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Judgment
Sharma, J.—This Letters Patent Appeal is preferred against the judgment of a learned Single Judge of this court. The admitted facts of the
case are that Chanchal Singh, the private respondent hereinafter, was appointed processserver by the District Judge, Jammu on the basis of
meritlist, prepared by him after inviting applications. The appellant, however, found that his appointment was in violation of Circular No: 10 dated
31.08.1989 and, therefore, directed his removal. This order of the Chief Justice and the consequential order of discharge was challenged by the
private respondent on the ground that neither his appointment was in contravention of the aforesaid Circular nor his removal was in accordance
with law. The writ petition was allowed by Sethi J, as he then was (now his lordships of the Supreme Court) on March 27,1992 and the latter
dated March 07,1990 issued by the appellant was quashed with the direction that the private respondent shall be deemed to be in service and
entitled to all the consequential benefits.
Mr. Dutta, appearing for the appellant argued that the writ court ignored the rules relating to the appointment of the ministerial officers of the
subordinate courts framed under Section 30 of the Civil Courts Act in exercise of which the Chief Justice had directed removal of the private
respondent. He also contended that the termination of the private respondent without giving him an opportunity of being heard does not offend
principles of natural justice, as it was temporary appointment.
Mr. Lehar, appearing for the private respondent, however, argued that the appointment of the private respondent being neither subject to
confirmation by the Chief Justice nor in contravention of any direction of the High Court, his removal by order of the Chief Justice was arbitrary
and illegal.
The first question to be determined in this case is who is the Appointing authority of the ministerial officers of the subordinate courts and whether
the private respondent has been duly appointed by the authority competent to make such appointment. Section 30 of the Act, which deals with the
appointment and removal of the ministerial officers of the subordinate courts, reads as under:
30.(1) The ministerial officers of the District courts shall be appointed, and may be suspended or removed by the Judges of those courts
respectively.
(2) The ministerial officers of all courts controlled by a District court, other than courts of small Causes, shall be appointed, and may be suspended
or removed by the District court.
(3) Every appointment under this section shall be subject to such rules as the High Court may prescribe in this behalf, and in dealing with any
matter under this section, a Judge of a court of small causes shall act subject to the control of the District court.
(4) Any order passed by a District Judge under this section shall be subject to the control of the High Court.
Admittedly, the High Court has not prescribed rules under subsection(3) of section 30 of the Act in the absence of which District court alone was
to determine the qualifications and mode of recruitment of such officer. The District Judge Jammu, it is admitted, had invited applications and
appointed the private respondent only after he was found more suitable as compared to the other candidates. The services of the petitioner were
directed to be terminated by order of the Chief Justice only on the ground that it was in violation of Circular No. 10 dated 31.08.1989 issued by
the High Court. The writ court without going into the question, whether the order of appointment in fact violated the aforementioned Circular,
quashed the order on the grounds that the direction was (1) not in conformity with subsection (4) of Section 30 of the Act; and (2) that it was in
violation of the principles of natural justice.
Rejecting the argument that the appellant had acted under subsection (4) of Section 30, the writ court held as follows:
The Chief Justice or any other Judge is, therefore, not a High Court for the purposes of subsection (4) of section 30 of the Act unless the court,
including all the Judges, have by resolution or under the rules, conferred power upon the Chief Justice for the purposes of said subsection. The
respondents have not placed anything on record to show that the powers of the court were conferred upon the Chief Justice for the purposes of
subsection (4) of section 30 of the Civil Courts Act.
However, these observations are based upon the specific plea raised by the appellant that the High Court has not framed rules under section 30
of the Act, which is contrary to the actual fact because the rules were framed and notified as early as on 28.03.1968. If that be so as it really is, the
question arises who is the authority competent to appoint and remove a ministerial officer of the subordinate court. Subrule (v) of Rule 2 defines a
Ministerial officer"" as under:
'Ministerial officer' means and includes, every member of the nongazetted staff of District Court and the courts controlled by it or by the High
Court.
Section 30 (2) of the Act provides that every Ministerial officer of all the courts in the District shall be appointed and removed by the District court
and none else. The power of appointment under subrule (2) is, however, subject to such rules as the High Court may prescribe. Admittedly, the
Rules framed under Section 30 do not prescribe the mode of recruitment/appointment by the District courts. Such rules, if framed, could interalia
prescribe qualifications required for the particular posts and the most of recruitment. So the District Judge, in the matter of appointment, had to act
in fair and just manner. The just and fair manner is one which is in accord with Articles 14 and 16 of the Constitution of India. In Jammu and
Kashmir Public Service Commission vs Narindci Mohan, AIR 1994 SC 1808, it has been laid down that:
...When the Rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which
is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply
for by qualified and eligible persons and consideration of their claim to an office or post under the state is a guaranteed right given under Articles 14
and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14 and 16 and in violation to the
statutory rules......
But the appointment has not been revoked on the ground that it was not made after inviting applications, but because it offended Circular No:
10 dated 31.08.1989. The question arises, is it really so? It is admitted that the circular was despatched from Srinager only on 31.08.1989. It is
not disputed that applications for the post of process server were invited vide advertisement notice dated 21.08.1989. It is also an admitted fact
that the appointment order was issued on 04.09.1989 by which time the Circular could not have reached the District court, Jammu, There is a
specific averment in para 6 of the writ petition that in reply to the communication from the High Court, the District Judge, Jammu has stated that
circular No: 10 dated 31.08.1989 had not been received till the appointment order was issued. This fact having not been controverted by the
appellant must be deemed to have been admitted. Moreover, having admitted that the notice was despatched only on 31.08.1989 from Srinagar,
there was no possibility of the same having reached Jammu by the date the petitioner was appointed and therefore, the question of violation of the
Circular does not arise. In that view of the matter, the appointment of the private respondent could not have been revoked or cancelled on this
ground.
Another contention of Mr. Datta is that the District Judge has violated Circular No.3 of 1971. Prohibiting all District. Judges not to appoint any
processserver against any vacancy and, therefore, the order of appointment was in valid. This circular reads as under:
The posts of peons are being filled up by the District and Sessions Judge without any intimation to the secretary to Hon'ble Chief Justice. It is now
ordered that no post of a peon should in future be filled up by the District and Sessions Judge, whenever any vacancy of a peon occurs any there,
the District and Sessions Judge, concerned shall inform the secretary to Hon'ble the Chief Justice without any delay.
However, subsection(S) of section 30 is mandatory and the power of appointment of ministerial officers of the District courts vests exclusively in
the District Judge of the District. So in case the object and purpose of the circular was to take away the powers of the District court vested in it
under subsection(2) it would be illegal and void abinitio. However, if its purpose was to monitor the exercise of power of appointment by the
District court under subsection^), the same is permissible.
The order of removal of the private respondent is liable to be quashed for yet another reason. The letter dated 07031990 shows that the Chief
Justice had declined to confirm the appointment as it violated Circular No. 10 of 1989. However, the order of appointment, admittedly, is not
subject to confirmation by the Chief Justice. No rule has been brought to our notice under which any appointment made by the District Judge is
required to be confirmed by the Chief Justice. So for this reason also the order of termination is bad and consequently liable to be quashed.
Another point urged before the learned Single Judge was that the order directing termination of private respondent having been passed in
exercise of control under subsection (4) of section 30 of the Act, no fault could be found with it.
Mr. Dutta laid much stress on Rule 4 of Rules to justify the legality of letter dated 07.03.1990 in terms of which the services of the private
respondent were terminated. The argument turns round the scope of word ""control"" occurring in subsection (4) of section 30 of the Act. While
dealing with the scope of word ""control"", the writ court held as under:
...According to Corpus Juris Secundum Vol.18, the word 'control' when broadly used, may embrace every form of control actual or legal, direct
or indirect negative or affirmative. It has further been observed ""to control"" has been said to import a check by a counter check or registered or
duplicate account; but gradually an enlarged meaning with the connotation of restraint over the subject of control, has been given to the term, and
so it has been from action, hold in restraint or check, keep under direct, or guide to dominate, over power, subdue, or subject; to influence over,
to govern, regulate, or rule to have authority or power over, or have under command, to manage, to subject to authority.
It was held by a Division Bench of Madras High Court in Public Prosecutor V. VenkayyaAIR 1944 Mad 452, that the power to control include a
power to prohibit. The word 'control' therefore, cannot be confined to more regulation. It is more comprehensive and includes domination or
command over an inferior. This is thus established that the order passed by the Distt. and Sessions Judge under section 30 of the Civil Courts Act,
is subject to control of the High Court meaning thereby that if the order is found to be contrary to law or any direction issued, same can be varies
rescinded or kept in abeyance.......
We may like to add that the' control' envisaged by subsection (4) is referable to the powers of the High Court under subsection (3) which
mandated that, ""every appointment under section 30 shall be subject to such rules as the High Court may prescribe in this behalf, so it is only when
the appointment made by the District Judge violates any rule or direction of the High Court that power under subsection (4) can be exercised,
moreover, it is the order passed by a District Judge under section 30 that is made subject to the control of the High Court and, therefore, it follows
an necessary corollary that unless the order is found to be contrary to the rules of recruitment or direction of the High Court, this subsection cannot
be invoked. Any other view well not be possible without doing violence to the language of this subsection. We may also notice that the
expression."" shall be subject to the control of the High Court ""used in subsection (4) is not the same as the expression."" the control over District
courts and courts subordinate thereto...shall be vested in the High Court.."" as used in Section 111 of the State Constitution. So it cannot be held
with certainty that the ""control"" exercisable under subsection (4) is the same as envisaged under section 111 of the State Constitution. The word
control"" under section 111 of the state constitution is exclusive while under subsection (4) of section 30 of the Act, it is only the order of District
Judge passed under section 30, which is subject to the control of the High Court. So the powers under subsection (4) can be exercised only to
examine the legality or otherwise of the order and goes no further. In case the order of the District Judge is found to be in contravention of the
Rules framed under subsection (3) or any direction issued under subsection (4) of Section 30. such an order undoubtedly could be cancelled in
exercise of the powers delegated to the Chief Justice by the High Court. But since the Rules have not framed under subsection (3) of section 30,
the question of violation of such rules does not arise. Similarly, as already held, the appointment not being in contravention of Circular No. 10
dated 31.08.1989, the same could not be concelled. Further, the appointment not being subject to confirmation, the order impugned before the
writ court was liable to the quashed on this ground also. All this apart, the question still remains, what powers can be exercised under subsection
(4) of section 30? As per the Rules framed under section 30, only the following powers are vested in the Chief Justice:
(3) No District Judge shall appoint by promotion the ministerial officer in a grade other than the lowest grade of clerks and menials without
previously informing the Chief Justice about the vacancy in that other grade.
(4) The control to be exercised by the High Court under subsection (4) of section 30 of the Act shall be exercised through the Chief Justice.
(5) An Appeal against the order of punishment passed by a District Judge in his original or appellate jurisdiction in respect of a ministerial officer
shall lie to the Chief Justice whose orders shall be final subject to further appeal against the order of the Chief Justice imposing or upholding a
penalty of dismissal or removal from service which shall lie to a committee of two Judges to be constituted by the Chief Justice.
(6) The ministerial officers may be transferred by the District Judge concerned in accordance with the instructions that may be issued from time to
time in this behalf by the Chief Justice; provided that the transfer of a ministerial made by the Chief Justice.
Admittedly, the High Court has not framed rules under subsection (3) of section 30 of the Act.
The object of section 30 of the Act is to ensure that the control to be exercised by the District Court, section 29 of the Act is compete, subject
only to the general superintendence and control of the High Court. This control can be affective only if Section 30 is allowed to operate without
any lot or hindrance and the Rules framed under subsection (4) envisage it. Therefore, the control to be exercised under Rule (4) is limited to over
see whether the appointments made by the District Judge are in accord with the Rules framed by the High Court subsection (3) and in the absence
of such rules with justice and fair play. Since there was no challenge to the appointment of the private respondent on any of these grounds, no fault
can be found with the judgment impugned in the appeal.
However, under Section 30 of the Act, power of appointment of Ministerial officers exclusively vests in the District Court, though it is subject
to the rules prescribed ""under subsection (3). Thus, the control envisaged by subsection (4) must be traceable to the rules prescribed under
subsection (3). But as the rules have not been prescribed and the letter dated 07.03.1990 is not traceable to the Rules framed under subsection
(4), it is liable to be quashed on this ground also. If that be so as it really is the same has been rightly quashed by the writ court.
So the control to be exercised by the High Court under Section 30 (4) can be affective only by prescribing rules under subsection (3) of
section 30 of the Act. Any other view will only undermine the control to be exercised by the District Court under Section 29 which will seriously
geoperdise the discipline amongst the ministerial officers.
It is doubtful that the Secretary to Chief Justice could file this appeal against the judgment by virtue of which die order passed on the direction
of the Chief Justice has been quashed. He has vide letter dated March 07.1990. only conveyed the order of the Chief Justice. So the appeal dose
not appear to be competent. However, since the appeal is being dismissed on the ground that the order directing termination of the private
respondent was bad because his appointment is not in contravention of Circular No.10 dated 31.08.1989, therefore, if is not necessary to make
any further comment about it.
In view of the above, there is no merit in this appeal, which is dismissed accordingly. The judgment of the writ court shall be implemented
without any further delay. No order as to costs.