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

4. 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 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) f or 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.5. 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 appointed, 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 t hat 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 have been officiating as Additional District and Sessions Judge wit h 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, 196 0, 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 t o refer to your letter No. 501 dated66 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".6. Thus, the question before the High Court was one of fixation of the seniority of thethe three direct recruits,Respondent 4. In this context, the interpretation of Rule 16(e) of the States Superior Judicial Service Rules came up for consideration. This Rule provides:"Seniority of direct recruitpromoted 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 identicalof pay and of equal status and responsibility or in posts of higher scale of pay and of higher responsibility in or outside the cadre.Thus, the question before the High Court was one of fixation of the seniority of thethe three direct recruits,Respondent 4. In this context, the interpretation of Rule 16(e) of the States Superior Judicial Service Rules came up for consideration. This Rule provides:"Seniority of direct recruitpromoted 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 identicalof 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 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.

Reasoning: 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.