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PETITIONER: CHANDER BHAN

       Vs.

RESPONDENT: HOTILAL GUPTA AND OTHERS

DATE OF JUDGMENT09/10/1990

BENCH: KANIA, M.H. BENCH: KANIA, M.H. FATHIMA BEEVI, M. (J)

CITATION:  1990 SCR  Supl. (2) 133  1991 SCC  Supl.  (2) 156  JT 1991 (1)   163        1990 SCALE  (2)733

ACT:     Punjab Courts Act, 1918/High Court Rules and Orders Vol. I  Chapter XVIII A: Section 35(3)/Rules II, IV &  VI--Promo- tion   to  the  post  of  Upper  Division  Clerk---Rule   of rotation--Whether applicable to the establishment of  Judge, Small Causes Court.

HEADNOTE:      One  post  of Upper Division Clerk/English  Clerk  fell vacant  in the Small Causes Court. Appellant made his  claim to the post on the footing that he was a graduate and on the basis  of Rule of Rotation embodied in Rule VI of  the  High Court Rules and Orders, Volume 1, Respondent No. 1 made  his claim  on  the basis of seniority. The Judge,  Small  Causes Court  took  the  view that the appellant  was  entitled  to promotion  in preference to Respondent No. 1 because of  the rule of rotation. On an Administrative Appeal, the  District JUDGMENT: applicable  to  the  establishment of  Judge,  Small  Causes Court,  and  appointed Respondent No. 1  as  Upper  Division Clerk.  The Appellant preferred a departmental appeal  which was  heard by a Single Judge on the Administrative  side  of the  High  Court.  He took the view that  the  promotion  in question could be made by the District & Sessions Judge, and should be in accordance with the rule of rotation.     Respondent No. 1 challenged the said decision by way  of a  Writ Petition. The High Court allowed the  Writ  Petition and  held  that not only initial appointments but  also  ap- pointments by promotion were to be made by the Judge,  Small Causes  Court and not by the District & Sessions Judge,  and that the rule of rotation was not applicable.     Against  the  High Court’s decision, the  appellant  has preferred  this  appeal  contending that  the  promotion  in question could only be made by the District & Sessions Judge and  that  the rule of rotation was applicable even  to  the appointment by promotion. Dismissing the appeal, this Court, HELD: 1. Whenever a specific mention is made regarding a 134 particular  officer  of  an establishment in  a  rule,  that particular  rule would normally apply to that  establishment alone  and the powers conferred by that rule would  be  con-

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ferred  on the officer mentioned in the rule. Rule VI(1)  of the  High Court Rules speaks of appointments to  the  higher grades  of  the ministerial establishments and  states  that these  appointments should ordinarily be made  by  seniority from  lower grades provided that the officer to be  promoted possesses  the qualifications prescribed. The first  proviso to that rule goes on to say that the permanent vacancies  in the original grade of Rs.75-5-125 shall be filled in by  the District & Sessions Court by rotation as set out in the said sub-rule (1) of Rule VI. The 1st part of Rule VI deals  with appointments by promotion to the higher grade of ministerial establishment.  Generally it must be held applicable to  the establishment  of the District & Sessions Court as  well  as that  of the Judge, Small Causes Court. This part,  however, does  not deal specifically with the question as to  who  is the  officer  competent  to promote. In view  of  this,  the proviso can only be construed as laying down that, where the power of appointment by promotion is vested in the  District &  Sessions  Judge, in making appointments by  promotion  to fill  in the permanent vacancies in the said original  grade of Rs.75-5-125, rule of rotation set out in the first provi- so  to clause (I) of Rule VI should ordinarily be  followed. It  is not disputed that there is a separate Cadre  for  the Court  of  Small  Causes. Rule IV(3) shows  that  the  first appointment  of  the ministerial officers in  the  Court  of Small Causes is to be made by the Judge of the Small  Causes Court. [139F-H; 140A-C]     2.  A  reading of sub-section (1) of the  Punjab  Courts Act,  1918  the High Court Rules,  and  Notification  issued makes  it clear that appointments by promotion to the  posts in  the  entire ministerial cadre other than  those  in  the process  serving and mental establishments in the  Court  of Small  Causes have to be made by the Judge, Court  of  Small Causes  and the first proviso to Rule VI(1) prescribing  the rule  of rotation has no application to  such  appointments. Moreover, it would be unreasonable to apply the principle of rotation  to the Court of Small Causes where there  is  only one U.D.C. The principle of rotation can be made  applicable to the District & Sessions Court because there are a  number of posts of Upper Division Clerks. It would be irrational to apply  that  principle  of rotation to the  Court  of  Small Causes   in   which  there  is  only  one   Upper   Division Clerk/English Clerk. [140D-E]     3.  In  the seniority list of the establishment  of  the Judge  of Small Causes Court, Delhi, the name of  Respondent No. 1 appears at Serial No. 9 whereas that of the  appellant appears  at Serial No. 19. Both of hem satisfy the  test  of integrity. The only claim the appellant can have 135 is on the principle of rotation as he is a graduate. As that principle does  apply to an appointment by promotion to  the post  in  question, the   claim of the appellant  cannot  be upheld. [140F-G]

&     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  592  of 1982.     From the Judgment and Order dated 7.8.198 1 of the Delhi High Court in Civil Writ Petition No. 1003 of 1974. Prithvi Raj and T.C. Sharma for the Appellant. Dr. Arun Kumar and V.B. Saharya for the Respondents. The Judgment of the Court was delivered by     KANIA, J. On the retirement of one Jagan Nath Kohli, who

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was  holding  the  post of Clerk of  Court  (Upper  Division Clerk) in the grade of Rs. 130-300 (old Scale  Rs.75-5-125), one post of Upper Division Clerk (U.D.C.)/English Clerk fell vacant  in  the  office of the Judge,  Small  Causes  Court, Delhi.  Five officials of that court, namely, the  appellant and respondents nos. 1, 5, 6 & 7 asserted their claim to the said  post. The appellant, Chander Bhan, made his  claim  on the  footing that he was a graduate and on the basis of  the rule  of rotation as embodied in Rule VI in Chapter  XVIII-A of  the  High Court Rules and Orders, Volume-I  referred  to more  particularly  hereinafter. Respondent no.  1,  Hotilal Gupta, claimed the said post on the basis of his  seniority. We are not concerned with the claims of the other  claimants because  the contest before us is between the claims of  the appellant  and  respondent no. 1. The  Judge,  Small  Causes Court in his order dated August 10, 1971, took the view that the  appellant  who is a graduate and has  got  2-1/2  years office  experience as Lower Division Clerk (L.D.C.), was  an honest and efficient worker and was entitled to promotion in preference to respondent no. 1 because of the rule of  rota- tion.  The aggrieved parties filed an Administrative  Appeal before  the District & Sessions Judge, Delhi who passed  his order dated July 17, 1973 and held that the rule of rotation did  not  apply  to the establishment of  the  Judge,  Small Causes Court. He held that respondent no. 1 being the senior most  official as Lower Division Clerk was entitled  to  the post  of  Upper  Division Clerk  and  accordingly  appointed respondent  no. 1 as Upper Division Clerk against  the  said vacancy. Being aggrieved, the appellant filed a departmental appeal  against  the said order to the High Court  of  Delhi which was heard by a learned 136 Judge  on the Administrative Side of that Court who, by  his order  dated  August  7. 1974. accepted the  appeal  of  the appellant and set aside the appointment of respondent no. 1. He took the view that promotion in the office of the  Judge, Small Causes Court, Delhi could only be made by the District and  Sessions  Judge, Delhi and that the vacancy  should  be filled in accordance with rule VI of the Rules framed by the erstwhile  Punjab  High Court, under section  35(3)  of  the punjab  Courts Act, 1918, for subordinate services  attached to  Civil  Courts  other than the  High  Court  (hereinafter referred to as ’the said rules’).     Respondent no. 1, Hotilal Gupta challenged the  correct- ness of the view taken by the learned Judge on the  Adminis- trative  side by filing a writ petition being C.W. No.  1003 of  1974  in  the Delhi High Court. By an  order  dated  7th August,  198 1, the Division Bench of the Delhi  High  Court allowed the said writ petition, quashed the order dated  7th August, 1974, passed by the learned Single Judge and  upheld the order of the District and Sessions Judge, Delhi appoint- ing  respondent no. 1 to the said post. The  Division  Bench took  the  view that not only the initial  appointments  but also  the  appointments by promotion to the  post  of  Upper Division  Clerk  in the office of the  Judge,  Small  Causes Court  were to be made by the Judge, Small Causes Court  and not  by the District and Sessions Judge, and held  that  the rule  of  rotation on the basis of which the  appellant  had been  appointed to the said post by the order of the  Single Judge  on the Administrative Side was not applicable to  the said appointment. It is submitted by learned counsel for the appellant  that the Division Bench of the High Court was  in error in coming to the said conclusion. It was submitted  by him that although the first appointment to the post of Upper Division  Clerk  in the office of the  Judge,  Small  Causes

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Court, Delhi is to be made by a Judge of Small Causes Court, promotion to that post could only be made by the District  & Sessions  Judge  and the rule of rotation contained  in  the first proviso to Rule VI of the said Rules was applicable to the appointment by promotion.       order  to  consider  the merit of  the  submission  of learned  counsel for the appellant, it is necessary to  bear in mind the relevant provisions of law.     The relevant portion of section 35 of the Punjab  Courts Act. 191S reads as follows: "(1) The ministerial officers of the District Courts and 137 Courts  of Small Causes shall be appointed and may  be  sus- pended or removed by the Judges of-those Courts  respective- ly. (2)  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (3) Every appointment under this section shall be subject to such rules as the High Court may prescribed in this  behalf, and  in dealing with any matter under this section, a  Judge of a Court of Small Causes shall act subject to the  control of the District Court."     The  rules  for subordinate services attached  to  Civil Courts  other than the High Court were framed by  the  erst- while  Punjab High Court under section 35(4) of  the  Punjab Courts  Act. A perusal of Rule II of the said Rules  dealing with  classification, shows inter alia that Clerks of  Court to  Senior Subordinate Judges and Judges of Courts of  Small Causes and English and Vernacular Clerks form a joint cadre. Subrule (b) of Rule II of the said Rules inter alia provides that  there shall be a separate cadre for each Revenue  Dis- trict  and a separate cadre for each Court of Small  Causes. Rule III deals with qualifications and sub-rule (2) of  that Rule  provides  that  no person shall be  appointed  to,  or accepted as a candidate for, any clerical ministerial  post, unless  he has passed the Matriculation Examination  of  the Punjab University or an equivalent examination. The material part of Rule ’IV runs as follows: "IV. First appointments. First appointment shall be made as follows: (1) By the District Judge:- (a) Ministerial officers in his own court and in all  courts controlled by the District Court other than Courts of  Small Causes; . (b) x      x      x (2) x      x      x (3)  By the Judge of a Court of Small  Causes:-  Ministerial Officers and menials in his own Court." .. 138    Rule  V  deals with appointment and sub-rule (1)  of  that Rule thereof runs as follows:           "(1) Appointment to ministerial posts shall  ordi- narily  be  made either by open competition or by  selection from a list   of qualified candidates or apprentices accept- ed by the District Judge. Judge of a Small Causes Court,. or Sub-Judge to  whom powers of appointment have been  delegat- ed,  as the case may be. Any departure from either of  these methods  should be reported to the High Court for  confirma- tion." Rule VI. which is of central importance in this appeal  runs as follows:           "VI.  Promotion--(1)  Appointments to  the  higher grades   of the ministerial establishment should  ordinarily be  made  by seniority from lower grades, provided that  the official  who  would thus receive  promotion  possesses  the

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prescribed  educational qualifications and is otherwise  fit to  perform   the duties to which he will be  promoted,  for which purpose tests may be imposed. This rule does not apply to  such  posts as that of stenographer, for  which  special qualifications are needed; but preference should be given to officers   with such qualifications who are already  working in the lower grades:               Provided  that  permanent  vacancies  in   the 75-5-125  grade shall be filled by the District and Sessions Judges in  the following rotation:           (i)  By  selection on merit out of  graduates  who have  at  least  two years’ experience in the  work  of  the office,  if there is no suitable graduate who  fulfils  this condition  an ’outsider’ graduate may be appointed,  but  he must be one who  normally resides within the jurisdiction of the District and  Sessions Judge. (ii)  &  (iii) By normal promotion in-the office,  i.e.  the appointment of the next senior man whether graduate or  non- graduate subject to his fitness:  Provided further that the rotation may be modified in 139        very exceptional cases when the direct appointment of a  graduate  would mean the ousting of a man- who  had  been officiating  quasi-permanently  in the  post  concerned  for an  appreciable period. What is an appreciable  period  will depend  on  the  circumstances of each case.  After  such  a modification.  the  rotation should be restored as  soon  as possible.        (2) In making promotions preference may invariably be shown  to officials who are known to be strictly honest.  No promotion   should  be  given  and  no  recommendation   for promotion  made  in  the case of an official  who  does  not possess and maintain a reputation for strict integrity. Effi ciency without honesty is not to be regarded as   constitut- ing  a claim to promotion.’      A  Notification  dated October 28, 1953 was  issued  in exercise  of the powers conferred by the proviso to  Article 309 of the Constitution and in supersession of the Notifica- tion issued earlier on February 17, 1941. The said Notifica- tion  sets out that subject to such general rules as may  be made by the Hon’ble Judges of the Punjab High Court in  that behalf appointments to the posts on the establishment of the Civil Courts at Delhi specified in Column (1) of the  Sched- ule thereto shall be made by the Authority specified in  the corresponding  entry in Column (2) of the said  Schedule.  A perusal of the Schedule shows that appointments to the posts on  establishments  other than process  serving  and  menial establishments in the Small Causes Court at Delhi are’ to be made by the Judge, Small Causes Court, Delhi. It  has been pointed out in the impugned judgment  that  the establishment of the District and Sessions Court and that of the Court   of the Small Causes constitute separate  cadres. This  is not disputed before us. Hence, whenever a  specific mention is made regarding a particular officer of an  estab- lishment  in  a rule, that particular  rule  would  normally apply  to that establishment alone and the powers  conferred by that rule would be conferred on the officer mentioned  in the  rule. Rule VI(1) speaks of appointments to  the  higher grades  of  the ministerial establishments and  states  that these  appointments should ordinarily be made  by  seniority from lower grades provided that the official to be  promoted possess the qualifications prescribed. The first proviso  to that rule goes on to say that the permanent vacancies in the original  grade  of Rs.75-5-125 shall be filled  in  by  the District  and Sessions Court by rotation as set out  in  the

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said  sub-rule  (1) of Rule VI. The first part  of  Rule  VI deals with appointments by promotion to the higher grade  of ministerial establishment. Generally it must be 140 held  applicable  to the establishment of the  District  and Sessions  Court  as well as that of the Judge of  the  Small Causes Court. This rule, however, does not deal specifically with  the  question as to who is the  officer  competent  to promote. In view of this, the proviso can only be  construed as  laying  down  that, where the power  of  appointment  by promotion  is vested in the District and Sessions Judge,  in making  appointments by promotion to fill  in.the  permanent vacancies in the said original grade of Rs.75-5-124, rule of rotation set out in the first proviso to clause (1) of  Rule VI  should ordinarily be followed. It is not  disputed  that there  is  a separate Cadre for the Court of  Small  Causes. Rule IV(3) shows that the first appointment of the  ministe- rial  officers in the Court of Small Cause is to be made  by the Judge of the Small Causes Court. The notification  dated October  28,  1953  referred to earlier  provides  that  the appointments to the posts on establishment other than  proc- ess  serving and menial in the Court of Small Causes are  to be made by the Judge, SmaLl Causes Court, Delhi.         A  reading of sub-section (1) of the  Punjab  Courts Act  and the rules and Notification discussed earlier  makes it clear that appointments by promotion to the posts in  the entire  ministerial cadre other than in the process  serving and menial establishments in the Court of Small Causes  have to be made by the Judge, Court of Small Causes and the first proviso  to Rule VI(1) prescribing the rule of rotation  has no  application to such appointments. Moreover, it would  be unreasonable to apply the principle of rotation to the Court of Small Causes where there is only one U.D.C. The principle of  rotation can be made applicable to the District  &  Ses- sions  Court  because there are a number of posts  of  Upper Division Clerks. It would be irrational to apply that  prin- ciple  of  rotation to the Court of Small  Causes  in  which there is only one Upper Division Clerk/English Clerk.      In the seniority list of the establishment of the Judge of  Small Causes Court, Delhi, the name of respondent no.  1 appears  at Serial No. 9 whereas that of the  appellant  ap- pears  at  Serial No. 19. Both of them satisfy the  test  of integrity.  The only claim the appellant can have is on  the principle of rotation as he is a graduate. As that principle does not apply to an appointment by promotion to the post in question, the claim of the appellant cannot be upheld. As we have  already observed, none of the other  respondents  have pressed their claims in the High Court or here.       In  the  result, the appeal fails  and  is  dismissed. Looking  to the facts and circumstances of the  case-  there will be no order as to costs. G.N.                                            Appeal  dis- missed, 141