ORDER
V. Dhanapalan, J.
1. Petitioner has come forward with this writ petition seeking to set aside the proceedings of the 1st respondent in A. No. 338 of 2002 dated 05.08.2008 and direct the respondents to continue him in service and to regularize his service in the post of Junior Assistant.
2.The case of the petitioner, as stated in the affidavit, is as under:
The petitioner's father, by name, I.Syed Akbar, who was employed as Head Clerk in the Principal District Munsif Court at Villupuram died on 10.11.2001, while in service. Pursuant to his father's death, the petitioner made an application to the 1st respondent for compassionate appointment as Junior Assistant, as he possessed requisite qualification. After careful consideration of the application made by the petitioner, the 1st respondent herein appointed the petitioner as Junior Assistant in the Principal Sub Court at Tindivanam on compassionate grounds. In pursuance of the order of appointment, the petitioner joined duty on 07.03.2002 and continued in service unblemished. While so, the 1st respondent passed an order of cancellation of the compassionate appointment of the petitioner vide proceedings in A. No. 338/2002 dated 05.08.2008 on the ground that the Government had rejected the proposal of the High Court, Madras, for regularising the service of the petitioner, who was appointed as Junior Assistant on compassionate grounds stating that as per G.O.Ms. No. 212, Personnel and Administrative Reforms Department, dated 29.11.2001, the ban imposed for appointment on compassionate grounds was in existence in the entire departments of Government including High Court, Madras and it also clarified that the ban on filling up of posts on compassionate grounds was in existence and that the appointment of the petitioner was irregular. Aggrieved by the order passed by the 1st respondent, the petitioner is before this Court.
3. The averments of the petitioner that his father died on 10.11.2001 while in service; his application to the Principal District Judge, Villupuram on 04.02.2002 seeking appointment as Junior Assistant on compassionate grounds and his appointment as Junior Assistant temporarily in the Principal Sub-Court at Tindivanam by the then Principal District Judge, Villupuram vide his proceedings in A. No. 338 of 2002 dated 05.03.2002 are admitted by the 1st respondent herein in his counter.
3(a). The 1st respondent in his counter has stated that pursuant to the appointment of the petitioner, the then Principal District Judge, Villupuram in A. No. 338 of 2002, dated 15.04.2002 addressed the Secretary to the Government of Tamil Nadu, Home Department, Chennai-9 through the Registrar General, High Court, Madras, the proposal for regularisation of services of the petitioner. On a perusal of the proposal, the High Court, Madras, vide its Letter dated 02.12.2004 in R.O.C. No. 1894/2002/C4 sought clarification from the Principal District Judge, Villupuram that the temporary appointment of the petitioner was made on 05.03.2002, which is subsequent to the date of the ban imposed by the Government as per G.O.Ms. No. 212, Personnel and Administrative Reforms Department, dated 29.11.2001, to fill up vacant posts. In the letter submitted by the then Principal District Judge, Villupuram in A. No. 338 of 2002, dated 03.01.2005 to the High Court, Madras, it is stated that G.O.Ms. No. 212 dated 29.11.2001 did not speak about the appointment on compassionate grounds and it is only in the Government Letter No. 15192/Cts.V/2002-1 dated 04.03.2002, the Government has clarified that the ban is applicable for appointments on compassionate grounds also. The 1st respondent has clearly stated in his counter that the said Government Letter was received by the Principal District Judge, Villupuram only on 05.04.2002, i.e. after the order of appointment of the petitioner on compassionate grounds was passed by the Principal District Judge, Villupuram on 05.03.2002.
3(b). The 1st respondent has further stated in his counter that the High Court, Madras has sent a letter in R.O.C. No. 1894/2002/C4 dated 24.07.2008 to him, stating that the Government in its letter in Ms. No. 478/Cts.V/2005, dated 25.04.2008 of Home (Cts.V) Department has rejected the proposal of the High Court, Madras, for regularising the services of the petitioner, who was appointed as Junior Assistant in the Principal Sub-Court, Tindivanam on 07.03.2002 on compassionate grounds, stating that as per G.O.Ms. No. 212 of P & AR Department, dated 29.11.2001, the ban imposed for appointment on compassionate grounds was in existence in the entire departments of Government including High Court of Madras and it also clarified that the ban on filling up of posts on compassionate grounds was in existence for non-essential categories including Judicial Department and that it also took effect from 29.11.2001 and the filling up of vacant posts in any manner other than essential categories including appointment on compassionate grounds subsequent to the issuance of the aforesaid Government Order was irregular and the Government had not considered the proposal of the High Court, Madras to regularise the temporary services of the petitioner, since his appointment as Junior Assistant on compassionate grounds in the Principal Sub-Court, Tindivanam was an irregular one.
3(c). It is also stated by the 1st respondent in his counter that in view of the observation made by the Government in its Letter No. 478/Cts.V/2005, dated 25.04.2008 of Home (Cts.V) Department, Chennai-9, the temporary service of the petitioner was cancelled and he was ousted from service with immediate effect as per the Proceedings of the Principal District Judge, Villupuram in A. No. 338 of 2002, dated 05.08.2008.
4. The 3rd respondent herein, namely, the Secretary to Government, Home Department, in his counter has stated that the Government has issued orders vide G.O.Ms. No. 212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001, stating that it has decided to effect economy in expenditure and accordingly directed that filling up of vacant posts shall be completely banned except certain categories of posts such as Teachers, Doctors and Police Constabulary, which may be identified and declared as essential posts. The 3rd respondent has further stated that proposals for filling up of vacant posts considered essential by any Department will be placed before a Committee consisting of Chief Secretary, Finance Secretary and Secretary (Personnel and Administrative Reforms Department) and that the said Government Order is applicable to all departments including Judicial Department, other than those who are specifically exempted in the Government Order.
4(a). According to the 3rd respondent, the petitioner herein was appointed by the Principal District Judge, Villupuram on 07.03.2002 as Junior Assistant on compassionate grounds in the Principal Sub-Court, Tindivanam during the existence of the ban order and this fact was not known to the Government. The Registrar General, High Court of Madras had sent proposal to the Government for relaxation of ban order in respect of Judicial Department and after a detailed examination, the Government vide G.O.Ms. No. 148, Home (Courts V) Department, dated 22.02.2005 gave exemption to the posts of Steno-Typist, Process Server/Junior Bailiff, Reader and Examiner of Copies in the Judicial Department from the purview of the ban order issued in G.O.Ms. No. 212, Personnel and Administrative Reforms Department, dated 29.11.2001. While so, it is the case of the 3rd respondent that the post of Junior Assistant was not covered under the aforesaid Government Order for Judicial Department and hence, ousting of the petitioner from service was proper.
4(b). The 3rd respondent has further stated in his counter that while examining the proposal of regularisation of services of the petitioner by the Government, it was found that his appointment on compassionate grounds was made during the existence of ban order for filling up of vacant posts as per G.O.Ms. No. 212, Personnel and Administrative Reforms Department, dated 29.11.2001 and hence his appointment was irregular and therefore, it was not possible for the Government to regularise the temporary services of the petitioner. Accordingly, the Government rejected the proposal of the Registrar (Management), High Court, Madras to regularise the temporary services of the petitioner. Pursuant to the Government Order of ban in filling up of vacant posts, the Government also issued instructions in connection with the appointment on compassionate grounds vide Govt.Lr.Ms. No. 20/G/2002, Personnel and Administrative Reforms Department, dated 01.03.2002. The post of Junior Assistant was not an essential category as per the above order and since he was appointed on compassionate grounds and had joined duty on 07.03.2002 during the existence of ban order, his appointment was irregular. Therefore, the question of continuing his service would not arise. Even though the petitioner possessed required qualification, the action of the Principal District Judge, Villupuram by processing the application for appointment itself was in violation of the above said Government Order and moreover, the appointing authority was empowered with powers to oust the petitioner from service.
4(c). It is also stated by the 3rd respondent that vide G.O.Ms. No. 16, Personnel and Administrative Reforms Department, dated 21.02.2006, the ban order for filling up of vacant posts was lifted. The petitioner's appointment on compassionate grounds would have been valid, had he sent his application after the lifting of the ban order, i.e. after 21.02.2006, but the petitioner was appointed prior to the lifting of the ban order and hence his appointment was irregular. The ban imposed for appointment on compassionate grounds was based on the policy adopted by the Government at that time and that any executive order issued by the Government had statutory force. Accordingly, the 3rd respondent prayed for dismissal of the writ petition with liberty to the petitioner to submit a fresh application for appointment on compassionate grounds.
5. Heard Mr. S. Vadivelu, learned Counsel for the petitioner; Mr. D.Sreenivasan, learned Additional Government Pleader for respondents 1 and 3 and Mr. C.T. Mohan, learned Counsel for the 2nd respondent.
6. Learned Counsel for the petitioner has strenuously contended that the ban issued by the Government is an executive order and it is not a rule made under the proviso to Article 309 of the Constitution of India. According to him, while the control in respect of the subordinate courts is vested in the High court, executive order will not be applicable. Learned Counsel for the petitioner drew our attention to Article 235 of the Constitution of India, which gives power to the High Court to exercise control over the subordinate courts, which inter alia includes the powers of general superintendence over the working of the subordinate courts; disciplinary control over the Presiding Judges of the subordinate courts and impose punishments other than dismissal, removal or reduction in rank, subject to the rules of services and Article 311(2) of the Constitution of India. He also mentioned that the said power would also include the power to order disciplinary inquiry, transfers, promotions of members of subordinate judiciary, confirmation of officers, etc.
6a. The learned Counsel would also invite our attention to Rule 10 read with Annexure I of the Madras Judicial Ministerial Service Rules issued under Article 309 of the Constitution, wherein the appointing authority for the post of Junior Assistant in the District Court is the District Judge. He also pointed out that under Rule 13 read with Annexure II of the above Rules in respect of direct recruitments, the post is within the purview of the Tamil Nadu Public Service Commission and in view of Rule 13, the Service Commission has to be consulted for regularising the services of the petitioner.
6b. According to the learned Counsel for the petitioner, the principles of natural justice have been violated, as the petitioner has been in service for six years, i.e. from 05.03.2002 to till date, and no show cause notice was issued to him before the cancellation of his appointment. It is his case that, even assuming that the initial appointment is irregular, it becomes regular, once the ban is lifted by G.O.Ms. No. 16, Personnel and Administrative Reforms Department dated 21.02.2006 and therefore, the cancellation of the compassionate appointment as a whole is invalid.
7. Per contra, learned Additional Government Pleader appearing for respondents 1 and 3 would contend that the Government has imposed ban vide G.O.Ms. No. 212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001 for filling up of vacant posts except certain categories of posts such as Teachers, Doctors and Police personnel, which may be identified and declared as essential posts. He also contended that certain posts of the Judicial Department namely, Steno-Typist, Process Server/Junior Bailiff, Reader and Examiner of Copies are exempted from the purview of the said ban order vide G.O.Ms. No. 148, Home (Courts V) Department, dated 22.02.2005 and that the post of Junior Assistant was not covered under the above Government Order for Judicial Department.
7a. Learned Additional Government Pleader also drew our attention to the Government Letter in Govt.Lr.Ms. No. 20/G/2002, Personnel and Administrative Reforms Department, dated 01.03.2002, wherein, instructions have been issued in connection with appointment on compassionate grounds, which inter alia include filling up of posts through appointments on compassionate grounds in the essential category posts, subject to satisfaction of necessary qualification. According to the learned Additional Government Pleader, the order passed by the Government rejecting the proposal of the High Court, Madras, for regularising the services of the petitioner, resulting in the ousting of his services cannot be faulted with, as the appointment of the petitioner on compassionate grounds was made during the existence of the ban order.
8. However, learned Counsel appearing for the 2nd respondent would submit that the petitioner submitted an application for compassionate appointment to the 1st respondent on 04.02.2002 and on a careful consideration of the same, the 1st respondent issued appointment order to him on 05.03.2002 and the petitioner joined duty on 07.03.2002. According to the learned Counsel, though it was clarified by the Government that the ban was applicable for appointments on compassionate grounds also vide its Letter No. 15192/Cts.V/2002-1, dated 04.03.2002, the said letter was received by the Principal District Judge, Villupuram only on 05.04.2002 i.e. after passing the order of compassionate appointment of the petitioner on 05.03.2002. On the point of cancellation of the appointment of the petitioner and ousting him from service, learned Counsel for the 2nd respondent would contend that since the Government had rejected the proposal of the 2nd respondent for regularising the services of the petitioner, there was no fault on the part of the 1st respondent in passing the order impugned in this writ petition.
9. On hearing the learned Counsel for the parties and on perusing the materials on record, it is clear that the appointment of the petitioner as Junior Assistant on compassionate grounds was made by the Principal District Judge, Villupuram on 05.03.2002 and the 1st respondent herein ousted the petitioner from service, after being clarified that the ban was applicable even to the post of Junior Assistant in the Judicial Department and after rejection of the proposal forwarded by the 2nd respondent to the Government seeking regularisation of the services of the petitioner. Though it is the contention of the petitioner that having served for six years, i.e. from 05.03.2002 as Junior Assistant in the Principal Sub-Court, Tindivanam, no show cause notice was issued to him before cancellation of his appointment, learned Additional Government Pleader for respondents 1 and 3 would argue that the action of the Principal District Judge, Villupuram, in processing the application for appointment itself was in violation of the Government Order in G.O.Ms. No. 212 Personnel and Administrative Reforms (P) Department, dated 29.11.2001 and therefore the appointment of the petitioner was irregular.
10. In the backdrop of the above circumstances of the case, the following questions arise for consideration:
(i) Whether the ban on recruitment imposed by the State Government in judicial appointment without consultation of the High Court is proper?
(ii) Whether the impugned order of cancellation of appointment of the petitioner on compassionate grounds, dated 05.08.2008, ousting him from service, is legally infirmed and liable to be set aside?
11. To answer the first question, it is worth-mentioning to note that Article 235 of the Constitution of India empowers the High Court to exercise control over the subordinate courts, which inter alia includes the powers of general superintendence over the working of the subordinate courts; disciplinary control over the Presiding Judges of the subordinate courts and impose punishments other than dismissal, removal or reduction in rank. The concept of independence of judiciary is a noble one, which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic policy. But, it is necessary to remind ourselves that the concept of independence of judiciary is not limited only to independence from executive pressure or influence but it is a much wider concept which takes within its sweep the independence from many other pressures and prejudices.
12. An analytical and microscopic view of all the features and propositions and the fundamentals of the functioning of the three organs namely, Legislature, Executive and Judiciary have given a clear vision and wisdom to the people of this country for about six decades and mandated the very basic principle enshrined in the Constitution of our country which shows the path of good governance and development of this country into a popular democracy. On the whole, it is to be stated that the situation is satisfactory and all the three organs have exercised their powers and discharged their duties effectively and efficiently and there is no reason to doubt that in the coming years also, they would continue to act in a responsible manner, which is expected of them.
13. The above principles laid down in various decisions reported by our Judicial system make it very clear that the executive and judiciary are independent of their control and co-ordination and they should be independent of their functions. Any amount of deviation in their control will cause certain hardship to each other. This can be avoided while issuing the executive order, unless it is provided in the rules framed under Article 309 of the Constitution of India. There cannot be any executive order and instructions to impose conditions regarding judicial appointments, particularly in the subordinate courts, which is the pillar of the entire judicial system. The appointments to the judiciary, more particularly the subordinate judiciary, have to be given paramount importance, since, without sufficient personnel, the subordinate judiciary, which is always over-burdened, cannot be expected to deliver its best. When the services of the Teachers, Doctors and Police personnel were considered as essential, why not the appointments to the judiciary, to better help the justice delivery system, be considered as essential was a question that was hovering in our minds, which was left unanswered throughout.
14. The independence of judiciary and limited control of the State can be traced out from Chapters V and VI of the Constitution of India, which deal with the High Courts in the States and the Subordinate Courts. Article 229 of the Constitution of India deals with the appointment of officers and servants and expenses of High Courts and Article 235 relates to control of High Court over the subordinate courts.
15. In the case of State of Assam v. Ranga Mohammed reported in : (1968)ILLJ282SC , which relates to transfer of judicial officers, the Supreme Court held that the High Court is in the day-to-day control of courts and knows the capacity of work of the individuals and the requirement of a particular station or court.
16. While dealing with Article 229 of the Constitution of India, a Constitution Bench of the Supreme Court, in the case of M. Gurumurthy v. Accountant General, Assam & Nagaland reported in : (1971)IILLJ109SC , while holding that the Chief Justice of the High Court or his nominee is the supreme authority in the matter of appointment of officers and servants of High Court, further held that interference by Government, except to the limited extent as provided under the Article, is not permissible, as evident from the following observation of the Supreme Court :
11. The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointment of officers and servants of a High Court it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the article. This is essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution-makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pension payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the Legislature. Clause (1), read with clause (2) of Article 229 conferred exclusive power not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State Legislature but only in respect of conditions of service. In the matter of appointments even the Legislature cannot abridge or modify the powers conferred on the Chief Justice under clause (1). The approval of the Governor, as noticed in the matter of rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court under Section 242(4), read with Section 241 of the Government of India Act, 1935. By way of contrast reference may be made to Article 148 relating to the Comptroller and Auditor General of India. Clause (5) provides:
Subject to the provisions of this Constitution and of any law made by Parliament the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor General. 12. ............ Thus Article 229 has a distinct and different scheme and contemplates full freedom to the Chief Justice in the matter of appointments of officers and servants of the High Court and their conditions of service. These can be prescribed by rules made by him. Apart from the special situation contemplated by the proviso to clause (1) the only exception is that the Governor's approval must be sought to the extent the rules relate to salaries, leave or pension. This exception, it is abundantly clear, has to be made because the finances have to be provided by the Government and to the extent there is any involvement of expense the Government has to approve of it.
17. The control of High Court over its subordinate courts under Article 235 was noticed and dealt with by the Supreme Court in the case of High Court of Judicature at Bombay v. Sirish Kumar Rangarao Patil reported in : [1997]3SCR1131 . In the said case, the Supreme Court had held that the control of High Court over its subordinate courts, includes maintenance and discipline and it is the collective and individual responsibility of the High Court Judges to exercise control. Following was the observation of the Supreme Court in the said case :
13. ... In a democracy governed by rule of law, under a written constitution, judiciary is the sentinel on the qui vive to protect the fundamental rights and poised to keep even scales of justice between the citizens and the States or the States inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. Judiciary must, therefore, be free from pressure or influence from any quarter. The Constitution has secured to them, the independence. The concept of 'judicial independence' is a wider concept taking within its sweep independence from any other pressure or prejudice. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judge belongs. Independent judiciary, therefore, is most essential to protect the liberty of citizens. In times of grave danger, it is the constitutional duty of the judiciary to poise the scales of justice unmoved by the powers (actual or perceived), undisturbed by the clamour of the multitude. The heart of judicial independence is judicial individualism. The judiciary is not a disembodied abstraction. It is composed of individual men and women who work primarily on their own. (Vide C. Ravichandran Iyer v. Justice A.M. Bhattacharjee.) The Constitution of India has delineated distribution of sovereign power between the legislature, executive and judiciary. The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of Ministers and the members of the legislature. It is an office of public trust and in a democracy, such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State. What is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. The Judges, at whatever level they may be, represent the State and its authority, unlike the bureaucracy or the members of the other service. Vide All India Judges' Assn. v. Union of India SCC paras 7 and 9 (second case). The Judges do not do an easy job. They repeatedly do what the rest of us seek to avoid, i.e., make decisions. Judges, though are mortals, they are called upon to perform a function that is utterly divine in character. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the day-to-day proceedings in the court. On him lies the responsibility to build a solemn atmosphere in the dispensation of justice. The personality, knowledge, judicial restraint, capacity to maintain dignity, character, conduct, official as well as personal and integrity are the additional aspects which make the functioning of the court successful and acceptable. Law is a means to an end and justice is that end. But in actuality, law and justice are distant neighbours; sometimes even strangely hostile. If law shoots down justice, the people shoot down the law and lawlessness paralyses development, disrupts order and retards progress. [Vide All India Judges' Assn. v. Union of India) which quoted with approval the statement of law by Krishna Iyer, J.] ...
18. In the 2nd All India Judges Association Case reported in : (1993)ILLJ723SC , the Supreme Court, while dealing with the control of High Court over subordinate courts and attempting to ensure better individual conditions of service for subordinate judiciary throughout the country, not only made recommendation with regard to subordinate judicial service, but also to the other employees of the subordinate courts. Following were the observations of the Supreme Court about the control of the High Court over the subordinate courts :
58. Before we part, we must indicate with all the emphasis at our command that the system has to be saved as for a civilised society an enlightened independent judiciary is totally indispensable. The High Courts must take greater interest in the proper functioning of the subordinate judiciary. Inspection should not be a matter of casual attention. The Constitution has vested the control of the subordinate judiciary under Article 235 in the High Court as a whole and not its Chief Justice alone. Every Judge should, therefore, take adequate interest in the institution which is placed under the control of the High Court. We may point out that is what Lord Atkins said in Debi Prasad Sharma v. King Emperor. and it has been approved by a Constitution Bench in Baradakanta Mishra v. Registrar of Orissa High Court. It should be remembered by all the Judges of the High Court, viz., that the administrative control of the subordinate courts of the State vests not in the Chief Justice alone but in the court over which the Chief Justice presides.
59. Burger, C.J. of the American Supreme Court once said:
A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it. It is useful to remember what President Lincoln often said:If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.
19. From the constitutional mandate and the decision of the Supreme Court, it will be evident that the High Court, having control and interest over the functioning of the subordinate judiciary, can only suggest the number of employees required for proper functioning of the subordinate judiciary. For proper functioning of the court, not only judicial officers and court rooms, but also appropriate number of employees are required to man the affairs of the court, apart from the requirement of furniture, fixtures, etc. Therefore, the High Court, which is vested with the control of the subordinate judiciary under Article 235 can alone decide whether there should be a ban on recruitment or more employees are required for proper functioning of subordinate courts.
20. A perusal of the Government Order in G.O.Ms. No. 212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001 would reveal that while imposing ban on appointments in Government Departments including Judiciary, certain posts such as Teachers, Doctors and Police Constabulary were exempted. While the said three exempted posts were considered to be essential, what would be the position of the personnel in the Judicial Department, whose prime duty is to look into the ultimate process of law. While the functioning of the police is considered essential, the ultimate authority to act on the police investigation is the Judicial Department. Therefore, the Executive, while deciding the issue, has to look into the sensitiveness and the importance of the functioning of the Judicial Department in maintaining law and order and the judiciary must have liberty to function independently with sufficient infrastructure. In the instant case, the proposal of the High Court was rejected and consequential action taken by the respondents in cancelling the appointment of the petitioner and ousting him from service. If the respondents could look into the power in the matters of appointment of officers and servants and in the case of imposing certain restriction on itself, it will affect the independent functioning of the judicial department. Therefore, the exclusive power of the appointment of officers and servants of the subordinate judiciary has to be looked into in the light of the constitutional mandate of maintaining the independent jurisdictional limits of the co-ordinate organs, resulting in the normal functioning of the courts.
21. To answer the second question, it would be necessary for this Court to look into the factual aspects. Admittedly, the father of the petitioner died on 10.11.2001, while in service; pursuant thereto, the petitioner and his mother, individually, made applications on 04.02.2002 to the Principal District Judge, Villupuram for the appointment of the petitioner on compassionate grounds. Being satisfied with the qualification of the petitioner and on fulfilment of the required conditions, the petitioner was appointed by the Principal District Judge, Villupuram on 05.03.2002 temporarily, on compassionate grounds and the petitioner joined duty in the Principal Sub Court at Tindivanam on 07.03.2002.
22. It is true that the Government imposed a ban on filling up of vacant posts exempting the posts of Teachers, Doctors and Police personnel, vide its Order in G.O.Ms. No. 212, Personnel and Administrative Reforms (P) Department, dated 29.11.2001. Though there was no ban on compassionate appointments initially, the Government issued instructions in connection with the appointment on compassionate grounds vide its subsequent Letter Ms. No. 20/G/2002, Personnel and Administrative Reforms Department, dated 01.03.2002. But, the said Government Letter was received by the Principal District Judge, Villupuram only on 05.04.2002, i.e. after the passing of the order of compassionate appointment of the petitioner on 05.03.2002. Since the Principal District Judge, Villupuram has given appointment to the petitioner much prior to the receipt of the Government Order of ban on filling up of vacant posts, it cannot be construed that the order of appointment of the petitioner is irregular and that it has been done in a unscrupulous manner. The contention of the petitioner that though the initial appointment is irregular, it becomes regular once the ban is lifted by G.O.Ms. No. 16, Personnel and Administrative Reforms Department, dated 21.02.2006 deserves to be accepted.
23. Normally, when the Government receives proposal for regularising the services of an employee in the Judicial Department, it should consult the High Court in that regard, in case any clarification or requirement is needed. Instead, the Government, on its own, without looking into the matter, has arbitrarily rejected the proposal. Therefore, the order of cancellation of the petitioner's appointment dated 05.08.2008 and ousting him from service is ex-facie arbitrary and hit by total non-application of mind and the same cannot be sustained.
24. A Constitution Bench of the Supreme Court, in State of Haryana v. Inder Prakash Anand and Ors. reported in : AIR1976SC1841 , has held as under :
16. Administrative, judicial and disciplinary control over members of the Judicial Service is vested solely in the High Court....
18..... If the recommendation of the High Court is not held to be binding on the State, consequences will be unfortunate. It is in public interest that the State will accept the recommendation of the High Court. The vesting of complete control over the Subordinate Judiciary in the High Court leads to this that the decision of the High Court in maters within its jurisdiction will bind the State. The Government will act on the recommendation of the High Court. That is the broad basis of Article 235.
25. The above decision of the Supreme Court would make it clear that the control, either administrative or judicial or disciplinary over the members of the Judicial Department is solely vested with the High Court and that the recommendation of the High Court is binding on the State. In the light of the ratio laid down by the Supreme Court in the above decision and following our elaborate discussion in the foregoing paragraphs, we are of the considered opinion that the impugned order of the first respondent is liable to be set aside.
26. Accordingly, the impugned order dated 05.08.2008 passed by the 1st respondent is set aside and the 3rd respondent herein is directed to reinstate the petitioner in service with all backwages and consequential benefits. This Court is conscious of its responsibility in considering the nature of the above situation, while issuing such a direction. Also, we direct the 2nd respondent herein to send a fresh proposal to the 3rd respondent/Government with regard to the regularisation of the petitioner's service, in which event, the 3rd respondent shall consider the same and pass appropriate orders taking into account all the powers and functions of the executive and its control on the judicial appointments.
27. In a democracy governed by rule of law, under a written constitution, judiciary is to watch over as a sentinel in the protection of fundamental rights. The concept of 'judicial independence' is a wider one taking within its sweep independence from any other pressure or prejudice. It has many dimensions, namely, fearlessness of other power centres, economic or political, and freedom from prejudices. The constitution of India has delineated distribution of sovereign power among the legislature, executive and judiciary and they have to function interdependently. The object of the legislation has to be given effect to, while issuing executive orders and instructions without affecting the rights of each organ.
28. While issuing executive orders and instructions, the authority concerned shall take into account the above mentioned factors, so that the outcome of any such order will have far-reaching consequences on the normal functioning of the courts in our country. In such circumstances, we feel it appropriate to direct the 3rd respondent herein to take into account all the factors and issue appropriate direction to all the authorities concerned, while issuing executive orders and instructions, without affecting the rights of the judiciary, in future as well.
29. The writ petition is allowed with the above directions and observations. However, there will be no order as to costs.
Let a copy of this order be communicated by the Registrar General, High Court of Madras to the Chief Secretary to the Government.