PETITIONER: HIGH COURT OF JUDICATURE FOR RAJASTHAN Vs. RESPONDENT: RAMESH CHAND PALIWAL & ANR. DATE OF JUDGMENT: 13/02/1998 BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
J U D G M E N T
S.SAGHIR AHMAD. J.
The Authority which has been dispensing 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. 1 (Ramesh
Chand Paliwal) challenging the promotion of respondent No. 2
(Sankal Chand Mehta) on the post of Deputy Register. Not
only that respondent No. 1 wanted the Chief Justice’s order
dated 6.3.92 by 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. The Chief Justice, in exercise of powers available to
him under Article 229 of the Constitution, has made Rules
known as Rajasthan High Court (Conditions of Service of
staff) 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 Register, had occurred on the retirement of
Shambhu Chand Mehta on 31st 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 rules 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 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 on 1.10.93 shall be treated to be a
vacancy available on 1.2.92 shall that vacancy would be
filled up on accordance with 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 made by
the Chief Justice in the rules by order dated 28.2.92.
4. We are informed that so far as appointment to that post
of Deputy Registrar 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,
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 behalf 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 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. Registers
designated as Dy. Registrar (Judl.)
and one post of Principle 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 High Judicial Service
on deputation, in spite of 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
frustration amongst the officials
belonging to the establishment of
the High Court but also deprives
the litigation public of the State
of their services for decision of
their cases.
We feel that this point raised
by the respondent No.2 in an
additional affidavit filed on
record, is not required to be
decided for the decision 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 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.
1 to prepare a detailed report in
this respect as soon as possible
and put it up before the Hon’ble
Chief Justice for being 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
Rajasthan Higher Judicial Service 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 work in the District Courts
and 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 through that it would not be
proper for them to go into that question as sufficient
material was not available on record. They, nevertheless,
issued 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 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 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 undermine 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
the said Letters Patent of the
Fourteenth of May, One thousand
eight hundred and sixty-two, shall
continue to hold and enjoy his
office and employment with the
salary thereunto 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 the Governor-General
in Council, to appoint so many and
such clerks and other ministerial
officers as shall be found
necessary for the administration of
justice, and due execution of all
the powers and authorities granted
and committed to the said 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 time to time
appoint for each shall, from time
to time appoint for each office and
place respectively, and as the
Governor-General in Council shall
approve of…..”
12. These Clause, 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 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 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 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
the Governor in paragraph (b) of
sub-section (2) and in sub-section
(5) there were substituted a
reference to the Chief Justice of
the court :
Provided that –
(a) the Governor may in his
discretion require that in such
cases as he may in his discretion
direct no person not already
attached to the court shall be
appointed to any office connected
with the Court save after
consultation with the Provincial
Public Service Commission ;
(b) rules made under the said
sub-section (2) by a Chief Justice
shall, so far as they relate to
salaries, allowances, leave or
pensions, require the approval of
the Governor-General or, as the
case may be, the Governor.”
15. Thus, Chief Justice continued to be the highest
authority so far as High Court staff was concerned.
16. When Constitution came into existence, the powers and
status of the Chief Justice, as available under both the
Acts, namely, Government of India Acts 1915, were
maintained.
17. Chapter V of the Constitution relates to “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 that 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 the 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 the President may appoint. Article 229
provides as under:-
“229. Officers and servants and the
expenses 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 be 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
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 authorised by the Chief
Justice to make rules for the
purpose :
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, allowances and
pensions payable to or in respect
of the officers and servants of the
court, shall be charged upon the
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 authority in the matter of appointments of the 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, allowance, leave or pensions, they have to have
the approval of the Governor of the State. If the
Legislature of the State has made any laws, the rules made
the Chief Justice would operate subject to the conditions
made in that law.
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 have to
approved by the Governor of
the State.
(ii) If the Legislature of the
State has made any law, the
rules made by the Chief
Justice will operate subject
to that law.
(iii) If the Governor of the State
has, by rule, provided that 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, 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 to in this Article or the Governor has not made
any rule requiting 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 is consult the State Public Service
Commission.
21. Under Article 229, power of appointment can also be
exercised by such other Judge of 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 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 .- (1) 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 purpose :
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
President.
(3) The administrative
expensed 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
money taken by the court shall form
part of that Fund.”
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 sole authority in these matters and no
other Judge or officer can legally usurp those
administrative functions of power.
24. The power of appoint an officer or servant of the High
Court also includes the power to dismiss as was held in
Pradyat Kumar Bose vs. Hon’ble Chief Justice of Calcutta
High Court. AIR 1956 Sc 385 = 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 the Registrar of the original side of the
High Court. In M. Gurumoorthy vs. Accountant General, Assam
and Nagaland & Ors., AIR 1971 SC 1850 = 1971 Supp SCR 420,
it was held that in the matter of appointment of the High
Court officers and servants, the Chief Justice is the
supreme authority and there can be no interference by the
executive except to the limited extent indicate din 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 vs. Bhubhan Chandra Datta & Anr. AIR 1975 SC
889, (1975) 4 SCC 1 = 1975 (3) SCR 854)
25. Since, under the Constitution, Chief Justice has also
the 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 finance, it has been provided 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. vs. T. Gopalakrishnan Murthi & Ors.
AIR 1976 Sc 123 = 1976 (1) 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, ordinarily
and generally, would be accorded.” This was reiterated by
this Court in Supreme Court Employees Welfare Association
vs. Union of India, AIR 1990 SC 334 = 1989 (3) SCR 488 =
(1989) 4 SCC 187. We again reiterate the hope and feel that
once the 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 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 Judges of the High Court was considered by a Full
Bench of the Allahabad High Court of which one of us (S.
Saghir Ahmad. J.) was a member, in Sanjay Kumar Srivastava
vs. Acting Chief Justice & Ors. (1996) Allahabad Weekly
Cases 644, in which it was, inter alia, observed as under:-
“The Chief Justice may constitute a
Bench of two or more Judges to
decide a case or any question of
law formulated by a Bench hearing a
case. In the latter even the
decision of such Bench of the
question so formulated 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.”
27. 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 that 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.”
28 The Full Bench also observed:-
“In View of the above, it is clear
that the 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 cane 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 this power
exclusively on the Chief Justice is
necessary so that various Courts
comprising of the Judges sitting
alone or in Division Bench etc.,
work in a co-ordinated manner and
the Jurisdiction of one court is
not over lapped by other Court. If
the Judges were free to choose
their jurisdiction or any choice
was given to them to do whatever
case they may like to hear and
decide, the machinery of the Court
would collapse and the judicial
functioning of the Court would
cease by generating of internal
strife on account of hankering for
a particular jurisdiction or a
particular case. The nucleus for
proper functioning of the Court is
the “self” and “judicial”
discipline of judges which is
sought to be achieved by Rules of
Court by 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 vs. Prakash Chand, JT 1997 (9) SC 492 = (1998)
1 SCC 1, which incidentally 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 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. Tue rules also
provide that the Chief Justice may increase or reduce the
strength of staff. Method of recruitment has been specified
in Rule 2A as under:-
“2A. Method 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 of the following
methods, namely, –
(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 the
State Government.
Provided that the Chief
Justice or subject to any general
or special order of the Chief
Justice, the Registrar 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 vise versa on
such terms 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,
(b) determine the proportion
of vacancies to be filled by each
method of in case of recruitment by
more than one method, and
(c) specify the manner in
which such recruitment shall be
made in the 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 that the Chief Justice may fill
certain posts by appointing officers on transfer from sub-
ordinate courts. Schedule I indicated that against the post
of Registrar, Registrar (Vigilance), Additional Registrar,
Additional Registrar (Vigilance), Additional Registrar
(Writs), Officer on Special Duty (Rules). Principal Private
Secretary to Hon’ble Chief Justice and Deputy Registrar
(Judicial), the words “R.H.J.S. Cadre” have been mentioned
which means that officers belonging to Rajasthan Higher
Judicial Service alone can be appointed on these posts. The
rules made under Article 229 of the Constitution have, thus,
specified the posts on which officers of the Rajasthan
Higher Judicial Service or Rajasthan Judicial Service are to
be appointed. The method of recruitment has also been
indicated. All appointments on these posts 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.
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 the constitutional
provisions contained in Article 229 but also the rules made
in exercise of powers available to the Chief Justice under
that Article. Even if the 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 appointed on Deputation, can
well be managed by the High Court staff itself or that when
the officers are brought from the District Courts to the
High Court for appointment on the aforesaid posts, some of
the sub-ordinate courts become vacant as the Presiding
Officers having been sent on deputation to High Court are
not available to hear and dispose of cases pending in those
courts and even if such report is placed before the Full
Court, can the Full Court give a direction to the Chief
Justice not to fill up those posts by bringing Officers on
deputation but to fill up those posts by promotion from
amongst the High Court staff? The answer is an emphatic
“No, it cannot be done”. A Judge of the High Court
individually or all the Judges sitting collectively, as in
the Full Court, cannot either alter the 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. 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 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 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 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 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 the
consideration of other Judges on the administrative side,
the Hon’ble 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. The learned Judges who disposed of the matter
were themselves of the opinion that this 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 give the
impugned direction to the Registrar of the 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 the High Court.
34. Learned made a feeble attempt to invoke Article 235 and
contended the “High Court” does not mean mere “Chief
Justice” but “all Judges collectively” and, therefore,
impugned directions could be validly issued. We reject this
contentions for reasons set out hereinbelow.
35. Chapter VI deals with sub-ordinate courts. Article 233
provides for 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 rules made by him in that
behalf after consultation with the State Public Service
Commission and the High Court. Article 235 provides as
under:-
“235. Control over subordinate
courts. – The 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 otherwise than in
accordance with the conditions of
his service prescribed under such
law.”
36. This Article shows that the High Court has to exercise
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 in a
comprehensive sense to include general superintendence of
the working of the sub-ordinate courts, disciplinary control
over the 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 purposes of holding a disciplinary
enquiry, transfer, confirmation and promotion. (See: State
of Haryana vs. Inder Prakash Anand, AIR 1976 Sc 1841 = 1976
(Supp.) SCR 603 = (1976) 2 SCC 977; State of U.P. vs. Batuk
Deo Pati Tripathi, (1978) 2 SCC 102 = 1978 (3) SCR 131). In
State of Gujarat vs. 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
control. (See also: Chief Justice of Andhra Pradesh & Anr.
vs. L.V.A. Dikshitulu. AIR 1979 SC 193 = 1979 (1) SCR 26 =
(1979) 2 SCC 34; State of West Bengal vs. Nripendra Nath
Bagchi, AIR 1966 SC 447 = 1966 (1) SCR 771).
37. In Tejpal Singh (Dead) Lrs. vs. 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 Judge or
Judges or any Committee thereof. In a subsequent decision in
Registrar, High Court of Madras vs. R. Rajiah. AIR 1988 SC
1388 = 1988 Supp. (1) SCR 332 = (1988) 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 the Full Court.
38. What is, therefore, of significance is that although in
Article 235, the word “High Court” has been used, in Article
229, the 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 Court, but High Court administration vests
in the Chief Justice.
39.The impugned direction whether the posts in the High
Court on which Officers on deputation are appointed can be
managed by the High Court staff is patently contrary to the
mandate of Article 229 vesting High Court Administration in
the Chief Justice and purports to encroach upon his
authority.
40. As pointed out above, under the constitutional scheme,
Chief Justice is the supreme authority and the other Judges,
so far as officers and servants of the High Court are
concerned, have no role to play on the administrative side.
Some Judges, undoubtedly, will become Chief Justice in their
own turn one day, but it is imperative under constitutional
discipline that they work in tranquility. Judges have been
described as “hermits”. They have to live and behave like
“hermits” who have no desire or aspiration, having shed it
through penance. Their mission is to supply light and not
heat. This is necessary so that their latent desire to run
the High Court administration may not support before time,
at least, in some cases.
41. For the reasons stated above, this appeal is allowed.
The judgment dated 28.09.93 passed by the two learned
Judges, in so far as it relates to the direction to the
Registrar, set out in the earlier part of the judgment, is
set aside. The judgment in all other respects is upheld.
There will be no order as to costs.