PETITIONER:
SMT. BEENA TIWARI & ANR. ETC.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH & ANR. ETC.
DATE OF JUDGMENT18/12/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
MISRA RANGNATH
CITATION:
1988 AIR 488 1988 SCR (2) 492
1988 SCC Supl. 213 JT 1987 (4) 686
1987 SCALE (2)1371
ACT:
Madhya Pradesh Government Servants (Temporary and Quasi
Permanent) Service Rules, 1960: Sections 3A and 12-Whether
Section 33-A applicable to members of the Subordinate
Judicial Service.
Madhya Pradesh Judicial Service (Classification
Requirement & Conditions of Service) Rules, 1955: Rule l6-
Civil Judges-Appointed on temporary and officiating basis-
Confirmahon of-Sole concern of the High Court under Art. 235
of the Constitution of India.
HEADNOTE:
%
The appellants in C.A. Nos. 59 and 60 of 1982, who were
appointed as Civil Judges on temporary and officiating basis
on probation, were not confirmed after the expiry of the
period of probation or the extended period of probation, and
their services were terminated by the State Government under
Rule 12 of the Madhya Pradesh Government Services (Temporary
and Quasi-Permanent Service) Rules, 1960. They filed writ
petitions before the High Court, challenging the orders of
termination of service as illegal and invalid, contending
that in view of Rule 3-A, providing that a Government
servant in respect of whom a declaration under cl. (ii) of
Rule 3 had not been issued, but had been in temporary
service continuously for five years in a service or post in
respect of which such declaration could be made, shall be
deemed to be in quasi-permanent service unless for reasons
to be recorded in writing they should be deemed to be in
Quasi-Permanent Service, since no declaration under cl. (ii)
of Rule 3 had been issued and they had been in service
continuously for five years.
On behalf of the respondents it was contended that the
question of confirmation came within the purview of Article
235 of the Constitution vesting in the High Court control
over subordinate courts and, consequently, the provision of
Rule 3-A had no application to the members of the
Subordinate Judicial Service.
Division Bench of the High Court took the view that if
in Rule 3-A in place of the words “appointing authority” the
words “competent authority” be read it would be consistent
with Article 235 of the
493
Constitution, and dismissed the writ petitions holding that
the resolution passed in the Court meeting, adjudicating the
appellants unfit for confirmation, satisfied the requirement
of Rule 3-A as continuance in Quasi-Permanent capacity was
included within the ambit of confirmation.
The services of the respondent in .A. No. 2860 of 1985
were also terminated under Rule 12 of the Rules. In the writ
petition filed by him, the Full Bench of the High Court,
while approving the aforesaid view expressed by the Division
Bench, held that the findings of the High Court in its
resolution, considering the respondent unfit for
confirmation, could not be regarded as reasons within the
meaning of Rule 3-A, and quashed the impugned termination
order.
Disposing of the appeals,
^
HELD: Whether a member of Subordinate Judicial Service
should be confirmed or not is absolutely the concern of the
High Court. The question of confirmation falls squarely
within Article 235 of the Constitution and no rule framed by
the State Government can interfere with the control vested
in the High Court under Rule 235. [498A-B ]
B.S. Yadav v. State of Haryana, [1981] 1 SCR 1024 and
High Court of Punjab & Haryana v. State of Haryana, [1975l 3
SCR 365 relied on.
Both the Full Bench and the Division Bench were wrong
in placing reliance upon Rule 3-A of the M.P. Government
Service (Temporary and Quasi-Permanent) Rules, 1960. As the
High Court did not confirm the omcials, the question of
their being deemed to be in Quasi-Permanent Service does not
arise. Further, as the question of confirmation was
completely within the domain of the control of the High
Court under Article 235 of the Constitution, there is no
necessity to read the words "competent authority" in place
of "appointing authority", for Rule 3-A was inapplicable to
the members of the Subordinate Judicial Service. Moreover,
there is a specific provision in the termination of service
of a Judicial officer who is found by the High Court to be
unfit for confirmation as provided in Rule 16(5) of the
Madhya Pradesh Judicial Service (Classification, Requirement
JUDGMENT:
Although Rule 3-A was not applicable to the members of
the Subordinate Judicial Service and the question of
confirmation of judi-
494
cial officer was completely within the domain of control of
the HighCourt under Article 235 of the Constitution the
findings of the High Court that the officers should not be
confirmed cannot be accepted. [499E-F]
The judgment and orders of the Division Bench set
aside. Appellants reinstated in service with the arrears of
pay since the date of termination. The orders of the Full
Bench quashing the impugned order of termination of
respondent in C.A. No. 2860 of 1985 affirmed, but not the
reasons for such quashing. [499G-H]
&
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 59 &
60 of 1982 etc.
From the Judgment and Order dated 9.4.1981 of the
Madhya Pradesh High Court in Misc. Petition Nos. 61 and 120
of 1980.
Dr. Y.S. Chitale, G.L. Sanghi, Mrs. A.K. Verma, Miss F.
Desai, S. Sukumaran, D.N. Mishra, Vivek Gambhir and S.K.
Gambhir for the Appellants.
R.P. Bhatt, T.C. Sharma, Shri Narain and Sandeep Narain
for the Respondents.
The Judgment of the Court was delivered by
DUTT, J. The only question that arises for
consideration in these appeals by special leave is whether
Rule 3-A of M.P. Government Service (Temporary & Quasi-
Permanent Service) Rules, 1960, hereinafter referred to as
‘the Rules’, is applicable to the members of the Subordinate
Judicial Service of the Madhya Pradesh Government.
In Civil Appeals Nos. 59 & 60 of 1982, both the
appellants were appointed Civil judges on temporary and
officiating basis for a period of six months for training
and thereafter for a period of two years on probation. It is
not necessary to state in detail the facts, and suffice it
to say that both the appellants were not ultimately
confirmed by the High Court-after the expiry of the period
of probation or the extended period of probation. The High
Court recommended the termination of services of the
appellants to the State Government and pursuant to such
recommendation, the State Government terminated the services
of the appellants under Rule 12 of the Rules. Being
aggrieved by the orders of termination of their services,
the appellants filed writ petitions
495
before the Madhya Pradesh High Court. It was contended by
them A that in view of Rule 3-A of the Rules, they should be
deemed to be in guasi-permanent service. Rule 3-A provides
as follows:
“R. 3-A. Government servant in respect of whom a
declaration under clause (ii) of Rule 3 has not
been issued but has been in temporary service
continuously for five years in a service or post
in respect of which such declaration could be made
shall be deemed to be in quasi-permanent service
unless for reasons to be recorded in writing the
appointing authority otherwise order.”
As a declaration under clause (ii) of Rule 3 had not
been issued and as the appellants were in temporary service
continuously for five years in the post of Civil Judges in
respect of which such declaration could be made, it was
contended they should be deemed to be in quasi-permanent
service, and that, accordingly, the orders of termination of
their services were illegal and invalid.
It was, however, contended on behalf of the respondents
that the question of confirmation came within the purview of
Article 235 of the Constitution of India vesting in the High
Court control over subordinate courts and, consequently, the
provision of Rule 3-A had no application to the members of
Subordinate Judicial Service. The Division Bench of the High
Court took the view that if in Rule 3-A in place of the
words ”appointing authority”, the words “competent
authority” be read, it would be consistent with Article 235
of the Constitution. The Division Bench overruled the
contention of the appellants that although the High Court
considered them unfit for confirmation, yet Rule 3-A would
apply as it did not record any reason why they should not be
deemed to be in quasi-permanent service, as provided in Rule
3-A. The Division Bench observed as follows:
“It was also argued by the learned counsel for the
Petitioners that the case of the petitioners was
considered by the High Court only for their
confirmation and not suitability for employment in
a quasi-permanent capacity, when a resolution was
passed declaring them to be unfit for
confirmation. On this basis, it was argued that
the High Court’s resolution could not, therefore,
be construed as ‘otherwise order’ contemplated by
the latter part of Rule 3-A. There is no merit in
this contention. The resolution passed in the
Court meeting adjudging them not fit for
confirmation
496
satisfies the requirement, as continuance in
quasi-permanent capacity is included within the
ambit or confirmation against the post held by the
petitioners.”
Accordingly, the Division Bench dismissed the writ
petitions filed by the appellants.
In Civil Appeal No. 2860 of 1985, the High Court of
Madhya Pradesh has assailed the judgment and order of its
Full Bench. The respondent, in that appeal also, was
appointed a Civil Judge on a temporary and officiating basis
for a period of six months for training and thereafter for a
period of two years on probation. In his case also, the High
Court did not confirm him after the expiry of the
probationary period and he continued without an order of
confirmation or discharge. In a Full Court Meeting held on
February 27, 1981, it was decided not to confirm the
respondent, presumable in view of certain adverse remarks
against him which were directed to be communicated to him.
Ultimately, his services were terminated under Rule 12 of
the Rules. Aggrieved by the order of termination, the
respondent filed a writ petition in the High Court of Madhya
Pradesh. The learned Single Judge referred the petition to
the Full Bench for answering the following question:
“Whether the resolution of the Court Meeting dated
27.2. 1981 satisfies the requirement of an
otherwise order of the appointing authority by
recording reasons in writing as contemplated under
Rule 3-A of the Madhya Pradesh Government Servants
(Temporary and Quasi-Permanent Ser vice) Rules,
1960?”
The Full bench approved of the view expressed by the
Division Bench in its judgment which is under appeal in the
above Civil Appeals Nos. 59 & 60 of 1982 to the extent that
in Rule 3-A in place of the words “appointing authority”,
the words “competent authority” should be read so as to make
the rule workable and consistent with Article 235 of the
Constitution. The Full Bench, however, did not agree with
the Division Bench that the finding of the High Court in its
resolution that the respondent was not fit for confirmation,
could not be regarded as ‘reasons’ within the meaning of
Rule 3-A, but was the ‘conclusion’ of the High Court. The
full Bench also made a distinction between ‘reason’ and
‘conclusion’ and took the view that as no reason was given
by the High Court as to why the respondent should not be
deemed to be in quasi-permanent service, the impugned order
of
497
termination of the service of the respondent was illegal and
invalid. In that view of the matter, the Full Bench quashed
the impugned order of termination of the respondent and
allowed the writ petition, although the learned Single Judge
referred the writ petition to the Full Bench for answering
the question as mentioned above.
Dr. Chitale, learned Counsel appearing on behalf of the
High Court, submits that both the Division Bench and the
Full Bench proceeded on an erroneous view that Rule 3-A
would apply to the members of the Subordinate Judicial
Service. He has drawn our attention to the Madhya Pradesh
Judicial Service (Classification, Requirement & Conditions
of Service) Rules, 1955, hereinafter referred to as ‘M.P.
Judicial Service Rules’, framed under the proviso to Article
309 of the Constitution. There can be no doubt the M.P.
Judicial Service Rules are special rules applying to the
members of the Subordinate Judicial Service of the State of
Madhya Pradesh. Rule 16 provides as follows:
“R. 16. ( 1) Every person appointed to the cadre
by direct recruitment shall be required to undergo
training for a period of one year at the end of
which he shall be placed on probation for a period
of one year.
(2) The training shall be such as may be
prescribed by the High Court.
(3) Every such person shall be required to
pass the departmental examinations prescribed for
Civil Judges.
(4) The probationers may, at the end of the
period of their probation, be confirmed subject to
their fitness for confirmation and to having
passed the departmental examinations by the higher
standard.
(5) The High Court may in any case recommend
the extension of the period of probation by a
period not exceeding one year. If the person
concerned is not considered fit for confirmation
at the end of such period, or fails to pass the
prescribed departmental examinations, his services
shall be dispensed with.”
Rule 16(5) provides, inter alia, that if the person
concerned is not considered for confirmation at the end of
the probationary period, his services. shall be dispensed
with. Whether a member of Subordinate
498
Judicial Service should be confirmed or not is absolutely
the concern of the High Court. The question of confirmation
falls squarely within Article 235 of the Constitution and no
rule framed by the State Government can interfere with the
control vested in the High Court under Article 235. In B.S.
Yadav v. State of Haryana, [1981] 1 SCR 1024 a Constitution
Bench of this Court held that the question whether a
particular judicial officer has successfully completed his
probation or not is a matter which is exclusively within the
domain of the High Court to decide. In an earlier decision
of this Court in High Court of Punjab & Haryana v. State of
Haryana, [1975] 3 SCR 365 it was held that the confirmation
of persons appointed to be or promoted to be District Judges
was clearly within the control of the High Court under
Article 235 of the Constitution.
In view of the above decisions of this Court, it must
be held that both the Full Bench and the Division Bench were
wrong in placing reliance upon Rule 3-A of the Rules. As the
High Court did not confirm the appellants in Civil Appeals
Nos. 59 & 60 of 1982 and the respondent in Civil Appeal No.
2860 of 1985, the question of their being deemed to be in
quasi-permanent service does not arise. Further, as the
question of confirmation was completely within the domain of
the control of the High Court under Article 235 of the
Constitution, there was no necessity to read the words
“competent authority” in place of the words “appointing
authority”, for Rule 3-A was inapplicable to the members of
the Subordinate Judicial Service. Moreover, as already
noticed, there is a specific provision for termination of
service of a judicial officer who is found by the High Court
to be unfit for confirmation as provided in Rule 16(5) of
the M.P. Judicial Service Rules.
Dr. Chitale, learned Counsel for the High Court, has
produced before us the confidential service records of all
these judicial officers. We have carefully gone through the
yearly reports of the appellants in Civil Appeal Nos. 59 &
60 of 1982. Whatever might be the adverse remarks against
the appellant No. 1, the report of the learned District &
Sessions Judge dated March 31, 1978, is quite favourable
except that it has been pointed out in the report that she
should be careful to see that all her judgments are properly
paragraphed and findings are noted against all issues.
Further, it has been observed that there is need for
improvement in the quality of her work. In view of the said
report of the District & Sessions Judge, we do not think
that the High
499
Court was justified in not confirming the appellant.
So far as appellant No. 2 in Civil Appeal Nos. 59 & 60
of 1982 is concerned, the report for the period from 1-4-
1977 to 31-3-1978 contains the remark “very good”. It was
also recorded under the general remarks “He is very
industrious. During the year under report he disposed of 68
old civil suits;’ In the report for the period ending
September 30, 1978 it has been observed “His reputation is
bad at present. He has been asked to improve his image.”
This observation is somewhat vague. The report for the
period ending March 31, 1979 is, however, completely in
favour of the appellant. The performances of the appellant
have been found to be highly satisfactory.
As regards the respondent in Civil Appeal No. 2860 of
1985, although he succeeded before the Full Bench on a
technical plea based on Rule 3-A of the Rules which is not
applicable, we are of the view that the High Court had
justification for not confirming the respondent. It,
however, appears from the records that the respondent has
improved much and, indeed, the report for the period from
24-10-1985 to 31-3-1986 shows that his performances for
the said period were satisfactory. The subsequent report for
the period from 1-4-1986 to 31-3-1987 also shows that on the
whole his performances were satisfactory. Accordingly, we
are not inclined to interfere with the order of the Full
Bench.
In the circumstances, although we accept the contention
made on behalf of the High Court that Rule 3-A of the Rules
was not applicable to the members of the Subordinate
Judicial Service, and that the question of confirmation of
judicial officer was completely within the domain of control
of the High Court under Article 235 of the Constitution, we
are unable to accept the finding of the High Court that the
appellants in Civil Appeals Nos. 59 & 60 of 1982 and the
respondent in Civil Appeal No. 2860 of 1985 should not be
confirmed as Civil Judges.
In view of the discussion made above, we set aside the
judgment and order of the Division Bench in Civil Appeals
Nos. 59 & 60 of 1982 and also the impugned orders
terminating the services of the appellants. The appellants
are reinstated in service with arrears of pay, since the
date of termination, to be paid within three months from
date.
So far as Civil Appeal No. 2860 of 1985 is concerned,
we affirm the order of the Full Bench quashing the impugned
order of termination of services of the respondent, but not
the reasons for such quash-
500
ing and direct that for a period of three years the
respondent shall be
The appeals are disposed of as above. There will,
however, be no order as to costs in any of them.
N.P.V. Appeals disposed of.
501