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TMI Blog1969 (10) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also prays that the High Court be directed to allow him to take over charge as officiating District and Sessions Judge at Arrah in terms of Government notification dated October 17, 1968. According to him the direction or order of September 23, 1968 was in contravention of Rule 16(b) and Rule 16(d) of the Bihar Superior Judicial Service Rules. He takes his stand on the notification of the Government of Bihar dated October 17, 1968 purporting to appoint him temporarily as officiating District and Sessions Judge of Arrah and contends that the order of the High Court dated October 25, 1968 following close to the heels of the said Government notification amounted to his reduction in rank and was otherwise penal in nature. His further complaint is that the direction of the High Court requiring S. C. Chakravarty, the retiring District Judge of Arrah in September 1968 to hand over charge of his office to Govind Mohan Misra, respondent No. 3, by purporting to appoint him as officiating District and Sessions Judge was a discriminatory order contravening Article 14, 16 and 311 of the Constitution. The respondents to the petition are (1) the High Court of Judicature at Patna through its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 1968 claiming the reliefs mentioned. 3. In order to appreciate the respective contentions of the parties, it is necessary to note a few facts happening before the above controversy. The petitioner as well as respondents 3, 4 and 5 all belong to the Judicial Service of Bihar. They all joined service as Munsifs, the petitioner doing so in 1941 while the respondents 3, 4 and 5 did so in 1944. Later they were all appointed as Additional Subordinate Judges, the petitioner in 1949 and the said respondents in 1951-1952. The Bihar Civil List published in March 1968 shows the petitioner at serial No. 10, one Dharm Deva Narain Sinha at No. 11, Govind Mohan Misra, respondent No. 3 at No. 12, Choudhary Sia Saran Sinha, respondent No. 4 at No. 13 and Jagannath Prasad Singh, respondent No. 5 at No. 14. The question of these persons being selected and posted as Additional District and Sessions Judges engaged the attention of the High Court as early as March 1962 when two vacancies occurred in that rank. In considering the claims of these persons to promotion the Registrar of the High Court wrote to the Chief Secretary, Government of Bihar pointing out that three officers including the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut up by the Secretary for the Chief Minister to the effect that if the latter agreed, the Legislative Assembly would be asked to accord its approval to relieve Misra whereupon he would be posted as Additional District Judge, Hazaribagh. The Chief Minister agreed to this proposal on 14th September. Soon thereafter the Registrar informed the Secretary that another vacancy had already occurred on 14th September 1962 and recommended Misra's appointment as Additional District and Sessions Judge of Hazaribagh in the earlier vacancy. The recommendation apparently could not be given effect to. It appears that the High Court recommended respondent No. 4 to act as Additional District and Sessions Judge on 4th October, 1962 when he was still serving the Bihar State Electricity Board as its Deputy Secretary. The subject of promotion of these officers again came up before the High Court in November 1962. On a reconsideration of the cases of the petitioner and D. N. Sinha as a result of the enquiry made through District and Sessions Judges the Court found them fit for promotion, and by letter dated November 21 recommended that the petitioner who was then acting as Subordinate Judge, Gaya, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Rule 8 a person appointed either on substantive or officiating basis to the post of Additional District and Sessions Judge shall draw pay on the lower time basis. Rule 16(b) provides that seniority inter se of promoted officers shall be determined in accordance with the dates of their substantive appointments to the service and Rule 16(d) lays down that more than one appointment is made by promotion at one time, the seniority inter se of the officers promoted shall be in accordance with the respective seniority in the Bihar Civil Service (Judicial Branch). The question of seniority therefore has to be determined when the persons appointed either temporarily or on an officiating basis are given substantive appointments. So far as the petitioner and the three respondents are concerned that time is yet to come. 6. We may now proceed to note the events in the crucial days of September and October 1968. Towards the end of September 1968 the High Court had to consider the question of someone taking charge as District and Sessions Judge from the retiring incumbent, S. C. Chakravarty. The High Court, as already noted, wanted to fill that post by M. P. Singh who was an Additional Dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions Case which he was then trying as Assistant Sessions Judge before joining his post on promotion. The Court therefore requested the Government to correct the Bihar Civil List as suggested, Government does not seem to have taken any action on the letters of 2nd and 4th October. On receipt of a copy of the Court's direction on the representation of respondents 3, 4 and 5 the petitioner started moving on his own behalf and addressed a memorial to the Chief Secretary to the Government of Bihar through the Registrar of High Court an October 15, 1968. In substance the complaint of the petitioner was that the High Court was not right in accepting the representation of respondents 3, 4 and 5 and placing them above him in the gradation list. He prayed that the order of the High Court in this respect might not be implemented until the disposal of his appeal by the Government and that promotion to the senior scale of Bihar Superior Judicial Service be kept pending until then. Government reacted to this by a notification dated 17th October 1968 appointing the petitioner as temporary District and Sessions Judge Shahabad until the appointment of a permanent officer in the vacancy caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tional District and Sessions Judge should be directed to take charge from Chakravarty, the Government was not of the view that according to the records in its appointment department Misra was the senior officer at Shahabad among the Additional District and Sessions Judges. Government never suggested to the High Court that the petitioner was senior to Misra or that the petitioner had a better claim han Misra's and as such was the person fit to be appointed temporarily as District and Sessions Judge. Before the notification of October 17, 1968 Government never attempted to ascertain the views of the High Court with regard to the petitioner's claim to the temporary appointment or gave the High Court any indication of its own views with regard there excepting recording dissent about Misra's being the senior officer in the cadre of Additional District and Sessions Judges at Arrah. Consultation with the High Court under Article 233 is not an empty formality. So far as promotion of officers to the cadre of District Judges is concerned the High Court is best fitted to adjudge the claims and merits of persons to be considered for promotion. The Governor cannot discharge his f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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