- (1.) This order shall dispose of an application filed by the petitioner that the members of this Bench should recuse from hearing the present writ petition for the reason that the Members of this Bench were also the Members of the Full Court, which recommended action against the petitioner which has led to an order passed by the State Government accepting the recommendations of the Full Court, impugned in the petition. It is, therefore, contended that the matter should be heard by a Bench comprising Judges, who were not Members of the Full Court that took the decision recommending termination of service during the probation period of the petitioner. Along with the present writ petition, CWP No. 23041 of 2011; CWP No. 11170 of 2012; CWP No. 15682 of 2012 & CWP No. 20000 of 2012 were also listed for hearing for the reason that any decision on such application would impact the question as to whether this Bench ought to hear the writ petitions challenging the action of the Full Court of which Members of this Bench were also the Members or not?
(2.) To address the issue which appears to us of wide significance on the conduct of cases involving judicial officers over which this Court exercises control; we shall firstly, set out and examine the constitutional provisions in respect of the subordinate judiciary. In terms of Article 235 of the Constitution of India, the control over district courts and courts subordinate thereto vest in the High Court. The 'High Court' for the purposes of Article 235 means, all Judges of the Court representing the said High Court. Article 235 of the Constitution of India reads as under: 235. Control over subordinate courts.- 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 authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
(3.) In The State of West Bengal and another v. Nripendra Nath Bagchi, 1966 AIR(SC) 447, the scope of Article 235 of the Constitution of India came up for consideration before the Constitution Bench. It was held that the High Court is the sole custodian of the control over the judiciary, when it observed to the following effect: 13......The word 'control', as we have seen, was used for the first time in the Constitution and it is accompanied by the word 'vest' which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day to day working of the court, but contemplates disciplinary jurisdiction over the presiding Judge. Article 227 gives to the High Court superintendence over these courts and enables the High Court to call for returns etc. The word 'control' in Article 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges. This conclusion is further strengthened by two other indications pointing clearly in the same direction. The first is that the order of the High Court is made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicates 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 points to disciplinary and not mere administrative jurisdiction.;