# I l 0 STATE OF BIHAR v. MADAN MOHAN PRASAD & ORS

- **Citation:** [1976] 3 S.C.R. 110
- **Court:** Supreme Court of India
- **Decided:** 1975-12-19
- **Case number:** Civil Appeal No. 1667 of 1970
- **Bench:** A. N. Ray, M. H. Beg, R. S. Sarkaria, P. N. Sh!Nghal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/i-l-0-state-of-bihar-v-madan-mohan-prasad-ors-6734
- **Pages:** 9

## Headnote

Bihar Superior Judicial Service Rules, 1951-r. 16(e)-"may have
beeli
allowed to officiate continuously"-Scope and meaning of-Notional officiation
-If pennissible.
Cons1it11tion of India-Art. 235-Power of detennining seniority of District
Judges-If ve.\ts in the High Court.
Rule 6 of the Bihar Superior Judicial Service Rules, 1951, says that of the
posts in the cadre of the service·, two-thirds shall be filled by promotion and
one-third by direct recruitment.
Clause (e) of r. 16 provides,.- that seniority of
direct recruits vis-a-vis promoted officers shall be determined with reference to
the dates from \Vhich they may
have been allowed to o!Jiciate continuously
in a post in the cadre of the Service.
Respondents 1, 2 and 3 who were direct recruits were appointed as Additional
District & Sessions Judges with effect from April 21, 1960. Respondents 4, 5
· and 6 belonged to the judicial service of the State.
Respondents 5 and 6 were
promoted as Additional District & Sessions Judges.
But despite the ava_ilability
of a post from November 1, 1959, and suitability of respondent 4, he
was
appointed to that post only on September 19, 1960. His representation that his
seniority should be fixed below that of respondent 6 was rejected by the High
Court.
But, the State Government said that in order to relieve undue hardship to respondent 4, he should be deemed to have bei!n officiating as Additional
District & Sessions Judge with effect from November 1, 1959 and that for the
purposes of ~eniority he should rank immediately below respondents 5 and 6
on the view that, on a proper interpretation of r. 16(e) of the Rules, the Government was authorised to fix the seniority from a date frorn lvliich officiation
was possible on account of availability of vacancies.
Respondents 1 to 3 (direct recruits1 in a writ petition impugned the Government's action in fixing the seniority of respondent 4 below that of respondents
5 and 6 but above them.
Before the High Court the State contended that the
meaning of the expression "might have been allowed to officiate continuously"
in r. 16(e) is that a notional, continuous officiation in a post in the cadre of the
service or outside it, will give preference to the promoted officers in the matter
of seniority over the direct recruits provided there were vacancies, in one of
which he could or might have been allowed to officiate continuously. The High
Court rejected this contention and held that this expression meant actual and
continuous officiation and not a fictional or notional one.
Di.srnissing the appeal,
HELD: (1) (a) The words "may have been allowed to officiate· continuously"
in cl. (e) of r. 16 mean actual and continuous officiation and not a fortuitous
or fictional officiation. A notional construction of the clause would lead to
anomalous results. The State Government, therefore, could not, on an interpretation of r. 16(e) say that for the limited purpose of seniority respondent 4
would rank below respondents 5 and 6 but above the writ petitioners (respondents 1 to 3) and will be deen1ed to have been officiating as Additional District
& Sessions Judges with effect from November 1, 1959. Such a deeming officiation for the purpose of determination of seniority on a construction of cl. (e)
was not permissible. [117 H-118 B]
(b) Reading cl. (e) together with cl. (a) and (b) of r. 16, it is clear that
before fixing the seniority of direct recruits vis-a-vis promoted officers it will be
necessary, as a prelin1inary step, to prepare two separate lists-one of direct
recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16
in the chronological order of their confirmation. [117 D-E]
BIHAR v. M. M. PRASAD (Sarkaria, !.)
111
(2) The power of confirmation of District Judges is a par.t o~ the p~wcr of
A
control vested in the High Court under Art. 23 5 of the Co1~shtutlon. Since the
Bihar Superior Judicial Service Rules make ~e chronological orde~ <?f c_on:firmation an integral part of the pr

## Text

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STATE OF BIHAR
v.
MADAN MOHAN PRASAD & ORS.
December 19, 1975
[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SH!NGHAL, JJ.]
Bihar Superior Judicial Service Rules, 1951-r. 16(e)-"may have
beeli
allowed to officiate continuously"-Scope and meaning of-Notional officiation
-If pennissible.
Cons1it11tion of India-Art. 235-Power of detennining seniority of District
Judges-If ve.\ts in the High Court.
Rule 6 of the Bihar Superior Judicial Service Rules, 1951, says that of the
posts in the cadre of the service·, two-thirds shall be filled by promotion and
one-third by direct recruitment.
Clause (e) of r. 16 provides,.- that seniority of
direct recruits vis-a-vis promoted officers shall be determined with reference to
the dates from \Vhich they may
have been allowed to o!Jiciate continuously
in a post in the cadre of the Service.
Respondents 1, 2 and 3 who were direct recruits were appointed as Additional
District & Sessions Judges with effect from April 21, 1960. Respondents 4, 5
· and 6 belonged to the judicial service of the State.
Respondents 5 and 6 were
promoted as Additional District & Sessions Judges.
But despite the ava_ilability
of a post from November 1, 1959, and suitability of respondent 4, he
was
appointed to that post only on September 19, 1960. His representation that his
seniority should be fixed below that of respondent 6 was rejected by the High
Court.
But, the State Government said that in order to relieve undue hardship to respondent 4, he should be deemed to have bei!n officiating as Additional
District & Sessions Judge with effect from November 1, 1959 and that for the
purposes of ~eniority he should rank immediately below respondents 5 and 6
on the view that, on a proper interpretation of r. 16(e) of the Rules, the Government was authorised to fix the seniority from a date frorn lvliich officiation
was possible on account of availability of vacancies.
Respondents 1 to 3 (direct recruits1 in a writ petition impugned the Government's action in fixing the seniority of respondent 4 below that of respondents
5 and 6 but above them.
Before the High Court the State contended that the
meaning of the expression "might have been allowed to officiate continuously"
in r. 16(e) is that a notional, continuous officiation in a post in the cadre of the
service or outside it, will give preference to the promoted officers in the matter
of seniority over the direct recruits provided there were vacancies, in one of
which he could or might have been allowed to officiate continuously. The High
Court rejected this contention and held that this expression meant actual and
continuous officiation and not a fictional or notional one.
Di.srnissing the appeal,
HELD: (1) (a) The words "may have been allowed to officiate· continuously"
in cl. (e) of r. 16 mean actual and continuous officiation and not a fortuitous
or fictional officiation. A notional construction of the clause would lead to
anomalous results. The State Government, therefore, could not, on an interpretation of r. 16(e) say that for the limited purpose of seniority respondent 4
would rank below respondents 5 and 6 but above the writ petitioners (respondents 1 to 3) and will be deen1ed to have been officiating as Additional District
& Sessions Judges with effect from November 1, 1959. Such a deeming officiation for the purpose of determination of seniority on a construction of cl. (e)
was not permissible. [117 H-118 B]
(b) Reading cl. (e) together with cl. (a) and (b) of r. 16, it is clear that
before fixing the seniority of direct recruits vis-a-vis promoted officers it will be
necessary, as a prelin1inary step, to prepare two separate lists-one of direct
recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16
in the chronological order of their confirmation. [117 D-E]
BIHAR v. M. M. PRASAD (Sarkaria, !.)
111
(2) The power of confirmation of District Judges is a par.t o~ the p~wcr of
A
control vested in the High Court under Art. 23 5 of the Co1~shtutlon. Since the
Bihar Superior Judicial Service Rules make ~e chronological orde~ <?f c_on:firmation an integral part of the process of fixation of the order of sen1onty in. the
service the inference is that both these. powers were int~nded to be exercised
by on~ and the same authority.
Since Art. 235 of the Co~ti_tution vest~ t~e
pO\\'er of confirmation in the High _Court, the power of d~t~rm1n1ng the. se_n1or1ty
in the service· is also with the High Court.
In determ1n1ng the sen1onty the
I-Iigh Court is bound to act in accordance with the rules validly made by the
B
Governor under the proviso to Art. 309 of the Constitution. [117 E-G]
Chandran1oulcshwar Prasad v. Patna High Court
and
others,
[1970]
2
S.C.R. 666, followed.
High Court of Punjab and Haryana etc. v. The State of Harya11a a11d others,
[1975] 3 S.C.R. 365, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1667 of 1970.
(Appeal by special leave from the judgment and order dated the
26-9-1969 of the Patna High Court in Civil Writ Petition Case No. 183
of 1968).
L. M. Singhvi and U. P. Singh
B. P. Singh
The Judgment of the Court was delivered by
for the appellants.
for the respondent.
SARKAR!A, J.-Respondents 1, 2 and 3 herein made an application
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under Article 226 of the Constitution alleging that the decision of the
Bihar State· Government fixing the seniority of Respondent 4 below
Shri C. P. Singh (Respondent 5) and Shri E. Rehman (Respondent 6)
and above the applicants, in the cadre of Bihar Superior Judicial Service
was illegal and ultra vires. They prayed for a writ of mandamus, direcE
lion or order quashing the same and directing the State Government to
revise the applicant's seniority vis-a-vis the opposite parties, (Respondents 4, 5 and 6 herein).
The applicants also challenged the upgrading of the posts of Deputy
Registrar, Patna High Court and the Secretary, Bihar Legislative Assembly with effect from June 17, 1959 till the posts were held by ResponF
dents 5 and 6, respectively.
A Full Bench of the High Court. partly allowed the writ application
and quashed the order of the State Government placing Respondent 4
below Respondents 5 and 6 in seniority. The material facts were these :
Respondents 4, 5 and 6 were appointed as Munsifs on the same date
under one notification.
On April 25, 1959, these three officers were
holding the posts of Subordinate Judges. Prior to that date, fonr posts
of Additional District and Sessions Judges fell vacant. On April 25,
1959, t11e High Court, after considering the service records of the Subordinate Judges due for promotion, recommended Respondents 4, 5 and
6 and Shri Sharda Prasad for promotion as Additional District & Sessions Judges in those vacancies. Respondents 5 and 6 on that date
were acting as Deputy Registrar, Patna High Court and Secretary, Bihar
Legislative Assembly, respectively, and since the release of Respondent 5 from that post was not in public interest, the High Court recommended temporary upgrading of that post. It further recommended
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that Respondent 6 should act as Additional District and Sessions Judge
in the second longer vacancy and in case the State Government did not
think it proper to relieve him, the post of Secretary, Bihar Legislative
Assembly should be upgraded. Respondent 4 was recommended to be
promoted as Additional District & Sessions Judge in the third longer
vacancy. He joined in the promoted rank on June 17, 1959 and continued in it till October 1, 1959. Before the actual officiation by Respondent 4 in the promoted rank, the Government by its letter, dated
August 5, 1959, had approved the creation of two posts of Additional
District and Sessions Judges for a period of one year in the first instance,
consequent on the amendment of Bengal, Agra and Assam Civil Court
Act, 1887.
On May 22, 1959, the Government sanctioned the creation of two
posts of Peripatetic District & Sessions Judges for a period of two years.
Thus, between April 25, 1959 and June 17, 1959 four extra posts of
Additional District & Sessions Judges were created, and were available
for the persons found fit and due for promotion from the cadre of Subordinate Judges. On August 17, 1959, the High Court recommended
Sarvshri A. N. Sahay, R. B. P. Sinha, C. P. Singh (Respondent 5) and
E. Rahman (Respondent 6) for promotion as Additional District and
Sessions Judges. It, however, made it clear that since Respondents 5
and 6 could not be relievedl from the posts of Deputy Registrar, High
Court and Secretary, Legislative Assembly, they should continue in
these posts after the same had been upgraded. The High Court further
recommended that in view of the heavy arrears two more posts of Additional District and Sessions Judges be created for the period for which
Respondents 5 and 6 were to continue on the posts U1ey were then
h~~
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Ten more posts of Additional District & Sessions Judges fell vacant
between November 1, 1959 and April 6, 1960. Thus, there were, in
all, fourteen vacancies in the posts of Additional District and Sessions
Judges, to one of which Respondent 4 could and should have been appointed, if there was no administrative or procedural delay attributable
to his fault. Respondents 1, 2 and 3 were appointed as Additional District and Sessions Judges by a Government notification, dated April 21,
1960. Despite the availability of a post and suitability of Respondent 4
to be appointed as Additional District & Sessions Judge, he was promoted to that post on September 19, 1960. Respondent 4 made a representation datei;I April 10, 1961, to the State Government praying for
fixation of his seniority just below Shri E. Rehman in the cadre of Additional District and Sessions Judges. He followed it up by supplementary representations in the same connection. These representations remained pending on the administrative side of the High Court. By a
letter dated August 20, 1964, the High Court recommended the rejection of his representations.
The Government,
however, was of the
opinion that there was substance in the representation of Respondent 4.
It therefore made a back reference on August 5, 1965 to the High Court
for reconsideration of the matter. The High Court, however, informed
the Government that it did not see any reasons to reconsider the
matter. Thereafter the Government took a decision and allowing the
representation of Respondent 4, ordered that he should be deemed to
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BIHAR v. M. M. PRASAD (Sarkaria, !.)
113
have been officiating as Additional District and Sessions Judge with effect
from November 1, 1959 and for purposes of seniority, should rank
immediately below Respondents 5 and 6 in the cadre of the Superior
Judicial Service.
The Government was of opinion that on a proper
interpretation of Rule 16 ( e) of the Bihar Superior Judicial Service
Rules, it was authorised to fix the seniority from a date from which
officiation was possible on account of availability of vacancy. On being
satisfied that the delay between October 1, 1959 and September 19,
1960, in the promotion and appointment of Respondent 4 to the post
of Additional District and Sessions Judge, when several posts in that
cadre were vacant, was wholly an administrative and prcccdural delay,
the State Government in order to relieve undue hardship to Respondent 4, relaxed Rule 16(c) of the Service Rules and passed the impugned order which it communicated to the High Court by a letter
dated January 24, 1968, which reads as follows :
"I am directed to refer to your letter No. 501dated18-166 on the subject noted above and to say that after a careful
consideration of the case of Shri Jitendra Narain at present
District and Sessions Judge of Dhanbad, the State Government have been pleased to decide that Shri Narain shall rank
immediately below Shri Enayetur Rahman and above Sarvashri Madan Mohan Pd., Rameshwar Pd. Sinha and Chandra
Shekhar Prasad Singh, the direct recruits from the Bar in the
cadre of the Superior Judicial Service, and for this limited
purpose, he will be deemed to have been officiating as Additional District and Sessions Judge with effect from ist November 1959".
Thus, the question before the High Court was one of fixation of the
seniority of the writ-applicants, the three direct recruits, vis-a-vis Respondent 4.
In this context, the interpretation of Rule 16 ( e) of the
State's Superior Judicial Service Rules came up for consideration. This
Rule provides :
"Seniority of direct recruit vis-a-vis promoted officer shall
be determined with· reference to the dates from which they
may have been allowed to official~ continuously, in posts in
the cadre of the service or in posts outside the cadre on identical time-scale of pay and of equal statu~ and responsibility
or in posts of higher scale of pay and of higher responsibility
in or outside the cadre."
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There, as here, it was contended that the meaning of the expression "may have been allowed to officiate continuously" occurring in
the above quoted clause is that a notional, continuous officiation in
a post in the cadre of the Service or outside it, will gin preference
to the promoted officer in the matter of seniority over the direct recruit provided there were vacancies in one of which he could or might
have been allowed to officiate continuously.
The High Court
rejected this contention and held that this expression means actual and
continuous officiation and not a fictional or notional one.
The High
Court, however, went fnrther and said that the power to determine
seniority being a matter of control exclusively vests in the High Court
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under Article 235 of the Constitution. lf further held that the Government could not fix the seniority of Respondent 4, as they had done
by taking recourse to the "hardship rule" framed by them nnder
the
proviso to Article 309 of the Constitution.
According to it, what the
Government could not do directly, could not be indirectly done by it
by relaxing the requirement of Rule 16 ( e).
Shri Madan Mohan Prasad (Respondent No. 1 in the original
petition) has since been appointed to the Bench of the High Court.
Consequently, he has withdrawn his appeal (Civil Appeal No. 1928
of 1970) which stands dismissed as such with no order as to costs.
We are told that Sarvashri Rameshwar Prasad Singh (Respondent
2), Jitendra Narain (Respondent 4) and Chandrika Prasad Sinha
(Respondent 5) have also been appointed to the Bench of the High
Court, and that Respondents 3 and 6 have since retired from service
as District and Sessions Judges.
The matter has thus been rendered
academic, except, as the Solicitor-General says, for the limited purpose
of fixing pension and gratuity on the basis of the length of service in
the cadre of Superior Judicial Service.
Before dealing with the contentions canvassed, it will be appropriate to notice the relevant provisions of the Bihar Superior Judicial
Service Rules, 1951.
Rule 6 says that of the posts in the cadre of the
service, two-thirds shall be filled by promotion and one-third by direct
recruitment.
Then there is a proviso which gives the State Government power to deviate from this proportion after consultation with
the High Court. Rule 15 deals with confirmation. It says :
"15(1)(a). A member of the Service appcinted under
clause (a) of rule 5 shall be on probation for a period of one
year and shall not be confirmed unless he is found to
be
suitable in every respect for appointment to the Service:
Provided that the period of probation may be extended
by the State Government, in consnltation ·with the
High
Court.
(b) When such a member is confirmed in the Service
the period spent on probation shall be counted towards leave,
pension or increments in the relevant time-scale.
(2) Promoted officers
appointed against substantive
vacancies in the cadre shall forthwith be confirmed in the
G
Service."
H
Then comes Rule 16 which regulates the inter-se seniority.
It
provides :
"16(a). Seniority inter se of direct recruits
shall
be
determined in accordance with the date of their substantive
appointments to the Service:
Provided that a direct recruit appointed to the post of an
Additional District Judge shall be junior to a direct recruit
appointed to any other post in the schedule.
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BIHAR v. M. M. PRASAD (Sarkaria, !.)
115
(b) Seniority inter se of promoted officers shall also be
A.
determined in accordance with the dates of their substantive
appointments to the Service.
( c) When more than one direct recruit is appointed at
one time, the seniority inter se will be determined in accordance with the order given in the notification making their
appointments.
( d) When more than one appointment
is made by
promotion at one time, the seniority inter se of the officers
promoted shall be in
accordance
with
their respective
seniority in the Bihar Civil Service (Judicial Branch).
(e) ..
,,
B.
There is a Note appended to this rule which clarifies that a period
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of leave or the annual vacation of the Civil Courts will not be treated
as an interruption for the purposes of this sub-rule.
It will be seen that these rules are silent as to whether any question
in regard to inter se seniority of the promoted· officers and the direct
recruits is to be determined by the High Court or the State Government in consultation with the High Court.
Mr. Lal Narain Sinha, Solicitor General contends that this question is concluded by the decision of this Court in Chandramouleshwar
Prasad v. Patna High Court and ors.( 1). It is therefore proposed to
notice that case in some detail.
There, the petitioner as well as respondents 3 to 5 belonged to the
Judicial Service of Bihar.
They had joined service as Munsiffs.
Iu
due course, they were promoted as Subordinate Judges.
In 1962,
the question of promoting them as Additional District and Sessions
Judges was considered by the High Court and the Government.
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 such earlier than respondent~ 3 to 5.
The Bihar Civil List published in March 1968 showed
the petitioner as No. 10 and respondents 3 to 5 as Nos. 12 to 14 in the
cadre.
Respondents made a representation to the High Court for
correction of the gradation list.
The High Court accepted their representation in September 1968. Iu the same month the District and
Sessions Judge at Bihar retired and respondent No. 3 who was the 3rd
Additional District and Sessions Judge was asked by the High Court
to officiate in the vacancy.
The petitioner who was also working as
1st Additional District and Sessions Judge in the same place considered
this to be a supersession and memorialised the Government.
The latter
took action on October .17, 1968 appointing the petitioner as officiating
District and Sessions Judge.
Thereupon the High Court transferred
the petitioner to another District on October 25, 1968.
The petitioner
moved this Court under Art. 32 challenging the validity of the order
of the High Court transferring him from Errah and posting him as
Additional District and Sessions Judge at Singhbhum and the direction
(I) (1970] 2 S.C.R. 666.
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or the order of the High Court dated September 23, 1962 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 further
prayed that the High Court be directed to allow him to take over
charge as officiating District and Sessions Judge at Err ah in terms of
the Government's notification dated October 17, 1958.
The main
ground on which he challenged the direction or order of September
23, 1968 relating to his position in the gradation list was that it was
in contravention of r.16(b) and r.16(d) of the Bihar Superior Judicial
Service Rules, 1951.
He took his stand on the notification
da(cd
October 17, 1968 of the Government purporting to appoint
him
temporarily as District and Sessions Judge, Errah.
On the question of fixing of seniority, this Court speaking through
Mitter J. said:
"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 !sit 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. . . :
We only hope that there will be no such misunderstanding 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."
In the result this Court held:
"that the Government notification of
October
17,
1968
was not in terms of Art. 233 of the Constitution and ·consequently the question of quashing the High
Court's order
dated October 25, 1968 does not arise. We <>lso 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."
It is to be noted that in Chandramou/eslnvar (supra), this Court
was concerned only with cls.(b) and (d) of r.16; while in the present
case, \Ve are concerned with fixation of inter se seniority of pron1oteJ
officers vis-a-vis the direct recruits which matter is governed by cl.(e)
of the said rule.
It will be seen from what has been extracted above
that in Chandramouleshwar, even while construing els. (b) and ( d).
this Court did not say in express terms that the gradation list prepared
by the High Court was invalid because under the concerned rules, the
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BIHAR v. M. M. PRASAD (Sarkaria, J.)
117
High Court had no power to determine
inter se scmonty of
the
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promoted officers or that the determination of such seniority was
a
matter for the State Government.
All that was held was that the
question of determining inter se seniority in terms of els. (b) and ( d)
of r. 16 does not arise before their confirmatipn comes up for consideration.
In other words, the question of determining inter se seniority
of the promoted officers could not be determined apart from and
prior to their confirmation in the Service. Since the Civil List prepared
fl
by the High Court had not been drawn up in accordance with the
aforesaid rule, it had "no legal basis".
Thus, Chandramouleshwar
seems to lay down that the question of determining inter se seniority
of promoted officers is intertwined with the question of their confirmation in the Service. According to cl. (a) of r. 16, inter se seniority
of direct recruits is also to be determined in accordance with the dates
of their confirmation in the Service.
In this case, however, we are
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concerned with fixation of the seniority of direct
recruits vis-a-vis
promoted oflicers.
The relevant clause for this purpose is cl. ( e) of
r.16. The governing criterion, according to this clause, is "the dato
from which they may have been allowed to officiate continuously in
posts in the cadre of the Service or in posts outside the cadre on identical time-scale of pay and of equal status and responsibility or in posts
of higher scale of pay and of higher responsibility."
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Reading clause (e) together with els. (a) and (b) of r. 16. it is
clear that before fixing the seniority of direct recruits vis-a-vis promoted
officers, it will be necessary as a preliminary step, to prepare two
separate seniority lists, one of direct rcGrults under cl. (a) and the
other of promoted officers under cl. (b I of r. 16, in the chronological
order of their confirmation.
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This Court has recently held in The High Court of Punjab and
Haryana etc. v. The State of Haryana and ors.( 1) that the power of
confirmation of District Judges is a part of the power of control vested
in the High Court under Art. 235 of the Constitution.
Since the Bihar
Superior Judicial Service Rules, make the chronological order of confirmation an integral part of the process of fixation of the order of
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seniority in the Service. the inference is that both these powers were
intended to be exercised by one and the same authority.
Since Article
235 of the Constitution vests the power of confirmation in the High
Court, it stands to reason that the power of determining the seniority
in the Service is also with the High Court.
Of course, in determining
the seniority the High Court is bound to act in accordance with the
Rules validly made by the Governor under the Proviso to Art. 309 of
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the Constitution.
Be that as it may, it is not necessary to pursue the
discussion
further.
Appointment of three of respondents to the Bench of the
High Court and retirement of two others has rendered the matter
largely, if not entirely, academic.
We further agree with the High Court that the words "may have
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been allowed to officiate continuously" in cl.(e) of r.16 mean actual
(1) A.LR. 1975 S.C. 613.
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and continuous officiation and not a fortuitous or fictional officiation.
A notional construction of the clause would lead to anomalous results.
The State Government therefore, could not on an interpretation of
r.16(e) says that for the limited purpose of seniority respondent 4
would rank below respondents 2 and 3 but above the writ petitioners
and will be deemed to have been officiating as Additional District and
Sessions Judges with effect from November 1, 1969.
Such a deeming
officiation, as rightly held by the High Court, for the purpose of determination of seniority on a construction of cl. ( e) was not permissible.
For the foregoing reasons, the appeal fails and is dismissed without ·
any order as to costs.
P.B.R.
Appeal dismissed.
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