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1971 Supreme(MP) 119
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
K.L. PANDEY AND A.P. SEN, JJ.
B.A Nigam, Civil Judge (Class I), Sidhi, District Sidhi, M.P.
Vs.
Registrar of the High Court of Madhya Pradesh, Jabalpur and others
M.P. No. 537 of 1969
Decided On: 18.08.1971
For Appellant/Petitioner/Plaintiff: R.K. Verma, B.M. Lal and A.P. Tare
For Respondents/Defendant:K.A. Chitaley For Respondents Nos. 1, 2 Y.S. Dharmadhikari For Respondent No. 9 and J.S. Verma, For Respondents Nos. 12 and 14
Headnote:(1) Constitution of India - Arts. 16, (1) & 14 - right of civil servants for promotion to higher grade - 'equality of opportunity' under Article 16 (1) - scope of - includes matters relating to promotion - equality of opportunity is not right to such promotion.
While Article 14 generally provides for equality before the law and equal protection of laws, Article 16 (1) specifically refers to "equality of opportunity" in "matters relating to employment or appointment to any office under the State". The expression matters relating to employment or appointment in any office" is not restricted to initial appointment only but is wide enough to embrace within its sweep all matters relating to employment to any office under the State, both prior, and subsequent to the appointment including promotion to a higher grade. But Article 16 (1) does not confer equality of right to such promotion though it does guarantee equality of opportunity to claim, and be considered for it.
However, this fundamental right is restricted to equality of opportunity for promotion and a civil servant of one grade cannot claim promotion to a post in higher grade as a matter of right. The fundamental right of equality of opportunity for promotion is, however, available only when the promotion is made from the same source or cadre. AIR 1967 SC 1427, AIR 1967 SC 839, AIR 1963 SC 913 & AIR 1968 SC 113 & AIR 1962 SC 1704, AIR 1962 SC 1139 and AIR 1962 SC 36 referred to. [Paras 6 and 7
(2) Constitution of India - Arts. 16 (1) & 14 - rules for qualification for promotion - when not inconsistent with principle of equality of opportunity-reasonable principles - uniform application may be improvised.
The principle of equality of opportunity of promotion is not inconsistent with rules or other provisions relating to qualifications for such promotion so long as those qualifications have a rational relation to the nature of work on the post to which promotion is to be made. But, even, where there are no rules incorporating the principles of selection on the basis of which the suitability of an incumbent may be judged for promotion, the authority concerned is not incompetent to improvise for that purpose a reasonable principle of uniform application. Articles 14 and 16 are not violated if that principle is uniformly applied to all eligible cases and the claim of each candidate for promotion is duly considered before any promotion is made. AIR 1968 SC 1910 relied on. [Para 8
(3) Constitution of India - Art. 233 (1) - Civil Judge making representation to the High Court about infringement of fundamental right in matter of promotion-High Court should consider the representation and forward it to the State Government without undue delay.
When a Civil Judge makes a representation complaining of disregard of his fundamental right in the matter of promotion to a post of Additional District and Sessions Judge it is right and proper that the High Court should consider it for whatever it is worth and then forward it with its views to the State Government, for under Art. 233 (1) of the Constitution the State Government is the appointing authority of all District and Sessions Judges including Additional District and Sessions Judges. 1969 (3) SCC 505 referred to. [Para 11
(4) Constitution of India - Arts. 162 and 16 (1) and Schedule VII, List II, Entry 41-cadres of Civil Judges-cannot be created under the M.P. Civil Courts Act, 1958-High Court has no power to create such cadres-the power vests in the State Government-promotion on basis of such cadres created by the High Court-fundamental right violated.
Under the M.P. Civil Courts Act, 1958, Civil Judge, Class I, exercises larger powers and has a wider jurisdiction but that Act does not, and was not enacted to create two separate cadres of Civil Judge, Class I and Class II. Computation of seniority of a Civil Judge from the date he first began to exercise the powers of a Civil Judge, Class I, cannot be Justified on the ground that there was a separate cadre of Civil Judge, Class I. [Para 14
The seniority given to each Civil Judge from the date he commenced to exercise the power of Civil Judge, Class I, was thus attributable to the fact that the High Court, in fact and effect, created a new cadre of Civil Judges, Class I, treated the Civil Judges included in that list of such Judges as having been promoted to that cadre and considered only the names of Civil Judges in the new cadre for further promotion in the order in which their names appeared in the list. [Para 17
Under Article 162 read with Schedule VII, List II, Entry 41 State Public Services" of the Constitution, the exclusive power to constitute a cadre or cadres for any branch of the public services of the State vests in the State Government. For constituting such cadres, the State Government is not obliged to frame rules under the proviso to Article 309 of the Constitution and it may do so by an executive act : AIR 1966 SC 1942 referred to.
In the absence of such a cadre, the omission to consider, after the petitioner was allowed to exercise the powers of Civil Judge, Class I, on November, 30, 1968, his claims for promotion to the cadre of Additional District and Sessions Judge on the basis of his seniority in the cadre of Civil Judges, amounts to a denial of his fundamental right of equality of opportunity under Art. 16 (1) of the Constitution. [Para 18
(5) Constitution of India - Arts. 226 and 16 (i) - several Civil Judges junior to petitioner promoted-case of petitioner not considered in violation of Article 16 (1)-quashing of orders of promotion no necessary-State Government should be directed to perform its duties and give the petitioner consequential benefits. [Paras 19 and 21
K.L. Pandey, J.
The Petitioner, who is a Civil Judge working in the Judicial Department of this State, has called in question the promotion of the Respondents, 3 to 43 to posts of Additional District and Sessions Judges on the ground that, being Civil Judges junior to him in the cadre, they were promoted in circumstances in which his claim for such promotion was not considered.
The material facts giving rise to this petition are, for the most part, not in contest and may be shortly stated. In the Judicial Department of the new State of Madhya Pradesh, there are only three cadres, the cadre of District and Sessions Judges, the cadre of Additional District and Sessions Judges and the cadre of Civil Judges. While recruitment to the cadres of District and Sessions Judges and the Additional District and Sessions Judges may be sometimes made by direct recruitment in accordance with rules made for the purpose, usually posts in the cadre of Additional District Judges are filled by promotion from Judges holding posts in the next lower cadre and the posts in the cadre of District and Sessions Judges are filled by promotion from amongst Additional District and Sessions Judges .
The Petitioner was a Civil Judge belonging to the Madhya Bharat region and, upon the formation of the new State of Madhya Pradesh, he was absorbed as a Civil Judge in this State and, in the Final Gradation List published in the M. P. Rajpatra dated September 21, 1961, he was placed for purposes of seniority at No. 189 in the list of Civil Judges of the State. In making the list in order of seniority, the fact that certain Civil Judges were exercising powers of Civil Judge, Class I, was not regarded as of any significance or consequence. Even so, from the time when the M. P. Civil Courts Act, 1958, came into force, some period of service of Civil Judge, during which he exercised powers of Civil Judge, Class I, however small, was considered a necessary qualification for promotion to a post of Additional District and Sessions Judge. Thereafter, on or about May 3, 1968, a new principle was introduced for promotion to posts of Additional District and Sessions Judges. That principle was that, for such promotion, his seniority was to be counted from the date when he first exercised the powers of Civil Judge, Class I. Finally, this was formally accepted and adopted on October 1, 1969 by the following resolution passed in a meeting of the Court:
Resolved that 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 Additional District and Sessions Judges in order of their seniority.
On the various grounds set out in the petition, the Petitioner averred that he was repeatedly denied equality of opportunity in the matter of promotion to a post in the cadre of the Additional District and Sessions Judges in that his claim to such promotion was not even considered when his juniors were promoted to such posts and this treatment accorded to him infringed the fundamental right guaranteed under Articles 14 and 16(1) of the Constitution. These grounds and the submission made on the basis thereof to the effect that there was a denial to the Petitioner of such equality of opportunity were controverted in the returns filed on behalf of the High Court by the Registrar, by the State of Madhya Pradesh and by one of the Additional District Judges. It may be mentioned at this stage that, in this case, all the concerned Additional Judges have been impleaded as party Respondents.
At the stage of arguments, only two points were canvassed for acceptance in support of the claim made in this petition. In order to appreciate them, it is necessary to state that promotion from amongst Civil Judges to the posts in the cadre of Additional District and Sessions Judges was made after considering the case of each Civil Judge on the principle of seniority-cum-merit. That me
