SMT. BEENA TIWARI & ANR. ETC.versusSTATE OF MADHYA PRADESH & ANR. ETC.

A               SMT. BEENA TIWARI & ANR. ETC.
                              v.
            STATE OF MADHYA PRADESH & ANR. ETC.

                            DECEMBER 18, 1987
B    [RANGANATH MISRA AND MURARI MOHON DUTT, JJ.)

        . 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.

c         Madhya Pradesh Judicial Service (ClOJsification Requirement &
    Conditions of Service) Rules, 1955: Rule 16-Civil Judge~Appointed
    on temporary and officiating basis-Confirmation of-Sole concern of
    the High Court under Art. 235 of the Constitution of India.

        The appellants in C.A. Nos. 59 and 60 of 1982, who were
D appointed as Civil Judges on temporary and officiating basis on proba-
  tion, 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 Pradesb Govern·
  ment Services (Temporary and Quasi-Permanent Service) Rules, 1960.
  They filed writ petitions before the High Court, challenging the orders
E 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. (ll) of Rule 3 bad not been issued, but bad been In
  temporary service continuously for live 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 reasorui to be recorded in writing
F they should be de~med 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 live years.

        On behalf of the respondents it was contended tbattbe qnestion of
  conhrmation came within the purview of Article 235 of the Constitntion
G vesting in the High Court control over subordinate courts and, conse·
  quently, the provision of Rule 3·A had no application to the members of
  the Subordinate Judicial Service.

        A Division Bench of the Hi&h Court took the view that if in Rule
  3·A in place of the words "appointing authority" the words "compe·
H tent authority" be read it would be consistent with Article 235 of the
                                     492
                 SMT. BEENA TIWARI v. STAIB OF M.P.                    493

Constitution, and dismissed the writ petitions holding that the resolu-
                                                                              A
tion 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 confirma-
tion.

        The services of the respondent in C.A. No. 2860of1985 were also       B
  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 confirma-
  tion, could not be regarded as reasons within the meaning of Rule 3-A,
  and quashed the impugned termination order.
                                                                              c
       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        o
 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, [1975) 3 SCR 365
 relied on.                                                                   E

       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 officials, the question of their being deemed to be in Quasi-Per-
 manent Service does not arise. Further, as the question of confirmation F
 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 G
 for confirmation as provided in Rule 16(5) of the Madhya Pradesh
 Judicial Service (Classification, Requirement & Conditions of Service)
 Rules, 1955. [498D-F)

       Although Rule 3-A was not applicable to the members of the
  Subordinate Judicial Service and the question of confirmation of judi-      H
     494                    SUPREME COURT REPORTS            (1988] 2 S.C.R.

 A cial officer was completely within the domain of control of the High
   Court under Article 235 of the Constitution the findings of the
   Iiigh Court that the officers should not be confirmed cannot be
   accepted. [499E-F)

           The judgment and orders of the Division Bench set aside. Appel-
 B   !ants 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·Hl

       CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 59
C & 60 of 1982 etc.

          From the Judgment and Otdei dated 9.4.1981 of the Madhya
     Pradesh High Court in Misc. Petition Nos. 61and120of 1980.

       Dr. Y.S. Chitale, G.L. Sanghi, Mrs. A.K. Verma, Miss F.
D 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.

E          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. Govern-
     ment Service (Temporary & Quasi-Permanent Service) Rules, 1960,
     hereinafter referred to as 'the Rules', is applicable to the members of
F    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
G to say that both the appellants were not ultimately confirmed by the
  High Courrafter 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
  recommencjation, the State Government terminated the services of the
  appellants under Rule 12 of the Rules. Being aggrieved by the orders
H of termination of their services, the appellants filed writ petitions
                  SMT. BEENA TIWARI v. STAIB OF M.P. (DUTT, J.]            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
        quasi-permanent service. Rule 3-A provides as follows:

                   "R. 3-A. Government servant in respect of whol)l a decla-
                   ration under clause (ii) of Rule 3 has not been issued but
                   has been in temporary service continuously for five years in   B
                   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    C
        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 ol termina-
        tion of their services were illegal and invalid.
                                                                                  D
              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 subordi-
        nate courts and, consequently, the provision of Rule 3-A had no appli-
        cation 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 E
        the words "appointing authority", the words "competent authority"
        be read, it would be consistent with Article 235 -of the Constitution .
.   '   The Divisioll 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 F
        3-A. The Division Bench observed as follows:

                   "It was also argued by the learned counsel for the Petition-
                   ers 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 G
                   resolution was passed declaring them to be unfit for confir-
                   mation. 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 H
    496                   SUPREME COURT REPORTS            11988] 2 S.C.R.

A               satisfies the reqquirement, as continuance in quasi-per-
                manent capacity is included within the ambit or confirma-
                tion against the post held by the petitioners."

           Accordingly, the Division Bench dismissed the writ petitions
    filed by the appellants.
B
         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,
C the High Court did not confirm him after the expiry of the probatio-
   nary 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
D Rules. Aggrieved by the order of termination, the respondent filed a
   writ petiti\)n in the High Court of Madhya Pradesh. The learned Single
   Judge referred the petition to the Full Bench for answering the follow-
   ing question:

               "Whether the resolution of the Court Meeting dated
E              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 Gov-
               ernment Servants (Temporary and Quasi-Permanent Ser-           '
               vice) Rules, 1960?"

F       The Full bench approved of the view expressed by the Division
  Bench in its judgment which is under appeal in the above Civil Appe-
  als 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 consi$tent with
  Article 235 of the Constitution. The Full Bench, however, did not
                                                                                  )
G 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
H deemed to be in quasi-permanent service, the impugned order of
                  SMT. BEENA TIWARI v. STATE OF M.P. !DUTT, J.]              497

       termination of the service of the respondent was illegal and invalid. In
                                                                                    A
       that view of the matter, the Full Bench quashed the impugned order of
       termination of the respondent and allowed the writ petition, although
       the le:;.rned 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 B
       Court, submits that both the Division Bench and the Ftill Bench pro-
       ceeded on an erroneous view that Rule 3-A would apply to the mem-
       bers of the Subordinate Judicial Service. He has drawn our attention·
       to the Madhya Pradesh Judicial Service (Oassification, 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 Semce Rules · C
       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         D
                   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.
                                                                                    E
                        (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 exami-        F
                   nations by the higher standard.

                           (5) The High Court may in any case recommend the
                    extension of the period of probation by a period not ex-
                    ceeding one year. If the person roncerned is not considered
                  · fit for confirmation at the end of such period, or fails to     G
                    pass the prescribed departmental examinations, his ser-
                    vices 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           H
    498                    SUPREME COURT REPORTS             11988] 2 S.C.R.

A 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 Gov-
  ernment 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
B 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
D 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
E 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 termina-
  tion 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.
F

           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
G   remarks against the appellant No. l, 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
H   report of the District & Sessions Judge, we do not think that the High
                       SMT. BEENA TJWARI v. STATE OF M.P. [DUTT, J.]            499
    ..i.     Court was justified in not confirming the appellant.
                                                                                        A
-">f                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 con-
              tains 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      B
              September 30, 1978 it has been observed "His reputation is bad at
              present. He has been asked to improve his image." This observation is
              somewb,at 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,
                                                                                        c
>--          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 respon-
             dent. It, however, appears from the records that the respondent has
             improved much and, indeed, the report for the period from 24-10-1985 D
     ~
             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 satis-
             factory. Accordingly, we are not inclined to interfere with the order of


r
.. t
             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 applic-
             able to the members of the Subordinate Judicial Service, and that the
                                                                                      E



             question of confirmation of judicial officer was completely within the
     "--\
    ,,       domain of control of the High Court under Article 235 of the Constitu-
              tion, we are unable to accept the finding of the High Court that the F
              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 appel- G
              !ants. 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 termina-
              tion of services of the respondent, but not the reasons for such quash-   H
    500                   SUPREME COURT REPORTS           [1988] 2 S.C.R.

A   ing and direct that for a period of three years the respondent shall be
    under a close watch.

         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.




                                                                              l