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Case Number

Special Appeal No. 378 of 1970

Attorney(S)

Deoki Nandan Agrawal
C. S. P. Singh and R. A. Sharma

Judges

S.N Dwivedi
C.D Parekh, JJ.

Acts

Rule 9 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1946. Rule 9
Rule 1 and Rule 2

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Smart Summary

Summary of the Opinion (reasons for dismissal given July 22, 1970 order)

Factual and Procedural Background

The appellant and the respondents are members of the High Court staff, all belonging to the class of Upper Division Assistants. The appellant was recently promoted to the post of Assistant Superintendent, Administrative Department, by an order of the Chief Justice. The respondents challenged that promotion by filing a writ petition seeking quashing of the Chief Justice's order on the ground that the promotion breached Rule 9 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1946, which provides for promotion "by selection, irrespective of seniority."

The learned single Judge who heard the petition accepted the respondents' contention and quashed the Chief Justice's order promoting the appellant. The appellant appealed against that judgment. By a prior order dated July 22, 1970, the court dismissed the appeal and indicated that written reasons would follow; the present opinion sets out those reasons.

Legal Issues Presented

Whether the appellant's promotion complied with Rule 9 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1946, which requires promotion "by selection, irrespective of seniority" (i.e., whether a comparative selection on merit among eligible candidates took place).
Whether a writ, order or direction under Article 226 of the Constitution can be issued to the Chief Justice of a High Court acting in an administrative capacity (i.e., whether the Chief Justice is amenable to the High Court's writ jurisdiction when acting administratively).

Arguments of the Parties

Respondents' Arguments

The respondents alleged that the appellant was promoted merely by virtue of seniority among Upper Division Assistants, in breach of Rule 9 which requires selection irrespective of seniority.
They challenged the Chief Justice's order by filing a writ petition seeking quashing of the promotion order on that ground.

Appellant's Arguments

The appellant raised a preliminary objection that no writ, order or direction can issue to the Chief Justice by any Judge of the High Court under Article 220 (and generally under Article 226), on the basis that the Chief Justice and other Judges are of equal rank and writs ordinarily issue only to inferior authorities. The appellant relied upon authority said to prohibit issuing writs to the High Court or its Judges in certain circumstances (citing Babul Chandra Mitra and other decisions).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Babul Chandra Mitra, AIR 1952 Pat 309 (Full Bench)	Held that no writ, order or direction could be issued to the High Court by the High Court; two reasons given: (1) the High Court cannot call upon itself to show cause why it should not quash its own order; (2) a Judge cannot issue a writ to a Judge of co-ordinate jurisdiction.	The court distinguished that case: there all Judges had passed the impugned order (it was the High Court's order), whereas in the present matter only the Chief Justice passed the administrative order. The court treated the Patna Full Bench's second reason as broadly stated and not applicable to administrative acts of a single Judge (the Chief Justice).
High Court, Calcutta v. Amal Kumar, AIR 1962 SC 1704	The Supreme Court entertained an appeal from a lower court decree because of the principle that a person cannot be a Judge in his own cause; the matter illustrated limitations on a court hearing matters in which it has acted.	The court observed that Amal Kumar does not help the appellant because that case did not raise the question of issuing a writ by Judges to the Chief Justice; the present case concerns an administrative order of the Chief Justice rather than a collective order of the High Court.
Naresh v. State of Maharashtra, AIR 1967 SC 1	Contains observations (Justice Sarkar) that the Supreme Court cannot issue a writ to the High Court under Article 32; a contrary view was expressed by Justice Hidayatullah.	The court held this authority does not advance the appellant's position because Naresh involved a judicial act of a Judge (not an administrative act), and the present case concerns an administrative order of the Chief Justice which is amenable to writ jurisdiction under Article 226.
Iqbal Ahmad v. Chief Justice of Allahabad High Court, AIR 1962 All 391	Demonstrates the practice in this Court: a Division Bench issued a writ in the nature of mandamus to the Chief Justice; that decision was upheld by the Supreme Court.	The court relied on this as evidence of practice in the Allahabad High Court that writ petitions may be entertained against the Chief Justice in administrative matters.
Pradyat Kumar Bose v. Chief Justice of the High Court, Calcutta, (1955) 2 SCR 1331 = AIR 1956 SC 285	The Supreme Court observed that the exercise of the power of dismissal of a civil servant is administrative power and that availability of remedy under Article 225 in an appropriate case was not precluded; the Court did not decide the point but suggested the question is one of propriety rather than absence of power.	The opinion cited this observation to support the proposition that the availability of writ relief against administrative acts of a Chief Justice is not necessarily precluded; the issue is propriety and appropriateness of relief.
T. N. Devasahayam v. State of Madras, AIR 1958 Mad 53	Held that a writ, order or direction may issue to a Judge acting in an administrative capacity.	The court cited this decision as supporting the view that administrative acts of Judges (including the Chief Justice) are amenable to writ jurisdiction.
Pramatha Nath v. Chief Justice of Calcutta, AIR 1961 Cal 545 (Full Bench)	Two of the three Judges in the Full Bench held that a writ may issue to a Judge acting in an administrative capacity.	The court relied on this authority to reinforce the conclusion that administrative acts of a Judge can be subjected to writ jurisdiction.

Court's Reasoning and Analysis

Interpretation of Rule 9 and application to facts:

The court interpreted "selection, irrespective of seniority" in Rule 9 to mean selection from among a number of eligible candidates and necessarily involving a comparison of merit between those candidates.
The record surrounding the promotion showed that the required selection procedure was not followed. The Additional Registrar's note described the vacancy, stated that "both seniority and merit have to be taken into consideration," and identified Mahesh Prasad Srivastava as the senior most Upper Division Assistant and noted his graduation and good service record. The Chief Justice's action was a bare endorsement ("approved").
A statement made by Standing Counsel during the single Judge's hearing indicated that the Chief Justice's decision was based solely on the report and recommendations of the Additional Registrar and that character rolls were not shown to the Chief Justice. From these facts the court concluded that (a) greater emphasis was placed on seniority than on merit and (b) there was no comparative assessment of the appellant's merit against other eligible candidates.
On these grounds the court agreed with the learned single Judge that the promotion did not satisfy Rule 9's requirement of selection irrespective of seniority.

Consideration of the preliminary objection that the Chief Justice is immune from writs:

The court examined authorities relied upon by the appellant. It found Babul Chandra Mitra distinguishable because in that case the impugned order was an order of the High Court collectively (all Judges), whereas in the present case the impugned order was the individual administrative act of the Chief Justice.
The court held that some of the cited Supreme Court authorities (Amal Kumar, Naresh) did not advance the appellant's contention because they involved different questions (for example, issues about judicial acts rather than administrative acts) and did not consider the precise question of issuing writs to a Chief Justice acting administratively.
The court concluded that the principle barring a judge from being a judge in his own cause does not apply where the Chief Justice acts administratively and that an administrative act by the Chief Justice is amenable to the High Court's writ jurisdiction under Article 226.
The court relied on local practice and authorities (Iqbal Ahmad, T. N. Devasahayam, Pramatha Nath and the observation in Pradyat Kumar Bose) to support the proposition that writs may properly be issued in respect of administrative acts of the Chief Justice or other Judges, while acknowledging that the availability of relief is a question of propriety and appropriateness in each case.

Constitutional framework and institutional distinction:

The court referred to Articles 214, 216 and other provisions (Articles 224–228, 229(1)–(2), 233–235) to demonstrate that the Constitution distinguishes between the High Court as a collective institution and the Chief Justice acting under powers specifically conferred on him (notably Article 229 relating to staff). When the Chief Justice acts under Article 229 he acts in his individual capacity and not as the High Court as a collective body.
This constitutional distinction supported the court's conclusion that an administrative act of the Chief Justice may be subject to judicial review under Article 226.

Holding and Implications

Holding:

The appeal is dismissed. The court agreed with the learned single Judge and held that the appellant's promotion to the post of Assistant Superintendent, Administrative Department, was not made "by selection, irrespective of seniority" as required by Rule 9, and the order of the Chief Justice promoting the appellant was properly quashed.

Immediate implications for the parties:

The consequence of the decision is the upholding of the single Judge's order quashing the Chief Justice's promotion order; the appellant's promotion, as effected by that order, has been invalidated.

Broader implications noted by the court:

The court indicated that writ jurisdiction under Article 226 is available to challenge administrative acts of the Chief Justice (or other Judges) and emphasised the constitutional distinction between the High Court as a collective institution and the Chief Justice acting under Article 229. The availability of relief in such cases remains a question of propriety and appropriateness to the facts.

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Mahesh Prasad Srivastava v. Abdul Khair And Others .

1. By our order dated July 22, 1970 we dismissed this appeal and stated that reasons will follow shortly. We are now setting forth our reasons.

2. The appellant and the respondents are members of the High Court staff. All of them belong to the class of Upper Division Assistants. At present the appellant holds the post of the Assistant Superintendent, Administrative Department (Records). He was recently promoted to this post by an order of Hon'ble the Chief Justice.

3. The respondents filed a writ petition praying for the quashing of this order.

4. Promotion to the post of the Assistant Superintendent. Administrative Department, is regulated by Rule 9 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1946. Rule 9 provides that promotion shall be made

"by selection, irrespective of seniority."

5. The respondents allege that the appellant was promoted merely by virtue of his being senior in the class of Upper Division Assistants. According to them his promotion is in breach of Rule 9.

6. The learned single Judge, who heard the petition, accepted the contention of the respondents and quashed the order of Hon'ble the Chief Justice promoting the appellant to the post of the Assistant Superintendent, Administrative Department.

7. Feeling aggrieved with the judgment of the learned single Judge, the appellant has filed this appeal.

8. "Selection, irrespective of seniority" in Rule 9 necessarily implies that a person promoted should be chosen out of a number of eligible candidates for the post to which he has been promoted. Selection should be made obviously on a comparison of merit of the eligible candidates. The order of Hon'ble the Chief Justice, however, shows that this procedure, which is implicit in Rule 9, was not followed. The note put up by the Additional Registrar in respect of the promotion of the appellant contains the following remarks:

"There is a vacancy in the post of Assistant Superintendent consequent on the transfer of Sri K. N. Srivastava to Lucknow. This is a selection post. Both seniority and merit have to be taken into consideration in making the appointment. According to the latest orders of Hon'ble C. J. Sri Mahesh Prasad Srivastava is the senior most Upper Division Assistant entitled to this promotion. He is a graduate and has a good record of ser-

vice."

The Registrar endorsed the proposal of promotion of the appellant-Hon'ble the Chief Justice made a one word Order

"approved"

9. During the hearing of arguments before the learned single Judge a statement was made on behalf of Hon'ble the Chief Justice by the Standing Counsel. The statement is recorded in the order-sheet dated February 13, 1970. Standing Counsel stated that

"as far as the Chief Justice can recollect the only material placed before him, when he passed the orders on 23-4-1969 and 25-4-1969 set forth in annexures Rule 1 and Rule 2 to the rejoinder affidavit (filed in reply to the counter affidavit of respondent No. 4), was the report and recommendations of the Additional Registrar set forth in those annexures and no character rolls were shown to him."

From the above facts it will appear conclusively that, firstly, greater emphasis was laid on seniority rather than on merit and, secondly, that the merit of Mahesh Prasad Srivastava has not been compared with the merit of any other Upper Division Assistant who is eligible for promotion to the post of the Assistant Superintendent. Administrative Department. Accordingly we agree with the learned Judge that the appellant has not been promoted by "selection, irrespective of seniority", as contemplated by Rule 9.

10. Counsel for the appellant has submitted an objection in the nature of a preliminary objection to the writ petition. The objection was raised also before the learned Single Judge but was not, accepted. The objection is that no writ, order or direction can issue to Hon'ble the Chief Justice by any Judge of this Court under Article 220 of the Constitution. The basis of the argument is that Hon'ble the Chief Justice and other Judges of the court are of equal rank and that a writ, order or direction can issue only to an inferior authority. Reliance is placed on three decisions. In re Babul Chandra Mitra, AIR 1952 Pat 309 (FB), a Full Bench of the Patna High Court held that no writ, order or direction could be issued to the High Court by the High Court, fn that case an application of Babul Chandra Mitra for enrolment as an Advocate of the High Court was rejected by the High Court. The order rejecting his application was signed by all the Judges of the High Court. Refusing to entertain a petition under Article 226, the Full Bench gave two reasons: (1) the High Court cannot call upon itself to show cause why it should not quash its own order; (2) a Judge cannot issue a writ, order or direction to a Judge of co-ordinate jurisdiction.

In the High Court, Calcutta v. Amal Kumar, AIR 1962 SC 1704 a member of the Judicial Service in the State instituted a suit in the lower court against the High Court. The suit was decreed. Although an appeal from the decree lay to the High Court, the Supreme Court directly entertained an appeal from the decree of the lower court under Article 136 of the Constitution. According to the Supreme Court this unusual step was taken because of the principle that a person cannot be a Judge in his own cause. As the order challenged in the suit was that of the High Court, it could not hear the appeal from the decree of the lower court. Counsel says that this decision of the Supreme Court fortifies the first reason given by the Full Bench of the Patna High Court.

In Naresh v. State of Maharashtra, AIR 1967 SC 1 Sri Justice Sarkar in his judgment has said that the Supreme Court cannot issue a writ to the High Court under Article 32 of the Constitution. But Sri Justice Hidayatullah has expressed a contrary opinion. It may be noted that the Supreme Court cases do not help the appellant. No question arose in Amal Kumar's case, AIR 1962 SC 1704 regarding issue of a writ, order or direction by one or more Judges of the Court to the Chief Justice- The question also did not arise in Naresh's case, AIR 1967 SC 1. In the latter case the order of a Judge of the Bombay High Court was challenged before the Supreme Court. The challenged order was made by a Judge acting judicially and not administratively. In the present case, the respondents seek relief against the order of the Chief Justice passed by him in an administrative capacity and not judicially. It any order is passed by any Judge including the Chief Justice, acting judicially, there is little doubt that it cannot be challenged under Article 226.

11. Babul Chandra Mitra is also distinguishable from the case before us. In that case all the Judges passed the impugned order; in this case only the Chief Justice has passed the impugned order. So while in the former case the order was one by the High Court, in this case the order is only that of the Chief Justice acting administratively. This is one important distinction. The principle that a person cannot be a Judge in his own cause is not applicable to the facts of the case before us. The order of Hon'ble the Chief Justice is not our order. So we are not sitting as a Judge in our own cause.

12. It appears to us that the second reason assigned by the Full Bench of the Patna High Court is rather broadly stated. There should be little difficulty in saying that a writ in the nature of quo warranto may be issued under Article 226 to a Judge of the High Court if he has not been validly appointed. Again, although Judges are appointed by the President of India, a writ order or direction may be issued to the Central Government for quashing his order or for enjoining the Central Government from enforcing his order. In our view, when the Chief Justice or any other Judge passed an order while acting in an administrative capacity, he is amenable to the writ jurisdiction of the Court under Article 226. Indeed, this court has been regularly entertaining writ petitions against the order of Hon'ble the Chief Justice. In Iqbal Ahmad v. Chief Justice of Allahabad High Court, AIR 1962 All 391 a Division Bench issued a writ in the nature of mandamus to the Chief Justice. The decision of the Division Bench was upheld by the Supreme Court. However, it may be said that the question which has been raised before us was not raised in that case. But we are only pointing to the practice that has prevailed in this Court since the commencement of the Constitution.

13. In Pradyat Kumar Bose v. Chief Justice of the High Court. Calcutta, (1955) 2 SCR 1331 = (AIR 1956 SC 285), the Supreme Court did not enter into the question relating to the issue of a writ to the Chief Justice. However, the Supreme Court made this observation:

"We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under Article 225 of the Constitution in an appropriate case. That is a question on which we express no opinion one way or the other in this case. This observation suggests that it is not quite correct to maintain that this Court has got no power to issue a writ, order or direction to the Chief Justice or any other Judge of the Court while acting in an administrative capacity. The observation suggests that the Court has got power but a writ, order or direction may be issued only in an appropriate case. So the question is not one of power but of propriety.

14. In T. N. Devasahayam v. State of Madras, AIR 1958 Mad 53, the High Court of Madras held that a writ, order or direction may issue to a Judge acting in an administrative capacity. The same view has been taken by two of the three Judges constituting the Full Bench of the Calcutta High Court in Pramatha Nath v. Chief Justice of Calcutta, AIR 1961 Cal 545. So we think that the learned Judge properly issue a direction quashing the order of Hon'ble the Chief Justice which promoted the appellant to the post of the Assistant Superintendent, Administrative Department.

16. Article 214 of the Constitution provides that there shall be a High Court for" a State. According to Article 216 the High Court shall consist of the Chief Justice and Judges. Articles 224, 225, 226, 227 and 228 speak about the High Court as a collective institution. Article 229(1) and (2) confer power on the Chief Justice in respect of the staff of the court. In contrast with this Article, Article 233(1) provides that appointments of persons to be made, and the posting and promotion of district Judges shall be made by the Governor in consultation with the High Court- Similarly. Article 234 provides that appointments of persons other than district Judges to the judicial service shall be made by the Governor in accordance with rules made by him after consultation with the High Court. To the same effect is Article 235. This fascicules of Articles will show that the Constitution has made a distinction between the High Court as a collective institution and the Chief Justice. When the Chief Justice acts in exercise of the power vested in him under Article 229, he does not act for the High Court. He acts in his individual capacity as the Chief Justice.

17. No other points have been raised.

Mahesh Prasad Srivastava v. Abdul Khair And Others .

Summary of the Opinion (reasons for dismissal given July 22, 1970 order)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondents' Arguments

Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mahesh Prasad Srivastava v. Abdul Khair And Others .

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