Full Judgment Text
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PETITIONER:
REGISTRAR OF HIGH COURT OF MADHYA PRADESH AND ANOTHER
Vs.
RESPONDENT:
B. A. NIGAM AND OTHERS
DATE OF JUDGMENT03/04/1973
BENCH:
ALAGIRISWAMI, A.
BENCH:
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION:
1973 AIR 1271 1973 SCR (3) 878
1973 SCC (4) 219
ACT:
Madhya Pradesh Civil Courts Act, 1958--Service Rules-
Experience as Civil Judge, Class-1, necessary qualification
for promotion to the post of Addl. District and Sessions
Judge, and not the seniority.
HEADNOTE:
The Respondent No. 1, who was a Civil Judge in former Madhya
Bharat, was, on absorption into Madhya Pradesh Judicial
Service, treated as Civil Judge, Class--II. The relevant
Service Rules applicable to the Civil Judges recognised
Civil Judges as only one Class but the M.P. Civil Courts
Act, 1958, mentioned two classes of Civil Judges namely,
Civil Judges Class I and Civil Judges Class II. From the
time when the Madhya Pradesh Civil Courts Act, 1958 came
into force it was always considered by the High Court that
for promotion to the post of Addl. District and Sessions
Judge, it was a necessary qualification that the Civil Judge
must have some experience of working as Civil Judge, Class-
I. Under the Act, the pecuniary jurisdiction of the Civil
Judge, Class I was Rs. 10,000/- while that of Civil Judge
Class 11 was Rs. 5,000/-. In May 1968, the High Court
passed as Resolution laying down that the selection of a
Civil Judge, Class-II, as a Civil Judge Class I shall be
deemed as promotion and that being so, only the cases of
Civil Judges, Class-I, shall be considered for promotion as
Addl. District and Sessions Judges in order of their
seniority. The respondent was not found fit for promotion
to the post of Civil Judge, Class-I in the successive
selections. He was finally found fit in 1968. In a writ
petition before the M.P. High Court, the Respondent No. 1
contended that the date of the seniority should count from
the date of appointment to the post of Civil Judge Class-11
and not from the date of promotion to the post of Civil
Judge, Class-1. He also contended that the High Court
resolution of May 3, 1968, was illegal as there was no
provision in the Service Rules for classifying Civil Judges
as Class I or Class II and the power to create various
classes of services was vested in the Government, and not in
the High Court. The M.P. High Court allowed the Writ
Petition.
Allowing the State’s appeal by certificate,
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HELD : (1) On perusal of the High Court file regarding the
selection of Class 11 Civil Judges as Class I Civil Judges,
it is clear that the decisions were bona fide and on merits.
The Respondent No, 1 had no claim to Class I post before
1968, when for the first time he was found fit. Once it is
found that experience as Civil Judge Class I is a necessary
qualification, the seniority in Class II service is of no
consequcnce.
(2) While it is true that the Service Rules do not provide
for any distinction within Civil Judges, the difference in
the pecuniary jurisdiction cannot be ignored. The
Resolution of the High Court of May 1968 should not be
interpreted literally. The resolution does not create a new
class of Civil Judges called Class I Civil Judges but
merely lays down the qualification or standard of fitness
for higher promotion. There is
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Do justification for re-opening cases closed for more than
ten years at the instance of an officer whose record of
service was not a shining one compared to those who were
selected earlier. [880A, 881G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 624 of 1972.
Appeal by certificate from the Judgment and order dated
August 8, 1971 of the Madhya Pradesh High Court at Jabalpur
in Misc. Petition No. 537 of 1969.
I. N. Shroff, for the Appellants.
M. N. Phadke, Anthoney G. Menezes, P. G. Bhartari, J. B.
Dadachanji, O. C. Mathur & Ravinder Narain, for respondent
No. 1
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-In the Judicial Service of Madhya Pradesh
there are three classes of officers, Civil Judges,
Additional District and Sessions Judges and District Judges
but under the Madhya Pradesh Civil Courts Act, 1958 there
are four classes of Civil Courts, the Court of the District
Judge, the Court of the Addl. District Judge, the Court of
the Civil Judge (Class 1) and the Court of the Civil Judge
(Class II). The respondent No. 1, Shri B. A. Nigam, entered
service as a Civil Judge on 20-10-1956 in Madhya Bharat.
After Madhya Bharat became part of Madhya Pradesh he was
absorbed as a Civil Judge and placed for purposes of
seniority at No. 189. From the time when the Madhya Pradesh
Civil Court Act, 1958 came into force some period of service
of a Civil Judge during which he exercised powers of Civil
Judge, Class 1, however, small, was considered a necessary
qualification for promotion to the post of Additional
District and Sessions Judge. On or about May 3, 1968, by a
resolution of the High Court it was laid down that selection
of a Civil Judge, Class 11, as a Civil Judge, Class I, shall
be deemed as promotion and that being so, only the cases of
Civil Judges, Class 1, shall be considered for promotion as
Additional District and Sessions Judges in order of their
seniority. It must be made clear at the outset that
according to the Service Rules there is only one class of
Civil Judges and Jr not two classes of Civil Judges (Class
1) and Civil Judges (Class II). The fitness of the
respondent (1) for promotion as Civil Judge, Class I, seems
to have been considered on a number of occasions i.e. on May
3, 1966, August 12, 1966, April 17, 1967. November 6, 1967
and April 18, 1968 and on each of these occasions he was not
found fit to exercise powers of a Civil Judge, Class 1. Mr.
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1. N. Shroff appearing for the appellants has also shown us
the file containing the proceedings of the Judges’ meetings
of the High Court of Madhya Pradesh on the various dates
above referred to in which the names of various officers for
being
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Posted as Class I Civil Judges have been considered. We
have scrutinised them carefully and can see no reason to
doubt the bona fide nature of the. decisions therein made.
The High Court has also taken the view that though the
junior members in the cadre of Civil Judges had often been
allowed to exercise the powers of Civil Judge, Class 1,
without considering at that time the respondent’s claim and
then those junior members had been preferred for promotion
on the ground that they had exercised such powers, and such
preference was open to attack as being violative of the
fundamental rights of the respondent, they could not assist
him on that ground because even if his claims for exercising
the powers of Civil Judge, Class I had been considered at
the appropriate time, he would not have been found fit for
the purpose for the reason earlier mentioned. While it is
not impossible that if the respondent’s case had been
compared with that of others before the 3rd May, 1966 he
might have been found fit for being posted as a Civil Judge,
Class 1, it is very improbable and we, therefore, agree with
this conclusion of the High Court. Finally, on 30-11-1968
the respondent was found fit to be posted as a Civil Judge,
Class I and he filed the petition, out of which this appeal
arises, for consideration of his name for being promoted as
an Additional District and Sessions Judge over the heads of
all the people who had been earlier found to have better
qualifications for being posted as Civil Judges, Class I in
preference to him. That petition having been allowed by the
High Court his appeal has been filed by certificate by the
Registrar of the High Court of Madhya Pradesh and the State
against the judgment of that High Court.
In addition to the point which we have earlier
mentioned and agreed with the High Court, his only other
contention was that in the list of Civil Judges he was
senior to all of them and as there was no provision in the
service rules for classifying Civil Judges as Class I or
Class III and the power to create various classes of
services was one which vested with the Government and not
with the High Court therefore the resolution of the High
Court of May 3, 1968 cannot affect him adversely. The High
Court took the view that as for some years past a principle
for selection had been introduced that before a Civil Judge
was promoted to the post of an Additional District and
Sessions Judge, it was essential that he should have
exercised the powers of Civil Judge, Class 1, for a period,
however short and that principle had a rational relation to
the suitability of Civil Judges for promotion to posts of
Additional District and Sessions Judges and the respondent
No. 1 could not legitimately complain, as he did not have
that qualification, and he could not be, selected for
promotion only on the basis of seniority. They also took
the view that since the respondent No. 1 had not acquired
the qualification required for promotion,
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his claim for such promotion should be regarded as having
been considered and rejected by implication till November
30, 1968 when he was allowed to exercise the powers of Civil
Judge, Class I. Having held rightly, according to us, that
till November 30, 1968 the respondent No. 1 was not
qualified to be considered for promotion as an Additional
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District and Sessions Judge, the High Court curiously enough
issued a writ of mandamus directing that the respondent’s
claim for promotion should be considered in relation to the
claims of his juniors and if he was found fit he should be
allowed the consequential benefits including fixing of
seniority in the cadre of Additional District and Sessions
Judges. In mentioning about the juniors of the respondent
No. 1 the learned Judges were referring to the original
seniority in the cadre of Civil Judges.
Once it is found that experience as Civil Judge, Class 1, at
least for a short period, is a necessary qualification for
promotion as Additional District and Sessions Judge and that
such a requirement has a rational relation to the question
at issue, it would be surprising to hold that a man, who
again and again had been found unfit to be posted as Civil
Judge, Class 1, in comparison with others, who were his
juniors in service, his claim for promotion as Additional
District and Sessions Judge should be decided not on the
basis of the date on which he was found fit to exercise the
powers of Civil Judge, Class I, but on the basis of the date
of his entry into service. Out of the 41 people whom the
respondent No. 1 had made respondents to his petition, 10
people were found fit in 1962 and one in 1963. Then we have
3 others whose claims were considered on 3-5-66 alongwith
that of the respondent No. 1 and found superior to his.-
There are 8 others whose claims were compared to the
respondents on 12-8-66 and found to be superior to his.
Seventeen others, whose claims were compared to the
respondent’s on 17-4-67 were found to be superior to the
respondent’s and two were found superior to the respondent
on 7-11-67. It would, therefore, be most surprising that a
man who in comparison to all these people was not found fit
to be promoted as Civil Judge, Class 1, should as soon as he
was found fit on 30-11-68 go over the heads of all the other
who. were found superior to him on a number of earlier
occasions. While it is true that the Service Rules do not
provide for Civil Judges being classed as Class I Civil
Judges and Class II Civil Judges, we cannot ignore the fact
that the jurisdiction of the Class II civil Judges is only
upto Rs. 5,000 and that of Class I Civil Judges upto Rs.
10,000. The resolution of the High Court of May 1963 should
not be interpreted literally. If it is done in its proper
background it would be appreciated that what was done was
not to create a new class of Civil Judges called Class I
Civil Judges but to have a list of persons who were
qualified to be posted as
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Class I Civil Judges and to provide that fitness for being
posted as Class I Civil Judges and acting as such for some
time should be considered as a Qualification for promotion
as Additional District and Sessions Judges. We have already
pointed out that the High Court has rightly held that such a
provision cannot be said to be irrelevant to the question of
promotion from among the Civil Judges to Additional District
and Sessions Judges. We are firmly of opinion that in the
face of these circumstances to allow the respondent No. 1 to
be considered for promotion as Additional District and
Sessions Judge in preference to others who had been found
better qualified to be posted as Civil Judges Class I much
earlier merely on the basis of the date of his entry into
service would be a mockery of all canons of fair play and
justice. Indeed, we cannot help feeling that his being
found fit for promotion to Class I Civil Judge on 30-11-68
seems to have been done more as a matter of grace and he
should be more than happy to have got what he got. The fact
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that before 3-5-66 there might have been cases of Civil
Judges being posted as Presiding Judges of Civil Courts
Class I clue to various exigencies of service cannot in any
case affect the merits of this case. As we have already
indicated while it is not impossible it is improbable that
compared to those people who had been posted as Class I
Civil. Judges before 3-5-66 the respondent No. 1 would have
been found better qualified. At any rate we can see no
justification for reopening cases that had been closed more
than 10 years ago at the instance of an officer whose record
of service to say the feast, is not shining one. We see no
merits in his claim. We, therefore, allow the appeal and
set aside the _judgment of the Madhya Pradesh High Court.
There will, however, be no order as to costs.
S.B.W. Appeal allowed.
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