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PETITIONER: RAMESHWAR PRASAD

       Vs.

RESPONDENT: STATE OF BIHAR AND ORS.

DATE OF JUDGMENT31/08/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SHINGAL, P.N. SEN, A.P. (J)

CITATION:  1980 AIR  104            1980 SCR  (1) 456  1979 SCC  (4) 368

ACT:      Supersession  for   promotion  as  Additional  District Judge-challenge under Constitution of India, Articles 14 and 16-When can arise.      Malice-Plea of  malice not  taken or  made out  in  the Petition cannot be taken notice of when argued.

HEADNOTE:      The petitioner  challenged the  order of the High Court recommending his  supersession by promoting other Sub-judges as Additional  District  Judges,  and  also  the  acceptance thereof by  the Government,  on the ground that his judicial career was  without any  blemish and therefore, the impugned orders were  in violation  of Articles  14  and  16  of  the Constitution and  that there  was a  colour of malice in the recommendation by the High Court.      Dismissing the petition, the Court ^      HELD: 1.  All that Article 16 requires is that the case of  the   employees  similarly   situate  and  eligible  for promotion must be considered before others are promoted. The petitioner must  establish that  his case was not considered at all  and persons  junior to him were promoted without any reason. [457D-E]      In this  case, Article  16 is  not violated as his case for promotion was fully considered by the High Court and the Government an(l  then it  was decided not to promote him. At any rate,  since the  High Court  is the  best. judge of the performance of  its officers  and if  the High Court was not satisfied about  the suitability  of the  Petitioner  having regard to  his past  record, for  promotion Art.  16 is  not attracted and  this Court  would not, therefore interfere at this state. [457B-C. 458A-B]      (b) The  petitioner  and  other  Sub-judges  not  being similarly situate  as being  of equal  merit the question of discrimination  or   infraction  of   Article  14   of   the Constitution also does not arise. [457H, 458AB]      Supreme Court  cannot  take  notice  of  allegation  of malice as  an argument  when no  such plea has been taken in the petition  or proved in the affidavit filed in support of the petition. [458B]

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JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition No. 4313 of 1978.            Under Article 32 of the Constitution.      Sarjoo Prasad,  (Dr.) Y. S. Chitale and M. L. Verma for the Petitioner.      U. P. Singh and S. N. Jha for Respondent No. 1.      S. V. Gupta and B. P. Singh for Respondent No. 2. 457      The Judgment of the Court was delivered by      FAZAL ALI,  J. This  petition under Article 32 has been filed against  the order  of the Governor of Bihar accepting recommendations  of  the  High  Court  and  superseding  the petitioner Rameshwar  Prasad by  promoting other subordinate Judges as  Additional  District  Judge,  Mr.  Sarjoo  Prasad appearing in  support of  the petitioner  mainly raised  two points before  us. In  the first place it was contended that the judicial  career  of  the  petitioner  was  without  any blemish and  there was  nothing against  him to  justify his supersession when  the High  Court recommended  the case  of promotion of  the Sub-Judges  for appointment  as Additional District Judge  and hence the order impugned is violative of Article  16  of  the  Constitution.  There  is,  how-  ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered  fit for  promotion by  the High Court, hence his case  was not  recommended for  promotion as  Additional District Judge.  In this  view of  the matter it is manifest that Article  16 cannot be violated because the petitioner’s case for  promotion was  fully considered  by the High Court and the  Government and  then it  was decided not to promote him. All that Art. 16 requires is that the case of employees similarly  situate   and  eligible  for  promotion  must  be considered before others are promoted. If it was established that the  petitioner’s case  was not  considered at  all and persons junior  to him  were promoted  with- out any reason, then something  could be  said in support of the petitioners case. It  would appear  from the affidavit filed by the High Court  that  the  Government  considered  the  case  of  the petitioner. The  averment in  para 14 of the affidavit filed by the High Court runs:           "It  is  incorrect  to  say  that  there  was  any      departure from any common usual practice in sending the      second  proposal  though  final  orders  on  the  first      proposal  were  not  passed  by  the  State  Government      specially in  the context  that at  the time of sending      the second  proposal this Respondent came to a definite      conclusion that  the work and conduct of the petitioner      was  such   that  he  should  not  be  recommended  for      promotion unless he showed improvement in his conduct."      G      Further more  at page  85 of  Annexure I  it is clearly mentioned that  the Court  has recommended the case of other Sub-Judges after  considering  the  case  of  the  concerned appellant Mr.  Rameshwar Prasad  and it  is also established that the Government concurred with the recommendation of the High  Court.   Although  Mr.   Prasad  submitted   that  the petitioner had  an  unblemished  career,  there  are  enough materials on  the record  to show  that this is not correct. Thus the petitioner and 458 other Sub-Judges  not being  similarly situate  as being  of equal merit  the question of discrimination or infraction of

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Article 14  of the  Constitution also does not arise. At any rate, since  the  High  Court  is  the  best  Judge  of  the performance of  its officers  and if  the High Court was not satisfied about  the suitability  of the  petitioner  having regard to  his past  record, for  promotion, Art.  16 is not attracted and  this Court would not, therefore, interfere at this stage.  Secondly, it  was faintly  suggested that there was a  colour of  malice in the recommendation by the  Court but no  such clear  plea has  been taken  in the petition or proved in  the affidavit  filed by  the petitioner. In these circumstances,  we   cannot  take  any  notice  of  such  an allegation. For  these reasons,  we find  no merit  in  this petition. We  would, however,  like to observe that the High Court itself  was of the opinion that in case the petitioner improves his  merit and  ability, he  may be  considered for promotion  and   for  this  purpose  one  vacancy  was  kept reserved. Although  this vacancy  has since  been filled up, yet if  in future  there is  any vacancy, the High Court may consider his case for promotion, if he shows improvement and progress.      The application is accordingly dismissed. There will be no order as to costs. S.R.                                      Petition dismissed 459