Decided on November 09,1999

Gh Qadir Sheikh Appellant
High Court Of JAndK Respondents


KAKRU.J. - (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 hereunder: ".... 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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