Bombay High Court
N.Y. Gupte And Anr. vs High Court Of Judicature At Bombay And ... on 24 September, 2001
Equivalent citations: 2002(3)BOMCR707
Author: H.L. Gokhale
Bench: H.L. Gokhale, V.K. Tahilramani
JUDGMENT H.L. Gokhale, J.
1. This petition under Article 226 of the Constitution of India is concerning the appointment to the post of Principal Judge, City Civil & Sessions Court, Mumbai. The petition seeks to challenge the High Court's order appointing a District Judge to that post by transfer. It is stated to be in breach of a provision of the Bombay City Civil Court Act, 1948. It is contended amongst others that under the said statute the power to make this appointment is reserved only in the State Government and not available to the High Court. It is also contended that a District Judge cannot be appointed directly as the Principal Judge through the mode of transfer. The order is defended under the Bombay Judicial Service Recruitment Rules, 1956 framed under Article 234 read with Articles 309 of the Constitution. It is not in dispute that this is a selection post. Thus the question is whether the District Judges can come within the zone of consideration for this post through the mode of transfer made by the High Court as sought to be done under the above Rules.
2. The petitioners herein are two Advocates practising in the Bombay City Civil & Sessions Court. They claim to have filed this petition on behalf of all the other Advocates practising in that Court and leave under Order 1, Rule 8 of C.P.C. is sought in para 39 of the petition. The petition seeks to challenge the notification issued by respondent No. 1--- Bombay High Court dated 20th August, 2001 appointing respondent No. 2, who is presently the District and Sessions Judge at Thane, to be the Principal Judge of the Bombay City Civil & Sessions Court. The respondents Nos. 3 and 4 are the 1st and 2nd Additional Principal Judges of City Civil Court. The respondents Nos. 5 to 52 are the other Judges of that Court. The respondent No. 53 is the State of Maharashtra.
3. Mr. D.S. Parikh and Mr. H.J. Thakkar, Senior Advocates with Miss Rajni Iyer have appeared for the petitioners. Mr. Gulam Vahanvati, Advocate General, appeared for respondent No. 1 High Court, Mr. A.A. Kumbhakoni appeared for respondent No. 28 and Mr. Abhay Oka appeared for respondent No. 29. Mr. R.M. Sawant, Government Pleader, appeared for respondent No. 53. All of them have opposed this petition. Mr. K.K.V. Kurup, Mr. M.P. Vashi and Mr. I.P. Bagalia, Advocates have intervened to oppose this petition.
4. It is submitted by the petitioners that the appointment of the Principal Judge of the City Civil & Sessions Court can be made only under section 7(b) of the Bombay City Civil Court Act, 1948 ("the Act" for short) which provides for appointment of any of the Judges in that Court to be the Principal Judge. They are opposing appointment of respondent No. 2 for being in violation of this section. The appointment is defended under Rule 5(1)(b) of the Bombay Judicial Service Recruitment Rules, 1956 ("the Rules" for short) which are framed by the then Governor of Bombay after consultation with the Bombay Public Service Commission and the High Court of Bombay in exercise of the powers conferred by Article 234 and the proviso to Article 309 of the Constitution of India. Prayer (a) of this petition seeks a declaration that the amendment of Rule 5 of these Rules made by respondent No. 1 in the year 1992 is illegal, void and without any effect. Prayer (b) seeks setting aside of the said amendment. Prayer (c) is for sitting aside the impugned order of appointment of respondent No. 2 dated 20th August, 2001. Prayer (d) is for a direction to respondent No. 1 to forbear from appointing any person in this post other than the sitting Judges recruited from the Bar or from practising Advocates. Prayer (e) seeks an injunction restraining respondent No. 1 from implementing this order and Prayer (f) seeks to restrain respondent No. 2 from assuming office or taking charge as Principal Judge of that Court.
5. The petition states that no District Judge has so far been appointed directly as the Principal Judge of the City Civil Court, except the instance of one Shri T.P. Ghogale in the year 1959-60, but in view of the protest from the Bar he was transferred back to the District. It is stated in para 27 of the petition that a unanimous resolution was passed by the City Court Bar Association on 24th August, 2001 expressing distress at the appointment of respondent No. 2 and a delegation of the City Court Bar Association had a meeting with the Hon'ble Chief Justice and two senior most Judges on 29th August, 2001. No communication has been received by the Bar Association thereafter and hence this petition.
6. The petition was first mentioned for admission on 7th September, 2001 when it was directed to be placed on board on 11th September, 2001. On 8th September, 2001, a statement was made by the Assistant Government Pleader on behalf of respondent No. 1 under instructions given by Shri R.C. Chavan, Additional Registrar, High Court, Bombay, who was present in Court, that respondent No. 2 will not take charge until interim prayers are considered in this petition.
7. When the matter was thereafter heard, Mr. Parikh, learned Counsel for the petitioners, submitted that section 7(b) of the Act was the only mode of appointing the Principal Judge of this Court. He drew our attention to section 6 of the Act also. These two sections, namely sections 6 and 7, read as follows:
"6. Appointment of Judge.---The State Government may, by notification in the Official Gazette, appoint as many persons as it thinks fit to be Judges of the City Court.
7. Powers of Judges when City Court consists of more than one Judge.---
(a) each of the judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;
(b) the State Government may appoint any one of the Judge to be the Principal Judge (and any other Judge to be the additional Principal Judge;)
(c) the Principal Judge may from time to time make such arrangements as he may think fit for the distribution of the business of the Court among the various Judge thereof;
((d) the additional Principal Judge may exercise all or any of the powers conferred on the Principal Judge by this Act or any other law for the time being in force, as the High Court may, from time to time, direct.") The words in the brackets above were inserted by the Maharashtra Act No. 29 of 1968.
8. As far as the Rules mentioned above are concerned, they expressly state in the preamble thereof three things-
(i) They are framed in exercise of the powers conferred by Article 234 and the proviso to Article 309 of the Constitution of India.
(ii) They are framed by the Governor in consultation with the Bombay Public Service Commission and Bombay High Court.
(iii) They are in supersession of all existing rules and orders on the subject.
The provision in Rule 5(1) is as follows:
"5. METHOD OF RECRUITMENT TO THE SENIOR BRANCH.
(1) Principal Judge and Additional Principal Judge, City Civil Court, Bombay:-
Appointment to these posts shall be made by the High Court
(a) by selection amongst Judges of City Civil Court, Bombay or
(b) by transfer of a District Judge from Selection Grade."
Mr. Parikh drew our attention to Rule 3 sub-rule (3) of these Rules which defines the "Senior Branch". That Rule reads as follows:-
"3. Constitution of Service.
(1) ....
(2) ....
(3) The Senior Branch shall consist of District Judges, Principal Judge and all other judges, of the Bombay City Civil Court, Additional District Judges, Chief Judge and Additional Chief Judges of the Small Causes Court, Bombay and Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrates."
9. Mr. Parikh points that the above referred Rule 5(1) has come in by way of amendment from 30th June, 1992 and submits that the mode of appointment by transfer of a District Judge from Selection Grade provided thereunder is in conflict with the provision under section 7(b) of the Act inasmuch as there is no such mode provided in the said section. Mr. Parikh drew our attention to a notification of 20th March, 1969 issued by the Government of Maharashtra whereby the then Rule 5 of the above Rules was amended. Prior to that amendment, the District Judges were eligible to be considered for being appointed as Principal Judges. By that amendment, it was declared that they would not be so eligible. Mr. Parikh submits that this amendment of 1969 was subsequently done away with by the impugned amendment of 30th June, 1992 whereby it was provided that the Principal Judge could be appointed by transfer of a District Judge from Selection Grade. The submission of Mr. Parikh is that this provision of appointment by transfer of a District Judge has not been acted upon thereafter at any point of time. As against this, Mr. Vahanvati, learned Advocate General, points out that Rule 5(1), as it was originally framed in the year 1956, reads as follows:-
"5. METHOD OF RECRUITMENT TO THE SENIOR BRANCH.
(1) Principal Judge, Bombay City Civil Court.---The appointment of the Principal Judge of the Bombay City Civil Court shall be made by the Governor by selection in consultation with the High Court from the Judges of the City Civil Court or from the District Judge."
Mr. Vahanvati points out that in the Rule as it initially stood, the District Judges were eligible to be appointed as Judges of the City Civil Court. That Rule continued during 1956 to 1969. The District Judges were excluded from the zone of consideration in 1969 and from 1992 onwards they were again included.
10. Mr. Parikh relied upon paragraph 75 of the judgment of the Apex Court in Indian Express Newspapers v. Union of India, , which reads as follows:-
"75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is question. In addition it may also be question on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be question on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the judges would say "Parliament never intended authority to make such rules. They are unreasonable and ultra vires". The present position of law bearing on the above point is stated by Diplock, L.J. in Mixnam's Properties Ltd. v. Chertsey Urban District Council thus:
The various special grounds on which subordinate legislation has sometimes been said to be void.....can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a bye-law is not the antonym of "reasonableness" in the sense in which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a Court would say :
"Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires".......if the courts can declare subordinate legislation to be invalid for "uncertainty" as distinct from unenforceable....this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain."
(Underlined portion emphasised by the Counsel for the petitioners.)
11. Thus the principle argument of Mr. Parikh was that even if a subordinate legislation is in conflict with some other statute, it is the provision of the statute which will prevail. He submitted that although the above Act is of 1948 and passed prior to the enacting of the Constitution, the same is protected under Article 372 thereof whereunder all the laws in force immediately before commencement of the Constitution are continued to be enforce until altered, repealed or amended by a competent legislature. In fact, it is pointed out that the above referred section 7(b) of this Act was partly amended in the year 1950 and again substantially in the year 1968. In his submission, the reference to Article 234 in the above referred Rules and the application thereof to the District Judges and the judges of the City Civil Court was erroneous inasmuch as Article 234 deals with recruitment of persons other than District Judges to the judicial service. In any case, he submitted that reference to proviso to Article 309 under the relevant Rules was of no use since under the proviso the President and the Governor are competent to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature. He therefore submitted that since this Act of 1948 was protected under Article 372 and since the same was governing the recruitment to the City Civil Court, if the impugned order under the Rules was to be accepted, the distinction between the cadres of City Civil Court and the District Courts will be obliterated and they will be merged. There is a specific averment to that effect in para 18 of the petition. Mr. Parikh pressed into service the proposition of law in para 54 of the judgment of the Apex Court in State of Gujarat v. Shantilal Mangaldas, that 'when power is given under a statute to do a certain thing in a certain way, the thing must be done in that way or not at all."
12. As against these submissions of Mr. Parikh, Mr. Vahanvati, learned Advocate General appearing for respondent No. 1 High Court, submitted that the appointments of the Judges of the City Civil Court and that of the Principal Judges were being made for the last so many years only under the above referred Rules since the framing thereof in 1956 under Article 304 read with Article 309 of the Constitution. He submitted that these Rules were constitutional rules and therefore the provision of Rule 5(1) will override the provision of section 7(b) of the Act, which was a pre-Constitution Act. He pointed out that under the above referred Act, there was no section providing for framing of Rules, and under section 6 of the Act quoted above, nothing was prescribed with respect to the qualifications or experience of the Judges. The consultation with the High Court was conspicuous by its absence. The provisions in that behalf are to be found only in Article 233 of the Constitution and obviously the provisions in section 7 were not in consonance with Article 233.
13. The relevant Articles of the Constitution in this behalf are as follows:-
"233. Appointment of District Judges.---(1) 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 in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an Advocate or a pleader and is recommended by the High Court for appointment."
It is also relevant to note Articles 234, 236(a) and 309 in this behalf, which are as follows:-
"234. Recruitment of persons other than District Judges to the judicial service.---Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with 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."
"236. Interpretation.---In this Chapter---
(a) the expression "District Judge" includes Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge."
"309. Recruitment and conditions of service of persons serving the Union or a State.---Subject to the provisions of this Constitution, Acts of the appropriate legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State;
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the union, and the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate legislature under this Article, and any rules so made shall have effect subject to the provisions of any such Act."
14. Mr. Vahanvati then referred to the qualifications as provided under Article 233(2) of the constitution and corresponding provision made under the above referred Rules in Rule 5(2)(v), which provides the method of recruitment to the Senior Branch. The said Rule reads as follows:-
"5. Method of recruitment to the Senior Branch.---
(1) ......
(2) District Judges, Selection Grade District Judges and Judges of the Bombay City Civil Court:-
(v) Judges of the City Court, Bombay (1) Appointment to these posts shall be made.-
(a) by the High Court.-
(i) by transfer of District Judges,
(ii) by promotion from Additional District Judges, Chief Judge and Additional Chief Judges of the Small Causes Court, Bombay and Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate, or
(b) by the Governor by nomination, on the recommendation of the High Court, who has been for not less than seven years an advocate or pleader in the High Court or courts subordinate thereto."
15. Thus Mr. Vahanvati firstly submitted that whereas the Rules provided for qualifications, there was no provision corresponding thereto under the Act. Secondly, Mr. Vahanvati submitted that all these years, a number of Judges have been transferred from the Districts to the City Civil Court by transferring District Judges. If the submission of Mr. Parikh was to be accepted, then none of these transfers could have been made as there is no provision for any Judge to be transferred to the City Civil Court under the above Act. In his submission therefore even to implement the Bombay City Court Act, one has to fall back on the rules which alone provide for the qualifications, the procedure for direct appointment and the appointment of the other Judges by transfer, if necessary.
16. Thirdly, Mr. Vahanvati submitted that all these years the orders of appointment from the Bar or the transfers from the District Judges were being made by the High Court. The recruitment orders were undoubtedly issued in the name of the Governor but the orders of transfers and promotions of District Judges were issued by the High Court itself as provided under the Rules. This is because in view of the constitutional mandate, these appointments are to be made under Article 233 of the Constitution by the Governor in consultation with the High Court. The above Rules have been framed by the Governor under Article 234 read with Article 309 of the Constitution in consultation with the High Court, and in supersession of the existing Rules. Although Article 234 provides for framing of rules for recruitment of persons other than District Judges, the present rules are comprehensive rules and contain provisions for appointment of District Judges also and these provisions are in consonance with Article 233. If these appointment orders are to be issued by the State Government, they would be under the advice of the Department of Law and Judiciary and not of the High Court. That was not desirable. It was the mandate of the Constitution that these judicial appointments ought to be in consultation with the High Court and not under the State Government. An affidavit in reply has been filed by Shri S.R. Sathe, the Registrar of the High Court which states that all appointments since the framing of the Rules have been made under the Rules. A number of appointment orders of Principal Judges by promotion and of judges of the City Civil Court by transfer from Districts are enclose to this affidavit. They are all orders issued by the High Court. The petitioners have filed a rejoinder and the same is also taken on record.
17. As against this submission of Mr. Vahanvati, Mr. Parikh asked a question that if the Rules were enforced since 1956 and not the Act, what was the need of an amendment to the Act in 1968 bringing in specific provisions for Additional Principal Judge? He also pointed out an order issued in the year 1997 when Magistrates and Small Causes Court Judges were transferred and appointed as Judges of the City Civil Court by the Governor and not directly by the High Court. It is however material to note that order however stated that the same was issued in consultation with the High Court.
18. In view of what is stated above, it is clear that two modes of appointment of a Principal Judge are provided under Rule 5 of the Rules, the one under Clause (a) is by selection from amongst the Judges of City Civil Court and the other under Clause (b) is by transfer of a District Judge having Selection Grade. The provisions under Rule 5(a) and the one under section 7(b) of the Act are similar. Under the rules, however, one more method is provided, i.e. by transfer, over and above the one available under the Bombay City Civil Court Act, namely that of promotion. The mode of appointment provided under the Act, viz. promotion, is not disturbed by the rules, but an additional mode of appointment, viz. transfer, is provided. The question to be considered is as to whether the amendment of Rule 5 in 1992 providing this additional mode of appointment, viz., by transfer of a District Judge, is in any way bad in law or whether the provision of section 7 is the one which departs from the constitutional mandate and therefore non-enforceable?
19. Mr. Parikh submitted that the order of appointment of the Judge concerned has to be by the correct constitutional authority. In his submission under Article 233, it is the Governor who is empowered to appoint District Judges and the Governor will mean a Governor acting under the advice of the State Government. The Governor may consult the High Court, but the State Government cannot be excluded. In any case, the High Court cannot take over this function of the Governor. In his submission, as stated earlier, the Bombay City Civil Court Act and the particular provision is protected by Article 309 read with Article 372 of the Constitution, and the Bombay City Civil Court Act is a superior Act as against these Rules. To support his submission, Mr. Parikh relied upon the two authorities. Firstly, he relied on the case of State of Assam v. Kukeshwar Saikia, (Constitution Bench) and laid emphasis on the observations in paras 4 and 5 of that judgment. In that matter, one of the issues involved was with respect to the validity of the order issued by the Governor of Assam under Article 233 of the Constitution of India appointing an Additional District Judge. The Judge concerned belonged to the Subordinate Judicial Service and it was submitted that the promotion to the post of Additional District Judge could only be under Article 235 by the High Court and not under Article 233 by the Governor. Negativing the contention, the Apex Court held that "the promotion of persons to be Additional District Judges or Additional Sessions Judges is not vested in the High Court. That is the function of the Governor under Article 233." He then referred to and relied upon the judgment in the case of M.M. Gupta v. State of Jammu & Kashmir, , wherein also it is held that the appropriate authority to make appointment of District Judges from the cadre of the subordinate judges of the State is the Governor and not the High Court.
20. Thereafter with respect to Article 309, he referred to and relied upon the judgment of a Constitution Bench of the Apex Court in B.S. Vadera v. Union of India, and emphasised the observations in paragraphs 24 and 25 of that judgment. That was a matter concerning the Railway Establishment Code promulgated by the President under proviso to Article 309 and the Apex Court held that "the proviso to Article 309 clearly lays down that any Rule so made shall have effect subject to the provisions of any such Act" made by the competent Parliament. "In the absence of any Act having been passed by appropriate legislature on the said matter, the Rules framed by the Railway Board will have full effect". Again on the question of Article 309, he referred to the judgment of the Apex Court in A.B. Krishna v. State of Karnataka, , in which matter the Apex Court held that any amendment in the Karnataka Civil Services (General Recruitment) Rules, 1971 framed under Article 309 would not affect the special provisions validly made under the Fire Force Act. There the Court observed at the end of para 8 of that judgment:-
"As a matter of fact, under the scheme of Article 309 of the Constitution, once a legislative intervenes to enact a law regulating the conditions of service, the power of the Executive, including the President or the Governor, as the case may be, is totally displaced on the principle of "Doctrine or occupied field". If, however, any matter is not touched by that enactment, it will be competent for the Executive to either issue executive instructions or to make a Rule under Article 309 in respect of that matter."
21. Then with respect to Article 372, he referred to the judgment of a Constitution Bench of the Apex Court in South India Corporation (P) Ltd. v. Secretary, Board of Revenue, Trivendrum, , and particularly para 13 thereof, wherein the Apex Court observed-
"The object of this Article is to maintain the continuity of the pre-existing laws after Constitution came into force till they were repealed, altered or amended by a competent authority. Without the aid of such an article there would be utter confusion in the field of law. The assumption underlying the Article is that the State laws may or may not be within the legislative competence of the appropriate authority under the constitution. The Article would become ineffective and purposeless if it was held that pre-constitution laws should be such as could be made by the appropriate authority under the Constitution. The words "subject to the other provisions of the Constitution" should, therefore, be given a reasonable interpretation, an interpretation which would carry out the intention of the makers of the constitution and also which is in accord with the constitutional practice in such matters. The Article posits the Constitution of the pre-existing laws made by a competent authority notwithstanding the repeal of Article 395; and the expression "other" in the Article can only apply to provisions other than those dealing with legislative competence."
In this judgment, in para 15 we have discussion on conflict in the two legal provisions and what approach the Court should adopt where there is inconsistency. Again in the context of Article 372, he relied upon the judgment in Union of India v. Bellary Municipality, (Constitution Bench). It is relevant to refer to para 8 thereof which reads as follows:
"But the continuance in force of such an existing law is subject to the other provisions of this constitution. In other words if the said law contravenes or is repugnant to any other provision of the Constitution then it has to give way to such provision of the Constitution and its continuance in force after the commencement of the Constitution is affected to the extent it contravenes or is repugnant to the said provision."
22. The next submission of Mr. Parikh was that the statute will have to be read subject to the provisions of the Constitution and if there is any requirement, which is missing in the statutory provisions, it ought to be read therein. He referred to the judgment of a Division Bench of the Punjab and Haryana High Court on an Act which was similar to the present one in the case of Manmohan Singh Tandon v. Manmohan Singh Gujaral, . He took us through the provisions of the particular Act as found in the body of the judgment and then to the observations in para 6, which are to the following effect.
"If the two provisions are irreconcilable, the statutory provision would be deemed to be ultra vires the constitutional provision. If, however, the variance or difference only lies in some additional requirement imposed by the Constitution, as in the instant case, the statutory provision has merely to be read subject to the constitutional provision, and is deemed to have been superseded to that extent."
23. It is however relevant to note at this stage that Mr. Bagalia, one of the intervening Advocates, drew our attention to a judgment of a Full Bench of that very High Court in State of Punjab v. Om Prakash, reported in 1972 Cri.L.J. 1349, wherein this very judgment has been overruled (see paras 59, 64 and 65 of that judgment). The other judgment relied upon in this behalf by Mr. Parikh is in the case of C.G. Menon, , wherein guidelines are provided by the Madras High Court as to what should be the approach in case of a conflict and how the Court should read the necessary requirement.
24. The submission of Mr. Parikh was that what one has to see is the practice going on all these years. No District Judge has been brought in to the City Civil Court directly as Principal Judge all these years and that being the position, the statutory provision will have to be given its due weightage. As observed by the Apex Court in the case of State of Gujarat v. Shantilal Mangaldas (supra), if a particular mode has been prescribed under the statute, then that mode alone is to be followed. That mode has been followed all these years and now it is being departed for the first time. The new mode provided, namely one of transfer, is in variance with the mode under the statute and therefore it ought to be declared as invalid.
25. As against these submissions of Mr. Parikh, the submissions of Mr. Vahanvati, learned Advocate General, were three-fold. Firstly, the constitutional Rules framed under the constitution will have to be shown their due respect. They are framed under the constitution and if certain provisions are made therein, which the Governor and the High Court deemed necessary, then what is to be seen is as to whether the power is available to the Governor and to the High Court to act in that manner. If so, there is no reason why those provisions should not be looked at as the basic law. The second submission of Mr. Vahanvati was with respect to non-user of the provision under the statute. In his submission, if a statutory provision is not used for so many years, (which is also the assertion of the High Court), it shall have to be deemed to have been rendered non-enforceable. Thirdly, as an alternative submission, Mr. Vahanvati submitted that assuming that the Act and the Rules are both valid, all that the rule provides is an additional mode of appointment to the post of Principal Judge. The mode provided under the statute cannot be said to occupy the entire field with respect to such appointment and even on that count, the appointment by transfer ought to be protected.
26. With respect to the strength of the constitutional rules, Mr. Vahanvati took us to a number of judgments. Firstly, he referred to the judgment of the Apex Court in Raj Kumar v. Shakti Raj, , wherein para 12 the Apex Court stated the law with respect to the power of the Governor. The Apex Court observed as follows:-
"The power of the Governor under proviso to Article 309 is constituent power and legislative in character subject to an Act of legislation."
Then he submitted that this legislation through Rules has an equal force as in other statute made by the Parliament and for that purpose, he referred to the judgment in the case of Secretary to Government of Tamilnadu v. D. Subramanyan Rajadevan, , and particularly the observations in para 5 thereof, where in terms the Apex Court observed-
"As both the Rules have been framed in exercise of powers conferred on the Government by Article 309 of the Constitution of India, they have equal force of law."
Then he referred to the observations in Prafulla Kumar Swain v. Prakash Chandra Misra, reported in 1993 Supp. (3) S.C.C. 181, and particularly para 12 thereof, where the Court again emphasised that these rules have a statutory force. He drew our attention to another judgment on this topic in K.V. Subba Rao v. Government of A.P., , and particularly para 9 thereof, where the Apex Court observed that these Rules have a binding effect and they bind the State and the citizens like once they are in force. Thus, the submission of Mr. Vahanvati was that these Rules framed under Article 234 read with Article 309 have full legislative strength and have a complete binding force and they cannot in any way be described as lacking in any strength merely because they do not come through an Act passed as such by an Assembly or a Parliament.
27. The second submission of Mr. Vahanvati was that these Rules are in force since 1956, as against which it is the statutory provision which has not been acted upon all these years. He referred to the practice as prevalent in Scotland as distinct from England and which was referred to and accepted by the Apex Court in paras 30 to 36 of the judgment in Municipal Corporation of City of Pune v. Bharat Forge Co. Ltd., reported in 1995(3) Bom.C.R. 468 : 1995(3) S.C.C. 434. The doctrine of desuetude "is a legal process by which through disobedience and lack of enforcement over a long period, a statute may lose its force without express or implied repeal", stated the Apex Court. In the present case, it is the assertion of the High Court in the affidavit in reply that right from 1956, all orders in this behalf are made under the Rules of 1956. It is also an admitted position that District Judges have been brought to the City Civil Court by transferring them. These orders are issued by the High Court and not by the State Government quite contrary to sections 6 and 7 of the Act. Thus there exists not merely a disuse of the statutory provision but a contrary practice of a long duration to apply the doctrine of desuetude as expected by the Apex Court in para 31 of this judgment. The State Government is not contradicting the High Court by filing any affidavit in reply or otherwise. The submission of Mr. Vahanvati therefore is that for last over 45 years, it is only the Rules which are being acted upon and not the provisions of section 7 of the Act. If the Act is not so acted upon consistently but a contrary practice is followed all throughout, surely the principle of desuetude gets attracted even to the situation which is before this Court clearly indicating a quasi repeal of the statutory provisions.
28. Mr. Vahanvati submitted that if all these orders were to be passed by the Governor under the advice of the State Government, that would be in exercise of its executive power under Article 154 of the Constitution and in which case authentication under Article 166(2) of the Constitution would be required. Article 166(3) provides for the rules of business of the Government. The executive power of the Governor is to be exercised in consultation with the cabinet. If that was so, the State Government would have surely stated that all these years this is the manner in which this power has been exercised. The State has not said anything to that effect and is accepting the interpretation of the rules adopted by the High Court on the administrative side.
29. Lastly, Mr. Vahanvati submitted that assuming that the section was also valid and the Rules were also valid, the Rules provided only an additional mode and if we apply the principle of doctrine of occupied field, it cannot be said that section 7 prescribes all the modes of appointment. Transfer is another mode which was not contemplated when the section was incorporated. That mode is now provided as an independent and a separate mode and if it is an additional mode, it could not be read as in conflict with the mode which is already existing. Besides, he pointed out that section 7(b) provides that the State Government may appoint any one of the judges to be the Principal Judge. This may be seen in the context of the title of the section, viz. "powers of judges when City Court consists of more than one Judge". Mr. Vahanvati pointed out that the section does not provide specifically that this is the only mode of appointment of Principal Judge and that by any other mode such an appointment cannot be made. As to whether there is any real conflict or otherwise, he referred to para 62 of the judgment in Fatehchand Himmatlal v. State of Maharashtra, , to submit that "there must be a real conflict between the two Acts, i.e. the two enactments must come into collision". Fatehchand was a judgment in the context of conflict between the Central Legislation and the State Legislation, but even if one seeks to apply it to Article 309, as was sought to be done in A.B. Krishna v. State of Karnataka (supra), the method of transfer as a mode of appointment need not be seen as a conflicting one. It would therefore be competent to frame rules under article 309 in respect of such a mode of appointment.
30. As stated earlier, a few Advocates appeared to oppose the reliefs sought in the present petition, Mr. Kumbhakoni appeared for respondent No. 28 and referred to and relied upon an unreported Division Bench Judgment (of K.G. Shah & Kapadia, JJ.) in the case of Yeshwant Athalye v. State of Maharashtra, in Writ Petition No. 2611 of 1994 decided on 6th September, 1995. In that matter, the Court was concerned with the appointment of a Judge of the City Civil Court to the post of Additional Principal Judge and in that context the validity of Rule 5(1) of these Rules was under challenge. Mr. Kumbhakoni referred to para 12 of that judgment where the Division Bench in terms observed-
"After the Constitution came into force in view of Article 313 of the Constitution, section 7(b) as also section 6 of the Bombay City Civil Court Act, 1948 became inconsistent with the provisions of Article 233 of the Constitution inasmuch as the Governor, in consultation with the High Court, is the appointing authority in the matter of first appointment/promotion/posting to the cadre of District Judges as defined under Article 236 of the Constitution and in view of Article 313 of the Constitution, the provisions of the Constitution shall prevail over the inconsistent provisions of the statute."
With respect to this judgment, Mr. Parikh pointed out that the entire discussion therein upto first 11 paragraphs was on the question as to whether the post of Additional Principal Judge was a promotional post. Then it was concluded in para 11 as follows:-
"To repeat, the position which emerges, therefore, is that firstly, once a person is appointed as a Judge of the City Civil Court, his further appointment to the post of Additional Principal Judge/ Principal Judge is a further promotion and, therefore, it falls under Article 235 and not under Article 233 of the Constitution."
Mr. Parikh submitted that it was with this approach that the Court had held that the promotion to the post of Additional Principal Judge was under the control of the High Court. Thereafter the Court held that Rule 5(1) was valid, and the earlier observation was made in para 12 which para begins this way:-
"Before concluding we may also notice the second contention advanced on behalf of the petitioner. The petitioner has contended that Amending Rule 5(1), being the impugned Rule, is ultra vires sections 6 and 7 of the Bombay City Civil Court Act, 1948..."
Thereafter there is not much discussion and then the above statement relied upon by the High Court appears. On the other hand, it was submitted by Mr. Kumbhakoni that this decision creates a binding precedent and reliance was placed on the following dicta of the Apex Court in para 8 of the judgment in Government of Andhra Pradesh v. B. Satyanarayana Rao, :-
"A decision by two Judges has a binding effect on another Co-ordinate Bench of two Judges, unless it is demonstrated that the said decision by any subsequent change in law or decision ceased to laying down a correct law."
Mr. Kumbhakoni submitted that in para 12 of the judgment, there is sufficient discussion in support.
31. Mr. Abhay Oka and Mr. Bagadia, other Advocates appearing in the matter, supported the submissions of the learned Advocate General. Mr. Oka drew our attention to a Constitution Bench judgment of the Apex Court in State of Assam v. Ranga Muhammad, . In paragraphs 9 and 10 of the judgment, the Court has dealt with the phrase "appointments of persons to be, and the posting and promotion of District Judges" appearing in Article 233 and has held that the phrase "posting" therein is different from transfer. The Court held-
"It follows therefore that under Article 233, the Governor is only concerned with the appointment, promotion and posting to the cadre of District Judges, but not with the transfer of District Judges already appointed or promoted and posted to the cadre. The latter is obviously a matter of control of District Judges which is vested in the High Court. This meaning of the word "posting" is made all the more clear when one reads the provisions of Articles 234 and 235."
Mr. Bagadia drew our attention to another judgment of a Single Judge (Pendse, J., as he then was in this Court) in Yeshwant Athalye v. High Court, Bombay, reported in 1991(1) Mah.L.R. 288, wherein the learned Judge held that by the phrase "selection" used in Rule 5(1), it is clear that such appointment is not merely on the basis of seniority but it is on the basis of comparative assessment of the performance of the concerned judicial officers. The learned Judge also held that "Principal Judge and the Additional Principal Judges do not cease to be City Civil Court judges and consequently a District Judge within the meaning of the expression "District Judge" under Article 236, of the Constitution". Mr. Bagadia submitted that the person to be appointed to the post of Principal Judge has also to act as a Sessions Judge and there are as many as six special criminal Acts under which he has special powers. He therefore submitted that such an appointment has to be under the Judicial Services Rules which takes care of the dual functions and not merely the one under the Bombay City Civil Court Act. We may also point out that the petition was also opposed by Advocates Mr. Vashi and Mr. Kurup, who appeared in their own capacity. They submitted their grievances with respect to the present 1st Additional Principal Judge who is joined as respondent No. 3. We are however refraining ourselves from going through any of these grievances. We however record at this stage the statement of the learned Advocate General that the service records of the seniormost five Judges of the City Civil Court as well as that of the respondent No. 2 and another Senior District Judge were placed before the Committee of Hon'ble the Chief Justice and the next two seniormost Justices and it is only after comparative assessment of their service record that the selection has been made.
32. We have been ably assisted by the Counsel appearing for the petitioners as well as the learned Advocate General and the Counsel opposing this petition. Recently a judgment on the interpretation of Articles 233 to 236 and 309 has been rendered by the Apex Court in the case of State of Bihar v. Bal Mukund Shah, . That was a matter concerning provisions made for reservation in District Judiciary for the backward classes by passing a State Act and such provisions being made without consultation and without the concurrence of the High Court. After the matter was carried to the Apex Court, a Constitution Bench has given the interpretation to all these Articles. Hon'ble Justices Majumdar, Pattanaik and Banerjee have given the majority opinion and Hon'ble Justices Khare and Sethi have given the minority opinion. Majumdar, J. and Pattanaik J. in their separate but concurrent judgments have dealt with these Articles. Thus in paras 30 to 39, Majumdar, J., has looked into the scheme of all these constitutional provisions. He has emphasised the fact that the approach of the constitution has been that the Executive has to be separated from the Judiciary and after taking a constitutional overview at the end of para 30, he has in terms held that "the general sweep of Article 309 has to be read subject to this complete code regarding appointment of District Judges and Judges in the subordinate judiciary", which we find in the twin Articles 23 and 234. In this para, the learned Judge observed-
"It is not possible to agree with the contention of learned Counsel for the appellant State that these articles only deal with the rule-making power of the Governor, but do not touch the legislative power of the competent legislature. It has to be kept in view that once the constitution provides a complete Code for regulating recruitment and appointment to the District Judiciary and to the subordinate Judiciary, it gets insulated from the interference of any other outside agency."
Again in para 31, he observed-
"These twin Articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate in this field clearly gets excluded by the constitutional scheme itself."
In para 32, the learned Judge observed-
"The enactment of any statutory provision de hors consultation with the High Court for regulating the recruitment to the District Judiciary and to the Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to the Subordinate Judiciary and the exclusive field earmarked in connection with such appointments by Articles 233 and 234."
Subsequently, the learned Judge observed in the same para:-
"The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the legislature cannot, by an indirect method, completely by passing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to the District Judiciary as envisaged by the makers of the Constitution."
In para 36, the learned Judge held-
"The impugned section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to the District Judiciary and the Subordinate Judiciary is concerned. The field is carved out and taken out from the operation of the general sweep of Article 309."
In para 37, the learned Judge further reiterates-
"There is no third method or third authority which can intervene in the process of can have its say, whether legislative authority or executive authority, as the case may be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two articles."
Thus the learned Senior Judge is clear in his interpretation that Articles 309 will not apply when it comes to Articles 233 and 234 of the Constitution and any statute making a provision contrary to Articles 233 and 234 will not be protected. The judgment observes that earlier judgments from Chandramohan v. State of U.P., A.I.R. 1966 S.C. 1987 to M.M. Gupta v. State of J & K., have held that the power of the State Government is not absolute and is conditioned by consultation with High Court. The learned Judge ultimately holds in para 58 that the Governor almost carries out the Ministerial function of appointing recommended candidates both by the Public Service Commission and the High Court.
33. Pattanaik, J., in his separate and concurrent judgment has said the same things in para 66 as follows:-
"The very fact that the framers of the constitution in enacting Article 234 have made the provision, not subject to any acts of the appropriate legislature is the clearest indication of the constitution-makers that so far as the recruitment to the Judicial Service of the State is concerned, the State Legislatures do not possess the necessary power to make law. At the cost of repetition, it may be stated that the expression "recruitment" and the expression "other conditions of service" are two distinct connotations in service jurisprudence and the framers of the constitution have also borne that in mind while engrafting Articles 234 and 309 of the Constitution."
34. In view of what is stated above, the exclusive character and strength of Article 233 for appointment of District Judges (which include the Principal Judge and Judges of the City Civil Court), has been clearly laid down by the Apex Court. No act contrary thereto will be valid and it cannot be protected under Article 309. That being so, there is no question of protecting any pre-constitutional statute by invoking Article 372 either. The Apex Court has held that Articles 233 and 234 form a code by themselves and are insulated from any outside interference. That is the constitutional scheme. That being so, the propositions of law relied upon Mr. Parikh, culled out from judgments on Articles 309 and 372, cannot apply in this field of judicial appointments. That is an exclusive domain of judiciary protected from any executive interference even by an indicate method. What can not be done directly cannot be permitted to be done indirectly also. Mr. Parikh had relied upon the judgments in Kukeshwar Saikia and M.M. Gupta (supra) to contend that the appoints have to be by correct constitutional functionary. Now in State of Bihar v. Bal Mukund (supra), the primacy of the judiciary in these appointments has been clearly spelt out so much so that the function of the Governor is described as almost ministerial.
35. Mr. Parikh tried to take support from the conclusion drawn by the unreported judgment of the Division Bench in Writ Petition No. 2611 of 1994 (supra) in first 11 paragraphs thereof that Principal Judge's post is a promotional post and it falls under Article 235 and not under 233. This reasoning will however no longer stand in view of the subsequent judgment in State of Bihar v. Bal Mukund (supra). Part IV of the Constitution deals with the "States". Chapter VI thereof is on Subordinate Courts. They are divided into two categories; District Judges (Article 233) and judges in the Judicial Service other than District Judges (Article 234). Both are under the control of the High Court under Article 235 as is also explained in State of Assam v. Ranga Muhammad (supra) and a District Judge under Article 236(a) includes a City Civil Court Judge. Appointment of a Principal Judge will also be under Article 233. All appointments of District Judges are exclusively under the High Court as held in Bal Mukund's case (supra). It is another matter that a District Judge is under the control of the High Court for other purposes under Article 235. The observations of Pendse, J., in Yeshwant Athalye v. High Court reported in 1991(1) Mah.L.R. 288 is in fact the correct one that the Principal Judge does not cease to be a City Civil Court Judge and consequently a District Judge under Article 236. The reasoning of the Division Bench in para 12 of Writ Petition No. 2611 of 1994 is however correct on the touch-stone of the propositions in Bal Mukund's case (supra). This submission of Mr. Parikh is therefore rejected.
36. Under Article 233, the qualifications for the post of District Judge have been specified. We do not find them anywhere reflected in section 7 of the Bombay City Civil Court Act. Under Article 233, a consultation with the High Court has been provided. We do not find it anywhere in section 7 of the Bombay City Civil Court Act. As pointed out by Mr. Vahanvati, all these years, Judges have been appointed by transfer from the Districts to the City Civil Court. There is no such provision either under section 7 or anywhere under the Bombay City Civil Court Act. It is very clear therefore that the provision of section 7 of the Bombay City Civil Court Act is in derogation to the requirements under Article 233 of the Constitution, which is the sole provision for the appointment of District Judges. What the Governor has done is that while framing Rules under Article 234 for the Subordinate Judiciary, has framed comprehensive rules in consultation with the High Court to include the Superior Judiciary under Article 233 also, and that is how the District Judges and Principal Judge have also been taken within the compass of the Bombay Judicial Services Rules. Again it is material to note that if the Governor and the High Court thought it necessary to make a provision for appointment by the mode of transfer, (which in fact initially existed from 1956 to 1969, and to bring it back in the year 1992), it was based on their assessment of the requirement. Now, in terms, the Apex Court has held that this is a full legislative power and that being so, it cannot be said to be in any way subordinate to any statute. It is in exercise of that legislative function, if the Governor thought that transfer of District Judges to the City Civil Court and to appoint them as Principal Judge was necessary and if he frames rules in consultation with High Court and Public Service Commission, he was exercising a legislative power and he was in his right to do that. This is because a situation is clearly conceivable that the Senior Judges of the City Civil Court may not have a very good record. In an eventuality like this, the High Court ought to have an authority to make an appointment of an outsider as Principal Judge, if necessary. To read that there is no such power will render the High Court powerless to deal with such a situation and merely on the ground of being a local candidate somebody will have to be appointed as the Principal Judge though his record may not be satisfactory. This was not desirable and hence the rule. (We make it clear that while stating so, we are not making any comment on the Judges presently occupying the posts in the City Civil Court). The fact that such a power has not been exercised all these years cannot mean that such a power does not exist or that it should not be read as existing. There could be occasions when the High Court is required to act in the manner in which it has acted in the present case. The learned Advocate General has informed us that the record of five Senior Judges of the City Civil Court along with two judges from the Districts were placed before the committee of the Hon'ble Chief Justice and two seniormost judges. Having gone through their records, the committee has taken the decision in the interest of the institution. The provision, as it existed from 1956 to 1969, was brought back in the year 1992 and, as stated earlier, it is the full legislative function of the Governor which he has exercised in the instant case. This being a legislative power, the Rules will have to be considered as superior to sections 6 and 7 of the Act and in fact the validity of sections 6 and 7 will have to be looked into on the touch-stone of they being in conformity with these Rules. Obviously they are not.
37. Mr. Parikh submitted that one should read all these requirements into the statute. Therefore it will mean that one should read a consultation with High Court into these sections. One should also read all the necessary qualifications into these sections and then one should also have to read such a power to transfer from the Districts to the City Civil Court into these sections. We fail to understand as to why one should do this exercise. If there is a superior legislative provision made available by the constitution and if the High Court and the State are both saying that such a power is being exercised for the last 45 years, one should take the statement as they are making it. There is need to read all these provisions into these sections 6 and 7. Of course, if the submission of Mr. Parikh is to be accepted, it will mean that the provision of transfer of District Judges to the City Civil Court will be read into the section, but not the provision of appointment of a District Judge directly to the post of Principal Judge by transfer. Such a dichotomic reading cannot be permitted. Even in the case of South India Corporation (supra) relied upon by Mr. Parikh on Article 372, this is what the Apex Court stated in para 15:-
"But the real question is whether the said impugned law is inconsistent with the provisions of the Constitution other than those dealing with its legislative competency. The words "subject to other provisions of the constitution" mean that if there is an irreconcilable conflict between the pre-existing law and a provision or provisions of the constitution, the latter shall prevail to the extent of that inconsistency."
In view of what is stated above, the propositions from the Indian Express or Shantilal Mangaldas cases (supra) can not help the petitioner. There is no question of the rules being subordinate to these statutory provisions. It is the statutory provisions which are in conflict with the constitutional requirements under Article 233 whereas the Rules are constitutional Rules and are fully in conformity with Article 233. Hence the duty to act according to the statute no longer exists. The amendment to City Civil Court Act in 1968 can only be read as creating one additional post of Additional Principal Judge and nothing more. It cannot validate the basic deficiencies in sections 6 and 7 of the Act.
38. The last submission of Mr. Parikh was that respondents Nos. 3 and 4 (presently 1st and 2nd Additional Principal Judges) are senior to respondent No. 2. In paragraphs 20 to 24 of the petition, it is submitted that respondent No. 2 was promoted as District Judge on 14th February, 1992. If that date is considered, then he would be junior to many Judges in the City Civil Court. Besides, it is stated that he gets the selection grade by this appointment order of 20th August, 2001. The learned Advocate General pointed out in this behalf that a decision has been taken in the Chamber Meeting by the High Court on 6th May, 2000 to reckon the seniority of the District Judges appointed by nomination from the date of their initial appointment and accordingly the date of appointment of respondent No. 2 is 15th February, 1989 and he is senior to all the City Civil Court Judges. The 1st Additional Principal Judge (respondent No. 3) is appointed on 7th September, 1989. Mr. Parikh pointed out that this decision of the Chamber Meeting is challenged in the Supreme Court. The Advocate General however pointed out that there is no stay order granted in that matter and the decision of the Chamber Meeting is in consonance with Article 236 of the Constitution. The Advocate General also pointed out that the respondent No. 2 has been given the selection grade much before i.e. from 18th July, 2000. In our view, the seniority list prepared by the High Court will have to be operated in the meanwhile. That is always so in all such service matters. We cannot therefore accept the submission of Mr. Parikh. Mr. Parikh had made a reference to the City Civil Court Cadre being separate from the District Judiciary and in reply some of the intervening Advocates made a passing reference to the Commission appointed on the service conditions and unification of the subordinate judiciary under the Chairmanship of Hon'ble Justice Shetty, retired Judge of the Apex Court. The District Judges have been transferred to the City Civil Court in the past. There is no dispute that thereafter they can be appointed as Principal Judges. Presently we are concerned with the direct appointment of a District Judge as Principal Judge. For examining that issue, in our understanding it is not necessary to go into the wider aspects of the controversy. Besides, as stated above, apart from mentioning this aspect, both the sides have not gone into details thereof except to the extent of the submissions on seniority, selection grade and transfer as recorded earlier. Therefore, we are also refraining ourselves from going into the wider aspects of the present controversy.
39. Thus, respondent No. 2 is a District Judge with selection grade and thereby fulfils the requirement of Rule 5(1)(b). He is also senior in service to all the judges of the City Civil Court. That apart, the Committee of Hon'ble the Chief Justice and two Senior Judges of the High Court has found him to be better suited for this post after considering his service record and all relevant factors in comparison with records of senior most five Judges of the City Civil Court and a District Judge who is otherwise senior to him. The post of Principal Judge is a selection post. In the circumstances, the appointment of respondent No. 2 to the post of a Principal Judge of the City Civil Court, Bombay cannot be faulted in any way whatsoever for allegedly being in derogation of section 7 of the Bombay City Civil Court Act. The appointment is in full conformity with the provisions of Judicial Service Rules, which in turn are in conformity with Article 233. The appointment will therefore have to be held valid. This petition is filed to seek a declaration of invalidity of the amendment of 1992 to the Rules, but in that process, what we have to observe is that it is not the Rules but it is the sections 6 and 7 which are in derogation to the requirements under Article 233 of the Constitution of India. A consistent departure from the Act and contrary practice under the Rules is established since 1956. We therefore accept the submission of Mr. Vahanvati based on the principle of quasi repeal. Therefore the Rules will prevail and not section 7(b). The aforesaid discussion is only with respect to sections 6 and 7 of the Act. The other provisions of the Act were not under consideration before this Court and nothing is being said about the other provisions of the Act.
40. For the reasons stated above, the petition is dismissed, though there will not be any order as to costs.
41. The respondent No. 1 High Court is relieved of the statement which was made earlier, namely that the charge will not be given to respondent No. 2 until the matter is further heard.
42. Mr. Parikh applies orally for leave to appeal to the Apex Court. Inasmuch as we have only followed the law laid down by the Apex Court in State of Bihar v. Bal Mukund Shah (supra), the request is rejected. Mr. Parikh applies for stay of this judgment and order. The post of Principal Judge is lying vacant for the last about 6 months and it is not desirable to continue this position any further. This request is also rejected.
Drawing of certified copy is expedited.
An authenticated copy be made available to the parties.