# •·666 CHANDRAMOULESHWAR PRASAD v. PATNA HIGH COURT & ORS

- **Citation:** [1970] 2 S.C.R. 666
- **Court:** Supreme Court of India
- **Decided:** 1969-10-07
- **Case number:** Writ Petition No. 349 of 1968
- **Bench:** M. Hidayatullah, S. M. SrKRI, G. K. Mitter, A. N. Ray, P. Jaganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/666-chandramouleshwar-prasad-v-patna-high-court-ors-4934
- **Pages:** 11

## Headnote

Constitution of India,
1950, Art.
233-Appointment of
Di.Hrict
Judge:;-Consultatio11 lVith High Court, what is.
Gradation List of Additional District Judges prepared by High Coun--
Eflect of entry therein.
The petitioner as well as
respondents 3 to 5 belong to the Judicial
Service of Bihar.
They joined service as Munsif, the petitioner in 1941
and the respo~dents 3 to 5 in 1944. They were promoted '" SuborJir.atio
Judges and in 1962 the question of promoting them as Additional Dh.trict
:and Session Judges was considered by the High Court ~nd Governm-ent.
and although the High Court wanted respondents 3 and 4 to function as
Additional District and Sessions Judges ahead of the petitioner and its recommendation in that behalf was accepted by the Government, due
to
certain circumstances the petitioner started acting as ~uch earlier. than ri:s,-
pondents 3 to 5 from January 1963. The Bihar Civil 'List published in
March 1968 showed the petitioner as No. 10, and respondents 3 to 5 as
No. 12 to 14 in· the cadre. The respondents made a representation· to the
High Court for a correction of their gradation in the Jist and the High
'Court accepted the representation in September 1968. · In the samt: month.
the District and Sessions Judge at Arrah retired and respondent No. 3
who was the third Additional District and Sessions Juilge was asked by
1he High Court to officiate in the vacancy. The petitioner "ho was also
workinB as first Additional District and Sessions Judge at the. same place
.onsidered this to be a supersession and memorialized the Government
•nd the Government took action on I.7th· October 1968 appointin~ the
: .!titioner as officiating District and Sessions Judge. l"hereupon the High
Court transferred the petitioner to another district on 25th October 1968.
In a writ petition under Art. 32 for quashing the High Court's order
-0f transfer,
HELD: (1) The position of a person in a Civil List gives no indication of his intrinsic quality as an officer.
The List merely shows
the
1en~th of service of the officers according to the dates of their app;Jintincn!.
their posting at the time \.Vhen the list is published and their design<'!tion and
scale of pay at that time. The. gradation 1ist of the High Court has no lel!al
basis and its preparation is not sanctioned by the, Bihar Superior Judicial Service Rules. The seniority inter se of the peitioner and the three respondents
v.·oulfl have to be determined \vhen the question of their confilrmation
comes up :for consideration since they are all holding vnly cfficia.ting posts.
The ord~r of the High Court could not be supported on the basis' of
seniority. [675 G]
(2) But, the Government Notification of 17th October 1968 was not
in compliance of Art. 233 of the Constitution.
Under Art. 233 of the Constitution the a2pointment of a person to
he District Judae rests with the Governor but he must m~'.\:e. the ·appointment
in consultalione with the High Court. The Governor sho11ld make up his
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mind afte.r there has been a deliberation with the High Court, because,
the High Court is the body familiar with the efficiency and quality
of
officers who are fit to be promoted as District Judges.
The consultation
is not to be an empty formality.
The consultation or deliberation
i"
not complete or effective before the parties thereto make their respective
points of view known to the other or others and discuss an<l examine the
relative merits of their views.
If oμe party makes a proposal to the other
who has a counter proposal in his mind which is not communicaK:ih to
the propose.r, the direction to give effect to the counter· proposal, ·~ut
anything more, cannot be said to have been issued
~fter consultation.
[674 F-675 Bl
.
In the present case, the correspondence showed that .whereas
the
High Court had definitely taken the view that respondent·' No. 3 as the
senior Additional District and Sessions Judge should. take charge

## Text

•·666
CHANDRAMOULESHWAR PRASAD
A
v.
PATNA HIGH COURT & ORS.
October 7, 1969
[M. HIDAYATULLAH, C.J., S. M. SrKRI, G. K. MITTER, A. N. RAY,
B
AND P. JAGANMOHAN REDDY, JJ.J
Constitution of India,
1950, Art.
233-Appointment of
Di.Hrict
Judge:;-Consultatio11 lVith High Court, what is.
Gradation List of Additional District Judges prepared by High Coun--
Eflect of entry therein.
The petitioner as well as
respondents 3 to 5 belong to the Judicial
Service of Bihar.
They joined service as Munsif, the petitioner in 1941
and the respo~dents 3 to 5 in 1944. They were promoted '" SuborJir.atio
Judges and in 1962 the question of promoting them as Additional Dh.trict
:and Session Judges was considered by the High Court ~nd Governm-ent.
and although the High Court wanted respondents 3 and 4 to function as
Additional District and Sessions Judges ahead of the petitioner and its recommendation in that behalf was accepted by the Government, due
to
certain circumstances the petitioner started acting as ~uch earlier. than ri:s,-
pondents 3 to 5 from January 1963. The Bihar Civil 'List published in
March 1968 showed the petitioner as No. 10, and respondents 3 to 5 as
No. 12 to 14 in· the cadre. The respondents made a representation· to the
High Court for a correction of their gradation in the Jist and the High
'Court accepted the representation in September 1968. · In the samt: month.
the District and Sessions Judge at Arrah retired and respondent No. 3
who was the third Additional District and Sessions Juilge was asked by
1he High Court to officiate in the vacancy. The petitioner "ho was also
workinB as first Additional District and Sessions Judge at the. same place
.onsidered this to be a supersession and memorialized the Government
•nd the Government took action on I.7th· October 1968 appointin~ the
: .!titioner as officiating District and Sessions Judge. l"hereupon the High
Court transferred the petitioner to another district on 25th October 1968.
In a writ petition under Art. 32 for quashing the High Court's order
-0f transfer,
HELD: (1) The position of a person in a Civil List gives no indication of his intrinsic quality as an officer.
The List merely shows
the
1en~th of service of the officers according to the dates of their app;Jintincn!.
their posting at the time \.Vhen the list is published and their design<'!tion and
scale of pay at that time. The. gradation 1ist of the High Court has no lel!al
basis and its preparation is not sanctioned by the, Bihar Superior Judicial Service Rules. The seniority inter se of the peitioner and the three respondents
v.·oulfl have to be determined \vhen the question of their confilrmation
comes up :for consideration since they are all holding vnly cfficia.ting posts.
The ord~r of the High Court could not be supported on the basis' of
seniority. [675 G]
(2) But, the Government Notification of 17th October 1968 was not
in compliance of Art. 233 of the Constitution.
Under Art. 233 of the Constitution the a2pointment of a person to
he District Judae rests with the Governor but he must m~'.\:e. the ·appointment
in consultalione with the High Court. The Governor sho11ld make up his
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667
mind afte.r there has been a deliberation with the High Court, because,
the High Court is the body familiar with the efficiency and quality
of
officers who are fit to be promoted as District Judges.
The consultation
is not to be an empty formality.
The consultation or deliberation
i"
not complete or effective before the parties thereto make their respective
points of view known to the other or others and discuss an<l examine the
relative merits of their views.
If oμe party makes a proposal to the other
who has a counter proposal in his mind which is not communicaK:ih to
the propose.r, the direction to give effect to the counter· proposal, ·~ut
anything more, cannot be said to have been issued
~fter consultation.
[674 F-675 Bl
.
In the present case, the correspondence showed that .whereas
the
High Court had definitely taken the view that respondent·' No. 3 as the
senior Additional District and Sessions Judge should. take charge from
the retiring District Judge the Government was not '"1 that view.
But
the Government never suggested to the High Court that the petitioner was
senior to the, 3rd respondent or that he had a better claim and as such
was the person fit to be appointed temporarily as District and Sessions
Judge.
Before issuing its notification dated October 17, 1968, the Government never attempted to asce,rtain the views of the High Court with
regard to the petitioner's claim or gave the High Court any indication of
its views with regard thereto. Therefore the Government notification C"lnnot be sustained and as it was not valid, the High Court was within its
rights, to transfer the petitioner to another district, [674 ~F]
Sta~ of Assam v. Ranga Mahammad and Ors. [1967] 1 S.C.R. 454,
followed.
[Desirability of, avoiding misunderstanding be,tween High Court
and
Government, and resolution of difterences of opinion by mutual deliberation pointed out.]
ORIGINAL JURISDICTION : Writ Petition No. 349 of 1968.
Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights.
S. V. Gupte, S. S. Javali, S. K. Bisaria, Santok Singh, Ugra
Sankar .Prasad and K. K. Sinha, for the petitioner.
Lal Narain Sinha, Advocate-General for the State of Bihar,
D. P. Singh, R. K. Garg, S. C. Agarwal and Sumitra Chakravart)',
for respond~nt No. 1.
L. M. Sin.ghvi and U. P. Singh, for respondent No. 2.
M. R. K. Pillai, for the Advocate-General, Kerala.
Niren De, Attorney-General and S. P. Nayar, for the AdvocateGeineral, Maharashtra.
A. V. Rangam, for the Advocate-General, Madras.
K. Baldev Mehta, for the Advocate-General, Rajasthan.
S. P. Mitra, G. S. Chatterjee for Sukumar Basu, for the
Advocate-General, West Bengal.
G. S. Chatterjee for Suku,,;ar Basu, for the Calcutta High Court.
Soli Sorabji, Bhuvanesh Kumari, J. B. Dadachanji, O. C.
Mathur and Ravinder Narain, for the Borubay High Court.
L3Sup.Cl/70 -12
668
SUPREME COURT REPORTS
[1970] 2 S.C.R
The Judgment of the Court was delivered by
.Mitter, J.
By this petition under Art. 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
<;>rder 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 Cburt.
He also prays that the
High Court be directed to allow him to take over charge as officiating District and Sessions Judge at 4-rrah in terms of Government notification dated October 17.
196-8. 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 Supe,i0r 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 Airah and
contends tlμt the prcler of the High Court dated October 25, 1968
following (loSfo. 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 r High
Courf 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 Arts. 14, 16 and 311 of the Constitution.
The respondents to the petition are (1) 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) Choudhary
'Sia Saran Sinha, at present Additional District and Sessions Judge,
Gaya and (5) Jagannath Prasad Singh, at present Secretary, Legislative Assembly, Patna.
The controversy arose in the following way.
In September
1~68 S. C. Chakravarty, District and Sessions
Judge at Arrah
\~S clue 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 Chakrava.rty
someone had to take ch1rge 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 se1<io1· Additional D;strict and Sessions Judge at Arrah and
as snch should be directed to officiate in the vacancy.
The High
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669
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 su~r-ses
sion of his claims.
The Government of Bihar also app~rs 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 <if 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 com- ·
plied with.
WHile the Government was still undeeided 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
D
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 Otcober
1968
claiming the reliefs mentioned.
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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 J udicia! 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 i 944.
Later they were all appointed as
Additiunal 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 Disirict 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
\() the Chief Secretary,
Governm~nt 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 immediate!y belov:· 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 recommel'\(I G. M.
Misra, respondent No. 3 and C. S. S. Sinha, respondent No. 4
--......._.··
670
SUPREME COURT REPORTS
[1970] 2 S.C.R.
· as fit for promotion and sugl>ested their posting as Additional
District and Sessions Judges at Hazarjbagh 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 of
April 1962 shows that the matter was conside1ed in ,detail and
that High Court's recommendation which 'involved the supel"Sl'.Ssion of the petitioner and two other officers by respondents 3 and
4 met with the approval of the Secretary subject to the acceptance
A
B
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 · ellect 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 . tl)e Secretary to the Government of Dihar
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on May 5, 1962 to k~ the notificago~.;i!IPpointing respondents
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3 and 4 as Additional District .and ~il)ns Judges ,in abeyance
until receipt of further communication. ' The matter came up
before the High Coutt once more in September 1962 and the Registrar wrote to the Secretary intimating that the forthcoming
vacancy in the rimk 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 ~dditional District and Sessions Judge of Hazaribagh with eff~ct from the said date. Request was als0 tllade to
take steps to get Misra relieved. from the post he was then holcling.
Within the splice of a few days the matter was considered at the
Secretariat and a note was put up by the Secretary for the Chief
F
Minister to the effect that if the latter agreed;
the I,egislative
Assembly would be asked to accord its appro\al 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 Additionai 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 Dfatrict and St:ssions 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 reC<'nsideration of the cases of the petitioner and D. N. Sinha as a
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671
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, Gay a, be apnointed 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 &s Additio:nal District and Sessions Judges on 7th
January 1963. As respondents 3 and 4 could not then take up
1heir appointments as Additional District and Sessions
Judges
because they were not released from the Assembly
and
State
Electricity Board the Government by Jetter dated 7th November
1963 addressed to the Accountant General, Bihar allowed respondents 3 and 4 to draw pay in the scale admissible to Additional
Dist~ct and Sessions Judges with effect from 15th January 1963.
The petitioner starred functioning as
Additional District and
Sessions Judge at Darbhanga on Jainuary 23, 1963.
It would therefore appear that although the High Court wanted respondents 3 and 4 to function as Additional District and
Sessions Judges ahead of the petitioner on more than one
occaEion a.nd its recommendation on. that behalf was accepted
by the Government of Bihar by a fortuitous combination of circumstances the petitioner and D. N. Sinha started acting as such
earlier than the said respondents 3, 4 and 5. As the recommendations of the High Court were probably not IJill}mown to them
respondents 3, 4 and S made a representation to the High Court
in August 1968 for correction of their gradation in the Civil List
so as to rank them over the petitioner and D. N. Sinha in the
cadre of Additional District ain.d Sessions Judges and the High
Court by letter dated 23rd September 1968 accepted the re.Presentation and sent copies thereof to the petitioner and D. N. S1!1ha
for their information.
It may be noted at this stage that the gradation of the officers
~y the H!gl\ Court or maintaining any list showing such gradatl~n is not sanctioned by any service mies. The Bihar Superior
Judicial Service Rules to which our attention was drawn do
not contain any provision which would entitle the High
Court
to make such a gradation or act thereon. Rule 5 of the said .
Rules prescribes that ordinarily appointments to the post of Additional District and Sessions Judges sha!J be made by the
Government in consultation with the High Court and under R. 8
a person appointed either on substantive or officiating basis to
the post of A<!~itional !=>istrict and Sessions ~ udge shall dra..y pay
?n the lower time basis.
Rule 16 (b) prOVIdes
that semority
mrer se of promoted officers shall be determined in accordance
672
SUPREME COURT REPORTS
[1970] 2 S.C.R
with the dates of their substantive appointments to the service
and R. 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 Rihar 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 · iubstantive appointments.
So far as the
petitioner and the three
respondents are concerned that tini.e is yet to come.
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 Districtand 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 District Judge at Singhbhum but for some reason or· other
was not free to join immediately and it became necessary to make
some temporary arrangement.
The Registrar wrote a letter to
the Secretary that the senior Additional District Judge of Arrah
be temporarily appointed to act as District and Sessions Judge
with effect from 1st October 1968 and as in the view of the
High Court Misra was 'ftle senior officer in that cadre the Court
recommended liis appointment to the Government.
The Secretary. wrote back to the Registrar on 30th September that Government had no objection to notify the Senior Additional District
Judge as temporary District. and Sessions Judge of Shahabad but
from the records at the Sect'etariat it appeared that Misra was not
the senior officer., On 2nd October 1968 the Registrar wrote
to the Secretary that as Chakravarty had already retirea it was
necessary to appoint" Misra the senior Additional District Judge to
act temporarily as District and Sessions Judge without any loss of.
time so that any urgent bail applications etc. might be disposed
of and requested that necessary notificatiOi!l
be issued immediately. There was no response from
the Secretariat. The
Registrar followed his memorandum of October 2
by writing
tc;> the Secretary again ·on October 4, the subject matter of the
letter being :
"Correction of the Bihar Civil List so as to rank
Gobind Mohan Misra, C. S. S. Sinha and J. N. Singh
No. 1 -above C. M. Prasad and D. N. Sinha".
The Registrar forwarded copies of the representations of the
three respondents and gave the Court's view that there was justification for correcting the civil list as suggested in the representations.
Reference was made to the letters of 4th October 1962
and 21st November 1962 mentioned above and it was pointed
out that the decision of the Govei-runent to give respondents 3
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673
and 4 the status of Additional District and Sessions Judges with
effect' from 15th January 19.63 by upgrading the posts they were
bolding was· based on the fact that they had been recommended
earliei- than the :getitioner and D. N. Sinha to officiate as Additional District and. Sessions Judges and that the last two officers
had started to function as such from 23rd January 1963. It was
fu£!her poi.nted out that 1. P. Singh, respondent No. 5. could llli>t
take over charge earlier than 6th February 1963 because the
Court had. required him to finish the part-heard Sessions Case
which he was then trying as Assistant Sessjons Judge before joining his post on promotion. The Court therefore requested the
Government to correct the Bihar Civil List as suggested, GovernC ment lloes 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 resp0ndents 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 on October 15, 1968.
In substance the. complaint
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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 19tl8 appointing the petitioner as temwrary
District and Sessions Judge Shahabad until the appointment of· a
permlli1lent officer in the vacancy caused by the
retirement of
Ch<tkravarty. The letter of the Secreta..ry to the Registrar of even
date was to the· effect that. Government was until then not able
to consider the. rec0mmendatior. of the High Court forwarded in
its letter 9f October 4, 1968 regarding revision of seniority 'and
it could not accept the position that the petitioner should be
treated as junior to Misra and therefore it would not be desirable
to notify Misra as officiating District and Sessions Judge pending
fi.Dalisation·of the posting of a regular District and Sessions Judge.
With regard to the High Court's recommendation of 4th October
Government stated that it would take time to examine the same.
G
It is obvious that Government was moved by the representation
of he petitioner:
The question arises whether the action of the Government in
issuing the notification of October 17, 1968 was in compliance
with Art. 233 .of .the Constitution. No doubt the appointment of
11 pers0n to be a District Judge rests with the Governor but he·
H
cannot 'make the appointment. on his own initiative ·and. mμs! do
so in consultation . with the High Court. The underlymg · idea
of the Article is that the Governor should make up his mind
674
SUPREME COURT REPORTS
(1970] 2 ~C.R.
after there has bee,n a deliberation with the High Court.
The High
Court is the body which is intimately familiar with the efficiency
and quality of officers who are fit to be promoted as District Judges.
The High Court alone knows .their merits as also demerits. This
does not mean that the Governor must accept whatever advice
is given by the High Court but the Article does require that the
Govemor should obtain from the High Court its views on the
merits or demerits of persons among whom the choice of promotion is to be limited. If the High Court recommends A while the
Governor is of opinion that B's claim is superior to A's it is incumbent on the Governor to consult the High Court with regard to its
proposal to appoint B and not A. If the Governor is to appoint
B without getting the views of the High Court about B's claim visa-vis A's to promotion, B's appointment cannot be said to be in
compliance with Art. 233 of the Constitution.
The correspondence noted above which passed between the High Court and
the Secretariat from 28th September 1968 to 7th October 1968
shows that whereas the High Court had definitely taken the view
that Misra as the senior Additional 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
am0111g the Additioral District and Sessions Judges. Government
never s11ggested 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 appoint¢ 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
appoialtment 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 Art. 233 is not an empty formality.
So far as promotion
of officers to the cadre of District Judges is cancerned the High
Court is best fitted to adjudge the claims a1nd merits of persons
to be considered for promotion. The Governor cannot discharge
his function under Art. 23~ if he makes
an appointment of a
person without ascertaining the High Court's views in regard
thereto. It was strenuously contended on behalf of the State of
Bihar that the materials before the
Court amply
demonstrate
that there had been consultation with the High Court before the
issue of the notification of October 17, 1968. It was said that
the High Court had given the Government its views in the matter;
the Government was posted with all the facts and there was consultation sufficient for the purpose of Art. 233. We cannot accept
this. Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of view
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
c. PRASAD v. PATNA HIGH COURT (Mitter, J.)
675
known to the other or others and discuss and examine the relative
merits of their views. If one party makes a J?!Oposal to the other
who has a counter proposal in his mind which is not communicated to the proposer the directkm to give effect to the counter
proposal without anything more, cannot be said to have been
issued after consultation. In our opinion, the
notification
of
October 17, 1968 was not in compliance with Art. 233 of the
Constitution. In the absence of consultation the validity of the
notification of 17th October, 1968 cannot be sustained.
If the notification of October 17, · 1968 be not valid the
High Court was within its rights to transfer the petitioner to the
District of Singhbhum as an Additional District and Sessions
Judge. It was pointed out by this Court in State of Assam v.
Ranga Mahammed and others(') that the right to transfer judicial
officers including District Judges after their first appointment and
posting rested with the High Court.
The correspondence between the High Court and the Secretariat in the years 1962, 1963 and 1968 was placed before us
in detail.
We were also shown the notes prepared at the Secretariat and the Chief Minister's views thereon from time to time.
Having considered all this material iUld the affidavits affirmed in
this case, our definite conclusion is that there was 1110 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 others had been decided
upon as far back as 1962 and 1963 when the High Court had
a different Chief Justice. Ln 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 iin
November 1962. The position of i. 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 iheir appointme.nt, 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 respondent~ will have to be determined when the question of
their confirmation comes up for consideration.
At the present
(!) [1957) I S.C.R. 454.
•676
SUPREME COURT REPORTS
[1970] 2 S.C.R.
.moment the question does not arise and M. P. Singh who now
holds the office of the District aLJ Sessions Judge at Arrah is
undoubtedly senior to them all. We only hope that there will be
no such misooderstanding 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.
1n the result we hold that the Govennment
notification of
October 17, 1968 was not in terms of Art. 2~3 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. There will
be no order as to costs.
Y.P.
A
B
c