)) IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 147 of 1997 in SPECIAL CIVIL APPLICATIONNo 983 of 1997 For Approval and Signature: Hon'ble MR.JUSTICE J.N.BHATT and MR.JUSTICE S.M.SONI ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? -------------------------------------------------------------- REGISTRAR Versus BJ PATEL -------------------------------------------------------------- Appearance: MR J.M.Thakore, Advocate General with MR S.N.Shelat, Addl. Advocate General with Mr DA BAMBHANIA for Petitioners MR Ram Jethmalani, Sr. Advocate with MR Haroobhai Mehta, Sr. Counsel with MR TS NANAVATI for Respondent. -------------------------------------------------------------- CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE S.M.SONI Date of decision: 24-28/04/97 ORAL JUDGEMENT (Per J.N.Bhatt, J.) Could the collective, consensual and coherent managerial wisdom on administrative side of the appellant-High Court of Gujarat, in passing the impugned order of transfer of a judicial officer exercising its constitutional powers under Article 235, be supplanted or implanted by the judicial wisdom, by the High Court, on its judicial side, exercising its constitutional powers of extra ordinary, prerogative, special and equitable writ jurisdiction enshrined in Article 226, that too at an interlocutory stage, in a matter of transfer, is the solitary but the substantial question for our appreciation and adjudication in this Letters Patent Appeal. Since the main writ petition is awaiting final verdict before the learned single Judge, we would like to mention only the skeleton projection of facts which are relevant and material for the purpose of appreciation and adjudication of the aforesaid dispute raised in this appeal. The respondent, herein, questioned the legality and validity of an order of transfer recorded by the appellant - High Court of Gujarat - exercising its powers under Article 235, by filing Special Civil Application No.983 of 1997, invoking the powers of Article 226 of the Constitution of India. The transfer order was recorded by the High Court, on 24th January, 1997, whereby, the respondent Judicial Officer, who was working at the relevant time as Chief Judicial Magistrate (CJM) in Baroda district came to be transferred, as Second Joint Civil Judge (SD) and JMFC in the city of Rajkot with immediate effect along with other incidental transfers. By filing the aforesaid petition, the respondent, inter alia, contended that she received the said order on 27th January, 1997 and left the charge of the office of the Chief Judicial Magistrate on the same day within no time so as to join at the transferred station. She, however, has challenged the order of transfer, mainly, on the ground that it was motivated and initiated on account of the representation made by the Commissioner of Police, Baroda, Mr Brar and thereby causing injury to the independence of judiciary. In that, she also alleged that in connection with one criminal case, she had issued notices which were not properly responded by the Commissioner of Police, Baroda, and, therefore, she was constrained to issue a notice for contempt. It was, therefore, contended that during the aforesaid period when said case was in progress, she received the order of transfer in the middle of the term though the transfers are, normally, effected on or about the period of summer vacation. It was also contended that she will suffer hardship on account of transfer as her children are receiving education and were preparing for examinations and as her husband is also working in Baroda as Joint District Judge in the higher judiciary. It was also contended that the transfer order is not legal as it was not the order of the Full Court as it was only passed by Standing Committee. It appears from the record and the impugned order of the learned single Judge that the personal grounds were not agitated. The maintainability of the transfer order was raised before the learned single Judge, which was not accepted. The learned single Judge has held that the impugned order of transfer cannot be said to be incompetent or without jurisdiction. It is also held that the order of transfer is not in violation of the provisions of Article 235. However, the learned single Judge has upheld the contention for interlocutory injunction against the implementation of the transfer order during the pendency of the petition, inter-alia, holding that the perception of the Standing Committee which took the decision of transfer was not proper, as a result of which, the interlocutory order staying the execution and the operation of the order of transfer came to be issued on 18th February, 1997. Though request was made to stay the order, it was not accepted as a result of which, the respondent took charge of the office of the Chief Judicial Magistrate, Baroda, without any formality, under the shelter of the interlocutory order granted by the learned single Judge. The manner and mode in which the charge came to be taken by the Chief Judicial Magistrate in the evening of 18th February, 1997, i.e. the same day on which the impugned order came to be passed, alleged to be not only unpleasant and unhappy, but ugly, unusual, shocking and startling to which further reference may be made hereinafter, if required. The original respondent, High Court of Gujarat, being aggrieved by the said interlocutory order and direction, has, now, come up before this Court by filing this appeal under Clause 15 of the Letters Patent. The appellant, High Court of Gujarat, has assailed the interlocutory order on various grounds. The learned Additional Advocate General, Mr Shelat, while appearing for the appellant, High Court of Gujarat, has seriously criticized the passing of the impugned interlocutory order, whereas, the learned Senior Counsel Mr Mehta, while appearing for the respondent-CJM has defended the impugned order with equal vehemence. We have heard the divergent submissions of both the sides at marathon length on different dates and both sides have relied on host of case law to which reference will be made by us at an appropriate stage, hereinafter. The impugned order of transfer is passed by the appellant, High Court of Gujarat, on its administrative side exercising its constitutional duties and powers under Article 235. Article 235 contemplates complete control of subordinate judiciary by the High Court. It would be, therefore, pertinent to refer to Article 235 at this juncture. It reads as under : "235. Control over subordinate courts : - The control over district courts and courts subordinate thereof including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law." It could very well be seen from the aforesaid provision that complete control is vested in the High Court on its administrative side. Article 235 of the Constitution of India, undoubtedly, prescribes control over the subordinate judiciary. There is purpose and policy behind it. The constitutional makers have designedly provided provision in Article 235 for complete control over the sub-ordinate judiciary by the High Court so that independence of judiciary doctrine could be very well subserved. The control over the subordinate judiciary by the High Court is exclusive in nature, comprehensive in extent and effective in operation. The High Court is, thus, the sole guardian and custodian as mandated by Article 235. We do not propose to enunciate or indicate that the administrative exercise of powers under Article 235 is beyond the purview of the provisions of Article 226 and 32 of the Constitution of India. Though, the administrative orders exercising powers under Article 235 are passed, they are subject to judicial review, but the question is of considering the extent thereof. Order under Article 235 is justiciable. But the extent and ambit of justiciability is very much circumscribed. In other words, the judicial review is permissible to an extent, namely, to probe and analyse decision making process itself only and not to examine the merits of the decision. It is a settled proposition of law that what should be the quality, what should be the standard, what should be the nature of order of a management or a master much less the High Court under Article 235, is not within the domain of judicial review. The parameters of judicial review under Article 226 and for that purpose under Article 32 are very much limited and narrow. Therefore, a court dealing with such an administrative order is obliged to address itself to this distinction. The constitutional history, undoubtedly, commands and demands that the parameters and the safeguards envisaged in Article 235 and 226 must be borne in mind while examining the merits of disputes and questions arising out of the orders of administrative nature. The role of the High Court exercising its power under Article 235 is not only a role of a manager or master, but it is a role of a guardian. It is also a role of a custodian and the position of the High Court vis-a-vis the judicial officers is also like a loco parentis. In order to effectively and efficiently perform its power as well as duties, the High Court on its administrative side is obliged to consider various aspects, various considerations and thereafter has to reach to a conclusion collectively. We may state at this juncture that the High Court acts on its judicial side through Benches. But the decision of any Bench is a decision of the High Court. Likewise, the High Court acts on its administrative side through Committees, but the decision of the Committee is a decision of the High Court. What we try to emphasise is that the decision taken by the Committee is reflecting the collective will and wisdom of the High Court. The powers of this Court under Article 226 of the Constitution of India are, no doubt, very wide, but are circumscribed in certain parameters and are to be exercised in a limited circumference. Any and every administrative order is not challengeable with the aids of Article 226. Extraordinary, special, prerogative, plenary, equitable powers of writ court are required to be exercised essentially for the prevention of violation of constitutional provisions or statutory provisions. They are also required to be exercised in the light of the recent developments in the administrative law. Article 226, therefore, can be employed in a given case when illegality is perpetrated or manifest injustice is done in violation of the principles of natural justice. The powers under Article 226 are discretionary. They are circumscribed. When an administrative order is challenged before the Court under the help or aids of the provisions of Article 226, what is required to be shown is that the person, management or the authority or decision making institution has taken the decision which is vitiated either because of non-observance of principles of natural justice or in violation of the principles of law or on the ground of proved strong case of malafides. It is not designed to substitute the just and meritorious administrative orders or decisions. It is not devised to supplant the managerial action or discretion. What is designed is to see as to whether the "decision making process" is just proper and legal and without any contamination. If the decision making process is found to be free from any vice or quite fair or quite reasonable, it is not for the High Court to question the nature of the decision, the type of the action and the quality of the action. Otherwise, the role of the Court under Article 226 would not be supervisory but it would become a role of an appellate Court. It is a settled proposition of law that the role of the Court while exercising its power under Article 226 is not that of an appellate Court. It is not what is decided to be seen. It is 'how' decided, that is to be seen. If 'how' says free, fair, just, reasonable, then 'what' become immaterial. The Court cannot substitute the managerial decision or administrative wisdom. These parameters must be borne in mind by us. It is, therefore, rightly said that the powers of the Court under Article 226, though very very wide, are circumscribed to an extent in selected spheres and fields. It may further be noted that the role of a Court under Article 226 is still narrower in case of a challenge against the order of the Management arising out of service jurisprudence. The recent trends and the recent developments in the administrative law, undoubtedly, go to show that transfer is a concomitance of service. It is an inherent incident of service. It cannot be objected ordinarily. When it could be objected is also highlighted in catena of judicial pronouncements. So, limited role assigned to a Court in a writ jurisdiction is still narrower in a challenge of an order of transfer. What is required to be seen by the Court when a question is raised with the help of Article 226 against the order of transfer which is passed by the Management, much less collective decision of the High Court, is as to whether any vice like malafide, violation of principle of law has tainted the decision of the authority. If the answer is 'no', the matter ends. Who should be posted, where should be posted, how should be posted, why should be posted are some of the questions, absolutely, falling exclusively within the domain of the management and the master. Of course, the orders are required to be passed on public ground, on the ground of administrative exigencies, and if the orders of transfer are recorded on these grounds, which are unquestionable and without any contamination, they cannot be challenged much less with the aid of extraordinary, equitable, prerogative powers under Article 226 of the Constitution of India. Article 226 of the Constitution reads as under : "226. Power of High Courts to issue certain writs -- (1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority , including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1) without (a) furnishing to such party copies of such petition and all documents in support of the plea of such interim order; and (b) giving such party an opportunity of being heard; makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or as the case may be, the expiry of the said next day, stand vacated. (4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32." What we try to highlight is that the extent and the ambit of writ jurisdiction in a case of challenge against the order of transfer is very much circumscribed. Again, we may say that it is very very circumscribed i.e. it is the narrowest, at an interlocutory stage. Ordinarily, the decision recorded by the Management or the order passed by the administration, apparently, is without any tint of illegality or malafide cannot be successfully stayed or stopped. What we have to deal with here is an order of transfer recorded by the High Court on its administrative side exercising its ex-ordinary constitutional powers under Article 235 which came to be stopped and intercepted, enroute, at the interlocutory stage substituting it by a judicial order in place of the collective wisdom of this Court on the administrative side. Could it be said to be legal and valid ? The administrative law is developing very fast. So is the case of fast developments in service jurisprudence. Ordinarily, it is for the master or the management to decide the administrative problems and take appropriate administrative decisions. Whereas, in the present case, the administrative decision of a transfer is taken by the constitutional authority exercising its constitutional powers under Article 235 and that too after collective, consensual, careful analysis and assessment of the factual reality that prevailed in courts, at Baroda, at the relevant time. Before we discuss the merits of the rival submissions raised before us so vehemently, we would like to highlight certain facts and aspects which are very relevant and very material for the purpose of the question in focus before us which have remained unimpeachable. (1) The impugned order of transfer recorded on 24th January, 1997, by this Court on its administrative side on its plain perusal is simpliciter passed on administrative ground. (2) It does not, prima-facie, appear to be in any way stigmatized or in any way punitive as well. It is purely, prima facie, passed on public ground. (3) The respondent-CJM is belonging to higher judiciary of Gujarat. She had been working before the impugned order of transfer came to be recorded at the same place of Baroda for more than three and a half years along with her spouse who is also in the higher judicial service as Joint District Judge. (4) There is no dispute about the fact that, ordinarily, a transfer takes place at the end of three years. Respondent continued along with her husband at Baroda upon her request for more than 3 years. (5) The respondent, no doubt, left the charge immediately on receipt of order of transfer on 27th January, 1997, but did not report to the transferred station. (6) She made an oral representation against the order of transfer before the Registrar on the same day and also written representation to the Hon'ble Acting Chief Justice of this Court on 29th January, 1997 and immediately on the next day, i.e. on 30th January, 1997, she filed Special Civil Application No.983/97, challenging the order of transfer on the judicial side invoking the powers of Article 226 even without waiting for a reply for a day. (7) She did not report to the transferred station and instead took charge of the office of CJM, Baroda under the shelter of judicial order that was passed on 18th February, 1997 in a manner and mode which is alleged to be unpleasant, unusual, ugly and objectionable, prima facie, cannot be ruled out. (8) The transfer order is passed on collective decision of the High Court which is founded upon the report of the learned unit Judge of this Court who has been in charge of the Baroda unit. It was initiated by the learned Senior District Judge of Baroda against whom there is no even whisper of malafide or any allegation. (9) There is no dispute about the fact that the representation filed by the respondent against transfer has not been disposed of. It appears from the record that leave is also not sanctioned. Therefore, though she left the charge on 27th January, 1997, without getting the leave sanctioned, without reporting at the transferred station, took over the office of Chief Judicial Magistrate under the shelter of the interlocutory order dated 18th February, 1997 in a manner which is, prima facie, noticed tobe objectionable. (10) There is no even allegation of malafides or bias or arbitrariness in the main petition. (11) Equally true is the fact that there is no allegation of breach of provisions of law or any rule. (12) Transfer is prima facie made on the administrative exigencies in absence of any malafide and breach of provisions of law or rule. (13) Transfer is on the equivalent post after 3-1/2 years period. Transfer is normally done at every 3 years of service at one station. (14) Impugned order ex-facie does not show that celebrated 3 principles of law i.e. (1) prima facie case (2) balance of convenience and (3) irreparable injury, were considered as such. (15) The approach and attitude of any person much less a responsible Commissioner of Police in not obeying and complying the order of the court is alleged to be also objectionable and contemptuous. But the merits of the allegation in this behalf by respondent against the Commissioner of Police cannot be examined in absence of Commissioner being a party who though initially was impleaded as a party respondent in the petition came to be deleted. (16) It be mentioned that respondent deleted the Commissioner of Police as a party from the record for the reasons not made known to us. There is also no any allegation against him. (17) The Commissioner of Police, inter alia, contended in the representation that after FIR having been lodged with the particular police station, the magistrate has no jurisdiction to transfer the investigation or to interfere with the ongoing investigation in cognizable offences as per the provisions of law and settled proposition of law and he being the public officer, like any other litigant was entitled to the correctness and legality of the judicial orders passed exparte. He had, therefore, taken legal actions by filing 5 revision petitions in the Sessions Court against certain orders of respondent-CJM. It was, therefore, stated by him that the learned CJM (respondent) was out to somehow lower the prestige and position of the office of C.P. by making him appear in the court of CJM. It was also contended that in trivial matters, he was required to appear "in-person" though he was not at all involved. It is also stated in the representation that as many as five revisions were filed and they were pending when again contempt notice was issued. It was in this context, the High Court was requested to consider the prejudicial approach of the CJM. (18) The letter dated 10.1.97 of CJM to CP asking C.P. to appear before the court personally on 13.1.97 and to explain why action should not be taken against him for disrespect of the court and failure to do so ex-parte criminal contempt action shall be initiated which letter was challenged by CP by filing Revision before Sessions Court, at Baroda and the letter is stayed by the Sessions Court. Despite that, Commissioner of Police, Vadodara, has tendered unqualified apology before this Court in M.C.A. No.249/97