Chanchal Singh vs State and others

Vide advertisement notice dated 21.8.1989, the Distt. and Sessions Judge, Jammu, invited applications for the posts of process servers in the payscale of Rs. 630940 within the time specified therein alongwith the certificates. The petitioner who is a matriculate was appointed temporarily on 4.9.1989 as a process server in the payscale of Rs. 630940 and posted against the vacant post in the court of Addl. District and Sessions Judge, Jammu. The Secretary to the Chief Justice, respondent No.3 herein, vide his letter No: 22114/SY dated 7.3.1990 intimated the District Judge that the Hon'ble Chief Justice had not confirmed his action in appointing the petitioner as process server as his appointment was stated to be in violation of Circular No. 10 dated 31.8.1989, issued by the High court. The order of respondent No.3 based upon the instructions of respondent No.2, has been challenged in this petition on the ground that the appointment of the petitioner was not in violation of Circular No. 10

(supra) and in that the appointment made by the District and Sessions Judge, could not be set aside by the Chief Justice under Section 30 of the Civil Courts Act. It is submitted that after appointment, the service of the petitioner could not be terminated without conducting an inquiry or giving him a chance to explain the allegations made against him. It is also submitted that the order impugned is against the principles of natural justice which is liable to be quashed.

In the counteraffidavit filed by Sliri KhaliqulZarnan, Secretary to the Chief Justice, it is stated that as no legal, statutory or fundamental right of the petitioner has been violated, the petition was liable to be dismissed. The appointments made by the District and Sessions Judges are subjected to the control of the High Court in terms of Section 30 of the Civil Courts Act. It is further submitted that even though no rules have been framed, yet, the High Court has been issuing circulars from time to time in this regard. It is submitted that according to Circular No.3 dated 02.09.19971 andNo.2 dated 11,05,1982, every District and Sessions Judge is obliged to inform the High Court before the appointment are made. Vide Circular No. 10 (supra), it was ordered that all class iv employees will be appointed from the area (tehsil) in which the vacancy occurs.

Respondent No.4 had invited applications for the post of process server and accordingly filed those posts which are started to be in violation of the circular. Respondent No.4 had no jurisdiction to appoint the petitioner to the post fallen vacant in Jammu tehsil to which the petitioner is held to be not belonging. It is further submitted that the order of appointment of the petitioner was not confirmed by the respondents and he was accordingly dismissed from the service. No provision of law or rule is claimed to have been violated. As respondent No.4 was not at all and eligible to call for application for appointment in violation of the circulars ( supra) the appointment of the petitioner was bad which did not require holding of any inquiry particularly when his termination was not ordered as a penalty.

I have heard learned counsel for the parties. A perusal of the record shows that after inviting applications for appointment to the post of the process server the Distt. and Sessions Judge, Jammu, prepared a merit list of candidates in which the petitioner was shown to be a resident of village Athan, tehsil Jammu, having obtained 346/850 marks, He was also shown to be a matriculate. In his order of appointment his place of residence was shown as Village Atham, tehsil Samba. There appears to be some discrepancy regarding the situation of village Atham either in tehsil Jammu or in tehsil Samba. The petitioner was, however, not afforded any opportunity to show as to whether he belonged to tehsil Jammu or tehsil Samba. Circular No.2 (supra) was issued inviting attention of the Distt. and Sessions Judges and directing them that Circular No.3 of 1971 and No.2 of 1982 be complied with in their letter and spirit. Vide Circular No.3 it was ordered that no post of peon in future shall be filled up by the District and Sessions Judges and whenever any vacancy of peon occurs anywhere, the Distt. and Sessions judge concerned should inform the Secretary to Chief Justice without any delay. In no circular it is mentioned that the appointments of peons or process servers are to be made only by the Chief Justice and not by the Distt. and Sessions Judges. Sec. 30 of the Civil Courts Act deals with the appointment of ministerial officers of subordinate courts, providing inter alia:

(1) The ministerial officers of the District Courts shall be appointed, and may be suspended or removed by the Judges of those courts respectively. (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 proscribe, in this behalf, and in dealing with any matter under this section, a judge of a Court 01 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.

It is apparent from subsec.(4) that order of the District Judge passed under the section is subject to the control of the High Court. The word control"", according to dictionary meaning, means inter alia restraint or check, Prohibition is a kind of restraint and the above meaning would thus go to show that the word 'control' is comprehensive to include the power to prohibit. According to Corpus Juris Secundum Vol.18, the word 'control' when broadly used, may embrace every form of control actual or legal, direct or indirect negative or affirmative. It has further been observed "to control" has been said to import a check by a countercheck or registered or duplicate account; but gradually an enlarged meaning with the connotation of restraint over the subject of control, has been given to the term, and so it has been variously defined as meaning to check, curb, hold from action, hold in restraint or check, keep under check, or to restraint; to counter, or hinder, to direct, or guide to dominate, overpower, subdue, or subject, to exercise a directing restraining or governing influence over, to govern, regulate, or rule to have authority or power over, or have under command, to manage, to subject to authority."" 3.It was held by a Division Bench of Madras High Court in Public Prosecutor v. VenkayyaAIR 1944 Mad 452, that the power to control include a power to prohibit. The word 'control' therefore, cannot be confined to mere regulation. It is more comprehensive and includes domination or command over an inferior. This is thus established that the order passed by the Distt. and Sessions Judge under Sec.30 of the Civil Courts Act, is subject to control of the High Court meaning thereby that if the order is found to be contrary to law or any direction issued, same can be varied, rescinded or kept in abeyance. The power of control contemplated by subsec. (4) vests in the High Court and not in any one judge of the High Court. High Court has been defined under Sec.3, to be the "High Court of Jammu and Kashmir State". Sec. 5 of the Act provides for making of the rules for the transaction of work of the High Court.

4.Section 93 of the Constitution of Jammu and Kashmir provides that there shall be a High Court for the State, consisting of Chief Justice and two more other Judges. The Chief Justice or any other judge is , therefore, not a High Court for the purpose of subsec, (4) of Sec. 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 purpose of said subsection. The respondents have not placed anything on record to show that the powers of the Court were conferred upon the Chief Justice for the purpose of subsec. (4) of Section 30 of the Civil Courts Act. The letter of respondent No.3, impugned in this petition is, therefore, apparently without jurisdiction.

5.A perusal of Circulars (Annexure R1 and R2) also shows that the same were issued not by the orders of the High Court but by the orders of the Chief Justice. The Hon'ble Chief Justice has, therefore, apparently acted without jurisdiction while directing the termination of the services of the petitioner who was duly appointed by respondent No.4 under the provisions of Sec.30 of the Act.

Learned counsel for the respondents did not argue about his preliminary objection. Otherwise also, after his appointment to the post of process server against a clear vacancy, the petitioner had acquired a right and could not be removed without adopting due course of law or adeast principles of natural justice particularly when village Atharn is shown to be both in tehsil Jammu and tehsil Samba. It is also not clear as to how the post of process server in the court of Addl. District and Sessions Judge, Jammu, be termed to be a vacancy in the tehsil of Jammu and not in the Jammu district. The petitioner, if afforded an opportunity before taking action for his removal, would have been in a better position to explain the circumstances or to rebut the allegations against him.

Under the circumstances the petition is allowed by quashing letter No:22114/SY dated 7.3.1990 as issued by respondent No.3 at the instance of respondent no.2 with a direction to the respondents to allow the petitioner to work as a process server on the basis of the order of his appointment passed by the respondent No.4. The petitioner shall be immediately taken into service and paid emoluments for the service rendered by him.

C.M.Ps.NO.7879 of 1991 shall also stand disposed of accordingly.