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HIGH COURT OF MADHYA PRADESH
G.P. Singh and C.P. Sen, JJ.
M.A. Qureshi
v.
State of M.P. and others
M.P. No. 102 of 1978
Decided On : 20-6-1978
(2) States Reorganisation Act, 1956 - Ss. 119 & 120 - Rules Regulating Recruitment and Condition of Services of High Court Staff, 1937 - territorial changes in the operation of law - can be made by a Competent Legislature - the principle does not apply to 1937 Rules - these rules continue to operate.
(3) High Court - Rules Regulating Recruitment and Conditions of Service of High Court Staff, 1937 - are still operative.
The Chief Justice of the High Court of Judicature at Nagpur made rules in exercise of the powers conferred by sub-section (2)(b) of S. 241 of the Government of India Act 1935. These rules were made on 17th June 1937 for regulating the recruitment and conditions of service of the staff attached to the High Court. The rules came into force retrospectively from 1st April, 1937.
The Central Provinces became the erstwhile State of Madhya Pradesh after coming into force of the Constitution on 26th January 1950. From the same date, the High Court of Judicature at Nagpur became the High Court of the State of Madhya Pradesh. The rules made in 1937 being the “law in force” immediately before the commencement of the Constitution, continued to be in force under Art. 372 of the Constitution. [Para 13
It is true that States Reorganisation Act does not effect any change in the territorial operation of laws which were in force before the coming into force of the Act or formation of the States under the Act. Territorial changes in the operation of the laws can be made only by a competent Legislature as provided in section 119 and not by adaptation under section 120 or by construction under section 121.
But the aforesaid principle has no application for laws which apply to a particular institution such as the High Court and to the staff at ached to such institution. The rules made by the Chief Justice in 1937 have no specific territorial operation. These rules regulate the recruitment and conditions of service of the staff attached to the High Court. The operation of the rules is not with reference to any particular territory but to the staff attached to the High Court. The rules were no doubt made at a time when the High Court used to sit at Nagpur, but the continuity of the applicability of the rules is not broken by shifting of the High Court The High Court of the new State of Madhya Pradesh is the same High Court which used to sit at Nagpur. The operation of the rules being with reference to the High Court and not with reference to any particular territory, section 119 of the States Reorganisation Act has no application. Just as the Letters Patent of the High Court of Judicature at Nagpur and the rules of procedure made by it continue to apply to the High Court of Madhya Pradesh, similarly the rules made by the Chief Justice in 1937 regulating the recruitment and conditions of services of the staff attached to the High Court continue to be in operation. [Para 14
(4) Constitution of India - Arts. 12, 14 & 16 - fundamental rights under articles 14 and 16 - available against administrative orders of the Chief Justice and the High Court.
The fundamental rights guaranteed under Articles 14 and 16 are available against the State. The "State" has, however, an extended definition for purposes of Part II of the Constitution which incorporate the fundamental rights. Article 12 in this part defines the "State" to include the Government and Parliament of India and the Government and the Legislature of the each of the States and all local or other authorities within the territory of India or under the control of the Government of India. The Chief Justice of the High Court falls within the description of "other authorities within the territory of India."
The High Court and the Chief Justice, while exercising administrative powers conferred by the Constitution or other laws, are authorities within the meaning of Article 12. The petitioner are, therefore, entitled to invoke Arts 14 and 16 is support of these petitions. [Para 15
(5) Constitution of India - Arts. 14 & 16 - non-consideration of eligible-persons-offends Arts. 14 and 16. [Para 18
(6) High Court Staff Rules of 1937 - R. 16 - merit tempered by seniority-connotation of-eligible persons not considered-effect.
The words "lower division to upper division" as they occur in Rule 16 refer to the categories of lower division clerks and upper division clerks. The expression "higher posts" in Rule 16 has obviously reference to Superintendents now called as Section. Officers and Assistant Superintendents, now called as Assistants or U.D.C's Grade I. The promotion to the higher posts, according to the rule is to be made "strictly on merit tempered by seniority", The principle of "merit tempered by seniority" or merit-cum seniority means that promotion is to be made primarily on merit and seniority is to be regarded when merit is equal. The principle requires that all eligible persons must be considered for promotion irrespective of their seniority.
Non-consideration of eligible persons will offend their rights under Articles 14 and 16 of the Constitution and will make the promotion invalid. [Para 18
(7) Constitution of India - Art 226 - delay-when no bar.
The preliminary objection is that the petitions suffer from delay. Misc. Petition No. 102 of 1978 was filed on 27th February 1978; Misc. Petition No. 137 of 1978 was filed on 17th March 1978 and Misc. Petition No. 222 of 1978 was filed on 15th April 1978. The formal order impugned in these petitions was passed on 1st July 1977. Thus all the petitions have been filed within ten and half months. The petitions, therefore, cannot be said to be delayed. The former Chief Justice retired on 28th February 1978. Presumably, the petitioners did not file the petitions earlier because they did not wish to incur the displeasure of the then Chief Justice. That explains the delay if it may be said that there is any delay. The petitions cannot be dismissed on the ground of laches or delay. [Para 26
(8) Constitution of India - Art. 226 - misjoinder of parties-defect not fatal. [Para 26
(9) Constitution of India - Arts. 226 - matter discretionary - writ cannot be issued.
The Chief Justice may, well consider whether it would be advisable to revise the rules to adapt them to the present situation and to clear obscurities. The question of revision of the rules or framing of new rules is, however, a matter solely within the discretion of the Chief Justice and no writ or direction can be issued to him in that matter. [Para 27
G. P. Singh, J.-1. This order shall also dispose of Misc. Petitions Nos. 222 of 1978 and 137 of 1978.
2. The petitioners in all these petitions are employed in the High Court Registry at Jabalpur. In all these petitions certain promotions made by the former Chief Justice Shri Shivdayal Parmeshwar Dayal Shrivastava have been challenged The Chief Justice passed the impugned order on the file on 18th June 1977 and formal order was issued by the Registrar on 1st July 1977. By this order, M.P. Verma, who is respondent No. 4 in all these petitions, was promoted as Section Officer. His promotion has been challenged in all the petitions. By the same order, V.N. Dumbhare was also promoted as Section Officer Dumbhare’s promotion has been challenged in Misc. Petition No 137 of 1978 where in he has been joined as respondent No. 5. By the same order, A.C. Mehta was promoted as Examiner, ILR Branch, Mehta has been joined as respondent in Misc. Petitions Nos. 102 and 137 of 1978, but his promotion has only been challenged in Misc. Petition No. 137 of 1978.
3. Before coming to the points in controversy in these petitions, it is necessary to refer to the service record of the parties involved in these petitions.
4. M.P. Verma started his career as Lower Division Clerk in the establishment of the Court of the District Judge, Chhindwara. In 1959 he was, selected for appointment as officiating L.D.C. in the High Court Registry at Jabalpur. On 30th October 1968 he was promoted as U.D.C. Grade II. On 25th August 1970 he was appointed as Translator. On 21st June 1974 he was confirmed as Translator. On 22nd June 1974 he was appointed as Stamp Reporter. He was confirmed on that post on 19th April 1977. By the impugned order dated 1st July 1977, he was promoted as Section Officer. An order was issued on 5th September 1977 confirming Vearm as Section Officer. There is some controversy about this order whether there was really any order of confirmation passed by the Chief Justice or whether the order of confirmation was issued under a mistake.
5. A.C. Mehta started his career in 1951 as U.D.C. Grade II in the Court of the Judicial Commissioner, Bhopal. He was absorbed as U.D.C. Grade II in the High Court establishment after the reorganisation in 1956. From 1st August 1962 he was promoted as U.D.C. Grade 1. He was confirmed on that post on 14th May 1964. By the impugned order dated 1st July 1977, he was appointed as Examiner, ILR. He accepted this promotion under protest. His reply in the return also states that he ought to have been considered for the post of Section Officer. He was at No. 4 is the order of seniority of U.D.C's Grade I on 1st July 1977.
6. V.N. Dumbhare was a confirmed U.D.C. Grade I and was at No. 3 in the order of seniority on 1st July 1977. The two persons who were senior to him were due to retire on 1st September 1977 and 1st August 1977. Dumbhare was, therefore, promoted on the basis of his seniority as Section Officer by the order dated 1st July 1977. As already noticed A.C. Mehta was next in the order of seniority in the cadre of U.D.C's Grade I.
7. M.A. Qureshi, who is petitioner in Misc. Petition No. 102 of 1978, started his career in 1951 as U.D.C. Grade II in the Court of the Judicial Commissioner, Bhopal. From 30th October 1968 he was promoted as U.D.C Grade 1. On 1st February 1971 he was confirmed on that post. By order dated 1st July 1977, he was appointed as officiating Stamp Reporter. Qureshi was next to A.C. Mehta in the order of seniority in the Cadre of U.D.C's. Grade I.
8. S.C. Vinze, who is a petitioner in Misc. Petition No. 222 of 1978, started his career in 1946 as LDC in the High Court of Judicature at Nagpur. He was appointed temporarily as U.D.C. Grade II in 1960. He was promoted as U.D.C. Grade I on 31st December 1969 and was confirmed on that post on 1st February, 1971.
9. The petitioners in Misc. Petition No. 137 of 1978, namely, Padmakar Shastri, Prem Narayan Verma and Ramesh Gupta, started their careers as Tr
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