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TMI Blog1961 (5) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constituted this Special Bench to determine this application. 3. The petition was publicly advertised under Order 1 Rule 8 of the Civil Procedure Code. Not one sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... davit 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 made to bring uniformity of working days in all the High Courts in India. There can be, of course, no such uniformity in this respect because High Courts in India have different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 this Statute marginally described as Vacation of High Courts reads as follows:- 23-A. (1) Every High Court shall have a vacation or vacations for such period or Periods as may, from time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 and the relative Articles of the Constitution, Article 245 makes Parliament's law making power subject to the provisions of the Constitution. The subject-matters of laws to be made by Parliament and State Legislatures are divided under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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 ''Constitutions and Organisations , Vacation is rightly contended to come more appropriately with in administration of justice than within Constitution and Organisation . How the Court is to be constituted and organised, their constitution and organisation in different branches, divisions and jurisdictions do not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 shells but taking even the broadest view there can be no getting away from the fact here that administration of justice sensibly and reasonably construed must include Vacation of High Courts and is a State Legislative subject and not within Parliament's legislative competence It is appropriately and rightly so, because the High Court belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt 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 Vice-Chancellor of the University who has no legal authority over this Court, starts opening and declaring Vacations for this Court, then I feel the legal professions are entitled to move for Mandamus on the ground that the institution in which their members have enrolled themselves, be run according to law. Certainly their legal right to practise according to law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 technical difficulty arises on the ground that the President's Order was made at New Delhi and the second respondent is not within the jurisdiction of this Court. In Lt. Col. Khajoor Singh v. Union of India, [1961] 2 SCR 828 the majority decision holds that (1) Article 228 does not refer to the accrual of the cause of action and to the jurisdiction of the High Court depending on the place where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. An analysis of the original Provisions of the Act 28 of 1954 indicates that the Act was originally passed for carrying out the purposes of Article 221 of the Constitution and this legislation was based on the model of the Government of India (High Court Judges) Order 1937 passed on 18th March 1937 under Section 221 of the Government of India Act, 1935 and other sections mentioned in the said Order. 32. Section 23A wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icates 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 the Solicitor General of India appearing on behalf of the Union of India that under Entry 78 of List I of the Seventh Schedule which deals with Constitution and organisation of the High Courts the Union Legislature has power to regulate the vacations of the High Court, as such a matter comes within the purview of the expression Organization. The answer of the petitioners to this contention is that administration begins where organisation ends and so organi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion 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 63 of the Rules of the Supreme Court in England all show that sittings and non-sittings (i.e. holidays and vacations) are treated and dealt with as allied matters, and as being inextricably mixed up with each other. 37. As pointed out by Gwyer C. J. in the case of United Provinces v. Atiqa Begum the subjects dealt with in the three legislative lists are not always set out with scientific definition but none of the items in the lists is to be read in a narrow or restricted sense and that each general word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 clear indication that the power of regulating the sittings of the Court is intended to be included in the power in relation to Administration of Justice. Logically therefore the same Power was not intended to be included in the subject of organisation as occurring in Item 78 of List I. This appears to be the reasonable interpretation, which should be adopted in avoiding overlapping and conflict between Entry 3 of list II and Entry 78 of List I. 39. It was also argued that the Power to regulate the sittings Contemplated in Article 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 the action of the Chief Justice of an administrative nature, the further question that arises is whether the present case is such an appropriate case. In my view the only answer possible is an answer in the negative. The petitioners seek cancellation of an individual order of the Chief Justice for revision of the calendar in accordance with the Presidential Order hut no such order can be identified by the petitioners. The only order for revision or amendment of the calendar that has been produced before the Court is an order which forms part of the Full Court resolution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 for him to act in the matter. The Past con-duct of the Judges of this Court including those constituting this Special Bench as evidenced by the resolutions passed from time to time show that the judges have all along been opposed to the curtailment of the Vacation of this Court. In this view of the matter and also in view of the matter that the administration of justice must be kept pure, the judges constituting this Special Bench cannot, properly deal with this application. So on the second and third point this petition must fail. 48. It will not be proper to Part with these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and can be a source of many disadvantages to them. As question of constitutionality of a Statute can be raised by a person aggrieved by it, the Petitioners are certainly competent to maintain this application. Our attention was drawn to the Bar Councils Act, Clauses 10 and 11 of the Charter, Clauses 9 and 10 of the Letters Patent, [1957] 1 SCR 167; and AIR 1925 Cal 964 and to certain other authorities but it is not necessary to prolong this judgment by a detailed discussion of these statutes or cases. 50. So far as respondent No. 2 Union of India is concerned there is no doubt that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays 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 sufficient to satisfy the Central Government which asked all the High Courts to increase the working days to 210 in a year. This High Court, and many others, pointed out that such an increase was undesirable, and in the long run would not be of any assistance in the disposal of arrears but would rather defeat the purpose for which it was intended. It is not necessary to go into the details of the ensuing wrangle over the question of working days, It is sufficient to state that ultimately, some of the High Courts in India have increased their working days to 210 in a year, but the Calcutta High Court, and three o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 exhaustively argued, it would not be proper to avoid giving cur opinion on the subject, whether this application succeeds or fails on a technical point. On the merits, the first point to be considered is as to whether Section 23A of the Act is ultra vires the Constitution. As appears from that provision, which has been set out above, it grants power to the President to pass orders from time to time fixing the vacation or vacations of the High Courts in India. The point is as to whether Parliament has, under the Constitution, the power to fix the vacation or vacations of the High Courts, from time to time. It is an instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04) 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 inheriting the powers of the Supreme Court, continued to have the same authority and jurisdiction which the Supreme Court enjoyed, but subject to modifications if any made by the 1861, Act or by the Letters Patent. So far as vacations and holidays are concerned, the first thing to be considered is Clause 37 of the 1774 Charter, establishing the Supreme Court. The relevant part thereof runs as follows: And we do hereby authorise and empower the said Supreme Court of Judicature, at Fort William in Bengal (respect being had to the seasons of the year, and the convenience of the suitors) to settle and appoint proper te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Charter establishing the Supreme Court, there was Clause 37 which directly referred to the number of days during which the Court should sit. Thereafter, in the Charter establishing the High Courts and the Letters Patent issued thereunder, we do find reference to the rule-making powers of the High Courts, but there is no express provision about the 'regulation of sittings', until the above-mentioned provision was introduced into the Government of India Act, which expressly refers to the power of regulating the sittings of the Court and of members thereof sitting alone or in division courts. There remains no doubt therefore that under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer 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 Constitution. Before going to the actual statutes framed under this provision, it would be necessary to refer to the Legislative items in the Seventh Schedule which are relevant. We first of all proceed to consider List I, that is to say, the Union List, Item 78 runs as follows:- Constitution and organisation of the High Courts except provisions as to officers and servants of High Courts, persons entitled to practise before the High Courts. Item 95 runs as follows:- Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List; admiralty jurisdiction. Item 97 is the residuary item and relates to any other mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, 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 Section 23A, comes within any legislative item in List I of the Seventh Schedule. The said Act is a Central Act, passed by Parliament, and sec. 23-A has also been introduced by an Amending Act passed by Parliament. The competition, therefore, is really between item 78 in List I of the Seventh Schedule and item 3 in List II of the said Schedule of the Constitution. What is really happening is that Parliament is seeking to control the vacation or vacations to be enjoyed by High Courts as a whole, and not merely of the Judges, by an Act which lays down the conditions of services of Judges only. Assuming that this was a permissible thing to do, the next question is whether such a subject-matter comes under the heading constitution and or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nistration 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. It is also beyond the scope of the Act itself into which it has been incorporated by way of amendment. 59. I now come to the technical aspects of the case, which I have already outlined above. The question is as to whether the frame of the application is in order, and whether we have jurisdiction to grant the relief or reliefs prayed for. The first question that arises is as to whether this Bench can issue a writ of mandamus against the Chief Justice of this very Court. It will be remembered that the first respondent in this case is the Chief Justice of this Court and the second respondent is the Union of India. So far as the reliefs prayed for are concerned, they are all directed against the learned Chief Justice. This question as to whether, in an application made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dges 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, however, that we have taken as to the contention raised before us regarding the validity of the order of dismissal, we do not feel called upon to enter into the discussion relating to the availability of the writ. We express no opinion on the question so raised. 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. 60. It follows from this that the extreme proposition that was laid down by the Special Bench, namely that under no circumstances could an application lie under Article 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), 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 to the form of the application by addition of parties or otherwise. The position therefore, although very unsatisfactory to everybody concerned, is inescapable. The Full Court, consisting of 22 judges in One instance, and 23 in another, have decided that the vacations should be enjoyed in a particular manner. It happens now to be in conformity with the Presidential Order. Therefore, the quantum of the vacations remains the same whether the power vests in the President or the Full Court. The resolutions of the Full Court have not been rescinded. If the Full Court has jurisdiction to fix the vacations, I do not see how we can issue a writ of mandamus controlling its discretion. It has been argued that this discretion has not been properly exercised, because it was done under duress i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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