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PETITIONER: V. B. RAJU

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT04/09/1980

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 2075            1981 SCR  (1) 613  1981 SCC  (1)   1  CITATOR INFO :  R          1982 SC 149  (1080)

ACT:      Constitution of  India, 1950-Articles  217 and  222(2)- Scope of-On  reorganisation of  a State  a Judge allotted to another High  Court-Such allotment  if amounts  to  transfer from one High Court to another.

HEADNOTE:      Exercising power  under section  29(1)  of  the  Bombay Reorganisation Act  the President  had determined  that  the appellant who  then was  an additional  Judge of  the Bombay High Court should cease to be a Judge of that High Court and become a Judge of the newly formed High Court of Gujarat. In his petition  under article  226  of  the  Constitution  the appellant claimed  that the  source of  power to  transfer a Judge from  one High  Court to  another being in article 222 read  with  article  217(1)  (c)  of  the  Constitution  the impugned order  though purporting  to have been passed under section 29(1)  of the Bombay Reorganisation Act, amounted to an order  of transfer  of a  Judge  and  therefore,  he  was entitled  to  the  compensatory  allowance  contemplated  by article 222(2).      A single  Judge of  the High  Court held that the order passed under section 29 was an order of allocation of Judges of the  erstwhile High  Court of  Bombay to the two new High Courts and  that such allocation did not amount to transfer. On appeal  a Division Bench held that the transfer envisaged by article 222 was a transfer in a situation when a Judge of one High  Court was  sent to another existing High Court for reasons which  had nothing  to do  with the  bifurcation  or reorganisation of  a State  and the setting up of a new High Court while section 29 was part of the provisions which were supplemental, incidental  or consequential  to the formation of the State of Gujarat.      Dismissing the appeal ^      HELD: The  entitlement to  compensatory allowance under article 222(2)  is conditional  upon  the  Judge  being  "so transferred", that  is, transferred  as envisaged by article 222(1). Since  the appellant  was "allotted"  to the Gujarat

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High Court  on the  setting up  of that  Court, he  was  not entitled to claim the compensatory allowance. [617 D]      Articles 3  and 4  of  the  Constitution  deal  with  a special  situation  and  so  long  as  a  provision  of  law promulgated by Parliament can be considered as supplemental, incidental or  consequential to the formation of a new State it would  be enforceable  even though  it might amount to an amendment of  certain provisions  of the  Constitution.  The provision contained  in section  29 of  the Act  is  clearly consequential to  the formation  of the State of Gujarat and establishment of a High Court for it. It was for the purpose of setting  up that  High Court  that Judges then serving in the Bombay High Court were so 614 to say  allotted to  the High  Court of Gujarat and although their appointment  to the  Gujarat High Court may partake of some of  the characteristics  of a  transfer, they cannot be said to  have been transferred from the Bombay High Court to the Gujarat  High Court within the meaning of article 222(1) of the Constitution. [617 A-C]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1134 of 1974.      From the  Judgment and  Order  dated  2-8-1973  of  the Gujarat High Court in L.P.A. No. 255/71.      Appellant in person.      L. J. Nain and Miss A. Subhashini for the Respondents.      The Judgment of the Court was delivered by      KOSHAL, J.-This  appeal by  certificate  granted  under Article 133(1)(c)  of the  Constitution of India by the High Court of Gujarat is directed against its judgment dated 2-8- 1973 and  the sole point requiring decision therein is as to whether an order passed by the President of India under sub- section (1)  of section 29 of The Bombay Reorganization Act, 1960 (hereinafter  referred to  as the  Act) and determining that the appellant shall on the 1st day of May 1960 cease to be a Judge of the High Court of Bombay and become a Judge of the High  Court of  Gujarat is to be regarded as an order of transfer under article 222(1) of the Constitution.      2. The  appellant was  appointed an Additional Judge of the High  Court of  Bombay on  June 29,  1959. After the Act came into force the President of India passed the said order (hereinafter  referred  to  as  the  impugned  order)  under section 29(1)  of the  Act in  respect of the appellant, who was still  an Additional  Judge of  the High Court of Bombay (and 4  other Judges of that Court) so that with effect from the 1st of May 1960 the appellant became an Additional Judge of the  High Court  of Gujarat.  Claiming that  the impugned order amounts  to an order of transfer within the meaning of article 222(1)  of the  Constitution the appellant brought a petition under  article 226 thereof with the prayer that the Governments of  the Union  of India and the State of Gujarat be directed  to pay  him an allowance to which, according to him, he  had become  entitled under  article 222(2)  of  the Constitution with  effect from October, 1963. Another prayer was also made in the petition but therewith we are no longer concerned as the same was withdrawn at a later stage.      3. In  order to appreciate the contention raised by the appellant before  a learned Single Judge of the Gujarat High Court and  again in  the Letters  Patent Appeal  before  the Division Bench which passed 615

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the judgment  now under  appeal, it  is necessary to set out the provisions  of clause  (1) of  article 217  and those of article 222 of the Constitution:           "217(1) Every  Judge of  a  High  Court  shall  be      appointed by  the President  by warrant  under his hand      and seal  after consultation  with the Chief Justice of      India, the  Governor of  the State, and, in the case of      appointment of  a Judge  other than  the Chief Justice,      the Chief  Justice of  the High  Court, and  shall hold      office, in  the case  of an additional or acting Judge,      as provided  in article  224, and  in any  other  case,      until he attains the age of sixty-two years:      "Provided that-                (a) a  Judge may,  by writing  under his hand           addressed to the President, resign his office;                (b) a Judge may be removed from his office by           the President in the manner provided in clause (4)           of article  124 for  the removal of a Judge of the           Supreme Court;                (c) the office of a Judge shall be vacated by           his being appointed by the President to be a Judge           of the  Supreme Court  or by his being transferred           by the  President to  any other  High Court within           the territory of India."           "222(1) The President may, after consultation with      the Chief  Justice of  India, transfer a Judge from one      High Court to any other High Court.           "(2) When  a Judge  has been or is so transferred,      he shall,  during  the  period  he  serves,  after  the      commencement of  the Constitution (Fifteenth Amendment)      Act, 1963,  as a  Judge of  the other  High  Court,  be      entitled to  receive in  addition to  his  salary  such      compensatory  allowance   as  may   be  determined   by      Parliament  by  law  and,  until  so  determined,  such      compensatory allowance  as the  President may  by order      fix." According to  the appellant’s  contentions before  the  High Court the only source of power conferred on the President to effect the  transfer of  a Judge  from  one  High  Court  to another was  article 222 read with article 217(1)(c) and the impugned order  which was  an order flowing from that source of power,  therefore amounted  to an  order of transfer even though it  was passed  under section  29(1) of the Act which runs thus:           "(1). Such  of the  Judges of  the High  Court  of      Bombay holding  office immediately before the appointed      day as may be determined by President shall on that day      cease to  be Judges  of the  High Court  at Bombay  and      become Judges of the High Court of Gujarat." 616      The High  Court  noted  that  the  Act  was  passed  in pursuance of  the powers vested in Parliament under articles 3 and 4 of the Constitution. Article 3 provides, inter alia, for the  formation of  new States.  Under clause (a) thereof Parliament may  by law  form a  new State  by separation  of territory from  any existing State or by uniting two or more existing States or parts thereof or by uniting any territory to a  part of any State. Under article 4(1) any law referred to in  article 3  shall  contain  such  provisions  for  the amendment of  the First  Schedule and the Fourth Schedule as may be  necessary to  give effect  to the provisions of such law and  may also  contain such supplemental, incidental and consequential  provisions   (including  provisions   as   to representation in  Parliament  and  in  the  Legislature  or Legislatures of the State or States affected by such law) as

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Parliament may deem necessary. Under clause (2) of article 4 no such  law shall  be deemed  to be  an  amendment  of  the Constitution for  the purposes  of article  368. The learned Single Judge  held that an order under section 29 of the Act was an  order of "allocation" of Judges of the High Court of Bombay to  the two  new High Courts and that such allocation did not  amount to  a transfer within the meaning of article 217(1)(c) or 222(1) of the Constitution. It was in that view of the  matter that  he dismissed  the petition presented by the appellant.  In Letters  Patent Appeal the Division Bench was of the opinion that although the impugned order amounted to an  order of transfer, the transfer effected by it was of a type  entirely different from that contemplated by article 222(1). In effect, however, the reasons for dismissal of the appeal were  the same  as those for which the petition could not succeed  before the  learned Single  Judge. According to the Division Bench the transfer envisaged by article 222 was a transfer  in a  situation when a Judge of a High Court was sent to  another existing  High Court  for reasons which had nothing to  do with  the bifurcation  or reorganisation of a State and the setting up of a new High Court in consequence, while section 29 of the Act was part of the provisions which were  supplemental,   incidental  or  consequential  to  the formation of the State of Gujarat.      It was  also argued  before the Division Bench that the Government of  Gujarat itself  had, during the course of its correspondence with  the appellant,  treated his appointment to the  High Court  of Gujarat  as a  transfer from the High Court of  Bombay, a fact which was not denied but which, the High Court  held, had no bearing on the matter in dispute as there was  no  plea  of  estoppel  raised  in  the  petition presented by the appellant.      4. After  hearing the  appellant in  person and learned counsel for  the respondents  we find  no substance  in  the appeal and, broadly 617 speaking, our  reasons for  so holding  coincide with  those given by  the learned Single Judge and the Division Bench of the High  Court, Articles  3 and  4 of the Constitution deal with a  special situation  and so long as a provision of law promulgated by Parliament can be considered as supplemental, incidental or  consequential to the formation of a new State it would  be enforceable  even though  it might amount to an amendment of  certain provisions  of the  Constitution.  The provision contained  in section  29 of  the Act  is  clearly consequential to  the formation  of the State of Gujarat and the establishment  of a  High Court  for it.  It was for the purpose of  setting up  that High  Court  that  Judges  then serving in the Bombay High Court were, so to say, "allotted" to the High Court of Gujarat; and although their appointment to the  Gujarat High  Court  may  partake  of  some  of  the characteristics of a transfer, we do not think that they can be said  to have been transferred from the Bombay High Court to the  Gujarat High  Court within  the meaning  of  article 222(1) of  the Constitution. The entitlement to compensatory allowance under article 222(2) is conditional upon the Judge being "so transferred", that is, transferred as envisaged by article 222(1).  Since the  appellant was  "allotted" to the Gujarat High  Court on the setting up of that Court, he will not be entitled to claim the compensatory allowance.      5. In  the result the appeal fails and is dismissed but there will be no order as to costs. P.B.R.                                     Appeal dismissed. 618

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