http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: GANESH PRASAD DUBE

       Vs.

RESPONDENT: STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT16/02/1971

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. RAY, A.N.

CITATION:  1972 AIR 2396            1971 SCR  (3) 726  1971 SCC  (1) 691

ACT: Practice-Grant  of  Certificate  by  High  Court-Application under  Arts. 132(1) and 133(1) (a) to (c)  of  Constitution- Procedure to be followed by High Court.

HEADNOTE: The  appellant,  who  was  acting  as  Director  of   Public Instruction, challenged an order posting him as Director  of State Institute of Education by a writ petition in the  High Court,  on various grounds.  It was dismissed.   He  applied for grant of certificate to appeal to this Court under Arts. 132(1)  and 133(1)(a) to (c) of the Constitution.  The  High Court  held  that  Art. 133(1)(a) did  not  apply,  did  not consider whether Arts. 133 (1) (c) and 132 were  applicable, doubted whether Art. 133 (1) (b) would apply, but ultimately granted a certificate under Art, 133(1). On  the  question  whether  the  certificate  was   properly granted. HELD  :  As the High Court has not properly  considered  the application for grant of certificate,under Arts. 132(1)  and 133(1)(b)  and  (c),  it  will have to  be  remanded  to  be considered by the High Court afresh.  The High Court, in the fresh order to be passed, must clearly indicate ,under  what particular Article or clause of the Article the  certificate is granted [733 A-C] Saya Narain Prasad v. State of Bihar [1970] 2 S.C.R. 275 and M/s  Krishna Gyanodaya Sugar Ltd. v. The State of Bihar  and Ors.  A.I. R. 1970 S.C. 2041, followed.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1256 of 1969. Appeal  from the judgment and order dated February 17,  1969 of the Patna High Court in Civil Writ Jurisdiction Case  No. 153  ,of 1969 with Civil Miscellaneous Petition No. 4499  of 1969. Application  by  respondent  No. 1  for  revocation  of  the certificate  granted by the High Court under Art.  133(1)(b) of the Constitution. S.   T.  Desai, Tarkeshwar Dayal and S. N. Prasad,  for  the appellant.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

L.   M. Singhvi and U. P. Singh, for respondents Nos. 1  and 3 to 5. 7 27 Basudeva Prasad, Nawal Kishore Prasad Sinha and U. P. Singh, for respondents Nos. 2 and 6 to 10. The Judgment of the Court was delivered by- Vaidialingam,   J.-In  this  appeal,  on  certificate,   the appellant  challenges the order dated February 17,  1969  of the  Patna High Court dismissing summarily C.W.J.C. No.  153 of 1969 filed under Art. 226 of the Constitution. The  appellant  was appointed by the order dated  March  21, 1968,  by the State of Bihar temporarily to act as  Director of  Public  Instruction,  Bihar.  On the date  of  the  said appointment   the  appellant  was  the  Director  of   State Institute of Science.  In the endorsement in this order,’-it was  stated that the appellant’s appointment as Director  of Public Instruction has been made by promotion on a temporary basis for a period not exceeding six months in  anticipation of  the  concurrence of the Public Service  Commission.   By order  dated November 18, 1968, the State Government  passed an  order  posting  the  appellant  as  Director  of   State Institute of Education.  It is stated in the said order that the  appellant had been officiating in the post of  Director of Public Instruction by virtue of the order dated March 21, 1968. The appellant filed C.WJ.C. No. 153 of 1969 before the  High Court challenging this order of November 18, 1968 on various grounds.   He had also alleged mala-fides in the passing  of the said order.  In the view that we take that the order  of the  High Court granting the certificate has to be  remitted for  fresh consideration, we do not propose to refer to  the various grounds of attack made by the appellant in his  writ petition before the High Court.  The High Court by its order dated  February  17  1969 has taken the  view  that  as  the appellant’s  appointment as Director of  Public  Instruction was  on  a temporary basis for a period  not  exceeding  six months  in  anticipation of the concurrence  of  the  Public Service Commission, the Public Service Commission, which was subsequently  consulted did not give its concurrence to  the appointment   of  the  appellant  as  Director   of   Public Instruction   and  therefore,  the  government  passed   the impugned order dated November 18, 1968 posting the appellant as   Director.   State  Institute  of  Education.   As   the appellant was appointed purely on a temporary basis, he  has no  right  to claim the post.  The High  Court  has  further expressed the view that it is not satisfied prima facie that there  was any mala-fides on the part of the Public  Service Commission in not giving its concurrence to the  appointment of  the  appellant or on the part of the government  in  not appointing the appellant as Director of Public  Instruction. A further contention taken on behalf of the appellant 728 that  the  impugned  order was not in  conformity  with  the decision  of the Council of Ministers, was rejected  by  the High  Court.  On this reasoning the High Court held  "as  no prima facie case has been made out for interference with the order  of the Government, as contained in Annexure  1,  this application  is  summarily rejected".  Annexure  1,  in  the above  quotation was the impugned order dated  November  18, 1968.  It may be noted that the writ petition was  dismissed without  issuing notice to the State and  other  respondents therein. On behalf of the appellant Mr. S. T, Desai, learned counsel, attempted to argue on merits by urging that the High  Court, in view of the allegations made by the appellant in the writ

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

petition,  was  not  justified  in  rejecting  the  petition summarily.  The learned counsel also attempted to argue that even on the basis of the materials placed before the  court, the order is unsustainable. On  behalf of the first respondent, State of  Bihar,  C.M.P. No. 4498 of 1969 has been filed for revoking the certificate granted  by  the  High Court under  Art.  133(1)(b)  of  the Constitution.   Dr. L. M. Singhvi, learned counsel  for  the State,  therefore,  raised preliminary  objection  that  the certificate  granted by the High Court is not valid  and  as such  it should be revoked.  If the certificate is  revoked, as  prayed for by the State, the counsel urged,  then  there will be no need to go into the merits of the appeal,  sought to be canvassed by Mr. S. T. Desai, learned counsel for  the appellant. As  the preliminary objection has to be first dealt with  it is  now  necessary to refer to the order of the  High  Court granting  the  certificate.   After dismissal  of  the  writ petition   by  the  High  Court,  the  appellant  filed   an application (Supreme Court Appeal No. 42 of 1969) for  grant of  certificate  of fitness to appeal to this  Court.   That application,  no doubt, was opposed by the  present  respon- dents.   The  High Court by its order dated March  13,  1969 granted the certificate to the effect "that the  requirement of  valuation to enable the petitioner to get a  certificate is fulfilled under Article 133(1) of the Constitution." From  the  order  of the High Court it  is  seen  that  the, application  for  the grant of certificate  was  made  under Arts. 132(1) and 133(1) of the Constitution.  So far as Art. 133(1)  was concerned, the request for certificate was  made under-  clauses (a) and (c) and not under clause (b).   But, however,  during  the course of arguments,  the  appellant’s counsel  relied  on clause (b) of Art. 133(1) and  that  was permitted  by  the High Court.   Therefore,  ultimately  the certificate was prayed for under Art. 132(1) and Art. 133(1) clauses  (a)  to  (c).  After ’discussing the  case  of  the appellant, the High Court held that in a case of this nature the 7 29 salary or allowances attached to the office of the appellant cannot  be considered to be the subject matter  of  dispute- within  the  meaning 1 of clause (a) of Art. 133(1)  of  the Constitution.   According  to the High  Court,  the  subject matter of the dispute is the right to continue in office and not the right to get the salary if he is allowed to continue in  office.   In  this view the High  Court  held  that  the appellant cannot be granted a certificate under clause (a)  of Art. 133(1). The  High Court then considered the question of  granting  a certificate  under  clause  (b)  of  Art.-  133(1)  of   the Constitution.   The  High Court was of the view that  it  is perhaps possible to hold that the emoluments attached to the office  can be taken into consideration for the  purpose  of valuation  under clause (b).  The High Court  has  expressed the view that the future emoluments which an incumbent of an office  will  be,  getting, if he succeeds  in  getting  the office, will be the property respecting which some claim  or question will be directly involved in the judgment sought to be  appealed  against  provided  it  is  a  property.   But, however,  the  High Court entertained a  doubt  whether  the emoluments  which  became  payable to an  incumbent  of  the office in future, if an incumbent does not lose The  office, due  to any other reason, other than the subject  matter  of the  dispute in the case, can be said to be property  within the meaning of clause (b).  But inspite of all these doubts,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

the  High Court held that certificates have been granted  by the  High Court of Patna in several cases and  then  finally concluded               "...but  for the purpose of  determination  of               the question of valuation it is legitimate  to               assume in his favour that he claims a right to               the   office   of  the  Director   of   Public               Instruction  which could have brought him  the               emoluments  for a period of 3 years 3  months,               if he succeeds." Ultimately the High Court certified that the requirements of valuation  to enable the appellant to get a  certificate  is fulfilled under Art. 1 3 3 ( 1 ) of the Constitution. Dr.  L.  M.  Singhvi’s contention is  that  the  certificate granted by the High Court is not valid.  His argument ran as follows The High Court has not granted the certificate under Art.  1 3 3 ( 1) (c); the High Court has categorically  held that  the  appellant cannot be granted a  certificate  under Art.  133 (1) (a).  Though the concluding part of the  order granting  the  certificate states that it has  been  granted under Art. 133(1), in the circumstances mentioned above,  it is  clear that the certificate has been granted  only  under Art.’  1  3  3 (1 ) (b).  This is on  the  ground  that  the appellant  claimed his right to the office of the  Director, Public 730 Instruction, which would have brought him the emoluments re- ferred  to by him for a period of 3 years and three  months, if the impugned order had not- been passed.  This method  of valuation for the purpose of clause (b) is not correct. We  are to state that the appellant had claimed that on  the date of the impugned notification, he was getting a  monthly salary  of  Rs.  1950/-.  The post  of  Director  of  Public Instruction  was in the scale of Rs. 1850-100-2250.  He  was entitled  to get an annual increment of Rs. 100/-.  But  for the impugned order the appellant claimed that he would  have continued  in service for a period of 3 years and  3  months before  attaining  the age of superannuation,  and  as  such during  this  period he would have earned a  salary  of  Rs. 83,000/-. Mr.  S.  T. Desai, learned counsel for the  appellant  urged that  the grant of a certificate under clause (b) of   Art.- 33(1)  is correct.  In the alternative he contended that  as the  claim made by the appellant for grant of a  certificate under Art. 132(1) and under Art. 13 3 (1 ) (e) has not  been at all discussed or decided by the High Court and, if it  is held that the certificate as now ’granted is not valid,  the High  Court  may  be required to consider  the  grant  of  a certificate  under  Arts. 132(1) and 133(1)(c).   Mr.  Desai also urged that as very serious allegations of mala-fides in the  passing  of the impugned order have been  made  by  the appellant, the High Court was not justified in rejecting the writ  petition  summarily  without  issuing  notice  to  the respondents.   He  contended that all the  material  records bearing  on  the  matters  arising  for  consideration   are available in this Court and in view of this circumstance, he requested  that the hearing of the appeal may  be  proceeded with by this Court. We  are  not inclined to agree with Mr. Desai  that  if  the certificate  granted  by the High Court is not  valid,  this Court  can proceed to hear the appeal on merits.  Mr.  Desai relied  on  the decision of this Court reported  in  Century Spinning  and Manufacturing Company Ltd. and another v.  The Ulhasnagar  Municipal Council and another(1) in  support  of his  contention  that the High Court was  not  justified  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

dismissing the writ petition summarily.  It is no doubt true that in the above decision it has been held that though  the High  Court  has  a discretion to decline  to  exercise  its extra-ordinary  jurisdiction under Art.  226,  nevertheless, the  discretion  is to be judicially exercised  and  if  the petitioner  makes a claim which is frivolous,  vexatious  or prima facie unjust, the High Court may decline to  entertain the petition.  But if a party claims to be aggrieved by  the unlawful, arbitrary (1)  [1970] 1 S.C.C. 582.                             731 or  unjust  order  of  a public body  or  authority,  he  is entitled to a hearing of his petition on merits and the High Court will not be justified in dismissing such a petition in limine.  Following the above decision in M/s Exen Industries v.   The  Chief  Controller  of  Imports  and  Exports   and others(1),  Mitter J., speaking for the Court set aside  the order  of  the High Court dismissing the  writ  petition  in limine with the following observations :               "However  the High Court though  competent  to               decline   to   exercise   its    extraordinary               jurisdiction    under   Art.   226   of    the               Constitution  when it finds that the  petition               is  frivolous or without substance should  not               throw  it out in limine if a prima facie  cage               for investigation is made out.  The High Court               can  reject a petition in limine if  it  takes               the view that the authorities whose acts  were               called in question had not acted improperly or               if   it   felt  that   the   petition   raised               complicated    questions    of    fact     for               determination  which  could  not  be  properly               adjudicated  upon in a proceeding  under  Art.               226 of the Constitution." Similarly in Gyan Chand and others v. State of Haryana and others  (2 ) where allegations of mala-fides have been  made and  a  writ petition was dismissed in limine  by  the  High Court,  this  Court  set aside the order  and  remanded  the matter  for  a fresh consideration after  calling  upon  the authorities concerned to file a return. The above decisions are of no assistance to the appellant as the orders of remand were passed in those appeals which came to  this Court either on a proper certificate issued by  the High  Court or on special leave granted by this  Court.   In all  those  cases there was a proper appeal  pending  before this Court in which merits of the points raised for decision in  the appeal were gone into and suitable  directions  were given therein. If  the certificate granted by the High Court, as  contended by Dr. Singhvi, is invalid, then the appeal before us is  an incompetent  appeal and no direction on merits-can be  given by  this Court on such an incompetent appeal.  There can  be no  controversy  that if the certificate is not  valid,  the only  course  open  to this Court will  be  to  dismiss  the appeal.   Dr. Singhvi urged that the grant  of’  certificate under  Art.’  133  (1) (b) in this  case  is  not  justified because the method of valuation adopted by the High- (1)  C.A. No. 971 of 1967 decided on 22-1-1971. (2)  C.A. No. 64 of 1970 decided on 21-8-1970. 73 2 Court is not correct.  In this context Dr. Singhvi relied on the  decisions  of  this Court in  Chhitarmal  v.  M/s  Shah Pannalal  Chandulal(1)  and Satyanarain Prasad v.  State  of Bihar(1) regarding the test to be applied for the purpose of granting  a  certificate  under clause (a) or  (b)  of  Art.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

133(1).   Dr. Singhvi also relied on the first of the  above references, in support of his contention that in the absence of a valid certificate, the appeal is incompetent and it has to be dismissed. Mr.  S. T. Desai, learned counsel for the  appellant,  urged that  the High Court has not properly considered  the  claim made by the appellant for a certificate under Arts. 132  (1) and  133  (1)  (b) and (c).  Article  132(1)  has  not  been considered  at all nor has the High Court considered  clause (c)  of Art. 133 (1) (c).  Even with regard to  clause  (b), the High Court has given a very halting finding.  Therefore, the  counsel  urged that the High Court may be  required  to consider the application for grant of a certificate afresh. It  is  not  necessary at this  stage  to  consider  whether correct  principles have been applied by the High  Court  in granting  the certificate under Art. 13 3 (1 ) (b).   As  we have  pointed out earlier, it has expressed doubts here  an& there  and it has granted the certificate under that  clause on  the  ground  that  the  Patna  High  Court  has  granted certificates under similar circumstances.  As the High Court is being required to consider this matter afresh, we do  not think  it necessary to express any opinion on  this  aspect. Admittedly  the High Court has not considered  the  question whether the appellant wig be entitled to a certificate under Art.  132 ( 1 ) or Art. 13 3 ( 1 ) (c).  It was pointed  out to  us on behalf of the respondent that the High  Court  did not consider the grant of a ,certificate under clause (c) of Art.  133(1)  as no argument was advanced by  the  appellant that  the case involves a substantial question of law as  to the interpretation of the Constitution.  No ,doubt there  is such  a passing remark in the order of the High ,Court,  but as  the matter has to be reconsidered by the High Court,  it is  desirable  that the claim of the  appellant  under  this clause  is  also  considered by the  High  Court.   We  have already  referred to the fact that even clause (b) has  been considered only in a very halting manner by the High  Court. Therefore,  the position is that the certificate as  granted by the High Court is not a valid certificate and as such the appeal must be held to be incompetent.  But the matter  does no  rest  there.  In cases where the claim  for  certificate made on other clauses or under other Articles have not  been considered at all, this Court has directed the High Court to consider  the question whether a case has been made out  for issue  ,of a certificate under such other provisions.  (Vide Satyanarain (1) [1965]2 S.C.R. 751. (2) [1970] 2 S.CC 275. 733 Prasad  v. State of Bihar(1)and M/s Shree Krishna  Gyanodaya Sugar Ltd. v. The State of Bihar and others(1). As  the High Court has not properly considered the  applica- tion  filed by the appellant, that is, Supreme Court  Appeal No.  42  of  1969, before the High Court for  grant  of  the certificate,  that application will be taken up by the  High Court  afresh.   The High Court will  consider  whether  the appellant  is able to satisfy the court that he is  eligible to got a certificate under Art. 132(1) or under Art. 13 3  ( 1 ) (b) or (c) of the Constitution.  It is not necessary for the High Court to consider whether the certificate is to  be granted under clause (a) of Art. 13 3 ( 1 ) as that question is  already  concluded against the appellant  in  its  order dated  March 13,1969.  The High Court in the fresh order  to be  passed  must  clearly  indicate  under  what  particular Article  or  clauses  of the  Article,  the  certificate  is granted.  We are constrained to make this remark because  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

the present order the High Court has merely stated that  the certificate is issued under Art. 133(1). As  already  a  long time has elapsed,  the  High  Court  is required to dispose of the said application as expeditiously as  possible within a period not exceeding two  months  from the  date  of  receipt  of this order  by  the  High  Court. Subject  to the observations contained above, the appeal  is dismissed.   There  will  be no order as to  costs  in  this appeal. V.P.S.                               Appeal dismissed. (1)  [1970] 2 S.C.C. 275. (2)  A.I.R. 1970 S.C. 2041. 734