Role of the High Courts in the matter of State Judicial Services
The Indian Constitution provides for an independent judiciary in every State by making a provision for a High Court being constituted for each State. The Constitution has conferred very wide powers and extensive jurisdiction on each High Court, including the power of superintendence over all the Courts and Tribunals in the territory over which it has jurisdiction. Undoubtedly, one of the most important wings of the judiciary comprises of the subordinate courts as it is in these Courts that the judiciary comes in close contact with the people. In order to secure the independence of the Subordinate judiciary from the Executive, Articles 233 to 237 have been placed in the Constitution. Article 233 deals with the appointment of District Judges and provides that appointments, posting and promotions of District Judges in any State shall be made by the governor in consultation with the High Court, exercising jurisdiction in relation to such State. The word “District Judge” has been defined in Article 236 (a) as under:
“The expression “District Judge” includes judge of a city civil Court, additional district Judge, joint district judge, assistant district judge, chief judge of a small cause Court, chief presidency magistrate, additional chief presidency magistrate, sessions Judge, additional sessions Judge and assistant session Judge.”
The expression “judicial service” has been defined in clause (b) of Article 236 which is reproduced below:
“The expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district Judge and other civil judicial posts inferior to the post of district judge.”
Article 234 provides as under:-
“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 237 gives power to the governor to apply, by public Notification, the provisions of this Chapter and the Rules made thereunder to any class or classes of Magistrates. Once such a Notification is issued, the provisions of Articles 234, 235 and 236 will become applicable to those Magistrates and they would become members of the ‘judicial service’ under the control of the High Court.
In order to ensure their independence, the control over the subordinate Courts has been vested in the High Court under Article 235 which provides as under:-
“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 have 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.”
Under this Article, the High Court’s control over the subordinate judiciary is comprehensive and extends over a variety of matters, including posting, promotion and grant of leave. The three words, namely, “posting”, “promotion” and “grant of leave”, used in this Article, are only illustrative in character and do not limit the extent of control exercised by the High Court over the officers of the subordinate judiciary.
It is now well-settled by a catena of decisions (See, for example, Mohammad Ghouse v. State of Andhra, AIR 1957 SC 246:(1957) SCR 414 and Chief Justice of Andhra Pradesh v. L. V. A. Dikshitulu, (1979) 3 SCC 34 that the expression “control”, in Article 235 of the Constitution, includes “Disciplinary Control”.
Transfers, promotions and confirmations including transfer of District Judges or the recall of District Judges posted on ex-cadre post or on deputation or on administrative post etc. etc. is also within the administrative control of the High Court. So also premature and compulsory retirement is also within the “Control” of the High Court.
From the scheme of the Constitution, as set out above, it will be seen that though the officers of subordinate judiciary are basically and essentially Government servants, their whole service is placed under the control of the High Court and the governor cannot make any appointment or take any disciplinary action including action for removal or compulsory retirement unless the High Court is “CONSULTED” as required by the constitutional impact of both the Articles 233 and 234 and the “control” of the High Court indicated in Article 235.
The word “consult” in its ordinary meaning means “to ask advice” or “to take counsel”. The governor is thus a “consultor” and the High Court is the consultee” which is treated as an expert body in all matters of service including appointments, disciplinary action, compulsory retirement etc. relating to State Judicial Services. Since the governor cannot act on his own unless he has consulted the High Court, the Constitution has conferred upon the High Court a sacred and noble duty to give the best of advice or opinion to the governor; an advice tendered after due deliberation and after taking into consideration all the relevant material and record relating to the problem on which consultation is made or advice is sought by the governor. It is, therefore, essentially a matter of trust and confidence between the governor and the High Court. The High Court cannot act arbitrarily in giving its opinion to the governor or else it will be a betrayal of that trust. If the advice is not supportable by any material on record and is arbitrary in character, it may not have any binding value.
It has already been pointed out by this Court in Registrar, High Court of Madras v. R. Rajiah, (1988) 3 SCC 211 that though the High Court, in its administrative jurisdiction, has the power to recommend compulsory retirement of a member of the judicial service in accordance with the rules framed in that regard, it cannot act arbitrarily and there has to be material to come to a decision that the officer has outlived his utility. It was also pointed out in this case that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders so that the Officers may discharge their duties honestly and independently unconcerned by the ill-conceived or motivated complaints, made by unscrupulous lawyers and litigants.
In M. M. Gupta v. State of J. and K., (1982) 3 SCC 412, it was indicated that normally, as a rule, the High Court’s recommendations for the appointment of a District Judge should be accepted by the State Government and the governor should act on the same. If in any particular case, the State Government for good and weighty reasons find it difficult to accept the recommendations, it should communicate its views to, and have complete and effective consultation with, the High Court. It was also pointed out that there can be no doubt that if the High Court is convinced that the Government’s objection are for good reasons, it will undoubtedly reconsider its earlier recommendation. Efficient and proper judicial administration being the main object, both the High Court and the State Government must necessarily approach the question in a detached manner
Again in State of Kerala v. A. Lakshmikutty, (1986) 4 SCC 632, this Court pointed out that the duty of the governor to consult the High Court in the appointment of District Judge is integrated with the exercise of his power; he must exercise it in the manner provided by Article 233(1) or not at all. Normally, the High Court’s recommendations have to be accepted by the State Government and the governor has to act on the same but if the State Government for ‘good and weighty reasons’ cannot agree with the High Court, it should take the High Court into confidence and place before it the difficulties in acting upon the recommendations.
Refer: Madan Mohan Choudhary-AIR 1999 SC 1018 : (1999) 1 SCR 596 : (1999) 3 SCC 396 : JT 1999 (1) SC 459 : (1999) 1 SCALE 444