Ghulam Qadir Sheikh vs High Court of Jammu and Kashmir

Kakru, J.—The impugned judgment has settled questions of law raised before the writ Court but both the parties to the writ petition are

aggrieved of the judgment, therefore, two LPAs against one judgment.

The questions raised and the answers given by the Learned Single Judge are summarised as under:

a) The District Judge is the appointing authority for the post of a Ministerial Officer of all the Courts controlled by the District Judge other than

courts of Small Causes.

b) The High Court being the controlling authority under sub section (4) of Section 30 of Civil Courts Act 1977 is within its powers to issue

circulars, frame policies and guidelines which the District Judge is bound to follow while making appointments in terms of Section 30 of the Civil

Courts Act and any appointment made in contravention of the Circulars/Policies laid down by the High Court are liable to be terminated.

c) While exercising power of termination under Sub Section (4) of Section 30 the safeguards available to an employee under Section 126 of the

Jammu and Kashmir Constitution have to be adhered to, failure thereto renders the termination liable to be quashed.

It is relevant to notice that during the pendency of these LPAs a Division Bench of this Court in Secretary to Hon'ble Chief Justice Versus

Chanchal Singh has held that the High Court under Sub Section (4) of Section 30 of the Civil Courts Act 1977 (for short Act) can only monitor the

exercise of power of appointment whereas the power of appointment is with the District Judge. Since we are not averse to this view, we were

inclined to take upon ourselves to elaborate the extent of monitoring power but this view stands negated by the Division Bench by its further

observations made in the judgment which are reproduced hereunder:

.... the powers under Sub Section (4) can be exercised only to examine the legality or otherwise of the order and goes no further...."" (See para 9).

.... Thus the control envisaged by sub section (4) must be traceable to the rules prescribed under sub section (3). But as the rules have not been

prescribed and the letter dated 731990 is not traceable to the Rules framed under subsection (4) it is liable to be quashed on this ground also...

(See para 11).

What is deducible from the aforementioned observations of the Division Bench is that the power under Sub Section (4) of Section 30 of the Act

is available to the Chief Justice only to implement the Rules framed under Sub Section (3) of Section 30, and in absence of the Rules the Chief

Justice has no power under Rule (4) to issue the circulars.

It is pertinent to mention that the High Court has made the Rules called 'the Rules relating to appointment of the Ministerial Officers of the

Subordinate courts1 notified by notification No. 87 dated 28th March 1968 (for short Rules) and admittedly there is no provision in the Rules

which would regulate the appointment of ministerial officers. Such absence of a provision leaves the appointing authority free to make the

appointments prescribing a criteria according to his own choice. Resultantly in one district basic eligibility may be matriculation in other it may be

10+2 and graduation in another. Likewise different types of tests may be prescribed for different districts. How strange it is to prescribe different

qualifications and different modes of induction for the post of one Department one Cadre, Class and Category. It really represents a sad

commentary of affairs and unless some uniform mode and method is prescribed it is bound to lead to an anomaly which can be checked by

regulating the method of appointment in such a manner so that entry of evil is ruled out in the absence of Rules the purpose can be achieved by

issuing the Circulars, instructions and guidelines.

Is such power available to the Chief Justice being controlling authority under Sub Section (4) of Section 30, the answer depends on the

determination of scope of 'Controlling Power' and for such determination reference to the dictionary meaning of the word 'Control"" becomes

imporative which is described by Webster's Dictionary in the following words:

To check or regulate; to exercise restraint or direction over; dominate; command; to hold in check; curb; to overpower."" It has been further

defined as: "" The act or power of controlling; regulation; domination or command; check or restraint; something that serves to control; a standard

of comparison in scientific experimentation; a person who acts as a check; a controller; a regulating or controlling device or mechanism.

The meaning assigned to the word 'Control' makes it a comprehensive term, obviously the controlling authority has very wide power, which

essentially includes the power to regulate the appointments as well.

Thus what emerges is that so long as Rules are not made, the Chief Justice is within his powers to regulate the appointment by constituting

selection committees, issuing the guidelines, instructions and circulars under Sub Section (4) of Section 30 and absence of rules under section (3)

cannot prevent the Chief Justice from exercising the power, because such power is traceable to Sub Section (4) of Section 30 of the Act read with

Rule 4 of the Rules. That apart, law is no more res integra that in the absence of Rules instructions can be issued. Here it is advantageous to extract

observations of the Court made in Sant Ram Vs. State of Rajasthan reported in AIR 1967 SC 1910 at 1914 Para7.

We proceed to consider the next contention of Mr. N.C. Chaterji that in the absence of any statutory rules governing promotions to Selection

grade posts the Government cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in

the rules framed already. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the

principle of promotion or junior or senior grade of promotion or junior or senior grade officers to selection grade posts. But that does not mean

that till statutory Rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in

promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory rules by

administrative instructions, but if the Rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue

instructions not inconsistent with the rules already framed.

Again it has been held in S.K. Mathur and others Vs. Union of India and other reported in AJR 1999 SC 128 at 133 para 16.

The Appellants, whose names were sponsored and who had also expressed their willingness to work at Dewas, were consequently appointed as

Inspector (Control) on deputation. The Rules, namely, the Bank Note Press (Class III Posts) Recruitment Rules, 1974 were promulgated on

20111974 when the appellants had already been appointed. Their appointment on deputation therefore, could not have been faulted by the

Tribunal on the ground that there was no provision for appointment on deputation on the Posts of Inspector (Control) under the Recruitment Rules

as it is well settled that in the absence of statutory Rules made under Article 309 of the Constitution, appointments and other conditions of service

can be regularised by administrative orders or executive instructions.

Having regard to the mandate of judicial pronouncement coupled with the observations made by us in the proceeding paras we are of the

opinion that the Chief Justice has all the powers to regulate the appointments of ministerial officers by issuing guidelines, instructions, orders and

circulars but without defeating any provision of the Act or the Rules.

In the aforementioned backdrop we respectfully differ with the view taken by the Division Bench expressed in Secretary to Hon'ble The Chief

Justice Vs. Chanchal Singh. Accordingly we refer the matter for decision by a large bench on the questions formulated hereunder:

I) Whether power of control under Sub Section (4) of Section 30 of the Act conferred on the Chief Justice under Rule (4) of the Rules called

'Rules relating to the appointment of ministerial officers of the Subordinate Courts is dependent on or independent of Sub Section (3) of Section 30

of the Act?

II) Whether the power of appointment of ministerial officers vested in the District Judge can be regulated by the Chief Justice by exercising the

power of control under Sub Section (4) of Section 30 of the Act in absence of provision of mode and method of recruitment and if the answer is in

affirmative, to what extent?

III) Whether the Chief Justice has the power on administrative side to constitute selection committees, issue orders, instructions, guidelines and

circulars to regulate mode and method of recruitment of ministerial officers.

The Registrar Judicial is directed to place the matter before The Hon'ble Chief Justice for constitution of the larger Bench.