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PETITIONER: REGISTRAR OF HIGH COURT OF MADHYA  PRADESH AND ANOTHER

       Vs.

RESPONDENT: B.   A. NIGAM AND OTHERS

DATE OF JUDGMENT03/04/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. PALEKAR, D.G.

CITATION:  1973 AIR 1271            1973 SCR  (3) 878  1973 SCC  (4) 219

ACT: Madhya  Pradesh  Civil  Courts  Act,  1958--Service   Rules- Experience as Civil Judge, Class-1, necessary  qualification for  promotion to the post of Addl.  District  and  Sessions Judge, and not the seniority.

HEADNOTE: The Respondent No. 1, who was a Civil Judge in former Madhya Bharat,  was,  on absorption into  Madhya  Pradesh  Judicial Service,  treated as Civil Judge, Class--II.   The  relevant Service  Rules  applicable to the  Civil  Judges  recognised Civil  Judges  as only one Class but the M.P.  Civil  Courts Act,  1958,  mentioned two classes of Civil  Judges  namely, Civil  Judges Class I and Civil Judges Class II.   From  the time  when  the Madhya Pradesh Civil Courts Act,  1958  came into  force it was always considered by the High Court  that for  promotion to the post of Addl.  District  and  Sessions Judge, it was a necessary qualification that the Civil Judge must have some experience of working as Civil Judge,  Class- I.   Under the Act, the pecuniary jurisdiction of the  Civil Judge,  Class I was Rs. 10,000/- while that of  Civil  Judge Class  11  was  Rs. 5,000/-.  In May 1968,  the  High  Court passed  as  Resolution laying down that the selection  of  a Civil  Judge,  Class-II, as a Civil Judge Class I  shall  be deemed  as  promotion and that being so, only the  cases  of Civil Judges, Class-I, shall be considered for promotion  as Addl.   District  and  Sessions Judges  in  order  of  their seniority.   The respondent was not found fit for  promotion to  the  post  of Civil Judge,  Class-I  in  the  successive selections.   He was finally found fit in 1968.  In  a  writ petition  before the M.P. High Court, the Respondent  No.  1 contended  that the date of the seniority should count  from the date of appointment to the post of Civil Judge  Class-11 and  not  from the date of promotion to the post of  Civil Judge,  Class-1.   He  also contended that  the  High  Court resolution  of  May  3, 1968, was illegal as  there  was  no provision in the Service Rules for classifying Civil  Judges as  Class  I  or Class II and the power  to  create  various classes of services was vested in the Government, and not in the  High  Court.   The M.P. High  Court  allowed  the  Writ Petition. Allowing the State’s appeal by certificate,

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HELD  : (1) On perusal of the High Court file regarding  the selection of Class 11 Civil Judges as Class I Civil  Judges, it is clear that the decisions were bona fide and on merits. The  Respondent  No, 1 had no claim to Class I  post  before 1968, when for the first time he was found fit.  Once it  is found that experience as Civil Judge Class I is a  necessary qualification,  the seniority in Class II service is  of  no consequcnce. (2)  While it is true that the Service Rules do not  provide for  any distinction within Civil Judges, the difference  in the   pecuniary   jurisdiction  cannot  be   ignored.    The Resolution  of  the  High Court of May 1968  should  not  be interpreted literally.  The resolution does not create a new class of  Civil  Judges called Class I  Civil  Judges  but merely  lays down the qualification or standard  of  fitness for higher promotion.  There is 879 Do  justification for re-opening cases closed for more  than ten  years  at the instance of an officer  whose  record  of service  was  not a shining one compared to those  who  were selected earlier. [880A, 881G]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1972. Appeal  by  certificate from the Judgment  and  order  dated August 8, 1971 of the Madhya Pradesh High Court at  Jabalpur in Misc.  Petition No. 537 of 1969. I.   N. Shroff, for the Appellants. M.   N. Phadke, Anthoney G. Menezes, P. G. Bhartari, J. B. Dadachanji,  O. C. Mathur & Ravinder Narain, for  respondent No. 1 The Judgment of the Court was delivered by ALAGIRISWAMI,  J.-In the Judicial Service of Madhya  Pradesh there   are  three  classes  of  officers,   Civil   Judges, Additional District and Sessions Judges and District  Judges but  under the Madhya Pradesh Civil Courts Act,  1958  there are four classes of Civil Courts, the Court of the  District Judge, the Court of the Addl.  District Judge, the Court  of the  Civil Judge (Class 1) and the Court of the Civil  Judge (Class II).  The respondent No. 1, Shri B. A. Nigam, entered service  as  a Civil Judge on 20-10-1956 in  Madhya  Bharat. After  Madhya Bharat became part of Madhya Pradesh  he  was absorbed  as  a  Civil  Judge and  placed  for  purposes  of seniority at No. 189.  From the time when the Madhya Pradesh Civil Court Act, 1958 came into force some period of service of  a Civil Judge during which he exercised powers of  Civil Judge,  Class 1, however, small, was considered a  necessary qualification  for  promotion  to  the  post  of  Additional District and Sessions Judge.  On or about May 3, 1968, by  a resolution of the High Court it was laid down that selection of a Civil Judge, Class 11, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases  of Civil Judges, Class 1, shall be considered for promotion  as Additional  District and Sessions Judges in order  of  their seniority.   It  must  be  made clear  at  the  outset  that according  to the Service Rules there is only one  class  of Civil Judges and Jr not  two classes of Civil Judges  (Class 1)  and  Civil  Judges  (Class  II).   The  fitness  of  the respondent (1) for promotion as Civil Judge, Class I,  seems to have been considered on a number of occasions i.e. on May 3,  1966, August 12, 1966, April 17, 1967. November 6,  1967 and April 18, 1968 and on each of these occasions he was not found fit to exercise powers of a Civil Judge, Class 1.  Mr.

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1. N. Shroff appearing for the appellants has also shown  us the file containing the proceedings of the Judges’  meetings of  the  High Court of Madhya Pradesh on the  various  dates above referred to in which the names of various officers for being 880 Posted  as  Class I Civil Judges have been  considered.   We have  scrutinised  them carefully and can see no  reason  to doubt  the bona fide nature of the. decisions therein  made. The  High  Court  has also taken the view  that  though  the junior  members in the cadre of Civil Judges had often  been allowed  to  exercise the powers of Civil  Judge,  Class  1, without considering at that time the respondent’s claim  and then  those junior members had been preferred for  promotion on the ground that they had exercised such powers, and  such preference  was  open to attack as being  violative  of  the fundamental rights of the respondent, they could not  assist him on that ground because even if his claims for exercising the  powers of Civil Judge, Class I had been  considered  at the  appropriate time, he would not have been found fit  for the  purpose for the reason earlier mentioned.  While it  is not  impossible  that  if the  respondent’s  case  had  been compared  with  that of others before the 3rd May,  1966  he might have been found fit for being posted as a Civil Judge, Class 1, it is very improbable and we, therefore, agree with this  conclusion of the High Court.  Finally, on  30-11-1968 the respondent was found fit to be posted as a Civil  Judge, Class I and he filed the petition, out of which this  appeal arises, for consideration of his name for being promoted  as an Additional District and Sessions Judge over the heads  of all  the  people who had been earlier found to  have  better qualifications for being posted as Civil Judges, Class I  in preference to him.  That petition having been allowed by the High  Court his appeal has been filed by certificate by  the Registrar of the High Court of Madhya Pradesh and the  State against the judgment of that High Court.      In  addition  to  the  point  which  we  have   earlier mentioned  and  agreed with the High Court, his  only  other contention  was  that  in the list of Civil  Judges  he  was senior  to all of them and as there was no provision in  the service  rules  for classifying Civil Judges as Class  I  or Class  III  and  the  power to  create  various  classes  of services  was one which vested with the Government  and  not with  the  High Court therefore the resolution of  the  High Court of May 3, 1968 cannot affect him adversely.  The  High Court took the view that as for some years past a  principle for selection had been introduced that before a Civil  Judge was  promoted  to  the post of an  Additional  District  and Sessions  Judge,  it  was  essential  that  he  should  have exercised the powers of Civil Judge, Class 1, for a  period, however short and that principle had a rational relation  to the  suitability of Civil Judges for promotion to  posts  of Additional  District and Sessions Judges and the  respondent No.  1 could not legitimately complain, as he did  not  have that  qualification,  and  he could  not  be,  selected  for promotion  only on the basis of seniority.  They  also  took the  view that since the respondent No.  1 had not  acquired the qualification required for promotion, 881 his  claim for such promotion should be regarded  as  having been  considered and rejected by implication  till  November 30, 1968 when he was allowed to exercise the powers of Civil Judge,  Class I. Having held rightly, according to us,  that till  November  30,  1968  the  respondent  No.  1  was  not qualified  to be considered for promotion as  an  Additional

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District and Sessions Judge, the High Court curiously enough issued  a writ of mandamus directing that  the  respondent’s claim for promotion should be considered in relation to  the claims  of his juniors and if he was found fit he should  be allowed  the  consequential  benefits  including  fixing  of seniority  in the cadre of Additional District and  Sessions Judges. In mentioning about the juniors of the  respondent No.  1  the learned Judges were referring  to  the  original seniority in the cadre of Civil Judges. Once it is found that experience as Civil Judge, Class 1, at least  for a short period, is a necessary qualification  for promotion as Additional District and Sessions Judge and that such  a requirement has a rational relation to the  question at  issue,  it would be surprising to hold that a  man,  who again  and again had been found unfit to be posted as  Civil Judge,  Class  1, in comparison with others,  who  were  his juniors  in service, his claim for promotion  as  Additional District  and  Sessions Judge should be decided not  on  the basis of the date on which he was found fit to exercise  the powers of Civil Judge, Class I, but on the basis of the date of  his entry into service.  Out of the 41 people  whom  the respondent  No. 1 had made respondents to his  petition,  10 people were found fit in 1962 and one in 1963.  Then we have 3  others whose claims were considered on  3-5-66  alongwith that  of  the respondent No. 1 and found superior  to  his.- There  are  8  others  whose claims  were  compared  to  the respondents  on  12-8-66 and found to be  superior  to  his. Seventeen   others,  whose  claims  were  compared  to   the respondent’s  on  17-4-67 were found to be superior  to  the respondent’s  and two were found superior to the  respondent on 7-11-67.  It would, therefore, be most surprising that  a man who in comparison to all these people was not found  fit to be promoted as Civil Judge, Class 1, should as soon as he was found fit on 30-11-68 go over the heads of all the other who.  were  found  superior to him on a  number  of  earlier occasions.   While it is true that the Service Rules do  not provide  for  Civil Judges being classed as  Class  I  Civil Judges and Class II Civil Judges, we cannot ignore the  fact that  the jurisdiction of the Class II civil Judges is  only upto  Rs.  5,000 and that of Class I Civil Judges  upto  Rs. 10,000.  The resolution of the High Court of May 1963 should not  be interpreted literally.  If it is done in its  proper background  it would be appreciated that what was  done  was not  to  create a new class of Civil Judges called  Class  I Civil  Judges  but  to  have a  list  of  persons  who  were qualified to be posted as 882 Class  I Civil Judges and to provide that fitness for  being posted  as Class I Civil Judges and acting as such for  some time  should be considered as a Qualification for  promotion as Additional District and Sessions Judges.  We have already pointed out that the High Court has rightly held that such a provision cannot be said to be irrelevant to the question of promotion from among the Civil Judges to Additional District and  Sessions Judges.  We are firmly of opinion that in  the face of these circumstances to allow the respondent No. 1 to be  considered  for  promotion as  Additional  District  and Sessions  Judge in preference to others who had  been  found better  qualified to be posted as Civil Judges Class I  much earlier  merely on the basis of the date of his  entry  into service  would be a mockery of all canons of fair  play  and justice.   Indeed,  we cannot help feeling  that  his  being found  fit for promotion to Class I Civil Judge on  30-11-68 seems  to  have been done more as a matter of grace  and  he should be more than happy to have got what he got.  The fact

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that  before  3-5-66 there might have been  cases  of  Civil Judges  being  posted as Presiding Judges  of  Civil  Courts Class I clue to various exigencies of service cannot in  any case  affect  the merits of this case.  As we  have  already indicated  while it is not impossible it is improbable  that compared  to  those people who had been posted  as  Class  I Civil.  Judges before 3-5-66 the respondent No. 1 would have been  found  better qualified.  At any rate we  can  see  no justification for reopening cases that had been closed  more than 10 years ago at the instance of an officer whose record of service to say the feast, is not shining one.  We see  no merits  in his claim.  We, therefore, allow the  appeal  and set  aside the _judgment of the Madhya Pradesh  High  Court. There will, however, be no order as to costs. S.B.W.                              Appeal allowed. 883