Full Judgment Text
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PETITIONER:
STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
BATUK DEO PATIL TRIPATHI & ANR.
DATE OF JUDGMENT21/02/1978
BENCH:
ACT:
Compulsory retirement of a District Judge from service on
the opinion recorded by the Administrative Committee
constituted under rule 1 of Chapter III of the Rules of the
Allahabad High Court, 1952 framed under Art. 225 of the
Constitution, whether valid--Authorising the Administrative
Committee consisting of its own judges does not amount to
self--abnegation of the High Court’s powers.
Constitution of India, 1950, Articles 216, 225 and
235--The High Courts have the power to frame rules for
regulating the manner in which the control vested in it may be
exercised.
Civil Service Regulations, Art. 465, 465A--Powers of
Government to compulsorily retire.
HEADNOTE:
The Allahabad High Court, in exercise of powers conferred
upon it by Art. 225 of the Constitution and all other powers
enabling it in that behalf has framed Rules, known as the
Rules of Court, 1952. Under Rule 1 of Chapter III of the
Rules, an Administrative Committee composed of the Chief
Justice, the Judge in the Administrative Department and five
other judges appointed by the Chief Justice was constituted
to act for the Court. Under Rule 7, all matters laid before
the Administrative Committee and the manner in which those
matters were disposed of are to be circulated in a statement
to all the Judges of the Court for their information.
In one of the meetings of the Administrative Committee of
the High Court which was held on January 9, 1974, it was
resolved by the Committee that respondent No. 1 should be
retired compulsorily from service. The Registrar of the
High Court communicated the decision of that Committee to
the State Government on January 15, 1974 and thereafter on
January 17, 1974 circulated the minutes of the Committees
meeting to the other judges of the High Court for "their
information". The Governor of U.P. accepted the
recommendation of the Administrative Committee and retired
respondent 1 compulsorily by an order dated February 27,
1975.
Respondent 1 assailed the said orders by an application
under Art. 226, inter-alia, on the ground that " the order
is illegal inasmuch as it was passed on the recommendation
of the Administrative Committee, while Art. 233 of the
Constitution requires consultation by the Governor with the
entire High Court and not with a Committee consisting of a
few Judges of the, High Court". This ground found favour
with the Division Bench which heard it. But considering
that such a view was likely to upset the settled practice of
the Court and that it was likely to be in conflict with that
Court’s decision in Civil Misc. No. 1254 of 68 dt. 23-2-70.
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they directed that the papers of the case be placed before
the learned Chief Justice for constituting a Full Bench to
consider the question "whether in view of Art. 233 of the
Constitution, consultation with the entire High Court is
necessary. before making an order of compulsory retirement
against the District Judge ?"
The Division Bench and initially the Full Bench heard
arguments on the supposition that the power to retire a
District Judge compulsorily is an incident of the power of
appointment contained in Art. 233(1) of the Constitution
which provides that appointments of persons to be and the
posting and promotion of
132
District Judge in any State shall be made by the Governor of
the State in consultation with the High Court exercising
jurisdiction in relation to such state. After the Full
Bench reserved its judgment this Court held in High Court of
Punjab and Haryana v. State of Haryana and Ors., [1975] 3
S.C.R. 365 that compulsory retirement of a District Judge is
not an incident of the power of appointments conferred by
Art. 233 of the Constitution but is an incident of the
control rested in the High Court by Art. 235. Consequently,
the Full Bench reframed the question referred to it as
"whether a District Judge can be compulsorily retired from
service on the opinion recorded by the Administrative
Committee constituted under Rule 1 of Chapter III of the
Rules of the Court ? The Full Bench also framed an
additional question viz. "Whether circulation of a
statement to all the Judges of the Court showing what
matters were laid before the Administrative Committee and
the manner in which these matters were disposed of amounts
to consultation with the Full Court ?
Asthana C.J., who presided over the Full Bench answered both
the questions in the negative. K. N. Singh and C. S. P.
Singh JJ. agreed by a separate judgement with the learned
Chief Justice. M. N. Shukla and H. N. Seth JJ. took a
contrary view and held that a District Judge can be
compulsorily retired from service on the opinion recorded by
the Administrative Committee. They did not consider it
necessary to express any opinion on the second question.
The Writ Petition was allowed according to the majority
view, by the Division Bench. A consequential declaration
was granted by the Bench that respondent No. 1 should be
treated as continuing in service and was entitled to all the
privileges pay and allowances which were permissible and
payable to him under the law.
Allowing the appeal by special leave and affirming the
minority judgment of the Full Bench, the Court
HELD : 1. (a) The minority view of the Full Bench that Rule
1 of Chapter III of the 1952 Rules framed by the Allahabad
High Court is within the frame work of Art. 235. The
recommendation made by the Administrative Committee that the
respondent should be compulsory retired does not suffer from
any legal or constitutional infirmity. [145 E]
(b) The amplitude of the power conferred by Article 235,
the imperative need that the High Courts must be enabled to
transact their administrative business more conveniently and
an awareness of the realities of the situation, particularly
of the practical difficulties involved in a consideration by
the whole Court, even by circulation, of every day-to-day
matter pertaining to control. over the District and
subordinate Courts, lead to the conclusion that by rules
framed under Art. 235 of the Constitution, the High Courts
ought to be conceded the power to authorise an
Administrative Judge or an Administrative Committee of
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Judges to act on behalf of the Court. [145 D-E]
(c) It is wrong to characterize as "delegation" the process
whereby the entire High Court authorises a judge or some of
the Judges of the Court to act on behalf of the whole Court.
Such an authorisation effectuates the purpose of art. 235
and indeed without it the control vested in the High Courts
over the subordinate Courts will tend gradually to become
lax and ineffective. Administrative functions are only a
part, though an important part, of the High Court’s
constitutional functions. Judicial functions ought to
occupy and do in fact consume the best part of a Judges
time. For balancing these two-fold functions it is
inevitable that the administrative duties should be left to
be discharged by some on behalf of all the Judges. Judicial
functions brooke no such sharing of responsibilities by any
instrumentality. [144 D-F]
(d) The Administrative Judge or the Administrative
Committee is a mere instrumentality through which the entire
Court acts for the more convenient transaction of its
business, the assumed basis of the arrangement being that
such instrumentalities will only act in furtherance of the
broad policies evolved from time to time by the High Court
as a whole. Each Judge of the High Court is
133
an integral limb of the Court. He is its alterego. It is
therefore inappropriate to say that a Judge or a Committee
of Judges of the High Court authorised by the Court to art
on its behalf is a delegate of the Court. [144 G-H]
2. (a) The majority view of the High Court Full Bench that
by leaving the decision of the question of the respondent’s
compulsory retirement to the Administrative Committee, the
Court hid abdicated its Constitutional function is not
correct. [142 G-H]
(b) According to the view of the majority the act of the
Court in allowing the Administrative Committee to decide
that question under Rule 1 of Chapter III of the
Administrative Committee to decide that question under Rule
1 of Chapter HI of the 1952 Rules is an act of "self-
abnegation" and therefore, void. This approach betrays a
misunderstanding of Article 235. [142-H]
(c) The ideal which inspired the provision (Art. 235) that
the control over District Courts and Courts Subordinate
thereto shall vest in the High Court is that those wines of
the judiciary should be independent of the executive. It is
in order to effectuate that high purpose that Article 235
requires that all matters relating to the subordinate
judiciary including compulsory retirement and disciplinary
proceedings, but excluding the imposition of punishments
failing within the scope of Article 311 and the first
appointments and promotions, should be dealt with and
decided upon by the High Court. [142 H, 143 A-B]
High Court of Punjab & Haryana v. State of
Haryana and Ors. [1975] 3 SCR 365, Shamshter
Singh. v. State of Punjab, [1975] 1 SCR 814;
State of Haryana v. Indra Prakash, A.I.R.
[1976] S.C. 1841, Misra (B.) v. Orissa High
Court, A.I.R. [1976] S.C. 1899; West Bengal
v. Nripendra Nath Baghchi A.I.R. [1966]
S.C. 447 referred to.
(d) There is no parallel between what the High Court did in
Shamsher Singh and what has been done in the instant case.
In Shamsher Singh v. State of Punjab the action of the High
Court in asking State Government to depute the Director of
Vigilance to, hold in inquiry against a judicial officer was
deprecated by this Court as an act of "self-abnegation".
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The High Court bad abdicated therein its control over the
subordinate judiciary, which includes the power to hold a
disciplinary inquiry against a defaulting judge, by
surrendering that power to the executive. That truly was an
act of self-abnegation. Here, the decision to compulsorily
retire the respondent was taken by the Judges of the High
Court itself though not by all. If some but not all judges
of the High Court Participate in a decision relating to a
matter which falls within the High Courts’ controlling
jurisdiction over subordinate courts, the High Court does
not efface itself by surrendering its power to an extraneous
authority. The procedure adopted by the High Court under
its Rules is not subversive of the independence of the
subordinate judiciary which is what Article 235 recognises
and seeks to achieve. [143 C-F]
Shamsher Singh v. State of Punjab, [1975] 1 SCR 814;
explained & distinguished.
3. Art. 225, it is true, preserves, inter alia the pre-
constitution powers of existing High Courts to frame rules
and the High Court of Allahabad did not, prior to the
enactment of the Constitution, possess the power to frame
rules authorising a judge or a Committee of judges of the
High Court to act on behalf of the Court. But Article 225
is not the sole repository of the High Court’s power to
frame rules. [140 E-F]
4. The High Court has the power under Art. 235 itself to
frame rules for regulating the manner in which the control
vested in it may be exercised. The relevant part of Art.
235 of the Constitution provides that the control over Dis-
trict Courts and Courts subordinate thereto shall be vested
in the High Court. Since Article 216 provides that every
High Court shall consist of a Chief Justice and such other
judges as the President may from time to time deem it
necessary to appoint, Article 235 has to be construed to
mean that the control over District Courts and Courts
subordinate thereto is vested in the entire body of
134
judges who together constitute the High Court and not in the
Chief Justice as representing the High Court or a smaller
body of judges acting as an Administrative Committee. [140
G-H]
5. (a) But, though the control over subordinate Courts is
vested institutionally in the High Courts by Article 235, it
does not follow that the High Courts have no power to
prescribe the manner in which that control may in practice
be exercised. In fact, the very circumstance that the power
of control, which comprehends matters of a wide-ranging
variety, vests in the entire body of Judges makes it
imperative that rules must be framed to make the exercise of
control feasible, convenient and effective. The seeds of
jurisdiction to frame rules regulating the manner in which
the control over subordinate Courts is to be exercised are
thus to be found in the very nature of the power and in the
fact that the power vests in the entire body of Judges.
[140 H, 141 A-B]
(b) The power to do a thing necessarily carries with it
the power to regulate the manner in which the thing may
be done. It is an incident of the power itself and indeed,
without it, the exercise of the power may in practice be
fraught with difficulties which will frustrate, rather
than further, the object of the power. It is undoubtedly
true that the rules framed for prescribing the manner in
which a power may be exercised have to be truly regulatory
in character. The reason is that under the guise of framing
rules, the essence of the power cannot be permitted to be
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diluted. The abstract power of the High Court to frame
the impugned rules cannot be doubted and must be conceded.
[141 B-E]
6. The power to compulsorily retire the respondent could
be exercised by the Court either under Note 1 of 465A or
Note 1 of article 465 of the Civil Service Regulations. [146
C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1070 of
1977.
(Appeal by special leave from the Judgment and Order dt. 18-
4-77 of the Allahabad High Court in Civil Misc. Writ No.
3561 of 1975)
S. N. Kacker, Sol. General & O. P. Rana, for the
Appellant.
S. N. Misra, E. C. Agrawala, M. M. L. Srivastava & U. S.
Prasad for the respondent.
The Judgment of the Court was delivered by
CHANDRACHUD, J.-Respondent 1, Batuk Deo Pati Tripathi,
joined the Judicial Service of the State of Uttar Pradesh as
a Munsif in 1943 and after intervening promotions, he was
appointed as a District Judge on April 13, 1969. Under
Note (1) to Article 465-A of the Civil Service Regulations,
as adopted for application in Uttar Pradesh, the State
Government may at any time, without assigning any reason,
require any officer to retire on three months’ notice or pay
in lieu of whole or part thereof after he has attained the
age of 50 years. Such decision is required to be taken by
the Government in its Administrative Department and only if
it appears to it to be in public interest to do so. Some
time in 1969 the State Government requested the High Court
of Allahabad, respondent 2 to this appeal, to screen cases
of judicial officers in order to determine which of them
should be retired compulsorily under the aforesaid
provision. In one of the meetings of the Administrative
Committee of the High Court which was held on January 9,
1974, it was resolved by the Committee that respondent 1
should be retired compulsorily from service. The Registrar
of the High Court communicated the decision of the
Administrative Committee to the State Government, appellant
herein, and thereafter, he
135
circulated to all the Judges of the High Court, for their
intimation, the decision taken by the Administrative
Committee. The Governor of U.P. accepted the
recommendation of the Administrative Committee and retired
respondent 1 compulsorily by an order dated February 27,
1975.
Respondent 1 filed a writ petition under Article 226 of the
Constitution against the State of Uttar Pradesh and the
Allahabad High Court challenging the validity of the
aforesaid order on the following grounds
(1) The order is illegal since no salary was
paid to respondent 1 at the time when the
order was passed;
(2) The order is really in the nature of
punishment since it casts a stigma and is
therefore contrary to Article 311 of the
Constitution;
(3) Article 465-A of the Civil Service
Regulations in so far it purports to empower
the Government to consult the administrative
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head of the Department before passing an order
thereunder, contravenes Article 233 of the
Constitution;
(4) The order was passed on irrelevant
considerations since the High Court had taken
into account the character roll entries of
respondent 1 prior to the date when he was
allowed to cross the efficiency bar;
(5) The order is arbitrary, capricious and
perverse; and the satisfaction that it was in
public interest to retire respondent 1
compulsorily was based on no material;
(6) The order was passed by the Governor
without any application of mind since it was
passed in pursuance of a general policy agreed
upon between the Governor and the Chief
Justice of the High Court, that
recommendations of the High Court for
retirement of judicial officers should be
accepted without scrutiny; and
(7) The order is illegal inasmuch as it was
passed on the recommendation of the
Administrative Committee, while Article 233 of
the Constitution requires consultation by the
Governor with the entire High Court and not
with a committee consisting of a few Judges of
the Court.
A Division Bench of the High Court consisting of Gulati and
C. S. P. Singh, JJ. rejected the first six contentions by
their judgment dated December 5, 1975. On the 7th
contention they were inclined to the view that Article 233
of the Constitution postulates consultation with the entire
High Court and therefore the High Court in the exercise of
its rule-making power cannot delegate its function to a
smaller body. But considering that such a view was likely
to upset the settled practice
136
of the Court and that it was likely to be in conflict with
the decision in Civil Misc. Writ No. 1254 of 1968 dated
February 23, 1970, they directed that the papers of the case
be placed before the learned ’Mel’ Justice for constituting
a Full Bench to consider the question "whether in view of
Article 233 of the Constitution, consultation with the
entire High Court is necessary before making an order of
compulsory retirement against the District Judge".
The Writ Petition was then placed for hearing before a Fun
Bench of the High Court consisting of five learned Judges.
The Division Bench and initially the Full Bench heard
arguments on the supposition that the power to retire a
District Judge compulsorily is an incident of the power of
appointment contained in Article 233(1) of the Constitution
which provides that appointments of persons to be and the
posting and promotion of District Judges in any State shall
be made by the Governor of the State in consultation with
the High Court exercising jurisdiction in relation to such
State. After the Full Bench reserved its judgment, this
Court held in High Court of Punjab and Haryana v. State of
Haryana & Ors.(1) that the initial appointment and initial
promotion of District Judges rested with the Governor, but
once they were appointed or promoted to be District Judges
the entire control, over them was vested in the High Court.
The power of the Governor in the matter of appointment
included the power of dismissal, removal and reduction in
rank but since compulsory retirement is neither dismissal,
removal nor reduction in rank the power in that behalf
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vest,-, in the High Court and not in the Governor. In view
of the judgment of this Court referred to above and certain
other judgments, it is clear that compulsory retirement of a
District Judge is not an incident of the powers of
appointment conferred by Article 233 of the Constitution but
is an incident of the control vested in the High Court by
Article 235. Consequently, the Full Bench reframed the
question referred to it as follows
"Whether a District Judge can be compulsorily
retired from service on the opinion recorded
by the Administrative Committee constituted
under rule 1 of Chapter ITT of the Rules of
the Court".
The Full Bench also framed an additional
question,
"Whether circulation of a statement to all the
Judges of the court showing what matters were
laid before the Administrative Committee and
the manner in which those matter.-, were
disposed of amounts to consultati on with the
Full Court".
Asthana, C.J., who presided over the Full Bench, answered
both the questions in the negative, K. N. Singh and C. S. P.
Singh, JJ., agreed by a separate judgment with the learned
Chief Justice. M. N. Shukla and H. N. Seth, JJ. took a
contrary view and held that a District Judge can be
compulsorily retired from service on the opinion recorded by
the Administrative Committee. They did not consider it
necessary to express any opinion on the second question.
(1) A.I.R. 1975 S.C. 613 ; [1975] 3 S.C.R. 365.
137
The Writ Petition then went back to a Division Bench for
disposal which, in accordance with the majority view, set
aside the order by which respondent 1 was compulsorily
retired and allowed the petition. A consequential
declaration was granted by the Bench that respondent 1
should be treated as continuing in service and was entitled
to all the privileges, pay and allowances which were
permissible and payable to him under the law. Being
aggrieved by the judgment, the State of Uttar Pradesh has
filed this appeal by special leave. Since the High Court of
Allahabad which was impleaded as respondent 2 to the Writ
Petition had no effective contentions to make in the matter,
we will for the sake of convenience refer to respondent 1 as
"the respondent".
The main question for consideration is whether a District
Judge can be compulsorily retired from service on the basis
of the opinion recorded by the Administrative Committee
constituted under rule 1 of Chapter III of the Rules of the
Court. It is necessary for a determination of this question
to refer to the relevant Rules of the Allahabad High Court.
The High Court, to the exercise of the powers conferred upon
it by Article 225 of the Constitution and all other powers
enabling it in that behalf, has framed Rules known as the
Rules-of Court, 1952. The relevant rules contained in
Chapter III of the Rules are these
CHAPTER III
EXECUTIVE AND ADMINISTRATIVE BUSINESS OF THE
COURT
1. Subject to these Rules, a Committee of
Judges composed of the Chief Justice, the
Judge in the Administrative Department and
five other Judges to be appointed by the Chief
Justice, referred to in these Rules as the
Administrative Committee, shall act for the
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Court. The Chief Justice shall have the
charge of, and may act for the court in
the Administrative Department and the
executive and administrative business
pertaining to the Court, except that the Judge
in the Administrative Department shall have
charge of, and may act for the Court in the
Administrative Department and the executive
and administrative business pertaining to the
Courts subordinate to the Court. As far as
possible, the Judge in the Administrative
Department shall discharge his duties and
functions in consultation with the Inspection
Judges concerned, who shall be appointed by
the Chief Justice from time to time.
The membership of the Committee shall be for
two years except in the case of the Chief
Justice and the Judge in the Administrative
Department.
2. From time to time and as occasion arises
the Chief Justice shall nominate one of the
Judges to act as the Judge in the
Administrative Department, whose terms of
office shall be three years unless
renominated.
10-211 SCI/78
138
3. All executive and administrative
business and all business in the
Administrative Department requiring orders,
shall be submitted by the Registrar to the
Chief Justice or the Judge in the
Administrative Department, as the case may be,
together with his comments thereon, if any and
may,: subject to these Rules, be disposed of
by that Judge’.
4. The Judge in the Administrative
Department shall, before passing final orders,
cause to be circulated for the information of
the Judges of the Administrative Committee
then present in Allahabad, his recommendations
as to the appointment, promotion or suspension
of judical officers.
Should any Judge dissent from such
recommendations, he shall signify his dissent
and his reasons therefor in writing.
5. (1) In regard to the following matters
the Judge in the Administrative Department
shall consult the Administrative Committee
either by circulating the papers connected
with the matter together with his own opinion
or recommendation thereon to the members of
the Committee then present in Allahabad or by
laying it before a metting of the Adminis-
trative Committee, namely-
(a) the issue of General Letters to
subordinate courts;
(b) the issue of directions regarding the
preparation of returns and statements;
(c) all matters of importance upon which the
Government desires the opinion of the Court;
(d) appointment of the U.P. Higher Judicial
Service; and
(e) any other matter which the Chief Justice
or the Judge
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in the Administrative Department may consider
fit to be laid before it for consideration.
(2) Copies of all General Letters issued to
subordinate courts shall be circulated to all
Judges for information as soon as may be after
issue.
7. As soon as the Administrative Committee
has disposed of any business, a statement
showing what matters were laid before the
Committee and the manner in which they were
disposed of shall be circulated for
information to all Judges except such Judges
as may be on leave.
8. On the following matters all Judges
shall be consulted,
namely-
(a) proposals as to legislation or changes
in the law;
(b) proposals as to changes in or the issue
of new Rules of Court;
139
(c) proposals as to changes in or the issue
of new rules for the guidance of subordinate
courts;
(d) withholding of promotion, supersession
or reduction of judicial officers, not
occasioned by the selection of officers for
appointment to the U.P. Higher Judicial
Service;
(e) important questions of policy or those
affecting the powers and status of the Court;
(f) matters connected with the Supreme Court;
(g) annual administration report due for
submission to Government before it is adopted
by the Administrative Committee;
(h) deleted.
(i) any other matter which the Chief Justice
of the Administrative Committee may consider
fit to be laid before them for consideration.
12. So far as convenient, papers for circulation shall be
sent by the Registrar to the Judges at Allahabad and at
Lucknow in their order of seniority, commencing with the
junior Judge. The Registrar shall so far as practicable,
obtain from each Judge such papers within three days from
the date when the same are sent to him. The Registrar shall
endorse on the papers the date when they are sent to, and
the date when they are received back from each Judge. It
shall not be necessary to send papers to any Judge who is-
not for the time being in Allahabad or Lucknow.
13. When a Judge does not write his opinion within three
days from the date when he receives any urgent paper sent to
him for opinion, he shall be deemed to have declined to
express any opinion on the matter.
14. After any papers have been circulated for opinion, they
shall be submitted again, according to the subject-matter
thereof, to the Chief Justice or the Judge in the
Administrative Department and he may either direct that the
opinion of the majority of the Judges including his own be
given effect to or lay the matter for consideration before a
Judges’ meeting or a meeting of the Administrative
Committee, as the case may be.
15. The Chief Justice may call a judges’ meeting or a
meeting of the Administrative Committee whenever there is
business to be disposed of:
Provided (i) That a Judges’ Meeting shall be
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called once every three months excluding the
summer vacation;
(ii) further that if a request is made to the
Chief Justice by not less than 5 Judges to
call a meeting such meeting shall be called
within a week of the request.
140
17., The quorum necessary for the transaction of business
shall be three in the case of a meeting of the
Administrative Committee and seven in the case of a Judges’
meeting..
18. In case of a difference of opinion at a Judges’ meeting
or a meeting of the Administrative Committee the decision
shall be in accordance with the opinion of the majority of
the Judges present, and in case the, Judges present be
equally divided, the Chief Justice or in his absence the
Senior Judge present shall have a casting, vote."
A question was mooted as regards the power of the High
Court, to frame rules under Article 225 of the Constitution
authorising a. Judge or a Committee of Judges of the High
Court to act on behalf of the whole court. Article 225
provides in. so far as material that the jurisdiction of any
existing High Court and the respective powers of the Judges
thereof in relation to the administration of justice in the
Court, including any power to make rules of Court, shall be
the same as immediately before the commencement of the
Constitution. It is urged that Article 225 merely saves the
pre-Constitution powers of High Courts in certain matters
and since under the Letters Patent of the High Court of
Judicature at Allahabad, the Government of India Acts of
1919 and 1935 and the U.P. High Court Amalgamation Order
1948, the High Court of Allahabad did not possess the power
to frame rules authorising either a Judge or an
Administrative Committee of Judges to act on behalf of the
whole court, the Rules of Court framed by the High Court in
1952 are beyond its competence in so far as they authorise
the Administrative Judge or the Administrative Committee to
act on behalf of the court.
Article 225, it is true, preserves: inter alia the pre-
Constitution. powers of existing High Courts to frame rules
and it may be assumed for purposes of argument, an
assumption which is largely borne out by provisions of the
laws mentioned in the preceding paragraph, that the High
Court of Allahabad did not, prior to the enactment of the
Constitution, possess the power to frame rules authorising a
Judge or a Committee of Judges of’ the High Court to act on
behalf of the court. But Article 225 is not the sole
repository of the High Courts’ power to frame rules. The
relevant part of Article 235 of the Constitution provides
that the control over District Courts and courts subordinate
thereto shall be vested in the High Court. Since Article
216 provides that every High Court shall consist of a Chief
Justice and such other Judges as the President may from
rime, to time deem it necessary to appoint, Article 235 has
to be construed’ to mean that the control over District
Courts and courts subordinate thereto is vested in the
entire body of Judges who together Constitute the High Court
and not in the Chief Justice as representing the High Court
or an Administrative Judge or a smaller body of Judges
acting as an Administrative Committee. But though the
control over subordinate courts is vested institutionally in
the High Courts by Article, 235, it does not follow that the
High Courts have no power to prescribe the manner in which
that control may in practice be exercised,
141
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In fact, the very circumstance that the power of control,
which comprehends matters of a wide-ranging variety, vests
in the entire body of Judges makes it imperative that rules
must be framed to make the exercise of control feasible,
convenient and effective. The seeds of the jurisdiction to
frame rules regulating the manner in which the control over
subordinate courts is to be exercised are thus to be found
in the very nature of the power and in the fact that the
power vests in the entire body of Judges. The High Court
has, therefore, the power under Article 235 itself to frame
rules for regulating the manner in which the control vested
in it may be exercised.
The power to do a thing necessarily carries with it the
power to regulate the manner in which the thing may be done.
It is in incident of the power itself and indeed, without
it, the exercise of the power may in practice be fraught
with difficulties which will frustrate, rather than further,
the object of the power. It is undoubtedly true that the
rules framed for prescribing the manner in which a power may
be exercised have to be truly regulatory in character. The
reason is that under the guise of framing rules, the essence
of the power cannot be permitted to be diluted. But that is
a separate matter which we will consider later. The limited
object of the present discussion is to show that High Courts
possess the power under Article 235 to prescribe the manner
in which the control over subordinate courts vested in them
by that article may be exercised. That explains why the
Allahabad High Court framed Rules of 1952 not only in the
exercise of power possessed by it under Article 225, but In
the exercise of all other powers enabling it in that behalf.
One of such powers is to be found in Article 236 itself and
therefore the abstract power of the High Court to frame the
impugned rules cannot be doubted and must be conceded.
We call such a power ’abstract’ in order to prepare the
ground for consideration of the main point involved in the
appeal. The High Court may possess the power to frame rules
under Article 235 and yet the rules framed by it may be bad
because they are derogatory to the terms of that Article.
In other words, if by Article 235 the control over
subordinate courts is vested in the High Court as a whole,
is it permissible to the High Court to, provide by framing a
rule that a matter falling within the area of control may be
decided, not by the whole court, but by a Judge or a
Committee of Judges acting on behalf of the court? That is
the first question which the Full Bench of the High Court
formulated for its consideration.
Compulsory retirement of Judges of the District Court and
subordinate courts is a matter which falls squarely within
the power of control vested in the High Courts by Article
235 of the Constitution. That is clear from the decisions
of this Court in High Court of Punjab and Haryana v. State
of Haryana and ors.(1), Shamyher Singh v. State of
Punjab(2), State of Haryana v. indre Prakash(3)
(1) A.I.R. 1975 S.C. 613--[1975] 3 S.C.R. 365.
(2) [1975] 1 S.C.R. 814.
(3) A.I.R. 1976 S.C. 1841.
142
and B. Misra v. Orissa High Court(1). The respondent was
compulsorily retired from service as a District Judge, on
the recommendation of the Administrative Committee of the
High Court; and it is clear from the facts and sequence of
events that the other Judges of the High Court had no
effective opportunity to consider the pro. priety or
correctness of the decision of the Administrative Committee
recommending to the State Government that the respondent be
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retired compulsorily. The resolution of the Administrative
Committee is dated January 9, 1974. The Registrar of the
High Court communicated the decision of that Committee to
the State Government on January 15, 1974. The Registrar
circulated the minutes of the Administrative Committee’s
meeting of January 9 to the other Judges of the High Court
on January 17, 1974. We were shown the minutes and the
Registraes letter of January 17, from which it is clear that
the Judges to whom the minutes word circulated made their
initials or signatures. thereon in token only of the fact
that they were informed of the decision of the
Administrative Committee. They have neither expressed their
concurrence nor their dissent which, indeed, goes to show
that Rule 7 merely contemplates, what it says, that as soon
as the Administrative Committee has disposed of any
business, a statement showing what matters were laid before
the Committee and the manner in which they were disposed of
shall be circulated "for information" to all the Judges.
But the language of Rule 7 and the shape of events leave un-
answered the first question whether a power vested in the
Court as such can, with the considered consent of the Court
itself, be exercised on its behalf by a Judge or a Committee
of Judges of that very Court. The reason for referring to
Rule 7 and the formal treatment which the other Judges gave
to the Registrar’s circular informing them of the decision
taken by the Administrative Committee is to emphasize that
the first question framed by the Full Bench has to be
answered on the basis that the other Judges of the High
Court were not consulted upon and had no occasion or
opportunity to consider the justness, propriety or necessity
of the decision taken by the Administrative Committee that
the respondent be retired compulsorily.
Having given our close and anxious consideration to that
question’, we regret that we are unable to share the view of
the majority of the High Court Full Bench that by leaving
the decision of the question of the respondents compulsory
retirement to the Administrative Committee, the Court had
abdicated its constitutional function. According to the
view of the majority, the act of the Court in allowing the
Administrative Committee to decide that question under Rule
1 of Chapter III of the 1952 Rules is an act of "self-
abnegations" and therefore void. This approach betrays,
with respect, a misunderstanding of the object of Article
235. The ideal which inspired the provision that the
control over District Courts and courts subordinate thereto
shall vest in the High Court is that those wings of the
judiciary
(1) A.I.R. 1976 S.C. 1899.
14 3
should be independent of the executive. Tracing the history
of that concept, Hidayatullah, J. in West Bengal v.
Nripendra Nath Baghchi(1) has highlighted the meaning and
purpose of Article 235. It is in order to effectuate, that
high purpose that Article 235, as construed by this Court in
various decisions, requires that all matters relating to the
subordinate judiciary including compulsory retirement and
disciplinary proceedings but excluding the imposition of
punishments falling within the scope of Article 311 and the
first appointments and promotions should be dealt-with and
decided upon by the High Courts in the exercise of the
control vested in them. A proper understanding and
appreciation of this position will be conducive to a correct
assessment of the situation under examination in the
instant case. For, knowing that the object of Article 235
is to ensure the independence of an important wing of the
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judiciary, the inquiry which assumes relevance is whether
the procedure sanctified by the Rules of the High Court is
in any manner calculated to interfere with or undermine that
independence. Does that procedure involve "self-
abnegation", by conceding the right of control to any
outside authority ? It is pertinent, while we, are on this
question, to know the context in which the expression "self-
abnegation" was used by this Court. In Shamher Singh v.
State of Punjab (supra) the action of the High Court in
asking the State Government to depute the Director of
Vigilance to hold an inquiry against a judicial officer was
deprecated by this Court as an act of self-abnegation. The
High Court abdicated its control over the subordinate
judiciary, which includes the power to hold a disciplinary
inquiry against a defaulting Judge, by surrendering that
power to the executive That, truly, was an act of self-
abnegation, There is no parallel between what the High Court
did in Shamsher Singh and what has beer done in the instant
case. Here, the decision to compulsory retire the
respondent was taken by the Judges of the High Court itself,
though not by all. If some but not all Judges of the High
Court participate in a decision relating to a matter which
falls within the High Courts controlling jurisdiction over
subordinate courts, the High Court does not efface itself by
surrendering its power to an extraneous authority’ The
procedure adopted by the High Court under its Rules is not
sub versive of the independence of the subordinate
judiciary,which is wha Article 235 recognised and seeks to
achieve. The true question then for decision is not the one
by which the majority of the Full Bench fell oppressed but
simply, whether the procedure prescribed by the High Court
Rules is in any other manner inconsistent with the terms of
Article 235 of the Constitution.
Yet another misconception may now be cleared. It is urged o
behalf of the respondent by his learned counsel Shri Misra
that under Article 216, ’High Court’ means the entire body
of Judges appointed to the Court and therefore, the control
over the subordinate judiciary, which is vested by Article
235 in the High Court must be exercised by the whole body of
Judges. The thrust of the argument is that the High Court
cannot delegate its functions or power to a Judge or a
smaller body of Judges of the court. This argument requires
consideration the question whether any delegation as such is
involved in the processes
(1) A.I.R. 1966 S.C. 447.
144
whereby a Judge or a Committee of Judges of the court, like
the Administrative Committee in the instant case, is
authorised by the whole court to act on behalf of the court.
For answering this question it is necessary in the first
place to bear in mind that the power of control over the
subordinate courts which is vested in the High Court
comprises such numerous matters, often involving
consideration of details of the minutest nature, that if the
whole High Court is required to consider every one of those
matters, the exercise of control instead of becoming
effective will tend to cause delay and confusion in the
administration of justice in the State. A construction
which will frustrate the very object of the salient provi-
sions contained in art. 235 ought, as far as possible, to be
avoided. The control vested in the High Courts by that
article comprehends, according to our decisions, a large
variety of matters like transfers, subsequent postings,
leave, promotions other than initial promotions, imposition
Of minor penalties which do not fall within art. 311,
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decisions regarding compulsory retirements, recommendations
for imposition of major penalties which fall within art. 31
1, entries in character rolls and so forth. If every Judge
is to be associated personally and directly with the
decision on every one of these matters, several important
matters pertaining to the High Court’s administrative
affairs will pile into arrears like court arrears. In fact,
it is no exaggeration to say that the control will be better
and more effective exercised if a smaller committee of
Judges has the authority of the court to consider the mani-
fold matters falling within the purview of art. 235.
Bearing in mind therefore the nature of the power which that
article confers on the High Courts, we are of the opinion
that it is wrong to characterise as ’delegation’ the process
whereby the entire High Court authorises a judge or some of
the Judges of the Court to act on behalf of the whole
court.Such an authorisation effectuates the purpose of art.
235 and findeed without it the control vested in the High
Court over the subordinate courts will tend gradually to
become lax and ineffective. AdMinistrative functions are
only a part, though an important part, of the High Courts’
constitutional fUnctions. Judicial functions ought to oc-
cupy and do in fact consume the best part of a Judge’s time.
For balancing these two-fold functions it is inevitable that
the administrative duties should be left to be discharged,
by some on behalf of all the judges. Judicial functions
brooke no such sharing of responsibilities by any
instrumentality.
The High Court has not by its Rules authorised any
extraneous authority as in Shamsher Singh (supra) to do what
the Constitution enables and empowers to do. The
Administrative Judge or the Administrative Committee is a
mere instrumentality through which the entire Courts acts
for the more convenient transaction of its business, the
assumed basis of the arrangement being that such
instrumentalities will only act in furtherance of the broad
policies evolved from time to time by the High Court as a
whole. Each Judge of the High Court is in integral limb of
the Court. He is its alter ego. It is therefore in-
appropriate to say that a Judge or a Committee of Judges of
the High Court authorised by the Court to act on its behalf
is a delegate of the Court.
145
Since a Judge of the High Court or an Administrative
Committee consisting of High Court Judges is, for the
purposes of matters falling within art. 235, not a delegate
of the High Court, the principle enunciated by S.A. de Smith
in his famous work on Judicial Review of Administrative
Action (3rd edn, 1973, P. 263) that a discretionary power
must, in general, be exercised only by the authority to
which it has been committed has no application. The various
cases discussed by the learned author have arisen, as stated
by him at p. 265, in diverse, contexts and many of them turn
upon unique points of statutory interpretation. The true
position as stated by the author is :
"The maxim delegatus non-potest delegere does
not enunciate a rule knows no exception; it is
a rule of construction to the effect that "a
discretion conferred by statute is facie
intended to be exercised by the authority on
the statute has conferred it and by no other
authority, but this intention may be negatived
by any contrary indications found in the
language, scope or object of the statute."
We have pointed out above that the amplitude of the power
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conferred by aft. 235, the imperative need that the High
Courts must be enabled to transact their administrative
business more conveniently and on awareness of the realities
of the situation, particularly of the practical difficulties
involved in a consideration by the whole court, even by
circulation, of every day-to-day matter pertaining to
control over the District and subordinate Courts, lead to
the conclusion that by rules framed under art. 235 of the
Constitution the High Court ought to be conceded the power
to authorise on Administrative Judge or an Administrative
Committee of Judges to act on behalf of the Court. Accord-
ingly, we uphold the minority judgment of the Full Bench
that rule 1 of Chapter III of the 1952 Rules framed by the
Allahabad High Court is within the framework of art. 235.
The recommendation made by the Administrative Committee that
the respondent should be compulsorily retired cannot
therefore be said to suffer from any legal or constitutional
infirmity.
Learned counsel for the respondent also, argued on the other
contentions involved in the remaining six issues which were
decided against the respondent by the Division Bench prior
to the reference made by it to the Full Bench. We see no
substance in any of those contentions. ’There are no words
in the order of the compulsory retirement casting any stigma
on the respondent and therefore the grievance that the order
is in the nature of punishment is unjustified. The,
statement made on behalf of the Government on matters of
public policy in which it was claimed that corrupt and
undesirable officials were being weeded out cannot justify
the conclusion that the respondent was retired compulsorily
by reason of any stain attaching to his character. Nor are
we impressed by the contention that the Administrative
Committee had no material before it on the basis of which it
could conclude that the respondent should be retired
compulsorily. We do not think that this Court would be
justified in interfering in such matters with the exercise
of a discretionary power which, by the Constitution, is
vested in the
146
High Courts. it appears that the output of the respondent
was substandard and even if the entries in his character
roll prior to the time when he was allowed to cross the
efficiency bar are ignored, there was enough material before
the Administrative Committee to come to the conclusion to,
which it did.
Shri Mishra attempted to urge that art. 465-A of the Civil
Service Regulations has no application to the case by reason
of the fact that the respondent was not holding any of the
posts mentioned in art. 349-A and therefore. no action could
be taken against him under Note 1 to art. 465-A for
compulsorily retiring him. The argument does not appeal to
us. But it is not necessary to consider it in any detail
because a similar note is appended to art. 465 also and the
application of that article is not restricted to officers
mentioned in art. 349-A. Whether therefore the one or the
other articles applies to the respondent, the power to
compulsorily retire him could be exercised by the Government
either under Note 1 of art. 465-A or Note 1 of article 465.
For these reasons we allow the appeal, affirm the minority
judgment of the Full Bench and uphold the validity of the
order passed by the State Government compulsorily retiring
the respondent. There will be no order as to costs.
S.R. Appeal allowed.
147
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