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CASE NO.:

Appeal (civil) 59 of 2001

PETITIONER:

High Court of Judicature for Rajasthan

RESPONDENT:

P.P. Singh & Anr.

DATE OF JUDGMENT: 27/01/2003

BENCH:

CJI,S.B. Sinha & AR. Lakshmanan

JUDGMENT:

J U D G M E N T

W I T H

CIVIL APPEAL NOS. 60, 61, 62, 63 AND 64 OF 2001

S.B. SINHA, J :

The effect of the recommendations of a Committee of two

Judges as regards criteria for grant of selection scale appointed by an

Acting Chief Justice which have subsequently been approved by a

Full Court of the High Court is in question in these appeals which

arise out of a judgment and order passed by a Division Bench of

Rajasthan High Court dated 23rd November, 2000 in D.B. Civil Writ

Petitions No. 671 of 2000, 987 of 2000 and 1263 of 2000.

The High Court of Rajasthan in exercise of its power conferred

upon it under Section 46 of the Rajasthan High Court Ordinance 1949

read with Article 225 of the Constitution of India and all other powers

enabling it in that behalf made Rules known as Rules of the High

Court of Judicature for Rajasthan, 1952 (hereinafter called and

referred to as "the Rules").

The Rules came into force on or about 1st October, 1952.

Chapter 3 of the said Rules refers to Administrative Business of the

High Court.

The Rules of the High Court were amended by a Resolution of

the Full Court of the High Court on 26.11.1966; and the relevant

portion of the Minutes thereof are as under :-

"Minutes of the proceedings of the Full Court

Meeting held on Saturday, the 26th November,

1966, at 11 A.M. in the Chamber of the Hon'ble

the Chief Justice.

***

AGENDA :

I. Amendment in the High Court Rules

relating to the Administrative Business of

the Court.

II. Any other matter which Hon'ble the Chief

Justice may like to be discussed.

DECISIONS :

ITEM NO. II :-

The amendments proposed by the Hon'ble

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Administrative Judge in Chapter III of the High

Court Rules relating to the administrative and

executive business of the Court were considered.

Resolved that in exercise of the powers

conferred by Section 46 of the Rajasthan High

Court Ordinance, 1949, and Articles 225, 227, 233,

234 and 235 of the Constitution of India and all

other powers enabling the Court in that behalf, the

following changes and amendments in Chapter III

of the High Court Rules relating to the

administrative and executive business of the Court

be effected :-

1. The words "Executive and" occurring

in the heading of Chapter III shall be

omitted;

2. For rules 14 to 22 the following rules

shall be substituted :-

"14. Administrative business relating to

control over subordinate courts and to

superintendence over courts and tribunals. All

administrative business of the Court relating to the

control over subordinate courts vested in the Court

under Article 235 of the Constitution or otherwise

and to the superintendence over the courts and

tribunals vested in the Court under Article 227 of

the Constitution or otherwise shall be disposed of

as provided hereinafter.

15. Matters on which all Judges shall be

consulted. On the following matters all the Judges

of the Court shall be consulted, namely :-

(c) proposals as to changes in or the issue

of new rules for the guidance of

subordinate courts;

(d) appointment, promotion and seniority

of Judicial offices;

(e) withholding of promotion,

supersession or reduction of Judicial

Officers;

(f) removal or dismissal of any Judicial

Officer;

(g) compulsory retirement of Judicial

Officers otherwise than by way of

punishment;

(h) important questions of policy or those

affecting the powers and status of the

Court laid before the Court by the

Chief Justice or any other Judge;

(l) any matter which the Chief Justice or

the Administrative Committee, as

constituted under Rule 16, may

consider fit to be laid before them for

consideration.

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16. Administrative Committee. (1) A

Committee of Judges shall be formed composed of

the Chief Justice, the Administrative Judge and

such other Judge or Judges as the Chief Justice

may, from time to time, appoint. This Committee

shall be called the Administrative Committee.

(2) Subject to these Rules, the

Administrative Committee shall act for the Court

in its administrative business in respect of the

matters enumerated in rule 17.

17. Matters on which the Administrative

Committee shall be consulted. The

Administrative Committee shall be consulted on

the following mattes, namely

(a) the issue of general letters to subordinate

courts;

(b) the issue of directions regarding the

preparation of returns and statements; and

(c) any other matter which the Chief Justice or

the Administrative Judge may desire to be

brought before it.

18. Consultation how made.- The

consultation with the Judges and the

Administrative Committee, referred to in Rules 15

and 17 respectively, shall be made either by

circulating the papers connected with the matter

among the Judges or the Administrative

Committee, as the case may be, or by laying the

matter before a meeting of the Judges or the

Administrative Committee called by the Chief

Justice.

19. Decision in case of difference of opinion.-

All the matters referred to in Rules 15 and 17 shall

be disposed of in accordance with the views of the

majority, and in case the Judges, including the Chief

Justice, are equally divided, in accordance with the

views of the Chief Justice.

20. Administrative business to be disposed of

by the Chief Justice.- Subject to Rules 15 and 17,

the administrative business referred to in Rule 14

shall be disposed of by the Chief Justice.

21. Appointment of Administrative Judge

and allocation of work.- (1) The Chief Justice shall

appoint a Judge to carry on the general

administration of the Court. Such Judge shall be

called the Administrative Judge and shall dispose

of the administrative business in accordance with

rule 22.

(2) The Chief Justice may also, by a general

or special order, allocate specified business for

disposal to any other Judge or a Committee of

Judges, and such Judge or Committee of Judges

shall dispose of the same, subject to any special

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directions of the Chief Justice.

"26. Papers to be submitted to the Chief

Justice after circulation.- After any papers have

been circulated for opinion, they shall be submitted

again to the Chief Justice, who shall examine the

matter and issue orders in accordance with Rule

19."

"29.- Quorum.- The quorum necessary for

the transaction of business shall be not less than

two-third of the Members in the case of a meeting

of the Administrative Committee and not less than

one-half of the Judges in the case of a Judges'

meeting."

1. The existing Rule 32 shall be re-

numbered as Sub-Rule (1) of that

Rule, and the following new Sub-Rule

(2) shall be added :-

"(2) For the removal of doubt, it is hereby

mentioned that all administrative work

disposed of by the Chief Justice, the

Administrative Judge or any other Judge or

Judges to whom the work has been assigned

by the Chief Justice for disposal shall be

deemed to be disposed of by the Court."

Rule 32 of the said Rules is as under:

32. Effect of any irregularity in or omission

to follow the procedure laid down in this

Chapter :-

(1) No irregularity in, or omission to follow,

the procedure laid down in this Chapter shall affect

the validity of any order passed or anything done

under these Rules.

(2) For the removal of doubt, it is hereby

mentioned that all administrative work disposed of

by the Chief Justice, the Administrative Judge or

any other Judge or Judges to whom the work has

been assigned by the Chief Justice for disposal

shall be deemed to be disposed of by the Court."

On or about 17.1.1969 Rajasthan Higher Judicial Service Rules,

1969 came into being which inter alia contained a provision relating

to grant of selection scale in terms of Rule 23 thereof which reads as

under :-

"Appointments to posts in the Selection Grade

:- Appointments to the posts in the selection

grade of the service shall be made by the

Governor in consultation with the Court on the

basis of merit.

On or about 30th of April, 1990 a Committee of two Hon'ble

Judges of the said Court was constituted by the Full Court for the

purpose of consideration of individual merit of the judicial officers of

Rajasthan Higher Judicial Service (RHJS) relating to appointment to

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selection scale. Pursuant to or in furtherance thereof a Committee of

two Judges considered the same and suggested that last five years of

ACRs to be considered in the merit criteria therefor. However, the

Full Court by Resolution dated 5th October, 1990 took a decision to

take into consideration three good ACRs out of five ACRs only for

the said purpose. As regards grant of super time scale to Rajasthan

Judicial Service, the Full Court of the High Court by a Resolution

dated 14.8.1997 adopted the criteria of five good ACRs out of seven

ACRs for grant of super time scale.

The Acting Chief Justice of the High Court, however,

constituted a Committee consisting of two Judges of the said Court to

consider/ examine and to make recommendations for formation of

officiating promotee RHJS officers for their substantive appointment

in their service and for promotion of RHJS officers in the ordinary

scale to selection scale by an order dated 26th March, 1998. The

Committee submitted its report on 30th March, 1998, upon considering

the cases of all eligible candidates in the light of the existing Rules as

also the Full Court Resolutions. With a view to arrive at its finding,

the Committee, however, found those officers fit and meritorious for

grant of selection grade who obtained at least five outstanding/ very

good/ good ACRs out of seven and where no adverse entry was

recorded. As regards those, whose ACRs have not been recorded for

one reason or the other, the Committee deferred consideration of their

cases for the time being. The Committee, however filed an additional

report on 27.4.1999 whose cases were deferred earlier.

The matter was placed before the Full Court on 30th April, 1999

by the Chief Justice. Twenty Hon'ble Judges of the High Court

participated therein. By Resolution dated 30th April, 1999, the Full

Court considered the report submitted by the said two Judges

Committee and approved the name of 25 officers who were found fit

for grant of selection scale. The cases of the respondents herein along

with four others, however, were deferred. The matter relating to the

additional report of the said two Judges' Committee was again placed

before the Full Court on 27-11-1999. It accepted the report of the

Committee and declined to grant selection scale to the respondents

herein. Pursuant to or in furtherance of the aforementioned

recommendations made by the High Court, the Governor by a

notification dated 5.2.2000 made appointment to the officers of

Higher Judicial Service named therein to the post of selection grade

with effect from the date mentioned against their names respectively.

The first respondent in each of these appeals filed writ petitions

questioning non-grant of selection grade to them by filing writ

petitions before the Jaipur Bench of the Rajasthan High Court.

By reason of the impugned judgment the High Court inter alia

held :

(1) The Acting Chief Justice was not authorised to constitute the

two Judges Committee, and, thus, it could not make/ lay

down any merit criteria.

(2) As all the Judges of the High Court have not been consulted,

the Committee appointed by the Acting Chief Justice alone

could not evolve the merit criteria in view of sub-rule (h) of

Rule 15 of 1952 Rules.

(3) The earlier policy decision adopted by the Full Court could

not be changed as Rule 15 of 1952 provides for prior

consultation of the Judges of the High Court and as all

Judges were not consulted in the matter subsequent approval

thereof could not cure illegality.

The said writ petitions were disposed of with the following

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directions :-

(i) We direct the respondents to consider the

cases of all the three petitioners afresh against the

vacancies occasioned in 1998 and 1999 in view

of the merit criterion evolved and approved by

the Full Court in the year 1990 and 1994. If they

are found eligible for promotion to selection

scale of the RHJS, they can be accorded the

selection scale by creating supernumerary posts

in terms of Rule 18 of the Rajasthan Service

Rules.

(ii) This decision shall not affect the order dated

February 5, 2000 whereby selection scale of the

RHJS was granted to twenty six officers.

(iii) The fresh consideration as directed above is

expected to be done as expeditiously as possible,

in the meanwhile three posts in the selection

scale of the RHJS shall be kept vacant.

However, it was observed:

"It is however made clear that though we

have declared the entire exercise of the

respondents in granting selection scale as illegal

yet we do not intend to unsettle the grant of

selection scale to twenty six judicial officers as

they are not before us. We, therefore, direct that

this decision shall not affect the order dated

February 5, 2000 of the respondent whereby

selection scale was granted to twenty six judicial

officers. But if the petitioners, after

consideration of their service record from 1993 to

1997 and from 1994 to 1998 are found eligible

for selection scale, they shall be considered with

reference to the selection of 1998 and 1999 when

their junior colleagues were promoted. The

petitioners in that event can be accorded the

selection scale of the RHJS by creating

supernumerary posts in terms of Rule 18 of the

Rajasthan Service Rules."

Learned counsel appearing on behalf of the appellant, would

submit that having regard to the provisions of the Rules, the High

Court must be held to have committed an error in holding that the

Acting Chief Justice had no jurisdiction to constitute the Committee.

It was contended that once it is held that the Acting Chief Justice had

the jurisdiction to constitute a Committee and the decision of the said

Committee was approved by the Full Court, the earlier policy decision

must be held to have been varied by the High Court. The learned

counsel in support of the said contentions has placed strong reliance in

State of Uttar Pradesh v. Batuk Deo Pati Tripathi and Another

reported in [(1978) 2 SCC 102], Brij Nath Pandey v. State of U.P. &

Ors. [JT 2000 (9) SC 464], Registrar, High Court of Madras v. R.

Rajiah [(1988) 3 SCC 211].

Mr. Surya Kant, learned counsel appearing on behalf of the first

respondent in each case, would, on the other hand, submit that as the

power of the Chief Justice to constitute a Committee is governed by a

statutory rule, he must be held to have acted without jurisdiction in

appointing the said Committee. Strong reliance in support of the said

contention has been placed in Orissa Small Industries Corpn. Ltd. and

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Another v. Narasingha Charan Mohanty and others [(1999) 1 SCC

465].

The term "Chief Justice" will include the Judges authorised to

act on his behalf in view of interpretation clause contained in Section

3. Chapter III of the Rules provides for administrative business of the

Court. In terms of Rule 14 of the Rules, Administrative Business of

the Court relating to control over subordinate courts vested either

under Article 235 or 227 of the Constitution of India were to be

disposed of as provided therein.

The Rules have been made by the High Court. The High Court,

therefore, can also amend the rules. It is not the case of the writ

petitioners-First respondents herein that the High Court had no

jurisdiction to evolve the criteria for grant of selection scale to the

officers of the Rajasthan Judicial Service or Rajasthan Higher Judicial

Service. It may be true that by reason of Resolution dated 5th October,

1990 the Full Court inter alia opined that for the purpose of grant of

selection scale three good ACRs out of five ACRs were to be taken

into consideration but the said decision of the Full Court was subject

to amendment/modification thereof.

A reading of the aforementioned rules clearly goes to show that

the Chief Justice has the requisite jurisdiction to constitute a

Committee and the report of the Committee upon consultations of all

the Judges of the High Court in terms of Rule 15 shall become a

decision of the Court. Rule 29(2) and Rule 32 as quoted (supra) also

clearly show that even no irregularity which might have taken place in

the procedure laid down in Chapter III shall not affect the validity of

the order passed or anything done in the Rules and the same shall be

deemed to be disposed of by the Court. The legal fiction created must

also be given its full effect.

It is beyond any pale of controversy that the control over the

subordinate courts within the meaning of Article 235 of the

Constitution of India is that of the High Court. Such control of the

High Court includes general superintendence of the working of the

subordinate courts, disciplinary control over the Presiding Officers,

disciplinary proceedings, transfer, confirmation and promotion and

appointment etc. Such control vested in the High Court is complete.

[See High Court of Judicature for Rajasthan v. Ramesh Chand

Paliwal, (1998) 3 SCC 72, District Judges Baradakanta Mishra v.

High Court of Orissa (1976) 3 SCC 327, High Court of Punjab v.

State of Haryana, (1975) 1 SCC 843, Yoginath D. Bagde v. State of

Maharashtra (1999) 7 SCC 739, State of Haryana v. Inder Prakash

Anand, (1976) 2 SCC 977 and State of Assam v. S.N. Sen (1971) 2

SCC 9].

It is also true that the powers of the Chief Justice under Articles

235 and 229 of the Constitution of India are different and distinct.

Whereas control over the subordinate courts vests in the High Court

as a whole, the control over the High Court vests in the Chief Justices

only. [See All India Judges' Association v. Union of India, (1992) 1

SCC 119]. However, the same does not mean that a Full Court cannot

authorise the Chief Justice in respect of any matter whatsoever. In

relation to certain matters keeping the rest of it in itself by the Full

Court, authorization to act on its behalf in favour of the Chief Justice

on a Committee of Judges is permissible in law. How far and to what

extent such power has been or can be delegated would be discernible

only from the rules. Such a power by the Full Court can also be

exercised from time to time.

The Judges of the Rajasthan High Court, as noticed

hereinbefore, in terms of sub-rule (2) of Rule 21 of the Rules

authorised the Chief Justice to constitute a committee. Such

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constitution of the committee by the Chief Justice having been made

in terms of the rules must be held to have been made by the High

Court itself. Such authorization is not a limited one as thereby the

extent to which such authorization can be exercised has not been spelt

out. Furthermore, authorization in terms of sub-rule (2) of Rule 21 of

the Rules having been laid down in Chapter III which relates to the

Administrative Business of the Court, there cannot be any doubt

whatsoever even in the matter of control of the High Court in terms of

Article 235 of the Constitution of India, the Chief Justice of the High

Court had the jurisdiction to exercise the said power.

Once such a resolution authorising the Chief Justice to

constitute a committee has been passed; having regard to the decision

of this Court in the High Court of Judicature of Bombay v. Shirish

Kumar Rangrao Patil [(1997) 6 SCC 339], there cannot be doubt

whatsoever that the exercise of power by the Chief Justice in that

behalf was absolutely valid. It is, therefore, not correct to contend

that the Chief Justice could appoint the two-Judges committee only

with the approval of the Full Court.

Exercise of power by the Chief Justice, however, indisputably

must be made in terms of the rules. The questions raised in these

appeals must, therefore, be considered from that angle.

The High Court, in our opinion, therefore, clearly erred in

arriving at the aforementioned finding that the constitution of the

committee was illegal.

The submission on behalf of the respondents to the effect that in

the matter relating to fixation of criteria for the purpose of

appointment to the selection grade, the two-Judges committee could

not be made without consulting all the Judges is stated to be rejected.

The said submission is based on a total misconception. Laying down

the merit criteria for appointment to the selection grade also was

within the domain of the High Court. It could not only lay down such

criteria but also amend or modify the same from time to time. For the

said purpose also the Chief Justice could appoint a committee, the

recommendation whereof was to be subject to the approval of the Full

Court. Rule 15 of the Rules does not say that before an action can be

initiated in that behalf by the Chief Justice all the Judges are to be

consulted. Rule 15 of the Rules postulates a final decision in the

matter specified therein and not initiation of process therefor.

It is also incorrect to contend that all the Judges of the High

Court are required to be consulted at a time.

The learned counsel appearing on behalf of the respondents is

again not correct in contending that the two-Judges Committee was

not justified in evolving a merit criteria different from the one

approved by the Full Court. The two-Judges Committee did not take

any final decision in that behalf. It having regard to the facts and

circumstances of the case and upon consideration of the extant rules

as well as the earlier decisions of the Full Court applied certain

principles and criteria which inevitably was subject to approval of the

Full Court.

The procedure for holding a Full Court meeting as quoted supra

would clearly show that the meeting which had requisite quorum as

contemplated under Rule 29 would amount to compliance of the

Rules.

Although Rule 15 provides that all the Judges shall be

consulted in the matters enumerated therein but Rule 18 provides for

the mode and manner thereof.

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If such consultation is to be made by circulation, undoubtedly,

the relevant documents are required to be circulated to all the Judges.

In the event, however, such consultation is to be effected by placing

the matter before a Full Court, all the Judges are therefor invited but

the same would not mean that in the event, one or more Judge (s)

does/do not attend the Full Court, the resolution passed by it shall be

invalid. Rule 29 provides for a quorum. In the case of a meeting of

the Judges of the court, the quorum will be complete if one-half or

more of the Judges attend the same. Consultation with all the Judges

would, thus, not mean that even if some of the Judges do not choose

to make themselves available in a Full Court Meeting, consultation

with all the Judges shall not be complete.

We may notice that even in the Full Court meeting held on 26th

November, 1966 all the Hon'ble Judges of the High Court were not

present.

The Committee was constituted for the purpose of considering

the cases of concerned officers. It is not and cannot be the case or the

contention of the writ petitions that even for the purpose of

considering the case of the eligible judicial officers at the threshold, it

was absolutely necessary to place the matter before the Full Court.

The Acting Chief Justice constituted the Committee for a specific

purpose. The Committee merely submitted its opinion which was

subject to approval by the Full Court. Once the opinion of the matter

is approved by the Full Court, in our opinion, it must be held that

there had been a compliance of Rule 15 of the Rules.

Interpretation of a Statute depends upon the text and context

thereof. A Statute should be interpreted having regard to the purpose

and object for which the same was made. The Chief Justice of a High

Court although first amongst the Judges, by the nature of office he

holds, he is the head of the State Judiciary. Authorisation by the Full

Court in favour of the Chief Justice to constitute a Committee and/or

take actions for the subordinate judiciary must be viewed from that

context. Rule 15 of the Rules provides for such matters which require

consultations with the other Judges of the High Court.

Question of consultation with the Judges would not arise unless

the subject matter therefor is identified. It is for Hon'ble the Chief

Justice of the High Court to identify such matters and place the same

before the Full Court with relevant papers and documents.

It is, therefore, axiomatic that not only the Chief Justice of High

Court was free to initiate any proceedings and obtain the opinion of a

Committee of Judges on such matters and the only legal requirement

therefor is to place such proposals together with the opinion of the

Committee before the Judges of the High Court so that the matter can

be fully thrashed out. Once the Full Court approves the

recommendations made by the Committee of Judges, it becomes

decision of the Court which could be sent to the Governor for acting

thereupon.

An almost identical question came up for consideration whether

the High Court can delegate its power to a Judge or a small

Committee of the Judges of the Court so as to authorise it to act on

this behalf in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and

Another (supra). In no uncertain terms it was held :-

"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 Article 311,

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decisions regarding compulsory retirements,

recommendations for imposition of major

penalties which fall within Article 311, 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

effectively exercised if a smaller committee of

Judges has the authority of the court to consider

the manifold matters falling within the purview

of Article 235. Bearing in mind therefore the

nature of the power which that article confers on

the High Court, we are of the opinion that 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 authorization

effectuates the purpose of Article 235 and indeed

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 Court's constitutional functions.

Judicial functions ought to occupy 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 brook no such sharing of

responsibilities by any instrumentality."

In Registrar, High Court of Madras v. R. Rajiah (supra), it was

observed :

"23. In Rajiah's case, a Review Committee

consisting of three judges was appointed by a

resolution of the High Court. In the meeting of

the Review Committee held on June 25, 1979 to

consider the case of the respondent Rajiah, only

two judges of the High Court were present. The

two judges came to the conclusion that the

respondent, Rajiah, should be compulsorily

retired with effect from April 2, 1980. The

Division Bench found that the third judge had no

notice of the meeting held on June 25, 1979, but

he agreed with the view expressed by the two

judges with a slight modification that the

respondent would retire with effect from March

3, 1980 under Rule 56(d) of the Fundamental

Rules. The Division Bench of the High Court

took the view that as all the three judges had not

sat together and considered the question of

compulsory retirement of respondent Rajiah, and

that, further the third judge having also modified

the decision of the two judges, namely, that the

respondent would be compulsorily retired with

effect from March 3, 1980, the impugned order

of compulsory retirement of the respondent,

Rajiah, was vitiated. It is true that the members

of the Review Committee should sit together and

consider the question of compulsory retirement,

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but simply because one of them did not

participate in the meeting, and subsequently

agreed with the view expressed by the other two

judges, it would not vitiate the decision of the

Committee to compulsorily retire the respondent.

The third judge might (sic not) be justified in

correcting the date with effect from which the

respondent would compulsorily retire, but that is

a very minor issue and would not, in our opinion,

make the decision invalid.

24. In regard to the case of the other

respondent, namely, K. Rajeswaran, the High

Court took the view that the constitution of the

Review Committee by the Chief Judge and not

by the Full Court was illegal. We are unable to

accept the view of the High Court. We fail to

understand why the Chief Justice cannot appoint

a Review Committee or an Administrative

Committee. But in one respect the High Court is,

in our opinion, correct, namely, that the decision

of the Review Committee should have been

placed before a meeting of the judges. In the

case of the respondent, K. Rajeswaran, the

decision and recommendation of the Review

Committee was not placed before the Full Court

Meeting. Nor is there any material to show that

the same was circulated to the judges. In that

sense, the recommendation of the Review

Committee was not strictly legal."

Furthermore, the terminology 'consultation' used in Rule 15

having regard to purport and object thereof must be given its ordinary

meaning. In Words and Phrases (Permanent Edition, 1960, Volume

9, page 3) to 'consult' is defined as 'to discuss something together, to

deliberate'. Corpus Juris Secundum (Volume 16A, Ed. 1956, page

1242) also says that the word 'consult' is frequently defined as

meaning 'to discuss something together, or to deliberate'. By giving

an opportunity to consultation or deliberation the purpose thereof is to

enable the Judges to make their respective points of view known to

the others and discuss and examine the relative merits of their view. It

is neither in doubt nor in dispute that the Judges present in the

meeting of the Full Court were supplied with all the requisite

documents and had full opportunity to deliberate upon the Agenda in

question.

There is another aspect of the matter which may require

consideration. For all intent and purport the report of the two Judges

Committee has been approved by the Full Court. Once approved, it

terminated into a decision of the Full Court itself. In the instant case

even the Governor has acted upon the recommendations of the High

Court. The writ petitioners-first respondents herein did not question

the appointments of the appointees not the High Court. Thus, there

cannot be any doubt whatsoever that for all intent and purport the

opinion of the two Judges Committee received approval at the hands

of the Full Court.

The High Court, in our opinion, further committed a manifest

error in arriving at its conclusion in so far as it failed to take into

consideration that Rule 15 does not postulate the prior approval of the

Full Court in relation to any action which may be initiated by the

Chief Justice.

When an approval is required, an action holds good. Only if it

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disapproved it losses its force. Only when a permission is required,

the decision does not become effective till permission is obtained.

(See U.P. Avas Evam Vikas Parishad and Another v. Friends Coop.

Housing Society Ltd and Another [(1995) Supp (3) SCC 456]. In the

instant case both the aforementioned requirements have been fulfilled.

There is another aspect of the matter. In terms of Rule 2(2) of

the Rules, the decision of the Full Court would have a retrospective

effect and retroactive operation.

In any view of the matter, even in a case where the initial action

is illegal, the same can be ratified by a body competent therefor. This

aspect of the matter has not been considered by the High Court at all.

In Sri Parmeshwari Prasad Gupta v. the Union of India [(1973) 2

SCC 543] this Court held :

"Even if it be assumed that the telegram and

the letter terminating the services of the

appellant by the Chairman was in pursuance to

the invalid resolution of the Board of Directors

passed on December 16, 1953 to terminate his

services, it would not follow that the action of

the Chairman could not be ratified in a

regularly convened meeting of the Board of

Directors. The point is that even assuming that

the Chairman was not legally authorised to

terminate the services of the appellant, he was

acting on behalf of the Company in doing so,

because, he purported to act in pursuance of the

invalid resolution. Therefore, it was open to a

regularly constituted meeting of the Board of

Directors to ratify that action which, though

unauthorized, was done on behalf of the

Company. Ratification would always relate

back to the date of the act ratified and so it must

be held that the services of the appellant were

validly terminated on December 17, 1953"

(See also Marathwada University v. Seshrao Balwant Rao

Chavan (1989) 3 SCC 132 para 28], Babu Verghese and Others v. Bar

Council of Kerala and Others [(1999) 3 SCC 422 para 35] and

Barnard v. National Dock Labour Board [(1953) 1 All ER 1113] ).

In Orissa Small Industries Corpn. Ltd. And Another v.

Narasingha Charan Mohanty and Others (supra) where upon the

learned counsel has placed strong reliance, this Court held :

"That apart, the Court is not entitled to assess

the respective merit of the candidates for

adjudging their suitability for being promoted

and the only right the employee has is a right of

consideration. The said right of consideration

not having been infringed in the present case,

the High Court was not justified in issuing the

impugned direction for reconsideration of his

case."

The said decision, therefore, mutilates against the contentions

of the respondents.

Furthermore, the first respondent herein in these cases Shri P.P.

Singh, Shri G.P. Pandey has been granted selection scale in RHJS

with effect from 1.8.2000 and Shri P.K. Bhatia has been given with

effect from 29.3.2000. Shri P.P. Singh has also retired from service

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on superannuation.

We are of the opinion that impugned judgment of the High

Court cannot be sustained which is set aside accordingly. The appeals

are allowed but in the facts and circumstances of the case, there shall

be no order as to costs.

New Delhi;

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