JUDGMENT 1. - This case comes today as per the date fixed vide order dated 13.8.1996 and 26.8.1996. Counsel for the petitioner submits that vide order dated 13.8.1996, this Court issued show cause notice to the respondents except the Chief Justice of India as to why the writ petition be not admitted. Notices on respondent Nos. 1 and 3 were served on 22.8.1996. It is alleged that this Court vide order dated 26.8.1996 issued notices of another application filed on 19.8.1996 and respondent Nos. 1 and 3 have been served. So far as notice of respondent No. 4 is concerned, the same has been served on Registrar, Central Administrative Tribunal (in short 'C.A.T.') on 22.8.1996. Counsel for the petitioner also filed an affidavit that service has been effected on all the respondents and prayed that the respondent No.4 may be restrained from joining back on the post of Chief Justice, Rajasthan, as his resignation has been accepted from the post of Chairman, C.A.T. with effect from 4.9.1996. 2. Learned counsel for the petitioner reiterates the arguments advanced by him or 13.8.1996 and 26.8.1996. 3. The learned counsel for the petitioner has drawn my attention towards the provisions of Article 217 of the Constitution of India which relate to appointment and conditions of the office of a Judge of a High Court. Proviso (c) to Article 217(1) of the Constitution of India provides that the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. Learned counsel submits that at the time of framing the Constitution, there was no question of contemplating any other contingency of appointing elsewhere. A Judge, who is constitutional functionary and not a Government servant as there was no provision for a Judge of the High Court to hold any other office except Judge of the Supreme Court or any other High Court on being transferred. Therefore, proviso (c) to Article 217(1) is to be made applicable whenever a Judge of High Court is appointed to any such Tribunal, his office is to be treated as vacated. Such interpretation of Article 217 would be in consonance with the spirit of the Constitution. This is to be interpreated as a living organism provided in all eventualities. Therefore, proviso (c) to Article 217(1) is to be made applicable whenever a Judge of High Court is appointed to any such Tribunal, his office is to be treated as vacated. Such interpretation of Article 217 would be in consonance with the spirit of the Constitution. This is to be interpreated as a living organism provided in all eventualities. So by the appointment of respondent No.4 as Chairman of C.A.T. he will be deemed to have been transferred in terms of Article 217(1) proviso (c) of the Constitution of India, as the office of Chief justice will be deemed to be vacated on his appointment as Chairman in the C.A.T. 4. The learned counsel for the petitioner further submits that while enacting the Administrative Tribunals Act, 1985 (in short 'the Act'), the Parliament did not imagine or contemplate the situation like the present one and, hence, no provision has been taken care of. The only provision is that a Judge or has been, a Judge of a High Court is qualified and can be considered to become a Chairman of the C.A.T. and for sitting Judge of a High Court, the safeguard is that the time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertakes to discharge, will be treated as his actual service. So on joining other posts which were made applicable for a working Judge in various Tribunals, the office of Chief Justice/Judge will be deemed to be vacated, be read with plain and simple meaning that as per proviso (c) to Article 217(1), transfer of a Judge is deemed to have been made. 5. Next alternative argument of the learned counsel for the petitioner is that after joining the post of Chairman, C.A.T., the respondent No.4 has intimated the High Court on the basis of which his pension papers and other actions related thereto were taken, meaning thereby that he had no intention to come back as he had demitted the office. The learned counsel relied on Union of India Vs. Gopal Chandra Misra and others, AIR 1978 Supreme Court page 694 , wherein the word 'resignation' has been interpreted. The learned counsel relied on Union of India Vs. Gopal Chandra Misra and others, AIR 1978 Supreme Court page 694 , wherein the word 'resignation' has been interpreted. The learned counsel also relied paras 23, 24 and 25 of the judgment wherein six judges Bench of the Apex Court held that in the case of a Judge of a High Court, who is a constitutional functionary and under proviso (a) to Article 217(1) has a unilaterlal right or privilege to resign his office, his resignation becomes effective on the date from which he chooses to quit office and, therefore, the respondent No.4 cannot be allowed to resume charge as the Chief Justice, Rajasthan. 6. The learned counsel further argued that respondent No.4 at the time of getting appointment as Chairman, never requested to keep the office of Chief justice intact nor was he permitted by the President of India to hold two offices simultaneously, one of Chairman of C.A.T. and the other of Chief justice and he resigned from the post of Chairman, C.A.T. on 4.6.1996 and the same was accepted with effect from 4.9.1996, without allowing him to resume the duty on the post of Chief Justice. Meaning thereby, the same has been turned down by implication. He further submits that the respondent No.4, in his resignation from C.A.T. stated that he is prepared to work and he could be considered favourably for any suitable job. Meaning there by that according to him also, he has no lien. He relinquished the office of Chief justice and no question arises for resuming the office of Chief Justice. Therefore, now he cannot join automatically nor any order from Union of Indian can be passed to this effect. 7. Another argument of the learned counsel for the petitioner is that the respondent No.4 cannot be allowed to take benefit of the stand taken by the Union of India that he has not demitted the office. In absence of any reply by the respondent No.4 despite service and sufficient opportunity, it cannot be presumed that no letter of demittance was sent by him. Learned counsel submits that in case the respondent No.4 has not demitted the office, how the competent authority sanctioned his pension and released P.E. and further on what basis the Governor sanctioned the earned leave as on 07.5.19%, the last date as Chief Justice of High Court. Learned counsel submits that in case the respondent No.4 has not demitted the office, how the competent authority sanctioned his pension and released P.E. and further on what basis the Governor sanctioned the earned leave as on 07.5.19%, the last date as Chief Justice of High Court. As such it is clear that he has demitted the office of Chief justice. 8. This Court specifically directed the Registrar, Raj. High Court vide order dated 26.8.1996 to explain regarding the alleged manipulation, if any, in the record, which he has not done despite notice. Learned counsel, therefore, submits that adverse inference be drawn and suitable direction be passed against the Registrar for such tempering. 9. Learned counsel further submits that if it is assumed for a moment that the respondent No.4 has not demitted the office or has a lien in the High Court, which is not acceptable, he can ipso facto come back on the office of C.J. any time, is per se illegal, as the Acting Chief justice is performing the duties of office of C.J. as per Article 223 of the Constitution. Thus, the interpretation that a seat of C.J. would be resumed automatically, would result in absurdity. 10. In the instant case, the learned counsel submits, that the respondent No. 4 wants to come only for 20 days, as his date of superannuation is 26.9.1996. But for example, if a sitting Judge may have six years tenure left, he is appointed as Chairman of C.A.T., for five years, he may work as Chairman for three years or more, and thereafter he may like to come back as Chief Justice or Judge, it would mean that till the Chief Justice is working as Chairman of the C.A.T. or attains the age of superannuation, no person can be appointed on the post of Chief Justice in that court and that post would be kept vacant as the Chairman of the C.A.T. accepting his resignation by the President. 11. The Supreme Court and High Court Judges are constitutional authorities and for removal the Constitution provides protection of Impeachment which is a cumbersome procedure. On the other hand, disciplinary action can be taken against the Chairman for any irregularities/illegalities as per the procedure under the Rules. The two cannot be equated. 11. The Supreme Court and High Court Judges are constitutional authorities and for removal the Constitution provides protection of Impeachment which is a cumbersome procedure. On the other hand, disciplinary action can be taken against the Chairman for any irregularities/illegalities as per the procedure under the Rules. The two cannot be equated. If a Judge, after resignation from the C.A.T. automatically comes back and joins as a Judge, no disciplinary action can be taken and, therefore, his transfer to C.A.T. should be considered to vacate the office of a Judge under proviso (c) to Article 217(1) of the Constitution. 12. The High Court Judges are to administer oath and without administering oatch, even Additional Judge cannot work without fresh oath on extension. A Judge work without oath on a single day. If a Judge is appointed in C.A.T., then he cannot come back and work as a Judge without administering oath. 13. Under the circumstances, when a Judge who is allowed to join in any other Tribunal, his office, under proviso (c) to Article 217(1), would be deemed to be vacated. 14. In S.P. Sampath Kumar V. Union on India, AIR 1987 Supreme Court 386 , their Lordships of the Supreme Court have held that those who come to be Chairman, Vice Chairman or Members, resign appointments, if any, held by them before joining the Tribunal and as such, there would be no scope for their return to the place or places from where they come. 15. There is no reason not to apply these observations of their Lordships while considering the case like the present one. Under the circumstances, in the instant case, the joining in the Tribunal will be deemed to have vacated the office as per provisions of proviso (c) to Article 217(1) of the Constitution. 16. Learned counsel submitted that if Article 217(1)(c) be interpreted in the manner suggested that one can go and come back at any time, then, it will not only lead to abovesaid complications, but it would lead to abuse of powers by the constitutional functionaries and certainly it will not be in public interest and would diminish the image of judiciary. Therefore, the respondent No.4 should be deemed to have vacated the office of Judge after joining in the Central Administrative Tribunal. 17. Dr. Therefore, the respondent No.4 should be deemed to have vacated the office of Judge after joining in the Central Administrative Tribunal. 17. Dr. Tiwari, learned counsel for the petitioner alternatively submits that there is no provision in the Constitution that a sitting Judge of the High Court can become Chairman of the Tribunal, However, by virtue of Article 323-A of the Constitution, Administrative Tribunals have been created and as per proviso (3) of Article 323-A provision of Article 323-A have an overriding effect. So, he cannot take advantage of Article 217 of the Constitution. He further submits that there are so many other Articles in the Constitution which have an overriding effect. 18. Dr. Tiwari also raised certain arguments, which are not necessary to be incorporated, regarding the different Rules and service conditions in the Tribunal. 19. On the other hand, Shri B.P. Agrawal, learned Advocate General, representing respondent No.3 submits that no adverse inference can be drawn at this stage and some time may be granted so that the respondent Registrar may file an affidavit in compliance of the order dated 26.8.96. 20. Shri Suresh Pareek, appearing for the Union of India submits that an identical matter is pending decision and therefore, this Court should not proceed with the case. He relied on AIR 1982 Supreme Court 942. In reply to this, Dr. Tiwari, learned counsel for the petitioner submits that though as per the news, the judgment in the identical case is likely to come at any time but stay is only upto 3.9.1996. He submits that the case of AIR 1982 Supreme Court 942 cited by Shri Suresh Pareek will have no application in the present matter inasmuch as it is a matter of bail. 21. Despite service, no one appears nor any reply has been filed by the respondent No.4. 22. I have heard learned counsel for the parties and perused the material on record and also gone through the case law cited by the learned counsel. 23. The argumetns advanced by Dr. Tiwari, learned counsel for the petitioner have some substance and need thorough consideration. 24. Admit. Issue notices to respondent Nos. 1, 3 and 4, except the respondent No.2, Chief Justice of India. Notices to respondent No. 4 may be sent by registered post as well as in ordinary course. 23. The argumetns advanced by Dr. Tiwari, learned counsel for the petitioner have some substance and need thorough consideration. 24. Admit. Issue notices to respondent Nos. 1, 3 and 4, except the respondent No.2, Chief Justice of India. Notices to respondent No. 4 may be sent by registered post as well as in ordinary course. Three weeks' time is granted to respondent No.3 to file affidavit in compliance with order dated 26.8.96. 25. Admittedly, the decision of the identical case pending at Jodhpur has not yet been pronounced till date and there is stay as stated by the learned counsel whereby the respondent No.4 has been restrained from resuming the office of Chief Justice, Rajasthan High Court. 26. Having regard to the facts and circumstances of the case, I am satisfied that the petitioner has a prima facie case for grant of stay. Therefore, in the meanwhile, it is directed that the respondent No.4 shall not join or resume charge or function as the Chief Justice, Rajasthan High Court, till the disposal of the writ petition. 27. However, respondent No.4 will be free to move an application, on filing the reply to writ petition, for modification/vacation of the stay order, after the decision of the Division Bench at Jodhpur, if it is necessary and if he so desires. 28. Issue notices of the stay petition to respondent No.4 only. Notices may be sent by Registered Post as well as in ordinary course.Stay order passed. *******