I 31

STATE OF UTTAR PRADESH A

BATUK DEO PATIL TRIPATHI & ANR.

February 21, 1978

(M. H. BEG, C.J., Y. V. CHANDRACHUD, P. N. BHAGWATI,_P. S.

KAILASAM, V. D. TULZAPURKAR, JJ.]

Co111vulsory retirement of a District Judge from service on the opinion recorded by the Administrative Committee constituted under rule 1 of Chapter III of the Rules of the Allahabad High Court, 1952 framed under Art. 225 of the Constitution, whether valid-Authorising the Administrative Committe~ .consis1f11g of its own judges does not an1ou111 to self-abnegation of the High Court's powers.

Constitution of India, 1950, Articles 216, 225 and 235-The High Courts have the power to frame rules for regulating the manner in which the control vested in it niay be exercised.

Chi! Service Regulations, Art. 465, 465A-Powers of Gorernment to compulsorily retire.

The Allahabad High Court, in exercise of powers conferred upon it by Arl. 225 of the Constitution and all other powers enabling it in that behalf has framed Rules, known as the Rules of Court, 1952. Under Rule 1 of Chapter III of the Rules, an Administrative Committee composed of the Chief Justice, the- Judge in the Administrative Department and five other judges appointed by

the- Chief Justice was constituted to act for the Court. Under Rule 7, all matters laid before the Administrative Committee and the manner in which those matterswere disposed of are to be circulated in a statement to all the Judges of the Court for their information. ·

In one of the meetings of the Administrative Committee of the High Court which \Vas held on January 9, 1974, it was resolved by the Committee that respondent NO. 1 should be retired' compulsorily ftom service. The Registrar of the High Court communicated the decision of that Committee to the State Glivernment on January 15, 1974 and thereafter on January 17, 1974 circulated the minutes of the Committee's meeting to the other judges of the High Court for ''their information". The Governor of U.P. accepted the recommendation F of the Administrative Committee and retired respondent 1 compt'tlsorily by an order doted February 27, 1975 .

. _ Respondent 1 assailed the said orders by an application under Art. 226, mte'r-Cilia, on the ground that "the order is illegal inasmuch as it was passed on the recommendation of the Administrative Committee, while Art. 23 3 of the Constitution requires consultation by the Governor with the entire High Court aild not with a Committee consisting of a few Judges of the High Court". This ground found. favour ith the Division Bench which heard it.

But considering G that uch a view. was hely to upset the settled practice of the Court and that it was; likely to be tn. conflict with that Court's decision in Civil Misc. No. 1254 of 68 dt. 23-2:70, the_Y directed tat !he papers of the case be placed before . the learned Chief Justice for constituting a Full Bench to consider the question "whetlier in view of Art. 233 of the Constitution consultation with the entire High Court is necessary before making an order of compulsory retirement agairtst the District Judge ?"

Tht;: _Division Bench and initially the FUU Bench heard arguments on the II suppos1t1on, that the_ ewer to retire a District Judge compulsorily is an incident of te:powet of apomtment contained in Art. 233(1) of the Constitution which proVides that appointments of persons to be and the posting and promotion of

District Judge in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to sucb state.

After the Full Bench reserved its judgment this Court held in liigh Cour/ of Punjab and Haryana v. State of Haryana and Ors., [1975] 3 S.C.R. 365 that compulsory retirement of a District Judge is not an incident of the power of appointments conferred by Art. 233 of the Constitution but is' an incident of the control rested in the High Court by Art. 235. Consequently, the Full Bench reframecl the question referred to it as "whether a District Judge can be compulsorily retired from service on the opinion recorded by the Administrative Committee constituted under Rule I of Chapter Ill of the Rules of the Court ?

The Ful1 Rench also framed an additional question viz. "Whether circuJation of a statement to all the Judges of the Court showing what matters were laid before the Administrative Committee and the manner in which these matters were disposed of amounts to consultation with the Full Court ?

.1\sthana CJ., who presided over the Full Bench answered both the question-; in the negative. K. N. Singh and C. S. P. Singh JJ. agreed by a separate judgement with the learned Chief Justiee.

M. N. Shukla and H. N. Seth JJ. took a contrary view and held that a District Judge can be compulsorily retired from service on the opinion recorded by the Administrative Committee.

They did not consider it necessary to express any opinion on the second question.

The Writ Petition was allowed; according to the majority view, by the Division Bench. A consequential declaration was granted by the Bench that respondent No. 1 should be treated as continuing in service and was entitled to all the privileges pay and allowances which were permissible and payable to him under the Jaw.

Allowing the appeal by special leave and -affirming the minority judgment ol the Fun Bench, the Court

HELD : 1. (a) The minority view of the Full Beneh that Rule I of Chapter Ill of the 1952 Rules framed by the Allahabad High Court is within the frame work of Art. 235. The recommendation made by the Administrative Committee that the respondent should be compulsory retired does not suffer from any legal or constitutional infirmity. [145 El

(b) The amplitude of the power conferred by Article 235, the imperative need that the High Courts must be enabled to transact their administrative business more conveniently and an awareness of the realities of the situation, particularly of the practical difficulties involved in a consideration by the whole Court, even by circulation, of every day-tCHlay matter pertaining to control over the District and subordinate Courts, lead to the conclusion that by rules framed under Art. 235 of the Constitution, the High Courts ought to be conceded the power to authorise an AdministratiVc Judge or an Administrative Committee of Judges to act on behalf of the Court.

[145 D-E]

(c) It is wrong to characterise as "delegation" the process whereby the entire High Court authorises a judge or some of the Judges of the Court to act on behalf of the whole Court. Such an authorisation effectuates the purpose ot art. 235 and indeed without it the control vested in the High Courts over the subordinate Courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Court's constitutional functions.

Judicial functions ought to occupy and do in fact consume the best part of a Judges time. For balancing these two..fold functions it is inevitable that the adlninistrative duties should be left to be discharged by some on behalf of all the Judges. Judicial functions brooke no such sharing of responsibilities by any instrumentality. [144 D-FJ

(d) The Administrative Judge or the Administrative Committeeis a n1ere instrumentality through which the entire Court acts for . the more convenient transaction of its business, the assumed basis of the arrangement being that_ such instrunientalities will only act in furtherance of the broad policies evolved from time to time by the High Court as a whole. Each Judge of the High Court is

~-\

U. P. V. B. D. TRIPATTII 133

an integral limb of the Court. He i~ its qlterego. It is. therefore inappopriate

to say that a Judge or a Committee of Judges of the High Court authonsed by the Court to act on its behalf is a delegate of the Court.

[144 G-H]

2. (~) 1be majority view of the High Court Full Bench that by lt!aving th_e decisiOn of the question of the respondent's compulsory _reti_rement to e m1nistrat.i.ve Committee, the Court had abdicated its Constitutional function 1s not correct.

[142 G-H]

(b) According to the view of the 1najority the .act of the Court in allowing the Administrative Committee to decide that question under Rule 1 of Chapter ill of the .Administrative Committee to decide that question under Rule 1 _at Chapter III of the 1952 Rles is an ac~ of "self-anegation" and therefore, votd.

This approach betrays a misunderstanding of Article 235.

[142-H]

(C) The ideal which inspired o provision (Art. 235) that th~ control ov~~ District Courts and Courts subordinate thereto shall vest 1n the High Court is that those wings of the judiciary should be independent of the executive. It is in order to effectuate that high purpose that Article 235 requires that all matters rt.lating to the subordinate judiiary includin~. compulsory retirement , and ~1s~1plinary proceedings, but excluding the impos1t1on of punishments falhng within the sccpe of Article 311 and the first appointments and promotions, should be dealt with and decided upon by the High Court. [142 H, 143 A-Bl

l/igh Court of Punjab & Haryana v. State of Haryana and Ors. [1975] 3 SCR 365, Shamshcr Singh. v. State of Punjab, [19751 1 SCR 814; State of Haryana v. Indra Prakash, A.l.R. [19761

S.C. 1841; Mfara (B.) v. Orissa High Court, A.T.R. [1976] S.C. 1899; West Ben.al

v. Nripendra Nath Baghchi A.I.R. [1966] S.C. 447 referred to.

(d) There is no parallel between what the High Court did in Shamsher Sing/i and ~; hat has been done in the instant case. In Shmnsher Singh v.

State of Punjab the action of the High Court in asking State Governrnent to depute the Director of Vigilance to hold an inquiry against a judicial officer was deprecated by this Court as an act of "self-abnegation" The High Court had abdicated therein its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting judge, by surrendering that power to the executive. That truly was an act of self-abnegation. Here, the decision to compulsorily retire the respondent was taken by the Judges of the High Court itself though not by all. If some but not all judges of the High Court participate in a decision relating to a matter which falls within the High Courts' controlling jurisdiction over subordinate courts, the High Court doe~ not efface itself by surrendering its power to an extraneous authority. The procedure adopted by the High Court under its Rules is not subversive of the independence of tho subordinate judiciary which is what Article 235 recognises and seeks to achieve. [143 C-F]

Shamsher Singh v. State of P1tnjab [1975] 1 SCR 814; explained & distinguished. '

. 3: Art .. 225, it is true, preserves, inter alia the pre-constitution powers of eXISting High Courts .to frame rules and the High Court of Allahri.bad did not prior t.o. the e!1actment of the <;:onstitution, possess the power to frame rule~ G authorts1ng a Judge or a Committee of judges of the High Court to act on behalf of the Court.

But Article 225 is not the sole repository of the High Court's power to frame rules.

[140 E-FJ

4. 'fhe High Court has the power under Art. 235 itself to frame rules for regulatng the manner in which the cop.tri;>l vested in it may be exercised. The relevant part of Art. 23 5 of the Constitution provides that the control over Dist, ict Courts and Cou'!' subordinate thereto shat! be vested in the High Court.

Smee Article 21~ provides that evry High Court shaU consist of a Chief Justice H nnd sue~ other _Judges as the President may from time to time deem it necessary to. appc1nt, Article 235 bas to .be construed to mean that the control over District Conm and Courts subordinate thereto is vested in the entire body of

judges who together constitute the High Court and not in the Chief Justice as representing the High Court or a smaller body of judges acting as an Adminis trative Committee. [140 G-H]

5. (a) But, though the control over subordinate Courts is vested institu-· tionally in the High Courts by Article 235, it does not follow that the Hish Courts have no power to prescribe the manner in which that control may in practice be exercised. In fact, the very circumstance that the power of control, which comprehends matters of a wide-ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make the exercise of control. feasible, convenient and effective. The seeds of jurisdiction to frame rules. regulating the manner in which the control over subordinate Courts is to be exercised are thus to be found in the very nature of the power and in the fact that the power vests in the entire body of Judges.

[140 H, 141 A-BJ

(b) The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the

power itself and indeed, without it, the eXercise of the power may in practice oe fraught with difficulties which will frustrate, rather than further, the object of the power. It is undoubtedly true that the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory lit character.

The reason is that under the guise of framing rules, the essence ot tbe power cannot be permitted to be diluted. The abstract power of the High Court to frame the impugned rules cannot be doubted and must be conceded.

[141 B-EJ

6. The power to compulsorily retire the respondent could be exercised by the Court either under Note I of 465A or Note I of article 465 of the Civil Service Regulations.

[146 CJ

CIVIL APl'El.LATE JURISDICTION : Civil Appeal No. J 070 of 1977.

(Appeal by special leave from the Judgment and Order dt. 18-4-77 of the Allahabad High Court in Civil Misc. Writ No. 3561 of 1975)

S. N. Kacker, Sol. General & 0. P. Rana, for the Appellant.

S. N. Misra, E. C. Agrawala, M. M. L. Srivastava & U. S. Prasad for the respondent.

The Judgment of the Court was delivered by

CHANl>RACHUD, J.-Respondent I, Batuk Dea Pati Tripathi, joined the Judicial Service of the State of Uttar Pradesh as a Munsif in 1943 and after intervening promotions, he was appointed as a District Jud~ on April 13, 1969.

Under Note (1) to Article 465-A of the Civil service Regulations, as adopted for application in Uttar PraUesh, the State Government may at any time, without assigning any reason, require any oftlcer to retire on three months' notice or pay in lieu of the whole or part thereof after he has attained the age of 50 years.

Such decision is required to be taken by the Government in its Administrative Department and only if it appears to it to be in public interest to do so.

Some time in 1969 the State Government requested the High Court of Allahabad, respondent 2 to this appeal, to screen cases of judicial officers in order to determine which of them should be retired compulsorily under the aforesaid provision. In one of the meetings of the Administrative Committee of the High Court which was held on January 9, 1974, it was resolved by the Committee that respondent 1 should be retired compulsorily from service.

The Registrar of the High Court communicated the decision of the Administrative Committee. to the State Government, appellant herein, and thereafter, he

I ~

""' • '

circulated to all the Judges of the High Court, for their intimation, the decision taken by the Administrative Committee.

The Governor of U .P. accepted the recommendation of the Administrative Committee and retired respondent 1 compulsorily by an order dated February 27, 1975.

Respondent 1 filed a writ petition under Article 226 of the O:mstitution against the State of Uttar Pradesh and the Allahabad High Court challenging the validity of the a; foresaid order on the following grounds:

(I) The order is illegal since no salary was paid to respondent 1 at the time when the order was passed;

(2)

(3)

The order is really in the nature of punishment since it casts a stigma and is therefore contrary to Article 311 of the Constitution;

Article 4(55-A of the Civil Service Regulations in so far it purports to empower the Government to consult the administrative head of the Department before passing an order thereunder, contravenes Article 233 of the Constitution;

( 4) The order Wa.'i p; u; sed on irrelevant considerations since the High Court had taken into account the character roll entries of respondent 1 prior to the date when he was allowed to cross the efficiency bar;

( 5) The order is arbitrary, capricious and perverse; and the satisfaction that it was in public interest to retire respon dent 1 compulsorily was based on no material;

(6) The order was passed by the Governor without any application of mind since it was passed in pursuance of a general policy agreed upon between the Governo, r and the Chief Justice of the High Court, that recommendations of F the High Court for retirement of judicial officers should be accepted without scrutiny; and

(7) The order is illegal inasmuch as it was passed ou the recommendation of the Administrative Committee while Article 233 of the Constitution requires consultation'by the Governor with the entire High Court and not with a G committee consisting of a few Judges of the Court.

A Division Bench od' the High Court consisting of Gulati and C. S. P. Singh, JJ. rejected the first six contentions by their judgment dated December 5, 1975.

On the 7th contention they were inclined to the view that Article 233 of the Constitution postulates consultation with the entire High Court and therefore the High Court in the exercise of its rule-making power cannot delegate its function to a smaller body.

But considering that such a view was likely to upset the settled practice

of the Court and that it was likely to be in conflict with the decision in Civil Misc.

Writ No. 1254 of 1968 dated February 23, 1970, they directed that the papers of the case be placed befQre the learned Chier Justice for constituting a Full Bench to consider the question "whether in view of Article 233 of the C, onstitntion, consultation with the entire High Court is necessary before making an order of compulsory retirement against the District Judge".

The Writ Petition was then placed for hearing before a Full Bench of the High Court consisting of five learned Judges.

The Division Bench and initially the Full Bench heard arguments on the supposition that the power to retire a District Judge compulsorily is an incident of the IJ9Wer of appointment contained in Article 233 (1) of the Constitution which provideS that appointments of persons to be and the posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

After the Full Bench reserved its judgment, this Court held in High Court of Punjab and Haryana v.

State of Haryana & Ors.(') that the initial appointment and initial

promotion of District Judges reste~ with the Governor, but once they were appointed or promoted to be District Judges the entire controt over them was vested in the High Court.

The power of the Governor in the matter of appointment included the power of dismissal, removal and reduction in rank but since compulsory retirement is neither dismissal, removal nor reduction in rank the power in that behalf vests in the High Court and not in the Governor: In view of the judgment of this Cour_t referred to above and certain other judgments, it i~ clear that compulsory retirement of a District Judge is not an incident of the powers of appointment conferred by Article 233 of the Constitution but is an incident of the control vested in the High Court by Article

235. Consequently, the Full Bench reframed the question referred to it as follows :

"Whether a District Judge can be compulsorily retired from service on the opinion recorded by the Administrative Committee constituted under rule 1 of Chapter III of the Rules of the Court".

The Ful1 Bench also framed an additional question,

"Whether circulation of a statement to all the Judges of the court showing what matters were laid before the Administrative Committee and the manner in which those matters were disposed of amounts to consultation with the Full Court"_

Asthana, C.J., who presided over the Full Bench, answered both the questions in the negative, K. N. Singh and C. S. P. Singh, JJ., agreed by a separate judgment with the learned Chief Justice.

M. N. Shukla and H. N. Seth, JJ. took a contrary view and held that a District Judge can be compuloorily retired from service on the opinion recorded by the Administrative Committee.

They did not consider it necessary to express any opinion on the second question.

(!) A.LR 1975 S.C. 613 ; [1975] 3'.S.C.R. 365.

The Writ Petition then went back to a Division Bench for disposal A which, in accordance with the majority view, set aside the order by which respondent 1 was compulsorily retired and allowed ths petition.

A consequential declaration was granted by the Bench that respondent 1 should be treated as continuing in service and was entitled to all the privileges, pay and allowances which were permissible and payable to him under the law.

Being aggrieved by the judgment, the State of Uttar Pradesh has filed this appeal by special leave.

Since the High B Court of Allahabad which was impleaded as respondent 2 to the Writ

Petition had no effective contentions to make in the matter, we will for the sake of convenience refer to respondent 1 as "the respondent".

The main question for consideration is whether a District Judge can be compulsorily retired from service on the basis of the opinion recorded by the Administrative Committee constituted under rule 1 C of Chapter III of the Rules of the Court. It is necessary for a determination of this question to refer to the relevant Rules of the Allahabad High Court.

The High Court, to .the exercise of the powers conferred upon it by Article 225 of the Constitution and all other powers enabling it in that behalf, has framed Rules known as the Rules of Court, 1952. The D relevant rules contained in Chapter Ill of the Rules are these :

CHAPTER III

EXECUTIVE AND ADMINISTRATIVE BUSINESS OF THE

COURT

1. Subject to these Rules, a Committee of Judges composed of the Chief Justice, the Judge in the Administrative Department and five other Judges to be appointed by the Chief Justice, referred to in these Rules as the Administrative Committee, shall act for the Court.

The Chief Justice shall have the charge of, and may act for the court in the Administrative Department and the executive and administrative business pertaining to the Court, except that the Judge in the Administrative Department shall have charge of, and may act for the Court in the Administrative Department and the executive and administrative business pertaining to the Courts subordinate to the Court.

As far as possible, the Judge in the Acfministrative Department shall discharge his duties and functions in consultation with the Inspection Judges concerned, who shall be appointed by the Chief Justice from time to time.

The membership of the Committee shall be for two years except in the case of the Chief Justice and the Judge in the Administrative Department.

2. From time to time and as occasion arises the Chief JuHice shall nominate one of the Judges to act as the Judge in !he Administrative Department. whose terms of office shall be three years nnless renominated.

10-211 SCI/78

3. All executive and administrative business and all business in the Administrative Department requiring orders, . . . . shall be submitted by the Registrar to the Chief Justice or the Judge in the Administrative Department, as the case may be, together with his comments thereon, if any, and may, subject to these Rules, be disposed of by that Judge.

B 4. The Judge in the Administrative Department shall, bec

fore passing final orders, cause to be circulated for the information of the Judges of the Administrative Committee then present in Allahabad, his recommendatiOns as to the appoint- ment, promotion or suspension of judical officers.

Should any Judge dissent from such recommendations, he shall signify his dissent and his reasons therefor in writing.

5. (1) In regard to the following matters the Judge in the Administrative Department shall consult the Administrative Committee either by circulating the papers connected with the matter together with his own opinion or recommendation thereon to the members of the Committee then present in Allahabad or by laying it before a melting of the Administrative Committee, namely-

(a) the issue of General Letters to subordinate courts;

(b) the issue of directions regarding the preparation of returns and statements;

(c) all matters of importance upon which the Govermnent desires the opinion of the Court;

(d) appointment of the U.P. Higher Judicial Service; and

(e) any other matter which the Chief Justice or the Judge in the Administrative Department may consider fit to be laid before it for consideration.

(2) Copies of all General Letters issued to subordinate cp\nts shall be circulated to all Judges for information as soon as may be after issue.

7. As soon as the Administrative Committee has disposed of any buiness, a statement showing what matters were laid before the Committee and the manner in which they were disposed of shall be circulated for information to all Judges except such Judges as may be on leave.

8. On the following matters all Judges sli.all be consulted, namely-

(a) proposals as to legislation or changes in the law;

(b) proposals as to changes in or the issue of new Rules of Court;

...

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U.P. v. B. D. TIUPATHI (Chandrachud, J.)

I 39

(c) proposals as to changes in or the issue of new rules

(d)

{e)

(f)

\g)

(h)

(i)

for the guidance of subordinate courts;

withholding of promotion, supersession or reduction of judicial officers, not occasioned by the selection of officers for appointment to the U.P. Higher Judicial Service;

important questions of policy or those affecting the powers and status of the Court;

matters connected with the Supreme Court;

annual administration report due for submission to Government before it is adopted by the Administrative Committee;

deleted.

any other matter which the Chief Justice of the Administrative Committee may consider fit to be laid before them for consideration.

12. So far as convenient, papers for circulation shall be sent by D the Registrar to the Judges at Allahabad and at Lucknow in therr order of seniority, commencing with the junior Judge. The Registrar shall so far as practicable, obtain from each Judge such papers within three days from the date when the same are sent to him. The Registrar shall endorse on the papers the date when they are sent to, and the date when they are received back from each Judge.

It shall not be necessary to send papers to any Judge who is not for the time being in Allahabad or Lucknow .

13. When a Judge does not write his opinion within thre days from the date when he receives any urgent paper sent to him for opinion, he shall be deemed to have declined to express any opinion on the matter .

14. After any papers have been circulated for opinion, they shall be submitted again, according to the subject-matter thereof, to the Chief Justice or the Judge in the Administrative Department and he may either direct that the opinion of the majority of the Judges including his own be given effect to or lay the matter for consideration before a

Judges' meeting or a meeting of the Administrative Committee, as the case may be.

15. The Chief Justice may call a judges' meeting or a meeting of the Administrative Committee whenever there is business to be disposed of:

Provided (i) That a Judges' Meeting shall be called once every three months excluding the summer vacation;

(ii) further that if a request is made to the Chief Justice by not less than 5 Judges to call a meeting such meeting shall be called within a week of the request.

17. The quorum necessary for the transaction of business shall be three in the case of a meeting of the Administrative Committee and seven in the case of a Judges' meeting.

18. In case of a difference of opinion at a Judges' meeting or a meeting of the Administrative Committee the decision shall be in accordance with the opinion of the majority of the Judges present, and in case the Judges present be equally divided, the Chief Justice or in his absence the Senior Judge present shall have ai casting vote."

A question was mooted as regards the power of the High Court to frame rules under Article 225 of the Constitution authorising a Judge or a Committee of Judges of the High Court to act on behalf of the whole court.

Article 225 provides, in so far as material tuat the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court, shall be the same as immediately before the commencement of the Constitution.

It is urged that Article 225 merely saves the pre-Constitution powers of High Courts in certain matters and since under the Letters Pafont of the High Court of Judicature at Allaliabad, the Government of India Acts of 1919 and I935 and the U.P. High Court Amalgamation Order 1948, the High Conrt of Allahabad did not possess the power to frame rules authorisiiig either a Judge or an Administrative Committee of Judges to act on behalf of the whole court, •he Rules of Court framed by the High Court in 1952" are beyond its competence in so far as they authorise the Administrative Judge or the Administrative Committee to act on behalf of the court.

Article 225, it is true, preserves inter alia the pre- Constitution powers of existing High Courts to frame rules and it may be assumed for purposes of argument, an assumption which h largely borne out by provisions of the laws mentioned in the preceding paragraph, that the High Court of Allahabad did not, prior to the illict ment of the Constitution,' possess the power to frame rules authonsing a Judge or a Committee of Judges of the High Court to act on behalf of the court.

But Article 225 is not the sole repository of the High Courts' power to frame rules. The relevant part of Article 235 of the Constitution provides that the C011trol over District Courts . and courts subordinate thereto shall be vested in the High Cuurt.

Since Article 216 provides that every High Court shall consist of a Chief Justice aud such other Judges as the President may from time to time deem it necessary to appoint, Article 235 has to be construed to mean that the control over District Courts and courts subordinate thereto is vested iu the entire body of Judges who together consfitute the High Court and not in the Chief Justice as representing the High Court or an Administrative Judge or a smaller body of Judges actmg as an Administrative Committee.

But though the control over subordinate courts is vested institutionally in the High Courts by Article 235, it does not follow that the High Courts have no power to pres.

cribe the manner in which that control may in practice be exercised.

U; P. v. B. D. TRIPATffi (Chandrachud, 1.) 141

fo fact, the very circumstance that the power of control, which comprehends matters of a wide-ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make rn~ exercise of control feasible, convenient and effective.

The seeds ot the jurisdiction to frame rules regulating the manner m which the control over subordinate courts is to be exercised re thus to be focmd in the very nature of the power and in the fact that the power vests in the entire body of Judges.

The High Court has, therefore, the power under Article 235 itself to frame rules for regulating the mam1er in which the control vested in it may be exercised.

fhe power to do a thing necessarily carries with it the power tc> regulate the manner in which the thing may be done. It is <111 incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power. It is undoubtedly true that the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory in character. The reason is that under the guise of framing rules, the essence of the power cannot be permitted to be diluted.

But that is a separate matter which we will consider later. The limited object of the present discussion is to show that High Courts possess the power under Article 235 to prescribe the manner in which the control over subordinate courts vested in them by that article may be exercised. That explains why the Allahabad High Court framed Rules of 1952 not only in the exerdse of power possessed by it under Article 225, but fn the exercise of all other powers enabling it in. that behalf. One of such powers is to be found in Article 236 itself and therefore the abstr&ct power of the High Conrt to frame the impugned rules cannot be doubted and mnst be col)ceded.

We call such a: power 'abstract' in order to prepare the gromi<l for consideration of the main point involved in the appeal.

The High Court may possess the power to frame rules under Article 235

and yet the rules framed by it may be bad because they are derogatory to the terms of that Article. In other words, if by Article 235 the control over subordinate courts is vested in the High Court as a whole, is it permissibl_e to h". High Court to provide by framing. a rnle that a matter falling w1thm the area of control may be decided, not by the whole court, but by a Judge or a Committee of Judges actmg on behalf of the court ? That is the first question which the Full Bench of the High Conrt fonrlulated for its consideration.

Cpnlsory retirement of Judges ., f the District Court and of , suboramate courts_ ls a matter which falls squarely within the power

cf _control vested m the High Courts by Article 235 of the C011stitut10n .. That 1s clear from the decisions of this Court in High Court

.o; J_ Pun1ab and Haryana v. State of Haryana and Ors.('), Shamsher

Singh v. State of Punjab(2), State of Haryana v. lndre Prakash(")

{1) A.I.R. 1975 S.C. 613--'[1975] 3 S; C.R. 365.

(2) [19751 1 S.C.R. 814.

(3) A.LR. 1976 S.C. 1841.

and B. Misra v. Orissa High Court('). The respondent was compulsorily retired from service as a District Judge on the recommendation of the Administrative Committee of the High Court; and it is clear from the facts and sequence of events that the other Judges of the High Court had no effective opporiunity to consider the propriety or correctness of the decision of the Administrative Committee recommending to the State Government that the respondent be retired compulsorily.

The resolution of the Administrative Com .. mittee is dated January 9, 1974. The Registrar of the High ourt communicated the decision of that Committee to the State Government on January 15, 1974. The Registrar circulated the minutes of the Administrative Committee's meeting of January 9 to the other Judges of the High Court on January 17, 1974.

We were shown the minutes and the Registrar's letter of January 17, from which it is clear that the Judges to whom the minutes we're circulated made their initials or signatures thereon in token 'only of the fact that they were informed of the decision of the Administrative Committee. They have neither expressed their concurrence nor their dissent which, indeed, goes to show that Rule 7 merely contemplates, what it says, that as soon as the Administrative Committee has disposed of any busiuess, a statement showing what matters were laid before the Committee and the manner in which they were disposed of shall be circulated "for ·

information" to all the Judges.

But the language of Rule 7 and the shape of events leave unanswered the first question whether a power vested in the Court as such can, with the considered consent of the Court itself, be exercised on its behalf by a Judge or a Committee of Judges of that very Court.

The reasou for referring to Rule 7 and the formal treatment which the other Judges gave to the Registrar's circular informing them of the decision taken by the Administrative Committee is to emphasize that the first question framed by the Full Bench has to be answered on the basis that the other Judges of the High Court were not consulted upon and had no occasion or cipportugity to consider the justness, propriety or necessity of the decision taken by the Administrative Committee that the respondent be retired compulsorily.

Havinc, given our close and anxious consideration to that question, we regret that we are unable to share the view of the majonty of the High Court Full Bench that .by leaving the decision of the question of the respondents compulsory retirement to the Administrative Committee, the Conrt h; od abdicated its constitutional function.

According to the view of the majority, the act of the Court in ailowing the Administrative Committee to decide that question under Rule 1 of Chapter III of the 1952 Rules is an act of "self-abnegation" and therefore void.

This approach betrays, with respect, a misunderstanding of the object of Article 235. The ideal which inspired the provision that the control. over Disti; ict Courts an~ conrts suorii; iate thereto shall vest in the High Court 1s that those wings of the Jud1c1ary

(ll

A.I.~. 1976 S.C. 1899.

should be independent of the executive.

Tracing the history of that A concept, Hidayatullah, J. in West Bengal v. Nripendra Nath Baghchi(') has highlighted the meaning and purpose of Article 235. It is in order to effectuate that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to tlie subordinate judiciary including compulsory retirement and disciplinary proceedings but excluding the imposition of punishments falling within the scope of Article 311 and the first appointments and promotions B should be dealt with and decided upolll by the High Courts in the exercise of the control vested in them.

A proper understanding and appreciation of this position will be conducive to a correct assessment of the situation under examination in the instant case.

For, knowing that the object of Article 235 is to ensure the independence of an important wing of the judiciary, the inquiry which assumes relevance is whether the procedure sanctified by the Rules of the High Court is C in any manner calculated to interfere with or undermine that independence.

Does that procedure involve "self-abnegation'', by conceding lhe right of control to any outside authority ? It is pertinent, while we are on this question, to know the context in which the expression "self-abnegation" was used by this Court. In Shamsher Singh v. State of Punjab (supra) the action of the High Court in asking the State Government to depute the, Director of Vigilance to hold an inquiry D against a judicial officer was deprecated by this Court as an act of self-abnegation.

The High Court abdicated its control over the subordinate judiciary, which includes the power to hold a disciplinary inquiry against a defaulting Judge, by surrendering that power to the executive.

That, truly, was an act of self-abnegation. There is no parallel between what the High Court did in Shamsher Singh and what has been done in the instant case.

Here, the decision to compulsory retire the E respondent was taken by the Judges of :the High Court itself, though not by all. If some but not all Judges of the High Court participate in a decision relating to a matter which falls within the High Courts' controlling jurisdiction over subordinate courts, the High Court does not efface itself by surrendering its power to an extraneous authority.

Tuel procedure adopted by the High Court under its Rules is not subversive of the independence of the subordinate judiciary, which is what F Article 235 recognises and seeks to achieve. The tnie question then for decision is not the one by which the majority of the Full Bench felt oppressed but simply, whether the procedure prescribed by the High Court Rules is in any other manner inconsistent with the terms of Article 235 of the Constitution.

Yet another misconception may now be cleared. It is urged on G behalf of the respondent by his learned counsel Shri Misra that under Article 216, 'High Court' means the entire body of Judges appointed to the Court and therefore, the control over the subordinate judiciary which is vested by Articfo 235 in the High Court must be exercised by the whole body of Judges.

The thrust of the argument is that the High Court cannot delegate its functions or power to a Judge or a smaller body of Judges of the court.

This argument requires consideration of H the question whether any delegation as such is involved in the process

(!) A.I.R. 1966 S.C. 447.

A whereby a Judge or a Committee of. Judges of the court, like the Administrative Committee in the instant case, is authorised by the whole court to act on behalf of the court.

For answering this question it is necessary in the first place to bear in mind that the power of control over the subordinate courts which is vested in the High Courts comprises such numerous matters, often B involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of those matters, the exercise of control instead of becoming effective will tend to cause delay and confusion in the administration of justice in the State.

A construction which will frustrate the very object of the salient provisions contained in art. 235 ought, as far as possible, to be avoided.

The control vested in the High Courts by that article comprehends, ace cording to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within art. 311,. decisions regarding compulsory retirements, recommendations for imposition of major penalties which fall within art. 311, entries in character rolls and so forth.

If every Judge is to be associated personally and directly with the decision on every one of these matters, several important D matters pertaining to the High Court's administrative affairs will. pile into arrears like court arrears. In fact, it is no exaggeration to say that the control will be better and more effective exercised if a smaller committee of Judges has the authority of the court to consider the manifold matters falling within the purview of art. 235. Bearing in mind therefore the nature of the power which that article confers on the High Courts, we are of the opinion that it is wrong to characterise as E 'delegation' the process whereby the entire High Court authorises a Judge or some of the Judges of the Court to act on behalf of the whole Court.

Such an authorisation effectuates the purpose of art. 235 and indeed without it the control vested in the High Court over the subordinate courts will tend gradually to become lax and ineffective. Administrative functions are only a part, though an important part, of the High Courts' constitutional functions.

Judicial functions ought to oc- F cupy and do in fact consume the best part of a Judge's time.

For balancing these two-fold functions it is inevitable that the administrative duties should be left to be discharged by some on behalf of all the Judges.

Judicial functions brooke .no such sharing of responsibilities by any instrumentality.

The Hig)l Court has not by its Rules authorised any extraneous authority, as in Shamsher Singh (supra) to do what the Constitution enables and eml'cowers to do.

The Administrative Judge or the Administrative Committee is a mere instrumentality through which the entire Courts acts for the more convenient transaction of its business, the assumed basis of the arrangement being that such instrumentalities will only act in furtherance of the broad policies evolved from time to time by the High Court as a whole.

Each Judge of the High Court is an integral limb of 'the Court. He is its alter ego. It is therefore inappropriate to say that a Judge or a Committee of Judges of the High Court authorised by the Court to act on its behalf is a delegate of the Court.

I ___..

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Since a Judge of the High Court or an Administrative Committee A consisting of High Court Judges is, for the purposes of matters falling within art. 235, not a delegate of the High Court, the principle enunciated by S.A. de Smith in his famous work on Judicial Review of Administrative Action (3rd edn, 1973, P. 263) that a discretionary power must, in general, be exercised only by the authority to which it has been committed has no application.

The various cases discussed by the learned author have arisen, as stated by him at p. 265, in diverse con- B texts and many of them tnrn upon unique points of statutory interpretation. The true position as stated by the author is :

"The maxim delegatus non-palest delegere does iwt emmciate a rule knows no exception; it is a rule of construction to the effect that "a discretion conferred by statute is prima facie intended to be exercised by the authority on which the statute has couferred it and by no other authority, but this intention may be negatived by any contrary indications found in the language, scone or object of the statute."

We have pointed out above that the amplitude of the power conferred by art. 235, the imperative need that the High Courts must be enabled to transact their administrative business more conveniently and on awareness of the realities of the situation, particularly of the practical difficulties involved in a consideration by the whole court, even by circulation, of every day-to-day matter perta.ining to control over the District and subordinate Courts, lead to the conclusion that by rules framed under art. 235 of the Constitution the High Court ought to be conceded the power to authorise on Administrative Judge or an Administrative Committee of Judges to act on behalf of the Court.

Accordingly, we uphold the minority judgment of the Full Bench that rule 1 of Chapter III of the 1952 Rules framed by the Allahabad High Court is within the framework of art. 235.

The recommendation made bv the Administrative Committee that the respondent should be compulsorily retired cannp't therefore be said to suffer from any legal or constitutional infirmity.

Learned counsel for the respondent also argued on the other contentions involved in the remaining six issues which were decided against the respondent by the Division Bench prior to the reference made by it to the Full Bench. We see no substance in any of those contentions.

There are no words in the order of the compulsory retirement casting any stigma on the respondent and therefore the grievance that the order is in the nature of punishment is unjustified.

The statement made on behalf of the Government on matters of public policy in which it was claimed that corrupt and undesirable officials were being weeded out cannot justify the conclusion that the respondent was retired compulsorily by reason of any stain attaching to his character. Nor are we impressed by the contention that the Administrative Committee had no material before it on the basis of which it could conclude that the respondent should be retired compulsorily.

We do not think that this Court would be justified in intefering in such matters with the exercise of a discretionary power which, by the Constitution, is vested in the

High Courts. It appears that the output of the respondent was substandard and even if the entries in his character roll prior to the time when he was allowed to cross the efficiency bar are ignored, there was enough material before the Administrative Committee to come to the conclusion to which it did.

Shri Mishra attempted to urge that art. 465-A of the Civil Service B Regulations has no application to the case by reason of the fact that the respondent was not holding any of the posts mentioned in art. 349-A and therefore, no action could be taken against him under Note 1 to art. 465-A for compulsorily retiring him. The argument does not appeal to us.

But it is not necessary to consider it in any detail because a similar note is appended to art. 465 also and the application of that article is not restricted to officers mentioned in art. 349-A.

Whether therefore the one or the other articles applies to the respondent, the power to compulsorily retire him could be exercised by the c

Government either under Note 1 of art. 465-A or Note 1 of article 465.

For these reasons we allow the appeal, affirm the minority judgment of the Full Bench and uphold the validity of the order passed by the State Govermnent compulsorily retiring the respondent. There will be no order as to costs.

S.R.

Appeal allowed.