Civil Appeal No 1134 of 1974
From the Judgment and Order dated 2 8 1973 of the Gujarat High Court in LPA No 25571
Appellant in person
L J Nain and Miss A Subhashini for the Respondents
The Judgment of the Court was delivered by KOSHAL J
This appeal by certificate granted under Article 1331c of the Constitution of India by the High Court of Gujarat is directed against its judgment dated 2 8 1973 and the sole point requiring decision therein is as to whether an order passed by the President of India under sub section 1 of section 29 of The Bombay Reorganization Act 1960 hereinafter referred to as the Act and determining that the appellant shall on the 1st day of May 1960 cease to be a Judge of the High Court of Bombay and become a Judge of the High Court of Gujarat is to be regarded as an order of transfer under article 2221 of the Constitution
The appellant was appointed an Additional Judge of the High Court of Bombay on June 29 1959
After the Act came into force the President of India passed the said order hereinafter referred to as the impugned order under section 291 of the Act in respect of the appellant who was still an Additional Judge of the High Court of Bombay and 4 other Judges of that Court so that with effect from the 1st of May 1960 the appellant became an Additional Judge of the High Court of Gujarat
Claiming that the impugned order amounts to an order of transfer within the meaning of article 2221 of the Constitution the appellant brought a petition under article 226 thereof with the prayer that the Governments of the Union of India and the State of Gujarat be directed to pay him an allowance to which according to him he had become entitled under article 2222 of the Constitution with effect from October 1963
Another prayer was also made in the petition but therewith we are no longer concerned as the same was withdrawn at a later stage
In order to appreciate the contention raised by the appellant before a learned Single Judge of the Gujarat High Court and again in the Letters Patent Appeal before the Division Bench which passed 615 the judgment now under appeal it is necessary to set out the provisions of clause 1 of article 217 and those of article 222 of the Constitution 2171 Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India the Governor of the State and in the case of appointment of a Judge other than the Chief Justice the Chief Justice of the High Court and shall hold office in the case of an additional or acting Judge as provided in article 224 and in any other case until he attains the age of sixty two years Provided that a a Judge may by writing under his hand addressed to the President resign his office b a Judge may be removed from his office by the President in the manner provided in clause 4 of article 124 for the removal of a Judge of the Supreme Court c the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India 2221 The President may after consultation with the Chief Justice of India transfer a Judge from one High Court to any other High Court 2 When a Judge has been or is so transferred he shall during the period he serves after the commencement of the Constitution Fifteenth Amendment Act 1963 as a Judge of the other High Court be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and until so determined such compensatory allowance as the President may by order fix
 According to the appellant s contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 2171c and the impugned order which was an order flowing from that source of power therefore amounted to an order of transfer even though it was passed under section 291 of the Act which runs thus 1
Such of the Judges of the High Court of Bombay holding office immediately before the appointed day as may be determined by President shall on that day cease to be Judges of the High Court at Bombay and become Judges of the High Court of Gujarat
 616 The High Court noted that the Act was passed in pursuance of the powers vested in Parliament under articles 3 and 4 of the Constitution
Article 3 provides inter alia for the formation of new States
Under clause a thereof Parliament may by law form a new State by separation of territory from any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a part of any State
Under article 41 any law referred to in article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of such law and may also contain such supplemental incidental and consequential provisions including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law as Parliament may deem necessary
Under clause 2 of article 4 no such law shall be deemed to be an amendment of the Constitution for the purposes of article 368
The learned Single Judge held that an order under section 29 of the Act was an order of allocation of Judges of the High Court of Bombay to the two new High Courts and that such allocation did not amount to a transfer within the meaning of article 2171c or 2221 of the Constitution
It was in that view of the matter that he dismissed the petition presented by the appellant
In Letters Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an order of transfer the transfer effected by it was of a type entirely different from that contemplated by article 2221
In effect however the reasons for dismissal of the appeal were the same as those for which the petition could not succeed before the learned Single Judge
According to the Division Bench the transfer envisaged by article 222 was a transfer in a situation when a Judge of a High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court in consequence while section 29 of the Act was part of the provisions which were supplemental incidental or consequential to the formation of the State of Gujarat
It was also argued before the Division Bench that the Government of Gujarat itself had during the course of its correspondence with the appellant treated his appointment to the High Court of Gujarat as a transfer from the High Court of Bombay a fact which was not denied but which the High Court held had no bearing on the matter in dispute as there was no plea of estoppel raised in the petition presented by the appellant
After hearing the appellant in person and learned counsel for the respondents we find no substance in the appeal and broadly 617 speaking our reasons for so holding coincide with those given by the learned Single Judge and the Division Bench of the High Court Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and the establishment of a High Court for it
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were so to say allotted to the High Court of Gujarat and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer we do not think that they can be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 2221 of the Constitution
The entitlement to compensatory allowance under article 2222 is conditional upon the Judge being so transferred that is transferred as envisaged by article 2221
Since the appellant was allotted to the Gujarat High Court on the setting up of that Court he will not be entitled to claim the compensatory allowance
In the result the appeal fails and is dismissed but there will be no order as to costs
PBR Appeal dismissed


Summary:
Exercising power under section 291 of the Bombay Reorganisation Act the President had determined that the appellant who then was an additional Judge of the Bombay High Court should cease to be a Judge of that High Court and become a Judge of the newly formed High Court of Gujarat
In his petition under article 226 of the Constitution the appellant claimed that the source of power to transfer a Judge from one High Court to another being in article 222 read with article 2171 c of the Constitution the impugned order though purporting to have been passed under section 291 of the Bombay Reorganisation Act amounted to an order of transfer of a Judge and therefore he was entitled to the compensatory allowance contemplated by article 2222
A single Judge of the High Court held that the order passed under section 29 was an order of allocation of Judges of the erstwhile High Court of Bombay to the two new High Courts and that such allocation did not amount to transfer
On appeal a Division Bench held that the transfer envisaged by article 222 was a transfer in a situation when a Judge of one High Court was sent to another existing High Court for reasons which had nothing to do with the bifurcation or reorganisation of a State and the setting up of a new High Court while section 29 was part of the provisions which were supplemental incidental or consequential to the formation of the State of Gujarat
Dismissing the appeal  HELD The entitlement to compensatory allowance under article 2222 is conditional upon the Judge being so transferred that is transferred as envisaged by article 2221
Since the appellant was allotted to the Gujarat High Court on the setting up of that Court he was not entitled to claim the compensatory allowance
617 D Articles 3 and 4 of the Constitution deal with a special situation and so long as a provision of law promulgated by Parliament can be considered as supplemental incidental or consequential to the formation of a new State it would be enforceable even though it might amount to an amendment of certain provisions of the Constitution
The provision contained in section 29 of the Act is clearly consequential to the formation of the State of Gujarat and establishment of a High Court for it
It was for the purpose of setting up that High Court that Judges then serving in the Bombay High Court were so 614 to say allotted to the High Court of Gujarat and although their appointment to the Gujarat High Court may partake of some of the characteristics of a transfer they cannot be said to have been transferred from the Bombay High Court to the Gujarat High Court within the meaning of article 2221 of the Constitution
617 A C