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PETITIONER: THE HIGH COURT, CALCUTTA

       Vs.

RESPONDENT: AMAL KUMAR ROY

DATE OF JUDGMENT: 09/04/1962

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R. AIYYAR, T.L. VENKATARAMA

CITATION:  1962 AIR 1704            1963 SCR  (1) 437  CITATOR INFO :  R          1966 SC1197  (15)  R          1966 SC1529  (15)  R          1971 SC 766  (8)  RF         1975 SC 613  (30)  F          1976 SC1899  (20,28)  RF         1976 SC2490  (34)  R          1980 SC1426  (22)

ACT: State  Judicial Service-Power of High Court-Supersession  of seniority   of   Munsif  in   promotion-If   punishment   or penalty--Suit,  if lies--Constitution of India,  Arts.  235, 311(2), 320(3) (c), 14,16(1)-Civil Services (Classification, Control and Appeal) Rules rr. 49, 55A.

HEADNOTE: This  was  an appeal by special leave by the judges  of  the Calcutta  High Court against the decision of the City  Civil Court  at Calcutta decreeing the respondent 1’s suit.   That respondent  was  a Munsif in the West Bangal  Civil  Service (judicial) and had issued an injunction in his own favour in a case where he was the plaintiff.  That order of injunction was  set aside in appeal by the appellate Court.   When  the cases of several Munsif came up for consideration before the High  Court for inclusion of names in the panel officers  to officiate  as Subordinate judges, the respondent’s name  was excluded.   He was told by the Registrar of the Court  on  a representation  made  by him that the Court had  decided  to consider  his  case  after a year.  As the  result  of  such exclusion respondent 1, who was then the senior most in  the list   of  Munsifs  lost  eight  places  in  the  cadre   of Subordinate judges before he was 438 actually  appointed  to  act as  an  Additional  Subordinate fudge.  His case in substance was that this exclusion by the High Court amounted in law to the penalty of "withholding of promotion"  without giving him an opportunity to show  cause and  he  prayed  that a declaration might be  made  that  he occupied  the same position in respect of seniority  in  the

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cadre  of  Subordinate judges as he would have  done  if  no supersession  had taken place and claimed arrears of  salary payable to a Subordinate judge.  The trial Court decreed the suit.   A preliminary objection was taken in this  Court  on behalf of the appellants that the controversy raised was not justiciable. Held, that there was no cause of action for the suit and the appeal must succeed. There  could  be  no  doubt  that  under  Art.  235  of  the Constitution the High Court was the sole authority to decide the  fitness  of a Munsif to be appointed as  a  Subordinate judge and the exercise of its power was not justiciable. Article  235,  read with the service rules,  clearly  showed that  a  Munsif  had no right to  promotion  that  could  be enforced  through  court.  Rule 55A of  the  Civil  Services (Classification,   Control   and  Appeal)   Rules   had   no application to the State of West Bengal and r. 49  conferred no   right  to  promotion  but  only  a  safeguard   against imposition  of  any  punishment by  way  of  withholding  of promotion  without  adequate opportunity to show  cause  and operated only when there was a disciplinary proceeding. It  was not correct to say that the High Court  should  have consulted  the  State Public Service Commission  since  Art. 320(3)(c) of the Constitution also contemplated disciplinary matters. Nor was it correct to say that the respondent I was  reduced in  rank as a result of the High Court’s action  within  the meaning of Art. 311(2) of the Constitution.  The word ’rank’ in  Art.  311(2)  referred to classification and  not  to  a particular  place  in the same cadre in the hierarchy  of  a service.  All Subordinate judges were in the same cadre  and held  the same rank irrespective of seniority.  Losing  some places  in the seniority list, therefore, did not amount  to reduction in rank. Nor were Arts. 14 and 16(1) violated.  Equal opportunity did not  mean getting the particular post for which a number  of persons  was  considered.   So  long  as  one  was   equally considered  along  with others there could be no  denial  of equal  opportunity  if  ultimately he was  not  selected  in preference to the others.                             439

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 193/1961. Appeal  by special leave from the judgment and decree  dated February  17,  1960, of the City Civil Court,  Calcutta,  in Title Suit No.’409 of 1958. A.   C.  Mitra,  B.  Das,  B. Basak  and  P.  K.  Bose,  for appellants Nos. 2 and 1(a) to 1(t). M.   C.  Setalvad,  Attorney General of India, B.  Das,  B. Basak and P. K. Bose, for appellant No. 2. M.   Adhikari,  Advocate General, Madhya Pradesh and  I.  N. Shroff, for intervener No. 1. P.   D. Menon, for intervener No. 2. S.   M. Sikri, Advocate-General, Punjab and P.    D.  Menon, for the intervener No. 3. G.   C. Kasliwal, Advocate-General, Rajasthan, S. K.   Kapur and P. D. Menon, for intervener No. 4. G.   R. Ethirajulu Naidu, Advorate-General, Mysore and P. D. Menon, for intervener No. 5. C. P. Lal, for intervener No. 6. 1962,  April 9. The Judgment of the Court was delivered by SINHA,  C.J.-This  Appeal,  by special  leave,  is  directed

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against the judgment and decree dated February 17, 1960,  of the City Civil Court at Calcutta, decreeing the  plaintiff’s suit  for  a declaration and consequential  reliefs,  to  be hereinafter  noticed.  The appeal arises under very  special circumstances.  the most notable feature of the  case  being that  it  comes direct to this Court from the  judgment  and decree  of the Trial Court, without having gone through  the ordinary  process of appeal to the High Court  of  Calcutta. The  reason  why this happened was that the  High  Court  of Calcutta, and the sitting judges 440 of  that  Court,  were  the  appellants,  having  been   the principal  contesting  defendants in the Trial  Court,  and, therefore,  could  not,  in all propriety,  have  heard  the appeal.   That was the reason why special leave was  granted to  appeal from the judgment and decree of the  Trial  Court itself. In  order  to  bring out the points  in  controversy  it  is necessary to state the following facts.  The plaintiff,  who is  now functioning as on Additional District  and  Sessions Judge,  was, at the date of the suit filed or, September  4, 1958, a member of the West Bengal Civil Service  (Judicial). He joined the service on April 1, 1937, as a Munsif, and was duly  confirmed on April 1, 1939.  In the West Bengal  Civil List,  corrected  up to January 1, 1954, his  name  appeared against  serial No. 53, in the list of Munsifs.  Just  above him  against serial No. 52 was Shri Bibhutosh Banerjee,  and the  name  of Shri Jagadindranath Hore  (Respondent  No.  2) appeared  against  serial No. 54.  In course  of  time,  all Munsifs down to serial No. 52-Shri Bibhutosh Banerjee in the Civil  List  aforesaid  were  appointed  to  the  posts   of Subordinate  Judges, according to their seniority  indicated in  that  list.  In February 1955 the plaintiff was  at  the head  of the list of Munsifs.  In April 1955, the  plaintiff noticed  that  the  second  respondent  aforesaid  had  been appointed  a Subordinate Judge, and the notification of  his appointment appeared in the Calcutta Gazette dated April 28, 1955,  although the plaintiff had not received any order  of appointment as a Subordinate Judge.  On representation being made by the plaintiff to the High Court, he was informed  by the  Registrar  of  the Court that  "the  Court  decided  to consider his case again in December 1955." In the  meantime, several  other Munsifs, whose names appeared below  that  of the   plaintiff  in  the  Civil  List,  were  appointed   as Subordinate  Judges, one after another.  The plaintiff  then addressed a petition of appeal against                             441 the  action  of the High Court in not appointing  him  as  a Subordinate  Judge,  to the Governor of the State,  of  West Bengal.  That appeal was withheld by the High Court with the remakes   "that   the  action  complained   of   not   being disciplinary  action,  no such appeal lies."  The  plaintiff thereupon addressed a petition to the Governor, praying that the  said petition of appeal withheld by the High Court,  as aforesaid,  be called for.  This petition was also  withheld by  the  High  Court with the remarks that  in  the  Court’s opinion no such petition lay.  In April 1956, the  plaintiff was appointed to act as an Additional Subordinate Judge,  by an  order  of  the  High  Court.   In  the  meantime,  eight Munnsifs,  who  occupied  lower places  in  the  Civil  List (impleaded  as  proforma defendants in the  suit)  had  been appointed  and  posted  as  Subordinate  Judges,  one  after another  in  succession, in the order in which  their  names appeared  in  the Civil List.  In May  1956,  the  plaintiff addressed  a memorial to the Governor of West Bengal.   This

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memorial  was also withheld by the High Court on the  ground that no such memorial lay.  The plaintiff bad sent a copy of the  memorial  to the Secretary to the  Government  of  West Bengal  (Judicial  Department).   He  was  informed  by  the Department  that  the Governor had  declined  to  interfere. Thereupon  the  plaintiff instituted’ the  suit,  originally against   the  State  of  West  Bengal,  as  the   principal defendant,  and  the eight Munsifs, who had  been  appointed Subordinate  Judges  in  preference  to  the  plaintiff,  as proforma  defendants.   But  subsequently, on  the  plea  of defect  of parties, raised in the written statement  of  the State ’%of West Bengal, the High Court of Calcutta, and  the sitting Judges, were added as defendants 1(a) to 1(x) in the category  of  principal  defendants.  The  cause  of  action alleged  in  the plaint was that the High  Court  had  never declared  the  plaintiff as unfit to act  as  a  Subordinate Judge; it had never called upon the plaintiff to show cause, under Art. 311(2) of the 442 constitution,  or r. 55-A of the Civil  Services  (Classifi- cation,  Control and Appeal) Rules, as to why his  promotion should  not  be with held.  As a matter of  fact,  the  High Court  never  declared,  in  terms, that  it  was  going  to withhold the plaintiff’s appointment as a Subordinate Judge. On  the  contrary,  the plaintiff was  vested  with  special powers  two  months  before  April  1955,  when  the   order complained of was passed by the High Court, conferring  upon him  pecuniary jurisdiction to try suits of the  value  upto Rs.  3500/-; and small cause court suits up to the value  of Its.  300/--powers which ordinarily are conferred by way  of stepping-stones to subordinate judgeship.  The plaintiff was also allowed to cross the efficiency bar at the higher level on due date, namely April 1956, and was recommended for  ap- pointment as the Assistant Sessions Judge, soon after he was posted  as a Subordinate Judge.  The plaintiff also  made  a point  of  the  fact that though the  High  Court  expressly declared that its action in not appointing him a Subordinate Judge in the ordinary course was not by way of  disciplinary action, or of imposing a penalty, within the meaning of  cl. (ii) of r. 49 of the Civil Services (Classification, Control and  Appeal)  Rules, the High Court  actually  withheld  the plaintiff’s  promotion  as Subordinate Judge,  withheld  his petition  of "appeal to the Governor, and (lid  not  consult the  West  Bengal State Public  Service  Commissioner.   The plaint  also added that the Munsifs and  Subordinate  Judges belong to one and the same service, namely, the West  Bengal Service  (Judicial),  and that a number of tile  service  is entitled  to  be  considered  for  promotion  according   to seniority,  to  the West Bengal Judicial  Service.   In  the premises,  the plaintiff prayed that "a declaration be  made that he occupies the same position, with the same privileges and  benefits, as if he had been appointed as a  Subordinate Judge  immediately before the second respondent",  and  that ,his name be inserted in the West Bengal Civil List, and  in any other relevant gradation list maintained as a  443 Subordinate  Judge immediately below that of Shri  Bibhutosh Benerjee and immediately above that of Shri Jagadindra  Nath Hore".   Arrears  of salary as Subordinate  Judge,  together with  dearness , allowance, with interest at 6%  per  annum, amounting to Rs. 1,090/- were also claimed, and a  permanent injunction  was  also  prayed for  directing  the  principal defendants to place the plaintiff’s name in the Civil  List, in  terms of the declaration sought, besides other  reliefs, not necessary to be mentioned here.  The suit was  contested

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mainly by the added defendants, as the first defendant,  the State  of  West  Bengal, disclaimed. any  knowledge  of  the action  taken  by the High Court, or  the  reasons  thereof, though  it denied that the plaintiff bad a cause of  action, or  that  he was entitled to any  relief.   The  substantial defence  to  the suit raised by the High Court was  that  in December  1951,  the High Court considered the  question  of inclusion  of  names  of certain Munsifs  in  the  panel  of officers to officiate as Subordinate Judges; the plaintiff’s name  was excluded from that panel, and it was decided  that the High Court would consider his case a year later, after a special  report from the District Judge concerned; and  that the plaintiff was not thought fit, at that time, to act as a Subordinate  Judge.  On the question of plaintiff’s  fitness as a judicial officer, the High Court made reference to  the plaintiff having issued an injunction in his own favour,  in a case in which he himself was the plaintiff.  The order  of injunction  was  judicially considered, on appeal,  and  set aside.  The matter came up before, a Full Court of the  High Court  for  consideration administratively, as a  result  of which  a  Committee of three Judges of the  High  Court  was appointed  to  consider  the  plaintiff’s  conduct.    After considering the plaintiff’s explanation, the High Court came to  the conclusion that his explanation was  unsatisfactory, and  that-his conduct should a total disregard of all  judi- cial propriety.  It was denied that the plaintiff’s case 444 came  within  the  scope and ambit of  Art.  311(2)  of  the Constitution,   or   r,   55-A   of   the   Civil   Services (Classification, Control and Appeal) Rules.  It was  claimed on behalf of the High Court that under the Constitution  and otherwise  the  High  Court  was  the  sole   administrative authority to determine questions of promotion of Munsifs  to Subordinate   Judge’s  grade;  in  exercise  of  that   solo authority  and  discretion, the High  Court  considered  the plaintiff’s  case  for promotion as Subordinate  Judge,  and passed  orders on a proper appreciation of  the  plaintiff’s record of service, and in the best interests of the judicial administration  of the State.  It, was also denied that  the plaintiff’s  case  should have been referred  to  the  State Public  Service Commission.  It was affirmed that the  suit, as   framed   claiming  the  reliefs  aforesaid,   was   not maintainable.  The High Court relied upon the provisions  of Art.  235 of the Constitution, as vesting complete  control, authority,  jurisdiction  and  discretion  to  consider  and decide  the question of fitness of a Munnsif to be  promoted as  a Subordinate Judge, and its order in not promoting  the plaintiff,  after  a proper consideration of his  record  of service, was neither a disciplinary action nor an imposition of a penalty, which would bring his case within the  purview of  the State Public Service Commission, and  the  plaintiff had no right of appeal against the order of the High  Court, complained of, as it was not governed by the Civil  Services (Classification,  Control and Appeal) Rules, relied upon  by the  plaintiff.  In the premises, it was contended that  the Court had so jurisdiction to entertain the suit or to  grant any of the reliefs claimed by the plaintiff. On those pleadings, and after recording the plaintiff’s  and considering the documentary evidence adduced by the parties, the learned Judge below, of the City Court, observed at  the outset  that  at  the trial, the  learned  counsel  for  the plaintiff did not  445 rely upon the provisions of Art. 311(2) of the Constitution, though  reference  to it had been made in  the  plaint.   He

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relied upon the provisions of Art. 235 of the  Constitution, read  with  rr.  49,  55-A and  56  of  the  Civil  Services (Classification, Control and Appeal) Rules, and came to  the conclusion  "that  the  High  Court  intentionally  deferred consideration  of the plaintiff’s promotion with a  view  to penalizing him for his conduct in the past...", and that the plaintiff  was  entitled to bring the suit inasmuch  as  the High  Court  was  not  authorized, under  Art.  235  of  the Constitution,  to  withhold  the  plaintiff’s  promotion  as Subordinate  Judge, without complying with the  requirements of the Rules aforesaid.  In the result, the suit was decreed with  costs,  giving the declaration sought for, as  also  a money  decree  for  Rs, 1,060/-, as arrears  of  salary  and dearness  allowance.  The judgment and decree of  the  Civil Court,  is  dated  February 17, 1960.  On  April  12,  1960, application  for  special  leave to appeal  to  this  Court, directly  from the judgment and decree aforesaid, was  made, and the special leave was granted by this Court on April 26, 1960. In  this  Court, at the very outset,  the  learned  Standing Counsel for the Government of West Bengal very properly  and candidly   admitted   before  us  that  due   to   defective instructions  he  had not brought it to the  notice  of  the learned Trial Judge that the r. 55-A, enacted in 1948 by the Governor-General, was not applicable to the Judicial Service in Bengal.  The plaintiff-respondent, who argued his case in this Court in person, with singular ability and persistence, was  not able to show to the contrary.  We must,  therefore, proceed  on the footing that this Rule does not,  in  terms, apply to this case, and is wholly out of the way. At  the threshold of his arguments, the learned counsel  for the appellants contended that the suit was not  maintainable because the controversies raised 446 by the plaintiff are not justiciable.  We have, therefore to determine  the  question whether the issues  raised  in  the pleadings  of the parties were justiciable.  The  answer  to this  question must depend upon the answer to the  questions whether the plaintiff had a right to promotion, which  right had  been  withheld from him., thus giving him  a  cause  of action.   Was the plaintiff subjected to a penalty,  without taking  the necessary proceedings, as contemplated  by  Art. 311(2) of the Constitution, or the Service Rules?  Was there any  breach of procedure, laid down by law,  in  determining the  plaintiff’s right, if any.  Was the action of the  High Court  postponing  by  a  year  the  consideration  of   the plaintiff’s   promotion   as   Subordinate   Judge   without jurisdiction?  Was there any delegation of powers under Art. 235  of  the  Constitution  to  the  English  Committee,  as contended  by the plaintiff respondent?  Was there a  breach of  the  provisions of Art. 320(3)(c) of  the  Constitution? Was  the plaintiff "reduced in rank" within the  meaning  of Art.  311(2) of the Constitution?  These are  matters  which are  interconnected  and will, therefore, have  to  be  con- sidered together.  The question whether the plaintiff had  a right  to promotion has to be determined with  reference  to the provision of the Bengal, Agra and Assam Civil Courts Act (XII  of 1887)-which may for the sake of brevity  be  called the  Civil  Courts Act along with the Civil  Service  Rules governing  the  judicial  branch  of  the  Provincial  Civil Service  of West Bengal.  The Civil Court  Act  consolidated the law relating to Civil Courts in Bengal, and other  parts of  India.   By s. 3, it prescribed four  classes  of  Civil Courts, namely; (1) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the

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Subordinate  Judge; and (4) the Court of the Munsif.  By  s. 21  of  the  Act, appeals from a Munsif  shall  lie  to  the District  Judge, who may assign the appeal to be heard by  a Subordinate Judge.  Hence, in the  447 hierarchy  of  the Courts in the district, the  Court  of  a Subordinate  Judge  is higher in rank than the  Court  of  a Munsif which stands at the bottom.  But the Civil Courts Act does not make any provision about promotion from the rank of a Munsif to that of a Subordinate Judge, or the machinery or the  process  by  which a Munsif may  become  a  Subordinate Judge.   Under s. 255 of the Government of India Act,  1935, the  Governor  of a Province, after  consultation  with  the Provincial  Public  Service Commission, and  with  the  High Court   concerned,   was  authorised  to  make   rules   for recruitment to the Subordinate Civil Judicial Service, which expression  meant civil judicial posts inferior to the  post of a District Judge.  By sub-s.(3) of that section, the High Court was vested with the power of posting, promotion,  etc. of  persons  belonging  to  the  service,  subject  to   the conditions of service, laid down by the Governor.  After the inauguration of the Constitution, Art. 235 vests the control over  District  Courts.,  and  courts  subordinate  thereto, including the posting and promotion of persons belonging  to the  Judicial Service of a State, holding any post  inferior to  that  of the District Judge, in the  High  Court.   This power  of the High Court is subject to any right of  appeal, which  a  member  of  the service may  have  under  the  law regulating  the conditions of his service, and to his  other rights  under that law.  It is therefore, clear  that  after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial Service, holding any post  inferior  to  that of a District  Judge.   It  is  not contended  by  the plaintiff-respondent that  there  is  any other  authority  which  could have dealt with  him  in  the matter  of promotion from the post of a Munsif to that of  a Subordinate Judge.  But it was contended that the  authority of the High Court, derived as it is solely from Art. 235, is subject to the service 448 rules governing the matter.  Even so it was not claimed that there is anything in the rules, which categorically  confers a  right  on the plaintiff to be promoted as  a  Subordinate Judge.  What is claimed by the plaintiff is that r. 49(2) of the Civil Services (Classification Control and Appeal) Rules embodied  his right in a negative way, namely that he  shall not be with held promotion except by recourse to proceedings contemplated  by  that rule, and the  rules  following  that rule.   In  other  words the plaintiff is  not  claiming  an absolute  right to promotion, irrespective of  the  question whether  or  not there is a vacancy in the higher  cadre  or that  he  must be promoted when he  becomes  the  seniormost Munsif.  He claims that, under the Rules aforesaid, if there is  a vacancy in the cadre of Subordinate Judges, he  should have been appointed in that vacancy of a Subordinate  Judge, as  he was the seniormost Munsif and that if a Munsif  lower to  him in the seniority list is appointed as a  Subordinate Judge  in that vacancy, without good or  sufficient  reasons being  shown,  and without giving him the right  of  appeal, then  his  right is infringed, and in that sense  he  claims that  he has a right not to be withheld promotion from  him, and that in the events that have happened, his  supersession by  a  Munsif junior to him in the Civil  List  amounted  to withholding promotion from him within the meaning of r.  49.

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That  rule lays down several categories of penalties,  which may for good and sufficient reasons be imposed upon a member of the service.  One of those penalties is "’withholding  of increments   or   promotion..  including  stoppage   at   an efficiency  bar", and r. 55-A lays down that a penalty  like that of withholding promotion, as also some other  penalties not  relevant to our present purpose, shall not  be  imposed upon  a  member  of the service unless  he  has  been  given adequate  opportunity of making any representation  that  he may  desire  to make, and such representation, if  any,  has been taken into consideration before the order                             449 imposing  the  penalty is passed.  One thing is  clear  with reference  to  Art. 235, read with the service  rules,  that there  is no right of promotion which the  ,plaintiff  could have  claimed to enforce by action in a Court.  Rule 49,  on which  reliance was placed by the plaintiff to make out  his right to be considered for promotion as a Subordinate Judge, is in the first instance, not a right but only a safe  guard to a public servant that punishment by way of withholding of promotion  shall not be imposed upon him unless he has  been given  adequate  opportunity of showing  cause  against  the action  proposed to be taken.  It is also clear that  r.  49 comes  into play only when proceedings are taken by  way  of disciplinary action against a public servant.  In such  dis- ciplinary  proceedings,  the  Government  servant  proceeded against  has  a  right to insist upon  the  procedure  being strictly  followed.   But  in this case there  was  no  such disciplinary   proceeding   against   the   plaintiff,   and therefore, r. 49 is wholly out of the way.  If r. 49 is  not available  to  the  plaintiff,  r.  55-A  was  equally   not available to him, even assuming that the rule applied to the case  of members of the State Judicial Service.  It  follows from  what  has been said that there was no  question  of  a penalty  being imposed upon the plaintiff.  That  being  so, there could not be any breach of the procedure laid down  by the rules for proceedings against a government servant, like the plaintiff. But  it  was argued by the plaintiff that the  action  taken against  him, namely, postponing consideration of  his  case for  promotion  as a Subordinate Judge,  as  aforesaid,  was beyond  the  jurisdiction of the  English  Committee.   This argument is advanced on the assumption that the High  Court, as  such,  had delegated its powers, under Art. 235  of  the Constitution,  to the English Committee, which passed  final orders  against him.  In our opinion no foundation was  laid in the plaint for any 450 such contention.  It it; not alleged in the plaint that  the resolution  of  the English Committee of the Judges  of  the Calcutta  High  Court,  dated December  16,  1954,  was  not adopted  by the Full Court in accordance with the  Rules  of Business laid down by that Court.  According to r. 1 of  Ch. I  of  the  High  Court Rules, there  shall  be  a  Standing Committee,  called  the English Committee, composed  of  the Chief  Justice  and  at  least  four  other  Judges,  to  be appointed from time to time by the Chief Justice.  According to r. 2 this Committee shall be associated with the  control and direction of the Subordinate Courts, and according to r. 3 the English Committee shall have power inter alia "to make recommendations   for   the   appointment   of   Subordinate Judges..."   The  English  Committee,  therefore,   by   its resolution aforesaid, only made a recommendation, which  re- commendation has to be circulated to all the Judges as  soon after  each  meeting as possible, according to r.  13.   The

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relevant portion of r. 15 is in these terms:               "On the following matters all the Judges shall               be consulted:--               (e)   all  appointments which by law are  made               by the High Court and which are not  otherwise               expressly  provided  by  the  rules  in   this               Chapter." It must therefore, be held that in accordance with the Rules of  Business  of the Court, the appointment  of  Subordinate Judges from amongst Munsifs has to be made by the High Court as a whole, on the recommendation of the English  Committee. The  resolution of the English Committee in connection  with the  selection of the plaintiff as a Subordinate Judge  must have,  in  ordinary  course, according to  the  Rules,  been placed before all the judges of the 451 Court,  and  presumably the Court as a  whole  accepted  the recommendation  of the English Committee.  It is  true  that there  is  nothing in the record of this case to  prove  all this.   But, as already indicated, as the plaintiff did  not make  any  allegations that the High Court as such  had  not passed  the  orders complained of, the High  Court  did  not think it necessary to place the other relevant documents  on the  record.   Hence, there is no basis for  the  submission either  the High Court and made unjustifiable delegation  of its  powers under Art. 235 of the Constitution, or that  the High  Court as a whole did not pass the order which was  the plaintiff’s alleged cause of action.  What has happened with reference to his complaint made in the plaint has been  thus stated  by  the  High Court in paragraph 6  of  the  written statement:               "With further reference to paragraph 4 of  the               plaint these defendants state that on or about               16th  December,  1954, the  cases  of  several               Munshifs came up for consideration before this               High Court for inclusion of names in the panel               of   officers  to  officiate  as   Subordinate               Judges.  The plaintiff’s name was excluded and               it was decided by this High Court that,  after               the special report from the District Judge was               received,  the case of the plaintiff would  be               considered  a year later.  The  plaintiff  was               not  thought  fit  at that time to  act  as  a               Subordinate  Judge and these  defendants  will               refer  to the relevant records  in  connection               therewith.   Subsequently, the  plaintiff  was               allowed  to act as a Subordinate  Judge  under               Order of this High Court and therefore, in the               meantime  and  in  due  course  and  for  good               reasons  the plaintiff had lost  eight  places               and became a Subordinate Judge after Sri Anath               Bandhu  Syam.  Ultimately, the  plaintiff  was               confirmed  as  a  Subordinate  Judge  and  was               included in               452               the  fit list to officiate in the West  Bengal               Higher  Judicial Service, and has  since  been               appointed to officiate as Additional  District               and Sessions Judge." Thus,  unfortunately  for the plaintiff, the effect  of  the order  of the High Court was that he was not selected  as  a Subordinate Judge when his turn in the ordinary course came, for certain reasons which need not be gone into, because  we have held that the plaintiff had no right to promotion, and, therefore,  no  right of action in a Court.   The  plaintiff

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lost eight places in the cadre of Subordinate Judges of West Bengal,  but that was a natural consequence of the order  of the High Court deferring the consideration of his  selection as  Subordinate  Judge by a year.  But that  is  the  normal incidence  of  public service.  In this connection,  we  may notice  the argument advanced by the plaintiff  that  before the  High Court decided to pass him over in favour of  those Munsifs who were lower in the Civil List, the Bengal  Public Service Commission should have been consulted, in accordance with  the provisions of Art.320(3)(c) of  the  Constitution. That  has  reference  to  "all  disciplinary  matters".   As already  pointed  out no disciplinary proceedings  had  been started  against  the plaintiff.  Hence, there could  be  no occasion  for  the  State Public  Service  Commission  being consulted.   It  is  not, therefore,  necessary  for  us  to reconsider  the  question  as to whether  the  provision  in question  is  mandatory or only directory, as held  by  this Court previously. But it was further contended that even though there may  not have  been any disciplinary proceedings taken  against  him, the effect of the High Court’s order was that he was reduced by eight places in the list of Subordinate Judges, and  that in law amounted to reduction in rank, within the meaning  of Art. 311(2) of the Constitution.  Though in the Trial  Court the plaintiff’s counsel (apparently  453 the plaintiff did not argue his case himself in that  Court) had  conceded that no reliance was placed on the  provisions of that Article on behalf of the plaintiff, the plaintiff in this  Court has tried to invoke those provisions in  aid  of his  submission  aforesaid.   In our opinion,  there  is  no substance  in this contention because losing places  in  the same cadre, namely, of Subordinate Judges does not amount to reduction  in rank, within the meaning of Art. 311(2).   The plaintiff  sought to argue that "rank", in  accordance  with dictionary meaning signifies "relative position or status or place,  according  to Oxford English Dictionary.   The  word ",rank"  can  be and has been used in  different  senses  in different  contexts.  The expression "rank" in  Art.  311(2) has  reference  to  a person’s classification  and  not  his particular  place in the same cadre in the hierarchy of  the service  to which he belongs.  Hence, in the context of  the Judicial  Service of West Bengal, "reduction in rank"  would imply  that  a person who is already holding the post  of  a Subordinate  Judge  has been reduced to the  position  of  a Munsif,  the rank of a Subordinate Judge being  higher  than that  of a Munsif.  But Subordinate Judge in the same  cadre hold  the same rank, though they have to be listed in  order of  seniority  in the Civil List.   Therefore,  losing  some places in the seniority list is not tantamount to  reduction in rank.  Hence, it must be held that the provisions of Art. 311(2) of the Constitution are not attracted to this case. Lastly,  it  was  submitted  that  the  plaintiff  has  been discriminated  against in the matter of his promotion,  and, therefore, Arts. 14 and 16(1) of the Constitution have  been violated.   It  is  difficult to see  how  either  of  those Articles  can  be pressed in said of the  plaintiff’s  case. The  plaintiff’s case was Considered along with that of  the others,  and  the High Court, after a consideration  of  the relative 454 fitness  of the Munsifs chose to place a number of  them  on the panel for appointment as Subordinate Judges, as and when vacancies  occurred.  He had, therefore, along with  others, equal  opportunity.   But equal opportunity  does  not  mean

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getting  the particular post for which a number  of  persons may  have been considered.  So long as the plaintiff,  along with others under consideration, had been given his  chance, it  cannot be said that he had not equal  opportunity  along with  others,  who may have been selected in  preference  to him.   Where the number of posts to be filled is  less  than the  number of persons under consideration for those  posts, it  would  be  a case of many being  called  and  few  being chosen.   The fact that the High Court made its choice in  a particular  way cannot be said to amount  to  discrimination against the plaintiff. It must, therefore, be held that the plaintiff has failed to make  out a cause of action for the suit.  The  High  Court, being   the  sole  authority  to  decide  the  question   of appointment of a Munsif to the higher rank of a  Subordinate Judge, bad exercised its power, after fully considering  the plaintiff’s case for promotion, to pass him over for a year. His  case  was later considered and he was promoted  to  the higher  rank of a Subordinate Judge and subsequently to  the still  higher  rank of an Additional District  and  Sessions Judge.   The exercise of the power vested in the High  Court is not justiciable, and rightly so.  The High Court, by Art. 226  of the Constitution, has been constituted,  without  in any way derogating from the powers of the, Supreme Court  in that   behalf,  the  custodian  of  individual  rights   and liberties,  guaranteed by part III of the Constitution,  and has  been  further vested with the power  to  enforce  those rights by issuing appropriate orders or writs.  By Art. 235, the High.  Court has been vested with complete control  over the  subordinate courts.  Naturally, therefore, not only  as citizens but as members of the Judicial  455 Service,  they look upon the High Court as the custodian  of their  rights  in accordance with the  rules  prescribed  by itself  It is a little surprising that the plaintiff  should have convinced himself that the High Court had not given him his  due,  and should have taken recourse to the  Courts  to enforce such rights as the law gives him as a member of  the State  Judicial Service.  The plaintiff, who argued his  own case  in this Court, though not in the Trial Court,  gave  a very good account of himself in arguing his case and placing all relevant considerations before the Court.  But be  seems to  have  more learning than wisdom.  He  has,  without  any justification,  taken recourse to Courts instead of  leaving his  case to be dealt with by the High Court, which must  be presumed  to have acted in all fairness, in accordance  with the established practice and rules of the Court, so as  best to  subserve  the  interests  of  efficient  and   impartial administration  of justice.  The plaintiff appears  to  have been a victim of circumstances, which were more or less  his own  creation.   He  tried to convince us  that  he  bad  no alternative  but, as a Court, to grant an injunction in  his own  favour as a plaintiff.  We have not thought fit  to  go into that question because on the face of it, it appears  to be  rather wholly unarguable that a litigant should  be  the judge in his own cause, however just it may be.  Instead  of allowing some delay in obtaining the injunction, on  account of  circumstances  beyond his control, and even  taking  the risk of judgment going against him in the Small Cause Court, he thought better to issue the injunction in his own favour, sitting as a Judge in his own case.  That has been the cause of  all his misfortunes in the service, and he has to  thank himself for all that has happened.  But however much one may sympathies  with him, it has got to be held that in  law  he had  no right which could be enforced through the  machinery

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of the Courts.  The appeal must? therefore, be allowed.  But as the 456 defendants-appellants allowed the case to be decided against them without placing all relevant considerations before  the Trial  Court,  particularly the fact that r.  55-A  did  not apply  to members of the State Judicial Service,  we  direct that  each  party will bear its own costs, here  and  below. The appeal is accordingly allowed, but without costs. Appeal allowed,