Research › Browse › Judgment

Gujarat High Court · body

1977 DIGILAW 49 (GUJ)

R. M. GAJJAR v. STATE

1977-05-04

B.K.MEHTA, D.A.DESAI, J.B.MEHTA

body1977
J. B. MEHTA, J. ( 1 ) IN this petition the two petitioners who were appointed as class III employees on the establishment of the Civil Courts at Rajpipla and Jambusar in the District of Broach by the District Judge Broach have challenged the final order of the District Judge along with the order of the High Court at Annexures G and H as per which they have been removed from service. The petitioners had been chargesheeted by (he District Judge on December 22 1971 for falsely identifying three persons before the then Civil Judge Junior Division and Judicial Magistrate F. C. Sivli as per Ex. A. In the disciplinary enquiry which was instituted on this chargesheet at Annexure A the petitioners had admitted the charges and prayed for mercy. The District Judge by the order dated June 5 1974 at Annexure D passed the order to withhold future promotions with permanent effect. The High Court however considered the punishment grossly inadequate and therefore under Rule 23 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 hereinafter referred to as the rules issued a show cause notice at Annexure E on September 6 1974 to enhance the punishment to one of removal from service. After hearing the petitioners the High Court passed an order at Annexure G dated December 30 1974 observing that it was not safe to continue persons like the delinquents who hove committed a serious and grave misconduct in the service of the judicial Department. The penalty imposed upon them by the competent authority being grossly inadequate it was considered that adequate punishment looking to the serious and grave misconduct of the petitioners could not be less than removal from service. Accordingly the District Judge Broach by the order at Annexure H in pursuance of the High Courts order has removed from Government service the two petitioners with effect from December 23 1974 It is these wo orders at Annexures G and H by the High Court and by the District Judge removing the present petitioners which are challenged in this petition. ( 2 ) WHEN the matters came up for hearing before the learned Single Judge as the question arose as to the competence of the High Court to review the penalty by exercising powers under Rule 23 and as the relevant rule merely provided this review power being exercised by the authority to which an appeal against the order imposing the penalty would lie and as no such authority could be clearly spelt out in the rules the learned Single Judge after considering the relevant provisions and the historical background of the various constitutional reforms wanted to rest the source of this power in the Constitutional control of the High Court under Article 235 consistent with which alone all these disciplinary rules could be properly read. The difficulty which however the learned Single Judge experienced was that a Division Bench in RAMESH C. MASHRUVALA V. STATE 16 G. L. R. 277 had in the case of Registrar Small Causes Court proceeded on a restricted interpretation of Article 235 as being confined only to persons in the Judicial service of the State as defined in Article 236 (b) on misapprehension of the true ratio of STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHIS CASE A. I. R. 1966 S. C. 447. This being the question of wide public importance as to the true interpretation of Article 235 which embodied the cardinal principle of the independence of judiciary he has made this reference to this larger bench formulating the following two questions in this reference: (1) Whether the High Court on its administrative side has jurisdiction to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate Court in exercise of the powers of review conferred by Rule 23 of the Gujarat Civil Services (Discipline and Appeal Rules) 1971 ? (2) Whether the control vested in the High Courts under Article 235 of the Constitution is exercisable only over members of the judicial service of the State as defined in Article 236 (b) or whether the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control ? (2) Whether the control vested in the High Courts under Article 235 of the Constitution is exercisable only over members of the judicial service of the State as defined in Article 236 (b) or whether the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control ? ( 3 ) IT is true that while this reference was pending the decision in Mashruvalas case has been set aside by their Lordships in the decision in STATE OF GUJARAT V. R MASHRUVALA 1977 (2) S. C. C. 12. Their Lordships reversed on facts the view of the Division Bench by holding that on a true interpretation of the various provisions of the presidency Small Causes Courts Act 1882 the Registrar of a Small Causes Court exercised judicial powers heard suits passed decrees which were appealable and therefore he was a person holding a civil Judicial post inferior to the post of a District Judge and was in judicial service as defined in Article 236 (b) which 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. Therefore their Lordships held that the Registrar inasmuch as he exercised judicial functions was a Judicial Officer in Judicial Service and clearly came within the scope and intent of Articles 235 and 236 because Article 235 in fact vested control in the High Court in respect of persons belonging to the judicial service of a State and holding any post inferior to the post of a District Judge. It was further pointed out that the fact that the High Court was not the appointing a authority was not relevant in regard to the disciplinary jurisdiction of the High Court which was clearly vested under Article 235. Finally at page 14 it was held that the High Court had abdicated its own disciplinary jurisdiction. The independence of the judiciary had been emphasised by the Supreme Court in unmistakable terms in the decision in HIGH COURT OF PUNJAB AND HARYANA V. STATE OF HARYANA 1975 (1) S. C. C. 843 AND SAMSHER SINGH V. STATE OF PUNJAB A. I. R. 1974 S. C. 2192. The independence of the judiciary had been emphasised by the Supreme Court in unmistakable terms in the decision in HIGH COURT OF PUNJAB AND HARYANA V. STATE OF HARYANA 1975 (1) S. C. C. 843 AND SAMSHER SINGH V. STATE OF PUNJAB A. I. R. 1974 S. C. 2192. These decisions have proceeded only ors a true interpretation of the later part of Article 235 because Article 235 clearly includes in this wide control after the present Constitution even persons in the judicial service as defined in Article 23g (b ). It was sufficient for their Lordships to rest their decision on this narrow ground because the Registrar having been found to be a member of the judicial service because of his judicial functions in terms fell in the later part of Article 235 because of the inclusive clause. The wider question therefore which was assumed by the Division Bench that Article 235 even in the earlier portion when it was worded in the widest language as vesting control over the District Courts and courts subordinate thereto would also get confined in its scope only to the persons in the judicial service was a question which still remains to be answered in the present reference. The entire cantena of decisions of the Supreme Court have been only so far as inclusive later part is concerned where by the very terms of this inclusion the framers of the Constitution have clinched this question of the disciplinary control over the members of the judicial service. ( 4 ) WE shall take up first the second question as argued by Mr. Majmundar about the true construction of Art. 235. Article 235 and the interpretation clause in Article 236 run as under:-235 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. 236 In this Chapter - (a) the expression district judge includes judge of a city civil court additional district Judge assistant district judge chief judge of a shall cause court chief presidency magistrate additional chief presidency magistrate sessions judge additional sessions judge and assistant sessions judge; (b) 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. ( 5 ) ARTICLE 235 bring the Constitutional provision in the context or the independence of the subordinate Judiciary the provision would have to be carefully interpreted in the light of the entire context and setting so as to give full effect to it. As pointed out in the Full Bench decision in S. H. SHETH V. UNION OF INDIA 17 G. L. R. 1017 at page 1040 the Constitution being a revelation of great purposes which were intended to be achieved by it as a continuing instrument for the organic growth of the country all sources on statutory interpretation or relevant material would have to be explored by a purposeful functional interpretation looking to the object considering the mischief social and historical background and the entire provision as a whole in its proper context and setting. Such an important Constitutional provision could not be read in vacuo but as occurring in a single complex pragmatic organic instrument in which one part may throw light on another and therefore we must give due regard to all the relevant materials by exploring all the avenues for ascertaining the true legislative intention by (1) examining the historical background to identify the state of affairs existing at the time of the enactment of the provisions (2) a conspectus of the entire scheme of the provisions made regarding he subordinate Courts (3) with particular regard to the entire scheme object and purpose underlying and as unravelled from the preamble or title and (4) scrutiny of the actual words of this provision which would have to be interpreted in the light of the established canons of interpretation; and (5) examination of the other provisions which had been relied upon as throwing light on the particular words which are the subject of interpretation in the entire context and setting. It would thereafter be possible for us to find out whether those various avenues or approaches lead in different directions or whether they lead to an identical conclusion. (A) Historical and special background and the real objective behind the provisions in Chapter VI for the independence of the subordinate judiciary and the nature of this control in Article 235 as per the settled legal position. ( 6 ) THE entire history of these provisions has been exhaustively examined in STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHI. A. I. R 1966 S. C. 447 with a view to bringing into bold relief the necessity of enacting Part VI even though special provision was made in Part XIV with regard to services under the Union and States. It appears that in Part IX of the Government of India Act 1915 provision was made for the Constitution and jurisdiction of the Indian High Courts and sec. 107 gave to the High Court superintendence over all Courts for the time being subject to its appellate jurisdiction and enumerated the things that the High Court could do. The subjects however did not include appointment promotion or transfer or control of the District judges. High Courts could only exercise over them such control as came within their power of superintendence other the courts subordinate to their appellate jurisdiction. The Government of India Act 1935 made certain special provisions with regard to the District Judges and the subordinate judiciary and they were to be found in sec. 254 to 256 of the said Act. These provisions were enacted as a part of Chapter 2 of Part X which dealt with the civil services under the Crown in India. Briefly stated the effect of those provisions was to place in the hands of the High Court the posting promotion and grant of leave of persons belonging to the subordinate judicial service of a Province and holding any post inferior to the post of District judge though there was right of appeal to any authority named in the Rules and the High Courts were asked not to act except in accordance with the conditions of service prescribed by the Rules. As regards the District Judges the posting and promotion of a District Judge was to be made by the Governor of the Province exercising his individual judgment and the High Court was to be consulted before a recommendation to the making of such an appointment was submitted to the Governor. The Act was silent about the control over the District Judges and the subordinate Judicial service. The administrative control of the High Court under sec. 224 over the Courts subordinate to it extended only to the enumerated topics and to superintendence over them. The independence of the subordinate judicial service and of the District Judges was thus assured to a certain extent. When India attained independence and the Constitution was drafted the advance made by the 1935 Act was some how lost sight of and no provision similar to those made in the Government of India Act 1935 in respect of the subordinate judiciary found place in the draft constitution. The unfortunate omission however attracted timely attention and consequently Chapter VI was enacted as an independent Chapter. This was said to be the history lying behind the enactment of Articles 233 to 227. About these Articles their Lordships have held at page 453 that these Articles 232 to 237 in Chapter V on services were not placed in the chapter on services but were immediately after Chapter V making the provisions in regard to the High Courts. The Articles went a little further than the corresponding sections of the Government of India Act by vesting the control of the District Courts and the Courts subordinate thereto in the High Courts. Therefore the term control was interpreted in the light of this relevant history behind enactment of these Articles which indicated that the control was vested in the High Court to effectuate a purpose namely the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. Looking to the prior state of the law the evil sought to be removed and the process by which the law was evolved it was held that the word control when accompanied with the word vest clearly showed that the High Court is male the sole custodian of the control over the judiciary. Looking to the prior state of the law the evil sought to be removed and the process by which the law was evolved it was held that the word control when accompanied with the word vest clearly showed that the High Court is male the sole custodian of the control over the judiciary. Control therefore was not merely the power to arrange the day-to-day working of the Court but contemplated disciplinary jurisdiction over the presiding Judge. Article 227 gave to the High Court superintendence over those Courts while control under Article 235 had a different content which included something in addition to mere superintendence. It was in terms held to be control over the conduct and discipline of the judges. It was pointed out that this conclusion was further strengthened by two other indications pointing clearly in the same directions. The first is that the order of the High Court was made subject to an appeal if so provided in the land regulating the conditions of service and this necessarily indicated an order passed in disciplinary jurisdiction. Secondly the words are that the High Court shall deal with the Judge in accordance with his rules of service and the word deal also pointed to disciplinary and not mere administrative jurisdiction. Further proceeding at page 454 it was pointed out that control was useless if it was not accompanied by disciplinary powers and it was emphasised that the High Court could not be expected to run to the Government or the Governor in such disciplinary matters. It was therefore emphasised that these articles went to show that by vesting control in the High Court the independence of the subordinate judiciary was in view. This was the trend which was prevalent since 1935 Act and which had been given full effect by the drafters of the present Constitution. This construction was said to be in accord with the Directive Mandate in Article 50 of the Constitution that the State shall take steps to separate the judiciary from the executive in the public services of the State. It should also be kept in mind that the question before their Lordships was the converse question than the one before us as to whether the control in Article 235 over the District Courts and the courts subordinate thereto covers also the control over the District Judges. It should also be kept in mind that the question before their Lordships was the converse question than the one before us as to whether the control in Article 235 over the District Courts and the courts subordinate thereto covers also the control over the District Judges. That is why at page 453 was in terms held: we are not impressed by the argument that the word used is district court because the rest of the article clearly indicates that the word court is used compendiously to denote not only the court proper but also the presiding judge. The latter part to Article 235 talks of the to an who holds the office. In the case of the judicial service subordinate to the District Judge the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of Posting promotion and grant of leave and the control of the courts are vested in the High Court ( 7 ) THE historical perspective which has been examined in this decision reveals the great purpose which was to be achieved by vesting this control in the High Court of securing of independence of the subordinate judiciary which would be completely defeated without the disciplinary control and also to successfully implement the Directive Mandate of Article 50 of a complete separation of the judiciary from the executive. The true setting and context or the purpose of Article 235 was to make the determined advance in this direction by special provision in Chapter VI for the subordinate courts and the judicial services. The previous control which existed by way of administrative superintendence over the court subject to the appellate jurisdiction of the High Court was thus sought to be finally extended by vesting specifically the disciplinary control both over the Courts and the persons in the judicial service in the High Court to advance those ends of the independent judiciary and to implement the Directive Magistrate of complete separation of judiciary from the executive In the next decision in CHANDRA MOHAN V. STATE OF U. P. A. I. R. 1966 S. C. 1987 it is held that to secure independence of the judiciary from the executive the Constitution has introduced this group of articles in Chapter VI under the heading Subordinate Courts. At the time when the Constitution was enacted in most of the States the magistracy as under the direct control of the executive and there was a strong agitation that the judiciary should be separated from the executive for unless that was done the independence of the judiciary at the lower levels would be a mockery. So Article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public service of the States. Simply stated it means that the shall be a separate judicial service free from the executive control. It is against this historical background and the policy of the Constitution that the provisions in Chapter VI and in particular Article 235 are required to be examined for ascertaining the true meaning. We should also bear in mind the entire catena of decisions which has examined the scope and ambit of the wide power of this control not only as regards the three enumerated topics included in the latter part of Article 235 i. e. posting promotion and grant of leave but in the entire spectrum of administrative control as pointed out by us in S. H. SHETH V. UNION OF INDIA 17 G. L. R. 1017 at page 1043 as under :it is not confined merely to administrative jurisdiction or to general superintendence or to arranging the day to day work of the Court but it comprehends control over the conduct and discipline of District Judges. (STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHI A. I. R. 1966 S. C. 447); their further promotions and confirmations (STATE OF ASSAM V. JUSESWAR A. I. R. 1970 S. C. 1616; AND JOGINDER NATH V. UNION OF INDIA A. I. R. 1975 S. C. 514); their seniority disputes (STATE OF BIHAR V. MADAN MOHAN A. I. R. 1976 S. C. 404); their transfers (STATE OF ASSAM V. RANGA MUHAMMAD A. I. R. 1967 S. C. 903); the placing of their services at the disposal in the Government for an ex-cadre post (STATE OF ORISSA V. SUDHANSU SAKHAR MISRA A. I. R 1968 S. C. 647); considering their fitness for being retained in service and recommending their discharge from service (RAM GOPAL V. STATE OF MADHYA PRADESH A. I. R. 1970 S. C. 153) exercise of complete disciplinary jurisdiction over them including initiation of the inquiry (PUNJAB AND HARYANA HIGH COURT V. STATE OF HARYANA A. I. R. 1975 S C. 613); and in the matter of premature retirement (STATE OF HARYANA V. INDER PRAKASH A. I. R. 1976 S. C. 1841 ). The scope and ambit of the power conferred on the Governor under Article 233 which was exercisable on the advice of the Council of ministers in consultation with the High Court had been confined in this catena of decisions to the initial appointment or initial promotion of persons to be District Judges and to their assignment to a post in the said cadre and to the removal or dismissal of such persons. Therefore it was held in S. H. Sheths case that the power of the Governor under Article 233 (c) ceased after he had made the initial appointment or initial promotion and assignment to a post in the cadre and thereafter he came into the picture again only in the case of dismissal or removal on the conclusion of the enquiry initiated by the High Court when the final order was to be passed or actual reduction in rank or dismissal had to be done by the Governor and not by the High Court as held in BARADAKANTA MISHRA V ORISSA HIGH COURT A. I. R. 1976 S. C. 1899. In these matters of control it was pointed out that the Government would have to act on the recommendation of the High Court which was the broad basis of Article 235. In these matters of control it was pointed out that the Government would have to act on the recommendation of the High Court which was the broad basis of Article 235. In SAMSHER SINGH V. STATE OF PUNJAB A. I. R. 1974 S. C. 2193 AND STATE OF HARYANA V. INDER PRAKASH A. I. R. 1976 S. C. 1841 it was held that the vesting of complete control over the subordinate judiciary in the High Court led to this that the decision of the High Court in matters within its jurisdiction will bind the State. That is why this wide ambit of power conferred under Article 235 in its opening part is held not to be curtailed even by the concluding portion of the said Article except to the extent therein specified and even if some rules framed under Article 309 impinged upon the power of control those rules had to be held ultra vires (STATE OF ASSAM V S. N. SEN A. I. R. 1972 S. C. 1028 AT 1030 ). ( 8 ) IN Samhsher Singhs case the learned Chief Justice considered it as an act of complete self-abnegation by the High Court to hold an enquiry over the member of subordinate judiciary through the Director of Vigilance because not only the members were under the control of the High Court but they were also under the care and custody of the High Court. The members of the subordinate judiciary look up to the High Court only for discipline but also for dignity. Even His Lordship Iyer J. made pertinent observation as under : the second spinal issue in the case as earlier indicated bears on fearless justice another prominent creed of our Constitution. The independence of the Judiciary is a fighting faith of our founding document. Since the days of Lord Coke Judicial independence from executive control has been accomplished in England. The framers of our Constitution impressed by this example have fortified the cherished value of the rule of law by incorporating provisions to insulate the judicature. Justice becomes fair and free only if institutional immunity and autonomy are guaranteed (of course there are other dimensions to Judicial independence which are important but irrelevant for the present discussion ). The framers of our Constitution impressed by this example have fortified the cherished value of the rule of law by incorporating provisions to insulate the judicature. Justice becomes fair and free only if institutional immunity and autonomy are guaranteed (of course there are other dimensions to Judicial independence which are important but irrelevant for the present discussion ). The exclusion of executive interference with the subordinate judiciary i. e. grassroots justice can prove a teasing illusion if the control over them is vested in two maters viz. the High Court and the Government the latter being otherwise stronger Sometimes a transfer could also be more harmful than punishment and disciplinary control by the High Court can also be stultified by an appellate jurisdiction being vested in Government over the High Courts administrative orders. This Constitutional Perspective informed the framers of our Constitution when they enacted the relevant Arts. 233 to 237. Any interpretation of jurisdiction of the High Court order its subordinate limbs must be aglow with the thought that separation of the Executive from the Judiciary is a cardinal principle of our Constitution. ( 9 ) ONE more decision which concludes this line of decisions is BALDEV RAJ V. PUNJAB and HARYANA HIGH COURT A. I. R. 1976 S. C. 2490 where their Lordships in terms held at page 2496 that the inner significance of the constitutional provisions relating to the subordinate judiciary was that in this context of recommendation of disciplinary action of the High Court in respect of judicial officers they should always be accepted by the Governor and it was inconceivable that without reference to the High Court the Governor would pass an order which had not been earlier recommended by the High Court contrary to the contemplation in the Constitution Even regarding the recommendation of the Public Service Commission where it is necessary under Article 320 (3) (c) in respect of judicial officers unlike the case in our State where the 1960 regulations did not provide the necessity of such recommendation for judicial officers Their Lordships pointed out that on a parity of decisions in PRADYAT KUMAR BOSE V. THE HONBLE THE CHIEF JUSTICE OF (CALCUTTA HIGH COURT A. I. R. 1956 S. C. 285 the advice should be of no other authority than the High Court in the matter or judicial officers. This was the plain implication of Article 235 as judicial officers were not serving under the State Government. To give any other interpretation to Article 320 (3) (c) would be to defeat the supreme object underlying Article 235 of the Constitution specially intended for protection of the judicial officers and necessarily the in dependence of the subordinate judiciary. It was emphasised that it was absolutely clear that the Governor could not consult the Public Service Commission in the case of judicial officers and accept its advice and act according to it. There was no room for any outside body between the Governor and the High Court. Therefore the aforesaid catena of decisions brings out in bold relief the supreme purpose of Article 235 as a Constitutional Charter of the independence of the subordinate judiciary which in such control matters is so widely interpreted that the whole control would exclusively vest only in the High Court and there would be no room for any outside body even the Governor or Public Service Commission to have their say and it was with that object in view that the subordinate Courts and persons in judicial service have been taken out from the general Chapter XIV of services and have been specially put up in Chapter VI immediately after the High Court in Chapter V. (B) Preamble title of the provision and the true construction of Article 235. ( 10 ) EVEN the preamble or title which unravels the meaning of these salutory provisions of Chapter VI is eloquent as it mentions subordinate Courts and as even the heading for Article 235 is Control over Subordinate Courts. A bare perusal of Art. 235 emphasises that the provision is of widest control over District Courts and courts subordinate thereto. and the width of this control is measured by the inclusive clause where not only three specific topics are enumerated of posting promotion and grant of leave but specific mention is made of the entire class of judicial officers i. e of the persons of let subordinate judicial service and holding any post inferior to the post of District Judge so that all doubt is finally settled as to the width of this inclusion. Article 236 (b) defines judicial service as a service consisting exclusively of persons intended to fill the post of District Judge as widely defined in Article 236 (a) and other Civil judicial posts inferior to the post of District Judge. Therefore the. wide inclusion of judicial officer had initially a limited operation only to the subordinate civil judiciary because the Directive Mandate of complete separation of judiciary from the executive could only be implemented gradually and that is why Article 237 in terms provides that the provisions of this Chapter VI could be applied by public notification by the Governor in relation to any class or classes of Magistrates in the State as they applied to persons of the judicial service. Such notifications have been issued in our State. So that exclusion of Magistrates also does not remain. It was to emphasise this wide inclusion even of the judicial officers that the latter part of Article 235 had been so enacted that on such extension even class of Magistrates would be included. On no statutory principle of construction therefore this Article should be rewritten by recasting the opening part as if it was merely: the control over persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge (including the posting and promotion of and the grant of leave to such persons) because that would be rendering otiose the entire opening clause of Article 235 whose import is emphasised both in the preamble of the Chapter and in the title of this Article to unraval its true meaning and by deliberate change of language from the earlier secs. 254 to 256 of the Government of India Act 1935 On no settled principle of construction a Constitutional provision can be so interpreted as to render these opening words control over the District Courts and courts subordinate thereto mere surplusage or to render substantial portion thereof as otiose except for compelling reasons. Redundancy is not a fault which could ever be attributed to our founding Fathers and still if we confine this Article 235 only to control over judicial officers belong ing to the judicial service as defined in Article 236 (b) this result would be reached. Even the Constitutional history of the earlier provisions in secs. Redundancy is not a fault which could ever be attributed to our founding Fathers and still if we confine this Article 235 only to control over judicial officers belong ing to the judicial service as defined in Article 236 (b) this result would be reached. Even the Constitutional history of the earlier provisions in secs. 254 to 256 where only three topics of control posting promotion and leave to only the members of the subordinate civil judiciary had been mentioned would clinche the issue that the change in language of the opening part of Article 235 by the founding Fathers in the final draft was deliberate to leave no room for doubt that the control was not only over Courts proper in the compendious sense of its whole organism but also the members of the judicial service defined in Article 236 (b) and that too in the widest sense not limited to three enumerated topics in this later inclusive part. Therefore on a plain grammatical construction keeping in our mind the Constitutional behest of securing in dependence of judiciary and the direction of growth envisaged in Article 50 of complete separation of judiciary from the executive the whole purpose would he frustrated if the disciplinary control cannot be exercised over the entire subordinate courts including the administrative staff which was always treated as pointed out in Bagchis case as historically inhering even in the limited administrative superintendence or control over the district Courts and courts subordinate thereto Ally other interpretation would be wholly destructive of the harmonious efficient and effective working of the subordinate courts if the High Court would be denuded of powers of control over the other administrative functionaries and ministerial staff of the District Court and the subordinate Courts other than judicial officers. The Courts are institutions or organisms where all the limbs complete the whole Court and when Constitutional provision of control in Article 235 is of such wide amplitude to cover both the Courts and persons belonging to the judicial service there would be no reason to exclude from the scope of control all the other limbs of the Court namely administrative functionaries and ministerial staff of its establishment. Limitation may of-course come in because of the concluding part as the persons concerned have a guarantee of the right of appeal under the law regulating conditions of service and because the High Court is also required to deal with them not otherwise than in accordance with the conditions of service prescribed under such law. Therefore if these fuctionaries and ministerial staff have been appointed by the District Judge as defined in Article 236 (a) the disciplinary authority who would initiate the inquiry would be the District Judge and the controlling jurisdiction would not be of the original character but the appellate or revisional or review jurisdiction in accordance with the relevant conduct and discipline rules or when the High Court is appointing authority such controlling jurisdiction may also be original disciplinary jurisdiction where the High Court itself would have to initiate the enquiry. That would be besides the point for resolving the present question as to whether this wide Article 235 which covers both within its ambit of control the Districts Courts and courts subordinate to as well as person s of the judicial service manning this Court should be limited only to the later category against all canons of statutory construction. Nothing compelling in the context is indicated for adopting such a construction which would defeat the whole purpose of this wide clause and the purpose intended to be secured by this salutary control jurisdiction. (C) Conspectus of other provisions and light that could be had from them and from the entire context and setting. ( 11 ) NOTHING compelling in the context is shown to give the limited construction to this wide Constitutional control measure in Article 235 so as to confine it only to the judicial officers i. e. the members of the judicial service. It is true that other Articles 233 to 237 in this Chapter which deal with appointments are so confined and the interpretation clause in Article 236 (b) so defines even such judicial service with its further extension after a public notification even to Magistrate class so that that class of Magistrates even as per the evolutionary mandate of Article 50 gets completely assimilated with the civil judicial service. That however does not compel this limitation to be introduced in the whole of Article 235 which on its own wording has a totally wide context both of Courts as well as persons of judicial service in the limited or extended sense dependent on the issuance of the notification under Article 235. To narrow down the clear words of this Article 235 by reference to these other Articles in Chapter VI which appeal in their context only to the members of the judicial service is against all canons of construction and is tantamount to rewriting Article 235 forgetting its past history and the reasons why this change in phraseology was adopted by the founding Fathers from the existing pattern under the Government of India Act 1935 in corresponding secs. 254 255 and 256 which only mentioned members of judicial service and enumerated only three matters of posting promotion and leave. As explained in Bagchis cases this is to reverse the determined trend prevailing in this direction by further extension by advisedly using this wide expression control over the District Courts and courts subordinate thereto in the final draft along with taking out these provisions in Chapter VI from the Services Chapter XIV and placing them immediately after the High Court in Chapter V. ( 12 ) THIS is further borne out on consideration of even some of the provisions in Chapter V relating to the High Court. Under Article 229 the Chief Justice has been put in the control of the administrative staff including even the power of appointment and dismissal etc. and the prescription of their conditions of service except in financial matters. Therefore it would be unreasonable to conclude that the High Court itself or through other presiding officers of the subordinate Courts would be denuded of the powers of control over the ministerial staff. Besides under Article 225 the existing jurisdiction administrative or otherwise which would be exercised by the High Court is preserved and even under Article 227 the superintendence is both administrative and judicial over the subordinate Courts even after the said Article is truncated in the present 42nd Constitutional Amendmeat Package because of the express words in Article 227 (2) without prejudice to the generality of the foregoing provisions as explained in WARYAM SINGH V. AMARNATH A. I. R. 1954 S. C. 215 even when now the limitation similar to the original sec. 224 (2) in the Government of India Act 1935 is reintroduced by way of sub-clause (5) to Article 227. In BARADAKANTA MISHRA V. REGISTRAR ORISSA HIGH COURT A. I. R. 1974 S. C. 710 at pages 720-722 the entire administrative jurisdiction is held to have been consistenly regarded statutes as part of functions in the administration of justice. It is held:the presiding Judge of a Court embodies in himself the Court and when engaged in the task of administering justice is assisted by a complement of clerks and ministerial officers whose duty it is to protect and maintain the records prepare the writs serve the processes etc. The acts in which they are engaged are acts in aid of administration of justice by the Presiding Judge. The power of appointment of clerks and ministerial officers involves administrative control by the Presiding Judge over them and though such control is described as administrative to distinguish it from the duties of a Judge sitting in the seat of justice such control is exercised by the Judge as a Judge in the course of judicial administration. Judicial administration is an integrated function of the Judge and cannot suffer any dissection so far as maintenance of high standards of rectitude in judicial administration is concerned. The whole set up of a Court is for the purpose of administration of justice and the control which the Judge exercises over his assistants has also the object of maintaining the purity of administration of justice. These observations apply to all Courts of justice in the land whether they are regarded as superior or inferior Courts of justice. Again further proceeding at page 721:in a country which has a hierarchy of courts one above the other it is usual to find that the one which is above is entrusted with disciplinary control over the one below it. Such control is devised with a view to ensure that the lower Court functions properly in its judicial administration. A Judge can foul judicial administration by misdemeanors while engaged in the exercise of the functions of a Judge. It is therefore as important for the superior Court to be vigilant about the conduct and behaviour of the Subordinate Judge as a Judge as it is to administer the law because both functions are essential for administration of justice. A Judge can foul judicial administration by misdemeanors while engaged in the exercise of the functions of a Judge. It is therefore as important for the superior Court to be vigilant about the conduct and behaviour of the Subordinate Judge as a Judge as it is to administer the law because both functions are essential for administration of justice. The Judge of the superior Court in whom this disciplinary control is vested functions as much as a Judge in such matters as when he hears and disposes of cases before him. The procedures may be different. The place where hesits may be different. But the powers are exercised in both instances in due course of judicial administration. It superior Courts neglect to discipline subordinate courts they will fail in an essential function of judicial administration and bring the whole administration of justice into contempt and disrepute. Thereafter provisions in clause 8 of the Letters Patent of various High Courts and in sec. 9 of the High Courts Act 1861 and sec 106 of the Government of India Act 1935 were referred to as showing that:. . several jurisdictions of the High Court and all their powers and authority are in relation to the administration of justice including powers to appoint clerks and other ministerial officers of the Court. SEC. 223 of the Government of India Act 1935 preserves the jurisdictions of the existing High Courts and the respective powers of the Judges thereof in relation to the administration of Justice in the Court. See. 224 of that Act declares that the High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction and this superintendence it is now settled extends both to administrative and judicial functions of the subordinate courts. When we come to our Constitution we find that Arts. 225 and 227 preserve and to some extent extend these powers in relation to administration of justice. Art. 235 vests in the High Court the control over District Courts and Courts subordinate thereto. In the STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHI A. I. R. 1966 S. C. 447 this Court has pointed out that the control under Art. 235 is control over the conduct and discipline of the Judge. That is a function which as we have already seen is undoubtedly con nected with administration of justice. In the STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHI A. I. R. 1966 S. C. 447 this Court has pointed out that the control under Art. 235 is control over the conduct and discipline of the Judge. That is a function which as we have already seen is undoubtedly con nected with administration of justice. The disciplinary control over the misdeamenours of the subordinate judiciary in their judicial administration is a function which the High Court must exercise in the interest of administration of justice. It is a function which is essential for the administration of justice in the wide connotation it has received and therefore when the High Court functions in a disciplinary capacity it only does so in furtherance of administration of justice. WE thus reach the conclusion that the courts of justice in a State from the highest to the lowest are by their constitution entrusted with functions directly connected with the administration of justice and it is the expectation and confidence of all those who have or likely to have business therein that the Courts perform all their functions on a high level of rectitude without fear or favour affection or ill-will. This extensive quotation brings out in bold relief how compelling is this context of Judges of superior Courts exercising their disciplinary administrative control over the lower Courts personnel as well as other functionaries and the ministerial staff so much so that any neglect in this essential function would bring the whole judicial administration of justice into contempt and disrepute. Such jurisdiction over the clerks and ministerial staff was always from the beginning vesting in the High Court and Articles 225 and 227 were held to have preserved that jurisdiction and to some extent extended the same as Article 235 was held to take this control over the conduct and discipline of the Judges as well. Therefore if the power of superintendence over all courts by way of administrative control in this compelling context is so wide as to take in both the Courts and other administrative functionaries or ministerial staff who are all various limbs to complete the whole organism called courts equally this control in Article 235 must extend both to the Judges as well as the whole courts when the same language is advisedly used at the time of the final draft by the opening words in Article 235. ( 13 ) THEREFORE all these statutory resources lead to an inevitable conclusion as to the legislative intention being clearly to use the term court compendiously in Article 235 to cover not only those judicial officers specifically included in the later part i. e. members of the judicial service but even other administrative functionaries or ministerial staff of the Court as well. ( 14 ) WHAT appeals to us on sound canons of construction or on principle is borne out even by the decisions as to the meaning to be given to the term court in Article 235. In Bagchis case when the question arose in the converse context when the District Judge had contended that the control being over the courts it could not be exercised over Judges the categorical answer was: the Court is used compendiously to denote not only the court proper but also the presiding Judge. The latter part of Article 235 talks of the man who holds the office. It should be borne in mind that in Begchis case the original Full Bench decision of the Calcutta High Court in A. I. R. 1961 Calcutta had already approved in that decision the earlier decision in MOHAMED GHOUSE V. STATE OF A. P. A. I. R. 1959 A P. 492 holding that the word court occurring in Articles 237 and 235 must be interpreted as including not only the person presiding over that court but also all the functionaries of that Court and any matters pertaining thereto. Therefore when the Supreme Court gave this interpretation of the later part of Article 235 on the basis that the presiding Judges were also included it must be treated as a settled interpretation of the term court as being used compendiously in the widest sense by not being confined only to the Presiding Judge but also as including other function aries and ministerial staff. This is the view taken even by the Full Bench of the Punjab and Haryana High Court in AMAR SINGH V. C. J. PUNJAB and HARYANA HIGH COURT A. I. R. 1976 PUNJAB and HARYANA 215 at page 220 that the control vested in the High Court squarely extends to the Presiding officers and also to functionaries and ministerial staff attached to the District Courts and the courts subordinate thereto. The Full Bench in a well considered judgment with which we are in complete agreement negatived the very contention in the context of such clerical staff by holding that Article 235 was not confined or limited only to the members of the subordinate judicial service of the State as any other view would lead to the fault of redundancy and surplusage and would defeat the whole purpose of enactment of Article 235. Both on principle and authority we must therefore answer the second question by holding that the control vested in the High Courts under Art 235 of the Constitution is exercisable not only over members of the judicial service of the State as defined under Art. 236 (b) but even the ministerial officers and servants on the establishment of the subordinate Courts are also ultimately subject to such control. ( 15 ) NOW turning to the first question the answer is obvious as it is categorically laid down in STATE OF ASSAM V. S. N. SEN A. I. R. 1972 S. C. 1028 at page 1030 as earlier pointed out that this wide ambit of power conferred under Article 235 in the opening part was held not to be cur tailed down even by the concluding portion of the said Article except to the extent therein specified and even if some rule framed under Article 309 impinged upon the power of control such rule was held to be ultra vires. Therefore every attempt will have to be made to read down such rules to make them intra vires as not impinging upon the wide Constitutional control under Article 235 by holding that such rules laying down procedure for dealing with the delinquent and his right of appeal could not lay down any authority other than the High Court. As per the settled legal position out of the three competent authorities in the field neither the State nor the Public Service Commission would have any jurisdiction so far as disciplinary matters or control matters falling under Article 235 are concerned where the jurisdiction of the High Court is exclusive. As per the settled legal position out of the three competent authorities in the field neither the State nor the Public Service Commission would have any jurisdiction so far as disciplinary matters or control matters falling under Article 235 are concerned where the jurisdiction of the High Court is exclusive. As per the settled legal position no such outside authority could have any voice even if the rules are silent as to the authority to whom the appeal would lie in such control matters or even if the rule provides some other outside authority for such appeal or review as in Rule 22 or makes the decision of the Government final under Rule 28. Such omission would have to be filled or the language of the rules suitably modified so that the rule is read down consistently with this Article 235 by vesting this power only in the High Court. Therefore the authority to whom the appeal lies over the District Judge would be both in view of the administrative or disciplinary control under Articles 225 227 and 235 as per the settled legal position only the High Court which alone can exercise this jurisdiction under Rule 23 to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate Courts in exercise of powers of review under that rule. Under Rule 23 this review power in disciplinary cases is to be exercised by the authority to which the appeal against the order on any of the penalties of Rule 6 lies. Under Rule 1 (c) all civil servants are governed by the Gujarat Civil Services (Discipline and Appeal) Rules 1971 The petitioners would be governed by these rules. Under Rules 2 (f) words and expression used but not defined in these rules shall have the meanings assigned to them in the Bombay Civil Services Rules 1959 or in the rules relating to the recruitment and classification of services for the time being in force. Rule 6 defines various penalties minor and major. Under Rules 2 (f) words and expression used but not defined in these rules shall have the meanings assigned to them in the Bombay Civil Services Rules 1959 or in the rules relating to the recruitment and classification of services for the time being in force. Rule 6 defines various penalties minor and major. Rule 7 deals with the disciplinary authority under Rule 7 (1) the Government may impose any of the minor penalties specified in items (1) and (2) of Rule 6 on any Government reserved; while under Rule 7 (2) without prejudice to the provisions of sub-rule (1) the Head of a Department may impose any of the minor penalties specified in items (1) and (2) of Rule 6 on any Government servant of State service Class 11 under his administrative control. Under Rule 7 (3) without prejudice to the provisions of sub-rules (1) and (2 ). Heads of Departments and Heads of offices may impose any of the penalties mentioned in Rule 6 upon any Government servant of subordinate services serving under them for whom they have to appoint. The District Judge being the authority with power to appoint the petitioners he could take the disciplinary action as a disciplinary authority. Rule 8 gives further authority to the Government or any other authority empowered by the disciplinary authority to institute a disciplinary proceeding on whom he is competent to impose any of the penalties specified in Rule 6. Under Rule 18 appealable orders are provided where appeal lies at the instance of the Government servant and in such appeals in the procedure which is prescribed in the subsequent rules Rule 21 provides in clause (d) that where the penalty imposed is excessive adequate or inadequate after consultation with the Commission if such consultation is necessary in the case the appellate authority can pass orders (i) setting aside reducing confirming or enhancing the penalty provided that (i) the appellate authority shall not so enhance the penalty as to inflict a penalty which neither such authority nor the authority which made the order appealed against is competent to impose in the case under appeal; (ii) and no order for enhancing the penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty. Rule 22 gives the Government a power to review notwithstanding anything contained in these rules. Rule 23 is the material provision in the present case of review of orders: 23 Review of orders in disciplinary cases. THE authority to which an appeal against an order imposing any of the penalties specified in Rule 6 lies may of its own motion or otherwise call for the record of any proceeding under these rules and review any order passed in such a case and may after consultation with the Commission where such consultation is necessary pass such orders as it deems fit as if the Government servant had preferred an appeal against such order. Provided that no action under this rule shall be taken after the expiry of a period of more than six months from the date of such order. Rule 28 provides for removal of doubts as under:-28 Removal of doubts Where a doubt arises as to who is the Head of any office or as to whether any authority is subordinate to or higher than any other authority or as to the interpretation of any of the provisions of these rules the matter shall be referred to the Government whose decision thereon shall be final. It is in the context of these rules and particularly Rule 23 thai we have to consider the question as to whether the High Court would be the authority to which the appeal against the order imposing penalty specified in Rule 6 would lie when that order is passed by the District Judge. As the rules are silent as to the authority for the purposes of Rule 23 the learned Single Judge in view of Rule 2 (f) tried to trace the entire historical background by reference to the Bombay Civil Services Rules 1959 and the recruitment rules known as the establishment rules under the Civil Court Manual. In fact under sec. 9 of the Bombay Civil Courts Act 1869 the District Judge shall have the general control over all the Civil Courts and their establishments within the district and the District Judge shall also refer to the High Court all such matters which appear to him to require that a rule of that Court should be made thereon. Under sec. 9 of the Bombay Civil Courts Act 1869 the District Judge shall have the general control over all the Civil Courts and their establishments within the district and the District Judge shall also refer to the High Court all such matters which appear to him to require that a rule of that Court should be made thereon. Under sec. 10 the District Judge shall obey all writs orders or processes issued to him by the High Court and shall make such returns or reports thereto under his signature Sec. 38 which is material provides as under : all ministerial officers of the Civil Courts in each district shall be appointed and may be fined suspended or dismissed by the District Judge subject to such rules as the High Court may from time to time prescribe. Provided that the Judge of every subordinate Court may subject to the like rules appoint the ministerial officers of such Court whose salaries do not exceed rupees ten per mensem and may by order fine suspend or dismiss any ministerial officer of such Court who is guilty of any misconduct or neglect in the performance of the duties of his office. Every such order shall be subject to appeal to the District Judge: and the rules for the time being applicable to appeals to the Court of Session from orders of the Criminal Courts subordinate thereto shall apply to all appeals under this section. Sec. 39 enabled the High Court to prescribe rules for the duties of the ministerial officers. Therefore the High Court of Bombay could frame rules relating to the ministerial staff under secs. 9 and 38 of the Bombay Civil Courts Act 1869 and these rules were included in the Civil Manual published in 1940. Under sec. 107 of the Government of India Act 1915 the High Court was given superintendence power over all courts for the time being subject to the appellate jurisdiction of the High Court and the High Court may call for returns and make and issue general rules. Therefore in the Civil Manual Volume I 1940 Edition in Chapter XIV under the heading Establishments the first rule in terms mentioned that sec. 38 having been repealed on coming into force of the 1935 Act from April 1 1937 the appointment of ministerial officers is now governed by sec. Therefore in the Civil Manual Volume I 1940 Edition in Chapter XIV under the heading Establishments the first rule in terms mentioned that sec. 38 having been repealed on coming into force of the 1935 Act from April 1 1937 the appointment of ministerial officers is now governed by sec. 242 of the Government of India Act 1935 which appeared to have been mentioned by mistake in place of sec. 224 for the former in clause (3) dealt with only appointment of staff attached to the High Court and for the appointment of the subordinate judicial service the provisions were made in secs. 253. to 256 and the administrative superintendence was under sec. 224 corresponding to old sec. 107 really. In fact after Badrakantas case it would be hardly necessary to go into this detailed history of these establishment rules because the District Court had control over that staff and had also the power of appointment under the repealed sec. 38 which had now come by way of administrative superintendence of the High Court in view of the Constitutional changes. Therefore even though the B. C. S. Rules 1959 or the Establishment Manual Rules whether in 1940 or 1960 edition did not give a clear clue to the authority to whom the appeals would lie in view of the fact that the High Court has administrative superintendence and now the Constitutional control over the District Courts and the subordinate courts it is obvious that the High Court is that authority when rules are silent or when the language of the rules has to be modified to make it consistent with administrative superintendence or the control jurisdiction of the High Court under the Constitution. Mr. Majmundar however vehemently argued that the 1971 rules could not apply to judiciary at all. This could not be accepted in view of the categorical language of Rule 1 (c) that the rules shall apply to all partons appointed to civil services and posts of the State. Merely because Government is mentioned or the Head of the Department in Rule 6 as the disciplinary authority and the High Court is not specifically mentioned these benevolent rules prescribing the conditions of service as to how the Government servant shall be dealt with and also his rights of appeal could not be construed so as to exclude the administrative and ministerial staff of the courts. It was really a contention of despair which could not be urged because the Constitution being the ground-norm it must always prevail and these rules must conform to the Constitutional Mandate rules like 22 28 notwithstanding. ( 16 ) MR. Majmundar next argued that under Rule 8 the Government is directed to institute a disciplinary proceeding. That is a complete misreading because that is an additional power possessed by the Government or other authority empowered by it by general or special order to direct the authority to institute disciplinary proceedings against a Government servant when the disciplinary authority is not exercising jurisdiction under Rule 7. Besides the Government having been so prescribed as the authority for disciplinary control could not come in the way of the High Court exercising its constitutional powers of administrative superintendence or control jurisdiction so long as the procedural rules are complied with. The term Government whenever used anywhere in these rules would have to be modified in the disciplinary control context so as to conform to the Constitutional mandate as only High Court would have jurisdiction and no other authority like the Public Service Commission or the Government would have any say in the matter of the disciplinary control over the Courts. Finally Mr. Majmundar argued that there is intrinsic evidence in Rule 23 because review power has to be exercised in consultation with the Commission and the order has to be passed as if the Government servant had preferred an appeal. If the Government servant had appealed no order can be passed against the Government servant. This argument is equally misconceived because in Government servants appeal even Rule 21 provides in clause (d) for enhancing the penalty as per the two limitations provided for in the proviso. The Public Service Commission is to come in where its consultation is necessary and that also as earlier pointed out would not come in when the controlling jurisdiction is of the High Court. The only question in such cases is whether it is the original control jurisdiction or appellate or review jurisdiction which would depend on the terms of the rules in question. Therefore even on the first question we cannot agree with Mr. The only question in such cases is whether it is the original control jurisdiction or appellate or review jurisdiction which would depend on the terms of the rules in question. Therefore even on the first question we cannot agree with Mr. Majmundar that Rule 23 could not be invoked by the High Court on its administrative side to exercise its jurisdiction to enhance the penalty imposed by the District Judge upon members of the ministerial staff. ( 17 ) THEREFORE this Reference must be disposed of by answering the two questions posed by the learned Single Judge as under : (1) That the High Court on its administrative side had jurisdiction to enhance the penalty imposed by the District Judge upon a member of the ministerial staff of the subordinate court in exercise of the powers of review conferred by Rule 23 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 (2) That the control vested in the High Court under Art. 235 of the Constitution is exercisable not only over the members of the judicial service of the State as defined in Art. 236 (b) but the ministerial officers and servants on the establishment of the subordinate courts are also ultimately subject to such control. The Reference is accordingly disposed of with no order as to costs in the circumstances of the case and the matter shall now go before the learned Single Judge for disposal in the Sight of the aforesaid answers. ( 18 ) MR. Majmundar asked for a certificate under Articles 132 and 133 Without going into the question whether this is a final judgment in this particular matter we have followed only the settled interpretation of Articles 235 and 236 as per the various decisions relied on by us and therefore we do not find any substantial question of law of any general importance involved in this matter which could be certified as fit for appeal to the Supreme Court. The request is therefore summarily rejected. Reference answered accordingly: Leave to appeal refused. .