JUDGMENT : B.L. Hansaria, C.J. - The 'important point to decide in this writ petitton is whether a High Court can compulsorily retire a Chief Judicial Magistrate. This question has come to the fore because the petitioner has challenged the competence of the Orissa High Court in having prematurely retired him while serving as Chief Judicial Magistrate, Mayurbhanj on his attaining the age of 50 years in exercise of powers conferred by the first proviso to Sub-rule (a) of Rule 71 of the Orissa Service Code and Art. 235 of the Constitution. The other ground of attacking the impugned order dated 5-2-1987 as at Annexure-7 is the lack of materials to retire the petitioner. 2. There is no dispute before us that the power of premature retirement as conferred by the first proviso to Rule 71(a) of the Orissa Service Code can be exercised by the appointing authority. This stand has been taken also because of the latest decision of the Apex Court in Registrar, High Court of Madras Vs. R. Rajiah The decision in Tej Pal Singh Vs. State of U.P. and Another, would also support this stand. 3. As reference has been made in the impugned order to Art. 235 of the Constitution, let it be seen as to what this article has to say on the subject at hand. A Constitution Bench had occasion to examine in detail the width of this article which has vested control of the subordinate judiciary in the High Court, in Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others. In explaining the scope of this article, the Bench gave illustrations in para. 38 of various matters which would be com- prehended within this article. It recognised in sub-para (g) that premature or compulsory retirement of Judges of District Courts and of Subordinate Courts would be one of the matters which would fall within the control of the High Court. In taking this view reference was made to State of UP v. Batuk Deo Pati Tripathy 1978 LIC 839 . In para 40, however the Bench accepted the position that the formal order of retirement is to be passed by the Governor though acting on the recommendation of the High Court, which was stated to be binding on the State. In taking this view reference was made to State of UP v. Batuk Deo Pati Tripathy 1978 LIC 839 . In para 40, however the Bench accepted the position that the formal order of retirement is to be passed by the Governor though acting on the recommendation of the High Court, which was stated to be binding on the State. In other words, the view taken was that, while in form, the High Court's decision to compulsorily retire a Subordinate Judicial Officer in the exercise of its administrative or disciplinary jurisdiction under Article 235 is advisory, in substance and effect, it is well-nigh peremptory. In taking this view, reference was made to what was stated in State of Haryana Vs. Inder Prakash Anand H.C.S. and Others, . 4. It would be opposite to note what has happened in Batuk Deo Pati Tripathy's case (supra). There, a decision was taken to retire a judicial officer by the High Court and the Governor accepted the recommendation and retired the officer compulsorily. It was thus a case where the ultimate order of retirement had been passed by the Governor and not the High Court. In Inder Prakash Anand's case (supra) also, the ultimate order of compulsory retirement had been passed by the State Government though the same was against the view taken by the High Court. In this connection it was stated in para 12 that if the State Government is to have the power of deciding whether a judicial officer should be retained in service after the age of 55 years up to the age of 58 years, that will seriously affect the independence of the judiciary and take away the control vested in the High Court, It was further observed : "It is unsound to contend that the Governor and not the High Court has the power to retire a Judicial Officer compulsorily u/s 14 of the Punjab General Clauses Act. The suggestion that the High Court recommends and the State Govevernment is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court" 5. The above may indicate that as per this decision it is the High Court which can pass the order of compulsory retirement relating to a judicial officer. The suggestion that the High Court recommends and the State Govevernment is to implement the recommendation in the matter of compulsory retirement is to destroy the control of the High Court" 5. The above may indicate that as per this decision it is the High Court which can pass the order of compulsory retirement relating to a judicial officer. But then, what is stated in para ''8 makes it clear that it is the Governor who has ultimately to pass the order of compulsory retirement though the decision of the High Court in the matter would bind the State. This would be clear from the following observations made in para 18 : "The control vested in the High Court is that if the High Court is of opinion that a particular Judicial Officer is not fit to be retained in service the High Court will communicate that to the Governor because the Governor is the authority to dismiss, remove, reduce in rank or terminate the appointment. In such cases it is the contemplation in the Constitution that the Governor as the head of the State will act in harmony with the recommendation of the High Court. If the recommendation of the High Court is not held to be binding on the State, consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in matters within its jurisdiction will bind the State......" May we say that the decision in Inder Prakash Anand was not understood by the Constitution Bench in Dikshitulu (supra) as having laid down that even the formal order of retirement can be passed by the High Court. 6. Shri Nayak, however, refers to the observation made in para 21 of Rajiah's case (supra) wherein it has been stated that the High Court in its administrative jurisdiction to compulsorily retire a member of Judicial Service in accordance with any rule framed in that regard May we say that no such rule has been brought to our notice. The impugned order has been passed in exercise of powers conferred by the first proviso to Rule 71 (a) of the Orissa Service Code which has vested this power in the appointing authority. The impugned order has been passed in exercise of powers conferred by the first proviso to Rule 71 (a) of the Orissa Service Code which has vested this power in the appointing authority. No other rule has been brought to our notice conferring the power of compulsory retirement on. the High Court as distinguished from the appointing authority. 7. Shri Nayak has then urged that the appointing authority as regards the Chief Judicial Magistrate is the High Court. To satisfy us in this regard, reference is first made to Rule 10 of the Orissa Superior judicial Service Rules, 1963 which has provided that recruitment to the Junior Branch of the Service shall be made by the High Court by promotion from amongst the Subordinate judges. Junior Branch of the Service consists of Chief Judicial Magistrates, as mentioned in Rule 4 (3) of these rules. Our attention is then invited to Notification No. 892-A dated 4th December, 1981, as published at page 65 of part-l of the Orissa Gazette dated January 8,1982, by which the petitioner himself, described as an officiating member of the Orissa Superior Judicial Service (Junior Branch), was appointed to be the Chief Judicial Magistrate in the district of Keonjhar. In this connection we have also noted Section 12(1) of the Code of Criminal Procedure which has stated that in every district the High Court shall appoint a Judicial Magistrate, First Class to be the Chief Judicial Magistrate. 8. In countering these contentions of Shri Nayak, Shri Ray appearing for the petitioner has urged that the power of recruitment which has been given to the High Court relating to Chief Judicial Magistrates, about which Rule 10 of the aforesaid rules speaks, has to be taken as different from the power of appointment. In this connection, we are referred to Basant Lal Malhotra Vs. State of Punjab and Others, in which it was held that there is a clear distinction between the words 'recruitment' and 'appointment'. We have felt inclined to accept this submission of Shri Ray because it is well known that a recruiting authority can be different from an appointing authority. As is known, the Public Service. Commission is the recruiting authority for various jobs of the Government, but this body cannot be regarded as appointing authority of the concerned persons. We have felt inclined to accept this submission of Shri Ray because it is well known that a recruiting authority can be different from an appointing authority. As is known, the Public Service. Commission is the recruiting authority for various jobs of the Government, but this body cannot be regarded as appointing authority of the concerned persons. This view of ours receives adequate support from what is provided in cognate provisions finding place In the Orissa judicial Service Rules, 1964. A reference to Rule 5(2) of these rules shows that all recruitments to the Orissa Judicial Service Class II to be made by a competitive examination to be held in accordance with the provisions contained in these rules. These competitive examinations are conducted by the Orissa Public Service Commission, which can at best be said to be the recruiting authority. There is no dispute that this body canot be regarded as appoint- ing authority of the members of Orissa judicial Service Class II. 9. There is a stronger constitutional objection to accept the sub- mission of Shri Nayak for regarding the High Court as the appointing authority of the Chief Judicial Magistrate on the basis of what has been provided in Rule 10 of the Orissa Superior Judicial Service Rules, 1963, inasmuch as it has been laid down in Art. 234 of the Constitution that appointment 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 the rules made by him in that behalf. The aforesaid rules are one set of such rules. So, no provision in the rules could have altered the constitutional position that the Governor of the State is the appointing authority of persons other than District judges also. Conferment of this power on the High Court by virtue of what is stated in Rule 10 of the Orissa Superior Judicial Service Rules would have dashed with the constitutional mandate. We would, therefore, not accept because of what is stated in Rule 10 that the High Court is the appointing authority of a Chief Judicial Magistrate. 10. Conferment of this power on the High Court by virtue of what is stated in Rule 10 of the Orissa Superior Judicial Service Rules would have dashed with the constitutional mandate. We would, therefore, not accept because of what is stated in Rule 10 that the High Court is the appointing authority of a Chief Judicial Magistrate. 10. As to the provision made in Section 12(1) of the Code of Criminal Procedure that the High Court shall appoint a Judicial Magistrate of First Class to be the Chief Judicial Magistrte, Shri Ray stated that this is not clinching to hold that the High Court should be regarded to be the appointing auth- ority of the Chief Judicial Magistrates. In view of what is stated in Art. 234 of the Constitution, to which reference has already been made, we would not read Section 12(1) of the Code as having made the High Courts as the- appointing authorities of Chief Judicial Magistrates. According to us, what this provision really contemplates is conferring of power of Chief judicial Magistrate on a Judicial Magistrate of First Class. We do not think if provisions in the Code are meant to decide the question as to who is the appointing authority of various categories of Magistrates dealt by it. The Code is conspiciously silent about the procedure and modalities of such appointments. In this connection we would like to refer to Sec, 9(2) of the Code, to which our attention is drawn by Shri Ray, which has stated that every Court of Session shall be presided over by a Judge to be appointed by the High Court. From this phraseology we would not regard the High Courts as the appointing authorities of Sessions Judges because that would clash with what finds place in Art. 233 of the Constitution, according to which the Governor is the appointing authority of District Judges-the expression 'District Judge' taking within its fold 'Sessions Judge' because of what is stated in Art. 236(a) of the Constitution. We, therefore, think that the language used in Secs. 9(2) and 12(1) of the Code needs suitable amendment to bring the same in harmony with the constitutional provisions noted above. Some change is also called for in the language of Section 11(2) of the Code. 11. We, therefore, think that the language used in Secs. 9(2) and 12(1) of the Code needs suitable amendment to bring the same in harmony with the constitutional provisions noted above. Some change is also called for in the language of Section 11(2) of the Code. 11. Shri Nayak, however, pursues his argument and states that when a person is appointed to a post on promotion, the same is regarded as fresh appointment, as mentioned in para 17 of Baradakanta Mishra Vs. High Court of Orissa and Another. It is submitted in this connection that as the High Court has admittedly, the power of promoting an officer to the rank of Chief Judicial Magistrate, we should hold that the High Court is the appointing authority of Chief Judicial Magistrates. We would demur to accept this submission of Shri Nayak merely because of the aforesaid observation in Baradakanta Mishra's case inasmuch as. very many complications and. questions of far reaching .. consequences would arise if on promotion a person is to be treated for all purposes as a fresh appointee. If it were to be so, such a person would stand to lose various monetary and service benefits which would have accrued to him during the service, career prior to promotion. We would, 'therefore, not regard the High Court as the appointing authority of Chief Judicial Magistrates just because it happens to be the promoting authority of these officers. In fact, Chief Judicial Magistrates promoted by the High, Court are appointed to the judiciaI service long before their promotions. 12. In view of all that is stated above, we would hold that the High Court is not the appointing authority of Chief Judicial Magistrates to clothe it with the power of compulsory retirement conferred by the first proviso to Rule 71 (a) of the Orrssa. Service Code. In this connection may we also point out that it would be really incongruous where, though the High Court cannot retire a Munsif, or for that matter a District Judge, as fairly conceded by Shri Nayak, it would be in a position to retire a Chief Judicial Magistrate. We do not think if the concerned provisions permit us to take this view. 13. We do not think if the concerned provisions permit us to take this view. 13. Before closing this aspect of the discussion, we may say that we are conscious of the legal position that passing of an order of compulsory retirement by the Governor is a formal matter as stated in Rajiah's case (supra) because, according to this decision, the Governor in such cases merely acts on the recommendation of the High Court by signing an order in that regard; but the procedure of the Governor formally passing an order of retirement has to be complied with. So long as there is no formal order of the Governor, the compulsory retirement as directed by the High Court cannot take effect, as opined in Rajiah's case itself. 14. Having come to the aforesaid conclusion, it is not necessary to deal with the second submission of Shri Ray that there was no materials in the present case to order lor the compulsory retirement of the petitioner Though in this connection Shri Nayak has placed before us the materials on the basis of which . the .Review Committee, which sat on 30-1-1987, recommended to the Full Court about the premature retirement of the, petitioner; following which the Full Court took the decision in question on 4-2-1987, we are not expressing our opinion on the second grievance of the petitioner as the same is not necessary in view of the fact that, according to us, the impugned order suffered from lack of competence on the part of the High Court. We would, however, like to point out that we have noted with great displeasure the fact that no counter affidavit even in such an important case has-been filed by the High Court. In this connection, we would like to refer to the order passed, by this Court on 29-8-1988 by which three weeks time was allowed to the. Registrar as prayed for to file counter affidavit. As to why no counter at all was filed thereafter is not known. We would like the Registrar to make an enquiry into this aspect of the matter and apprise the learned Chief Justice about the same. 15. In the result, the petition is allowed by quashing the impugned order because of lack of competence on the part of the High Court to have passed the same. A.K. Padhi, J. 16. I agree. Final Result : Allowed