PETITIONER:
STATE OF BIHAR
Vs.
RESPONDENT:
MADAN MOHAN PRASAD & ORS.
DATE OF JUDGMENT19/12/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
RAY, A.N. (CJ)
BEG, M. HAMEEDULLAH
SHINGAL, P.N.
CITATION:
1976 AIR 404 1976 SCR (3) 110
1976 SCC (1) 529
CITATOR INFO :
RF 1977 SC2328 (14)
R 1979 SC 478 (152)
R 1980 SC1426 (24)
RF 1981 SC 561 (51)
ACT:
Bihar Superior Judicial Service Rules 1951-r. 16(e)-
“may have been’ allowed to officiate continously” -Scope and
meaning of-Notional officiation -If permissible.
Constitution of India-Art. 235-Power of determining
seniority of District Judges-If vests in the High Court.
HEADNOTE:
Rule 6 of the Bihar Superior Judicial Service Rules,
1951, says that of the posts in the cadre of the service,
two-thirds shall be filled by promotion and one-third by
direct recruitment. Clause (e) of r. 16 provides that
seniority of direct recruits vis-a-vis promoted officers
shall be determined with reference to the dates from which
they may have been allowed to officiate continuously in a
post in the cadre of the Service.
Respondents 1, 2 and 3 who were direct recruits were
appointed as Additional District & Sessions Judges with
effect from April 21, 1960. Respondents 4, 5 and 6 belonged
to the judicial service of the State. Respondents 5 and 6
were promoted as Additional District & Sessions Judges. But
despite the availability of a post from November 1, 1959,
and suitability of respondent 4, he was appointed to that
post only on September 19, 1960. His representation that his
seniority should be fixed below that of respondent 6 was
rejected by the High Court. But, the State Government said
that in order to relieve undue hard ship to respondent 4, he
should be deemed to have been officiating as Additional
District & Sessions Judge with effect from November 1, 1959
and that for the purposes of seniority he should rank
immediately below respondents 5 and 6 on the view that on a
proper interpretation of r. 16(e) of the Rules, the
Government was authorised to fix the seniority from a date
from which officiation was possible on account of
availability of vacancies.
Respondents 1 to 3 (direct recruits(1) in a writ
petition impugned the Government’s action in fixing the
seniority of respondent 4 below that of respondents 5 and 6
but above them. Before the High Court the State contended
that the meaning of the expression “might have been allowed
to officiate continuously” in r. 16(e) is that a notional,
continuous officiation in a post in the cadre of the service
or outside it, will give preference to the promoted officers
in the matter of seniority over the direct recruits provided
there were vacancies, in one or which he could or might have
been allowed to officiate continuously. The High Court
rejected this contention and held that this expression meant
actual and continuous officiation and not a fictional or
notional one.
Dismissing the appeal,
^
HELD: (1)(a) The words “may have been allowed to
officiate continuously” in cl. (e) of r. 16 mean actual and
continuous officiation and not a fortuitous or fictional
officiation. A notional construction of the clause would
lead to anomalous results. The State Government, therefore,
could not, on an interpretation of r. 16(e) say that for the
limited purpose of seniority respondent 4 would rank below
respondents 5 and 6 but above the writ petitioners
(respondents I to 3(1) and will be deemed to have been
officiating as Additional District & Sessions Judges with
effect from November 1, 1959. Such a deeming officiation for
the purpose of determination of seniority on a construction
of cl. (e) was not permissible. [117 H-118 B]
(b) Reading cl. (e) together with cl. (a) and (b) of r.
16, it is clear that before fixing the seniority of direct
recruits vis-a-vis promoted officers it will be necessary,
as a preliminary step, to prepare two separate lists-one of
direct recruits under cl. (a) and the other of promoted
officers under cl. (b) of r. 16 in the chronological order
of their confirmation. [117 D-E]
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(2) The power of confirmation of District Judges is a
part of the power of control vested in the High Court under
Art. 235 of the Constitution. Since the Bihar Superior
Judicial Service Rules make the chronological order of
confirmation an integral part of the process of fixation of
the order of seniority in the service, the inference is that
both these powers were intended to be exercised by one and
the same authority. Since Art. 235 of the Constitution vests
the power of confirmation in the High Court, the power of
determining the seniority in the service is also with the
High Court. In determining the seniority the High Court is
bound to act in accordance with the rules validly made by
the Governor under the proviso to Art. 309 of the
Constitution. [117 E-G]
Chandramouleshwar Prasad v. Patna High Court and others
[1970] 2 S.C.R. 666, followed.
High Court of Punjab and Haryana etc. v. The State of
Haryana and others [1975] 3 S.C.R. 365, distinguished.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 166, of
1970. (Appeal by special leave from the judgment and order
dated the 26-9-1969 of the Patna High Court in Civil Writ
Petition Case No. 183 of 1968(1).
L. M. Singhvi and U. P. Singh – For the
appellants.
B. P. Singh for the respondent.
The Judgment of the Court was delivered by
SARKARIA, J.- Respondents 1, 2 and 3 herein made an
application under Article 226 of the Constitution alleging
that the decision of the Bihar State Government fixing the
seniority of Respondent 4 below Shri C. P. Singh (Respondent
5(1) and Shri E. Rehman (Respondent 6(1) and above the
applicants, in the cadre of Bihar Superior Judicial Service
was illegal and ultra vires. They prayed for a writ of
mandamus, direction or order quashing the same and directing
the State Government to revise the applicant’s seniority
vis-a-vis the opposite parties, (Respondents 4, 5 and 6
herein(1).,
The applicants also challenged the upgrading of the
posts of Deputy Registrar, Patna High Court and the
Secretary, Bihar Legislative Assembly with effect from June
17, 1959 till the posts were held by Respondents 5 and 6,
respectively.
A Full Bench of the High Court partly allowed the writ
application and quashed the order of the State Government
placing Respondent 4 below Respondents S and 6 in seniority.
The material facts were these:
Respondents 4, 5 and 6 were appointed as Munsifs on the
same date under one notification. On April 25, 1959, these
three officers were holding the posts of Subordinate Judges.
Prior to that date, four posts of Additional District and
Sessions Judges fell vacant. On April 25, 1959, the High
Court, after considering the service records of the
Subordinate Judges due for promotion, recommended
Respondents 4, 5 and 6 and Shri Sharda Prasad for promotion
as Additional District & Sessions Judges in those vacancies.
Respondents 5 and 6 on that date were acting as Deputy
Registrar, Patna High Court and Secretary, Bihar Legislative
Assembly, respectively, and since the release of Respondent
5 from that post was not in public interest, the High Court
recommended temporary upgrading of that post. It further
recommended
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that Respondent 6 should act as Additional District and
Sessions Judge in the second longer vacancy and in case the
State Government did not think it proper to relieve him, the
post of Secretary, Bihar Legislative Assembly should be
upgraded. Respondent 4 was recommended to be promoted as
Additional District & Sessions Judge in the third longer
vacancy. He joined in the promoted rank on June 17, 1959 and
continued in it till October 1, 1959. Before the actual
officiation by Respondent 4 in the promoted rank, the
Government by its letter, dated August 5,-1959, had approved
the creation of two posts of Additional District and
Sessions Judges for a period of one year in the first
instance, consequent on the amendment of Bengal, Agra and
Assam Civil Court Act, 1887.
On May 22, 1959, the Government sanctioned the creation
of two posts of Peripatetic District & Sessions Judges for a
period of two years. Thus, between April 25, 1959 and June
17, 1959 four extra posts of Additional District & Sessions
Judges were created, and were available for the persons
found fit and due for promotion from the cadre of
Subordinate Judges. On August 17, 1959, the High Court
recommended Sarvshri A. N. Sahay, R. B. P. Sinha, C. P.
Singh (Respondent 5(1) and E. Rahman (Respondent 6(1) for
promotion as Additional District and Sessions Judges. It,
however, made it clear that since Respondents 5 and 6 could
not be relieved from the posts of Deputy Registrar, High
Court and Secretary, Legislative Assembly, they should
continue in these posts after the same had been upgraded.
The High Court further recommended that in view of the heavy
arrears two more posts of Additional District and Sessions
Judges be created for the period for which Respondents 5 and
6 were to continue on the posts they were then holding.
Ten more posts of Additional District & Sessions Judges
fell vacant between November 1, 1959 and April 6, 1960.
Thus, there were, in all, fourteen vacancies id the posts of
Additional District and Sessions Judges, to one of which
Respondent 4 could and should have been ap pointed, if there
was no administrative or procedural delay attributable to
his fault. Respondents 1, 2 and 3 were appointed as
Additional District and Sessions Judges by a Government
notification, dated April 21, 1960. Despite the availability
of a post and suitability of Respondent 4 to be appointed as
Additional District & Sessions Judge, he was promoted to
that post on September 19, 1960. Respondent 4 made a
representation dated April 10, 1961, to the State Government
praying for fixation of his seniority just below Shri E.
Rehman in the cadre of Additional District and Sessions
Judges. He followed it up by supplementary representations
in the same connection. These representations remained
pending on the administrative side of the High Court. By a
letter dated August 20, 1964, the High Court recommended the
rejection of his representations. The Government, however,
was of the opinion that there was substance in the
representation of Respondent 4. It therefore made a back
reference on August S, 1965 to the High Court for
reconsideration of the matter. The High Court, however,
informed the Government that it did not see any reasons to
reconsider the matter. Thereafter the Government took a
decision and allowing the representation of Respondent 4,
ordered that he should be deemed to
113
have been officiating as Additional District and Sessions
Judge with effect from November 1, 1959 and for purposes of
seniority, should rank immediately below Respondents 5 and 6
in the cadre of the Superior Judicial Service. The
Government was of opinion that on a proper interpretation of
Rule 16(e) of the Bihar Superior Judicial Service Rules, it
was authorised to fix the seniority from a date from which
officiation was possible on account of availability of
vacancy. On being satisfied that the delay between October
1, 1959 and September 19, 1960, in the promotion and
appointment of Respondent 4 to the post of Additional
District and Sessions Judge, when several posts in that
cadre were vacant, was wholly an administrative and
procedural delay the State Government in order to relieve
undue hardship to Respondent 4, relaxed Rule 16(e) of the
Service Rules and passed the impugned order which it
communicated to the High Court by a letter dated January 24,
1968, which reads as follows:
“I am directed to refer to your letter No. 501
dated 18-1 66 on the subject noted above and to say
that after a careful consideration of the case of Shri
Jitendra Narain at present District and Sessions Judge
of Dhanbad, the State Government have been pleased to
decide that Shri Narain shall rank immediately below
Shri Enayetur Rahman and above Sarvashri Madan Mohan
Pd., Rameshwar Pd. Sinha and Chandra Shekhar Prasad
Singh, the direct recruits from the Bar in the cadre of
the Superior Judicial Service, and for this limited
purpose, he will be deemed to have been officiating as
Additional District and Sessions Judge with effect from
1st November 1959″.
Thus, the question before the High Court was one of
fixation of the seniority of the writ-applicants, the three
direct recruits, vis-a-vis Respondent 4. In this context,
the interpretation of Rule 16(e) of the State’s Superior
Judicial Service Rules came up for consideration. This Rule
provides:
“Seniority of direct recruit vis-a-vis promoted
officer shall be determined with reference to the dates
from which they F may have been allowed to officiate
continuously, in posts in the cadre of the service or
in posts outside the cadre on identical time-scale of
pay and of equal status and responsibility or in posts
of higher scale of pay and of higher responsibility in
or outside the cadre.”
There, as here, it was contended that the meaning of
the expression “may have been allowed to officiate
continuously” occurring in the above quoted clause is that a
notional, continuous officiation in a post in the cadre of
the Service or outside it, will give preference to the
promoted officer in the matter of seniority over the direct
recruit provided there were vacancies in one of which he
could or might have been allowed to officiate continuously.
The High Court rejected this contention and held that this
expression means actual and continuous officiation and not a
fictional or notional one. The High Court, however, went
further and said that the power to determine seniority being
a matter of control exclusively vests in the High Court
114
under Article 235 of the Constitution. If further held that
the Government could not fix the seniority of Respondent 4,
as they had done by taking recourse to the “hardship rule”
framed by them under the proviso to Article 309 of the
Constitution. According to it, what the Government could not
do directly, could not be indirectly done by it by relaxing
the requirement of Rule 16(e).
Shri Madan Mohan Prasad (Respondent No. 1 in the
original petition(1) has since been appointed to the Bench
of the High Court. Consequently, he has withdrawn his appeal
(Civil Appeal No. 1928 of 1970(1) which stands dismissed as
such with no order as to costs.
We are told that Sarvashri Rameshwar Prasad Singh
(Respondent 2(1), Jitendra Narain (Respondent 4(1) and
Chandrika Prasad Sinha (Respondent 5(1) have also been
appointed to the Bench of the High Court, and that
Respondents 3 and 6 have since retired from service as
District and Sessions Judges. The matter has thus been
rendered academic, except, as the Solicitor-General says,
for the limited purpose of fixing pension and gratuity on
the basis of the length of service in the cadre of Superior
Judicial Service.
Before dealing with the contentions canvassed, it will
be appropriate to notice the relevant provisions of the
Bihar Superior Judicial Service Rules, 1951. Rule 6 says
that of the posts in the cadre of the service, two-thirds
shall be filled by promotion and one-third by direct
recruitment. Then there is a proviso which gives the State
Government power to deviate from this proportion after
consultation with the High Court. Rule 15 deals with
confirmation. It says:
“15(1)(a). A member of the Service appointed under
clause (a) of rule S shall be on probation for a period
of one year and shall not be confirmed unless he is
found to be suitable in every respect for appointment
to the Service:
Provided that the period of probation may be
extended by the State Government, in consultation with
the High Court.
(b) When such a member is confirmed in the Service
the period spent on probation shall be counted towards
leave, pension or increments in the relevant time-
scale.
(2) Promoted officers appointed against
substantive vacancies in the cadre shall forthwith be
confirmed in the Service.”
Then comes Rule 16 which regulates the inter-se
seniority. It provides:
“16(a). Seniority inter se of direct recruits
shall be determined in accordance with the date of
their substantive appointments to the Service:
Provided that a direct recruit appointed to the
post of an Additional District Judge shall be junior to
a direct recruit appointed to any other post in the
schedule.
115
(b) Seniority inter se of promoted officers shall
also be determined in accordance with the dates of
their substantive appointments to the Service.
(c) When more than one direct recruit is appointed
at one time, the seniority inter se will be determined
in accordance with the order given in the notification
making their appointments. B
(d) When more than one appointment is made by
promotion at one time, the seniority inter se of the
officers promoted shall be in accordance with their
respective seniority in the Bihar Civil Service
(Judicial Branch(1).
(e)…… …… …. .”
There is a Note appended to this rule which clarifies
that a period of leave or the annual vacation of the Civil
Courts will not be treated as an interruption for the
purposes of this sub-rule.
It will be seen that these rules are silent as to
whether any question in regard to inter se seniority of the
promoted officers and the direct recruits is to be
determined by the High Court or the State Government in
consultation with the High Court.
Mr. Lal Narain Sinha, Solicitor General contends that
this question is concluded by the decision of this Court in
Chandramouleshwar Prasad v. Patna High Court and ors.(1). It
is therefore proposed to notice that case in some detail.
There, the petitioner as well as respondents 3 to 5
belonged to the Judicial Service of Bihar. They had joined
service as Munsiffs. In due course, they were promoted as
Subordinate Judges. In 1962, the question of promoting them
as Additional District and Sessions Judges was considered by
the High Court and the Government. The High Court wanted
respondents 3 and 4 to function as Additional District and
Sessions Judges ahead of the petitioner and its
recommendation in that behalf was accepted by the
Government. Due to certain circumstances, the petitioner
started acting as such earlier than respondents 3 to 5. The
Bihar Civil List published in March 1968 showed the
petitioner as No. 10 and respondents 3 to S as Nos. 12 to 14
in the cadre. Respondents made a representation to the High
Court for correction of the gradation list. The High Court
accepted their representation in September 1968. In the same
month the District and Sessions Judge at Bihar retired and
respondent No. 3 who was the 3rd Additional District and
Sessions Judge was asked by the High Court to officiate in
the vacancy. The petitioner who was also working as 1st
Additional District and Sessions Judge in the same place
considered this to be a supersession and memorialised the
Government. The latter took action on October 17, 1968
appointing the petitioner as officiating District and
Sessions Judge. Thereupon the High Court transferred the
petitioner to another District on October 25, 1968. The
petitioner moved this Court under Art. 32 challenging the
validity of the order of the High Court transferring him
from Errah and posting him as Additional District and
Sessions Judge at Singhbhum and the direction
(1) [1970] 2 S.C.R. 666.
116
or the order of the High Court dated September 23, 1962
declaring respondents 3 to S as senior to him in the
gradation list of Additional District and Sessions Judges
maintained by the High Court. He further prayed that the
High Court be directed to allow him to take over charge as
officiating District and Sessions Judge at Errah in terms of
the Government’s notification dated October 17, 1958. The
main ground on which he challenged the direction or order of
September 23, 1968 relating to his position in the gradation
list was that it was Q in contravention of r.16(b) and
r.16(d) of the Bihar Superior Judicial Service Rules, 1951.
He took his stand on the notification dated October 17, 1968
of the Government purporting to appoint him temporarily as
District and Sessions Judge, Errah.
On the question of fixing of seniority, this Court
speaking through Mitter J. said:
“The position of a person in a Civil List gives no
indication of his intrinsic quality as an officer. The
list merely shows the length of service of the officers
according to the dates of their appointment, their
posting at the time when the list is published and
their designation and scale of pay at that time. The
gradation lsit of the High Court has no legal basis and
its preparation is not sanctioned by the Bihar Superior
Judicial Service Rules. The seniority inter se of the
petitioner and the three respondents will have to be
deter mined when the question of their confirmation
comes up for consideration
We only hope that there will be no such
misunderstanding between the High Court and the
Secretariat in the future and if there ever be any
difference of opinion attempts will be made to resolve
them by mutual deliberation without one or the other
making an order or giving a direction contrary to the
views of the other before deliberation.”
In the result this Court held:
“that the Government notification of October 17 1968
was not in terms of Art. 233 of the Constitution and
consequently the question of quashing the High Court’s
order dated October 25, 1968 does not arise. We also
hold that the Gradation List of Additional District r
and Sessions Judges prepared by the High Court has no
legal sanction and that the seniority of the petitioner
and respondents 3 to S can only be determined in the
superior Judicial Service where they are now all
holding officiating posts when the occasion arises.”
It is to be noted that in Chandramouleshwar (supra),
this Court was concerned only with cls.(b) and (d) of r.16,
while in the present case, we are concerned with fixation of
inter se seniority of promoted officers vis-a-vis the direct
recruits which matter is governed by cl.(e) of me said rule.
It will be seen from what has been extracted above that in
Chandramouleshwar, even while construing cls.(b) and (d),
this Court did not say in express terms that the gradation
list prepared by the High Court was invalid because under
the concerned rules, the
117
High Court had no power to determine inter se seniority of
the promoted officers or that the determination of such
seniority was a matter for the State Government. All that
was held was that the question of determining inter se
seniority in terms of cls.(b) and (d) of r. 16 does not
arise before their confirmation comes up for consideration.
In other words, the question of determining inter se
seniority of the promoted officers could not be determined
apart from and prior to their confirmation in the Service.
Since the Civil List prepared by the High Court had not been
drawn up in accordance with the aforesaid rule, it had “no
legal basis”. Thus, Chandramouleshwar seems to lay down that
the question of determining inter se seniority of promoted
officers is intertwined with the question of their
confirmation in the Service. According to cl. (a) of r. 16,
inter se seniority of direct recruits is also to be
determined in accordance with the dates of their
confirmation in the Service. In this case, however, we arc
concerned with fixation of the seniority of-direct recruits
vis-a-vis promoted officers. The relevant clause for this
purpose is cl.(e) of r.16. The governing criterion,
according to this clause, is “the date from which they may
have been allowed to officiate continuously in posts in the
cadre of the Service or in posts outside the cadre on
identical time-scale of pay and of equal status and
responsibility or in posts of higher scale of pay and of
higher responsibility.” D
Reading clause (e) together with cls. (a) and (b) of r.
16, it is clear that before fixing the seniority of direct
recruits vis-a-vis promoted officers, it will be necessary
as a preliminary step, to prepare two separate seniority
lists, one of direct recruits under cl. (a) and the other of
promoted officers under cl. (b) of r. 16, in the
chronological order of their confirmation.
This Court has recently held in The High Court of
Punjab and Haryana etc. v. The State of Haryana and ors.)
that the power of confirmation of District Judges is a part
of the power of control vested in the High Court under Art.
235 of the Constitution. Since the Bihar Superior Judicial
Service Rules, make the chronological order of confirmation
an integral part of the process of fixation of the order of
p seniority in the Service, the inference is that both these
powers were intended to be exercised by one and the same
authority. Since Article 235 of the Constitution vests the
power of confirmation in the High Court, it stands to reason
that the power of determining the seniority in the Service
is also with the High Court of course, in determining the
seniority the High Court is bound to act in accordance with
the Rules validly made by the Governor under the Proviso to
Art. 309 of the Constitution.
Be that as it may, it is not necessary to pursue the
discussion further. Appointment of three of respondents to
the Bench of the High Court and retirement of two others has
rendered the matter largely, if not entirely, academic.
We further agree with the High Court that the words
“may have been allowed to officiate continuously” in cl.(e)
of r.16 mean actual
(1) A.I.R. 1975 S.C. 613.
118
and continuous officiation and not a fortuitous or fictional
officiation. A A notional construction of the clause would
lead to anomalous results. The State Government therefore,
could not on an interpretation of r.16(e) says that for the
limited purpose of seniority respondent 4 would rank below
respondents 2 and 3 but above the writ petitioners and will
be deemed to have been officiating as Additional District
and Sessions Judges with effect from November 1, 1969. Such
a deeming officiation, as rightly held by the High Court,
for the purpose of determination of seniority on a
construction of cl.(e) was not permissible.
For the foregoing reasons, the appeal fails and is
dismissed without any order as to costs.
P.B.R. Appeal dismissed.
119