Patna High Court
Mahendra Prasad Sinha vs High Court Of Judicature At Patna And ... on 23 December, 1982
Equivalent citations: 1983(31)BLJR523
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This writ application has been filed on behalf of the petitioner for quashing a notification dated 24.5.1982 issued by the Patna High Court transferring the petitioner from the officiating post of District and Sessions Judge, Begusari to his substantive rank of Additional District and Sessions Judge at Patna.
2. It is an admitted position that the petitioner has been confirmed in the rank of Additional District and Sessions Judge, but on the day the impugned notification was issued, he was officiating as District and Sessions Judge. The main grievance which has been made on behalf of the petitioner is that as he was promoted from the post of Additional District and Sessions Judge to the post of District and Sessions Judge by an order of the State Government dated 12.12.1977, he cannot be reverted to the post of Additional District and Sessions Judge by a notification issued by the High Court, In that connection it was submitted that as in view of Article 233 of the Constitution of India, appointments, promotions of the District Judges have to be done by the State Government in consultation with the High Court, the reversion orders of such District Judges have also to be issued by the State Government in consultation with the High Court.
3. Counter-affidavit has been filed on behalf of the Patna High Court in which it has been asserted that the expression "District Judge" in Article 233 of the Constitution shall include an Additional District Judge in view of Article 236 of the Constitution, as such, whenever the initial appointment or promotion to the post of Additional District Judge is made, Article 233 is attracted and it has to be made by the State Government in consultation with the High Court. Thereafter, control of such Additional District Judge is vested in the High Court under Article 235 of the Constitution, and it is for the High Court to post any Additional District Judge as District Judge and at that stage Article 233 is not applicable. It has also been stated that notification dated 12.12,1977 (Annexure-2) by which the petitioner was promoted on officiating basis as District Judge was wrongly issued by the State Government, really it should have been issued by the High Court. However, later the High Court acquired and ratified the order issued by the State Government permitting the petitioner to function as District and Sessions Judge on the basis of that notification.
4. Article 233(1) of the constitution, which is relevant for the present case, is as follows:
Appointments of persons to be, and the posting and promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
In view of Article 233(1) "appointments", "postings" and "promotions" of the District Judges have to be made by the Governor of the State in consultation with the High Court concerned. So far as the expression "appointment" is concerned, there is not much scope for controversy because appointment to a post is made only once. However, the expressions "posting'' and "promotion have been subject matter of controversy from time to time, Whether this Article is applicable only at the state of initial posting and promotion or at all subsequent stages, because a District Judge, which shall include even an Additional District Judge in view of Article 236 of the Constitution, has to be posted from time to time at different stations and an Additional District Judge has to be promoted to the post of District Judge and later to a selection grade post ? Whether such postings and promotions have to be done by the Governor of the State in consultation with the High Court ? In the case of State of Assam v. Ranga Muhammad it was held that the word "posting" clearly meant "assigning someone to a post". It was further pointed out that the word "posting" cannot be understood in the sense of transfer because transfer operates at a stage beyond appointment and promotion. In view of this judgment it is almost settled that subsequent transfers and posting of an Additional District Judge and a District Judge is under the control of the High Court under Article 235 of the Constitution and Article 233 is not attracted. So far as the expression "promotion" used in Article 233 is concerned, scope thereof has also been examined in different judgments of the Supreme Court. In the aforesaid judgment while construing the expression "posting" the Supreme Court has pointed out that the three expressions "appointment", "posting and "promotion" in Article 233 indicate the stage when a person first gets a position or a job.
5. Learned Counsel for the petitioner submitted that Article 233 is not exhausted after initial appointment or promotion to the post of Additional District Judge, but it is applicable even at subsequent stages whenever a promotion is made, including promotion from the post of Additional District Judge to the post of District Judge. In this connection, reliance was placed on the case of State of Assam v. Kuseswar Saikia where after [referring to Article 233 it was observed as follows:
It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression 'District Judge' includes an Additional District Judge and an Additional Sessions Judge. It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The Article is intended to take care of both. It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it. Further promotion of District Judges is a matter of control of the High Court.
I am constrained to observe that the learned Counsel for the petitioner has not read the aforesaid judgment in its proper context It will appear from the said judgment that the High Court in that case had read the expression 'promotion' in Article 2, 3 as promotion 'of a District Judge' and not promotion 'to be a District Judge'. This interpretation was not approved and it was pointed out that Article 233(1) should be read as "'appointment of persons to be and posting and promotion of (persons to be) District Judges etc." In other words 'persons to be' have to be read even in context of posting and promotion although in the Article it has been used only in context of appointments, In that connection it was emphasised that Article 233(1) is concerned with initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it.
6. In the case of the High Court of Punjab and Haryana etc, v. The State of Haryana and Ors. on which reliance has been placed by both sides, similar questions arose for consideration. In paragraph 40 of the judgment it was pointed out that under Article 236 the expression 'District Judge' includes amongst others 'Additional District Judge and Additional Sessions Judge'. The promotion of persons belonging to the junior service but holding a post inferior to the District Judge vests in the High Court. In this very paragraph it has been observed as follows on which reliance has been placed on behalf of the petitioner:
It is the function of the Governor to promote Additional District Judge and Additional Sessions Judge to be District Judges.
On the basis of this observation it was submitted on behalf of the petitioner that the promotion from the post of Additional District Judge and Additional Sessions Judge to the post of District Judge is the function of the Governor. I may point out that from reading the aforesaid observation along with paragraphs 41 and 42 of the judgment it is clear that the Supreme Court never purported to lay down in this judgment that even promotion from the post of Additional District Judge and Additional Sessions Judge to the post of District Judge has to be done by the Governor in consultation with the High Court. In paragraph 41 Itself it has been observed as follows:
The initial appointment as well as the initial promotion of persona to be District Judges is with the Governor.
While referring to the aforesaid judgment, i.e. . it was observed:
Therefore, the initial appointment of persons to be district judges as well as the initial promotion of persons to be District Judges is with the Governor. Once they are appointed and promoted to be District Judges the entire control is thereafter vested in the High Court. As to what further promotion of District Judges can be, is illustrated by their appointment to Selection Grade posts.
Having pointed out in paragraph 40 that because of Article 236 the expression 'District Judge' Includes 'Additional District Judge and Additional Sessions Judge", Article 233 even according to this judgment shall be applicable at the stage of Initial promotion to the post of Additional District Judge or Additional Sessions Judge and subsequent promotions, including promotion as District Judge and to selection grade, is under the control of the High Court under Article 235 of the Constitution.
7. The same view was expressed by the Supreme Court in the case of State of U.P. v. Ratuk Deo Pali Tripathi and Ors. 1978 (2) S.L.R.I. where while interpreting the scope of Article 236 it was observed:
The control vested in the High Courts by that article comprehends, according to our decisions, a large variety of matters like transfers, subsequent postings, leave, promotions other than initial promotions, imposition of minor penalties which do not fall within Article 311, decisions regarding compulsory retirement, recommendations for imposition of major penalties which fall within Article 311 entries in character rolls and so forth.
8. Again, in the case of Chief Justice of Andhra Pradesh and Anr. v. L.V.A. Dikshitulu and Ors. etc. . the same view was reiterated saying that under Article 235 the control vested in the High Court being exclusive in nature comprehensive in extent and effective is operation, which include "confirmation of District Judges who have been on probation or are officiating after their initial appointment or promotion by the Governor to the cadre of District Judges under Article 233".
9. Learned Counsel appearing for the petitioner submitted that in none of the aforesaid cases the question whether at the stage of promotion from the post of Additional District Judge to the post of District Judge is governed by Article 233 of the Constitution has been specifically considered. According to him, promotion from the post of Additional District Judge to the post of District Judge including reversion from the post of District Judge to the post of Additional District Judge has to be in accordance with Article 233 but promotion of District Judge to higher post shall be made by the High Court. In ray opinion, there is no merit in this contention. The expression 'District Judge' includes an Additional District Judge in Article 233 of the Constitution. In the aforesaid judgments of the Supreme Court it has been held that the said Article applies only at the initial stage of appointment, posting and promotion, then it applies only to the initial promotion to the post of an Additional District and Sessions Judge. Thereafter, subsequent promotions, including promotion to the post of District Judge, is under Article 235 of the Constitution. If order of substantive promotion to the post of District Judge has to be issued by the High Court under Article 235 of the Constitution, there was no occasion for the State Government to issue an order of officiating promotion to the post of District Judge in case of the petitioner. Merely because an order was issued promoting the petitioner on officiating basis to the post of District and Sessions Judge by the State Government, it cannot be accepted that later such order can be varied, modified or altered only by the State Government in exercise of the power under Article 233 of the Constitution. In my view, the High Court was competent enough under Article 235 to revert the petitioner to his substantive post of Additional District and Sessions Judge and that cannot be held to be invalid.
10. Apart from that, the order dated 12.12.1977 cannot be held to be an order of promotion of the petitioner from the post of Additional District and Sessions Judge to the post of District and Sessions Judge. In that order it has been clearly stated that promotion was being given to the petitioner to act as District and Sessions Judge (Karya Karne ke liye). Learned Counsel appearing for the petitioner conceded that it is always open to the High Court to direct any Additional District and Sessions Judge to act as District and Sessions Judge under the exigency of the situation and as a stop-gap arrangement and such order cannot be held to be an order of promotion. But he has drawn a distinction between three types of orders, (i) where an Additional District and Sessions Judge is directed to act as a District and Sessions Judge, (ii) where an Additional District and Sessions Judge is promoted to the post of District and Sessions Judge on officiating basis, and (iii) where an Additional District and Sessions Judge is promoted to the post of District and Sessions Judge on substantive basis. According to the counsel for the petitioner Article 233 is not attracted to the order of category (i) but it shall be attracted when orders are of the nature mentioned in category Nos. (ii) and (iii). In my view, when an Additional District and Sessions Judge is directed to act as District and Sessions Judge it is immaterial whether he is to act with or without officiating promotion. No right accrues to him to the post of District and Sessions Judge. The only difference which I can see in the two types of orders is that where he is directed to act as District and Sessions Judge after officiating promotion he shall be entitled to pecuniary benefits attached to the office of the District and Sessions Judge. I am not able to appreciate as to how Article 233 can be applicable to such officiating promotion. In my opinion, the petitioner having been promoted on officiating basis to act as District and Sessions Judge can very well be reverted to his substantive post of Additional District and Sessions Judge by the High Court. While doing so, the impugned order does not cast any stigma against the petitioner. In the counter-affidavit it has been stated that taking the suitability of the petitioner into consideration the impugned order was issued and it is not penal in nature.
11. It was also submitted on behalf of the petitioner that several Additional District and Sessions Judges who have been promoted on officiating basis and who are junior to the petitioner are continuing as District and Sessions Judge whereas the petitioner has been reverted to his substantive post. This is permissible. In the case of Divisional Personnel Officer, Southern Railway v. S. Raghavendrachar it has been pointed out that reversion from officiating post to the substantive post even when junior to such an officer is officiating on the higher post, does not amount to a penalty so as to attract Article 311 of the Constitution. In the counter-affidavit, as I have already pointed out, it has been explained as to why the petitioner has been reverted to his substantive post. The order has been issued only after considering the suitability of the petitioner and it does hot amount to any stigma against the petitioner.
12. Lastly, it was submitted on behalf of the petitioner that the impugned order has been issued in contravention of the requirement of rule 32 of the Bihar Service Code, the relief portion whereof is as follows:
A Government servant officiates in a post when he performs the duties of a post on which another person holds a lien. A Government servant may however, be appointed to officiate in a vacant post on which no other person holds a lien by the authority competent to make a substantive appointment to the post.
On the basis of this rule it was submitted that whenever a person is appointed to officiate on a vacant post on which no other person holds a lien, then such appointment should be made by an authority competent to make substantive appointment to that post. According to the petitioner, the substantive appointment to the post of District Judge can be made in view of Article 233 of the Constitution only by the Governor, as such, reversion order should have also been passed by the Governor. I have already held that power under Article 233 has to be exercised at the initial promotion, i.e., promotion to the post of Additional District and Sessions Judge and not to subsequent promotions. As such it cannot be held that there has been any contravention of the aforesaid Rule. In my opinion there is no merit in this writ application. It is, accordingly dismissed, but, in the circumstances of the case, there will be no order as to costs.
Satyeshwar Roy, J.
13. As the petitioner was directed to act as District and Sessions Judge, in my opinion, no right accrued to him to hold the post of a District and Sessions Judges. The impugned order was passed by the High Court in its administrative side on the ground of unsuitability of the petitioner. No stigma, therefore, was cast against him, I do not find any merit in this application and the same is dismissed, but, without costs.