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Ajay Kumar Mittal, J.—Through the present Letters Patent Appeal, the appellant has challenged the order dated March 16, 2012 passed by learned single Judge of this Court in CWP No. 12100 of 2011 whereby the writ petition filed by him was held to be not maintainable against the High Court. The facts, in brief, relevant for adjudication of the controversy involved, as narrated in the appeal, may be noticed. The appellant joined the judicial department as Clerk in the office of District and Sessions Judge, Amritsar on 4.4.1985. He remained posted there till 6.5.1993. On account of his wife being posted at Jalandhar Sessions Division, the appellant made a request for his transfer from Amritsar to Jalandhar. At the time of his transfer, the appellant gave an undertaking that he will not claim any seniority. Accordingly, on the basis of his request and undertaking, he was transferred to Jalandhar and he joined there on 7.5.1993. He was placed at Sr. No. 56 in the seniority list as junior to Ms. Balwinder Kaur, Clerk of Jalandhar Sessions Division, meaning thereby, he was placed at the bottom of the seniority. On 15.11.2000, the Punjab Government issued notification Annexure-P1 to the effect that period of service rendered by incumbent on a permanent post could not be excluded from consideration for determining his eligibility for promotion though he may have been placed at the bottom of seniority list at the transferred place. The said notification also provided that such an employee could not count his period of previous service for the purpose of seniority which disturbed the legal right of the official already in service. The appellant made representation to respondent No. 2 District and Sessions Judge, Jalandhar to the effect that the experience gained by him during his posting on permanent post at Amritsar should be counted for the purpose of promotion and he be considered accordingly. Vide order dated 14.8.2003, Annexure-R2 the District and Sessions Judge, Jalandhar dismissed his representation. Aggrieved by the said order, the appellant made an appeal before respondent No. 1. The High Court heard the appeal on administrative side and dismissed the same. Having come to know that Clerks from his cadre were going to be promoted as Senior Assistant, the appellant made a representation through proper channel for purpose of consideration of promotion on the ground of having long experience as clerk being belonging to backward class. Again respondent No. 2 vide order dated 16.12.2008, Annexure-P5 rejected the representation dated 31.10.2008 without giving any reason. Aggrieved by the order, the appellant made a detailed appeal to the High Court. Vide order of this Court dated 11.3.2011 on administrative side, the appeal was dismissed on the ground that the point had already been decided in earlier appeal that seniority could not be granted as per rules. The appellant also filed review application which was also dismissed as non-maintainable. Thereafter, the appellant filed CWP No. 12100 of 2011 challenging the impugned orders. The writ petition was dismissed vide order dated 16.3.2012 impugned herein by the learned single Judge primarily on the ground that the order passed was an administrative orderly this Court and was not amenable to jurisdiction under Article 226 of the Constitution of India. Hence the present appeal under Clause X of the Letters Patent.
Learned counsel for the appellant submitted that the learned single Judge had erred in holding that the writ petition against the High Court was not maintainable and it was not amenable to jurisdiction under Article 226 of the Constitution. According to the counsel, that being against the provisions of Article 226 of the Constitution, the order was required to be set aside and the matter be remanded for adjudication on merits in accordance with law.
On the other hand, learned counsel for the respondent High Court sought to justify the order on merits and contended that the appellant had no case on merits.
After hearing learned counsel for the parties and perusing the record, we find that the issue that arises for consideration in this appeal relates to whether the order passed by the High Court in exercise of the administrative power under the Service Rules would be amenable by way of Civil Writ Petition to judicial review under Article 226 of the Constitution of India.
The Apex Court in High Court of High Court of M.P. Vs. Mahesh Prakash and others, regarding maintainability of writ petition in respect of order passed by the High Court on administrative side had held that the same was maintainable. It was further noticed that in such a situation, High Court was required to be made a party and it had a right to file SLP to the Apex Court against the order in writ petition passed on judicial side. The relevant observations are as under:--
The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the High Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court, on its judicial side to consider the validity of the order passed by the High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find, therefore no merit in what may be termed the preliminary objection to the maintainability of the appeal.
The Full Bench of Kerala High Court considering the similar issue in K. Prabhakaran Nair Vs. State of Kerala and Others, held that where the orders are passed by the High Court on the administrative side, the writ jurisdiction under Article 226 of the Constitution of India can be invoked to question such orders. It was noticed as under:-- 5. The learned counsel for the respondent pleaded that this writ petition is not maintainable as the prayer is for issuing a writ to the High Court itself. It is well settled that the High Court acting in its judicial capacity cannot be said to be an authority subject to the jurisdiction of the High Court itself under Article 226 of the Constitution for the issue of a writ of certiorari. In 1945 MWN 536 (Privy Council) Lord Goddard observed:--
It is well settled, and counsel did not seek to argue to the contrary, that a Court having jurisdiction to issue a writ of certiorari will not and cannot issue it to bring up an order made by a Judge of that Court. Now will a Superior Court issue the writ directed to another Superior Court (1883) 11 QBD 479 and if the Election Judge is to be regarded as a special or independent tribunal his Court would, in their Lordships'' opinion, be a Superior Court. Considering that the Court is held before a Judge of the Supreme Court from whose decision there is no appeal, it could not be otherwise. But their Lordships are of opinion that the true view is that cognizance of these petitions is an extension of, or addition to, the ordinary jurisdiction of the Supreme Court and consequently certiorari cannot be granted to bring up any order made in the exercise of that jurisdiction.
The above principle has application only to orders passed by Courts in exercise of judicial functions. The order in question was passed by the High Court in exercise of its administrative authority in view of the control over the subordinate Courts vested in it. In these circumstances we are not prepared to hold that the petition is not maintainable. We see nothing in the wording of Article 226 of the Constitution which warrants the imposition of a limitation that the jurisdiction of the High Court under the said Article cannot be invoked for the purpose of calling in question orders passed by the Chief Justice or by the High Court itself on the administrative side. The decision in In re In Re: Babul Chandra Mitra, and Saina Bhai Vs. State were relied on by the learned Government Pleader to support his contention that there is no such power in the High Court. But then the Supreme Court pointed out in Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, thus:--
This would be enough, to dispose of the case against the appellant. The learned Judges of the High Court have also dealt at some length with the question as to the maintainability of an application for a writ in a case of this kind and of the availability, of any remedy by way of a writ against the action of the Chief Justice, whether administrative or judicial.
Arguments in this behalf have also been strongly urged before us by the learned Advocate-General of West Bengal. In the view, however, that we have taken as to the contentions raised before us regarding the validity of the order of dismissal, we do not feel called upon to enter into the discussion relating to the availability of the writ. We express no opinion on the question so raised, We consider it, however, desirable to say that our view that the exercise of power of dismissal of a civil servant is the exercise of administrative power may not necessarily preclude the availability of remedy under Article 226 of the Constitution in an appropriate case. That is a question on which we express no opinion one way or the other in this case.
In view of the above, the order passed by learned single Judge holding that the writ petition was not maintainable, is not sustainable. Accordingly, the same is set aside and the matter is remitted to the learned single Judge for deciding the same on merits in accordance with law.