Allahabad High Court
Vijay Kumar Mahendra vs Registrar, Hon'Ble High Court Of ... on 27 January, 1997
Equivalent citations: (1998)1UPLBEC711
JUDGMENT B.M. Lal, J.
1. By this Special Appeal under Chapter VIII, Rule (5) of the Rules of the Court the appellant V.K. Mahendra has assailed the validity of the judgment and order dated 9.5.95 passed by learned Single Judge in Writ Petition No. 5484 of 1995 whereby the appellant's submissions for quashing the dismissal order dated 8.2.1995 passed by the respondent No. 2 and enquiry report dated 16.8.1993 submitted by the respondent No. 3 contained in Annexures 2 and 22 respectively to the writ-petition have been repelled.
2. In nut shell the case as set out by the appellant is that he was appointed as Personal Assistant in the establishment of High Court of Judicature to Allahabad in accordance with the provisions of The Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as the Rules) framed under Article 229 of the Constitution of India. However, on the ground of certain lapses on the part of the appellant, departmental enquiry was instituted consequently he was put under suspension by an order dated 29.7.92. The main charges of misconduct levelled against him are as under :
"(i) The appellant visited Nepal with the help of Judicial Officers of Pilibhit judgeship who were under the administrative control of Hon'ble Administrative Judge with whom the appellant was attached as a Personal Assistant. His visit to Nepal was without permission of Hon'ble Court.
(ii) He is said to have stayed in the alleged Hotel at the cost of Judicial Officers of said Administrative Zone. It is further alleged that the appellant stayed in Hotel and others places at the cost of Judicial Officers only by virtue of the being Personal Assistant to Administrative Judge of that Zone.
(iii) He is also alleged to have interfered in the local administration of Bareilly judgeship and exercised undue influence in appointments. It is also alleged that he leaked out the confidential information to the Judicial Officers of the said Zone for his personal gain and interest. His alleged unwarranted activities and interference in the local administration created rift amongst Judicial Officers and thereby created administrative problems in the said administrative Zone. It is also alleged that the appellant gave an impression to the Judicial Officers of that Zone that if the petitioner becomes interested in their work, he can get their work done from the Hon'ble Administrative Judge. It is also alleged that he displayed himself as representative of Administrative Judge.
(iv) He is alleged to have displayed his authority and lowered down the image of Hon'ble High Court.
3. On these charges disciplinary enquiry was instituted against the appellant and Sri O.P. Srivastava, Joint Registrar of the Court was appointed as Enquiry Officer.
4. The appellant denied all the charges levelled against him and pleaded not guilty of the charges but after affording reasonable opportunity of being heard in accordance with the provisions of the Rules, enquiry report was submitted against him holding that the charges against his were proved and therefore, on the basis of the said enquiry report Hon'ble the Chief Justice, the respondent No. 2 in the appeal, passed the order dated 7.2.1995 dismissing the appellant from service and the said dismissal order has been upheld by learned Single Judge by the order dated 9.5.1995 against which instant special appeal has been filed.
5. Before entering into merits of the appeal it is necessary to discuss the scope of the appeal under Chapter VIII, Rule 5 of the Rules of the Court.
6. It appears, after abolition of Clause 10 of Letters Patent, Rule 5 was incorporated under Chapter VIII of the Rules of the Court by Notification No. 345/VIII-C-150, dated 6.11. 1963, published in U.P. Gazette, Part II, dated 5.12.1964 which is more or less a reproduction of Clause 10 of Letters Patent. Thus, the scope of Letters Patent is very limited and is available to the parties only on legal grounds involved in the case and the judgment under challenge in appeal if suffers from legal infirmity only then it could be assailed in special appeal. The factual matrix of the case cannot be examined or taken into consideration for assailing or setting aside the judgment challenged in special appeal.
7. Now coming on the merits of this special appeal we have to consider the grounds raised by the learned Counsel for the appellant keeping in view the scope of interference in special appeal, mentioned above.
8. Learned Counsel for the appellant mainly stressed on the ground that the appointing authority of the appellant is the Registrar of High Court of Judicature at Allahabad whereas the order of dismissal has been passed by the Chief Justice of High Court of Judicature at Allahabad and thereby the appellant has been deprived of his right of appeal which is substantive and vested right and which cannot be taken away. Learned Counsel far the appellant also contended that by virtue of Rule 40 of the Rules the provisions for appeal pertaining to other Government Servants of U.P. Government are applicable to the employees of the High Court. The next ground urged is that the provisions of Rule 45 of the Rules have been wrongly interpreted by the learned Single Judge.
9. In respect of first ground much emphasis was given by the learned Counsel for the appellant that the appellant was appointed by the order of the Registrar and his appointing authority is the Registrar, therefore, it is only Registrar who being disciplinary authority of the appellant can dismiss his services and if the dismissal order is passed by the Chief Justice, the appellant looses his right of appeal.
10. In this regard it has to be made clear that the appellant is an employee of the High Court. As far as the employees of High Court are concerned, it is Hon'ble the Chief Justice of High Court who is final authority by virtue of Article 229 of the Constitution and the appointments of the employees of the High Court are to be made by the Chief Justice of the High Court or by such other Judge or Officer of the Court whom he may direct. Therefore, for the sake of convenience even if the appointments orders are issued by such other Judges or officers of the Court but also in the eye of law the actual authority of making appointments remains with the Chief Justice and the Chief Justice continues to remain the appointing authority and probably for this reason under Rule 2 (n) of the Rules, the term "appointing authority" is defined to mean the Chief Justice of the Court or such other Judge or officer as he may direct.
11. Besides this learned Counsel for the appellant did not point out any provision in the Rules whereby the right of appeal is conferred to the employees of the High Court, and therefore, even if the delinquent employee is appointed and dismissed by such other Judge or officer of the Court whom Chief Justice may have directed to do so, he does not get right of appeal. The authority of making appointments originally vests in the Chief Justice, therefore, he can certainly pass the order of dismissal. We fail to understand as to how in the absence of any specific provision for appeal provided in the Rules, the appellant has lost his right of appeal. Before making the grievance in respect of depravation of the right of appeal one has to establish and satisfy that such right is conferred on him. It is well-settled that the right of appeal is not a natural or inherent right attached to any litigant and thus it does not exist or subsist and cannot be assumed unless the same is expressly provided by Statute or Rule having force of law. The right of appeal being a substantive right, it is always regulated by the law in force at the relevant time. In the instant case the relevant law is the Service Rules of High Court employees framed under Article 229 of the Constitution. There is no provision express or implied in the Rules to suggest that there is right of appeal with the employees of the High Court.
12. It is well settled that the right of appeal Is a substantive and vested right but the same can be derived only if it is conferred by some statutory provision of law. As stated above no such right of appeal is conferred on the employees of High Court, neither by Article 229 of the Constitution nor by the Rules framed thereunder. Therefore, when the right itself is not conferred or in other words when the right of appeal is not available to the High Court employees, there cannot be any question of it taking away.
13. As far as the point that the appointment of appellant was made by the Registrar and the order of dismissal has been passed by the Chief Justice is concerned, even if that is so, there is nothing wrong, as the power, authority and jurisdiction in respect of appointment and regulating service conditions of High Court employees have been conferred exclusively on the Chief Justice of High Court and that is unfettered, subject only to the Article 229 itself, and Hon'ble the Chief Justice being an authority higher than the Registrar, can certainly pass the order of dismissal.
14. Now coming to the second question germane to the first one that in respect of all matters regarding the conditions of service of officers and servants of the High Court the rules and orders for the time being in force and applicable to Government servants holding corresponding post in the Government of Uttar Pradesh shall apply to the officers and servants of the High Court, the provisions of Rule 40 of the Rules need to be examined. The provisions of Rule 40 read as under :
"40. Regulation of Other Matters.-(1) All officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice.
(2) In respect of all matters (not provided for in these Rules) regarding the conditions of service of officers and servants of the Court including matters relating to their conduct, control and discipline, the Rules and orders for the time being in force and applicable to Government servants holding corresponding post in the Government of Uttar Pradesh shall apply to the officers and servants of the Court subject to such modifications, variations, and exceptions if any, as the Chief Justice may, from time to time, specify :
Provided that no order containing modifications, variations or exceptions in Rules or orders relating to salaries, allowances, leave or pensions shall be made by the Chief Justice except with the approval of the Government :
Provided further that the said powers exercisable under rules and orders of Government of Uttar Pradesh by the Governor shall be exercised by the Chief Justice or by such officer as he may, by general or special order, direct."
15. A bare perusal of aforesaid provision indicates that the Rules and orders for the time being in force and applicable to Government servants holding corresponding posts in the Government of Uttar Pradesh shall apply to the officers and servants of the Court but such Rules and orders framed under Article 309 of the Constitution shall have no application in to. It shall apply only subject to such modifications variations and exceptions if any, as the Chief Justice may from time to time specify. It shall also apply only in respect of matters not provided for in the Rules framed under Article 229 of the Constitution. Therefore, such application of Rules, framed under Article 309 of the Constitution to the employees of the High Court is very limited and only for the purpose of regulating procedural aspects of the matter but certainly not for the purpose of substantive rights like at right of appeal. The right of appeal as stated above is substantive right. In service jurisprudence, availability of substantive and vested right of appeal is to be inferred from the statutory provisions itself. Clause (1) of Rule 40 of the Rules itself provides that all officers and servants of the Court shall be subject to the superintendence and control of the Chief Justice. A close scrutiny of Service Rules of High Court employees indicates that the Chief Justice is the final authority in respect of employees of the High Court. There is no other authority in the High Court over and above the Chief Justice in this regard. As stated above the power, authority and jurisdiction in respect of employees of the High Court conferred by the Constitution on the Chief Justice, is unfettered and exclusive and therefore, the only irresistible conclusion is that the vested and substantive right of appeal is not available to the employees of the High Court. Having not been conferred by the statutory provision and thus the aid of Rule 40 also is not available for deriving the substantive right of appeal to the employees of the High Court.
16. Further, a bare perusal of Rule 45 of the Rules which starts with the non-obstante clause, makes it crystal clear that despite 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.
17. In P.K. Agarwal v. Hon'ble the Chief Justice and Ors., (1988) 2 UPLBEC 1270, a Division Bench of this Court considering the Service Rules of High Court employees of this Court held that (vide para 16) the power of Hon'ble the Chief Justice was exclusive and the same even could not be curtailed or modified in the matter of appointment of officers and servants of the High Court.
18. In Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors., A.I.R. 1979 SC 193, their Lordships of Apex Court Rules that the regard to the servants and officers of the High Court, Article 229 makes the power of appointment, dismissal removal, suspension, reduction in rank, compulsory retirement etc. 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. The powers conferred on the Chief Justice are exclusive and supreme, the object which the Founding Fathers had in view, was to ensure independence of the High Court.
19. Thus, in the considered opinion of this Court the power, authority and jurisdiction conferred on Hon'ble the Chief Justice of High Court in respect of employees of the High Court by Article 229 of the Constitution and Rule 45 of the Rules are exclusive and plenary subject only to the provisos to Article 229 itself. However, while exercising those powers, the care to be taken is that the equality clause enshrined under Article 14 of the Constitution is not violated. The case of the present appellant before us is not, that the equality clause has been violated or he has been discriminated. At the cast of repetition it may be stated that the matters of appointments etc. and regulating service conditions of High Court employees is exclusively within the domain of Hon'ble the Chief Justice and he is supreme authority in this regard. Even the Administrative Committee or the Full Court has nothing to do in the matter and therefore, there is no question of any appeal against the orders passed by Hon'ble the Chief Justice in this regard.
20. In State of Orissa v. Sudhansu Sekhar Misra and Ors., A.I.R. 1968 SC 647, their Lordships of Apex Court have ruled that neither the Government nor the High Court can post any officer as Registrar of the High Court as that can be done only by the Chief Justice. To hold otherwise would be to contravene Article 229 of the Constitution.
21. No other point was pressed before this Court.
22. It would not be out of context to mention here that the posts of Private Secretaries and Personal Assistants to Hon'ble Judges of this Court carry very high responsibility and require high standards of integrity and confidentiality for the simple reason that on many occasions very important judgments in the cases of political superiors and constitutional functionaries same ties even in the cases of sitting High Court Judges, are dictated to them and the task of maintaining secrecy and confidentiality in such cases becomes greater on the shoulders of the Private Secretary/Personal Assistant concerned.
23. Similarly on administrative side as well, many important reports of Judges Committees some times pertaining to high Officers of the Registry itself, are dictated to the Private Secretaries/Personal Assistant attached with the Hon'ble Judges and in all such matters the Private Secretaries and Personal Assistants concerned are required to maintain top level secrecy. Considering all these practicle aspects of the matter the Private Secretaries and Personal Assistants to the Judges of this Court are paid handsome salary and lucrative emoluments from the State Exchequer.
24. In this back ground when we looked to the history of Private Secretaries and Personal Assistants of this High Court we found that in the past they were dictated very important judgments for some of which the whole country was curiously looking towards this Court but even the intelligence agencies of the country failed in getting any clue about those judgments before they were actually pronounced in the open Court and thus this class of employees of this High Court has successfully passed its acid test in the past. Therefore, the purity and dedication of this class has to be preserved at all costs.
25. One should bear in mind that this Court is known in India and also In other countries not for its architectural or aesthetically beauty of the building but for its glorious achievements on judicial side in the past by eminent Judges, Jurists and distinguished members of the Bar for their ingenious performances in which honest, sincere and dedicated assistance of the personal staff attached with the Judges cannot be ignored. In the considered opinion of this Court it is the pious responsibility of all persons connected with this Institution to preserve and maintain the rich heritage of this grant Institution at all costs. Therefore, any sort of dereliction in duty by the personal staff or any other staff of this Court will not be tolerate. In the instant case since the appellant has leaked secrecy of Hon'ble Administrative Judge with whom he was attached hence it is open for the Registrar with the approval of Hon'ble the Chief Justice to take steps for criminal prosecution, considering the facts and circumstances of the case.
26. However, this Court feels that the role of judicial officers who provided undue facilities to the appellant which is proved in the enquiry, is not less deplorable. They are also equally responsible for lowering down the image of this High Court along with the appellant but we fail to understand as to why they have been spared. The equity and propriety, both demand that under the circumstances of present case similar treatment should be given to the concerned judicial officers also. We therefore, direct the Registrar of the Court to bring this aspect of the matter to the notice of Hon'ble the Chief Justice for appropriate action against the concerned Judicial Officers, otherwise it shall be come every difficulty to run the administration of this Court effectively.
27. In the opinion this Court, matters affecting the prestige and dignity of the High Court must be dealt with iron hands and none can be spared in such matters whether he belongs to P.S./P.A. cadre or clerical cadre or Judicial Officers cadre or any other cadre because the interest of the Institution is supreme for all connected with it in any manner.
28. Thus, from the discussions aforesaid in the concluded opinion of this Court, except the observations made and direction issued above, no interference by this Court is called for in this appeal. The Special Appeal, therefore, fails and is dismissed. There shall be no order as to costs.