# THE HIGH COUR~L·, CALCUTTA v. AMAL KUMAH, B.OY - **Citation:** [1963] 1 S.C.R. 437 - **Court:** Supreme Court of India - **Decided:** 1960-02-17 - **Case number:** Civil Court, Calcutta, in Title Suit No. 409 of 1958 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-high-cour-l-calcutta-v-amal-kumah-b-oy-2602 - **Pages:** 20 ## Headnote • t s.c.R. SUPREME COURT REPORTS 437 to determine the precise area covered by the structures a.ad the pasuges separating these various structures. We agree with him. It would be suffi· dent to direct the Government to settle with the respondent the whole of the land covered by the structures as well as land appurtenant to those structures from out of Khasra. No. 61/l. What the area of th:it land would be is a matter to be determined during the st1ttlement proceedings. With this modifi0ation we dismiss the appeal with costs. Appeal dismis8ed. THE HIGH COUR~L·, CALCUTTA v. AMAL KUMAH, B.OY (B. P. SINHA, C. J., K. SuBBA RAo, N. RAJAGOPALA AYYANGAH., J. R. MuDHOLKAH, and T. L. VENl{ATARAMA AIYAR, JJ.) StateJummission. The plaint also added that the Munsifs and Subordinate Judges belong to one and the same service, namely, the West Bengal Service (J udioial), and that a number of the service is entitled to be considered for promotion according to seniority, to the West Bengal Judicial Service. In the premises, the plaintiff prayed that "a declaration be made that he occupies the same position, with the ea.me 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 11ony other relevant grad11otion list maintained as a. • 1 S.C.R. SUPREME COURT REPORTS 443 Subordinate Judge immediately below tba.t of Shri Bibriutosh Benerjee and immediately above that of Shri Jagadiildra Nath Hore". Arrears of salary as Subordinate Judge, together with dearness allowance, with interest at 6% per annum, amounting to Rs. 1,090/- were also claimed, and a permanent injunction was also prayed for directing the principal defendants to plaoo the plaintifi'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 rea- ons thereof, though it denied that the plaintiff had a cause of action, or that he was entitled to any relief. The sub~tantial defence to the suit raised by the High Court was that in December 195!, the High Court considered the question of inclusion of names of certain Munsifs in the panel of officers to officiate as Subordinate Judges; the plaintifi's name was excluded from that panel, and it was decided that the High Court wquld 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 a.s 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 injunotion in his own favour, in a. casi:i in which he himself W&'i the plaintiff. The order of injunction was judicially considered, on appeal, and set a.side. The matter came up before, a Full Court of the High Court for consideration administratively, as a result of 'Yhicb a. Committee of three Jqdges of the High Coqrt was app9inted to consider the pla.iiltiff's oond~ct. i\.fter considering the plainti(f'e explanatjon, tb,e High Court came to. the conclusion tihat his explana.tfon was unsatisfactory, and that his oonduct sbottld a total disregard of all judioial propriety. It was denied that the plaintiff'~ oase 196Z 'Fhe High Court, Calcutta v. Amal Eum~r Ra, Si11ha C. J. 1902 The Hi· la Courl, Calcutta v. Ar, cl Kwnor Roy Sin/i4 C.J. 444 SUPREME COURT REPORTS [1963] came within the scope and ambit of Art. 31I(2) of the Const,itution, 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 queetions of promotion of Munsifs to Subordinate Judge's grade; in exercise of that sole authority and discretion, the High Court considered the plaintiff's caee for promotion as Subordinate Judge, and paesed 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 fro.med, 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 fitnees 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 servioe, was neither a disciplinarv action nor an imposition of a penalty, which would bring his case within the purview of the State Public Ser. viee Commission, and the plantiff had no right of appeal against the order of the High Court, complained of, as it was not governed by the Civil Services (Classfication, Control and Appeal) RuleA, relied upon by the plaintifi. In the premises, it was contended that the Court had so jurisdiction to entertain the suit or to grant any of the reliefs claimed by the plaintiff. On those plea.ding~, and after recording the plaintiff's 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, tbe learned counsel for the pla.intitf did not < I S.C.R. SUPREME COURT REPORTS 445 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 "tht\t the High Court intentionally deferred con1iideration 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 a.s 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 judgm.ent and decree of the Civil Court, is dated February 17, 1960. On April 12, 1960, application for specia.l leave to appeal to this Court, directly from the judgment and decree aforesaid, was made, and the special leave was granted by this Court on April 26, 1960. In this Court, at the very outset, the ·learned Standing Counsel for the Government .of West Bengal very properly and candidly admitted before us that due to defective instructions he had not l:>rought it to the notice of the learned Trial Judge that the r. 55-A, enacted in 1948 by the GovernorGeneral, was not applicable to the Judicial Service in Bengal. The plaintiff-respondent, who argued his oa.se in this Court in person, with singular ability and persistence, was not able to show to the contrary. We must, therefore, proceed on the footing that this Rule does not, in terms, apply to this case, and is wholly out of the way. At the threshold-of his arguments, the learned counsel for the appellants contended that the suit was not inainta.inable ·beoaUBe the controversies re.ised 1962 The High Court, C•lcutla v. Amal Kumar &y Sinha C. J. i962 The High Court, Calcutta •• Amal Ktlmar Roy Sinha C.J. 446 SUPREME OOURT REPORTs (1963] by the plaintiff are not justiciable. We have, therefore to determine the question w beth er the issues raised in the pleadings of the parties were justiciable. The answer to this question must depend upon the answer to the questions whether the plaintiff had a right to promotion, which right had been withheld from him., ~bus giving him a cause of action. Was the plaintiff subjected to a penalty, without taking the necessary proceedings, as contemplated by Art. 3ll(2) of the Constitution, or the Service Rules? Was there any breach of procedure, laid down by law, in determining the plaintiff's right, if any. Was the action of the High Court postponing by a year the consideration of the plaintiff's promotion as Subordinate Judge without jurisdiction? Was there any delegation of powers under Art. 235 of the Constitution to the English Committee, as contended by the plaintiff respondent? Was there a breach of tb.e provisions of Art. 320(3)(0) of the Constitution? Was the plaintiff "reduced in rank" within the meaning of Art. 311(2) of the Constitution? These are matters which are interconnected and will, therefore, have to be con· sidered together. The question whether the plaintiff had a right to promotion has to be determined with reference to the provision of the Bengal, Agra and Assam Civil Courts Act (XII ~f 1887)-whioh may for the sake of brevity be called the Civil Courts Act -along with the Civil Service Rules governing the judicial branch of the Provincial Civil Service of West Bengal. The Civil Court Act consolidated the law relating to Civil Courts in Bengal, and other parts of India. By s. 3, it prescribed four classes of Civil Courts, namely; ( l) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the Subordinat.e Judge; and (4) the Court of the Munai/. By e. 21 of the Act, appc11.ls from a Mumi/ shall lie to the District Judge, who may assign the appeal to be heard by a Subordina~ Judge. Hence, in t.b.e .. - 1 s.c.R. SUPREME COURT REPORTS 441 hierarchy of the Courts in the district, the Court of a Subordinate Judge is higher in rank than the Court of a Munsif which stands at the bottom. B11t the Civil Courts Act does not make any provision about promotion from the rank of a Munsif to that of a Subordinate Judge, or the machinery or the proceBB by which a M unsif may become a Subordinat~ Judge. Under s. 255 of the Government of India Act, 1935, the Governor of a Province, after consultation with the Provincial Public Service Commission, and with the High Court concerned, was authorised to make rules for recruitment to the Subordinate Civil Juqicial Service, which expression meant civil judicial posts inferior to the post of a District Judge. By sub-s.(3) of that section, the High Court was vested with the power of posting, promotion, etc. of persons befonging to the service, subject to the conditions of service, laid down by the Governor. After the inauguration of the Consititution, Art. 235 vests the control over District Courts, and courts subordinate thereto, including the posting and promotion of persons belonging to the Judicial Service of a State, holding any post inferior to that of the District Judge, in the High Court. This power of the High Court is subject to any right of appeal, which a member of the service may have under the law regulating the conditions of his service, and to his other rights under that law. It is therefore, clear that after the coming into force of the Constitution, the High Court is the authority which has the power of promotion in respect of persons belonging to the State Judicial Service; holding any poat inferior to that of a District Judge. It is not contended by the plaintiff-respondent that there is any other authority which could have dealt with him in the matter of promotion from the post of a Munsif to that of a Subordinate Judge. But it was contended that the authority of the High Court, derived M it is solely from Art. 235,, is subject to the service 1962 Thi High Conre, Cofrutta v. dmol Kumar Roy Sinh1J C. J, 1~61 Tiu H1fh Court, c.1a1ua y, Arn.i Kumar Ro.1 Sinha c. '· 448 SUPREME COURT REPORTS [1963] rules governing the matter. Even so it was not claimed. that there is anything in the rules, which categoncally confers a right on the plaintiff to be promoted as a Subordinate Judge. What is claimed by the plaintiff is that r. 49(2) of the Civil Services (ClassificaUon Control and Appeal) Rules embodied his right in a negative way, namely that he shall not be withheld promotion except by recourse to proceedings contemplated by that rule, and tne rules following that rule. In other words the plaintiff is not claiming an absolute right to promotion, irrespective of the question whether or not there is a vacancy in the higher cadre or thttt he must be promoted when he becomes the seniormost Munsif. He claims that, under the Rules aforesaid, if there is a vacancy in the cadre of Subordinate Judges, he should have been appointed in t,hat vacancy of a Subordinate Judge, as he was the seniormost Munsif and that if a Munsif lower to him in the seniority list is appointed as a Subordinate Judge in that vacancy, with· out good or sufficient reasons being shown, and 1 without giving him the right of appeal, then his right is infringed, and in that sen•e he claims that he has a right not to be withheld promotion from him, and that in the events that have happened, his supersession by a Munsif junior to him in the Civil List amounted to withholding promotion from him within the meaning of r. 49. That rule lays down several categories of penalties, which may for good and sufficient reasons be imposed upon a member of the service. One of those penalties is "withholding of increments or promotion, including stoppage at an efficiency bar", and r. 55-A lays down that a penalty like that of withholding promotion, as also some other penalties not relevant to our present purpose, shall not be imposed upon a member of the service unless he has been given adequate opportunity of making any representation that he may desire to make, and such representation, if any, has been taken into consideration before the order , I • 1 s.c.R. SUPREME COURT REPORTS 449 imposing the penalty is passed. One thing is clear with referAnce to Art. 235, read with the service rules, thn.t there fa no right of promotion which the plaintiff could have claimed to enforce by action in a Court. Rule 49, on which reliance was placed by the plaintiff to make out his right to be considered for promotion as a Suberdinate Judge, is in the first instance, not a right but only a safe guard to a public servant that punishment by way of withholding of promotion shall not be imposed upon him unless he has been given adequate opportunity of showing cause against the aetion proposed to be taken. It is also clear that r. 49 comes into play only when proceedings are taken by way of disciplinary action against a public servant. In such disciplinary proceedings, the G~lvernment servant proceeded against has a right to insist upon the procedure being strictly followed. But in this case there was no such disciplinary ·proceeding against the plaintiff, and therefore, r. 49 is wholly out of the way. If r. 49 is not available to the plaintiff, r. 55-A was equally not available to him, even assuming that the rule applied to the case of members of the State Judicial Service. It follows from what bas been said that there was no question of a penalty being imposed upon ·the plaintiff. That being so, there could not be any breach of the procedure laid down by tp.e rules for proceedings against a government servant, like the plaintiff. But it was argued by the plaintiff that the action taken against him, namely, postponing consideration of his case for promotion as a Subordinate Judge, as aforesaid, was be:J ond the jurisdiction of the English Committee. This argument is advanced on the assumption that the High Court, as such, had delegated its powers, under Art. 235 of the Constitution, to the English Committee, which passed final orders against him. In our opinion, no foundation was la.id in the plaint for any 1941 The High Court, Colculla v. Amal Kumar BoJ• Sinha C. J, ,, 1962 Thi Hig\ CoUTI, C"leal'a v. Amal Eltl'nar Roy Sinha C J. 450 SUPREME COUR'.i. REPORTS [1963] such contention. It is not alleged in the plaint that the resolution of the English Committee of the Judges of the Calcutta High Court, dated .December 16, 11154, was not adopted by the Full Court in ,wcordance with the Rules of Business laid down by that Court. According to r. 1 of Ch. I of the High Court Rules, there shall be a Standing Committee, called the English Committee, composed of the Chief Justice and at least four other Judges, to be appointed from time to time by the Chief Juetice. According to r. 2 this Committee shall be associated with the control and direction of the Subordinate Courts, and according tor. 3 the English Committee shall have power inter alia "to make recommendations for the appointment of Subordinate Judges ... " The English Committee, therefore, by its resolution aforesaid, only made a recommendation, which recommendation has to be circulated to all the Judges as soon after each meeting as possible, according to r. 13. The relevant portion of r. 15 is in these terms: "On the following matters all the Judges shall be consulted :- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( e) all appointments which by law are made by the High Court and which are not otherwise expressly provided by the rules in this Chapter." It must therefnre, be held that in accordance with the Rules of Business of the Court, the appointment of Subordinate Judges from amongst Mumif8 bas to be made by the High Court as a whole, on the recommendation of the English Committee. The resolution of the English Committee in connection with the selection of the plaintiff as a Subordinate Judge must have, in ordinary course, according to tbe Rules, been placeo before all the Judges of the I s.C.R. SUPREME COUR'.l. 1 REPORTS 451 Court, a.nd presumably the Court a.a a whole accepted the recommendation of the English Committee. It is true that there is nothing in the record of this case to prove all this. But, as already indicated, as the plaintiff did not make any allegations that the High Court as such had not passed the orders complained of, the High Court did not think it necessary to place the other relevant documents on the record. Hence, there is no basis for the submission either the High Court and made unjustifiable delegation of its powers under Art. 235 of the Constitution, or that the High Court as a whole did not pass the order which was the plaintiff's alleged cause of action. What has happened with reference to his complaint ma.de iu the' plaint has been thus stated by the High Court in paragraph 6 of the written statement : '•With further reference to paragraph 4 of the plaint these defendants state that on or about 16th December, 1954:, the cases of eeve· ral Munshifs came up for consideration before this High Court for inclusion of names in the panel of officers to officiate as Subordinate Judges. The plaintiff's name was excluded and it was decided by this High Court that, after the -special report from the District Judge was received, the case of the . plaintiff would be considered a year later. The plaintiff was not thought fit at that time to act as a Subordinate Judge and these defendants will refer to the relevant records in connection t-herewith. Subsequently, the plaintiff was allowed to act as a Subordinate ;Tudge under Order of this High Court and therefore, in the meantime and in due course and for good reasons the plaintiff had lost eight places and became a Subordinate Judge after 8ri Anatb Bandhu Syam. Ultimately, the plaintiff was con.firmed as a SuboJ."din~te Judge and was inoluded in 1962 Tlt1 High Court, Calcutta v. Amal Kumar Btt1 Sinha C.J. 1963 The High Court, Calcutta v. Amal Kumar Ro'1 Sinha C . .J. 452 SUPREME COURT REPORTS (1963) the fit list to officiate in the West Bengal Higher Judicial Service, and has since been appointed to officiate as Additional District and Sessions Judge." Thus, unfortunately for the plaintiff, the effect of the order of the High Court was tha.t he was not selected as a Subordinate Judge when bis turn in the ordinary course came, for certain reasons which need not be gone into, because we have held that the plaintiff had no right to promotion, and, therefore, no right of action iQ a Court. The plaintiff lost eight places in the cadre of Subordinate Judges of West Bengal, but that was a natural consequence of the order of the High Court deferring the consideration of his selection as Subordinate Judge by a year. But that is the normal incidence of public service. In this connection, we may notice the argument advanced by the plaintiff that before the High Court decided to pass him over in favour of those Munsifs who were lower in the Civil List, the Bengal Public Service Commission should have been consulted, in accordance with the provisions of Art.320(3)( c) of the Constitution. That has reference to "all disciplinary matters". As already pointed out no disciplinary proceedings had been started against the plaintiff. Hence, there could be no occasion for the State Pu blio Service Commission being consulted. It is not, therefore, necessary for us to reconsider the question as to whether the provision in question is mandatory or only directory, as held by this Court previously. But it was further contended that even though there may not have been any disciplinary proceedings taken against him, the effect of the High Court's order was that lie was reduced by eight places in the list of Subordinate Judges, and that in law amounted to reduction in rank, within the meaning of Art. 311(