Case: The High Court, Calcutta Vs. Amal Kumar Roy

2. In order to bring out the points in controversy, it is necessary to state the following facts. The plaintiff, who is now functioning as an Additional District and Sessions Judge, was, at the date of the suit filed on September 4, 1958, a member of the West Bengal Civil Service (Judicial). He joined the service on April 1, 1937, as a Munsif, and was duly confirmed on April 1, 1939. In the West Bengal Civil List, corrected up to January 1, 1954, his name appeared against serial No. 53, in the list of Munsifs, Just above him against serial No. 52 was Shri Bibhutosh Banerjee, and the name of Shri Jagadindranath Hore (Respondent No. 2) appeared against serial No. 54. In course of time all Munsifs down to serial No. 52 - Shri Bibhutosh Banerjee in the Civil List aforesaid were appointed to the posts of subordinate judges, according to their seniority indicated in that list. In February 1955, the plaintiff was at the head of the list of Munsifs. In April 1955, the plaintiff noticed that the second respondent aforesaid had been appointed a Subordinate Judge, and the notification of his appointment appeared in the Calcutta Gazette dated April 28,1955, although the plaintiff had not received any order of appointment as a Subordinate Judge. On representation being made by the plaintiff to the High Court, he was informed by the Registrar of the Court that the Court decided to consider his case again in December 1955". In the meantime, several other Munsifs, whose names appeared below that of the plaintiff in the Civil List, were appointed as Subordinate Judges, one after another. The plaintiff then addressed a petition of appeal against the action of the High Court in not appointing him as a Subordinate Judge, to the Governor of the State of West Bengal. That appeal was withheld by the High Court with the remarks "that the action complained of not being disciplinary action, no such appeal lies." The plaintiff thereupon addressed a petition to the Governor, praying that the said petition of appeal withheld by the High Court, as aforesaid, be called for. This petition was also withheld by the High Court with the remarks that in theopinion no such petition lay. In April 1956, the plaintiff was appointed to act as an Additional Subordinate Judge, by art order of the High Court. In the meantime, eight Munsifs, who occupied lower places in the Civil List (impleaded as pro forma defendants in the suit) had been appointed and posted as Subordinate Judges, one after another in succession, in the order in which their names appealed in the Civil List. In May 1956, type plaintiff addressed a memorial to the Governor of West Bengal. This memorial was also withheld by the High Court on the ground that no such memorial lay. The plaintiff had sent a copy of the memorial to the Secretary to the Government of West Bengal (Judicial Department) He was informed by the Department that the Governor had declined to interfere. Thereupon the plaintiff instituted the suit, originally against the State of West Bengal, as the principal defendant, and the eight Munsifs, who had been appointed Subordinate Judges in preference to the plaintiff, as pro forma defendants. But subsequently, on the plea of defect of parties, raised in the written statement, of the State of West Bengal, the High Court of Calcutta, and the sitting Judges, were added as defendants 1 (a) to 1(x), in the category of principal defendants. The cause of action alleged in the plaint was that the High Court had never declared the plaintiff as unfit to act as a Subordinate Judge; it had never called upon the plaintiff to show cause, under Art, 311 (2) of the Constitution, or R. 55-A of the Civil Services (Classification, Control  and Appeal) Rules, as to why his promotion should not be withheld. As a matter of fact, the High Court never declared, in terms, that it was going to withhold the plaintiffs appointment as a Subordinate Judge. On the contrary, the plaintiff was vested with special powers two months before April 1955, when the order complained of was passed by the High Court, conferring upon him pecuniary jurisdiction to try suits of the value upto Rs. 3500/-, and small cause court suits up to the value of Rs. 300/-powers which ordinarily are conferred by way of steppingstones to subordinate judgeship. The plaintiff was also allowed to cross the efficiency bar at the higher level on due date, namely April 1956, and was recommended for appointment as an Assistant Sessions Judge, soon after he was posted as a Subordinate Judge. The plaintiff also made a point of the fact that though the High Court expressly declared that its action in not appointing him a Subordinate Judge in the ordinary course was not by way of disciplinary action, or of imposing a penalty; within the meaning of cl. (ii) of R. 49 of the Civil Services (Classification, Control and Appeal) Rules, the High Court actually withheld the plaintiffs promotion as Subordinate Judge, withheld his petition of appeal to the Governor and did not consult the West Bengal State Public Service Commissioner. The plaint also added that the Munsifs and Subordinate Judges belong to one and the same service, namely, the West Bengal Civil Service (Judicial), and that a member of the service is entitled to be considered for promotion according to seniority, to the West Bengal Higher Judicial Service. In the premises, the plaintiff prayed that "a declaration be made that he occupies the same position with the same privileges and benefits, as if he had been appointed as a Subordinate Judge immediately before the second respondent," and that "his name be inserted in the West Bengal Civil List and in any other relevant gradation list maintained as a, Subordinate Judge immediately below that of Shri Bibhutosh Banerjee and immediately above that of Shri Jagadindra Nath Hore." Arrears of salary as Subordinate Judge, together with dearness allowance, with interest at 6% per annum, amounting to Rs. 1,060/were also claimed, and a permanent injunction was also prayed for directing the principal defendants to place the plaintiffs name in the Civil List, in terms of the declaration sought, besides other reliefs, not necessary to be mentioned here. The suit was contested mainly by the added defendants, as the first defendant, the State of West Bengal, disclaimed any knowledge of the action taken by the High Court, or the reasons thereof, though it denied that the plaintiff had a cause of action, or that he was entitled to any relief. The substantial defence to the suit raised by the High Court was that in December 1954, the High Court considered the question of inclusion of names of certain Munsifs in the panel of officers to officiate as Subordinate Judges; the plaintiffs name was excluded from that panel, and it was decided that the High Court would consider his case a year later, after a special report from the District Judge concerned; and that the plaintiff was not thought fit, at that time, to act as a Subordinate Judge, on the question of plaintiffs fitness as a judicial officer, the High Court made reference to the plaintiff having issued an injunction in his own favour, in a case in which he himself was the plaintiff. That order of injunction was judicially considered, on appeal, and set aside. The matter came up before a Full Court of the High Court for consideration administratively, as a result of which a Committee of three Judges of the High Court was appointed to consider the plaintiffs conduct. After considering the plaintiffs explanation, the High Court came to the conclusion that his explanation was unsatisfactory, and that his conduct showed a total disregard of all judicial propriety. It was denied that the plaintiffs case came within the scope and ambit of Art. 311(2) of the Constitution, or R. 55-A of the Civil Services (Classification, Control and Appeal) Rules. It was claimed on behalf of the High Court that under the Constitution and otherwise the High Court was the sole administrative authority to determine questions of promotion of Munsifs to Subordinate judges grade; in exercise of that sole authority and discretion, the High Court considered the plaintiffs case for promotion as Subordinate Judge, and passed orders on a proper appreciation of the plaintiffs record of service, and in the best interests of the judicial administration of the state, it was also denied that the plaintiffs case should have been referred to the State public Service Commission. It was affirmed that the suit, as framed, claiming the reliefs aforesaid was not maintainable. The High Court relied upon the provisions of Art. 235 of the Constitution, as vesting complete control, authority, jurisdiction and discretion to consider and decide the question of fitness of a Munsif to be promoted as a Subordinate Judge, and its order in not promoting the plaintiff, after a proper consideration of his record of service, was neither a disciplinary action nor an imposition of a penalty, which would bring his case within the purview of the State Public Service Commission, and the plaintiff had no right of appeal against the order of the High Court, complained of, as it was not governed by the Civil Services (Classification, Control and Appeal) Rules, relied upon by the plaintiff. In the premises, it was contended that the Court had no jurisdiction to entertain the suit or to grant any of the reliefs claimed by the plaintiff.3. On those pleadings, and after recording the plaintiffs evidence and considering the documentary evidence adduced by the parties, the learned Judge below, of the City Court, observed at the outset that at the trial, the learned counsel for the plaintiff did not rely upon the provisions of Art. 311(2) of the Constitution, though reference to it had been made in the plaint. He relied upon the provisions of Art. 235 of the Constitution, read with Rr. 49, 55-A and 56 of the Civil Services (Classification, Control and Appeal) Rules, and came to the conclusion "that the High Court intentionally deferred consideration of the plaintiffs promotion with a view to penalising him for his conduct in the past...and that the plaintiff was entitled to bring the suit inasmuch as the High Court was not authorised, under Art. 235 of the Constitution, to withhold the plaintiffs promotion as Subordinate Judge, without complying with the requirements of the Rules aforesaid. In the result, the suit was decreed, with costs, giving the declaration sought for, as also a money decree for Rs. 1,060/-, as arrears of salary and dearness allowance. The judgment and decree of the Civil Court dated February 17, 1960. On Appeal 12, 1960 application for special leave to appeal to this Court. directly from type judgment and decree aforesaid was made, and the special leave was granted by this Court on April 26, 1960.

Reasoning:
he answer to this question must depend upon the answer to the questions whether the plaintiff had a right to promotion, which right had been withheld from him, thus giving him a cause of action. Was the plaintiff subjected to a penalty, without taking the necessary proceedings, as contemplated by Art. 311(2) of the Constitution, or the Service Rules ? Was there any breach of procedure, laid down by law, in determining the plaintiffs right, if any? Was the action of the High Court postponing by a year the consideration of the plaintiffs promotion as Subordinate Judge without jurisdiction? Was there any delegation of powers under Art. 235 of the Constitution to the English Committee as contended by the plaintiff-respondent? Was there a breach of the provisions of Art. 320 (3)(c) of the Constitution? Was the plaintiff reduced in rank" within the meaning of Art. 311(2) of the Constitution ? These are matters which are interconnected and will, therefore, have to be considered together. The question whether the plaintiff had a right to promotion has to be determined with reference to the provisions of the Bengal, Agra and Assam Civil Courts Act (XII of 1887)- which may for the sake of brevity be called the Civil Courts Act-along with the Civil Service Ruled governing the judicial branch of type Provincial Civil Service of West Bengal. The Civil Courts Act consolidated the law relating to Civil Courts in Bengal, and other parts of India. By S. 3, it prescribed four classes of Civil Courts, namely, (1) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the Subordinate Judge; and (4) the Court of the Munsif. By S. 21 of the Act, appeals from a Munsif shall lie to the District Judged who may assign the appeal to be heard by a Subordinate Judge. Hence, in the hierarchy of the Courts in the district, the Court of a Subordinate Judge is higher in rank than the Court of a Munsif which stands at the bottom. But the Civil Courts Act does not make any provision about promotion from the rank of a Munsif to that of a Subordinate Judge, or the machinery or the process by which a Munsif may become a Subordinate Judge. Under S. 255 of Government of India Act, 1935, the Governor of a Province, after consultation with the Provincial Public Service Commission, and with the High Court concerned, was authorised to make rules for recruitment to the Subordinate Civil Judicial Service, which expression meant civil judicial posts inferior to the post of a District Judge. By sub-sec. (8) of that section, the High Court was vested with the power of posting, promotion, etc. of persons belonging to the service, subject to the conditions of service, laid down by the Governor. After the inauguration of the Constitution, Art. 235 vests the control over District Courts, and Courts subordinate thereto, including the posting and promotion of persons belonging to the judicial Service of a State, holding any post inferior to that of the District Judge, in the High Court. This power of the High Court is subject to any right of appeal, which a member of the service may have under the law regulating the conditions of his service, and to his other rights under that law. It is, therefore, clear that after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial Service, holding any post inferior to that of a District Judge. It is not contended by the plaintiff- respondent that there is any other authority which could have dealt with him in the matter of promotion from the post of a Munsif to that of a Subordinate Judge. But it was contended that the authority of the High Court, derived as it is solely from Art. 235, is subject to the service rules governing the matter. Even so it was not claimed that there is anything in the rules, which categorically confers a right on the plaintiff to be promoted as a Subordinate Judge: What is claimed by the plaintiff is that R. 49(2) of the Civil Services (Classification, Control and Appeal) Rules embodied his right in a negative way, namely, that he shall not be withheld promotion except by recourse to proceedings contemplated by that rule, and the rules following that rule. In other words, the plaintiff is not claiming an absolute right to promotion irrespective of the question whether or not there is a vacancy in the higher cadre or that he must be promoted when he becomes the senior most Munsif. He claims that, under the Rules aforesaid, it there is a vacancy in the cadre of Subordinate Judges, he should have been appointed in that vacancy of a subordinate Judge, as he was the senior most Munsif and that if a Munsif lower to him in the seniority list is appointed as a Subordinate judge in that vacancy without good or sufficient reasons being shown, and without giving him the right of appeal, then his right is infringed, and in that sense he claims that he has a right not to be withheld promotion from him, and that in the events that have happened, his supersession by a Munsif junior to him in the Civil List amounted to withholding promotion from him within the meaning of R. 49. That rule lays down several categories of penalties, which may for good and sufficient reasons be imposed upon a member of the service. One of those penalties is "withholding of increments or promotion, including stoppage at an efficiency bar and R. 55-A lays down that a penalty like that of withholding promotion, as also some other penalties not relevant to our present purpose, shall not be imposed upon a member of the service unless he has been given adequate opportunity of making any representation that he may desire to make, and such representation, if any, has been taken into consideration before the order imposing the penalty is passed. One thing is clear with reference to Art. 235, read with the service rules, that there is no right of promotion which the plaintiff could have claimed to enforce by action in a Court, Rule 49, on which reliance was placed by the plaintiff to make out his right to be considered for promotion as a Subordinate Judge, is, in the first instance, not a right but only a safeguard to a public servant that punishment by way of withholding of promotion shall not be imposed upon him unless he has been given adequate opportunity of showing cause against the action proposed to be taken. It is also clear that R. 49 comes into play only when proceedings are taken by way of disciplinary action against a public servant. In such disciplinary proceedings, the Government servant proceeded against has a right to insist upon the procedure being strictly followed. But in this case there was no such disciplinary proceeding against the plaintiff, and therefore, R. 49 is wholly out of the way. If R. 49 is not available to the plaintiff, r. 55-A was equally not available to him, even assuming that the rule applied to the case of members of the State Judicial Service. It follows from what has been said that there was no question of a penalty being imposed upon the plaintiff. That being so, there could not be any breach of the procedure laid down by the rules for proceedings against a government servant, like theargument is advanced on the assumption that the High Court as such, had delegated its powers, under Art. 235 of the Constitution, to the English Committee, which passed final orders against him. In our opinion, no foundation was laid in the plaint for any such contention. It is not alleged in the plaint that the resolution of the English Committee of the Judges of the Calcutta High Court, dated December 16, 1954, was not adopted by the Full Court in accordance with the Rules of Business laid down by that Court. According to r. 1 of Ch. 1 of the High Court Rules, there shall be a Standing Committee, called the English Committee, composed of the Chief Justice and at least four other Judges, to appointed from time to time by the Chief justice. According to R. 2, this Committee shall be associated with the control and direction of the Subordinate Courts, and according to R. 3 the English Committee shall have power inter alia "to make recommendations for the appointment of Subordinate judges . . . ." The English Committee, therefore, by its resolution aforesaid, only made a recommendation, which recommendation has to be circulated to all the Judges as soon after each meeting as possible, according to R.must, therefore, be held that in accordance with the Rules of Business of the Court, the appointment of Subordinate Judges from amongst Munsifs has to be made by the High Court as a whole, on the recommendation of the English Committee. The resolution of the English Committee in connection with the selection of the plaintiff as a Subordinate Judge must have in ordinary course, according to the Rules, been placed before all the Judges of the Court, and presumably the Court as a whole accepted the recommendation of the English Committee. It is true that there is nothing in the record of this case to prove all this. But, as already indicated, as the plaintiff did not make any allegations that the High Court as such had not passed the orders complained of, the High Court did not think it necessary to place the other relevant documents on the record. Hence, there is no basis for the submission either that the High Court had made unjustifiable delegation of its powers under Art. 235 of the Constitution, or that the High Court as a whole did not pass the order which was the plaintiffs alleged cause of action.Thus, unfortunately for the plaintiff, the effect of the order of the High Court was that he was not selected as a subordinate judge when his turn in the ordinary course came, for certain reasons which need not be gone into, because we have held that the plaintiff had no right to promotion, and, therefore, no right of action in a Court. The plaintiff lost eight places in the cadre of Subordinate Judges of West Bengal, but that was a natural consequence of the order of the High Court deferring the consideration of his selection as Subordinate Judge by a year. But that is the normal incidence of public service. In this connection, we may notice the argument advanced by the plaintiff that before the High Court decided to pass him over in favour of those Munsifs who were lower in the Civil List, the Bengal Public Service Commission should have been consulted, in accordance with the provisions of art. 320(3)(c) of the Constitution. That has reference to "all disciplinary matters". As already pointed out no disciplinary proceedings had been started against the plaintiff. Hence, there could be no occasion for the State Public service Commission being consulted. It is not, therefore, necessary for us to reconsider the question as to whether the provision in question is mandatory or only directory as held by this Courtour opinion, there is no substance in this contention because losing places in the same cadre, namely, of Subordinate Judges does not amount to reduction in rank, within the meaning of art. 311).The plaintiff sought to argue that "rank", in accordance with dictionary meaning, signifies "relative position or status or place", according to Oxford English Dictionary. The word "rank can be and has been used in different senses in different contexts. The expression "rank" in art. 311(2) has reference to a persons classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. Hence, in the context of the Judicial Service of West Bengal, "reduction in rank" would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif the rank of a Subordinate Judge being higher than that of a Munsif. But subordinate Judges in the same cadre hold the same rank, though they have to be listed in order of seniority in the Civil List. Therefore, losing some places in the seniority list is not tantamount to reduction in rank. Hence, it must be held that the provisions of art. 311(2) of the Constitution are not attracted to thisis difficult to see how either of those Articles can be pressed in aid of the plaintiffs case. The plaintiffs case was considered along with that of the others, and the High Court, after a consideration of the relative fitness of the Munsifs chose to place a number of them on the panel for appointment as Subordinate Judges, as and when vacancies occurred. He had, therefore, along with others, equal opportunity. But equal opportunity does not mean getting the particular post for which a number of persons may have been considered. So long as the paint, along with others under consideration, had been given his chance, it cannot be said that he had not equal opportunity along with others, who may have been selected in preference to him. Where the number of posts to be filled is less than the number of persons under consideration for those posts, it would be a case of many being called and few being chosen. The fact that the High Court made its choice in a particular way cannot be said to amount to discrimination against the plaintiff.10. It must, therefore, be held that the plaintiff has failed to make out a cause of action for the suit. The High Court, being the sole authority to decide the question of appointment of a Munsif to the higher rank of a Subordinate Judge, had exercised its power, after fully considering the plaintiffs case for promotion, to pass him over for a year. His case was later considered and he was promoted to the higher rank of a Subordinate Judge and subsequently to the still higher rank of an Additional District and Sessions Judge. The exercise of the power vested in the High Court is not justiciable, and rightly so. The High Court, by art. 226 of the Constitution, has been constituted, without in any way derogating from the powers of the Supreme Court in that behalf the custodian. If individual rights and liberties, guaranteed by Part III of the Constitution, and has been further vested with the power to enforce those rights by issuing appropriate orders or writs. By art. 235, the High Court has been vested with complete control over the subordinate courts. Naturally, therefore, not only as citizens but a members of the Judicial Service, they look upon the High Court as the custodian of their rights in accordance with the rules prescribed by itself. It is a little surprising that the plaintiff should have convinced himself that the High Court had not given him his due, and should have taken recourse to the Courts to enforce such rights as the law gives him as a member of the State judicial service. The plaintiff, who argued his own case in this Court, though not in the Trial Court, gave a very good account of himself in arguing his case and placing all relevant considerations before the Court. But he seems to have more learning than wisdom. He has, without any justification, taken recourse to Courts instead of leaving his case to be dealt with by the High Court, which must be presumed to have acted in all fairness, in accordance with the established practice and rules of the Court, so as best to sub-serve the interests of efficient and impartial administration of justice. The plaintiff appears to have been a victim of circumstances, which were more or less his own creation. He tried to convince us that he had no alternative but, as a Court to grant an injunction in his own favour as a plaintiff. We have not thought fit to go into that question because on the face of it it appears to be rather wholly an arguable that a litigant should be the judge in his own cause, however just it may be. Instead of allowing some delay in obtaining the injunction, on account of circumstances beyond his control, and even taking the risk of judgment going against him in the Small Cause Court, he thought better to issue the injunction in his own favour, sitting as a Judge in his own case. That has been the cause of all his misfortunes in the service and he has to think himself for all that has happened. But however much one may sympathise with him, it has got to be held that in law he had no right which could be enforced through the machinery of the Courts. The appeal must, therefore, be allowed. But as the defendants-appellants allowed the case to be decide against them without placing all relevant considerations before the Trial Court, particularly the fact that R. 55-A did not apply to members of the State judicial Service, we direct that each party will bear its own costs, here and below