Rajasthan Vs. Prakash Chand & Ors 
INSC 854 (25 November 1997)
S.P. BHARUCHA, S.C. SEN
2ND DAY OF DECEMBER, 1997 Present:
Dr. Justice A.S. Anand Hon'ble Mr.Justice M.K.Mukherjee Hon'ble Mr.Justice
K.Venkataswami Ashok H.Desai, Attorney General for India, Manoj K. Das, Srilok
Nath Rath, Nikhilesh Ramachandran, Ms.Rina Bagga and Aruneshwar Gupta, Advs.
with him for the appellant T.R. Andhayarujina, Solicitor General of India,
Subrat Birla and K.L.Janjani, Advs. with him for the Respondent No.2
following Judgment of the Court was delivered:
is an unusual case. The observations, comments and allegations made and the
order passed by a learned Single Judge of the Rajasthan High Court, Mr. Justice
Shethna, in relation to a disposed of writ petition, by sending for its record
in a totally unrelated and unconnected criminal revision petition, which have
been put in issue in this appeal, touch not only upon the discipline of the
High Court and the powers of the Chief Justice to assign cases and allot
Benches but also the larger issue of judicial propriety. The order directing
issuance of notice of contempt to the Chief Justice of the High Court raises a
fundamental question about the jurisdiction of a single Judge to issue such a
notice in the established facts of the case. It is not individuals but the
prestige of the Institution which is at stake in this case. The manner in which
'allegations' have been made against the Chief Justice of the High Court, the
Division bench of the High Court which had disposed of the writ petition and
some of the former Chief Justices of the Rajasthan High Court, including the
present Chief Justice of India, Mr. Justice J.S. Verma, has caused us much
anguish. We wish we did not have to deal with a case like this but we shall be
singularly failing in our duties to the Institution, if we do not deal with the
matter and take it to its logical conclusion. First, some salient facts:
Petition No. 2949 of 1996 was filed, as a Public Interest Litigation, on
9.9.1996 in the High Court of Rajasthan at Jodhpur by an Advocate of that court, inter alia seeking directions to provide
suitable accomodation to the Judges of the Rajasthan High Court and for certain
other benefits for the Judges. During the proceedings of the writ petition
certain interim orders came to be made by Shethna, J. from time to time. On
29.4.1997 Shethna, J. directed the writ petition to be treated as part-heard at
the 'request' of learned counsel for the parties. In the meanwhile, Shri D.R.
Bhandari, Advocate, filed an application for being impleaded as petitioner No.2
in that writ petition. He inter alia challenged the legality and validity of
the constitution of a Bench of the High Court at Jaipur as also the order of
the State Government declaring bungalow No.A/2 at Jaipur as the Guest House for
the exclusive use of the Chief Justice and bungalow No.A/5 at Jaipur as the
high Court Guest House. Certain other issues were also raised by Shri Bhandari
in that application. Over-ruling the objections raised by the respondent
therein inter alia, to the effect that the application of Shri Bhandari would
widen the scope of the writ petition, the application of Shri Bhandari was
allowed by Shethna, J. on 29.7.1997 and he was impleaded as petitioner No.3 in
the writ petition. The case was then adjourned from time to time on being
listed as part-heard before the learned single Judge. In the meantime, the
roster was changed and Shethna, J. was required to sit in a Division Bench
instead of sitting singly between 4.9.1997. On 8.9.1997, the Additional
Advocate General for the state of Rajasthan moved an application under Rule 55
of the Rules of the High Court of Judicature for Rajasthan (hereinafter the
Rules) with the prayer that since challenge to the legality and validity of the
constitution of a Bench of the High Court at Jaipur had been raised by
petitioner No.2 Shri Bhandari, Writ Petition No.2949/96 should be referred to a
Division Bench for hearing. By an administrative order, the Chief Justice
directed, on 8.9.97, that the application filed by the Additional Advocate
General be put up for orders on the next day at 10.30 A.M. A judicial order then came to be made on 9.9.1997 by the
Chief Justice, in presence of all the parties to the writ petition. It was
directed that the writ petition should be listed before a Division Bench of the
High Court comprising Mr. Justice M.P. Singh and Mr. Justice B.S. Chauhan since
it involved constitutional questions.
the writ petition was listed before the Division Bench on 10.9.1997, the
following order came to be passed:- 10.09.1997 HON'BLE MR. JUSTICE M.P. SINGH
HON'BLE DR. JUSTICE B.S. CHAUHAN Mr. M.C. Bhoot ) Mr. D.R. Bhandari ) for the
petitioners Mr. I R. Choudhary ) Mr. L.S. Udawat) for the respondents Mr. R.P.
Dave ) Mr. M.C. Bhoot, learned counsel for the petitioners, states that the
relief sought for, in the writ petition, do not survive for consideration now.
The writ petition has become infructuous.
the writ petition is dismissed as infructuous.
the main petition itself has been dismissed, the right of the intervenor to be
heard does not survive for consideration.
the application filed by him is also rejected." Thus, writ petition
No.2949 of 1996 was dismissed as 'infructuous' and,. the proceedings in that
writ petition concluded.
Criminal Revision Petition No.357 of 1997 was filed by one Prakash Chand,
respondent No.1, herein challenging his conviction and sentence for an offence
under Section 304 A IPC. This petition, as per the roster, was listed for
admission and bail before Shethna, J. on 3.9.1997. It appears that preliminary
hearing of the petition did not conclude on that date and the learned Judge
directed that the revision petition be listed before him "alongwith other
part-heard" cases on 5.9.1997, even though as per the change of the
roster, he could not take up single bench matters on 5.9.97, since he was to
sit in a Division Bench on that date. Shethna, J. directed the Registry to list
those cases "on a separate board". Since, the Registry could not
create a 'separate board' for Shethna, J., without obtaining directions from
the Chief Justice, the matt was placed for orders before the Chief Justice on
3.9.97 itself. The Chief Justice directed :
will be no roster for Hon'ble Justice B.J.Shethna for sitting in Single Bench
on 5.9.1997. Those part heard matters may be listed on some other day some time
next week as the business of the Court would permit with my specific order.
roster is the prerogative of the Chief Justice, which must be brought to the
knowledge of the Hon'ble Judge." Despite the above order Shethna, J. while
still sitting in the Division Bench, on mention made by the learned Advocate
for the revision petitioner, passed an order on 8.9.1997, as a single Judge,
directing that Criminal Revision Petition No. 357/97 alongwith "other
part-heard cases" should be listed before him "on a Separate
board" on 9.9.97, knowing fully well that on that date also he was to
continue to sit in the Division Bench and that no cases could be listed before
him without appropriate directions of the Chief Justice. In view of the earlier
order of the Chief Justice dated 3.9.97 (supra) the Registry could not act on the
directions of Shethna, J. and therefore the Registry once again sought
directions of the Chief Justice.
Chief Justice, it appears accommodated Shethna, J. and directed that the
criminal revision petition and 'other part-heard cases' be listed before him on
a separate board.
W.P. No. 2949/1996 had already been disposed of by the Division Bench on
10.9.1997, it was no longer a "part-heard case" on the Board of
Shethna, J. and thereof it was not listed alongwith the "other part-heard
cases", Still the, surprisingly however while hearing preliminary
arguments in Criminal Revision Petition No. 357 of 1997 filed by Prakash Chand
for admission and bail, the record of the disposed of writ petition No. 2949 of
1996 was also called for by shethna, J. and in a detailed order, comments and
observations were made regarding (and unrelated to) that writ petition and an
exception was taken to its disposal by the division Bench. Caustic comments,
and unjustified allegations in intemperate language were made not only against
the Chief Justice for transferring that writ petition from his board to the
Division Bench but also against the learned Judges constituting the Division
Bench which head the writ petition. While making those observations that Shethna,
J. took exception to the manner in which the writ petition was transferred to
the Division Bench by the Chief Justice and "opined" that by doing
so, the Chief Justice had prima facie committed criminal contempt of court and
the act of Shri Mukul Gopal Mukherji, the Chief Justice of Rajasthan High Court
in withdrawing the part heard writ petition from this Court and getting it
disposed of in a most suspicious circumstances and not placing that petition
alongwith other part heard matters before this Court on 5.9.97 and 9.9.97 as
per my earlier order dated 3.9.97 and 8.8.97 prima facie constitute a
office is directed to issue notice against Shri Mukul Gopal Mukherji, the Chief
Justice of Rajasthan High Court to show cause as to why the contempt
proceedings should not be initiated against him for committing criminal
contempt under the contempt of Courts Act, 1971. The office shall register this
case and give separate number to this as S.B.
Petition No..../97 and title as State of Rajasthan vs. Mukul Gopal Mukherji, the Chief Justice of Rajasthan High Court.
course of the order comments were made not only against the Chief Justice and
the Judges constituting the Division Bench but also against some of the former
Chief Justice regarding the "illegal" drawal by them of daily
allowance while sitting at Jaipur.
the judicial propriety, validity and justification for making insinuations
against the Chief Justice of the High Court, casting aspersions on the learned
Judges constituting the Division Bench and making comments and allegations
against some of the former Chief Justices of that court including the present
Chief Justice of India, has been squarely put in issue by the state of Rajasthan
in this appeal by special leave, the Chief Justice of Rajasthan High
Court-respondent No.2 has called in question the notice directed to be issued
to him to show cause why contempt proceedings be not initiated against him.
Shethna, J. have any judicial or administrative authority to send for the
record of a writ petition which had already been disposed of by a Division
Bench - that too while hearing a wholly unconnected criminal revision petition
- and pass "comments" and make "aspersions" against the
Chief Justice of the High Court and the Judges constituting the Division bench
regarding the merits of the writ petition and manner of its disposal.
single Judge of a High Court itself direct a particular roster for himself,
contrary to the determination made by the Chief Justice of the High Court? Is
not such an action of the single Judge subversive of judicial discipline and
decorum expected of a puisne Judge? Could a notice to show cause as to why
contempt proceedings be not initiated against the Chief Justice of the High
Court for passing a judicial order on the application of the additional
Advocate General of the State in the presence of counsel for the parties
transferring writ petition No. 2949/96, heard in part by Shethna, J., for its disposal
in accordance with law to a Division Bench be issued by the learned single
Judge? Did Shethna, J. have any power or jurisdiction to cast 'aspersions' on
some of the former Chief Justice of that Court, including the present Chief
Justice of India, Mr. Justice J.S. Verma, behind their backs and that too on
half- baked facts and insinuate that they had "illegally" drawn daily
allowances at the full rate of 'Rs.250/-' per day, to which "they were not
entitled" and had thereby committed "criminal misappropriation of
public funds" while making comments on the merits of the disposed of writ
petition? These are some of the important and fundamental questions which arise
in this case? Before proceeding further, it is necessary to first examine the
powers of the Chief Justice in the matter of constitution of Benches, providing
of roster an din in particular his prerogative to transfer even a part-heard
case from the board of a learned Single Judge to a Division bench cor disposal
on being satisfied that the case involved constitutional issues, which under
the High Court Rules was required to be heard by a Division Bench.
44 of the Rajasthan High Court Ordinance, 1949 deals with the distribution of
business and administrative control of the High Court. It provides:
of business and administrative control - (1) The High Court may, by its own
rules, provide as it thinks fit for the exercise by one or more Judges, or by
Division Courts constituted by two or more Judges, of the High Court, of its
original and appellate jurisdiction.
The Chief Justice shall be responsible for the distribution and conduct of the
business of the High Court, and shall determine which Judge in each will sit
alone and which Judges of the Court will constitute a Bench (3) The
administrative control of the High Court shall vest in the Chief Justice who
may exercise in such manner and after such consultation with the other Judges
as he may think fit or may delegate such of his, functions, as he deems fit to
any other Judge of the High Court.
virtue of the powers conferred by the Rajasthan High Court Ordinance, 1949 read
with article 115 of the Constitution of India, the High Court of Rajasthan,
with the approval of the Governor of the State, framed Rules of the High Court
of Judicature for Rajasthan, 1952. Chapter V of the Rules deals with the
constitution of Benches. Rules 54 provides:
54. Constitution of Benches.- Judges shall sit alone or in such Division
Courts, as may be constituted from time to time and do such work, constituted
from time to time and do such work, as may be allotted to them by order of the
Chief Justice or in accordance with his direction." A careful reading of
the aforesaid provisions of the Ordinance and Rule 54 (supra) shows that the
administrative control of the High Court vests in the Chief Justice of the High
Court alone and that it is his prerogative to distribute business of the High
Court both judicial and administrative. He alone, has the right and power to
decide how the Benches of the High Court are to be constituted:
Judge is to sit alone and which cases he can and is required to hear as also as
to which Judges shall constitute a Division Bench and what work those Benches
shall do. In other words the Judges of the High Court can sit alone or in
Division Benches and do such work only as may be allotted to them by an order
of or in accordance with the directions of the Chief Justice. That necessarily
means that it is not within the competence or domain of any single or division
bench of the court to give any direction to the Registry in that behalf which
will run contrary to the directions of the Chief Justice. Therefore in the
scheme of things judicial discipline demands that in the event a single Judge
or a division bench considers that a particular case requires to be listed
before it for valid reasons, it should direct the Registry to obtain
appropriate orders from the chief Justice. The puisne Judges are not expected
to entertain any request from the advocates of the parties for listing of case
which does not strictly fall within the determined roster. In such cases, it is
appropriate to direct the counsel to make a mention before the Chief Justice
and obtain appropriate orders. This is essential for smooth functioning of the
Court. Though, on the judicial side the Chief Justice is only the 'first
amongst the equals', on the administrative side in the matter of constitution
of Benches and makes of roster, he alone is vested with the necessary powers.
That the power to make roster exclusively vests in the Chief Justice and that a
daily cause list is to be prepared under the directions of the Chief Justice as
is borne out from Rule 73, which reads thus:- Rule 73, Daily Cause List.- The
Registrar shall subject to such directions as the Chief Justice may give from
time to time cause to be prepared for each day on which the Court sits, a list
of cases which may be heard by the different Benches of the Court. The list
shall also state the hour at which and the room in which each Bench shall sit.
Such list shall be known as the Day's List." This is the consistent view
taken by some of the High Courts and this Court which appears to have escaped
the attention of Shethna, J. in the present case, when he directed the listing
of certain part-heard cases before him as a single judge by providing a
separate board for the purpose, while sitting in a division Bench.
Bench of the Allahabad High Court considered the scope and powers of the Chief
Justice under the Constitution with particular reference to Rule 1 Chapter V of
the Rule of that Court (which is in pari materia with Rule 54 of The Rajasthan
High Court Rules, 1952 and held: per Mukerji, J.
is clear to me, on a careful consideration of the constitutional position, that
it is only the Chief Justice who has the right and the power to decide which
Judge is to sit alone and which cases such Judge can decide;
it is again for the Chief Justice to determine which Judges shall constitutes
Division benches and what work those Benches shall do. Under the rules of this
Court, the rule that I have quoted above, it is for the Chief Justice to allot
work to Judges and Judges can do only such work as is allotted to them.
not in my view, open to a Judge to make an order which could be called an
appropriate order, unless and until the case in which he makes the order has
been placed before him for orders either by the Chief Justice or in accordance
with his directions. Any order which a Bench or a single Judge my choose to
make in a case that is not placed before them or him by the Chief Justice or in
accordance with his directions is an order which, in my opinion, if made, is
without jurisdiction." (Emphasis ours) In his separate but concurring
opinion H. P. Asthana, J. Observed:
1, Chapter V, of the Rules of this Court, provides that Judges shall sit alone
or in such Division Courts as may be constituted from time to time and do such
work as may be allotted to them by order of the Chief Justice or in accordance
with his directions.
will appear from a perusal of the above provisions that the High Court as a
whole consisting of the Chief Justice and his companion Judges has got the
jurisdiction to entertain any case either on the original side or on the
appellate or on the revisional side for decision and that the other Judges can
hear only those matters which have been allotted to them by the Chief Justice
or under his directions. It, therefore, follows that the Judges do not have any
general jurisdiction over all the cases which the High Court as whole is
limited only to such cases as are allotted to them by the Chief Justice or
under his directions." (Emphasis supplied) A Full Bench of the Rajasthan
High Court in Niranjan Singh vs. State, AIR 1974 Rajasthan 171 also examined
the ambit and scope of the provisions of the Rajasthan High Court Rules, 1952
and in particular of Rules 54, 55, 61, 66, 74 etc. with regard to the powers of
the Chief Justice in the matter of constitution of Benches and allocation of
work to his companion Judges. The Bench opined:
is therefore the responsibility of the Chief Justice to constitute the Division
Courts of Benches. The Judges are required to sit alone or in the Division
Benches and, in either case, do such work as may be allotted to them by order
of the Chief Justice or in accordance with his direction. This power to allot
the work to the Judges cannot be taken away, in face of the clear provision of
rule 54, merely because a date of hearing, has been fixed in a case by a
Chief Justice has therefore the power "from time to time" to direct
that any particular case or class of cases may be heard by a Bench of two or
class of cases may be heard by a Bench of two or more Judges even though it
may, ordinarily fall to be heard by a single Judge. It is well to time" is
that "after once acting the done of, or by adding to, or taking from or
reversing altogether, his previous act", Stroud's Judicial Dictionary.
cannot, in such a case, be said that person who has the power to act has
"completely discharged his duty when he has once acted." The words
"from time to time" have therefore been interpreted to mean "as
and when Ex party The Debtor, (1954) 2 ALL ER 46. It is thus clearly
permissible for the Chief Justice to reverse any earlier order of allotment of
any particular case of class of cases to a Judge sitting alone, and to direct
that it may be heard by a Bench of two or more Judges....
is nothing in the rule to justify the argument that such a case should always
be treated as "tied up" with a Bench simply because it has once fixed
the date of its hearing or that with the exception of a case in which a Bench
has directed the issue of notice to the opposite party or passed an ex party
order all other cases should be deemed to be part- heard. On the other hand,
the use of the word "ordinarily" goes to show that if there are
extra- ordinarily" goes to show that if there are extra-ordinary reasons,
even a part-heard case may not be laid before the same Bench for disposal. So far
as the Second sentence of Rule 66(1) is concerned, it is really in the nature
of an illustration, or an explanation." (Emphasis ours) In State of
Maharashtra vs, Narayan Shamrao Puranik, AIR 1982 SC 1198, referring to the
power of the Chief Justice to make roster, this court opined:
Chief Justice is the master of the roster. He has full power, authority and
jurisdiction in the matter of allocation of business of the High Court which
flows not only from the provisions contained in sub-s (3) of S.51 of the Act,
but inheres in him in the very nature of things." Again, a Full Bench of
the Madras High Court in Mayavaram Financial Corporation Ltd. vs. The registrar
of Chits. 1991 (2) L.W. 80, opined:
Hon'ble the Chief Justice has the inherent power to allocate the judicial
business of the High Court including who of the judges should sit alone and who
should constitute the Bench of two or more Judges.
litigant shall, upon such constitution of a Bench or allotment of a case to a
particular Judge of the Court will have a right to question the jurisdiction of
the Judges or the Judge hearing the case. No person can claim as a matter of
right that this petition be heard by a single Judge or a Division Bench or a
particular single Judge or a particular Division Bench. No Judge or a Bench of
Judges will assume jurisdiction unless the case is allotted to him or them
under the orders of the Hon'ble the Chief Justice." More recently, in the
case of Inder Mani [vs. Matheshwari Prasad, (1996) 6 SCC 587, a Division Bench
of this Court has opined:
is the prerogative of the Chief Justice to constitute benches of his High Court
and to allocate work to such benches, Judicial discipline requires that the
puisne Judges of the High Court comply with directions given in this regard by
their chief Justice. In fact it is their duty to do so.
puisne Judges cannot pick and choose the matters they will hear or decide nor
can they decide whether to sit Justice had constituted a Division Bench of
Justice V.N.Khare and the learned Judge, it was incumbent upon the learned
Judge to sit in a Division Bench with Justice V.N. Khare and dispose of the
work assigned to this Division Bench. It was most improper on his part to
disregard the administrative directions given by the Chief Justice of the High
Court and to sit singly to take up, matters that he thought he should take up.
Even if he was originally shown as sitting singly on 22.12.1995, when the Bench
was reconstituted and he was so informed, he was required to sit in a Division
Bench on that day and was bound to carry out this direction. If there was any
difficulty, it was his duty to go to the Chief Justice and explain the
situation so appropriate directions in that connection. But he could not have,
on his own, disregarded the directions given by the Chief Justice and chosen to
sit singly. We deprecate this behaviour which totally undermines judicial
discipline and proper functioning of High Court." (Emphasis supplied) The
power of the Chief Justice of the Rajasthan High Court to direct that any case
or cases which may ordinarily be heard by a Judge sitting alone shall be heard
by a Bench of two or more Judges is traceable not only to his powers under Rule
54 (supra) but also specifically to rule 55 of the Rules. Cases involving
constitutional questions or issues are requires to be heard not by a single
Judge but by a Bench of at least two judges.
55. Jurisdiction of a Single Judge Except as provided by these Rules or other
Law, the following cases shall ordinarily be admitted, heard and disposed of by
a Judge sitting alone, namely;
the writ petition under Article 226 and 227 of the Constitution of India,
except the provisions of any Act or Rules made thereunder and Writs against the
order of the Board of Revenue, the RAJASTHAN State Service Appellate Tribunal.
an application under Article 228 of the Constitution of India and the case
withdrawn under the said Article:
that- (a) the Chief Justice may, from time to time direct that any case or class
of cases which may be heard by a Judge sitting alone shall be heard by a Bench
of two or more Judges.
Judge may, if he thinks fit, refer a case which may be heard by a Judge sitting
alone on any question or questions of law arising therein for decision to a
Bench two Judges; and Rule 66 of the High Court Rules deals with tied up cases
while Rule 74 deals with part-hears cases.
Rules read as follows:- Rules 66 Tied up cases.- (1) A case partly heard by a
Bench shall ordinarily be laid before the same Bench for disposal. A case in
which a Bench has merely directed notice to issue to the opposite party or
passed an ex parte order shall not be deemed to be a case partly heard by such
Where a criminal revision has been admitted on the question of severity of the
sentence only, it shall ordinarily be heard by the Bench admitting it."
Rule 74. Part-heard cases.- A case which remains part-heard at the end of the
day shall, unless otherwise ordered by the Judge or Judges concerned, be placed
first after miscellaneous cases, if any, in the Day's List for the day on which
such Judge or Judges next sit.
part-heard case entered in the Day's List may be proceeded with whether any
Advocate appearing in the case in present or not.
that if any part-heard case cannot be heard for more than two months on account
of the absence of any Judge on Judges constituting the Bench, the Chief Justice
may order such part-heard case to be laid before any other Judge or Judges to
be heard afresh." Thus, cases involving challenge to the vires of any Act
of Rules or which involve constitutional issues are required to be heard by a
Bench of two or more Judges under rule 55 (ix) (supra). Under proviso (a) to
Rule 55 (xi) (supra) the Chief Justice may, from time to time, direct that
"any cases or class of cases which may be heard by a Judge sitting alone
shall be heard by a bench of two or more Judges".
(b) to the Rule enables reference to the Division Bench of a case on any
question or questions by a single Judge himself. The jurisdiction under proviso
(a) can be exercised by the Chief Justice "at any time" and therefore
it makes no difference that the case to be referred to the larger bench under
the Rules is a part-hears case before a particular single Judge.
Rule 74 (supra), a case which remains part heard at the end of the day, is
ordinarily required to be heard by the concerned Judge or the Judges sitting
next and is to be placed first after miscellaneous cases in the next list but
that does not imply that the Chief Justice does not have the power or
jurisdiction to transfer even a part-heard case, in the peculiar facts and
circumstances of a case, from a single judge to a Division Bench in exercise of
the jurisdiction vested in the Chief Justice under proviso (a) to Rule 55 (xi)
Division Bench of the Calcutta High Court in the case of Sohan Lal Baid vs.
State of West Bengal, AIR 1990 Calcutta 168 has dealt with this aspect
elaborately. After referring to the provisions of the Government of India Act
1935, the Calcutta High Court Rules and a number of decided cases, the Bench
observed:- "The foregoing review of the constitutional and statutory
provisions and the case law on the subject leaves no room for doubt or debate
that once the Chief Justice has determined what Judges of the Court are to sit
alone or to constitute the several Division courts and has allocated the
judicial business of the Court amongst them, the power and jurisdiction to take
cognizance of the respective classes or categories of cases presented in a
formal way for their decision, according to such determination, is acquired. To
put it negatively, the power and jurisdiction to take cognizance of and to hear
specified categories or classes of cases and to adjudicate and exercise any
judicial power in respect of them is derived only from the determination made
by the Chief Justice in exercise of his constitutional, statutory and inherent
powers and from no other source and no cases which is not covered by such
determination can be entertained, dealt with or decided by the Judges sitting
singly or in Division Courts till such determination remains operative. Till
any determination made by the Chief Justice lasts, no Judge who sits singly can
sit in a Division Bench nor can a Division Bench be split up and one or both of
the Judges constituting such Bench sit singly or constitute a Division Bench
with another Judge and take up any other kind of judicial business. Even cases
which are required to be heard only by a particular single Judge or Division
Bench, such as part-heard matters, review cases et.. cannot be heard unless the
Judge concerned is sitting singly or the same Division Bench has assembled and
has been taking up judicial business under the extant determination. Such
reconstitution of Benches can take place only if the Chief Justice specially
ours) A Full Bench of the Allahabad High Court in Sanjay (H.B) of 1993 decided
on 7.10.1993) (1996) Allahabad Weekly cases 644 was confronted with a similar
situation. The Full Bench precisely dealt with an objection raised in that case
to the effect that since the writ petition was a part-heard matter of the
Division Bench, it was not open to the Chief Justice of the High Court to refer
that part-heard case to a Full Bench for hearing and decision. It was argued
before the Full Bench, that once the hearing of the case had started before the
Division Bench, the jurisdiction to refer the case or the question involved
therein to a larger bench vests only in the Judges hearing the case and not in
the chief Justice. It was also argued that the Chief Justice could not, even on
an application made by the Chief Standing Counsel. refer the case which had
been heard in part by a Division Bench for decision by a Full Bench of that
referring to the provisions of the Rules of the Allahabad High Court and in
particular Rule 1 of Chapter V, which provides that Judges shall sit alone or
in such division courts as may be constituted by the Chief Justice from time to
time and do such work as may be allotted to them by order of the Chief Justice
or in accordance with his directions and Rule 6 of Chapter V which alia
Chief Justice may constitute a Bench of two or more Judges to decide a case or
any question of law formulated by a Bench hearing a case. In the latter event
the decision of such Bench on the question so formulated shall be returned to
the Bench hearing the case and that Bench shall follow that decision on such
question and dispose of the case after deciding the remaining questions, if
any, arising therein." And a catena of authorities, rejected the arguments
of the learned counsel and opined that the order of the Chief Justice, on an
application filed by the Chief Standing Counsel, to refer a case, which was
being heard by a Division Bench, for hearing by a larger Bench of three Judges
because of the peculiar facts and circumstances as disclosed in the application
of the Chief Standing Counsel, was a perfectly valid and a legally sound order.
The Bench speaking through S. Saghir Ahmad, J. (As His Lordship then was) said:
Rule 6 of Chapter V of the Rules of Court, it can well be brought to the notice
of the Chief Justice through an application or even otherwise that there was a
case which is required to be heard by a larger Bench on account of an important
question of law being involved in the case or because of the conflicting
decisions on the point in issue in that case. If the Chief Justice takes
cognizance of an application laid before him under Rule 6 of Chapter V of the
Rules of Court and constitutes a Bench of two or more Judges to decide the
case, he cannot be said to have acted in violation of any statutory
provisions." The learned Judge then went on to observe:
view of the above, it is clear that the Chief Justice enjoys a special status
not only under Constitution but also under Rules of Court, 1952 made in
exercise of powers conferred by Article 225 of the Constitution. The Chief
Justice alone can determine jurisdiction of various Judges of the Court. He
alone can assign work to a Judge sitting alone and to the Judges sitting in
Division Bench or to Judges sitting in Full Bench. He alone has the
jurisdiction to decide which case will be heard by a Judge sitting alone or
which case will be heard by two or more Judges.
conferment of this power exclusively on the Chief Justice is necessary so that
various Courts comprising of the Judges sitting alone or in Division Bench
etc., work in a co-ordinated manner and the jurisdiction of one court is not
overlapped by other Court. If the Judges were free to choose their jurisdiction
or any choice was given to them to do whatever case they may like to hear and
decide, the machinery of the Court would collapse and the judicial functioning
of the Court would cease by generation of internal strife on account of
hankering for a particular jurisdiction or a particular case. The nucleus for
proper functioning of the Court is the "self" and
"judicial" discipline of Judges which is sought to be achieved by
Rules of Court by placing in the hands of the rules of Court by placing in the
hands of the Chief Justice full authority and power to distribute work to the
Judges and to regulate their jurisdiction and sittings." (Emphasis ours)
The above opinion appeals to us and we agree with it.
from a review of the statutory provisions and the cases on the subject as
rightly decided by various High Courts, to which reference has been made by us,
it follows that no judge or a Bench of judges can assume jurisdiction in a case
pending in the High Court unless the case in allotted to him or them by the
Chief Justice. Strict adherence of this procedure is essential for maintaining
judicial discipline and proper functioning of the Court. No departure from it
can be permitted. If every judge of a High Court starts picking and choosing
cases for disposal by him, the discipline in the High Court would be the
casualty and the administration of Justice would suffer. No legal system can
permit machinery of the court to collapse. The Chief Justice has the authority
and the jurisdiction to refer even a part-heard case to a Division Bench for
its disposal in accordance with law where the Rules so demand. It is a complete
fallacy to assume that a part-heard case can under no circumstances be
withdrawn from the Bench and referred to a larger bench, even where the Rule
make it essential for such a case to be heard by a larger Bench.
instant case, it was the statutory duty of the Chief Justice to assign writ
petition No. 2949 of 1996 to a Division Bench of the High Court for hearing
since it involved constitutional issues and Rules 55 of the High Court Rules
required such a case to be so heard. No exception whatsoever could, therefore,
be taken to the order of the Chief Justice made on 9.9.97, referring that writ
petition for hearing to a Division Bench. In the facts and circumstances of the
case the Chief Justice was statutorily obliged to take cognizance of the
application filed by the additional Advocate General of the state and pass
appropriate orders. He could not shut his eyes as regards the requirements of
Rules 55 (supra) only because a single judge of t High Court was treating the
case as part-heard.
correctness of the order of the Chief Justice could only be tested in judicial
proceedings in a manner known to law.
single Judge was competent to find fault with it.
earlier noticed, on 11.9.97 a separate board was prepared for Shethna, J. under
directions of the Chief Justice in view of the order made by Shethna, J on
8.9.1997 and part heard criminal revision petitions and writ petitions were
placed before his Lordship. Since, writ petition No. 2949/96 had not been put
up along with the other part hears cases, Shethna, J., as it appears from the
impugned order, sent for Mr. Madani (the dealing officer from the registry) to
explain as to why that writ petition had not been placed before him? Mr. Madani
informed him, as is noticed in the impugned order, that since the writ petition
had already been disposed of it was not listed before him. The learned Judge
directed Mr. Madani to produce the original record of that writ petition which
was produced before him on 12.9.97, on which date the learned Judge directed
that the papers of (SB Civil W.P. No. 2949/96) "be kept with this
case" (Crl. Revision Petition) even though there was no connection or
relevance between the two cases. In our considered opinion Shethna, H. did not
have any authority, statutory or otherwise - nor was it necessary - to call for
the record of the above writ Petition: firstly because it stood already
disposed of by a Division Bench and secondly because it was totally unrelated
to and connected with the criminal revision petition he was to hear. Therefore,
it appears that the record was went for not for mere perusal but for some other
purpose, not strictly judicial. This becomes quite obvious from the fact that
while stating, "brie reasons for not placing Writ Petition No.
2949/96" before him, Shethna, J. observed:
the writ petition had really become infructuous then the same statement could
have been made before this court when this court treated the matter as part
heard and this court would have also passed the same order provided it had
really become infructuous. The most interesting part of it is that the matter
was disposed of by Division Bench without the second set and only on one set
the Division Bench passed the order." The aforesaid observations cast
uncalled fir aspersions not only against the learned counsel for the writ
petitioner who had made the statement before the Division Bench but also
against the learned Judges constituting the Division Bench. To say the least it
was improper on the part of the learned judge to have cast aspersions on the
conduct of the counsel and the Bench in relation to a disposed of matter, in a
wholly unconnected judicial proceedings. In doing so he transgressed all bounds
of judicial propriety and discipline.
insinuations made by Shethna, J against the Chief Justice of the High Court for
transferring the Writ Petition to the Division bench are not only uncalled for,
unwarranted and unjustified but are also subversive of proper judicial
discipline. To insinuate, as the learned Judge does, that the writ petition was
got 'disposed of' in 'suspicious' circumstances is wholly wrong and devoid of
sobriety expected of a judicial officer. The insinuation also amounts to
contempt of the Division Bench as it implies that the Judges of the Division
Bench were so "amenable". The insinuations are aimed at bringing the
administration of justice into disrepute and tend to shake public confidence in
the impartiality of the judiciary. The observations, insinuations and
aspersions lack courtesy and good faith.
restraint has been thrown to the winds. It is unbecoming of a Judge of the High
Court to travel out of the confines of the issue before him (in this case the
criminal revision petition) and to fish out material to unjustifiably malign
someone more particularly when that someone happens to be the one who is the
head of the judicial family in the High Court. We most strongly deprecate this
case of Braj Kishore Thakur vs. Union of India, (1997) 4 SCC 65, while
expunging some adverse remarks made by the High Court against a Judge of the
subordinate court, this court said:
restraint is a virtue. A virtue which shall be concomitant of every judicial
disposition. It is an attribute of a Judge which he is obliged to keep
refurbished from time to time, particularly while dealing with matters before
him whether in exercise of appellate or revisional or other supervisory
jurisdiction. Higher courts must remind themselves constantly that higher tiers
are provided in the judicial hierarchy to set right errors which could possibly
have crept in findings or orders of courts at the lower tiers. Such powers are
certainly not for belching diatribe at judicial personages in lower cadre. It
is well to remember the words of a jurist that " a Judge who has not
committed any error is yet to be born....
greater damage can be caused to the administration of justice and to the
confidence of people in judicial institutions when Judges of higher courts
publicly express lack of faith in the subordinate Judges. it has been said,
time and again, that respect for judiciary is not in hands by using intemperate
language and by casting aspersions against lower judiciary.
well to remember that a judicial officer against whom aspersions are made in
the judgment could not appear before the higher court to defend his order.
Judges of higher courts must, therefore, exercise greater judicial restraint
and adopt greater care when they are tempted to employ strong terms against the
lower judiciary." What was said in relation to the Judges of the lower
judiciary applies with equal force to the judges of the superior judiciary.
A.M. Mathur vs. Pramod Kumar Gupta, (1990) 2 SCC 533, this court said:
restraint and discipline are as necessary to the orderly administration of
justice as they are to the effectiveness of the army. The duty of restraint,
this humility of function should be constant theme of our judges. This quality
in decision making is as much necessary for judges to command respect as to
protect the independence of the judiciary.
to those who come before the court as well to other co- ordinate branches of
the State, the executive and the legislature.
must be mutual respect, When these qualities fail or when litigants and public
believe that the judge has failed in these qualities, it will be neither good
for the judge not for the judicial process.
Judge's Bench is a seat of power. Not only do Judges have power to make binding
decision, their decisions legitimate the use of power by other officials. The
judges have the absolute and unchallengeable control of the court domain. But
they cannot misuse their authority by intemperate comments, undignified banter
or scathing oriticism of counsel, parties or witnesses. We concede that the
court has the inherent power to act freely upon its own conviction on any
matter coming before it for adjudication, but it is a general principle of the
highest importance to the proper administration of justice that derogatory
remarks ought not to be made against persons or authorities whose conduct comes
into consideration unless it is absolutely necessary for the decision of the
supplied) There is one other disquieting and disturbing aspect of the matter
and that is that the learned judge has cast aspersions and made insinuations
against the Chief Justice and the Judges constituting the Division bench, who
had passed judicial orders in the writ petition. They have had no chance or
opportunity to reply to those aspersions and insinuations. By the very nature
of their office, the Judges of the Supreme Court or the High Court, cannot
enter into a public constroversy and file affidavits to repudiate any criticism
or allegations made against them. Silence, as an option, becomes necessary by
the very nature of the office which the Judges hold. Those who criticise the
Judges in relation to their judicial or administrative work, must remember that
the criticism, even if outspoken, can only be of the judgment by not of the
Judge. By casting aspersions on the Judges personally or using intemperate
language against them, the critics, who ever they may be, strike a blow at the
prestive of the institution and erode its credibility. That must be avoided at
J must be presumed to be aware of this and yet he permitted himself the liberty
to make intemperate comments and disparaging and derogatory remarks against the
Cheif Justice and his Brother Judges as also the former Cheif Justices of that
court including the present Chief Justice of India who cannot reply or respond
to the unfounded charges. It is not merely a case of lack of judicial restraint
bu it amounts to abuse and misuse of judicial authority and betrays lack or
respect for judicial authority and betrays lack of respect for judicial
when made recklessly (as in the instant case) it amounts to interference with
the judicial process. The foundation of our system which is based on the
independence and impartiality of those who man it, will be shaken if
disparaging and derogatory remarks are permitted to be made against brother
Judges with impunity. It is high time that we realise that the much cherished
judicial independence has to be protected not only from outside forces but also
from those who are an integral part of the system. Dangers from within have
much larger and greater potential for harm than dangers from outside. We alone
in the judicial family can guard against such dangers from within. One of the
sure means to achieve it is by the Judges remaining circumspect and
self-disciplined in the discharge of their judicial functions. We have been
really distressed by the manner in which the learned Judge has acted. We do not
wish to say anymore on the this aspect.
for what has been said above, we hold that all comments, observations and aspersions
made by Shethna, J. against the Chief Justice and the learned Judges
constituting the Division Bench are without any justification or jurisdiction
and bear no relevance to the case which was before the learned Judge and the
same deserve to be set aside and expunged from the record.
brings us to the next question relating to the propriety of issuance of notice
to the Chief Justice of the High Court to show cause why contempt proceedings
be not initiated against him. In substance the contempt that is alleged to have
been committed by the Chief Justice of the High Court respondent No.2, is in
"transferring" W.P. No. 2949/96 which has been heard in part by
Shethna J. to a Division Bench for its disposal and for not placing that writ
petition alongwith "other part heard cases" before the learned Judges
despite his orders to that effect. As already noticed Shethna, J. had twice on
3.9.97 and 8.9.97, directed criminal revision petition No. 354/97 to be listed
alongwith "other part heard cases" before him. The great anxiety to
hear "other part-heard cases" alongwith the criminal revision
petition, on a date when the learned Judge was sitting in the Division Bench
exposes and undue interest in some matter, which again is against judicial discipline.
Writ Petition No. 2949/96 was one such part-heard case which the learned Judge,
for reasons best known to him, was keen to hear. We have dealt with in an
earlier part of this Judgment as to how and why W.P. 2949/96 was referred by
learned Chief Justice for hearing to the Division bench. We need not repeat it.
Suffice it, to notice that a judicial order had been passed by the Chief
Justice allowing the application filed by the Additional Advocate General under
Rule 55 for referring the writ petition, for its disposal, to a Division Bench,
Shethna, J. Therefore had no jurisdiction to question the correctness of that
order more so in some unconnected and unrelated collateral proceedings.
withdrawal of the part-heard writ petition from the board of Shethna, J. and
its transfer to the Division bench for its disposal in view of the requirements
of Rule 55, was an action squarely permitted by the Rules and in conformity
with the statute. It was an action of the Chief Justice backed by statutory
sanction. That order of the Chief Justice was legally valid and
entirely agree with the learned Solicitor General that the issuance of a notice
to the Chief Justice to show cause why proceedings under the Contempt of Court
act be not initiated against him for transferring the part-heard writ petition
No. 2949/96 to the Division Bench for hearing, is not only subversive of
judicial discipline and illegal but is also without jurisdiction. No such
notice could be issued to the Chief Justice since the order referring the case
to the Division bench was an order legally made by the Chief Justice in
exercise of his statutory powers. Such an order can never invite initiation of
contempt proceedings against him. The issuance of notice smacks of judicial
authoritarianism and is not permissible in law.
otherwise, it is a fundamental principle of our jurisprudence and it is in
public interest also that no action can lie against a Judge of a Court of
Record for a judicial act done by the Judge. The remedy of the aggrieved party
against such an order is to approach the higher forum through appropriate
proceedings. This immunity is essential to enable the Judges of the Court of
Record to discharge their duties without fear or favour, though remaining
within the bounds f their jurisdiction. Immunity from any civil or criminal
action or a charge of contempt of court is essential for maintaining
independence of the judiciary and for the strength of the administration of
justice. The following passage from Oswald's Contempt of Court, 3rd Edn. 1993
(Reprint) in this behalf is apposite:
action will not lie against a Judge of a Court of Record for a wrongful
commitment in the exercise of his judicial duties, any more than for an
the Divisional Court refused to strike out as disclosing no cause of action a
statement of claim in an action for malicious prosecution brought against
certain Judges of the Supreme Court of Trinidad for having (as it was alleged)
of their own motion, and (as it was alleged) of their own motion, and without
any evidence, caused the plaintiff to be prosecuted and committed to prison for
an alleged contempt of the Supreme Court in forwarding to the Governor of the
Colony for transmission to the Queen in Council a petition of appeal
complaining of the oppressive conduct of the defendant as Judges(t). At the
trial of this case before Lord Coleridge, C.J. the jury found as regards one of
the defendants that "he had overstrained "his judicial powers, and
had acted in the administration of justice oppressively and maliciously to the
"prejudice of the palintiff and to the perversion of "justice".
The jury assessed the damages at pounds 500.
the verdict. Lord Coleridge ordered judgment to be entered for the defendant.
This judgment was affirmed by the Court of Appeal. Lord Esher. M.R. in
delivering the judgment of the court, said, "If any Judge exercises his
jurisdiction from "malicious motives he has been quilty of a gross
"dereliction of duty." And after saying that a Judge was liable to be
removed from his office for such conduct. Lord Esher went on to say that the
common law clearly was that no action lay against a Judge of a Court of Record
" for doing something within his jurisdiction but "doing it
maliciously and contrary to good faith" (Emphasis ours) Thus no action
could lie against the Chief Justice acting judicially for doing something
within his jurisdiction even if the order is patently erroneous and
unsustainable on merits. Commenting upon the extent of immunity which the
Judges of the superior courts must have for preserving independence of the
judiciary, the authors of Salmond and Heuston on the Law of Torts, 21st Edn.
1996 in Chapter XIX observe:
judge of one of the superior courts is absolutely exempt from all civil
liability for acts done by him in the execution of his judicial functions. His
exemption from civil liability is absolute, extending not merely to errors of
law and fact, but to the malicious, corrupt, or oppressive exercise f his judicial
powers. for it is better that occasional injustice should be done and remain
unredressed under the cover of this immunity than that the independence of the
judicature and the strength of the administration of justice should be weakened
by the liability of judges to unfounded and vexatious charges of errors,
malice, or incompetence brought against them by disappointed litigants- "
otherwise no man but a beggar or a fool, would be a judge.
& Co. (1997) AC 405 at p. 440, per Lord Fraser) (Emphasis supplied) Even
under the Judicial Officers' Protection Act 1985 immunity has been given to
judicial officers in relation to judicial work done by them as well as for the
judicial orders made by them. The statement of objects and reasons for
introducing the Bill in relation to the 1985 Act which reads thus is
is one of the main pillars of parliamentary democracy as envisaged by the
essential to provide for all immunities necessary to enable Judges to act
fearlessly and impartially in the discharge of their judicial duties. It will
be difficult for the Judges to function if their actions in court are made
subject to legal proceedings, either civil or criminal." Section 16(1) of
the Contempt of Court Act 1971 does not apply to the Judges of the court of
record but only to the subordinate judiciary.
issuance of a notice to show cause why contempt proceedings be not initiated
against respondent. No.2, the Chief Justice of the High Court, by shethna, J.
in the facts and circumstances of this case is thus wholly illegal, unwarranted
and without jurisdiction. Issuance of such a notice is also misconceived since
by no stretch of imagination can it be said that there was any interference in
the administration of justice by the Chief Justice in exercising his statutory
powers to allocate work to puisne Judges and to the division benches. The order
of reference of the part-hears writ petition to the Division Bench for its
disposal, as already noticed, was legally sound and statutorily valid. Such an
action on the part of a Chief Justice could never become a cause for issuance
of contempt notice to him. To expect the Chief Justice to say so in response to
the show cause notice before the learned single Judge would to adding insult to
injury. We cannot countenance such a situation. The direction to issue show
cause notice to the Chief Justice, respondent No.2 being totally misconceived,
illegal and without any jurisdiction and is wholly unsustainable, We quash the
now takes us to that part of the order in which comments have been made
regarding drawal of D.A. and non- payment of charges for occupation of Bungalow
No. A/2, Jaipur by some of the former Chief Justice of the Rajsthan High Court
including the present Chief Justice of India, Mr. Justice J.S. Verma, till
1994. The insinuation made is that all of them had "illegally" drawn
full dearness allowance of Rs. 250/- per day to which they were not entitled
and their action, amounted to "misappropriation of public funds" because
it is alleged that each one of them had been "allotted free accommodation
by the Government of Rajasthan" Shethna, J discussed this aspect of the
case in some details after relying upon materials which we do not find
available in the record of Writ Petition No. 2949/96 and concluded:
the above, it is clear that no Chief Justice of this court was paying any
amount for his stay in Bungalow No.A/2 at Jaipur prior to 10.6.1994 but all of
them have illegally drawn full D.A. of Rs. 250/- per day which is clear from
Rule 2 (1) (e) of the High Court Travelling Allowance Rules, 1996 and sub-rule
(iv) of the Rules which is quoted in para 4 of the reply affidavit by the High
Court itself. The present CJI Hon'ble Mr.Justice J.S. Verma was also one of the
former Chief Justice of this court from 1986 to 1989. He also initially stayed
at Jaipur for 15 days and lateron sat more at Jaipur than Jodhpur and illegal
drew full D.A. of Rs. 250/- per day for his stay at Jaipur without paying any
charges to which there was an audit objection which fact was on the record of
this High Court. The High Judges are drawing and disbursing authorities and
nobody else would come to know then in that case they should be; more careful
while drawing such D.A. amount. It is nothing but a mis- appropriation of the
public fund which is a criminal offence under the Penal Code."
Justification or propriety for making these comments apart, the validity of
these comments/observations needs to be tested for procedural propriety factual
accuracy and visible legal support.
as the procedural propriety is concerned, it need not detain us much as
admittedly, the comments have ben made in respect of all the former Chief
Justices of the Rajasthan High Court who held that high office till 1994,
without putting them on any notice and behind their back.
them have been condemned unheard. it needs no discussion to say, in the light
of the settled law, that an order of this type which violates principles of
natural justice and is made behind the back of the affectee is wholly
unsustainable . On this short ground, all those comments/observations and
conclusions and conclusions arrived at by Shethna, J. are required to be
quashed and expunged. the learned Attorney General submitted that the observations
(supra) were both factually and legally not sustainable and urged that keeping
in view the high office of Chief Justice of India we should test legal and
factual validity of the observations also. We therefore do not propose to rest
our order on grounds of procedural infirmities and judicial propriety only.
Both factually as well as legally the observations/comments, tend, as the
discussion shall presently expose, to be the result of total disregard for
propriety and decency as to make the motives of the author suspect and in the
process the Judges has made himself Coram-non-judice.
Section 2 of High Court of Rajasthan (Establishment of a Permanent Bench at
Jaipur) Order 1976, a permanent Bench of the Rajasthan High Court at Jaipur was
established at Jaipur.
"Establishment of a Permanent Bench of the RAJASTHAN High Court at Jaipur-
There shall be established a permanent Bench of the High Court of Rajasthan at
Jaipur, and such Judges of the High Court of Rajasthan, being not less than
five in number, as the Chief Justice of that High Court may from time to time,
nominate, shall sit at Jaipur in order to exercise the jurisdiction and power
for the time being vested in that High Court in respect of cases arising in the
districts of Ajmer, Alwar, Bharatpur, Bundi Jaipur, Jhalawar, Jhunjhunu, Kotah,
Sawai Madhopur, Sikar and Tonk:
to the above provision, it is for the Chief Justice after the constitution of
the Bench at Jaipur to nominate, from time to time, at least five Judges to sit
at Jaipur to hear cases. The Judges so nominated are obliged to sit at Jaipur
and do such work as is assigned to them.
their duty to do so. The duration of their sitting at Jaipur is to be
determined by the Chief Justice and he may determine it from time to time.
the establishment of the Bench of the High Court at Jaipur in 1979, an order
came to be made by the Government of Rajasthan bearing No. F(116)/R.G./11/78 on
18.12.1979 declaring bungalow No. A/2 a Jaipur as "High Court Guest
House". An English translation of that order reaus:
OF RAJASTHAN GENERAL ADMINISTRATION (GR2) DEPTT.
The Registrar, Rajasthan High Court, Jodhpur.
F(116)G.A./11/78 Jaipur Dt. 18.12.79 Sub: Regarding conversion of bungalow no
A-2 Gandhi Nagar, as a guest house.
In reference to your above DO letter No. PA/R/4211 dated 28.5.97, use of
bungalow No. 8-2, Gandhi Nagar, as High Court Guest House is hereby sanctioned.
sd/- Special Secretary to the Govt." By another order of the State
Government dated 21.8.1991, Bungalow No. C-42 at Jodhpur was also converted and
declared as "High Court Guest House"., Both the bungalows, A/2 at
Jaipur and C-42 at Jodhpur, were placed at the disposal of the High Court of
Rajasthan for their use as High Court Guest Court of Rajasthan for their use as
High Court Guest Houses. Neither of the two bungalows was allotted free of rent
to any Chief Justice of the High Court. Chief Justice of the High Court has
been provided with a rent free official residence only at Jodhpur under Rules
even though providing of an official bungalow to the Chief Justice at Jaipur
would also have been in order since by the very nature of his office, the Chief
Justice could be required to sit at Jaipur also both for administrative as well
as judicial work, depending upon the exigencies of the situation. It was only
on 21.6.97, when for the first time the Government of Rajasthan allotted
Bungalow No.A/c at Jaipur for the Exclusive use of the Chief Justice and Bungalow
No.A/5 at Jaipur was declared as the High Court Guest House and placed under
the control of Rajasthan High Court. That order dated 21.6.1997 reads thus:
Bungalow No.A-2 Gandhi Nagar, Jaipur has been allotted for the exclusive use of
the Hon'ble Chief Justice of Rajasthan and Bungalow No.A-5, Gandhi Nagar,
Jaipur has been converted and allowed to be used as Guest House under the
Control of Rajasthan High Court.
Governor of Rajasthan hereby accords sanction.
order of the Governor sd/- (Jagat Singh) Secretary to the Govt.
order dated 21.6.97 was amended on 1.8.97 in the following manner:
continuation of the Order of this Office even number dated 21.6.97, the
Bungalow No.A-2, Gandhi Nagar, Jaipur is hereby converted for the exclusive use
of Hon'ble Chief Justice, Rajasthan High Court as Guest House w.e.f 21.06.97.
Governor has accorded sanction.
order of the Governor sd/ ( JAGAT SINGH ) Secretary to the Govt.
what transpires from the record is that Bungalow No.A/2 at Jaipur was declared
as High Court Guest House by the Government of Rajasthan as early as in 1979
and placed under the control of the Rajasthan High Court. it was not allotted
to the Chief Justice of the High Court - free of rent - nor was it allotted
exclusively for the use of the Chief Justice of that High Court as a Guest
House till 1997 when that bungalow was allotted for the exclusive use of the
Chief Justice and by a subsequent order that Bungalow at Jaipur was declared as
a "Guest House" for the exclusive use of the chief Justice. The High
Court of Rajasthan under whose control Bungalow No. A/2 at Jaipur had been
placed by the Government of Rajasthan since 1979, did not fix or levy any
charges for the occupation of that Bungalow till 1994.
being maintained by the High Court as a Guest House though there were no
boarding facilities provided in that Guest House.
of the accounts of the high Court are conducted by the Accountant General of
Rajasthan from time to time.
to the affidavit filed by the Registrar of the High Court, Shri Manak Mohta in
this Court, an audit objection was raised for the first time and conveyed to
the High Court on 30.3.1991 regarding drawl of full daily allowance by the
Chief Justice, who had been provided "free Government accommodation"
for their stay at Jaipur. It would be useful to refer to that affidavit at this
the establishment of the permanent Bench at Jaipur on 31.1.1977 till 31.8.1988
there was no audit objection raised by the Accountant General of Rajasthan in
any of its audit reports with regards to drawl of daily allowance by former
Hon'ble Chief Justice or Judges for their stay at Jaipur.
for the first time an audit objection with regard to drawl of full daily
allowance by former Hon'ble Chief Justices for their stay at Jaipur was raised
by the Accountant General of Rajasthan for the audit period from 1.9.1988 to
31.12.1990. The audit of this period was conducted from 8.1.1991 to 2.2.1991
which was communicated by the Accountant General to the Registrar of Rajasthan
High Court and received on 30.3.1991. During the tenure of former Hon'ble Chief
Justice Shri K.C.Agarwal, who occupied the office of the Chief Justice of
Rajasthan with effect from 16.4.1990.
similar audit objections were again raised for the period 1.1.1991 to
31.5.1993. The audit for this period was communicated from 15.6.93 to 9.7.93
and the audit report was communicated by the Accountant General to the
Registrar, Rajasthan High Court and was received by him on 12.5.94.
this audit period the amount of audit objections which regard to Hon'ble Chief
Justice Shri J.S.
and Shri M.C. Jain remained the same whereas the amount got increased for
Hon'ble Chief Justice Shri K.S. Agarwal.
similar audit objection was again raised in the audit period from 1.6.93 to
1.1.1995. The audit of this period was conducted from 13.2.1995 to 6.3.1885 and
the communication was made by the Accountant General to the Registrar,
Rajasthan High Court which was received by him on 5.4.1995. During this period
the amount shown recoverable remained the same with regard to Hon'ble Chief
Justice Shri J.S. Verma and Shri M.C. Jain whereas it increased in the case of
Hon'ble Chief Justice Shri K.C. Agarwal.
prior to the receipt of such report, a decision was taken by the Hon'ble Chief
Justice Shri G.C. Mital on 10.6.1994 that His Lordship would pay Rs. 10/- per
day as room rent and Rs. 6/- per day for geyser/heater/air-conditioner, total
being Rs. 16/- per day which was at par with prevalent Circuits House
charges." With a view to meet audit objection, it appears that on
10.6.1994, following proposal was made by the Registrar of the High Court of
Rajasthan relating to the charges for stay in the High Court Guest House.
OF CHARGES FOR HIGH COURT GUEST HOUSE A-2 JAIPUR ORDER DATED 10.06.94 BY
REGISTRAR "1. Regarding the payment of D.A. to the Chief Justice during
their stay at Jaipur Audit Party of Accountant Gen.
objected the use of House No.A- 2 by the Chief Justice during their stay at
Jaipur because they have been allotted free government accommodation:
Hon'ble J.S. Verma
Hon'ble M.C. Jain
Hon'ble K.C. Aggarwal
the above Govt. Accommodation there is no arrangement of boarding and breakfast
and no post for the maintenance of A-2 has been sanctioned by the state
Government. Therefore, in connection with the objections the accommodation may
be taken in the category of Circuit House for which the rates prescribed by the
State Government is as under:
Single use Double - Rs. 10
persons Double bed - Rs. 10
there is arrangement of geyser/heater/cooler Rs. 4 will be charged extra and if
air conditioning machine is there Rs. 6 instead of Rs. 4 will be charged. Hence
the above mentioned residence may be taken in the category of the Circuit
if Hon'ble Chief Justice is ready to pay the charges at the rate of Circuit
House, they may claim full D.A. during their stay at Jaipur.
The above proposal was followed by the following noting:
have apprised the Hon'ble Chief Justice, the Rules position. His Lordships has
agreed to pay the charges for his stay in the Guest House as per Circuit House
rate. The P.P.S. may be requested to deposit the charges for the stay of
Hon'ble Chief Justice in the Guest House, A-2 at Jaipur." sd/- ( G.L.
Gupta ) 18.6.94 Therefore, what emerges is that an objection was raised by the
audit party, while conducting audit from 8.1.1991 to 2.2.1991 for the period
1.9.1988 to 31.12.1990 regarding drawal of full Daily Allowance by the Chief
Justices who according to the audit party had been provided "free
government accommodation" at Jaipur presumably treating Bungalow No. A/2
as "free Government accommodation" allotted to the Chief Justices.
The audit objection, for the first time, was conveyed by the Accountant General
to the Registrar of the High Court and was received by the Registrar on
30.3.1991. The audit objection, thereafter, continued to be repeated in the
subsequent years after audits were conducted. Thus, it is obvious that prior to
30.3.91, no audit objection had ever been conveyed to the High Court let alone
to any former Chief Justice of that Court let alone to any former Chief Justice
of that Court., There was no audit objection raised for any period prior to
1.9.88, even though the High Court Guest House, as already noticed, was being
used for their stay by various Chief Justices since 1979. Even after 10.6.94,
the Chief Justices of Rajasthan High Court kept on drawing their full daily
allowance though they started paying charges for occupation of the High Court
Guest House, Bungalow No.A/2 at Jaipur, at the rates indicated in the
Registrar's note dated 10.6.1994 (supra). The charges were being paid to the
High Court since the bungalow had been allotted to the High Court for its use
as a Guest House. Admittedly, at no, point of time did the High Court call upon
any former Chief Justice to deposit the arrears of charges for occupation of
the Guest House after the charges were fixed in 1994.
the High Court Judges Travelling Allowance Rules 1956, the Judges of the High
Court w.e.f 12.5.1976 were entitled:
to a daily allowance at the rate of Rs. 35/- for the entire period of absence
from headquarters, the absence being reckoned from the time of departure from
headquarters to the time of return to headquarters:
that the daily allowance so admissible shall be regulated as follows:- (i) full
daily allowance for each completed day, that is, reckoned from mid-night to
for absence from headquarter for less than twenty-four hourse, the daily
allowance shall be at the following rates, namely:- (1) if the absence from
headquarters does not exceed six hours, 90% of the full daily allowance.
the absence from headquarters exceeds six hours, but does not exceed twelve
hours, 50% of the full daily allowance;
the absence from headquarters exceeds twelve hours, full daily allowance:
if the date of departure from and return to headquarters fall in fall in
different dates the period of absence from headquarters shall be reckoned as
two days and daily allowance shall be calculated for each day as in clause
(ii):" Subsequently, the rate of daily allowance was revised vide G.S.R.
1194 (E) dated 7.11.1986 and the Judges were entitled:
a daily allowance at the rate of Rs. 100/- for the entire period of absence
from headquarters, the absence being reckoned from the time to departure from
headquarters to the time of return to headquarters to the time of return to
that the daily allowance so admissible shall be regulated as follows:-
full daily allowance for each completed day, that is, reckoned from mid-night
for absence from headquarters for less than twenty-four hours, the daily allowance
shall be at the following rates, namely:- With effect from 4.12.1991 the rate
of daily allowance was further enhanced:
to a daily allowance at the rate of (Rs. 250/-) for the entire period of
absence from headquarters, the absence being reckoned from the time of
departure from headquarters to the time of return to headquarters.
that the daily allowance so admissible shall be regulated as follows:- (i) full
daily allowance fro each completed day, that is, reckoned from mid-night to
for absence from headquarters for less than twenty-four hours, the daily
allowance shall be at the following rates, namely:- Thus, from 1976 to
7.11.1986, the daily allowance admissible to the Judges, including the Chief
Justice, was at the rate of Rs. 35/- per day. It was enhanced to Rs. 100/- per
day w.e.f. 7.11.1986 and further enhanced to Rs. 250/- per day w.e.f.
provision on the basis of which the audit party has raised the objection as is
apparent from the audit report, is sub-clause (E)(ii) of para 2 of the High
Court Judges Travelling Allowance Rules, 1956 which reads:
a Judge is a State Guest or is allowed to avail free board and lodging at the
expense of the Central or State Government or any autonomous industrial or commercial
undertakings or corporation or a statutory body or a local authority, in which
Government funds have been invested or in which Government have any other
interest, the daily allowance shall be restricted to 25 percent of the amount
admissible or sanctioned, an if only board or lodging is allowed free, the
Judge may draw daily allowance at one half of the admissible rate." Before
considering the application of the aforesaid provision to the cases of the
former Chief Justices of Rajasthan High Court, who drew full daily allowance
while staying in the High Court Guest House at Jaipur, it is desirable to
examine the factual accuracy of the comments made by the learned single Judge.
an analysis of the rule position relating to the drawl of daily allowance by
the Judges, it follows that it is a factually incorrect observation of Shethna,
J that all the Chief Justices till 1994 had "illegally drawn full daily
allowance of Rs. 250/- per day". Till 1991, the daily allowance, was
payable to the Judges either at the rate of Rs. 35/- or Rs. 100/- per day. It
was enhanced to Rs. 250/- per day only w.e.f 4.12.1991. No Chief Justice,
therefore, could have drawn a daily allowance of Rs. 250/- prior to 4.12.91.
Specific reference has been made by Shethna, J to the present Chief Justice of
India Mr. Justice J.S.Verma who it is alleged had "illegally" drawn
full daily allowance of Rs.250/- per day inspite of an "audit
objection", known to the High Court. According to Shethna, J:
present CJI Hon'ble Mr. Justice J.S. Verma was also of the former Chief Justice
of this Court from 1986 to 1989. He also initially stayed at Jaipur for 15 days
and lateron sat more at Jaipur than Jodhpur and illegal drew full D.A. of Rs.
250/- per day for his stay at Jaipur without paying any charges to which there
was an audit objection which fact was on the record of this High Court."
One really wonders where the learned Judges got the figure of Rs. 250/- per day
as the D.A. for the period 1986- 89, during which period Verma, J. was the Chief
Justice of the Rajasthan High Court. At no point of time, as the Chief Justice
of Rajasthan High Court has Justice J.S.Verma drawn a daily allowance at the
rate of Rs. 250/- per day for his stay at Jaipur. Therefore, it is wrong to
allege that Verma, J. had drawn daily allowance at the rate of Rs. 250/- per
day, which rate became effective much after Mr. Justice J.S. Verma had
relinquished his office as the Chief Justice of Rajasthan High Court on his
elevation to the Supreme Court, Surely, Shethna, H. could not have been unaware
of this position. Why then did he choose to record an incorrect fact is not
understandable? Insofar as the audit objection is concerned, as already
noticed, the audit objection was raised for the first time after the audit was
conducted between 8.1.1991 to 2.2.1991 and conveyed to the High Court on
30.3.1991. That audit objection pertained to the period 1.9.1988 to 31.12.1990.
There was therefore no question of any audit objection having been conveyed to
the High Court till Justice Verma was elevated to the Supreme Court w.e.f.
3.6.1989. No audit objection had admittedly been raised during the tenure of
Mr. Justice J.S. Verma and it is an incorrect statement to say that such an
audit objection "was on the record of the High Court". Even after the
audit objection was for the first time conveyed to the Registrar of the High
Court on 31.3.1991, it was never communicated to Verma, J. at any point of
time. Shethna, J.
unfortunately 'distorted' facts, for reasons which can be any body's guess.
Thus, the allegations (supra) against Mr. Justice J.S.Verma are factually
incorrect and appear to have been made recklessly.
also the observations and comments of Shethna, J. are not sustainable.
According to sub-clause (E) (ii) of Para 2 of the High Court Judges Travelling
Allowances Rules, 1956, (supra) a Judge including a Chief Justice is not
entitled to draw the admissible full daily allowance, of he has been declared
either as a State Guest or is allowed to avail of free board and lodging at the
expense of the Central or the State Government or any autonomous industrial or
commercial undertakings or corporation or a statutory body or a local authority
in which the Government funds body or a local authority in which the Government
funds have been invested or in which the Government has any other interest.
already noticed, bungalow No.A/2 at Jaipur had been declared as a High Court
Guest House by the State Government in 1979 and placed at the disposal of the
High Court of Rajasthan. It had not been allotted as rent free Accommodation in
favour of any Chief Justice. The charges of rent of Bungalow No. A/2 at Jaipur
were debited to the account of the High Court of Rajasthan by the State
Government. The Bungalow was in possession of and under the control of the High
court of Rajasthan. Occupation of such a building, with or without payment of
charges was to be regulated by the High Court of Rajasthan itself. The charges,
if any, were to be fixed by the High Court of Rajasthan for occupation of the
Guest House and those charges were recoverable by the High Court of Rajasthan
from the persons occupying the Guest House. May be, the High Court only
permitted the Chief Justices to stay in that Guest House, but that was an
internal arrangement of the High Court and the Government had no say in it. The
Bungalow had been declared by the Government to the used as a Guest House of
the High Court and placed under control of the High Court and the Government
had no say in it., The Bungalow had been declared by the Government to be used
as a Guest House of the High Court and placed under control of the High court,
not exclusively for the Chief Justices from 1979 of 1997. If the High Court
chose not to fix any charges ever since 1979 when the Guest House was allotted
to the High Court till 1994, it cannot by ay stretch of imagination be said
that the Chief Justices, had been allotted "free Government
accommodation" for their stay at Jaipur in the High Court Guest House, so
as to disentitle them to draw full daily allowance at the admissible rates.
free boarding/lodging at the expense of the central or the State Government or
declaring the occupant as a "State Guest" is the sine qua non for
attracting sub- clause (E) (ii) of Para 2 of the Rules (supra), not entitling a
Judge including the Chief Justice to draw full daily allowance. After bungalow
No.A/2 had been declared as the High Court Quest House in 1979, and placed
under the control of High Court, the State Government went out of the picture insofar
as its use and occupation was concerned.
stay in that Guest House even without charges, cannot by any rule of
construction, be construed as providing "free lodging" at the expense
of the Central or State Government so as to attract the provision of Para 2(ii)
E of the rules (supra). The Chief Justices were, therefore, not disentitled to
draw their full daily allowances at the rates admissible at the relevant time.
Even after the charges were fixed at the rate of Rs. 10/- or Rs. 16/- per day
for occupation of the Guest House in 1994 by the High Court, the Chief Justices
have continued to draw their full daily allowance and no 50^ of the D.A. They
have paid charges to the High court for the use of the Guest House at the rate
fixed by the High Court w.e.f. 10.6.1994. This appears to be quite in order and
shows that the drawal of daily allowance at the full rate has nothing to do
with the stay in the High Court Guest House. Admittedly, no audit objection has
been raised to the drawal of the full daily allowance by the Chief Justices and
payment of Rs. 10/- or Rs. 16/- per day for the occupation of the Guest house
to the High Court since June 1994. By no stretch of imagination can, therefore,
it be said that any of the Chief Justices, till 1994, had "illegally"
drawn the full daily allowance to which they were not entitled to. The further
observation of Shethna, J. that:
is nothing but a mis- appropriation of the public fund which is a criminal
offence under the Penal Code." Are not only based on wrong assumptions but
are also legally unsound and untenable.
also relevant in this connection to notice the contents of the additional
affidavit filed by the Registrar, High Court of Rajasthan in this Court. The
relevant portion of that affidavit reads:- "By way of a supplemental
affidavit to my earlier affidavit dated 2.11.1997, it is respectfully submitted
that the Hon'ble Judges as and when they retired or are transferred or are
appointed as Judges of the Hon'ble Supreme Court are issued Last Pay certificate
by the Concerned District Treasury Officer of the Government of Rajasthan.
Last Pay Certificates issued to Hon'ble Mr. Chief Justice J.S. Verma (the then
Chief Justice of High Court of Rajasthan) on appointment as Judge of this
Hon'ble Court, and Hon'ble Mr.
K.C. Agarwal (the then Chief Justice of High Court of Rajasthan) on his
transfer as Chief Justice of Calcutta High Court showed in the case of Hon'ble
Chief Justice Mr. J.S.Verma that "nil" recoveries were to be made
from his pay and, in the case of Hon'ble Chief Justice K.C. Agarwal, no amount
was shown as recoverable from his pay. Annexed hereto and marked as Annexures
R1 and R2 are the Last Pay Certificates of the Hon'ble Chief Justice Mr.
Justice J.S.Verma and Hon'ble Mr. Justice K.C. Agarwal." Copies of the
Last pay Certificates in support of the above deposition have been placed on
record. The last pay certificates was issued by the District Treasury of the
Government of Rajasthan in 1989. When the Treasury Officer has certified that
'no' recoveries were due from Mr. Justice J.S. Verma, on his relinquishing the
office of the Chief Justice of Rajasthan High Court, it puts the matter
completely beyond doubt that neither Mr. Justice J.S.Verma had, drawn any daily
allowance "illegally" nor was he quilty of any "criminal
misappropriation of public funds" as alleged by the learned Judge. The
"last pay certificate" could not have been issued without proper
verification by the District Treasury Officer and the declaration therein to
the effect that "no dues" were recoverable from the pay of Mr.
Justice J.S. Verma, establishes beyond any doubt that nothing had been
"illegally" drawn by Verma, J. and that no public funds were
"misappropriated" by him and nothing was 'due' from his to the State
therefore, unhesitatingly come to the firm conclusion that the observations,
comments, insinuations and allegations made by Shethna, J in the matter of
drawal of full daily allowance by the former Chief Justices of Rajasthan High
Court including the present Chief Justice of India, Mr. Justice J.S.Verma, who
used to stay in bungalow No.A/2 at Jaipur without payment of rent, are not
sustainable both in law and on facts. The allegations have been made
irresponsibly and recklessly. There is no question of any
"misappropriation" of "public funds" by any former Chief
Justice of the High Court of Rajasthan in the established facts of the case.
Strong expressions have been used against the head of the Indian Judicial
Family without any factual matrix and legal justification. We express our
serious disapproval of the manner in which the learned single Judge has done so
as it does no credit to the office that he holds.
we concede that a Judge has the inherent power to act freely upon his own conviction
on any matter coming before him, but it is a principle of highest importance to
the proper administration of justice that the Judge must exercise his powers
within the bounds of law and should not use intemperate language or pass
derogatory remarks against other judicial functionaries, unless it is
absolutely essential for the decision of the case and is backed by factual
accuracy and legal provisions.
educative to quote the views of Benjiman Cardozo, the great Jurist in this
judge, even when he is free, is still not wholly free. He is not to innovate at
pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal
of beauty or of goodness. He is to draw his inspiration from consecrated
principles. He is not to yield to spasmodic sentiment, to vague and unregulated
to exercise discretion informed by tradition, methodized by analogy,
disciplined by system, and subordinated to "the primordial necessity of
order in the social life." It must be remembered that it is the duty of
every member of the legal fraternity to ensure that the image of the judiciary
is not tarnished and its respectability eroded. The manner in which proceedings
were taken by the learned Judge in relation to the writ petition disposed of by
a Division Bench exposes a total lack of respect for judicial discipline.
Judicial authoritariansim is what the proceedings in the instant case smack of.
It cannot be permitted under any guise. Judges must be circumspect and self
disciplined in the discharge of their judicial functions. The virtue of
humility in the Judges and a constant awareness that investment of power in
them is meant for use in public interest and to uphold the majesty of rule of
law, would to a large extent ensure self restraint in discharge of all judicial
functions and preserve the independence of judiciary. it needs no emphasis to
say that all actions of a Judge must be judicious in character.
of credibility of the judiciary, in the public mind, for whatever reasons, s
greatest threat to the independence of the judiciary. Eternal vigilance by the
Judges to guard against any such latent internal danger is, therefore,
necessary, lest we "suffer from self-inflicted mortal wounds". We
must remember that the constitution does not give unlimited powers to any one
including the Judge of all levels. The societal perception of Judges as being
detached and impartial referees is the greatest strength of the judiciary and
every member of the judiciary must ensure that this perception does not receive
a set back consciously or unconsciously. Authenticity of the judicial process
rests on public confidence and public confidence rests on legitimacy of
judicial process. Sources of legitimacy are in the impersonal application by the
Judge of recognised objective principles which owe their existence to a system
as distinguished from subjective moods, predilections, emotions and prejudices.
it is most unfortunate that the order under appeal founders on this touchstone
and is wholly unsustainable.
the preceding discussion the following broad CONCLUSIONS merge. This, of
course, is not to be treated as a summary of our judgment and the conclusion
should be read with the text of the judgment:
That the administrative control of the High Court vests in the Chief Justice
alone. On the judicial side, however, he is only the first amongst the equals.
That the Chief Justice is the master of the roster. He alone has the
prerogative to constitute benches of the court and allocated cases to the
benches so constituted.
That the puisne Judges can only do that work as is allotted to them by the
Chief Justice or under his directions.
That till any determination made by the Chief Justice lasts, no Judge who is to
sit singly can sit in a Division Bench and no Division Bench can be split up by
the Judges constituting the bench can be split up by the Judges constituting
the bench themselves and one or both the Judges constituting such bench sit
singly and take up any other kind of judicial business not otherwise assigned
to them by or under the directions of the Chief Justice.
That the Chief Justice can take cognizance of an application laid before him
under Rule 55 (supra) and refer a case to the larger bench for its disposal and
he can exercise this jurisdiction even in relation to a part-heard case.
That the puisne Judges cannot "pack and choose" any case pending in
the High Court and assign the same to himself or themselves for disposal
without appropriate orders of the Chief Justice.
That no Judge or Judges can give directions to the Registry for listing any
case before him or them which runs counter to the directions given by the Chief
That Shethna, J. had no authority or jurisdiction to send for the record of the
disposed of writ petition and make comments on the manner of transfer of the
writ petition to the Division Bench or on the merits of that writ petition.
that all comments, observations and findings recorded by the learned Judge in
relation to the disposed of writ petition were not only unjustified and
unwarranted but also without jurisdiction and make the Judge coram-non-judice.
That the "allegations" and "comments" made by the learned
Judges against the Chief Justice of the High Court, the Advocate of the
petitioner in the writ petition and the learned Judges constituting the
Division Bench which disposed of Writ Petition No. 2949 of 1996 were uncalled
for, baseless and without any legal sanction.
That the observations of the learned Judge against the former Chief Justices of
the High Court of Rajasthan to the effect that they had "illegally"
drawn full daily allowance while sitting at Jaipur to which they were not
entitled, is factually incorrect, procedurally untenable and legally unsustainable.
That the "finding" recorded by the learned Judge against the present
Chief Justice of India Mr. Justice J.S.
that till his elevation to the Supreme Court, he had, as Chief Justice of the
Rajasthan High Court, "illegally" drawn a daily allowance of Rs.
250/- while sitting at Jaipur and had thereby committed "Criminal
misappropriation of public funds" lacks procedural propriety, factual
accuracy and legal authenticity. The finding is wholly incorrect and legally
unsound and makes the motive of the author not above personal pique so wholly
taking away dignity of the judicial process.
That the disparaging and derogatory comments made in most intemperate language
in the order under appeal do no credit to the high office of a High Court Judge.
(14) That the direction of Shethna, J. to issue notice to the Chief Justice of
the High Court to show cause why contempt proceedings be not initiated against
him, for transferring a part-heard writ petition from his Bench to the Division
bench for disposal, is not only subversive of judicial discipline and illegal
but is also wholly misconceived and without jurisdiction.
therefore. hold that all observations, comments, insinuations, allegations and
orders made by the learned Judge in connection with and relating to the
disposed of Writ Petition No. 2949/96 in the impugned order, are illegal,
misconceived and without jurisdiction. The same are quashed and are hereby
directed to be expunged from the record.
direction to issue show cause notice to the Chief Justice of the High Court
Respondent No.2, being wholly unwarranted, unjustified and legally
unsustainable is hereby quashed and set aside.
said hereinavoce shall however be construed as any expression of opinion on the
pending criminal revision petition filed by respondent No.1, which has been
admitted to hearing and in which respondent No.1 has been granted bail. That
criminal revision petition shall be decided by the High Court on its own
parting with this Judgment, we wish to say that we hope there shall not be any
other occasion for us to deal with such a case.
appeal therefore succeeds and is allowed.