Madan Mohan Saran v. Vidyadhar Govind Oak — 1973 DIGILAW 468 (ALL)

JUDGMENT Omprakash Trivedi, J. - This petition under Article 226 of the Constitution of India has been filed by Madan Mohan Saran and Sri Ram Bhargava against Hon'ble V. G. Oak, the then Chief Justice of the Allahabad High Court (opposite party No. 1), Hon'ble the Chief Justice, High Court, Allahabad (opposite party No. 2), the Registrar, High Court, Allahabad (opposite party No. 3) and 17 others. The petitioners were employees of the erst-while Chief Court of Avadh and became the employees of the newly constituted High Court of Judicature at Allahabad on promulgation of the U. P. High Courts (Amalgamation) Order, 1948. A seniority list determining inter se seniority of the employees belonging to the erstwhile Chief Court of Avadh and the employees of the erstwhile Allahabad High Court was prepared and circulated in the year 1967. The petitioners felt aggrieved from this seniority list and preferred a writ petition, which was numbered as writ Petition No. 693 of 1969 at the Lucknow Bench of this Court on 12.8.1969 and it was admitted the same day. On 27.11.1970 an application was moved before Hon'ble the Chief Justice, High Court at Allahabad under clause 14 of the U. P. High Courts (Amalgamation) Order, 1948 (hereinafter referred to as the Amalgamation Order) on behalf of Hon'ble the Chief Justice (opposite party No, 2) and the Registrar. High Court (opposite party No. 3) for transfer of this writ petition from the Lucknow Bench to the High Court at Allahabad on the ground that two writ petitions(Nos. 1388 of 1969 and 2483 of 1969) had been filed at Allahabad and admitted and in those writ petitions also the order of Hon'ble the Chief Justice dated March 1, 1969 was being impugned on grounds similar to those in Wit Petition No. 693 of 1969, that in view of importance of questions raised in those writ petitions the Advocate-General U. P. was likely to appear and argue cases on behalf of the contesting respondents and in order to avoid possible conflict of decisions in the two set of writ petitions pending at Allahabad and at the Lucknow Bench and from the point of view of convenience transfer was necessary. 2. This application was allowed by Mr. V. G. Oak, Chief Justice (as he then was) by the following order : "Heard the learned counsel for the parties. 2. This application was allowed by Mr. V. G. Oak, Chief Justice (as he then was) by the following order : "Heard the learned counsel for the parties. I understand that two connected writ petitions ate pending at Allahabad. Although he petitioners belong to Lucknow, the opposite parries to Allahabad. It will, therefore, be convenient if the present writ petition is also disposed of at Allahabad. The application is allowed. The writ petition is transferred from Lucknow to Allahabad for final disposal at Allahabad. Summon the record from Lucknow immediately. If possible, this writ petition should be listed for final hearing on 5.2.1970 along with the other connected writ petitions." It is this order which is challenged in the present writ petition and there is a prayer that the same may be quashed by a writ of certiorari. Learned counsel appearing for the petitioners pressed only one ground impugning the order, of which Annexure 5 is a copy. It was urged that the application (Annexure 1) moved for transfer of the case from the Lucknow Bench to Allahabad under clause 14 of the Amalgamation Order on behalf of opposite parties 2 and 3 was incompetent and not maintainable because Mr. Vijai K. Mehrotra, Standing Counsel, over whose signature this application was filed, had no power of attorney or memo of appearance on behalf of those opposite parties. The submission is that the application under clause 14 was not maintainable and the Order of Chief Justice passed in exercise of power under clause 14 of the Amalgamation order was invalid in law. In the counter affidavit filed for opposite parties 2 and 3 it was admitted that the Standing Counsel who signed the application under clause 14 neither filed a vakalatnama nor memo of appearance on behalf of these opposite parties. The contention for the opposite parties is that the Chief Standing Counsel working at Lucknow Bench was authorised by the Judicial Department of the State Government by letter dated 29th August, 1968 (Annexure CA-XII) to enter appearance on behalf of opposite paties 2 and 3 and to oppose the writ petition. There is also on record a vakalatnama which purports to have been signed by opposite party No. 2 on 5.2.1970 in favour of Mr. K. S. Varma, Chief Standing Counsel. 3. There is also on record a vakalatnama which purports to have been signed by opposite party No. 2 on 5.2.1970 in favour of Mr. K. S. Varma, Chief Standing Counsel. 3. Section 34 of the Advocates Act empowers High Court to make rules laying down conditions subject to which an Advocate shall be permitted to practise in the High Court and the Courts subordinate thereto. In exercise of this power the High Court of Judicature at Allahabad has made rules which were published in U. P. Gazette, part II, dated 14th June, 1969. Rule 2 of these Rules reads as follows : "2. Save as otherwise provided in any law for the time being in force, no advocate shall be emitted to appear, plead or act for any person in any Court in any proceeding unless the advocate files an appointment in writing signed by such person or his recognised agent or by some other person duly recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment and signed by the Advocate in token of its acceptance or the advocate files a memorandum of appearance in the form prescribed by the High Court :" The second proviso to Rule 2 is in these words : Provided further that nothing herein contained shall apply to an advocate who has been requested by the Court to assist the Court in any case or proceeding or who has been appointed at the expense of the State to defend an accused person in a criminal proceeding." The impugned order of transfer was passed on 28.1.1970 and the appointment by Mr. V.G. Oak the then Chief Justice was executed in favour of Mr.K.S. Verma, Chief Standing Counsel, on 5.2.1970 i.e.. after the passing of this order. Therefore, this appointment in favour of the Chief Standing Counsel is irrelevant for the present issue. In view of Rule 2 framed by the Allahabad High Court under Section 34(1) of the Advocates Act every Advocate including an Advocate appointed at the expense of the State and authorised to enter appearance by the State Government must file an appointment in writing signed by such person or his recognised agent or by some other person duly authorised by him or under a power of attorney or a memorandum of appearance. Unless a Chief Standing Counsel fulfils this pre-condition he cannot appear, plead or act for any person in any court in any proceeding. The only exception to this condition is contained in the second proviso to Rule 2 and that in favour of an Advocate appointed at the expense of the State to defend an accused person in a criminal proceeding. Such an Advocate can appear, plead or act for an accused person in a criminal proceeding even without filing an order of appointment or a memo of appearance. The present case is not covered by the second proviso to Rule 2 because it is not a criminal proceeding and the Chief Standing Counsel working at Lucknow Bench, who was authorised by the Judicial Department of the State Government to enter appearance was bound to file an appointment in writing signed by the Judicial Secretary or by his recognised agent or some person duly appointed by him or a vakalatnama signed and executed by opposite parties 2 and 3 or a memorandum of appearance. Annexure CA-XII of the counter affidavit is a letter from the Judicial Secretary to Government U. P., to the Chief Standing Counsel authorising him to enter appearance on behalf of opposite parties 2 and 3. This is a private letter and does not amount to an appointment in writing signed by the Judicial Secretary. Even this letter saw the light of the day for the first time with the counter affidavit and which was not filed in the writ petition. The result is that no appointment in writing signed by the Judicial Secretary by his recognised agent in favour of the Chief Standing Counsel was in fact filed in the writ petition. The result is that none of the above conditions were fulfilled by the Chief Standing Counsel in the present case admittedly and, therefore, the Chief Standing Counsel could not present an application under clause 14 nor could he appear and plead in connection with that application. The Standing Counsel, Mr. Vijai K. Mehrotra, who signed the application under clause 14 appeared and pleaded, was never authorised by the Judicial Department of the State Government to enter appearance and to defend opposite parties 2 and 3 in the writ petition. The Standing Counsel, Mr. Vijai K. Mehrotra, who signed the application under clause 14 appeared and pleaded, was never authorised by the Judicial Department of the State Government to enter appearance and to defend opposite parties 2 and 3 in the writ petition. Reliance was placed on Para 74 of the Manual of Rules and Orders relating to the Department of the Legal Remembrancer to Government U. P., to show that the Standing Counsel Mr. Mehrotra possessed the necessary authority to sign and present the application and to argue it. Para 74 says that Standing Counsel appointed in the High Court shall be assisted by one junior and shall subject to the provisions of these Rules, represent the Government in all civil cases to which they may be a party. Appendix B to this Manual contains the Law Officers Rules 1942. Rule 3 of these Rules defines Law Officers as any of the law Officers specified in Rule 4 of the said Rules. Rule 4 of the said Rules classifies Law Officers on the criminal and civil sides in the High Court. In the civil side there were two Law Officers, namely, Standing Counsel and the Junior Standing Counsel. The rules contained in Appendix B of the Manual were amended by Office Memorandum dated June 29, 1968 and substituted by fresh rules. As a result of this amendment on the civil side of the High Court Government will be represented only by the Chief Sanding Counsel and the Standing Counsel instead of the Standing Counsel and the Junior Standing Counsel, as earlier. But consequential amendment has not so far been made in the heading of Chapter VIII of the Manual or para 74 and other paragraphs of that Chapter. In view of substitution of the Law Officers Rules, 1942 by a new set of rules issued by Governor under Office Memorandum dated June 29, 1968 the words Chief Standing Counsel and Standing Counsel should be read for Standing Counsel and one junior respectively in para 74 of the Manual. So read it would follow from Para 74 of the Manual that the Chief Standing Counsel shall be assisted by the Standing Counsel in those cases only when the Chief Standing Counsel requires assistance and issues such instructions to the Standing Counsel. In the present case, there is no suggestion that the standing Counsel Mr. So read it would follow from Para 74 of the Manual that the Chief Standing Counsel shall be assisted by the Standing Counsel in those cases only when the Chief Standing Counsel requires assistance and issues such instructions to the Standing Counsel. In the present case, there is no suggestion that the standing Counsel Mr. Vijai K. Mehrotra acted upon the instructions of the Chief Standing Counsel in moving an application under clause 14 and in arguing the same. In the absence of any such pleading it cannot be presumed that Mr. Mehrotra was assisting the Chief Standing Counsel Mr. K. S. Varma in acting and pleading in respect of this application. Not having himself filed any order of appointment, or memorandum of appearance under the above circumstances, it is difficult to find that he was clothed with any authority to present the application under clause 14 or to argue it on behalf of Mr. V. G. Oak, the then Chief Justice or the Registrar. It will be noticed that under the second proviso to Rule 2 of the Rules made by this Court under Section 34 of the Advocates Act only an Advocate who has been requested by the Court to assist the Court in any case or proceeding or who has been appointed at the expense of the Stare to defend an accused person in a criminal proceeding is exempt from filing an appointment in writing or a memo of appearance. This exemption does not enure to the benefit of an Advocate appointed at the expense of the State to defend a person in civil proceedings. 4. A Vakalatnama executed by Mr. V.G. Oak (the then Chief Justice) in favour of Mr. K.S. Varma on 5.2.1970 was no doubt, filed in the case. But no advantage could be gained by this Vakalatnama even by the Chief Standing Counsel Mr. K.S. Varma so far as the legal presentation of the application under clause 14 is concerned as the impugned order of transfer under clause 14 had already been passed on 18.1.1970. 5. On a survey of these facts there appears to be no escape from the conclusion that the presentation of application under clause 14 by Mr. Vijai K. Mehrotra was unauthorised. He was nether laded to present an application nor to appear and plead in connection therewith. 5. On a survey of these facts there appears to be no escape from the conclusion that the presentation of application under clause 14 by Mr. Vijai K. Mehrotra was unauthorised. He was nether laded to present an application nor to appear and plead in connection therewith. In other words, the application under clause 14 was not legally maintainable. 6. The question arises as to what is the effect of this on the order of transfer passed by Mr. V.G. Oak, the then Chief Justice on 28.1.1970 under clause 14 of the Amalgamation Order. 7. The impugned order of transfer of the writ petition from Lucknow to Allahabad (Annexure 5) was passed by the Chief Justice in exercise of power vested by the second proviso to clause 14 of the Amalgamation Order, which is in these terms : "Provided further that the Chief Justice may in his discretion order that any case or class of cases arising in the said areas shall be heard at Allahabad." This proviso to clause 14 confers on the Chief Justice a general power of transfer of cases arising from areas in Oudh to Allahabad for hearing by the Judges sitting there. The language of this proviso shows a that the exercise of this jurisdiction of transfer of cases from Lucknow to Allahabad is not dependent on motion of a party to the litigation. In view of the general wordings of this proviso, therefore, it follows that the power of transfer of cases from Lucknow to Allahabad can be exercised by the Chief Justice either on the application of any of the parties to the litigation or on his own motion. The position of exercise of power of transfer under Section 24 of the Code of Civil Procedure is analogous. Section 24(1) of the Code provides : "On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard or of its own motion without such notice, the High Court or the District Court may at any stage. (a) transfer any suit, appeal or other proceeding etc. (b) ............ (a) transfer any suit, appeal or other proceeding etc. (b) ............ Under Section 24 of the Code of Civil Procedure also the exercise of jurisdiction in the matter of transfer of a suit, appeal or proceeding by the High Court or the District Court is not dependent on or controlled by an application being moved by any of the parties and the power of transfer can be exercised by the High Court or the District Judge even without any such application being moved on his own motion suo motu (see Rajah Sir Annamalai Chettiar v. S. Ram Ramanathan Chettiar, A.I.R. 1936 Madras 55,' Babutbhai Vamalechand Kachra v. Hiralal Vamalchand Kachra, A.I.R. 1941 Bombay 69 and Bisandayal Sitaram v. Bodulal Ladburam, A.I.R. 1916 Nagpur 123. It is clear therefore, that under the second proviso, to clause 14 of the Amalgamation Order also the Chief Justice can exercise Jurisdiction and transfer cases from Lucknow to Allahabad on his own motion or suo motu and exercise of this jurisdiction is not dependent on a proper application being made by one of the parties. If the intention of the law-makers was that power of transfer of cases from Lucknow to Allahabad by the Chief Justice should be dependent on a party's motion then some such words as upon an application being moved by any of the parties' should have occurred in the second proviso to clause 14. The language of the proviso does not contain any such constraints or limitation on the powers of the Chief Justice. Therefore, he is at liberty to transfer a case from Lucknow to Allahabad on his own motion without waiting for a party's motion in that behalf. Generally cases are transferred suo motu for administrative reasons and the legislature appeals to have been recognizant of admins native exigencies demanding transfer of cases from Lucknow to Allahabad in conferring a general power of transfer on the Chief Justice under the second proviso not making its exercise dependent on a party's motion. Having regard to the wide ambit of this proviso it seems fair to hold hat an order of transfer passed by the Chief Justice under the second proviso to clause 14 is order of an administrative nature. This was also the view expressed by a Full Bench of this court in (Ramesh Chandra Azad v. The Regional Transport Authority, Meerut), (Civil Misc. Pet. This was also the view expressed by a Full Bench of this court in (Ramesh Chandra Azad v. The Regional Transport Authority, Meerut), (Civil Misc. Pet. No. 83 of 1967) (delivered on 12.2.1969),(Civil Misc. Pet. No. 83 of 1967) (delivered on 12.2.1969) Lakshmi Prasad, J. observed : "There is nothing in the second proviso to clause 14 of the Amalgamation Order to indicate that the power conferred there-under on the Chief Justice is to be exercised judicially or quasi- judicially. On the other hand, not only the language of the second proviso but the language of the entire clause 14 and the background in which that provision in Clause 14 has been made unmistakably indicate that the power conferred on the Chief Justice under the second proviso to Clause 14 is an administrative power." 8. If the power conferred on the Chief Justice under the second proviso to clause 14 is an administrative power, as it appears to be, then this is a second reason showing that the exercise of administrative power is not dependent on a party's motion and is dependent on the discretion of the Chief Justice. 9. No doubt from the order of the Chief Justice (Annexure 5 extracted above) it appears that he was led to pass the order of transfer on the application of Mr. Vijai K. Mehrotra, Standing Counsel, and that he had passed the order on hearing counsel for the parties. The order, no doubt, appears to have been passed under the erroneous belief that the Standing Counsel Mr. Vijai K. Mehrotra possessed the necessary authority to move the application for transfer and that the application was maintainable, while in fact he possessed no such authority and the application was not in fact made. But the validity of the order of transfer passed by the Chief Justice under the second proviso to clause 14 is not affected by this infirmity of the application moved by Mr. Vijai K. Mehrotra in as much as the exercise of jurisdiction by the Chief Justice was not dependent on a proper application for transfer being moved by a party. The Chief Justice can pass an order of transfer under the second proviso to clause 14 suo motu on certain facts being brought to his notice in any manner and from whatever source regarded by him reliable. The Chief Justice can pass an order of transfer under the second proviso to clause 14 suo motu on certain facts being brought to his notice in any manner and from whatever source regarded by him reliable. Certain facts may be brought to the notice of the Chief Justice, for instance, either in a note of the Registrar or in the office note. What is necessary is simply this that on certain facts being brought to the notice of the Chief Justice through whatever source and the Chief Justice being satisfied on those facts that it was expedient to transfer a particular case from Lucknow to Allahabad he can pass the order of transfer under the second proviso to clause 14 even though no formal application for transfer is moved by any of the parties to the litigation. When the Chief Justice passed the impugned order of transfer certain facts were brought to his notice through the incompetent application moved by Mr. Vijai K. Mehrotra and the Chief Justice on being satisfied that it was expedient on those facts to transfer the case to Allahabad, was within his powers to pass an order of transfer suo motu. The order having been passed under the erroneous belief that application by Mr. Vijai K. Mehrotra was maintainable and competent, the impugned order of transfer should be treated as one passed by the Chief Justice on his own motion and was, therefore, valid in law and its validity is not affected in any way by the fact that the application of Mr. Vijai K. Mehrotra was not maintainable. Similar situation arose in a case before the Nagpur High Court Bisandayal Sitaram v. Bodulal Lodhuran, A.I.R. 1916 Nagpur 123. In that case an application for transfer of execution proceedings was moved by Lodhuram-Bodlulal before the District Judge. An objection was raised that he was not a party to the case sought to be transferred and was not competent to apply for transfer. This objection was over-ruled and the Judge passed an order of transfer of the case under Section 24 of the Code of Civil Procedure. The validity of this order of transfer was questioned in the High Court. This objection was over-ruled and the Judge passed an order of transfer of the case under Section 24 of the Code of Civil Procedure. The validity of this order of transfer was questioned in the High Court. The High Court upheld the order of transfer observing : "Where the Court purports to take action under Section 24 of the Civil Procedure Code on the application of a person who is not a party to the case but whom the Court erroneously treats as a party, the order of transfer must be deemed to have been made by the Court suo motu." From whatever angle the matter may be viewed it is clear that the impugned order of transfer passed by the Chief Justice is not rendered invalid by the mere fact of the power of the Chief Justice being set in motion by an incompetent application of the Sanding Counsel. The latter was, to my mind, only incidental and had neither relevance to nor effect on jurisdiction. I, therefore, conclude that the impugned order of transfer of the Chief Justice cannot be successfully assailed on the ground of incompetence of the application for transfer made by Mr. Vijai K. Mehrotra, Standing Counsel. 10. This being the only point on which the order was assailed, the pelt ion must fail and I would direct that it should be dismissed without making any order as to costs. 11. S.K. Kaul, J - I agree. 12. By the Court. The petition is dismissed. There shall be no order as to costs.