(1.) THIS Letters Patent Appeal is preferred against the judgment of a learned Single Judge of this court. The admitted facts of the case are
that Chanchal Singh, the private respondent hereinafter, was appointed
process -server by the District Judge, Jammu on the basis of merit -list,
prepared by him after inviting applications. The appellant, however,
found that his appointment was in violation of Circular No: 10 dated
31.08.1989 and, therefore, directed his removal. This order of the Chief Justice and the consequential order of discharge was challenged by the
private respondent on the ground that neither his appointment was in
contravention of the aforesaid Circular nor his removal was in accordance
with law. The writ petition was allowed by Sethi J, as he then was (now
his lordships of the Supreme Court) on March 27, 1992 and the latter
dated March 07,1990 issued by the appellant was quashed with the
direction that the private respondent shall be deemed to be in service
and entitled to all the consequential benefits.
(2.) MR . Dutta, appearing for the appellant argued that the writ court ignored the rules relating to the appointment of the ministerial
officers of the subordinate courts framed under Section 30 of the Civil
Courts Act in exercise of which the Chief Justice had directed removal of
the private respondent. He also contended that the termination of the
private respondent without giving him an opportunity of being heard does
not offend principles of natural justice, as it was temporary appointment.
Mr. Lehar, appearing for the private respondent, however, argued
that the appointment of the private respondent being neither subject to
confirmation by the Chief Justice nor in contravention of any direction
of the High Court, his removal by order of the Chief Justice was
arbitrary and illegal.
(3.) THE first question to be determined in this case is who is the appointing authority of the ministerial officers of the subordinate
courts and whether the private respondent has been duly appointed by the
authority competent to make such appointment. Section 30 of the Act,
which deals with the appointment and removal of the ministerial officers
of the subordinate courts, reads as under: -
30.(1) The ministerial officers of the District courts shall be appointed, and may be suspended or removed by the Judges of those courts
(2) The ministerial officers of all courts controlled by a
District court, other than courts of small Causes, shall be appointed,
and may be suspended or removed by the District court.
(3) Every appointment under this section shall be subject to such
rules as the High Court may prescribe in this behalf, and in dealing with
any matter under this section, a Judge of a court of small causes shall
act subject to the control of the District court.
(4) Any order passed by a District Judge under this section shall
be subject to the control of the High Court.
Admittedly, the High Court has not prescribed rules under
sub -section(3) of section 30 of the Act in the absence of which District
court alone was to determine the qualifications and mode of recruitment
of such officer. The District Judge Jammu, it is admitted, had invited
applications and appointed the private respondent only after he was found
more suitable as compared to the other candidates. The services of the
petitioner were directed to be terminated by order of the Chief Justice
only on the ground that it was in violation of Circular No. 10 dated
31.08.1989 issued by the High Court. The writ court without going into the question, whether the order of appointment in fact violated the
aforementioned Circular, quashed the order on the grounds that the
direction was (1) not in confirmity with sub -section (4) of Section 30 of
the Act; and (2) that it was in violation of the principles of natural
Rejecting the argument that the appellant had acted under
sub -section (4) of Section 30, the writ court held as follows: -
The Chief Justice or any other Judge is, therefore, not a High
Court for the purposes of sub -section (4) of section 30 of the Act unless
the court, including all the Judges, have by resolution or under the
rules, conferred power upon the Chief Justice for the purposes of said
sub -section. The respondents have not placed anything on record to show
that the powers of the court were conferred upon the Chief Justice for
the purposes of sub -section (4) of section 30 of the Civil Courts Act.
However, these observations are based upon the specific plea raised by the appellant that the High Court has not framed rules under
section 30 of the Act, which is contrary to the actual fact because the
rules were framed and notified as early as on 28.03.1968. If that be so
as it really is, the question arises who is the authority competent to
appoint and remove a ministerial officer of the subordinate court.
Sub -rule (v) of Rule 2 defines a "Ministerial officer" as under: -
â„¢Ministerial officerâ„¢ means and includes, every member of the
non -gazetted staff of District Court and the courts controlled by it or
by the High Court.
Section 30(2) of the Act provides that every Ministerial officer
of all the courts in the District shall be appointed and removed by the
District court and none else. The power of appointment under sub -rule (2)
is, however, subject to such rules as the High Court may prescribe.
Admittedly, the Rules framed under Section 30 do not prescribe the mode
of recruitment/appointment by the District courts. Such rules, if framed,
could inter -alia prescribe qualifications required for the particular
posts and the most of recruitment. So the District Judge, in the matter
of appointment, had to act in fair and just manner. The just and fair
manner is one which is in accord with Articles 14 and 16 of the
Constitution of India. In Jammu and Kashmir Public Service Commission vs.
Narinder Mohan, AIR 1994 SC 1808, it has been laid down that: -
...When the Rules prescribe direct recruitment, every eligible
candidate is entitled to be considered and recruitment by open
advertisement which is one of the well accepted modes of recruitment.
Inviting applications for recruitment to fill in notified vacancies is
consistent with the right to apply for by qualified and eligible persons
and consideration of their claim to an office or post under the state is
a guaranteed right given under Articles 14 and 16 of the Constitution.
The direction, therefore, issued by the Division Bench is in negation of
Articles 14 and 16 and in violation to the statutory rules......;