1. The learned Counsel for the applicant has taken a preliminary objection that this High Court is not legally constituted inasmuch as the vacancy caused by the transfer of Young, J., from Allahabad to Lahore has not been filled up. The argument of course takes it for granted that Young, J., has retired from this High Court to-day. There is no affidavit before us to show that he has actually taken over charge at Lahore. We shall however assume for the purposes of this objection that he has retired from this High Court Bench. No doubt the Government of India Act, Section 101, requires that each High Court shall consist of a Chief Justice and as many other Judges as His Majesty may think fit to appoint. Up till the time of retirement of Young, J., there were certainly one Chief Justice and 8 Judges. The learned Counsel for the applicant asks us to make a second assumption that His Majesty has thought fit after the retirement of Young, J., to have one Chief Justice and 8 Judges. We may make this assumption also in order to consider his objection. The provisions of the Government of India Act contemplate three classes of Judges of the High Court : (1) Permanent Judges appointed by His Majesty who are called the Judges of a High Court of Judicature : (2) Additional Judges appointed by the Governor-General in Council who act and have all the powers of a Judge of the High Court and (3) Officiating Judges who are appointed by the Local Government to fill up temporary vacancies till permanent appointments are made.
2. Section 101 further lays down the qualifications of a Judge of a High Court and then contains the proviso that not less than one-third of the Judges of the High Court, including the Chief Justice but excluding the Additional Judges, must be Barristers or Advocates as aforesaid and that not less than one third must be members of the Indian Civil Service, At least in practice, the proviso has been interpreted so far as meaning that the Chief Justice must be a Barrister Judge and that one-third of the total strength of the permanent Judges including the Chief Justice must be Barristers and one-third must be members of the Indian Civil Service. The proviso does not in express terms apply to Additional Judges, for it excludes them. We think that a fortiori the proviso does not apply to Officiating Judges appointed by the Local Government. It follows therefore that there is no defect at all if the Officiating Chief I Justice happens to be a non-Barrister or an Officiating Judge a non-Barrister or non Civilian Judge in place of a Barrister or Civilian Judge, who has either retired or gone on short leave. There is a distinction between the constitution of a High Court which consists of one Chief Justiceship and a fixed number of Puisne Judgeships and the actual group of individual Judges who for the time being constitute the High Court. If the constitution itself were altered and a Judgeship were abolished which would disturb the requisite proportion, there would certainly be n, defect in the constitution. But if there be a temporary vacancy caused by the retirement, resignation or going on leave of a Chief Justice or a Permanent Judge the constitution in our opinion, would not be illegal.
3. That this is so is clear from the provisions in Section 105(1) of the Act and which show clearly that in the case of a vacancy in the office of a Chief Justice or during his absence the Local Government is bound to appoint one of the other Judges to perform the duties of a Chief Justice of the Court until some person has been appointed to the office by His Majesty. This sub section therefore implies that there would be a gap between the retirement of a permanent Chief Justice and the appointment of a new Chief Justice during which period the Local Government must appoint an Officiating Chief Justice, Similarly Sub-section 2 of the section provides that on the occurrence of a vacancy in the office of any other Judge of a High Court or during his absence or on the appointment of such Judge, to act as Chief Justice, the Local Government may appoint a person who possesses the necessary qualifications to act as a Judge and the person so appointed may sit and perform the duties of a Judge until His Majesty has made the permanent appointment. This sub-section also contemplates an interregnum during which there would be a vacancy in the permanent strength of the Bench which may be temporarily filled up by an appointment of an Officiating Judge. It follows that it is not essential that a temporary vacancy must be filled immediately otherwise the subsisting Judges would not have jurisdiction to act.
4. Obviously there may be retirement due to sudden death and it would be impossible to fill up the vacancy immediately. On 5th November 1898, Sir Louis Kershaw, Chief Justice of this High Court, suddenly died. The Judges no doubt suspended their sitting until Sir George Knox was appointed as the Acting Chief Justice; but he acted as Chief Justice during the interregnum before the appointment of Sir Arthur Strachey in December following. Such a vacancy has occurred in this High Court also when Sir Arthur Strachey, the Chief Justice died suddenly and his successor was not appointed by His Majesty till some time afterwards. There was similarly another vacancy in the permanent strength of this High Court when Banerji, J., suddenly died and it was some time before his successor could be appointed. In our opinion the provisions of Section 105 indicate that such a gap is recognized by the legislature and it was not the intention of the legislature that such a temporary vacancy would render the existing constitution of the High Court imperfect or fatally defective.
5. There have also been cases where Judges other than Barrister Judges have officiated as a Chief Justice of this High Court and it was not considered that the proviso to Section 101, Sub-section 3, would apply to them. Sir George Knox, Sir P.C. Banerji and Sir Lal Gopal Mukerji have officiated as Chief Justice on several ocoasions which in our opinion, was in conformity with the provisions of the Government of India Act. The learned Counsel for the applicant has strongly relied on the circumstances that when the vacancy in the permanent Judgeship of the Lahore High Court was filled up by the appointment of a Judge who was neither a Barrister nor an Advocate and did not fulfil the requirements of Section 101 Sub-section 2, Government of India Act, a Validating Act (12 and 13, George V. C. 20), had to be passed under which a person who had been a pleader of one of the High Courts was deemed to be eligible for such appointment; and the Act was given a retrospective effect.
6. That was a case where a Judge of a High Court who did not possess the qualifications required by the Government of India Act had under some mistake been appointed a Judge and had acted as such Judge for some time before the defect was discovered. It was therefore necessary to pass a Validating Act in order to render valid all the actions taken by him during the short time and it was further necessary to give the Act a retrospective effect. The point raised before us is not that the subsisting Judges of this Court are not qualified but that the number of the Judges having been reduced, there are no longer one-third of subsisting Judges as Barrister Judges.
7. A similar objection was taken in a different form before a Full Bench of this High Court in Lal Singh v. Ghansham Singh (1887) 9 All. 625. Under the High Court of Judicature Act of 1861, it was provided that the High Court shall consist of a Chief Justice and as many Judges not exceeding fifteen as Her Majesty may from time to time think fit to appoint. There was no minimum fixed under that Act. But the Letters Patent granted to this High Court in Clause (2) laid down that the High Court shall consist of a Chief Justice and five Judges and the Chief Justice and the Judges were also named therein. Thus in 1887 when the clause of the Letters Patent was in force and had not in any way been amended by the Governor-General in Council, it was considered that there should be at least one Chief Justice and five Judges in this Court. But it so happened that although that strength was maintained up to 1863, from that year down to 1887 there never had been actually five Judges in addition to the Chief Justice, but only four Judges. Objection was accordingly taken that the constitution of the High Court was contrary to the minimum fixed in the Letters Patent and that therefore the subsisting Judges had no jurisdiction to act as Judges. This objection was overruled by a Full Bench of five Judges who came to the conclusion that the vacancy in one Judge-ship was not fatal. The learned Chief Justice in particular quoted an extreme example, namely, that of a Judge of a High Court while going to England on leave round the Cape of Good Hope or by way of America and the ship being wrecked on the voyage, the exact date of the sinking of the ship not being known. In such a case there might be no possible means of knowing when the Judge actually died or of knowing whether he was in fact dead, and accordingly there may be no filling up of the vacancy caused by his death. The learned Chief Justice pointed out that from the wordings of the corresponding sections of the old Act it followed that it was not compulsory to appoint a Puisne Judge in place of a Puisne Judge, who, either may be on furlough or absent or dead or who might have resigned, but that the Act only provided that it shall be lawful to appoint a person to act as a Judge of the said High Court. The use of the words 'shall be lawful' did not indicate that it was intended that it was compulsory to fill up the post of Puisne Judge. The learned Chief Justice further observed that no omission on the part of the Grown to fill up a vacancy under the Act amongst the Puisne Judges can operate to discharge or to suspend the jurisdiction and functions of the Chief Justice and subsisting Judges of the Court. The other learned Judges concurred in the conclusion.
8. The opinion of the Full Bench is binding on us and it shows that the requirements in Section 2, High Courts Act of 1861, which are similar to the requirements contained in Section 101 of the Government of India Act of 1915 are not necessary in the case of temporary vacancies, whether such vacancies are filled up by the appointment of Officiating Judges or whether they are held up in abeyance temporarily. It is a significant fact that although the new Government of India Act was passed in 1915 the language of the proviso to the old Section 2 was reproduced in the proviso to Section 101 of the new Act. The legislature must be presumed to have been aware of the ruling of the Full Bench of this Court in which the opinion was clearly expressed that these requisites were not necessary in the case of a vacancy. We are accordingly of opinion that the mere fact that the vacancy caused by the supposed retirement of Young, J., from this Court has not been filled up does not render the High Court illegally constituted so as to deprive the subsisting Judges of their ordinary jurisdiction.