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PETITIONER: CHANDRAMOULESHWAR PRASAD

       Vs.

RESPONDENT: PATNA HIGH COURT & ORS.

DATE OF JUDGMENT: 07/10/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ) SIKRI, S.M. RAY, A.N. REDDY, P. JAGANMOHAN

CITATION:  1970 AIR  370            1970 SCR  (2) 666  1970 SCC  (3)  36  CITATOR INFO :  F          1971 SC1696  (20)  R          1975 SC 511  (23)  RF         1975 SC 613  (37)  D          1976 SC 404  (15,19)  RF         1977 SC 276  (11)  R          1977 SC2328  (38)  R          1979 SC 193  (34,38)  R          1980 SC1426  (12)  R          1982 SC 149  (560,563,581,582,633,657,759,8  R          1982 SC1579  (26A,27,28,30)  D          1984 SC1595  (64)  R          1987 SC 331  (24)  RF         1992 SC1546  (17)

ACT: Constitution   of  India,  1950,  Art.  233-Appointment   of District Judges-Consultation with High Court, what is. Gradation  List  of Additional District Judges  prepared  by High Court--Effect of entry therein.

HEADNOTE: The  petitioner as well as respondents 3 to 5 belong to  the Judicial  Service of Bihar.  They joined service as  Munsif, the  petitioner in 1941 and the respondents 3 to 5 in  1944. They  were  promoted as Subordinate Judges and in  1962  the question  of  promoting  them  as  Additional  District  and Session  Judges  was  considered  by  the  High  Court   and Government, and although the High Court wanted respondents 3 and 4 to function as Additional District and Sessions Judges ahead  of  the  petitioner and its  recommendation  in  that behalf  was  accepted  by the  Government,  due  to  certain circumstances the petitioner started acting as such  earlier than respondents 3 to 5 from January 1963.  The Bihar  Civil List, published in March, 1968 showed the petitioner as  No. 10,  and  respondents 1 to 5 as No. 12 to 14 in  the  cadre. The respondents made a representation to the High ’Court for a  correction  of their gradation in the list and  the  High Court accepted the representation in September 1968.  In the

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same  month,  the  District and  -Sessions  Judge  at  Arrah retired  and respondent No. 3 who was the, third  Additional District  and Sessions Judge was asked by the High Court  to officiate  in  the  vacancy.  The petitioner  who  was  also working  as first Additional District and Sessions Judge  at the  same  place considered this to be  a  supersession  and memorialized  the Government and the Government took  action on   17th   October  1968  appointing  the   petitioner   as officiating District and Sessions Judge.  Thereupon the High Court transferred the petitioner to another district on 25th October 1968. In  a  writ  petition under Art. 32 for  quashing  the  High Court’s order of transfer, HELD : (1) The position of a person in a Civil List gives no indication  of  his intrinsic quality as an  officer.   The. List  merely  shows the length of service, of  the  officers according  to the dates of their appointment. their  posting at the time when the list is published and their designation and  scale of pay at that time.  The gradation list  of  the High  Court  has no legal basis and its preparation  is  not sanctioned  by the, Bihar Superior Judicial  Service  Rules. The  seniority  inter  se of the petitioner  and  the  three respondents would have to be determined when the question of their confirmation comes up for consideration since they are all  holding only officiating posts.  The order of the  High Court could not be supported on the basis of seniority. [675 G] (2)But, the Government Notification of 17th October 1968 was not in compliance of Art. 233 of the Constitution. Under  Art.  233 of the Constitution the  appointment  of  a person  to be District Judge rests with the Governor but  he must  make  the appointment in consultation  with  the  High Court.  The Governor should make up his 667 mind  after  there  his been a deliberation  with  the  High Court, because, the High Court is the body familiar with the efficiency  and  quality  of  officers who  are  fit  to  be promoted as District Judges.  The consultation is not to  be an empty formality.  The consultation or deliberation is not complete or effective before the parties thereto make  their respective  points of view known to the other or others  and discuss and examine the relative merits of their views.   It one  party makes a proposal to the other who has  a  counter proposal  in  his  mind which is  not  communicated  to  the proposer,  the  direction  to give  effect  to  the  counter proposal, without anything more, cannot be said to have been issued after consultation [674 F-675 B] In the present case, the correspondence showed that  whereas the High Court had definitely taken the view that respondent No. 3 as the senior Additional District arid Sessions  Judge should  take  charge from the retiring District  Judge  the, Government  was not of that view.  But the Government  never suggested  to the High Court that the petitioner was  senior to  the 3rd respondent or that he had a better claim and  as such  was  the person fit to be  appointed  temporarily  :is District   and   Sessions   Judge.    Before   issuing   its notification  dated  October 17, 1968 the  Government  never attempted  to  ascertain the views of the  High  Court  with regard to the petitioner’s claim or gave the High Court  any indication of its views with regard thereto.  Therefore  the Government  notification cannot be sustained and as  it  was not valid, the High Court was within its rights to  transfer the petitioner to another District, [674 C-F] State  of Assam v. Ranga Mahammad and Ors. [1967]  1  S.C.R. 454. followed.

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[Desirability  of  avoiding  misunderstanding  between  High Court  and  Government,  and resolution  of  differences  of opinion by mutual deliberation pointed out.]

JUDGMENT: ORIGINAL JURISDICTION :Writ Petition No. 349 of 1968. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of fundamental rights. S.   V.  Gupte, S. S. Javali, S. K. Bisaria,  Santok  Singh, Ugra Sankar Prasad and K. K. Sinha, for the petitioner. Lal  Narain Sinha, Advocate-General for the State of  Bihar, D.   P.  Singh,  R.  K.  Garg, S.  C.  Agarwal  and  Sumitra Chakravarty for respondent No. 1. L.   M. Singhvi and U. P. Singh, for respondent No. 2. M.   R. K. Pillai, for the Advocate-General, Kerala. Niren  De,  Attorney-General  and  S.  P.  Nayar,  for   the Advocate-General, Maharashtra. A.   V. Rangam, for the Advocate-General, Madras. K.   Baldev Mehta, for the Advocate-General, Rajasthan S.   P. Mitra, G. S. Chatterjee for Sukumar Basu, for the Advocate-General, West Bengal. G.   S.  Chatterjee for Sukumar Basu for the  Calcutta  High Court. Soli  Sorabji,  Bhuvanesh Kumari, J. B.  Dadachanji,  O.  C. Mathur  and  Ravinder  Narain, for the  Bombay  High  Court. Sup.CI/70 12 668 The Judgment of the Court was delivered by Mitter,   J.  By  this  petition  under  Art.  32   of   the Constitution  the  petitioner,  at  present  an   Additional District   and  Sessions  Judge  in  the  State  of   Bihar, challenges  the validity of (1) the order of the Patna  High Court  by  Notification  No. 333  dated  25th  October  1968 transferring  him from Arrah and posting him  as  Additional District  and Sessions Judge at Singhbhum, (2) direction  or as  calls  it,  lie  order of the  Patna  High  Court  dated September   23,  1968,  declaring  respondents  3  to  5  as senior  to him in the gradation list of Additional  District and  Sessions judges maintained by the High Court.  he  also prays  that  the High Court to be directed to allow  him  to take over charge as officiating District and Sessions  Judge at  Arrah in terms of Government notification dated  October 17,  1968.   According  Lo him the  direction  or  order  of September  23, 1968 was in contravention of R. 16(b) and  R. 16(d)  of the Bihar- Superior Judicial, Service  Rules.   He takes  his  stand on the notification of the  Government  of Bihar   dated  October 17, 1968 purporting  to  appoint  him temporarily  as officiating District and Sessions  Judge  of Arrah  and contends that the order of the High  Court  dated October  25, 1968 following close to the heels of  the  said Government  notification amounted to his reduction  in  rank and was otherwise penal in nature.  His further complaint is that  the  direction  of  the High  Court  requiring  S.  C. Chakravarty   the  retiring  District  Judge  of  Arrah   in September  1968 to hand over charge of his office to  Govind Mohan    Misra, respondent No. 3, by purporting  to  appoint him  as  officiating  District  and  Sessions  Judge  was  a discriminatory order  contravening Arts. 14, 16 and  311  of the Constitution.   The respondents to the petition are  (1) the High Court of Judicature at Patna through its Registrar, (2)  the  State of Bihar through its  Chief  Secretary,  (3) Govind  Mohan  Misra,  at present  Additional  District  and Sessions Judge of Arrati, (4) Choudhary Sia Saran Sinha,  at

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present  Additional District and Sessions Judge.   Gaya  and (5)  Jagannath  Prasad Singh, at present  Secretary,  Legis- lative Assembly, Patna. The controversy arose in the following way In September 1968 S. C. Chakravarty, District ,and Sessions Judge at Arrah was due  to  retire on September 30.  The  petitioner  was  then working there as the first Additional District and  Sessions Judge.  Respondent No. 3, G. M. Misra was another Additional District and Sessions Judge at Arrah designated as the third Additional  District and Sessions Judge.  On the  retirement of  Chakravarty someone had to take charge from him and  act as  District and Sessions Judge either temporarily or  on  a permanent  basis The High Court was of opinion  that  Misra, respondent  No. 3 was the senior.  Additional  District  and Sessions  Judge at Arrah and as such  should be directed  to officiate in the vacancy.  The high 669 Court  wanted to post one M. P. Singh as the District  Judge there but there was some difficulty in the way of his taking over charge Immediately.  The petitioner who had joined  the judicial   service  some  years  before  respondent  No.   3 considered  this  as  super-session  of  his  claims.    The Government  of  Bihar  also appears to have  felt  that  the petit-loner  should be appointed to act temporarily  as  the District and Sessions Judge at Arrah.  Before the difference in  the points of view of the High Court and the  Government could  be effectively discussed or resolved, the High  Court directed Chakravarty to make over charge to responding No. 3 which  was  complied with.  While the Government  was  still undecided  as  to  the course to be adopted  it  received  a representation   from  the  petitioner   alleging   wrongful supersession  by the High Court and claiming seniority  over Misra and respondents 4 and 5. This appears to have  stirred the  Government  into  immediate action by the  issue  of  a notification  of October 17, 1968 appointing the  petitioner as  officiating  District and Sessions Judge at  Arrah  tem- porarily.   This not being to liking of the High Court,  the latter  transferred  the  petitioner  to  the  District   of Singhbhum as Additional District and Sessions Judge on  25th October  1968.  The petitioner filed this Writ  Petition  on 29th October 1968 claiming the reliefs mentioned. In  order  to appreciate the respective contentions  of  the parties,  it  is  necessary to note a  few  facts  happening before  the  above controversy.  The petitioner as  well  as respondents 3, 4 and 5 all belong to the Judicial Service of Bihar.  They all joined service ’is Munsifs, the  petitioner doing so in 1941 while the respondents 3, 4 and 5 did so  in 1944.    Later  they  were  all  appointed   as   Additional Subordinate  Judges,  the petitioner in 1949  and  the  said respondents  in 1951-1952.  The Bihar Civil  List  published it,  March 1968 shows the petitioner at serial No.  10,  one Dharm  Deva  Narain  Sinha at No. 11,  Govind  Mohan  Misra, respondent  No.  3  at No. 11, Choudhary  Sia  Saran  Sinha, respondent  No.  4  at No. 13 and  Jagannath  Prasad  Singh, respondent  No. 5 at No. 14.  The question of these  persons being  selected  and  as Additional  District  and  Sessions Judges engaged the of the High Court as early as March  1962 when  two vacancies occurred in that rank.   In  considering the  claims of these persons to promotion the  Registrar  of the  High Court wrote to the Chief Secretary, Government  of Bihar  pointing  out  that  three  officers  including   the petitioner had been passed over only about a month back  and the  question of re-considering their cases did not  at  the moment arise.  Among the four officers immediately below the said   three   persons,  the  High  Court   considered   the

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respondents  3 and 4. to be fit for promotion in  preference to  the  other  two  for  reasons  given.   The  High  Court recommend G. M. Misra, respondent No. 3 and C. S. S.  Sinha, respondent.No. 4 670 as  fit  for  promotion  and  suggested  their  posting   as Additional District and Sessions Judges at Hazaribagh and at Arrah.   As  Misra  was then  acting  as  Deputy  Secretary, Legislative  Assembly and C. S. S. Sinha was functioning  as Under  Secretary, Law Department, the High  Court  requested that  they  might be released to enable them to  join  their new, posts.  The Secretariat record of April 1962 shows that the  matter was considered in detail and that  High  Court’s recommendation  which  involved  the  supersession  of   the petitioner and two other officers by respondents 3 and 4 met with the approval of the Secretary subject to the acceptance of  the Chief Minister.  The suggestion for the  posting  of the said respondents on promotion was also accepted and  the Secretary  asked for the sanction of the Chief  Minister  to the  proposed promotion and request to the Assembly and  Law Department for release of respondents 3 and 4 to give effect to  their proposed posting.  This proposal of the  Secretary was  accepted by the Chief Minister.  However  effect  could not  be  given  to the above for reasons  which  it  is  not necessary to note.  The Registrar of the High Court wrote to the  Secretary to the Government of Bihar on May 5, 1962  to keep  the  notification appointing respondents 3  and  4  as Additional  District and Sessions Judges in  abeyance  until receipt of further communication.  The matter came up before the High Court once more in September 1962 and the Registrar wrote  to  the  Secretary intimating  that  the  forthcoming vacancy  in  the rank of Additional  District  and  Sessions Judge  on  12th October, 1962 by retirement  of  an  officer should   be  filled  up  by  promoting  Misra  then   Deputy Secretary,   Legislative  Assembly  to  act  as   Additional District  and Sessions Judge of Hazaribagh with effect  from the  said date.  Request was also made to take steps to  get Misra  relieved from the post he was then  holding.   Within the  space  of a few days the matter was considered  at  the Secretariat  and a note was put up by the Secretary for  the Chief Minister to the effect that if the latter agreed,  the Legislative  Assembly would be asked to accord its  approval to relieve Misra whereupon he would be posted as  Additional District  Judge, Hazaribagh.  The Chief Minister  agreed  to this  proposal  on  14th  September.   Soon  thereafter  the Registrar  informed the Secretary that another  vacancy  had already  occurred  on 14th September  1962  and  recommended Misra’s  appointment  as Additional  District  and  Sessions Judge   of   Hazaribagh  in  the   earlier   vacancy.    The recommendation apparently could not be given effect to.   It a pears that the High Court recommended respondent No. 4  to act  P.as  Additional  District and Sessions  Judge  on  4th October,  1962  when he was still serving  the  Bihar  State Electricity  Board as its Deputy Secretary.  The subject  of promotion  of these officers again came up before  the  High Court  in November 1962.  On a reconsideration of the  cases of the petitioner and D. N. Sinha as a 671 result  of  the enquiry made through District  and  Sessions Judges the Court found them fit for promotion, and by letter dated  November 21 recommended that the petitioner  who  was then acting as Subordinate Judge, Gaya, be appointed to  act as  Additional  District  and Sessions  Judge  in  place  of respondent  No. 4 and posted at Darbhanga.  The  Court  also suggested  that  D.N. Sinha should be appointed  to  act  as

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Additional  District  and  Sessions  Judge  at   Hazaribagh. Government   accepted  this  recommendation  and  made   the necessary  notification of posting the petitioner and D.  N. Sinha  as  Additional District and Sessions Judges  oil  7th January 1963.  As respondents 3 and 4 could not then take up their  appointments  as  Additional  District  and  Sessions Judges because they were not released from the Assembly  and State  Electricity Board the Government by letter dated  7th November  1963  addressed to the Accountant  General,  Bihar allowed  respondents  3  and  4 to draw  pay  in  the  scale admissible  to Additional District and Sessions Judges  with effect  from  15th  January 1963.   The  petitioner  started functioning  as  Additional District and Sessions  Judge  at Darbhanga on January 23, 1963. It would therefore appear that although the High Court want- ed  respondents 3 and 4 to function as  Additional  District and Sessions Judges ahead of the petitioner on more than one occasion and its recommendation on that behalf was  accepted by  the Government of Bihar by a fortuitous  combination  of circumstances the petitioner and D. N. Sinha started  acting as  such earlier than the said. respondents 3, 4 and  5.  As the  recommendations  of the High Court  were  probably  not unknown to them respondents 3, 4 and 5 made a representation to  the  High Court in August 1968 for correction  of  their gradation  in  the Civil List so as to rank  them  over  the petitioner  and  D.  N. Sinha in  the  cadre  of  Additional District  and Sessions Judges and the High Court  by  letter dated  23rd September 1968 accepted the  representation  and sent  copies thereof to the petitioner and D. N.  Sinha  for their information. It  may  be noted at this stage that the  gradation  of  the officers  by the High Court or maintaining any list  showing which gradation is not sanctioned by any service rules.  The Bihar Superior Judicial Service Rules to which our attention was  drawn do not contain any provision which would  entitle the  High  Court to make such a gradation  or  act  thereon. Rule  5  of  the  said  Rules  prescribes  that   ordinarily appointments to the post of Additional District and Sessions Judges shall be made by the Government in consultation  with the  High Court and under R. 8 a person appointed either  on substantive  or officiating basis to the post of  Additional District and Sessions Judge shall draw pay on the lower time basis.   Rule  16(b)  provides that seniority  inter  se  of promoted officers shall be determined in accordance 672 with  the  dates of their substantive  appointments  to  the service   and  R.  16(d)  lays  down  that  more  than   one appointment is made by promotion at one time, the  seniority inter  se  of the officers promoted shall be  in  accordance with  the  respective seniority in the Bihar  Civil  Service (Judicial Branch).  The question of seniority therefore  has to   be  determined  when  the  persons   appointed   either temporarily or on an officiating basis are given substantive appointments.   So  far  as the  petitioner  and  the  three respondents are concerned that time is yet to come. We may now proceed to note the events in the crucial days of September  and October 1968.  Towards the end  of  September 1968 the High Court had to consider that question of someone taking  charge  as  District and  Sessions  Judge  from  the retiring  incumbent, S. C. Chakaravarty.  The High Court  as already  noted, wanted to fill that post by M. P. Singh  who was  an Additional District Judge at Singhbhum but for  some reason  or  other was not free to join  immediately  and  it became  necessary to make some temporary  arrangement.   The Registrar  wrote a letter to the Secretary that  the  senior

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Additional District Judge of Arrah be temporarily  appointed to  act as District and Sessions Judge with effect from  1st October 1968 and as in the view of the High Court Misra  was the  senior officer in that cadre the Court recommended  his to  the  Government.   The  Secretary  wrote  back  to   the Registrar on 30th September that Government had no objection to    notify   the   Senior   Additional   District    Judge as  temporary  District and Sessions Judge of  Shahabad  but from  the records at ,he Secretariat it appeared that  Misra was  ,not  the  senior Officer.  On  2nd  October  1968  the Registrar  wrote  to the Secretary that as  Chakravarty  had already retired it was necessary to appoint Misra the senior Additional District Judge to act temporarily as District and Sessions  Judge without any loss of time so that any  urgent bail  applications etc. might be disposed of  and  requested that  necessary notification be issued  immediately.   There was  no  response  from  the  Secretariat.   The   Registrar followed  his  memorandum  of October 2 by  writing  to  the Secretary  again  on October 4, the subject  matter  of  the letter being               "Correction  of the Bihar Civil List so as  to               rank Gobind Mohan Misra, C. S. S. Sinha and J.               N.  Singh No. 1 above C. M. Prasad and  D.  N.               Sinha". The Registrar forwarded copies of the representations of the three  respondents and gave the Court’s view that there  was justification for correcting the civil list as suggested  in the  representations.  Reference was made to the letters  of 4th October 1962 and 21st November 1962 mentioned above  and it  was pointed out that the decision of the  Government  to give respondents 3 673 and 4 the status of Additional District and Sessions  Judges with  effect from 15th January 1963 by upgrading  the  posts they  were holding was based on the fact that they had  been recommended  earlier than the petitioner and D. N. Sinha  to officiate  as  Additional District and Sessions  Judges  and that  the last two officers had started to function as  such from 23rd January 1963.  It was further pointed out that  J. P.  Singh,  respondent  No. 5 could  not  take  over  charge earlier  than  6th  February  1963  because  the  Court  had required him to finish the part-heard Sessions Case which he was  then trying as Assistant Sessions Judge before  joining his  post on promotion.  The Court therefore  requested  the Government  to  correct the Bihar Civil List  as  suggested, Government  does  not seem to have taken any action  on  the letters of 2nd and 4th October.  On receipt of a copy of the Court’s direction on the representation of respondents 3,  4 and  5 the petitioner started moving on his own  behalf  and addressed   a  memorial  to  the  Chief  Secretary  to   the Government  of Bihar through the Registrar of High Court  on October  15,  1968.   In  substance  the  complaint  of  the petitioner  was  that  the  High  Court  was  not  right  in accepting, the representation of respondents 3, 4 and 5  and placing  them  above him in the gradation list.   He  prayed that  the order of the High Court in this respect might  not be  implemented  until  the disposal of his  appeal  by  the Government  and that promotion to the senior scale of  Bihar Superior  Judicial  Service  be  kept  pending  until  then. Government  reacted  to this by a  notification  dated  17th October 1968 appointing the petitioner as temporary District and  Sessions  Judge  Shahabad until the  appointment  of  a permanent officer in the vacancy caused by the retirement of Cbakravarty.   The letter of the Secretary to the  Registrar of  even  date was to the effect that Government  was  until

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then  not  able to consider the recommendation of  the  High Court  forwarded in its letter of October 4, 1968  regarding revision of seniority ’and it could. not accept the position that  the petitioner should ’he treated as junior  to  Misra and  therefore it would not be desirable to notify Misra  as officiating District and Sessions Judge pending finalisation of  the  posting of a regular District and  Sessions  Judge. With  regard  to  the High  Court’s  recommendation  of  4th October Government stated that it would take time to examine the  same.  It is obvious that Government was moved  by  the representation of he petitioner. The question arises whether the action of the Government  in issuing  the  notification  of  October  17,  1968  was   in compliance with Art. 233 of the Constitution.  No doubt  the appointment  of a person to be a District Judge  rests  with the  Governor but he cannot make the appointment on his  own initiative  and  must do so in consultation  with  the  High Court.   The  underlying  idea of the Article  is  that  the Governor should make up his mind 674 after  there  has been a deliberation with the  High  Court. The High Court is the body which is intimately familiar with the  efficiency  and quality of officers who are fit  to  be promoted  as  District Judges.  The High Court  alone  knows their merits as also demerits.  This does not mean that  the Governor  must accept whatever advice is given by  the  High Court but the Article does require that the Governor  should obtain  from  the  High Court its views  on  the  merits  or demerits of persons among whom the choice of promotion is to be  limited.   If  the High Court  recommends  A  while  the Governor is of opinion that B’s claim is superior to A’s  it is incumbent on the Governor to consult the High Court  with regard  to  its  proposal to appoint B and  not  A.  If  the Governor  is to appoint B without getting the views  of  the High  Court about B’s claim vis-a-vis A’s Lo promotion,  B’s appointment cannot be said to be in compliance with Art. 233 of  the Constitution.  The correspondence noted above  which passed between the High Court and the Secretariat from  28th September  1968 to 7th October 1968, shows that whereas  the High Court had definitely taken the that Misra as the senior Additional  District  Sessions Judge should be  directed  to take charge from Chakravarty, the Government was not of  the view  that  according  to the  records  in  its  appointment department Misra was the senior officer at Shahabad among he Additional  District and Sessions Judges.  Government  never suggested  to the High Court that the petitioner was  senior to  Misra  or  that the petitioner had a  better  claim  han Misra’s  and  as  such was the person fit  to  be  appointed temporarily  as  District  and Sessions  Judge,  Before  the notification of October 17, 1968 Government never  attempted to ascertain the views of the High Court with regard to  the petitioner’s claim to the temporary appointment or gave  the High  Court  any  indication of its own  views  with  regard thereto excepting recording dissent about Misra’s being  the senior  officer  in  the cadre of  Additional  District  and Sessions Judges at Arrah.  Consultation with the High  Court under  Art.  233  is  not an empty  formality.   So  far  as promotion  of  officers to the cadre of District  Judges  is concerned  the  High  Court is best fitted  to  adjudge  the claims and merits of persons to be considered for promotion. The Governor cannot discharge his function under Art. 233 if he makes an appointment of a person without ascertaining the High  Court’s views in regard thereto.  It  was  strenuously contended  on  behalf of the State of  Bihar  the  materials before  the  Court  amply demonstrate that  there  had  been

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consultation  with  the High Court before the issue  of  the notification of October 17, 1968.  It was said that the High Court had given the Government its views in the matter;  the Government was posted with all the facts and there was  con- sultation sufficient for the purpose of Art. 233.  We cannot accept  this.  Consultation or deliberation is not  complete or   effective  before  the  parties  thereto   make   their respective points of view 675 known  to  the other or others and discuss and  examine  the relative  merits  of  their views.  If  one  party  makes  a proposal to the other who has a counter proposal in his mind which  is not communicated to the proposer the direction  to give  effect to the counter proposal without anything  more, cannot  be said to have been issued after consultation.   In our opinion, the notification of October 17, 1968 was not in compliance  with  Art.  233 of  the  Constitution.   In  the absence of consultation the validity of the notification  of 17th October, 1968 cannot be sustained. If  the  notification of October 17, 1968 be not  valid  the High Court was within its rights to transfer the  petitioner to  the District of Singhbhum as an Additional District  and Sessions  Judge.  It was pointed out by this Court in  State of Assam v. Ranga, Mahommed and others(1) that the right  to transfer  judicial officers including District Judges  after their appointment and posting, rested with the High Court. The  correspondence  between the High Court and  the  Secre- tariat  in  the years 1962, 1963 and 1968 was placed  before us in detail.  We were also shown the notes prepared at  the Secretariat and the Chief Minister’s views thereon from time to  time.   Having  considered all  this  material  and  the affidavits affirmed in this case, our definite conclusion is that  there was no foundation for the petitioner’s  of  mala fides  against  the High Court or  the  veiled  insinuations against  its  present Chief Justice.   Supersession  of  the petitioner by Misra and others bad been decided upon as  far back  as 1962 and 1963 when the High Court had  a  different Chief  Justice.   In making its recommendation in  1968  the High  Court  was  merely  attempting to  give  effect  to  a decision  arrived  at in 1962 and 1963.  The  cause  of  the supersession  of  the  petitioner was  the  adverse  remarks against him by some of the former Judges of the High  Court. Whatever  be the effect of these remarks the petitioner  may be  considered to have outlived them by reason of  the  fact that  the High Court recommended his case for posting as  an Additional  District  and Sessions Judge in  November  1962. The position of a person in a Civil List gives no indication of  his  intrinsic quality as an officer.  The  list  merely shows the length of service of the officers according to the dates  of their appointment, their posting at the time  when the list is published and their designation and scale of pay at  flat time.  The gradation list of the High Court has  no legal  basis  and its preparation is not sanctioned  by  the Bihar Superior Judicial Service Rules.  The seniority  inter se of the petitioner and the three respondents will have  to be determined when the question of their confirmation  comes up for consideration.  At the present (1)  [1957] 1 S.C.R 454.  676 moment the question does not arise and M. P. Singh who holds the  office of the District and Sessions Judge at  Arrah  is undoubtedly  senior  to them all.  We only hope  that  there will be no such misunderstanding between the High Court  and the  Secretariat  in  the future and if there  ever  be  any difference of opinion attempts will be made to resolve  them

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by  mutual deliberation without one or the other  making  an order  or  giving a direction contrary to the views  of  the other before deliberation. In  the result we hold that the Government  notification  of October  17,  1968  was  not in terms of  Art.  233  of  the Constitution  and consequently the question of quashing  the High Court’s  order dated October  25, 1968 does not  arise. We also  hold that the Gradation List of Additional District and  Session judges prepared by the High Court has no  legal sanction  and  that  the  seniority  of  the  petitioner  an respondents 3 to 5 can only be determined in the    superior Judicial Service where they are now all holding  officiating posts  when the occasion arises.  There will be no order  as to costs. Y.P. 677