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1970 Supreme(P&H) 86
PUNJAB & HARYANA HIGH COURT
D.K.Mahajan and Bhopinder Singh Dhillon JJ.
State Of Punjab
Versus
Shamsher Singh, Sucha Singh
First Appeal No. 446 of 1969,
Decided On : APRIL 28, 1970
The Governor of a State does not act in his individual discretion in the matter of appointment and removal of Subordinate Judges, and the State Government is the appropriate appointing and removing authority.
Headnote:
CONSTITUTIONAL LAW - ARTICLE 234 - APPOINTMENT AND REMOVAL OF SUBORDINATE JUDGES - AUTHORITY COMPETENT - PUNJAB CIVIL SERVICES (JUDICIAL BRANCH) RULES, 1951 - FRAMING OF RULES - VALIDITY - PUNJAB CIVIL SERVICES (PUNISHMENT AND APPEAL) RULES, 1952 - RULE 9 - TERMINATION OF SERVICES OF PROBATIONER - SHOW CAUSE NOTICE - SUFFICIENCY - PRELIMINARY EXPLANATION - CONSIDERATION BY APPOINTING AUTHORITY - NECESSITY.
Fact of the Case:
Shamsher Singh, a Subordinate Judge in the Punjab Civil Service (Judicial Branch), was appointed on probation. Before the completion of his probation period, his services were terminated under an order passed by the Chief Minister, on the recommendation of the High Court. Shamsher Singh filed a suit challenging the termination of his services, contending that it was illegal and that he continued to be in service.
Finding of the Court:
The court held that the order terminating Shamsher Singh's services was not issued by an authority subordinate to the appointing authority, and therefore, it was valid. The court also held that the show cause notice issued to Shamsher Singh was valid and that his explanation was considered by the appointing authority before the impugned orders were passed. The court further held that the Punjab Civil Services (Judicial Branch) Rules, 1951, were framed in accordance with the provisions of Article 234 of the Constitution and were, therefore, valid. Finally, the court held that the termination of Shamsher Singh's services under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, was valid as he was a probationer and the procedure prescribed under the rule was followed.
Issues: 1. Whether the termination of Shamsher Singh's services was issued by an authority subordinate to the appointing authority? 2. Whether the show cause notice issued to Shamsher Singh was valid? 3. Whether Shamsher Singh's explanation was considered by the appointing authority before the impugned orders were passed? 4. Whether the Punjab Civil Services (Judicial Branch) Rules, 1951, were framed in accordance with the provisions of Article 234 of the Constitution? 5. Whether the termination of Shamsher Singh's services under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, was valid?
Ratio Decidendi: 1. The provisions of Article 234 of the Constitution do not require the Governor to act in his individual discretion in the matter of appointment and removal of Subordinate Judges. The State Government is the appropriate appointing and removing authority of a Subordinate Judge. 2. A show cause notice issued by the Chief Secretary to the State Government, on the recommendation of the High Court, is valid. 3. The explanation submitted by a probationer in response to a show cause notice is required to be considered by the appointing authority before passing an order terminating his services. 4. The Punjab Civil Services (Judicial Branch) Rules, 1951, were framed in accordance with the provisions of Article 234 of the Constitution and are, therefore, valid. 5. The termination of a probationer's services under Rule 9 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, is valid if the procedure prescribed under the rule is followed.
Final Decision: The appeal was allowed, the judgment and decree of the learned trial Judge were set aside and the suit of the plaintiff-respondent stands dismissed.
1. This appeal is directed against the judgment and decree of the Senior Subordinate Judge, Chandigarh, dated 16-5-1969, granting a declaratory decree to the respondent Shamsher Singh against the State of Punjab to the effect that his removal from the service as Subordinate Judge in the State of Punjab under the impugned order Exhibit P.2 is Illegal and that he continues to be in ser- vice in the State of Punjab as Subordinate Judge,
2. Shamsher Singh respondent was appointed as Subordinate Judge in the Punjab Civil Service (Judicial Branch) on 1-5-1964 by the Governor of Punjab under Article 234 of the Constitution of India read with the Punjab Civil Service (Judicial Branch) (First Amendment) Rules, 1963. He was appointed on probation but before the completion of his probation period, his services were terminated on 24-4-67, vide orders Exhibit P.2. The said order was passed on the recommendation of the High Court, Exhibit D.3 dated 14-4-1967. The order of termination of the services of the plaintiff was signed by Shri G. Bala-krishanan of the Services Department of the Punjab Government, and was communicated to him on 29-4-1967. The plaintiff raised a number of pleas in the suit which pleas were controverted by the appellant State of Punjab in the written statement,
3. On the pleadings of the parties the learned trial Judge framed the following 13 issues:-
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1. Whether the suit is bad for mis-joinder of parties as alleged?
2. Whether the termination of the services of the plaintiff is by an authority subordinate to the Governor? If so, what is its effect?
3. Whether the order terminating the services of the plaintiff was notified according to law? If not, what is the effect?
4. Whether the notice to show cause why the services of the plaintiff should not be terminated issued by proper authority?
5. Whether the order of termination is punitive and is not within the scope of Rule 9 of the Government Servants (Punishment and Appeal) Rules as alleged?
6. Whether the order of termination of services is based on vague allegations and on inadmissible evidence both on grounds of facts and law as alleged?
7. Whether the order of termination of services should have been passed on the recommendation of the High Court and whether the High Court did recommend the termination of services? If not, what is the effect?
8. Whether before terminating the services of the plaintiff his explanation was considered and the order was passed according to the Government Servants (Punishment and Appeal) Rules?
9. What is the effect of absence of permanent allotment of the plaintiff under Section 82 of the Punjab Reorganisation Act?
10. Whether the rules of P. C. S. Judicial Branch dealing with the services of the plaintiff were framed according to law?
11. What is the effect of not imparting training to the plaintiff as alleged?
12. Whether the order is discriminatory as alleged in para 21 of the plaint?
13. Relief.
4. Issue No. 1 was decided in favour of the appellant State of Punjab. The learned trial Judge found issue No. 2 in favour of the plaintiff and came to the finding that the services of the plaintiff were terminated by the Chief Minister, an authority subordinate to the Governor, who was the appointing authority of the plaintiff. Issue No. 3 was found by the learned trial Judge against the plain tiff-respondent. Under issue No. 4 it was found by the learned trial Judge that the show cause notice having been issued by the Chief Secretary to Govt. Punjab was not the proper notice and, therefore, this issue was also found in favour of the plaintiff-respondent. Under issue No. 5 it was found that the plaintiff is not entitled to invoke the protection of Article 311 of the Constitution of India and, therefore, this issue was decided against the plaintiff. Issues Nos. 9, 10 and 12 were not pressed before the learned trial Judge by the learned counsel for the plaintiff and all these three issues were decided against the plaintiff. Issue No
