HIGH COURT CALCUTTA Vs. AMAL KUMAR ROY

JUDGEMENT

(1.) This appeal, by special leave, is directed against the judgment and decree dated February 17, 1960, of the City Civil Court at Calcutta, decreeing the plaintiffs suit for a declaration and consequential reliefs, to be hereinafter noticed. The appeal arises under very special circumstances, the most notable feature of the case being that it comes direct to this Court from the judgment and decree of the Trial Court, without having gone through the ordinary process of appeal to the High Court of Calcutta. The reason why this happened was that the High Court of Calcutta, and the sitting judges of that Court, were the appellants, having been the principal contesting defendants in the Trial Court, and, therefore, could not, in all propriety, have heard the appeal. That was the reason why special leave was granted to appeal from the judgment and decree of the Trial Court itself.

(2.) In order to bring out the points in controversy, it is necessary to state the following facts. The plaintiff, who is now functioning as an Additional District and Sessions Judge, was, at the date of the suit filed on September 4, 1958, a member of the West Bengal Civil Service (Judicial). He joined the service on April 1, 1937, as a Munsif, and was duly confirmed on April 1, 1939. In the West Bengal Civil List, corrected up to January 1, 1954, his name appeared against serial No. 53, in the list of Munsifs, Just above him against serial No. 52 was Shri Bibhutosh Banerjee, and the name of Shri Jagadindranath Hore (Respondent No. 2) appeared against serial No. 54. In course of time all Munsifs down to serial No. 52 - Shri Bibhutosh Banerjee in the Civil List aforesaid were appointed to the posts of subordinate judges, according to their seniority indicated in that list. In February 1955, the plaintiff was at the head of the list of Munsifs. In April 1955, the plaintiff noticed that the second respondent aforesaid had been appointed a Subordinate Judge, and the notification of his appointment appeared in the Calcutta Gazette dated April 28,1955, although the plaintiff had not received any order of appointment as a Subordinate Judge. On representation being made by the plaintiff to the High Court, he was informed by the Registrar of the Court that the Court decided to consider his case again in December 1955". In the meantime, several other Munsifs, whose names appeared below that of the plaintiff in the Civil List, were appointed as Subordinate Judges, one after another. The plaintiff then addressed a petition of appeal against the action of the High Court in not appointing him as a Subordinate Judge, to the Governor of the State of West Bengal. That appeal was withheld by the High Court with the remarks "that the action complained of not being disciplinary action, no such appeal lies." The plaintiff thereupon addressed a petition to the Governor, praying that the said petition of appeal withheld by the High Court, as aforesaid, be called for. This petition was also withheld by the High Court with the remarks that in the Cour't's opinion no such petition lay. In April 1956, the plaintiff was appointed to act as an Additional Subordinate Judge, by art order of the High Court. In the meantime, eight Munsifs, who occupied lower places in the Civil List (impleaded as pro forma defendants in the suit) had been appointed and posted as Subordinate Judges, one after another in succession, in the order in which their names appealed in the Civil List. In May 1956, type plaintiff addressed a memorial to the Governor of West Bengal. This memorial was also withheld by the High Court on the ground that no such memorial lay. The plaintiff had sent a copy of the memorial to the Secretary to the Government of West Bengal (Judicial Department) He was informed by the Department that the Governor had declined to interfere. Thereupon the plaintiff instituted the suit, originally against the State of West Bengal, as the principal defendant, and the eight Munsifs, who had been appointed Subordinate Judges in preference to the plaintiff, as pro forma defendants. But subsequently, on the plea of defect of parties, raised in the written statement, of the State of West Bengal, the High Court of Calcutta, and the sitting Judges, were added as defendants 1 (a) to 1 (x), in the category of principal defendants. The cause of action alleged in the plaint was that the High Court had never declared the plaintiff as unfit to act as a Subordinate Judge; it had never called upon the plaintiff to show cause, under Art, 311 (2) of the Constitution, or R. 55-A of the Civil Services (Classification, Control ' and Appeal) Rules, as to why his promotion should not be withheld. As a matter of fact, the High Court never declared, in terms, that it was going to withhold the plaintiffs appointment as a Subordinate Judge. On the contrary, the plaintiff was vested with special powers two months before April 1955, when the order complained of was passed by the High Court, conferring upon him pecuniary jurisdiction to try suits of the value upto Rs. 3500/-, and small cause court suits up to the value of Rs. 300/-powers which ordinarily are conferred by way of steppingstones to subordinate judgeship. The plaintiff was also allowed to cross the efficiency bar at the higher level on due date, namely April 1956, and was recommended for appointment as an Assistant Sessions Judge, soon after he was posted as a Subordinate Judge. The plaintiff also made a point of the fact that though the High Court expressly declarrd that its action in not appointing him a Subordinate Judge in the ordinary course was not by way of disciplinary action, or of imposing a penalty; within the meaning of cl. (ii) of R. 49 of the Civil Services (Classification, Control and Appeal) Rules, the High Court actually withheld the plaintiff's promotion as Subordinate Judge, withheld his petition of appeal to the Governor and did not consult the West Bengal State Public Service Commissioner. The plaint also added that the Munsifs and Subordinate Judges belong to one and the same service, namely, the West Bengal Civil Service (Judicial), and that a member of the service is entitled to be considered for promotion according to seniority, to the West Bengal Higher Judicial Service. In the premises, the plaintiff prayed that "a declaration be made that he occupies the same position with the same privileges and benefits, as if he had been appointed as a Subordinate Judge immediately before the second respondent," and that "his name be inserted in the West Bengal Civil List and in any other relevant gradation list maintained as a, Subordinate Judge immediately below that of Shri Bibhutosh Banerjee and immediately above that of Shri Jagadindra Nath Hore." Arrears of salary as Subordinate Judge, together with dearness allowance, with interest at 6% per annum, amounting to Rs. 1,060/were also claimed, and a permanent injunction was also prayed for directing the principal defendants to place the plaintiff's name in the Civil List, in terms of the declaration sought, besides other reliefs, not necessary to be mentioned here. The suit was contested mainly by the added defendants, as the first defendant, the State of West Bengal, disclaimed any knowledge of the action taken by the High Court, or the reasons thereof, though it denied that the plaintiff had a cause of action, or that he was entitled to any relief. The substantial defence to the suit raised by the High Court was that in December 1954, the High Court considered the question of inclusion of names of certain Munsifs in the panel of officers to officiate as Subordinate Judges; the plaintiff's name was excluded from that panel, and it was decided that the High Court would consider his case a year later, after a special report from the District Judge concerned; and that the plaintiff was not thought fit, at that time, to act as a Subordinate Judge, on the question of plaintiff's fitness as a judicial officer, the High Court made reference to the plaintiff having issued an injunction in his own favour, in a case in which he himself was the plaintiff. That order of injunction was judicially considered, on appeal, and set aside. The matter came up before a Full Court of the High Court for consideration administratively, as a result of which a Committee of three Judges of the High Court was appointed to consider the plaintiff's conduct. After considering the plaintiff's explanation, the High Court came to the conclusion that his explanation was unsatisfactory, and that his conduct showed a total disregard of all judicial propriety. It was denied that the plaintiff's case came within the scope and ambit of Art. 311 (2) of the Constitution, or R. 55-A of the Civil Services (Classification, Control and Appeal) Rules. It was claimed on behalf of the High Court that under the Constitution and otherwise the High Court was the sole administrative authority to determine questions of promotion of Munsifs to Subordinate judge's grade; in exercise of that sole authority and discretion, the High Court considered the plaintiff's case for promotion as Subordinate Judge, and passed orders on a proper appreciation of the plaintiff's record of service, and in the best interests of the judicial administration of the state, it was also denied that the plaintiff's case should have been referred to the State public Service Commission. It was affirmed that the suit, as framed, claiming the reliefs aforesaid was not maintainable. The High Court relied upon the provisions of Art. 235 of the Constitution, as vesting complete control, authority, jurisdiction and discretion to consider and decide the question of fitness of a Munsif to be promoted as a Subordinate Judge, and its order in not promoting the plaintiff, after a proper consideration of his record of service, was neither a disciplinary action nor an imposition of a penalty, which would bring his case within the purview of the State Public Service Commission, and the plaintiff had no right of appeal against the order of the High Court, complained of, as it was not governed by the Civil Services (Classification, Control and Appeal) Rules, relied upon by the plaintiff. In the premises, it was contended that the Court had no jurisdiction to entertain the suit or to grant any of the reliefs claimed by the plaintiff.

(3.) On those pleadings, and after recording the plaintiff's evidence and considering the documentary evidence adduced by the parties, the learned Judge below, of the City Court, observed at the outset that at the trial, the learned counsel for the plaintiff did not rely upon the provisions of Art. 311 (2) of the Constitution, though reference to it had been made in the plaint. He relied upon the provisions of Art. 235 of the Constitution, read with Rr. 49, 55-A and 56 of the Civil Services (Classification, Control and Appeal) Rules, and came to the conclusion "that the High Court intentionally deferred consideration of the plaintiff's promotion with a view to penalising him for his conduct in the past...and that the plaintiff was entitled to bring the suit inasmuch as the High Court was not authorised, under Art. 235 of the Constitution, to withhold the plaintiff's promotion as Subordinate Judge, without complying with the requirements of the Rules aforesaid. In the result, the suit was decreed, with costs, giving the declaration sought for, as also a money decree for Rs. 1,060/-, as arrears of salary and dearness allowance. The judgment and decree of the Civil Court dated February 17, 1960. On Appeal 12, 1960 application for special leave to appeal to this Court. directly from type judgment and decree aforesaid was made, and the special leave was granted by this Court on April 26, 1960.