223. Appointment of acting Chief Justice.—When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the court as the President may appoint for the purposes.
Having acted as a Chief Justice some time earlier in ones judicial career does not entitle a judge to a higher ceiling of pension.
Genesis and Growth
Section 222 (1) of the Government of India Act, 1935 laid down that if the office of Chief Justice of a High Court becomes vacant, or if any such Chief Justice is by reason of absence, or for any other reason, unable to perform the duties of his office, those duties shall, until some person appointed by His Majesty to the vacant office has entered on the duties thereof, or until the Chief Justice has resumed his duties, as the case may be, be performed by such one of the other judges of the court as the Governor-General appoints for the purpose.
In the first Draft Constitution of 30 October, 1947, the Constitutional Adviser reproduced this provision after substituting the word “President” for “Governor-General”.
In the Draft Constitution of 21 February, 1948 the Drafting Committee rephrased the provision of the Constitutional Adviser’s draft in its draft article 198 as under:
198. Temporary judges.—(1) When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the court as the President may appoint for the purpose.
(2) (a) When the office of any other judge of a High Court is vacant or when any such judge is appointed to act temporarily as a Chief Justice, or is unable to perform the duties of his office by reason of absence or otherwise, the President may appoint a person duly qualified for appointment as a judge to act as a judge of that court.
(b) The person appointed shall, while so acting, be deemed to be a judge of the court.
(c) Nothing contained in this clause shall prevent the President from revoking any appointment made under this clause.
Draft article 198(2) was strongly criticised by the Judges. A number of amendments for modifying or deleting clause (2) were received. The Drafting Committee as also the Special committee on judiciary were of the view that the system of appointment of temporary and additional judges should be discontinued by increasing, if necessary, the total number of permanent judges. Finally, the Drafting Committee decided to sponsor an amendment to delete clause (2) of draft article 198.
When the draft article came up for discussion in the Constituent Assembly on 6 June, 1949, Dr. B.R. Ambedkar moved an amendment thereby, in effect, omitting clause (2) of the draft article and modifying the marginal heading. The amendment said that for draft article 198, the following be substituted:
198. Temporary appointment of acting Chief Justice.—When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other judges of the court as the President, may appoint for the purpose.”
The amendment moved by Dr. Ambedkar was adopted and the draft article 198, as amended was adopted to be added to the Constitution.
At the revision stage the Drafting Committee renumbered the draft article as article 223 of the Constitution in its present form.
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