PETITIONER:

STATE OF RAJASTHAN

Vs.

RESPONDENT:

PRAKASH CHAND & ORS.

DATE OF JUDGMENT: 25/11/1997

BENCH:

S.P. BHARUCHA, S.C. SEN

ACT:

HEADNOTE:

JUDGMENT:

THE 2ND DAY OF DECEMBER, 1997

Present:

Hon'ble 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 J U D G M E N T

The following Judgment of the Court was delivered: DR. ANAND. J.

Leave granted.

This 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:

Writ 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. When 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.

Accordingly, the writ petition is

dismissed as infructuous.

Since the main petition itself has

been dismissed, the right of the

intervenor to be heard does not

survive for consideration.

Accordingly, 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.

A 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 :

"There 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.

Providing 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. The 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. That was done.

Since, 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 concluded:

"Thus, 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 "criminal contempt".

Therefore, 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.

Cr.Misc.Contempt Petition No..../97

and title as State of Rajasthan vs.

Mukul Gopal Mukherji, the Chief

Justice of Rajasthan High Court.

In the 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.

While 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. Did 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. Can a 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. Para 44 of the Rajasthan High Court Ordinance, 1949 deals with the distribution of business and administrative control of the High Court. It provides: "Distribution 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.

(2) 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.

By 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:

Rule 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: which 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. In State Vs. Devi Dayal. AIR 1959 Allahabad 421, a Division 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. "....It 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;

further 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.

It is 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:

"Rule 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.

It 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: "It 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 particular

Bench....

The 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.

It 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....

There 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: "The 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:

"The 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.

No 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:

"It 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.

Individual 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.

Rule 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;

(xi) 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.

(xii) an application under Article

228 of the Constitution of India

and the case withdrawn under the

said Article:

Provided 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.

(b) a 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.

These 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 Bench.

(2) 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.

Every part-heard case entered in

the Day's List may be proceeded

with whether any Advocate appearing

in the case in present or not.

Provided 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". Proviso (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.

Under 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) (supra).

A 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

determines accordingly.

(Emphasis ours)

A Full Bench of the Allahabad High Court in Sanjay Kumar Srivastava Vs. Acting Chief Justice & Ors. (W.P. 2332 (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 Court. After 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 provides: "The 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:

"Under 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:

"In 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.

The 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. Therefore, 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. In the 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. The correctness of the order of the Chief Justice could only be tested in judicial proceedings in a manner known to law. No single Judge was competent to find fault with it. As 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: "If 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.

The 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. Judicial 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 practice. In the 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:

"Judicial 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....

No 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.

It is 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.

In A.M. Mathur vs. Pramod Kumar Gupta, (1990) 2 SCC 533, this court said:

"Judicial 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.

Respect to those who come before

the court as well to other co-

ordinate branches of the State, the

executive and the legislature.

There 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.

The 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 case.

(Emphasis 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 all costs. Shethna, 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 institution. Besides 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.

Thus, 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. That 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. Perhaps 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. The 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 unexceptionable. We 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. Even 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: "An 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 erroneous judgment(s).

But 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.

Notwithstanding 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:

"A 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.

(See Arenson Vs. Casson, Beckman

Rutley & 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 instructive:

"Judiciary is one of the main

pillars of parliamentary democracy

as envisaged by the Constitution.

It is 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.

The 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 same. This 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:

"From 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.

So far 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. All of 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.

Vide 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.

Sec.2. "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:

Provided...........................

...

According 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. It is 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.

After 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: GOVT. OF RAJASTHAN

GENERAL ADMINISTRATION (GR2) DEPTT.

To. The Registrar,

Rajasthan High Court,

Jodhpur.

No. 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.

Sir,

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.

Yours

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: "Govt. 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. The Governor of Rajasthan hereby accords sanction. By order of the Governor

sd/-

(Jagat Singh)

Secretary to the Govt.

The order dated 21.6.97 was amended on 1.8.97 in the following manner:

"In 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.

The Governor has accorded sanction.

By order of the Governor

sd/

( JAGAT SINGH )

Secretary to the Govt.

Thus, 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. It was being maintained by the High Court as a Guest House though there were no boarding facilities provided in that Guest House.

Audit of the accounts of the high Court are conducted by the Accountant General of Rajasthan from time to time. According 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 stage: "Since 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.

That 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.

That 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.

During this audit period the amount

of audit objections which regard to

Hon'ble Chief Justice Shri J.S.

Verma and Shri M.C. Jain remained

the same whereas the amount got

increased for Hon'ble Chief Justice

Shri K.S. Agarwal.

That a 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.

However 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.

FIXATION 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. has 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:

1. Hon'ble J.S. Verma

2. Hon'ble M.C. Jain

3. Hon'ble K.C. Aggarwal

2. In 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:

1. Single use Double - Rs. 10

2. Two persons Double bed - Rs. 10

3. If 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 House.

4. So 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.

Sd/-

The above proposal was followed by the following noting: "I 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.

Under the High Court Judges Travelling Allowance Rules 1956, the Judges of the High Court w.e.f 12.5.1976 were entitled:

"(c) 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:

Provided 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 mid-night:

(ii) 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.

(2) if the absence from

headquarters exceeds six hours, but

does not exceed twelve hours, 50%

of the full daily allowance;

(3) if the absence from

headquarters exceeds twelve hours,

full daily allowance:

(iii) 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:

"to 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 headquarters.

Provided 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 mid-night:

(ii) 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:

"(e) 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.

Provided 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 mid-night;

(ii) 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. 4.12.1991.

The 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: "When 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.

From 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: "The 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. has 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.

Legally, 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. As 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. Providing 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. The 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:

"It 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.

It is 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.

The 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.

Justice 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 Government. We, 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.

Whereas 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. It is educative to quote the views of Benjiman Cardozo, the great Jurist in this behalf:

"The 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 benevolence.

He is 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. Erosion 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.

From 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:

(1) 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. (2) 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. (3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) 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. (5) 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.

(6) 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.

(7) 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 Justice. (8) 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.

(9) 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. (10) 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. (11) 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.

(12) That the "finding" recorded by the learned Judge against the present Chief Justice of India Mr. Justice J.S. Verma, 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.

(13) 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.

We, 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.

The 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.

Nothing 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 merits.

Before 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.

The appeal therefore succeeds and is allowed.