Rajasthan High Court - Jaipur
Radhey Shyam Soni vs The State Of Rajasthan And Ors. on 4 March, 1991
Equivalent citations: 1992(3)WLC661, 1991(1)WLN291
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT Jasraj Chopra, J.
1. A Division Bench of this Court vide its order dated 3.12.1990 in D.B. Civil Writ Petition No. 4867 of 1990, Radhey Shyam Soni v. The State of Rajasthan and Ors. referred the following questions for determination by a larger Bench to be constituted by Hon'ble the Chief Justice:
(1) Whether in view of the fact that the parties have succumbed to the jurisdiction of the Family Court and have not raised any objection about non-compliance of Sections 4, 5 and 6 of the Family Courts Act, 1984, the learned Judge of the Division Bench in Dr. Suresh Kumar Bakliwal case (supra) and other connected cases were authorised to formulate the questions which they have formulated and answered in the pending appeals against the judgment of a family court specially as regards the constitution and functioning of Family Court?
(2) Whether functioning of the Family Courts can be brought to a stand still simply because certain Rules have not been framed either by the High Court or by the State Govt. or Central Govt. Under Sections 21, 22 and 23 read with Sections 4, 5 and 6 of the Family Courts Act, 1984 or in the alternative: Whether non-framing of the Rules Under Sections 21, 22 and 23 or for that matter Under Section 14 of the Family Court Act cut at the root of the functioning of the Family Courts and whether the Family Courts at Jaipur, Jodhpur and Ajmer which are functioning for the last number of years should not be allowed to function simply because service conditions of the persons who are employed in these Courts as Judges, Officer and Counsellors have not been made part of the Rules, which have to be framed by the High Court or the State Govt.?
(3) Whether the Provisions of Section 6 of the Family Courts Act, 1984 are mandatory in character or they are only directory in nature?
(4) Whether appointment of Counsellors Association of Social Institutions Organisation meant for providing assistance to the Family Court for their better functioning is a condition precedent for the proper functioning of the Court or whether they are only enabling provisions, the compliance of which is not mandatory but directory?
(5) Whether in view of Rule 14 to 20 read with Rule 32(2) of the Rules of High Court of Judicature for Rajasthan, 1952, the observations of Hon'ble D.L Mehta, J. in Dr. Suresh Kumar Bakliwal case(supra) as regards the powers of Hon'ble the Chief Justice regarding transfer and posting of Judicial Officer desarve to be sustained or they deserve to be expunged?
It is in this back ground that, the aforesaid five questions are before us for determination.
2. It will be very useful to give the short back-ground of this reference here. A Division Bench of this Court at Jaipur Bench while dealing with D.B. Civil Misc. Appeal No. 335 of 1989 and 16 other appeals mentioned in Schedule A annexed with the Judgment, vide its Judgment dated November 8, 1990 observed that in a number of appeals filed before this Court under the Family Courts Act, 1984(hereinafter referred to as 'the Act'), questions relating to establishment of Family Courts and their functioning and failure of competent authorities to frame rules Under Sections 4, 5 and 6 of the Act have been raised in different forms and, therefore, it was considered proper that specific questions of importance should be formulated and notices should be issued to the State Advocate General, State Government, the High Court and the Members of the Bar. Accordingly following six questions were framed and were answered by the Judges constituting that Bench as under:
Questions Framed Answers furnished by Answers furnished by by the Bench Hon'ble D.L Mehta. J. Hon'ble G.S. Singhvi. J. 1. Whether the provisions of Section 4 of the Act Family Court should be desmed to be Family Court is a Court are followed in the matter of a court Subordinate to the High Court. Subordinate to the High Court. appointment of the Judges of the Family Court? 2. What are the terms and conditions of Family Courts have not been Family Courts have not the Judges including salary and other constituted so far according to been constituted in allowances payable to the Judges of the law in the State of Rajasthan. acordance with law in the Family Courts and whether such terms State of the Rajasthan. and conditions including salary and other allowances have been fixed by the State Govt., in consultation with the High Court? 3. Whether the Rules have been framed On account of violation of Sections 4,5,6,14 Family Courts cannot function as provided Under Section 5 of the Family and 23 of the Act, the Family Court without framing Rules under Court Act or not? cannot function legally till the Rules are Sections 5, 6, 21 and 23 of the Family made, Judges are appointed in accordance Court Act, 1984. with the provisions of Section 4 and their service conditions are fixed as per the provisions of law. 4.Whether the State Govt. in accordance Family Courts cannot function Family Courts cannot function with the provisions of Section 6 of the Act, after without the Counsellors and it is the without Counsellors and it is the consulting the High Court had determined obligatory duty of the State and the obligatory duty of the State and the number of categories of the counsellors High Court to provide he High Court to provide. to assist the Family Court in Counsellors and to frame Rules Counesllors and to frame Rules regarding the terms discharge of its function? regarding the terms and and conditions of administration conditions of administration of of Counsellors and presence Counsellors and presence of of Counsellors in the Counsellors in the proceedings proceedings of the Courts. of the Court is a must; 5. Whether the counsellors have been Section 6 is mandatory in nature; Did not record any specific provided to assist the Family court in agreement with Hon'ble D.L. Mehta, J. accordance with the Provision of Section 6 of the Act?" 6. Whether the terms and conditions It is also the duty of the State Did not record any specific of the association of the Counsellors referred to in Govt. to determine the agreement with Hon'ble Mehta, J. Clause (1) of Section 6 have been specified by association of social welfare Rules, made by the State Govt., if any? agencies and to provide the stance of association to the Family Courts.
It may be stated here that Hon'ble Mr. Justice D.L. Mehta further observed that Section 25 of the Rajasthan Civil Courts Ordinance it self provides that the control over District Court and the Courts subordinate therefore, including postings and promotions shall be vested in the High Court.
It was also held that postings include postings by transfer and it is not only the privilege of the Chief Justice but it is the privilege of the High Court and the High Court may constitute a Committee and delegate its powers is a different matter but the power of the transfer cannot be exercised by the Hon'ble Chief justice alone as the powers to post a particular Judge is the privilege of the High Court and not of the Chief Justice. His Lordships Hon'ble Mr. Justice D.L. Mehta further held:
So far the postings may be way of transferring the Judicial Officers from one post to another including the Family Court are not in accordance with law and the Provisions of Section 25 read with Article 235 have not been followed. We hope that in future every posting shall be made in accordance with the provisions of Section 25 read with Article 235 of the Constitution as postings include posting by way of transfer One must take note of it that the High Court and the Hon'ble Chief Justice cannot be equated. Whenever the word 'High Court' has been used, it means all Judges sitting together or the Committee of the Judges constituted by the Full Court for the performance of the duties. We hope that the Registry in future will take note of it and wherever the matter is to referred to the High Court, it will not keep it pending or decide it only by asking submission to the Hon'ble Chief Justice.
As regards these observations of Hon'ble Mehta, J., Hon'ble G.S. Singhvi, J. observed as follows:
However, I do not express any opinion on the views expressed by Hon'ble Mehta, J. on the question of power of the Hon'ble Chief Justice regarding the posting and transfer of Judicial Officers.
3. In view of the aforesaid decision of the Division Bench of this Court in Dr. Suresh Kumar Bakliwal v. Smt. Neelanjana Jain (D.B. Civil Misc. Appeal No. 335/89, decided on November 8, 1990), the functioning of Family Courts in Rajasthan came to a stand-still.
4. It may be stated here that earlier, the Judge who was posted as Judge, Family Court, Jodhpur was transferred as District Judge, Sri Ganganagar and, therefore, that post was lying vacant. That apart, on the basis of the aforesaid Division Bench Judgment in Dr. Suresh Kumar Bakliwal case (supra), functioning of the Family Courts at Jodhpur, Jaipur and Ajmer was also brought to a halt. In that view of the matter, feeling aggrieved by non-progress of his case pending before the Family Court, Jodhpur, one Shri Radhey Shyam Soni submitted an application to Hon'ble the. Chief Justice mentioning therein that the Family Courts Act, 1984 (No. 66 of 1984) was formulated in the year 1984 with a view to promote conciliation in and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected there with and consequent to the promulgation of the aforesaid act, a Family Court was established at Jodhpur vide Notification No. P. 1.(12)Judl./88 dated 6.7.1988 with the jurisdiction of Revenue District of Jodhpur. It was submitted that the established of this Court facilitated the early disposal of matrimonial matters, which were long pending and it gave relief to the affected parties. According to the petitioner Radhey Shyam Soni, his case bearing No. 78A/88 (Radhey Shyam v. Vijay Kaur.) filed Under Section 13 of the Hindu Marriage Act is also pending in the Family Court, Jodhpur and when it was at the stage of final disposal, the Presiding Officer of the Family Court was transferred. He has further submitted that a Division Bench of this Court at Jaipur Bench in Dr. Suresh Kumar Bakliwal case (supra) has held that the Family Court cannot function legally till the Rules are made, Judges are appointed in accordance with the provisions of Section 4 and their service conditions are fixed as per the provisions of law and the said decision has been given in pending appeals, which were filed against the orders passed by the Family Courts constituted under the Family Courts Act, 1984. It was submitted that as a result of this judgment in Dr. Suresh Kumar Bakliwal's case(supra) and non-posting of a Judge at Family Court, Jodhpur, it is causing hardship to the affected people and would cause unnecessary delay in deciding the matrimonial cases. He has, therefore, requested Hon'ble the Chief Justice to intervene in the matter and to ameliorete the lot of affected people by posting a Judge at the Family Court, Jodhpur so that the disposal of the matrimonial cases may be expedited. This application dated 16.11.1990 was forwarded to the Public Interest Litigation Cell of the High Court wherein it was treated as a writ petition and was placed before a Division Bench of this Court at Jodhpur. The Division Bench felt that they cannot agree with the conclusions arrived at by the Division Bench in Dr. Suresh Kumar Bakliwal's case (supra), and therefore, the aforesaid five questions were referred to be determined by a larger Bench of this Court to be constituted by Hon'ble the Chief Justice.
5. It is the trite law that a Bench of co-ordinate jurisdiction cannot set aside the finding of a similar Bench. If the Members of the co-ordinate Bench feel that they cannot agree with the decision rendered by a similar Bench, then the only course available with them is that they may refer the matter for decision by a larger Bench so that the differing view of the two Benches may be scrutinised and an authoritative pronouncement is rendered on such controvercial matter. It is not a case where this Court is sitting in appeal over the Judgment rendered by a Division Bench of this Court at Jaipur Bench in Dr. Suresh Kumar Bakliwal's case. It is true that no writ petition lie against a judicial appellate decision rendered by a Bench of this Court but if the findings given by a particular Division Bench are not accepted or concurred with by another Division Bench of this Court, then keeping in view the established principle and traditions of proper judicial administration and its functioning, which governed by the Rules of law based on precedence, the only course open to such a Division Bench is to refer the matter to larger Bench for resolving the controversy and that is what has been done by the Division Bench of this Court hearing writ petition filed by Shri Radhey Shyam Soni. It is in this context that the matter has been referred to us for decision.
6. We have heard Mr. J. P. Joshi, the learned Additional Advocate General, Mr. R. Balia, the learned Counsel for the Rajasthan High Court, Mr. H.N. Calla, the learned Counsel for Rajasthan High Court Advocates' Association, Jodhpur, Mr. R.C. Yadav, the learned Counsel for Rajasthan High Court Bar Association, Jaipur, Mr. B. Advani for Members of the Bar and Mr. M.R. Singhvi, the learned Counsel appearing for applicant Smt. Vijay Kaur. We have bestowed our most earnest and careful consideration to the judgment of the Division Bench rendered at Jaipur in Dr. Suresh Kumar Bakliwal's case and the judgment of the Division Bench in Radhey Shyam Soni case as also to the arguments advanced at the Bar.
7. After carefully scrutinising the Judgment of the Division Bench in Dr. Suresh Kumar Bakliwal's case, we are firmly of the view that the answers furnished or the conclusion arrived at by the Division Bench are beyond the scop of the questions that have been framed by them. In Dr. Suresh Kumar Bakliwal's case, the learned Judges of the Division Bench have not framed any questions as to whether the provisions of Sections 4, 5, and 6 of the Family Courts Act, 1984 are mandatory or directory in nature and further as to what result will follow if the provisions of Sections 4, 5, and 6 of the Family Courts Act, 1984 are not complied with and further whether non-compliance of the Provisions of Sections 4, 5, 6 and 14 of the Act and non-framing of the Rules Under Sections 5, 6, 21 and 23 of the Act will render the functioning and constitution of the Family Courts unlawful or whether the Family Court function legally till the Rules are framed as alleged, Judges are appointed in accordance with the provisions of Section 4 and their service conditions are fixed as per the provisions of law. No question has been framed as to whether the Family Courts are subordinate to the High Court or not; and whether the Chief Justice is vested with any powers to make transfers and postings. Thus, with due difference to the Hon'ble Judges, who have decided the points raised by them in Dr. Suresh Kumar Bakliwal's case, we may say with respect that most of the answers furnished by them have little or no bearing on the questions framed by them or at least, the answers furnished by them are beyond the scope of the questions framed by them.
8. It may be stated here that the notices were isssued to the Advocates representing different interest and who were called upon to address the Court must have entertained a firm belief that they have to address the Court on the questions that have been framed and the question framed did not give any incling of the fact that it was agitating the finds of the Hon'ble Judges rendering the decision in Dr. Suresh Kumar Bakliwal's case that provisions of Sections 4, 5, and 6 of the Act are mandatory in character and, therefore, their non-compliance will affect the very constitution of the Family Court that the Chief Justice has no power to post a particular person as a Judge of the Family Court; and that if the provisions of Sections 4, 5, and 6 are not complied with than that will render the functioning of the Courts nugatory and it will have to be brought to a halt in absence of the Rules. The questions which have been framed are questions of fact. In framing questions, it was not disclosed that if the provisions of Section 4 of the Act are not followed of appointment of Judges of the Family Courts, what will be the result? It was also not disclosed that if the terms and conditions of the Judges and their staff including the salary and allowances payable to them are not fixed by the State Govt. in consultation with the High Court, what will be the result and if the Rules have not been framed Under Sections 5 and 6 of the Act what will be its effect and if the Counsellers are not provided to the Family Courts and if their terms and conditions of service have not been fixed, what will be its effect. Thus, the lawyers who were called upon to address the Court had no opportunity to address the Court on the aforesaid points about which no questions were framed and still categorical findings about these points have been recorded without there being any question about them. It may be stated here that as regards the observations of Hon'ble Mehta, J. regarding powers of Hon'ble the Chief Justice, no question has been framed and still, certain observations have been made. It may be that after framing these six questions to find out the factual position, a question could have been framed to this effect that if these six questions are answered in the affirmative, what will be the result? However, that also has not been done. Thus, it can safely be held that the conclusions arrived at by the Division Bench in Dr. Suresh Kumar Bakliwal's case are beyond the scope of the questions that have been framed by it. After making these preliminary observations, now we proceed to decide the questions that have been referred to us.
9. The first question relates to the competance of an appellate Court to frame a question about the very constitution and functioning of the Family Courts in pending appeals. The learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case have observed that in a number of appeals filed before this Court against the orders passed by the Family Courts constituted under the Family Courts Act, 1984 questions relating to establishment of Family Courts and their functioning and failure of competent authorities to frame Rules Under Sections 4, 5, and 6 of the Act have been raised in different forms. It was, therefore, considered proper that specific questions of importance should be formulated. However, in the midst of the Judgment, at page 22, while relying on the doctrine of de-facto exercise of powers and further adverting to the doctrine of waiver, it was observed that Family Court Judges posted by the Hon'ble Chief Justice without fulfilment of requisite qualifications of Sections 4 and 5 cannot be said to be intruders or usurpers of Office but they are persons who hold the Office under the colour of lawful authority, though their appointments are defective and are now declared as illegal. It was further observed as follows:
Whatever may be the defect, the judgments pronounced by them and the acts done by them when they were clothed with the powers and functions of the Officer although unlawfully have the same efficacy as the Judgments pronounced and acts done by the de jure.
It was held that all the cases, the parties have surrendered to the jurisdiction of the Court and they have not raised any objection that the provisions of Sections 4, 5, and 6 have not been followed, as such the Family Courts cannot function and thus, the parties have surrendered to the jurisdiction and have waived the right of objecting to the jurisdiction of the Court. It was for this reason that the learned Judges observed that the Judgments delivered and the acts done and proceedings taken by the Family Courts have to be sustained and they will not be vitiated only on the ground of defective-appointment and postings made non-creation of the welfare agencies and non-appoinment of Counsellors. Thus, the observations of the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case that the parties have surrendered to the jurisdiction of the Court and have not raised any objection that provisions of Sections 4, 5, and 6 of the Act have not been followed and as such, the Family Courts cannot function or they suffer from any defect of constitution appears to be contrary to their own observations made initially in the first para of the Judgment where it has been stated that much questions have been raised. It, therefore, appears that these questions have not been raised in those appeals or for that matter, in the petitions filed before the Family Courts. The learned Judges were only attempting to formulate academic questions which did not emanate from the objections or points raised either in the petitions filed by the sutranged couples before the Family Courts or in the memos of appeals filed before the appellate Court. We may state here that the Courts are called upon to decide only the live issues and not academic questions or issues. If the parties have already surrendered to the jurisdiction of the Court and have not raised any objections with regard to the constitution and functioning of the Family Courts Under Sections 4, 5, and 6 of the Family Courts Act and have not made any grouse that the Family Courts cannot function because the Rules have not been framed Under Sections 4, 5, 6, 21 and 23 of the Act then those issues were not live issues and could not have been gone into by the Courts of law because it is a well accepted practice that Courts do not undertake interpretation of the provisions of Constitution of any Act or Rules unless there be a live issue before them. In support of this contention, we may place reliance on a decision of their lordships of the Superme Court in Harsumaran Verma v. U.O.I. (1987(Suppl.)SCC-310).
10. Now, we will like to address ourselves to this question as to whether such issues could have been framed and decided by an appellate court. The Family Courts are a creation of the Statute i.e. Family Courts Act, 1984. The right of appeal has also been conferred on the aggrieved party Under Section 19 of the Act. Section 19(5) of the Act provides that an appeal preferred Under Sub-sections (1) shall be heard by a Bench consisting of two or more Judges. Section 19(1) of the Act lays down that save as provided in Sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 or in the Code of Criminal Procedure, 1973 or in any other law, an appeal shall lie from a very judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. Section 19(2) of the Act provides that no appeal shall lie from a decree or order passed by the Family Court with the consent of the parties. Section 19(3) says that every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court. Sub-section(4) of Section 19 of the Act provides that except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court. Thus, the right of appeal has been specifically provided with in parameters prescribed by Section 19 of the Act.
11. Section 107 of the Code of Civil Procedure, 1908 deals with powers of appellate Court. It reads as follows:
Section 107. Powers of Appellate Court:- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.
The appellate Court can only act within the aforesaid parameters and not beyond them. The constitution of a particular Tribunal or its functioning is not covered by the aforesaid parameters provided by Section 107 C.P.C.
12. In this respect, we would like to refer to a decision of their lordships of the Supreme Court in K.S. Venkataraman and Co.(P) Ltd. v. State of Madras , wherein as per Majority of the Constitution Bench, it was held as follows:
The jurisdiction conferred upon the High Court by Section 66 of the Income-tax Act, is a special advisory jurisdiction and its scope is strictly limited by the section conferring the jurisdiction. It can only decide questions of law that arise out of the order of the Tribunal and that are referred to it. As the Tribunal is a creature of the Statute, it can only decide the dispute between the assessee and the Commissioner in terms of the provisions of the Act. The questions of ultra vires of the provisions of the Act is foreign to the scops of its jurisdiction. If an assessee raises such a question the Tribunal can only subject it on the ground that it has no jurisdiction to entertain the said objection or decide on it. As no such question can be raised or can arise on the Tribunal's order, the High Court cannot possibly give any decision on the question of the ultra vires of a provision. The appeal Under Section 66-A(2) to the Supreme Court does not enlarge the scope of the said jurisdiction. The Supreme Court can only do what the High Court can.
Thus, it flows from the aforesaid decision, that the High Court and the Supreme Court while sitting in appeal cannot enlarge the scope of the provisions of the relevant Act. The Tribunal is a creature of the Statute and it has to administer the Statute as it is. If the very constitution or functioning of the Tribunal is under challenge then that question is beyond the scope of the provisions of the Act and it cannot be decided by the Tribunal. When it cannot be decided by the Tribunal then, it cannot also be decided by the High Court or for the matter by the Supreme Court in pending appeals. It is a different matter that the validity of a particular provision of the Act can be challenged before the High Court Under Article 226 of the Constitution or for that matter before the Supreme Court Under Article 32 of the Constitution but the appellate jurisdiction is a co terminus with that of the Tribunal and, therefore, the appellate court can not go beyond the provisions of the Act. It has to take the provisions of the Act as iner are. In this respect, we would like to rely on the following observation made per majority by their lordships of the Supreme Court in Venkataraman & Co.' case(supra):
The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not affect the position that in law, the said order has been passed by an apporpriate authority and the assessment made by it must be treated as made under this Act.
These observations go to show that the judgment that has been passed by the Family Court will have to be treated as a Judgment passed by an appropriate authority and the constitution and functioning of the Tribunal cannot be challenged in appeal.
13. In Venkataraman & Co. case(supra), their lordships of the Supreme Court quoted with approval the observations of Derbyshire C.J. in Releigh Investment Co.'s case(1943) II, ITR-393, 410, 430 which read as follows:
He was employed to administer the Act and we had to take the Act as he found it.
Their lordships further quoted the observation of Venkataraman Ayyar, J. in Bengal Immunity Co. Ltd. v. State of Bihar , which are as follows:
Indeed, the contention that the Act is ultravires is not one which the Tribunals constituted under the Act, whether original, appellate or revisional could entertain their duty being merely to administer the Act.
Their lordships also quoted with approval. The following observations of a Division Bench of the Madras High Court in M.S.M.M. Meyappa Chettiar v. Income-tax Officer, Karaikudi :
It is needless to point out that the jurisdiction under the provision is limited to answering the questions referred. Only the question that arise out of the order of the Tribunal can come within the scope of Section 68.
It is therefore, clear that the appellate court can go into any question that arises out of the order of the Tribunal and not beyond that. Their lordships further quoted with approval the following observations of a Division Bench of the Madras High Court in M.S.M. M. Mayappa Chettiar's case(supra):
The assessee cannot, of course, raise the question, before the department or the Tribunal of the vires of any of the provisions of the Indian Income-tax Act, either on the ground that the legislature was not competent to enact the measure as on the ground that it offended the fundamental rights, guaranteed under the Constitution. The reason is simple, because neither the department nor the Tribunal can give relief to the assessee holding that the impugned provision is in any way bad in law. If such a contention were to be raised, it has necessarily to be ignored by the department and the Tribunal, though sometimes the Tribunal does refer to the question, if raised and gives the only answer which it can, namely, that that is not a matter within its competence to decide. We wish I to make it very clear that it is not the province of the department or even the statutory Tribunal, which is really the creation of the Statute to entertain any objection to a piece of legislation as being ultra vires or unconstitutional and that it would be beyond the jurisdiction of this Court functioning Under Section 66 of the Act, which, as stated already, is narrow in its scope and reach to consider and determine a question not properly within its sphere.
Their lordships, while agreeing with these observations of the Division Bench of the Madras High Court observed as under:
We agree with the said observation. There is, therefore, weighty authority for the proposition that a Tribunal which is a creature of a statute, cannot question the vires of the provisions under which it functions.
.....But an authority created by a Statute cannot question the vires of that Statute or any of the provisions thereof where- under it functions. It must act under the Act and not outside it.
14. It may be stated that their lordships of the Supreme Court while quoting with approval the observations of Derbyshire [C.J.]. who was one of the Judges who took part in Releigh Investment Co's case (1945)II, ITR-393), also quoted the observations of Mitter, J. in the following words:
Mitter, J. in the same decisions, adverting to the scope of the questions that can be raised by an assessee Under Section 30 of the Income Tax Act clearly stated the legal position thus:
He can object to the amount of his income as determined by the Income Tax Officer or to the amount of loss computed Under Section 24 or the amount of the tax, etc. He can also deny his liability to be assessed under the Act. That phrase to my mind, means that he can only urge before that Tribunal that provisions as they stand in the Act do not make him liable i.e. exempt his income or a part of his income from assessment. He cannot urge there that, though a provision of the Act makes his income or part thereof liable to be assessed, that provision is illegal, being ultra vires the Indian Legislature. The Appellate Assistant Commissioner also would not be competent to entertain or decide that question. On the principle that the scope of an appeal cannot be enlarged but must be limited to point which were open for adjudication by the Court or Tribunal of first instance, the Appellate Tribunal functioning under the Act to which an appeal is taken Under Section 33, would have no power to entertain the said question and deal with it in its order. This Court on a reference being made to it Under Section 66 cannot also deal with such a question as there ference most be limited to points arising out of the order passed by the appellate Tribunal.
It is, therefore, clear that the appellate court has a very limited jurisdiction to decide the matter, which relates to the right or wrongs of the dispute that are raised before the Tribunal or in the memo of appeal. It can, of course, hear and decide the questions about facts and law as they arise out of the provision of the relevant Act but the appellate court cannot travel beyond the aforesaid parameters.
15. Mr. R. Balia, the learned Counsel appearing for Rajasthan High Court drew our attention to a decision of the Delhi High Court in I.T. Commr., New-Delhi v. Edward Keventar Pvt. Ltd. (1990 Tax L.R.-1052), wherein the Division Bench of the Delhi High Court referred to Section 33(4) of the Income Tax Act, which provides that the Tribunal may after giving both the parties an opportunity of being heard, pass such orders thereon as it thinks fit. Interpreting these world, their lordships of the Division Bench held that though these words are expressive of the widest possible powers, their scope is restricted by the use of the word 'thereon', which limits the powers of the Tribunal to the subject-matter of the appeal. It was further held that as pointed out by the Supreme Court in Commissioner of Income Tax V. Ronick Sons , the Tribunal must exercise its powers only "in respect of matters that arise in the appeal and according to law". It cannot travel outside the scope of the appeal and adjudicate or give finding on question, which is not in dispute and which does not form the subject matter of the appeal before it. Even where, it is provided that certain new points which are not raised in the memo of appeal can be urged with the leave of the Court then too, it has been held that normally speaking such additional grounds can be urged only in relation to the subject-matter already appealed against and in regard to such grounds, the Tribunal has a discretion to grant or refuse permission and the grant of permission may also be express or implied. But, where an appellant seeks to bring in new items which had nothing to do with the subject-matter of the appeal as originally filled, it will be as if the appeal in this regard has been filed belatedly and the Tribunal can entertain them only after considering whether there are grounds to excuse the delay in filing the appeal.
16. Mr. Balia further drew our attention to a decision of their lordships of the Supreme Court in Shanker v. Krishna , wherein it has been observed:
That the right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior court and the power on the part of the former, to review decisions of the later.
Thus, the appellate jurisdiction is meant to redress the errors of the courts below.
17. At this stage, Mr. R.C. Yadav, the learned Counsel appearing for the Bar Association, Jaipur has contended that even if it is conceded that while exercising the appellate jurisdiction, the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case did not have the power to raise these questions in pending appeals then too Under Article 227 of the Constitution the High Court has power to raise such questions and answer them. We are afraid, we cannot agree with Mr. Yadav as far as this contention is concerned.
18. These questions did not relate to any error in the exercise of the jurisdiction by the Courts below. The learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case felt that the High Court and the State Govt. should frame certain Rules keeping in view the provisions of Sections 4, 5, 6, 21 and 23 of the Act and for that matter, the Central Government with the concurrence of the Chief Justice of India must frame Rules Under Section 22 of the Act. These questions/points have been nothing to do with the exercise of superintendence over the Family Courts Under Article 227 of the Constitution but they have a nexus with the defective functioning or inaction on. the part of the High Court and the State Govt. and, therefore, when there is no jurisdictional error apparent on the face of the record as regards the exercise of the powers by the learned Judges of the Family Courts and the blame lay some where else i.e. with the High Court or with the State Govt. in not framing the Rules for providing Counsellors to the Family Court; laying down terms and conditions of service of the Judges of the Family Courts and the Staff provided to them as also for the Counsellors to be provided to the Family Courts then those matters have no connection with the exercise of powers by this Court Under Article 227 of the Constitution and this point stands fully answered by this observation of their lordships of the Supreme Court in Shanker's case that two things which are required to constitute appellate jurisdiction are the, existence of the relation of superior and inferior court and the power on the part of the former to review decisions of the later. As stated above, these question did not arise out of the order of the learned Judges of the Family Courts and even they could not have been raised before the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case should not have taken upon themselves the task to frame certain questions and to answer them as regards the inactions of the State Govt. and the High Court in not framing the Rules Under Sections 4, 5, 6, 18, 21 and 23 of the Act, while sitting in an appeal. In this respect, we may place reliance on a decision of the Patna High Court in Gobind Pd. Sinha v. Kulwanti wherein it has been observed that the Courts are not at liberty to grant relief either not brought for in plaint of that does not flow naturally from grounds of claims stated in the plaint. It was further observed that the Court cannot make out a new case for a party. It is true that the Courts are bound to take into consideration all the rights' of the parties to the suit, both legal and equitable and give effect thereto by their decree as far as possible but the Courts are not at liberty to grant a relief either not sought for in the plaint or that does not naturally flow from the ground of claim as stated in the point.
19. The learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal's case have categorically recorded at page 22 of their judgment that the parties have surrendered to the jurisdiction of the Court and they have not raised any objection that the provisions of Sections 4, 5, and 6 of the Act have not been followed, as such the Family Court cannot function. As stated above, when these questions were not raised by the parties in their pleadings, they cannot be decided in these appeals.
20. In District Board v. Upper India Sugar Mills , the two Judges constituting a Division Bench of the Allahabad High Court held differing views about the scope of the appellate jurisdiction of a Court. In that case, the disputed question that arose for the decision of the Court is whether the appellate court can hear the entire case and re-decide it as it likes taking into consideration the facts of the case and the relevant law at it was in force, at the relevant time, i.e. when the case was decided by the trial court or whether they can take into consideration the change in law brought about before or at the time when the appeal was decided by the appellate court. In this question, Desai, J. speaking for the Court observed that it has got all the powers of a trial court but this does not mean that it becomes trial court and re-decides the matter in dispute. It can pass any order that the trial court could have passed, this only means that it can pass any order that could have been legally passed by the trial court on the date when it pronounced its judgment. On the other hand, Beg, J. speaking for the Court said that a survey of the entire provisions of the Code of Civil Procedure seems to show that the intention of the framers of the Code was to give the appellate court as far as possible powers analogous to that of the original court so as to enable the appellate court to have control over the case in the matter of affording relief according to law as it was obtaining at the time of the decision of the appeal. However, both the Judges of the Division Bench have held that the appellate Court's jurisdiction is co-terminus with that of the trial court. It, therefore, follows from this decision that the trial court can entertain all questions or disputes within the frame work of the Act. It can also decide the questions which may be raised as regards its own jurisdiction be entertain those disputes but the question relating to the constitution of the Court cannot be decided by the trial court and, therefore, that question cannot be entertained. In this case, we are firmly of the view that formulating and deciding the questions relating to the very constitution of the Family Courts was beyond the scope of the jurisdiction of the appellate court because, in this case, neither it is dispute was raised by the parties nor it arose out of the decision of the trial court viz., Family Court.
21. This conclusion is further fortified by a decision of their lordships of the Supreme Court in Praduman Kr. v. Virendra Goyal , wherein it has been held that Section 107(2) CPC is based on the general principle that an appellate Court has the same powers and duties as are conferred and imposed by the Code on the original court and can do, while the appeal is pending, what the original court could have done, while the suit was pending. Further, we may quote with approval cartain observations of the Punjab & Haryana High Court in 1973 (75) Pun. L.R. (O)-266 that the jurisdiction of the appellate to court is restricted to the matter appealed against. It cannot pases orders in any other matter.
22. In the case of the Commissioner of Income-tax, Kerala v. M/s Manick Sons , in para 5 of the judgment, their lordships of the Supreme Court have observed:
That an assessment which has become final may be reopened in appeal by the Appellate Assistant Commissioner or the Tribunal or in revision by the Commissioner, or under an order of rectification of mistake, or pursuant to a notice or reassessment. The Tribunal hearing an appeal may give directions for reopening assessment of the year to which the appeal relates: it cannot give any directions to reassess in case of a period not covered by that year.
Thus, the Tribunal being appellate authority can only to go into questions that have been raised before the original court. It cannot travel beyond them.
23. Our attention has also been drawn by Mr. J.P. Joshi, the learned Additional Advocate General to a single Bench decision of the Patna High Court in Dhuri Sah v. Kishun Prasad Sah and Ors. . In that case, the suit was filed by the Vendee for possession of the property sold and mesne profits. It was decreed on appeal conditionally on payment of balance of purchase money by Vendee. In appeal, the Vendor claimed interest on balance. It was held that the claim for interest was neither set forth in cross objections nor any court- fee was paid on the amount of interest and hence, the claim for interest cannot be agitated at the hearing of the appeal.
24. We can understand the anxiety of the learned Judges of the Division Bench of this Court in Dr. Suresh Kumar Bakliwal case that the State Govt. and the High Court have not acted with promptitude as regards framing of the Rules in accordance with the provisions of Sections 4, 5, 6, 14, 21 and 23 of the Act and, therefore they should have been woken up from their deep slumber and should have been told about their responsibility to frame the Rules. But, we entertain serious reservations about the mode and manner in which that anxiety has been ventilated and focused. It would have been a different matter, had a writ petition been entertained on these points/questions and a writ of mandamus could have been issued to the State Govt. and the High Court to fulfil their obligations under the Act as regards framing of the Rules. Unfortunately, all these points were not raised by the petitioner before the Family Courts and they did not form part of the appeals that were filed before the High Court and, therefore, the Hon'ble Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case as not required to raised all these points in the pending appeals and to answer them and that too, without deciding the appeals. When the parties have categorically succumbed to the jurisdiction of the Court and have not raised any objection that the Family Courts have been improperly constituted because provisions of Sections 4, 5, and 6 of the Act have not been followed then framing and deciding the questions by the Hon'ble Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case can safely be categorised as traveling beyond the brief which was available to the appellate court under the law and amount to erroneous opinions beyond the parameters fixed by the law for functioning of an appellate courts. This entire exercise was uncalled for and was merely academic in nature because by framing and answering these questions, the decisions that have been rendered by the Family Courts have not been hold to be illegal, rather they have been held to be legal and valid and the persons holding the posts of Judges of Family Courts have not been held to be usurpers of the Office. Even the appeals have also not been decided and they are still pending and have been ordered to be listed for hearing. Thus, these findings of the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case have no effect even on the pending appeals, which will be decided by the Court on merits as & when they are heard. Thus, the decision rendered by the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case has no implication whatsoever on the pending appeals that are to be heard and decided and, therefore, it is in this background that we have termed the entire exercise was academic and uncalled for. Actually, the Hon'ble Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case have travelled beyond the brief of an appellate court. Thus, we are firmly of the view that the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case were not authorised to formulate and answer the questions which they have raised in these appeals and answered them without finally deciding the appeals pending before them and that too in the light of the fact that the parties have not raised any objection about the non- compliance of the provisions of Sections 4, 5, and 6 of the Act and have succumbed to the jurisdiction of the Family Courts.
25. Now, we propose to deal with questions No. 2, 3 and 4 simultaneously. They read as follows:
(2) Whether functioning of the Family Courts can be brought to a standstill simply because certain Rules have not been framed either by the High Court or by the State Govt. or Central Govt. Under Sections 21, 22 and 23 read with Sections 4, 5, and 6 and of the Family Courts Act, 1984? or in the alternative: whether non-framing of the Rules Under Sections 21, 22 and 23 or for that matter Under Section 14 of the Family Courts Act cut at the root of the functioning of the Family Courts and whether the Family Courts at Jaipur, Jodhpur and Ajmer which are functioning for the last number of years should not be allowed to function simply because service conditions of the persons who are employed in these Courts as Judges, Officers and Counsellors have not been made part of the Rules, which have to be framed by the High Court or the State Govt.?
(3) Whether the provisions of Section 6 of the Family Courts Act, 1984 are mandatory in character or they are only directory in nature?
(4) Whether appointment of Counsellors, Association of Social institutions and Organisation meant for providing assistance to the Family Courts for their better functioning is a condition precedent for the proper functioning of the Court or whether they are only enabling provisions, the compliance of which is not mandatory but directory?
26. The Family Courts Act, 1984 was enacted vide Act No. 66 of 1984. The object of the Act was to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith. Before this Act came into force, certain amendments were made in the Criminal Procedure Code, 1973 and certain changes were made in the C.P.C. in the year 1976 as regards conciliation and speedy trial of the family disputes, but when this object was not achieved, this special Act was brought into being by the Parliament of our country so that speedy settlement of disputes relating to marriage and family affairs and the matters connected therewith may be secured. Thus, this is the precise object for which this special Act has been brought into being.
27. Section 1 deals with short title, extent and commencement. Section 2 lays down definitions and Section 3 deals with establishment of Family Courts and it provides that for the purpose of exercising the Jurisdiction and powere conferred on a Family Court by this Act the State Govt. after consultation with the High Court and by notification (a) shall as soon as maybe after the commencement of this Act, establish for every area in the State comprising a city or town whose population exceeds one million, Family Court; and (b) may establish Family Courts for such other areas in the State as it may deem necessary. Section 3(2) provides that the State Govt. shall, after consultation with the High Court, specify, by notification, the local limits of the areas to which the jurisdiction of a Family Court shall extend and may, at any time, increase, reduce or alter such limits.
28. In this case, Family Courts at Jaipur, Jodhpur and Ajmer have been established vide Govt. Notification Nos. P. 2(8) Judl./80 dated 26-12-1985 and No. P.1(12) Jud./88 dated 6.7.1988 with the jurisdiction of revenue districts of Jaipur. Jodhpur, and Ajmer respectively. These courts have been established Under Section 3 of the Act after consultation with the High Court and, therefore, it can safely be said that these three Family Courts at Jaipur, Jodhpur and Ajmer have been established in accordance with the provisions of Section 3 of the Act.
29. Section 8 of the Act provides that where a Family Court has been established for any area, no district Court or any subordinate civil court referred in Sub-section (1) of Section 7 shall in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that Sub-section; no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 and every suit or proceeding of the nature referred to in the Explanation to Sub-section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973,-(1) which is pending immediately before the establishment of such Family Court before any district court or subordinate court referred to in that Sub-section or as the case may be, before any Magistrate under the said Code; and (ii) which would have been required to be instituted or taken before or by such Family Court, if before the date on which such suit or proceeding was instituted or taken, this Act had com,; into force and such Family Court had been established; shall stand transferred to such Family Court on the date on which it is established. Thus, after establishment of Family Courts at Jaipur, Jodhpur and Ajmer, the jurisdiction of the other courts of the area to deal with the settlement of disputes relating to marriage and family affairs and the matters connected therewith is excluded Under Section 8 of the Act and, therefore, if the functioning of these courts is brought to a stand-still for non-framing of the Rules then the cases pending before these Courts will remain where they are and no further progress will be achieved in these matters because they cannot be retransferred to other courts as their jurisdiction is ousted. These cases can only be decided by the Judges of the Family Courts established Under Section 3 of the Act.
30. Now, we proceed to examine the import of Section 4 of the Act, which relates to the appointment of Judges. Section 4(1) of the Act provides that the State Govt. may, with the concurrence of the High Court, appoint one or more persons to be the Judge or Judges of a Family Court. Here, we may point out that the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case, after considering the provisions of Article 235 of the Constitution as also the provisions of Civil Courts Ordinance read with Section 7 of the Family Courts Act, 1984 and the other relevant law on the point came to the conclusion that the Family Court is a Court subordinate to the High Court and, therefore, posting of Judges to these courts is under the purview of the High Court. Section 4(2) deals with posting of additional Judges. There is no separate controversy about posting of additional Judges. Sub-sections (3) and (4) of Section 4 of the Act provides for qualifications of the persons who can be appointed as Judges of the Family Courts. Section 4(3) of the Act lays down that a person shall not be qualified for appointment as a Judge unless he has for at least seven years held a Judicial Office in India or the Office of a member of a Tribunal or any post under the Union or a State requiring special knowledge of law; or has for at least 7 years been as advocate of a High Court or of two or more such Courts in succession; or possess such other qualifications as the Central Govt. may, with the concurrence of the Chief Justice of India prescribe. It is nobody's case that the Judges who have been posted as Judges of the Family Courts do not have 7 years experience as Judicial Officers. At this stage, Mr. H.N. Calla, the learned Counsel appearing for the Rajasthan High Court Advocates' Association, Jodhpur has submitted that Judicial Officers alone are not entitled to be posted as Judges of the Family Courts. According to him, the Advocates should also be posted as Judges of the Family Courts Under Section 4(3)(b) of the Act. That can only be done when the Rules are framed and certain procedures for selection to the post of Judge, Family Court from amongst the Advocates is prescribed. Till that is done, the Judicial Officers having seven years experience are being posted as an interim measure and there is no illegality about the appointments of Judicial Officers as Judges of the Family Courts because the law permits for their appointment as Judges of the Family Courts. Sub-section (4) of Section 4 of the Act lays down that in selecting persons for appointment as Judges, (a) every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected; and; (b) preferance shall be given to women. It is nobody's case that the persons who are posted as Judges of the Family Courts are not committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and are not qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling. Actually, in other areas, for which, Family Courts have not been constituted as yet, the District Judges function as Judges in disputed Family matters and they are very much deciding the disputes relating to marriage family affairs and the matters connected theirwith, and therefore, they have requisite expertise to promote the settlement of disputes by conciliation. Thus, then there is no allegation that been complied with in selection of Family Courts Judge, then no infirmity can be pointed out with regard to the appointment of Family Courts Judges. Of course, preference has to be given to woman. Presently, no woman is working as District Judge. Moreover, till the Rules are made, suitable woman candidate cannot be selected as Judges of the Family Court.
31. Sub-section (5) of Section 4 of the Act is only an enabling provision, which says that no person shall be appointed as, or hold the office of, a Judge of the Family Court after he has attained the age of sixty-two years. The provisions of Section 4(5) of the Act should be taken care of when the Rules are framed. Presently, the District Judges who are posted as Judges of the Family Courts are retired at the age of 58 years and, therefore, it cannot be said that the provisione of Section 4(5) of the Act have not been complied with. Sub-section (6) of Section 4 of the Act is also an enacting provision, which says that the salary or honorarium and other allowances payable to, and the other terms and conditions of service of, a Judge shall be such as the State Govt. may, in consultation with the High Court prescribe. Thus, it is the duty of the State Govt. to make consultation with the High Court and to decide the salary or honorarium and other allowances payable to and the other terms- and conditions of service of the Judges of the Family Courts. If that is not done, it does not cut at the root of the functioning of the Family Courts. Actually, this is the matter which relates to the Officers who are posted as Judges of the Family Courts and the State Govt. and the High Court. If anybody has any ground about it, it is the Officer who is posted as a Judge of the Family Court and none-else. No lis pending before the Family Courts will become redundant for hearing simply because the salary or honorarium and other allowances payable to and the other terms and conditions of services of the Judges of the Family Courts have not been determined by the State Govt. in consultation with the High Court.
32. It is true that the State Govt. should frame Rules prescribing salary and honorarium and other allowances payable to and the other terms and conditions of services of the Judges of the Family Courts but even in absence of the Rules the salary or honorarium and other allowances payable to and the other terms and conditions of the Services of the Judges of the Family Courts can be regulated by administrative instructions or they may be governed by the Rules of their perent cadre but that neither makes their appointments as Judges of the Family Courts illegal nor their functioning as Judges of the Family Courts incompetent. Such a procedure can be adopted by taking recourse to Article 162 of the Constitution. We shall deal with this aspect of the matter a little later i.e. as regards the application of Article 162 of the Constitution but suffice it to say that non-framing of the Rules Under Section 4(6) of the Act will neither render the constitution of the Court illegal nor non-prescription of the Service conditions or non-fixing of salary or honorarium and other allowances of the Family Court Judges will render the functioning of the Family Courts illegal, redundent and nugatory. Thus, the provisions of Section 4 of the Act are clearly directory and not mandatory.
33. Now, we take up the provisions of Sections 5 and 6 of the Act. They read as under:
Section 5. The State Government may, in consultation with the High Court, provide, by rules, for the association in such manner and for such purposes and subject to such conditions as may be specified in the Rules, with a Family Court of
(a) institutions or organisations engaged In social welfere or the representatives there of;
(b) persons professionally engaged in promoting the welfare of the family;
(c) persons working in the field of social welfare; and
(d) any other person whose association with a Family Court would enable it to exercise its jurisdiction more effectively in accordance with the purposes of this Act.
Section 6(1) The State Govt. shall, in consultation with the High Court, determine the number and categories of counsellors, officers and other employees required to assist a Family Court in the discharge of its functions and provide the Family Court with such counsellors, officers and other employees as it may think fit.
(2) The terms and conditions of association of the counsellors and the terms and conditions of service of the Officers and other employees referred to in Sub-section (1), shall be such as may be specified rules made by the State Govt.
Section 5 of the Act authorises the State Govt. to make consultation with the High Court and to provide rules for the association in such manner and for such purposes and subject to such conditions as may be specified in the Rules with a Family Court of-(a) institutions or organisation engaged in social welfare, or the representatives thereof; (b) persons professionally engaged in promoting the welfare of the family; (c) persons working in the field of social welfare; and (d) any other person whose association with a family court would enable it to exercise its jurisdiction effectively in accordance with the purposes of this Act. Thus, the very purposes of enacting this section was that the Family Courts will function more effectively. While enacting this section, it was not the intention of the legislature that without providing, by Rules, for the association with a Family Court of the persons and associations mentioned in clauses (a) to (d) of Section 5 of the Act it will render the functioning of the Court ineffective. It only provides that the State Govt. may in consultation with the High Court provide by Rules for association of such persons in such manner and for such purpose and subject to such conditions as may be specified in the Rules with a Family Court for more effective functioning. It does not say that if the association of the persons mentioned in clauses (a) to (g) of Section 5 of the Act with a Family Court can be permitted in a prescribed manner only when the Rules are framed by the State Govt. in consultation with the High Court. The provisions of Section 5 of the Act are enabling provisions and they are directory in nature and not mandatory. The use of word 'may' and the further use of words 'in such manner and for such purposes and subject to such conditions as may be specified in the Rules' clearly indicate that the provisions of this section are only directory in nature and not mandatory. As stated above, while enacting the provisions of this section, the intention of the legislature was to render assistance to the Family Courts for more effective functioning. It does not say that if the association of the persons mentioned in clauses (a) to (d) of Section 5 of the Act with a Family Court are not provided then the constitution of the Family Courts will be jeopardised in any way or its functioning will be rendered illegal. When we examine the scheme of the Act and specially the provisions of Section 10 read with Section 12 of the Act, it becomes absolutely clear that even in a sense of such Rules, the Family Courts are not debarred from taking assistance of persons mentioned in clauses (a) to (d) of Section 5 of the Act for its effective functioning. Even in absence of Rules such powers have been vested in the Judges of the Family Courts to take assistance from suitable persons or institutions for deciding the disputes pending before them for their proper, just and effective functioning.
34. Section 6(1) of the Act provides that the State Govt. shall in consultation with the High Court determine the number and categories of counsellors, Officers and other employees required to assist a Family Court in the discharge of its functions and provide the. Family Court with such Counsellors Officers and other employees as it may think fit. Section 6(2) of the Act further provides that the terms and conditions of association of the counsellors and the terms and conditions of service of the Officers and other employees, referred to in Sub-section (1) shall be such as may be specified by rules made by the State Govt. The provisions of Section 6 of the Act although starts with the word 'shall' is not mandatory in character. We are not ready to accede to the submissions even for a moment that if number of counsellors and number of Officers and employees are fixed by the State Govt. to assist the Family Courts and if one of them is absent for certain reasons, the Family Courts will not be able to function and their functioning would be rendered illegal. The State Govt. in consultation with the High Court can fix and provide number of Counsellors Officers and employees to render assistance to the Family Courts as per Section 6(1) of the Act, as it may think fit. Thus, the use of words 'as it may think fit' clearly makes this provision directory and not mandatory. It is true that the State Govt. must frame Rules about it but till the Rules are framed simply because the Counsellors are not provided and number of Officers and employees are not fixed by the Rules or the terms and conditions of association of Counsellors and the terms and conditions of service of Officers and other employees are not determined by framing the Rules, it will not mean that the Family Courts will not be able to function. Even in absence of the Rules, the Officers and employees can be provided to the Family Courts by an executive order by exercising powers Under Article 162 of the Constitution and sofaras the Counsellors are concerned, their services can be availed by the Family Courts Under Section 12 of the Act. It is therefore clear from the aforesaid discussion that simply because the Rules have not been framed Under Section 6 of the Act, it does not mean that the constitution of the Family Courts will become illegal and their functioning would be rendered illegal, and unlawful for non-compliance of the provisions of Section 6 of the Act. The Counsellors, Officers and employees are the persons who are required to assist the Family Courts. It is the primary duty of the Judges of the Family Courts to hear and decide the cases. The Counsellors, Officers and employees only render assistance to him and their absence neither makes the constitution of the Family Courts illegal nor they become incapable of functioning on account of the fact that the Rules have not been framed Under Section 6 of the Act by the State Govt. in consultation with the High Court. We have already referred to the provisions of Section 7 of the Act while dealing with the fact whether the Family Court is a Court subordinate to the High Court. Section 8 relates to ouster of the jurisdiction of all other Courts as the Family Courts are established under this Act.
35. Chapter IV of the Act contains 10 sections and it starts from Section 9 to Section 18. Sections 17 and 18 of the Act deals with Judgment and execution of decree and orders and have no relevance to the case on hand. Section 9 of the Act provides that in the first instance, the Family Court will assist and persue the parties in arriving at a settlement by conciliation and if there remains no possibility of mutual settlement between the parties, then the Court will decide the matter according to law. Although, Chapter IX of the Criminal Procedure Code, 1973 has been made applicable to these proceedings but that is subject to the other provisions of this Act and the Rules that may be made. Sub-section (3) of Section 10 of the Act further provide that nothing in Sub-section (1) or Sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other. This is an enabling provision, which authorises the Judges of the Family Courts to take assistance of association, institutions, or organisations or persons engaged in social welfare and in promoting the welfare of the family. It thus authorises the Judges of the Family Courts to take assistance of Counsellors and others by laying down their own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at truth of the facts alleged by one party and denied by the other. Section 11 of the Act authorises the Judges of the Family Courts to take proceedings in Camera. Section 12 of the Act provides for assistance of Medical and welfare experts, which includes all types of experts mentioned in Sections 5 and 6 of the Act. Section 13 deals with the right to a legal representation. Section 14 of the Act lays down that a Family Court may receive as evidence any report, statement, documents, information or matter that may in its opinion assist it to deal effectively with a dispute whether or not the same would be otherwise relevant or admission under the Indian Evidence Act, 1872. Thus, the Family Courts may obtain reports or informations from the persons described in Sections 5 and 6 of the Act. Thus, the provisions of the Act are so elastic that ample elbow space has been given to the Judges of the Family Courts to arrive at correct conclusions in the cases pending before them and the absence of framing of formal Rules Under Sections 5 and 6 of the Act will not adversely effect the functioning of the Family Courts otherwise. The Family Courts can devise their own procedure and can also obtain assistance of associations of persons or institutions Under Sections 10 and 12 of the Act and even for that matter Under Section 18 of the Act, they may obtain reports or informations from the persons described in Sections 5 and 6 of the Act. Chapter V of the Act contains Section 19, which lays down right to Appeal.
36. Chapter VI of the Act contains Sections 20 to 23 of the Act. Section 20 of the Act lays down that the provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Thus, the provisions of Family Courts Act, 1984 have overriding effect of all other Acts and the Rules. Section 21 of the Act deals with power of the High Court to make the Rules and Section 22 of the Act relates to the powers of the Central Govt. to make Rules. Section 23 of the Act provides for powers of the State Govt. to make Rules. It reads as under:
Section 23(1) The State Govt. may, after consultation with the High Court, by notification, make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of Sub-section (1), such rules may provide for all or any of the following matters, namely:
(a) the salary or honorarium and other allowances payable to and the other terms and conditions of Judges under Sub-section (6) of Section 4;
(b) the terms and conditions of association of counsellors and the terms and conditions of the officers and other employees referred to in Section 6;
(c) payment of fees and expenses (including travelling expenses) of medical and other experts, and other persons referred to in Section 12 out of the revenues of the State Govt. and the scales of such fees and expenses;
(d) payment of fees and expenses to legal practitioners appointed Under Section 13, as amicus curiae out of the revenues of the State Govt. and the scales of such fees and expenses;
(e) any other matter which is required to be, or may be, prescribed or provided for by the Rules.
(3) Every rules made by a State Govt. under this Act shall be laid as soon as may be after it is made, before the State Legislature.
It is true that no Rules have been framed either by the State Govt. or by the High Court and, therefore, the anxiety of the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case was quite justified that they must be woken up from their deap slumbers and must be told to frame the Rules and so, the Division Bench of this Court had issued directions to the State Govt. and the High Court to frame the Rules within a period of two months. But that does not mean that if the Rules have not been framed, the constitution of the Family Courts or their functioning can be termed or categorised as illegal and the working of these Courts be brought to a halt. In this respect, reliance is placed on a decision of their lordships of the Supreme Court in Ramesh Prasad v. State of Bihar AIR 1978 or a post is created.... of rule making is a protracted and.......one involving consultation with various authorities and compliance with manifold formalities. The exigencies of administrative at times require immediate creation of service of posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments. In such like situations, the authorities concerned, would have the power to appoint or terminate administrative personnel under the general power of administration vested in them. In the absence of Rules, qualifications for a post can validly be laid down in the self same executive order creating the service or post and filling it up according to these qualifications.
Their lordships of the Supreme Court in Bishambar Dayal Chandra Mohan V. State of U.P. have held:
that if there is no enactment covering a particular aspect certainly, the Govt. can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a stand-still.
We may also place reliance on a decision of their lordships of the Supreme Court in Sant Ram v. State of Rajasthan , wherein it was observed:
that we proceed to consider the next contention of Mr. N.C. Chatterjee that in the absence of any statutory rules governing promotions to selection grade posts, the Govt. cannot issue administrative instructions and such administrative instructions cannot impose any restrictions not found in the Rules already framed. We are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade Officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf, the Govt. cannot issue administrative instructions regarding the principle to be followed in promotions of the Officers concerned to selection grade posts. It is true that Govt. cannot amend or supersede statutory Rules by administrative instructions, but if the Rules are silent on any particular point, Govt. can fill up the gaps and supplement the rules and issue instructions not to inconsistent with the Rules already framed.
Reliance can also be placed on a decision of their lordships of the Supreme Court in B.N. Nagarajan v. State of Mysore , wherein it was pointed out that it is not obligatory under the proviso to Article 309 of the Constitution....
constituted or a post created or filled and secondly, the State Govt. has executive power, in relation to all matters with respect to which the legislature of the State has power to make laws.
37. The same view has been expressed by their lordships of the Supreme Court in T. Cajee v. U. Jormonik Siem , wherein it has been observed:
that the Constitution could not have intended that all administration in the autonomous districts should come to a stop till the Governor made regulations under para 19(1)(b) or till the District Council passed laws under para 3(1)(g).
Mr. J.P. Joshi, the learned Additional Advocate General placed reliance on a decision of their lordships of the Supreme Court in Dargah Committee v. State of Rajasthan , wherein it has been observed:
that it does appear that rules have not been framed under the Regulation and so no form has been prescribed for making a demand Under Section 222(1). Therefore, the argument is that unless the rules are framed and the form of notice is prescribed for making a demand Under Section 222(1), no demand can be said to have been made in the manner prescribed by rules and so, an application cannot be made Under Section 234. There are two obvious ensures to this contention. The first answer is that if the revisional application made by the appellant before the High Court was incompetent, this question could not have been urged before the High Court because it was part of the merits of the case and so cannot be agitated before us either. As soon as it is held, that the Magistrate was not an inferior criminal court, the revisional application filed by the appellant before the High Court must be deemed to be incompetent and rejected on that preliminary ground alone. Besides, on the merits we see no substance in the argument. If the rules are not prescribed then all that can be said is that there is no form prescribed for issusing a demand notice; that does not mean that the statutory power conferred on the Committee by Section 222(1) to make a demand is unenforceable. As a result of the notice served by respondent 2 against the appellant respondent 2 was entitled to make the necessary repairs at its cost and make a demand for reimbursement of the said cost.....
Thus, the non-framing of the Rules cannot set at naught the object of the Act. The power under the Act is not oblitreated simply because the Rules have not been framed.
38. A somewhat similar situation arose before their lordships of the Supreme Court in S.P Sampath Kumar V. Union of India . That case pertains to the Administrative Tribunals Act, 1985, which excluded the jurisdiction of the High Courts Under Articles 226 and 227 of the Constitution of judicial review in service matters. However, the jurisdiction of the Supreme Court Under Articles 32 and 136 of the Constitution was kept open. Their lordships of the Supreme Court have held that the Act could not be rendered unconstitutional if the amendments in the provisions thereof (Sections 4, 6 and 8) as suggested by Supreme Court, are carried out within a reasonable period (March 31, 1987) so as to make the Administrative Tribunal constituted under it an equally efficacious and effective alternative to the High Court. Thus, it is clear that the non-framing of the Rules do not render the provisions of the Act nugatory.
39. Mr. R. Balia, the learned Counsel appearing for the Rajasthan High Court drew our attention to a decision of their lordships of the Supreme Court in Mys. S.R.I. Corporation v. Gopinath , wherein it was observed:
that the conjoint effect of Sections 14(3)(b), 34 and 45(2) (c) is that the appointment of Officers and servants and their conditions of service must conform to the directions if any, given by the State Govt. Under Section 34 and the regulations, if any, framed Under Section 45 (2) (c). But until such regulations are framed or directions are given, the Corporation may appoint such Officers or servants as may be necessary for the efficient performance of its duties on such terms and conditions as it thinks fit. There is necessarily a time-lag between the formation of the Corporation and the framing of regulations Under Section 45 (2) (c). During the intervening period, the Corporation must carry on the administration of its affairs with the help of officers and servants. In the absence of clear words, it is difficult to impute to the legislature the intention that the Corporation would have no power to appoint officers and servants and fix the conditions of service unless the regulations Under Section 45(2)(c) are framed.
It was, therefore, contended by Mr. J.P. Joshi, the learned Additional Advocate General and Mr. R. Balia, the learned Counsel appearing for the Rajasthan High Court that there is certainly a time-lag between the formation/establishment of the Family Courts and the framing of the Rulse Under Sections 4, 5, and 6 readwith Sections 21 and 23 of the act and when the Family Courts have been established and the jurisdiction of other courts of those areas have been ousted than the functioning of the family Courts cannot be brought to a stand-still because tie Rules Under Sections 4, 5, and 6 readwith Sections 21, 22 and 23 of the Act have not been framed.
40. Mr. R. Balia, the learned Counsel aprearing for the Rajasthan High Court further drew our attention to a Single Bench decision of the Patna High Court in Rajendra Singh v. Bahadur Singh , wherein it was held as follows:
that an enabling provision conferring power to give effect to the will of the legislature cannot be called in aid to defeat the object of the legislature. In Sections 13 and 14 of the Act, the Legislature has made the legislative intent clear. The provisions provide for a special procedure governing suits for a particular nature. May be that the State Govt. has not prescribed the form of summons to be perused to a defendant in a suit falling under these provisions of law. This omission on the part of the Bihar State cannot be legitimately construed as if repealing or holding in abeyance the operation of those provisions of law as if by a side wind.
The contention of Mr. Balia, the learned Counsel appearing for the Rajasthan High Court is that simply because there are some enabling provisions in the Act for framing of the Rules, it does not mean that the State Govt. or any other authority can give a go-bye to the other relevant provisions of the Act by a side wind. It is one thing that the Rules have not been framed for a sufficiently long time and therefore, direction should be issued to the State Govt. and the High Court to frame the Rules within a particular period of time but it is quite another, that for non-framing of the Rules, the working of the Family Courts has been brought to a stand-still. These Courts can effectively function by providing for certain things by executive orders till the Rules are not framed. When these Courts have been constituted the Family Courts do not suffer from any infirmity, then there is no reason why the functioning of these Family Courts which were successfully functioning in this State so far be brought to a stand still simply because the Rules have not been framed Under Sections 4, 5, and 6 read with Sections 21, 22 and 23 of the Act.
41. Mr. M.R. Singhvi, the learned Counsel appearing for the Intervenor Smt. Vijay Kaur has submitted that if the Rules have not been framed, the Tribunal can not function. In this respect, he drew our attention to a decision of their lordships of the Supreme Court in S. Shamshuddin v. State of Karnataka . That was a case where by enacting the provisions of Section 63 (7) of the Motor Vehicles Act, 1939, the State Transport Authority was permitted to grant permit valid for the whole of India which out for the provision contained in Sub-section (7) of Section 63, it was not entitled to grant and that this power to grant was subject to the condition that the Central Govt. will specify the quota. It was in this context that it was held that the quota is not severable from the power to grant the permit. In that case, the Central Govt. fixed a flat quota of 50 permit for each State and that was held to be against the provisions of the law, because in fixing it, the tourist requirement of a particuler State was not taken into consideration, which was a guiding factor. This authority has no application to the facts of the present case.
42. Our attention was next drawn to a Supreme Court decision in Visakhapatnam Municipality v. K Nukaraju , wherin a provision existed in the A.P. Municipalities Act, 1965 for levy of property tax in that municipal area. Certain areas were added to that Municipality but while adding those areas, no notification was issued that property tax shall also liable to be paid by the residents of that newly added area. Their lordships of the Supreme Court held that the imposition of property tax on the residents of the newly added areas without following the procedure prescribed by sections 81, 83 was illegal. Actually there was particular procedure which was prescribed by the Act itself for making property tax applicable to some new areas to be added in that Municipality. When that particular procedure prescribed by the Act was not followed, it was held that the property tax could not be levied to the newly added areas. This authority too has no application to the facts of the present case. Here, no particular procedure has been provided in the Act. There are some enabling provisions, which provide for framing of the Rules. When the Rules have not been framed, the executive instructions issued by the State Govt. Under Article 162 of the Constitution will have the effect of Law because the executive power of the State Executive is co-extensive with that of the State Legislature. It follows that the State Executive may make Rules regulating any matter within the legislative conference of the State Legislature, without prior legislative authority except where a law is required because the Rules so framed would affect a fundamental right. Thus, the State Govt. has ample power to issue administrative instructions till the Rules are framed by it Under Sections 4, 5, and 6 read with Sections 21, 22 and 23 of the Act.
43. Our attention has also be drawn to a decision of their lordships of the Supreme Court in Mohd. Hussain v. State of Bombay , where a power was given to the Market Committee to levy and collect the market fee on the agricultural produce brought and said in the market are at such rates as may no specified in the byelaws. The Rules nowhere prescribed the maximum within which the bye-laws will prescribe fees. In that context, it was held that it is not in dispute in this case that maximum has not been specified in any rule and Rule 53 itself leaves it open to the market committee to prescribe such rates as may be specified in the bye-laws. It was further held that it would not be possible for the market committee to prescribe any fees Under Section 11 through bye-laws till the State Govt. prescribes the maximum Under Section 11. That was a fiscal provision of law which authorises the State Govt. to prescribes the maximum fee. When the maximum fee was not prescribed by the State Govt., the levy of fee was hold as unconstitutional. This authority has no application to the facts of the present case.
44. Thus, so far as question No. 2 is concerned, we are firmly of the view that the functioning of the Family Courts cannot be brought to a stand-still simply because certain rules have not been framed either by the State Govt. with the concurrence of the High Court or by the Central Govt. with the concurrence of the Chief Justice of India Under Sections 4, 5, and 6 read with Sections 21, 22 and 23 of the Act. As regards question No. 3, we are firmly of the view that the provisions of Section 6 of the Act are not mandatory in character but they are only directory in nature. Sofar as question No. 4 is concerned, our answer is that appointments of Counsellors Under Section 6 of the Act as also the making of a provision for the association with a Family Court or institutions or organisations or the persons mentioned in clauses (a) to (d) of Section 5 of the Act is not a condition precedent for the proper functioning of the Family Courts. The provisions of Sections 5 and 6 of the Act are only enabling provisions. However, we share the anxiety of the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case and are firmly of the authority for more effective functioning of the Family Courts, we inclined to direct the State Govt. and the High Court to frame the Rules Under Sections 4, 5, and 6 read with Sections 21 and 23 of the Act positively within a period of two months from today.
45. Now, we deal with the question No. 5, which reads as followe:
Whether in view of Rule. 14 to 20 read with Rule 32(2) of the Rules of High Court of Judicature for Rajasthan, 1952, the observations of Hon'ble D.L. Mahts, J. in Dr. Suresh Kumar Bakliwal case (supra) as regards the powers of Hon'ble the Chief Justice regarding transfer and posting of Judicial Officers deserve to be sustained or they deserve to be expunged?
Hon'ble D.L. Mehta, J. in Dr. Suresh Kumar Bakliwal case has made certain observations as regards powers of the Chief Justice regarding transfer and posting of Judicial Officers in the following words:
We are of the view that the posting include postings by transfer. It is not only the privilege of the Chief Justice, but, it is the privilege of the High Court. The High Court may constitute a Committee and delegate its powers is a different matter, but, the powers of the transfers cannot be exercised by the Hon'ble Chief Justice alone as the power to post a particular Judge is the privilege of the High Court and not of the Chief Justice.
In this respect, we can only say that it appears that the provisions of the Rules of High Court of Judicature for Rajasthan, 1952 have not been brought to the notice of the learned Judge when he made the aforesaid observations.
46. Mr. R. Balia, the learned Counsel appearing for the Rajasthan High Court has contended that as regards question No. 5, the judgment of the learned Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case containing the aforesaid observations is per incurion and it has to be ignored. On the other hand, Mr. M.R. Singhvi, the learned Counsel appearing for the Intervenor Smt. Vijay Kaur has submitted that although one of the Hon'ble Judges of the Division Bench in Dr. Suresh Kumar Bakliwal case (G.S. Singhvi, J) has not chosen to give a finding as regards powers of Hon'ble the Chief Justice but that does not mean that the observations of Hon'ble Mehta, J. do not constitute the Judgment. Section 19(5) of the Act provides that an appeal preferred under Sub-section (1) shall be heard by a Bench consisting of two or more Judges, Unless a decision is rendered by two Judges with a concurrent finding, it cannot be held that that matter stands decided in appeal as per the provisions of Section 19(5) of the Act. It may be stated here that in his conclusions, Hon'ble G.S. Singhvi, J. has observed that he does not want to express any opinion about the views expressed by Hon'ble Mehta, J. on the question of power of the Hon'ble Chief Justice regarding the posting and transfer of Judicial Officers. Thus Hon'ble Singhvi, J. has also framed them as views of Hon'ble Mehta, J.
47. Be that as it may, the registry of the Rajasthan High Court has been directed to take note of these observations in future. So much so, that the appointments of the Judges of the Family Courts have been declared to be illegal by Hon'ble Mehta, J and it is in this context that these observations have to be taken note of and dealt with so that Hon'ble the Chief Justice or the Registry of the High Court may be able to function effectively.
48. Mr. M.R. Singhvi, the learned Counsel appearing for the Intervenor has contended that the words 'High Court' used in Section 4(1) of the Act means Full Court. That is what has been provided in Article 216 of the Constitution. Article 215 of the Constitution provides that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. Article 214 provides that there shall be a High Court for each State and Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. He has, therefore, submitted that the High Court means a Court consisting of Chief Justice and all other Judges of the High Court. According to Mr. Singhvi, the control over the subordinate judiciary is vested in the High Court Under Article 235 of the Constitution. Article 233(1) of the Constitution, provides that appointment of persons to be and the posting and promotion of district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising Jurisdiction hi relation to such State. Article 235 further provides that the control over district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court but nothing in this Article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. He drew our attention to a number of authorities of this Court, in which, it has been held that the High Court means the High Court of Judicature including of Chief Justice and all other Judges and not the Chief Justice alone.
49. Initially, Mr. Singhvi referred to a decision of this Court in Prem Nath v. The State of Rajasthan 1965 RLW 14. wherein it has been held that Article 309 contains a general provision empowering the Governor of a State to make rules regulating the recruitment and the conditions of service of persons appointed to public services and posts in connection with the affairs of any State. These general provisions are however, subject to the other provisions of the Constitution. Therefore, Article 309 will have to be read as subject to the provisions of Article 233 of the Constitution. That means that if any rules are framed by the Governor under proviso to Article 309 relating to the appointment of District Judges, they must be in conformity with the provisions of Article 233 of the Constitution. If that requirement is satisfied there is no valid reasen to reject these rules simply because they purport to have been made Under Article 309. It the Rules framed Under Article 309 of the Constitution do not violate the provisions of Article 233, such rules cannot be said to be unconstitutional or without jurisdiction. It was further observed, if instead of making consultation with the High Court on every occasion for each individlal case the ----- in consultation with the High court takes raies regulating the recruitnant of person to such service. It could not by violative of any constitutional provision. It was further held that consultation has to be made with the High Court and not with the Chief Justice alone.
50. There is no dispute occur this fact that if any rules are to be made prescribing service conditions of one Judicial Officers, that has to be done with the concurrence of the Full Court.
51. Our attention was next drawn to a decision of the Division Bench of this court in Anandilal Verma v. State of Rajasthan 1966 RLW 359. That was a case of disciplinry jurisdiction and the learned Judges of the Division Bench have held that the High Court have got complete disciplinary jurisdiction over the members of the subordinate Judicial Service and the High Court can initiate disciplinary enquiry even where the probable consequence may be dismissal or removal from service; the Governor need be associated only. When the High Court after enquiry arrives at a tentative conclusion that the delinquent judicial officer deserves the penalty of dismissal or removal from service. There is no controversy that in such matters, Full Court has to be consulted even as per Rule 15(1) of the Rules of High Court of Judicature for Rajasthan, 1952 (for short 'the Rules'). This authority does not relate to the transfer and.... State of Rajasthan (1974 WLN-222). That case related to the constitution of Benches in the High Court and while interpreting Rules 54, 55 and 56 of the Rules, it was held:
that in its proper sense, "seizure" in respect of a case in a court of law is the initial stop in a proceeding, and is essential to the existence of an action or the jurisdiction of the Court. Since the jurisdiction, for reasons already stated, vests in the High Court, by virtue of Article 225 of the Constitution, it is the High Court, which is in the true sense of the word, seized of a case. As has been shown, the Chief Justice cannot be deprived of his power to direct that a particular case or class of cases shall be listed for hearing before another Bench merely because a date of hearing has been fixed by a Bench already.
This authority has no application to the facts of this case.
52. In Ugam Raj Bhandari v. The State of Rajasthan and Anr. 1979 WLN-737, a Division Bench of this Court held that the Chief Justice was not competent to withdraw disciplinary proceedings from the Administrative Judge. This case also relates to the disciplinary jurisdiction and therefore, it has no application to the facts of the present case.
53. Our attention was next drawn to a decision of this Court in J.K. Sinha v. The State of Rajasthan (1980 WLN 1). That case also relates to the disciplinary jurisdiction and that too has no application to the facts of the present case.
54. The control vested in the High Court Under Article 235 of the Constitution came up for interpretation before their lordshipe of the Supreme Court in State of W.B. v. Nripendra Nath , where in it was observed as follows:
The Control vested in the High Court Under Article 235 of the Constitution includes disciplinary jurisdiction and is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal and posting and promotion) of District Judges. The High Court can in the exercise of the control vested in it, hold enquiries impose punishment other than dismissal or revomal, subject however, to the conditions of Service and a right of appeal if granted there by and to the giving of an opportunity of showing cause as required by Clause (I) of Article 311 unless such opportunity is dispensed with by the Governor acting under the Provisos (b) and (c) to that clause. The High Court alone can hold enquiry against a District Judge.
It was further observed as follows:
The fact that Governor appoints District Judges and can alone dismiss or remove them does not impinge upon the control of the High Court. It only means that the High Court cannot appoint or dismiss or remove District Judges.
The matter again came up for interpretation before their lordships of the Supreme Court in Punjab & Haryana H.C. v. State of Haryana , wherein it was observed:
The initial appointment of persons to be District Judges as well as the initial promotion of persons to be District Judges is with the Governor. Once they are appointed and promoted to be District Judges, the entire control is thereafter vested in the High Court.
55. Thus, it is clear that the power of transfer and postings of the District Judges vests in the High Court and the High Court can frame Rules which may regulate its powers and or self legation provide as to how these powers will be axercised. That dose not amount to Sub- delegaton or self legation.
56. The Rajasthan High Court in exercise of the powers conferred by Section 45 of the Rajasthan High Court Ordinance, 1949 read with Art 225 of the Constitution of India and all other powers enabling it in that behalf framed the Rules of the High Court of Judicature for Rajasthan, 1952 (for short the Rules') Chapter III of these Rules deals with Administrative Business of the Court. Rule 14 provides that all administrative Business of the Court relating to the control over subordinate courts vested in the Court Under Article 235 of the Constitution or otherwise and to the Superintendence over the Courts and Tribunals vested in the Court Under Article 227 of the Constitution or otherwise shall be disposed of as provided hereinafter. Here, it will be very useful to quote Rule 15, 16, 17 and 20 of the Rules in extenses.
Rule 15. Matters on which all Judges shall be consulted. On the following matters, all the Judges of the Court shall be consulted namaly:
(a) Proposals as to legislation or changes in the law:
(b) Proposals as to changes in or the issue of new Rules of Court:
(c) Proposals as to changes in or the issue of new Rules for the guidance of subordinate courts:
(d) appointment, promotion, and seniority of Judicial Officers:
(e) withholding of promotion, supersession or reduction of Judicial Officers,
(f) removal or dismissal of any Judicial Officer:
(g) Compulsory retirement of Judicial Officer other wise than by way of punishment:
(h) important questions of policy or those affecging the powers and status of the Court laid before the Court by Chief Justice or any other Judge:
(i) matters connected with the Supreme Court:
(j) annual administration roport:
(k) matters upon which the Govt. desires the opinion of the Court, if such matter is considerad fit to be laid before the Court by the Chief Justice: and
(l) any matter which the Chief Justice of the Administrative Committee, as constituted Under Rule 16, may consider fit to be laid before them for consideration.
Rule 16. Administrative Committee:-(1) A Committee or Judges shall be formed composed of the Chief Justice, the Administrative Judge and such other Judges, as the Chief Justice may from time to time appoint. This Committee shall be called the Administrative Committee.
(2) Subject to these Rules, the Administrative Committee shall act for the Court in its administrative business in respect of the matters enumereted in Rule 17.
Rule 17. Matters on which the Administrative Committee shall be consulted:-The Administrative Committee shall be consulted on the following matters, namely:
(a) the issue of general letters to subordinate courts;
(b) the issue of directions regarding the preparation of returns and statements: and
(c) any other matter which the Chief Justice or the Administrative Judge may desire to be brought before it.
Rule 20. Administrative business to be disposed of by the Chief Justice-Subject to rules 15 and 17, the administrative business referred to in rule 14 shall be disposed of by the Chief Justice.
Rule 32 of the Rules reads as follows:
Rule 32. Effect of any irregularity in or omission to follow the procedure laid down in this Chapter(1) No irregularity in, or omission to follow, the procedure laid down in this Chapter shall affect the validity of any order passed or anything done under these Rules.
(2) For the removal of doubt, it is hereby mentioned that all administrative work disposed of by the Chief Justice, the Administrative Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court.
Thus, it is clear that all those matters which are not covered by Rule 15, 16 and 17 of the Rules and which form part of Rule 14 relating to control over subordinate courts vested in the court Under Article 235 of the Constitution or otherwise and to the superintendence over the Courts and Tribunals vested in the Court Under Article 227 of the Constitution shall be disposed of by the Chief Justice Under Rule 20 of the Rules. As the matters relating to transfer and posting of Judicial Officers have not been included in Rule 15, 16 and 17 of the Rules, it is within the domain of the Chief Justice to make transfers and postings of Judicial Officers and that will be deemed to have been made by the High Court Under Rule 20 read with rule 32 of the Rules. These Rules have been framed by the High Court in exercise of the powers conferred by Section 46 of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India and all other powers enabling it in that behalf. Thus, once the Full Court has decided that the administrative business of the High Court will be regulated in a particular manner as provided in the Rules, until that decision is reversed by the full Court. Hon'ble the Chief Justice is competent to make transfer and posting of Judicial Officers Under Rule 20 of the Rules. In this respect, our attention was drawn to a decision of their lordships of the Supreme Court in State of U.P. v. Batuk Deo Pati Tripathi (1978) 8 SCC 102, wherein it was held:
Article 225 of the Constitution provides that the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to Administration of Justice in the court including any power to make rules of court shall be the same as immediataly before the commencement of the Constitution. Assuming that the High Court did not possess the power to frame rules p authorising a Judge or a Committee of Judges of the High Court to action behalf of the Court under this Article. Article 235 of the Constitution provides that the control over District Judges and courts subordinate thereto shall be vested in the High Court. Though the control over the subordinate courts is vested constitutionally in the High Court by the article, it done not follow that the High Court has no power to prescribe the manner in which that control may, in practice, be exercised. In fact, the very circumstances that the power of control which comprehends matters of a wide ranging variety, vests in the entire body of Judges makes it imperative that the rules must be framed to make the exercise of the control feasible, convenient and effective. The High Court has, therefore, the power Under Article 235 itself to frame rules for regulating the manner in which the control vested in it may be exercised. The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. While it is true that the rules framed for prescribing the manner in which a power his to be exercised have to be truly regulatory in character and the power under the guise of framing the Rules should not be diluted, the power of the High Court to frame the impugned rules cannot be counted and must be conceded.
Thus, in our considered opinion, Hon'ble the Chief Justice is perfectly competent to make transfers and postinge of Judicial Officers. The questions No. 5 stands answered accordingly.
57. In the result, in view of the findings recorded by us on the questions that have been referred to us, we are firmly of the opinion that there is no illegality in constitution and functioning of the Family Courts and the appointments of Judges of Family Courts are inorder. They can effectively function and dispose of the cases pending before them. However, the State Govt. and the High Court are directed to frame the Rules Under Sections 4, 5, 6 and 14 readwith Sections 21 and 23 of the Act within a period of two month from to day. We further hold that Hon'ble the Chief Justice has all powers as regards transfers and postings of Judicial Officers within the parameters provided by the High Court Rules.