Patna High Court
Madan Mohan Prasad And Ors. vs Government Of Bihar And Ors. on 26 September, 1969
Equivalent citations: 1969(17)BLJR1033, AIR 1970 PATNA 432, 1970 LAB. I. C. 1554
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. This is an application under Article 226 of the Constitution of India, which involves the question of determination of seniority of the petitioners vis-avis respondents 2 to 4; the first respondent is the Government of Bihar. It also raises an important constitutional question as to whether the State Government are competent to determine the seniority of an officer belonging to the Superior Judicial Service (hereinafter called the Service) or whether it is within the competence and power of the High Court to take a final decision on their administrative side in that regard.
2. There are three petitioners in this writ application. Their case is that three vacancies in the post of Additional District and Sessions Judges occurred between 1958 and 31st of January, 1959. On the 14th of March, 1959 respondent No. 1 advertised the said three posts borne on the cadre of the Service to he filled up by direct recruitment from the Bar in accordance with Rule 5 (a) of the Bihar Superior Judicial Service Rules, 1946 (hereinafter called the Rules). On or before the 31st of March, 1959 the petitioners along with some others applied for being appointed to the posts. Eventually they were so appointed on 21-4-1960. They were confirmed in the posts of Additional District and Sessions Judge in April, 1961. Their case further is that respondents 2 & 3 were never promoted from the post of Sub-Judge which they were holding substantively to the post of Additional District and Sessions Judge according to law and although there was no vacancy in any such post on the 17th of June, 1959, the Government of Bihar by their order dated the 6th of September, 1960, a copy of which is Annexure "D" to the writ application, which order was never published in the Bihar Gazette, purported to upgrade the post of the Deputy Registrar of the Patna High Court, which post Shri Chandrika Prasad Sinha, respondent No. 2, was holding and that of the Secretary, Bihar Legislative Assembly, which post was held by Shri Enayetur Rahman, respondent No. 3, retrospectively with effect from the 17th of June, 1959, till those posts were held by them.
The intention of the said upgrading was to indirectly confer seniority on respondents Nos. 2 and 3 by giving them fictitious officiation in a post in the service for the purpose of placing them in a more advantageous position man that of the petitioners in the matter of promotion and other service benefits. The said upgrading was done even in contravention of the recommendation of the Patna High Court, which was only for a limited upgrading of the said posts for a short period of 3 months 14 days, i.e., from the 17th June to 1st October, 1959, purely in fulfilment of the requirements of the 'next below rule' as Shri Jitendra Narain, respondent No. 4, started officiating in a temporary leave vacancy in a post of Additional District Judge from the 17th of June, 1959.
When respondent No. 2 was appointed as District and Sessions Judge on 25-4-1961, the petitioners felt surprised on their apparent supersession by respondent No. 2. On inquiries they learnt towards the end of August, 1961, that respondents 2 and 3 had somehow been treated as senior to them and that the seniority list of the Service had also been altered by placing respondents 2 and 3 over the petitioners. A true copy of the seniority list is Annexure 'E' to the writ application.
3. The petitioners' case proceeds further thus. They also came to know that respondent No. 4 who had been appointed as Additional District Judge on the 19th of September, 1960 long after the petitioners' appointment and was thus junior to them had made a representation to the Government claiming seniority over them on the ground that respondents 2 and 3 had been allowed retrospective fictional promotion as Additional District Judge with effect from the 17th of June, 1959 even though there was no vacancy in the cadre then.
On the 3rd of September, 1961, the petitioners made representation to the Government both against the aforesaid illegal seniority of respondents 2 and 3 and the seniority claimed by respondent No. 4. In February, 1968, the petitioners came to know that the Government had rejected their representation and they had also illegally decided that respondent No. 4 should be placed above them in the seniority list even though he was to be junior to the petitioners for other purposes of the service. The petitioners' case is that respondent No. 4 was working on the post of a Sub-Judge all along during the relevant period except for the brief period of 3 months 14 days when he had officiated in a temporary leave vacancy from 17-6-1959 to 1-10-1959. He reverted to the post of the Subordinate Judge from 2-10-1959. During the period in question some of his judgments delivered as Sub-Judge were subject-matter of appeal before the District Judge. The petitioners also state that the Patna High Court had recommended for rejecting the representation of respondent No. 4 for giving seniority to him and the Government's decision is against the recommendation of the High Court.
4. The petitioners attack the order of the State Government contained in their letter dated the 6th September, 1960 (Annexure D), the seniority list (Annexure E) and the decision of respondent No. 1 to place respondent No. 4 also above the petitioners on various grounds which, as formulated by Mr. Basudeva Prasad, learned Advocate for the petitioners, at the time of the hearing of the writ application, may be stated thus --
(i) The seniority list (Annexure E) has been framed in contravention of the provision of law contained in Rule 16 (e) of the Rules.
(ii) The order of the State Government dated 6-9-1960 contained in Annexure 'D' to the writ application as also the order of the State Government dated 24-1-1968, a copy of which is Annexure 'B' to the counter-affidavit of respondent No. 4, giving fictitious officiation with retrospective effect is ultra vires and illegal.
(iii) There was no vacant post of an Additional District Judge available before 1-11-1959 and, therefore, creation of new posts for respondents 2 and 3 by the State Government was ultra vires Article 166 of the Constitution read with Rule 14 (2) of the Rules of Executive Business and Item 3 (c) of the 3rd Schedule appended to the said Rules.
(iv) There was no vacancy available in the post of Additional District Judge for respondent No. 4 in the promotees' quota between 1-11-1959 and 19-9-1960.
(v) Respondents 2 and 3 having never been appointed to the substantive post of Additional District Judge in accordance with Rules 5 and 15 of the Rules, their seniority cannot be determined with reference to Rule 16 (e).
(vi) The seniority of respondents 2 to 4 having been fixed without any basis in law and in an illegal and arbitrary manner infringes the fundamental rights of the petitioners in the matter of their employment under Article 16 (1) of the Constitution.
(vii) Under Article 235 of the Constitution, it is the exclusive power of the High Court on their administrative side to promote Subordinate Judges to the posts of Additional District Judge and to determine the seniority of a Judicial Officer; the State Government, as against the decision or recommendation of the High Court, had no power to determine the seniority of respondent No. 4 and give him a place over the petitioners.
5. In pursuance of the rule issued to the respondents, cause has been shown on behalf of the State Government, respondent No. 1, by their learned Counsel Mr. M.C. Chagla Mr. J.C. Sinha, appeared for respondent No. 2 and Mr. K.P. Verma, learned Government Advocate, appeared for respondent No. 4; nobody appeared separately for respondent No. 3. All the points urged by Mr. Basudeva Prasad, learned Counsel for the petitioners, were combated by one Counsel or the other. I shall deal with their argument in my judgment while discussing the points involved in the case. But before I do so, it would be convenient to refer to certain facts from the various affidavits filed by the parties and their annexures.
6. In accordance with Rule 3 (1) of the Rules, the strength of the Service, which means the Bihar Superior Judicial Service, and the number and character of the posts are as specified in the Schedule to the Rules. Under Sub-rule (2) of Rule 3 "the State Government may, from time to time, after consultation with the High Court amend the said Schedule". In March, 1959, when three posts were advertised to be filled up by direct recruitment from the Bar under Clause (2) of Article 233 of the Constitution, the sanctioned strength of the Service was--
District Judges 14 Registrar, High Court 1 Secretary, Law Department 1 Total 16 Additional District Judges 18 Deputy Secretary, Law Department 1 Total 19 As mentioned in paragraph 7 of the counter-affidavit filed on behalf of the State of Bihar on 27-2-1968 two posts of Additional District Judge consequent upon the amendment of the Bengal, Agra and Assam Civil Courts Act, 1887, whereby the pecuniary jurisdiction of appeal before the District Judge had been raised from Rs. 5,000 to Rs. 9,999, were created for a period of one year in the first instance and the creation of the posts was approved by the State Government on 5-5-1959. Two temporary posts of Peripatetic District and Sessions Judge were created for a period of two years and the creation of the posts was approved by the State Government on 24-4-1959. On 25-4-1959, however, the Registrar of the High Court wrote a letter to the Chief Secretary of the Government (vide Annexure X/l to the counter-affidavit of respondent No. 2) that he had been directed to say that a few short-term leave vacancies had occurred in the cadre of the Additional District and Sessions Judges consequent upon four of them proceeding on leave for the periods noted against their names, which varied from 5-2-1959 to 11-7-1959, and as the Sessions file in some districts was getting out of control due to paucity of officers, the Court proposed to fill in the leave vacancies by promotion of Subordinate Judges. Having carefully considered the records of service of the Subordinate Judges due for promotion, the Court recommended the names of Sarvashri C.P. Sinha, E. Rahman, J. Narain (respondents Nos. 2 to 4) and Sharda Prasad for being promoted to act temporarily as Additional District and Sessions Judges. Since the Courts were engaged in various important administrative works and tackling heavy arrears, the then Hon'ble the Chief Justice desired to retain the services of respondent No. 2 as Deputy Registrar. Since his promotion had become due, it was recommended that he should not be made to suffer any pecuniary loss on account of the fact that he could not be spared. The Court, therefore, recommended that the status and emoluments of the post of the Deputy Registrar should be temporarily upgraded so long Shri C.P. Sinha continued to hold the post and remained eligible to officiate as an Additional District Judge. The next longer vacancy was recommended for Shri E. Rahman who was on deputation in the Bihar Legislative Assembly Department. He was also not being spared from there although he had become due for promotion to the rank of Additional District Judge. The Court, therefore, recommended that either he should be relieved or that the Government may consider the desirability of temporarily upgrading his post till June, 1959. Shri J. Narain was working as Under-Secretary in the Law Department but since the State Government had already agreed to relieve him of the said assignment, he was recommended to be promoted to act as Additional District Judge in the third longer vacancy and posted to Dumka as such. Shri Sharda Prasad was recommended to be promoted to act as Additional District Judge in the fourth vacancy to be posted as Additional Judicial Commissioner, Ranchi, where he was already working as a Subordinate Judge. It's not quite clear from the records of this case as to what happened in cases of other leave vacancies. But what is definite and clear is that Shri J. Narain officiated in a leave vacancy as Additional District Judge at Dumka from 17-6-1959 to 1-10-1959; the lower Courts were closed for the Annual Puja Vacation from 2-10-1959 to 7-11-1959, and the 8th of November, 1959 was a Sunday.
7. The next letter to which a reference is necessary to be made is Annexure X/2 to the counter-affidavit of respondent No. 2. It is dated 17-8-1959. The Registrar of the Court wrote this letter to the Chief Secretary of the Government in reply to latter's letter dated 29-5-1959 to say that there were four vacancies in the cadre of Additional District Judge -- two occurring on the appointment of two Peripatetic District Judges for a period of two years and two new posts having been created for Additional District Judges. It seems in pursuance of the Government decision taken on 24-4-1959 and 5-5-1959 referred to in paragraph 7 of the counter-affidavit, a letter was written by the Government to the High Court on the 29th May, 1959, to fill up the four vacancies. The Court suggested in their letter dated 17-8-1959 the names of four persons to be promoted to act as Additional District Judges until further orders. They were Sarvashri Achyutanand Sahay, Rash Bihari Prasad Sinha, Chandrika Prasad Sinha and Enayetur Rahman. The first two were not found fit on the earlier occasion although they were senior to the latter two. But this time, finding them fit, the Court recommended their names also for promotion. While recommending the names of Sarvashri A.N. Sahay and R.B.P. Sinha to be promoted to act as Additional District Judges in two of the vacancies, in regard to the other two vacancies, the Court's recommendation was that Shri C.P. Sinha and Shri E. Rahman be promoted to act as Additional District Judges, but for the reasons mentioned in Court's letter dated the 25th April, 1959 the posts of the Deputy Registrar of the Court and the Secretary of the Legislative Assembly held by them should be upgraded. In other words, this time the upgrading was suggested not in the leave vacancies but as against the substantive posts till they could be relieved of their special jobs. In the meantime, it was recommended, two more posts of Additional District Judges be created for that period.
8. The State Government sent their reply on 7-3-1960 to Court's letter dated 17-8-1959. Many vacancies, however, occurred during the interval on the retirement of District Judges and appointment of Additional District Judges in their places. The Registrar of the Court, therefore, wrote to the Chief Secretary of the Government on 3-3-1960 (Annexure X/5 to the counter-affidavit of respondent No. 2) even before the receipt of the Government's reply dated 7-3-1960 to their letter dated 17-8-1959, that seven vacancies had occurred on the appointment of seven Additional District Judges as District Judges and one due to retirement of one Additional District Judge between 1-12-1959 and 6-2-1960, and the ninth vacancy was caused by the appointment of Shri M.P. Verma, as he then was, as District Judge of the newly created judgeship of Singnbhum, which was created on 4-2-1960. As against these nine posts, recommendations had already been made to the Government to fill five posts -- three by direct recruitment from the Bar and two by promoting respondents Nos. 2 and 3, by upgrading their posts as already desired in the Court's letters dated 25-4-1959 and 17-8-1959. The Court had recommended the names of the three persons from the Bar to be appointed as Additional District Judges in their letter dated 1-10-1959. The said recommendation was in regard to the three petitioners. Out of the nine vacancies, five were thus recommended to be filled up.
In regard to the remaining four vacancies, it was stated that the Court had decided that they should also be filled up" by direct recruitment. It may be stated here that under Rule 6 of the Rules, of the posts in the cadre of the Service two-thirds were to be filled by promotion and one-third by direct recruitment. The decision of the Court to fill up the remaining four vacancies by direct recruitment had been communicated to the Government in the Court's letter dated 10-2-1960. Even though the vacancies occur earlier, due to practical difficulties, some of which are unavoidable, the recruitment from the Bar takes a long time -- sometimes 2 to 3 years. It was, therefore, stated in the letter that the Court did not think it advisable to keep those four posts vacant and proposed to fill them by promotion of Subordinate Judges for the time being as a temporary arrangement so that the work might not suffer; when direct recruitment of officers from the bar would be finalised namely, the four in respect of which yet the advertisement and other formalities had to be gone into, four of the junior officers who might be officiating as Additional District Judges would have to revert for the direct recruits if no fresh vacancies in the cadre would occur in the meantime. The names of four Subordinate Judges thus recommended for promotion were Sarvashri J. Narain (respondent No. 4), Sharda Prasad, Durga Prasad Sinha No. 1 and Bhanu Prakash Pandey. The Court also reminded the Government in their letter dated 24-3-1960 (Annexure X/6 to the counter-affidavit of respondent No. 2) referring to the Court's letter dated 3-3-1960 that although the Court's recommendation for appointment of three Additional District Judges from the Bar were made as far back as in October, 1959 in Court's letter dated 1-10-1959, Government's orders had not been received till then; the delay would very much affect the future career of the Bar Judges, meaning thereby the three petitioners whose names had already been recommended, and not the four who were to be appointed in the last four vacancies out of nine, in the matter of their seniority under Rule 16 (e) of the Rules. The Court, therefore, recommended to the Government that the appointment of the aforesaid three Bar Judges should be made earlier than the appointment of the Service Judges, namely, the four recommended in the Court's letter dated 3-3-1960, so that the interest of the Bar Judges may not be adversely affected. It appears that eventually the notification appointing the petitioners to the three posts was issued on 21-4-1960.
9. The State Government wrote to the Court on 7-3-1960 (Annexure X/3 to the counter-affidavit of respondent No. 2) in reply to the latter's letter dated 17-8-1959. The delay caused -- and sometimes unavoidably in correspondence between the High Court and the State Government -- at times causes some dislocation in the matter of seniority not generally amongst those who come by promotion but vis-a-vis the direct recruits as their appointment naturally takes a long time. The Government informed the Court in their letter that Sarvashri A.N. Sahay, and R.B.P. Sinha, Subordinate Judges, had been appointed to act as Additional District Judges against the newly created two posts consequent on the amendment of the Bengal, Agra and Assam Civil Courts Act, 1887. In regard to the Court's recommendation for promotion of Sarvashri C.P. Sinha and E. Rahman to act as Additional District Judges in the chain of appointment of two Peripatetic District and Sessions Judges, they were informed that Sarvashri K.P. Sinha and S.M. Hassan, retired District and Sessions Judges, however, were re-employed as Peripatetic District and Sessions Judges with effect from the 15th February and 1st February, 1960. There were other vacancies from earlier dates, for which recommendation of the Court was awaited. The Court was, therefore, requested to suggest the dates from which and the vacancies against which Sarvashri C.P. Sinha and E. Rahman were then proposed to be promoted to act as Additional District Judge so that steps for upgrading of the posts of the Deputy Registrar of the Court and the Secretary, Bihar Legislative Assembly Department, could be taken on receipt of the Court's reply.
It may be made clear here that two posts of Peripatetic District and Sessions Judges had been added to the cadre in May, 1959 but the posts could be filled up only in February, 1960 by re-employment of the two retired District and Sessions Judges. Although the Court, in substance and in effect, had already complied with the request made by the State Government in their letter dated 7-3-1960 when the former had written their letter on 3-3-1960, the formal reply to the letter dated 7-3-1960 was sent by the Court on 10-5-1960 (vide Annexure X/4 to the counter-affidavit of respondent No. 2). In this letter it was pointed out that nine vacancies had occurred in the posts of Additional District and Sessions Judge from 9-11-1959 to 6-2-1960, eight on the appointment of the Additional District Judges to the post of District Judges and one on the retirement of an Additional District Judge. In this letter, therefore, the Court stated that Shri C.P. Sinha and Shri E. Rahman should be appointed to act as officiating Additional District Judge against any two of the nine vacancies which had occurred in the cadre of the Additional District and Sessions Judges from a date with effect from which their posts were upgraded. The Court also reiterated their request made in their letter dated 17-8-1959 that two temporary ex-cadre posts of Additional District Judges may be sanctioned at an early date for a period until Sarvashri C.P. Sinha and E. Rahman continue to hold their respective posts, meaning thereby the posts of the Deputy Registrar of the Court and the Secretary, Legislative Assembly Department.
10. In this background, I shall now refer to the impugned order of the State Government contained in their letter dated 6-9-1960 (Annexure D to the writ application) to the Accountant-General, Bihar. The first paragraph of this letter reads as follows:--
"I am directed to say that the State Government have been pleased to upgrade the posts of Deputy Registrar Patna High Court and Secretary, Bihar Legislative Assembly Secretariat held by Sarvashri Chandrika Prasad Sinha and Enayetur Rahman respectively in the rank and scale of pay of the Additional District and Sessions Judge with effect from the 17th June, 1959 till posts are held by them."
It is manifest that the Under-Secretary to the Government, who wrote the above letter, communicated the order of the State Government to the Accountant-General that they have been pleased to upgrade the two posts held by respondents Nos. 2 & 3 in the rank and scale of pay of Additional District and Sessions Judge with effect from the 17th June, 1959, till posts were held by them. I may dispose of two short points here. During the course of argument, Mr. Basudeva Prasad endeavoured to show that there was no order of the State Government made in accordance with the procedure prescribed by the Rules of Executive Business. In reply Mr. M.C. Chagla, learned Counsel for the State, informed us that the order had been passed by the State Government after the matter was placed before, and considered by, the Council of Ministers as required by the Rules of Executive Business. But since this point was not taken in the petition, no specific reference has been made in the counter-affidavit of the State that the order had actually been passed in accordance with the Rules of Executive Business. We did not feel inclined to pursue this matter as we felt satisfied that the question of fact not having been specifically raised by the petitioners did not require any investigation. The second point which I would like to dispose of here is that it is not correct to say that the High Court had recommended the upgrading of posts held by respondents Nos. 2 and 3 for a limited period of 3 months 14 days, i.e., from 17-6-1959 to 1-10-1959. Even assuming it was possible to take this view, on the wordings or the letter dated 25-4-1959 written by the Registrar of the Court, it is abundantly clear that the recommendation made later in the subsequent letters was for upgrading the posts till they were held by respondents 2 and 3. The Government's order contained in Annexure D and extracted above is clear enough in that regard. The question as to whether it could take effect from the 17th June, 1959 will be discussed hereinafter.
11. It is undisputed that respondent No. 4 reverted to, worked on, the post of the Subordinate Judge from 2-10-1959 until he was appointed Additional District Judge in the substantive vacancy on 19-9-1960.
12. It would appear from the Supplementary Affidavit filed on behalf of the State of Bihar on 20-11-1968 that respondent No. 4 made a representation to the State Government on 10-4-1961 praying for fixation of his seniority just below Shri E. Rahman in the cadre of Additional District Judges and allowing him seniority with effect from 1-11- -1959. Two other representations dated 21-10-1961 and 3-8-1961 were also filed by the said respondent No. 4. The matter remained pending before the High Court and the Government were informed of their opinion in their letter 20-8-1964. The Court recommended the rejection of the representations. The State Government finding themselves not in a position to agree with the opinion expressed by the Court wrote back on 5-8-1965 requesting the Court to reconsider the matter. The Court in their letter dated 18-1-1966 informed the Government that they did not see any reason to reconsider their previous view. The matter was again thoroughly examined by the Government and then eventually the order was made on 24-1-1968 in favour of respondent No. 4 by the State Government. A copy of this order is contained in Annexure B to the counter-affidavit of respondent No. 4 filed on 27-9-1968. It is better to quote the order of the State Government contained in the letter dated 24-1-1968 written by the Under-Secretary to the Registrar of the High Court --
"I am directed to refer to your letter No. 501 dated 18-1-1966 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, Sri Narain may kindly be informed accordingly."
13. In order to decide various contentious questions raised in this writ application, it is first necessary to refer to certain other provisions of the Rules. Rule 4 says--
"Every post in the cadre of the service shall be filled by a person --
X X X X X
(iii) who is appointed a member of the Bihar Superior Judicial Service under Rule 5."
Rule 5 provides for appointment to the Service by direct recruitment or by promotion from amongst the members of the Bihar Civil Service (Judicial Branch). Rule 15 says that a member of the Service appointed by direct recruitment shall be on probation for a period of one year and shall not be confirmed unless he is found to be suitable in every respect for appointment to the Service; but promoted officers appointed against substantive vacancies in the cadre should forthwith be confirmed in the service. Then comes Rule 16 which may, for the sake of convenience, be called the fixation of seniority rule. It does not in term say who will fix or determine the seniority, it merely lays down certain rules for fixation or determination of seniority. Under Clause (a) of Rule 16 seniority inter se of direct recruits shall be determined in accordance with the date of their substantive appointment to the Service, and under Clause (b) seniority inter se of promoted officers shall also be determined in accordance with the dates of their substantive appointments to the Service. Clauses (c) and (a) relate to the fixation of seniority inter se of direct recruits when appointed at one time and seniority inter se of officers promoted from the Subordinate Judicial Service at one time. In this case there is no dispute, and could not be any, that respondents Nos. 2 and 3 had rightly ranked senior to respondent No. 4, in the post of the Superior Judicial Service. The question relates to the seniority of the petitioners, the three direct recruits, vis-a-vis respondents Nos. 2 and 3 who may be placed in one category and respondent No. 4 whose case, as I shall presently show, is different from that of the other two. The proviso to Rule 16 (e) says that "when a direct recruit and promoted officer are appointed on the same date, the promoted officer shall be senior to the direct recruit." This also is not the position here. We are concerned in this case with the interpretation of the main part of Clause (e) of Rule 16 which reads thus:--
"Seniority of direct recruit vis-a-vis promoted officer shall be determined with reference to the dates 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 in or outside the cadre:"
One of the contentious questions raised at the Bar in reeard to the interpretation of Clause (e) of Rule 16 is as to what is the meaning of the expression "may have been allowed to officiate continuously" occurring in the said clause. Argument on behalf of the State and respondent No. 4 was 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 which he could or might have been allowed to officiate continuously. I am not prepared to accept this argument. In my opinion, the expression aforesaid means actual and continuous officiation and not a fictional or notional one. The expression "may have been allowed" must mean "may have been allowed as a fact"; it cannot mean that because of the vacancies being there in the posts a subsequently promoted officer could or might have been allowed to officiate continuously earlier. Such an interpretation would lead to very anomalous, unjust and discriminatory results. As I have said above, it takes a considerable time even after the occurring of a vacancy in the post of the Service in making the appointment by direct recruitment from the Bar. By the time the appointment is finalised, the vacancy against which advertisement is made has to be and is filled up so that the work of the Courts may not suffer. Many other vacancies are likely to occur --and, as a matter of fact, occur before a member of the Bar is appointed to the service. Mr. Chagla also had to concede that such a notional or fictional officiation cannot be made available to a direct recruit merely because there were vacancies against which he could be appointed earlier. Since a direct recruit before his actual appointment was not holding any post under the Government, it is impossible to take the view that he could have been allowed to officiate continuously in a post in the cadre of the Service or outside it. The position of a man in the Subordinate Judicial Service is no better. He cannot be deemed to have officiated continuously in a higher post of Additional District Judge when actually he did work as a Subordinate Judge. He could not be empowered retrospectively to act as an Additional District Judge when, as a matter of fact, he acted as a Subordinate Judge. To give seniority to a promoted officer on the basis of a fictional or notional officiation will cause undue and patent hardship to a direct recruit. If at the time of his appointment there were a number of vacancies in the posts of the Service, all promoted officers -- promoted after him -- can take advantage of this fictional officiation and rank above him. On this basis not only respondent No. 4 but also the other three officers whose names were recommended for promotion in the letter of the High Court dated 3-3-1960 could and should have been given seniority over the petitioners. This by itself explains the absurdity in the interpretation sought to be put on behalf of respondents 1 and 4 to Clause (e) of Rule 16.
It may bear repetition to say that the petitioners applied for appointment against vacancies which occurred by 31st of January, 1959. They were appointed against three of the vacancies out of nine which had occurred from November, 1959 to February, 1960. And if they are. to be pushed down by the promoted officers appointed after them on the basis of the fictional or notional officiation, which as argued on behalf of respondent Nos. 1 and 4, can be made available only to the promoted officers and not to others, it will be, to my mind, grossly unjust and discriminatory to do so. Only under one circumstance a promoted officer can take advantage of his officiation in the post earlier than his substantive appointment and that is this. If he has been allowed to officiate in a leave vacancy and in continuation of such officiation, which also has the advantage of the note appended to the rule, namely,--
"A period of leave or the annual vacation of the Civil Courts will not be treated as an interruption for the purpose of this sub-rule", he is promoted to the substantive post, he will rank senior to the direct recruit appointed before the substantive appointment of the promoted officer but after he started officiating in the leave vacancy. To give more advantage than this, on the principle of a vacancy being there, to a promoted officer will be very anomalous. Respondent No. 4 officiated in a leave vacancy from 17-6-1959. If he could have been appointed to the substantive post on and from 9-11-1959, he could have ranked senior to any of the direct recruits who could have come in between the dates -- 17th of June and 9th of November, 1959. But when he was appointed sub-stantively to the post on 19th of September, 1960, it is difficult to fill up the long gap of about a year by this fictional or notional method as has been done by respondent No. 1 in his case. Mr. Chagla contended that the case of respondent No. 4 is not different from that of respondents 2 and 3.
14. The case of respondents 2 and 8, however, stands on a different footing. They were on special posts of Deputy Registrar of the High Court and Secretary of the Legislative Assembly. In the Governmental administration, taking recourse of the upgrading of posts, if it can be so done without doing violence to any other law or principle, is so common that it can almost be taken to be a settled practice or Rule to do so. In case of respondents 2 and 3, the State Government were pleased to upgrade the posts which they were holding from the 17th of June, 1959 till the posts were held by them. The result of the upgrading of the posts was that they were allowed actually to officiate continuously in the upgraded posts either in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility within the meaning of Clause (e) of Rule 16 of the Rules. The upgrading of a post stands on a footing quite obviously different from allowing fictional or notional officiation to a promoted officer as in the case of respondent No. 4.
15. I shall now consider what is the effect of the upgrading of the two posts held by respondents 2 and 3. They were performing duties in special posts. Although they had become due for promotion to the Superior Judicial Service the High Court as well as the Legislative Department felt the necessity of retaining their services. They were, therefore, not relieved to take their appointment in due course to the Service. Recommendations were made by the High Court for upgrading the two posts as early as in April and August, 1959. Even when clear substantive vacancies occurred, the same demand for upgrading their posts was repeated in the Courts letter dated 3-3-1960. The order of the State Government, however, was not issued prior to 6-9-1960. When issued, it, in terms, upgraded the posts held by respondents 2 and 3 in the rank and scale of pay of Additional District and Sessions Judge. Under Sub-rule (2) of Rule 3 the State Government have the power, from time to time, after consultation with the High Court, to amend the Schedule appended to the Rules, fixing the strength of the Service and the number and character of posts. To my mind, the effect of the upgrading of the posts was to amend the Schedule appended to the Rules and include in it temporarily with effect from the 17th June, 1959 the posts of the Deputy Registrar and the Secretary of the Legislative Assembly till those posts were held by Respondents 2 and 3. That the Schedule could be amended retrospectively will be borne out by the decision of the Supreme Court in B.S. Vadera v. Union of India, AIR 1969 SC 118. In that case, the Indian Railway Establishment Code had been issued by the President in exercise of the powers vested in him by the proviso to Article 309 of the Constitution. Rule 157 of the Code conferred full powers on the Railway Board to make rules of a general application to non-gazetted railway servants under their control. In exercise of the said power, the scheme (annexure 4 to the writ application before the Supreme Court) was actually framed on February 5, 1957 and the amended scheme (annexure 7) was framed on March 30, 1963. Both of them were made retrospectively effective from December 1, 1954, the date of the initial constitution of the Service under consideration there. Considering the question whether the Railway Board had, while acting under Rule 157, power to make a rule--in that case the schemes--giving effect from an anterior date, the Court by a unanimous judgment held that the Board had such power, because in absence of an Act of an appropriate Legislature under the main part or Article 309 the rule-making authority under the proviso has power to make a Rule both prospectively and retrospectively. Mr. Basudeva Prasad argued that the effect of the upgrading of the posts held by respondents 2 and 3 was to amend the Schedule appended to the Rules. If it was so, as I am inclined to think, it was, it could very well be done retrospectively.
16. Mr. Basudeva Prasad also contended that even though the Rules made under the proviso to Article 309 of the Constitution could be amended retrospectively, as held by the Supreme Court in B.S. Vadera's case, AIR 1969 SC 118 approving the Full Bench decision of the Allahabad High Court in Ram Autar Pandey v. State of U. P., AIR 1962 All 328, the Government has no power to make changes in the service conditions of their personnel with retrospective effect by mere executive instructions, as held by the Punjab High Court in Suresh Kumar v. Union of India, AIR 1969 Punj and Har 257. The power to amend the Rule retrospectively was noticed in paragraph 19 of that judgment also not only with reference to the Full Bench decision of the Allahabad High Court but also the Full Bench decisions of the Kerala High Court in C.K. Madhvan Nair v. Registrar, High Court of Kerala, AIR 1968 Ker 17 and V. Hari Haran Pillai v. State of Kerala, AIR 1968 Ker 42. In Suresh Kumar's case, AIR 1969 Punj and Har 257 However, the seniority list of the lower division clerks prepared and approved earlier according to Government executive instructions was changed according to new instructions issued subsequently for fixing seniority amongst lower division clerks. As a result of this, the appellants before the Court were reverted and ranked lower in the scale. In such a situation, it was held on the facts of that case that--
"Rights which have already accrued to a Government servant and the benefits which he might already have enjoyed under or by virtue of a pre-existing executive instruction or administrative direction cannot be taken away with retrospective effect by another executive instruction or a mere administrative direction."
The position in the instant case is quite different. The posts held by respondents Nos. 2 and 3 could be upgraded, as, for the reasons already stated, they were. It was not a question of changing the seniority of the petitioners by executive instruction or mere administrative direction. According to Rule 16 (e) of the Rules the said two respondents having officiated continuously in the upgraded posts had to rank senior to the petitioners. The unreported decision of the Supreme Court in the Income Tax Officer v. M.C. Ponnose, Civil Appeals Nos. 942 and 943 of 1966, D/- 28-7-1969 = (AIR 1970 SC 385) a copy of which was given to us, can also be of no avail to the petitioners as against respondents 2 and 3. Distinguishing B.S. Vadera's case, it was held that the notification dated August 14, 1963 could not by a retrospective operation invest the Tahsildar with the powers of a Tax Recovery Officer from April 1, 1962 under Section 2 (44) of the Income-tax Act, 1961 read with Sub-rule (2) of Rule 7 of the Income-tax (Certificate Proceedings) Rules 1962. There was no question of investing respondents 2 and 3 with any new or fresh power by the upgrading of the posts. In case of respondent No. 4, however, the unreported decision of the Supreme Court can be pressed in aid of the petitioners. For the purpose of seniority only he could not be deemed to have officiated in the post of an Additional District Judge when actually he did not officiate. The powers and the jurisdiction of the Additional District and Sessions Judge being higher than those of a Subordinate Judge and Assistant Sessions Judge could not obviously be conferred upon respondent No. 4 with retrospective effect.
17. Learned Counsel for the petitioners, however, urged that the Schedule could not be amended without publication of a notification in the official Gazette nor could it stand amended unless the order of the State Government fulfilled the requirement of Article 166 of the Constitution, He also submitted that without a communication of the order to the persons affected, it was not effective. I have no difficulty in rejecting all these arguments. Rule 3 (2) which empowers the State Government to amend the Schedule only lays down that they have to do it after consultation with the High Court which undoubtedly in this case was made, rather it was on the insistence of the High Court that the posts were upgraded. It does not require that the amendment of the Schedule has to be published in the Gazette. Nor any other Rule was brought to our notice making it incumbent upon the State Government to publish the amendment of the Schedule in a Gazette. Ordinarily and generally when the sanctioned strength of the Service will be increased or decreased, publication in the official Gazette may be made. But on the special facts of a particular case if, for a particular officer, in the exigency of the situation a particular post has got to be upgraded, the effect of which is to temporarily add that post to the sanctioned strength of the Service, publication in the Gazette is not necessary. Nor the order of upgrading the post was necessary to bo communicated to the petitioners as they cannot be said to be the persons affected by the order, in the sense it was so held by Mudholkar, J., in the case of Baclihittar Singh v. State of Punjab, AIR 1963 SC 395 delivering the judgment on behalf of the Court. Nor, in my opinion, it is correct to say, as was argued by the learned Counsel for the petitioners, on the basis of the said authority, that the order has to be expressed in the name of the Governor as required by Clause (1) of Article 166, otherwise it will be an invalid order. Relying upon earlier decisions of the Court in D.M. Pangurkar v. State of Bombay, AIR 1952 SC 181, State of Bombay v. Purushottam Jog Naik, AIR 1952 SC 317 and Ghaio Mall and Sons v. State of Delhi, AIR 1959 SC 65 as also on reference to Bachhittar Singh's case, AIR 1963 SC 395 it has been pointed out in R. Chitralekha v. State of Mysore, AIR 1964 SC 1823 in the majority judgment of the Court delivered by Subba Rao, J., as he then was, that "it is, therefore, settled law that provisions of Article 166 of the Constitution are only directory and not mandatory in character and, if they are not complied with it can be established as a question of fact that the impugned order was issued in fact by the State or the Governor."
In the instant case such a fact having not been challenged was not necessary to be investigated. I may also add that the order was not only communicated to the Accountant General, Bihar, but also copies of the letter dated 6-9-1960 (annexure D to the writ application), as that annexure itself shows, were forwarded to the Registrar, High Court, with reference to his letter No. 8177 dated the 17th August, 1959, i. e., annexure X/2 to the counter-affidavit of respondents No. 2, as well as to the other departments concerned. It was so done, as annexure D shows, "by the order of the Governor of Bihar". In my opinion, therefore, reading annexure D as a whole, it is possible to take the view that requirement of Article 166 had been substantially complied with. The order contained in annexure D by itself was not fixing any seniority to the prejudice of the petitioners. The order, therefore, was not necessary to be communicated to them. On the basis of the order and in pursuance of it, when seniority list (annexure E) was prepared, it must have been duly published in the Civil list and this must be deemed to have been communicated to the petitioners. Every order of upgrading of a post or appointment of an officer to the Service either by direct recruitment or by promotion need not be communicated to other officers concerned either appointed before or after.
18. Mr. Basudeva Prasad, in support of his submission that the order of upgrading the posts held by respondents 2 and 3 was necessary to be published in the Gazette, placed reliance upon the cases of Johnson v. Sargant, (1918) 1 KB 101; Shakoor v. Emperor, AIR 1944 Nag 40 and Babulal v. King Emperor, AIR 1945 Nag 218 which were all followed in Harla v. State of Raja-sthan, AIR 1951 SC 467. The point decided in all these cases is very different and based upon a principle which has no resemblance to the question at issue in this case, Bose, J., delivering the judgment of the Court, observed in Harla's case, AIR 1951 SC 467 at p. 468 (1) --
"In the absence of any special law or custom, we are of opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which they could not even with the exercise of reasonable diligence have acquired any knowledge. Natural justice requires that before a law can become operative it must be promulgated or published."
To equate the amendment of the Schedule with a penal law is not justified either on principle or on the language of the Rules.
19. If I am right in my view that the result of the upgradation of the two posts held by respondents 2 and 3 was to temporarily add those posts in the Schedule appended to the Rules, it is manifest that the said respondents were allowed to officiate continuously in the upgraded posts of the officers appointed to the Superior Judicial Service because they were actually working in those posts from long before the 17th of June, 1959. No fresh notification appointing them to the Service was necessary as was argued on behalf of the petitioners. Learned Counsel on their behalf during the course of argument at one time strenuously urged that respondents 2 and 3 were never appointed to the Service. It was difficult -- rather impossible to accept such an argument when, as a matter of fact, after reversion to the general line both the respondents have held the posts of District and Sessions Judge for a number of years. If the view I have expressed above in regard to the amendment of the Schedule appended to the Rules be taken to be doubtful or not correct, continuous officiation of respondents 2 and 3 can also be supported for the purpose of Clause (e) of Rule 16 of the Rules "in posts outside the cadre on identical time-scale of pay and of equal status and responsibility." The effect of the upgradation of the two posts was that the posts remaining outside the cadre were manned by respondents 2 and 3 and on identical time-scale of pay and of equal rank or status and consequently of equal responsibility. The term 'rank' or 'status' will be found used in the correspondence of the High Court resulting eventually in the order of the State Government contained in Annexure D to the writ application. Learned Counsel for the petitioners drew our attention to the statement of respondent no. 2 in paragraph 8 of his counter-affidavit wherein he said--
"The publication of this upgrading order of Government in the Gazette was not necessary under any Rule or law. Since the deponent and opposite party No. 3 were not to exercise any new power or to do any work in these upgraded posts which they had not been exercising or doing from before the 17th June, 1959, there was no question of their fresh appointments to these upgraded posts or its publication in the Gazette."
He submitted that the statement aforesaid shows that the posts were not of equal status and responsibility, for the purpose of pay the mere making them of identical time-scale was not sufficient to confer seniority on respondents 2 and 3 above the petitioners as the use of the word 'and' shows that the posts were also required to be of equal status and responsibility. The very fact of upgrading the posts in the rank and scale oi pay of the Additional District and Sessions Judge made the posts as those of identical time-scale of pay and of equal status and responsibility. The statement of respondent No. 2 in paragraph 8 of his counter-affidavit merely refers to the nature of the work which respondents 2 and 3 were doing before upgrading of the posts. While doing the same work they were found fit for being appointed as Additional District and Sessions Judge. They could be allowed to serve on the post by raising its status. The effect of the upgrading, therefore, was to allow them to officiate continuously in posts of higher grade which on their upgrading assumed the status and responsibility of that of the post of an Additional District Judge.
20. One question, however, deserves consideration in connection with the alternative view which I have expressed above with reference to the latter part of Clause (e) of Rule 16 of the Rules and that is this. Could respondents 2 and 3 be allowed, as they were, to officiate continuously in equivalent posts outside the cadre from a date, i. e., 17th of June, 1959 if there were no vacancies in the cadre posts? There seems to be some confusion in this regard as to when a post in the cadre will be deemed to be vacant. Can a post of an Additional District and Sessions Judge be held to be vacant on the retirement of a District and Sessions Judge? Arguments were advanced at the Bar even on this tooting as also on the other basis that the post of an Additional District and Sessions Judge will be vacant only when an officer of that grade in that post is appointed to act as District and Sessions Judge on the retirement of such an officer. Personally speaking, I consider the latter view to be more sound and reasonable. Apart from the strength of Service, the two kinds of posts, namely, of District and Sessions Judge cannot be of the same grade for all purposes. It is evident that the post of an Additional District and Sessions Judge, although not subordinate to, is of a grade lower than, that of a District and Sessions Judge. It is in that context that the word 'promotion' occurring in Article 233 of the Constitution will be intelligible. In the same cadre advancement of an officer from the post of an Additional District Judge to that of a District Judge will also be a promotion. So viewed, in my opinion, the vacancy in the cadre for appointment to the post of an Additional District Judge does not occur merely on the retirement of a District Judge, it occurs only when on such retirement an Additional District Judge is promoted and made to act as a District Judge. The vacancy in the post of a District Judge, to my mind, cannot be equated with a vacancy in the post of an Additional District Judge. It would thus be noticed that the first vacancy out of the nine vacancies which occurred in November, 1959 to February, 1960 started to occur on 9-11-1959 when Mr. M.P. Verma, as he then was, was allowed to officiate as a District Judge, as correctly stated in Court's letter dated 10-5-1960 (annexure X/4 to the counter-affidavit of respondent No. 2). Similar is the statement in Court's letter dated 3/3/1960 (annexure X/5) with only this difference that the first vacancy is said to have occurred on 1-12-1959 in that letter on appointment of Shri Jugal Kishore Prasad as a District Judge with effect from that date, while the ninth and the last one was stated to have been caused on the appointment of Mr. M. P. Verma as District Judge of newly created judgeship of Singh-bhum. It appears, however, that as a matter of fact before Mr. M.P. Verma was transferred as District Judge of the newly created judgeship of Singhbhum to take over charge there on 4-2-1960, he was appointed as District Judge of some other district (of Mon-ghyr as I was informed) with effect from 9-11-1959, and that is the reason that the last item of the ninth vacancy mentioned in annexure X/5 has become the first item of the same nine vacancies mentioned in annexure X/4. The Court, it seems, have always proceeded--and if I may say so--rightly in the matter of treating the vacancy in the post of Additional District Judges only when actually such a vacancy has occurred on the appointment of an officer working in that Post as District Judge. The view of the State Government as evidenced in their impugned order dated 24-1-1968 contained in annexure B to the counter-affidavit of respondent No. 4 that the vacancy occurred on 1-11-1959 on the retirement of Mr. Anaut Singh, as he then was, from the post of a District Judge does not seem to me to be correct. If it were possible to take such a view then it could be said in favour of respondents 2 and 3 that on the sanction of the two posts of Peripatetic District and Sessions Judge in May, 1959 which posts remained vacant all throughout until they were filled up in February, 1960 by two retired District Judges, two posts in the cadre were vacant and when they were allowed to officiate continuously in equivalent posts outside the cadre on and from the 17th June, 1959, they were allowed to do so at a time when two cadre posts were vacant. But I do not feel persuaded to subscribe to such a view. In my opinion no post of Additional District Judge can be said to be vacant in the cadre which could be filled by respondents 2 and 3 on 17-6-1959 as the two additional posts which were sanctioned in view of the amendment of the Bengal, Agra and Assam Civil Courts Act, 1887 were allowed to be filled up by two other officers, namely, Sarvashri A.N. Sahay and R.B.P. Sinha. The other posts which fell vacant in the grade of Additional District Judge in the cadre fell vacant only from 9-11-1959 onwards. Nine such posts fell vacant from that date upto 6-2-1960. And, that seems to be the reason that the Court finally, in their letter dated 3-3-1960, as reiterated in their letter dated 10-5-1960, suggested to fill up two out of the nine posts by the upgrading of the two special posts held by respondents 2 and 3, as recommended earlier in the two Court's letter dated 25-4-1959 and 17-8-1959 and three by the appointment of direct recruits as recommended in Court's letter dated 1-10-1959. Even if it be assumed that the upgrading of the posts from June 17, 1959 was not quite regular, there is no difficulty in taking the view in favour of respondents 2 and 3 that the upgrading of the special posts held by them was regular and perfectly justified from 9-11-1959 in the case of respondent No. 2 and 1-12-1959 in the case of respondent No. 3, as the other three posts which fell vacant on 142-1959, 11-12-1959 and 16-12-1959 will be deemed to have been filled up by appointment of the three petitioners on 21-4-1960. Even on taking a technical view of the matter, therefore, it would be" manifest that in any event respondents 2 and 3 would be senior to the petitioners.
21. The case of respondent No. 4, however, stands on a different footing. His name along with other three officers was recommended for appointment in the substantive vacancies which occurred between 11-1-1960 and 6-2-1960 for the first time in the Court's letter dated 3-3-1960. Even that recommendation was conditional, as, on the basis of two-third and one-third quota, the Court, on accounting, had decided that the said four posts were eligible to be filled up by direct recruits but since that would take time, the four vacancies were recommended to be filled up for the time being from Subordinate Judicial Service. As a matter of fact the direct recruits to those four posts, as usual, came much later. Respondent No. 4 was appointed substantively to the post of Additional District Judge on 19-9-1969, and in no view of the matter, he could be given a fictional seniority by the State Government from 1-11-1959 as done by them in their impugned order dated 24-1-1968. There could be no question of upgrading the post of a Subordinate Judge to that of an Additional District Judge. Under the Bengal, Agra and Assam Civil Courts Act, 1887, the powers and the pecuniary jurisdiction of the two courts are evidently different. Upgrading of a post of a Subordinate Judge or allowing respondent No. 4 to officiate continuously in that post deeming it to be a post of an Additional District Judge was not possible for obvious reasons. I fail to understand then how it was possible for the State Government to say in their letter dated 24-1-1968 (annexure B to the counter-affidavit of respondent No. 4) that the State Government had been pleased to decide that respondent No. 4 would rank below respondents 2 and 3 but above the petitioners 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". For the reasons already given, such a deeming officiation for the purpose of determination of seniority within the meaning of Clause (e) of Rule 16 of the Rules was neither legitimate nor permissible under the Rules. Viewed from a practical and equitable aspect, one may appreciate the grievance of respondent No. 4--as I do--that having joined the Judicial Service on the same day on which respondents nos. 2 and 3 joined and even though vacancies did occur between November, 1959 and 1960 to one of which he could be appointed, as ultimately was done in September, 1960, by appointment of the three direct recruits, he has to part company in the matter of seniority from respondents 2 and 3 and give way to the petitioners. The sympathy for respondent No. 4 is watered down when the same, for the reasons as adverted to by me above, is extended to the petitioners. They had applied to be appointed at a time when even respondents 2 and 3 were not eligible to be promoted in any substantive vacancy of the Superior Judicial Service, yet their actual appointment came a year later and they had to lose seniority to many including respondents 2 and 3 for the reasons already stated. The said two respondents being in special posts could legitimately be given seniority over the petitioners by the upgrading of those posts from a back date.
It is a matter of sheer chance which one may characterise as misfortune, that respondent No. 4 could not be given the same advantage as at the time when his promotion became due to the substantive post, he was not working in any special post. Whenever direct recruits are appointed, they always interpose for the purpose of seniority between two promoted officers whose seniority before their promotion has been in juxtaposition, merely by the fact of the direct recruits being appointed between the appointments of the said two promoted officers. After all, in service such chances or occasions are unavoidable and one has to reconcile to such a situation as occurred in the case of respondent No. 4. However, sympathetic I may feel for him, J have not been able to persuade myself to hold that the decision of the State Government in regard to his seniority over the petitioners is legal or valid. On the facts and in the circumstances of the case, I have got to hold that the order of the State Government dated 24-1-1968 fixing the seniority of respondent No. 4 over the petitioners is not only illegal but also ultra vires as I shall show hereinafter.
22. In the view I have expressed on merits in regard to the case of respondents 2 and 3 as against the petitioners, it is not necessary to go into the question as to whether mere determination of seniority one way or the other violates Article 16 of the Constitution. Nor is it essential, in regard to the impugned order determining the seniority of respondent No. 4 for the purposes of the writ application under Article 226 of the Constitution, to find any violation of fundamental right.
23. I have no difficulty in rejecting the ingenious argument of Mr. Basudeva Prasad that since the matter of promotion of a Subordinate Judge is included in the power and control of the High Court under Article 235 of the Constitution, his promotion to the higher rank of Additional District Judge is within the exclusive control of the High Court and the Governor cannot make appointment by promotion to the post of Additional District Judge under Article 233 of the Constitution. It is well settled by several decisions of the Supreme Court that on a harmonious construction of Articles 233 and 235 appointment of persons to be and the posting--meaning the first posting on such appointment and promotion of District Judges which expression includes Additional District Judges in any State is within the power of the Governor who has to exercise that power in consultation with the High Court. Apart from the three matters aforesaid, the entire control over district courts or courts subordinate thereto vests in the High Court. Clause (1) read with Clause (2) of Art. 233 clearly suggests that appointment to the Superior Judicial Service can be from two sources, namely, Subordinate Judicial Service, as held by the Supreme Court in Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987, and the Bar as envisaged by the second clause. When S.K. Das, J. speaking for the Court in Rameshwar Dayal v. State of Punjab, AIR 1961 SC 816 said--
"Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or of the State, no special qualifications are laid down and under Clause (1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court, As to a person not already in service, a qualification is laid down in Clause (2) and all that is required is that he should be an advocate or pleader of seven years' standing,"
and when Subba Rao, C. J., said in Chandra Mohan's case, AIR 1966 SC 1987--
"There are two sources of recruitment namely (i) service of the Union or of the State and (ii) members of the Bar.", under Article 233 of the Constitution, nobody seems to have thought of suggesting that appointment under Article 233 could be from one source only, namely the Bar and the promoted officers could be taken only by the High Court in exercise of their power under Article 235. This argument is too obviously wrong to merit any detailed discussion. He built up the whole argument on the footing of one sentence occurring in column 2 at page 1708 in the decision of the Supreme Court in the High Court, Calcutta v. Amal Kumar Roy, AIR 1962 SG 1704, wherein the words are:
"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."
The word 'promotion' simpliciter in the same cadre has also got a meaning in the sense of conferment of more powers or promotion to the next grade or the like. Promotion to a higher rank strictly speaking is an appointment it is appointment by promotion.
24. Learned Counsel for the petitioners, however, was on a firm ground when he submitted with reference to the case of respondent No. 4 that the power to determine seniority vests in the High Court under Article 235, Government had no such power. Mr. Chagla combated this point strenuously.
25. In the State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447 Hidayatullah, J., as he then was held that "the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges". Mr. Chagla submitted that determination of seniority of an officer is a term of contract of service or is a condition of service and hence it is outside 'control' envisaged by Article 235 of the Constitution because the conditions of service are to be determined by the Governor in the case of District Judge and in the case of others subordinate to him by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission, and with the High Court. It is true that the fixation of seniority Rule being a part of the Rules governs the conditions of service of the Superior Judicial Officers. So far Mr. Chagla is correct. But who is to fix or determine the seniority in accordance with the Rules? That power obviously is not covered under Article 233 but is inherent in the power of control envisaged by Article 235. If 'control' could include disciplinary control as held in Nripendra Nath Bagchi's case, AIR 1966 SC 447 by the Supreme Court after rejecting a similar argument, it is not correct to say that the control vesting in the High Court under Article 235 of the Constitution will not have within its sweep or embrace the power to fix or determine seniority. The High Court, however, will have to do so in accordance with the Rules framed by the Governor under the proviso to Article 309 of the Constitution.
26. In State of Assam v. Ranga Muhammad, AIR 1967 SC 903 Hidayatullah, J., as he then was, had again the occasion to consider the ambit of the power of the High Court under Article 235 of the Constitution vis-a-vis the power of the Governor under Article 233. Giving a restricted meaning to the word 'posting' occurring in Article 233, it was held that it could not include 'transfer' the word means "the assignment of an appointee or promotee to a position in the cadre of District Judges". The power of transfer, even though it can be said to be related to the contract or condition of service, was held to vest in the High Court and not in the Government. Learned Counsel on the basis of the decision of the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647, also submitted that the strength of the ratio of the decisions of Hidayatullah, J., in the two cases referred to above has been diluted later by that Court. Tn my opinion, if I may say so with respect, nothing of the kind has been done by Hegde, J., in the Orissa case That the power of the Governor under Article 233 is in regard to three matters only -- appointment, posting and promotion of District Judges, and the control not only over the subordinate judiciary but also upon members of the Superior Judicial Service extends over other matters is firmly established by the two decisions of the Supreme Court. But the said power, according to the decision of the Supreme Court in Orissa case, could not be exercised so as to encroach upon, or interfere with, the power of the Government in their exclusive domain. In exercise of the power of transfer of a superior judicial officer, the High Court could not foist any officer on the Government to work in the Secretariat.
27. Learned Counsel for the State has cited a Full Bench decision of Kerala High Court in N. Srinivasan v. State of Kerala, AIR 1968 Ker 158 and submitted that determination of seniority conies within the power of the Government as it is a condition of service of the officer concerned. Raman Nayar, J., giving the leading judgment on behalf of the Bench, said at p. 164 (Col. 2), to which our attention was drawn by the learned Counsel, that "the power to regulate such conditions conferred by Article 309 is altogether untrammelled by anything in Article 233 or 234". Undoubtedly it would be so. In that case the question was of fixing the age of superannuation and in that connection it was further said that "the tenure of a civil servant is undoubtedly a condition of his service". To fix the age of superannuation, therefore, would be within the power of the Governor.
28. Learned Counsel for the State pointed out that the State Legislature had plenary powers to enact laws under items 3 and 41 of List II of the Seventh Schedule appended to the Constitution, the former being in matters relating to administration of justice, constitution and organisation of courts except the Supreme Court and the High Court and the latter for State Public Services. He, therefore, submitted that under Article 162 of the Constitution the executive power of the State Government being co-extensive with the legislative power, will include the power to determine the seniority of a judicial officer. The argument so baldly put, if accepted, would make the provisions of, Article 235 nugatory. All the powers of control over all kinds of courts and officers presiding over them shall be the executive power of the State, High Court will have no power. But it is to be pointed out that Article 162 is subject to the other provisions of the Constitution and is, therefore, subject to the power of the High Court vested in them under Article 235.
29. Mr. Chagla further submitted that any matter which entails financial expenditure or liability must come within the power of the Government and since determination of seniority involves such a matter, it cannot but be within the power of the State Government. The financial aspect of the matter is important when appointments are made either by promotion from the Subordinate Judicial Service or by direct recruitment. Extra financial burden is cast upon the State when new posts are added to the existing cadre either permanently or temporarily or when posts held by judicial officers' are upgraded. But once a decision is taken in regard to the matter of appointment, addition to the strength of the cadre or upgrading of a post, which undoubtedly has to be taken by the Government, their power is exhausted. The fixation or determination of seniority of the officers thereafter does not involve any question of finance and does not entail any financial expenditure. Determination of seniority according to the Rules governing the service conditions is a matter which comes in the general control of the courts and the officers.
30. The next contention put forward on behalf of the State is that the word 'posting' in Article 233 includes within its ambit, and means, fixation of the place of the person posted in the cadre. I am unable to accept this argument as sound. As already stated, 'posting' means assignment of job and in common parlance it means giving of a post to a person appointed and the place of first posting, it cannot mean a place in the gra-ation list which has got to be determined in accordance with the Rules. In the light of the several decisions of the Supreme Court, I have no hesitation in coming to the conclusion that it is within the exclusive power of the High Court on their administrative side under Article 235 of the Constitution to determine the seniority of a judicial officer including a person belonging to the Superior Judicial Service. It is conceded at the Bar that respondent No. 4 had no right of appeal from the decision of the High Court under the law regulating the conditions of his service, even assuming that a right of appeal to the State Government could be granted from the decision of the High Court taken on their administrative side, although I must hasten to say that in the set up of our present Constitution it seems doubtful whether the State Government can be considered to be an authority superior to the High Court in matters where the latter have got exclusive power. The order of the State Government dated 24-1-1968 contained in annexure B to the counter-affidavit of respondent No. 4 is ultra vires also as the State Government had no power to decide the seniority as against the decision of the High Court, which decision was communicated to the State Government twice when the High Court recommended for rejection of the representation of respondent No. 4. It is, however, obvious that on this ground also the petitioners will not be entitled to any relief as against respondents Nos. 2 and 3. It would appear from the letter of the Registrar of the High Court dated 20-8-1964 to the Chief Secretary to the Government of Bihar, a copy of which is annexure X to the counter-affidavit of respondent No. 2 that the High Court had communicated their decision and view while forwarding the representation of the petitioners to the Government that there was no ground made out for placing them above respondents nos. 2 and 3 in the gradation list,
31. Lastly, Mr. Chagla endeavoured to bring the case of respondent No. 4 within an omnibus Rule which he characterised as a 'hardship rule' framed by the Governor by issuing a notification dated 28th of November, 1956 under the proviso to Article 309 of the Constitution. The said Rule reads as follows:
"Where the State Government are satisfied that the operation of any Rule regulating the conditions of service of State Government servants, or any class of such Government servants, causes undue hardship in any particular case, they may by order dispense with or relax the requirements of that Rule to such an extent and subject to such conditions as they may consider necessary for dealing with the case in a just and equitable manner."
I am of the opinion that if the power to determine seniority vests in the High Court under Article 235 of the Constitution, it is not within the power of the State Government to take recourse to the Rule aforesaid and upset the decision of the High Court. What the Government cannot do directly, they cannot do indirectly. Further, it seems to me that it is not open to the State Government in exercise of their power under the above Rule to dispense with or relax the requirements of Rule 16 (e) of the Rules so as to cause prejudice and affect the civil rights of other officers which they acquired under that rule, I may also add that the facts which I have stated above with reference to the cases of the parties can never lead to the conclusion that they caused undue hardship in the particular case of respondent No. 4 so as to justify dealing with his case only in a manner different from others. Such a hardship as was caused to respondent No. 4 cannot be said to be undue. It just occurs in many cases as it did occur in the case even of the petitioners as also of the other three officers who were recommended for promotion with respondent No. 4 in the letter of the High Court dated 3-3-1960. It is just a hardship which comes in the very nature of things involved in the matter of service.
32. For the reasons stated above, I hold that the order of the State Government dated 6-9-1960 contained in annexure D and the seniority list, a copy of which is annexure E to the writ application, cannot be quashed. The petitioners are entitled to no relief as against respondents nos. 2 and 3. They are however, entitled to relief against respondent No. 4. The order of the State Government, respondent No. 1 contained in their letter dated 24-1-1968, a copy of which is annexure B to the counter-affidavit of respondent No. 4 is quashed by grant of a writ of certiorari, as it related to the determination of the seniority of respondent No. 4 visa-vis the petitioners. A writ of mandamus would issue against the State Government, respondent No. 1 directing them not to give effect to the said order dated 24-1-1968. The application is, accordingly, allowed to the extent indicated above but in the circumstances I shall make no order as to cost.
Misra, C.J.
33. I agree. I may, however, add that the practice followed that on retirement of a District Judge a vacancy occurs in the cadre of Superior Judicial Service and that it may be filled up by recruitment in any of the modes provided in Rule .5 of the Bihar Superior Judicial Service Rules, 1946, is correct. There is no difference between the post of an Additional District Judge and the District Judge except in the time scale of pay as provided in Rule 7. Barring this difference, the cadre is the same as is provided in Rule 2 which says -- "In these rules, unless there is anything repugnant in the subject or context, 'cadre' means the cadre of the Bihar Superior Judicial Service." and Rule 4 provides for the manner in which the post shall be filled up and Rule 5 states further that "Appointments to the Bihar Superior Judicial Service, which shall, in the first instance, ordinarily be to the post of Additional District and Sessions Judge, shall be made by the Governor in consultation with the High Court--". Thus, though an Additional District Judge becomes a District Judge only when the High Court is satisfied about his fitness for such appointment and the Government accept their recommendation, yet since the cadre is one, viz., Bihar Superior Judicial Service, as soon as a District Judge retires, a vacancy much be held to occur in the cadre.
34. Allied to this question is another consideration which is that when a post not borne on the cadre of Service is upgraded in the interest of an officer who would be promoted to the cadre but who is serving under the Government on a different post, upgradation is the method adopted so that the officer may continue on the post outside the cadre without having to suffer any loss in emoluments or otherwise. This does not necessarily mean that such upgradation amounts to addition of that post to a cadre and thus amendment of the Schedule in terms of Rule 3. This is done as a matter of departmental exigency and the Government have ample power to take recourse to this method by creating an ex-cadre post in which category alone such upgraded post can be fitted. In that view of the matter, it will not be necessary to take recourse to any formality by way of a gazette notification etc. My learned brother, however, has held that even if it were treated as temporary addition to the cadre strength, no formalities of a gazette notification etc. would be necessary. It is a proposition, in which I concur:
G.N. Prasad, J.
35. I agree, for the reasons set out it length by my learned brother Untwalia, J., that respondent No. 4 has no lawful claim to seniority over the petitioners who, in their turn, have no lawful claim to seniority over respondents Nos. 2 and 3. I, however, agree with my Lord, the Chief Justice, that the upgradation of the posts of the Deputy Registrar of the Patna High Court and the Secretary of the Bihar Legislative Assembly made in terms of the Government Order dated the 6th September, 1960 (Annexure 'D') to the writ application) did not have the effect of amendment of the Schedule envisaged in Rule 3 of the Bihar Superior Judicial Service Rules, 1946. It had only the effect of rendering those two posts fit for a short duration to be manned by officers holding the rank and status of Additional District and Sessions Judge. But I am of the opinion that a vacancy in the rank of District and Sessions Judge does not ipso facto create a vacancy the rank of Additional District and Sessions Judge. I would refer in this connection to Rule 5 which provides, inter alia, that appointments to the Bihar Superior Judicial Service shall, in the first instance, ordinarily be to the post of Additional District and Sessions Judge. The use of the word "ordinarily" in Rule 5 shows that appointment of a person directly to the post of District and Sessions Judge is not ruled out, and if such an appointment is made on any special occasion, there would be no vacancy in the cadre of Additional District and Sessions Judge. If, however, an appointment of a District and Sessions Judge is made by promotion of an Additional District and Sessions Judge, then that would cause a vacancy in the cadre of the Additional District and Sessions Judges. In other words, there is no automatic vacancy in the cadre of the Additional District and Sessions Judges in consequence of a vacancy in the cadre of District and Sessions Judges. It is true, as my Lord has said, that the cadre is one, viz., the cadre of the Bihar Superior Judicial Service, as Rule 2 (a) also provides. But for all practical purposes, the cadre is divisible into two, one of District and Sessions Judges and other officers of equivalent rank and the other of Additional District and Sessions Judges. It will be noticed that in two communications of the High Court to the Government, namely, the letter dated the 25th April, 1959 (Annexure 'X-1' to the counter-affidavit of respondent No. 2) and the letter dated the 17th August, 1959 (Annexure 'X-2' to the said counter-affidavit), mention was made of vacancies "in the cadre of Additional District and Sessions Judges."
36. With these observations I agree to the order as proposed by Untwalia, J.