ADITYA NARAIN SINGH Vs. TULSHI PRASAD NARAIN SINGH

JUDGEMENT

(1.) The learned Counsel for the applicant has taken a preliminary objection that this High Court is not legally constituted inasmuch as the vacancy caused by the transfer of Young, J., from Allahabad to Lahore has not been filled up. The argument of course takes it for granted that Young, J., has retired from this High Court to-day. There is no affidavit before us to show that he has actually taken over charge at Lahore. We shall however assume for the purposes of this objection that he has retired from this High Court Bench. No doubt the Government of India Act, Section 101, requires that each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think fit to appoint. Up till the time of retirement of Young, J., there were certainly one Chief Justice and 8 Judges. The learned Counsel for the applicant asks us to make a second assumption that His Majesty has thought fit after the retirement of Young, J., to have one Chief Justice and 8 Judges. We may make this assumption also in order to consider his objection. The provisions of the Government of India Act contemplate three classes of Judges of the High Court : (1) Permanent Judges appointed by His Majesty who are called the Judges of a High Court of Judicature : (2) Additional Judges appointed by the Governor-General in Council who act and have all the powers of a Judge of the High Court and (3) Officiating Judges who are appointed by the Local Government to fill up temporary vacancies till permanent appointments are made.

(2.) Section 101 further lays down the qualifications of a Judge of a High Court and then contains the proviso that not less than one-third of the Judges of the High Court, including the Chief Justice but excluding the Additional Judges, must be Barristers or Advocates as aforesaid and that not less than one third must be members of the Indian Civil Service, At least in practice, the proviso has been interpreted so far as meaning that the Chief Justice must be a Barrister Judge and that one-third of the total strength of the permanent Judges including the Chief Justice must be Barristers and one-third must be members of the Indian Civil Service. The proviso does not in express terms apply to Additional Judges, for it excludes them. We think that a fortiori the proviso does not apply to Officiating Judges appointed by the Local Government. It follows therefore that there is no defect at all if the Officiating Chief I Justice happens to be a non-Barrister or an Officiating Judge a non-Barrister or non Civilian Judge in place of a Barrister or Civilian Judge, who has either retired or gone on short leave. There is a distinction between the constitution of a High Court which consists of one Chief Justiceship and a fixed number of Puisne Judgeships and the actual group of individual Judges who for the time being constitute the High Court. If the constitution itself were altered and a Judgeship were abolished which would disturb the requisite proportion, there would certainly be n, defect in the constitution. But if there be a temporary vacancy caused by the retirement, resignation or going on leave of a Chief Justice or a Permanent Judge the constitution in our opinion, would not be illegal.

(3.) That this is so is clear from the provisions in Section 105(1) of the Act and which show clearly that in the case of a vacancy in the office of a Chief Justice or during his absence the Local Government is bound to appoint one of the other Judges to perform the duties of a Chief Justice of the Court until some person has been appointed to the office by His Majesty. This sub section therefore implies that there would be a gap between the retirement of a permanent Chief Justice and the appointment of a new Chief Justice during which period the Local Government must appoint an Officiating Chief Justice, Similarly Sub-section 2 of the section provides that on the occurrence of a vacancy in the office of any other Judge of a High Court or during his absence or on the appointment of such Judge, to act as Chief Justice, the Local Government may appoint a person who possesses the necessary qualifications to act as a Judge and the person so appointed may sit and perform the duties of a Judge until His Majesty has made the permanent appointment. This sub-section also contemplates an interregnum during which there would be a vacancy in the permanent strength of the Bench which may be temporarily filled up by an appointment of an Officiating Judge. It follows that it is not essential that a temporary vacancy must be filled immediately otherwise the subsisting Judges would not have jurisdiction to act.