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 19681
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 51 and Shri E Rehman Respondent 61 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 herein1
 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 112 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 51 and E Rahman Respondent 61 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 16e 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 16e 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 16e 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 16e
Shri Madan Mohan Prasad Respondent No 1 in the original petition1 has since been appointed to the Bench of the High Court
Consequently he has withdrawn his appeal Civil Appeal No 1928 of 19701 which stands dismissed as such with no order as to costs
We are told that Sarvashri Rameshwar Prasad Singh Respondent 21 Jitendra Narain Respondent 41 and Chandrika Prasad Sinha Respondent 51 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 151a
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 16a
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 Branch1
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 vs Patna High Court and ors1
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 article 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  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 r16b and r16d 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 article 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 clsb and d of r16 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 cle of me said rule
It will be seen from what has been extracted above that in Chandramouleshwar even while construing clsb 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 clsb 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 cle of r16
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
vs 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 article 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 article 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 cle of r16 mean actual 1  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 r16e 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 cle was not permissible
For the foregoing reasons the appeal fails and is dismissed without any order as to costs
PBR Appeal dismissed


Summary:
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 16e 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 recruits1 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 16e 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 1a 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 16e 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 31 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 111 2 The power of confirmation of District Judges is a part of the power of control vested in the High Court under article 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 article 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 article 309 of the Constitution
117 E G Chandramouleshwar Prasad vs Patna High Court and others   followed
High Court of Punjab and Haryana etc
vs The State of Haryana and others   distinguished