REGISTRAR OF HIGH COURT OF

MADHYA PRADESH AND ANOTHER

JI.

B. A. NIGAM AND OTHERS April 3, 1973

[0, G. PALEKAR AND A. ALAGIRISWAMI, JJ,]

Madhya Pradesh Civil Courts Act, 1958-Service Rules-Experience a.r Civil Judge, Class.J, necessary qualification for promotion to the poM of Addi. District f.'nd Sessions Judge, and not the seniority.

The Respondent No. I, who was a Civil Judge in former Madhya Bharat, was, on absorption into Madhya Pradesh Judicial Service, treated a' Civ; l Judge, Class-II. The relevant Service Rules applicable to the Civil Judges recognised Civil Judges as only one Class but the M. P.

Civil Courts Act, 1958, mentioned two classes of Civil Judges namely, Civil Judges Class I and Civil Judges Class

II.

From the t; me when the Madhya Pradesh Civil Courts Act, 1958 C8llle into fOrce it was always considered by the High Court that for promotion to the post of Addi. District and Sessions Judge, it was a necessary qualification that the Civil Judge must have sonie experM:nce of working as Civil Judge, Chlss-1. Under the Act, the pecuniary jurisdiction of the Civil Judge, Class I was Rs. 10,000/- while that of Civil Judge.

Class II was Rs. 5,000/-.

In May 1968, the High Court passed as Reso1utio, o laying down that the seledtion of a Civil Judge, Class-II, as a Civil Judge Class I shall be deemed '" promotion and that being so,. only the cases of Civil Judges, Class-I, shall be considered for promotion :ls Addl. Drntrict and Sessions Judges in order of their seniority. The respondent was not found fit for promotion to the post of Civil Judge, Class-I in the successive selections.

He was finally 'found fit in 1968.

In a writ petition before the M. P. High Court, the Respondent No. 1 contended that the date of the seniority should count from the date of appointment to the post of Civil Judge Cfass-IJ and not from the date of promotion to the post of Civil Judge, Class-I. He also contended that the High Court Resolutio:t> of May 3, 1968, was illegal as there was no proviion in the Service Rules for classifying Civil Judges as Class I or Ciass II and the power to create various classes of services

\V'&S vested ir.. the Government, and not in the High Court. The 11. P.

High Court allowed the Writ Petition.

Allowing the State's appeal by certificate,

HELD : ( 1) On perusal of the High Court file regarding the selection of Class JI Civil Judges as Class I Civil Judges, it is clear that the decisions \Vere bona fide a;'nd on merits.

The Respondent No. 1 had no claim to Class I post before 1968, when for the first time he was found fit.

Once it is found that experience as Civil Judge Class I is a necessary qualification, the seniority in Class II service is of no consequence.

( 2) While it is true that the Service Rules do not provide for any distinction within Civil Judges, the difference in the pecuniary jurisdici; _, n cannot be ignored. The Resolution of the High Court of May 1968 should not be interpreted literally.

The resolution does not create a new class of Ci, il Judges called Class I Civil Judges but merely lays down the c:ualification or standard of fitness for higher promotion.

There is

REGISTRAR M.P. !UGH COURT v. B. A. N!GAM 879 (Alagiriswami, J.) no justification for re-opening cases closed for more than ten years at the instance of an officer whose record of service was not a shining one: compared to those who were selected earlier. [880A, 881G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1972.

Appeal by certifica'le from the Judgment and order dated August 8, 1971 of the Madhya Pradesh :ltigh Court at Jabalpur in Misc. Petition No. 537 of 1969.

I. N. Shroff, for the Appellants.

M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, I. B.

Dadachanji, 0. C. Mathur & Ravinder Narain, for respondent No. 1

The Judgment of the Court was delivered by

ALAGIRISWAMI, J.-In the Judicial Service of Madhya Pradesh there are three classes of officers, Civil Judges, Additional District

and Sessions Judges and District Judges but under the Madhya Pradesh Civil Courts Act, 1958 there are four classes of Civil Courts, the Coutt of the District Judge, the Court of the Addi.

District Judge, the Court of the Civil Judge (Class I) and the Court of the Civil Judge (Class II). The respondent No. I, Shri B. A. Nigam, entered service as a Civil Judge on 20-lG-1956 in Madhya Bharat. After Madhya Bharat became part of. Madhya Pradesh he was absorbed as a Civil Judge and placed for purposes of seniority at No. 189. From the time when the Madhya ?radesh Civil Court Act, 1958 came into force some period of service of a Civil Judge during which he exercised powers of Civil Judge, Class I, however, small, was considered a necessary qualification for promotion to the post of Additional District and Sessions Judge.

On or about May 3, 1968, by a resolution of the High Court it was laid down that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases ol Civil Judges, Class I, shall be considered for promotion as Additional District and Sessions Judges in order of their seniority. It must be made clear at the outset that according to the Service Rules there is only one class of Civil Judges and not t\vo classes of Civil Judges (Class I) and Civil Judges (Class

II).

The fitness of the respQndent ( 1) for promotion as Civil Judge, Class I, seems to have been considered on a number of occasions i.e. on May 3, 1966, August 12, 1966, April 17, 1967, November 6, 1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class I. Mr. I. N. Shroff appearing for the appellants has also shown us the file containing the proceedings of the Judges' meetings of the High Court of Madhya P'radesh on the various dates abo_ve referred to in which the names of various officers for being

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[1973] 3 S.C, R.

poS'led as Class I Civil Judges have been considered.

We have

crutinised them carefully and can see no reason to doubt the bona fide nature of the decisions therein made. The High Court has also taken the view that though the junior members in the cadre of Civil Judges had often been allowed to exercise the powers of Civil Judge, Class I, without considering at that time the respondent's claim and then those junior members had been preferred for promotion on the ground that they had exercised such powers, and such preference was open to attack as being violative ol the fundamental rights of the respondent, they could not assist him on that ground because even if his .claims for exercising the powers of Civil Judge, Class I had been considered at the appropriate time, he would not have been found fit for the purpose for the reason earlier mentioned.

While it is not impossible that if the respondell'l's case had been compared with that of others before the 3rd May, 1966 he might have been found fit for being posted as a Civil Judge, Class I, it is very improbable and we, therefore, agree with this conclusion or the High Court. Finally, on 30-11-1968 the respondent was found fit to be posted as a Civil Judge, Class I and he filed the petitioo, out of which this appeal arises, for consideration of his name for being promoted as an Additional District and Sessions Judge over the heads of all the people who had been earlier found to have better qualifications for being posted as Civil Judges, Class I in preference to him.

That petition having been allowed by the High Court his appeal has been filed by certificate by the Registrar of the High Court of Madhya Pradesh and the State against the judgment of that High Court.

In addition to the point which we have earlier mentioned and agreed with the High Court, his only other contention was that in the list of Civil Judges he was senior to all of them and as there was no provision in the service rules for classifying Civil Judges as Class I or Class Il and the power to create various classes of services was one which vested with the Government and not with the Hih Court therefore the resolution of the High Court of May 3, 1968 cannot affect him adversely. The High Court took the view that as for some years past, a principle for selection had been introduced that before a Civil Judge was promoted to the post of an Additional Districit and Sessions Judge, it was essential that he should have exercised the powers of Civil Judge, Class I, tor a period, however short and that principle had a rational relation to the suitability of Civil Judges for promotion to posts of Additional District and Sessions Judges and the respondent No. I could not legitimately complain, as he did not have that qualification, and he could not be selected for promotion only on the basis of seniority. They also took the view that sinee the respondent No. I had not acquired the qualification required for promotion,

REGISTRAR M.P. HIGH COURT v. B. A. N!GAM 881 (Alagiriswami, I.) !tis claim for such promotion should be regarded as having been considered and rejected by implication till November 30, 1968 when he was allowed to exercise the powers of Civil Judge, Class I.

Having held rightly, according to us, that till November 30, 1968 the respondent No. I was not qualified to be considered for promotion as an Additional District and Sessions Judge, the High Court curiously enough issued a writ of mandamus directing that the respondent's claim for promotion should be considered in relation to the claims of !tis juniors and if he was found fit he should be allowed the consequential benefits including fixing of seniority in the cadre of Additional District and Sessions Judges.

In mentioning about the juniors o.f the respondent No. I the learned Judges were referring to the original seniority in the cadre of Civil Judges,

Once it is found.that experience as Civil Judge, Class I, at least for a short period, is a necessary qualification for promotion as Additional District and Sessions Judge and that such a require ment has a rational relation to the que!ltion at issue, it would b surprising to hold that a man, who again and again had beei found unfit to be posted as Civil Judge, Class I, in comparison with others, who , were his juniors in service, his claim for promotion as Additional District and Sessions Judge should be decided not on the basis of the date on whlch he was found fit to exercise the powers of Civil Judge, Class I, but on the basis of the date of his entry into service. Out of the 41 people whom the respon dent No. I had made respondents to his petition, 10 people were found fit in 1962 and one in 1963. Then we have 3 others whose claims were considered on 3-5-66 alongwith that of the respondent No. I and found superior to his. There are 8 others whose claims were compared to the respondent's on 12-8-66 and found to be superior to his. Seventeen others, whose claims were compared to the respondent's on 17-4-67 were found to be superior to the respondent's and two were found superior to the respondent on 7-11-67. It would, therefore, be most surprising that a man who in comparison to all these people was not found fit to be promoted as Civil Judge, Class I, should as soon as he was found fit on 30-11-68 go over the heads of all the other who were found superior to him on a number of earlier occasions. While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is onlv upto Rs. 5,000 and that of. Class I Civil Judges upto Rs. 10,000. The resolution of the High Court of May 1963 should not be interoreted literally.

If it is done in its proper background it would be aooreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as

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Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some lime should considred as a qualification for promotion as Additional Distr~ and Sessions Judges. We have already Pointed out that the High Court has rigbtly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and Sessions Judges.

We 2re firmly of opinion that in the face of these circumS'lances to allow the respondent No. I to be considered for promotion as Additional District and Sessions Judge in preference to others who had been found. better qualified to be posted as Civil Judges Class I much earlier merely on the basis of the date of his entry into service would. be a mockery of all canons of fair play and justice. Indeed, we cannot help feeling that his being found fit for promotion to Class I Civil Judge on 30-11-68 seems to have been done more as a matter of grace and he should be more than happy to have got what he got. The fact that before 3-5-66 there might have been cases of Civil Judges being posted as Presiding Judges of Civil Courts Class I due to various exigencies of service cannot in any case affect the merits of this case. As we have already indicated, while it is not impossible it is improbable that compared to those people who had been posted as Class I Civil Judges before 3-5-66 the respondent No. I would have been found better qualified.

At any rate we can see no justification for reopening cases that had been closed more than 10 years ago at the instance of an officer whose record of service to say the least, is not shining one. We see no merits in his claim. We, therefore, allow the appeal and set aside the judgment of the Madhya Pradesh High Court. There will, however, be no order as to costs.

S.B.W.

Appeal aNowed.