GH QADIR SHEIKH Vs. HIGH COURT OF J&K
HIGH COURT OF JAMMU AND KASHMIR
Gh Qadir Sheikh
High Court Of JAndK
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(1.) THE impugned judgment has settled questions of law raised before the writ Court but both the parties to the writ petition are
aggrieved of the judgment, therefore, two LPAs against one judgment.
(2.) THE questions raised and the answers given by the Learned Single Judge are summarised as under:
a) The District Judge is the appointing authority for the post of a Ministerial Officer of all the Courts controlled by the District Judge other than courts of Small Causes. b) The High Court being the controlling authority under sub section (4) of Section 30 of Civil Courts Act 1977 is within its powers to issue circulars, frame policies and guidelines which the District Judge is bound to follow while making appointments in terms of Section 30 of the Civil Courts Act and any appointment made in contravention of the Circulars/Policies laid down by the High Court are liable to be terminated. c) While exercising power of termination under Sub Section (4) of Section 30 the safeguards available to an employee under Section 126 of the Jammu and Kashmir Constitution have to be adhered to, failure thereto renders the termination liable to be quashed.
(3.) IT is relevant to notice that during the pendency of these LPAs a Division Bench of this Court in Secretary to Honble Chief Justice
Versus Chanchal Singh has held that the High Court under Sub Section (4)
of Section 30 of the Civil Courts Act 1977 (for short Act) can only
monitor the exercise of power of appointment whereas the power of
appointment is with the District Judge. Since we are not averse to this
view, we were inclined to take upon ourselves to elaborate the extent of
monitoring power but this view stands negated by the Division Bench by
its further observations made in the judgment which are reproduced
".... the powers under Sub Section (4) can be exercised only to examine the legality or otherwise of the order and goes no further...." (See para 9). ".... Thus the control envisaged by sub section (4) must be traceable to the rules prescribed under sub section (3). But as the rules have not been prescribed and the letter dated 7 -3 -1990 is not traceable to the Rules framed under sub -section (4) it is liable to be quashed on this ground also..." (See para 11).
What is deducible from the aforementioned observations of the Division Bench is that the power under Sub Section (4) of Section 30 of
the Act is available to the Chief Justice only to implement the Rules
framed under Sub Section (3) of Section 30, and in absence of the Rules
the Chief Justice has no power under Rule (4) to issue the circulars.;
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