Monday, February 17, 2014

High Court Order in PIL regarding transfer of High Court Judge

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

Writ Petition No. 735 (MB) of 2014 (PIL)

Asok Pande and another
vs.
Allahabad High Court through the Registrar General



Hon'ble Imtiyaz Murtaza, J.
Hon'ble Devendra Kumar Upadhyaya, J.

Whether there is any scope for and necessity of intervention in this matter brought before this Court, invoking our jurisdiction under Article 226 of the Constitution of India, ostensibly in public interest, is the issue which we are called upon to address first and the foremost.
This petition has been filed by two individuals, namely, Sri Asok Pande, who is a practicing lawyer of this Court and Dr. Nutan Thakur, who alleges herself to be a well known and nationally recognised social activist and freelance journalist, endeavouring to contribute genuinely and positively to the society in all possible ways.
Opposing the very maintainability of the writ petition, intervention has been sought by a member of Oudh Bar Association, namely, Sri S.M. Royekwar, a practicing advocate of this Court, by moving an application to the said effect.
Both the petitioners have been heard in person one by one. Sri Manish Kumar has put in appearance on behalf of the sole respondent-Allahabad High Court through its Registar General.
Sri Manish Kumar has also opposed the petition at its threshold and citing certain judgements of Hon'ble the Apex Court and this Court, has sought dismissal of the writ petition in limine at its admission stage itself.
The prayer clause of the writ petition runs as under:
"(a) kindly issue a writ of certiorari canceling the order of the respondent, Chief Justice of this Hon'ble Court whereby Justice Dr. Satish Chandra has now been directed /instructed/ ordered to sit in the Allahabad Bench instead of the Lucknow Bench where he has so far been working.

(b) to kindly issue a writ of mandamus directing the Chief Justice of this Hon'ble Court to take any action in this regards (if any) as per the provisions of law or to issue any order only after having conducted an open and transparent enquiry where both the parties are given a fair opportunity of being heard.

(c) to kindly issue a writ of mandamus directing the Chief Justice of this Hon'ble Court to frame a transparent grievance redressal mechanism where every advocate, every litigant and every citizen can register his formal complaint against Judges of this Hon'ble Court or against Judges or Magistrates of any other subordinate Courts under the administrative jurisdiction of this Hon'ble Court, where each complaint is properly enquired, the enquiry report is made public to the extent permissible under the laws of the land and appropriate action taken accordingly."

After narrating an incident which is said to have occurred in the course of Court proceedings before an Hon'ble Judge of this Court on 22.1.2014, it has been stated that some resolution of the Oudh Bar Association, an Association of lawyers practicing in Lucknow Bench of this Court, was passed indicating therein that lawyers at Lucknow will refrain from work till the Hon'ble Judge is transferred. The petitioners, on the basis of some media reports and personal knowledge, have stated that lawyers of Oudh Bar Association abstained from work.
The petitioners have further stated that after abstaining from work on account of the resolution of the Oudh Bar Association, the lawyers at Lucknow resumed work following the alleged 'shifting' of the Hon'ble Judge from Lucknow to Allahabad.
The petitioners have also stated that they do not personally know the truth or otherwise of the incident referred to hereinabove nor do they know as to what exactly happened and who is at fault and to what extent. It has also been stated that the petitioners do not have first hand information of the matter and hence they refrain to comment upon the veracity of the incident. However, on the basis of their personal experience, they have stated that they do not have any unpleasant experience of any kind while appearing before the Hon'ble Judge.
Impeaching the order passed by Hon'ble the Chief Justice, requiring the Hon'ble Judge to sit at Allahabad, this writ petition has been filed, stating therein that the order of Hon'ble the Chief Justice was not a routine order but has been passed for some specific and oblique reasons. However, the 'specific and oblique reasons' have not been stated by the petitioners. It has also been submitted by the petitioners that on account of certain allegations, if Hon'ble Judges are 'transferred' from one Bench to another, the same would be the 'end of judiciary'.
Apart from seeking a writ of certiorari quashing the order of Hon'ble the Chief Justice requiring the Hon'ble Judge to sit at Allahabad, another prayer has been made to issue such an order only after having conducted an open and transparent enquiry giving the parties concerned a fair opportunity of hearing. Yet another prayer has been made for issuing a writ of mandamus directing the Hon'ble Chief Justice of this Court to frame a transparent grievance redressal mechanism to enable advocates and litigants to register complaint against judges of this Court or against judges or magistrates of subordinate courts, where complaint is properly enquired and enquiry report is made public and appropriate action is taken.
Opposing the very maintainability of the writ petition, Sri Manish Kumar learned counsel appearing for the sole respondent, has very vehemently argued that so far as the order of Hon'ble the Chief Justice which is sought to be impeached, is concerned, the issue is no more res integra. He argued that it has been categorically held by a Division Bench of this Court in the case of Prof. Y.C. Simhadri, Vice-Chancellor, Banaras Hindu University, Varanasi and others Vs. Deen Bandhu Pathak, [(2001)3 UPLBEC 2373] that the Chief Justice alone has the right and power to decide how the Benches of the High Court are to be constituted, which Judge is to sit alone and which cases he can and is required to hear as also which Judge shall constitute a Division bench and what work those Benches shall do and further that the administrative control of the High Court vests in the Chief Justice alone and it is his prerogative to distribute business of the High Court both judicial and administrative.
He has also relied on a judgement of Hon'ble the Apex Court in the case of State of Rajasthan Vs. Prakash Chand and others, (1998) 1 SCC 1 and submitted that Hon'ble Apex Court in the said judgement has clearly held that the administrative control of High Court vests in the Chief Justice and it is his prerogative to distribute business of the High Court.
Sri Manish Kumar has further relied upon the ratio laid down by Hon'ble Apex Court in the case of State of Rajasthan Vs. Prakash Chand and others (supra) and submitted that the Chief Justice is the master of the roster and that he alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
Sri Manish Kumar on the basis of aforesaid grounds, stated that the order requiring the Hon'ble Judge to sit at Allahabad, cannot be a subject matter of judicial review of this Court under Article 226 of the Constitution of India, specially in a PIL for the reason that the petitioners have failed miserably to show as to how the public interest suffers by requiring an Hon'ble Judge of this Court to sit either at Allahabad or at Lucknow.
Sri Manish Kumar has also referred to the provisions of Chapter V Rule 17 of the Rules of the Court, 1952, wherein it has been specifically provided that the Chief Justice shall determine the permanent place of sitting of a judge. The said provision further states that the Chief Justice may from time to time give directions that a judge at Allahabad may for such period as he may specify, sit at Lucknow and vice versa. Rule 17 occurring in Chapter V of the Rules of the Court is being quoted below:
"17. Places of sitting of Judges. - The Chief Justice shall determine the permanent place of sitting of a Judge and may from time to time give directions that a Judge at Allahabad may for such period as he may specify sit at Lucknow and vice versa."
Learned counsel for the respondent has also pointed out that though no such material has been brought on record nor any averment has been made so as to establish the credentials of petitioner no. 2 as a social activist and a freelance journalist, it has only been vaguely stated in the writ petition that she works primarily in the field of transparency and accountability in governance, human rights and assistance in enforcement of the rule of law. He further submits that except the vague assertions to the effect that the petitioners have filed a very large number of 'important' PILs in this Court and that they have undertaken many other 'important' public works and have been widely appreciated for their work at various quarters, nothing has been brought on record to substantiate such assertions by the petitioners.
He has also taken us through various averments made in the writ petition terming them to be scandalous amounting to an attempt to insinuate not only the Hon'ble Judge of this Court but also the entire institution of judiciary in the country in a generalized manner. He also submitted that the averments/allegations made in the writ petition tend to demean the majesty of this Court and since the averments have been sworn in on the basis of personal knowledge, as such the same disentitle the petitioners to invoke jurisdiction of this Court under Article 226 of the Constitution of India in this alleged PIL.
In support of his aforesaid submission to the effect that the allegations in the writ petition are highly objectionable and scandalous, that too coming from a practicing advocate of this Court i.e. petitioner no. 1, Sri Manish Kumar has specifically referred to paragraph 33 of the writ petition, which runs as under:
"(33) That the petitioners were also individually subjected to misbehavior by some of the Judges of this Hon'ble Court while the petitioner no.1 faced personal misbehavior at Hon'ble Gujrat High Court and even at Hon'ble Supreme Court regarding which the two petitioners sent complaints to various authorities on which no action has been taken so far."

Attention of the Court has also been drawn to the contents of paragraph 32 of the writ petition, which are quoted below:
"(32) That it feels sad to state that even among the High Court Judges, the allegations of financial corruption is raised every now and then. The petitioner no.1 knows of at least two Judges whom the then Chief Justice of this Hon'ble Court stopped from so many routine works, solely on the basis of charges of serious corruption were often raised against some other Judges of this Hon'ble Court whose names the petitioner s don't want to disclose in good taste and for decency."

Sri Manish Kumar has also referred to the submissions made in paragraph 34 of the writ petition and on that basis, he has submitted that a sweeping remark has been made by the petitioners against the entire judicial system of the country. Para 34 of the writ petition is worded as follows:
"(34) That thus misbehavior, corruption and inappropriate actions have certainly come to occupy space in present day judicial working."

Sri S.M. Royekwar has sought intervention in the matter by moving an application seeking leave of the Court to intervene as an intervenor on various grounds. Certain other members of the Bar also sought their intervention to oppose the writ petition by making prayer to that effect orally.
Sri Royekwar in his application has stated that he is seeking intervention in the matter for the reason that certain issues are engaging attention of this Court which have crucial bearing on justice dispensation system and as such being a responsible member of the Bar, he should be allowed to intervene. He has also questioned the very locus of the petitioners in instituting the kind of present petition styled as a PIL stating that their credentials are questionable.
Sri Royekwar has submitted that the judicial review or justiciability of the order of Hon'ble the Chief Justice determinig the roaster of Hon'ble Judges of this court, is not permissible and further that grievance redressal mechanism in case of a complaint against Hon'ble Judges, as is being prayed for by the petitioners, is already in place.
During the course of arguments being advanced by the petitioners, strong exception was taken by Sri Royekwar, when the role of the Bar Association was termed as 'mobocracy'. He has stated that being a responsible member of the Bar, he is concerned with the independence and majesty of the judicial system and further that the kind of averments and the nature of prayers made in the writ petition, need rebuttal in strongest measure, hence he may be permitted to intervene.
We have given our anxious consideration to the averments made in the writ petition, application seeking intervention and the arguments advanced by the petitioners, learned counsel appearing for the sole respondent and Sri S.M. Royekwar.
As pointed out by the learned counsel appearing for the sole respondent, the petitioner apart from levelling unsubstantiated charges and allegations against the subordinate judiciary, has also made certain allegations which are completely uncalled for. The petitioners in paragraph 31 of the writ petition state as under:
"(31) That the petitioners also hear that money changes hands in corrupt manner in the lower courts to an extent that can be called horrible and shameless- completely disgusting. Most of the advocates say these words and many of the petitioners' friends have given specific examples in this regards which they don't find appropriate to mention here because it is a subject-matter of other specific complaints."

We have reservations regarding the averments made in paragraphs 32, 33 and 34 of the writ petition which have been quoted herein above since these averments are completely unwarranted as they are couched in a language which has a tendency of not only lowering down the majesty of this Court and the entire judicial system but the contents thereof also appear to be casting unsubstantiated aspersions and insinuations against this Court.
In paragraph 33 of the writ petition, the petitioners state that 'they were individually subjected to misbehaviour of some of the judges of this Hon'ble Court'.
The petitioner no. 1 is a lawyer practicing primarily at Lucknow Bench of this Court. Petitioner no. 2 has stated in the writ petition that she has been filing a very large number of PILs before this Court.
Thus, keeping in view the fact that the petitioner no. 1 is a practicing lawyer of this Court at Lucknow and petitioner no. 2 has been filing PILs in this Court and also taking into account the allegations of the petitioners made in paragraph 33 of the writ petition to the effect that they were individually subjected to misbehaviour of some of the judges of this Court, we deem it appropriate to place this petition before Hon'ble the Chief Justice for exercising his discretion under Clause 14 of the United Provinces High Courts (Amalgamation) Order, 1948 and to pass appropriate orders.
Accordingly, let this writ petition be placed before Hon'ble the Chief Justice for appropriate orders.
In the meantime, as prayed for, affidavits by the learned counsel for the respondent and Sri S.M. Royekwar may be filed, bringing on record all the material and assertions, including the material and assertions relating to credentials of the petitioners, which they propose to rely upon.

Dated; February 17, 2014
MFA/-

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