JUDGMENT

KOSHAL, J.:— This appeal by certificate granted under Article 133 (1) (c) of the Constitution of India by the High Court of Gujarat is directed against its judgment dated 2-8-1973 and the sole point requiring decision therein is as to whether an order passed by the President of India under sub-section (1) of Section 29 of The Bombay Reorganisation Act, 1960 (hereinafter referred to as the Act) and determining that the appellant shall on the 1st day of May 1960 cease to be Judge of the High Court of Bombay and become a Judge of the High Court of Gujarat is to be regarded as an order of transfer under Art. 222 (1) of the Constitution.

2. The appellant was appointed an Additional Judge of the High Court of Bombay on June 29, 1959. After the Act came into force the President of India passed the said order (hereinafter referred to as the impugned order) under Section 29 (1) of the Act in respect of the appellant, who was still an Additional Judge of the High Court of Bombay (and 4 other Judges of that Court) so that with effect from the 1st of May, 1960 the appellant became an Additional Judge of the High Court of Gujarat. Claiming that the impugned order amounts to an order of transfer within the meaning of Article 222 (1) of the Constitution the appellant brought a petition under Article 226 thereof with the prayer that the Governments of the Union of India and the State of Gujarat be directed to pay him an allowance to which, according to him he had become entitled under Article 222 (2) of the Constitution with effect from October, 1963. Another prayer was also made in the petition but therewith we are no longer concerned as the same was withdrawn at a later stage.

3. In order to appreciate the contention raised by the appellant before a learned single Judge of the Gujarat High Court and again in the Letters Patent Appeal before the Division Bench which passed the judgment now under appeal, it is necessary to set out the provisions of clause (1) of Article 217 and those of Article 22 of the Constitution :

"217 (1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in Article 224, and in any other case, until he attains the age of sixty-two years:

"Provided that-

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of Article 124 for the removal of a Judge of the SC;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the SC or by his being transferred by the President to any other High Court within the territory of India."

222 (1) The President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.

(2) When a Judge has been or is so transferred, he shall, during the period he services, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix."

According to the appellants contentions before the High Court the only source of power conferred on the President to effect the transfer of a Judge from one High Court to another was Article 222 read with Article 217 (1) (c) and the impugned order which was an order flowing from that source of power, therefor, amounted to an order of transfer even though it was passed under Section 29 (1) of the Act which runs thus :

"(1) Such of the Judges of the High Court of Bombay holding offic