CHANDRAMOULESHWAR PRASAD Vs. PATNA HIGH COURT

JUDGEMENT

(1.) By this petition under Article 32 of the Constitution the petitioner, at present an Additional District and Sessions Judge in the State of Bihar, challenges the validity of (1) the order of the Patna High Court by Notification No. 333 dated 25th October, 1968 transferring him from Arrah and posting him as Additional District and Sessions Judge at Singhbhum, and (2) the direction or, as he calls it, the order of the Patna High Court dated September 23, 1968 declaring respondents 3 to 5 as senior to him in the gradation list of Additional District and Sessions Judges maintained by the High Court. 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 R. 16 (b) and R. 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 Articles 14, 16 and 311 of the Constitution. The respondents to the petition are (1) to the High Court of Judicature at Patna through its Registrar, (2) the State of Bihar through its Chief Secretary, (3) Govind Mohan Misra, at present Additional District and Sessions Judge of Arrah (4) Choudary Sia Sarana Sinha, at present Additional District and Sessions Judge, Gaya and (5) Jagannath Prasad Singh, at present Secretary, Legislative Assembly, Patna.

(2.) The controversy arose in the following way. In September 1968 S. C. Chakravarty, District and Sessions Judge at Arrah was due to retire on September 30. The petitioner was then working there as the First Additional District and Sessions Judge. Respondent No. 3, G. M. Misra was another Additional District and Sessions Judge at Arrah designated as the Third Additional District and Sessions Judge. On the retirement of Chakravarty someone had to take charge from him and act as District and Sessions Judge either temporarily or on a permanent basis. The High Court was of opinion that Misra, respondent No. 3 was the senior Additional District and Sessions Judge at Arrah and as such should be directed to officiate in the vacancy. The High Court wanted to post one M. P. Singh as the District Judge there but there was some difficulty in the way of his taking over charge immediately. The petitioner who had joined the judicial service some years before respondent No. 3 considered this as super session of his claims. The Government of Bihar also appears to have felt that the petitioner should be appointed to act temporarily as the District and Sessions Judge at Arrah. Before the difference in the points of view of the High Court and the Government could be effectively discussed or resolved, the High Court directed Chakravarty to make over charge to respondent No. 3 which was complied with. While the Government was still undecided as to the course to be adopted it received a representation from the petitioner alleging wrongful supersession by the High Court and claiming seniority over Misra and respondents 4 and 5. This appears to have stirred the Government into immediate action by the issue of a notification of October 17, 1968 appointing the petitioner as officiating District and Sessions Judge at Arrah temporarily. This not being to the liking of the High Court, the latter transferred the petitioner to the District of Singhbhum as Additional District and Sessions Judge on 25th October, 1968. The petitioner filed this Writ Petition on 29th October 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 1951-52. 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 petitioner had been passed over only about a month back and the question of re-considering their cases did not at the moment arise. Among the four officers immediately below the said three persons, the High Court considered the respondents 3 and 4 to be fit for promotion in preference to the other two for reasons given. The High Court recommended G. M. Misra, respondent No. 3 and C. S. S. Sinha, respondent No. 4 as fit for promotion and suggested their posting as Additional District and Sessions Judges at Hazaribagh and at Arrah. As Misra was then acting as Deputy Secretary Legislative Assembly and C. S. S. Sinha was functioning as Under Secretary, Law Department, the High Court requested that they might be released to enable them to join their new posts. The Secretariat record to April 1962 shows that the matter was considered in detail and that High Court's recommendation which involved the supersession of the petitioner and two other officers by respondents 3 and 4 met with the approval of the Secretary subject to the acceptance of the Chief Minister. The suggestion for the posting of the said respondents on promotion was also accepted and the Secretary asked for the sanction of the Chief Minister to the proposed promotion and request to the Assembly and Law Department for release of respondents 3 and 4 to give effect to their proposed posting. This proposal of the Secretary was accepted by the Chief Minister. However effect could not be given to the above for reasons which it is not necessary to note. The Registrar of the High Court wrote to the Secretary to the Government of Bihar on May 5, 1962 to keep the notification appointing respondents 3 and 4 as Additional District and Sessions Judges in abeyance until receipt of further communication. The matter came up before the High Court once more in September 1962 and the Registrar wrote to the Secretary intimating that the forthcoming vacancy in the rank of Additional District and Sessions Judge on 12th October, 1962 by retirement of an officer should be filled up by promoting Misra then Deputy Secretary, Legislative Assembly to act as Additional District and Sessions Judge of Hazaribagh with effect from the said date. Request was also made to take steps to get Misra relieved from the post he was then holding. Within the space of a few days the matter was considered at the Secretariat and a note was put 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 re-consideration 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 it for promotion, and by letter dated November 21 recommended that the petitioner who was then acting as Subordinate Judge, Gaya, be appointed to act as Additional District and Sessions Judge in place of respondent No. 4 and posted at Darbhanga. The Court also suggested that D. N. Sinha should be appointed to act as Additional District and Sessions Judge at Hazaribagh. Government accepted this recommendation and made the necessary notification of posting the petitioner and D. N. Sinha as Additional District and Sessions Judges on 7th January, 1963. As respondents 3 and 4 could not then take up their appointments as Additional District and Sessions Judges because they were not released from the Assembly and State Electricity Board the Government by letter dated 7th November, 1963 addressed to the Accountant General Bihar allowed respondents 3 and 4 to draw pay in the scale admissible to Additional District and Sessions Judges with effect from 15th January, 1963. The petitioner started functioning as Additional District and Sessions Judge at Darbhanga on January 23, 1963.