1. This reference raises important questions relating to the practice and procedure to be followed in a case where a learned single Judge of this Court either makes an order referring the case to a Division Bench or without any order of reference merely directs that a case listed before him be posted before a particular Bench of one Judge or two Judges as the case may be, without a direction to the Registry of the High Court to place the papers before the Chief Justice for passing appropriate orders as to the posting of the case. As rightly pointed out by the Division Bench which has referred this matter to the Full Bench, it is desirable and necessary in such cases to follow a uniform procedure consistent with the well established conventions and practice recognized by the Supreme Court and the High Courts.
2. The reference arises out of an order passed by a learned Judge directing that the two writ petitions listed before him shall be posted before a Division Bench hearing a particular contempt case. The relevant portion of the order is extracted:
"Post W.P. Nos. 3727 and 3728 of 1993 before the Bench hearing the said Contempt Case. It is represented by the learned Counsel for the petitioner that the said Contempt Case No. 17of 1993 is posted tomorrow before VSN & MBN L JJ., i.e., on 30-3-1993.
Office to note and post the writ petition as directed"
Both the writ petitions were accordingly posted before the Division Bench directly without reference to the Chief Justice. Under those circumstances, the Division Bench referred the matter to the Full Bench. The relevant portion of the order of reference is as follows:
"....After hearing Counsel on both sides, we are of the opinion that in the interests of uniformity of practice in this Court, it is necessary and desirable that the matter has to be decided by a Full Bench of this Court as to whether a learned single Judge of this Court may make an order of posting - without an order of reference of any matter for hearing by a Division Bench, or a learned single Judge may withdraw cases from one Bench and post them before another Bench basing on representations of Counsel without adverting to the points involved in the concerned cases........"
3. Thus, two important questions impinging upon the practice and procedure as regards giving of directions by a learned single Judge for posting or withdrawing of cases arise for consideration. These questions immediately attract our attention to "The Rules of the High Court of Judicature, Andhra Pradesh, Appellate Side" (for short ''the appellate Side Rules'') which constitute the rules of practice and procedure that shall be observed in the High Court in all cases and matters coming before it on the appellate side. Chapter I of Part-I of the Appellate Side Rules pertains to "Constitution of Benches". This chapter originally contained nine rules. Since Rules 7 and 9 have been deleted, it contains at present only seven rules. Rule 1 under which the matters that may be heard and determined by a single Judge are enumerated, provides that "the Judge before whom the matter is posted for hearing may, at any time, adjourn it for hearing and determination by a Bench of two Judges." The cases that may be heard and determined by a Bench of Two Judges are specified in Rule 2. This rule provides that "if both Judges agree that the determination involves a question of law, they may order that the matter, or the question of law, be referred to a Full Bench". For the purpose of this case, Rules 2-A. 3, 4 and 8 are not relevant. The expression "Full Bench" is defined in Rule 5:
5. "A Full Bench shall be a Bench of any number not less than three of the Judges for the time being present as Judges of the Court".
The plenary power of the Chief Justice to direct any matter to be posted before a Full Bench is covered by Rule 6.
6. "Anything in the foregoing rules to the contrary, notwithstanding, the Chief Justice may direct that any application, petition, suit, appeal or reference shall be heard by a Full Bench as defined in these Rules".
4. Now, let us peruse the rules of practice and procedure that shall be observed by the High Court in the writ petitions coming before it on the original side. It will be apposite to refer to Rules 14 and 24 of the Writ Proceedings Rules, 1977, framed by the High Court. Matters which shall be heard by a Bench of two Judges have been mentioned in Clause (a) of Rule 14. All other petitions shall be posted before a single Judge who may, if he thinks fit, refer any of them to a Bench of two Judges, as specified in Clause (b). Rule 24 reads thus:
"All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1908, will apply to the Writ Petitions and the Writ Appeals in so far as they are not inconsistent with these rules".
The learned Government Pleader appearing for the respondents has referred to the provisions of Section 113 CPC which confer power on a Court subordinate to the High Court, to state a case and refer the same for the opinion of the High Court, subject to the conditions and limitations contained in the proviso to the section. In our view, it may not be necessary to refer to Section 113 C.P.C. in the present case.
5. Appellate side rules contemplate constitution of Benches consisting of one Judge or two Judges or three or more Judges. The Benches are constituted by the Chief Justice keeping in view the nature of the cause, or matter that has to be heard, the pendency of the cases in the Court, and the relevant statutory provisions including the Appellate Side Rules. The cases are posted before the respective Benches for disposal as per the directions of the Chief Justice. The power vested in the Chief Justice to constitute Benches and give directions for posting of cases before the respective Benches is described by a Full Bench of Five Judges of this Court as administrative power exercised "for proper functioning of the Court in the interests of the administration of Justice", in V. Venkata Reddy and Ors. v. State of Andhra Pradesh ILR 1973 A.P. 787 at pp. 811 and 812 (para 7) as under:
"......There is no impediment in or restriction on the power of the Chief Justice in the matter of constitution of Benches or Full Benches and that power is an administrative power vested in him for proper constitution of Benches for purposes of disposal of the cases before the Court and for proper functioning of the Court in the interests of the administration of justice......."
6. The general practice of the learned Judges of the Supreme Court sitting in Divisions for the disposal of cases, has been explained in
".......But having regard to the volume of work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate."
7. Thus, the power and authority is vested in the Chief Justice of a High Court to constitute Benches of one or two or three or more Judges and give appropriate directions for posting of cases before those Benches. It is a settled principle of law that the Chief Justice can suo motu direct that any application, petition, suit, appeal or reference which is usually to be heard by a single Judge, shall be heard by a Bench of two or three or more Judges, as is held in V. Venkata Reddy and Ors. v. State of Andhra Pradesh (1 supra). This power vested in the Chief Justice is essential for the effective, orderly, consistent and smooth functioning of the Court and necessary in the interest of the administration of justice.
8. When the cases have been posted before a Bench of one Judge or two Judges, as the case may be in accordance with the sittings arranged by the Chief Justice, it cannot be gainsaid that a learned single Judge or a Division Bench can refer the case to a larger Bench. Whenever a learned single Judge is of the view that a case listed before him requires to be heard by a Bench of two Judges, he has to make an order of reference incorporating the reasons therefor. After an order of reference has been passed, whether a learned single Judge can strainghtaway give a direction to post the case before a particular Bench of two Judges without a request to place the papers before the Chief Justice for passing appropriate orders as to the posting of the case before the Bench is the question that arises for consideration. As we have earlier mentioned, it is for the Chief Justice to constitute Benches and give appropriate directions as to the posting of cases before the respective Benches. Referring a case to a Division Bench is one thing, and giving a direction to post that case before a particular Division Bench is another thing. When a case has been adjourned by a learned single Judge for hearing and determination by a Bench of two Judges, pursuant to an order of reference, the Chief Justice will have to constitute a Division Bench and give a direction as to the posting of that case before that Division Bench. That is why, whenever an order of reference is made by a learned single Judge or a Division Bench, they follow the salient and consistent practice of giving a direction to the Registry to place the papers before the Chief Justice for passing appropriate orders as to the posting of a case before a Division Bench or a Full Bench, as the case may be. That, however, does not mean that a Bench of one Judge or two Judges which refers a case to a larger Bench cannot express its view in the reference order as to the posting of a case before a particular Bench wherever it considers necessary. Even in such a case, the proper course would, however, be to direct the Registry to place the papers before the Chief Justice for passing appropriate orders as to the posting of the case before the particular Bench. There can be no doubt that the Chief Justice will have due regard to the views expressed by the referring Judge/Judges. But, it is for the Chief Justice to constitute a Bench and give appropriate direction for the posting of a case before a particular Bench. Such a procedure will not only obviate anomalous situations that may arise, but will, promote orderliness and uniformity. If, on the other hand, a learned single Judge directs a case listed before him to be posted before a particular Division Bench even without making an order of reference and without a request to place the papers before the Chief Justice for passing appropriate orders as to the posting of the case, either on the basis of a representation made by a learned Counsel or otherwise, it is likely to give rise to inconsistency and lack of uniformity.
9. Yet, another question referred for consideration is whether "a learned single Judge may withdraw cases from one Bench and post them before another Bench basing on representations of Counsel without adverting to the points involved in the concerned cases". It is not necessary to emphasis that a Bench of one Judge or two judges cannot withdraw a case from another Bench and neither such a Bench can hear a case after withdrawal, for itself nor can it direct the case after withdrawal to be posted before another Bench, either on the basis of a representation made by a learned Counsel or otherwise. If a representation is made before a learned single Judge that a case listed before him requires to be decided along with another case pending on the file of another Bench of one Judge or two Judges as the case may be, it would be appropriate if the learned Judge records the reasons and gives a direction to the Registry to place the papers before the Chief Justice and obtain necessary orders as to the posting of the case.
10. We are not inclined to accept the contention of the learned Counsel for the petitioner that a practice has developed in this Court whereunder Judges sitting single have been giving directions to post cases before a particular Bench of one Judge or two Judges as the case may be and accordingly, cases are being posted before that Bench, without any order of reference being made and without a request to place the papers before the Chief Justice for passing appropriate orders as to the posting of the case and such a practice shall be considered to be the law of the Court on the basis of the maxim "Cursus curlae est lex curle" i.e., ''the practice of the Court is the law of the Court''. Whenever an order of reference is made either by a learned single Judge or a Division Bench, the consistent practice that is followed by all the High Courts in the country is to direct that the papers be placed before the Chief Justice for passing appropriate orders as to the posting of the case before a Bench of two or three or more Judges as the case may be. When such is the practice to be followed, even in a case where an order of reference is made, we do not see any logic or justification in following a practice whereby a Bench of one Judge or two Judges as the case may be even without an order of reference and without a request to place the papers before the Chief Justice being made, directs that the case shall be posted before a particular Bench.
11. In this context, it would be pertinent to refer to the salient observations made by the Supreme Court emphasising the need to observe the judicial propriety and decorum in matters where reference is made to a larger Bench. In
"....It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view mat the earlier decisions of the High Court, whether of a Division Bench or of single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety....."
12. Holding that the source of the authority of the Chief Justice to direct a case to be posted before a larger Bench is not in the order of reference, the learned Judges of the Supreme Court reiterated in
".... When it appears to a Single Judge or a Division Bench.....that a question of law of importance arises in the trial of a case, the Judge or the Bench passes an order that the papers be placed before the Chief Justice of the High Court with a request to form a special or Full Bench to hear and dispose of the case or the questions raised in the case. For making such a request to the Chief Justice, no authority of the Constitution or of the Charter of the High Court is needed, and by making such a request a Judge does not assume to himself the powers of the Chief Justice. A single Judge does not by himself refer the matter to the Full Bench; he only requests the Chief Justice to constitute a Full Bench for hearing the matter. Such a Bench is constituted by the Chief Justice. The Chief Justice of a Court may as a rule, out of deference to the views expressed by his colleagues, refer the case; mat does not mean, however, that the source of the authority is in the order of reference........"
13. In a recent decision in
"We are constrained to observe our unhappiness on the matter in which the writ petition was summoned by Mr. Justice Saldanha from the office, heard and decided. As stated earler, the writ petition was directed by the learned Judge to be listed before him, on a mention made by the opposite party in course of dictation of judgment in criminal revision wherein he had made observations against the public prosecutor. A Judge of the High Court may have unchallenged and unfettered power to direct the office to list a case before him. But that by itself restricts the exercise of power and calls for strict judicial discipline. We do not intend to make any comment but we are of opinion that if the learned Judge would have avoided sending for and deciding the petition, which as pointed out by the learned senior Counsel for the State had become infructuous, it would have been more in keeping with judicial culture."
14. For the foregoing reasons, we hold that it would be appropriate to follow the practice and procedure pointed out by us in this judgment as regards giving of directions by a Bench of one Judge or two Judges as the case may be for posting of cases before or withdrawing of cases from another Bench.
15. The reference is answered accordingly.
16. The writ petitions shall be posted before the Division Bench.
