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Allahbad High Court
W.BROOME
Abul Khair - Appellant
Versus
Honble Chief Justice, High Court of Judicature at Allahabad - Respondent
Decided On : 02/25/1970
WRIT PETITION - Maintainability - Chief Justice - High Court - Administrative Orders - Articles 226, 229 of the Constitution of India - Allahabad High Court (Conditions of Service of Staff) Rules, Rule 7(1) - Government Order No. 49/1/65 Appointment (B) Department dated 25-9-1968.
Fact of the Case:
The petitioners, eight Upper Division Assistants of the General Office of the High Court at Allahabad, challenged an order of the Chief Justice dated 1-3-1969, by which the petitioners' objections against a draft gradation list prepared by the Additional Registrar were rejected and the seniority of Mahesh Prasad Srivastava and Sushil Kumar (respondents 4 and 5), who were originally Translators but had been absorbed in the cadre of Upper Division Assistants in 1964 and 1967 respectively, was fixed in such a manner as to make them senior to the petitioners. The petitioners also challenged the promotion of Mahesh Prasad Srivastava to the post of Assistant Superintendent in the Administrative Department on 23-4-1969 and of Sushil Kumar as Assistant Superintendent in the Copynig Department on 25-4-1969, on the basis of their seniority fixed by the aforementioned order of 1-3-1969.
Finding of the Court:
1. The High Court has the power to issue writs against the Chief Justice and the Registrar in respect of action taken or orders passed in exercise of the powers conferred by Art. 229 of the Constitution. 2. There was no 'settled practice' regarding the fixation of the seniority of Translators transferred to the cadre of Upper Division Assistants. 3. The impugned order dated 1-3-1969 is not illegal, arbitrary, unreasonable or unfair. 4. The promotion of Sushil Kumar on 25-4-1969 was properly passed in accordance with Rule 8 and cannot be challenged. 5. The promotion of Mahesh Prasad on 23-4-1969 is invalid for non-compliance with Rule 9 and must be struck down.
Issues: 1. Whether a writ can be issued against the Chief Justice and the Registrar in respect of action taken or orders passed in exercise of the powers conferred by Art. 229 of the Constitution? 2. Whether there was a 'settled practice' regarding the fixation of the seniority of Translators transferred to the cadre of Upper Division Assistants? 3. Whether the impugned order dated 1-3-1969 is illegal, arbitrary, unreasonable or unfair? 4. Whether the promotion of Sushil Kumar on 25-4-1969 was properly passed in accordance with Rule 8? 5. Whether the promotion of Mahesh Prasad on 23-4-1969 is invalid for non-compliance with Rule 9?
Ratio Decidendi: 1. The powers exercised by the Chief Justice under Art. 229 are personal to the Chief Justice and are not exercised by him as a representative of the High Court as a whole. 2. The history of the powers exercised by the Chief Justice in relation to the High Court staff supports the view that these powers are personal to the Chief Justice and are not exercised by him as a representative of the High Court as a whole. 3. Judicial precedents do not afford much assistance in the determination of this question of whether writs can be issued to the Chief Justice in respect of orders passed in exercise of the powers conferred by Art. 229. 4. The impugned order dated 1-3-1969 is based on earlier orders passed by the Chief Justice in 1967 and 1968 and cannot be treated as a new departure. 5. The petitioners have failed to show that there was any definite settled practice in the fixation of the seniority of Translators who were converted into Upper Division Assistants or that the impugned order of 1-3-1969 introduced any radical change in the principles formerly followed. 6. The principle followed in the impugned order applies not only to respondents 4 and 5 but also to any other Translator who may be transferred to the cadre of Upper Division Assistants in future. 7. The transfer of respondents 4 and 5 from one section of the High Court to another was fundamentally different from the absorption in various Government departments of persons thrown out of employment by retrenchment in other departments. 8. The G. O. relied upon by learned counsel for the petitioners has no applicability to the present case. 9. The promotion of Sushil Kumar on 25-4-1969 was properly passed in accordance with Rule 8, which lays down that "promotion ............... shall ordinarily be made according to seniority". 10. The promotion of Mahesh Prasad on 23-4-1969 is invalid for non-compliance with Rule 9, which requires "selection irrespective of seniority".
Final Decision: The writ petition is decided accordingly. In view of their partial success and failure the parties shall bear their own costs.
2. Before coming to the merits of this petition, it is necessary to dispose of the preliminary objection raised on behalf of the respondents regarding the maintainability of this petition. It is contended that the High Court cannot issue a writ against its own Chief Justice or his nominee the Registrar, for the purpose of quashing orders passed in exercise of the powers conferred by Article 229 of the Constitution, the relevant portions of which run as follows :-
"229. (1) Appointment of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or Officer of the Court as he may direct : ......... ......... .... .......... ........ ...... .......
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose :
Provided that the rules made under this clause shall, so far as they relate require the approval of the Governor of the State."
Article 226 empowers the High Court to issue directions, orders or writs to "any person or authority" within its jurisdiction; and it has to be admitted that the very phraseology used in this clause implies that the 'person or authority' to whom the directions, orders or writs are to be issued must be some one other than the High Court itself. But can it be said as the respondents contend, that a writ to quash an order passed under Art. 229 is a writ issued to the High Court itself? Learned counsel for the respondents have tried to argue that the powers exercised by the Chief Justice under Art. 229 are exercised by him as a representative of the High Court, acting on its behalf; but this does not seem to be a correct interpretation. It is to be noted that those Articles of the Constitution which confer powers on the High Court (Arts. 226, 227, 228 and 235), as well as those which provide for consultation with the High Court (Arts. 233 and 234), refer not to the Chief Justice but to the High Court itself.
Article 229 on the other hand specifically mentions the Chief Justice as the person entitled to exercise the powers of appointment and of framing service rules; and due weight must be given to this fundamental difference between the wording of Art. 229 and that of the other Articles mentioned above. It appears to me that in view of this distinction there is no justification for treating the specific conferment of powers on the Chief Justice by Art. 229 as equivalent to the conferment of powers on the High Court, with the Chief Justice named merely as the Hi
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