Delhi High Court
Sujata Kohli vs High Court Of Delhi Thru. Registrar ... on 20 December, 2007
Equivalent citations: 148(2008)DLT17
Author: A.K. Sikri
Bench: A.K. Sikri, Vipin Sanghi
JUDGMENT A.K. Sikri, J.
1. The petitioner is a Member of Delhi Higher Judicial Service. After 15 years of practice at the Bar, she was selected to the said service and joined as Additional District & Sessions Judge, Delhi on 26.11.2002. At the relevant time, i.e. in January 2007, she was posted as Special Judge, NDPS, Tis Hazari. This posting was given to her on 6.1.2006. Vide orders dated 22.1.2007, she is transferred as Presiding Officer, Labour Court at Karkardooma. By this order, change of postings and transfers in respect of three more judicial officers is effected. This order reads as under:
HIGH COURT OF DELHI AT NEW DELHI No. 66/Gaz-1/VLE.2(a)/2007 Dated, the 22nd January, 2007 ORDER:
Hon'ble the Chief Justice and Hon'ble Judges of this Court been pleased to make the following postings/transfers in the Delhi Higher Judicial Service with immediate effect:
S.No. NAME OF THE OFFICER FROM TO REMARKS
1. Mr. V.P. Vaish Registrar (Vigilance) Delhi High Court
Addl. Sessions Judge, Rohini
Vice Mr. Yogesh Khanna
2. Mr. Yogesh Khanna Addl. Sessions Judge, Rohini
Addl. Sessions Judge (NDPS), Tis Hazari
Vice Ms. Sujata Kohli
3. Ms. Sujata Kohli Addl. Sessions Judge (NDPS), Tis Hazari
Presiding officer, Labour Court, Karkardooma
Vice Mr. Sanjay Kumar
4. Mr. Sanjay Kumar Presiding Officer, Labour Court, Karkardooma
Addl. District Judge (LAC), Tis Hazari
In the Court vacated by Ms. Maina, Sehgal
By order of the Court
Sd/-
(AJIT BHARIHOKE)
Registrar General
2. The petitioner feels aggrieved by her transfer, as aforesaid, as she perceives this transfer by way of punishment. She has dubbed this transfer as unjust, unfair, arbitrary, mala fide and in gross violation of the principles of natural justice. As per the petitioner, this transfer order has been passed under the following circumstances which has tainted the impugned order:
3. According to the petitioner, the impugned order is at the behest of the office bearers of the Delhi Bar Association at Tis Hazari and some lawyers practicing there. She traces the genesis thereof by alleging that on 26.5.2004 when the lawyers of Delhi Bar Association had gone on strike and she was holding the Court of Motor Accidents Claim Tribunal (MACT), keeping in view the mandate of the High Court not to take cognizance of such strike, she was going ahead with the judicial work as usual. However, the Secretary of the Bar Association entered her Court and threatened her to stop recording evidence as the Bar was on strike. When the petitioner refused, the Secretary told her in the open Court "Naukri Karni Hai, Ki Nahi". This was treated by the petitioner as contempt of the Court. She, therefore, recorded this happening and forwarded contempt reference to the High Court with request to initiate appropriate action thereon. However, no cognizance was taken. Emboldened by this in action, on 28.5.2004 a boycott call was given by the Association against the petitioner's court with effect from 31.5.2004, which continued till the first week of August 2004. She apprised the High Court about the same with request to initiate proper action and sent another contempt reference dated 28.5.2004. No action was taken even on this reference. On the contrary, after about 11 months, she received communication dated 26.4.2005 from the Registrar (Admn./Judicial) advising her to make proper reference in accordance with law. She even sent proper contempt reference on 10.5.2005, as advised, but no action was taken even thereafter.
4. She further alleged that in the year 2006, while the Advocates' strike was continuing as a protest against the bifurcation and shifting of Courts to the newly constructed Rohini Complex, this Court directed all the officers of the subordinate judiciary not to succumb to the striking advocates and to function as if there was no strike. Agitated by the above, the members of Delhi Bar Association, Tis Hazari Courts, indulged into large-scale vandalism and misbehavior with the judicial officers. The judicial officers who were holding their Courts were threatened and abused and as many as 26 judicial officers, including the petitioner, had sent reports to this Court and prayed for intervention despite which, ultimately, no action was taken against the contemnors. Further, on 2.1.2007, i.e. about a year later, by the order of District & Sessions Judge, Delhi, the petitioner was assigned regular bail duty with respect to Central District. On 4.1.2007, the bail application of one Tariq Ahmed Dar in FIR No. 59/2006 came up for hearing before the petitioner. During the course of hearing of submissions, the Public Prosecutor informed that the counsel for the accused in his arguments had suppressed material facts regarding the pendency of a similar bail application before this Court which was scheduled to come up for hearing on 31.1.2007. This fact was suppressed during the oral submission made and silence of the counsel in this regard was clearly to secure a favorable order from the petitioner. This conduct of the counsel was taken on record and bail application of the accused was dismissed on this ground alone and also to avoid an anomalous situation. Feeling aggrieved by this fact of the petitioner having taken on record his conduct, another Advocate came at about 2.15 p.m. and started mentioning the same matter, which already stood disposed. However, when he claimed that he wanted to clarify the matter, the petitioner, in the interest of justice, allowed him to do so. However, when the said Advocate still failed to explain why he had moved the bail before Sessions while the other bail application for the same accused in the same matter was already pending before this Court, the petitioner refused to modify her order and recorded these proceedings also. He, thereafter, brought the President of the Delhi Bar Association to the Court who first asked the petitioner for a hearing in the chamber. Since judicial work was going on, the petitioner politely declined his request and he was asked to submit whatever he wanted in the open court. At this, Shri Ved Prakash Sharma, President, Delhi Bar Association similarly pressurised the petitioner to change the order which had already been passed and on refusal of the petitioner to do so, he threatened her to take up the issue with the District & Sessions Judge, Delhi. The petitioner also took on record in brief of what transpired in the open court and sent information to this Court along with copy of the proceeding sheets.
5. It is further alleged that she was called by her Inspecting Judge and was informed that there was a crisis in the Bar and, therefore, she should withdraw the contempt reference. Though she demanded a copy of the complaint, same was not given to her. She was again summoned by the Inspecting Judge on 16.1.2007 and was advised to withdraw the reference, for which purpose she was asked to sign on a letter already prepared. She took time to think over and reconsider the matter. Thereafter, she prepared her own draft letter and showed to the Inspecting Judge on 17.1.2007, which was not aggreable to the Inspecting Judge. However, she sent the said letter, as per own draft, on 18.1.2007. There are further allegations in the petition of her admitting to meet the Hon'ble the Chief Justice and what transpired thereafter, including convening of the meeting of the Administrative Committee, which purportedly conveyed to the petitioner, through the Registrar General, to withdraw her letter dated 18.1.2007 and on her refusal to do so, she received the impugned transfer orders dated 22.1.2007. The petitioner immediately approached the Supreme Court by filing writ petition under Article 32 of the Constitution of India on 27.1.2007 challenging the transfer. However, on 15.2.2007, when this writ petition came up for hearing, the petitioner withdrew the said petition with liberty to pursue alternate remedy. Following order was passed by the Supreme Court while dismissing the writ petition as withdrawn:
The writ petition is accordingly dismissed as withdrawn with liberty to the petitioner to pursue alternative remedy.
6. Thereafter, the present petition has been filed in which the petitioner has challenged the transfer order primarily on the ground that the High Court has passed this order with the interference and on the dictates of the members of the Bar Association, Tis Hazari Courts, who allegedly pressurised the Administrative Committee in succumbing to their illegal demands. It is also alleged that as a matter of practice and procedure, the tenure of an officer of the subordinate judiciary is normally not less than three years unless there are exceptional circumstances justifying an earlier transfer. She was posted as Additional District & Sessions Judge, Tis Hazari on 6.1.2006 and her transfer after one year could not be on any ground justifying the same. Such a transfer, therefore, which is allegedly passed at the instance of the Bar, is opposed to public policy and public interest since it is demoralising for the entire subordinate judiciary, particularly to those judicial officers who have always upheld the majesty of law and the chershed principles of free, fair and impartial judiciary having withstood all kinds of pressures and influences within and without. She has a grievance that instead of protecting the petitioner from vicious onslaught from the Bar in the form of false and frivolous complaints, she has been made a target of victimisation. She also wants that the Court may lay down an objective criteria and guidelines in respect of transfer of officers of subordinate judiciary in order to ensure independence of the subordinate judiciary and to protect the dignity and respect of the judicial officers. Therefore, she has dubbed this transfer as punitive and has prayed for quashing of this order.
7. In the prayer clause, there is also a prayer for initiating proceedings on the pending contempt references dated 26.5.2004, 28.5.2004, 24.2.2006 and 4.1.2007 and has also prayed that the complaint dated 6.1.2007 of the Delhi Bar Association be treated as gross contempt and suo moto action be initiated thereon. However, no submissions were made on these prayers at the time of arguments.
8. In the counter affidavit filed on behalf of the Delhi High Court by Shri S.D. Sharma, who is working as a Joint Registrar, various allegations made in the petition are denied. Apart from stating that the impugned transfer order was a routine order and claiming that the High Court, as an employer, has the right to transfer a judicial officer and that no judicial official can claim a particular/fixed tenure in respect of a post or even a right to hold a specific post and that the High Court would not, in exercise of the power of judicial review, interdict unless it is shown that the impugned transfer order is illegal, i.e. in violation of a rule, regulation or statute or as a result of malice or ill-will, the various allegations made in the petition are denied. It is explained that under Article 235 of the Constitution of India, the High Court has 'control over the subordinate courts' which is exhaustive in nature, comprehensive in extent and effective in operations. In exercise of such control it is the power of the High Court to transfer a judicial officer from one court to another and exercising that power resolution dated 18.1.2007 was passed transferring certain officers, which included posting of the petitioner from Tis Hazari to Karkardooma Courts as Presiding Officer, Labour Court. By this, no legal or fundamental right of the petitioner has been infringed, more so, when transfer is incidence of service and there is no malice involved in the transfer of the petitioner. It is also pointed out that there is no rule or regulation specifying any time period or tenure of a judicial officer on a particular posting and there is no prohibition to transfer a judicial officer from one court to another within a specified period.
9. Insofar as the complaints of the Bar against the petitioner and of the petitioner against the Bar are concerned, details of certain complaints are mentioned in the petition, on the basis of which it is stated that the petitioner did not have harmonious relations with the Delhi Bar Association at all times. It is, however, explained that in spite of complaints from the Bar, they are ignored and no action has ever been taken thereon. The affidavit also explains the treatment given to various references sent by the petitioner seeking initiation of criminal contempt against certain office bearers of Delhi Bar Association. It is denied that the impugned transfer order is at the instance of the Delhi Bar Association. Reply given is that had there been such an intention, the petitioner could have been transferred in the year 2004 itself while she was posted at Tis Hazari in the MACT Court and cross complaints of the petitioner and the President, Secretary and other Members of the Bar were received.
10. The version of the petitioner during meeting with the Inspecting Judge on 9.1.2007 or on 16.1.2007 are denied. Other allegations regarding meeting with the Registrar General, Delhi High Court, on 18.1.2007 are also specifically denied.
11. Before we discuss the respective contentions, let us understand the legal principles relating to the transfer of employees. This understanding is important since we are dealing with the order of transfer of the petitioner from the court of Special Judge, NDPS, Tis Hazari to Presiding Officer, Labour Court, Karkardooma.
12. It is not in dispute that transfer is an incidence of service and the High Court, which has the superintending control over the subordinate judiciary, is empowered to decide about the posting, transfer, promotion etc. of the judicial officers belonging to the subordinate judiciary. Law in the matter of transfers is also well settled by catena of judgments of the Apex Court. Instead of taking note of all these judgments, it would be sufficient to refer to two decisions of the Apex Court wherein the Court considered its earlier decisions. First case, note whereof we take, is Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey and Ors. AIR 2004 SC 4850, wherein the Court reiterated the principle of law in the following terms:
Transfer which is an incidence of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms of principles governing the transfer (see Ambani Kanta Ray v. State of Orissa 1995 (Suppl) 4 SCC 169). Unless the order of transfer is visited by malafide or is made in violation of operative guidelines, the Court cannot interfere with it (see Union of India v. S.L. Abbas . Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by malafide or is made in violation of operative any guidelines or rules the courts should not ordinarily interfere with it. In Union of India and Ors. v. Janardan Debanath and Anr. it was observed as follows:
No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan .
13. Again, in a recent judgment in the case of Mohd. Masood Ahmad v. State of U.P. and Ors. 2007 (11) JT 540 (SC), the Supreme Court made the following pertinent observations:
As repeatedly held in several decisions, transfer is an exigency of service vide B. Varadha Rao v. State of Karnataka , Shilpi Bose v. State of Bihar , Union of India v. N.P. Thomas , Union of India v. S.L. Abbas (sic) etc.
5. In State of Punjab v. Joginder Singh Dhatt this Court observed (vide paragraph 3 of the said AIR):
We have heard learned Counsel for the parties. This Court has time and again expressed its disapproval of the Courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the Courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.
6. In Abani Kanta Ray v. State of Orissa 1995 (Supp.) 4 SCC 169 : 1996 Lab IC 982, this Court observed (vide paragraph 10):
It is settled law that a transfer which is an incident of service is not to be interfered with by the Courts unless it is shown to be clearly arbitrary or vitiated by mala fides or infraction of any professed norm or principle governing the transfer. (See N.K. Singh v. Union of India).
7. The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Rao v. Union of India , National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan , State Bank of India v. Anjan Sanyal . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. (1997) 3 ESC 1668 : 1998 All LJ 70 and Onkarnath Tiwari v. The Chief Engineer, Minor Irrigation Department, U.P. Lucknow (1997) 3 ESC1866 : 1998 All LJ 245, has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a Court of law in exercise of its discretionary jurisdiction under Article 226 unless the Court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders.
14. In view of the aforesaid dicta, it is clear that transfers normally are not to be interfered with in exercise of the power of judicial review under Article 226 of the Constitution. The only grounds on which the Court can strike down an administrative order of transfer are - (a) when the order is mala fide; or (b) when service rules prohibit such transfer; or (c) when the transfer order is issued by incompetent authority.
15. In the present case, admittedly, the order of transfer is by the High Court which is the competent authority to pass such an order as the subordinate judiciary is under the control and supervision of the High Court in view of the provisions of Article 235 of the Constitution. In Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu , a Constitution Bench of the Supreme Court held as under:
Article 235 is the pivot around which the entire scheme of the Chapter revolves. Under it, "the control over district courts and court subordinate thereto including the posting and promotions of, and the grant of leave to persons belonging to the judicial service of a State" is vested in the High Court.
40. The interpretation and scope of Article 235 has been the subject of several decisions of this Court. The position crystallised by these decisions is that the control over the subordinate judiciary vested in the High Court under Article 235 is exclusive in nature, comprehensive in extent and effective in operation. It comprehends a wide variety of matters. Among others, it includes:
(a)(i) Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose punishment other than dismissal or removal, subject, however, to the conditions of service, and a right of appeal, if any, granted thereby and to the giving of an opportunity of showing cause as required by Article 311(2).
(ii) In Article 235, the word 'control' is accompanied by the word "vest" which shows that the High Court alone is made the sole custodian of the control over the judiciary. The control vested in the High Court, being exclusive, and not dual, an inquiry into the conduct of a member of judiciary can be held by the High Court alone and no other authority. (State of West Bengal v. Nripendra Nath Bagchi (supra); Shamsher Singh v. State of Punjab ; Punjab and Haryana High Court v. State of Haryana (sub nom Narendra Singh Rao) .
(iii) Suspension from service of a member of the judiciary, with a view to hold a disciplinary inquiry.
(b) Transfers, promotions and confirmation of such promotions of persons holding posts in the judicial service, inferior to that of District Judge. (State of Assam v. S.N. Sen ; State of Assam v. Kuneswar Saikia (1970) 2 SCR 923).
(c) Transfers of District Judges (State of Assam v. Ranga Muhammad AIR 1967 SC 1028 (supra); Chandra Mouleshwar v. Patna High Court (supra).
(d) Recall of District Judges posted on excadre posts or on deputation on administrative posts (State of Orissa v. Sudhansu Sekhar Misra .
(e) Award of Selection grade to the members of the judicial service, including District Judges it being their further promotion after their initial appointment to the cadre. (State of Assam v. Kuseswar Saikia (supra).
(f) Confirmation of District Judges, after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233, on probation or officiating basis. (Punjab & Haryana High Court v. State of Haryana (supra).
(g) Premature or compulsory retirement of Judges of the District Court and of Subordinate Courts (State of U.P. v. Batuk Deo Pati Tripathi and Anr. 1978 Lab IC 839 (supra).
16. Similarly in the case of High Court of Judicature at Bombay through its Registrar v. Shirish Kumar Rangrao Patil and Anr. , the Apex Court observed:
It would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court.
17. In Gauhati High Court and Anr. v. Kuladhar Phukan and Anr. , it was held:
The doctrine of separation of powers and the need for having an independent judiciary as a bulwark of constitutional democracy persuaded the founding fathers of Constitution assigning a place of distinction of judiciary. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influence of the executive and the legislature. Article 234 provides for appointments of persons other than District Judges to the judicial services of a State being made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court the control over district courts and courts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the control of the High Court.
18. The petitioner has alleged the transfer as mala fide and unfair, which allegation is predicated on her so-called altercation with the Bar as to what happened on 4.1.2007, followed by her meeting(s) with the Inspecting Judge, etc. In the counter affidavit filed by the respondent, it is specifically denied that the transfer is at the instance of the Bar Association. Rather, as per the averments therein, the complaints of the Bar were ignored and no action was taken thereon. Her version of meeting with the Inspecting Judge on 9.1.2007 or on 16.1.2007 or her meeting with the Registrar General on 18.1.2007 are specifically denied. Even otherwise, it is beyond comprehension that the Administrative Committee consisting of senior-most Judges of this Court would pass transfer orders succumbing to the pressure of the Bar Association. It is also important to note that it is ultimately the Full Court which had approved the transfer order. Allegations of mala fides, in these circumstances, are clearly not made out.
19. Law on this point is succinctly discussed by the Apex Court in S. Pratap Singh v. State of Punjab . Again, in E.P. Royappa v. State of Tamil Nadu and Anr. , the Court made the following pertinent observations:
92. Secondly, we must not also overlook that the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility. Here the petitioner, who was himself once the Chief Secretary, has flung a series of charges of oblique conduct against the Chief Minister. That is in itself a rather extraordinary and unusual occurrence and if these charges are true, they are bound to shake the confidence of the people in the political custodians of power in the State, and therefore, the anxiety of the Court should be all the greater to insist on a high degree of proof. In this context it may be noted that top administrators are often required to do acts which affect others adversely but which are necessary in the execution of their duties. These acts may lend themselves to misconstruction and suspicion as to the bona fides of their author when the full facts and surrounding circumstances are not known. The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other high authorities, not because of any special status which they are supposed to enjoy, nor because they are highly placed in social life or administrative set up - these considerations are wholly irrelevant in judicial approach - but because otherwise, functioning effectively would become difficult in a democracy. It is from this stand-point that we must assess the merits of the allegations of mala fides made by the petitioner against the second respondent.
20. Though we could have closed the judgment with the aforesaid findings, we deem it appropriate to make some observations and discuss the case at some length addressing the grievances raised by the petitioner in this petition, as the petitioner has her own perception of the entire matter.
21. The petitioner feels that some office bearers and Members of the Bar Association have tried to interfere with her judicial function; she has not succumbed to and resisted their attempts and has shown boldness in reporting the matter to the High Court for taking appropriate action against the mischief mongers and defaulters. She has this feeling that the High Court, instead of coming to her protection, has acted at the dictates of the Bar and at their instance passed the impugned order. Such an action on the part of the High Court would have demoralising effect for the entire subordinate judiciary as it would discourage the judicial officers to work fearlessly and impartially. According to her, the High Court, in the process, has failed to protect the dignity and respect which judicial officer like the petitioner deserves.
22. Before embarking on this issue, we may state at the outset that it hardly needs to be emphasized that a judicial officer is supposed to discharge his/her duties wholly independently, fearlessly and impartially. A judicial officer belonging to the subordinate judiciary also, like any other Judge of the superior judiciary, discharges the same function, namely, dispensation of justice. It is said that dispensation of justice is a divine attribute. Therefore, he/she is to discharge this duty, which is a onerous duty-bestowed upon him/her, without any influence, willfulness, vanity or egotism. Following words of wisdom of Socrates have withstood the test of time as they are eternal:
Four things belongs to a judge: to hear courteously; to answer wisely; to consider soberly; to decide impartially.
23. The duty of the High Court, while exercising its superintendence and control over the subordinate judiciary, to insulate them from quarrelsome, unscrupulous or cantankerous litigants or even from undue and motivated onslaught from the Bar, is also well recognized. Interpreting Article 235 of the Constitution the Supreme Court has reminded the High Courts about this duty of theirs time and again. In Madan Mohan Choudhary v. The State of Bihar , the Apex Court dealt with the issue in the following words:
21. Under this Article, the High Court's control over the subordinate judiciary is comprehensive and extends over a variety of matters, including posting, promotion and grant of leave. The three words, namely, "posting, promotion and "grant of leave", used in this Article, are only illustrative in character and do not limit the extent of control exercised by the High Court over the officers of the subordinate judiciary.
22. It is now well-settled by a catena of decisions (See, for example, Mohammad Ghouse v. State of Andhra and Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu that the expression "control", in Article 235 of the Constitution, includes "Disciplinary Control".
23. Transfers, promotions and confirmations including transfer of District Judges or the recall of District Judges posted on ex-cadre post or on deputation or on administrative post etc. etc. is also within the administrative control of the High Court. So also premature and compulsory retirement is also within the "control" of the High Court.
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26. It has already been pointed out by this Court in Registrar, High Court of Madras v. R. Rajiah that though the High Court, in its administrative jurisdiction, has the power to recommend compulsory retirement of a member of the Judicial Service in accordance with the rules framed in that regard, it cannot act arbitrarily and there has to be material to come to a decision that the officer has outlived his utility. It was also pointed out in this case that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers from being harassed or annoyed by trifling complaints relating to judicial orders to that the Officers may discharge their duties honestly, independently, unconcerned by the ill-conceived or motivated complaints made by unscrupulous lawyers and litigants.
24. Likewise in Shamsheer Singh v. Punjab and Anr. , a 7 Judge Constitution Bench of the Supreme Court observed:
A Bench of seven Judges of this Court, considering the scope of Article 235, had held that the High Court is invested with, under the said Article, control of subordinate judiciary. The members of the subordinate judiciary are not only under the control but also under the care and custody of the High Court.
25. To the same effect is the judgment in the case of Registrar, High Court of Gujarat and Anr. v. C.G. Sharma , wherein it was held as under:
It is true that an honest judicial officer is likely to have adversaries in the mofussil Courts and if complaints are entertained on trifling matters relating to judicial orders, which may have been upheld by the High Court on the judicial side, no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. It is also true that if judicial officers are under constant threat of complaint and enquiry on trailing matter and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest matter. It is, therefore, imperative that the High Court should also take steps to protect its honest officer by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. It is also true that the judicial officers have also to face some times quarrelsome, unscrupulous and cantankerous litigations but they have to face them boldly without deviating from the right path and that they are not expected to be overawed by such litigants or fall to their evil designs. This ratio was laid down in several judgments of this Court.
26. The reading of the aforesaid judgments, thus, make it clear that whereas on the one hand the High Court has the power of transfer, promotion, confirmation, pre-mature and compulsory retirement, etc. over the judicial officer, this power is coupled with duty of the High Court towards the judicial officers, namely, protecting them against any ill-conceived and motivated onslaught at the hands of others.
27. So far, so good. But can it be said that in the present case the High Court has failed or neglected to discharge its duty? Before discussing these facts, another aspect of the matter which needs some discuss is the relationship between the Bench and the Bar.
28. In J.A. Kadar v. Shankarlal Gulabchand , the Apex Court observed:
Above all, the paramount consideration that the Bench and the Bar form a noble and dynamic partnership geared to the great social goal of administration of justice puts the lawyer appearing in the court in a class by himself and to compare him with an ordinary agent may be to lose sight of the lawyer as engineer of the rule of law in society.
29. Similarly, this Court in Court on its own motion v. Kanwaljit S. Sareen , held:
The Judge and counsel are two wheels of the chariot of justice. While the direction of the movement is controlled by the Judge holding the reins, the movement itself is facilitated by the counsel and litigants, without which the chariot of justice may not move and may even collapse. Mutual confidence in the discharge of duties and cordial relations between the Bench and the Bar smoothen the movement of the chariot. As responsible officers of the court, the counsel have an overall obligation of assisting the courts in a just and proper manner, in the just and proper administration of justice.
30. In the process, what are the qualities which are expected of a judicial officer? This came up for discussion before the Supreme Court in the case of Delhi Bar Association v. Union of India and Ors. . Referring to this case, the Supreme Court in a recent judgment delivered in the case of K.H. Siraj v. High Court of Kerala and Ors. , held as under:
The qualities which a Judicial Officer would possess are delineated by this Court in Delhi Bar Association v. Union of India and Ors. . A Judicial Officer must, apart from academic knowledge, have the capacity to communicate his thoughts, he must be tactful, he must be diplomatic, he must have a sense of humour, he must have the ability to defuse situations, to control the examination of witnesses and also lengthy irrelevant arguments and the like.
31. Having considered the facts of the present case in the aforesaid context, we find that because of some unpleasant encounters with certain members of the Bar, she has developed the feeling that for no fault of hers, she is wronged. However, it seems that the Inspecting Judge, on objective consideration of the entire situation, did not find so. No doubt, on the one hand the petitioner had sent the complaint of the alleged episode to the High Court against the conduct of certain lawyers and office bearers of the Bar Association. On the other hand, the Members of the Bar had, similarly, made complaint against the conduct of the petitioner. In the first instance, the Inspecting Judge examined the same and heard the views of both sides. It further seems that the main reason for giving audience to the petitioner by the Inspecting Judge was also to counsel her as to the events clearly disclosed that it was not a Go-Happy situation between the petitioner and the Bar. This is the duty of the Inspecting Judge and with this honest and bona fide intentions, the petitioner was summoned by him, it is not proper on the part of the petitioner to level such allegations as are raised in this petition. The petitioner may have her own strong views about her exemplary conduct in the Court and grievance against the Bar. However, when the Inspecting Judge examined the case keeping in view the position of either side and wanted to counsel the petitioner to diffuse the tension, that was required to be taken in a right spirit. We do not know, but are confident, that the Members of the Bar would also have been counselled likewise.
32. We have already held above that it was an administrative order passed in the exigency of service, posting of the petitioner as the Presiding Officer, Labour Court, Karkardooma. However, even if we presume that going by the larger consideration of defusing the situation, without getting involved in a blame game, the posting order is passed, the petitioner should not have felt aggrieved by such an innocuous order of transfer. By no means it can be said that if some tussle takes place between a judicial officer and members of the Bar even where members of the Bar are found to be on the wrong side, just to avoid a crisis, a judicial officer should be transferred as one is not to succumb to the wrongful pressures. However, when after going into all the aspects of the matter, need is felt to post the judicial officer to some other place, such a bona fide action, in the interest of overall discipline, when taken in the administrative expediency, the same is not to be judicially interfered with. There is no need to feel penalised or demoralised either.
33. We may hasten to add that all this discussion is on the premise that the transfer order was passed on the basis of the complaints and counter complaints of the two sides. Though that is not the reason, as held by us heretoforth, in either case we do not find any good reason and/or justification in interfering with the innocuous posting order of the petitioner and, therefore, dismiss this writ petition.
No costs.