HIGH COURT OF JUDICATURE FOR RAJASTHAN A

RAMESH CHAND PALIWAL AND ANR.

FEBRUARY 19, 1998

[S. SAGHIR AHMAD AND G.B. PATTANAIK, JJ.] B

Constitution of India, 1950 :

Articles 226, 229, 235 and 146--Powers of Chief Justice and other Judges of High Court-Posts above Deputy Registrar filled up by bringing C officers from Rajasthan Higher Judicial Service on deputation-Directions by Division Bench to the Registrar to prepare a report whether the posts can be manned by High Court staff and to place the report before Full Court- Validity of-Held, such a direction is contrary to Article 229 and also overrides Rule 2-A-Chief Justice of High Court is the supreme authority in D the matter of appointment of High Court staff-Judges of High Court individually and all the Judges collectively cannot alter a constitutional provision or the rules made by the Chief Justice-Power of Chief Justice of High Court under Article 229 is akin to the powers of Chief Justice of India under Article 146--Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 : Rule 2A.

Articles 235 and 229-Control over Subordinate Courts and High Court administration-Distinction between-Held, control over Subordinate Courts vests in the 'High Court' but High Court administration vests in the 'Chief Justice'.

"' Respondent No. 1 filed a writ petition challenging the promotion of F

respondent No. 2 on the post of Deputy Registrar. During the course of hearing, a point was raised by Respondent No. 2 that the High Court staff were not promoted above the post of Deputy Registrar and the higher posts were filled up by bringing officers of Rajasthan Judicial Service/Rajasthan Higher Judicial Service on deputation, causing frustration amongst the G establishment of the High Court. The Court, though of the opinion that the

.I' point raised was not necessary for disposal of the writ petition, issued a direction to the Registrar to prepare a report whether the posts on which officers belonging to Rajasthan Judicial Service were appointed could be manned by the High Court staff, and to place the said report before the Full H

A Court. Aggrieved by the said direction, the present appeal was preferred.

The contention of the appellant was that the Judges of the High Com1 were not competent while deciding the main controversy to isime the impugned directions which was contrary to the provisions of Article 229 of the Constitution and purports to undermine the authority of the Chief Justice.

Allowing the appeal, this Court

HELD : 1.1. The impugned direction issued to the Regi~1rar to prepare a report, as to whether the posts in the High Court on which Officers on deputation are appointed, can be manned by the High Court ~1aff is patently C contrary to the mandate of Article 229 vesting High Court Administration in the Chief Justice and purports to encroach u11on his authority.

(979-D-E] 1.2. Under A11icle 229 of the Constitution, Chief Justice of the High Court is the supreme authority in the matter of ap11ointments of the ltigh Court Officers and servants. This Article also confers rule-making power D on the Chief Justice for regulating the conditions of service of officers and

servants of the High Court subject to the condition that if the rules relate to salaries, allowances, leave or pensions, they have to have the approval of the Governor of the State. If the Legislature of the State has made any law, the rules made by the Chief Justice would operate subject to the conditions made in that law. However, if the Legislature has not made any law referred E to in this Article or the Governor has not made any rule requiring the State

Public Service Commission to be consulted, the rules made by the Chief Justice would operate independently and the Chief Justice will also not be um!er any obligation to consult the State Public Service Commission.

[971-C-D-G; 971-G] F Pradyat Kumar Bose v. Hon 'ble Chief Justice of Calcutta High Court, AIR (1956) SC 285 = [1955] 2 SCR 1331; M Gurumoorthy v. Accountant General, Assam and Nagaland & Ors., AIR (1971) SC 1850 = [1971] Supp.

SCR 420; State of Assam v. Bhubhan Chandra Datta & Anr., AIR (1975) SC 889, [1975] 4 SCC 1 = (1975] 3 SCR 854; State ofAndhra Pradesh & Anr.

v. T. Gopalakrishnan Murthi & Ors., AIR (1976) SC 123 = 11976] 1 SCR G 1008; Supreme Court Employees Welfare Association v. Union of India, AIR

(1990) SC 334 = [1989] 3 SCR 488 = [1989] 4 SCC 187 and State of Rajasthan v. Prakash Chand, JT (1997) 9 SC 492 = [1998] 1 SCC 1, relied

OIL

Sanjay Kumar Srivastava v. Acting Chief Justice & Ors., (1996) H Allahabad Weekly Cases 644, approved.

,;. ....

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HIGH COURT OF RAJASTHAN v. R.C. PALIWAL 963

2. The impugned directions to the Registrar are not only contrary to A Article 229, hut also have the effect of negativing the impact of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 made by the Chief

Ju~1ice in exercise of power conferred by Article 229. Method of recruitment specified in Rule 2A, contemplates that the Chief Justice may fill certain posts by appointing officers on tranfer from sub-ordinate courts. The Rules B made under Article 229 of the Constitution have, thus specified the posts on which officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial Senice are to be appointed. The method of recruitment has also been indicated.

All appointments on these )JOsts are to be made by the Chief Justice. These rules can be altered, amended or rescinded only by the Chief Justice who alone has the rule-making power. Thus the real purport of the directions is C to override not only the constitutional provisions contained in Article 229 but also the rules made in exercise of )Jowers available to the Chief Justice under that Article. [975-C-D; 976-C-E-F]

3.1. A Judge of the High Court individually or all the Judges sitting collectively as in the Full Court, cannot either alter the constitutional JJrovisions or the rules made by the Chief Justice. They have no jurisdiction even to suggest any constitutional amendment or amendment in the rules made by the Chief Justice nor can they create any avenue of promotion for the High Court Staff so as to be aJJpointed on )Josts meant for officers from Rajasthan Higher Judicial Service or Rajasthan Judicial Service. The Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority. [976-H; 977-A-C]

3.2. Even ifthe Registrar, in compliance of the impugned direction, is to report that the posts on which officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial Service are aJJ1minted on deputation, can well be manned by the High Court staff itself or that when the officers are brought from the District Courts to the High Court for a)Jpointment on the aforesaid posts, some of the subordinate courts become vacant as the Presiding Officers having been sent on de)Jutation to High Court are not available to hear and dispose of cases )lending in those courts and even if such report is placed before the Full Court, the Full Court cannot give a direction to the Chief Justice not to fill UJJ those JJ0~1s by bringing officers on deputation but to fill up those posts by JJromotion from amongst the High Court staff.

A 3.3. If under the High Court Rules, it has been provided that certain posts shall be manned by the officers of the Rajasthan Judicial or Higher

.I....

Judicial Service who would be appointed on those posts on deputation, the other Judges of the High Court cannot, nor can the employees of the court raise, possibly or legitimately, any grievance. Since 1mwer of appointment

B which vests absolutely in the Chief Jm1ice cannot he exercised by any other Judge of the High Court, the latter, namely, other Judge or Judges, cannot exercise that power even indirectly as has been attempted to be done in the ' instant case. By directing the Registrar of the com1 to submit a report whether the posts on which officers from the Rajasthan Judicial Service are

appointed on deputation can be manned by the High Court staff and further c directing ~'Uch report to be placed before the Full Court for the consideration of other Judges on the administrative side, the Judges have attempted to indirectly exercise the power of appointment on certain posts in the High Court establishment on which appointment can be made only by the Chief Justice. [977-D-G]

4. Under Article 235, the control over Subordinate Court is vested in

"- the 'High Com1'. However, under Article 229 the word 'Chief Justice' has • been used. The Constitution, therefore, treats them as two separate entities in as much as "control over Subordinate Courts" vests in the High Com1, but High Court administration vests in the Chief Justice. [979-D] E State of Haryana v. Inder Prakash Anand, AIR (1976) SC 1841 = [1976] Supp. SCR 6113 = [1976] 2 SCC 977; State of Gujarat v. Ramesh Chandra Mashruwa/a, AIR (1977) SC 1619 = [1977] 2 SCR 710 = (1977] 2 SCC 12; Chief Justice of Andhra Pradesh & Anr. v. L. VA. Dikshitulu, AIR

(1979) SC 193 = (1979] 1SCR26 = (1979) 2 SCC 34; State of West Bengal F v. Nripendra Nathe Bagachi, AIR (1966) SC 447 = [1966] 1 SCR 771; Tejpal Singh (Dead) by Lrs. v. State of UP. & Anr., AIR (1986) SC 1814 = [1986] ' .. 3 SCR 428 = [1986] 3 SCC 6114; G.S. Nagmoti v. State of A.1ysore, [1969] 3 SCC 325 = (1970) SLR 911; Registrar, High Court of Madras v. R. Rajiah, AIR (1988) SC 1388 = [1988] Supp. 1 SCR 332 = [1988] 3 SCC 211 and G State of UP. v. Batuk Deo Patil Tripathi, [1978] 2 SCC 102 = [1978] 3 SCR

131, relied on.

5. The power available to the Chief Justice of the High Court, under , . • Article 229, is akin to the power of the Chief Justice of India under Article 146 of the Constitution. Just as Chief Justice of India is the supreme H authority in the matter of Supreme Court Establishment including its office

HIGH COURT OF RAJASTHAN v. R.C. PALIWAL [S. SAGHIR AHMAD. J.J 965

staff and officers, so also the Chief Justice of the High Court is the sole A authority in these matters and no other Judge or officer can legally usur11 those administrative functions or power. (972-B-GJ ,

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 835 of 1994.

B " From the Judgment and Order dated 28.9.93 of the R<\iasthan High Court in SB. C.W.P. No. 2215of1992.

Arvind Varma and S.K. Mehta for the Appellant.

S.K. Bhattacharya for the Respondent. No. I. c

Pallav Shisodia and A.P. Medh for lnstervenors.

The Judgment of the Court was delivered by

-< S. SAGHIR AHMAD, J. The Authority which has been dispensing D • justice to others, is, today before us seeking itself justice on being aggrieved by the judgment passed by two of its Judges on 28. 9. 93 in a Writ Petition filed by respondent No. I (Ramesh Chand Paliwal) challenging the promotion of respondent No. 2 (Sankal Chand Mehta) on the post of Deputy Registrar. Not only that respondent No. I wanted the Chief Justice's order dated 6.3,92 by E which Sankal Chand Mehta was promoted to the post of Deputy Registrar to be quashed, he also prayed that the order of the Chief Justice dated 28.2.92 by which the earlier.establishment order dated 11.5.90 was amended, be also quashed.

2. 'Ille Chief Justice, in exercise of powers available to him under Article F y 229 of the Constitution, has made Rules known as Rajasthan High Court (Conditions of Service of Stafi) Rules, 1953 which have been amended by him from time to time by administrative orders. The promotion on the post in question is regulated by these Rules.

3. The vacancy, on which Sankal Chand Mehta was promoted as Deputy G Registrar, had occurred on the retirement of Shambhu Chand Mehta on 31st 17. ,, of January, 1992. The post of Deputy Registrar. therefore, became vacant on 1st of February, 1992. It has been held that this vacancy could be filled up only in accordance with the mies which were prevalent on that date and since respondent No.2 had been promoted to that post in accordance with the rules as amended on 28.2.92, and, not in accordance with the rules prevalent on H

A 1.2.92, the said promotion was bad. The Hon'ble Judges proceeded to say that ordinarily they would have quashed the appointment of respondent No.2 on the post of Deputy Registrar but since he was to retire on 30th of September, 1993, they did not do so but directed that the vacancy occurring t on 1.10.93 shall be treated to be a vacancy available on 1.2.92 and that

B vacancy would be filled up in accordance wit.'1. the rules set out in the administrative order dated 11.5. 90 by considering the eligible officers belonging / to the cadre of Private Secretaries only. It was further directed that the

appointment made on the post of Deputy Registrar would be deemed to have been made w.e.f. 6.3.92 when respondent No.2 was illegally promoted to that post. The Judges did not decide the question of validity of the amendments c made by the Chief Justice in the rules by order dated 28.2. 92.

4. We are informed that so far as appointment to the post of Deputy Registrnr is concerned, the directions set out in the impugned judgment have since been complied with and the promotion on the post of Deputy Registrar has been made in accordance with those directions. In this appeal, therefore, D we are not now concerned with the promotion made on the post of Deputy

Registrar nor are we concerned with the validity of amendments introduced • in the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 by order dated 28.2.92.

5. During the course of the judgment, the learned Judges digressed from the main course and wrote out two pages as under:-

''An argument has been raised on bhalf of the respondent No.2 that all the posts on the establishment of the High Court can be manned by the officers belonging to be establishment of the High Court, but

F the officers belonging to the establishment of the High Court are not promoted to any posts above the post of the Dy. Registrar and even ' two posts of Dy. Registrars designated as Dy. Registrar (Judi.) and one post of Principal Private Secretary to the Hon'ble Chief Justice are being filled in by bringing the officers of the Rajasthan Judicial Service and/or of Rajasthan Higher Judicial Service on deputation, in spite of G the fact that many courts are lying vacant in the various districts of the State. It has been submitted that this results is not only causing

YJ frustration amongst the officials belonging to the establishment of the ' High Court but also deprives the litigating public of the State of their services for decision of their cases.

H We feel that this point raised by the respondent No.2 in an addit:, mal

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HIGH COURT OF RAJASTHAN v. R.C. PALl\VAL [S. SAGHIR AHMAD, J.[ 967

affidavit filed on record, is not required to be decided for the decision A of this writ petition and, even otherwise, in absence of sufficient material, we should not go into it.

We are, however, of the view that it requires examination as to whether the abovesaid posts or any of them are such which cannot be manned by the officers belonging to the establishment of the High Court and B are required to be filled in by bringing the judicial officers on deputation to the High Court by depriving the litigating public of their judicial service and experience, we, therefore, direct the Registrar of the respondent No. I to prepare a detailed report in this respect as soon as possible and put it up before the Hon'ble Chief Justice for being C placed before the Full Court for consideration and decision as to whether the officers belonging to the judicial services should be spared to man such posts in the High Court especially when many courts in various districts of this State remain vacant."

6. These passages show that there were certain posts in the establishment of the High Court on which officers of the RajasthanHigher Judicial Service D were being appointed on deputation which was objected to by certain staff of the High Court on the ground that they were competent to man those posts and, therefore, officers belonging to Rajasthan Judicial Service or Higher Judicial Service should not be inducted on those posts specially when their appointment causes dislocation of judicial woik in the District Courts and E more specially as the High Court staff does not get any promotion beyond the post of Deputy Registrar. The learned Judges did not decide this question as they were of the opinion that this question was not required to be decided for the effective disposal of the Writ Petition filed by respondent No. 1. They also thought that it would not be proper for them to go into that question as sufficient material was not available on record. They, nevertheless, issued F the direction to the Registrar to prepare a report whether the posts on which officers belonging to Rajasthan Judicial Service were being appointed could be manned by the High Court staff and whether the appointment of those officers on deputation causes dislocation of judicial work in the District Courts as the litigating public is deprived of their services and the courts G presided over by them become, and remain, vacant for long. This report was directed to be placed before the Full Court so that the matter could be discussed and a decision taken thereon.

7. Learned counsel appearing on behalf of the appellant has contended that the Judges of the Rajasthan High Court were not competent while H

deciding the main controversy raised in the petition, to slide to this side of the matter and to issue the impugned direction particularly when such direction is contrary to the provisions of Article 229 of the Constitution of India and purports to undem1ine the authority of the Chief Justice.

8. In order to appreciate and understand the status, powers and authority of the Chief Justice as also his constitutional position qua other Judges of the High Court, it would be necessary to delve into archives.

9. The British Government established the Supreme Court of Calcutta by a Charter issued in 1774. Clause 10 of the Charter, inter alia,

"authorised and empowered from time to time, as occasion may require, to appoint so many and such clerks and other ministerial officers as shall be found necessary for the administration of justice."

10. The Supreme Court of Calcutta was replaced by the High Courts established under the High Courts Act, 1861. Section 9 of the Act provided as under:-

"Each of the High Courts to be established under the Act shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the courts abolished under the Act."

11. Letters Patent was granted to the Calcutta High Court in 1865.

Clauses 4 and 8 of the Letters Patent, as amended in 1919, provided as under:-

" 4. We do hereby appoint and ordain, that every clerk and ministerial officer of the High Court of Judicature at Fort William in Bengal appointed by virtue of t11e said Letters Patent of the Fourteenth of May, One iliousand eight hundred and sixty-two, shall continue to hold and enjoy his office and employment with fue salary fuereunto annexed, until he be removed from such office and employment; and he shall be subject to the like power of removal, regulations, and provisions as if he were appointed by virtue of these Letters Patent.

"8. We do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Fort William in Bengal from time to time, as occasion may require, and subject to any rules and restrictions which may be prescribed by ilie Governor-General in Council, to appoint so many and such clerks and other ministerial officers as shall be found necessary for ilie administration of justice, and due execution

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JIIGH COURT OF RAJASTHAN v. R.C. PALIWAL [S. SAGHIR AHMAD, J.] 969

of all the powers and authorities granted and committed to the said A High Court by these our Letters Patent and it is our further will and pleasure and we do hereby, for us, our heirs and successors give, grant, direct and appoint, that all and every the officers and clerks to be appointed as aforesaid shall have and receive respectively such reasonable salaries as the Chief Justice shall, from iime to time appoint B for each office and place respectively, and as the Governor-General in Council shall approve of.. ... "

12. These Clauses, thus, gave power of appointment and removal of the staff to the Chief Justice. The power was to be exercised subject to such rules and restrictions as may be made by the Governor-General in Council.

13. When Government of India Act, 1915 was enacted, the above position was continued by virtue of Section 106 of the Act which, inter alia, provided as under:-

"The several High Court ....... have ..... all such powers and authority D over or in relation to the administration of justice, including the power to appoint clerks and other ministerial officers of the court, as are vested in them by letters patent ...... "

14. This position was not altered even by the Government of India Act,

1935. It may be mentioned that Section 241 of this Act specified the various E authorities who could make appointments of persons holding civil posts under the Crown in India and frame rules relating to their conditions of service but Section 242(4) specifically provided as under:-

" ( 4) In its application to appointments to, and to persons serving on, the staff attached to the Federal Court or the staff attached to a High F Court, the last preceding section shall have effect as if, in the case of the Federal Court, for any reference to the Governor-General in paragraph (a) of sub-section (1), in paragraph (a) of sub-section (2) and in sub-section (5) there were substituted a reference to the Chief Justice of India and as if, in the case of a High Court, for any reference to tl1e Governor in paragraph (b) of sub-section (I), in paragraph (b) G of sub-section (2) and in sub-section (5) there were substituted a reference to tl1e Chief Justice of the court:

Provided that -

(a) the Governor may in his discretion require that in such cases as H

A he may in his discretion direct no person not already attached to the court shall be appointed to any office connected with tl1e Court save after consultation with the Provincial Public Service Commission ;

(b) rules made under tl1e said sub-section (2) by a Chief Justice shall, so far as they relate to salaries, allowances, leave or pensions, require B the approval of the Governor-General or, as tl1e case may be, tl1e Governor."

15. Tims, Chief Justice continued to be the highest authority so far as High Court staff was concerned.

16. When Constitution came into existence, tl1e powers and status of the Chief Justice, as available under both the Acts, namely, Government of India Acts 1915 and 1935, were maintained.

17. Chapter V of the Constitution relates o "the High Courts in the States". Under the constitutional scheme, there has to be a High Court for

each State (see: Article 214). Article 216 provides tliat every High Court shall consist of a Chief Justice and such other Judges as may be appointed by the

President from time to time. Article 223 provides that when tlle office of Chief

Justice of a High Court is vacant or any Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, such duty shall be

performed by such one or the other Judges of the court as tlle President may appoint. Article 229 provides as under:-

"229. Officers and servants and the exllenses of High Courts. - (1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the court as he may direct:

Provided that the Governor of the State may by rule require that in

such cases as may be specified in the rule no person not already attached to the court shall be appointed to any office connected with

the court save after consultation with the State Public Service

Commission.

(2) Subject to the provisions of any law made by the Legislature of

the State, the conditions of service of officers and servants of a High

Court shall be such as may be prescribed by rules made by the Chief

Justice of the Court or by some other Judge or officer of the court

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HIGH COURT OF RAJASTHAN v. R.C. PALIWAL [S. SAGHIR AHMAD, J.) 971

authorised by the Chief Justice to make rules for the purpose : A

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.

(3) The administrative expenses of a High Court, including all salaries, B allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon tl1e Consolidated Fund of the State, and any fees or other moneys taken by the court shall form part of that Fund."

18. This Article makes Chief Justice of the High Court the supreme C authority in the matter of appointments of tl1e High Court officers and servants.

This Article also confers rule-making power on the Chief Justice for regulating the conditions of service of officers and servants of the High Court subject to the condition that if the rules relate to salaries, allowances, leave or pensions, they have to have the approval of the Governor of the State. If the

'"' Legislature of the State has made any law, the rules made by the Chief Justice D would operate subject to the conditions made in tllat law.

..-.

I '

19. The rule-making power of the Chief Justice is subject to three restrictions:-

(i) If the rules relate to salaries, allowances, leave or pensions, they E have to be approved by the Governor of the State.

(ii) If the Legislature of tl1e State has made any law, the rules made by the Chief Justice will operate subject to tllat law.

(iii) If the Governor of the State has, by rule, provided that no persor. r not already attached to the Court, shall be appointed to any office connected with the Court save after consultation with tlle State Public Service Commission, the Chief Justice while making appointment on such post shall first consult the State Public Service Commission."

20. It is obvious that if the Legislature has not made any law referred G to in this Article or the Governor has not made any rule requiring the State Public Service Commission to be consulted, the rules made by the Chief Justice would operate independently and the Chief Justice will also not be under any obligation to consult the State Public Service Commission.

21. Under Article 229, power of appointment can also be exercised by H

A such other Judge or officer of the court as may be directed by the Chief Justice. So also the rule-making power can be exercised by some other Judge or officer of the court provided he is authorised in that behalf by the Chief Justice.

22. The power available to the Chief Justice of the High Court, under B Article 229, is akin to the power of the Chief Justice of India under Article 146 of the Constitution, which is quoted below :

"146. Officers and servants and the expenses of the Supreme Court.- (!) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or Officer of the court as he may direct:

Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the court shall be appointed to any office connected with the court, save after consultation with the Union Public Service Commission.

(2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the court authorised by the Chief Justice of India to make rules for the pmpose :

Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pension>, require the approval of the President.

(3) The administrative e'qienses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of India, and any fees or other inoney taken by the court shall form part of that Fund."

/ G

23. Just as Chief Justice of India is the supreme authority in the matter of Supreme Court Establishment including its office staff and officers, so also the Chief Justice of the High Court is the role authority in these matters and no other Judge or officer can legally usurp those administrative functions or power.

24. The power to appoint an officer or servant of the High Court also

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HIGH COURT OF RAJAS THAN v. R.C. PAUWAL [S. SAGl!IR AHMAD, J.] 973

includes the power to dismiss as was held in Pradyat Kumar Bose v. Hon 'hie A Chief Justice of Calcutta High Court, AIR (1956) SC 285 = [1955] 2 SCR 1331.

It was also held in that case that it was not necessary for the Chief Justice to consult the State Public Service Commission before dismissing t11e Registrar of the original side of the High Court. In M. Gurumoorthy v. Accountant General, Assam and Nagaland & Ors., AIR (1971) SC 1850 = [1971) Supp. B ' ' SCR 420, it was held that in the matter of appointment of the High Court

y officers and servants, the Chief Justice is the supreme authority and t11ere can '

be no interference by the executive except to the limited extent indicated in Article 229. If, however, the matter relates to pay fixation, it has to have the approval of the Governor of the State. See: State of Assam v. Bhuhhan Chandra Datta &Anr., AIR (1975) SC 889, [1975] 4 SCC I= [1975) 3 SCR 854. c

25. Since, under the Constitution, Chief Justice has also t11e power to make rules regulating the conditions of service of the officers and servants of the High Court, it is obvious that he can also prescribe the scale of salary payable for a particular post. This would also include the power to revise the

-< scale of pay. Since such a rule would involve finances, it has been provided D • in the Constitution that it will require the approval of the Governor which, in other words, means the State Government. This Court in State of Andhra Pradesh & Anr. v. T Gopalakrishnan Afurthi & Ors., AIR (1976) SC 123 = [1976] I SCR 1008, had expressed the hope that "one should accept in the fitness of things and in view of the spirit of Article 229 that the approval, E ordinarily and generally, would be accorded." This was reiterated by this Court in Supreme Court Employees Welfare Association v. Union of India, AIR (1990)-SC 334 = [1989] 3 SCR 488 = [1989] 4 SCC 187. We again reiterate the hope and feel that once tlie Chief Justice, in the interest of High Court administration, has taken a progressive step specially to ameliorate the service conditions of the officers and staff working under him, the State Government F ' would hardly raise any objection to the sanction of creation of posts or fixation of salary payable for that post or the recommendation for revision of scale of pay if the scale of pay of the equivalent post in the Government has been revised.

26. The status, functions and duties of the Chief Justice qua other G Judges of the High Court was considered by a Full Bench of the Allahabad Yr High Court of which one of us (S. Saghir Ahmad. J.) was a member, in San jay Kumar Srivastava v. Acting Chief Justice & Ors., (1996) Allahabad Weekly Cases 644, in whieh it was, inter a/ia, observed as under:-

''The Chief Justice may constitute a Bench of two or more Judges to H

B 27.

28.

decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench of the question so fonnulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein."

It was further observed:-

"Under Rule 6 of Chapter V of the Rules of Court, it can well be brought to the notice of the Chief Justice through an application or even otherwise that there was a case which is required to be heard by a larger Bench on account of an important question of law being involved in the case or because of the conflicting decisions on the point in issue in tl1at case. If the Chief Justice takes congnizance of an application laid before him under Rule 6 of Chapter V of the Rules of Court and constitutes a Bench of two or more Judges to decide the case, he cannot be said to have acted in violation of any statutory provisions.

The Full Bench also observed:-

"In view of the above, it is clear that tl1e Chief Justice enjoys a special status not only under Constitution but also under Rules of Court,

1952 made in exercise of powers conferred by Article 225 of the Constitution. The Chief Justice alone can determining jurisdiction of various Judges of the Court. He alone can assign work to a Judge sitting alone and to the Judges sitting in Division Bench or to Judges sitting in Full Bench. He alone has the jurisdiction to decide which case will be heard by a Judge sitting alone or which case will be heard by two or more Judges.

The conferment of tllis power exclusively on tlle Chief Justice is necessary so that various Courts comprising of tl1e Judges sitting alone or in Division Bench etc., work in a co-ordinated manner and tlle jurisdiction of one court is not over-lapped by other Court. If tlle Judges were free to choose tl1eir jurisdiction or any choice was given to tllem to do whatever case tlley may like to hear and decide, tlle

machinery of the Court would collapse and tl1e judicial functioning of tlle Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The nucleus for proper functioning of tlle Court is tlle "self' and "judicial" discipline

, • .,

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HIGH COURT OF RAJASTHAN v. R.C. PALIWAL [S. SAGHIR AHMAD, J.] 975

--', of judges which is sought to be achieved by Rules of Court by A placing in the hands of the Chief Justice full authority and power to ,,

distribute work to the Judges and to regulate their jurisdiction and sittings.

29. This decision has been approved by this Court in State of Rajasthan

v. Prakash Chand, JT (1997) 9 SC 492 = [1998] l SCC 1, which incidentally B is a case originating in the Rajasthan High Court from where this appeal has come before us.

30. Apart from the fact that the impugned directions to the Registrar are contrary to Article 229, they also have the effect of negativing the impact of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 made c

by the Chief Justice in exercise of power conferred by Article 229. Rule 2 specifies the strength of staff. It provides that the staff shall consist of the posts specified in the second column of Schedule I attached to the rules. It also provide that the Chief Justice may, from time to time, leave unfilled or hold in abeyance any vacant post. The rules also provide that the Chief D ..

Justice may increase or reduce the strength of staff. Method of recruitment • has been specified in Ruic 2A as under:-

"2A. l\Iethod of recruitment:- (1) Recruitment to a post or category of posts specified in the second column of Schedule I shall be made by one or more oftbe following methods, namely, E

(a) by direct recruitment, or

(b) by promotion of a person already employed in the High Court, or

( c) by transfer from subordinate courts or offices of tl1e State Government. F

y Provided that the Chief Justice or subject to any general or special order '-

of the Chief Justice, the Registnrr may order transfer of any member of the ministerial or class IV staff serving on the establishment of the High Court to any Court subordinate to the High Court and vice versa on such tem1s and conditions as may be deemed proper.

(2) The Chief Justice may, from time to time, by general or special •' , ,. order:-

(a) specify the method by which recruitment to a post or category of posts shall be made, H

(b) detennine the proportion of vacancies to be filled by each method in case of recruitment by more than one method. and

(c) specify the maimer in which suh recruitment shall be made in t11e case of direct recruitment.

(3) Recruitment to the post of Court Officer shall be made & (by selection from the staff or) by direct recruitment in accordance with such method as may be prescribed by the Chief Justice.

31. This rule contemplates tJ1at t11e Chief Justice may fill certain posts by appointing officers on transfer from sub-ordinate courts. Schedule I C indicates that against tJ1e post of Registrar, Registrar (Vigilance), Additional Registrar, Additional Registrar (Vigilance), Additional Registrar (Writs), Officer on Special Duty (Rules), Principal PrivaLe Secretary to Hon 'ble Chief Justice and Deputy Registrar (Judicial), t11e words "R.H.J.S. Cadre" have been mentioned which means tJiat officers belonging to Rajasthan Higher Judicial Service alone can be appointed on these posts. The rules made under Article D 229 of ilie Constitution have. tlms, "specified t11e posts on which officers of

tJ1e RajastJ1an Higher Judicial Service or RajastJian Judicial Service are to be appointed. The method of recruitment has also been indicated. All appointments on tllese posts are to be made by tlle Chief Justice. 111ese rules can be altered, amended or rescinded only by the Chief Justice who alone has the rule- E making power.

32. If the impugned directions are analysed in this background, it will be seen that the real purport of the directions is to over-ride not only ilie constitutional provisions contained in Article 229 but also the mles made in exercise of powers available to t11e Chief Justice under iliat Article. Even if F tJ1e Registrar, in compliance of t11e impugned directions, is to report iliat the posts on which officers of ilie RajastJian Higher Judicial Service or Rajasilian

Judicial Service are appointed on deputation, can well be marmed by ilie High Court staff itself or that when the officers are brought from the DistJict Courts to the High Court for appointment on the aforesaid posts, some of tlle subordinate courts become vacant as tJ1e Presiding Officers having been sent on G deputation to High Court are not available to hear and dispose of cases pending in tJ1ose courts and even if such report is placed before t11e Full Court, can tlle Full Court give a direction to tJ1e Chief Justice not to fill up tllose posts by bringing Officers on deputation but to fill up t11ose posts by promotion from amongst the High Court staff? TI1e answer is an emphatic H "No, it carmot be done". A Judge of the High Court individually or all ilie

..,

. .,..

HiGHCOURT OF RAJASTHAN v. R.C. PALIWAL (S. SAGHIR AHMAD, J.! 977

Judges sitting collectively, as in the Full Court, cannot either alter the A -' constitutional provisions or the rules made by the Chief Justice. They have no jurisdiction even to suggest any constitutional amendment or amendment in the rules made by the Chief Justice nor can they create any avenue of promotion for the High Court staff so as to be appointed on posts meant for

Officers from Rajasthan Higher Judicial Service or Rajasthan Judicial Service. B The Chief Justice has been vested with wide powers to run the High Court Administration independently so as not to brook any interference from any quarter, not even from his Brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority. It should not be lost sight that Registrars, under Rules of various High Courts, have also to perform some limited judicial functions which c cannot be done by an officer other than a Judicial Officer in the High Court establishment.

33. There is yet another aspect. If under the High Court Rules, it has

~ been provided that certain posts shall be manned by the officers of the Rajasthan Judicial or Higher Judicial Service who would be appointed on D .. those posts on deputation, the other Judges cf the High Court cannot, nor can the employees of the court raise, possibly or legitimately, any grievance.

Since power of appointment which vests absolutely in the Chief Justice cannot be exercised by any other Judge of the High Court, the latter, namely, other Judge or Judges, cannot exercise that power even indirectly as has been E attempted to be done in the instant case. By directing the Registrar of the court to submit a report whether the posts on which officers from the Rajasthan Judicial Service are appointed on deputation can be manned by the High Court staff and further directing such report to be placed before the Full Court for tl1e consideration of other Judges on the administrative side, the Hon'ble ,..- Judges have attempted to indirectly exercise tl1e power of appointment on F .,

certain posts in the High Court establishment on which appointment can be made only by tl1e Chief Justice. The learned Judges who disposed of tl1e matter were themselves of tl1e opinion that tl1is question was not required to • be decided for the effective decision of the Writ Petition pending before them .

As such, they should have stopped there and should not have proceeded to G !" give tl1e impugned direction to the Registrar of tl1e High Court particularly as it is difficult to believe that the Cadre strength of Rajasthan Judicial Service or Higher Judicial Service is so weak or depleted that no substitute can be provided for eight officers (maximum under Rules) placed on deputation in tl1e High Court.

34. Learned counsel made a feeble attempt to invoke Article 235 and contended that ·High Court" does not mean mere ·Chief Justice" but 'all Judges collectively'' and, therefore, impugned directions could be validly issued. We reject this contention for reasons set out hereinbelow.

35. Chapter VI deals with sub-ordinate courts. Article 233 provides for B the appointment of District Judges. A District Judge is to be appointed by

the Governor of the State in consultation with the High Court. Article 234 provides that appointment of persons, other than District Judges, to the Judicial Service of a State shall be made by the Governor of the State in accordance with the mies made by him in that behalf after consultation with C the State Public Service Commission and the High Court. Article 235 provides as under:-

"235. Control over subordinate courts. - 1he control over district courts and courts subordinate thereto 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 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 otl1erwise than in accordance witl1 tl1e conditions of his service prescribed under such law."

36. This Article shows that the High Court has to eercise its administrative, judicial and disciplinary control over the members of the Judicial

Service of the State. The word "control", referred to in this Article, is used F in a comprehensive sense to include general superintendence of the working of the sub-ordinate courts, disciplinary control over tlle Presiding Officers of

the sub-ordinate courts and to recommend the imposition of punishment of dismissal, removal and reduction in rank or compulsory retirement. "Control" would also include suspension of a manner of the Judicial Service for pmposes of holding a disciplinary enquiry, transfer, confirmation and promotion. See:

G State of Haryana v. lnder Prakash Anand, AIR (1976) SC 1841 = [1976] Supp.

SCR 603 = [1976] 2 SCC 977; State of U.P. v. Batuk Deo Pali Tripathi, [1978] l~

2 SCC 102 = [1978] 3 SCR 131. In State of Gujarat v. Ramesh Chandra Mashruwala, AIR (1977) SC 1619 = [1977] 2 SCR 710 = [1977] 2 SCC 12, it

was held that the "control" in Article 235 means exclusive and not dual H control. (See also: Chief Justice of Andhra Pradesh & Anr. v. L. V.A. Dikshitulu.,

HIGH COURT OF RAJASTHAN v. RC. PALJ\VAL (S. SAGH!R AHMAD, J.] 979

AIR (1979) SC 193 = [ 1979) 1 SCR 26 = [1979) 2 SCC 34; State of West Bengal A

v. Nripendra Nath Bagchi, AIR (1966) SC 447 = [1966) l SCR 771.

37. In Tejpa/ Singh (Dead) by Lrs. v. State of U.P. & Anr., AIR (1986) SC 1814 = [1986] 3 SCR 428 = [1986) 3 SCC 604 as also in G.S. Nagmoti vs.

State of Mysore, (1969] 3 SCC 325 = 1970 SLR 911, it was held that the ''control", referred to in Article 235, vests in the High Court and not in any B 'r Judge or Judges or any Committee thereof. In a subsequent decision in Registrar, High Court of Madras v. R. Ra; iah, AIR (1988) SC 1388 = 1988 Supp., 1 SCR 332 = [1988) 3 SCC 211, it was held that there is no bar to have an enquiry made by a Committee of several Judges against a member of the sub-ordinate judiciary provided the report of the Committee is circulated to all the Judges and the ultimate decision is taken in the meeting of t11e Full C Court.

38. What is, therefore, of significance is t11at although in Article 235, tlle word "'High Court" has been used, in Article 229, tlle word "Chief Justice" has been used. The Constitution, therefore, treats them as two separate entities in as much as "control over Sub-ordinate Courts" vests in the High D Court, but High Court administration vests in the Chief Justice.

39. The impugned direction whether ilie posts in tlle High Court on which Officers on deputation are appointed can be manned by ilie High Court staff is patently contrary to the mandate of Article 229 vesting High Court Administration in t11e Chief Justice and purports to encroach upon his autllority. E

40. As pointed out above, under tlle constitutional scheme, Chief Justice is t11e supreme aut11ority.and the ot11er Judges, so far as officers and servants of t11e High Court are concerned, have no role to play on the administrative side. Some Judges, undoubtedly, will become Chief Justice in ilieir own tum one day, but it is imperative under constitutional discipline tllat tlley work in F tranquility. Judges have been described as "'hem1its". They have to live and behave like ''hem1its" who have no desire or aspiration, having shed it

tlrrough penance. Their mission is to supply light and not heat. This is necessary so t11at their latent desire to run ilie High Court administration may not sprout before time, at least, in some cases.

41. For tlle reasons stated above, tllis appeal is allowed. The judgment G dated 28.09.93 passed by the two learned Judges, in so far as it relates to the direction to t11e Registrar, set out in tlle earlier part of t11e judgment, is set aside. The judgment in all ot11er respects is upheld. There will be no order as to costs.

S.V.K.I.

Appeal allowed. H