MADAN MOHAN PRASAD Vs. GOVERNMENT OF BIHAR

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India, which involves the question of determination of seniority of the petitioners vis-avis respondents 2 to 4; the first respondent is the Government of Bihar. It also raises an important constitutional question as to whether the State Government are competent to determine the seniority of an officer belonging to the Superior Judicial Service (hereinafter called the Service) or whether it is within the competence and power of the High Court to take a final decision on their administrative side in that regard.

(2.) There are three petitioners in this writ application. Their case is that three vacancies in the post of Additional District and Sessions Judges occurred between 1958 and 31st of January, 1959. On the 14th of March, 1959 respondent No. 1 advertised the said three posts borne on the cadre of the Service to he filled up by direct recruitment from the Bar in accordance with Rule 5 (a) of the Bihar Superior Judicial Service Rules, 1946 (hereinafter called the Rules). On or before the 31st of March, 1959 the petitioners along with some others applied for being appointed to the posts. Eventually they were so appointed on 21-4-1960. They were confirmed in the posts of Additional District and Sessions Judge in April, 1961. Their case further is that respondents 2 And 3 were never promoted from the post of Sub-Judge which they were holding substantively to the post of Additional District and Sessions Judge according to law and although there was no vacancy in any such post on the 17th of June, 1959, the Government of Bihar by their order dated the 6th of September, 1960, a copy of which is Annexure "D" to the writ application, which order was never published in the Bihar Gazette, purported to upgrade the post of the Deputy Registrar of the Patna High Court, which post Shri Chandrika Prasad Sinha, respondent No. 2, was holding and that of the Secretary, Bihar Legislative Assembly, which post was held by Shri Enayetur Rahman, respondent No. 3, retrospectively with effect from the 17th of June, 1959, till those posts were held by them. The intention of the said upgrading was to indirectly confer seniority on respondents Nos. 2 and 3 by giving them fictitious officiation in a post in the service for the purpose of placing them in a more advantageous position man that of the petitioners in the matter of promotion and other service benefits. The said upgrading was done even in contravention of the recommendation of the Patna High Court, which was only for a limited upgrading of the said posts for a short period of 3 months 14 days, i.e., from the 17th June to 1st October, 1959, purely in fulfilment of the requirements of the 'next below rule' as Shri Jitendra Narain, respondent No. 4, started officiating in a temporary leave vacancy in a post of Additional District Judge from the 17th of June, 1959. When respondent No. 2 was appointed as District and Sessions Judge on 25-4-1961, the petitioners felt surprised on their apparent supersession by respondent No. 2. On inquiries they learnt towards the end of August, 1961, that respondents 2 and 3 had somehow been treated as senior to them and that the seniority list of the Service had also been altered by placing respondents 2 and 3 over the petitioners. A true copy of the seniority list is Annexure 'E' to the writ application.

(3.) The petitioners' case proceeds further thus. They also came to know that respondent No. 4 who had been appointed as Additional District Judge on the 19th of September, 1960 long after the petitioners' appointment and was thus junior to them had made a representation to the Government claiming seniority over them on the ground that respondents 2 and 3 had been allowed retrospective fictional promotion as Additional District Judge with effect from the 17th of June, 1959 even though there was no vacancy in the cadre then. On the 3rd of September, 1961, the petitioners made representation to the Government both against the aforesaid illegal seniority of respondents 2 and 3 and the seniority claimed by respondent No. 4. In February, 1968, the petitioners came to know that the Government had rejected their representation and they had also illegally decided that respondent No. 4 should be placed above them in the seniority list even though he was to be junior to the petitioners for other purposes of the service. The petitioners' case is that respondent No. 4 was working on the post of a Sub-Judge all along during the relevant period except for the brief period of 3 months 14 days when he had officiated in a temporary leave vacancy from 17-6-1959 to 1-10-1959. He reverted to the post of the Subordinate Judge from 2-10-1959. During the period in question some of his judgments delivered as Sub-Judge were subject-matter of appeal before the District Judge. The petitioners also state that the Patna High Court had recommended for rejecting the representation of respondent No. 4 for giving seniority to him and the Government's decision is against the recommendation of the High Court.