1969 (10) TMI 92 - SC - Indian Laws

Challenged the validity of the order passed by High Court by Notification No. 333 transfer and posting - Gradation List - reduction in rank - question of seniority - direction or order of September 23 1968 in contravention of Rule 16(b) and Rule 16(d) of the Bihar Superior Judicial Service Rules - Whether the action of the Government in issuing the notification of October 17 1968 was in compliance with Article 233 of the Constitution - HELD THAT - 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 charge of mala fides against the High Court or the veiled insinuations against its present Chief Justice. Supersession of the petitioner by Misra and Ors. had 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 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 will have to be determined when the question of their confirmation comes up for consideration. At the present moment the question does not arise and M. P. Singh who now 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 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 Article 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 Sessions Judges prepared by the High Court has no legal sanction and that the seniority of the petitioner and 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.

Summary

Issues Involved:
1. Validity of the High Court's order transferring the petitioner.
2. Validity of the High Court's direction declaring respondents 3 to 5 as senior to the petitioner.
3. Compliance with Article 233 of the Constitution regarding the appointment of District Judges.
4. Allegations of mala fides against the High Court.

Issue-wise Detailed Analysis:

1. Validity of the High Court's order transferring the petitioner:

The petitioner challenged the High Court's order transferring him from Arrah to Singhbhum as an Additional District and Sessions Judge. The Court held that the High Court was within its rights to transfer judicial officers, including District Judges, after their first appointment and posting. This right to transfer was affirmed by the precedent set in State of Assam v. Ranga Mohammed and Ors. The Court concluded that the High Court's order of transfer was valid.

2. Validity of the High Court's direction declaring respondents 3 to 5 as senior to the petitioner:

The petitioner contested the High Court's direction that declared respondents 3 to 5 as senior to him in the gradation list of Additional District and Sessions Judges. The Court noted that the Bihar Superior Judicial Service Rules do not sanction the High Court to maintain or act on such a gradation list. Rule 16(b) states that seniority inter se of promoted officers is determined by the dates of their substantive appointments, and Rule 16(d) specifies that if multiple promotions occur simultaneously, seniority is based on their respective seniority in the Bihar Civil Service (Judicial Branch). The Court concluded that the gradation list prepared by the High Court had no legal basis and that the seniority of the petitioner and respondents 3 to 5 would be determined upon their substantive appointments.

3. Compliance with Article 233 of the Constitution regarding the appointment of District Judges:

The petitioner argued that the Government's notification appointing him as officiating District and Sessions Judge at Arrah was valid. However, the Court found that the notification was not in compliance with Article 233 of the Constitution, which requires the Governor to consult the High Court before appointing District Judges. The Court emphasized that consultation with the High Court is not an empty formality and that the High Court is best suited to assess the merits and demerits of candidates for promotion. The Court determined that the Government had not effectively consulted the High Court before issuing the notification and thus declared it invalid.

4. Allegations of mala fides against the High Court:

The petitioner alleged mala fides against the High Court and insinuated bias by its Chief Justice. The Court examined the correspondence and records from 1962, 1963, and 1968 and concluded that there was no foundation for these allegations. The Court noted that the supersession of the petitioner had been decided upon in 1962 and 1963, under a different Chief Justice, and that the High Court's actions in 1968 were consistent with those earlier decisions. The Court dismissed the allegations of mala fides and emphasized that the gradation list had no legal sanction.

Conclusion:

The Court held that the Government notification of October 17, 1968, was not in compliance with Article 233 of the Constitution, and therefore, the High Court's order of October 25, 1968, could not be quashed. The Court also ruled that the gradation list prepared by the High Court had no legal basis and that the seniority of the petitioner and respondents 3 to 5 would be determined upon their substantive appointments. The Court expressed hope for better mutual deliberation between the High Court and the Secretariat in the future. No order as to costs was made.