{"id":36958,"date":"1998-02-19T00:00:00","date_gmt":"1998-02-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-of-judicature-for-vs-ramesh-chand-paliwal-anr-on-19-february-1998"},"modified":"2016-05-23T03:56:52","modified_gmt":"2016-05-22T22:26:52","slug":"high-court-of-judicature-for-vs-ramesh-chand-paliwal-anr-on-19-february-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-of-judicature-for-vs-ramesh-chand-paliwal-anr-on-19-february-1998","title":{"rendered":"High Court Of Judicature For … vs Ramesh Chand Paliwal & Anr on 19 February, 1998"},"content":{"rendered":"
Supreme Court of India<\/div>\n
High Court Of Judicature For … vs Ramesh Chand Paliwal & Anr on 19 February, 1998<\/div>\n
Author: S Ahmad.<\/div>\n
Bench: S. Saghir Ahmad, G.B. Pattanaik<\/div>\n
           PETITIONER:\nHIGH COURT OF JUDICATURE FOR RAJASTHAN\n\n\tVs.\n\nRESPONDENT:\nRAMESH CHAND PALIWAL & ANR.\n\nDATE OF JUDGMENT:\t13\/02\/1998\n\nBENCH:\nS. SAGHIR AHMAD, G.B. PATTANAIK\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS.SAGHIR AHMAD. J.\n<\/p>\n
     The Authority  which has  been  dispensing\t justice  to
\nothers, is,  today before us seeking itself justice on being
\naggrieved by  the judgment  passed by  two of  its Judges on
\n28.9.93 in a Writ Petition filed by respondent No. 1 (Ramesh
\nChand Paliwal) challenging the promotion of respondent No. 2
\n(Sankal Chand  Mehta) on  the post  of Deputy  Register. Not
\nonly that  respondent No. 1 wanted the Chief Justice’s order
\ndated 6.3.92  by which\tSankal\t Chand Mehta was promoted to
\nthe post  of Deputy  Registrar to be quashed, he also prayed
\nthat the  order of  the Chief Justice dated 28.2.92 by which
\nthe earlier  establishment order  dated 11.5.90 was amended,
\nbe also quashed.\n<\/p>\n
2.   The Chief\tJustice, in  exercise of powers available to
\nhim under  Article 229\tof the\tConstitution, has made Rules
\nknown as  Rajasthan High  Court (Conditions  of\t Service  of
\nstaff) Rules,  1953 which have been amended by him from time
\nto time\t by administrative orders. The promotion on the post
\nin question is regulated by these Rules.\n<\/p>\n
3.   The vacancy,  on which  Sankal Chand Mehta was promoted
\nas Deputy  Register,  had  occurred  on\t the  retirement  of
\nShambhu Chand  Mehta on\t 31st of  January, 1992. The post of
\nDeputy\tRegistrar,   therefore,\t became\t vacant\t on  1st  of
\nFebruary, 1992.\t It has been held that this vacancy could be
\nfilled up  only\t  in accordance\t with the  rules which\twere
\nprevalent on  that date\t and since  respondent No.2 had been
\npromoted to  that post\tin  accordance\twith  the  rules  as
\namended on  28.2.92, and,  not in  accordance with the rules
\nprevalent on 1.2.92, the said promotion was bad. The Hon’ble
\nJudges proceeded  to say  that ordinarily  they\t would\thave
\nquashed the  appointment of  respondent No.2  on the post of
\nDeputy Registrar  but since  he was  to retire\ton  30th  of
\nSeptember, 1993,  they did  not do  so but directed that the
\nvacancy occurring  on 1.10.93  shall  be  treated  to  be  a
\nvacancy available  on 1.2.92  shall that  vacancy  would  be
\nfilled up  on accordance  with the  rules  set\tout  in\t the
\nadministrative\torder\tdated  11.5.90\tby  considering\t the
\neligible  officers   belonging\tto   the  cadre\t of  Private
\nSecretaries  only.   It\t was   further\tdirected   that\t the
\nappointment made  on the  post of  Deputy Registrar would be
\ndeemed to  have been made w.e.f. 6.3.92 when respondent No.2
\nwas illegally  promoted to  that post.\tThe Judges  did\t not
\ndecide the  question of\t validity of  the amendments made by
\nthe Chief Justice in the rules by order dated 28.2.92.\n<\/p>\n
4.   We are informed that so far as appointment to that post
\nof Deputy  Registrar is concerned, the directions set out in
\nthe impugned  judgment have since been complied with and the
\npromotion on  the post\tof Deputy Registrar has been made in
\naccordance with those directions. In this appeal, therefore,
\nwe are not now concerned with the promotion made on the post
\nof Deputy  Registrar nor  are we concerned with the validity
\nof  amendments\t introduced  in\t the  Rajasthan\t High  Court
\n(Conditions of\tService of Staff) Rules, 1953 by order dated
\n28.2.92.\n<\/p>\n
5.   During the\t course of  the judgment, the learned Judges
\ndigressed from\tthe main  course and  wrote out two pages as
\nunder;-\n<\/p>\n
\t  “An argument\thas been  raised
\n     on behalf\tof the\trespondent  No.2
\n     that   all\t  the\tposts\ton   the
\n     establishment of the High Court can
\n     be manned by the officers belonging
\n     to be  establishment  of  the  High
\n     Court, but\t the officers  belonging
\n     to the  establishment of  the  High
\n     Court are not promoted to any posts
\n     above the post of the Dy. Registrar
\n     and even two posts of Dy. Registers
\n     designated as Dy. Registrar (Judl.)
\n     and one  post of  Principle Private
\n     Secretary\tto   the  Hon’ble  Chief
\n     Justice  are  being  filled  in  by
\n     bringing  the   officers\tof   the
\n     Rajasthan Judicial\t Service  and\/or
\n     of Rajasthan  High Judicial Service
\n     on deputation, in spite of the fact
\n     that many\tcourts are  lying vacant
\n     in the  various  districts\t of  the
\n     State. It\thas been  submitted that
\n     this results  is not  only\t causing
\n     frustration amongst  the  officials
\n     belonging to  the establishment  of
\n     the High  Court but  also\tdeprives
\n     the litigation  public of the State
\n     of their  services for  decision of
\n     their cases.\n<\/p><\/blockquote>\n
\t  We feel that this point raised
\n     by\t the   respondent  No.2\t  in  an
\n     additional\t  affidavit   filed   on
\n     record,  is   not\trequired  to  be
\n     decided for  the decision\tof  this
\n     writ petition  and, even otherwise,
\n     in absence\t of sufficient material,
\n     we should not go into it.
\n\t  We are,  however, of\tthe view
\n     that it  requires examination as to
\n     whether the  abovesaid posts or any
\n     of them  are such\twhich cannot  be
\n     manned by the officers belonging to
\n     the establishment of the High Court
\n     and are required to be filled in by
\n     bringing the  judicial officers  on
\n     deputation to  the\t High  Court  by
\n     depriving the  litigating public of
\n     their    judicial\t  service    and
\n     experience, we,  therefore,  direct
\n     the Registrar of the respondent No.
\n     1 to  prepare a  detailed report in
\n     this respect  as soon  as\tpossible
\n     and put  it up  before the\t Hon’ble
\n     Chief  Justice   for  being  placed
\n     before   the    Full   Court    for
\n     consideration and\tdecision  as  to
\n     whether the  officers belonging  to
\n     the  judicial  services  should  be
\n     spared to\tman such  posts\t in  the
\n     High  Court  especially  when  many
\n     courts in various districts of this
\n     State remain vacant.”\n<\/p><\/blockquote>\n
6.   These passages  show that\tthere were  certain posts in
\nthe establishment of the High Court on which officers of the
\nRajasthan Higher  Judicial Service  were being\tappointed on
\ndeputation which  was objected\tto by  certain staff  of the
\nHigh Court  on the  ground that\t they were  competent to man
\nthose posts  and, therefore, officers belonging to Rajasthan
\nJudicial Service  or Higher  Judicial Service  should not be
\ninducted on  those posts  specially when  their\t appointment
\ncauses dislocation  of judicial\t work in the District Courts
\nand more  specially as the High Court staff does not get any
\npromotion beyond  the post  of Deputy Registrar. The learned
\nJudges did  not decide\tthis question  as they\twere of\t the
\nopinion that  this question  was not  required to be decided
\nfor the\t effective disposal  of the  Writ Petition  filed by
\nrespondent No.\t1. They\t also through  that it\twould not be
\nproper for  them to  go into  that  question  as  sufficient
\nmaterial was  not available  on record.\t They, nevertheless,
\nissued the  direction to  the Registrar\t to prepare a report
\nwhether the  posts on  which officers belonging to Rajasthan
\nJudicial Service were being appointed could be manned by the
\nHigh Court  staff  and\twhether\t the  appointment  of  those
\nofficers on  deputation causes\tdislocation of judicial work
\nin the\tDistrict Courts as the litigating public is deprived
\nof their  services and\tthe courts  presided  over  by\tthem
\nbecome,\t and  remain,  vacant  for  long.  This\t report\t was
\ndirected to  be placed\tbefore the  Full Court\tso that\t the
\nmatter could be discussed and a decision taken thereon.\n<\/p>\n
7.   Learned counsel  appearing on  behalf of  the appellant
\nhas contended  that the\t Judges of  the Rajasthan High Court
\nwere not  competent  while  deciding  the  main\t controversy
\nraised in  the petition, to slide to this side of the matter
\nand to\tissue the  impugned direction particularly when such
\ndirection is  contrary to  the provisions  of Article 229 of
\nthe Constitution  of India  and purports  to  undermine\t the
\nauthority of the Chief Justice.\n<\/p>\n
8.   In order  to  appreciate  and  understand\tthe  status,
\npowers and  authority of  the  Chief  Justice  as  also\t his
\nconstitutional position\t qua other Judges of the High Court,
\nit would be necessary to delve into archives.\n<\/p>\n
9.   The British Government established the Supreme Court of
\nCalcutta by  a Charter\tissued in  1774. Clause\t 10  of\t the
\nCharter, inter alia,
\n     “authorised and empowered from time
\n     to time,  as occasion  may require,
\n     to appoint\t so many and such clerks
\n     and other\tministerial officers  as
\n     shall be  found necessary\tfor  the
\n     administration of justice.”\n<\/p>\n
10.  The Supreme  Court of Calcutta was replaced by the High
\nCourts established  under the High Courts Act, 1861. Section
\n9 of the Act provided as under:-\n<\/p>\n
\t  “Each of the High Courts to be
\n     established  under\t the  Act  shall
\n     have and  exercise all jurisdiction
\n     and  every\t  power\t and   authority
\n     whatsoever in  any manner vested in
\n     any of  the courts\t abolished under
\n     the\t\t\t   Act.”\n<\/p><\/blockquote>\n
11.  Letters Patent  was granted  to the Calcutta High Court
\nin 1865.  Clauses 4  and 8 of the Letters Patent, as amended
\nin 1919, provided as under:-\n<\/p>\n
\t  “4   We do  hereby appoint and
\n     ordain,  that   every   clerk   and
\n     ministerial  officer  of  the  High
\n     Court of Judicature at Fort William
\n     in Bengal\tappointed by  virtue  of
\n     the  said\tLetters\t Patent\t of  the
\n     Fourteenth\t of  May,  One\tthousand
\n     eight hundred  and sixty-two, shall
\n     continue  to  hold\t and  enjoy  his
\n     office  and   employment  with  the
\n     salary thereunto  annexed, until he
\n     be removed\t from  such  office  and
\n     employment; and he shall be subject
\n     to\t the   like  power  of\tremoval,
\n     regulations, and  provisions as  if
\n     he\t were  appointed  by  virtue  of
\n     these letters Patent.\n<\/p><\/blockquote>\n
\t  “8. We do hereby authorize and
\n     empower the  Chief Justice\t of  the
\n     said High\tCourt of  Judicature  at
\n     Fort William in Bengal from time to
\n     time, as  occasion may require, and
\n     subject   to    any    rules    and
\n     restrictions    which     may    be
\n     prescribed by  the Governor-General
\n     in Council,  to appoint so many and
\n     such clerks  and other  ministerial
\n     officers\tas    shall   be   found
\n     necessary for the administration of
\n     justice, and  due execution  of all
\n     the powers\t and authorities granted
\n     and  committed  to\t the  said  High
\n     Court by  these Our  Letters Patent
\n     and it  is\t Our  further  will  and
\n     pleasure and  We do hereby, for us,
\n     Our  heirs\t  and  successors  give,
\n     grant, direct and appoint, that all
\n     and every\tthe officers  and clerks
\n     to be  appointed as aforesaid shall
\n     have and  receive respectively such
\n     reasonable salaries  as  the  Chief
\n     Justice shall,  from time\tto  time
\n     appoint for  each shall,  from time
\n     to time appoint for each office and
\n     place  respectively,   and\t as  the
\n     Governor-General in  Council  shall
\n     approve\t\t\tof…..”\n<\/p><\/blockquote>\n
12.  These Clause,  thus,  gave\t power\tof  appointment\t and
\nremoval of  the staff to the Chief Justice. The power was to
\nbe exercised  subject to  such rules and restrictions as may
\nbe made by the Governor-General in Council.\n<\/p>\n
13.  When Government  of India\tAct, 1915  was enacted,\t the
\nabove position was continued by virtue of Section 106 of the
\nAct which, inter alia, provided as under:-\n<\/p>\n
\t  “The\t     several\t    High
\n     Court…….have  all  such  powers
\n     and authority  over or  in relation
\n     to the  administration of\tjustice,
\n     including\tthe   power  to\t appoint
\n     clerks   and    other   ministerial
\n     officers  of   the\t court,\t as  are
\n     vested   in    them   by\t letters
\n     patent……\n<\/p>\n
14.  This position was not altered even by the Government of
\nIndia Act,  1935. It  may be  mentioned that  Section 241 of
\nthis Act  specified the\t various authorities  who could make
\nappointments of\t persons holding civil posts under the Crown
\nin India  and frame  rules relating  to their  conditions of
\nservice but Section 242(4) specifically provided as under:-\n<\/p>\n
\t  “(4)\tIn  its\t application  to
\n     appointments  to,\tand  to\t persons
\n     serving on,  the staff  attached to
\n     the  Federal  Court  or  the  staff
\n     attached to  a High Court, the last
\n     preceding section shall have effect
\n     as if,  in the  case of the Federal
\n     Court, for\t any  reference\t to  the
\n     Governor-General in  paragraph  (a)
\n     of sub-section  (1),  in  paragraph\n<\/p><\/blockquote>\n
     (a) of sub-section\t (2) and in sub-
\n     section (5)  there were substituted
\n     a reference to the Chief justice of
\n     India and\tas if,\tin the case of a
\n     High Court,  for any  reference  to
\n     the Governor  in paragraph\t (b)  of
\n     sub-section (2)  and in sub-section
\n     (5)  there\t  were\t substituted   a
\n     reference to  the Chief  Justice of
\n     the court :\n<\/p><\/blockquote>\n
\t  Provided that –\n<\/p><\/blockquote>\n
\t  (a) the  Governor may\t in  his
\n     discretion\t require  that\tin  such
\n     cases as  he may  in his discretion
\n     direct  no\t  person   not\t already
\n     attached  to  the\tcourt  shall  be
\n     appointed to  any office  connected
\n     with   the\t   Court   save\t   after
\n     consultation  with\t the  Provincial
\n     Public Service Commission ;\n<\/p><\/blockquote>\n
\t  (b) rules  made under the said
\n     sub-section (2)  by a Chief Justice
\n     shall, so\tfar as\tthey  relate  to
\n     salaries,\tallowances,   leave   or
\n     pensions, require\tthe approval  of
\n     the  Governor-General  or,\t as  the
\n     case may be, the Governor.”\n<\/p><\/blockquote>\n
15.  Thus,  Chief   Justice  continued\tto  be\tthe  highest
\nauthority so far as High Court staff was concerned.\n<\/p>\n
16.  When Constitution\tcame into  existence, the powers and
\nstatus of  the Chief  Justice, as  available under  both the
\nActs,  namely,\t Government  of\t  India\t Acts\t1915,\twere
\nmaintained.\n<\/p>\n
17.  Chapter V\tof the\tConstitution relates  to  “the\tHigh
\nCourts in  the States”.\t Under\tthe  constitutional  scheme,
\nthere has  to be  a High  Court for each State (see: Article\n<\/p>\n
214). Article  216 provides  that  every  High\tCourt  shall
\nconsist of  a Chief  Justice and such other Judges as may be
\nappointed by  the President  from time\tto time. Article 223
\nprovides that  when the\t office of  Chief Justice  of a High
\nCourt is  vacant or  any Chief Justice, by reason of absence
\nor otherwise, is unable to perform the duties of his office,
\nsuch duty shall be performed by such one or the other Judges
\nof the\tcourt as  the President\t may  appoint.\tArticle\t 229
\nprovides as under:-\n<\/p>\n
     “229. Officers and servants and the
\n     expenses  of  High\t Courts.  –  (1)
\n     Appointments   of\t  officers   and
\n     servants of  a High  Court shall be
\n     made by  the Chief\t Justice of  the
\n     Court  or\t such  other   Judge  or
\n     officer of\t the  court  as\t he  may
\n     direct:\n<\/p><\/blockquote>\n
\t  Provided that\t the Governor of
\n     the State\tmay be rule require that
\n     in such  cases as\tmay be specified
\n     in the  rule no  person not already
\n     attached  to  the\tcourt  shall  be
\n     appointed to  any office  connected
\n     with   the\t   court   save\t   after
\n     consultation with\tthe State Public
\n     Service Commission.\n<\/p><\/blockquote>\n
\t  (2) Subject  to the provisions
\n     of any  law made by the Legislature
\n     of\t the   State,\tthe   conditions
\n     service of officers and servants of
\n     a High  Court shall  be such as may
\n     be prescribed  by rules made by the
\n     Chief Justice  of the  Court or  by
\n     some other\t Judge or officer of the
\n     court  authorised\t by  the   Chief
\n     Justice  to   make\t rules\tfor  the
\n     purpose :\n<\/p><\/blockquote>\n
\t  Provided that\t the rules  made
\n     under this\t clause shall, so far as
\n     they    relate\tto     salaries,
\n     allowances.  leave\t  or   pensions,
\n     require   the   approval\tof   the
\n     Governor of the State.\n<\/p><\/blockquote>\n
\t  (3)\t  The\t  administrative
\n     expenses of a High Court, including
\n     all   salaries,\tallowances   and
\n     pensions payable  to or  in respect
\n     of the officers and servants of the
\n     court, shall  be charged  upon  the
\n     Consolidated Fund of the State, and
\n     any fees  or other\t moneys taken by
\n     the court\tshall  form part of that
\n     Fund.”\n<\/p><\/blockquote>\n
18.  This Article  makes Chief Justice of the High Court the
\nsupreme authority  in the matter of appointments of the High
\nCourt officers and servants. This Article also confers rule-
\nmaking\tpower  on  the\tChief  Justice\tfor  regulating\t the
\nconditions of  service of  officers and servants of the High
\nCourt subject  to the  condition that if the rules relate to
\nsalaries, allowance,  leave or\tpensions, they\thave to have
\nthe  approval\tof  the\t  Governor  of\tthe  State.  If\t the
\nLegislature of\tthe State  has made any laws, the rules made
\nthe Chief  Justice would  operate subject  to the conditions
\nmade in that law.\n<\/p>\n
19.  The rule-making  power of\tthe Chief Justice is subject
\nto three restrictions:-\n<\/p>\n
     (i)  If   the   rules   relate   to
\n\t  salaries, allowances, leave or
\n\t  pensions,   they    have    to
\n\t  approved by  the  Governor  of
\n\t  the State.\n<\/p><\/blockquote>\n
     (ii)  If  the  Legislature\t of  the
\n\t  State has  made any  law,  the
\n\t  rules\t made\tby   the   Chief
\n\t  Justice will\toperate\t subject
\n\t  to that law.\n<\/p><\/blockquote>\n
     (iii) If  the Governor of the State
\n\t  has, by rule, provided that no
\n\t  person not already attached to
\n\t  the Court,  shall be appointed
\n\t  to any  office  connected with
\n\t  the\t Court\t   save\t   after
\n\t  consultation\twith  the  State
\n\t  Public Service Commission, the
\n\t  Chief\t Justice   while  making
\n\t  appointment on such post shall
\n\t  first consult the State Public
\n\t  Service Commission.\n<\/p><\/blockquote>\n
20.  It is  obvious that if the Legislature has not made any
\nlaw referred to in this Article or the Governor has not made
\nany rule requiting the State Public Service Commission to be
\nconsulted, the rules made by the Chief Justice would operate
\nindependently and  the Chief  Justice will also not be under
\nany  obligation\t  is  consult\tthe  State   Public  Service
\nCommission.\n<\/p>\n
21.  Under Article  229, power\tof appointment\tcan also  be
\nexercised by such other Judge of officer of the court as may
\nbe directed   by  the Chief Justice. So also the rule-making
\npower can be exercised by some other Judge or officer of the
\ncourt provided\the is authorised in that behalf by the Chief
\nJustice.\n<\/p>\n
22.  The power\tavailable to  the Chief\t Justice of the High
\nCourt, under  Article 229, is akin to the power of the Chief
\nJustice of  India under\t Article 146  of  the  Constitution,
\nwhich is quoted below:-\n<\/p>\n
\t  “146.\t Officers  and\tservants
\n     and the  expenses\tof  the\t Supreme
\n     Court  .-\t (1)   Appointments   of
\n     officers  and   servants\tof   the
\n     Supreme Court  shall be made by the
\n     Chief  Justice  of\t India\tor  such
\n     other Judge or Officer of the court
\n     as he may direct:\n<\/p><\/blockquote>\n
\t  Provided  that  the  President
\n     may by  rule require  that in  such
\n     cases as  may be  specified in  the
\n     rule,   no\t  person   not\t already
\n     attached  to  the\tcourt  shall  be
\n     appointed to  any office  connected
\n     with   the\t   court,   save   after
\n     consultation with\tthe Union Public
\n     Service Commission.\n<\/p><\/blockquote>\n
\t  (2) Subject  to the provisions
\n     of any  law made by Parliament, the
\n     conditions of  service of\tofficers
\n     and servants  of the  Supreme Court
\n     shall be  such as may be prescribed
\n     by rules  made by the Chief Justice
\n     of India  or by some other Judge or
\n     officer of\t the court authorised by
\n     the Chief\tJustice of India to make
\n     rules for the purpose :\n<\/p><\/blockquote>\n
\t  Provided that\t the rules  made
\n     under this\t clause shall, so far as
\n     they    relate\tto     salaries,
\n     allowances,  leave\t  or   pensions,
\n     require   the   approval\tof   the
\n     President.\n<\/p><\/blockquote>\n
\t  (3)\t  The\t  administrative
\n     expensed  of   the\t Supreme  Court,
\n     including all  salaries, allowances
\n     and  pensions   payable  to  or  in
\n     respect   of   the\t  officers   and
\n     servants of  the  court,  shall  be
\n     charged upon  the Consolidated Fund
\n     of India,\tand any\t fees  or  other
\n     money taken by the court shall form
\n     part of that Fund.”\n<\/p><\/blockquote>\n
23.  Just as Chief Justice of India is the supreme authority
\nin the\tmatter of  Supreme Court Establishment including its
\noffice staff  and officers, so also the Chief Justice of the
\nHigh Court  is the  sole authority  in these  matters and no
\nother\tJudge\tor   officer   can   legally   usurp   those
\nadministrative functions of power.\n<\/p>\n
24.  The power\tof appoint an officer or servant of the High
\nCourt also  includes the  power to  dismiss as\twas held  in
\nPradyat Kumar  Bose vs.\t Hon’ble Chief\tJustice of  Calcutta
\nHigh Court. AIR<\/a> 1956 Sc 385 = 1955 (2) SCR 1331. It was also
\nheld in\t that case  that it  was not necessary for the Chief
\nJustice to  consult  the  State\t Public\t Service  Commission
\nbefore dismissing  the Registrar of the original side of the
\nHigh Court.  In M. Gurumoorthy vs. Accountant General, Assam
\nand Nagaland  & Ors.,  AIR<\/a> 1971 SC 1850 = 1971 Supp SCR 420,
\nit was\theld that  in the  matter of appointment of the High
\nCourt officers\tand  servants,\tthe  Chief  Justice  is\t the
\nsupreme authority  and there  can be  no interference by the
\nexecutive except  to the limited extent indicate din Article\n<\/p>\n
229. If, however, the matter relates to pay fixation, it has
\nto have\t the approval  of the  Governor of  the State. (See:
\nState of  Assam vs. Bhubhan Chandra Datta & Anr. AIR<\/a> 1975 SC
\n889, (1975) 4 SCC 1 = 1975 (3) SCR 854)\n<\/p>\n
25.  Since, under  the Constitution,  Chief Justice has also
\nthe power to make rules regulating the conditions of service
\nof the\tofficers and  servants of  the\tHigh  Court,  it  is
\nobvious that  he can  also prescribe  the  scale  of  salary
\npayable for  a particular  post. This would also include the
\npower to  revise the  scale of\tpay. Since such a rule would
\ninvolve finance,  it has  been provided\t in the Constitution
\nthat it\t will require the approval of the Governor which, in
\nother words, means the State Government. This Court in State
\nof Andhra Pradesh & Anr. vs. T. Gopalakrishnan Murthi & Ors.
\nAIR<\/a> 1976  Sc 123 = 1976 (1) SCR 1008, had expressed the hope
\nthat “one should accept in the fitness of things and in view
\nof the\tspirit of  Article 229 that the approval, ordinarily
\nand generally,\twould be  accorded.” This  was reiterated by
\nthis Court  in Supreme\tCourt Employees\t Welfare Association
\nvs. Union  of India,  AIR<\/a> 1990\tSC 334\t= 1989 (3) SCR 488 =
\n(1989) 4  SCC 187. We again reiterate the hope and feel that
\nonce the  Chief Justice,  in  the  interest  of\t High  Court
\nadministration, has  taken a  progressive step\tspecially to
\nameliorate the\tservice conditions of the officers and staff
\nworking under  him, the\t State Government would hardly raise
\nany objection  to the  sanction\t of  creation  of  posts  or
\nfixation  of   salary  payable\t for  that   post   or\t the
\nrecommendation for  revision of scale of pay if the scale of
\npay of\tthe equivalent\tpost  in  the  Government  has\tbeen
\nrevised.\n<\/p>\n
26.  The status,  functions and\t duties of the Chief Justice
\nqua other  Judges of the High Court was considered by a Full
\nBench of  the Allahabad\t High Court  of which  one of us (S.
\nSaghir Ahmad.  J.) was\ta member, in Sanjay Kumar Srivastava
\nvs. Acting  Chief Justice  & Ors.  (1996)  Allahabad  Weekly
\nCases 644, in which it was, inter alia, observed as under:-\n<\/p>\n
     “The Chief Justice may constitute a
\n     Bench of  two  or\tmore  Judges  to
\n     decide a  case or\tany question  of
\n     law formulated by a Bench hearing a
\n     case.  In\t the  latter   even  the
\n     decision  of   such  Bench\t of  the
\n     question  so  formulated  shall  be
\n     returned to  the Bench  hearing the
\n     case and  that Bench  shall  follow
\n     that decision  on such question and
\n     dispose of\t the case after deciding
\n     the remaining  questions,\tif  any,
\n     arising therein.”\n<\/p><\/blockquote>\n
27.  It was further observed:-\n<\/p>\n
     “Under Rule  6 of\tChapter V of the
\n     Rules of  Court,  it  can\twell  be
\n     brought to\t the notice of the Chief
\n     Justice through  an application  or
\n     even otherwise  that  there  was  a
\n     case which\t is required to be heard
\n     by a  larger Bench on account of an
\n     important\tquestion  of  law  being
\n     involved in  the case or because of
\n     the conflicting  decisions\t on  the
\n     point in issue in that case. If the
\n     Chief Justice  takes congnizance of
\n     an\t application   laid  before  him
\n     under Rule\t 6 of  Chapter V  of the
\n     Rules of  Court and  constitutes  a
\n     Bench of  two  or\tmore  Judges  to
\n     decide the\t case, he cannot be said
\n     to have  acted in\tviolation of any
\n     statutory provisions.”\n<\/p><\/blockquote>\n
28   The Full Bench also observed:-\n<\/p>\n
     “In View  of the above, it is clear
\n     that the  Chief  Justice  enjoys  a
\n     special  status   not  only   under
\n     Constitution but  also under  Rules
\n     of Court,\t1952 made in exercise of
\n     powers conferred  by Article 225 of
\n     the Constitution. The Chief Justice
\n     alone can\tdetermining jurisdiction
\n     of various\t Judges of the Court. He
\n     alone cane\t assign work  to a Judge
\n     sitting alone  and\t to  the  Judges
\n     sitting in\t Division  Bench  or  to
\n     Judges sitting  in Full  Bench.  He
\n     alone  has\t  the  jurisdiction   to
\n     decide which  case will be heard by
\n     a Judge sitting alone or which case
\n     will  be\theard  by  two\tor  more
\n     Judges.\n<\/p><\/blockquote>\n
     The  conferment   of   this   power
\n     exclusively on the Chief Justice is
\n     necessary so  that\t various  Courts
\n     comprising of  the\t Judges\t sitting
\n     alone or  in Division  Bench  etc.,
\n     work in  a co-ordinated  manner and
\n     the Jurisdiction  of one  court  is
\n     not over  lapped by other Court. If
\n     the  Judges  were\tfree  to  choose
\n     their jurisdiction\t or  any  choice
\n     was given\tto them\t to do\twhatever
\n     case they\tmay  like  to  hear  and
\n     decide, the  machinery of the Court
\n     would  collapse  and  the\tjudicial
\n     functioning  of   the  Court  would
\n     cease  by\tgenerating  of\tinternal
\n     strife on\taccount of hankering for
\n     a\tparticular   jurisdiction  or  a
\n     particular case.  The  nucleus  for
\n     proper functioning\t of the Court is
\n     the    “self”     and    “judicial”
\n     discipline\t of   judges  which   is
\n     sought to\tbe achieved  by Rules of
\n     Court by  placing in  the hands  of
\n     the Chief\tJustice\t full  authority
\n     and power to distribute work to the
\n     Judges  and   to\tregulate   their
\n     jurisdiction and sittings.”\n<\/p><\/blockquote>\n
29.  This decision  has been approved by this Court in State
\nof Rajasthan  vs. Prakash Chand, JT<\/a> 1997 (9) SC 492 = (1998)
\n1 SCC  1, which\t incidentally is  a case  originating in the
\nRajasthan High\tCourt from where this appeal has come before
\nus.\n<\/p>\n
30.  Apart from the fact that the impugned directions to the
\nRegistrar are  contrary to  Article 229,  they also have the
\neffect of  negativing the impact of the Rajasthan High Court
\n(Conditions of\tService of  Staff) Rules,  1953 made  by the
\nChief Justice in exercise of power conferred by Article 229.
\nRule 2 specifies the strength of staff. It provides that the
\nstaff shall  consist of\t the posts  specified in  the second
\ncolumn of  Schedule I attached to the rules. It also provide
\nthat the  Chief\t Justice  may,\tfrom  time  to\ttime,  leave
\nunfilled or hold in abeyance any vacant post. Tue rules also
\nprovide that  the Chief\t Justice may  increase or reduce the
\nstrength of  staff. Method of recruitment has been specified
\nin Rule 2A as under:-\n<\/p>\n
     “2A. Method  of  recruitment:-  (1)
\n     Recruitment to  a post  or category
\n     of posts  specified in  the  second
\n     column of\tSchedule I shall be made
\n     by one  or more  of  the  following
\n     methods, namely, –\n<\/p><\/blockquote>\n
\t  (a) by direct recruitment, or\n<\/p><\/blockquote>\n
\t  (b) by promotion of a person
\n\t       already employed in the
\n\t       High Court, or\n<\/p><\/blockquote>\n
\t  (c) by transfer from
\n\t       subordinate courts or
\n\t       offices of the
\n\t       State Government.\n<\/p><\/blockquote>\n
\t  Provided   that    the   Chief
\n     Justice or\t subject  to any general
\n     or\t special   order  of  the  Chief
\n     Justice, the  Registrar  may  order
\n     transfer  of   any\t member\t of  the
\n     ministerial  or   class  IV   staff
\n     serving on the establishment of the
\n     High Court to any Court subordinate
\n     to the High Court and vise versa on
\n     such terms and conditions as may be
\n     deemed proper.\n<\/p><\/blockquote>\n
\t  (2)  The  Chief  justice  may,
\n     from time\tto time,  by general  or
\n     special order:-\n<\/p><\/blockquote>\n
\t  (a) specify  the  method    by
\n     which  recruitment\t to  a\tpost  or
\n     category of posts shall be made,\n<\/p><\/blockquote>\n
\t  (b) determine\t the  proportion
\n     of vacancies  to be  filled by each
\n     method of in case of recruitment by
\n     more than one method, and\n<\/p><\/blockquote>\n
\t  (c)  specify\t the  manner  in
\n     which  such  recruitment  shall  be
\n     made  in\tthe   case   of\t  direct
\n     recruitment.\n<\/p><\/blockquote>\n
     (3)  Recruitment  to  the\tpost  of
\n     Court Officer  shall be  made & (by
\n     selection from  the  staff\t or)  by
\n     direct  recruitment  in  accordance
\n     with  such\t  method   as\tmay   be
\n     prescribed by the Chief Justice.”\n<\/p><\/blockquote>\n
31.  This rule\tcontemplates that the Chief Justice may fill
\ncertain posts  by appointing  officers on transfer from sub-
\nordinate courts.  Schedule I indicated that against the post
\nof Registrar,  Registrar (Vigilance),  Additional Registrar,
\nAdditional  Registrar\t(Vigilance),  Additional   Registrar
\n(Writs), Officer  on Special Duty (Rules). Principal Private
\nSecretary to  Hon’ble Chief  Justice  and  Deputy  Registrar
\n(Judicial), the\t words “R.H.J.S.  Cadre” have been mentioned
\nwhich means   that  officers belonging\tto Rajasthan  Higher
\nJudicial Service  alone can be appointed on these posts. The
\nrules made under Article 229 of the Constitution have, thus,
\nspecified the  posts on\t which\tofficers  of  the  Rajasthan
\nHigher Judicial Service or Rajasthan Judicial Service are to
\nbe appointed.  The  method  of\trecruitment  has  also\tbeen
\nindicated. All appointments on these posts are to be made by
\nthe Chief  Justice. These  rules can  be altered, amended or
\nrescinded only\tby the Chief Justice who alone has the rule-
\nmaking power.\n<\/p>\n
32.  If\t the   impugned\t directions  are  analysed  in\tthis
\nbackground, it\twill be\t seen that  the real  purport of the
\ndirections is  to  over-ride  not  only\t the  constitutional
\nprovisions contained  in Article 229 but also the rules made
\nin exercise  of powers\tavailable to the Chief Justice under
\nthat Article.  Even if\tthe Registrar,\tin compliance of the
\nimpugned direction,  is to  report that\t the posts  on which
\nofficers  of   the  Rajasthan  Higher  Judicial\t Service  or
\nRajasthan Judicial  Service are appointed on Deputation, can
\nwell be\t managed by the High Court staff itself or that when
\nthe officers  are brought  from the  District Courts  to the
\nHigh Court  for appointment  on the aforesaid posts, some of
\nthe sub-ordinate  courts  become  vacant  as  the  Presiding
\nOfficers having\t been sent  on deputation  to High Court are
\nnot available  to hear and dispose of cases pending in those
\ncourts and  even if  such report  is placed  before the Full
\nCourt, can  the Full  Court give  a direction  to the  Chief
\nJustice not  to fill  up those posts by bringing Officers on
\ndeputation but\tto fill\t up those  posts by  promotion\tfrom
\namongst the  High Court\t staff? The  answer is\t an emphatic
\n“No,  it  cannot  be  done”.  A\t Judge\tof  the\t High  Court
\nindividually or\t all the  Judges sitting collectively, as in
\nthe Full  Court,  cannot  either  alter\t the  constitutional
\nprovisions or the rules made by the Chief Justice. They have
\nno jurisdiction even to suggest any constitutional amendment
\nor amendment  in the rules made by the Chief Justice nor can
\nthey create any avenue of promotion for the High Court staff
\nso as  to be  appointed on  posts meant\t for  Officers\tfrom
\nRajasthan Higher  Judicial  Service  or\t Rajasthan  Judicial
\nService. The  Chief Justice has been vested with wide powers
\nto run the High Court Administration independently so as not
\nto brook  any interference  from any  quarter, not even from
\nhis  Brother   Judges  who,   however,\tcan  scrutinise\t his
\nadministrative action or order on the judicial side like the
\naction of  any other  authority. It should not be lost sight
\nthat Registrars,  under Rules  of various  High Courts, have
\nalso to perform some limited judicial functions which cannot
\nbe done\t by an\tofficer other than a Judicial Officer in the
\nHigh Court establishment.\n<\/p>\n
33.  There is  yet another  aspect. If\tunder the High Court
\nRules, it  has been  provided that  certain posts  shall  be
\nmanned by  the officers\t of the Rajasthan Judicial or Higher
\nJudicial Service  who would  be appointed  on those posts on
\ndeputation, the\t other Judges  of the High Court cannot, nor
\ncan  the   employees  of   the\tcourt\traise,\tpossibly  or
\nlegitimately, any  grievance.  Since  power  of\t appointment
\nwhich vests  absolutely\t in  the  Chief\t Justice  cannot  be
\nexercised by  any other Judge of the High Court, the latter,
\nnamely, other  Judge or\t Judges, cannot\t exercise that power
\neven indirectly\t as has\t been attempted\t to be\tdone in\t the
\ninstant case.  By directing  the Registrar  of the  court to
\nsubmit a report whether the posts on which officers from the
\nRajasthan Judicial  Service are\t appointed on deputation can
\nbe manned by the High Court staff and further directing such
\nreport\tto   be\t placed\t  before  the  Full  Court  for\t the
\nconsideration of  other Judges\ton the\tadministrative side,
\nthe Hon’ble Judges have attempted to indirectly exercise the
\npower of  appointment on  certain posts\t in the\t High  Court
\nestablishment on  which appointment  can be made only by the
\nChief Justice. The learned Judges who disposed of the matter
\nwere themselves\t of the\t opinion that  this question was not
\nrequired to  be decided\t for the  effective decision  of the
\nWrit Petition pending before them. As such, they should have
\nstopped there  and should  not have  proceeded to  give\t the
\nimpugned direction  to\tthe  Registrar\tof  the\t High  Court
\nparticularly as\t it is\tdifficult to  believe that the Cadre
\nstrength of  Rajasthan Judicial\t Service or  Higher Judicial
\nService is  so weak  or depleted  that no  substitute can be
\nprovided for  eight officers (maximum under Rules) placed on
\ndeputation in the High Court.\n<\/p>\n
34.  Learned made a feeble attempt to invoke Article 235 and
\ncontended  the\t“High  Court”  does  not  mean\tmere  “Chief
\nJustice” but   “all  Judges  collectively”  and,  therefore,
\nimpugned directions  could be validly issued. We reject this
\ncontentions for reasons set out hereinbelow.\n<\/p>\n
35.  Chapter VI\t deals with sub-ordinate courts. Article 233
\nprovides for  the appointment of District Judges. A District
\nJudge is  to be\t appointed by  the Governor  of the State in
\nconsultation with  the High Court. Article 234 provides that
\nappointment of\tpersons, other\tthan District Judges, to the
\nJudicial Service of a State shall be made by the Governor of
\nthe State  in accordance  with the rules made by him in that
\nbehalf\t after consultation  with the  State Public  Service
\nCommission and\tthe High  Court.  Article  235\tprovides  as
\nunder:-\n<\/p>\n
     “235.  Control   over   subordinate
\n     courts. – The control over district
\n     courts   and   courts   subordinate
\n     thereto including\tthe posting  and
\n     promotion\tof,  and  the  grant  of
\n     leave to,\tpersons belonging to the
\n     judicial service  of  a  State  and
\n     holding any  post inferior\t to  the
\n     post of district shall be vested in
\n     the High Court, but nothing in this
\n     article  shall   be  construed   as
\n     taking away  from any  such  person
\n     any right\tof appeal  which he  may
\n     have under\t the law  regulating the
\n     conditions of  his\t service  or  as
\n     authorising the  High Court to deal
\n     with   him\t   otherwise   than   in
\n     accordance with  the conditions  of
\n     his service  prescribed under  such
\n     law.”\n<\/p><\/blockquote>\n
36.  This Article  shows that the High Court has to exercise
\nits administrative,  judicial and  disciplinary control over
\nthe members  of the  Judicial Service of the State. The word
\n“control”, referred  to\t in  this  Article,  is\t used  in  a
\ncomprehensive sense  to include\t general superintendence  of
\nthe working of the sub-ordinate courts, disciplinary control
\nover the  Presiding Officers  of the sub-ordinate courts and
\nto recommend  the imposition  of  punishment  of  dismissal,
\nremoval and  reduction in  rank\t or  compulsory\t retirement.
\n“Control” would\t also include  suspension of a manner of the
\nJudicial Service  for purposes\tof  holding  a\tdisciplinary
\nenquiry, transfer,  confirmation and  promotion. (See: State
\nof Haryana  vs. Inder Prakash Anand, AIR<\/a> 1976 Sc 1841 = 1976
\n(Supp.) SCR  603 = (1976) 2 SCC 977; State of U.P. vs. Batuk
\nDeo Pati  Tripathi,<\/a> (1978) 2 SCC 102 = 1978 (3) SCR 131). In
\nState of Gujarat vs. Ramesh Chandra Mashruwala, AIR<\/a>  1977 SC
\n1619 = 1977 (2)\t SCr 710 = (1977) 2 SCC 12, it was held that
\nthe “control”  in Article  235 means  exclusive and not dual
\ncontrol. (See  also: Chief  Justice of Andhra Pradesh & Anr.
\nvs. L.V.A.  Dikshitulu. AIR<\/a>  1979 SC 193 = 1979 (1) SCR 26 =
\n(1979) 2  SCC 34;  State of  West Bengal  vs. Nripendra Nath
\nBagchi, AIR<\/a>  1966 SC 447 = 1966 (1) SCR\t 771).\n<\/p>\n
37.  In Tejpal\tSingh (Dead)  Lrs. vs. State of U.P. & Anr.,
\nAIR 1986  SC 1814  = 1986  (3) SCR 428 = (1986) 3 SCC 604 as
\nalso in G.S. Nagmoti  vs. State of Mysore (1969) 3 SCC 325 =
\n1970 SLR 911, it was held that the “control”, referred to in
\nArticle 235, vests in the High Court and not in any Judge or
\nJudges or any Committee thereof. In a subsequent decision in
\nRegistrar, High\t Court of  Madras vs. R. Rajiah. AIR<\/a> 1988 SC
\n1388 =\t1988 Supp. (1) SCR 332 = (1988) SCC 211, it was held
\nthat there is no bar to have an enquiry made by\t a Committee
\nof several  Judges against  a  member  of  the\tsub-ordinate
\njudiciary provided the report of the Committee is circulated
\nto all\tthe Judges and the ultimate decision is taken in the
\nmeeting of the Full Court.\n<\/p>\n
38.  What is, therefore, of significance is that although in
\nArticle 235, the word “High Court” has been used, in Article
\n229,  the   word  “Chief   Justice”  has   been\t used.\t The
\nConstitution,  therefore,   treats  them   as  two  separate
\nentities in  as much  as “control  over Sub-ordinate Courts”
\nvests in the High Court, but High Court administration vests
\nin the Chief Justice.\n<\/p>\n
39.The impugned\t direction whether  the posts  in  the\tHigh
\nCourt on  which Officers  on deputation are appointed can be
\nmanaged by  the High Court staff is patently contrary to the
\nmandate of  Article 229 vesting High Court Administration in
\nthe  Chief   Justice  and  purports  to\t encroach  upon\t his
\nauthority.\n<\/p>\n
40.  As pointed\t out above, under the constitutional scheme,
\nChief Justice is the supreme authority and the other Judges,
\nso far\t as  officers and  servants of\tthe High  Court\t are
\nconcerned, have\t no role to play on the administrative side.
\nSome Judges, undoubtedly, will become Chief Justice in their
\nown turn  one day, but it is imperative under constitutional
\ndiscipline that\t they work  in tranquility. Judges have been
\ndescribed as  “hermits”. They  have to\tlive and behave like
\n“hermits” who  have no\tdesire or aspiration, having shed it
\nthrough penance.  Their mission\t is to\tsupply light and not
\nheat. This  is necessary  so that their latent desire to run
\nthe High  Court administration\tmay not support before time,
\nat least, in some cases.\n<\/p>\n
41.  For the  reasons stated  above, this appeal is allowed.
\nThe judgment  dated  28.09.93  passed  by  the\ttwo  learned
\nJudges, in  so far  as it  relates to  the direction  to the
\nRegistrar, set\tout in\tthe earlier part of the judgment, is
\nset aside.  The judgment  in all  other respects  is upheld.
\nThere will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India High Court Of Judicature For … vs Ramesh Chand Paliwal & Anr on 19 February, 1998 Author: S Ahmad. Bench: S. Saghir Ahmad, G.B. Pattanaik 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-36958","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHigh Court Of Judicature For ... vs Ramesh Chand Paliwal & Anr on 19 February, 1998 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/high-court-of-judicature-for-vs-ramesh-chand-paliwal-anr-on-19-february-1998\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"High Court Of Judicature For ... vs Ramesh Chand Paliwal & Anr on 19 February, 1998 - 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