Case: State of Bihar Vs. Madan Mohan Prasad and Others

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 considerationWe 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."14. 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 Courts 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."15. 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 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." DReading 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.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) 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.17. 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.18. 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 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 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 seniorityis 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 identicalof pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility." DReading clause (e) together with cls. (a) and (b) of r. 16, it is clear that before fixing the seniority of direct recruitspromoted 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.16. This Court has recently held in The High Court of Punjab and Haryana etc. v. The State of Haryana and ors. (A.I.R. 1975 S.C. 613.) 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.17. 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.18. 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 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.