TaxTMI 
TaxTMI 
1961 (5) TMI 72
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.... In exercise of the powers conferred by Sub-section (1) of Section 23A of the High Court Judges (Conditions of Service) Act, 1954 (28 of 1954), the President is pleased to make the following order, namely:- Eastern Vacation - From 31st March to 3rd April, 1961 (both days inclusive) - 4 days Annual Vacation - From 9th October to 17th November, 1961 (both days inclusive) - 40 C hristmas Vacation - From 25th December to 31st December 1901 (both days inclusive). - 7 days (M. Gopal Menon). Joint Secretary to the Govt. of India To The General Manager, Govt. of India Press New Delhi." 2. Three representative members of all the three branches of the legal professions here, an Advocate, a Barrister and a Solicitor, have moved this application under Article 226 of the Constitution, challenging the President's order as unconstitutional, ultra vires and illegal and as an unprecedented executive interference with the internal administration of the High Court to regulate its own vacations and sittings. Application was moved before D. N. Sinha, J., who referred it to a larger Bench. The Chief Justice....
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....or notifying the Order is said to be to clear arrears. This reason has been criticised at the Bar as hollow and false. The High Court of Assam in the Chart annexed to the affidavit has reduced arrears, and yet the Order has been made against it. It is, therefore, argued that the reason put forward is Untrue. It is also contended at the Bar that Article 224 of the Constitution makes provision for the appointment of additional judges to clear arrears and not to reduce vacations fixed by the High Courts. It is then contended on behalf of all the branches of legal professions that reduction of vacations of the High Courts will not help arrears to be cleared up in fact because having regard to the vacation so far had before this Order, legal leave due to Judges was not availed of due to the Judges' regard and sense of public duty, but it the vacation is so reduced as to compel due leave to be utilised, then the loss in judge hours of work will be very much more than the gain by the increase of ten day, work in the year. It is, therefore, also criticised that so-called reason for clearing arrears does not stand scrutiny No formal reason is put forward to suggest that the order is mad....
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....n law and the litigant Public. In other words, the plain issue raised is that vacations of the High Court do not and cannot form conditions of service of High Court Judges, and what could not be done directly is being attempted to be done indirectly by this impugned Order. It is challenged in the petition as colourable legislation. This argument is developed in the following manner. 8. In the first place, reference is made to the Statement of the Objects and Reasons of the High Court Judges (Conditions of Service) Act 1954 and its Amending Act 48 of 1958 which received the President's assent on 17th December, 1958, and was published in the Gazette of India on the following day. This Amending Act introduced Section 23A of the Act under which the impugned Order was passed. Three main reasons were suggested in the Statement of Objects and Reasons for this Amending Act 1958, which, may be briefly classified as (1) for making Provisions for service or acting as additional judges to count as service as judges, (2) for pensions of what were known as Part B States Judges, and (3) for "certain minor and clarificatory amendments" as a result of the working of 1954 Act. Section 23A of ....
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....ovision of any law of the "appropriate legislature". 12. The pre-existing powers of this Court, at the date of Constitution and even thereafter until the date of the impugned Order, clearly show that this High Court had the authority to determine what vacations it should have. See Clauses 37 and 38 of Charter of 1774, Clause 37 of the Letters Patent read with the Division Bench decision in Gur Bux Singh v. Sohonlal Malhotra, AIR 1952 Cal 542 and the observations of Banerji, J., at page 129 with whom Harries, C. J., agreed, Chapter III, Rules 1-3 of the Original Side Rules, Section 9 of the High Court Act 1861, Sections 106-8 of the Government of India Act 1915 Section 223 of the Government of India Act, 1935. 13. This pre-existing power of this High Court to regulate its own vacation can be cut down under Article 225 of the Constitution only by (1) the Constitution, and (2) by laws of appropriate legislature. The Constitution far from cutting down this power, preserved it. The question, therefore, is what is the 'appropriate Legislature" which can cut down this power? 14. For this Purpose reference is made to the Legislative Lists in the Constitution and Items therein ....
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....39; may be an expression of wide import and may ordinarily and in the absence of anything indicating any contrary intention, cover and include within its ambit, several things as component parts of it, namely, the Constitution. Organisation of Courts, jurisdiction and powers and the laws to be administered by the Courts." 18. Reliance was also placed on the Full Bench decision of the Madras High Court In re: S. M. Nathaniel AIR 1949 Mad 481 on the meaning and construction of the words "administration of justice." and specially the observations there of Rajamannar, C. J., at p. 487. 19. The learned Solicitor-General has contended that Vacation comes within "Constitution and Organisation" and for this purpose could cite nothing better than rely on the Old Bengal and Assam Civil Courts Act, 1887 Chap. 2 with the title "Constitution of Civil Courts" and Ss. 14 and 15 appearing under that title, dealing respectively with place of sitting and vacations. That Act, however, does not at all help because it never used the expression "administration of justice" as used in the Constitution today. Where the expression "administration of justice" is used separately from the expressions ....
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....e of the Union to be set aside and overcome at every convenient turn. They represent a carefully balanced and constitutionally decentralised and integrated distribution of powers among different constitutionally recognised both is who must act within their respective spheres marked out by elaborate scheme of carefully chosen legislative entries in the 7th Schedule of the Constitution. It cannot be too strongly emphasised that under the Constitution, "administration of justice" is not a Union but a State subject for legislation and it will be an infraction of this Constitution to control such "administration of justice" by the backdoor of "Constitution and Organisation" which alone is the Union Legislative competence. It is to my mind difficult to bring periodic or annual control of vacations of State High Courts as institutions of justice by the President under Section 23A of High Court Judges (Conditions of Service) Act 1954 within either ''Constitution" or "Organisation" of a State High Court, without entrenching on State legislative sphere of "Administration of Justice". I am aware that legislative entries should not be too Punctiliously construed as narrow unbreakable s....
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....and trying contempt of their own orders and the principles discussed in this connection by Black, J., of the American Supreme Court in Federal Trade Commission v. Cement Institute (1948) 333 U. S. 683 ( (92 LEd 1010) at pp. 700-703. 22. The argument that the legal professions have no legal right to maintain this application may be disposed of briefly. No doubt that unless there is a legal right in the applicant, no application for Mandamus can lie That is settled law. The Rules of this Court, made under Letters Patent, and the Charter and the Rule-making powers of this High Court, and Section 8 of the Bar Councils Act, enrolling Advocates and giving them the right to practise (using the expression "entitled as of right to practise in any High Court") before this Court give them the legal right to see that the institution which has enrolled them under statutory powers is carried on and conducted according to law and the Rules made thereunder for purposes of such statutory right to practise. IF the law and the Rules framed provide that the High Court has to fix and regulate its Vacation and Sittings according to certain laws, then if some other authority, say, for example, the Vic....
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....he "view" expressed by the Supreme Court is declaration of law and is binding on all under Article 141 of the Constitution. If a Writ lies against the Chief Justice for administrative act, then the Full Court Resolutions of the 27th January, 1961 (hereby directed to be filed) with the Order of printing the Calendar are also administrative acts and a Writ can lawfully lie according to that "view" which the Supreme Court expressed. No doubt the writ will issue in "an appropriate case" but the question whether a particular case is or is not an appropriate case will depend on the facts of the individual case concerned and no longer on any inherent legal bar. The fact that all the Judges are not made parties does not appear to me to affect the question, because on the basis that it is an administrative act, the Chief Justice is the administrative head representing the Full Court and the petition has also been publicly advertised under Order 1 Rule 8 and no Judge has come forward to join the application in support to this order, and a Mandamus will be against the head of the administration; and the Chief Justice has been made a respondent to this application. 26. But then the real tec....
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....fferent view. I am afraid this Court cannot go into that question and the conflict if any between the two. the petitioners can only get resolved by the Supreme Court. 27. In that view of the matter, I am bound to hold that this impugned order of dubious constitutional validity and of still more dubious propriety must escape judicial verdict, on the purely technical ground of jurisdiction as laid down by the majority decision of the Supreme Court in [1961] 2 SCR 828 cited above. 28. The application, therefore, fails on the ground of jurisdiction and is dismissed. There will be no order as to costs. H.K. Bose, J. 29. The principal question that arises for determination in this case reported under Chapter v. Rules 2 and 3 of the Original Side Rules of this Court is whether the Order called the Calcutta High Court Vacation Order 1960 Passed by the President of India on 1st November 1960 under Section 23A of the High Court Judges (Conditions of Service) Act 1954 (Act 28 of 1954) is valid, or not. 30. It appears that when the High Court Judges (Conditions of Service) Act 1954 was originally passed on 20th May, 1954 there was no provision like Section 23A in that Act. 31....
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....ion of justice" includes the connotation of regulating the sittings of the Court is made clear by the Constitution itself. Article 225 of the Constitution which preserves the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to the administration of justice in the Court including the power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, indicates that regulation of the sittings of the Court is expressly categorised as one of the matters comprehended within the connotation of the expression "Administration of justice" which is a subject mentioned in Entry 3 of the List II of the Seventh Schedule to the Constitution and is thus a topic with respect to which the State Legislature alone has exclusive power to legislate under Article 246 of the Constitution, subject to Clauses (1) and (2) thereof. Again under Entry 3 of List II it is the State Legislature which has exclusive power to legislate with respect to officers and servants of the High Court. The Union legislature has not been given power to make laws with respect to any of these two subjects. It has been argued by....
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....y No. 14 of Section 92 and that it is over the procedure of such Provincial courts alone that No. 14 gives the Provincial legislature jurisdiction. The Supreme Court of Canada however upon the question being referred to it by the Governor-General in Council held that the legislature of British Columbia could make rules to govern the procedure of the Supreme Court of the Province in all civil matters and could delegate this power to the Governor-General in Council, and that the Provincial Act in question was intra vires. Their Lordships unfortunately did not give their reasons for this decision." 35. So the interpretation put by the Canadians Courts on the expression appearing in Entry 14 of Section 92 of the British North America Act, shows that although the power to regulate the sittings of the Court was not expressly mentioned in Entry 14 it was assumed that such power was comprehended within the expressions used in Entry 14. 36. It was argued that the power to regulate the sittings does not include the Power to regulate the non-sittings. But Chapter III of the Rules of the Original Side of this Court, and the Rules embothed in Order II of the Supreme Court Rules and Order ....
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....lative subjects are defined it is Practically impossible to ensure that they never overlap". But I do not think that there is any overlapping so far as the power of regulating the sittings of High Court or the vacation of the High Court is concerned. The matter of organisation of the High Court includes primarily things like the appointment of the Judges, the division into department, making pro- vision and arrangements for the housing of the Courts or in other words matters connected with the giving of final shape to the Court so that it may start functioning. But the matter of its running and management and its actual functioning is entrusted to the State legislature under the Power to legislate with respect to Administration of Justice. Clauses 37 and 38 of the Charter establishing the Supreme Court at Calcutta, Section 9 of the High Court Act, 1861, Sections 106, 108 and 112 of the Government of India Act 1915 and Section 223 of the Government of India Act, 1935 indicate that all along this power to regulate the sittings was in the High" Court (See also B. K. Biswas v. Phanindra Nath, AIR 1951 Cal 401). Moreover, as Pointed out already Article 225 of the Constitution gives very....
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....h Court at Calcutta, Matter No. 139 of 1952, D/- 27-10-1953 (Cal) where it has been held that no writ can be issued against the Chief Justice by a Bench of the High Court whether the Chief Justice is exercising administrative functions or judicial functions. This case, however, went up in appeal before the Supreme Court [1955] 2 SCR 1331. Towards the conclusion of its judgment the Supreme Court observed that : "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 226 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." 44. So this Passage seems to suggest that when the action of the Chief Justice is of an administrative nature there may be a remedy available under Article 226 in an appropriate case. But it is also clear that the Supreme Court did not express any opinion on this point one way or the other and kept it absolutely open. 45. Now assuming that in an appropriate case a remedy under Article 226 is available against ....
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.... learned Judges parties to this application. The learned counsel appearing for the petitioners after considering the matter informed this Court that they did not want to adopt that course. In the circumstances there is no other alternative but to hold that the application is defectively constituted and is not maintainable without the learned Judges being made parties to the application. 47. The third point raised presents still greater difficulty. All the learned Judges constituting this Special Bench were Parties to the resolution dated the 1st March 1961 although Sinha J. was not a party to the Resolution dated the 27th January, 1961. Now it is a basic principle of jurisprudence that no one is allowed to be a Judge in his own cause. A Judge should have no interest in the litigation. The object of the rule is that not merely the scales be held even, it is also that they may not appear to be inclined. Justice must not only be done, it must manifestly be seen to be done. It is true that if the interest of the Judge is not a pecuniary one but is of any other kind it has to be established that a judge has such a substantial interest in the result of the hearing as to make it wrong ....
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....gment in this respect. So this argument of Mr. Choudhury though ingenious and forceful cannot be accepted. 49. The last Point as to the maintainability of the application relates to the question whether the petitioners have a legal right or any locus standi to maintain this application. Now it is well known that an attorney is an officer of this Court. The whole of Chapter II of the Original Side Rules embothes rules relating to the enrolment and conduct of the attorneys and their rights and Privileges. Then again rules 7 to 11 in Chapter v. of the Original Side rules show that they are subject to the disciplinary jurisdiction of this Court. They like the Advocates of this Court are Practising the profession of law and in practising such profession they are entitled to the benefit or amenities of the rules of this Court including the rules in Chapter III. They have a right to see that these rules which have the force of law are observed by this Court. So there can hardly be any room for doubt that Advocates and Attorneys are aggrieved by the Presidential Order. The reduction of the vacation may seriously impair or prejudice their right to practise the profession with efficiency ....
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.... to time, be fixed by the President, by order notified in this behalf in the Official Gazette, and every such order shall have effect notwithstanding anything contained in any other law, rule or order regulating the vacation of the High Court." 54. On or about 28th December, 1960 in exercise of the power conferred by Sub-section (1) of Section 23A of the said Act, the President passed an order called "The Calcutta High Court (Vacation) Order, 1960 by which it was ordered that the vacations of the Calcutta High Court during the year 1961 shall be 4 days during Easter, 40 days during the Annual Vacation and 7 days during the Christmas Vacation. What led to the promulgation of this order may be shortly stated. Prior to the independence of India, and even thereafter, the working days of the Calcutta High Court and most of the High Courts in India, numbered less than 200 days in a year. It was urged by the Central Government that owing to arrears of work pending in the various High Courts, the working days should be increased. Thereupon, most High Courts increased their working days and this High Court increased its working days to 200 days in a year. This increase was, however, not ....
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....the provisions of the Constitution. If Section 23A of the said Act is ultra vires, then the Presidential Order made thereunder is also bad, and the question arises as to the validity of the fixation of the vacations, in accordance with the Presidential Order. Next, we have to deal with certain technical points as to whether, even if the Act and order be ultra vires, this Bench as constituted, has jurisdiction to grant the remedy asked for. On this heading, a number of questions have to be answered, namely, as to whether the frame of the application is good, as to whether a writ of mandamus can be issued by a Bench of this Court against the learned Chief Justice of this very High Court, or whether this Bench could make an order in the absence of the other learned Judges, constituting the Full Court. The learned Solicitor-General has asked us not to deal with the merits of the case, if we are going to dismiss the application On a preliminary point or on a technical point. In my opinion, this is not a desirable course. After all, it is a question which is bound to arise from year to year and in all the High Courts. Since the matter is purely a question of law, and has been exhaustivel....
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....d, and the Mayor's Court was abolished. It is unnecessary to go into the detailed history of the Supreme Court. We might at, once come to the year 1858 when the Directors of the East India Company transferred their possessions in India to the British Crown. It was announced by Royal Proclamation, on the 1st November, 1858, and the Act of 1858 was passed (21 and 22 Vict., c 106) for the better government of India. As a result of the Act of 1858, a Bill was introduced in Parliament in England in 1861, for the establishment of High Courts in India, and this was passed in the form of an Act (24 and 25 vict. c. 104) dated 6th August, 1861, making it lawful for Her Majesty the Queen of England to establish High Courts in India by Letters Patent. In pursuance of the powers contained in the said Act, the Letters Patent dated 14th May, 1862 were issued, establishing the High Court of Judicature at Fort William in Bengal. This was followed by the Letters Patent of 1865. The position, therefore, is as follows : There was the Charter of 1774 establishing the Supreme Court. The Supreme Court was supplanted in 1861 by the High Court of Calcutta, but under the 1861 Act, the High Court, as inh....
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....e Government of India Act, 1915 is concerned, the jurisdiction of the High Court is dealt with in Section 106. The High Courts were to have all such power and authority over, and in relation to, the administration of justice and the power to make rules for regulating the practice of the Court, as were vested in them by the Letters Patent. The next thing to be considered is the Government of India Act, 1935. The relevant provision is Section 223, which runs as follows:-- "223. Subject to the provisions of this part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act." 56. We have already seen that in the....
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....s certain restrictions on the Judges, and Article 221 Provides for their salaries. Article 225, which corresponds to Section 108 of the Government of India Act, 1935 lays down the jurisdiction of the existing High Courts. The relevant part thereof runs as follows: "Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution........." 57. The position therefore is this : The power of regulating the sittings of the court, which had hitherto been vested in the High Court, that is to by, in its Judges collectively, continued as before, subject to any law passed by the appropriate Legislature, by virtue of powers conferred on that Legislature by the Co....
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....derstand how Section 23A is a clarification, and if so of what. It introduces a new provision altogether. Further, the parent Act was promulgated to regulate certain conditions of service of the Judges of the High Courts. It is difficult to understand how it can contain any provision controlling or regulating the vacation of the "High Courts", because the terms "Judge" and "High Court" are not identical for all purposes. The difficulty is patent. A High Court consists not only of its learned Judges, but also of officers and Staff, some of whom have to carry out judicial duties. For example, the Registrars, or the Masters of this Court have regularly to carry out judicial duties. So far as officers and servants of the High Courts are concerned, they have been expressly excluded from the legislative powers of Parliament. It is, therefore, difficult to understand how the vacation or vacations of the entire High Court including its officers, staff and servants can be controlled by a provision of law incorporated in an Act which has been enacted only to deal with the conditions of service of Judges. Apart from this difficulty, the main thing to be considered is as to whether the amended....
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.... can imagine, that while constituting a High Court, it may be laid down that a High Court shall not have less than a specified number of working days. That might be a part of its constitution. But once the High Court or High Courts have been constituted or organised, the power to control vacations periodically, (In this case, annually), for all time to come, cannot possibly be said to be related to the "constitution" or "organisation" of such a High Court, even if we apply the doctrine of "pith and substance", There must be some distinction between the words "constitution" and, "organisation" and the expression "administration of justice". In certain cases, the boundaries may overlap; but if the words "constitution" and "organisation" include every aspect of the administration of justice, for all times to come, then there is nothing left for the State Legislature to do regarding the High Court. In my opinion therefore, the periodical fixation of the vacations of the High Court, is no part of its constitution or organisation and the matter does not come within item 78 of the Union List. Section 23A is therefore not within the legislative competence of Parliament and is ultra vires. ....
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....held that neither as a judicial nor as a quasi-judicial body or authority nor as an administrator, is the Chief Justice of this High Court amenable to any writ like certiorari, prohibition or mandamus, or writs of like nature, or even any other constitutional order or direction. The rule-nisi was discharged. Against this order there was an appeal to the Supreme Court [1955] 2 SCR 1331. It was held upon the merits that the Chief Justice was competent to dismiss the appellant, and the appeal was dismissed. So far as the technical Point was concerned, namely as to whether a writ could issue against the Chief Justice, the Supreme Court left the matter open Jagannadhadas, J. stated as follows : "This would be enough to dispose of the case against the appellant. The learned Judges of the High Court have also dealt at some length with the question as to the maintainability of an application for a writ in a case of this kind and of the availability of any remedy by way of a writ against the action of the Chief Justice, whether administrative or judicial. Arguments in this behalf have also been strongly urged before us by the learned Advocate General of West Bengal. In the view, ho....
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.... any view of the matter, it is not the learned Chief Justice who has a right to regulate the holidays and vacations of this Court. Our attention has been drawn to Rule 2 of Chapter III of the Original Side Rules, which lays down that the vacations, namely the Easter, Long and the Christmas Vacation shall begin and end on such date as the Chief Justice may direct. Regard being had to the legal position already explained above, this Rule is not in accordance with the Charter and the Letters Patent. The power vests in the Full Court, that is to say, the totality of all the Judges, and this Rule should be changed at an early date. The situation is truly "Gilbertian", as was pointed out by Mukharji, J. In Pradyat Kumar Bose's case, Matter No. 139 of 1952 D/- 27-10-1953 (Cal) (SB) (supra), where the Judges of this Court having passed a resolution, are called upon to issue a writ against themselves or one of them, preventing its implementation. In any event, I do not see how three learned Judges of this Court who were themselves parties to the resolutions could achieve this, particularly in the absence of the other Judges. Although every opportunity was granted, no amendment was made ....