P L D 1959 (W (PLP)

It appears that a reference was made to the West Pakistan High Court about re‑admission to service of clerks who had failed to pass the departmental examination, and acting on the advice received from the Lahore Registry, that such re‑admission was illegal, the petitioner was discharged from service on 18th December, 1956. His complaint now is that this order of dis charge is illegal and ultra vires. It is clear from the Sind Civil Services Rules Manual, Appendix 1 and II, that the District and Sessions Judge is the Head of the department for the clerical staff of the subordinate judicial service, and as the Head of the Department he is empowered to make temporary and permanent appointments. The rules which confer these powers upon him were framed by the Governor under section 241 of the Government of India Act, 1935. The petitioner's contention is that the District and Sessions Judge as Head of the Department was competent to make the second appointment, and he, after obtaining the second appoint ment, became a fresh entrant to the service and became entitled to appear in the next examination. He then passed the examina tion within 6 months of his second appointment and was con firmed in the post on 9‑10‑1956. His discharge from service when he was, a permanent incumbent was illegal. With regard to the advice, which came from the Registry at Lahore that re‑admission of previously discharged clerks was contrary to law, it has been said that the District and Sessions Judge was not in respect of that matter, under the control of the High Court, and was not bound by the advice received from Lahore Registry. The powers which a High Court possessed under the Constitu tion of 1956 in respect of its administrative functions were mentioned in para. 5 of III Schedule to the Constitution, which runs as under :‑ "

5. Administrative function of High Courts (1) Each High Court shall have superintendence and control over all Courts subject to its appellate or revisional jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may‑ (a) call for returns ; (b) make and issue general rules, and prescribe forms for regulating the practice and procedure of such Courts ; (c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts ; and (d) settle tables of fees to be allowed to the shariffs, attorneys, and all clerks and officers, of such Courts Provided that such rules, forms and tables shall not be in consistent with the provisions of any law for the time being in force, and shall require the previous approval of the Governor." The question for decision is whether this power of superintendence and control is exercisable over the powers of the District and Sessions Judge with which he has been invested by the rules framed under the Constitution. We are of opinion that the power of superintendence and control with which High Courts have been invested by the Constitution relate to matter of the categories specified in sub paragraph (2) of Para. 5 of the Third Schedule to the Constitution. Superintendence and control of that description does extend to powers which the District Judge possesses under the Rules framed by the Governor, in exercise of his authority under the Constitution. Members of the clerical . staff of the subordinate, judiciary are persons serving in connection with the affairs of the Province, and as such, are under the Rule‑making power of the Governor (see Article 182 (2) (b) of the Constitution of 1956) If the Governor had chosen under those Rules to keep the appoint ment and dismissal of the clerical staff of the subordinate judiciary in his own hands there could have been no dispute with that situation. The Governor in that case would not have been under the superintendence and control of the High Court. On the same view the District Judge is outside the superintendence and control of the High Court when he exercises power which the Governor has delegated to him under his Rule‑making power. The field which the Constitution has assigned to the Governor is closed to the High Court. We find that the Constitution in sub‑para. (1) of Paragraph 6 of the Third Schedule has conferred on the High Court, in respect of its own officers and servants alone, the power of appointment. Officers and servants of the High Court are persons serving in connection with the affairs of the Province and according to the scheme of the Constitution they should have been under the Rule‑making power of the Governor (see Article 182 (2) (b) of the Constitution of 1956). But out of respect for the High Court, and to ensure to it some degree of independence, a departure was made in relation to officers and servants of High Court only, and not in relation to servants and officers of the subordinate judiciary. This position, we agree, is somewhat anomalous in that it is' capable of creating a conflict of views between the Governor and the High Court. But it is evident from the scheme of the Constitution that complete and absolute independence was not conceded to the High Court and gulfs were left to be bridged by Acts of the Provincial and Central Legislatures. In this case we are ourselves surprised to discover that the petitioner was reappointed to the same post only after a day of his discharge. He was removed from service for his failure to pass the prescribed departmental examination at three chances which he had after six years of his service, and with that dis qualification staring him in the face, he was appointed to the same post on the following day. But since the District Judge was in law empowered to make that appointment, it could not be challenged by the High Court and in our view the discharge of petitioner on 18‑12‑56 on the advice received from the High Court was not legal as it was not based on any provision of law. K. B. A. Petition accepted.