VERY IMPORTANT POINTS
1. When the appointing authority for a directly recruited District Munsiff is the Governor, the order of removal from service of a person holding the substantive rank of District Munsiff has to be made only by the Governor, even though the Governor must act in accordance with the recommendation of the High Court which is binding on the Governor.
2. The order of removal from service against Andhra Pradesh Subordinate Judicial Officers who held the substantive rank of directly appointed District Munsiff, made by the High Court itself was not validly made since it had to be issued by the Governor on the recommendation made by the High Court.
3. Rule 21(2) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963, providing for appeal against the High Court s order to the Governor, must be construed to mean that the appeal must be decided by the Governor only in accordance with the opinion of the High Court.

Headnote:(i) Constitution of India-Article 235-Removal from service of Subordinate Judicial Officer-District Munsiff in Andhra Pradesh Judicial Service-Competence of High Court to itself issue order of removal from service-Order of removal from service of a person holding substantive rank of District Munsiff has to be made only by the Governor and not by High Court itself-Recommendation of High Court for their removal after charges of misconduct were found proved, was binding on Governor-Governor must act in accordance with recommendation of High Court.
       Held : That the appointing authority for a directly recruited District Munsiff is the Governor. Both these persons were directly recruited as District Munsiffs and it was this substantive rank held by them when they were removed from service. The High Court has further correctly concluded that the major penalty of dismissal or removal or reduction in rank can be imposed on a directly appointed District Munsiff only on the recommendation of the High Court which is binding on the Governor. The result is that the order of removal from service of a person holding the substantive rank of District Munsiff has to be made only by the Governor, even though the Governor must act in accordance with the recommendation of the High Court which is binding on the Governor. This the true import of Article 235 of the Constitution which vests the control over the District Courts and the courts subordinate thereto in the High Court. (Para 8)
       (ii) Constitution of India-Article 235-Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963-Rule 21(2)-Appellants were selected for Andhra Pradesh State Judicial Service-Appointment as District Munsiff by Governor-Allegation of misconduct against appellant-Departmental enquiry-Charge found proved-Punishment of removal from service recommended-High Court accepting the findings, itself made an order removing appellants from service-Appeal to Governor under Rule 21(2)-Whether order of removal issued by High Court itself was validly made?-(No)-Order had to be issued by the Governor on recommendation made by High Court-Relief to be granted.
       Held : Applying the settled legal principle to the undisputed facts in the case of both these subordinate judicial officers who held the substantive rank of directly appointed District Munsiff at the time of issuance of the order of removal from service by the High Court itself, it is plain that the order of removal from service in the case of each of them had to be made by the Governor and not by the High Court itself. It is equally plain that the recommendation of the High Court for their removal from service after the charges of misconduct were found proved in the disciplinary inquiry, was binding on the Governor who had to issue the order of removal in accordance with the recommendation made by the High Court. Unfortunately the High Court, in spite of the settled legal position, did not adopt the correct procedure for issuance of the order of removal from service of these two judicial officers. The High Court, instead of sending its recommendation to the Governor for issuing the order of removal from services which would be binding on the Governor, proceeded to issue the order of removal from service itself. The State Government also failed to appreciate the correct legal position and to make amends by issuing the order of removal in the name of Governor treating the action of the High Court as its recommendation for removal from service. Such an action would have corrected the formal defect in the order of removal. Another opportunity to correct the mistake in this manner came when the appeal was filed under Rule 21(2) by the judicial officer. However, that too was missed. It is this error which has enabled these judicial officers to challenge the orders of removal from service. (Para 9)
       Further held : In the cases of both these officers, namely, T. Lakshmi Narasimha Chari and K. David Wilson, the order of removal made by the High Court is set aside for the reasons already given. However, the actionof the High Court against both these judicial officers who held the substantive rank of District Munsiff, is to be treated as the recommendation of the High Court to the Governor for their removal from service. In view of the control over them vested in the High Court by virtue of Article 235 of the Constitution, the Governor is bound, in each case, to act in accordance with the recommendation of the High Court and each of them has to be removed from service for the misconduct found proved by the High Court against them. The Governor of the State of Andhra Pradesh is to proceed and make the necessary consequential orders in accordance with the recommendation of the High Court is each case, in accordance with law. (Para 17)
       (iii) Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963-Rule 21(2)-Provision for appeal against High Court s order to the Governor-Validity challenged-Held, remedy of such an appeal is in the nature of a provision for reconsideration or review by High Court of its earlier decision-Governor must invariably act in accordance with opinion so given by High Court. (Constitution of India-Art. 235).
       Held : In our opinion Rule 21(2) can be interpreted in conformity with Article 235 without the requirement of reading any limitation therein as indicated by the High Court. The second part of Article 235 enables the framing of such a rule to confer a right of appeal. Such a provision for appeal must be construed to mean that the appeal to the Governor against the order of the High Court provides for reconsideration of the High Court s order by the Governor, but in keeping with the requirement of Article 235 that the power of control over persons belonging to the judicial service of a State vests in the High Court, and that the appeal must be decided by the Governor only in accordance with the opinion of the High Court. In other words, such an appeal has to be forwarded by the Governor to the High Court for its opinion, which would enable the High Court to reconsider its earlier decision and give its opinion to the Governor, in accordance with which the Governor must decide the appeal. In short, the remedy of such an appeal provided by the rules which have been framed in consultation with the High Court is in the nature of a provision for reconsideration or review by the High Court of its earlier decision. The High Court on reconsideration of the matter has to give its opinion to the Governor and the Governor must invariably act in accordance with the opinion so given by the High Court. The Governor has no option to act in a manner different from that recommended by the High Court. This procedure requires reconsideration by the High Court of its earlier opinion and the opinion given by the High Court after reconsideration indicates the manner of decision of that appeal. There is thus no erosion in the control vested in the High Court over persons belonging to the judicial service of a State; and the requirement of an appeal i.e. reconsideration of the earlier decision is also satisfied. In this process, any comments by the Governor on the merits of the case would walso receive consideration of the High Court before it forms the final opinion and forwards its recommendation to the Governor for decision of the appeal in accordance with that opinion. This is the scheme and requirement of Article 235. We are informed that similar provision exists for appeal in the case of persons belonging to the judicial service in some other States and the rule is worked in the manner indicated. Such a construction of the rule gives effect to the provision for appeal consistent with the right of appeal available under the second part of Article 235 and is consistent with the vesting of control in the High Court over the subordinate judiciary. (Para 15)

JUDGMENT

J.S. Verma, J.-All these appeals are against the same judgment.

2. The appellant - T. Lakshmi Narasimha Chari was selected for the Andhra Pradesh State Judicial Service and appointed as District Munsiff on 21.1.1974 by the Governor. He was confirmed as District Munsiff on 25.5.1979. He was then promoted temporarily to act as Subordinate Judge on 20.2.1980. A preliminary enquiry was made into an allegation of misconduct, which had led to the appellant s arrest by the police on 26.9.1976, in which a prima facie case was made out against the appellant. Accordingly, a regular departmental enquiry was initiated on the charges of misconduct. The allegation against the appellant was that when he was posted as Munsiff Magistrate, Hyderabad (East), he had forced a woman, who was a litigant before him, to have an illicit relationship with him; and the appellant was arrested on the night of 26.9.1976 on the complaint of that woman when the police found him with her in a hotel. A criminal case was registered against the appellant under Section 5(2) of the Prevention of Corruption Act and Section 509, I.P.C. and sanction of the State Government was sought for his prosecution. However, the Government did not accord the sanction and took the decision of not prosecuting him without even consulting the High Court. In the departmental enquiry held by the Session Judge, who was appointed as the enquiry officer, the charge of misconduct was found proved and the punishment of removal from service was recommended. The High Court accepted the findings and itself made an order dated 20.1.1982 removing the appellant from service.

3. Apparently, the Andhra Pradesh High Court took the view that the order of removal from service could be made by the High Court itself and it was not necessary for the High Court to make its recommendations to the Governor for issuing the order imposing the penalty of removal from service. The appellant challenged the order dated 20.1.1982 made by the High Court removing him from service, in an appeal to the Governor under Rule 21(2) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963. By G.O.Ms. No.534 dated 14.9.1984 of the Government of Andhra Pradesh, Home Department, that appeal was allowed by the Governor on the ground that the High Court is not the competent authority to order the dismissal or removal from service of the Subordinate Judicial Officer. The order also granted all consequential benefits to the appellant.

4. The Andhra Pradesh High Court filed Writ Petition No.14588/1984 in the High Court for quashing G.O.Ms. No.534 dated 14.9.1984, by which the Governor has allowed the appeal and set aside the order dated 20.1.1982, issued by the High Court, removing the appellant from service. This writ petition was dismissed on 16.10.1988 by a learned single Judge of the High Court. Writ Appeal No.130 of 1980 was then filed by the High Court against the dismissal of the writ petition, before a Division Bench of the High Court. In addition, Writ Petition No.12691 of 1986 was also filed by the High Court challenging the validity of Rule 21(2) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963, which provides an appeal from an order passed by the High Court to the Governor of Andhra Pradesh. The writ appeal and the said writ petition were both referred for decision to a Full Bench of the High Court, which allowed both of them by the impugned judgment dated 25.8.1988. The Full Bench of the High Court in the impugned judgment has upheld the contentions of the High Court that the order of removal from service could be made by the High Court itself; and that the provision for appeal against the High Court s order to the Governor is invalid. A further direction was issued therein that the Governor could not entertain any appeal preferred under Rule 21 (2) against any order made by the High Court in the exercise of its disciplinary jurisd

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1996 Supreme(SC) 948

Cases Referred (2)