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Gujarat High Court
Judgename :J.N.Bhatt, S.M.SONI
REGISTRAR,high COURT OF GUJARAT - Appellant
Versus
B.J.PATEL, CHIEF judicial MAGISTRATE, VADODARA - Respondent
L.P.A. 147 of 1997
Decided On : 04/28/1997
Though, the administrative orders exercising powers under Art. 235 are passed, they are subject to judicial review, but the question is of considering the extent thereof. Order under Art. 235 is justiciable. But the extent and ambit of justiciability is very much circumscribed. In other words, the judicial review is permissible to an extent, namely, to probe and analyse decision making process itself only and not to examine the merits of the decision. It is a settled proposition of law that what should be the quality, what should be the standard, what should be the nature of order of a management or a master much less the High Court under Art. 235, is not within the domain of judicial review. The parameters of judicial review under Art. 226 and for that purpose under Art. 32 are very much limited and narrow. Therefore, a Court dealing with such an administrative order is obliged to address itself to this distinction. The constitutional history, undoubtedly, commands and demands that the parameters and the safeguards envisaged in Arts. 235 and 226 must be borne in mind while examining the merits of disputes and questions arising out of the order of administrative nature.
[Para 9]
(b) Constitution of India, 1950 - Art. 235 - Power under - Exercise of - Role is that of a guardian and not of a manager or master - On administrative side High Court acts through committees but then decision of committee is collective will & wisdom of High Court.
The role of the High Court exercising its power under Art. 235 is not only a role of a manager or master, but it is a role of a guardian. It is also a role of a custodian and the position of the High Court vis-a-vis the judicial officers is also like a loco parentis. In order to effectively and efficiently perform its power as well as duties, the High Court on its administrative side is obliged to consider various aspects, various considerations and thereafter has to reach to a conclusion collectively. We may state at this juncture that the High Court acts on its judicial side through Benches. But the decision of any Bench is a decision of the High Court. Likewise, the High Court acts on its administrative side through Committees, but the decision of the Committee is a decision of the High Court. What we try to emphasise is that the decision taken by the Committee is reflecting the collective will and wisdom of the High Court.
[Para 10]
(c) Constitution of India, 1950 - Art. 226 - Power of High Court under - Exercise of - Parameters in different spheres and fields specially in the matters of transfers indicated.
The powers of this Court under Art. 226 of the Constitution of India are, no doubt, very wide, but are circumscribed in certain parameters and are to be exercised in a limited circumference. Any and every administrative order is not challengeable with the aids of Art. 226. Extraordinary, special, prerogative, plenary, equitable powers of writ Court are required to be exercised essentially for the prevention of violation of constitutional provisions or statutory provisions. They are also required to be exercised in the light of the recent developments in the administrative law. Art. 226, therefore, can be employed in a given case when illegality is perpetrated or manifest injustice is done in violation of the principles of natural justice. The powers under Art. 226 are discretionary. They are circumscribed. When an administrative order is challenged before the Court under the help or aids of the provisions of Art. 226, what is required to be shown is that the person, management or the authority or decision making institution has taken the decision which is vitiated either because of non-observance of principles of natural justice or in violation of the principles of law or on the ground of proved strong case of mala fides. It is not designed to substitute the just and meritorious administrative orders or decisions. It is not devised to supplant the managerial action or discretion. What is designed is to see as to whether the decision making process is just proper and legal and without any contamination. If the decision making process is found to be free from any vice or quite fair or quite reasonable, it is not for the High Court to question the nature of the decision, the type of the action and the quality of the action. Otherwise, the role of the Court under Art. 226 would not be supervisory but it would become a role of an appellate Court.
[Para 11]
It is a settled proposition of law that the role of the Court while exercising its power under Art. 226 is not that of an appellate Court. It is not what is decided to be seen. It is `how decided, that is to be seen. If `how says free, fair, just, reasonable, then `what become immaterial. The Court cannot substitute the managerial decision or administrative wisdom. These parameters must be borne in mind by us. It is, therefore, rightly said that the powers of the Court under Art. 226, though very very wide, are circumscribed to an extent in selected spheres and fields.
[Para 12]
What is required to be seen by the Court when a question is raised with the help of Art. 226 against the order of transfer which is passed by the Management, much less collective decision of the High Court, is as to whether any vice like mala fide, violation of principle of law has tainted the decision of the authority. If the answer is `no, the matter ends. Who should be posted, where should be posted, how should be posted, why should be posted are some of the questions, absolutely, falling exclusively within the domain of the management and the master. Of course, the orders are required to be passed on public ground, on the ground of administrative exigencies, and if the orders of transfer are recorded on these grounds, which are unquestionable and without any contamination, they cannot be challenged much less with the aid of extraordinary, equitable, prerogative powers under Art. 226 of the Constitution of India.
[Para 14]
(d) Letters Patent Appeal - Clause 15 - Appeal against the inter- locutory order of a Single Judge - Maintainability - Appeal against interlocutory order of the nature falling within parameter and purview of Clause 15 the letters patent is competent & maintainable.
The proposition advanced by the learned senior Counsel Mr. Mehta that LPA against the interlocutory order of a Single Judge is not maintainable is running counter to the ratio of the decision of this Court rendered in Civil Application No. 2207 of 1995 in Letters Patent Appeal No. 893 of 1995 in the Secretary, Revenue Department vs. Shri Varsanbhai Rajubhai Rathwa & Ors., decided on 16th September, 1995. A Division Bench (Coram : R.A. Mehta, Actg. CJ and S.K. Keshote, J.) have enunciated and expounded as to what is the expression `judgment incorporated in Clause 15 of the LP relying on a decision of the Calcutta High Court and also of the Apex Court.
[Para 32]
In the said decision before this Court, an interim order came to be passed in case of a dispute of seniority list and by virtue of the interim order, the learned single Judge had held that the petitioners were entitled to the relief against reversion. That interim order was questioned in Letters Patent Appeal and in that submission was raised that the interim order or interlocutory order is not a judgment and therefore appeal is not maintainable.
[Para 35]
(e) Constitution of India, 1950 - Art. 226 - Administrative order - Power to interfere with - Limited to grounds stated.
Notwithstanding that, the powers enshrined under Art. 226 do not empower the writ Court to supplant the administrative decision merely on the hypothesis or on the basis that a different view could have been taken. The authority concerned is obliged to take into account various aspects and circumstances and has to reach a decision which is precisely, prima facie, done in the present case. The administrative order, therefore, cannot be interfered with unless :
(i)
it is vitiated by proved malafides or
(ii)
it is found in violation of rule provision or statutory provision; or
(iii)
it is the outcome of an unauthorised act; or
(iv)
it is without observance of principles of natural justice wherever it is required.
[Para 43]
(f) Vade Macum - Judge - While in dispensation of justice - Expectation and requirements - Indicated.
A judge in dispensation of justice and in discharge of his duties should act and behave in such a way that his decisions are independent and free from bias or pressure from any quarter much less a section of the Bar. The type of work of a judge is such that in discharge of his judicial duties, he has to be free from any pressure, any influence, any consideration even from the higher ups of the hierarchical set up of the judicial system. Judge should not fraternise or patronise with Bar. Judge should also avoid press publicity. Least known judge is the best Judge.
[Para 50]
A judge in order to uphold the independence and integrity of the judicial system and the institutional image must avoid impropriety in all his activities, much less in discharge of his judicial functions. Powers that may be with him has to be regulated so as to avoid any conflict with the judicial duties and a judge must behave like a judge. Not only that he should act like a judge, but there must be an impression that he acts like a judge. It is not only that he is acting independently and without any pressure, but it must seem to have been done so. A judge must not have favourites. A judge must not have bias. He should not act under pressure or any influence even from any section of the Bar. A judge should entertain the dispute without any bias or prejudice. He should not allow the litigants and the officers to carry an impression that there is biased or prejudiced action or order. If such an attitude showing bias or creating impression that prejudicial order is equally fatal for the independency of judiciary. No doubt, what the judge is exercising is not the power of judge but is excersing the power of the institution of a judge. In other words, no judge has an individual power. It is power of the institution and therefore, a judge is obliged to behave and act which upholds and enhances the majesty and dignity and decorum of the institution.
[Para 51]
(g) Constitution of India, 1950 - Arts. 226 & 235 - Letters Patent Appeal - Clause 15 - Mandatory interlocutory order of Single Judge staying transfer order passed by appellant High Court - Validity - No material to substantiate the allegation that impugned order was prompted on account of representation of Commissioner of Police - Order is in exercise of power under Art. 235 passed by High Court neither unauthorised nor tainted with illegality - In absence of any remote suggestion of mala fide, interlocutory order by Single Judge held unsustainable.
There is no material to substantiate the allegation that the impugned order of transfer was prompted on account of the representation of the Commissioner of Police (CP for short) at the interlocutory stage. Therefore, the perception reached to in the impugned order under appeal even if it is possible, ipso-facto, would not be sufficient to warrant interlocutory order at that stage and that too in a mandatory form. That the order of transfer recorded by the High Court on its administrative side exercising constitutional power under Art. 235 is not unauthorised or is not tainted with illegality, even which does not seem to be the case of the petitioner, in absence of any remote suggestion of mala fide, much less proved mala fides, how could we hold at the interlocutory stage that the order of transfer which is the outcome of considered opinion of a Senior District Judge and prima facie balanced objective assessment of the situation recorded by the learned Unit Judge of this Court and consideration by the Standing Committee of the High Court and taking unanimous decision as unauthorised or illegal?
[Para 51]
The view and the perception reached by the High Court placing the issue in focus and after undergoing extensive exercise and thereafter passing the order invoking the constitutional powers of Art. 235 could not have been said to be unauthorized or illegal more so in case of absence of mala fides or in absence of allegation of breach of rules and that too holding that it has endangered the independency of judiciary? We have not been able to approve the view and perception taken in the impugned order under appeal. There is no misuse or abuse of power. There is no bias nor arbitrariness. Impugned transfer order prima facie appears to be balanced. At any rate, it cannot be said to be unauthorized.
[Para 54 ]
( 1 ) ). Could the collective, consensual and coherent managerial wisdom on administrative side of the appellant-High Court of Gujarat, in passing the impugned order of transfer of a judicial officer exercising its Constitutional powers under Art. 235, be supplanted or implanted by the judicial wisdom, by the high Court, on its judicial side, exercising its Constitutional powers of extraordinary, prerogative, special and equitable writ jurisdiction enshrined in Art. 226, that too at an interlocutory stage, in a matter of transfer, is the solitary but the substantial question for our appreciation and adjudication in this Letters Patent Appeal.
( 2 ) ). Since the main writ petition is awaiting final verdict before the learned single judge, we would like to mention only the skeleton projection of facts which are relevant and material for the purpose of appreciation and adjudication of the aforesaid dispute raised in this appeal.
( 3 ) ). The respondent, herein, questioned the legality and validity of an order of transfer recorded by the appellant - High of Gujarat - exercising its powers under art. 235, by filing Special Civil Application No. 983 of 1997, invoking the powers of Art. 226 of the Constitution of India. The transfer order was recorded by the high Court, on 24th January, 1997, whereby, the respondent Judicial Officer, who was working at the relevant time as Chief Judicial Magistrate (C. J. M.) in Baroda district came to be transferred, as Second Joint Civil Judge (S. D.) and J. M. F. C. in the city of Rajkot with immediate effect along with other incidental transfers. By filing the aforesaid petition, the respondent, inter alia, contended that she received the said order on 27th January, 1997 and left the charge of the office of the Chief judicial Magistrate on the same day within no time so as to join at the transferred station. She, however, has challenged the order of transfer, mainly, on the ground that it was motivated and initiated on account of the representation made by the commissioner of Police, Baroda, Mr. Brar and thereby causing injury to the independence of Judiciary. In that, she also alleged that in connection with one criminal case, she had issued notices which were not properly responded by the commissioner of Police, Baroda, and, therefore, she was constrained to issue a notice for contempt. It was, therefore, contended that during the aforesaid period when said case was in progress, she received the order of transfer in the middle of the term though the transfers are, normally, effected on or about the period of summer vacation. It was also contended that she will suffer hardship on account of transfer as her children are receiving education and were preparing for examinations and as her husband is also working in Baroda as Joint District Judge in the higher Judiciary. It was also contended that the transfer order is not legal as it was not the order of the Full Court as it was only passed by Standing Committee.
( 4 ) ). It appears from the record and the impugned order of the learned single judge that the personal grounds were not agitated. The maintainability of the transfer order was raised before the learned single Judge, which was not accepted. The learned single Judge has held that the impugned order of transfer cannot be said to be incompetent or without jurisdiction. It is also held that the order of transfer is not in violation of the provisions of Art. 235. However, the learned single Judge has upheld the contention for interlocutory injunction against the implementation of the transfer order during the pendency of the petition, inter alia, holding that the perception of the Standing Committee which took the decision of transfer was not proper, as a result of which, the interlocutory order staying the execution and the operation of the order of transfer came to be issued on 18th February, 1997. Though request was made to stay the order, it was not accepted as a result of wh
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