S. Saghir Ahmad, J. - (1.) THIS petition is directed against the order dated 1.5.1993 passed by Hon'ble the Acting Chief Justice (in short ACJ) by which Writ Petition No. 1619 (MB) of 1993 (Sanjay Kumar Srivastava 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 : "Hon'ble S. C. Mathur, AC.J. The W. P. shall be heard and decided by the Special Bench of three Hon'ble Judges as follows : 1. Hon'ble S. S. Ahmad, J. 2 Hon'ble J. K. Mathur, J. 3 Hon'ble 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 l.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 notification dated 31st March. 1993 issued under the U. P. Public Services (Tribunal Amendment) 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 appointment of an other officers belonging to the Indian Administrative Service as members of the U. P. Public Services Tribunal. THEse five officers have since been as arrayed as opposite parties 4 to 8 in Writ Petition No. 1619 (MB) of 1993. This petition was taken on 2nd April, 1993 by a Division Bench comprising of one of us (Hon'ble J. K. Mathur. J.) and Hon'ble H. N. Tilhari, J. and ; on that date the Division Bench passed the following order : "Hon'ble J. K. Mathur, J. Hon'ble H. N. Tilhari, J. Heard the learned counsel for the parties. The learned Chief Standing Counsel has accepted notice on behalf of opposite parties. Opposite parties want and are granted time to obtain instructions. This case be put up for orders on 5th April, 1993. Till that date, no members of the Administrative 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 judicial function till then. Put up on Monday (5th April, 1993) for further hearing. Sd/J. K. Mathur, J. Sd/H. N. Tilhari, J. 2.4.1993" 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. "Hon'ble J. K Mathur, J. Hon'ble 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 affidavit. The counter-affidavit and supplementary counter-affidavit having been filed today. The petitioner has also filed supplementary affidavit in respect of which opposite 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" 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 indicated that the petition will be taken up tomorrow. Sd/J. K Mathur, J. Sd/H.N.Tilhari, J. 6.4.1993" In pursuance of the above order by which the petitioner was requested to serve opposite party No. 3 (Sri R. Venkataraman, I.A.S.) outside the Court the petitioner obtained dasti notices from the office to serve opposite party No. 3. 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" This order was signed only by Hon'ble J. K. Mathur and not by Hon'ble H. N. Tilhari, J. On 8.4.1993. the following orders was passed : "Put up tomorrow for further hearing". Sd/J.K. Mathur. J. Sd/H. N. Tllhari, J. 8.4.1993" On 9.4.1993 the following order was passed : "Put up on Monday (12.4.1993) for further arguments. Sd/J.K. Mathur. J. Sd/H. N. Tilhari, J. 9.4.1993" On 12.4.1993 the following order was passed : "We have heard learned Advocate General on his application for vacation of stay order. Put up tomorrow." This order is also signed by only Hon'ble J. K. Mathur, J. and Hon'ble H. N. Tllhari, J. has not signed the order-sheet. On the same day namely on 12.4.1993 an application for amendment (C. M. Application No. 10469 (W) of 1993) was filed by the petitioner. It was allowed on the same day by the following order : "This is an application for amendment moved on behalf of the petitioner. The petitioner seeks to implead five more persons as opposite parties. The application is not approved. The application is allowed. The opposite parties including the newly added ones may file counter-affidavit. The learned counsel for the petitioner undertakes to serve newly added opposite parties outside the Court. The office shall provide necessary process to the learned counsel for the petitioner today. The case shall be put up tomorrow. Sd/J. K. Mathur, J. Sd/H. N. Tilhari, J. 12.4.1993" Since in the above order a direction was given to the office to issue necessary process to the learned counsel for the petitioner for service on opposite parties 4 to 8, the office issued dasti notices on 13.4.1993 as per endorsement made on the order-sheet. On 13.4.1993 the Division Bench passed the following order but strangely, perhaps by an oversight the order is not signed by any of the learned Judges. "Hon'ble J. K. Mathur. J. "Hon'ble H. N. Tllhari, J. Heard counsel for the petitioner on the application for the vacation of stay. Learned counsel for the appeal petition wants and is granted seven days time to file counter-affidavit. The petitioner shall in co-operate the newly impleaded opposite parties may also file a counter-affidavit within seven days. Rejoinder affidavit may be filed within a week thereafter. The case shall now be listed on 3.5.1993." On 19.4.1993, the Hon'ble J. K. Mathur, J. pronounced the order on the application of the State of U. P. for vacating the stay order refusing to vary or recall the order dated 2.4.1993 and the application for vacation of the interim order dated 2.4.1993 was rejected. On 1.5.1993, C. Misc. Application No. 13964 (W) of 1993 was filed by the Chief Standing Counsel before the Hon'ble Acting Chief Justice to constitute a Bench of more than two Hon'ble Judges to hear and decide the writ petition on merits the application was allowed by Hon'ble the Acting Chief Justice on the same date by the order contained in Annexure-1 and it is this order against which the present petition has been filed. Learned counsel Sri K. S. Bajpai, appearing for the petitioner, who himself is a practising Advocate of this Court, has contended that Writ Petition No. 1619 (MB) of 1993 was a part-heard matter of the Division Bench comprising of Hon'ble J. K. Mathur, J. and Hon'ble H. N. Tilhari, J. and, therefore, it was not open to Hon'ble the Acting Chief Justice to constitute a Full Bench of three Judges for the hearing of the case and that too after dropping one of the Judges (Hon'ble H. N. Tilhari, J.) (who had already heard the matter in part) from the Full Bench. It is further contended that the order passed by Hon'ble the Acting Chief Justice was an ex parte order and the present petitioner was not heard. It is also contended that Hon'ble the Acting Chief Justice has passed the order at Allahabad on the application of the Chief Standing Counsel without properly calling for the record of the case which was all along at Lucknow, so as to satisfy himself that an important question did really arise in the case necessitating the constitution of a Bench of three Judges for the hearing of the case. It is also contended that Hon'ble the Acting Chief Justice has issued the impugned 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 besides being arbitrary was also mala fide.
(3.) THE Advocate General appearing on behalf of one of the opposite parties has, on the other hand, contended that the order dated 1.5.1983 passed by Hon'ble the Acting Chief Justice constituting a Bench of three Judges for hearing and disposal of the Writ Petition No. 1619 (MB) ef 1993 was properly passed on the application of the State and, in the particular circumstances of the case, it could not be said that the opportunity of hearing to the petitioner was denied. It is contended that the impugned order is neither mala fide nor arbitrary and is well within the scope and jurisdiction of the powers of Hon'ble the Acting Chief Justice as defined under law. Article 214 of the Constitution provides that there shall be a High Court for each State. Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Article 217 provides for appointment and conditions of the office of a Judge of High Court. It provides, inter alia, that every Judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Govern by of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Article 223 of the Constitution makes provision for the appointment of Acting Chief Justice from amongst other Judges of the High Court. Article 229 of the Constitution lays down that the officers and servants of a High Court shall be appointed by the Chief Justice or by such other Judge or officer as he may direct.;