Judgment :- V.G. SABHAHIT, J. ORDER ON REFERENCE The question of law that is referred for the opinion of this Bench is as follows: “Whether the Hon’ble Chief Justice is proper and necessary party to these writ petitions wherein the petitioners have challenged the High Court of Karnataka Service (Conditions of Service and Recruitment) (Second Amendment) Rules, 2009 and consequential promotions thereunder as violative of Articles 14 and 15 of the Constitution of India”? 2. When these petitions were filed, office objections were raised stating that the Hon’ble Chief Justice cannot be impleaded as a party in view of the order passed in W.P.No.26158/2005 dated 29-9-2006. 3. After hearing the learned Sr.counsel appearing for the petitioners in W.P.No.35072-111/2009, the Division Bench of this Court held that the question as to whether the Hon’ble Chief Justice is a proper and necessary party to the writ petitions has to be considered and in view of the sensitivity of the matter and other legal consequences they may entail, the said office objection was kept in abeyance and if need be, be referred to the Larger Bench. Accordingly the said question of law has been referred to this Larger Bench by order of the Hon’ble Chief Justice. 4. Initially the objection was raised by the learned counsel appearing for the writ petitioners that there was no order of reference and the Division Bench of this Court has only kept the office objection in abeyance with an observation that if necessary, the said question may be referred to the Larger Bench. 5. After securing the original records from the Registrar General, it was found that after the order of the Division Bench of this Court dated 10-2-2010 the matter was referred to the Larger Bench by the Hon’ble Chief Justice and the same was recorded in the order passed by this Court on 11-2-2011. The learned counsel appearing for the petitioners did not pursue the said contention and has argued on the question of law that is referred. 6. We have heard the learned counsel appearing for the petitioners and learned Sr. counsel appearing for the respondent. 7. The learned counsel appearing for the petitioners did not pursue the said contention and has argued on the question of law that is referred. 6. We have heard the learned counsel appearing for the petitioners and learned Sr. counsel appearing for the respondent. 7. The learned counsel appearing for the petitioners in W.P.Nos.35072-111/2009 submitted that the Hon’ble Chief Justice would be proper and necessary party to these writ petitions since the validity of the High Court of Karnataka Service (Conditions of Service and Recruitment) (Second Amendment) Rules, 2009 (hereinafter called the ‘Cadre and Recruitment Rules) and promotions based in accordance with the same are challenged and the said Cadre and Recruitment Rules has been promulgated by the Hon’ble Chief Justice and promotions were also effected by the Hon’ble Chief Justice and in his absence, prayer sought for by the petitioners to declare the provisions of Cadre and Recruitment Rules as void and to quash the consequential orders of promotions cannot be granted. Therefore, the Hon’ble Chief Justice is a proper and necessary party to the writ petitions. The learned counsel has also relied upon the decision of this Court in K SIPPEGOWDA vs THE HIGH COURT OF KARNATAKA & OTHERS (ILR 2006 KAR 2487) and he has taken us through the observations made by the learned Single Judge of this Court in he said decision at paragraphs 14 and 15 of the said judgment. The learned counsel appearing for the petitioners submitted that under Article 229 of the Constitution of India, appointments of Officers and servants of the High Court shall be made by the Chief Justice of the Court or such other Judge or Officer of the Court as he may direct and therefore, the Cadre and Recruitment Rules is amended by the Hon’ble Chief Justice and not by the High Court and therefore, Hon’ble Chief Justice is a proper and necessary party to the writ petitions. He has relied upon the decision of the Hon’ble Supreme Court in P.L. LAKHANPAL vs AJITH NATH RAY, CHIEF JUSTICE OF INDIA, NEW DELHI & OTHERS (AIR 1975 DELHI 66) wherein the Chief Justice was made a party to the writ petition. 8. He has relied upon the decision of the Hon’ble Supreme Court in P.L. LAKHANPAL vs AJITH NATH RAY, CHIEF JUSTICE OF INDIA, NEW DELHI & OTHERS (AIR 1975 DELHI 66) wherein the Chief Justice was made a party to the writ petition. 8. The learned counsel appearing for the petitioners in W.P.Nos.37825-37841/2009 adopted the arguments of learned counsel appearing for the petitioners in W.P.Nos.35072-111/2009 and further submitted that the Hon’ble Chief Justice is a proper and necessary party to the writ petitions as the Cadre and Recruitment Rules framed by him cannot be set aside in his absence and consequential orders of promotions under the said Rules cannot also be set aside and therefore, he is a proper and necessary party. In support of his contention, he has relied upon the decision of the Hon’ble Supreme Court in HIGH COURT OF JUDICATURE FOR REJASTHAN vs RAMESH CHAND PALIWAL & ANOTHER (( 1998(3) SCC 72 ) wherein it has been laid down that under Article 229 of the Constitution of India and Article 235 of the Constitution of India, the High Court did not mean merely the ‘Chief Justice’ but all other Judges collectively and therefore the order can be issued. 9. The learned Sr. counsel appearing for the respondents submitted that the Hon’ble Chief Justice is not a proper and necessary party to these writ petitions merely because he has promulgated the Cadre and Recruitment Rules and has effected the consequential promotions pursuant to Cadre and Recruitment Rules. The learned Sr. counsel submitted that Chief Justice occupies a constitutional post, would be discharging judicial, administrative and legislative duties and in case of judicial decisions, the question of impleading him as a party would not arise as it is well settled that what is challenged is the judgment and not the action of person who has passed the judgment and therefore, the question of impleading the Presiding Officer to impugn his judgment would not arise. As far as administrative actions are concerned, Chief Justice is not a proper and necessary party as any action of the Chief Justice can be challenged within the scope of judicial review and the same can be resisted effectively by producing the documents by the Registrar General as the High Court is a Court of record and the Registrar is the custodian of the records and therefore Chief Justice is not a proper and necessary party. The learned Sr. counsel submitted that as the High Court is a Court of record and Registrar is the custodian of the records, Registrar General would be a proper and necessary party to a challenge regarding validity of Cadre and Recruitment Rules and the promotions made therein as he would effectively defend the action of promulgating the rules and consequential promotions made under the said Rules and being a custodian of records, he can produce all the records in the absence of the Hon’ble Chief Justice. The learned Sr. Counsel has relied upon the decision of the Division Bench of this Court in MARVERICK HOLDINGS & INVESTMENTS (P) LIMITED vs THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA & OTHERS (ILR 2010 KAR 1652) wherein the Division Bench of this Court held that the Hon’ble Chief Justice holding a high post under the Constitution is not a proper and necessary party to the writ petitions challenging the promotion and Recruitment Rules. The action of the Hon’ble Chief Justice can be challenged and can be defended by the Registrar General and Hon’ble Chief Justice should not be made a party to the writ petitions. It is submitted by the learned Sr. Counsel that against the said order passed by the Division Bench of this Court, SLP No.3347/2009 was filed and the same has been dismissed as withdrawn and therefore, the matter is covered by the decision of the Division Bench of this Court and the said decision does not call for any reconsideration and the question of law has to be answered against the petitioners. 10. We have given careful consideration to the contentions of the learned counsel appearing for the petitioners and the learned Sr. counsel appearing for the respondent and scrutinised the material on record. 11. The material on record would clearly show that in the present case, the petitioners have questioned the High Court of Karnataka Service (Conditions of Service and Recruitment) (Second Amendment) Rules, 2009 by notification dated 28-5-2009 so far as it relates to cadre of Assistant Registrar and the order passed thereon pertaining to the cadre of Sr. Assistant in the notification dated 27-9-2009. The petitioners are challenging the legislative act of the Chief Justice which he has competence to exercise and the administrative action taken on the basis of the said Rules promulgated by him. Assistant in the notification dated 27-9-2009. The petitioners are challenging the legislative act of the Chief Justice which he has competence to exercise and the administrative action taken on the basis of the said Rules promulgated by him. It is well settled that under Article 215 of the Constitution, High Court is a Court of record and under clause (1) of Article 229 of the Constitution, Officers and servants of High Court is required to be appointed by the Chief Justice or such other Judge or officer of the Court as he may direct and under clause (2) of Article 229, subject to the provisions of any law made by the legislature of the State, the condition of service of the Officers and Servants of the High Court shall be such as should be prescribed by Rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make Rules for the purpose. The Rules made under clause (2) of Article 229, so far as they relate to salaries, allowances, leave or pension, require the approval of the Governor of the State. Therefore Chief Justice occupies constitutional post and would be discharging his functions as per the provisions of the Constitution referred to above. It is well settled as to who is the proper and necessary party to the proceedings; a necessary party is one without whom no order can be effectively made and proper party is a person whose presence is necessary for complete and final decision of the question involved in the proceedings (SARVINDER SINGH vs. DALIP SINGH ( 1996(6) SCALE 59 ). It is well settled that the decision of the Chief Justice on the administrative side and legislative side is subject to judicial review and the Presiding Officer of the Court cannot be made a party to the proceedings (as held by the Hon’ble Supreme Court in SAVITRI DEVI vs DISTRICT JUDGE, GORAKHPUR & OTHERS ( (1999) 2 SCC 577 ). However, what would be the subject matter of the judicial review would be the action taken by the Chief Justice in exercise of his power under the constitution wherein he occupies a high post. However, what would be the subject matter of the judicial review would be the action taken by the Chief Justice in exercise of his power under the constitution wherein he occupies a high post. Having regard to the fact that High court is a Court of record and Registrar General will be the custodian of all the records, it is clear that when the action of the Chief Justice is challenged before the Court and he has taken administrative action or legislative action which he is competent to take under the constitution, the proceedings can be decided in his absence as the Registrar General can defend the action by producing all records and therefore, he is not a necessary party where the action of the Chief Justice which are on the administration side or legislative side is challenged. The Chief Justice is also not a proper party in such proceedings as his presence is not necessary to effectively decide the validity of the action taken as the same would be effectively defended by the Registrar General and it is only where an allegation is made against Chief Justice attracting malafide or any personal bias, the question of impleading the Chief Justice by his name would arise as the said question cannot be decided in the absence of making the Chief Justice a party. However, in those cases, the Chief Justice need not appear but can appear through Registrar General who would effectively represent the Chief Justice. 12. The Division Bench of this Court in MAVERICK’s case cited supra, was considering the question as to whether the Chief Justice is a necessary party for deciding the validity of administrative order passed by him which is challenged in the writ petition and the Division Bench has held that Chief Justice is not a proper and necessary party and the action can be validly defended by the Registrar General. After referring to the various decisions, the Division Bench has held as follows: Therefore, firstly we deal with this aspect. Hon’ble Chief Justice is conferred with the powers of passing both judicial as well as administrative orders. The administrative powers are exercised for effective and smooth functioning of the office. After referring to the various decisions, the Division Bench has held as follows: Therefore, firstly we deal with this aspect. Hon’ble Chief Justice is conferred with the powers of passing both judicial as well as administrative orders. The administrative powers are exercised for effective and smooth functioning of the office. Though he is the head of the institution, for all purposes the High Court is represented by Registrar General who is the custodian of all files, documents, records etc., In order to reduce his burden, decentralisation of power and duties are made and judicial matters are entrusted to Registrar (Judicial) and administrative matters are assigned to Registrar (Administration). But, the overall supervision and control of Administration of this Court are with Registrar General. He represents the High Court in all matters, including judicial matters and litigation. Therefore, instead of arraying Hon’ble Chief Justice, the Registrar General Should have been arrayed as representing the High Court. That apart, Hon’ble Chief Justice is the Constitutional functionary. He is the head of the High Court. Even though he has passed the impugned order in exercise of his administrative powers under Rule 5 of the Rules, he need not be necessarily arrayed as respondent in this writ petition. High Court is not represented by Hon’ble Chief Justice but by Registrar General. Another important aspect is, if litigants are allowed to make Hon’ble Chief Justice to array as respondent, he has to personally defend the actions complained of his in his official capacity. If a judicial direction is issued, he has to obey it. Hon’ble Chief Justice cannot be subjected to such an embarrassing situation. If judicial direction/order is not complied with, Hon’ble Chief Justice may have to face contempt proceedings. To avoid all such irking, analomous and embarrassing situations to the Constitutional functionary, the Registrar General is representing the High Court. 5. The only exception where Hon’ble Chief Justice can be impleaded as respondent is where allegations are made against him. The allegations may relate to favouritism, corruption, colourable exercise of power, mala fides or acting in a manner not befitting to the post held etc., In the instant case, no such allegations are made. Therefore, impleading of Hon’ble Chief Justice in this writ petition is wholly unnecessary and unwarranted. The allegations may relate to favouritism, corruption, colourable exercise of power, mala fides or acting in a manner not befitting to the post held etc., In the instant case, no such allegations are made. Therefore, impleading of Hon’ble Chief Justice in this writ petition is wholly unnecessary and unwarranted. The decision of the Division Bench was taken in appeal by the aggrieved party in SLP No.3347/2009 before the Hon’ble Supreme Court which was ultimately withdrawn. We hold that the decision taken by the Division Bench, having regard to the reasoning assigned therein, is justified and does not call for review and therefore the decision of the learned Single Judge relied upon by the learned counsel appearing for the petitioners in SIPPEGOWDA’s case cited supra, is contrary to the decision of the Division Bench and the view taken by us and therefore not helpful to the petitioners. 13. Similarly other decisions relied upon by the learned counsel for the petitioners is not helpful to them as the question referred was not directly in issue in the above said decisions. 14. In the case of HON’BLE CHIEF JUSTICE, DELHI HIGH COURT vs GAJENDER PAL VOHRA (the Division Bench of the Delhi High Court, has observed as follows: “We would like to make an observation of our own. We find Hon’ble the Chief Justice having been impleaded as party to the litigation for which there was no occasion much less a justification. Only the High Court should have been joined as a party to be represented by the Registrar. The tendency on the part of the writ petitioners so impleading Hon’ble the Chief Justice has to be deprecated.” 15. In view of the above said reasoning, we answer the point that is referred for determination to the Full Bench as follows: “We hold that Chief Justice is not a proper and necessary party in the writ petitions wherein action of the Chief Justice passing orders on the administrative side and promulgating rules and amendments thereon on the legislative side and appointments made under the said Rules is challenged and accordingly we answer the referred question in this case in the negative”. Accordingly the writ petitions shall be posted before the appropriate Bench for disposal on merits in view of the above said answer given by us for the question referred for opinion.