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HIGH COURT OF ALLAHABAD
S.S.Ahmed, J.K.Mathur, Shobha Dikshit
SANJAY KUMAR SRIVASTAVA
Versus
ACTING CHIEF JUSTICE
Decided On : 10 July 1996
Writ Petition No. 2332 of 1993
CONSTITUTIONAL LAW - HIGH COURT - JURISDICTION - RULES OF COURT - CHIEF JUSTICE - POWER TO CONSTITUTE BENCHES - WRIT PETITION - REFERENCE TO LARGER BENCH - VALIDITY - OPPORTUNITY OF HEARING - NON-APPLICATION OF MIND - MAINTAINABILITY OF APPLICATION - MALA FIDE ORDER - ALLEGATION - BASIS.
Fact of the Case:
The petitioner challenged the order of the Acting Chief Justice referring Writ Petition No. 1619 (MB) of 1993 to a Full Bench for hearing and decision. The petitioner contended that the Division Bench comprising of Hon'ble J. K. Mathur, J. and Hon'ble H. N. Tilhari, J. had already heard the matter in part and, therefore, it was not open to the Acting Chief Justice to constitute a Full Bench. It was also contended that the impugned order was passed ex parte and the petitioner was not heard. The petitioner further contended that the Acting Chief Justice had passed the order at the behest of the Advocate General who was appearing as Counsel for the State of Uttar Pradesh in Writ Petition No. 1619 (MB) of 1993 and therefore, the order was mala fide.
Finding of the Court:
The Court held that the Chief Justice has exclusive jurisdiction to direct that any case which is otherwise cognizable by a Judge sitting alone shall be heard and disposed of by two or more Judges or any case which is otherwise cognizable by a Bench of two or more Judges will be heard by a Judge sitting alone. The Court further held that the Chief Justice alone can determine which case will be heard by a Judge sitting alone or which case will be heard by two or more Judges. The Court also held that the Chief Justice has the power to constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing the case. The Court further held that the impugned order was not passed ex parte as the petitioner's counsel was informed by the Chief Standing Counsel that the application would be moved before the Acting Chief Justice at Allahabad on 1st May, 1993. The Court also held that the application of the Chief Standing Counsel was maintainable under Chapter V, Rule 6 of the Rules of the Court. The Court further held that the allegation that the order was passed at the behest of the Advocate General was devoid of any merits.
Issues: 1. Whether the Acting Chief Justice had the power to refer the Writ Petition to a Full Bench for hearing and decision. 2. Whether the petitioner was given an opportunity of hearing before the impugned order was passed. 3. Whether the impugned order was passed mala fide.
Ratio Decidendi: 1. The Chief Justice has exclusive jurisdiction to direct that any case which is otherwise cognizable by a Judge sitting alone shall be heard and disposed of by two or more Judges or any case which is otherwise cognizable by a Bench of two or more Judges will be heard by a Judge sitting alone. 2. The Chief Justice alone can determine which case will be heard by a Judge sitting alone or which case will be heard by two or more Judges. 3. The Chief Justice has the power to constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing the case. 4. The impugned order was not passed ex parte as the petitioner's counsel was informed by the Chief Standing Counsel that the application would be moved before the Acting Chief Justice at Allahabad on 1st May, 1993. 5. The application of the Chief Standing Counsel was maintainable under Chapter V, Rule 6 of the Rules of the Court. 6. The allegation that the order was passed at the behest of the Advocate General was devoid of any merits.
Final Decision: The writ petition was dismissed.
This petition is directed against the order dated 1. 5. 1993 passed by Honble the Acting Chief Justice (in short, ACJ) by which Writ Petition No. 1619 (MB) of 1993 (Sanjay Kumar Srivas tava v. State of U. P. and others) has been referred to the Full Bench for hearing and decision. This order of which a copy has been filed as Annexure 1 reads as under:-
"honble S. C. Mathur, A. C. J.-The WP. shall be heard and decided by the Special Bench of three Honble Judges as follows:
1. Honble S. S. Ahmad, J.
2. Honble J. K. Mathur, J.
3. Honble Mrs. Shobha Dikshit, J.
Sd/s. C. Mathur, J. 1. 5. 1993"
2. The factual background leading to the present petition is that the petitioner had earlier filed Writ petition No. 1619 (MB) of 1993 in this Court challenging the appointment of Sri R. Venkataraman I. A. S. who was arrayed as opposite party No. 3 in that petition as Chairman of the U. P. Public Service Tribunal which was constituted afresh through the Government notifica tion dated 31st March, 1993 issued under the U. P. Public Services (Tribunal amend ment) Act, 1992. It may be stated that this Act was also altered with effect from 31st March, 1993 by a subsequent amendment. The petitioner also challenged the appoint ment of other officers belonging to the In dian Administrative Service as members of the U. P. Public Services Tribunal. These five officers have since been as arrayed as op posite parties 4 to 8 in Writ Petition No. 1619 (MB) of 1993.
3. This petition was taken on 2nd April, 1993 by a Division Bench comprising of one of us (Honble J. K. Mathur, J.) and Hpnble H. N. Tilhari, J. and on that date the Division Bench passed the following order:
"honble J. K. Mathur, J.
Honble H. N. Tilhari, J.
Heard the learned counsel for the parties.
The learned Chief Standing Counsel has accepted notice on behalf of opposite parties. Op posite parties want and are granted time to obtain instruction. This case be put up for orders on 5th April, 1993.
Till that date, no members of Administra tive Service shall be permitted to take over charge of Office of the Chairman of the newly created U. P. Public Services Tribunal unless he has already taken over the charge. In case he has taken over charge, then such person shall not perform judi cial function till then.
Put on Monday (5th April, 1993) for further hearing.
Sd/j. K. Mathur, J. Sd/h. N. Tilhari, 2. 4. 1993"
4. On 5. 4. 1993 when the case was taken up, the opposite parties filed an application for vacation of the interim order with which they also filed a counter-affidavit and an affidavit (supplementary counter- affidavit ). The Court passed the following order on 5. 4. 1993.
Honble J. K. Mathur,j. Honble H. N. Tilhari, J.
On the request of the learned counsel for the petitioner, the case shall be put up tomorrow (6. 4. 1993 ).
The petitioner may file rejoinder af fidavit. The counter-affidavit and sup plementary counter-affidavit having been filed today.
The petitioner has also filed sup plementary affidavit in respect of which op posite parties may file counter-affidavit tomorrow. The interim order shall continue until further orders.
Sd/j. K. Mathur, J. Sd/h. N. Tilhari, J. 5. 4. 1993"
5. When the case was taken up on 6. 4. 1993. The following order was passed:
"put up tomorrow.
The petitioner will serve opposite party No. 3 outside the Court indicating that the petition will be taken up tomorrow.
Sd/j. K. Mathur, J. Sd/h. N. Tilhari, J. 6. 4. 1993"
6. In pursuance of the above order by which the petitioner was requested to serve opposite party No. 3 (Sri R. Venkataraman, LAS.) outside the Court the petitioner ob tained dasti notices from the office to serve opposite party No. 3.
7. When the case was taken up the next day i. e. , on 7. 4. 1993, the following order was passed:
"put up tomorrow for further hearing. "
Sd/j. K. Mathur, J.
7. 4. 1993. "
8. This order was signed only by Honble J. K. Mathur and not by Honble H. N. Tilhari, J.
9. On 8. 4. 1993, the following order was pass
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