Gujarat High Court
Paresh J. Mehta vs G.M. Malvat, Addl. Registrar And Ors. on 24 March, 1998
Equivalent citations: (1998)2GLR1322
Author: J.M. Panchal
Bench: K.G. Balakrishnan, J.M. Panchal
JUDGMENT J.M. Panchal, J.
1. Admitted. Mr. S.N. Shelat, learned Additional Advocate General waives service of notice on behalf of the respondent Nos. 2, 3 and 4 and Mr. S.M. Mazgaonkar, learned Counsel waives service of notice on behalf of the respondent No. 1. At the request of the learned Counsels appearing for the parties, the appeal is heard today.
2. By means of filing this appeal under Clause 15 of the Letters Patent, the appellant has challenged the legality of the judgment dated October 24, 1997 rendered by the learned single Judge in Special Civil Application No. 2021 of 1997 (reported in 1998(2) G.L.R. 967), by which, the petition filed by the petitioner questioning the appointment of the respondent No. 1 as Additional Registrar of the High Court of Gujarat, is dismissed.
3. The appellant is a practising lawyer of This Court and had on his own submitted his Bio-data for appointment to Class-I Administrative post in the High Court of Gujarat. The respondent No. 1 was initially appointed as a Section Writer and subsequently, promoted from time to time, to higher posts such as Section Officer, Assistant Registrar and Deputy Registrar. On February 4, 1995, the respondent No. 1 came to be promoted to the post of Additional Registrar by the then Hon'ble the Chief Justice. The petitioner made a representation dated February 8,1995 to the then Hon'ble the Chief Justice and pleaded that there was gross mistake and negligence on the part of the administration in promoting the respondent No. 1 to the post of Additional Registrar, as according to the appellant, the respondent No. 1 was not qualified for being promoted to the post of Additional Registrar. The representation dated February 8, 1995 made by the appellant was forwarded by the then Hon'ble the Chief Justice to Shri J.K. Patel, Registrar, High Court of Gujarat, Ahmedabad, for necessary action. According to the appellant, no action was taken by the respondent No. 3 in the matter. Under the circumstances, the appellant instituted Special Civil Application No. 2021 of 1997 before This Court under Article 226 of the Constitution and prayed the Court to issue a writ of mandamus or appropriate order or direction to quash and set aside the promotion of the respondent No. 1 to the post of Additional Registrar. The appellant also prayed to direct the then Hon'ble the Acting Chief Justice to hold fresh interviews for the post of Additional Registrar after considering the claim of the appellant. It was further prayed that, an appropriate departmental inquiry against the respondent No. 3 should be directed to be initiated for false and improper submissions made by him before the Hon'ble the Chief Justice which culminated into promotion of the respondent No. 1 to the post of Additional Registrar. During the pendency of the petition, the appellant had moved an amendment application and prayed to issue a writ of quo warranto for quashing and setting aside the promotion of the respondent No. 1 to the post of Additional Registrar. Though the amendment was granted by the Court, it was not carried out in the petition.
4. On service of notice, Shri J.K. Patel, Registrar, High Court of Gujarat, Ahmedabad, filed affidavit-in-reply and controverted the statements made in the petition. It was averred in the reply affidavit that the petition was barred by the principles of delay and laches and, therefore, deserved dismissal. It was mentioned in the reply affidavit that, the appellant was not affected by the promotion of the respondent No. 1 to the post of Additional Registrar and as the respondent No. 1 was promoted to the post of Additional Registrar in terms of the Gujarat High Court (Recruitment and Conditions of Service of Staff) Rules, 1992 ("the Rules" for short), the claim advanced by the appellant had no substance. It was pleaded that Rule 91 of the Rules saves the powers of the Hon'ble the Chief Justice conferred by Article 229 of the Constitution of India and, therefore, no case was made out by the appellant for granting any of the reliefs claimed in the petition. What was stressed in the affidavit-in-reply was that, Hon'ble Mr. Justice Section Nainar Sundaram, the then Chief Justice had constituted a sub-Committee of Hon'ble Mr. Justice G.T. Nanavati (as he then was) and Hon'ble Mr. Justice A.P. Ravani (as he then was) in the year 1993, to consider the question regarding appointment to the upgraded post of Additional Registrar and the Committee had expressed a view that a person, who had sufficient experience of the working of the High Court, should be appointed on the upgraded post of Additional Registrar. It was stated in the reply affidavit that the Committee, on examination and scrutiny of the particulars and service record of the then Deputy Registrars, namely, Messrs. R.P. Vyas, G.M. Malvat (the respondent No. 1), D.B. Patel, K.A. Master and D.B. Dholakia, had found that, none of the said Deputy Registrar had the minimum five years' experience, but in the public interest, the post in question should be filled up by promotion and by no other mode. It was claimed in the reply that after thoroughly considering the service record of all the Deputy Registrars including the confidential reports, integrity, capacity and efficiency, the Committee had opined that, the performance of the respondent No. 1 was outstanding and, therefore, he should be promoted and appointed on the upgraded post of Additional Registrar by promotion. It was highlighted in the reply affidavit that, on receipt of the report of the sub-Committee, the office had put up a note before the then Hon'ble the Chief Justice, that the post of Additional Registrar in the High Court has lying vacant since March 17, 1994 and, therefore, the then Hon'ble the Chief Justice, after discussing the matter with the two seniormost Hon'ble Judges of the High Court, namely, Hon'ble Mr. Justice A.P. Ravani (as he then was) and Hon'ble Mr. Justice M.B. Shah (as he then was), had decided to relax qualifications in case of the respondent No. 1 by observing as under:
Discussed with Brother Judges A.P. Ravani and M.B. Shah.
XXX XXX XXX Mr. G.M. Malvat is the seniormost Deputy Registrar, but he is not qualified as per Rules. However, as he is found to be a man of proved merit, efficiency and competence, it would be in the interest of administration to relax qualifications in his case, as a special case, exercising powers under Rule 48 of the High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992, and promote him as Additional Registrar.
After retirement of Mr. S.C. Shah, rigorous search has been made for suitable candidate to be brought either by transfer or by nomination but has not been found. The Additional Registrar being in-charge of Judicial Department but since last some time being vacant, working of the departments is adversely affected sans regular incumbent. Consequently, there is no way out than to promote Mr. Malvat even though does not have experience of 5 years on the post from which he is to be promoted. In the result, Mr. G.M. Malvat is to be promoted as Additional Registrar accordingly.
Thus, in the reply affidavit, it was emphasised that the exercise had been undertaken for appointment of Additional Registrar by two successive the then Hon'ble the Chief Justices with the help of seniormost Hon'ble Judges of the High Court and, as the respondent No. 1 was appointed on the post concerned after relaxation of qualifications in public interest, the petition had no merits. The Registrar of the High Court had denied the allegations of mala fide made in the petition and ultimately demanded the dismissal of the petition.
5. The appellant had filed an affidavit-in-rejoinder reiterating what was stated by him in the petition and prayed the Court to grant the reliefs claimed in the petition.
6. After hearing the appellant who had appeared in person before the learned single Judge as well as the Counsel appearing for the respondents, the learned single Judge rejected the petition by judgment dated October 24, 1997, giving rise to the present appeal.
7. Mr. H.D. Vasavada, learned Counsel appearing for the appellant submitted that, Rule 6(1) of the Rules provides that the appointment to the post of Registrar General or Registrar or Joint Registrar or Additional Registrar can be made either by promotion from the establishment of the High Court or by transfer of a Judicial Officer not below the rank of a District Judge or by nomination or by re-employment of a pensioner and as the respondent No. 1 is not eligible for appointment by promotion or nomination to the post of Additional Registrar, the judgment rendered by the learned single Judge should be set aside. It was stressed that Rule 47 of the Rules lays down that, no person can be promoted from the lower post to higher post unless he has experience of five years in the post from which he is to be promoted and as the respondent No. 1 had no experience of five years in the post from which he was promoted, the appeal should be accepted. What was claimed by the learned Counsel for the appellant was that, the Hon'ble the Chief Justice has no power to relax qualifications in case of the respondent No. 1 and as the learned single Judge has committed an error in interpreting Article 229 of the Constitution as well Rule 48 of the Rules, the prayers claimed by the appellant in the original petition should be granted by the Court. In support of his submissions, the learned Counsel for the appellant placed reliance on the decisions rendered in the cases of: (i) High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr. , (ii) H.C. Puttaswamy and Ors. v. The Hon'ble Chief Justice of Kamataka High Court, Bangalore and Ors. , (iii) State of U.P. and Anr. v. C.L. Agrawal and Anr. , (iv) P. Sadgopan and Ors. v. Food Corporation of India and Anr. , (v) S. Balasubramaniam v. State of Tamil Nadu and Ors. , (vi) G.K. Bhatt v. State of Gujarat and Ors. 1995(1) G.L.H. 1037, and (vii) Som Raj and Ors. v. State of Haryana and Ors. .
8. Mr. S.N. Shelat, learned Additional Advocate-General submitted that, the Chief Justice has absolute power to make appointments of officers and servants of High Court and as the authority was exercised by the then Hon'ble the Chief Justice under Rules 48, 91 and 92 of the Rules which save the powers of the Hon'ble the Chief Justice conferred by Article 229 of the Constitution, the appeal should be dismissed. It was pleaded that, successive sub-Committees constituted by the then Hon'ble the Chief Justices had gone into the question of appointment to the post of Additional Registrar by promotion and as the respondent No. 1 was found suitable, recommendation was made to promote him to the post of Additional Registrar which recommendation was accepted by the then Hon'ble the Chief Justice after looking to the record and, therefore, in absence of cogent reasons, the Court should not interfere with the exercise of power by the then Hon'ble the Chief Justice, in the present appeal. It was also asserted that, the appellant himself was not entitled to be appointed to the post of Additional Registrar by promotion and, therefore, the claim advanced by the appellant should not be entertained by the Court. In support of his submissions, the learned Additional Advocate General also placed reliance on the decision rendered in the case of (i) High Court of Judicature for Rajasthan (supra) as well as decisions in cases of (ii) Agricultural and Processed Food Products v. Oswal Agro Ferane and Ors. , (iii) P.K. Agrawal v. Hon'ble Chief Justice, High Court of Judicature at Allahabad and Ors. 1988 Lab. I.C. 1590 (1988-2 Vol. 21), (iv) University of Mysore and Anr. v. C.D. Govindarao and Anr. , and (v) R.K. Jain v. Union of India and Ors. .
9. In view of the rival submissions advanced at the Bar, the question which falls for the consideration of the Court is, whether the appointment of the respondent No. 1 to the post of Additional Registrar by promotion is, in any manner, illegal, so as to warrant interference of the Court. In order to decide the question posed for consideration of the Court, it would be instructive to refer to the provisions of Article 229 of the Constitution.
10. Article 229 forms part of Chapter-V of the Constitution. Chapter-V deals with the High Court in the States. Under the Constitutional scheme, there has to be a High Court for the State. In terms of the provisions of Article 216, every High Court shall consist of Chief Justice and such other Judges as may be appointed by the President from time to time. Article 223 provides that, when the office of the Chief Justice of a High Court is vacant or any Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, such duty shall be performed by such one or the other Judges of the Court as the President may appoint. Article 229 makes provision regarding the manner in which the appointment of officers and servants of the High Court can be made. The said Article provides as under:
229. Officers and servants and the expenses of High Courts: (1) Appointments 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:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers 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.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
11. This Article makes Chief Justice of the High Court the supreme authority in the matter of appointments of the High Court officers and servants. This Article also confers rule-making power on the Chief Justice for regulating the conditions of service of officers and servants of the High Court subject to the condition that if the rules relate to salaries, allowances, leave or pensions, they have to have the approval of the Governor of the State. It is further evident that if the Legislature of the State has made any law, the rules made by the Chief Justice would operate subject to the conditions stipulated in that law. Moreover, the Chief Justice has authority to direct any other person specified in Article 229 to make appointments to any posts or classes of posts in the High Court. Thus, the rule-making power of the Chief Justice is subject to only following three restrictions:
(i) If the rules relate to salaries, allowances, leave or pensions, they have to be approved by the Governor of the State.
(ii) If the Legislature of the State has made any law, the rules made by the Chief Justice will operate subject to that law.
(iii) If the Governor of the State has, by rule, provided that no person not already attached to the Court, shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission, the Chief Justice while making appointment on such post shall first consult the State Public Service Commission.
12. In exercise of the powers conferred by Article 229 of the Constitution, the then Hon'ble the Chief Justice of High Court of Gujarat, has framed the Rules in the year 1992. It is an admitted position that the Governor of the State has not, by rule, provided that no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. It is also obvious that the State Legislature has not made any law referred to in Article 229 of the Constitution. Under the circumstances, the rules made by the Chief Justice would operate independently and he is not under any obligation to consult the State Public Service Commission. As noted earlier under Article 229, the power of appointment can also be exercised by such other Judge or officer of the Court as may be directed by the Chief Justice. So also, the rulemaking power can be exercised by some other Judge or officer of the Court provided he is authorised in that behalf by the Chief Justice. A Five-Judge Constitution Bench of the Apex Court has examined the scheme contemplated by Article 229 in M. Gurumoorthy v. A.G. Assam and Nagaland and ruled that the unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. What is emphasised by the Supreme Court is that this is essentially to secure and maintain the independence of the High Courts. It is held therein that Clause (1) read with Clause (2) of Article 229 confers exclusive power, not only in the matter of appointments but also with regard to prescribing the conditions of service of officers and servants of a High Court, by Rules, on the Chief Justice of the Court and though this is subject to any legislation by the State Legislature in respect of conditions of service, in the matter of appointments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). It is further held that the approval of the Governor is confined only to such Rules as relate to salaries, allowances, leave and pension but all other Rules in respect of conditions of service do not require his approval. Again another Constitution Bench of the Supreme Court in the Chief Justice, A.P. v. L.V.A. Dikshitulu , while interpreting Article 229 has pron that, in regard to the servants and officers of the High Court, Article 229 makes the power of appointments, dismissal, removal, suspension, reduction in rank, compulsory retirement etc. including power to prescribe their conditions of service, the sole preserve of the Chief Justice and no extraneous executive authority can interfere with the exercise of that power by the Chief Justice or his nominee, except to a very limited extent indicated in the provisos. Having noticed the scheme envisaged by Article 229, we may proceed to examine the ambit and scope of the Rules framed by the Hon'ble the Chief Justice.
13. In exercise of powers conferred by Article 229, the Hon'ble the Chief Justice has prescribed Rules known as the High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992 and the scheme envisaged by those Rules is as follows. Rule 4 of the Rules specifies the staff of the High Court and provides that the staff of the High Court shall consist of the classes mentioned therein, whereas Rule 5 of the Rules indicates the appointing authority. In view of the provisions of Rule 5(1) of the Rules, there is no manner of doubt that the Chief Justice has absolute discretion in appointments to the posts in the office of the High Court. The Hon'ble Chief Justice has exercised powers under Article 229 of the Constitution and authorised the Registrar to make the appointments in Class-Ill and Class-IV servants in the High Court, of course, subject to the previous approval of the Chief Justice. Then comes Rule 6 which deals with appointment of Gazetted posts and provides that, an appointment to the post of Registrar General or Registrar or Joint Registrar or Additional Registrar, can be made either (a) by promotion from the establishment of the High Court, or (b) by transfer of a Judicial Officer not below the rank of a District Judge, or (c) by nomination, or (d) by re-employment of a pensioner. Sub-rule (2) of Rule 6 lays down the eligibility criteria and provides that, to be eligible for appointment by promotion or nomination to the post of Registrar General or Registrar or Joint Registrar or Additional Registrar, a candidate must be eligible for being appointed as a District Judge as prescribed in Article 233 of the Constitution. Rule 6(2)(a) which is substituted vide High Court Notification No. C. 1322 of 1992 dated November 5, 1993 stipulates that, promotion from the establishment of High Court from the post of Assistant Registrar should be, preferably, given to an employee who is having a degree in Law.
14. Having noticed the scope and ambit of Article 229(1) and the Rules, it would be relevant to refer to the judicial pronouncements on the point. The Supreme Court, in the case of High Court of Judicature for Rajasthan (supra) has interpreted the provisions of Article 229 of the Constitution, in the context of the provisions of Rajasthan High Court (Conditions of Service of Staff) Rules, 1953. In the said case, the respondent No. 2 was promoted as Deputy Registrar on February 1, 1992. The respondent No. 1 challenged the promotion of the respondent No. 2 on several grounds. One of the grounds of challenge was that, the respondent No. 2 could have been promoted to the said post in accordance with the rules prevalent on 1-2-1992 and not in accordance with the rules as amended on February 28, 1992. The Hon'ble Judges, before whom the matter was listed for hearing, observed that they would have quashed the appointment of the respondent No. 2 on the post of Deputy Registrar, but since he was to retire on September 30, 1993, they did not do so, but directed that the vacancy occurring on 1-10-1993 should be treated as a vacancy occurring on February 1, 1992 and that vacancy should be filled up in accordance with the rules set out in the administrative order dated May 11, 1990, by considering the eligible officers belonging to the cadre of Private Secretaries only. During the course of the judgment, the learned Judges noticed that officers belonging to the establishment of the High Court were not promoted to any posts above the posts of Dy. Registrars and those posts were being filled in by bringing the officers of the Rajasthan Judicial Service and/or of Rajasthan Higher Judicial Service on deputation and therefore, directed the Registrar to prepare a report whether posts on which officers of Rajasthan Judicial Service were being appointed could be manned by the High Court staff and whether the appointment of those officers on deputation caused dislocation of judicial work in the District Courts as the litigating public was deprived of their services. The directions given by the Hon'ble Judges were challenged before the Supreme Court. The Supreme Court while interpreting Article 229 of the Constitution, has held that the Chief Justice of the High Court is the supreme authority in the matter of appointments of the High Court officers and servants and the powers available to the Chief Justice of the High Court under Article 229 is akin to the powers of the Chief Justice of India under Article 146 of the Constitution and just as the Chief Justice of India is the supreme authority in the matter of Supreme Court establishment including its office staff and officers, so also the Chief Justice of the High Court is the sole authority in these matters and no other Judge or officer can legally usurp those administrative functions or power. The powers of the Chief Justice to make appointment in the establishment of the High Court have been enumerated as under:
30. Apart from the fact that the impugned directions to the Registrar are contrary to Article 229, they also have the effect of negativing the impact of the Rajasthan High Court (Conditions of Service of Staff) Rules, 1953 made by the Chief Justice in exercise of power conferred by Article 229. Rule 2 specifies the strength of staff. It provides that the staff shall consist of the posts specified in the second column of Schedule I attached to the rules. It also provides that the Chief Justice may, from time to time, leave unfilled or hold in abeyance any vacant post. The rules also provide that the Chief Justice may increase or reduce the strength of staff. Method of recruitment has been specified in Rule 2A as under:
2A. Method of recruitment: (1) Recruitment to a post or category of posts specified in the second column of Schedule I shall be made by one or more of the following methods, namely,
(a) by direct recruitment, or
(b) by promotion of a person already employed in the High Court, or
(c) by transfer from subordinate Courts or offices of the State Government.
Provided that the Chief Justice or subject to any general or special order of the Chief Justice, the Registrar may order transfer of any member of the ministerial or Class IV staff serving on the establishment of the High Court to any Court subordinate to the High Court and vice versa on such terms and conditions as may be deemed proper.
(2) The Chief Justice may, from time to time, by general or special order:
(a) specify the method by which recruitment to a post or category of posts shall be made.
(b) determine the proportion of vacancies to be filled by each method in case of recruitment by more than one method, and
(c) specify the manner in which such recruitment shall be made in the case of direct recruitment.
(3) Recruitment to the post of Court Officer shall be made (by selection from the staff of) by direct recruitment in accordance with such method as may be prescribed by the Chief Justice.
31. This rule contemplates that the Chief Justice may fill certain posts by appointing officers on transfer from subordinate Courts. Schedule I indicates that against the post of Registrar, Registrar (Vigilance), Additional Registrar, Additional Registrar (Vigilance), Additional Registrar (Writs), Officer on Special Duty (Rules), Principal Private Secretary to Hon'ble Chief Justice and Deputy Registrar (Judicial), the words "R.H.J.S. Cadre" have been mentioned which means that officers belonging to Rajasthan Higher Judicial Service alone can be appointed on these posts. The rules made under Article 229 of the Constitution have, thus, specified the posts on which officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial Service are to be appointed. The method of recruitment has also been indicated. All appointments on these posts are to be made by the Chief Justice. These rules can be altered, amended or rescinded only by the Chief Justice who alone has the rule-making power.
32. If the impugned directions are analysed in this background, it will be seen that the real purport of the directions is to override not only the Constitutional provisions contained in Article 229 but also the rules made in exercise of powers available to the Chief Justice under that Article. Even if the Registrar, in compliance of the impugned directions, is to report that the posts on which officers of the Rajasthan Higher Judicial Service or Rajasthan Judicial Service are appointed on deputation, can well be managed by the High Court staff itself or that when the officers are brought from the District Courts to the High Court for appointment on the aforesaid posts, some of the sub-ordinate Courts become vacant as the Presiding Officers having been sent on deputation to High Court are not available to hear and dispose of cases pending in those Courts and even if such report is placed before the Full Court, can the Full Court give a direction to the Chief Justice not to fill up those posts by bringing officers on deputation but to fill up those posts by promotion from amongst the High Court staff? The answer is an emphatic "No, it cannot be done". A Judge of the High Court individually or all the Judges sitting collectively, as in the Full Court, cannot either alter the Constitutional provisions or the rules made by the Chief Justice. They have no jurisdiction even to suggest any Constitutional amendment or amendment in the rules made by the Chief Justice nor can they create any avenue of promotion for the High Court staff so as to be appointed on posts meant for Officers from Rajasthan Higher Judicial Service or Rajasthan Judicial Service. The Chief Justice has been vested with wide powers to run the High Court administration independently so as not to brook any interference from any quarter, not even from his Brother Judges who, however, can scrutinise his administrative action or order on the judicial side like the action of any other authority. It should not be lost sight that Registrars, under Rules of various High Courts, have also to perform some limited judicial functions which cannot be done by an officer other than a Judicial Officer in the High Court establishment.
33. There is yet another aspect. If under the High Court Rules, it has been provided that certain posts shall be manned by the officers of the Rajasthan Judicial or Higher Judicial Service who would be appointed on those posts on deputation, the other Judges of the High Court cannot, nor can the employees of the Court raise, possibly or legitimately, any grievance. Since power of appointment which vests absolutely in the Chief Justice cannot be exercised by any other Judge of the High Court, the latter, namely, other Judge or Judges, cannot exercise that power even indirectly as has been attempted to be done in the instant case. By directing the Registrar of the Court to submit a report whether the posts on which officers from the Rajasthan Judicial Service are appointed on deputation can be manned by the High Court staff and further directing such report to be placed before the Full Court for the consideration of other Judges on the administrative side, the Hon'ble Judges have attempted to indirectly exercise the power of appointment on certain posts in the High Court establishment on which appointment can be made only by the Chief Justice. The learned Judges who disposed of the matter were themselves of the opinion that this question was not required to be decided for the effective decision of the Writ Petition pending before them. As such, they should have stopped there and should not have proceeded to give the impugned direction to the Registrar of the High Court particularly as it is difficult to believe that the Cadre strength of Rajasthan Judicial Service or Higher Judicial Service is so weak or depleted that no substitute can be provided for eight officers (maximum under Rules) placed on deputation in the High Court.
15. From the above quoted observations made by the Supreme Court, it is evident that, in absence of any law enacted by the State Legislature or any rule made by the Governor, the rules made by the Chief Justice would operate independently and the same will have to be given effect. The Supreme Court found that the directions given to the Registrar were contrary to Article 229 of the Constitution and, therefore, set aside those directions.
16. The submission that the Hon'ble Chief Justice has no power to relax the eligibility criteria laid down in Rule 6(2) of the Rules and, therefore, the appointment of the respondent No. 1 to the post of Additional Registrar should be set aside has no substance and cannot be accepted. Similarly, the contention that the respondent No. 1 has not acquired the experience of five years in the post from which he is promoted in terms of Rule 47(5) and, therefore, the appointment is liable to be quashed, can also not be accepted. Rule 47 of the Rules reads as under:
47. (1) The post of Section Officer and all higher posts shall be considered as selection posts and the selection shall be strictly on merits and record of performance and no Court servant shall have a claim to these posts merely on the strength of seniority.
(2)(a) For promotion to the post of Section Officer from Assistant the promotion will be effected strictly on consideration of efficiency and proved merits. Merits shall be determined on the basis of the past performance and performance at the test written and oral to be taken by the Selection Committee as may be appointed by the Chief Justice.
(b) For promotion to the post of Assistant from Clerk, the promotion will be effected on consideration of efficiency and proved merits. Merits shall be determined on the basis of the past performance and performance at the oral test to be taken by the Selection Committee as may be appointed by the Chief Justice.
(3) For promotion to the post of Assistant Registrar from Section Officer, to the post of Deputy Registrar from Assistant Registrar and to the post of Additional Registrar from Deputy Registrar, promotion will be strictly on consideration of efficiency and proved merits.
(4) No one shall be promoted to the post of Assistant Section Officer and Assistant Registrar unless he has passed the Departmental Examinations as prescribed.
(5) No person shall be promoted from the lower post to higher post unless he has experience of five years in the post from which he is to be promoted:
Provided that where a person having experience as specified herein is not available for promotion and it is in public interest to fill up the post by promotion of a person having experience for a lesser period for the reasons to be recorded in writing the competent authority may promote such persons.
(6)(i) Promotion to the cadre of Assistants will be effected from the cadre of Clerks and Telephone Operators.
(ii) Promotion to the cadre of Section Officers will be effected from the Assistants and Translators.
(iii) Promotion to the post of Assistant Registrar will be effected from Section Officers and Senior Translator.
It is true that the substantive provisions of Sub-rule (5) provides that, no person can be promoted from the lower post to the higher post unless he has experience of five years in the post from which he has been promoted. However, the proviso carves out an exception and provides that, where a person having the experience as specified therein is not available for promotion, and it is in the public interest to fill up the post by promotion of a person having experience for a lesser period, the competent authority may promote such persons after recording reasons. It is an admitted position that a sub-Committee constituted by the then Hon'ble the Chief Justice had scrutinised the cases of officers, namely, Messrs. G.M. Malvat (the respondent No. 1), D.B. Patel, K.A. Master and D.B. Dholakia and found that none of the Dy. Registrars had the minimum five years' experience but in the interest of efficient working of the establishment of the High Court, the Committee had opined that the respondent No. 1, though was not qualified as per the rules, was the seniormost Deputy Registrar and as he was a man of proved merit, efficiency and competence, the qualification requirement should be relaxed in his case and he should be promoted to the post of Additional Registrar. The other administrative reasons as to why the requirement of educational qualifications should be relaxed in the case of the respondent No. 1 were also indicated by the members of the Committee which consisted of two seniormost Hon'ble Judges of This Court. The matter was thereafter examined by the then Hon'ble the Chief Justice at length and the educational qualifications as well as requirement of having five years' experience were relaxed by the Chief Justice in exercise of powers conferred by Rule 48 read with Rule 91 and Rule 92 of the Rules. Rule 48 of the Rules reads as under:
Nothing in the preceding Rule shall be deemed to curtail the power of the Chief Justice to promote in exceptional cases, any Court servant to any post as he may deem fit.
Whereas Rule 91 provides that, nothing in these Rules shall be construed to limit or abridge the powers of the Chief Justice to deal with the case of any Court servant or any person to be appointed to the service in such manner as may appear to him to be fit and proper. Rule 92 stipulates that, all questions relating to the interpretation of these Rules, shall be referred to the Chief Justice whose decision thereon shall be final. A conjoint reading of the Rules 48, 91 and 92 makes it abundantly clear that these provisions save the powers of the Hon'ble the Chief Justice in the matter of appointment which are conferred on him by Article 229 of the Constitution of India. The relaxation of educational qualifications and interpretation put by the Hon'ble the Chief Justice cannot be interfered with by the Court as the same is in terms of the Rules and any interference would amount to overriding Constitutional provisions contained in Article 229 and the Rules. Rule 91 of the High Court Rules expressly confers absolute discretion on the Hon'ble the Chief Justice in the matter of appointment to the High Court services. The express provision need not be curtailed by general principles on which the provision is not based. It is for very good reasons that the High Court Rules have conferred such a discretion on the Hon'ble the Chief Justice. When power of the Chief Justice to appoint any person to the service in such manner as may appear to him to be fit and proper, is saved a Court is not at liberty to disregard the letter of a statute and is bound to give effect to its clear language. It is settled law that where the language of an Act is clear and explicit, Court must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the law-making authority. As the Rules confer absolute discretion on the Hon'ble the Chief Justice, no exception can be taken in appointing respondent No. 1 as Additional Registrar of High Court by promotion.
17. The submission that Rule 48 which is a saving clause applies only to the preceding Rule 47, and not to other Rules, cannot be accepted. Rule 47 is not only a self-sufficient and self-contained Rule but is for the purpose of saving the powers of the Hon'ble the Chief Justice to make appointments of an incumbent to a promotional post irrespective of his experience in the feeder cadre. The proviso has been enacted to Sub-rule (5) of Rule 47, so that in appropriate cases, the requirement of experience can be condoned or waived by the Chief Justice. As the power is vested in the Hon'ble the Chief Justice to condone or waive the requirement regarding the experience of an incumbent to be promoted to a higher post, it was not necessary to enact a separate Rule like Rule 48 for that very purpose. The distinct and separate Rule 48 for all intents and purposes, therefore, is made to save the powers of the Hon'ble the Chief Justice vested under Article 229 of the Constitution from the mischief of all the preceding Rules. Rule 48, therefore, saves the powers of the Hon'ble the Chief Justice to make appointment to a post of Additional Registrar, etc., irrespective of the qualifications provided under Rules 6(1) and 6(2) for the said post in exceptional cases even if the candidates does not fulfil the requirement of qualifications provided under those Rules.
18. At this stage, it would be relevant to notice the judgment of the Allahabad High Court rendered in the case of P.K. Agrawal (supra). In the said case, the petitioner had prayed for a writ of quo warranto asking the respondent No. 3 to demonstrate his authority to hold the office of the Assistant Librarian and for a writ of certiorari quashing the notice dated August 20, 1993, inviting applications from the officials of the establishment of the High Court of Judicature, Allahabad, for being considered for the appointment on the post of Assistant Librarian at Lucknow Bench. The post of Assistant Librarian at Lucknow Bench had fallen vacant. Consequently, by a notice dated August 20, 1993, applications were invited from the officials working in the establishment of High Court of Judicature at Allahabad, including the Lucknow Bench, but later on, the post was transferred from Lucknow Bench to the Allahabad High Court. The petitioner had passed his Intermediate Examination only and was not holding a Degree in Law and Library Science. Consequently, his application for the appointment was rejected. The Hon'ble the Chief Justice, on the recommendation of the Chairman of the Library Committee had modified the requisite minimum qualification of a Degree or Diploma to Certificate in Library Science and the respondent No. 3 having been found suitable amongst the applicants, was appointed to the post of Assistant Librarian, by the impugned order dated April 29, 1987. It was argued before the Division Bench of Allahabad High Court that, the respondent No. 3 did not possess the requisite qualifications inasmuch as even though he was holding a Degree in Law, but he was not holding Degree or Diploma in Library Science and the Chief Justice had no authority in exercise of the powers provided under Rule 45 of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976, to relax the qualification of the Degree or Diploma in Library Science to a Certificate in Library Science. It was also urged that the exercise of powers by the Hon'ble the Chief Justice in absence of any specific provision amounted to legislation and, therefore, the appointment of the respondent No. 3 deserved to be quashed. The Division Bench noted the provisions of Rules 45, 41 and 42 of the Rules which are as under:
45. Notwithstanding anything contained in these Rules, the Chief Justice shall have the power to make such orders, as he may consider fit, in respect of recruitment, promotion, confirmation or any other matter.
41. Residuary Powers: Nothing in these rules shall be deemed to affect the power of the Chief Justice to make such orders, from time to time, as he may deem fit in regard to all matters incidental or ancillary to these rules not specifically provided for herein or in regard to matters as have not been sufficiently provided for:
Further in respect of interpretation also, the Chief Justice has been given special powers in the following words:
42. Interpretation: All questions relating to the interpretation of these rules shall be referred to the Chief Justice, whose decision thereon shall be final.
After noting the scheme envisaged by the above referred to Rules, the Division Bench has held that, Rule 45 of the Rules provides that the other Rules would not be impediment to the powers of the Hon'ble the Chief Justice to pass a particular order in case he is faced with an unprecedented situation in the matters of recruitment, promotion or qualification of the employees etc., or in regard to matters which have not been sufficiently provided for. Ultimately, the petition of the petitioner was dismissed by the Court. We are in complete agreement with conclusions arrived at by Allahabad High Court in this case. In our view, the provisions of Rule 45 are similar to those of Rule 91 of the "High Court of Gujarat (Recruitment and Conditions of Service of Staff) Rules, 1992 and, therefore, the interpretation placed by the Division Bench of Allahabad High Court would be applicable with all force to Rule 91 also. In our view, Article 229(1) of the Constitution gives absolute and unfettered powers to the Chief Justice to make appointments of officers and servants of the High Court. If the interpretation canvassed by the learned Counsel for the appellant of Rule 48 is accepted, it would defeat the very provisions of Article 229(1) of the Constitution and would make the provisions of Rule 91(1) of the Rules redundant.
19. Reverting to the decisions cited at the Bar by the learned Counsel for the appellant we find that, in the case of H.C. Putlaswamy (supra), the Apex Court while dismissing the Special Leave Petition, issued certain directions asking the High Court to intimate the State Public Service Commission, the total vacancies in the cadre of Second Division Clerks on the establishment of subordinate Courts. The Public Service Commission was further directed immediately to start the process of selection of the candidates for appointment to such vacancies. It was also observed by the Supreme Court that, the candidates whose appointments had been set aside by the High Court, were entitled to relaxation of age as provided under Rule 6(3)(b) of the General Recruitment Rules. The above referred to directions were sought to be reviewed by the petitioner. While dealing with the review application, the Supreme Court has observed as under:
There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants are in service for the past 10 years. They are either graduates or double graduates or post-graduates as against the minimum qualification of S.S.L.C. required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now overaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are left at the mid-stream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commission for fresh selection see Lila Dhar v. State of Rajasthan .
20. In our view, the principle laid down by the Supreme Court in the above referred to decision is not applicable to the facts of the present case because, therein the appointments could have been made only by the Public Service Commission on recommendation of the High Court. As observed earlier, the Governor has not made any rule requiring the State Public Service Commission to be consulted. Under the circumstances, the rules made by the Hon'ble the Chief Justice of the High Court of Gujarat would operate independently and the Chief Justice is under no obligation to consult the State Public Service Commission. Therefore, the observations made by the Supreme Court in paragraph 11 of the reported judgment cannot be made applicable to the facts of the present case. The Supreme Court, in the case of State of U.P. and Anr. (supra) considered the scope of the power of the Chief Justice to grant premature increments under Rule 27 of the Financial Handbook to the Officers and Staff of the High Court. The State Government was of the view that the Chief Justice had no authority to grant advance increments without prior approval of the Governor. As observed by the Supreme Court, the appellants had employed a sidewind, by refusing to take the premature increments into account for the purposes of calculating the pensionary benefits and had thus compelled the respondent No. 1 to file writ petition challenging the orders in that behalf. The matter was examined by the Supreme Court with reference to Article 229(2)(i) of the Constitution and the proviso therein which lays down that the conditions of service of the, officers and servants of the High Court shall be regulated by the rules made by the Chief Justice and the rules if they relate to salary and allowance etc., shall require the Governor's approval. The matter was also examined with reference to Rule 3(2), two provisos to Rule 40(2) and the proviso to Rule 41 of the Allahabad High Court (Conditions of Service of Staff) Rules, 1976, which provides for creation of temporary posts with the approval of the Governor. Reading together the two provisos of Rule 40(2) of the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, the Supreme Court has held that, the rules and orders referred to therein are the rules and orders of a general nature and not the orders made in the individual cases and, therefore, it is enough that the Chief Justice exercises the powers conferred upon the Governor under such rules and orders of the Government, but no further approval by the Governor is required. On analysis of the rules, the Supreme Court found that the orders of the Chief Justice granting premature increments did not require the approval of the Governor under the aforesaid provisions. In our view, this is not a case where the then Hon'ble the Chief Justice granted premature increments to any officers or servants of the High Court and, therefore, the principles laid down in the said case will not apply to the facts of the case. Even otherwise also, the principle laid down in the said case cannot be made applicable to the facts of the present case as Article 229(2) has been interpreted by the Supreme Court and not Article 229(1) with which we are concerned in this case. In the case of S. Balasubramamam (supra), it has been held by the Full Bench of the Madras High Court that, the Constitution runs supreme and the rights, powers and privileges of various employees are subject to the provisions contained in the Constitution, which is the basic and fundamental law and which provides for the governance of the State. We fail to understand as to how this judgment is applicable to the present case or supports any of the contentions urged by the learned Counsel for the appellant in support of the present appeal. In the case of P. Sadgopan and Ors. (supra), while construing the provisions of Articles 14 and 16 of the Constitution, the Apex Court has ruled that, relaxation of eligibility criteria by executive instructions in defiance of the statutory regulations while granting promotion is not permissible. In our view, the relaxation in educational qualifications and experience has been made by the Chief Justice in exercise of powers conferred on him by Rule 48 read with Rules 91 and 92 of the Rules. The relaxation is not made on the basis of any executive instructions. As found earlier, the provisions contained in Rules 48, 91 and 92 save the powers conferred on the Chief Justice by Article 229 of the Constitution. As relaxation is not made by the Hon'ble the Chief Justice on the basis of any executive instructions, in our view, the principle laid down by the Supreme Court in the said case will be of no assistance to the appellant. Again, in the case of G.K. Bhatl (supra), the petitioners who were Advocates practising before the Labour Court at Rajkot had prayed for a writ in the nature of quo warranto against Presiding Officer, Labour Court, Rajkot, on the ground that his appointment as Labour Court Judge was in contravention of Section 9(2) of the Bombay Industrial Relations Act, 1946 as he was not qualified for being appointed as Judge of the Labour Court. While considering the question of issuance of writ of quo warranto, the Division Bench has held that, qualifications prescribed by a mandatory provision for appointment to a public post cannot be ignored and appointment made in contravention of the provisions regarding qualifications cannot be upheld. What is stressed by the Division Bench is that, once a person is not qualified to be appointed to hold public office as per the statutory provision and even then he has been so appointed, such person is a usurper of the office and it amounts to fraud on public to appoint persons with inferior qualifications unless it is clearly stated that the qualifications are relaxable. The Division Bench has further observed that, if it is not stated that the qualifications are relaxable, such person is required to be ousted from such public office and for this purpose, writ of quo warranto can be issued by the Court. As observed earlier, the Chief Justice has ample jurisdiction to relax the educational qualifications in the matter of appointment of High Court staff. We have earlier held that the powers for relaxing the educational qualifications in the case of the respondent No. 1 were exercised by the then Hon'ble the Chief Justice on recommendation of a Committee comprising seniormost Hon'able Judges of the Court. Under the circumstances, as relaxation is permissible, the principle laid down in the case of G.K. Bhati (supra) cannot be made applicable to the facts of the present case. The Supreme Court, while interpreting the relevant rules of Punjab Subordinate Agricultural Service Rules, 1933, has held in the case of Sow Raj and Ors. (supra), that exercise of power by the Director in the matter of appointment should not be arbitrary and the absence of arbitrary power is the first postulate of rule of law upon which our whole Constitutional edifice is based. In our view, the appointment of the respondent No. 1 to the post of Additional Registrar by promotion cannot be termed as arbitrary at all. Before making the appointment, the then Hon'ble the Chief Justice had taken into consideration the reports submitted by the seniormost Hon'ble Judges of the High Court. Even after the report, the matter was discussed at length, as is evident from the note made by the Chief Justice and after taking into consideration relevant factors, in the interest of administration, the respondent No. 1 came to be promoted to the post of Additional Registrar. It cannot be suggested even for a moment that this is a case of legal mala fide necessitating interference of the Court, in the present appeal. Before deciding to relax the educational qualifications in the case of the respondent No. 1, all relevant reports as well as the service data of the officers concerned were taken into consideration by the then Hon'ble the Chief Justice and thereafter only, the decision to promote the respondent No. 1 to the post of Additional Registrar was taken. This exercise, on the contrary, indicates that requisite exercise was undertaken before appointing the respondent No. 1 to the post of Additional Registrar. For all these reasons, decisions cited at Bar, by learned Counsel for the appellant are not applicable to the facts of the case and do not render the judgment of the learned single Judge vulnerable in any manner.
21. Having regard to the totality of the facts and circumstances of the case, it cannot be said that the decision of the Hon'ble the Chief Justice to appoint the respondent No. 1 to the post of Additional Registrar by way of promotion is either vitiated because of legal mala fide or because of the statutory provisions contained in the Rules. We find that the appointment of the respondent No. 1 to the post of Additional Registrar is perfectly in consonance with the scheme envisaged by the statutory Rules. Under the circumstances, the scope of judicial review is very limited and the appellant is not entitled to any of the reliefs claimed in the original petition.
22. It is an admitted position that the appellant is not on the establishment of the High Court and as such, he is not entitled to be promoted to the post of Additional Registrar. This is not a case of direct recruitment to the post of Additional Registrar, but the respondent No. 1 has been promoted to the post of Additional Registrar having regard to his meritorious service record. The appellant has not claimed that he had filed the petition as a public spirited citizen. In fact, the prayers made in the petition would indicate that the petition has been filed as if the appellant is entitled to be appointed to the post of Additional Registrar. As noted earlier, the appellant is not entitled to be promoted to the post of Additional Registrar and, therefore, even on the ground of locus standi also, the petition is liable to be rejected.
23. Having gone through the impugned judgment rendered by the learned single Judge, we are of the opinion that, no error, much less, any error of law, is committed by the learned single Judge in dismissing the petition which was filed by the appellant. As observed by the learned single Judge, Shri J.K. Patel, Registrar of the High Court, had not made any submissions because the decision to promote the respondent No. 1 was taken by the the Hon'ble the Chief Justice on the basis of the recommendations made by the seniormost Hon'ble Judges of the High Court. The learned single Judge, therefore, rightly rejected the prayer made by the appellant to initiate a departmental inquiry against Shri J.K. Patel. Before rendering the impugned judgment, all the relevant factors were taken into consideration by the learned single Judge. Having regard to the scope of Clause 15 of the Letters Patent, we are of the view that the present appeal cannot be entertained and is liable to be rejected.
24. For the foregoing reasons, the appeal fails and the same is dismissed. However, there shall be no order as to costs. At this stage, the learned Counsel for the appellant states that, as the case involves a substantial question of law of general importance, a certificate be given to the appellant to appeal to the Supreme Court against the judgment rendered in this appeal. In our view, the issue decided by the Court in the present appeal does not involve any substantial question of law, much less, a substantial question of law of general importance. While disposing of the appeal what we have done is to follow the dictum of the Supreme Court in the case of High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal and Anr. . In the circumstances, the prayer to issue the Certificate is rejected.