Very Important point
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.

Headnote:(i) Constitution of India-Articles 233, 234 and 235 r/w Article 311-Control of High Court over subordinate judiciary - Extent and scope-Compulsory retirement dismissal, removal, reduction in rank or termination from service of judicial officer-Procedure to be followed-High Courts are vested with disciplinary Control as well as administrative control over judicial service exclusively-But High Court cannot pass orders of dismissal, removal, reduction in rank or termination while exercising administrative and disciplinary control-High Court alone are entitled to initiate, to hold enquiry and take decision in respect of dismissal etc.-Formal order to give effect to such decision has to be passed only by State Governor on recommendation of High Court-Recommendation of High Court is binding on Government/Governor.
       Held : The control vested in the High Court over the subordinate judiciary though absolute and exclusive, it has to be exercised without usurping the power vested in the Executive under the Constitution. (Para 2)
       The High Courts are vested with the disciplinary control as well as administrative control over the Members of the Judicial Service exclusively, but that does not mean that they can also pass orders of dismissal, removal, reduction in rank or termination from service while exercising administrative and disciplinary control over the Members of Judicial Service. Undoubtedly, the High Courts alone are entitled to initiate, to hold enquiry and to take a decision in respect of dismissal, removal, reduction in rank or termination from service, but the formal order to give effect to such a decision has to be passed only by the State Governor on the recommendation of the High Court. It is well settled again by a catena of decisions of this Court that the recommendation of the High Court is binding on the State Government/Governor. (Para 12)
       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. (Para 13)
       In the instant case, the decision of the Orissa High Court dated 4.2.87 (on the Administrative Side) was required to be forwarded to the Governor for passing an order of compulsorily retirement. That was not done. It was wrong for the High Court to have passed the order of compulsory retirement itself. The judicial side of the High Court rightly decided the Writ Petition in favour of the judicial officers and held the order dated 5.2.87 to be bad. (Para 14)
       (ii) Constitution of India-Article 235 r/w Article 311-Dismissal, removal, reduction in rank or termination from service of judicial officer-Recommendation of High Court-State Government’s obligation to forward recommendation to Governor-High Court exercising administrative control compulsorily retiring judicial officer on its own-Order challenged-Judicial side of High Court set aside order as bad-Appeal to Supreme Court-Pending appeal, High Court recommending compulsory retirement of judicial officer and sending report to Government-Government not forwarding report to Governor on ground of pendency of appeal-Not tenable -Government was bound to forward recommendation to Governor -It was up to Governor to pass appropriate order. (Para 18)

Judgment

K. Venkataswami, J.-An independent judiciary is one of the basic feature of the Constitution of the Republic. In this case, however, we are not concerned with the various provisions of the Constitution guaranteeing independence of judiciary but with a limited issue about the scope and extent of control of the High Court over the subordinate judiciary to the exclusion of the executive for maintenance of its independence. Our Constitution has zealously guarded the independence of judiciary. In S.P. Gupta, etc. v. Union of India & Anr. etc.1, this Court held that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution. This Court in All India Judges’ Association & Ors., etc. v. Union of India & Ors., etc.2 held :

“In view of the separation of the powers under the Constitution, and the need to maintain the independence of the judiciary to protect and promote democracy and the rule of law, it would have been ideal if the most dominant power of the executive and the legislature over the judiciary, viz., that of determining its service conditions had been subjected to some desirable checks and balances. This is so even if ultimately, the service conditions of the judiciary have to be incorporated in and declared by the legislative enactments. But the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service conditions of the judiciary, does not mean that the judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the judiciary in that behalf, for theoretically it would not be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary.”

2. By way of a note of caution we may add that the control vested in the High Court over the subordinate judiciary though absolute and exclusive, it has to be exercised without usurping the power vested in the Executive under the Constitution. This necessarily brings us to the consideration of Articles 233, 234 and 235 of the Constitution of India. Those Articles read thus :-

“Article 233. Appointments 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.

Article 234. Recruitment of persons other than district judges to the judicial service.-Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

Article 235. 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 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.”

3. The ‘backdrop in which the inte