Andhra HC (Pre-Telangana)
G. Lakshmi Reddy And Ors. vs Principal Secretary To Government, ... on 23 November, 2001
Equivalent citations: 2002(1)ALT415
Author: S.B. Sinha
Bench: S.B. Sinha, Bilal Nazki, B. Sudershan Reddy, Goda Raghuram
JUDGMENT S.B. Sinha, C.J.
1. This Writ Petition is filed by the employees working in Srisailam Project area for a declaration that they are entitled to the Special Allowances by way of Construction Allowance, Bad Climate Allowance and Special Compensatory Allowance without reference to the place of their residence or location of their offices and their work spot being notified as scheduled area or not ignoring the Order of the Andhra Pradesh Administrative Tribunal in O.A.Nos. 132 of 1992 and batch dated 21-4-1992 and for a further declaration that G.O.Ms.No. 272 Finance and Planning (FW.T.A.) Department dated 7-7-1993 and the consequential Memo No. 35571/218/A3/ TA/93 dated 3-11-1993 issued by the Government ordering recovery of such allowances as inoperative and invalid and for a direction to the respondents to pay the aforesaid allowances from June, 1985 onwards and to continue to pay them with all consequential arrears.
REASONS FOR REFERENCE:
2. When the Writ Petition came up for hearing before a Division Bench of this Court consisting of S.R. Nayak, J. and' S. Ananda Reddy, J. by the order under reference, the matter was referred for decision by a larger Bench as to whether the directives issued by the Apex Court in L. Chandra Kumar v. Union of India, to the effect that a writ petition can be filed by a civil servant only upon exhausting the remedies before the Administrative Tribunal and not directly regardless of the urgency or extraordinary situation that may exist in a given case, would impair or in any way dilute the efficacy of the power of judicial review vested in the High Court under Article 226 of the Constitution of India, which power is held to be the basic structure/feature of the Constitution.
3. G.O.Ms.No. 272, Finance and Planning (FW.TA) Department was issued on 7-7-1993. In compliance of the directions issued by the Tribunal and the High Court the Government issued orders in G.O.Ms.No. 468, I & CAD (Sr. VII (1)) Department, dated 3-12-1990 implementing the directions issued by the Tribunal and the High Court for payment of allowances subject to the orders of the Tribunal and the High Court in the matters pending before them. The Tribunal finally passed order in O.A.Nos. 132 of 1992 and batch upholding the orders of the Government and rejecting the claim of the petitioners.
4. On 26-10-1993 this Court in Sakinala Haranath v. State of Andhra Pradesh, (F.B.) held that the power of judicial review of the High Court cannot be taken away. On 14-11-1994 the Judgment of the Full Bench was stayed by the Apex Court. On 18-3-1997, the Apex Court in L. Chandra Kumar's case (1 supra) upheld the Full Bench judgment of this Court in Sakinala Haranath's case, (F.B.).
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER:
5. Mr. S. Ramachandra Rao, learned Senior Counsel appearing on behalf of the petitioners would submit that L. Chandra Kumar's case (1 supra) having not considered several decisions of the Larger Benches of the Apex Court in Hari Vishnu v. Ahmad Ishaque, and S.R. Bommai v. Union of India, etc., the same must be held to have been rendered per incuriam.
6. He would further urge that in A.R. Antulay v. R.S. Nayak, the Apex Court held that its earlier decision is per incuriam as it did not follow earlier larger Bench's view. In Sakinala Harnath's case, this Court held that the ratio laid down by the Supreme Court in S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386 and in Sambamurty v. State of Andhra Pradesh, AIR 1987 SC 663 will not bind this Court, as they did not consider the view of the earlier Larger Benches.
7. The petitioners herein question the correctness or otherwise of the aforementioned directions of the apex Court contending that the same being contrary to the decisions of the earlier Larger Benches or Co-ordinate Benches do not constitute binding precedent having been rendered per incuriam.
8. The powers of judicial review of the High Court under Article 226 of the Constitution having been held to be a basic feature of the Constitution, no law could have been declared to the effect that a litigant must take recourse to the alternative remedy at the first instance, which merely constitutes a rule of self-restraint. The law declared under Article 141 being a law within the meaning of Article 13, the same also should pass the basic structure test. In any event, the writ petition having been filed on 23-11-1993 after the decision of this Court in Sakinala Harinath (2 supra) rendered On 26-10-1993 and by reason of suspension of the said judgment by the apex Court on 14-1-1994 this Court should not ask the petitioner to avail the alternative remedy.
9. Mr. Ramachandra Rao would further contend that the Apex Court could not dictate by judicial mandate that only Division Bench should entertain service matters and to that extent the power of the High Court is curtailed. The decision of the Apex Court in Chandra Kumar (1 supra) would, therefore, amount to controlling the power of judicial review of High Court. Since the power under Article 226, which is a basic structure, cannot be taken away even by constitutional amendment, the same cannot also be taken away by way of judicial-interpretation by the decision in Chandra Kumar (1 supra).
10. Having regard to the doctrine of precedents and judicial discipline that a smaller Bench would follow the decisions of a larger Bench, Mr. Ramachandra Rao would urge, that on that ground too, Chandra Kumar's case (1 supra) which had not taken into consideration the earlier decisions of the Larger Benches of the Apex Court, cannot be said to be a binding precedent under Article 141 of the Constitution of India. Exhaustion of an alternative remedy cannot be a bar in entertaining a writ petition under Article 226 of the Constitution of India. The theory of exhausting of alternative remedy is completely within the discretion of the Writ Court and it is only a self-imposed practice but not for want of jurisdiction.
11. In support of the said contentions strong reliance has been placed on the decisions of the Apex Court in Hari Vishnu v. Ahmad Ishaque (3 surpa), S.R. Bommai v. Union of India (4 supra), U.P. Assembly case , Kihota Hollohan v. Zachilhu, and Union of India v. Raghubir Singh, .
SUBMISSIONS OF LEARNED COUNSEL FOR THE RESPONDENTS:
12. The learned Additional Advocate General, on the other hand, would submit that though Article. 226 does not contain any discernible limitations on the power of the High Court to entertain a Writ Petition without exhausting the alternative remedies, the Constitutional Courts have imposed limitations upon themselves and, therefore, the directive of the Supreme Court in Chandra Kumar (1 supra) should be treated as a self-imposed fetter on the jurisdiction of the High Court under Article 226 of the Constitution and in terms of Article 141 of the Constitution, the High Courts are bound by it. He would further submit that a civil servant is not precluded to approach the High Court if he is aggrieved by the decision of the Tribunal and the High Court in exercise of its power of judicial review vested in it can go into the validity or otherwise of the order of the authority as well as the order of the Tribunal itself. In such an event, the power of judicial review of the High Court under Article 226 is in no way impaired or taken away by the directive contained in Chandra Kumar (1 supra).
13. It is well to remember that the job of interpreting the Constitution is given to the. Supreme Court and High Courts in India. They are the guardians and protectors of the Constitution who always abhor any executive and legislative excesses or attempts to 'deface and defile the Constitution'. On one hand they have to protect the Constitution from being defiled either by political dictatorial trends and on the other hand enable the people of India to enjoy the fruits of the Constitution. In both these aspects the Courts are required to interpret the Constitution in such a way that a delicate balance is maintained between the 'State interest' to protect itself from both external and internal threats and also protect the 'citizen rights'.
JUDICIAL REVIEW: SCOPE AND EXTENT:
14. Judicial review, the Apex Court, states is a basic structure/feature of the Constitution of India. Neither any statute can take away the said right nor even an amendment in the Constitution is permissible.
15. In Vishnu Kamath v. Ahmad Ishaque and Ors. , the apex Court held:
The first question that arises for decision in this appeal is whether High Court have jurisdiction under Article 226 to issue writs against decisions of Election tribunals. That article confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction, in terms absolute and unqualified, and Election tribunals functioning within the territorial jurisdiction of the High Courts would fall within the sweep of that power. If we are to recognise or admit any limitation on this power, that must be founded on some provision in the Constitution itself. The contention of Mr. Pathak for the first respondent is that such a limitation has been imposed on that power by Article 329(b), which is as follows: 'Notwithstanding anything in this Constitution no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Now, the question is whether a writ is a proceeding in which an election can properly be said to be called in question within the meaning of Article 329 (b). On plain reading of the article, what is prohibited therein is the initiation of proceedings for setting aside an election otherwise than by an election petition presented to such authority and in such manner as provided therein. A suit for setting aside an election would be barred under this provision. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Ors. it was held by this Court that the word 'election' in Article 329 (b) was used in a comprehensive sense as including the entire process of election commencing with the issue of a notification and terminating with the declaration of election of a candidate, and that an application under Article 226 challenging the validity of any of the acts forming part of that process would be barred. These are instances of original proceedings calling in question an election, and would be within the prohibition enacted in Article 329 (b). But when once proceedings have been instituted in accordance with Article 329 (b) by presentation of an election petition, the. requirements of that article are fully satisfied. Thereafter when election petition is in due course heard by a tribunal and decided, whether its decision is open to attack, and if so, where and to what extent, must be determined by the general law applicable to decision of tribunals. There being no dispute that they are subject to the supervisory jurisdiction of the High Court under Article 226, a writ of certiorari under that article will be competent against decisions of the Election tribunals also.
16. As to the conferment of power of judicial review on the High Courts and the Supreme Court, the Apex Court in Re, Under Article 143, Constitution of India, (also known as U.P. Assembly case) observed:
If the power of the High Courts under Article 226 and the authority of this Court under Article 32 are not subject to any exceptions, then it would be futile to contend that a citizen cannot move the High Courts or this Court to invoke their jurisdiction even in, cases where his fundamental rights have been violated. The existence of judicial power in that behalf must necessarily and inevitably postulate the existence of a right in the citizen to move the Court in that behalf; otherwise the power conferred on the High Courts and this Court would be rendered virtually meaningless. Let it not be forgotten that the judicial power conferred on the High Courts and this Court is meant for the protection of the citizen's fundamental rights, and so, in the existence of the said judicial power itself is necessarily involved the right of the citizen to appeal to the said power in a proper case.
17. As regards the scope of judicial review, the apex Court in S.R. Bommai v. Union of India, has clearly indicated:
In the judicial review in the field of administrative law and the constitutional law, the Courts are not concerned with the merits of the decision, but with the manner in which the decision was taken or order was made. Judicial review is entirely different from an ordinary appeal. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority or the tribunal to which he has been subjected to. It is no part of the duty or power of the Court to substitute its opinion for that of the tribunal or authority or person constituted by law or administrative agency in deciding the matter in question. Under the thin guise of preventing the abuse of power, there is a lurking suspicion that the Court itself is guilty of usurping that power. The duty of the Court, therefore, is to confine itself to the question of legality, propriety or regularity of the procedure adopted by the tribunal or authority to find whether it committed an error of law or jurisdiction in reaching the decision or making the order. The judicial review is, therefore, a protection, but not a weapon.
18. In L. Chandra Kumar v. Union of India, however, while approving the ratio and holding that the judgments of the Tribunal would also be amenable to judicial review by the High Court, the apex Court stated:
To hold that the tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Articles 226/227 of the Constitution before a division bench of the High Court within whose territorial jurisdiction the tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Articles 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter..........It appears that no follow-up action has been taken pursuant to the suggestion. Such a measure would have improved matters considerably.
19. Except in a case where the Administrative Tribunals Act or vires of its provisions have been questioned, the High Court concerned cannot be approached directly. It directs:
The Tribunals are competent to hear matters where the vires of statutory provisions are questioned. However, in discharging this duty, they cannot act as substitutes for the High Courts and the Supreme Court which have, under our constitutional set up, been specifically entrusted with such an obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will consequently also have the power to test the vires of subordinate legislations and rules. However, this power of the Tribunals will be subject to one important exception. The Tribunals shall not entertain any question regarding the vires of their parent statutes following the settled principle that a Tribunal which is a creature of an Act cannot declare that very Act to be unconstitutional. In such cases alone, the concerned High Court may be approached directly. All other decisions of these Tribunals, rendered in cases that they are specifically empowered to adjudicate upon by virtue of their parent statutes, will also be subject to scrutiny before a Division Bench of their respective High Court. We may add that the Tribunals will, however, continue to act as the only Courts of first instance in respect of the areas of law for which they have been constituted. By this, we mean that it will not be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except, as mentioned, where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal.
The directions issued by us in respect of making the decisions of Tribunals amenable to scrutiny before a Division Bench of the respective High Courts will, however, come into effect prospectively i.e., will apply to decisions rendered hereafter. To maintain the sanctity of judicial proceeding, we have invoked the doctrine of prospective over-ruling so as not to disturb the procedure in relation to decisions already rendered.
20. Nowhere in the world the doctrine of basic structure was used as a scale to balance State's interests and citizen's rights. Supremacy of the Constitution, Republican and democratic form of Government, secular character of Constitution, separation of powers, judicial review, federal character of the Constitution, sovereignty, integrity and unity of the country are some of the basic structures of the Constitution. The doctrine of basic structure expounded by the Supreme Court of India in Kesavananda Bharati was adopted by Supreme Court of Bangladesh in Anwar Hussain Choudary v. Bangladesh, 41 DLR 1989 and Lahore High Court and Baluchistan High Court in Pakistan, PLD 1980 Lahore 206 & NLR 1980 CIR Quota 873. Kesavananda Bharathi case is a watershed in the Indian constitutionlism and constitutional history. It is only due to creative and innovative interpretation that basic structure theory is part of Indian constitutional law and after the discovery of the same the entire governance underwent changes. The power politics have given rise to developmental politics; economic exploitation has given rise to social and economic egalitarianism. The glaring differences in haves and have-nots have been narrowed down and human rights have come to occupy a pride of place in our polity.
21. The Supreme Court enjoys a unique position in the constitutional physique.
22. Articles 141, 142 and 144 of the Constitution read thus:
141. Law declared by Supreme Court to be binding on all Courts: The law declared by the Supreme Court shall be binding on all Courts within the territory of India.
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc:
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by Order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
144. Civil and Judicial authorities to act in aid of the Supreme Court: All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
23. In L. Chandra Kumar (1 supra), the Apex Court was dealing with the constitutionality of Articles 323-A (2) (d) and 323-B (d) and Section 28 of the Administrative Tribunals Act, 1985 and taking the view that the Tribunals constituted under the said provisions not a proper and adequate substitute for the High Courts, held thus:
In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3 (d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion-of jurisdiction" clauses in all other legislations enacted under the aegis of Article 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created by Articles 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigation to directly approach the High Courts even in cases where they question the vires of statutory legislation (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5 (6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.
24. The short question, which thus arises for consideration is as to whether while pronouncing a judgment, the Supreme Court itself can lay down a law which would be contrary to the basic structure theory.
25. As noticed hereinbefore, the basic feature doctrine is employed only when questions of constitutionality of a statute or the provisions of the Constitution come up for consideration. The basic structure doctrine has no relevance whatsoever for interpretation of a law declared by the Supreme Court in terms of Article 141 of the Constitution.
26. The decision of the Supreme Court in Kesavananda Bharathi v. State of Kerala, clearly shows that the doctrine therein was confined only with reference to Article 368 of the Constitution of India. Enlargement of its scope by extending the said principles to a law declared by the Supreme Court and the High Court, in our considered opinion, would be misconceived.
27. The directions issued by the Apex Court in L. Chandra Kumar (1 supra) are well within the ambit and province of the judicial branch. It is no longer res Integra that the Courts also lay down law. Instances are galore where the superior Courts acting within their constitutional limits have issued guidelines, directions or enunciated schemes. Some of them are:
(i) Right to travel -- Maneka Gandhi v. Union of India, Satwant Singh v. A.P.O., New Delhi.
(ii) Right to privacy -- Kharak Singh v. State of U.P, .
(iii) Right to speedy trial -- Common Cause, A Registered Society v. Union of India, .
(iv) Right of prisoners to interview --Prabha Dutt v. Union of India, .
(v) Right to a fair trial -- Police Commissioner, Delhi v. Registrar, Delhi High Court, .
(vi) Right against torture and custodial violence -- D.K. Basu v. State of West Bengal, .
(vii) Right to free legal aid -- State of Maharashtra v. M.P. Vashi, .
(viii) Right to education -- Mohini Jam v. State of Karnataka, ; Unnikrishnan v. State of A.P.,
(ix) Right to health and medical care --CERC v. Union of India, ; State of Punjab v. M.S. Chawla, .
(x) Right to pollution -- free environment -- M.C. Mehta v. Union of India, .
(xi) Right to safe drinking water --APPCB v. M.V. Naidu, AIR 1999 SC 822.
(xii) Sexual harassment of working women -- Visakha v. State of Rajasthan, ; AEPC v. A.K. Chopra, AIR 1999 SC 6225.
(xiii) Right to be protected from noise pollution--Mohan Fireworks v. State of West Bengal, 1999 (3) Cal.L.T. 76).
28. By reason of the decision of the apex Court the power of judicial review of this Court has not been taken away. In L. Chandra Kumar (1 supra) the Apex Court had to strike a balance between exercise of power of a tribunal constituted in terms of Article 323-A of the Constitution and /or the basic feature of the Constitution viz., judicial review. It may be true that the Court has directed imposition of self-restraint in the matter of entertaining the writ petition under Article 226 of the Constitution. The matters which would not ordinarily inhibit a Court from exercising its writ jurisdiction have succinctly been stated by the Apex Court in Whirlpool Corporation, in the following terms:
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
29. Is it not open to the superior Court to expand the said rule having regard to a different fact situation obtaining therein? The answer to the said question must be rendered in the affirmative. By reasons of such interpretative role the apex Court had not shut down the doors of the High Court for all times to come. It merely evolved a constitutional scheme so that the very purpose and object of creation and constitution of administrative tribunals is fulfilled. It is axiomatic that unless such a power was imposed, there would be possibility of the litigants approaching the High Court directly on one pretext or the other leading to the destruction of the creation of institution of tribunals itself.
30. There cannot be any doubt, as has been held in S.R. Bommai (4 supra), that the power of judicial review is a constituent power and cannot be abdicated by judicial process of interpretation. But the same by itself would not mean that the apex Court in another decision cannot lay down a law to the effect as to how and in what manner such a constituent power should be exercised. It will bear repetition to state that in terms of L. Chandra Kumar (1 supra) the apex Court has not denied or defined the basic structure doctrine to a litigant nor by reason thereof any erosion has been caused by judicial interpretation.
31. There cannot be any doubt whatsoever that having regard to the law of precedent the decision of a larger Bench shall prevail.
32. It is true that this Court has a duty to. uphold the Constitution but to follow the decision of the apex Court would be in consonance with the said constitutional mandate. There cannot further be any doubt that having regard to the hierarchy of Courts a decision of larger Bench shall prevail over the decision of a smaller Bench.
33. A decision, however, which has not covered the field being not a binding precedent, in our opinion, it will be idle to contend that the earlier decisions of the coordinate Bench and a larger Bench would prevail over Chandra Kumar (1 supra). The question as to under what situation the Court shall extend its right of self-restraint was not a subject matter, which fell for consideration earlier before the apex Court.
34. We, therefore, cannot accept the submission of Sri S. Ramachandra Rao to the effect that the ratio in L. Chandra Kumar (1 supra) in restricting the High Court's constituent power under Article 226 of the Constitution is per incuriam in view of the ratio decided by larger Benches.
35. The submission of Sri S. Ramachandra Rao to the effect that in any event the Court could not have directed the matter to be heard by a Division Bench is not of much importance.
36. Writ Proceeding Rules have been framed by this Court. It may be true that the constitution of a Bench should be done in terms of the writ proceeding rules. Referring to the decisions in State v. Devi Dayal, . Sohan Lal Baid v. State of West Bengal, and Indermani v. Matheshwari Prasad, the power of the Chief Justice who is also the master of the roster has been held by the apex Court in State of Rajasthan v. Prakash Chand and Ors., thus:
(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute Benches of the Court and allocate cases to the Benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice pr under his directions.
(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the Bench themselves and one or both the Judges constituting such Bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.
(5) That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra) and refer a case to the larger Bench for its disposal and he can exercise this jurisdiction even in relation to a part-heard case.
(6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.
37. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, and Anr. it has been held:
The status, functions and duties of the Chief Justice qua other Judges of the High Court was considered by a Full Bench of the Allahabad High Court of which one of us (S. Saghir Ahmad, J.) was a member, in Sanjay Kumar Srivastava v. Acting Chief Justice in-which it was, inter alia, observed as under:
"The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions, if any, arising therein."
It was further observed:
"Under Rule 6 of Ch. V of the Rules of Court, it can well be brought to the notice of the Chief Justice through an application or even otherwise that there was a case which is required to be heard by a larger Bench on account of an important question of law being involved in the case or because of the conflicting decisions on the point in issue in that case. If the Chief Justice takes congnizance of an application laid before him under Rule 6 of Ch. V of the Rules of Court and constitutes a Bench of two or more Judges to decide the case, he cannot be said to have acted in violation of any statutory provisions."
38. Referring to Section 129 of the Code of Civil Procedure, which deals with power of High Court to make rules as to their original Civil Procedure, it has been held in Ratanlal Nahata v. Nandita Bose, 1998 (2) CHN 166 thus:
54. A Chartered High Court, therefore, is entitled to make rules to regulate its own procedure in the exercise of its original civil jurisdiction which need not be consistent with the provisions of the Code but must be consistent with the Letters Patent, establishing the High Court. As the position of law in this regard is well settled it is not necessary to refer to a large number of decisions. Reference, however, may be made to (1907) 34 Cal. 19, AIR 1932 Cal. 1 and AIR 1985 Del: 163. While enacting rules High Court keeping in view the express provision or practice and procedure is also entitled to make a provision for correcting its own orders passed during the course of original trial.
39. However, practice and procedure need not be followed blindly. During passage of time the situation might change. The change in the situation in the conduct of business of the High Court has been taken notice of by the Supreme Court from time to time.
40. Justice Cardoze said:
The law has its epochs of ebb and flow, the flood tides are on us: The old order may change yielding place to new; but the transition is never as easy process.
41. Albert Camus stated:
The wheel turns, history changes. Stability and change are the two sides of the same law-coin. In their pure form they are antagonistic poles; without stability the law becomes not a chart of conduct, but a gare of chance; with only stability the law is as the still waters in which there are only stagnation and death.
42. In Ratnalal Nahata (40 supra) it has been held:
From only 'justice' the Courts have now begun to think in terms of 'social justice', 'socio-economic justice' and 'distributive justice'. The end of the law is seen to be, not only vindication of legal equality, but also provision of equality in fact with regard to more and more of elements that make life meaningful in the contemporary community. It no longer plays a regulatory role but also a constructive one.
Application of a statute may be varied from time to time. Difficulties may arise in the application of a statute by a Court in different situation and context.
43. Reed Dickerson in his . 'The Interpretation and Application of Statutes' at page 255 noticed:
The doctrinal problem that the Court of Appeals faced was this: How could the selfsame statute, which had remained unchanged since 1831, have meant one thing in 1939 and another in 1941? The answer is that it could not, if by 'meaning' we mean true meaning. On the other hand, it could, if by 'meaning' we mean legal meaning; the same statute can have different legal meanings on different dates. Taking as our standard the assumed correctness of the 1941 interpretation (which was not in issue) we can say that in 1939 the legal meaning of the Act, which is ordinarily what counts in Court, differed from its true meaning. When in 1941 the Supreme Court made the assumedly correct interpretation, it declared a meaning that, if correct, must have been the statute's meaning from the date of enactment. By that same determination it also made the true meaning, for the first time, the legal meaning. In short, the basis relevant juridical fact was that in 1941 the legal meaning of 'near' had changed.
44. Noticing the aforementioned passage from Reed Dickerson's it is observed in Ratanlal Nahata (40 supra):
This analysis would ordinarily liberate the Court from the false dilemma of having to choose between staying with a wrong legal meaning and declaring a new correct legal meaning that is necessarily effective from the date of enactment. Because only a newly declared rule of law, which now coincided with true meaning, was directly involved, the Court has discretion to make the new rule effective at what it considered the appropriate time. Thus, it is arguable that the Court in Colpoys was free to apply the new rule only prospectively, if that seemed to be the most appropriate action.
45. L. Chandra Kumar (1 supra) was decided on the touchstone of Article 323-A of the Constitution. The Supreme Court upheld the validity of the constitution of tribunals which were constituted under Article 323-A. It also upheld the power of judicial review. Its power of judicial review of administrative action as also judicial review of legislation .... Having considered the wide power the tribunal enjoys particularly the power of judicial review, balance had to be struck between the functions of the Administrative Tribunal vis-a-vis the basic structure doctrine in the light of the jurisdiction to the High Court under Articles 226 and 227 and that of the Supreme Court under Article 32 of the Constitution.
46. The decision of L. Chandra Kumar (1 supra), therefore, being binding on us, we are unable to agree with the submission of Sri S. Ramachandra Rao.
47. The decision of the Apex Court in L. Chandra Kumar (1 supra) must be held to have been rendered in the peculiar situation inasmuch as the said Act was enacted in view of Article 323-A of the Constitution. The directions of the Apex Court in L. Chandra Kumar (1 supra) having been rendered under Article 141 read with Article 142 of the Constitution are binding upon this Court. In any event the said decision must also be read in the context of Article 144 of the Constitution. The decision in L. Chandra Kumar (1 supra) is directly on the point. This Court having regard to the doctrine of judicial discipline cannot take a contrary view.
48. We may in this context also refer to the observation of Harry A. Blackmun. J. in Jones v. Alfred H. Mayer & Co., 379 F.2d. 33 which is to the following effect:
It is not for our Court, as an inferior one, to give full expression to any personal inclination any of us might have and to take the lead in expanding constitutional precepts when we are faced with a limiting Supreme Court decision, which so far as we are told directly, remains good law.
49. We are therefore of the opinion that there is no merit in this application. It is accordingly dismissed. There shall be no order as to costs.
50. Immediately after pronouncement of the Judgment an oral prayer has been made by Shri S. Ramachandra Rao, learned Senior Counsel for grant of leave to appeal to the Supreme Court.
51. Having regard to the fact that our judgment is based upon the Supreme Court decision, we are of the opinion that the instant case does not involve a substantial question of law of general importance which is required to be decided by the Supreme Court. Leave is rejected.