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PETITIONER: STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: BATUK DEO PATIL TRIPATHI & ANR.

DATE OF JUDGMENT21/02/1978

BENCH:

ACT: Compulsory  retirement of a District Judge from  service  on the   opinion  recorded  by  the  Administrative   Committee constituted under rule 1 of Chapter III of the Rules of  the Allahabad  High  Court, 1952 framed under Art.  225  of  the Constitution, whether valid--Authorising the  Administrative Committee consisting of its   own judges does not amount  to self--abnegation of the High Court’s powers. Constitution   of   India,  1950,  Articles  216,  225   and 235--The High Courts have the power     to  frame rules  for regulating the manner in which the control vested in it may  be exercised. Civil Service  Regulations,   Art.  465,   465A--Powers   of Government to compulsorily retire.

HEADNOTE: The  Allahabad High Court, in exercise of  powers  conferred upon it by Art. 225 of the Constitution and all other powers enabling  it in that behalf has framed Rules, known  as  the Rules  of Court, 1952.  Under Rule 1 of Chapter III  of  the Rules,  an  Administrative Committee composed of  the  Chief Justice, the Judge in the Administrative Department and five other judges appointed by the Chief Justice was  constituted to act for the Court.  Under Rule 7, all matters laid before the  Administrative Committee and the manner in which  those matters were disposed of are to be circulated in a statement to all the Judges of the Court for their information. In  one of the meetings of the Administrative  Committee  of the  High  Court which was held on January 9, 1974,  it  was resolved  by the Committee that respondent No. 1  should  be retired  compulsorily  from service.  The Registrar  of  the High  Court communicated the decision of that  Committee  to the  State Government on January 15, 1974 and thereafter  on January  17, 1974 circulated the minutes of  the  Committees meeting  to  the other judges of the High Court  for  "their information".    The   Governor   of   U.P.   accepted   the recommendation  of the Administrative Committee and  retired respondent  1  compulsorily by an order dated  February  27, 1975. Respondent  1  assailed the said orders  by  an  application under  Art. 226, inter-alia, on the ground that " the  order is  illegal inasmuch as it was passed on the  recommendation of  the  Administrative  Committee, while Art.  233  of  the Constitution requires consultation by the Governor with  the entire  High Court and not with a Committee consisting of  a few  Judges of the, High Court".  This ground  found  favour with  the  Division Bench which heard it.   But  considering that such a view was likely to upset the settled practice of the Court and that it was likely to be in conflict with that Court’s decision in Civil Misc.  No. 1254 of 68 dt. 23-2-70.

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they  directed that the papers of the case be placed  before the  learned Chief Justice for constituting a Full Bench  to consider  the question "whether in view of Art. 233  of  the Constitution,  consultation  with the entire High  Court  is necessary.  before making an order of compulsory  retirement against the District Judge ?" The  Division  Bench  and initially  the  Full  Bench  heard arguments  on  the supposition that the power  to  retire  a District  Judge compulsorily is an incident of the power  of appointment  contained  in Art. 233(1) of  the  Constitution which  provides that appointments of persons to be  and  the posting and promotion of 132 District Judge 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.   After  the  Full Bench reserved its judgment this Court held in High Court of Punjab  and Haryana v. State of Haryana and Ors.,  [1975]  3 S.C.R. 365 that compulsory retirement of a District Judge is not  an incident of the power of appointments  conferred  by Art.  233  of  the Constitution but is an  incident  of  the control rested in the High Court by Art. 235.  Consequently, the  Full  Bench  reframed the question referred  to  it  as "whether  a District Judge can be compulsorily retired  from service  on  the  opinion  recorded  by  the  Administrative Committee  constituted  under Rule 1 of Chapter III  of  the Rules  of  the  Court  ?  The  Full  Bench  also  framed  an additional   question  viz.   "Whether  circulation   of   a statement  to  all  the Judges of  the  Court  showing  what matters  were laid before the Administrative  Committee  and the  manner in which these matters were disposed of  amounts to consultation with the Full Court ? Asthana C.J., who presided over the Full Bench answered both the  questions  in the negative.  K. N. Singh and C.  S.  P. Singh  JJ. agreed by a separate judgement with  the  learned Chief  Justice.   M.  N. Shukla and H. N. Seth  JJ.  took  a contrary  view  and  held  that  a  District  Judge  can  be compulsorily retired from service on the opinion recorded by the  Administrative  Committee.  They did  not  consider  it necessary  to  express any opinion on the  second  question. The  Writ  Petition was allowed  according to  the  majority view,  by the Division Bench.  A  consequential  declaration was  granted  by the Bench that respondent No. 1  should  be treated as continuing in service and was entitled to all the privileges  pay  and allowances which were  permissible  and payable to him under the law. Allowing  the  appeal  by special leave  and  affirming  the minority judgment of the Full Bench, the Court HELD : 1. (a) The minority view of the Full Bench that  Rule 1  of Chapter III of the 1952 Rules framed by the  Allahabad High  Court  is  within the frame work  of  Art.  235.   The recommendation made by the Administrative Committee that the respondent should be compulsory retired does not suffer from any legal or constitutional infirmity. [145 E] (b)  The  amplitude of the power conferred by  Article  235, the imperative need that the High Courts must be enabled  to transact their administrative business more conveniently and an awareness of the realities of the situation, particularly of the practical difficulties involved in a consideration by the  whole Court, even by circulation, of  every  day-to-day matter   pertaining  to  control.  over  the  District   and subordinate  Courts,  lead to the conclusion that  by  rules framed  under Art. 235 of the Constitution, the High  Courts ought   to   be   conceded  the  power   to   authorise   an Administrative  Judge  or  an  Administrative  Committee  of

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Judges to act on behalf of the Court. [145 D-E] (c)  It is wrong to characterize as "delegation" the process whereby the entire High Court authorises a judge or some  of the Judges of the Court to act on behalf of the whole Court. Such  an authorisation effectuates the purpose of  art.  235 and indeed without it the control vested in the High  Courts over  the subordinate Courts will tend gradually  to  become lax  and ineffective.  Administrative functions are  only  a part,  though  an  important  part,  of  the  High   Court’s constitutional  functions.   Judicial  functions  ought   to occupy  and  do in fact consume the best part  of  a  Judges time.    For  balancing  these  two-fold  functions  it   is inevitable that the administrative duties should be left  to be discharged by some on behalf of all the Judges.  Judicial functions brooke no such sharing of responsibilities by  any instrumentality. [144 D-F] (d)  The   Administrative   Judge  or   the   Administrative Committee is a mere instrumentality through which the entire Court  acts  for  the more  convenient  transaction  of  its business,  the assumed basis of the arrangement  being  that such  instrumentalities will only act in furtherance of  the broad  policies evolved from time to time by the High  Court as a whole.  Each Judge of the High Court is 133 an  integral limb of the Court.  He is its alterego.  It  is therefore  inappropriate to say that a Judge or a  Committee of  Judges of the High Court authorised by the Court to  art on its behalf is a delegate of the Court. [144 G-H] 2.   (a) The majority view of the High Court Full Bench that by leaving the decision of the question of the  respondent’s compulsory  retirement to the Administrative Committee,  the Court  hid  abdicated  its Constitutional  function  is  not correct. [142 G-H] (b)  According  to the view of the majority the act  of  the Court  in  allowing the Administrative Committee  to  decide that   question  under  Rule  1  of  Chapter  III   of   the Administrative Committee to decide that question under  Rule 1  of  Chapter  HI of the 1952 Rules is  an  act  of  "self- abnegation"  and therefore, void.  This approach  betrays  a misunderstanding of Article 235. [142-H] (c)  The ideal which inspired the provision (Art. 235)  that the  control  over District Courts  and  Courts  Subordinate thereto shall vest in the High Court is that those wines  of the judiciary should be independent of the executive.  It is in  order to effectuate that high purpose that  Article  235 requires  that  all  matters  relating  to  the  subordinate judiciary  including compulsory retirement and  disciplinary proceedings,  but  excluding the imposition  of  punishments failing  within  the  scope of Article  311  and  the  first appointments  and  promotions,  should  be  dealt  with  and decided upon by the High Court. [142 H, 143 A-B]               High  Court  of Punjab & Haryana v.  State  of               Haryana  and Ors. [1975] 3 SCR 365,  Shamshter               Singh.  v. State of Punjab, [1975] 1 SCR  814;               State  of  Haryana v.  Indra  Prakash,  A.I.R.               [1976]  S.C. 1841, Misra (B.) v.  Orissa  High               Court,  A.I.R. [1976] S.C. 1899;  West  Bengal               v.    Nripendra  Nath  Baghchi  A.I.R.  [1966]               S.C. 447 referred to. (d)  There is no parallel between what the High Court did in Shamsher  Singh and what has been done in the instant  case. In Shamsher Singh v. State of Punjab the action of the  High Court  in asking State Government to depute the Director  of Vigilance to, hold in inquiry against a judicial officer was deprecated  by  this Court as an act  of  "self-abnegation".

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The  High Court bad abdicated therein its control  over  the subordinate  judiciary, which includes the power to  hold  a disciplinary   inquiry  against  a  defaulting   judge,   by surrendering that power to the executive.  That truly was an act of self-abnegation.  Here, the decision to  compulsorily retire  the respondent was taken by the Judges of  the  High Court itself though not by all.  If some but not all  judges of  the High Court Participate in a decision relating  to  a matter  which  falls  within the  High  Courts’  controlling jurisdiction  over subordinate courts, the High  Court  does not efface itself by surrendering its power to an extraneous authority.   The procedure adopted by the High  Court  under its  Rules  is  not subversive of the  independence  of  the subordinate  judiciary which is what Article 235  recognises and seeks to achieve. [143 C-F] Shamsher  Singh  v.  State  of Punjab,  [1975]  1  SCR  814; explained  &   distinguished. 3.   Art.  225, it is true, preserves, inter alia  the  pre- constitution  powers of existing High Courts to frame  rules and  the  High  Court of Allahabad did  not,  prior  to  the enactment  of the Constitution, possess the power  to  frame rules  authorising a judge or a Committee of judges  of  the High  Court to act on behalf of the Court.  But Article  225 is  not  the sole repository of the High  Court’s  power  to frame rules. [140 E-F] 4.   The  High Court has the power under Art. 235 itself  to frame  rules for regulating the manner in which the  control vested  in it may be exercised.  The relevant part  of  Art. 235 of the Constitution provides that the control over  Dis- trict Courts and Courts subordinate thereto shall be  vested in  the High Court.  Since Article 216 provides  that  every High  Court shall consist of a Chief Justice and such  other judges  as  the  President may from time  to  time  deem  it necessary  to  appoint, Article 235 has to be  construed  to mean  that  the  control over  District  Courts  and  Courts subordinate thereto is vested in the entire body of 134 judges who together constitute the High Court and not in the Chief  Justice as representing the High Court or  a  smaller body  of judges acting as an Administrative Committee.  [140 G-H] 5.   (a) But, though the control over subordinate Courts  is vested institutionally in the High Courts by Article 235, it does  not  follow  that the High Courts  have  no  power  to prescribe  the manner in which that control may in  practice be exercised.  In fact, the very circumstance that the power of  control,  which comprehends matters  of  a  wide-ranging variety,  vests  in  the  entire body  of  Judges  makes  it imperative that rules must be framed to make the exercise of control  feasible, convenient and effective.  The  seeds  of jurisdiction  to frame rules regulating the manner in  which the  control over subordinate Courts is to be exercised  are thus to be found in the very nature of the power and in  the fact that the  power  vests  in the entire body  of  Judges. [140 H, 141 A-B] (b) The   power  to do a thing necessarily carries  with  it the power to regulate the     manner in which the thing  may be done.  It is an incident of the power itself and  indeed, without  it,  the exercise of the power may in  practice  be fraught with   difficulties  which  will  frustrate,  rather than further, the object of the power.  It  is   undoubtedly true  that  the rules framed for prescribing the  manner  in which  a power may be exercised have to be truly  regulatory in character.  The reason is that under the guise of framing rules,  the essence of the power cannot be permitted  to  be

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diluted.  The abstract power of the High Court    to   frame the impugned rules cannot be doubted and must be conceded. [141 B-E] 6.   The  power to compulsorily retire the respondent  could be  exercised  by the Court either under Note 1 of  465A  or Note 1 of article 465 of the Civil Service Regulations. [146 C]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1070  of 1977. (Appeal by special leave from the Judgment and Order dt. 18- 4-77  of the Allahabad High Court in Civil Misc.   Writ  No. 3561 of 1975) S.   N.  Kacker,  Sol.   General  &  O.  P.  Rana,  for  the Appellant. S.   N.  Misra, E. C. Agrawala, M. M. L. Srivastava & U.  S. Prasad for the respondent. The Judgment of the Court was delivered by CHANDRACHUD,  J.-Respondent  1,  Batuk  Deo  Pati  Tripathi, joined the Judicial Service of the State of Uttar Pradesh as a  Munsif in 1943 and after intervening promotions,  he  was appointed  as  a District Judge  on April 13,  1969.   Under Note (1) to Article 465-A of the Civil Service  Regulations, as  adopted  for application in Uttar  Pradesh,  the   State Government  may at any time, without assigning  any  reason, require any officer to retire on three months’ notice or pay in  lieu of whole or part thereof after he has attained  the age  of 50 years.  Such decision is required to be taken  by the Government in its Administrative Department and only  if it  appears to it to be in public interest to do  so.   Some time  in 1969 the State Government requested the High  Court of  Allahabad, respondent 2 to this appeal, to screen  cases of  judicial  officers in order to determine which  of  them should   be   retired  compulsorily  under   the   aforesaid provision.   In  one of the meetings of  the  Administrative Committee  of  the High Court which was held on  January  9, 1974,  it  was resolved by the Committee that  respondent  1 should be retired compulsorily from service.  The  Registrar of   the  High  Court  communicated  the  decision  of   the Administrative Committee to the State Government,  appellant herein, and thereafter, he 135 circulated  to all the Judges of the High Court,  for  their intimation,   the  decision  taken  by  the   Administrative Committee.     The   Governor   of   U.P.    accepted    the recommendation  of the Administrative Committee and  retired respondent  1  compulsorily by an order dated  February  27, 1975. Respondent 1 filed a writ petition under Article 226 of  the Constitution  against  the State of Uttar  Pradesh  and  the Allahabad  High  Court  challenging  the  validity  of   the aforesaid order on the following grounds               (1)   The order is illegal since no salary was               paid  to  respondent 1 at the  time  when  the               order was passed;               (2)   The  order  is really in the  nature  of               punishment  since  it casts a  stigma  and  is               therefore  contrary  to  Article  311  of  the               Constitution;               (3)   Article  465-A  of  the  Civil   Service               Regulations  in so far it purports to  empower               the  Government to consult the  administrative

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             head of the Department before passing an order               thereunder,  contravenes  Article 233  of  the               Constitution;               (4)   The  order  was  passed  on   irrelevant               considerations since the High Court had  taken               into  account  the character roll  entries  of               respondent  1  prior to the date when  he  was               allowed to cross the efficiency bar;               (5)   The  order is arbitrary, capricious  and               perverse; and the satisfaction that it was  in               public   interest  to  retire   respondent   1               compulsorily was based on no material;               (6)   The  order  was passed by  the  Governor               without  any application of mind since it  was               passed in pursuance of a general policy agreed               upon  between  the  Governor  and  the   Chief               Justice    of    the    High    Court,    that               recommendations   of   the  High   Court   for               retirement  of  judicial  officers  should  be               accepted without scrutiny; and               (7)   The order is illegal inasmuch as it  was               passed   on   the   recommendation   of    the               Administrative Committee, while Article 233 of               the Constitution requires consultation by  the               Governor  with the entire High Court  and  not               with a committee consisting of a few Judges of               the Court. A Division Bench of the High Court consisting of Gulati  and C.  S. P. Singh, JJ. rejected the first six  contentions  by their   judgment  dated  December  5,  1975.   On  the   7th contention  they were inclined to the view that Article  233 of the Constitution postulates consultation with the  entire High  Court and therefore the High Court in the exercise  of its  rule-making  power cannot delegate its  function  to  a smaller  body.  But considering that such a view was  likely to upset the settled practice 136 of  the Court and that it was likely to be in conflict  with the  decision  in Civil Misc.  Writ No. 1254 of  1968  dated February 23, 1970, they directed that the papers of the case be placed before the learned ’Mel’ Justice for  constituting a  Full Bench to consider the question "whether in  view  of Article  233  of  the Constitution,  consultation  with  the entire  High  Court is necessary before making an  order  of compulsory retirement against the District Judge". The  Writ Petition was then placed for hearing before a  Fun Bench  of the High Court consisting of five learned  Judges. The  Division  Bench  and initially  the  Full  Bench  heard arguments  on  the supposition that the power  to  retire  a District  Judge compulsorily is an incident of the power  of appointment contained in Article 233(1) of the  Constitution which  provides that appointments 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.   After  the Full Bench reserved its  judgment,  this Court  held in High Court of Punjab and Haryana v. State  of Haryana  & Ors.(1) that the initial appointment and  initial promotion  of District Judges rested with the Governor,  but once  they were appointed or promoted to be District  Judges the entire control, over them was vested in the High  Court. The  power  of  the Governor in the  matter  of  appointment included  the power of dismissal, removal and  reduction  in rank  but since compulsory retirement is neither  dismissal, removal  nor  reduction  in rank the power  in  that  behalf

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vest,-, in the High Court and not in the Governor.  In  view of the judgment of this Court referred to above and  certain other judgments, it is clear that compulsory retirement of a District  Judge  is  not  an  incident  of  the  powers   of appointment conferred by Article 233 of the Constitution but is  an incident of the control vested in the High  Court  by Article 235.   Consequently,  the  Full Bench  reframed  the question referred to it as    follows               "Whether a District Judge can be  compulsorily               retired  from service on the opinion  recorded               by  the Administrative  Committee  constituted               under  rule 1 of Chapter ITT of the  Rules  of               the Court".               The  Full  Bench  also  framed  an  additional               question,               "Whether circulation of a statement to all the               Judges of the court showing what matters  were               laid  before the Administrative Committee  and               the  manner  in  which  those  matter.-,  were               disposed of amounts to consultati on with  the               Full Court". Asthana,  C.J., who presided over the Full  Bench,  answered both the questions in the negative, K. N. Singh and C. S. P. Singh,  JJ., agreed by a separate judgment with the  learned Chief  Justice.   M. N. Shukla and H. N. Seth,  JJ.  took  a contrary  view  and  held  that  a  District  Judge  can  be compulsorily retired from service on the opinion recorded by the  Administrative  Committee.  They did  not  consider  it necessary to express any opinion on the second question. (1)  A.I.R. 1975 S.C. 613 ; [1975] 3 S.C.R. 365. 137 The  Writ  Petition then went back to a Division  Bench  for disposal  which, in accordance with the majority  view,  set aside  the  order  by which respondent  1  was  compulsorily retired   and   allowed  the  petition.    A   consequential declaration  was  granted  by the Bench  that  respondent  1 should be treated as continuing in service and was  entitled to  all  the  privileges,  pay  and  allowances  which  were permissible  and  payable  to  him  under  the  law.   Being aggrieved  by the judgment, the State of Uttar  Pradesh  has filed this appeal by special leave.  Since the High Court of Allahabad  which was impleaded as respondent 2 to  the  Writ Petition had no effective contentions to make in the matter, we will for the sake of convenience refer to respondent 1 as "the respondent". The  main question for consideration is whether  a  District Judge can be compulsorily retired from service on the  basis of  the  opinion recorded by  the  Administrative  Committee constituted under rule 1 of Chapter III of the Rules of  the Court.  It is necessary for a determination of this question to refer to the relevant Rules of the Allahabad High Court. The High Court, to the exercise of the powers conferred upon it  by Article 225 of the Constitution and all other  powers enabling  it in that behalf, has framed Rules known  as  the Rules-of  Court,  1952.   The relevant  rules  contained  in Chapter III of the Rules are these                         CHAPTER III         EXECUTIVE AND ADMINISTRATIVE BUSINESS OF THE                            COURT               1.    Subject  to these Rules, a Committee  of               Judges  composed  of the  Chief  Justice,  the               Judge  in  the Administrative  Department  and               five other Judges to be appointed by the Chief               Justice,  referred  to in these Rules  as  the               Administrative  Committee, shall act  for  the

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             Court.   The  Chief  Justice  shall  have  the               charge  of, and may act for the court  in               the   Administrative   Department   and    the               executive    and    administrative    business               pertaining to the Court, except that the Judge               in  the Administrative Department  shall  have               charge  of, and may act for the Court  in  the               Administrative  Department and  the  executive               and administrative business pertaining to  the               Courts  subordinate to the Court.  As  far  as               possible,  the  Judge  in  the  Administrative               Department  shall  discharge  his  duties  and               functions in consultation with the  Inspection               Judges  concerned, who shall be  appointed  by               the Chief Justice from time to time.               The  membership of the Committee shall be  for               two  years  except in the case  of  the  Chief               Justice  and the Judge in  the  Administrative               Department.               2.    From time to time and as occasion arises               the  Chief Justice shall nominate one  of  the               Judges   to   act   as  the   Judge   in   the               Administrative  Department,  whose  terms   of               office    shall   be   three   years    unless               renominated.               10-211 SCI/78               138               3.    All    executive   and    administrative               business    and    all   business    in    the               Administrative  Department  requiring  orders,               shall  be  submitted by the Registrar  to  the               Chief   Justice   or   the   Judge   in    the               Administrative Department, as the case may be,               together with his comments thereon, if any and               may,:  subject to these Rules, be disposed  of               by that Judge’.               4.    The   Judge   in   the    Administrative               Department shall, before passing final orders,               cause to be circulated for the information  of               the  Judges  of the  Administrative  Committee               then present in Allahabad, his recommendations               as to the appointment, promotion or suspension               of judical officers.               Should    any   Judge   dissent   from    such               recommendations, he shall signify his  dissent               and his reasons therefor in writing.               5.    (1)  In regard to the following  matters               the  Judge  in the  Administrative  Department               shall  consult  the  Administrative  Committee               either  by  circulating the  papers  connected               with the matter together with his own  opinion               or  recommendation thereon to the  members  of               the Committee then present in Allahabad or  by               laying  it  before a metting of  the  Adminis-               trative Committee, namely-               (a)   the   issue   of  General   Letters   to               subordinate courts;               (b)   the  issue of directions  regarding  the               preparation of returns and statements;               (c)   all matters of importance upon which the               Government desires the opinion of the Court;               (d)   appointment of the U.P. Higher  Judicial               Service; and               (e)   any other matter which the Chief Justice               or the Judge

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             in the Administrative Department may  consider               fit to be laid before it for consideration.               (2)   Copies of all General Letters issued  to               subordinate courts shall be circulated to  all               Judges for information as soon as may be after               issue.               7.    As soon as the Administrative  Committee               has  disposed  of any  business,  a  statement               showing  what  matters were  laid  before  the               Committee  and the manner in which  they  were               disposed   of   shall   be   circulated    for               information  to all Judges except such  Judges               as may be on leave.               8.    On  the  following  matters  all  Judges               shall be consulted,               namely-               (a)   proposals  as to legislation or  changes               in the law;               (b)   proposals as to changes in or the  issue               of new Rules of  Court;                139               (c)   proposals as to changes in or the  issue               of  new rules for the guidance of  subordinate               courts;               (d)   withholding  of promotion,  supersession               or   reduction  of  judicial   officers,   not               occasioned  by the selection of  officers  for               appointment   to  the  U.P.  Higher   Judicial               Service;               (e)   important  questions of policy or  those               affecting the powers and status of the Court;               (f) matters connected with the Supreme Court;               (g)   annual  administration  report  due  for               submission to Government before it is  adopted               by the Administrative Committee;               (h)   deleted.               (i)   any other matter which the Chief Justice               of  the Administrative Committee may  consider               fit to be laid before them for consideration. 12. So    far as convenient, papers for circulation shall be sent  by  the Registrar to the Judges at  Allahabad  and  at Lucknow  in  their order of seniority, commencing  with  the junior  Judge.  The Registrar shall so far  as  practicable, obtain  from each Judge such papers within three  days  from the date when the same are sent to him.  The Registrar shall endorse  on the papers the date when they are sent  to,  and the  date when they are received back from each  Judge.   It shall  not be necessary to send papers to any Judge who  is- not for the time being in Allahabad or Lucknow. 13.  When  a Judge does not write his opinion  within  three days from the date when he receives any urgent paper sent to him  for  opinion, he shall be deemed to  have  declined  to express any opinion on the matter. 14.  After any papers have been circulated for opinion, they shall  be submitted again, according to  the  subject-matter thereof,   to  the  Chief  Justice  or  the  Judge  in   the Administrative Department and he may either direct that  the opinion  of the majority of the Judges including his own  be given effect to or lay the matter for consideration before a Judges’   meeting  or  a  meeting  of   the   Administrative Committee, as the case may be. 15.  The  Chief  Justice may call a  judges’  meeting  or  a meeting  of  the Administrative Committee whenever there  is business to be disposed of:               Provided  (i) That a Judges’ Meeting shall  be

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             called  once every three months excluding  the               summer vacation;               (ii)  further that if a request is made to the               Chief  Justice  by not less than 5  Judges  to               call  a meeting such meeting shall  be  called               within a week of the request. 140 17.,  The quorum necessary for the transaction  of  business shall   be   three  in  the  case  of  a  meeting   of   the Administrative Committee and seven in the case of a  Judges’ meeting.. 18.  In case of a difference of opinion at a Judges’ meeting or  a meeting of the Administrative Committee  the  decision shall  be in accordance with the opinion of the majority  of the  Judges  present,  and in case the,  Judges  present  be equally  divided,  the Chief Justice or in his  absence  the Senior Judge present shall have a casting, vote." A  question  was  mooted as regards the power  of  the  High Court, to frame rules under Article 225 of the  Constitution authorising  a. Judge or a Committee of Judges of  the  High Court  to  act on behalf of the whole  court.   Article  225 provides in. so far as material that the jurisdiction of any existing High Court and the respective powers of the  Judges thereof in relation to the administration of justice in  the Court, including any power to make rules of Court, shall  be the  same  as  immediately before the  commencement  of  the Constitution.  It is urged that Article 225 merely saves the pre-Constitution  powers of High Courts in  certain  matters and  since  under the Letters Patent of the  High  Court  of Judicature  at  Allahabad, the Government of India  Acts  of 1919  and  1935 and the U.P. High Court  Amalgamation  Order 1948, the High Court of Allahabad did not possess the  power to   frame   rules  authorising  either  a   Judge   or   an Administrative  Committee of Judges to act on behalf of  the whole court, the Rules of Court framed by the High Court  in 1952  are beyond its competence in so far as they  authorise the Administrative Judge or the Administrative Committee  to act on behalf of the court. Article  225,  it is true, preserves: inter  alia  the  pre- Constitution. powers of existing High Courts to frame  rules and  it  may  be  assumed  for  purposes  of  argument,   an assumption  which is largely borne out by provisions of  the laws  mentioned  in the preceding paragraph, that  the  High Court  of Allahabad did not, prior to the enactment  of  the Constitution, possess the power to frame rules authorising a Judge or a Committee of Judges of’ the High Court to act  on behalf  of  the  court.  But Article 225  is  not  the  sole repository  of the High Courts’ power to frame  rules.   The relevant  part of Article 235 of the  Constitution  provides that the control over District Courts and courts subordinate thereto  shall be vested in the High Court.   Since  Article 216 provides that every High Court shall consist of a  Chief Justice  and  such other Judges as the  President  may  from rime, to time deem it necessary to appoint, Article 235  has to  be  construed’ to mean that the  control  over  District Courts  and  courts  subordinate thereto is  vested  in  the entire body of Judges who together Constitute the High Court and not in the Chief Justice as representing the High  Court or  an  Administrative  Judge or a smaller  body  of  Judges acting  as  an  Administrative Committee.   But  though  the control over subordinate courts is vested institutionally in the High Courts by Article, 235, it does not follow that the High  Courts have no power to prescribe the manner in  which that control may in practice be exercised, 141

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In  fact, the very circumstance that the power  of  control, which  comprehends matters of a wide-ranging variety,  vests in the entire body of Judges makes it imperative that  rules must  be  framed to make the exercise of  control  feasible, convenient and effective.  The seeds of the jurisdiction  to frame rules regulating the manner in which the control  over subordinate  courts is to be exercised are thus to be  found in  the  very nature of the power and in the fact  that  the power  vests in the entire body of Judges.  The  High  Court has, therefore, the power under Article 235 itself to  frame rules for regulating the manner in which the control  vested in it may be exercised. The  power  to do a thing necessarily carries  with  it  the power to regulate the manner in which the thing may be done. It  is in incident of the power itself and  indeed,  without it,  the  exercise of the power may in practice  be  fraught with difficulties which will frustrate, rather than further, the  object of the power.  It is undoubtedly true  that  the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory in character.   The reason is that under the guise of framing rules, the essence of the power cannot be permitted to be diluted.  But that is a separate matter which we will consider later.  The limited object of the present discussion is to show that High Courts possess the power under Article 235 to prescribe the  manner in which the control over subordinate courts vested in  them by  that  article may be exercised.  That explains  why  the Allahabad  High Court framed Rules of 1952 not only  in  the exercise of power possessed by it under Article 225, but  In the exercise of all other powers enabling it in that behalf. One of such powers is to be found in Article 236 itself  and therefore the abstract power of the High Court to frame  the impugned rules cannot be doubted and must be conceded. We  call  such a power ’abstract’ in order  to  prepare  the ground  for consideration of the main point involved in  the appeal.  The High Court may possess the power to frame rules under Article 235 and yet the rules framed by it may be  bad because  they are derogatory to the terms of  that  Article. In  other  words,  if  by  Article  235  the  control   over subordinate  courts is vested in the High Court as a  whole, is it permissible to the High Court to, provide by framing a rule that a matter falling within the area of control may be decided,  not  by  the  whole court, but by  a  Judge  or  a Committee of Judges acting on behalf of the court?  That  is the  first question which the Full Bench of the  High  Court formulated for its consideration. Compulsory  retirement of Judges of the District  Court  and subordinate  courts is a matter which falls squarely  within the  power of control vested in the High Courts  by  Article 235  of the Constitution.  That is clear from the  decisions of  this Court in High Court of Punjab and Haryana v.  State of   Haryana  and  ors.(1),  Shamyher  Singh  v.  State   of Punjab(2), State of Haryana v. indre Prakash(3) (1)  A.I.R. 1975 S.C. 613--[1975] 3 S.C.R. 365. (2)  [1975] 1 S.C.R. 814.  (3) A.I.R. 1976 S.C. 1841. 142 and  B. Misra v. Orissa High Court(1).  The  respondent  was compulsorily  retired from service as a District  Judge,  on the  recommendation of the Administrative Committee  of  the High  Court; and it is clear from the facts and sequence  of events  that  the  other Judges of the  High  Court  had  no effective  opportunity  to  consider  the  pro.  priety   or correctness of the decision of the Administrative  Committee recommending to the State Government that the respondent  be

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retired compulsorily.  The resolution of the  Administrative Committee  is dated January 9, 1974.  The Registrar  of  the High  Court communicated the decision of that  Committee  to the  State  Government on January 15, 1974.   The  Registrar circulated  the  minutes of the  Administrative  Committee’s meeting  of January 9 to the other Judges of the High  Court on  January  17, 1974.  We were shown the  minutes  and  the Registraes letter of January 17, from which it is clear that the  Judges to whom the minutes word circulated  made  their initials  or signatures. thereon in token only of  the  fact that   they   were   informed  of  the   decision   of   the Administrative Committee.  They have neither expressed their concurrence  nor their dissent which, indeed, goes  to  show that Rule 7 merely contemplates, what it says, that as  soon as   the  Administrative  Committee  has  disposed  of   any business, a statement showing what matters were laid  before the Committee and the manner in which they were disposed  of shall be circulated "for information" to all the Judges. But the language of Rule 7 and the shape of events leave un- answered  the first question whether a power vested  in  the Court as such can, with the considered consent of the  Court itself, be exercised on its behalf by a Judge or a Committee of  Judges of that very Court.  The reason for referring  to Rule 7 and the formal treatment which the other Judges  gave to  the Registrar’s circular informing them of the  decision taken  by the Administrative Committee is to emphasize  that the  first  question  framed by the Full  Bench  has  to  be answered  on  the basis that the other Judges  of  the  High Court  were  not  consulted  upon and  had  no  occasion  or opportunity to consider the justness, propriety or necessity of  the decision taken by the Administrative Committee  that the respondent be retired compulsorily. Having  given  our close and anxious consideration  to  that question’, we regret that we are unable to share the view of the  majority of the High Court Full Bench that  by  leaving the  decision of the question of the respondents  compulsory retirement  to the Administrative Committee, the  Court  had abdicated  its  constitutional function.  According  to  the view  of the majority, the act of the Court in allowing  the Administrative Committee to decide that question under  Rule 1  of  Chapter  III of the 1952 Rules is an  act  of  "self- abnegations"  and  therefore void.  This  approach  betrays, with  respect, a misunderstanding of the object  of  Article 235.   The  ideal  which inspired  the  provision  that  the control over District Courts and courts subordinate  thereto shall  vest  in the High Court is that those  wings  of  the judiciary (1)  A.I.R. 1976 S.C. 1899. 14 3 should be independent of the executive.  Tracing the history of  that  concept,  Hidayatullah,  J.  in  West  Bengal   v. Nripendra  Nath Baghchi(1) has highlighted the  meaning  and purpose of Article 235.  It is in order to effectuate,  that high purpose that Article 235, as construed by this Court in various decisions, requires that all matters relating to the subordinate  judiciary including compulsory  retirement  and disciplinary  proceedings  but excluding the  imposition  of punishments falling within the scope of Article 311 and  the first  appointments and promotions should be dealt-with  and decided  upon  by  the High Courts in the  exercise  of  the control   vested  in  them.   A  proper  understanding   and appreciation of this position will be conducive to a correct assessment of the situation   under   examination   in   the instant  case.  For, knowing that the object of Article  235 is  to ensure the independence of an important wing  of  the

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judiciary,  the inquiry which assumes relevance  is  whether the  procedure sanctified by the Rules of the High Court  is in any manner calculated to interfere with or undermine that independence.    Does   that   procedure   involve    "self- abnegation",  by  conceding  the right  of  control  to  any outside  authority ? It is pertinent, while we, are on  this question, to know the context in which the expression "self- abnegation"  was  used by this Court.  In Shamher  Singh  v. State  of  Punjab (supra) the action of the  High  Court  in asking  the  State  Government to  depute  the  Director  of Vigilance to hold an inquiry against a judicial officer  was deprecated by this Court as an act of self-abnegation.   The High  Court  abdicated  its  control  over  the  subordinate judiciary,  which includes the power to hold a  disciplinary inquiry  against  a defaulting Judge, by  surrendering  that power  to  the executive That, truly, was an  act  of  self- abnegation, There is no parallel between what the High Court did in Shamsher Singh and what has beer done in the  instant case.    Here,  the  decision  to  compulsory   retire   the respondent was taken by the Judges of the High Court itself, though  not by all.  If some but not all Judges of the  High Court  participate in a decision relating to a matter  which falls  within the High Courts controlling jurisdiction  over subordinate courts, the High Court does not efface itself by surrendering  its  power  to an  extraneous  authority’  The procedure  adopted by the High Court under its Rules is  not sub   versive  of  the  independence  of   the   subordinate judiciary,which is wha Article 235  recognised and seeks  to achieve.  The true question then for decision is not the one by  which the majority of the Full Bench fell oppressed  but simply,  whether the procedure prescribed by the High  Court Rules is in any other manner inconsistent with the terms  of Article 235 of the Constitution. Yet another misconception may now be cleared.  It is urged o behalf  of the respondent by his learned counsel Shri  Misra that  under Article 216, ’High Court’ means the entire  body of Judges appointed to the Court and therefore, the  control over  the subordinate judiciary, which is vested by  Article 235 in the High Court must be exercised by the whole body of Judges.   The thrust of the argument is that the High  Court cannot  delegate  its  functions or power to a  Judge  or  a smaller body of Judges of the court.  This argument requires consideration the question whether any delegation as such is involved in the processes (1)  A.I.R. 1966 S.C. 447. 144 whereby a Judge or a Committee of Judges of the court,  like the  Administrative  Committee  in  the  instant  case,   is authorised by the whole court to act on behalf of the court. For  answering  this question it is necessary in  the  first place  to  bear in mind that the power of control  over  the subordinate  courts  which  is  vested  in  the  High  Court comprises    such   numerous   matters,   often    involving consideration of details of the minutest nature, that if the whole High Court is required to consider every one of  those matters,  the  exercise  of  control  instead  of   becoming effective  will  tend to cause delay and  confusion  in  the administration  of  justice in the  State.   A  construction which  will frustrate the very object of the salient  provi- sions contained in art. 235 ought, as far as possible, to be avoided.   The  control vested in the High  Courts  by  that article  comprehends,  according to our decisions,  a  large variety  of  matters like  transfers,  subsequent  postings, leave, promotions other than initial promotions,  imposition Of  minor  penalties  which do not  fall  within  art.  311,

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decisions regarding compulsory retirements,  recommendations for imposition of major penalties which fall within art.  31 1, entries in character rolls and so forth.  If every  Judge is  to  be  associated  personally  and  directly  with  the decision  on every one of these matters,  several  important matters  pertaining  to  the  High  Court’s   administrative affairs will pile into arrears like court arrears.  In fact, it is no exaggeration to say that the control will be better and  more  effective  exercised if a  smaller  committee  of Judges has the authority of the court to consider the  mani- fold  matters  falling  within  the  purview  of  art.  235. Bearing in mind therefore the nature of the power which that article  confers on the High Courts, we are of  the  opinion that it is wrong to characterise as ’delegation’ the process whereby the entire High Court authorises a judge or some  of the  Judges  of  the Court to act on  behalf  of  the  whole court.Such an authorisation effectuates the purpose of  art. 235  and findeed without it the control vested in  the  High Court  over  the subordinate courts will tend  gradually  to become  lax and ineffective.  AdMinistrative  functions  are only  a part, though an important part, of the High  Courts’ constitutional  fUnctions.  Judicial functions ought to  oc- cupy and do in fact consume the best part of a Judge’s time. For balancing these two-fold functions it is inevitable that the  administrative duties should be left to be  discharged, by  some  on behalf of all the judges.   Judicial  functions brooke   no   such  sharing  of  responsibilities   by   any instrumentality. The  High  Court  has  not  by  its  Rules  authorised   any extraneous authority as in Shamsher Singh (supra) to do what the   Constitution   enables  and  empowers  to   do.    The Administrative  Judge or the Administrative Committee  is  a mere  instrumentality through which the entire  Courts  acts for  the  more convenient transaction of its  business,  the assumed   basis   of  the  arrangement   being   that   such instrumentalities will only act in furtherance of the  broad policies  evolved from time to time by the High  Court as  a whole.  Each Judge of the High Court is in integral limb  of the  Court.   He  is its alter ego.   It  is  therefore  in- appropriate to say that a Judge or a Committee of Judges  of the High Court authorised by the Court to act on its  behalf is a delegate of the Court. 145 Since  a  Judge  of  the High  Court  or  an  Administrative Committee  consisting  of  High Court  Judges  is,  for  the purposes of matters falling within art. 235, not a  delegate of the High Court, the principle enunciated by S.A. de Smith in  his  famous work on Judicial  Review  of  Administrative Action  (3rd edn, 1973, P. 263) that a  discretionary  power must,  in  general, be exercised only by  the  authority  to which it has been committed has no application. The  various cases discussed by the learned author have arisen, as stated by him at p. 265, in diverse, contexts and many of them turn upon  unique points of statutory interpretation.   The  true position as stated by the author is :               "The maxim delegatus non-potest delegere  does               not enunciate a rule knows no exception; it is               a  rule of construction to the effect that  "a               discretion  conferred  by  statute  is   facie               intended  to be exercised by the authority  on               the  statute has conferred it and by no  other               authority, but this intention may be negatived               by  any  contrary  indications  found  in  the               language, scope or object of the statute." We  have pointed out above that the amplitude of  the  power

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conferred  by  aft. 235, the imperative need that  the  High Courts  must  be enabled to  transact  their  administrative business more conveniently and on awareness of the realities of the situation, particularly of the practical difficulties involved  in  a consideration by the whole  court,  even  by circulation,  of  every  day-to-day  matter  pertaining   to control  over the District and subordinate Courts,  lead  to the  conclusion that by rules framed under art. 235  of  the Constitution  the High Court ought to be conceded the  power to  authorise on Administrative Judge or  an  Administrative Committee of Judges to act on behalf of the Court.   Accord- ingly,  we  uphold the minority judgment of the  Full  Bench that  rule 1 of Chapter III of the 1952 Rules framed by  the Allahabad  High Court is within the framework of  art.  235. The recommendation made by the Administrative Committee that the   respondent  should  be  compulsorily  retired   cannot therefore be said to suffer from any legal or constitutional infirmity. Learned counsel for the respondent also, argued on the other contentions involved in the remaining six issues which  were decided  against the respondent by the Division Bench  prior to  the reference made by it to the Full Bench.  We  see  no substance in any of those contentions.  ’There are no  words in the order of the compulsory retirement casting any stigma on the respondent and therefore the grievance that the order is  in  the  nature  of  punishment  is  unjustified.   The, statement  made  on behalf of the Government on  matters  of public  policy  in  which it was claimed  that  corrupt  and undesirable  officials were being weeded out cannot  justify the conclusion that the respondent was retired  compulsorily by reason of any stain attaching to his character.  Nor  are we  impressed  by  the contention  that  the  Administrative Committee had no material before it on the basis of which it could  conclude  that  the  respondent  should  be   retired compulsorily.   We  do not think that this  Court  would  be justified  in interfering in such matters with the  exercise of  a  discretionary power which, by  the  Constitution,  is vested in the 146 High  Courts. it appears that the output of  the  respondent was  substandard  and even if the entries in  his  character roll  prior  to the time when he was allowed  to  cross  the efficiency bar are ignored, there was enough material before the  Administrative Committee to come to the conclusion  to, which it did. Shri  Mishra attempted to urge that art. 465-A of the  Civil Service Regulations has no application to the case by reason of  the fact that the respondent was not holding any of  the posts mentioned in art. 349-A and therefore. no action could be  taken  against  him  under Note  1  to  art.  465-A  for compulsorily retiring him.  The argument does not appeal  to us.   But it is not necessary to consider it in  any  detail because a similar note is appended to art. 465 also and  the application  of that article is not restricted  to  officers mentioned  in art. 349-A.  Whether therefore the one or  the other  articles  applies  to the respondent,  the  power  to compulsorily retire him could be exercised by the Government either under Note 1 of art. 465-A or Note 1 of article 465. For  these reasons we allow the appeal, affirm the  minority judgment  of the Full Bench and uphold the validity  of  the order  passed by the State Government compulsorily  retiring the respondent.  There will be no order as to costs. S.R.                         Appeal allowed. 147

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