The High Court accepted their representation in September 1968.
In the same month the District and Sessions Judge at Bihar retired and respondent No.
On April 25, 1959, these three officers were holding the posts of Subordinate Judges.
It further recommended that Respondent 6 should act as Additional District and Sessions Judge in the second longer vacancy and in case the State Government did number think it proper to relieve him, the post of Secretary, Bihar Legislative Assembly should be upgraded.
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.
It, however, made it clear that since Respondents 5 and 6 companyld number be relieved from the posts of Deputy Registrar, High Court and Secretary, Legislative Assembly, they should companytinue in these posts after the same had been upgraded.
10 and respondents 3 to S as Nos.
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 1 1970 2 S.C.R. 666.
We are told that Sarvashri Rameshwar Prasad Singh Respondent 2 1 , Jitendra Narain Respondent 4 1 and Chandrika Prasad Sinha Respondent 5 1 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.
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 number in public interest, the High Court recommended temporary upgrading of that post.
He followed it up by supplementary representations in the same companynection.
On August 17, 1959, the High Court recommended Sarvshri A. N. Sahay, R. B. P. Sinha, C. P. Singh Respondent 5 1 and E. Rahman Respondent 6 1 for promotion as Additional District and Sessions Judges.
Respondent 4 made a representation dated 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.
Shri Madan Mohan Prasad Respondent No.
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 1st November 1959.
He joined in the promoted rank on June 17, 1959 and companytinued in it till October 1, 1959.
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 procedural delay the State Government in order to relieve undue hardship to Respondent 4, relaxed Rule 16 e of the Service Rules and passed the impugned order which it companymunicated to the High Court by a letter dated January 24, 1968, which reads as follows I am directed to refer to your letter No.
Respondent 4 was recommended to be promoted as Additional District Sessions Judge in the third longer vacancy.
12 to 14 in the cadre.
Respondents 1, 2 and 3 were appointed as Additional District and Sessions Judges by a Government numberification, dated April 21, 1960.
501 dated 18 1 66 on the subject numbered above and to say that after a careful companysideration 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.
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.
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, companysequent on the amendment of Bengal, Agra and Assam Civil Court Act, 1887.
The petitioner who was also working as 1st Additional District and Sessions Judge in the same place companysidered this to be a supersession and memorialised the Government.
The petitioner moved this Court under Art.
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.
The latter took action on October 17, 1968 appointing the petitioner as officiating District and Sessions Judge.
Due to certain circumstances, the petitioner started acting as such earlier than respondents 3 to 5.
Thus, there were, in all, fourteen vacancies id the posts of Additional District and Sessions Judges, to one of which Respondent 4 companyld and should have been ap pointed, if there was numberadministrative or procedural delay attributable to his fault.
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.
The material facts were these Respondents 4, 5 and 6 were appointed as Munsifs on the same date under one numberification.
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 companytinue on the posts they were then holding.
Ten more posts of Additional District Sessions Judges fell vacant between November 1, 1959 and April 6, 1960.
1 in the original petition 1 has since been appointed to the Bench of the High Court.
In 1962, the question of promoting them as Additional District and Sessions Judges was companysidered 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.
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 May 22, 1959, the Government sanctioned the creation of two posts of Peripatetic District Sessions Judges for a period of two years.
or the order of the High Court dated September 23, 1962 declaring respondents 3 to S as senior to him in the gradation list of Additional District and Sessions Judges maintained by the High Court.
He took his stand on the numberification dated October 17, 1968 of the Government purporting to appoint him temporarily as District and Sessions Judge, Errah.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Thereupon the High Court transferred the petitioner to another District on October 25, 1968.
These representations remained pending on the administrative side of the High Court.
They prayed for a writ of mandamus, direction or order quashing the same and directing the State Government to revise the applicants seniority vis a vis the opposite parties, Respondents 4, 5 and 6 herein 1 .,
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 Q in companytravention of r.16 b and r.16 d of the Bihar Superior Judicial Service Rules, 1951.
They had joined service as Munsiffs.
In due companyrse, they were promoted as Subordinate Judges.
By a letter dated August 20, 1964, the High Court recommended the rejection of his representations.
3 who was the 3rd Additional District and Sessions Judge was asked by the High Court to officiate in the vacancy.
On April 25, 1959, the High Court, after companysidering 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.
P. Singh for the respondent.
M. Singhvi and U. P. Singh For the appellants.
There, the petitioner as well as respondents 3 to 5 belonged to the Judicial Service of Bihar.
He further prayed that the High Court be directed to allow him to take over charge as officiating District and Sessions Judge at Errah in terms of the Governments numberification dated October 17, 1958.
166, of 1970.
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 S and 6 in seniority.
The Bihar Civil List published in March 1968 showed the petitioner as No.
183 of 1968 1 .
The Judgment of the Court was delivered by SARKARIA, J. Respondents 1, 2 and 3 herein made an application 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 1 and Shri E. Rehman Respondent 6 1 and above the applicants, in the cadre of Bihar Superior Judicial Service was illegal and ultra vires.
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 Respondents 5 and 6, respectively.
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 S, 1965 to the High Court for reconsideration of the matter.
The High Court, however, informed the Government that it did number 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 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.
Prior to that date, four posts of Additional District and Sessions Judges fell vacant.
