W.P.(C) No. 29646 of 2009

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR TUESDAY, THE 30TH MARCH 2010 / 9TH CHAITHRA 1932 WP(C).No. 29646 of 2009(S) ----------------------------------- PETITIONER: ------------------ ADVOCATE M.L.GEORGE, AVE MARIA, ACHAN VEETTIL ROAD, PACHALAM P.O., KOCHI-12. BY ADV. DR.VINCENT PANIKULANGARA RESPONDENTS: ---------------------- 1. HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR GENERAL, HIGH COURT OF KERALA, ERNAKULAM. 2. THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, KERALA SECRETARIAT, THIRUVANANTHAPURAM. 3. GOVT. OF INDIA, REPRESENTED BY THE PRINCIPAL SECRETARY, MINISTRY OF LAW AND JUSTICE, SASTHRI BHAVAN, NEW DELHI. 4. THE SECRETARY, BAR COUNCIL OF INDIA, 21, ROUSE AVENUE, INSTITUTIONAL AREA, NEW DELHI-2. 5. THE SECRETARY, BAR COUNCIL OF KERALA, HIGH COURT CAMPUS, ERNAKULAM. 6. THE SECRETARY, HIGH COURT ADVOCATES ASSOCIATION, HIGH COURT BUILDING, ERNAKULAM. WP(C) NO.29646 OF 20009 - 2 - 7. THE SECRETARY, DISTRICT BAR ASSOCIATION, ERNAKULAM, COCHIN-11. (ADDL.RESPONDENTS 4 TO 7 ARE IMPLEADED AS PER ORDER DATED 30.3.2010 IN IA NO.9414 OF 2009) R2 BY SR.GOVERNMENT PLEADER SMT.K.MEERA R3 BY SRI.T.P.M.IBRAHIM KHAN, ASST. SOLICITOR GENERAL OF INDIA R4 BY SRI.V.V.SURENDRAN R5 BY ADV. SRI.GRASHIOUS KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.Chelameswar, C.J. & K.Balakrishnan Nair, J.** ------------------------------------------ ## **W.P.(C) No.29646 of 2009** -----------------------------------------Dated this the 30[th ] day of March, 2010 ## **JUDGMENT** ## **K.Balakrishnan Nair, J.** The petitioner is a practising lawyer. He claims, he is a public spirited citizen very much interested in the efficient administration of justice. He points out that large number of cases are pending before this Court and the civil courts in the State. According to him, the panacea to cure the said ill is to reduce the vacations of this Court and the civil courts. He also suggests that all Saturdays should be made working days for this Court. Therefore, he has filed this Writ Petition, seeking the following reliefs: “i) The Hon'ble Court may be pleased to issue a writ of mandamus or any appropriate writ or direction or order to the respondents for amending the relevant rules and regulations which envisage the number of holidays/working days of High Courts and Subordinate Courts. ii) to order that all Saturdays shall be working days for the courts including High Court and the Tribunals. W.P.(C) No.29646 of 2009 - 2 - iii) To quash Section 23A of High Court Judges Conditions of Service Act 1954 providing vacation for High Court and Section 19 of Kerala Civil Court Act providing vacation for Lower Courts as they are violative of Article 14 and Article 21 of Constitution of India as ultra-vires. iv) To direct the respondents to make appropriate rules and regulations for the full utilization of the working strength of the available Judges and infrastructure. v) to order that Saturdays shall be working days for all courts and the minimum working days shall be 300 days for the working of all courts including High Court. vi) to direct 1[st] respondent to make special sittings for clearing of arrears of cases pending for more than 7 years during the Summer Vacation. vii) to grant such other reliefs that may deem fit and proper in the circumstances of the case.” 2. The first prayer is for a mandamus to the respondents to amend the relevant rules and regulations concerning the vacations/working days of the High Court and the Subordinate Courts. It is well-settled in law that the High Court under Article 226 of the Constitution of India cannot issue a mandamus to the W.P.(C) No.29646 of 2009 - 3 - rule- making authority to frame or amend rules. The said principle is founded on the fundamental premise that no person can claim any legal right to have a rule framed/amended in a particular manner and the rule-making authority does not owe any corresponding duty to do the same. In the absence of any right - duty relationship, no mandamus could be prayed for by the petitioner. Even assuming this Court issues a mandamus, it is going to be a futile exercise, because in matters of subordinate legislation, the rules framed by the State Government will have to be placed before the Legislature. If the Legislature by resolution undo the rule framed, the issuance of a writ by this Court will become futile. Members of the Legislature are protected by the privileges under Article 194 of the Constitution of India and they are not answerable to the court for voting in a particular manner in the Legislature. So, the prayer for mandamus fails. 3. The next main prayer is to quash Section 23A of the High Court Judges Conditions of Service Act, 1954 and Section 19 of the Kerala Civil Court Act providing for vacation to the High Court and the lower courts respectively. When a statutory provision W.P.(C) No.29646 of 2009 - 4 - is challenged, it is elementary that the prayers should be for a declaration that the provision is unconstitutional and for a mandamus not to enforce that statutory provision. This legal position has been restated by the Apex Court in **Prabod Verma v. State of U.P.** (AIR 1985 SC 167). The Honourable Supreme Court in the said decision had gone to the extent of saying that when a party is represented by a lawyer and such improper prayers are made while challenging a legislation, the Court should decline to hear the petition unless the writ petition is amended, by making proper prayers. But, we are not dealing with the matter on such technical grounds. 4. Whether the number of working days of the High Court should be increased and whether the vacation should be reduced, are all matters of policy, which is to be considered by the concerned authorities including the Union of India, the State Government, the Supreme Court and the High Courts. As far as these matters are concerned, apparently the concerned authorities have framed certain policies and they find expression in the form of relevant statutory provisions. On the judicial side, this Court can W.P.(C) No.29646 of 2009 - 5 - interfere if only those provisions are shown to be violative of any of the provisions of the Constitution. Going by the pleadings in the Writ Petition, we find that no such ground has been made out and therefore, the prayer to interfere with the relevant provisions of the aforementioned statutes fails. 5. Apart from the aforementioned prayers, at the time of hearing the Writ Petition, Dr.Vincent Panikulangara, learned counsel for the petitioner, brought to our notice that in view of Ext.P6 communication issued by the Registry of this Court, the President apparently appears to have not issued any notification under Section 23A of the High Court Judges Conditions of Service Act and therefore, the provision made by the High Court for Midsummer vacation, Onam vacation and Christmas vacation is without the authority of law. Therefore, the learned counsel prayed for granting the reliefs sought in the Writ Petition. 6. Section 23A of the High Court Judges Conditions of Service Act authorises the President to notify the period of vacation of High Courts. As evident from Exts.P5 and P6 documents produced by the petitioner, it is evident that the Union of India has W.P.(C) No.29646 of 2009 - 6 - permitted the High Court of Kerala to have the vacation as fixed by it, provided there are 210 working days in an year. When the Central Government is authorised to do something by framing rules or by issuing a notification, the said Government can do that by issuing an executive order also. In view of the above legal position, the contention raised by the learned counsel for the petitioner that this Court has provided for vacation without proper authority of law cannot be accepted. In the result, we find no merit in the writ petition and it is accordingly dismissed. **J.Chelameswar, Chief Justice** **K.Balakrishnan Nair,** **Judge** vns