Declaring the law, the Division Bench made the following observations;
8. We now proceed to consider the correctness of the impugned order passed by Hon'ble Chief Justice assigning the case to some other Judge. Mr. Basava Prabhu Patil learned Senior Counsel on behalf of 9th respondent has vehemently sought to justify the order impugned in this petition placing reliance upon the decision reported in (2001) 2 SCC 294 (Rajasthan High Court Advocates' Association v. Union of India) paragraph 11. the relevant portion is extracted hereunder:
11. ... The Chief Justice of the State cannot, thereafter, artificially or indirectly take away the jurisdiction belonging to one and confer it on the other. Conferring a discretion on the Chief Justice to order any case or class of cases arising in any district within the territorial jurisdiction of permanent Bench at Jaipur shall be heard at Jodhpur cannot spell out a power to define where the cause of action shall be deemed to have arisen in a writ case.
9. Another decision relied upon by him is reported in (1998) 1 SCC 1 (State of Rajasthan v. Prakash Chand).
10. In this regard, it is necessary to extract Rule 5 of the Rules and it reads:
every petition or application for review, reconsideration or correction of a judgment, decree, order or sentence shall be posted before the Original bench which pronounced, made or passed such judgment, decree, order, or sentence or if the judge or any of the judges who constituted the said bench is not available by reason of death, retirement, or absence, before any other bench constituted in the same manner on the original bench.
From a bare reading of the aforesaid rule it is clear that if any judge or judges who passed the judgment, decree or order are not available by reason of death, retirement or absence, petitions or applications mentioned therein can be posted before any other bench.
11. Assignment of judicial work is the prerogative of Hon'ble Chief Justice. On 4-6-2008 the High Court of Karnataka established two Circuit Benches at Dharwad and Gulbarga and territorial jurisdictions were also fixed with Principal Bench at Bangalore by issuing the notification. Since judge, who has passed the order dismissing the writ petition for non-prosecution was not available in Principal Bench and was sitting at another Circuit Bench, the application filed to recall the dismissal order was assigned to another Judge having roster. This has been done by the Hon'ble Chief Justice in exercise of the administrative power. The power of Hon'ble Chief Justice in this regard is wide and the same is reflected in the following decisions relied upon by Sri Basavaprabhu S. Patil, learned Senior Counsel appearing on behalf of Sri Brijesh Paul, learned Counsel for 9th respondent.
12. A Full Bench of this Court in the case of Narasimhasetty v. Padmasetty reported in 1998(3) Kar.L.J 73 has found as under:
12. So far as the first question is concerned, Rule 6 of the High Court Rules in unambiguous terms confers an absolute power on the Chief Justice to constitute benches and allot/distribute judicial work amongst them. This power can be exercised only by the Chief Justice of the High Court and not by any puisne Judge or any bench comprised of them. The provisions made in the said Rule has now been recognised by the Supreme Court as an absolute procedural law ensuring maintenance of judicial discipline and proper functioning of the High Court in the case, of State of Rajasthan v. Prakash Chand and Ors. on the review of catena of decisions on the point has approved the view taken by the Full Bench of Allahabad High Court in case of Sanjay Kumar Srivastava v. Acting Chief Justice. In this decision it was inter alia held that:
In view of the above, it is clear that the Chief Justice enjoys a special Status not only under Constitution but also under Rules of Court, 1952 made in exercise of powers conferred by Article 225 of the Constitution. The Chief Justice alone can determine jurisdiction of various Judges of the Court. He alone can assign work to a Judge sitting alone and to the Judges sitting in Full Bench. He alone has the jurisdiction to decide which case will be heard by two or more Judges.
13. The conferment of this power exclusively on the Chief Justice is necessary so that various Courts comprising of the Judges sitting alone or in Division Bench etc., work in a Co-ordinated manner and the jurisdiction of one Court is not overlapped by other court. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial functioning of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The nucleus for proper functioning of the Court is the "self and "judicial" discipline of Judges which is sought to be achieved by rules of Court by placing in the hands of the Chief Justice full authority and power to distribute work to the Judges and to regulate their jurisdiction and sittings.
14. In view of the said pronouncement of law by the Supreme court, since the existence and proper functioning of an independent judiciary, like the High Court, is a part of the essential basic structure of our Constitution, all the legislative Acts and the administrative or executive orders concerning the High Court administration must conform with the law laid down by the Supreme Court. If there be any irreconcilable statutory provision or order, then the same has to be read down so as to give supremacy to the powers of the Chief Justice in constituting the Benches and allocation/distribution of judicial work among them. All the provisions of the High Court Act and the rules framed thereunder including the provisions for intra-Court appeal have to be read as being subject to the said power of the Chief Justice.
13. A Division Bench of this Court in the case of Bab Mahabaleshar Revankar v. Syndicate Bank reported in ILR 1992 Kar 3477 has held at paragraph 4 as under:
Therefore, in view of Rule 5 of Chapter III of the Rules it is open to any other similar Bench to review the order passed by a Judge....
14. A single Judge of this Court in the case of Prabhakar, M. v. V. Venkataswamy reported in 1982(2) Kar.L.J 446 has held that:
The application having been posted by special order of Chief Justice, there was no violation of Rules 4 and 5 of Chapter X of the Rules.
15. In view of the clear pronouncements of the Apex Court, Full Bench and Division Bench and Single Judge decisions regarding the powers of Hon'ble Chief Justice in the matter of allocation of cases and assignment of roster to Hon'ble Judges and for the reasons assigned by the Hon'ble Chief Justice in the impugned order, we hold that the action of Hon'ble Chief Justice impugned in this writ petition is legal and valid and the impugned order need not be quashed. The declaration sought that the impugned order is contrary to Rule 5 of the Rules cannot be issued and the prayer is mis conceived. The petition is mischievous one and therefore the same is liable to be dismissed with costs.