Chattisgarh High Court
High Court Of Chhattisgarh vs Ganesh Ram Berman on 29 July, 2022
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Appeal No. 281 of 2022
High Court of Chhattisgarh, Through : Registrar General, High Court
Bodri, Bilaspur, District Bilaspur (C.G.)
---- Appellant
Versus
1. Ganesh Ram Berman, Son of Late Rajuram Berman (ST), aged
about 43 years, Ex-Member of C.G. Higher Judicial Services, R/o.
Ward No. 19, Near Premetric Girls Hostel, Indira Nagar, Janjgir,
District Janjgir-Champa (C.G.)
2. State of Chhattisgarh, Through Principal Secretary, Law, Mahanadi
Bhawan, Atal Nagar, Nawa Raipur, District Raipur (C.G.)
---- Respondents
(Cause Title taken from Case Information System)
For Petitioner : Prafull N. Bharat, Senior Advocate
assisted by Mr. Shashank Thakur, Advocate
For Respondent No. 1 : Mr. B.N. Mishra and Mr. T.K. Jha, Advocates
For Respondent No. 2 : Mr. Jitendra Pali, Deputy Advocate General
Date of Hearing : 23.06.2022
Date of Judgment : 29.07.2022
_________________________________________________________
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Parth Prateem Sahu, Judge
C A V Judgment
Per Arup Kumar Goswami, Chief Justice
Heard Mr. Prafull N. Bharat, learned senior counsel for the
appellant, assisted by Mr. Shashank Thakur. Also heard Mr. B.N.
Mishra, learned counsel, appearing for respondent No.1/writ petitioner
along with Mr. T.K. Jha and Mr. Jitendra Pali, learned Deputy Advocate
General, appearing for respondent No.2.
2. This writ appeal is presented against an order dated
13.05.2022 passed by the learned Single Judge in WP(S) No.825 of
2017, whereby the writ petition filed by the petitioner / respondent No.1
in the appeal, was allowed by setting aside the order of termination
dated 06.02.2017 passed by the Principal Secretary, Government of
Chhattisgarh, Law and Legislative Affairs Department, observing that
the same would not bar the appellant No.1 herein i.e., the High Court of
Chhattisgarh to proceed in accordance with law. Direction was issued
to reinstate the petitioner along with all consequential service benefits
except back-wages. Liberty was granted to the petitioner to make a
representation to the competent authority within 30 days claiming back-
wages and it was observed that on such representation being made,
the competent authority would consider the claim of back-wages within
next 60 days in accordance with law keeping in view the relevant rules
and regulations.
3. The writ petitioner was directly appointed as District Judge
(Entry Level) by an order dated 30.10.2014 in terms of Rule 5 (1)(c) of
the Chhattisgarh Higher Judicial Service (Recruitment and Conditions
of Service) Rules, 2006 (hereinafter referred to as 'the Rules of 2006').
While the petitioner was in probation period, a letter dated 31.08.2016
was issued by the District & Sessions Judge, Raipur, enclosing thereto
a copy of anonymous complaint making certain allegations against
three judicial officers including the petitioner and the report of the
Registrar (Vigilance) on the allegations made against the petitioner,
requiring the petitioner to submit his explanation. The petitioner
submitted his explanation on 24.09.2016. Thereafter, the petitioner
was served with the order of termination dated 06.02.2017 based on
the recommendation of the High Court in terms of Rule 9(4) of the
Rules of 2006.
4. The inspection report of the Registrar (Vigilance) goes to
show that on the basis of a direction given by the Portfolio Judge
calling for disposal of criminal cases of all the three judicial officers,
records of the disposal of cases from the month of August, 2015 to
January, 2016 were called. The petitioner had disposed of 12 Sessions
Cases, 19 Criminal Appeals, 159 Bail Applications and 21 Criminal
Revisions and orders were examined by the Registrar (Vigilance). On
perusal, Registrar (Vigilance) opined that there was no apparent
irregularity in disposal of sessions cases, criminal cases and criminal
revisions. In respect of disposal of Bail Applications, it was noted that
there were some irregularities in disposing of the applications, it was
observed as follows :
"1. Bail application No.1582/15 Rahul Dev Mahajan
Vs State,
2. Bail application No.2375/15 Rajendra Prasad
Pandey Vs State,
3. Bail application No. 110/16 Rajendra Prasad
Pandey Vs State
4. Bail application No.114/16 Sarvan Singh @ Jogi
Vs State
Regarding Bail application no.1582/15
Rahul Dev Mahajan Vs State it is submitted that the
first and second bail applications of the accused
Rahul Dev Mahajan were rejected by Shri Ganesh
Ram Burman, IV Additional District and Sessions
Judge, Raipur on 22/06/15 and 04/08/15
respectively and thereafter the third bail application
no.1582/15 was accepted on 21/08/15 and the
accused was released on bail.
Similarly the first and second bail
applications of the accused Sarvan Singh @ Joga
were rejected by Shri Ganesh Ram Burman on
26/08/15 and 26/09/15 respectively and thereafter
the third bail application no. 114/16 Sarvan Singh @
Jogi Vs State was accepted by the said Judicial
Officer on 18/01/16 and the accused was released
on bail.
It is mentionable that in crime no. 66/15 the
first bail application of the accused Rajendra Prasad
Pandey was rejected by A.C.J.M. on 18/09/15.
Thereafter bail application no.2375/15 Rajendra
Prasad Pandey Vs State was rejected by Shri
Ganesh Ram Burman on 11/12/15. Thereafter the
bail application no.110/16 Rajendra Prasad Pandey
Vs State was accepted by Shri Burman on 18/01/16
and the accused was released on bail.
..............."
5. Plea was taken that the order of termination was stigmatic
and punitive in character and that the recommendation made by the
Standing Committee for termination of the services of the petitioner
under Rule 9(4) of the Rules of 2006 was without jurisdiction and that it
was only the Full Court, which could have recommended termination of
the services of the direct recruit judicial officers like the petitioner under
Rule 9(4) of the Rules of 2006.
6. In the return filed by the High Court on 15.01.2018, it was
pleaded that the order of termination of the petitioner is not stigmatic in
nature and does not cast any stigma upon him. However, in the said
affidavit, the plea taken by the petitioner that the recommendation of
termination was made by the Standing Committee and not by the High
Court was not adverted to.
7. The petitioner filed a rejoinder on 15.02.2018 to the return
filed by the High Court, amongst others, stating that the allegations
made in the complaint are unfounded allegations and during his two
years of service on probation, no unsatisfactory or adverse remark was
communicated to him. An additional rejoinder was filed by the
petitioner on 12.07.2018 based on information received on the basis of
applications made under the Right to Information Act, 2005 reiterating
that the recommendation for termination was made by the Standing
Committee and not by the Full Court. An additional return was filed by
the High Court on 02.05.2019. In paragraph 5 thereof, it is stated that
Rule 4-O of Chapter 1-A of the Chhattisgarh High Court Rules, 2007
(for short, 'the Rules of 2007') provides that the final decision on the
recommendation made by the Standing Committee would be taken by
the Full Court and therefore, it is not necessary that the
recommendations have to be made by the Full Court alone. It is further
stated as follows :
"It is respectfully submitted that the standing
committee has only made recommendation in
contemplation of Chapter 1-A of the Rules of 2007,
the final decision was taken by the full court and not
by the standing committee".
8. In paragraph 6 of the impugned judgment of the learned
Single Judge, it is stated as follows :
"6. On 27-1-2022, the petitioner filed documents
along with copy of the extract of the Minutes of the
Meeting of the Standing Committee dated 24-1-2017
obtained under the Right to Information Act to
demonstrate that his termination was recommended
by the Standing Committee and on the same day,
the matter came up for hearing before this Court and
time was sought and granted to counsel for
respondent No.1 to file additional return, and
ultimately, additional return has been filed on behalf
of respondent no.1 on 18-2-2022 stating that the
petitioner's matter was placed for consideration
before the Standing Committee and the Standing
Committee taking into account the fact that the
petitioner was on probation, recommended for
termination of his services and pursuant to the
recommendation of the Standing Committee, the
Government of Chhattisgarh, Law and Legislative
Affairs Department has passed order dated 6-2-2017
terminating the services of the petitioner. No further
pleadings have been filed by the parties."
9. The Minutes of the meeting of the Standing Committee dated
24.01.2017 in respect of item 5(c) pertaining to the petitioner reads as
follows :
"(c) The Standing Committee considered the overall
performance and entire service record of Shri
Ganesh Ram Burman. On perusal of the record, it is
found that he is not fit for confirmation in service.
Therefore, it is resolved to recommend termination of
his services under Sub-rule (4) of Rule 9 of the
Chhattisgarh Higher Judicial Service (Recruitment &
Conditions of Service) Rules, 2006."
10. It is not disputed before us by the appellants that the
recommendation was made by the Standing Committee. In fact, in
paragraph 4 of the appeal memo, it is categorically stated that the
Standing Committee had resolved to make recommendation for
termination of the services of the petitioner.
11. Rule 9(4) of the Rules of 2006 reads as follows :
"9. Probation.___
(4) The High Court may, at any time, before the
completion of the probation or officiation, as the case
may be, recommend termination of the service of a
direct recruit or recommend reversion of a promotee
member of the service to his substantive post from
which he was promoted."
12. Having regard to the materials on record, the learned Single
Judge had framed the following two questions for consideration :-
"1. Whether the Standing Committee
constituted by notification dated 4-7-2015 would have
competence and jurisdiction to recommend the
termination of the petitioner's services (probationer) to
the State Government in terms of sub-rule (4) of Rule
9 of the HJS Rules read with Article 235 of the
Constitution of India ?
2. Whether the termination of the petitioner's
services from the post of District Judge was punitive /
stigmatic warranting holding of full-fledged enquiry
against him into the allegations of misconduct ?"
13. The learned Single had considered the power of the Standing
Committee as laid down in Rule 4-C with particular reference to Rule
4-C (ix), 4-C (xii) and also the matters where decisions are required to
be taken by the Judges at the meeting of the Full Court as laid down in
Rule 4-O(i)(b) and on consideration of the same made the following
observation at paragraph 30 :
"30. A focused glance of Rule 4-C(ix) of the Rules
of 2007 would show that the High Court has conferred
to the Standing Committee only the power to pass
orders of suspension, initiation of departmental
proceedings against members of the High Judicial
Service and Subordinate Judicial Service, and
consequential orders in the said proceedings other
than that of dismissal from service. However, the
power to make recommendation to the State
Government for compulsory retirement of any Judicial
Officer of any rank has also been conferred to the
Standing Committee, but no power either expressly or
impliedly to make recommendation for dismissal of a
Judicial Officer / District Judge has been conferred in
favour of the Standing Committee by the High Court.
Even otherwise, Rule 4-O(i)(b) of the Rules of 2007
clearly states and makes the power of the Standing
Committee more explicit that all recommendations for
the dismissal from office of Judicial Officer shall be
made at a meeting of the Full Court of all Judges.
This makes it vividly clear that the Standing
Committee had no power and jurisdiction to make
recommendation to the State Government for
dismissal of the petitioner from the office of the District
Judge and it was only the power and jurisdiction of the
Full Court to make recommendation to terminate the
services of the petitioner / probationer in terms of
Article 235 read with Rule 9(4) of the HJS Rules.
14. While deciding question No.1, the learned Single Judge had
observed at paragraphs 32 and 33 as follows :
"32. A careful perusal of the additional return
filed by the High Court on 18-2-2022 would show
that it is the Standing Committee which has
recommended the case of the petitioner for
termination to the State Government and on that
basis the State Government passed order dated
6-2-2017 terminating the services of the petitioner.
33. From the aforesaid factual position on
record, it is quite vivid that the competent authority to
make recommendation for termination of the
petitioner's services on the ground that his services
were not satisfactory, was the Full Court of the High
Court in view of Article 235 of the Constitution of
India and in view of the judgments of the Supreme
Court noticed herein-above, however, in the present
case admittedly, the Full Court had not made any
recommendation for termination of the petitioner's
services and it is the Standing Committee that has
made such recommendation for dismissal of his
services which the Standing Committee was neither
empowered nor authorised in terms of notification
dated 4-7-2015 to make recommendation to
terminate the services of the petitioner. Since the
power to make recommendation to the State
Government to terminate the services of the
petitioner is vested with the Full Court of the High
Court by virtue of Article 235 of the Constitution of
India, the Full Court would only be the competent
authority to exercise such power, but, in the instant
case, no such recommendation has been made by
the Full Court of the High Court to terminate the
services of the petitioner in terms of Rule 9(4) of the
HJS Rules. Since the High Court has not made any
recommendation in terms of Rule 9(4) of the HJS
Rules to terminate the petitioner's services, the order
of termination passed by respondent No.2 on the
basis of recommendation of the Standing Committee
is ipso facto unconstitutional, non-est and without
authority of law, and deserves to be quashed.
15. With regard to question No.2, at paragraph 36 it was
observed as follows :
"36. Since the impugned order of termination has
already been held to be unconstitutional, non est and
without authority of law, this question though placed
for consideration, is not being gone into as held
herein-above and question No.2 is answered
accordingly."
16. Though in the additional return filed by the respondent No.1
on 02.05.2019 a plea was taken that final decision was taken by the
Full Court, it is evident that a mis-leading statement was made in the
affidavit filed that the final decision was taken by the Court. We record
our displeasure for filing such an affidavit containing statements which
are not borne out of records.
17. Mr. Prafull N. Bharat, learned senior counsel, appearing for
the appellant, submits that Rule 4-B of the Rules of 2007 empowers
the Standing Committee to recommend termination of a probationer. It
is submitted that Rule 4-C (ix) of the Rules 2007 as also the proviso
appended to Rule 4-C (xii) of the Rules 2007 empower the Standing
Committee to make such recommendation. In respect of above
submissions, he has drawn attention of the Court to paragraph 7 of the
memo of appeal.
18. Mr. B. N. Mishra, learned counsel, appearing for the writ
petitioner, relies on the judgment of the learned Single Judge and
submits that the writ appeal lacks merit and the same deserves to be
dismissed.
19. We have considered the submission of learned counsel for
the parties and perused the materials on record.
20. In the case of State of Uttar Pradesh Vs. Batuk Deo Pati
Tripathi and Another, reported in (1978) 2 SCC 102, the Hon'ble
Supreme Court had observed that Article 235 of the Constitution
provides that the control over District Courts and courts subordinate
thereto shall be vested in the High Court and since Article 216 provides
that every High Court shall consist of a Chief Justice and such other
Judges as the President may from time to time deem it necessary to
appoint, Article 235 has to be construed to mean that the control over
District Courts and courts subordinate thereto is vested in the entire
body of Judges who together constitute the High Court and not in the
Chief Justice as representing the High Court or an Administrative
Judge or a smaller body of Judges acting as an Administrative
Committee. It was further observed that though the control over
subordinate courts is vested institutionally in the High Courts by Article
235, it did not follow that the High Courts have no power to prescribe
the manner in which that control may in practice be exercised and that
the very circumstance that the power of control, which comprehends
matters of a wide-ranging variety, vests in the entire body of Judges
makes it imperative that rules must be framed to make the exercise of
control feasible, convenient and effective. It was further observed that
power to do a thing necessarily carries with it the power to regulate the
manner in which the thing may be done. It is an incident of the power
itself and indeed, without it, the exercise of the power may in practice
be fraught with difficulties which will frustrate, rather than further, the
object of the power. It was observed that the power of control over the
subordinate courts which is vested in the High Courts comprises such
numerous matters often involving consideration of details of minutest
nature and therefore, if the whole court is required to consider every
one of those matters, the exercise of control, instead of becoming
effective, will tend to cause delay and confusion in the administration of
justice in the State. Control will be better and more effectively
exercised if a smaller committee of Judges has the authority of the
court to consider the manifold matters falling within the purview of
Article 235.
21. Thus, the law laid down by the Hon'ble Supreme Court in
Batuk Deo Pati Tripathi (supra) makes it explicit clear, a Committee of
Judges by whatever name called if duly authorised by the Full Court
can take decisions with regard to matters in respect of which authority
has been granted to that Committee.
22. At this juncture, it will be appropriate that in exercise of
powers conferred under Articles 225 and 227 of the Constitution of
India, Section 25 of the Madhya Pradesh Reorganisation Act, 2000 and
all other powers enabling it in that behalf, and in supersession of the
High Court of Chhattisgarh Rules, 2005, the High Court of Chhattisgarh
had made the High Court of Chhattisgarh Rules, 2007. Chapter I-A was
inserted w.e.f. 04.07.2015. Chapter I-A provides for Rules for disposal
of Non-Judicial Business and it comprises of Rule 4-A to Rule 4-R.
23. Rule 4-A provides for constitution of Standing Committee
comprising of the Chief Justice, two Judges nominated by the Chief
Justice, who shall generally be the senior-most Judges and two Judges
nominated by the Chief Justice by rotation for a period of two years. It
is provided that one of them shall be a Judge appointed from Higher
Judicial Service.
24. Rule 4-B provides that the Standing Committee shall be
charged with the control and direction of the Subordinate Courts, so far
as such control and direction are exercised otherwise than judicially.
Rule 4-B is a general power by which Standing Committee has been
charged with the control and direction of the Subordinate Courts on the
administrative side.
25. Rule 4-C refers to the power of the Standing Committee
without reference to the Judges generally to exercise such powers as
are indicated therein.
26. Since arguments have been advanced on the touchstone of
Rule 4-C (ix) and Rule 4-C (xii), it will be appropriate to extract Rule 4-
C (ix) and Rule 4-C(xii) as under :
"(ix) to pass orders of suspension, initiation of
departmental proceedings against members of the
Higher Judicial Service and Subordinate Judicial
Service, and consequential orders in the said
proceedings other than that of dismissal from
service.
(xii) to make recommendation to the State
Government for compulsory retirement of any
Judicial Officer of any rank.
Provided that notice of the decision of the Standing
Committee shall be circulated to the Full Court within
ten days from the date of the decision and if any
member of Full Court desires, within three weeks of
the decision, the matter to be discussed at a meeting
of the Full Court then no action will be taken till the
decision at such a meeting."
27. At this juncture, it is relevant to state that though the learned
Single Judge had extracted Rule 4-C(xii), the proviso thereto was not
taken note of.
28. It will be also necessary to reproduce Rule 4-O(i)(b), which is
as under :
4-O.(i) On the following matter decision shall be
taken by the Judges at a meeting of the Full
Court :-
(b) All recommendations for the dismissal from
office of Judicial Officer."
29. Rule 4-C(ix) empowers the Standing Committee to pass
orders of suspension, initiation of departmental proceedings against
members of the Higher Judicial Service and Subordinate Judicial
Service, and consequential orders in the said proceedings other than
that of dismissal from service. Present is not a case where any
departmental proceedings have been initiated against the writ
petitioner. Rule 4-C (ix) also does not empower the Standing
Committee to pass any consequential orders of dismissal from service.
In the instant case, the Standing Committee has recommended
termination of service.
30. Rule 4-C (xii) provides that the Standing Committee is
empowered to make recommendation to the State for compulsory
retirement of any Judicial Officer of any rank. Proviso thereto lays
down that notice of the decision of the Standing Committee shall be
circulated to the Full Court within ten days from the date of the decision
and if any member of Full Court desires within three weeks of the
decision that the matter be discussed at a meeting of the Full Court,
then no action shall be taken till the decision is taken at such a
meeting. Present is not a case of Standing Committee making any
recommendation to the State Government for compulsory retirement of
the petitioner. Present is a case whereby the Standing Committee has
recommended termination of the service of the petitioner before
completion of probation. It is also not the case that recommendation of
the Standing Committee was circulated to the Full Court and the Full
Court had approved the same.
31. Rule 4-O(i)(b) makes it explicit clear that all recommendations
for the dismissal from office of Judicial Officer has to be made pursuant
to a decision taken by the Judges at a meeting of the Full Court.
32. In view of the above discussion, there is no escape from the
conclusion that the decision of the Standing Committee recommending
termination of the service of the petitioner was without jurisdiction. We
are fully in accord with the view taken by the learned Single Judge that
since the High Court has not made any recommendation in terms of
Rule 9(4) of the Rules of 2006 to terminate the service of the writ
petitioner, the order of termination passed by the respondent No.2
on the basis of recommendation of the Standing Committee is
unconstitutional, non-est and without authority of law.
33. In view of the above discussion, we find no merit in this
appeal. Accordingly, the writ appeal is dismissed.
34. We affirm the order of the learned Single Judge. We further
observe that the High Court will take appropriate decision with regard
to probation period of the writ petitioner expeditiously.
Sd/- Sd/-
(Arup Kumar Goswami) (Parth Prateem Sahu)
CHIEF JUSTICE JUDGE
Chandra
