like to have a look to the provisions contained in Article 235 of the Constitution of India and also Rules 7 and 16 of the Delhi Higher Judicial Service Rules and the same are reproduced hereinbelow:
Article 235
35. 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 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 service prescribed under such law.
Rules 7 and 16
7. REGULAR RECRUITMENT:
Recruitment after the initial recruitment shall be made:-
(a) By promotion on the basis of selection from members of the Delhi Judicial Service, who have completed not less than 10 years of service in the Delhi Judicial Service.
Page 2164
(b) by direct recruitment from the Bar.
Provided that not more than 1/3rd of the posts in the service shall be held by direct recruits.
16. TEMPORARY APPOINTMENTS:
(a) The Administrator may create temporary posts in the Service.
(b) Such posts shall be filled in by the Administrator in consultation with the High Court from amongst the members of the Delhi Judicial Service and by direct recruitment from the Bar.
4. Article 233 of the Constitution of India is also relevant and is reproduced hereinbelow:-
233. Appointment of district judges.-(1) Appointments 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 exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
5. A conjoint reading of Articles 233 and 235 of the Constitution of India makes it explicitly clear that the appointment, posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. It is further clear that after initial appointment of the District Judges, the control over them in matters of their posting, promotion etc., shall be that of the High Court. The control over the subordinate Courts vested in the High Court is a mechanism to ensure independence of the subordinate judiciary.
6. The interpretation and scope of Article 235 of the Constitution of India and the word `control’ over the subordinate judiciary vested in the High Court was considered by the Apex Court in Chief Justice of Andhra Pradesh and Anr. etc. v. L.V.A. Dikshitulu Ors. etc. wherein it was held that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It was further held in the said case that the control over the subordinate judiciary vested in the High Court comprehends wide variety of matters. Among others, it includes:-
(a) (i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311(2).
Page 2165
(ii) In Article 235, the word `control’ is accompanied by the word vest which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court being exclusive, and not dual, an inquiry into the conduct of a member of the judiciary can be held by the High Court alone and no other authority.
7. The same question was also considered by the Supreme Court in the case of The High Court of Punjab and Haryana etc. etc. v. The State of Haryana Ors. etc. etc. wherein it has been specifically observed at page 619 vide paragraph 28 that `control’ which is vested in the High Court is complete `control’ subject only to the power of the Governor in the matter of appointment including dismissal and removal and initial posting and promotion of District Judges. It was further held by the Supreme Court in the above referred judgment that the High Court in exercise of its `control’ over the subordinate Courts cannot terminate the services or impose any punishment on District Judges `by removal or reduction in rank’.
8. The scope and extent of Article 235 of the Constitution of India further came up for consideration before the Apex Court in the case of The Registrar (Administration), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (dead) by LRs. and Anr. wherein the Supreme Court observed as follows:-
We are clearly of the view that while the High Court retains the power of disciplinary control over the subordinate judiciary, including the power to initiate disciplinary proceedings, suspend them pending enquiries and impose punishment on them but when it comes to the question of dismissal, removal, reduction in rank or termination of the services of the judicial officer, on any count whatsoever, the High Court becomes only the recommending authority and cannot itself pass such an order.
9. The same principle as referred hereinabove has been reiterated by the Supreme Court in the case of Yoginath D. Bagde v. State of Maharashtra and Anr. .
10. It emerges from the above referred judgments of the Supreme Court that `control’ of the High Court over the Judicial officers in the subordinate Courts insofar as it relates to disciplinary matters is in the nature of recommendations to be made to the Governor and the High Court by itself has no authority to pass any order against its Judicial officer which has the effect of his removal from service or reduction of his rank held by him at the relevant time. In other words, power to pass the orders regarding termination of services or reduction in rank rests with the Governor of the State.
11. The next question that falls for our consideration is about the nature and character of the post held by the petitioner at the time the impugned order Page 2166 was passed by the High Court on its Administrative Side on 15.2.1995. To examine this question, it would be necessary to know the factual matrix of the case which is given hereinbelow.
12. The petitioner, Shri M.S. Rohilla, was appointed in Delhi Judicial Service in the afternoon of 2.5.1972. He was confirmed in the Delhi Judicial Service on 1.3.1975 and was thereafter granted Selection Grade in officiating capacity in Delhi Judicial Service with effect from 3.5.1980 vide order dated 17.2.1983. On 29.11.1989, he was promoted to Delhi Higher Judicial Service pursuant to Notification dated 1.11.1989. His appointment to Delhi Higher Judicial Service was temporary and in officiating capacity. On 15.2.1995, the High Court on Administrative Side decided not to place him on probation and to revert him back to the substantive post held by him in Delhi Judicial Service before his promotion to Delhi Higher Judicial Service. Later on his work was withdrawn on 24.9.2001 and he was thereafter compulsorily retired in public interest on 28.9.2001.
13. The petitioner had made a representation dated 7.3.1995 against his reversion from Delhi Higher Judicial Service to Delhi Judicial Service. His said representation was rejected by the Full Court on 23.9.1995. Aggrieved by the rejection of his representation, the petitioner has filed the present writ petition and has impugned the order of the High Court dated 15.2.1995 on various grounds.
14. The contention of the petitioner in this writ petition is that his promotion to Delhi Higher Judicial Service on 29.11.1989 pursuant to the Notification dated 1.11.1989 was a regular promotion against a substantive vacancy and, therefore, he could not have been reverted back to Delhi Judicial Service on 15.2.1995 after he had served for about six years as an Officer of Delhi Higher Judicial Service. It was contended that as the appointment of the petitioner to Delhi Higher Judicial Service in 1989 was under Rule 7(a) read with Rule 16 of the Delhi Higher Judicial Service Rules, his appointment by no means can be said to be in `officiating capacity’ or on `temporary basis’. Relying on Rule 13 of the Delhi Higher Judicial Service Rules, it was contended that the petitioner is deemed to have successfully completed his period of probation of two years provided in the Rules as neither his probation was extended nor any adverse remarks were communicated to him by the High Court till the time the impugned order was passed. It was further contended that the High Court could not have passed the impugned order reverting the petitioner as the appointing authority was the Administrator and it was the Administrator alone who could have passed the said order reverting him from Delhi Higher Judicial Service to Delhi Judicial Service.
15. On the other hand, learned Counsel appearing for the High Court has defended the impugned order, inter alia, on the ground that since the appointment of the petitioner to Delhi Higher Judicial Service was temporary in officiating capacity, qua the High Court, the High Court on its Administrative Side had all the powers to pass the impugned order.
16. Having known the stand of both sides, we would first like to look at the Notification dated 1.11.1989 by which the petitioner was promoted Page 2167 from Delhi Judicial Service to Delhi Higher Judicial Service. The said Notification is at page 40 of the paper book which in its entirety is reproduced hereinbelow:-
DELHI ADMINISTRATION: DELHI (LAW AND JUDICIAL DEPARTMENT) Dated the 1st Nov., 1989.
NOTIFICATION
No F.6/5/89-Judl. In pursuance of the provisions of Rule 7(a) read with 16(2) of the Delhi Higher Judicial Service Rules, 1970, the Administrator of the Union Territory of Delhi, in consultation with the High Court of Delhi, is pleased to appoint S/Shri P.K.Dham, M.S. Rohilla and Shiv Charan permanent members of the Delhi Judicial Service to the Delhi Higher Judicial Service, temporarily in officiating capacity with effect from the date they assume charge of their offices.
The above appointments shall be subject to the provisions of Rule 8 of the Delhi Higher Judicial Service Rules, 1970.
By order and in the name of the Administrator of the Union Territory of Delhi.(B.S. CHAUDHARY) Secretary (Law and Judicial) Delhi Administration: Delhi. No. F-6/5/89-Judl./1193 Dated the 1st November, 1989.
17. We had also called for the records of the High Court to ascertain the nature of promotion of the petitioner from Delhi Judicial Service to Delhi Higher Judicial Service in 1989. From the records of the High Court, it is revealed that the promotion of the petitioner from Delhi Judicial Service to Delhi Higher Judicial Service was made by the High Court pursuant to selection under the Rules against a temporary post, though in the Notification dated 1.11.1989, the nomenclature of appointment was given as `temporarily in officiating capacity’. It is clearly mentioned in the Notification, by which the petitioner was promoted, that his appointment to Delhi Higher Judicial Service was under Rule 7(a) read with Rule 16(2) of Delhi Higher Judicial Service Rules. As per these Rules, the High Court is competent to recommend promotions, both against `temporary’ and `permanent post’ in Delhi Higher Judicial Service. The appointment either against `temporary’ or against `permanent post’ can be made in substantive capacity or in temporary/officiating capacity. The petitioner, at the time he was selected for promotion in 1989, fulfillled all the eligibility conditions required under the Rules for promotion to Delhi Higher Judicial Service and his selection was done strictly according to the Rules. The nomenclature in the Notification dated 1.11.1989 that the appointment of the petitioner was in `temporary, officiating capacity’ appears to be a misnomer. For all practical purposes, the appointment of the petitioner appears to us to have been made on regular basis against a substantive vacancy.
18. Since the procedure for selection as contemplated under Delhi Higher Judicial Service Rules was followed while making promotion of the petitioner, his promotion done in 1989 by no means can be said to be an ad hoc or promotion in officiating capacity.
Page 2168
19. In State of U.P. and Anr. v. Dr. M.J. Siddiqui Ors. , it was held by the Supreme Court that even a substantive appointment could be made to a purely temporary vacancy. In the said case, the question for consideration before the Apex Court was whether the appellants were appointed purely on a temporary basis or in a substantive capacity though against temporary posts. The appellants in that case were appointed after reference to and on the recommendation of the Public Service Commission. The Apex Court held that the appellants must be held to have been appointed in a substantive capacity to temporary post as reference to the Public Service Commission and its recommendation was the due procedure which had been adopted.
20. Yet again in the case of Ramesh K. Sharma and Anr. v. Rajasthan Civil Services and Ors. JT 2000 (Suppl.3) Supreme Court 130, it was held that:-
In the Service Jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment not being either stop-gap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stop-gap basis then such an appointment cannot be held to be on substantive basis. The expression substantive basis is used in the Service Jurisprudence in contra-distinction with an ad hoc or purely stop-gap or fortuitous
21. To the same effect is the judgment of the Supreme Court in P.D. Aggarwal Ors. v. State of U.P. Ors. . So far as the Delhi Higher Judicial Service is concerned, the matter was considered by the Apex Court in the case of Shri O.P. Singla and Anr. v. Union of India Ors. . In the said case, it was observed by the Supreme Court that the promotees who were appointed to the service either under Rule 16 or Rule 17 belong to the same class as direct recruits and that they are appointed on regular basis to posts in the service in the same manner as direct recruits are appointed. It has been specifically observed that all incumbents holding either substantive post or temporary post in substantive capacity are members of the service in the context of Delhi Higher Judicial Service Rules.
22. The judgment in Shri O.P. Singla’s case (supra) again came up for consideration before the Constitution Bench of the Supreme Court in the case of Rudra Kumar Sain and Ors. v. Union of India and Ors. and also in Union of India and Ors. v. K.B. Rajoria JT 2000 (4) SC 213 wherein aforesaid view taken in O.P. Singha (supra) was reaffirmed.
Page 2169
23. In view of the law laid down by the Supreme Court in all the aforementioned cases, the promotion of the petitioner to Delhi Higher Judicial Service in 1989 has to be held on regular basis though it was against a temporary post.
24. Once the petitioner is held to have been appointed on regular basis, the provisions of Rule 12(2) of the Delhi Higher Judicial Service Rules comes into play and would be applicable by its own force and Rule 13 will follow the suit. In the case of petitioner, there had been no extension of probationary period. We are of the view that an Officer cannot be placed on probation with effect from the back date. The petitioner is deemed to have been confirmed in Delhi Higher Judicial Service by virtue of operation of law.
25. Now, the question is when the petitioner stood confirmed to Delhi Higher Judicial Service by implication, as stated above, could he be reverted back to the substantive post held by him in Delhi Judicial Service as has been done by the impugned order In our view, the decision of the High Court on Administrative Side communicated to the petitioner on 15.2.1995 virtually amounts to reducing the petitioner’s rank from that of Additional District Judge to the post of a Civil Judge.
26. The impugned order suffers on two counts. Firstly, as the petitioner was not given any opportunity of hearing before reduction in his rank, the order is vitiated by principles of audi alteram partem. The second reason is that the recommendation of the High Court for reverting the petitioner from Delhi Higher Judicial Service to the substantive post held by him in Delhi Judicial Service was not sent to the Administrator of Delhi for his formal approval as required by Article 233 read with Article 235 of the Constitution of India. The impugned order, therefore, cannot stand the test of judicial scrutiny and has to go. The consequence of this would be that the petitioner though reverted from Delhi Higher Judicial Service to the substantive post held by him in Delhi Judicial Service shall be deemed to have continued as member of Delhi Higher Judicial Service till the date he was compulsorily retired from service on 28.9.2001. Consequent thereto, the petitioner shall be entitled to all the financial and pensionary benefits to which he may be entitled pursuant to this order. However, such financial benefits other than pensionary shall be restricted only till the date of his compulsory retirement as the petitioner has not challenged his compulsory retirement.
27. The writ petition is allowed in above terms. No costs.