VENKATESAM, J.

(1) THIS Appeal is preferred by the State of Andhra Pradesh (defendant) against the decree and judgment of the II Additional Chief Judge, City Civil court, Hyderabad, in O. S. No. 7 of 1960 on his file, while Mohammed Mazharuddin Ahmed (plaintiff) has preferred the Cross-Objections. The relevant facts leading to this appeal may shortly be stated.

(2) THE plaintiff was appointed as a probationary Munsiff-Magistrate in the subordinate Judicial Service of the erstwhile Hyderabad State on 16th June, 1948, and was later absorbed in a clear vacancy of the post of Munsif-Magistrate on 21st March, 1949 in the grade of Rs. 400 to Rs. 800 (O. S.). He was posted in July, 1953 as Munsif Magistrate at Omerga in Osmanabad District. When the Chief Justice of Hyderabad High Court visited Omerga on 20th July, 1953, some of the pleaders submitted an application to him making complaints and demanding the immediate transfer of the plaintiff. On 13th August, 1953, the Registrar of Hyderabad High court served on him a charge-sheet containing as many as nineteen charges, and requiring the plaintiff to show cause why action should not be taken against him imposing the penalty mentioned in rule 9 (vi) (compulsory retirement before completion of 25 years of qualifying service, referred to in the Rules as compulsory retirement), rule 9 (vii) (removal from service which does not disqualify from future employment), and rule 9 (viii) (dismissal from service which ordinarily disqualifies from future employment), of the Hyderabad Civil Services (Classification, Control and Appeal) Rules, 1952 (hereinafter referred to as "the rules"). The plaintiff was also required to show cause within ten days from that date, and to put in a written statement of his defence, and to state whether he desired an oral enquiry or only be heard in person, and a copy of the complaint by the members of the Bar dated 20th july, 1953, was also enclosed. To this, the plaintiff submitted his explanation on 25th August, 1953. Mr. Justice Manohar Pershad of the Hyderabad High Court commenced the enquiry on 3rd September, 1953, and in the corse of the enquiry he framed two additional charges. After conclusion of the enquiry, the plaintiff submitted his written arguments on 16th November, 1953. The enquiry officer submitted his findings on 21st January, 1954, finding that the plaintiff was guilty of all the charges except charge No. 7, that they were serious and unbecoming of a judicial officer, and that he was not fit to be retained as a Judicial Officer, and that he should be dismissed from service under rule 9 (viii) and directed that the file may be placed before the Chief Justice.

(3) THE plaintiff was placed under suspension by an order dated 22nd January, 1954. The Registrar of the High Court, by his letter, dated 25th January, 1954, communicated the recommendation to the Secretary to Government, Home department, Hyderabad, that the plaintiff should be dismissed from service. Thereupon, the Government issued a show cause notice dated 26th May, 1954, which referred to the charges, the plaintiffs explanation and the written arguments, and stated that they were in agreement with the findings of Justice Manohar Pershad, and that the government proposed to impose the penalty of dimissal. A copy of the findings was also enclosed to the notice and the plaintiff was required to show cause within fifteen days of the receipt thereof. The plaintiff submitted his explanation to the government on 23rd June, 1954. The Government thereupon passed an order, home Department Notification No. Spl. /judl. /3/54, dated 24th November, 1955, that the plaintiff was charged with misconduct and communal bias, that the administrative Judges of the High Court who conducted the enquiry recommended that he be dismissed from service, and an opportunity was given to him to show cause against it, that the Public Service Commission was also consulted, and that after consideration of all facts, the Rajapramukh was pleased to compulsorily retire him from service with effect from the date of that order, granting him proportionate pension to which he was eligible under the Rules. This order was communicated to the plaintiff by the Registrar by his letter dated 6th December, 1955. The plaintiff, thereupon, preferred an appeal to H. E. H. the Nizam the Rajapramukh of Hyderabad, through the High Court. The Government of Hyderabad, thereupon, passed an order, No. Special 93o/judl. /55, dated 23rd May, 1956, that the plaintiffs representations was carefully considered by the Government, but it saw no reason to revise the orders already passed, and the Registrar, High Court, communicated the same to the plaintiff by his letter dated 30th May, 1956. At this stage, it may be mentioned that in reply to an application of the plaintiff that he should be declared to have crossed the efficiency bar with effect from 1st October, 1951 he received a communication from the High Court on 30th June, 1953, that it would be considered after six months, and that he may renew his application. On 8th October, 1956, the Government of Hyderabad issued an order No. Spl. /judl. /3/54, dated 8th October, 1956, that in view of his compulsory retirement on charges of misconduct and communal bias, there was no question of his crossing the Efficiency Bar, and that the case was closed.

(4) THE plaintiff has filed the suit challenging the legality and correctness of the above orders. He contended, inter alia, that the order appointing the enquiry officer was without jurisdiction, null and void, that the report of the enquiry officer was not considered by the Administrative Bench of the High Court, but only considered by the Chief Justice, that the affidavits and other documents were not supplied to him till a belated stage of the arguments after completion of the enquiry, that the charges were vague and without any detail, that his request for permission to examine the Chief Justice and production of certain files was not ordered, that the Chief justice referred to his Confidential Files and gave his finding, without giving an opportunity to him, that a charge of corruption and another charge were framed in the course of the enquiry, though not included in the list of charges served on him, that the witnesses examined on his behalf were threatened by the enquiry officer, that his appeal, which was addressed to the Rajapramuk should have been heard by him, but not by the Government which is the punishing authority, they were all in violation of the Rules, and that the appeal order is also illegal. He contended that he did not have a fair and reasonable opportunity and also that principles of natural justice were not observed, and that the impugned order is unsustainable. He further contended that the Governments omission to declare that he crossed the Efficiency bar, which should have been made prior to the commencement of the enquiry, resulted in loss of emoluments, that the said order is a punishment under the Rules, and as it was passed without his being given an opportunity, it is void and illegal.

(5) THE plaintiff, therefore, sued in forma pauperis for a declaration that the order of the government dated 24th November, 1955, is ultra vires, null and void, that he should be deemed to be in service ; that it should be declared that the order of stoppage at the Efficiency Bar is ultra vires, null and void, and that the plaintiff is entitled to get his yearly increments from the date of the stoppage at the Efficiency bar till the date of his reinstatement ; and for a decree for arrears of pay from the date of stoppage at the Efficiency Bar upto the date of filing of the suit as per the schedule of account appended to the plaint, amounting to Rs. 33,742-59 P. , with interest at 6 per cent per annum and other sums of money amounting in all to rs. 1,44,360-48 P. The Government resisted the suit making a general averment that it did not admit all 01 any of the allegations in the plaint, and that the plaintiff was put to strict proof, without giving any detailed answer as to how the contentions based on illegality are not tenable. It was further stated that on account of misconduct and communal bias the plaintiff was compulsorily retired and was granted pension of rs. 61-94 P. per mensem, that a Judge of the High Court conducted the enquiry, and Public Service Commission was consulted, and the procedural formalities were complied with. It was also stated that the plaintiffs appeal was considered and rejected after being repeatedly examined by the authorities at all stages, and that there was no basis for the allegation that the plaintiff was prejudiced. The trial Court framed appropriate issues, and on a consideration of the evidence adduced and the relevant Rules, it held that the order of the Chief Justice, directing the enquiry and appointing the enquiry officer, instead of the Administrative Bench, is without jurisdiction, that the enquiry was invalid ; that six of the charges were vague and indefinite, and did not contain any particulars so as to make it possible for the plaintiff to meet them; that the enquiry officer did not consider the charges, nor gave findings thereon but only gave findings on the allegations, and they were also carried in the show cause notice ; that the plaintiff was punished without any findings on the charges framed ; and that the show cause notice as well as the final orders of the Government suffered from those infirmities. He accordingly held on issue No. 1 that the departmental enquiry and the order of the Government compulsorily retiring him are opposed to law, null and void. On issue No. 2 the learned additional Chief Judge found that the order of the High Court dated 30th June, 1953 (Exhibit A-42), stopping the increments, is null and void on the ground that according to rule 17 of the Rules it is a punishment, and no reasonable opportunity was given to the plaintiff to show cause against that order. He, however, held that civil Court could not grant a declaration that the plaintiff had crossed the Efficiency bar, and that the High Court alone could do so and therefore, merely granted a declaration that the order of stoppage of Efficiency Bar, Exhibit A-42, is ultra vires, null and void. On those declarations, the learned Judge granted a decree for arrears of pay Rs. 12,665-07 P. with interest thereon at 6 per cent per annum from the date of suit, 17th June, 1959, till realisation, and for salary at Rs. 376-58 P. (per month)from the date of suit till his reinstatement, and that if the plaintiff had not drawn his pension, he would be entitled to be paid at Rs. 429-52 P. Aggrieved by this decree, the parties have preferred the appeal and the cross objections, as stated above.

(6) THE contentions raised by them before the trial Court have been repeated before us, and the question in controversy may broadly be stated thus :- (1) Whether the appointment of the enquiry officer is illegal and without jurisdiction, and has vitiated the impugned order. (2) Whether the impugned order is illegal on the further ground that it is not based upon the recommendation of the Administrative Bench of the High Court, but only of the Chief Justice. (3) Whether the enquiry in question is in violation of the statutory rules and principles of natural justice, and has caused any prejudice. (4) Whether the impugned order is ultra vires and illegal as being in violation of the statutory rules and not being a speaking order. (5) Whether the order passed in appeal is illegal as it is not decided by the rajapramukh, but by the Government which had imposed the punishment. (6) Whether order of the Government stopping the increments at the efficiency Bar is illegal.

(7) WE shall now consider the validity of these contentions. The contention of Sri Jaleel Ahmed, the learned Counsel for the plaintiff (respondent) is that the disciplinary control of the Hyderabad High Court over the district Munsifs and other subordinate gazetted judicial officers was governed by the provisions of the Hyderabad High Court Act. III of 1337 F. (hereinafter called "the Act"), and the Rules framed thereunder, which received the aseent of H. E. H. the Nizam on 10th September, 1928, and that even after the passing of the constitution, that Act and the other laws, Orders, and Circulars not repealed by that Act, and which are not inconsistent with the Constitution, remained in force till the establishment of the High Court of Andhra Pradesh on 1st November, 1956. Hyderabad, argued the Counsel, was one of the princely States of India, of which the Ruler was H. E. H. the Nizam. As laid down by the Supreme Court in a number of cases, he was an absolute Ruler, and there were no limitations on his powers. The legislative, executive and judicial powers were all vested in him, and they were supreme. The tenure and conditions of service of all public servants, including judicial officers, were undisputedly at the pleasure of the Nizam. After the Police Action in September. 1948, the Nizam delegated the administration of his territory to the military Governor by his Firman dated 28th September, 1948, and other Firmans. Though legally speaking the Nizam continued to be the absolute Ruler of the State till the commencement of the Constitution, the administration was run by the military Governor and the Chief Civil Administrator, and later on, by the civil Cabinet.

(8) ON 26th January, 1950, Hyderabad became a Part B State and a part of the Union of India,when Article 1 of the Constitution came into force, Article 238 of the Constitution made applicable the provisions of Part VI relating to the States specified in Part A of the first schedule to the Part B States. Further, subject to a few modifications, one of them being that the word " Rajpramukh " shall be substituted for the word " Governor " the laws and the rules passed by the Nizam in respect of disciplinary control over judicial officers continued as the " laws in force immediately before the commencement of the constitution," within the meaning of Article 313, and with the modifications made after 1950 till the establishment of the Andhra Pradesh High Court on 1st November, 1956. . . . . It may be noted that the Hyderabad Civil Service Regulations promulgated pursuant to the Nizams Firm an dated 25th Ramzan, 1337 H. remained in force till they were replaced by the Hyderabad Civil Service (Classification, Control and Appeal) Rules, 1952, framed by the Rajpramukh in exercise of the powers conferred by the proviso to Article 309. Those Rules came into force on the 17th march, 1952, and even thereafter it is only the Administrative Bench of the hyderabad High Court that could make or order enquiry to be made, and also recommend the punishment to the Government.

(9) WE shall now examine, the statutory provisions bearing on this question. Dastoor-ul-Amal Majlis Aliya Adalat Mumalik Mahroosa Sarkar Ali nizamul-Mulk Asaf Jah, dated 24th Rabi-ul-Awal 1302 Hijri (hereinafter referred to as the Regulation of 1302-H). dealt with the power of the Hyderabad High Court. It was amended by Act V of 1314-F. , and the relevant sections as amended will now be referred to. Section 3, omitting unnecessary words, reads as follows :-"the Administrative Bench shall consider all matters in regard to the administration of the office of the High Court and all the other offices under its control and consider all matters which concern the lower judicial officers and matters in which the office of the Prime Minister is to be addressed and consider the matter which has been referred by the Prime Minister for the consideration of the High Court. In the administrative Bench the Chief Justice and all the other judges irrespective of their numbers shall take part. "

(10) IT may therefore be noted that according to this Regulation the Administrative bench shall consist of the Chief Justice and all other Judges of the High Court irrespective of their number, and they are charged with the duty of considering the matters relating to the administration of the office of the High Court and other offices under its control, and all matters which concern lower judicial officers. It makes a distinction between the powers of supervision of the High Court regarding the administration of the office of the High Court, and other subordinate Courts, and offices of the subordinate Courts on the one hand, and the disciplinary control and other matters which concern lower judicial officers.

(11) THE marginal note for section 46 of the Regulation is Power to recommend to Government about transfer, suspension, demotion of the officers of the lower Court. It says: "where the Administrative Bench feels it necessary that Munsifs, sadar Munsiffs and Nizam-e-Diwani Simt and assistants of the District Courts and Sadar Adalat or the Simte Nayab Darul Qaza Balda and Diwani Nazima and Nazim Sahib City Criminal Court and its assistants and Nayaba and Registrars and deputy Registrars of the High Court are to be transferred, suspended, demoted then it will report to the Government. " the marginal note to Section 47 is: Power to report to Government to hold summary enquiry and open inquiry of the aforementioned officers. The section provides: "on a complaint of misconduct of the aforementioned officers the Chief Justice or any other members of the Administrative Bench who was entrusted for the purpose by the Chief Justice will hold a confidential summary inquiry and in the event of finding the complaint to be true to report to the Prime Minister and request the Prima Minister to appoint a Special Bench to hold an open inquiry and report. If it was necessary in the circumstances to suspend the Munsif and assistant Nazim to suspend them with immediate effect and report to the government. "

(12) A combined reading of these two sections reveals that the power to punish the Munsifs and other Subordinate Judicial Officers, as well as the administrative officers of the High Court and subordinate Courts even in respect of transfer, suspension and demotion was vested only in the Government, and the power of the administrative Bench was whenever it feels such action necessary, to report to the Government. Further, section 47 makes a distinction between what it terms a confidential summary enquiry, evidently meaning a preliminary enquiry, which may be held without the knowledge of the officer concerned and open enquiry meaning a regular enquiry, or one in accordance with the procedure to be held in the presence of the officer. When a complaint of misconduct is made against any of the officers referred to in section 47, which includes Munsifs and other subordinate Judicial Officers, it provides that either the Chief Justice, or any other member of the Administrative Bench entrusted for the purpose by the Chief Justice, could hold the preliminary enquiry. Be it noted that even though all the Judges are members of the Administrative Bench, the preliminary enquiry should be held only by the Chief Justice or by any Judge entrusted with the purpose by the chief Justice. On being satisfied that there is a prima facie case for enquiry, the chief Justice has to report to the Prime Minister and request him to appoint a special Bench to hold the regular enquiry. Thus, according to this Regulation, the power to hold a regular enquiry against a judicial officer, like the Munsif, was not vested in the Administrative Bench, much less the Chief Justice, but only in the special Bench, to be appointed by the Prime Minister. Further even that Special bench could only enquire and submit report to the Government. The Chief justice however, had the power, if it was necessary, to suspend the Munsif with immediate effect and report to the Government.

(13) IT may be mentioned that the Hyderabad Civil Service Regulations were framed on 25th Ramzan 1337-H (1918 A. D.), but no reference need be made to them as the first Paragraph of Chapter I of the said Regulations lays down that the regulations do not deal otherwise than indirectly and incidentally with matters relating to recruitment, promotion, official duties, discipline, or the like. On 1st March, 1926, the Nizam with the aim of efficient administration of the judiciary and its reform and betterment, issued the Royal Charter in respect of the highest Court of justice in the Dominion, viz. , the High Court, which was constituted some forty years back, and it (the Charter) came into force from the date of its publication in the Jarida (Gazette). The High Court is defined in the charter to mean the highest Court of justice in the Nizams Dominions. The Charter states that the Judges of the High Court shall comprise of the Chief Justice and a Mufti of the Hanafi Law and as many Judges as may be appointed. According to Clause 6, the powers of the High Court are divided into (1) Judicial and (2) Administrative. Clause 12 reads as follows :-"administrative Bench means a Bench of the High Court constituted for the disposal of and expression of opinion on administrative matters concerning the courts in the H. E. H. the Nizams Dominions whether the Administrative bench consists of a Single Judge or more. "

(14) CLAUSE 13 provides as under :-"the matters to be submitted before the Administrative Bench of the High court and the quorum, constitution and powers of the Bench in such matters shall be provided for and specified in the law relating to the High Court. " clause 14 enacted that for purposes mentioned in clauses 2 and 13, and in view of other necessary matters, the Legislative council shall enact a law relating to the high Court, which shall be enforced after obtaining the Royal assent. It is thus clear that according to clauses 12 to 14, the powers of the Administrative Bench were intended to be enacted by a law relating to the High Court, which shall be enforced after obtaining the Royal assent, and till then the powers of the Administrative bench of the High Court arc those specified in the Regulation. We shall now refer to the Firman issued by the Nizam on 18th Azur, 1338-F- (1928 A. D.) and published in Hyderabad Gazette. Part I, Vol. 59, No. III, pages 18 and 19. The powers conferred on the Administrative Bench with which we are now concerned are mentioned in Paragraph I as follows : " (i) To appoint, promote, transfer, suspend, impose fine, extension of service and to grant any other leave under any rule in force except privilege leave of all officers of the High Court and that of the Subordinate Courts, except that of the officers whose appointment, transfer, suspension etc. , vest in the Chief justice of the High Court of the officers of the lower Courts. (2} To sanction leave of Munsiffs other than casual leave for which Sadar adalat is empowered and to make arrangements in the vacancy, for the period due to such leave. (3) To sanction transfer of Munsiffs. (4) To order the conduct of a confidential enquiry into the misconduct of any gazetted officer of judiciary by any higher officer, except the judges of the high Court. (5) To suspend if necessary any such judicial officer whose enquiry of misconduct is being made, under section 4 above by another judicial officer. But in the event of an enquiry of misconduct against a Sessions Judge order of his suspension will not be passed without the sanction of the Sadrul Moham. (6) * * * * * (7) * * * * * (8) To supervise the attendance and daily work of the judicial officers and for this purpose from time to time issue necessary orders. (9) To permit officers of the judicial Department to avail holidays and leave the headquarters and arrange as necessary to look after their work in the period of their absence.

(15) THE above mentioned provisions make it clear that even in matters of minor disciplinary control, like transfer, suspension, fine, leave and supervising the attendance and daily works of judicial Officers and permission to them to avail holidays are all vested in the Administrative Bench, but not the Chief Justice individually. It is worthy of note that while under the Regulation of 1302-H, even the conduct of confidential enquiry (preliminary enquiry) into the misconduct of a gazetted officer of the Judiciary was to be made by the Chief Justice or any other Judges entrusted with that purpose, the Firman has made a slight improvement, in that it permitted a preliminary enquiry against a Gazetted Judicial Officer (other than judges of the High Court) being made by a higher officers, but the power to order such an enquiry still remained in the Administrative Bench. Clause 8 of Para 1 of the Firman is very significant, as even the power to supervise the attendance and daily work of the Judicial Officers and for this purpose to issue orders from time to time was vested in the Administrative Bench.

(16) PURSUANT to the Royal Charter, the Hyderabad High Court Act III of 1337-F was passed on 17th Mehir, 1337-F. (10th September, 1928), and its Preamble recites that it has been passed to frame a comprehensive law for the High Court pursuant to Clause 14 of the Royal Charter. Section 1 of the Act may usefully by extracted. "this Act may be called the High Court Act, and it shall come into force in the whole of H. E. H. the Nizams Dominions from the date of its publication in the Jarida; and from the date of its enforcement the High Court Regulation dated 24th Rabi-ul-Awal 1302-H. , and Act No. V of 1314-F. , and all other acts, orders and Circulars so far as they are mere repetition of or are inconsistent with this Act, shall be deemed to have been repealed. "

(17) ACCORDING to section 2 (a), the definitions and provisions laid down in the Royal charter shall also apply to this Act. Thus the Act, which is enacted pursuant to the Firman, recognises the dichotomy of the judicial and administrative powers of the High Court, and the existence of an Administrative Bench which has to exercise the administrative powers. Further, such of the provisions of the Regulation of 1302-H. , and the Firman which do not repeat what has been provided for, or do not provide for anything inconsistent with what has been provided for by the Act, has not been repealed. It is against this background that we should enquire whether the powers of disciplinary control of the Administrative Bench over the gazetted judicial officers under the Regulation and Firman are in any way inconsistent with the Act. To put it differently, if there is nothing inconsistent in the Act, the provisions of the Regulation and the firman still prevail.

(18) CHAPTER IV of the Act is entitled "administrative Matters. " Section 12 therein provides that the Administrative Bench shall consist of at least two Judges who may be appointed by the Chief Justice for this work. The Chief Justice may constitute more than one Administrative Bench. Every question before the administrative Bench shall be decided either by consensus or by majority opinion.

(19) IN case of disagreement, action shall be taken in accordance with the view of the chief Justice, or with the opinion concurred by him. According to section 13, the Administrative Bench alone has the power tc recommend leave, or extension, or revocation of judicial powers, handing over to the Police in cases of offences relating to the service of clerks of the High Court, or to accord sanction, or to permit a Gazetted Officer, to avail leave. The following powers deserve to be specially noticed.-" The Administrative Bench shall have power. . . . . . (i) Excepting the employees and staff of the Judicial department whose appointing authority is vested in the Judicial Member and in the Judges of the subordinate Courts in accordance with the orders in force and in Chief justice of the High Court in accordance with section 14 of this Act, to sanction the appointment, promotion, transfer, demotion, suspension, fines, dismissal, extension of service and all kinds of Jeave excepting the casual leave in the case of the staff of all the Courts in H. E. H. the Nizams Dominions: (2) to move to the Government for the appointment, promotion, transfer, demotion, suspension, fines, dismissal and extension of service in the case of all gazetted officers to the Judicial Department and Government pleaders excepting the Judges of the High Court; but it need not so move for the transfer of Munsiffs, but it shall itself have authority to transfer them; * * * * * * (7) to pass order in appeal preferred under the rules in force against the administrative order of the subordinate Court; (19) to delegate, if necessary, to the Chief Justice or any Puisne Judge of the High Court, any of the powers mentioned in this section, with the exception of the powers exercisable under clause (7) of this section. " thus, according to section 13, sanctioning the appointment, promotion, transfer, demotion, suspension, fines, dismissal, extension of service, granting of all kinds of leave in the case of staff of all the Courts, is vested in the Administrative Bench.

(20) IT is very significant to note that according to section 13 (2), it is only the administrative Bench that can move the Government for the demotion, suspension, fine, dismissal or extension of service in the case of all gazetted officers, though not for transfers. But the important point to be noted is that even the transfer of a Gazetted Judicial Officer has to be made by the Administrative Bench, and not the Chief Justice. It is also significant to note that a distinction has been made between the administrative staff of the High Court and the subordinate judicial officers, and it is only the disciplinary control of the administrative staff that is excepted from the powers of the Administrative Bench. Pausing here for a while, we may mention that section 13 (2) only enacts that moving the Government for the dismissal of a gazetted officer of the Judicial department should be made by the Administrative Bench, but it has not stated as to who should hold the regular, or open enquiry, as it is called, against him. It is conceded, and we too agree, that there is no provision in section 13 or anywhere else in the Act dealing with this question. Thus while Paragraph 4 of the Firman provided that the regular enquiry, called Confidential Enquiry, into the misconduct of any gazetted officer should be made, by the Administrative Bench, there is no provision at all in the Act in that regard, and it is silent, and it cannot be said that the Act has repealed or made a provision inconsistent with what is provided for by the Firman in this regard. We are, therefore, of opinion that the power to order the conduct of the confidential enquiry into the misconduct of a gazetted officer, like a Munsif, continued to be vested in the Administrative Bench, but not the Chief Justice, till the Constitution came into force. In the instant case, as already noticed, the enquiry commenced in 1953, and the impugned orders of the Government were passed on 24th November, 1955 and 23rd June, 1956, that is, after the commencement of the Constitution and before the establishment of the High Court of Andhra Pradesh, and the case is governed by the law applicable to Part B States and the Hyderabad Civil Services (Classification, control and Appeal) Rules, 1952. We shall now examine whether the rules have effected any change with regard to the powers of the Administrative bench in the matter of disciplinary control over subordinate judicial officers. Articles 310 and 311 of the Constitution, subject to the exceptions enumerated in Article 310 (2), has adopted the English common law rule that public servants hold office during the pleasure of the President or the Governor or Rajpramukh as the case may be, but has provided a two-fold protection to public servants, viz, (1) against dismissal or removal by an authority subordinate to that by which they are appointed ; and (2) against dismissal, removal, opportunity to show cause against the action proposed to be taken against them. Article 313 lays down that until other provision is made in that behalf, all the laws in force immediately before the commencement of the Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all India Service or as service or post under the Union or State shall continue in force so far as consistent with the provisions of this Constitution. Thus, Article 313 gave sanctity to all the laws in the Hyderabad State in this regard immediately before the commencement of the Constitution and applicable to any public service, so far as they are consistent with the provisions of the Constitution, till appropriate, laws. are made by the Parliament or the State Legislature.

(21) ARTICLES 227 and 235 of the Constitution vest in the High Court the control and superintendence of all the Courts in the State. According to rule 6 of the Rules, the State Services consisted of services included in Schedule I and any other Gazetted posts which may be created in future, and were divided into Class I and Class II. Hyderabad Judicial Service is item No. 1 in the list of State Services. Rule 9 provides the several penalties that can be imposed upon the members of the services specified in rule 5, and it may be noted that the punishment provided in rule 9 (in) is withholding of increments or promotion, including stoppage at an efficiency bar, while the punishments provided in rule 9 (vi), (vii) and (viii) are compulsory retirement, removal from service, and dismissal from service, as already noted. Rule 13 expressly states that the High Court of Judicature at Hyderabad may impose suspension pending enquiry into grave charges under rule 17 (b) on members of the Hyderabad judicial Service holding posts inferior to the post of a District Judges. Rule 14 provides that no officer may be removed or dismissed by an authority subordinate to that by which he is appointed. The authority specified in column 3 of Schedules III and IV may impose the penalties specified in column 4 of that Schedule, or suspension pending enquiry into grave charges under rule 73 upon members of subordinate and inferior service, referred to in column 1 of the Schedule. There cannot be any doubt that the appointing authority in the case of gazetted judicial officers of Hyderabad State was the Rajprumukh, and no officer could be dismissed or removed by an authority subordinate to the Rajpramukh.

(22) RULE 17 of the Rules lays down the procedure to be followed when it is proposed to impose any of the punishments mentioned in Rule 9. According to Rule 17 (b) (i) when the punishment proposed to be imposed in on; falling under Rule 9 (iv), (vi), (mi) or (viii), the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, and the procedure to be subsequently followed was indicated. But it is silent as to who should be the enquiry officer, or by whom he should be appointed, or who should frame the charges. We shall advert to rule 17 and the other rules a little later. It is, significant to note at this stage that in the case of all ministerial officers, in the scales specified, in the office of the District and Sessions Judge, the authority empowered to appoint is the Divisional Bench of the High Court consisting of the Chief Justice and one administrative Judge, and this authority empowered to impose the penalties in sub-rules (vi), (vii) and (viii) of rule 9 is the Divisional Bench of the High Court, and the Appellate Authority is the Secretary to the Government, Home Department, and that in the case of other ministerial appointments, the District and sessions Judge is the appointing authority, and the authority to impose all penalties, but the appellate authority is the Divisional Bench of the High Court.

(23) IT is clear that under the Constitution, the High Court, in whom the disciplinary control vested, means the Chief Justice and the other Judges, but under the Hyderabad High Court Act and the laws preceding it, it is the Administrative bench of that High Court. The power of punishment even prior to the constitution was vested only in the Hyderabad Government, and it continued to be the same even after the Constitution. As regards the authority which could hold the enquiry, the Act and the other laws preceding it, which have already been referred to vested it only in the Administrative Bench, from which it would follow that order directing an enquiry as well as the appointment of an enquiry officer should be made by the Administrative Bench.

(24) WE may now mention the alternative argument of Sri Jaleel Ahmed, that even on a construction of the provisions of the Act, the same conclusion has to be reached. The learned Counsel appearing for the Government concedes that there is no express provision, nor an inconsistent provision as to who should appoint an enquiry officer, but he argues that the width and amplitude of the language in section 14 clause 35 of the Act included this power as well. It is, therefore, necessary to construe the relevant provisions. Section 14, omitting unnecessary clauses, read thus: "14. The powers of the Chief Justice of the High Court shall be as follows : (25) holding of preliminary inquiry into the misconduct of any non-gazetted officer or authorizing any superior Judicial Officer to hold an inquiry. (35) all such matters as are not expressly provided for in this Act, but which are necessary for the administration and control of the High Court or the subordinate Courts; the argument is that the control of subordinate Courts would take in the disciplinary control of the officers presiding over subordinate Courts, be they gazetted officers. Before considering the validity of this contention, we have to state that the English translation of the Urdu text of the Act in the Government publication is questioned by Sri Jaleel Ahmed. Clause 35 in Urdu, in Roman script is as follows : "woh jumal umoor jin kay mutalliq in ahkan maen sareeh alikam naheen hiain laikin jo adalat-ul-aliya kay ya adalath haaye matahat kay intezam we insiram-e-kar kay liyaye zaroor Han. "

(25) MR. Jaleel Ahmed translates it thus : "all those matters about which in this Act there are no express orders but which are necessary for the work of management and administration of the high Court and Subordinate Courts. " the translation supplied by the High Court staff is also to the like effect, viz. , "all such matters relating to which no express provision is made in this Act, but which are necessary for the administration and management and supervision of the High Court or the Subordinate Courts. " this is similar to para. 8 of the Firman, and is a repetition of that paragraph, that the Administrative Bench has power to supervise the attendance and daily work of the judicial officers, and for that purpose from time to time to issue necessary orders.

(26) THE English translation of section 14 (35), in the Hyderabad Code, which leads as if conferring on the Chief Justice the powers of disciplinary control on the gazetted judicial officers to the extent of directing an enquiry and appointing an enquiry officer in that regard, cannot be accepted as correct. It is very significant to note that when section 14 (25) only provided that the preliminary enquiry into the misconduct of non-gazetted officers by superior judicial officer shall be within the powers of the Chief Justice, it will not be right to construe that a similar power in the case of gazetted officers was intended to be covered by the residuary power under section 14 (35). On the other hand, the more reasonable construction appears to be that in the case of gazetted officers, the Legislature intended that that power should vest only in the Administrative Bench as before. We cannot, therefore, construe section 14 (35) as meaning that the power to hold a regular enquiry could be delegated to another Judge of the High Court by the Chief Justice, and not by the Administrative Bench. Nor is it possible to construe section 13 (2) as meaning that the orders of the Administrative Bench are not necessary for directing an enquiry to be held, or for appointing an enquiry officer, but they arc necessary only for recommending to the Government the punishment of reduction, dismissal, etc. , of a Judicial Officer.

(27) IT may also be mentioned that in all the decisions cited before us, there is not a single case where disciplinary action against a Gazetted Judicial Officer of Hyderabad State was initiated, or enquiry officer was appointed, only by the chief Justice. On the other hand, in all the cases placed before us, the enquiry was ordered by the Administrative Bench and held by it or its nominee. We, therefore, hold that it is only the Administrative Bench that could appoint the enquiry officer.

(28) THE Administrative Bench at the relevant time consisted of the Chief Justice and Jaganmohan Reddy, J. It is not disputed, and it is also evident from the records and the findings of the enquiry officer that Manohar Pershad, J. was appointed, as the enquiry officer in this case only by the Chief Justice, but not by the Administrative Bench.

(29) IN the case of subordinate Judicial Officers under the Constitutions the enquiry has to be ordered by the High Court and the enquiry officer also has to be appointed by the High Court. In case which went up to the Supreme Court from the Madras High Court, in which the validity of disciplinary enquiry against a Subordinate Judge for corruption and other charges was questioned, it was held by the Supreme Court that Rule 4 (1) (a) of the Andhra Civil Services (Disciplinary proceedings Tribunal) Rules, 1953, had not differed from the Rules obtaining in madras State in any substantial manner, and the contention that it was only the tribunal that could hold the disciplinary enquiry but not the High Court, was repelled, stating that if rule 4 of the Andhra Rules said anything to the contrary, it would be affecting the jurisdiction of the High Court to hold the enquiry into the conduct of subordinate Judicial Officers, and it would be in contravention of article 274 and 235 of the Constitution which vest in the High Court the power of control and superintendence of all the Courts in the State, and this view of the High court was affirmed, by the Supreme Court, (Vide Mohammad Ghouse v. The State of Andhra, 1957 SCJ 225 [LQ/SC/1956/109] : 1957 SCR 414 [LQ/SC/1956/109] : (SC.) 41 : A. I. R. 1957 S. C. 246, (1957) 1 An. W. R. (S. C.) 41 : (1957) 1 MLJ so even according to the Constitution and the Rules obtaining in the state of Andhra, it was only the High Court that could direct the holding of an enquiry. In that case the High Court deputed one of its Judges (Balakrishna aiyar, J.) to enquire into the charges, and he made that enquiry. After he submitted his opinion that the Subordinate Judge should be dismissed, it was placed before the High Court, which approved of it, and submitted the report to the Government for action, which is the appropriate authority under Article 311 to pass the ultimate order.

(30) THE argument of Sri Jaleel Ahmed is that where the enquiry is not directed by the proper authority, nor held by an officer appointed by a proper authority, the report of that officer, which forms the basis of the final order, is without jurisdiction and illegal, and vitiates the order, and he cited certain authorities in support of that contention.

(31) IN Jageram Malik v. State of Madhya Pradesh, AIR 1955 Nag. 160. a Sub-Inspector of Police of Madhya Pradesh was deputed to Hyderabad, and the enquiry was held against him in respect of acts committed in the State of Hyderabad, by a Madhya Pradesh police Officer, whose services were lent to Hyderabad State. There was no statutory provision permitting such an enquiry to be made against such an officer by an authority exercising jurisdiction in a Part B State, as Hyderabad State then was. The procedure that was followed at the enquiry was that in force in the Hyderabad State. It was held by Mudholkar, J. , (as the then was, and Sen, J. , that the enquiry could not be regarded as one falling under the Police Act and police Regulations of Madhya Pradesh, and that the proper thing to have been done was to retransfer the delinquent officer to Madhya Pradesh and enquiry made against him by the District Superintendent of Police. Regarding the question whether the Inspector-General of Police, Madhya Pradesh, could act on the basis of such enquiry, it was held that the enquiry must be in accordance with the police Regulations and the Circulars in respect of an officer belonging to Madhya Pradesh, and the enquiry must be by a person competent to hold it, that is, one on the Police Establishment of Madhya Pradesh, and subordinate to the inspector General of Police, Madhya Pradesh, the consequence of that not having been done is stated thus : "if an enquiry is held by anyone else, it cannot be regarded as an enquiry within the meaning of the Police Regulations. This defect is not cured by the transfer of the person to Madhya Pradesh just before a notice to show cause is issued to him. It follows, therefore, that the enquiry made by an officer exercising jurisdiction in Hyderabad State cannot form the basis of any action on the part of the Inspector-General of Police, Madhya Pradesh. " it was also pointed out that before an officer or authority can act under Article 311 (2), he must have before him material on which he can act, and that the material in the case before them consisted of a report made entirely by an unauthorised agency, and on that basis it was held that the Inspector-General of Police could not act.

(32) IN C. S. Rajagopala Ayyar v. Stale of Madras, AIR 1955 Mad 182 [LQ/MadHC/1954/200] , 187 rajagopala Ayyangar, J. (as he then was) was dealing with a case where an enquiry against a Stationary sub-Magistrate, a member of the Judicial Department, on a charge of corruption in his capacity as Magistrate was held by the Disciplinary Tribunal. In consultation with the Board of Revenue, the Government accepted the report of the Tribunal and ultimately passed the order of dismissal. The contention raised was that the disciplinary Tribunal had no jurisdiction to enquire into the complaint against the petitioner, because he was an officer of the Judicial Department, and that the Government could not refer his case to the Tribunal. His Lordship, dealing with the scope of Article 311 (2), in the context of non-observance of statutory rules, even though the delinquent officer might have had reasonable opportunity of showing cause against the action proposed to be taken against him, stated thus: "in my judgment the non-observance of the rules which have statutory force under Article 313 of the Constitution and the conduct of the enquiry by a. Tribunal or authority not competent to do so necessarily leads to the conclusion that the preliminary conditions subject to which alone the notice to show cause under Article 311 (2) could be issued have not been satisfied and it follows that the resultant order is in violation of Article 311 (2) of the Constitution. " in Darmendra Kumar Dikshit v. Superintendent of Police Katipur, AIR 1956. All 172. Mehrotra, J. . , held that an enquiry by an officer who had no power under the Police Regulations of the State to conduct the enquiry was without jurisdiction, and the order passed consequent upon that enquiry must be set aside.

(33) A Bench of this Court consisting of Chandrasekhara Sastry and Krishna Rao, J. ,. in Rallapalli Suryanarayana v. State of Andhra Pradesh, 1967 2 An. W. R. 253. had to deal with the scope of Article 311 of the Constitution. In that case the disciplinary proceedings were held against an Agricultural Demonstrator by the District Agricultural Officer, who framed charges and conducted the enquiry, and found the petitioner guilty of the several charges framed by him. He forwarded the minutes of enquiry to the Director of Agriculture who is competent to punish. The Director of agriculture incorporated the enquiry officers report and issued the show cause notice to the petitioners and, after receiving the explanation, passed an order terminating the services, and the said order was confirmed by the Government. A petition was filed for quashing the said order. Krishna Rao, J. , who spoke for the Bench, held that the punishing authority is admittedly the Director of Agriculture, and as such he is the only person entitled to initiate the proceedings, and that there was no statutory rule empowering the Director of Agriculture to delegate the functions of making the enquiry, and in fact, there has been no delegation by him to the District Agricultural Officer to conduct the enquiry, and that that fact was enough to come to the conclusion that the enquiry conducted by the District agricultural Officer was wholly unauthorised, and that the entire proceedings were vitiated. The learned Judges followed the decision in shardul Singh v. State of Madhya Pradesh, AIR 1966 MP 193 [LQ/MPHC/1965/183] . where it was held that in the absence of any statutory provision expressly or impliedly permitting the delegation of disciplinary powers, the disciplinary authority, if it decides that the disciplinary action should be taken against civil servant, must itself frame the charges and hold the enquiry against him and that the authority other than the disciplinary authority has clearly no power to frame on its own initiative, charges against a civil servant, and hold an enquiry into them.

(34) IN view of the foregoing discussion, we hold that under the Constitution it is the High Court that could direct an enquiry against a subordinate judicial officer and appoint one of the Judges as the enquiry officer, but according to the law in force in Hyderabad on the relevant date, it was the Administrative Bench that could hold the enquiry, or direct it to be held, by one of the Judges. Since the appointment of the enquiry officer in the instant case is admittedly not by the administrative Bench, we hold that the enquiry is wholly unauthorised, and that the report which formed the basis is without jurisdiction. The provisions of the firman and the Hyderabad High Court Act in this regard are preliminary conditions, subject to which alone the notice to show cause could be issued, and since they are not satisfied, we hold that the resultant order is in violation of Article 311 (2) of the Constitution. On behalf of the Government it, was also contended that there is no specific provision in the Act regarding the authority to appoint an enquiry officer and that section 13 (2) of the Act cannot be read so as to vest that power in the Administrative bench. But for the reasons already stated, we are unable to accede to this argument. Yet another argument advanced on behalf of the Government is that this objection was taken by the officer only after the show cause notice under Article 311 (2) was served on him. We do not find any force in this contention, because the charges which were served upon the officer by the Registrar on 13th August, 1953 did not state who was appointed as the enquiry officer, or by whom he was appointed, and the (plaintiff) came to know of the fact that the enquiry officer (Manohar Pershad, J.) was appointed only by the Chief Justice when a copy of the findings, Exhibit A-9, was supplied to him after the show cause notice was served. The officer could not, anticipate that there was any defect in the appointment, much less raise the objection earlier. Further, as held in c. S. Rajagopala Ayyar v. State of Madras,1. A. I. R. 1955 Mad. 182 [LQ/MadHC/1954/200] . and Dharmendra Kumar Dikshit v. Superintendent of Police, Kanpur, A. I. R. 1956 All. 172 [LQ/AllHC/1955/227] . the objection involves a complete lack of jurisdiction in the enquiry officer, which vitiates the entire proceedings, and it cannot be shut out on the ground that it was raised at a late stage during the enquiry. The learned Government Pleader called to his aid the, decision in Pradyat kumar Bose v. The Honble The Chief Justice of Calcutta High Court, 1956 S. C. J. 259 : 1955 2 S. C. R. 1331 : AIR 1956 S. C. 285.

(35) THAT was a case where the Registrar of Calcutta High Court was dismissed by the Chief Justice, and it was held that even on the assumption that Civil Service rules applied to the high Court staff, the power of dismissal vested in the Chief Justice, and that being the correct position even prior to 1950, the Constitution made no change in that respect, and Article 313 would continue Rule 52 of the Civil Service Rules. It was also held that Article 229, which in terms vests in him the power of appointment, is equally effective to vest in him the power of dismissal. We do not consider this decision to be of any assistance to the appellant in the light of the foregoing discussion.

(36) THE conclusion we have arrived at is sufficient to dispose of the appeal, But, since the other contentions were also raised and argued, we shall consider them. It is argued on behalf of the respondent that the impugned order is vitiated for another reason, viz. , the report of the enquiry officer was not considered by the administrative Bench nor was the recommendation made by it, as required by section 13 (2) of the Act. This contention is mainly based on the fact that on the findings of the enquiry officer, dated 3rd December, 1953, there is a note made by the Chief Justice, and not by the other member of the Administrative Bench (Jaganmohan Reddy, J.). This contention has no substance. The record reveals that after the enquiry by Mr. Manohar Persad, J. , the Chief Justice and mr. Manohar Pershad, J. , constituted the Administrative Bench which accepted those findings, and made the recommendations contemplated by section 13 (2). Section 12 of the Act empowers the Chief Justice to constitute more than one Administrative bench, and the fact that the Administrative Bench consisted of the Chief justice and Jaganmohan Reddy, J. , did not, in any way, render the construction of another Administrative Bench, consisting of the Chief Justice and Manohar pershad, J. , irregular or illegal. Further, the findings of Manohar Pershad, J. , were made on 3rd December, 1953, and the note on those findings by the Chief justice, dated 21st January, 1954, is to the effect that he had gone through the entire records as well as the confidential file, and that he completely agreed with manohar Pershad, J. , that there was overwhelming reliable evidence in support of the charges, and that the conduct of the officer was not only unbecoming of the position of a judicial officer, but apt to bring down the judiciary in the estimate of the public. The significant sentence with which we are now concerned is: "the F. A. B. is of the opinion that having regard to evidence against him and his previous conduct, he cannot be allowed to continue in service. Let a recommendation for his dismissal from service under Rule 9 (viii) of the Hyderabad Civil Service (Classification, Control and Appeal) Rules be sent to Government. " (We presume the letters "f. A. B. " stand for Full Administrative Bench.)The record reveals that a Draft was accordingly put up on 22nd January, 1954 and Jaganmohan Reddy, J. , agreed that the Draft should be issued. The letter addressed by the Registrar to the Secretary to the Government recites that he was forwarding for necessary action a copy of the finding dated 3rd December, 1953, of Manohar Pershad, J. , and duly approved by the Honble the Chief Justice on, 21st January, 1954 in the departmental enquiry against Sri Mazharuddin Ahmed ansari, Munsiff, Omerga, and it was recommended that the Munsiff Magistiate should be dismissed from service under rule 9 (viii) of the Rules. The argument advanced by the learned Counsel for the respondent is based on. the fact that in the said letter the Registrar had not stated that the recommendation of dismissal was made by the Administrative Bench. It is no doubt true that Exhibit b-10 could have been more explicit and stated that the Chief Justice and Manohar pershad, J. , constituted the Administrative Bench for the purpose, and that that was the recommendation of the Administrative Bench. That defect in Exhibit b-10 does not alter the facts as they existed. As already stated, the recommendation, sent to the Government was also approved by Jaganmohan Reddy, J. , who, along, with the Chief Justice, ordinarily constituted the Administrative Bench. It is perhaps for this reason that the Chief Justice, in his note said that the opinion that the officer should not be allowed to continue in service was the opinion of the (Full administrative Bench). Having regard to the fact that the Chief Justice made that endorsement within 1 months after the findings were submitted, we cannot doubt the correctness of that statement. In his explanation to the show cause notice, the plaintiff stated that it was not known whether any Administrative Bench was formed under section 12 of the Act, and also contended that Manohar Pershad, J. , could not be a member of the Administrative Bench, as he himself was the enquiry officer, reveals that the plaintiff knew about the constitution of that Administrative bench. In view of section 12, we cannot hold that the Constitution of the Administrative bench consisting of the Chief Justice and Manohar Pershad, J. , was irregular, much less illegal, or that section 13 (2) of the Act in the matter of recommendation to the government has not been complied with. The next question for consideration is, whether the final order is vitiated by reason of denial of the right of appeal. Rule 18 of the Rules (of 1952) provides generally for an appeal to every person who is a member of the services specified in rule 5 against an order imposing any of the penalties in rule 9 and other orders. Rule 19 is to the effect that a member of the State Services shall be entitled to appeal to H. E. H. the Nizam from an order passed by the Government. Rule 23 indicates the procedure to be adopted in disposing of the appeal, and it states that the appellate authority shall consider whether the facts on which the order is based have been established, whether the facts established afford sufficient grounds for action being taken, and whether the penalty is excessive, adequate, or inadequate, and after such consideration, pass such order as it thinks proper. It also lays down that any error or defect of procedure followed in imposing the penalty may be disregarded if the authority considers, for reasons in writing, that the error was not material, and has not caused injustice: to the person concerned, nor affected the decision.

(37) THE contention of Sri Jaleel Ahmed is that even though he preferred an appeal to the Rajpramukh as per these rules, it was not heard by the Rajpramukh, but by the Government and thus he was denied the right of appeal. Letter No. Spl. 930/judl. /3, dated 23rd June, 1956, enclosed to the covering letter of the Registrar, high Court, Exhibit A-40 which purports to be the order on the appeal preferred by the delinquent officer, is from the Secretary to the Government, Home Department, Hyderabad, and it stated that the representation of the officer was carefully cons decreed by the Government, which saw no reason to review the orders already passed in the case, and that the officer may be informed accordingly. It is quite evident that the representation was not placed before the Rajpramukh, much less considered by him, and that the order is only of the Government, treating the representation as a review petition. Sri Jaleel Ahmed contends, relying on the decision of the Supreme Court in garikapati Veerayya v. N. Subbaiah Choudury and others, 1957 SCJ 439 [LQ/SC/1957/10] : 1957 SCR 488 [LQ/SC/1957/10] : (S. C.) 1 : A. I. R. 1957 S. C. 540. : 1957 2 An. W. R. (S. C.) 1 : (1957) 2 M. LJ. to the effect that the right of appeal is not a mere matter of procedure, but is a substantive right, and that the institution of a suit carried with it the implication that all rights of appeal then in force were preserved to the parties till the rest of the career of the suit. It was ruled that the right of appeal is a vested right, and such a right to enter superior Court accrues to the litigant and exists as on and from the date the lis commences, and, although when it may be actually exercised is to be governed by the law prevailing at the date of the institution of the suit or proceeding, and not by the law that prevails at the date of its decision, or at the date of the filing of the appeal. Dealing with the question as to when the right of appeal is lost, the Supreme court, on a consideration of all the decisions, observed thus : "this vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment, and not otherwise. " for an appreciation of the contention raised it is necessary to state that the rajpramukh of Hyderabad, in supercession of the Hyderabad Civil Services (Classification, Control and Appeal Rules, 1952, framed Rules in 1955 in exercise of the powers conferred by the Proviso to Article 309 of the Constitution, Part II of these rules deals with classification of services, and rule 6 in that part states that the public services in Hyderabad shall be classified as follows : " (1) the State Services, Class I ; (2) the State Services Class II ; rule 7 states that the State Services Class I and Class II shall consist of the services included in Schedule I to the rules, and item 9 therein is the Hyderabad Judicial service. Part V of the Rules deals with appeals, and rule 25, omitting unnecessary words, reads as follows : "every person who is a member of any of the services specified in rule 6 shall be entitled to appeal to the extent and to the authorities as hereinafter provided, and not otherwise, from an order passed by an authority. . . . . . . . . . (a) imposing any of the penalties specified in rule 12. . . . . . . . Clause (vi) of rule 12 is compulsory retirement, clause (vii) is removal from service, and Clause (viii) is dismissal from service. According to rule 25 it is manifest that an appeal lies only to the authorities provided and to the extent provided, and not otherwise. There can therefore, be no doubt that these rules have taken away the right of appeal except as provided. Rule 27 states as follows : "a member of a service or holder of a post included in column 1 of Schedule iii and IV to these rules may appeal from orders passed in exercise of powers conferred by rule 18 to the authorities specified in column 6 of that Schedule : provided that, in cases of posts not included in column 1 of Schedule III and IV, the holder or holders of such posts may appeal from orders passed in exercise of the powers conferred by the proviso to rule 18 to the authority immediately superior to the authority imposing the penalty. "

(38) RULE 28 provides that a member of Class III or Class IV service may appeal from an order referred to in clauses (b), (c) and (d) of rule 25 to the authority to whom he would have been entitled to appeal under these rules had the order been an order of dismissal. It may be mentioned that the posts mentioned in column 1 of Schedule iii are subordinate services class III and the posts mentioned in column 1 of Schedule IV are the subordinate services in class IV. State services in class I and II are not mentioned in Schedules III and IV, with the result that those rules do not relate to them. Rule 35 which substantially reproduces rule 23 of the 1952 Rules, may usefully extracted : " (1) Only the appellate authority prescribed in there rules or any higher authority shall be competent to review, reverse, revise or alter an order imposing a penalty specified in rule 12 in case in which no appeal is preferred. (2) Notwithstanding anything contained in sub-rule (1), Government may, of its own motion or otherwise, review an original order or an order passed on appeal or revision for good and sufficient reasons to be recorded in writing : provided that:- (a) where the order passed is not in accordance with the advice the commission may have tendered in such a case, such orders shall not be passed except after reference to the Commission ; and (6) an order enhancing a penalty shall not be passed without following the procedure laid down in sub-rule (2) of rule 35 ".

(39) RULE 40 is in the following terms :-" An appeal pending at the time these rules come into force shall be deemed to be an appeal under these rules. " on a combined reading of these Rules it is clear that in the case of State Services classes I and II, the right of appeal has been taken away by the Rules of 1955, and the only remedy provided by rule 39 (2) is that the Government may of its own motion or otherwise, review the original order of punishment, or an order passed on appeal, or revision. In the instant case, the original order of punishment was passed by the Government, and there being no right of appeal, the Government could, for sufficient reason, review the same for reasons to be recorded in writing. The government, by their order dated 23rd May, 1956, declined to interfere as it saw no grounds for reviewing its earlier order.

(40) IN view of the foregoing discussion we cannot accept the contention of Sri jaleel Ahmed that the appeal should have been heard by the Rajpramukh under the Rules of 1952, and that the Rules of 1955 have not expressly taken away that right, and conferred only a right of review on the Government. The further argument that a right of appeal was provided in 1952 Rules, or by the Rules of Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules of 1964, is not relevant, as on the date when the appeal was preferred by the respondent the Rules of 1955 were in force, and they did not provide a right of appeal. The II Additional Chief judge also held that there was no right of appeal, but he arrived at that conclusion on an assumption of fact which is not correct. The learned Judge thought that the appeal was pending on the date the Rules of 1955 came into force, and was, therefore, governed by them, but that is obviously not correct. As already stated, the appeal was filed on 17th February, 1956, while the 1955 Rules came into force on 1st December, 1955. But that docs not affect his conclusion, and we hold that the Rules of 1955 had taken away the pre-existing right of appeal. We, therefore find no substance in this contention.

(41) THE next contention on behalf of the respondent is that according to the charge sheet, Exhibit A-3, served on him there were six charges and there were 19 instances or allegations in support of the charges, but in Exhibit A-9, the finding submitted by the enquiry officer treated the allegations as charges, and found that charges 7, 13, 15. 17 to 19 were not proved, but that the rest of the charges were proved and that he did not give a finding at all about the charges framed and that Exhibit A-9, is consequently vitiated. The learned Counsel relies on Rule 17 (b) of the 1952 rules and Para. 14 of the Procedural Instructions contained in Appendix I of the rules, in support of his contention. Omitting unnecessary words, rule 17 lays down : " (a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) (i) In every case where it is proposed to impose on a member of a service any of the penalties mentioned items (iv), (vi), (vii) and (viii) of rule 9, the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges, which shall be communicated to the person charged, together with a statement of the allegations of which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case. He shall be required, within a reasonable time, to put in a written statement of his defence and to state whether he desires an oral inquiry or only to be heard in person. An oral inquiry shall be held if such an inquiry is desired by the person charged or is directed by the authority concerned. At that inquiry oral evidence shall be heard as to such of the allegations as ars not admitted, and the person charged shall be entitled to cross-examine the witnesses to give evidence in person and to have such witnesses called, as he may wish, provided that the officer conducting the inquiry may, for special and sufficient reason to be recorded in writing. , refuse to call a witness. . . . . . . . . . After the inquiry has been completed, the person charged shall be entitled to put it, if he so desired, any further written statement in his defence. If no oral inquiry is held and if he had desired to be heard in person, a personal hearing shall be given to him. The proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. (ii) After the enquiry referred to in clause (i) has been completed and after the authority competent to impose the penalty mentioned in that clause has arrived at provisional conclusions in regard to the penalty to be imposed, the person charged shall be supplied with a copy of the report of the enquiring authority and be called upon to show cause, within a reasonable time not ordinarily less than one week, or exceeding one month, against the particular penalty proposed to be inflicted. Any representation in this behalf submitted by the person charged shall be duly taken into consideration before final orders are passed. (c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (e) All orders of punishment shall state the grounds on which they are based and shall be communicated in writing to the person against whom they are passed. NOTE :-For the procedure to be followed before an order of reduction, compulsory retirement, removal or dismissal is passed, please see the instructions contained in Appendix I. " para, 1 of the Instructions in Appendix I to the Rules laid down the procedure to be followed before an order of compulsory retirement, before completion of 25 years of qualifying service, removal or dismissal is passed against an Officer under rule 9 of the Rules, subject to the exceptions mentioned in rule 17 (c), and they were framed for the guidance of officers who have to hold an enquiry. Para 2 (b) requires the grounds on which it is proposed to take action to be reduced to the form of a definite charge or charges, which shall be communicated to the person charged together with a statement of the allegations on which each charge is based, and of any other circumstance which it is proposed to take into consideration in passing orders in the case. According to para 3, the grounds on which it is proposed to take action should be reduced to writing in the form of a series of definite charges. Each charge should be drawn up clearly and precisely, care being taken to avoid vagueness. Para 4 reads as follows :-" The charges so framed should be communicated to person charged together with a statement of the allegations on which each charge is based and other circumstances which it is proposed to take into consideration in passing orders in the case. The relevant allegations as to facts should be clearly stated, as well as the inferences which they appear to lead to ; and any circumstances which appear to support such inferences should also be clearly mentioned. Copies of the relevant documents if any, should also be supplied to him. In short, the person charged should be informed of the whole case against him in all its essential features. " para. 14, on which considerable reliance was placed, is in the following terms :-" After completing the oral enquiry, if any, and giving the person charged a further opportunity of making a written statement, the inquiry officer should record his findings on each charge, the reason for such findings and recommendations as regards the penalty on each of the charges. "

(42) THE argument on behalf of the respondent is that in the charge-sheet the distinction between allegations or grounds on which a charge is based, and the charge, has been maintained, and the complaint by the members of the Bar at Omerga was treated as containing 19 allegations, and, the officer was called upon to answer 6 charges, viz, (1) ante-Government feelings ; (2) disrespect for higher authorities ; (3) communal feelings ; (4) improper conduct ; (5) malpractices in the dispensation of justice ; and (6) behaviour unbecoming of a judicial officer. But that distinction was not eventually maintained by the enquiry officer as he treated those 19 allegations as 19 charges, and gave his findings thereon one way or the other, and did not give his findings on any of the six charges, and that has resulted in prejudice, and has vitiated the proceedings. It is further contended that all the allegations are vague, as they do not refer to the particular case, or the date or the time or the persons then present, and as a result thereof it became possible for the members of the Bar (complainants), who, for their own reasons, were not well-disposed towards him, to develop the case in the course of the enquiry. It is also submitted that though the allegations were only 19, in the charge-sheet, two more charges were added in the course of the enquiry. Further, one of the files summoned by him did not contain the material sheets, which would show that the officer took disciplinary action against some of the members of the Bar who made the complaint but the matter was not pursued by the enquiry officer, and no steps taken for their production.

(43) IT is also alleged that his prayer for the examination of the then Chief Justice, sri Misra, was not granted, and even the files that were produced and relied on by him were not taken into account by the enquiry officer in arriving at the findings. It is also contended that the enquiry officer threatened some of the defence witnesses, which prevented them from giving the evidence in favour of the officer. As held by the Supreme Court, it is not the violation of every rule that entitles a delinquent officer to attack the order of punishment imposed, unless he is able to establish that it has resulted in prejudice and denied a reasonable opportunity in his defence. In The state of Madras v. G. Sundaram, 1965 2 An. W. R. (SC) 140 : 1965 2 794. it was laid down by the supreme Court that where the State Government compulsorily retired a Police officer on the basis of the findings recorded by a Tribunal under the Madras Civil services (Disciplinary Proceedings Tribunal) Rules, 1948, the High Court in a writ Petition will not be competent to consider the question whether the evidence before the Tribunal was insufficient or unreliable to establish the charge against the Police Officer, and that it can consider only the fact whether there was any evidence at all, which, if believed by the Tribunal, would establish the charge against the Police Officer, and that adequacy of that evidence to sustain the charge is not a question before the High Court when exercising jurisdiction under Article 226 of the Constitution.

(44) THE position, is the same even when the order of punishment is challenged by a suit, and the civil Court does not sit as a Court of appeal and decide whether the conclusions of the enquiry officer were erroneous on facts or law ; vide state of Andhra Pradesh v. S. Kameswara Rao and another, 1957 1 An. W. R. 370 : air 1957 A. P. M. L. J. (SC) 140, 1965 2 SCJ 662. [LQ/SC/1964/269]

(45) IT may be mentioned that out of the 19 allegations of instances, the enquiry officer found that allegations 5, 7, 13, 15 and 17 to 19 were not proved. He also found that the last charge, evidently charge No. 21 (though not numbered)attacking the honesty of the officer was not proved. He held that the other charges were proved, that they were fairly serious, that the allegations were made by 17 out of the 21 pleaders practising at Omerga, that the charges when proved establish that the officer was in the habit of talking loosely in the Court room, that he insulted the Advocates, discussed pelilies in the Court room, and had ante-Government feelings, and that they arc serious charges, unbecoming a Judicial Officer, and, therefore, in his opinion, he should be dismissed from service. It is argued on behalf of the Government that though the enquiry officer had not connected the charge with the allegations, it is not at all difficult to do so, and on the findings arrived at it was not at all difficult to say which of the charges were proved. The learned Government Pleader pointed out that allegations 1,8,9,12 and 14 proved charge No. 1; allegation No. 2 proves Charge No. 2; allegations No. 3 and 4 prove charge No. 3, allegation No. 2 proves Charge No. 4, allegations 6, 16, 17 and 18 prove charge No. 5, and allegations 5, 7, 10, 13, 15 and 19 and 20 prove Charge no. 6. As already stated, the 2oth allegation related to the insulting of Advocates and their women. It may also be mentioned that the Chief Justice and the Full administrative Bench also treated the allegations as charges, and found that they were proved. Out of the allegations held proved by the enquiry officer and by the Administrative Bench, the Government in the show-cause-notice stated that 12 of the allegations, calling them charges, were deemed proved. In the impugned order of the Government, Exhibit A-39, it was stated that the charges in respect of which he was being compulsorily retired were misconduct and communal bias. The order has not specifically, referred to the allegations or the charges referred to in Exhibit A-3 as such. But the learned Government Pleader submitted that it nearly amounts to a finding that the six charges referred to in Exhibit A-3 were proved. The argument is that the six charges and the 20th allegation can broadly be classified as misconduct and communal bias, and hence it cannot be said that the Government had not found that any of the charges framed against him were not proved, and that in any event, even if there be a violation of the rules in that regard it had not resulted in any prejudice.

(46) IN State of Andhra Pradesh and others v. Sreerama Rao, 1. 1964 1 Anwr (SC) 120 : 1964 MLJ (Crl) 221: 1964 1 MLJ (SC) 120; 1964 1 SCJ 402 [LQ/SC/1963/105] : AIR 1963 SC 1723 [LQ/SC/1963/105] it was held by the supreme Court that the charge and the statement of facts accompanying the charge-sheet form part of a single document on the basis of which proceedings are started against the delinquent, and it would be hyper-technical to proceed on the view that though the delinquent was expressly told in the statement of facts which formed part of the charge-sheet about the ground of reprehensible conduct charged against him, that ground or reprehensible conduct was not included in the charge, and on that account the enquiry was vitiated.

(47) IT may be mentioned that some of the 19 allegations (treated as charges) viz nos. 2, 6, 9 and 11 do not refer to the cases in respect of which that misconduct, had occurred, nor gave any other particulars. In his explanation, Exhibit A-4, dated 25th August, 1953, the officer no doubt complained that in respect of Charge no. 1 viz, that he had ante-Government feelings, and charge No. 3 viz. , communal feelings, specific instances had not been given, which should have been done if true. With regard to the other charges, there was no such complaint, and he offered an explanation in respect of everyone of the 19 allegations. In respect of the additional charge, Exhibit B-8, dated 4th September, 1953, the delinquent officer submitted his explanation Exhibit B-9 denying it, and stated that the complaint was made at the instance of the Tahsildar who was inimically disposed towards him because he had conducted an inquiry for contempt of Court against him.

(48) TO the charge of corruption which was framed by the enquiry officer in the course of the enquiry also he submitted his explanation Exhibit A-7, on 25th September, 1953, and he stated that in the petition filed before the Chief Justice, exhibit B-7, there was no such charge and that the charge was framed on the strength of another petition which was not supplied to him and the depositions of some of the witnesses. In fact, the charge of corruption was held not proved by the enquiry officer. But the defendant contends that the procedure adopted is in contravention of the Rules referred above and that has prejudiced him. After the entire evidence was closed, the officer submitted his written arguments, Exhibit A-36 on 16th November, 1953, to the enquiry officer. He complained therein that the show cause notice did not precisely show on what allegation each of the charges was based, and that as it was not possible for him to argue charge-wise, be submitted the argument seriatim as given in the chargesheet. He also quoted verbatim some of he remarks made by the enquiry officer to the defence witnesses, which, according to him, deterred them from giving evidence in his favour. The enquiry officer observed in his report that occasions might arise when from the demeanour of the witnesses the Court might have reason to believe that either he is trying to hide something, or not speaking the truth, and that in fact in the course of his enquiry he felt the need of warning two defence witnesses, as he had reason to believe that they were not speaking the truth, but that it is objectionable if the warning amount to a vulgar abuse. It is also argued on behalf of the respondent that the affidavits filed by the complainants were given to him after 3rd November, 1953, though their evidence was recorded even from 17th or 18th September, 1953, and that he had consequently no chance to cross examine the deponents with reference to these affidavits. He referred to rule 17 and Para 4 and Para 2 of the Instructions in Appendix I, and contended that there was a violation of these statutory rules. The learned government Pleader replied by saying that the Officer had asked for those documents only at the conclusion of the enquiry and they were supplied. It cannot be gainsaid that there has been no compliance with the above Rules. The complaint that the files summoned by the Officer in support of his defence were not referred to is not wholly correct. It would appear from the report of the enquiry officer that while referring to the evidence of Kamalakar Rao, Advocate, and Dana Rao, he took into account the fact that the respondent started some proceedings against them, though the relevant files were not given exhibit marks.

(49) THE fact that the enquiry officer warned two witnesses was already referred to, but we cannot say that on that ground the witnesses failed to depose in favour of the officer, or that he was prejudiced. It is well settled that reasonable opportunity contemplated by Article 311 (2)has manifestly to be in accordance with the rules framed under Article 208 of the constitution. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to review by the Court. If the order of dismissal may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant, state of Orissa and others v. Bidhyabushan Mohabatra, AIR 1963 SC 779 [LQ/SC/1962/344] . In the instant case, though there was been non-compliance with some of the rules we are unable to held that it resulted in any prejudice to him or that it amounted to a denial of reasonable opportunity guaranteed by Article 311 of the Constitution.

(50) THE argument that the order of the Full Administrative Bench or of the government is not a speaking order, and that they do not show that the explanation was considered as required by rule 17 (e) of the Rules, cannot be accepted. This question was considered recently by the Supreme Court in State of Madras v. A. S. Srinivasan, 1967 1 SCJ 855 : 1967 2 Anwr (SC) 21 : 1967 2 MLJ (SC) 21 : air 1966 S. C. 1827 (1831). Gajendragadkar, C. J. , speaking on behalf of the Court, stated the position thus: " In dealing with the question as to whether it is obligatory on the State government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us somewhat unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal. It is conceivable that if the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusions of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the tribunal which arc against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi-judicial; but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to record reasons in every case. " applying this principle to the instant case, the position is that the endorsement of the Chief Justice dated 21st January, 1954 shows that the Full Administrative bench accepted the finding of the enquiry officer that there was overwhelming reliable evidence in proof of the charges, and that the conduct of the officer is not only unbecoming of a judicial officer, but apt to bring down the judiciary in the estimation of the litigant public. It was not necessary for the Full Administrative bench to reproduce all the findings of the enquiry officer with which it agreed.

(51) LIKEWISE, the order of the Government, Exhibit A-39, is based upon the report of the Administrative Bench, and, accepting the findings of misconduct and communal bias, and in consultation with the Public Service Commission, the Rajpra-mukh was pleased to pass that order. It is, no doubt, true that this order does not expressly say that it accepted the findings of the enquiry officer and the opinion of the Administrative Bench or that all the six charges referred to in the charge-sheet, Exhibit A-3, were found proved. But these six charges can broadly be classified under the headings of misconduct and communal bias, and the 12 charges (or allegations) enumerated in Exhibit A-8, the show cause notice, are instances of misconduct and communal bias. We cannot, therefore, say that either the recommendation of the Full Administrative Bench, or the show cause notice issued by the Government and the final order passed by the Rajpramukh, which accepted the findings of the enquiry officer and the opinion of the Public service Commission, are vitiated because reasons had not been given.

(52) THE learned Counsel for the respondent has cited decisions of the Supreme court and Madras High Court dealing with cases under the Preventive Detention act where the charges were vague, and the orders were quashed on the ground that Constitutional safeguards under the Act had not been granted. The learned counsel also cited R. Anantanarayanan v. General Manager Southern Railway, P. T. Madras, 1956 1 LLJ 29: AIR 1956 Mad 220. which was a case under Article 311. Adopting the observations in m. R. S. Mani v. District Magistrate, Madurai, 1949 2 ML J 310; AIR 1950 Mad 162 [LQ/MadHC/1949/118] , balakrishna Ayyar, J. , held that where action is proposed to be taken against a Government servant under rule 3 of the Railway Services (Safeguarding of National Security) Rules, 1954 for having been engaged in subversive activities, the charge which he is called upon to meet must be precise and accurate, and should not be so vague that it is not reasonably possible to answer it.

(53) IN Syed Mash-hood Ali and others v. The Secretary, Board of Secondary Education, government of Andhra Pradesh, Hyderabad, AIR 1962 AP 187 [LQ/TelHC/1960/255] basi Reddy, J. , was dealing with a case. where a student was charged with malpractice at an examination and was detained by the Board of Secondary Education on that around and his Lordship held that where there was no prescribed procedure it was incumbent upon the Board to observe the principles of natural justice in conducting the enquiry, viz. , that the person accused should know the nature of the accusation made; and that he should be given an opportunity to meet the case; and that the Tribunal should act in good faith. It was also held that reasonable opportunity meant adequate opportunity, and it pre-supposes that the person against whom the charge is levelled should be told with particularity and preciseness what the charge is and what the allegations are on which the charge is based.

(54) APPLYING these principles to the instant case we cannot hold that all the allegations on the strength of which the charges were held made out were devoid of particulars or that the officer on that ground was not given a reasonable opportunity. The judgment of Basi Reddy and Sastry, JJ. , in C. G. C. A. No. 4 of 1962 dated 3rd April, 1967, also relied on for the respondent, largely turned upon the facts of that case, and we cannot hold it having laid down any principle contrary to the decisions relied on by us. In this view, we cannot agree with the trial court that there was no consideration at all of the charges by the enquiry officer, nor finding on the several charges, or that the show cause notice as well as the order of punishment are defective on that ground.

(55) IN view of the foregoing discussion we hold that since the enquiry officer was not appointed by the Administrative Bench, the enquiry was vitiated, and that there has also been no compliance with the Rules in respect of the supply of documents. Regarding the other objections, we cannot say that that the violation of the Rules had resulted in any prejudice. In the result, we agree with the trial judge that the order of the Government compulsorily retiring the plaintiff from service is illegal, and void, and that he should be deemed to be in service. One of the prayers in the plaint was for a declaration that the order of stoppage at the efficiency bar is ultra vires, null and void, and that the plaintiff is entitled to get his yearly increments from the date of stoppage at the efficiency bar till the date of his reinstatement.

(56) THE learned trial Judge held that the order of the High Court, Exhibit A-42 dated 30th June, 1963, that the matter of allowing the plaintiff to cross the efficiency bar will be considered after six months, after which period he may renew his application was invalid. But he held that a civil Court cannot declare that he is entitled to get his yearly increments from the date of the efficiency bar till reinstatement, but only the High Court could allow him to cross the efficiency bar, and accordingly he gave an additional declaration that Exhibit A-42 is ultra vires, null and void. Sri Jaleel Ahmed for the respondent argued that we should ourselves declare that the plaintiff crossed the efficiency bar, and that he is entitled to all the consequential benefits in respect of salary and other emoluments as well as pension.

(57) HIS argument is that under rule 9 (iii) of the Rules, withholding of increment or promotion, including stoppage at an efficiency bar, is one of the punishments contemplated by it, and that under rule 17 (a) (iii) he should be given a reasonable opportunity of showing cause against that order, and since it had not been done, Exhibit A-42 is illegal.

(58) THE officer was in the usual course, due to cross the efficiency bar on 1st October, 1951. The complaint Exhibit B-7 on the strength of which the enquiry was started is dated 20th July, 1953, and the respondent was posted to Omerga only in July, 1953. According to rule 1 (b) of the Seniority Rules of 1950, the person stopped at an efficiency bar or a qualification bar shall be considered as a junior to persons, who, being in the same cadere of service to class of post, have crossed the Bar before that person. In the Hyderabad Civil Services (Classification, Control and Appeal) Rules, of 1955, however, the order of stoppage at an efficiency bar is not included in the list of punishments. The argument is that this case is governed by the Rules of 1952, and whether the officer crossed the efficiency bar or ist October, 1951, ought to have been decided in the light of his record of service so far, and that, if, for any reason the authority, i. e. , the high Court, felt that he could not be declared to have crossed the efficiency bar by reason of his unsatisfactory record, since it is a punishment, a reasonable opportunity ought to have been given to him under rule 17 (1) of the Rules, and the order, Exhibit A-42 which was passed without giving any such opportunity is illegal. It is also contended that in no event can the misconduct of the officer subsequent to 1st October, 1951 even if it resulted in a punishment could be taken into account in deciding the question whether he crossed the efficiency bar on 1st October, 1951. On that ground it is argued that the order of the Government, exhibit A-23, dated 8th October, 1956, stating that there was no question of crossing the efficiency bar, and that the case was closed, is unsustainable.

(59) IT is not necessary for us to express our opinion on the second contention. Suffice it to say that according to rules 9 and 17 already cited, a reasonable opportunity should be given to the officer before a final order is passed adverse to him on the question of his crossing efficiency bai, and that in the instant case, final order had not been passed adverse to the plaintiff on the question of his crossing efficiency bar. The order in Exhibit A-42 simply postponed by six months the consideration of the question and stated that the plaintiff may renew his application after six months. Admittedly, the plaintiff did not renew his application. This was due to events which subsequently took place culminating in the order of compulsory retirement. The order in Exhibit A-23 simply stated that in view of the compulsory retirement there was no question of plaintiffs crossing the efficiency bar and that therefore the case was closed. Now that the order of compulsory retirement has been set aside, and the basis for the order in Exhibit A-23 has ceased to exist, the question as to whether the plaintiff should be allowed to cross the efficiency bar has still to be considered. We, therefore, modify the decree of the trial Court, in that regard, and direct that, whether the officer can be declared to have crossed the efficiency bar, and, if so, whether it is from 1st October, 1951, or from a later date, will be considered and decided afresh by the High Court on the administrative side, after giving an opportunity to the plaintiff, and having regard to all the circumstances of the case. In the light of that decision, the decree with regard to the arrears of salary, etc. will stand modified.

(60) FROM the foregoing discussion, it follows that the appeal preferred by the government fails subject to the aforesaid direction in respect of the order of stoppage at the efficiency bar. The point urged on behalf of the respondent in his Cross-objections is that the trial Court has gone wrong in granting a decree for arrears of salary for three years on the basis that the salary drawn on 1st October, 1951, was Rs. 500 O. S. He submits that the learned Judge committed two mistakes: (1) in assuming that the basic salary on 1st October, 1951 was Rs. 500 O. S. and (2) that D. A. was not claimed. In the schedule attached to the plaint, the sums claimed therein were all in I. G. , but not o. S. The learned Counsel appearing for the Government could not dispute this fact, and it cannot be disputed, because a copy of the pay slip issued by the accountant-General in 12th March, 1954, which has been supplied in the material papers, establishes that the scale of pay of the respondent, Sri Mazharuddin Ahmed, is rs. 400-25-500-E. B.-30-800, and that on 1st October, 1953 his salary was rs. 500 O. S. and D. A. was Rs. 88 O. S. , i. e. , total Rs. 588 O. S. which is the amount claimed in the plaint. This amount was converted in the schedule attached to the plaint into I. G. as Rs. 504 I. G. , and the arrears of salary were claimed on that basis. It was also mentioned in the pay slip that the efficiency bar operated on Rs. 500, i. e. , on 1st October, 1951, and that the arrears of pay may be paid accordingly. It follows that the decree passed by the trial Court in respect of the arrears of salary should be varied on the basis that the monthly salary of the plaintiff on 1st October, 1952 was Rs. 504 I. G. The decree of the lower Court is accordingly modified, viz. , that there will be a decree for three years salary from 17th June, 1956 to 17th June, 1959 the date of the suit, at Rs. 504 I. G. per month as claimed in the plaint, less the deductions made in the decree.

(61) THE learned Counsel did not press his objection regarding the direction of the trial Court that he should pay the balance of Court-fee of Rs. 4,649 though raised in the Memorandum of Cross-objections. No other point has been argued. It follows that the decree of the Court below is modified in respect of : (1) the direction regarding the efficiency bar as indicated above : and (2) the arrears of salary for three years prior to suit, as well as subsequent suit on the basis that the monthly salary of the plaintiff on 1st October, 1951, including D. A. was Rs. 504 i. G. In all other respects, the decree is confirmed. In the result, the appeal substantially fails, and is dismissed with costs. The Cross-Objections are allowed to the extent indicated above. The parties will give and take proportionate costs in the Cross-Objections. Appeal dismissed; Cross-objections allowed in part.