- (1.) THIS writ petition, filed by eight Upper Division Assistants of the General Office of the High Court at Allahabad, is directed against 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 Sriva-stava 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 first prayer set forth in the petition asks for the quashing of certain earlier orders of the Chief Jus tice as well, but Mr. S. N. Kacker, who appears for the petitioners, has stated that it is not necessary to quash those earlier orders and that he confines this prayer to the quashing of the last order dated 1-3-1969. In addition, the peti tioners challenge the promotion of Mahesh Prasad Srivastava to the post of Assistant Superintendent in the Adminis trative Department on 23-4-1969 and of Sushil Kumar as Assistant Superinten dent in the Copynig Department on 25-4-1969, on the basis of their seniority fixed by the aforementioned order of 1-3-1969.
(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 con tended that the High Court cannot issue a writ against its own Chief Justice or his nominee the Registrar, for the pur pose of quashing orders passed in ex ercise of the powers conferred by Arti cle 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 3 (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of offi cers 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 to salaries, allowances, leave or pensions, 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 jurisdic tion; and it has to be admitted that the very phraseology used in this clause im plies 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 inter pretation. 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 speci fically 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 Jus tice by Art. 229 as equivalent to the conferment of powers on the High Court, with the Chief Justice named merely as the High Court's representative. Had this been the intention, one would rea sonably have expected a different phra seology to be used. The history of the powers ex ercised by the Chief Justice in relation to the High Court staff also 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. Clause 6 of the Letters Patent, by which these powers were first conferred, runs: "And we do hereby authorize and empower the Chief Justice of the said High Court of Judicature at Allahabad from time to time as occasion may re quire and subject to any rules and res trictions which may be prescribed by the Lieutenant-Governor of the United Pro vinces of Agra and Oudh to appoint so many and such Clerks and other Minis terial Officers as shall be found neces sary for the administration of justice and the due execution of all the powers and authorities granted and committed to the said High Court by these Our Letters Patent" This shows that from the very inception the powers were given not to the High Court but to the Chief Justice. Next came the Government of India Act, 1915, which contained the following provisions. "106 (1) The several high courts are courts of record and have such jurisdic tion, original and appellate, including ad miralty jurisdiction, in respect of of fences committed on the high seas, and all such powers and authority over or in relation to the administration of justice. including power to appoint clerks and other ministerial officers, of the court, and power to make rules for re gulating the practice of the court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent, all such jurisdictions, powers and authority as are vested in those courts respectively at the com mencement of this Act." Learned counsel for the respondents lay stress on this recital as showing that the power to appoint clerks and other minis terial officers was one of the powers of the High Court. But the section has obviously to be read in conjunction with the clause of the letters patent quoted earlier, since it merely describes the powers already vested in the various High Courts by their respective letters patent; and the letters patent them selves, as already pointed out, show that the power to appoint clerks was given not to the High Court but to the Chief Justice. Viewed in this light, the reci tal in Section 106 is obviously only a loosely expressed summary, which lumps together the totality of powers exercised by the Chief Justice and by the High Court itself; and it cannot be said that the section alters the legal position esta blished by the letters patent themselves. The subsequent Government of India Act, 1935, has clarified the situation by enacting as follows: "241 (1) Except as expressly provid ed by this Act, appointments to the civil services of, and civil posts under the Crown in India, shall, after the com mencement of Part III of this Act, be made- (b) in the case of services of a Pro vince, and posts in connection with the affairs of a Province, by the Governor or such person as he may direct. (2) Except as expressly provided by this Act. the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may be prescribed- (b) in the case of persons serving in connection with the affairs of a Province, by rules made by the Governor of the Province or by some person or persons authorised by the Governor to make rules for the purpose. 242. (4) In its application to appoint ments to, and to persons serving on...... the staff attached to a High Court, the said section (i.e. Section 241) shall have effect ............... as if, in the case of a High Court, for any reference to the Governor in paragraph (b) of sub-sec tion (1). in paragraph (b) of sub-sec. (2) ............. they were substituted a re ference to the Chief Justice of the court." These provisions make it clear that the Chief Justice has been invested with that powers of appointment and of regulating the conditions of service of the High Court staff not as a representative of the High Court but in his individual capa city, for the functions which he has been called upon to discharge are shown to be primarily functions of the Governor, not of the High Court. Normally the Gov ernor makes all appointments to civil posts in the province or State and regu lates the conditions or service attaching thereto, but in view of the special status of the High Court, these powers of the Governor has been transferred, so far as the High Court staff is concerned, to the Chief Justice. The history of these powers, which are now enshrined in Art. 229 of the Constitution, therefore, lends support to the view that, they are exercised by the Chief Justice in his individual capacity, not as a representa tive of the High Court as a whole.
(3.) JUDICIAL precedents do not af ford much assistance in the determina tion of this question of whether writs can be issued to the Chief Justice in res pect of orders passed in exercise of the powers conferred by Art. 229, as the Supreme Court has hitherto declined to express any definite opinion on the sub ject - vide Pradyat Kumar Bose v. Chief Justice of Calcutta, AIR 1956 SC 285, para 14 and Himansu Kumar Bose v. Jyoti Prokash Mitter, AIR 1964 SC 1636, para 18. In Parmatma Sharan v. Chief Justice of Rajasthan, AIR 1964 Raj 13 also the question was left unanswer ed. Reference has been made in the course of arguments to In re Babul Chandra Mitra, AIR 1952 Pat 309 (FB). Pramatha Nath Mitter v. Chief Justice of Calcutta, AIR 1961 Cal 545 (SB). T. N. Devasahayam v. State of Madras, AIR 1958 Mad 53 and K. Prabhakaran Nair v. State of Kerala, AIR 1970 Ker 27 (FB); but those rulings are concerned with the issue of writs against decisions taken or orders passed by the High Court as a whole and have nothing to do with orders passed by a Chief Justice under Art. 229;