1958 Supreme(All) 180

IN THE HIGH COURT OF ALLAHABAD
M. C. Desai and V. G. Oak, JJ.
BANARASI DAS KANKAN - Appellant
Versus
UTTAR PRADESH GOVERNMENT - Respondents
Original Suit 1 Of 1955
Decided On : 10/16/1958

A member of the Provincial Judicial Service, who is holding the post of a Civil and Sessions Judge, cannot be said to be the holder of a post borne on the cadre of the Indian Civil Service.

Headnote:

The plaintiff, a retired Civil Judicial Officer, filed a suit against the Government for various declarations with respect to his service and pension, for the recovery of arrears of his pay, and for damages. The main issues were whether the plaintiff was permanently promoted to the post of District and Sessions Judge, whether the post of Civil and Sessions Judge is a Provincial Civil Service post or an Indian Civil Service post, and whether the plaintiff is entitled to get pension under Article 561 of the Civil Service Regulations.

Fact of the Case:

The plaintiff was appointed to the United Provinces Civil Judicial Service in 1917 and was confirmed as Civil Judge in 1936. He was promoted to the selection grade of Civil Judges in 1936 and to the selection grade of Civil Judges with effect from 10th May, 1940. From 1935 to 1938 he officiated as a Civil and Sessions Judge four times. For the fifth time he was appointed as a Civil and Sessions Judge on 5-12-1938. The appointment continued for over three years. He was confirmed as a Civil and Sessions Judge with effect from the 1st of July, 1941. The plaintiff worked as District and Sessions Judge from 24th December, 1941 to the 14th of October, 1942, when he retired from service.

Finding of the Court:

The court found that the plaintiff was not permanently promoted to the post of District and Sessions Judge, that the post of Civil and Sessions Judge is a Provincial Civil Service post and not an Indian Civil Service post, and that the plaintiff is not entitled to get pension under Article 561 of the Civil Service Regulations.

Issues: 1. Is the suit cognizable by this Court? 2. Whether a claim of the kind set up in the plaint is not cognizable by the Civil Court? 3. Whether as Civil and Sessions Judge the plaintiff held a post borne on the cadre of the. C. S. , and whether the G. O. O-868/ii-303-1942 is ultra vires and whether U. O. No. 298 dated 25-7-1932 is still in force and effective. If so, how does the fact affect this case? 4. Whether Article 561 of the Civil Service Regulations or Rule 13 (a) of the Superior Services rules is applicable to plaintiff in the matter of pension? 5. Whether the plaintiff was permanently promoted from the post of a Civil and Sessions Judge to that of a District Judge, and/or was substantively holding the post of a District Judge from 24-12-1941? If so, how is this case affected? 6. Whether the post of the Civil and Sessions Judge is a post belonging to the. C. S. , and is not a post of the Provincial Service? If so, was the plaintiff, as a holder of that post, entitled to the privileges belonging to a post of the. C. S. in matters of pay, promotion and pension? 7. What loss, if any, has the plaintiff suffered as a Civil and Sessions Judge, or as a District judge, in the matters of pay and pension? Is the plaintiff entitled to any amount on either or both of these heads? If so, what amount is he entitled to recover? 8. Has the plaintiff suffered any loss of the kind mentioned in paragraphs 14 and 15 of the plaint? is he entitled to any damages for such loss? If so, what amount, if any, is he entitled to recover? 9. Whether the course adopted in referring the case of the plaintiff to the Federal Public Service commission and subsequent action was wrong, ultra vires and contrary to law? If so, how does the fact affect the case? 10. To what relief, if any, is the plaintiff entitled?

Ratio Decidendi: The court held that the plaintiff was not entitled to the reliefs sought because he was not permanently promoted to the post of District and Sessions Judge, the post of Civil and Sessions Judge is a Provincial Civil Service post and not an Indian Civil Service post, and the plaintiff is not entitled to get pension under Article 561 of the Civil Service Regulations.

Final Decision: The court passed a decree in the plaintiff's favor for a sum of Rs. 1080/- against defendant No. 1. In other respects, the plaintiff's claim was dismissed. The plaintiff was directed to pay costs of defendant No. 2, and three-fourth of the costs of defendant No. 1. The plaintiff was to bear his own costs.