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Judgment
Shivaraj Patil, J.—The petitioners who are Court Officers in the establishment of this Court have filed this writ petition praying for issue of a
writ of certiorarified mandamus by calling for the records of the first respondent relating to Notification No. 19/1997 issued in Roc. No. 29/97
Con. B2 dated 19.3.1997, to quash the same far it relates to the second respondent, and directing the first respondent to consider the case of the
petitioners for promotion to the post of Sub Assistant Registrar (Statistics) strictly in accordance with the Madras High court Service Rules, and
pass such further or other orders as deemed fit by this Court.
Briefly stated, the case of the petitioners, as can be gathered from the affidavit filed in support of the writ petition, are the following:
The petitioners are Selection Grade Court Officers working under the Control of the first respondent; they have put in more than 30 years of
service having joined as Assistants. One Thiru. A.D. Sankar retired from the post of Sub-Assistant Registrar (Statistics) on 1.3.1997. Thus the
post of Sub-Assistant Registrar (Statistics) fell vacant; the said post is a selection post as per Clause (b) of category 6 of Division I of Madras
High Court Service Rules (for short, ''the Rules''); the Rule 6 prescribed qualification for holding the said post. Rule 14 relates to promotion.
According to Rule 14 the promotion to the post of Sub-Assistant Registrar shall be made from category 3 of Division II viz., (a) Appeal
Examiners, (b) Court Officers (c) Section Officers, and (d) Deputy Sheriff. As per the proviso to the said rule members of merit and ability in
categories 2 and 4 of Division II may also be considered for promotion; Categories 2 and 4 of Division I refer to Interpreters and Personal
Assistant to the Honourable Judges; The petitioners were moved to selection grade Court Officers category on their satisfying the requirement of
Rule 36 (b)(i) of the Rules on the grounds of merit and ability, having considered seniority where merit and ability were approximately equal. They
were fully qualified and entitled for equal treatment in the matter of promotion to the post of Sub-Assistant Registrar.
However, the then Honourable Chief Justice was pleased to promote the second respondent a far junior having entered into service only in
1988 as P.A. to the Honourable Judges, and who is not qualified having not passed the Translation Test as required under Rule 6 (b)(2). Non-
consideration of the petitioners for promotion to the post of sub-Assistant Registrar has prejudiced the rights of the petitioners. The first respondent
did not place the Division Bench Judgments of this Court in W.P. Nos. 8362, 14717 and 14419 of 1993 an Writ Appeal Nos. 934 and 1378 of
1993 along with the claim of the second respondent for promotion, before the Honourable Chief Justice. The second respondent gave an
application on the eve of the retirement of the then Honourable Chief Justice and he was promoted on 19.3.1997 by the impugned order as the
second respondent was in close proximity to the Honourable Chief Justice having worked as Personal Assistant.
According to the petitioners they are seniors and are carrying higher scale of pay in the feeder category i.e., Rs. 2500-4500 and they ought to
have been considered for promotion. Second respondent had just completed eight years of service. Exclusion of the petitioners from consideration
for promotion to the post of Sub-Assistant Registrar (Statistics) was not right. Hence the writ petition was filed for the relief as stated above.
The first respondent has filed a counter admitting that the post of Sub-Assistant Registrar (Statistics) comes under category 6 of Division I. In
paragraph 2 of the counter-affidavit it is stated thus:
I submit that the post of Sub-Assistant Registrar (Statistics) was held by Thiru. A.D. Shankar till 28.2.1997. The Post of the Sub Assistant
Registrar (Stat.) comes under the Category 6 of Division I of the Madras High Court Service. The post is to be filled up by promotion. According
to Rule 6 (b)(2) of the Madras High Court Service Rules, no member of the Service shall be eligible for promotion to the category unless he holds
the B.A. or B.Sc., or B.Com., or B.A. (Hons.) or B.Sc. (Hons) and B.Com (Hons) Degree and unless he is qualified in the Civil and Criminal
Judicial Tests Parts I, II and III for the members of the Judicial Department, the translation test and the Account Test for the Subordinate Officers
Part-I. According to Rule 14 of the aforesaid Rules promotion to the category of Sub-Assistant to the category of Sub-Assistant Registrar shall be
from category 3 of Division II (i.e., Court Officers/Section Officers/Appeal Examiners) Provided that members of merit and ability in category 2 of
Division II (i.e., Interpreters) and in category 4 of Division I (i.e. P.A. to Hon''ble Judges) may be considered.
It is further submitted that the first respondent prepared an office note submitting the above, said facts along with a list of 10 Senior most Court
Officers/Section Officers/Appeal Examiners, a list of P. As. to Honourable Judges, and list of Interpreters, containing the name, qualification, date
of birth, date of appointment to the post, and the department tests passed. In the counter affidavit it is further stated that selection grade is provided
for the individual holding the post with the aforesaid scale. The categories of Court Officers/Section Officers/Appeal Examiners, P.A. to the
Honourable Judges and Interpreters carry one and the same scale of pay of Rs. 2,000-3,500. Selection grade pay does not apply to the whole
category.
It is however stated that passing of all departmental tests alone does not confer any right on the petitioners for giving promotion automatically for
the post of Sub-Assistant Registrar. It is denied that the second respondent was considered for promotion having regard to close proximity as
alleged by the petitioners. The proceedings of the Honourable Chief Justice extracted in paragraph 4 of the counter affidavit reveals that His
Lordship intended to promote a person from the category of P. As. to the Honourable Judges as Sub Assistant Registrar (Statistics). His Lordship
excluded the category of Court Officers/Section Officer/Appeal Examiners this time for consideration, for the reasons stated in the said
proceedings. The date of entry into service is not the criterion for consideration for promotion. Seniority may come into play when the merit and
ability of the persons to be considered for promotion are equal. Moreover the seniority between the petitioners and the second respondent cannot
be taken into account as it was decided to give promotion from the category of P. As. to the Hon''ble Judges.
It is denied that any representation was submitted by the second respondent on the eve of retirement of the then Honourable Chief Justice. It is
further stated that the second respondent possesses the basic qualifications i.e., basic degree and Law degree, and has passed other tests, but has
not, passed the Translation test. The matter of possessing basic qualification and special qualification in respect of the members whose names were
to be considered were furnished to the Honourable Chief Justice. The Honourable Chief Justice after considering all aspects promoted the second
respondent. The Honourable Chief Justice has powers under Rule 23 of the Rules to deal with the case of any member of the service or any
person to be appointed to the service in such manner as may appear to him just and equitable. It is implied that the Honourable Chief Justice had
the powers to promote the second respondent when his promotion was made on the basis of merit and ability even though the second respondent
had not passed the translation test alone. It is also submitted that the Honourable Chief Justice considered the relative merits of all eligible persons
found in the list. Respondent No. 1 has further stated in the counter-affidavit that the first petitioner Anand Swaroop, who has sworn to the
affidavit filed in support of the writ petition on behalf of all the petitioners, has retired voluntarily on 24.6.1997. Under the circumstances the writ
petition may be dismissed.
Second respondent also has filed a counter affidavit, contending that all his qualifications were taken into consideration before promoting him to
the post of Sub-Assistant Registrar by the then Honourable Chief Justice. The Honourable Chief Justice is empowered to relax the rules, and even
without relaxing the same the Honourable Chief Justice has got powers under Rule 23 to appoint any person to any post if the candidate is fit to be
appointed. The said rule confers absolute powers on the Honourable Chief Justice. Hence when the appointment or promotion is made by the
Honourable Chief Justice it is implied that he has perused all the materials, considered all the aspect and then passed the orders. It is further
submitted that relaxation need not be expressed, and it can even be implied. Rule 23 is not subject to Rule14 or Rule 15. It is also submitted that
the writ petitioners have made false averments in their affidavit viz., in paragraph 9, and as such they are liable to be prosecuted. The first petitioner
can no more continue the petition as he was already relieved from the High Court services on voluntary retirement on 24.6.1997. Hence the writ
petition may be dismissed.
Shri N. Sankarasubramaniam, learned Counsel for the petitioners contended that,
(i) the petitioners are seniors to the second respondent, possessing all the qualifications required for consideration for promotion to the post of
Sub-Assistant Registrar; the promotion given to the second respondent who is not qualified, either excluding the petitioners from consideration, or
overlooking them for promotion, although they possessed all the qualifications, is bad in law;
(ii) there is no combined seniority list maintained relating to the feeder categories; hence the promotion given to the second respondent cannot be
upheld;
(iii) the second respondent, working as P.A. to the then Honourable Chief Justice, having had the advantage of being in close proximity, was able
to get an order of promotion, but whereas the other personal Assistant attached to the other Honourable Judges had no opportunity for
consideration on the basis of merit and ability as they could not work as personal Assistant to the Honourable Chief Justice; even among the
personal assistants to the Honourable Judges, many of them were qualified as second respondent and even they possess all the necessary
qualifications for promotion, this being the position the impugned order is untenable. According to the learned Counsel there was malice in law
also;
(iv) Admittedly the second respondent had not passed the translation test which was one of the necessary requirements for consideration for
promotion to the post of Sub-Assistant Registrar; assuming the Honourable Chief Justice had the power to relax the qualification in this regard, as
a matter of fact, there was no order of relaxation and that order of relaxation cannot be implied having regard to the records and the counter
affidavit filed by respondent No. 1; as such the impugned order is illegal. The learned Counsel also cited some decisions in support of his
submissions.
Per contra, Mr. R. Viduthalai, the learned Additional Government Pleader representing the respondent No. 1 made submissions justifying the
impugned order. He submitted the respondent No. 2 is a Post Graduate, having Degree also. He was promoted considering his merit and ability;
the petitioner No. 1 took voluntary retirement and retired on 24.6.1997; petitioner No. 2 with B. Sc., qualification is on deputation with Central
Administrative Tribunal; petitioner No. 3 having B.A. degree was appointed on 17.12.1988 and was junior to second respondent; petitioner No. 4
is having M.A. qualification but does not hold Law Degree; petitioner No. 5 is only S.S.L.C., petitioner No. 6 is only a graduate; and petitioner
No. 7 has academic qualification of B.Sc., B.L. In these circumstances it cannot be said that the promotion of respondent No. 2 is either bad or
unjustified; Further the honourable Chief Justice had ample power to promote the respondent No. 2 having regard to Rule 23 of the Rules; Rule 23
is not subject to either Rule 6 or Rule 14; in this regard he drew our attention to paragraphs 3, 7 and 10 of the counter affidavit. He submitted that
this Court exercising jurisdiction under Article 226 of the Constitution may not view that case on hand as one under appeal. He relied on the
decision of the Supreme Court in the case of Mrs. Anil Katiyar v. Union of India and Ors. (1996) 8 Sup 627.
Mr. R. Sing ;velu, learned Counsel for respondent No. 2, in the first place, submitted that the writ petition itself is not maintainable because
petitioner No. 1 P.V. Ananda Swaroop has filed the affidavit in support of the writ petition for himself and on behalf of other petitioners; and now
that he has retired, and none of the remaining petitioners have filed separate supporting affidavits; certain statements made by the petitioners is the
affidavit filed in support of the writ petition relating to the close proximity of second respondent to the then Honourable Chief Justice are neither
correct nor justified. Such statements made against the Honourable Chief Justice a High Constitutional functionary, should be viewed seriously and
appropriate action should be taken. The learned Counsel further submitted that passing of translation test was not the requirement when P. As.
were appointed including second respondent; once they were appointed as P. As. coming in category 4 of Division II, second respondent was
eligible for promotion although he did not pass the transaction test, particularly having regard to the proviso to Rule 6 concerning merit and ability.
He also submitted that Rules 6, 14 and 23 must be read harmoniously. The powers of Honourable Chief Justice under Rule 23 are not fettered.
Ever otherwise no relaxation was required. Lastly he submitted that the promotion given to second respondent can be maintained by giving some
time to pass the translation test. The learned Counsel cited some authorities in support of his submissions.
We have anxiously and carefully considered the submissions made by the learned Counsel for the parties.
In order to appreciate the respective contentions of the parties on their relative merits. We consider it appropriate to extract the proceedings of
the Honourable Chief Justice dated 19.3.1997 which are as follows:
Thiru K. Muthukumaraswamy, Personal Assistant to the Honourable Judges, High Court, Madras had been functioning in the post of Personal
Assistant to the Hon''ble the Chief Justice--a designated post, with a special pay of Rs. 200 p.m. for the last two years.
I found him to be workaholic. He used to attend work in the residence and office as well, right from early morning till upto late hours in the night,
i.e., 7.00 A.M. to 10.00 P.M. every day, with a happy frame of mind and alertness.
This apart, his devotion to duty, coupled with loyalty and sincerity deserved commendation.
Top of all, his merit and ability is demonstrably superior, over head and shoulders, to many a person, in the feeder category for promotion to the
post of Sub-Assistant Registrar.
Further, on many an occasion, promotion to the category of Sub Assistant Registrar had been made from the category of Court Officers and
consequently out of eight Sub Assistant Registrars, 7 are from the category of Court officers and only one is from the category of Personal
Assistant to the Honourable Judges. Therefore, I rather feel, this time, personnel from the category of Personal Assistant to the Honourable Judges
is considered for promotion to the category of Sub Assistant Registrar.
Taking all these factors into consideration. I am of the view that Mr. K. Muthukumaraswami, Personal Assistant to the Hon''ble the Chief Justice,
who possess superior merit and ability than others, deserves to be promoted as Sub Assistant Registrar in one vacancy shown in the category of
the Sub Assistant Registrar. Therefore, he is promoted accordingly as Sub Assistant Registrar.
On the basis of these proceedings the impugned Notification No. 19/97 in R.O.C. No. 29/97 Con. B2 dated 19.3.1997 was issued promoting the
second respondent, along with the promotions of few others, which is called in question in this writ petition.
It is not disputed that promotion to the post of Sub Assistant Registrar is by selection from category 3 of Division II, and also from categories
2 and 4 of Division II on the basis of merit and ability, in view of Rule 14, including the proviso in the said Rule. Rule 6 speaks of the required
qualifications for such promotion, and Rule 23 gives power to the Chief Justice to deal with the case of any member of the service or any person to
be appointed to the service. Hence we consider it useful to reproduce Rules 6, 14 and 23 of the Rules so far they are relevant for the purpose of
deciding the case on hand.
Rule 6 (b): No person shall be eligible for appointment to the service in categories 1 to 5 of Division I, unless he�
(1)...
(2)...
No member of the service shall be eligible for promotion to category 6 of Division I, unless he holds the B.A., or B.Sc., or B.Com., or B.A.,
(Honours) or B. Sc. (Honours) or B. Com (Honours) degree of a University in the Indian Union and unless he is qualified in the Civil and Criminal
Judicial Tests, Parts I, II and III for members of the Judicial Department, the Translation Test and the Account Test for Subordinate Officers, Part
I.
Rule 14. Promotion - All promotions shall be made by the appointing authority.
Promotion to category 6 in Division I shall be from Category 3 of Division II, Provided that members of merit and ability in categories 2 and 4 of
Division II may also be considered.
Category 3 of Division II consists of (a) Appeal Examiners, (b) Court Officers, (c) Section Officers and (d) Deputy Sheriff. Categories 2 and 4 of
Division II refer to Interpreters and Personal Assistants to the Honourable Judges. It is not disputed that the petitioners come category 3 of
Division II, and respondent No. 2 comes under category 4 of Division II.
Rule 23 states thus:
Nothing in these rules shall be construed to limit or abridge the power of the Chief Justice to deal with the case of any member of the service or
any person to be appointed to the service in such manner as may appear to him to be just or equitable....
Plain reading of Rules 6 prescribing qualifications for eligibility for promotion to the post of Sub Assistant Registrar (to category 6 of Division I)
shows that passing of translation test is a must, as the Rule states that no member of the service shall be eligible for promotion unless the prescribed
qualifications are possessed as prescribed under the said Rule. Admittedly the second respondent has not passed the translation test, as such he
was not eligible for promotion. Whether he could be promoted relaxing the rule, and whether there was relaxation of the rule, will be separately
examined hereinafter.
Having regard to Rule 14 relating to promotion, the petitioners being Court Officers in the selection grade, are in category 3 of Division II.
They were eligible for consideration for promotion to category 6 of Division I i.e., Sub Assistant Registrar. Rule 14 also provided for consideration
of candidates for promotion to category 6 of Division I from categories 2, and 4 of Division II based on merit and ability. Respondent No. 2
coming under category 4 of Division II could also be considered for promotion based on merit and ability. But this provision cannot be read either
diluting, exempting, or relaxing the mandate of Rule 6 as regards the requisite qualification for promotion. The provision made for consideration of
candidates from category 2 and 4 of Division II for promotion to category 6 of Division I is an enabling provision based on merit and ability. This
enabling provision, in our view, cannot have the overriding, or negativing effect on Rule 6 of the Rules relating to prescribing necessary
qualifications.
Rule 23 no doubt, in clear terms, states that nothing contained in the rules shall be construed to limit or abridge the power of the Chief Justice
to deal with the case of any member of the service or any person to be appointed to the service in such manner as may appear to him to be just or
equitable. Even if it is assumed that the Honourable Chief Justice has the power to promote the respondent No. 2 relaxing the requirements of Rule
6, it could be done by making a specific order of relaxing of passing the translation test by respondent No. 2. In the absence of any such order
made under Rule 23 by the Honourable Chief Justice exercising his powers, the existing his powers, the existence of Rule 6 relating to the required
qualifications for eligibility for promotion to the post of Sub Assistant Registrar cannot be overlooked or ignored.
In the counter-affidavit filed by respondent No. 1, it is not stated that the Honourable Chief Justice exercising power under Rule 23 passed
order of relaxation so as to relax the requirement of passing the translation test by respondent No. 2, Except stating that under Rule 23 Honourable
the Chief Justice has power to deal with the case of any member of the service or any person to be appointed to the service in such manner as may
appear to him just and equitable, even though we specifically asked the learned Additional Government Pleader as to whether there is any specific
order of the Honourable Chief Justice exercising power under Rule 23, he was not in a position to point to out or place before as any such orders.
The argument of the learned Counsel for the respondent No. 2 in this regard was that relaxation could be implied. We find considerable
difficulty in accepting this argument. From the records and the material placed before us, it cannot be said that any where it is pointed out that the
second respondent did not possess the requisite qualifications as per Rule 6 so as to make him ineligible for consideration for promotion. There is
nothing to show that the Honourable Chief Justice was specifically made known or was aware of want of qualification of respondent No. 2 viz.,
passing of the translation test. To us it appears this aspect was not at all brought to the notice of the then Honourable Chief Justice by the Registry.
This being the position there is no scope to contend that there was implied relaxation of the qualification.
Further having taken the view that possession the qualifications prescribed under Rule 6 are mandatory to consider a candidate for promotion
to the post of Sub Assistant Registrar, it is not possible to take a view that by implication the said rule could be relaxed. If a deviation was to be
made or exemption was to be given in regard to necessary qualifications or requirement of Rule essentially there should have been an express
order to indicate that it appeared to the Honourable Chief Justice to be just and equitable for such a relaxation. In the absence of any such order,
we find it very difficult to hold that there was relaxation of qualification or passing the translation test by second respondent.
The proceedings of the Honourable Chief Justice dated 19.3.1997 extracted above, also do not indicate any relaxation of qualification of
respondent No. 2. Proceedings speak of the ability and merit of respondent No. 2 and also as to why persons from the category of Personal
Assistants to the Honourable Judges was considered for promotion. In the normal course, if the Hon''ble Chief Justice was made known about the
deficiency in the qualification of respondent No. 2 i.e., passing of the translation test, there could have been some reflection in the proceedings and
appropriate orders also could have been passed either separately or in the proceedings itself. Added to this, as already noticed above, in the
counter-affidavit filed by first respondent, it is not the stand that the Honourable chief Justice relaxed the requirement of passing the translation test
by respondent No. 2 either by express order or by implication. Under the circumstances, we have no hesitation to conclude that there was no
relaxation in regard to passing of the translation test by second respondent, expressly or impliedly.
It is also not in dispute that there are number of seniors in the category 3 and 4 of Division II, to respondent No. 2. Whether the cases of all
the eligible persons in categories 3 and 4 were considered for promotion, the stand of respondent No. 1, as can be seen from the counter-affidavit,
appears to be conflicting. In paragraph 7 of the counter-affidavit it is stated that the category of Court Officers/Section Officers/Appeal
Examiners/Deputy Sheriff, was excluded for consideration lor the reasons stated in the proceedings of the Honourable Chief Justice dated
19.3.1997. In paragraph 11 of the counter affidavit it is stated that the Honourable Chief Justice considered the relative merits of eligible persons
found in the list. Since the promotion to the post of Sub Assistant Registrar is a selection post, we do not think it necessary to deal with the
submissions of the learned Counsel for the petitioners toughing the aspect of seniority among the eligible candidates and also with regard to the
effect of selection grade given to the petitioners as Court Officers.
Even among the Personal Assistants coming under category 4 of Division II, as can be seen from the list relating to Personal Assistants filed by
the Registry, the second respondent entered into service on 27.1.1988, and there are atleast four personal Assistants who are seniors to
respondent No. 2 possessing all the required qualifications as prescribed in Rule 6. We specifically directed the learned Additional Government
Pleader representing respondent No. 1 to place before us all the records including the office notes that were placed before the learned Chief
Justice leading to the proceedings dated 19.3.1997 and further passing the impugned Notification promoting respondent No. 2. The following
records are produced before us:
(i) List of Court Officers, Section Officers, Appeal Examiners;
(ii) List of personal Assistants;
(iii) List of Interpreters, and
(iv) Note file in R.O.C. 18/97 Con. B2.
The list contained both the eligible and non-eligible persons for promotion as some of them did not pass or possess the necessary qualifications.
The list relating to Personal Assistants filed by the Registry clearly disclosed that Thiru S. Ramamoorthy is a graduate and he entered into
service on 10.12.1980 and he is fully qualified for the promotion to the said post. Similarly Thiru M.A. Sivakumar is also a post-graduate, entered
in to service on 1.7.1987 and be is also a fully qualified person. Thiru K. Vasudevan, who is also a Post Graduate, possessing Law Degree also
entered into service on 2.7.1987 and he is also a qualified person. Similarly Tmt. K. Indumathi, a graduate possessing Law Degree entered into
service on 1.7.1987 and she is also qualified for consideration for promotion. It may be mentioned here that even if the promotion was to be given
among the P. As. this time for the reasons stated, there is nothing in the proceedings dated 19.3.1997 to show that the cases of the other P. As.,
and mere so the cases of the aforesaid four persons were also considered along with the case of the second respondent.
We are conscious that if the candidates in category 4 of Division II are to be considered for promotion as Sub Assistant Registrar as per Rule
14 on the basis of merit and ability, the question of seniority may not be insisted. At any rate, we may not re-appreciate the assessment of the
Honourable Chief Justice as to the ability and merit of respondent No. 2 having regard to the fact that we are exercising jurisdiction under Article
226 of the Constitution of India, and in that, we do not act as Court of appeal so as to substitute our opinion. We may add that candidates in
category 2 of Division II also would be eligible for consideration of the basis of merit and ability as the candidates in category 4 in Division II.
There appears to be no consideration of the candidates in that category for promotion.
From the proceedings of the Honourable Chief Justice dated 19.3.1997 it can be seen that for the reasons stated, respondent No. 2 was
considered for promotion as sub Assistant Registrar on the basis of merit and ability, of course without noticing the fact of respondent No. 2 not
passing the Translation test. We are of the opinion that the order of promotion of respondent No. 2 cannot be sustained on the ground that he was
not eligible for promotion having not possessed the required qualifications as per Rule 6, in that, he did not pass the translation test, and that too in
the absence of any relaxation in that regard.
Merely because the respondent No. 2 was working with the Honourable Chief Justice as P.A., it could not be said that because of his close
proximity promotion was given to him. There were several other Officers and members of the staff such as Registrars, Private Secretary etc. who
work in close proximity with the Honourable Chief Justice in discharge of their official, functions. Simply because Officers and members of the
Staff, by virtue of the nature of their duties, work in close proximity with the Chief Justice, it will be wrong to say that rule of proximity would be
applied to gain advantage or promotion. Nobody can make allegations or averments lightly that too without any basis against the High
constitutional functionaries like the Honourable Chief Justice of the High Court, more so when the petitioners being the Court Officers working in
this very institution, ought to have acted with restraint, responsibility and discretion in making a statement that the promotion to second respondent
was given by the Honourable Chief Justice because of close proximity. The statements made in the affidavit filed in support of the writ petition
touching this aspect that the promotion was given to the second respondent because of the close proximity of the second respondent with the
Honourable Chief Justice, in our view, are unwarranted and without any basis, that too when it is specifically denied by first respondent in the
counter affidavit that respondent No. 2 made second application for promotion on the eve of the retirement of the Honourable Chief Justice. We
express our displeasure as to the averments made in the affidavit that because of the close proximity the respondent No. 2 was given promotion.
The learned Additional Government Pleader also urged that under Article 229 of the Constitution of India, the Honourable Chief Justice has
power to made appointment of the Officers of his choice. There should be no difficulty as to the powers of the Chief Justice to be exercised under
Article 229 of the Constitution. But in the case on hand we have to consider the validity of the promotion of the second respondent, having regard
to the rules of the High Court governing such promotion. When there are express rules framed by the competent authority, those rules hold the
field. May be in the absence of such rules, the Chief Justice could exercise the power to make appointment of Officers as considered just and
proper. But so long as the rules are operative, the promotions are to be considered consistent with the rules. Further even under Rule 23
Honourable Chief Justice has powers as already indicated above. But as stated by us, the Honourable Chief Justice has not exercised that power
under Rule 23 so as to relax the required qualification of second respondent. Hence this contention of the learned Additional Government Pleader
based on Article 229 of the Constitution also fails under the circumstances.
One more contention of the learned Counsel for the respondent No. 2 remains to be considered, is as to the maintainability of the writ petition,
on the ground that the first petitioner who has filed the affidavit in the writ petition for himself and on behalf of others having retired voluntarily, the
writ petition does not survive for consideration. We do not find any force in this submission. The grievance of the remaining petitioners still
continues. The affidavit sworn to by the petitioner No. 1 was for himself and on behalf of the remaining petitioners. Unless and until the remaining
petitioners did not want to pursue the writ petition it could be maintained. This apart, when the case is brought before Court under Article 226 of
the Constitution of India, and all the records are placed before us, we have jurisdiction to consider the contentions raised by the parties in the writ
petition.
Yet another submission of the learned Counsel for the second respondent, in the alternative, is that the promotion of the second respondent
may not be disturbed because no serious prejudice would be caused to the petitioners in view of the statement made by the learned Government
Pleader in his arguments, stating about the present position of the petitioners, and that some time can be granted to respondent No. 2 to pass the
translation test. We cannot accept this submission when we have come to the conclusion that respondent No. 2 was not at all qualified to be
promoted in the absence of any relaxation, and when number of other fully qualified candidates were available for promotion. He doubt, quashing
the order of promotion of the second respondent may result in some pain to him. But at the same time, we cannot ignore the claims of others based
on the rules and their rights. We make it clear that this order does not come in they way of consideration of respondent No. 2 for promotion in
accordance with law in the light of what is stated above. Since we have taken the view that the very promotion of the second respondent cannot be
sustained in terms of the rules, we think it unnecessary to refer to the decisions cited by the learned Counsel for the parties, although there is no
debate on the principles enunciated in these decisions.
In the result, for the reasons stated, we pass the following order:
(i.) The writ petition is allowed;
(ii.) The impugned Notification No. 19/97 issued in R.O.C. No. 29/97. Con. B2 dated 19.3.1997, is quashed so far it relates to the second
respondent alone; and
(iii.) No costs.