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PETITIONER: STATE OF BIHAR

       Vs.

RESPONDENT: MADAN MOHAN PRASAD & ORS.

DATE OF JUDGMENT19/12/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH RAY, A.N. (CJ) BEG, M. HAMEEDULLAH SHINGAL, P.N.

CITATION:  1976 AIR  404            1976 SCR  (3) 110  1976 SCC  (1) 529  CITATOR INFO :  RF         1977 SC2328  (14)  R          1979 SC 478  (152)  R          1980 SC1426  (24)  RF         1981 SC 561  (51)

ACT:      Bihar Superior  Judicial Service  Rules 1951-r.  16(e)- "may have been’ allowed to officiate continously" -Scope and meaning of-Notional officiation -If permissible.      Constitution of  India-Art.  235-Power  of  determining seniority of District Judges-If vests in the High Court.

HEADNOTE:      Rule 6  of the  Bihar Superior  Judicial Service Rules, 1951, says  that of  the posts  in the cadre of the service, two-thirds shall  be filled  by promotion  and one-third  by direct recruitment.  Clause  (e)  of  r.  16  provides  that seniority of  direct recruits  vis-a-vis  promoted  officers shall be  determined with  reference to the dates from which they may  have been  allowed to  officiate continuously in a post in the cadre of the Service.      Respondents 1,  2 and  3 who  were direct recruits were appointed as  Additional District  &  Sessions  Judges  with effect from  April 21, 1960. Respondents 4, 5 and 6 belonged to the  judicial service  of the  State. Respondents 5 and 6 were promoted  as Additional District & Sessions Judges. But despite the  availability of  a post  from November 1, 1959, and suitability  of respondent  4, he  was appointed to that post only on September 19, 1960. His representation that his seniority should  be fixed  below that  of respondent  6 was rejected by  the High  Court. But, the State Government said that in order to relieve undue hard ship to respondent 4, he should be  deemed to  have been  officiating  as  Additional District &  Sessions Judge with effect from November 1, 1959 and that  for the  purposes  of  seniority  he  should  rank immediately below  respondents 5 and 6 on the view that on a proper  interpretation   of  r.  16(e)  of  the  Rules,  the Government was  authorised to  fix the seniority from a date from  which   officiation  was   possible  on   account   of availability of vacancies.

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    Respondents 1  to  3  (direct  recruits(1)  in  a  writ petition impugned  the Government’s  action  in  fixing  the seniority of  respondent 4 below that of respondents 5 and 6 but above  them. Before  the High  Court the State contended that the  meaning of the expression "might have been allowed to officiate  continuously" in  r. 16(e) is that a notional, continuous officiation in a post in the cadre of the service or outside it, will give preference to the promoted officers in the matter of seniority over the direct recruits provided there were vacancies, in one or which he could or might have been allowed  to  officiate  continuously.  The  High  Court rejected this contention and held that this expression meant actual and  continuous officiation  and not  a fictional  or notional one.      Dismissing the appeal, ^      HELD: (1)(a)  The  words  "may  have  been  allowed  to officiate continuously"  in cl. (e) of r. 16 mean actual and continuous officiation  and not  a fortuitous  or  fictional officiation. A  notional construction  of the  clause  would lead to  anomalous results. The State Government, therefore, could not, on an interpretation of r. 16(e) say that for the limited purpose  of seniority  respondent 4 would rank below respondents  5   and  6   but  above  the  writ  petitioners (respondents I  to 3(1)  and will  be deemed  to  have  been officiating as  Additional District  & Sessions  Judges with effect from November 1, 1959. Such a deeming officiation for the purpose  of determination of seniority on a construction of cl. (e) was not permissible. [117 H-118 B]      (b) Reading cl. (e) together with cl. (a) and (b) of r. 16, it  is clear  that before fixing the seniority of direct recruits vis-a-vis  promoted officers  it will be necessary, as a  preliminary step, to prepare two separate lists-one of direct recruits  under cl.  (a) and  the other  of  promoted officers under  cl. (b)  of r. 16 in the chronological order of their confirmation. [117 D-E] 111      (2) The  power of  confirmation of District Judges is a part of  the power of control vested in the High Court under Art. 235  of the  Constitution.  Since  the  Bihar  Superior Judicial Service  Rules  make  the  chronological  order  of confirmation an  integral part of the process of fixation of the order of seniority in the service, the inference is that both these  powers were  intended to be exercised by one and the same authority. Since Art. 235 of the Constitution vests the power  of confirmation  in the  High Court, the power of determining the  seniority in  the service  is also with the High Court.  In determining  the seniority the High Court is bound to  act in  accordance with  the rules validly made by the  Governor   under  the   proviso  to  Art.  309  of  the Constitution. [117 E-G]      Chandramouleshwar Prasad v. Patna High Court and others [1970] 2 S.C.R. 666, followed.      High Court  of Punjab  and Haryana etc. v. The State of Haryana and others [1975] 3 S.C.R. 365, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 166, of 1970. (Appeal  by special  leave from the judgment and order dated the  26-9-1969 of  the Patna  High Court in Civil Writ Petition Case No. 183 of 1968(1).      L. M. Singhvi and U. P. Singh                 - For the                                                  appellants.

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    B. P. Singh                         for the respondent.      The Judgment of the Court was delivered by      SARKARIA, J.-  Respondents 1,  2 and  3 herein  made an application under  Article 226  of the Constitution alleging that the  decision of  the Bihar State Government fixing the seniority of Respondent 4 below Shri C. P. Singh (Respondent 5(1) and  Shri E.  Rehman (Respondent  6(1)  and  above  the applicants, in  the cadre of Bihar Superior Judicial Service was illegal  and ultra  vires. They  prayed for  a  writ  of mandamus, direction or order quashing the same and directing the State  Government to  revise the  applicant’s  seniority vis-a-vis the  opposite parties,  (Respondents 4,  5  and  6 herein(1).,      The applicants  also challenged  the upgrading  of  the posts  of   Deputy  Registrar,  Patna  High  Court  and  the Secretary, Bihar  Legislative Assembly with effect from June 17, 1959  till the  posts were  held by Respondents 5 and 6, respectively.      A Full  Bench of the High Court partly allowed the writ application and  quashed the  order of  the State Government placing Respondent 4 below Respondents S and 6 in seniority. The material facts were these:      Respondents 4, 5 and 6 were appointed as Munsifs on the same date  under one  notification. On April 25, 1959, these three officers were holding the posts of Subordinate Judges. Prior to  that date,  four posts  of Additional District and Sessions Judges  fell vacant.  On April  25, 1959,  the High Court,  after   considering  the   service  records  of  the Subordinate   Judges    due   for   promotion,   recommended Respondents 4,  5 and 6 and Shri Sharda Prasad for promotion as Additional District & Sessions Judges in those vacancies. Respondents 5  and 6  on that  date were  acting  as  Deputy Registrar, Patna High Court and Secretary, Bihar Legislative Assembly, respectively,  and since the release of Respondent 5 from  that post was not in public interest, the High Court recommended temporary  upgrading of  that post.  It  further recommended 112 that Respondent  6 should  act as  Additional  District  and Sessions Judge  in the second longer vacancy and in case the State Government did not think it proper to relieve him, the post of  Secretary, Bihar  Legislative  Assembly  should  be upgraded. Respondent  4 was  recommended to  be promoted  as Additional District  & Sessions  Judge in  the third  longer vacancy. He joined in the promoted rank on June 17, 1959 and continued in  it till  October 1,  1959. Before  the  actual officiation by  Respondent  4  in  the  promoted  rank,  the Government by its letter, dated August 5,-1959, had approved the  creation  of  two  posts  of  Additional  District  and Sessions Judges  for a  period of  one  year  in  the  first instance, consequent  on the  amendment of  Bengal, Agra and Assam Civil Court Act, 1887.      On May 22, 1959, the Government sanctioned the creation of two posts of Peripatetic District & Sessions Judges for a period of  two years.  Thus, between April 25, 1959 and June 17, 1959  four extra posts of Additional District & Sessions Judges were  created, and  were available  for  the  persons found  fit   and  due   for  promotion  from  the  cadre  of Subordinate Judges.  On August  17,  1959,  the  High  Court recommended Sarvshri  A. N.  Sahay, R.  B. P.  Sinha, C.  P. Singh (Respondent  5(1) and  E. Rahman  (Respondent 6(1) for promotion as  Additional District  and Sessions  Judges. It, however, made  it clear that since Respondents 5 and 6 could not be  relieved from  the posts  of Deputy  Registrar, High Court  and  Secretary,  Legislative  Assembly,  they  should

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continue in  these posts  after the  same had been upgraded. The High Court further recommended that in view of the heavy arrears two  more posts  of Additional District and Sessions Judges be created for the period for which Respondents 5 and 6 were to continue on the posts they were then holding.      Ten more posts of Additional District & Sessions Judges fell vacant  between November  1, 1959  and April  6,  1960. Thus, there were, in all, fourteen vacancies id the posts of Additional District  and Sessions  Judges, to  one of  which Respondent 4 could and should have been ap pointed, if there was no  administrative or  procedural delay  attributable to his  fault.  Respondents  1,  2  and  3  were  appointed  as Additional District  and Sessions  Judges  by  a  Government notification, dated April 21, 1960. Despite the availability of a post and suitability of Respondent 4 to be appointed as Additional District  & Sessions  Judge, he  was promoted  to that post  on  September  19,  1960.  Respondent  4  made  a representation dated April 10, 1961, to the State Government praying for  fixation of  his seniority  just below  Shri E. Rehman in  the cadre  of Additional  District  and  Sessions Judges. He  followed it  up by supplementary representations in  the  same  connection.  These  representations  remained pending on  the administrative  side of the High Court. By a letter dated August 20, 1964, the High Court recommended the rejection of  his representations.  The Government, however, was  of   the  opinion  that  there  was  substance  in  the representation of  Respondent 4.  It therefore  made a  back reference  on   August  S,   1965  to  the  High  Court  for reconsideration of  the matter.  The  High  Court,  however, informed the  Government that  it did not see any reasons to reconsider the  matter. Thereafter  the  Government  took  a decision and  allowing the  representation of  Respondent 4, ordered that he should be deemed to 113 have been  officiating as  Additional District  and Sessions Judge with  effect from November 1, 1959 and for purposes of seniority, should rank immediately below Respondents 5 and 6 in  the   cadre  of   the  Superior  Judicial  Service.  The Government was of opinion that on a proper interpretation of Rule 16(e)  of the Bihar Superior Judicial Service Rules, it was authorised  to fix  the seniority from a date from which officiation was  possible  on  account  of  availability  of vacancy. On  being satisfied  that the delay between October 1, 1959  and  September  19,  1960,  in  the  promotion  and appointment of  Respondent  4  to  the  post  of  Additional District and  Sessions Judge,  when several  posts  in  that cadre  were   vacant,  was   wholly  an  administrative  and procedural delay  the State  Government in  order to relieve undue hardship  to Respondent  4, relaxed  Rule 16(e) of the Service  Rules  and  passed  the  impugned  order  which  it communicated to the High Court by a letter dated January 24, 1968, which reads as follows:           "I am  directed to  refer to  your letter  No. 501      dated 18-1  66 on  the subject  noted above  and to say      that after  a careful consideration of the case of Shri      Jitendra Narain  at present District and Sessions Judge      of Dhanbad,  the State  Government have been pleased to      decide that  Shri Narain  shall rank  immediately below      Shri Enayetur  Rahman and  above Sarvashri  Madan Mohan      Pd., Rameshwar  Pd. Sinha  and Chandra  Shekhar  Prasad      Singh, the direct recruits from the Bar in the cadre of      the Superior  Judicial Service,  and for  this  limited      purpose, he  will be deemed to have been officiating as      Additional District and Sessions Judge with effect from      1st November 1959".

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    Thus, the  question before  the High  Court was  one of fixation of  the seniority of the writ-applicants, the three direct recruits,  vis-a-vis Respondent  4. In  this context, the interpretation  of Rule  16(e) of  the State’s  Superior Judicial Service  Rules came up for consideration. This Rule provides:           "Seniority of  direct recruit  vis-a-vis  promoted      officer shall be determined with reference to the dates      from which  they F  may have  been allowed to officiate      continuously, in  posts in  the cadre of the service or      in posts  outside the  cadre on identical time-scale of      pay and  of equal status and responsibility or in posts      of higher  scale of pay and of higher responsibility in      or outside the cadre."      There, as  here, it  was contended  that the meaning of the  expression   "may  have   been  allowed   to  officiate continuously" occurring in the above quoted clause is that a notional, continuous  officiation in  a post in the cadre of the Service  or outside  it, will  give  preference  to  the promoted officer  in the matter of seniority over the direct recruit provided  there were  vacancies in  one of  which he could or  might have been allowed to officiate continuously. The High  Court rejected  this contention and held that this expression means actual and continuous officiation and not a fictional or  notional one.  The High  Court, however,  went further and said that the power to determine seniority being a matter of control exclusively vests in the High Court 114 under Article  235 of the Constitution. If further held that the Government  could not fix the seniority of Respondent 4, as they  had done  by taking recourse to the "hardship rule" framed by  them under  the proviso  to Article  309  of  the Constitution. According to it, what the Government could not do directly,  could not be indirectly done by it by relaxing the requirement of Rule 16(e).      Shri Madan  Mohan  Prasad  (Respondent  No.  1  in  the original petition(1)  has since  been appointed to the Bench of the High Court. Consequently, he has withdrawn his appeal (Civil Appeal  No. 1928 of 1970(1) which stands dismissed as such with no order as to costs.      We are  told  that  Sarvashri  Rameshwar  Prasad  Singh (Respondent  2(1),  Jitendra  Narain  (Respondent  4(1)  and Chandrika Prasad  Sinha  (Respondent  5(1)  have  also  been appointed  to   the  Bench  of  the  High  Court,  and  that Respondents 3  and 6  have since  retired  from  service  as District and  Sessions Judges.  The  matter  has  thus  been rendered academic,  except, as  the Solicitor-General  says, for the  limited purpose  of fixing  pension and gratuity on the basis  of the length of service in the cadre of Superior Judicial Service.      Before dealing  with the contentions canvassed, it will be appropriate  to notice  the relevant  provisions  of  the Bihar Superior  Judicial Service  Rules, 1951.  Rule 6  says that of  the posts  in the  cadre of the service, two-thirds shall  be  filled  by  promotion  and  one-third  by  direct recruitment. Then  there is  a proviso which gives the State Government power  to  deviate  from  this  proportion  after consultation  with  the  High  Court.  Rule  15  deals  with confirmation. It says:           "15(1)(a). A member of the Service appointed under      clause (a) of rule S shall be on probation for a period      of one  year and  shall not  be confirmed  unless he is      found to  be suitable  in every respect for appointment      to the Service:           Provided that  the  period  of  probation  may  be

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    extended  by the State Government, in consultation with      the High Court.           (b) When such a member is confirmed in the Service      the period  spent on probation shall be counted towards      leave, pension  or increments  in  the  relevant  time-      scale.           (2)   Promoted    officers    appointed    against      substantive vacancies  in the  cadre shall forthwith be      confirmed in the  Service."      Then  comes   Rule  16  which  regulates  the  inter-se seniority. It provides:           "16(a). Seniority  inter  se  of  direct  recruits      shall be  determined in  accordance with  the  date  of      their substantive appointments to the Service:           Provided that  a direct  recruit appointed  to the      post of an Additional District Judge shall be junior to      a direct  recruit appointed  to any  other post  in the      schedule. 115           (b) Seniority  inter se of promoted officers shall      also be  determined in  accordance with  the  dates  of      their substantive appointments to the Service.           (c) When more than one direct recruit is appointed      at one  time, the seniority inter se will be determined      in accordance  with the order given in the notification      making their appointments. B           (d) When  more than  one appointment  is  made  by      promotion at  one time,  the seniority  inter se of the      officers promoted  shall be  in accordance  with  their      respective  seniority   in  the   Bihar  Civil  Service      (Judicial Branch(1). (e)......         ......                  .... ."      There is  a Note  appended to this rule which clarifies that a  period  of leave or the annual vacation of the Civil Courts will  not be  treated  as  an  interruption  for  the purposes of this sub-rule.      It will  be seen  that these  rules are  silent  as  to whether any  question in regard to inter se seniority of the promoted  officers   and  the   direct  recruits  is  to  be determined by  the High  Court or  the State  Government  in consultation with the High Court.      Mr. Lal  Narain Sinha,  Solicitor General contends that this question  is concluded by the decision of this Court in Chandramouleshwar Prasad v. Patna High Court and ors.(1). It is therefore proposed to notice that case in some detail.      There, the  petitioner as  well as  respondents 3  to 5 belonged to  the Judicial  Service of Bihar. They had joined service as  Munsiffs. In  due course,  they were promoted as Subordinate Judges.  In 1962, the question of promoting them as Additional District and Sessions Judges was considered by the High  Court and  the Government.  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. The Bihar  Civil   List  published  in  March  1968  showed  the petitioner as No. 10 and respondents 3 to S as Nos. 12 to 14 in the  cadre. Respondents made a representation to the High Court for  correction of  the gradation list. The High Court accepted their representation in September 1968. In the same month the  District and  Sessions Judge at Bihar retired and respondent No.  3 who  was the  3rd Additional  District and Sessions Judge  was asked  by the High Court to officiate in the vacancy.  The petitioner  who was  also working  as  1st

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Additional District  and Sessions  Judge in  the same  place considered this  to be  a supersession  and memorialised the Government. The  latter took  action  on  October  17,  1968 appointing  the   petitioner  as  officiating  District  and Sessions Judge.  Thereupon the  High Court  transferred  the petitioner to  another District  on October  25,  1968.  The petitioner moved  this Court  under Art.  32 challenging the validity of  the order  of the  High Court  transferring him from Errah  and  posting  him  as  Additional  District  and Sessions Judge at Singhbhum and the direction      (1) [1970] 2 S.C.R. 666. 116 or the  order of  the High  Court dated  September 23,  1962 declaring respondents  3 to  S  as  senior  to  him  in  the gradation list  of Additional  District and  Sessions Judges maintained by  the High  Court. He  further prayed  that the High Court  be directed  to allow him to take over charge as officiating District and Sessions Judge at Errah in terms of the Government’s  notification dated  October 17,  1958. The main ground on which he challenged the direction or order of September 23, 1968 relating to his position in the gradation list was  that it  was Q  in contravention  of  r.16(b)  and r.16(d) of  the Bihar Superior Judicial Service Rules, 1951. He took his stand on the notification dated October 17, 1968 of the  Government purporting  to appoint him temporarily as District and Sessions Judge, Errah.      On the  question of  fixing of  seniority,  this  Court speaking through Mitter J. said:           "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 lsit 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      deter mined  when the  question of  their  confirmation      comes up for consideration           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 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 this Court held:       "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 r      and Sessions  Judges prepared  by the High Court has no      legal sanction and that the seniority of the petitioner      and respondents  3 to  S can  only be determined in the      superior  Judicial  Service  where  they  are  now  all      holding officiating posts when the occasion  arises."      It is  to be  noted that  in Chandramouleshwar (supra), this Court  was concerned only with cls.(b) and (d) of r.16, while in the present case, we are concerned with fixation of inter se seniority of promoted officers vis-a-vis the direct recruits which matter is governed by cl.(e) of me said rule. It will  be seen  from what has been extracted above that in Chandramouleshwar, even  while construing  cls.(b) and  (d),

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this Court  did not  say in express terms that the gradation list prepared  by the  High Court  was invalid because under the concerned rules, the 117 High Court  had no  power to determine inter se seniority of the   promoted officers  or that  the determination  of such seniority was  a matter  for the  State Government. All that was held  was that  the question  of  determining  inter  se seniority in  terms of  cls.(b) and  (d) of  r. 16  does not arise before  their confirmation comes up for consideration. In  other  words,  the  question  of  determining  inter  se seniority of  the promoted  officers could not be determined apart from  and prior  to their confirmation in the Service. Since the Civil List prepared by the High Court had not been drawn up  in accordance  with the aforesaid rule, it had "no legal basis". Thus, Chandramouleshwar seems to lay down that the question  of determining  inter se seniority of promoted officers  is   intertwined  with   the  question   of  their confirmation in  the Service. According to cl. (a) of r. 16, inter  se  seniority  of  direct  recruits  is  also  to  be determined  in   accordance  with   the   dates   of   their confirmation in  the Service.  In this case, however, we arc concerned with  fixation of the seniority of-direct recruits vis-a-vis promoted  officers. The  relevant clause  for this purpose  is   cl.(e)  of   r.16.  The  governing  criterion, according to  this clause,  is "the date from which they may have been  allowed to officiate continuously in posts in the cadre of  the Service  or in  posts  outside  the  cadre  on identical  time-scale   of  pay  and  of  equal  status  and responsibility or  in posts  of higher  scale of  pay and of higher responsibility." D      Reading clause (e) together with cls. (a) and (b) of r. 16, it  is clear  that before fixing the seniority of direct recruits vis-a-vis  promoted officers,  it will be necessary as a  preliminary step,  to prepare  two separate  seniority lists, one of direct recruits under cl. (a) and the other of promoted  officers   under  cl.   (b)  of   r.  16,  in  the chronological order of their confirmation.      This Court  has recently  held in  The  High  Court  of Punjab and  Haryana etc.  v. The  State of Haryana and ors.) that the  power of confirmation of District Judges is a part of the  power of control vested in the High Court under Art. 235 of  the Constitution.  Since the Bihar Superior Judicial Service Rules,  make the chronological order of confirmation an integral  part of the process of fixation of the order of p seniority in the Service, the inference is that both these powers were  intended to  be exercised  by one  and the same authority. Since  Article 235  of the Constitution vests the power of confirmation in the High Court, it stands to reason that the  power of  determining the seniority in the Service is also  with the  High Court  of course, in determining the seniority the  High Court is bound to act in accordance with the Rules  validly made by the Governor under the Proviso to Art. 309 of the Constitution.      Be that  as it  may, it  is not necessary to pursue the discussion further.  Appointment of  three of respondents to the Bench of the High Court and retirement of two others has rendered the matter largely, if not entirely, academic.      We further  agree with  the High  Court that  the words "may have  been allowed to officiate continuously" in cl.(e) of r.16 mean actual      (1) A.I.R. 1975 S.C. 613. 118 and continuous officiation and not a fortuitous or fictional officiation. A  A notional  construction of the clause would

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lead to  anomalous results.  The State Government therefore, could not  on an interpretation of r.16(e) says that for the limited purpose  of seniority  respondent 4 would rank below respondents 2  and 3 but above the writ petitioners and will be deemed  to have  been officiating  as Additional District and Sessions  Judges with effect from November 1, 1969. Such a deeming  officiation, as  rightly held  by the High Court, for  the   purpose  of   determination  of  seniority  on  a construction of cl.(e) was not permissible.      For the  foregoing reasons,  the appeal  fails  and  is dismissed without any order as to costs. P.B.R.                                     Appeal dismissed. 119