Shree Ram Sarangat Sinha and 16 Others vs The State of Bihar and 88 Others

S. Wasiuddin, J.—In both these writ petitions common questions of fact and law arise and these two cases were also made analogous. This judgment will, therefore, govern both these cases. The petitioners in these writ petitions were appointed as Munsifs on the 4th of February, 1958. Respondent no. 1 is the State of Bihar and respondent no. 2 is the High Court, Patna. Respondent nos. 3 to 89 were appointed as temporary Munsifs in the years 1952 and 1955 respectively. The petitioners in both these cases have obtained a Rule from this Court against the respondents calling upon them to show cause as to why the petitioners should not be declared senior to respondent nos. 3 to 89 and the promotions of the respondents as Sub judges be also not declared as unconstitutional, ultra vires, void and illegal and also as to why a writ in the nature of certiorari be not issued quashing the seniority as shown in the Working Civil List. In Civil Writ Jurisdiction Case No. 552 of 1969 also similar relief has been claimed except that one additional relief in that petition, viz. relief, no. (b) that a writ in the nature of writ of certiorari be issued quashing the Notifications (Annexures ''2'' to ''4'') in so far as they purport to be retrospective. At the time of the commencement of the hearing Mr. Basudeva Prasad appearing for the petitioners submitted that he will be advancing arguments only in Civil Writ Jurisdiction Case No. 847 of 1969 and the learned counsel for the petitioners and the respondents also addressed us with regard to the writ petition 847 only. At the conclusion of the hearing it was also submitted by Mr. Basudeva Prasad that the petitioners are not pressing relief no. (b) in Civil Writ Jurisdiction Case No. 552 of 1969 and that the arguments as advanced in respect of 847 are also adopted as arguments in C.W.J.C. No. 552. The learned counsel for the respondents also adopted the same arguments as advanced in C.W.J.C. No. 847. An order to this effect has also been recorded in C.W.J.C. No. 552. I will be, therefore, dealing with the facts as submitted in the petition and the counter-affidavits and also as urged by the learned counsel for the parties in course of the arguments in respect of C.W.J.C. No. 847 of 1959.

The facts which are not disputed and which can be stated briefly in chronological order are as follows:

In the year 1951 and onwards there was a large accumulation of cases and a large pendency of cases being such that the sanctioned permanent strength of Munsif at that time which was only 130 was considered to be inadequate to cope with the work and the arrears. It was in such circumstance that the authorities decided to make temporary appointments. These appointments were made in the years 1952 and 1955. Respondent nos. 3 to 51 and respondent nos. 85 to 89 were appointed as temporary Munsifs in the year 1952. Respondent nos. 52 to 84 were appointed as temporary Munsifs in the year 1955. Their appointments were in the terms of the advertisements by which applications had been called for at that time. In the advertisement it was clearly mentioned that the appointments will be made for a period of two years, terminable on one month''s notice from either side, with prospects of absorption in the permanent cadre of the Bihar Civil Service (Judicial Branch), It may also be mentioned that one of the requisite qualifications laid down was that the candidates must have put in at least four years of continuous and regular practice at the Bar. It so happened that the necessity of retaining the services of these temporary Munsifs continued and the terms of these temporary posts used to be extended from year to year. This position is also not disputed that there was a long series of correspondence between the High Court and the Government on the point of adjusting these temporary Munsifs in the vacancies which would be made permanent and it was ultimately decided by the Government that 102 posts of Munsifs which were temporary be made permanent with effect from 1.3.1956. The letter (Annexure "A") to the counter affidavit of the High Court clearly shows that by this letter dated the 18th of April, 1956, 102 posts were made permanent with effect from 1.3.1956. It is also significant to note that the subject matter of this letter as mentioned in the beginning of the letter is "conversion of temporary posts of Subordinate Judges and Munsifs into permanent posts". The Government of Bihar also in conformity with this decision sent a letter to the Accountant General, Bihar, Ranchi, This is also dated the 18th of April, 1956, and this is Annexure "B" to the counter-affidavit of the High Court. The Accountant General was also informed that these posts had been made permanent and a directive was issued to him to the effect that the existing temporary Sub-Judges and Munsifs holding these posts may be shown as officiating against these permanent posts and, unless confirmed, they will continue to remain subject to the same terms as respects termination of their appointment, if the temporary posts so far held by them had not been made permanent. There was again a series of correspondence between the Government and the High Court on the point whether the permanent vacancies should be filled in by appointment of temporary Munsifs against permanent posts on probation. It was decided that 50 posts should be filled through the Public Service Commission which should hold a competitive examination for this purpose. Direction was accordingly issued to the Public Service Commission and in June, 1957 there was the competitive examination held. The petitioners of both these writ petitions on having qualified themselves at that examination were duly appointed by the Government as Munsifs on probation by Notification dated the 4th of February, 1958. The petitioners thereafter on different dates in the month of February, 1958 joined their respective posts. The Government thereafter issued a Notification dated the 29th of April, 1958, by which the temporary Munsifs who were already working as Munsifs, viz. respondent nos. 3 to 84 were appointed on probation with effect from 1.3.1956, that is the date on which as mentioned above, the posts had been made permanent. Respondents 86 to 89 were appointed on probation by Notification dated the 4th of April, 1960 with effect from 1.1.1957. Respondent no. 85 was appointed on probation by Notification dated the 27th of March, 1963 with effect from 1.1.1957. The relevant dates given above will show that the notifications appointing the temporary Munsifs, that is, the respondents on probation were subsequent to the date by which the petitioners were appointed on probation, but the dates from which the respondents were appointed on probation are prior to the date of appointments of the petitioners. It may also be mentioned here that the respondents also by Notification dated the 24th November, 1960 and some of the Notifications thereafter were also duly confirmed and some of them were confirmed with effect from 1.3.1956; some from 1.1.1957 and some from dates subsequent thereafter. The petitioners were also in due course confirmed by Notification dated the 22nd of December, 1962, but with effect from the different dates and months of the year 1960, that is to say, in relation to the respective dates on which they joined as probationers.

The contention of the petitioners briefly is to the effect that all these appointments, that is of the petitioners and the respondents would be controlled and governed by the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955 and the appointments of the respondents have not been in accordance with those rules. It has been urged that at the time when the petitioners were appointed as probationary Munsifs, all those permanent posts of Munsifs, which were sanctioned in the year 1956 had remained vacant and the petitioners were the first group of officers to be appointed as probationers against those substantive vacancies by respondent no. 1 in consultation with respondent no. 2 and the appointment of the respondents by Notification dated the 29th of April, 1958 with effect from 1.3.1956 was illegal and contrary to the specific provisions of the Rules. Similarly the Notifications with regard to the other respondents putting them on probation with retrospective dates as well as the confirmation of the respondents with retrospective dates are illegal and without jurisdiction. It has also been submitted that some of the respondents whose names have been mentioned in the petition had not been found at one stage fit to be confirmed and, therefore, they could not have been confirmed according to the rules specially after giving retrospective effect to the date of confirmation. It has also been submitted in the petition that the orders appointing the respondents on probation were in respect of vacancies which had not been declared by the Governor of Bihar as contemplated by Rule 3 of the aforesaid Rules. It has also been urged that representation had been filed by the petitioners to the High Court in the year 1968, but when the representations were rejected on 12.4.1969, then the petitioners filed these present petitions. An explanation has thus been given about the late filing of the petitions.

The petition of the petitioners and have been resisted by the State of Bihar and the High Court, who have filed separate counter-affidavits and some of the respondents have also filed counter-affidavits. It may be stated that at the time of the issue of rule in these two writ petitions an objection with regard to the maintainability of these writ petitions had also been taken. It had then been ordered that this would be considered at the time of the hearing. At the time of hearing the learned Advocate General Mr. Lal Narain Sinha submitted that he would not be pressing this, as it is not necessary to be agitated here. The common grounds which have been urged on behalf of the respondents are firstly to the effect that there has been an inordinate delay in the filing of these petitions and so these petitions should be thrown out on account of the delay and laches on the part of the petitioners. Secondly it has been urged that, if these writ petitions are allowed then that would mean unsettling an established order of things having far reaching consequences and repercussions and that the relief which can be allowed in an application under Articles 226 and 227 of the Constitution is a discretionary relief and in the circumstances of the case is not fit to be allowed. It has been urged that the petitioners were appointed to posts which were distinct to those posts which were held by the respondents and there was no infringement of the rules and rather the rules particularly Rule 27 did not apply to the case of the respondents 3 to 89. There were only procedural delays which are quite usual and natural in the issue of Notifications etc. and this could not give or create any right. The petitioners had also no legal right to claim seniority. It has been also urged in the first place that the rules did not apply. In the second place even if the rules did apply then these were merely directory and not mandatory and then it was quite permissible and within the law to pass orders with retrospective effect as was done in the nature and the circumstances of the case.

Mr. Rash Bihari Sinha appeared for respondent nos. 58 and 59, who have not filed any counter affidavit and he supported the respondents in many respects, but he has supported the petitioners in one respect that the date of confirmation should have been and is the only and the sole criteria for determining the seniority. I will deal with this part of his submission separately after I discuss all the other points which arise for consideration.

Mr. Basudeva Prasad appearing for the petitioners has substantially raised three points. One of these is to the effect that the Seniority List is ultra vires of Rules 3 and 27; secondly that the seniority based on giving retrospective effect to the appointments was illegal and without jurisdiction and thirdly that such appointments were in contravention of the fundamental right as contemplated by Articles 14 and 16 of the Constitution.

Now before I take up the points which have been raised on behalf of the petitioners, it seems necessary to dispose of the objection which has been taken on behalf of the respondents with regard to the inordinate delay in filing these petitions. I have given the relevant dates above and it may be again mentioned here that the respondents were appointed on probation as early as on 29.4.1958 which was by a Notification issued by the Government. After that the respondents were confirmed also by Notification dated 24.11.1960 and by subsequent Notification, but these present petitions were filed for the first time in the year 1969. An explanation of this delay has been given in paragraph 20 at page 21 of the petition (C.W.J.C. 847 of 1969) and it has been stated in this paragraph that sometime in July, 1968, the working Civil List in regard to the members of the Bihar Civil Service, Judicial Branch, prepared for the period ending March 1968, was received by the Joint Secretary, Bihar Judicial Service Association and that the petitioners then had the occasion to peruse their seniority position vis-a-vis the respondents. It has been also further stated that it is relevant to state that at no time before, any working Civil List for any other period was ever received by the Bihar Judicial Service Association from the Hon''ble High Court and that no such seniority list was circulated among the members of the Bihar Civil Service, Judicial Branch. This means that the petitioners want to make out that they came to know their position about the seniority vis-a-vis the respondents only when a copy of the working Civil List was supplied to the Joint Secretary of the Association in July, 1968. The working Civil List which is prepared and maintained in the High Court is neither a publication under any Statute nor can it be called to be an official publication. The very name shows that it is a working Civil List, that is to say, a Civil List maintained by the High Court on its own administrative side for the purposes of seeing as to who are the officers posted at certain station, how long they have been at particular station so on and so forth. It is well known and the petitioners have been also knowing that there is an official publication of the Civil List published every year by the Government of Bihar. Such Civil Lists are also available on payment of price and they are also supplied to the different offices. This cannot be disputed that the Civil Lists which have been published in 1958 onwards must have shown the dates of appointments on probation, confirmation etc, and so it cannot be said that the petitioners came to know only after the working Civil List was supplied. Now besides this various Notifications by which the petitioners were appointed and confirmed and by which the respondents were appointed and confirmed were also duly published in the gazette. It would be presumed that the petitioners had knowledge of this also. It is also worthy of noting here that it is not a case where the petitioners were not directly effected and they could plead that they did not know as to what the notifications and the publication in the gazette were because they were and are in service and were directly affected. But in spite of this for reasons best known to the petitioners they preferred to remain quiet and did not move in the matter until they filed a representation in the High Court. This was in 1968. The representation of course was rejected on the 12th of April, 1969 and the present petitions were filed thereafter. So it can be said that there has been no delay if the date of the rejection only be taken into consideration. The learned counsel for the petitioners has also submitted that the date of rejection is the date of the cause of action and, therefore, considering this aspect of the matter, the petitions cannot be considered to be after a long delay. In my opinion this also does not appear to be a satisfactory explanation because it is not a case where the representation has been filed soon after they were aggrieved and the representation remained pending and, therefore, they could not move the court earlier because here in this case the representation itself which was filed was a delayed one after a lapse of several years. It was also contended by the learned counsel for the petitioners that the very fact that the representation was entertained by the High Court is indicative of the fact that the High Court did not dismiss it summarily only on the point of delay, The order of the High Court only shows that the representation after careful consideration had been rejected and it will be quite reasonable to think that the delay and the consequential results of such delay must have been also duly considered by the High Court. It may also be mentioned here that during this long period some of the respondents have also been promoted as Sub-Judges and it is very difficult to believe that even then the petitioners did not know the actual position and the State of affairs.

In a writ application and quite advisedly the Legislature has not laid down any specific period of limitation. The powers of the High Court are not fettered even if there has been a delay, but naturally the question whether there has been a delay and whether the delay has been explained or not are matters which need careful consideration before extra-ordinary power in a writ jurisdiction can be exercised, I may refer in this connection to some of the decisions which have been cited and relied upon during the course of the hearing. In the case of (1) Sathya Kumar and Others Vs. The state of Andhra Pradesh and Others, , a very similar point which also related to promotions and seniority came up for consideration of that High Court. In paragraphs 68 and 69 at page 331 this point has been elaborately dealt with. It has been laid down there that the Courts will not ordinarily issue a writ in favour of a person who is guilty of delay which is unexplained and that the cases dealing with delay or laches, however, are not consistent nor do they indicate any coherent pattern. It was also pointed out that there are cases in which it has been held that delay may be a ground for refusing relief, but in which delay has been condoned the Court indicated its displeasure by making no order as to costs. It is obvious as has also been laid down in the aforesaid decision that no hard and fast rule, however, can be laid down in this behalf and that if the delay is properly explained and there are circumstances in which the question of delay would not assume importance, the delay would not be permitted to stand in the way of the exercise of the power under Article 226 and thereby affecting fairness and justice. It was also observed in paragraph 69 that it cannot be in doubt that time spent in proper departmental representations or proceedings is a good ground to condone the delay. In paragraph 71 also it was observed that the petitioners were subordinates to the High Court in administrative matters and usually they would not like to rush to the Court unless of course they are in possession of facts which compel them to adopt this course. Mr. Basudeva Prasad also submitted that very rightly and keeping the decorum and discipline in view the petitioners at first filed representation and waited till orders were passed on the same. But as pointed above the representation itself was filed after several years so no advantage in this respect can be taken from the rejection of the representation.

I may then refer here to a decision of the Supreme Court in the case of (2) Durga Prashad Vs. Chief Controller of Imports and Exports, . In this case the appellant applied for import licence in 1959, but he received a licence only for a fraction of the amount for which he had asked for, and he waited until 1964 when he came to the High Court by filing a writ petition. Their Lordships of the Supreme Court in paragraph 4 referred to an earlier decision of the Supreme Court in which it had been laid down that no hard and fast rule can be laid as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches and it is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court in this matter too the discretion must be exercised judiciously and reasonably. In that case infringement of fundamental rights was pleaded and still it was held that it was a matter which should be left to the discretion of the High Court.

In the case of (3) K.V. Rajalakshmiah Setty and Another Vs. State of Mysore and Another, , which was a case in respect of promotion but Court was moved after thirteen years and it was held that there is a good deal of force behind the contention that the appellants were guilty of laches and the relief could not be allowed.

I may also refer to a decision in the case of (4) State of Assam versus The Amalgamated Tea Estates Co. Ltd. and others, reported in AIR 1970 Supreme Court, page 2072. It was a case where a Notification issued u/s 334 of the Assam Municipal Act, 1956 had been challenged, but no objection had been taken to the preliminary notification u/s 334(1) of the Act and the petition challenging the validity of the notification was filed years after the constitution of the Notified Town Committee and it was held that it was a speculative petition and the High Court was in error in allowing it and declaring the notification as illegal.

In my opinion, when a party seeks for relief under Articles 226 and 227 of the Constitution and there has been a considerable delay in filing such a petition, then it has also to be seen whether the delay has been of importance and whether a relief granted after such a delay would have the result of unsettling a settled state of affairs and order of things in existence for a long time. It has also been urged on behalf of the respondents that if (sic) at such a long delay the relief is allowed, then the granting of such a relief would have far reaching consequences and repercussions and it will completely unsettle the settled order of things. Certain aspects of the matter in this connection have to be also kept in view and these are that the respondents having been appointed on probation were also duly confirmed on different dates in the Bihar Judicial Service and as in other services also, there is a prescribed scale of pay and after confirmation the officer is entitled to earn an increment according to that scale. Many of the respondents were promoted as Sub-Judges long time back and they have been also drawing their salaries as Sub-Judges. If the relief prayed for is allowed and the petitioners are declared to be senior to the respondents, then naturally such a decision will have far reaching consequences. This may mean demotion of the officers and also orders for getting back the excess pay that they had drawn unless it is condoned by the Government. Many of the respondents after having been promoted as Sub-Judges have also heard appeals and disposed of the appeals, Many of these appeals have been against the decisions of the petitioners. If their promotion as Sub-Judges is held to be illegal, then it will affect naturally their judgments in appeal. This will affect the persons who were parties in suits and appeals for no fault of theirs. The relief to those persons can be given only if the Government decides to pass a validating Act, but undoubtedly, as pointed above, all these complications would arise and the position certainly would have been different if the petitioners had come immediately after the respondents were appointed on probation or confirmed.

It was urged by the learned counsel for the petitioners that even if such be the situation as the rights of the petitioners have been affected, so these considerations should not stand in the way. Reliance has been placed in this connection on a decision in the case of (5) C. Channabasavaiah Vs. State of Mysore and Others, . In this case candidates were called for viva-voce tests, but those who obtained less number of marks were selected in preference to those who obtained higher mark and it also appears that some candidates, who had not at all appeared in the viva-voce tests had also been selected. The relief was allowed in such a case and reliance has been placed on the observations in paragraph 9 at page 1296 which is as follows:

It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not even at the cost of considerable inconvenience to Government and the selected candidates do the right thing.

True it is, that mere such consideration as pointed out should not stand in the way of granting a relief, but the facts arising in that case are clearly distinguishable from the facts of the present case because there was manifest injustice and error apparent on the record in that case. But here in this present case, it has to be examined whether there was any such manifest injustice or error apparent on the record which would justify granting of the relief.

Mr. B.C. Ghose appearing for he respondents in this connection has relied on a decision of the Supreme Court in the case of (6) Ratilal Chhaganlal Vs. Dhari District Municipality, . In that case the appellant was dismissed from service in contravention of Rule 6 of the Municipality and Rule 55 of the Bombay Civil Service Rules, inasmuch as he was given proper opportunity nor a proper enquiry was held against him. The appellant thereafter instituted a suit for seeking a declaration that his dismissal was illegal and, therefore, he continues in service. The Appellate Court and High Court came to a conclusion that the dismissal was wrongful but not illegal, because the said contravened rules are directory and not mandatory in nature, and they followed in this regard, the law settled by the Gujarat and Bombay High Courts that the rules were directory. The Supreme Court was pleased to hold that there was no reason to interfere with the judgment of the High Court, specially in view of the settled law in regard to interpretation of a rule under the local law This decision, therefore, shows that if the interpretation of a local rule has been settled, then this decision will not be upset. This decision also does not on all fours apply to the present facts of the case, but this no doubt shows that if there is a settled state of order of things, it should not be disturbed unless there be circumstances impelling the court to do so.

I will now proceed to examine the question if there has been any violation of Rules 3 and 28. Article 234 of the Constitution corresponds more or less to Sub-section (1) of Section 255 of the Government of India Act of 1935. Article 234 lays down that appointments of persons other than District Judges to the Judicial Service of State shall be made by a Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdictions in relation to such State. This rule, therefore, contemplates the framing of the rules in the manner as laid down in this Article. This position is not disputed that no rule as contemplated by Article 234 had been made prior the Rules called the Bihar Civil Service (Judicial Branch) Recruitment Rules, 1955 (hereinafter to be referred to as ''the Rules''). These rules were framed on the 22nd of August, 1955 and came into force from 5.10.1955. It will be better if I give here a general outline of the scheme of the rules. The rules are divided into three parts. Part I has the heading "General" and Rules 1 to 3 are under this Part. Rule 1 states as to the date as to when the rules will come into effect and I have already stated above. The different clauses of Rule 1 give the definitions of the various terms used in the Rules. Rule 2 lays down as to how the recruitments will be made and Rule 3 lays down that there should be a declaration with regard to the vacancies by the Governor. Rules 4 to 23 are under Part IT with the heading "Direct Recruitment". Rules 24 to 26 are in Part III with the heading "Permanent appointment of temporary Munsifs already in Government service". Rules 27 and 28 then again are under the heading "General". It has been contended also on behalf of the respondents that since the appointments of the respondents had been made and they were already in service though in a temporary capacity prior to the training of the rules in 1955, so these rules would not apply to them at all. On examination of the rules, in my opinion, this does not appear to be correct and the true position is that although these rules were framed when the respondents were already in service, yet such rules will apply to the respondents about which there are definite indications from the language of the Rules and that these are applicable to them also. I have already mentioned that Part III has the heading "Permanent Appointment of temporary Munsifs already in Government service", This will clearly mean that the rules under Part III have been made applicable to those persons, that is, the respondents who were temporary Munsifs and they could be made permanent under the rules in Part III. It will be better if I quote here the relevant rules under Part III. They run as follows:--

On the occurrence of permanent vacancies in the posts of Munsif proposed to be filled up from among temporary Munsifs already in Government service, the High Court shall call for nominations from the District Judges. These nominations shall be considered by a Selection Committee appointed by the Chief Justice for the purpose, with the Chief Justice as its President. The Officers nominated by the Selection Committee as suitable for permanent appointment shall be arranged in order of their position inter se as temporary Munsifs.

The High Court shall send all papers relating to the candidates nominated by the Selection Committee, as also of those proposed to be superseded, direct to the Commission, and, shall, at the same time, submit a list of such candidates to the Governor. The final selection of officer for permanent appointment shall be made by the Governor after considering the recommendations of the Commission.

A Munsif appointed on a temporary basis shall be eligible for permanent appointment to the Service irrespective of age.

The language used in Rule 24 clearly shows that Rules 24, 25 and 26 are specially applicable to the respondents who were temporary Munsifs and they were to be considered for permanent absorption on the occurrence of permanent vacancies which as already indicated above occurred with effect from 1.3.1056. These rules have also to be read along with Rule 2(a), Rule 2(a) runs as follows:--

Recruitment to the posts of Munsifs shall be made either in accordance with the rules in Part II or in accordance with the rules in Part III, or both.

Part II as already pointed above deals with "Direct Recruitment", that is to say, it lays down as to how the candidates would appear at the examination to be held by the Public Service Commission and the qualification which would be necessary and would be appointed on the result and recommendation of the Public Service Commission. The petitioners undoubtedly comes within the meaning and the category of "Direct Recruits" as contemplated by Part II of the Rules. Rule 2 as already pointed above lays down that there will be two sources of recruitment. One of these would be in accordance with the Rules in Part II and the other in accordance with the Rules in Part III. Rule 2(a) also, therefore, clearly shows that Rule''s 24 to 26 clearly apply to the respondents. It may be also mentioned here that having regard to this fact that the temporary Munsifs were advanced in age and so definite rule was made in Rule 26 to the effect that a Munsif appointed on a temporary basis shall be eligible for permanent appointment to the service irrespective of age. It may be also mentioned here that this position has also not been disputed that there was full compliance and observance of Rules 24 and 25 when the respondents were appointed on permanent basis. It may also be mentioned here that Rule 6 which deals with direct recruits lays down the requisite qualifications and the Note to Rule 6 is rather important. The relevant portion of the Note is to the effect as follows:--

Persons who hold posts in Government service in a temporary or officiating capacity or on probat on including temporary or officiating Munsifs are eligible to offer themselves for examination, provided they possess the educational and other qualifications prescribed in the rules...........

This clearly means that a person in temporary Government service, such as, a temporary Munsif was also made eligible to appear at the examination. It has been also urged by the learned counsel for the petitioners that a facility had been given under the Rules and the respondents could have availed of the same to require the same rights as claimed by the petitioners. In my opinion, this Note was only in the nature of an enabling clause meaning thereby that such temporary Munsifs, if they so wanted also could apply to be appointed directly as direct recruit. But I do not think that the failure on the part of the respondents to avail of the same could in any way stand in their way to their legitimate claims and rights. It is also quite obvious that as the respondents and quite a number of them had entered service in 1952 and there was the necessary qualification that they must have put in four years of regular practice at the Ear, so many of them could not have been eligible on account of their age to appear at the examination. Rule 26 was the concession only when a temporary Munsif was to be appointed permanent and there was no such concession when applying to be appointed directly. I do not think that it would have been ever intended that the failure to appear would in any way stand in the way. Now, therefore, in my opinion, a perusal of Rule 2(a) with the other relevant Rules particularly Rules 24 to 26 clearly show that special provisions have been laid therein for the temporary Munsifs already in service and Rules 24 to 26 to my mind form or constitute a complete Code as far as these Munsifs are concerned. I will have to revert to this aspect of the matter again when I deal with the question whether there has been any infraction or violation of Rule 27.

The contention of the petitioners has been that there has been a violation of Rules 3 and 27. I will now take up a discussion whether there has been any contravention of Rule 3 and as to what will be the effect of such a contention, if any. Rule 3 runs as follows:--

The Governor shall decide in each year the number of vacancies in the posts of Munsifs to be filled in that year in accordance with the rules in Part II or in accordance with the rules in Part III, or both.

It has been urged on behalf of the petitioners that there has been a violation of this rule because there was no such declaration as contemplated by Rule 3. First of all it is necessary to see as to what is the plain and simple meaning of Rule 3. Rule 3 contemplates that there should be a decision by the Governor in each year with regard to the number of vacancies and the Governor will also decide as to how many vacancies will be filled in either in accordance with the rules under Part II or in accordance with the rules in Part III, or both. The language of this rule is clearly prospective and to my mind it implies that such a decision of the Governor is necessary in each year as and when the vacancies will occur. I do not think that this rule means that it relates or refers to the vacancies which had already occurred, The factual position was that there were already vacancies from long before though temporary and all these vacancies had been made permanent from 1.3.1956. There were already incumbents of these vacancies. Therefore, Rule 3 would not technically apply to such a contingency. As the vacancies were in existence from before and the vacancies had been made permanent, and had been regarded as conversion from temporary into permanent and temporary Munsifs were already there and they were working, so it was not a case of filling in the vacancies, but rather a case of adjusting the vacancies and fitting in the temporary Munsifs in these vacancies. Mr. Lal Narain Sinha has also contended that mere assertion that there is a violation of Rule 3 and no fact having been alleged constituting the violation such a plea should not be entertained. The petitioners in paragraph I of the Reasons of the petition stated that the impugned notifications are ultra vires of Rules 3 and 27 of the Recruitment Rules and similarly in paragraph IV of page 23 it was stated that promotions of respondents were also ultra vires of Rules 3 and 27. It was not stated in clear words as to in what manner there had been a violation of Rule 3. But however, in this connection paragraph 14 at page 18 of the petition should also be seen and there it has been stated that the order of the State Government appointing respondents nos. 3 to 84 on probation; in the first instance with retrospective effect, amounted to filling up of vacancies in the cadre of Munsifs undeclared by the Governor of Bihar, which was contrary, to Rule 3 of the aforesaid Rules. It, therefore, follows in view of the recitals in the petition and the submissions which have been made on behalf of the petitioners that the violation has been pleaded on the ground that there was no declaration of the Governor with regard to the vacancies as contemplated by Rule 3. The first question which therefore arises for consideration is whether such a declaration was necessary and with regard to this I have already expressed my view above that this was not a case where Rule 3 would be strictly applicable, but, however, this position may also be examined if there had been any such declaration by the Governor, The word "Governor" has no doubt been used in the rule, but naturally it would mean a decision by the Government and duly communicated to the High Court.

It was also urged by Mr. Basudeva Prasad that the two letters (Annexures A and B) to the counter-affidavit of the High Court are the only documents on record which show that there were vacancies and the vacancies had been nude permanent, but these letters and no other document show that there was a decision as contemplated by Rule 3.

The letter (Annexure-A) to the counter affidavit of the High Court is from the Government of Bihar to the Registrar of the High Court, Patna and it is dated the 18th of April, 1956. This letter was to the effect that 102 temporary posts of Munsifs had been made permanent with effect from the 1st March, 1956.

The letter (Annexure-B) is also of the same date and it is from the Government of Bihar to the Accountant General, Bihar, Ranchi by which the Accountant General was informed about the conversion of these temporary posts into permanent posts and a further directive by the Government to the Accountant General that the existing temporary Subordinate Judges and Munsifs holding these posts may be shown as officiating against these permanent posts. In my opinion, to appreciate the correct and factual position the relevant correspondence before and after 1.3.1956 have also to be seen and examined.

Annexure D to the counter-affidavit of the High Court is a letter from the Register of the High Court, addressed to the Government and it is dated the 28th of January, 1956. Recommendation was made by the High Court that these 102 posts be now made permanent and besides that it was also pointed in that letter that there were some other vacancies also and these vacancies were in number third, seventeen of which were permanent vacancies and thirteen were temporary vacancies. The High Court recommended that these 30 permanent and temporary vacancies may be filled by recruitment on a temporary basis at a very early date.

Annexure-F to the counter-affidavit of the High Court is the letter from the Government to the Registrar, High Court and it is dated the 3rd. May, 1956 The Government in this letter was of the view that these 30 posts should be filled in by an examination to be held by the Bihar Public Service Commission. There was, therefore, a difference between the High Court and the Government on the point whether these 30 posts should be filled in temporarily or by making permanent appointment from candidates selected at a competitive examination to be held by the Public Service Commission. It will be, therefore, obvious that Government was taking a contrary view to the recommendation of the High Court with regard to these posts which had been made permanent and against which the temporary Munsifs were already officiating.

The letter (Annexure F) to the counter-affidavit of the High Court is dated the 28th of May, 1956, addressed to the Government where also the question of adjusting the vacancies had been raised, and then Annexure G is a letter dated the 4th of August, 1956 in which the Government again was of the view that the 30 posts should be filled in on permanent basis.

Annexure J is a letter from the High Court to the Government in which the position with regard to the vacancies has been clearly shown. The total number of vacancies were 251 on 20.12.1957 and as against this there were only 104 confirmed Munsifs, and it was said in that letter that 117 posts were vacant which were sufficient to absorb all the 86 Munsifs on probation. This letter is of course dated the 20th of April, 1960, but it shows as to how the vacancies were being calculated. I may then now refer here to the letter (Annexure C) to the counter-affidavit of the High Court dated the 26th of August, 1957 which was from the Government to the Public Service Commission in which it was stated that the Governor of Bihar had since decided that fifty officers will be recruited directly to the Bihar Civil Service (Judicial Branch) on a permanent basis. The Commission was, therefore, it quested to kindly nominate 75 candidates or an adequate number of candidates arranged in order of merit for the above recruitment.

I quite agree with this contention of the learned counsel for the petitioners that there is no letter of the Government specifically stating that so many vacancies were to be adjusted and filled in from those temporary Munsifs, who were already in service, but reading the series of correspondence I think that there can be no doubt that by necessary implication it naturally follows that there was a decision that fifty posts would be filled in by a competitive examination to be held by the Public Service Commission and the remaining vacancies would be filled in from those who were already working as temporary Munsifs and who were put on probation. Having regard to the facts and the circumstances, it will be rather unlikely that although the Government had decided that fifty should be filled in by competition examination yet there had been no decision about the remaining vacancies. Recommendations had been made to the Government from time to time and the temporary Munsifs, that is, the respondents were duly appointed not only on probation but also confirmed, so this also gives strength to the view that although not specifically stated, yet impliedly and by necessary implication the Government had made a decision about the number of vacancies and the adjustment of the same.

It has also been urged on behalf of the respondents that even if there was any contravention of Rule 3, it was of no consequence because the Rule was only directory and not mandatory. No universal rule can be laid down for the construction of a Statute whether it is mandatory or directory and there are several decisions where the courts have laid down several tests for the determination of the question whether a particular Rule is directory or mandatory. One of these tests is, in the legislative intent. This is an important consideration and the intent will not be only construed from the language in which a particular Rule or a Suatute is clothed. It has to be ascertained not only from the phraseology of the provisions, but also by considering its nature, its design and the consequence which would follow in construing it one way or the other. The purpose behind that enactment has also to be seen and as a general rule the Courts will apply that construction which best carries into effect the purpose of the Statute under consideration. In Rule 3 the words used are "the Governor shall decide". But it is now an established principle of interpretation that the use of the word "shall" in a statute, though generally taken in a mandatory or imperative sense, does not necessarily mean that in every case it shall have that effect. The use of the word "shall" may not have also the effect that unless punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. The mere presence of the word "shall" also does not necessarily mean that disregard of the same shall make the proceeding or action void. I may in this connection refer to a decision in the case of (7) State of U.P. Vs. Manbodhan Lal Srivastava, which has been relied upon by Mr. Lal Narain Sinha. In that case the Supreme Court was considering the provisions of Article 320(3)(c) of the Constitution and it was held that the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid, and on the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. Article 320(3)(c) of the Constitution which deals with the consultation with the Public Service Commission was held to be directory.

Mr. Basudeva Prasad appearing for the petitioners has submitted that their Lordships were of this view because of the proviso to Article 320 which contemplates that the President or the Governor, as the case may be, may make regulations specifying the matters in which either generally, or in any particular class of case or in particular circumstances, it shall not be necessary for a Public Service Commission to be consulted. Their Lordships at Page 916 referred to this proviso and also were pleased to observe that the words quoted in proviso give a clear indication of the intention of the Constitution makers that they did envisage certain cases or classes of cases in which the Commission need not be consulted. It has, therefore, been urged that since this was the consideration in holding that particular Article of the Constitution as directory, then this will not apply to the present facts of the case. It has been urged, on the other hand, that even when there was a specific article in the Constitution with regard to consultation, it was held to be directly. True, it is, that this was one of the considerations but their Lordships also considered another aspect of the matter and I may refer here to paragraph 10 at page 917 where it was observed that the question may be locked at from another point of view, viz., does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320(3)(c) and that it does not, either in express terms or by implication provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government. Reference was also made to a decision of their Lordships of the Judicial Committee of the Privy Council in the case of (8) Montreal Street Railway Company versus Normandin, 1917 A.C. 170 (B). In that case the lists of Jurors had not been revised as required by the statute and a question arose for consideration in that case whether this omission would have the effect of nullifying the verdict given by the Jury and their Lordships of the Judicial Committee were pleased to observe as follows: --

....The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The case on the subject will be found collected in Maxwell on Statutes, 5th Edition, page 596 and following page. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those interested with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.

Here in this present case there was no provision in the rules as to what would be the effect if there was a violation of Rule 3. The violation, if any, of Rule 3 did not affect the right of third parties or the public. It could not have been the intention of the Rules that non-compliance of Rule 3 would invalidate all appointment. On a consideration of these aspects of the matter, in my opinion, this rule is directory. Now with regard to Rule 3, therefore, in the first place I am of opinion that this rule did not apply and did not require a decision in terms of that rule in the present circumstances of the case. Secondly, if it did apply them by necessary implication, there have been already decisions which will be obvious from the facts already referred above. Lastly, even if this be held not to be in compliance with the rule, then the rule itself was directory, so at best it would tantamount to an irregularity but not an illegality. It may also be mentioned here in this connection that Rule 3 has no bearing on the question of seniority which is the only question in issue before this Court in this case.

The next submission which has been made on behalf of the petitioners is with regard to Rule 27. Rules 27 and 28 of the Rules are as follows:--

A candidate appointed to the post of Munsif, otherwise than in a temporary capacity, shall be appointed on probation in the first instance, but will be eligible for confirmation as a Munsif on the date on which the following conditions are fulfilled:--

(i) that he has completed two years'' service from the date of first appointment;

(ii) that he has passed such tests as may from time to time be prescribed in the Departmental Examination Rules; and

(iii) that he is recommended by the High Court for confirmation.

No recommendations except those received in accordance with these rules shall be taken into consideration, Any attempt on the part of a candidate to enlist support for his appointment through persons of influence or in any other manner will disqualify him for appointment.

The main contention with regard to Rule 27 is that this rule being under the heading "General" and the language of the rule is also such that it clearly signifies that this rule will be also applicable to temporary Munsifs, that is, those covered by Part III of the Rules. It has then further been urged that the wordings of the rule show that the rule is prospective and there was a clear violation of the rule when the appointments on probation were made retrospectively. It has been urged by Mr. Basudeva Prasad that the Legislature alone can in its plenary power make a legislation retrospective and the authorities can act with retrospectivity only if there is any such power conferred in the statute. It has, therefore, been further urged that as the rules do not empower, so giving retrospective effect was a clear violation of the mandatory provisions of Rule 27. It has also been urged that Rule 27 read along with Rule 28 clearly shows that Rule 27 is mandatory.

It has been urged, on the other hand, by the learned Advocate General as well as by the other learned counsel appearing for the other respondents that Rule 27 applies only to candidates to the posts of Munsifs other than in temporary capacity, that is to say, it excludes the applicability to the temporary Munsifs. Secondly, it was urged that the rule from its very wording being prospective in nature could not relate or apply to those who were already in service, that is, the respondents, who were appointed in 1952 and 1955. It has also been submitted that although Rule 27 did not apply yet the principles laid down in that rule were kept in view and they were confirmed after they passed the Departmental Examination. Further also it was urged that even if the rule applied, the Government could give effect to it with retrospectivity from 1.3.1956 which is a relevant and crucial date. By no stretch of imagination it can be said to be an arbitrary date. Notification was issued in April, 1958 only because of procedural and administrative delay. It is also obvious that in effect it was a recognition of a fact actually in existence.

Now the first point in this connection which arises for consideration is whether Rule 27 was applicable to the case of temporary Munsifs, that is, the present respondents. This requires a scrutiny of the language of this rule itself along with the other provisions in the rules, The words which are very important in Rule 27 are "otherwise than in a temporary capacity". It appears to me that unfortunately this rule is not very happily worded, but, however, reading the rule as it stands, the words "otherwise than in a temporary capacity" clearly show that this rule would not apply to those who have been appointed temporarily. In my opinion, there are other indications in the rule itself which do go to show that this rule was not applicable to the case of the respondents. Rule 27 undoubtedly is prospective and the words used are "shall be appointed on probation in the first instance". But here in this case the respondents were already in service and they cannot be said that they were being first appointed in the first instance. There is nothing to show that the word "appointed" used in the rule has to be read in the restricted sense that it excluded the first appointments in temporary capacity. To me it appears that there is another significant word which has been used in Rule 27 and it is the word "candidate". In Rule 27 the words are "A candidate appointed to the post of Munsif", whereas in Part III the temporary Munsifs have been definitely refund to as temporary Munsifs already in Government service. In Rule 24 also where the procedure has been laid down for the nomination of the temporary" Munsifs, they have been referred to as "Officers", such as, towards the last part of Rule 24 the words are "The Officers nominated by the Selection Committee...." The word "candidate" would obviously imply and mean a person who is an applicant for the post and I do not think the word "candidate" would include, in view of the facts, stated above these temporary Munsifs, who were already in service. Rule 27 is divisible into two parts and it refers to two stages in the career of a person appointed as Munsif. The first part of the rule lays down that the candidate shall be appointed on probation in the first instance. The second part lays down that such a person will be eligible for confirmation on the date on which he fulfils the conditions as enumerated in Clause (i). (ii) and (iii) of Rule 27. Clause (i) lays down that he has completed two years'' service from the date of first appointment. But here in this case many of the respondents had already completed two years of service. There is nothing also to show that the words "first appointment" with regard to the temporary Munsifs have to be read in the restrictive sense that this two years'' period will be from the date they are appointed on probation. I may also in this connection refer here a letter from the Registrar of the High Court addressed to the Chief Secretary, Government of Bihar (Annexure J) to the counter-affidavit of the High Court dated the 20th of April, 1960. Recommendation in this letter was made for permanent absorption and the relevant portion of this letter may be quoted here for the elucidation of the matter thus.

In accordance with the orders contained in the Appointment Deptt. Letter No. 1/A1-502/52 A 8386, dated the 29th September, 1953, temporary service up to 2 years, counts towards the period of probation. These 86 Munsifs have already competed more than 2 years of temporary service. They have, therefore, fulfilled the first condition of confirmation. They are, therefore, eligible for confirmation with effect from 1.3.1950. In this letter a list of Munsifs has been given who have not passed the Departmental Examination completely. This clearly shows that the High Court in accordance with the Government instruction referred to in that letter had been following the principle that the two years'' period should be counted from the date the appointment was made temporarily. This letter also shows that the passing of the Departmental Examination which is one of the conditions in Rule 27 was also being taken into consideration and, therefore, this clearly shows that there was a substantial compliance of Rule 27 although Rule 27 did not apply to their case.

It also appears to me as I have already indicated above, that as far as the temporary Munsifs already in Government service are concerned, Rules 24 to 26 constituted complete code of rules which applied to them and examining the position in this light in my opinion it appears that only because Rule 27 occurs under the heading "Central" it cannot be held that Rule applied specifically to officers completed in Part III referred above.

It has been contended by the learned counsel for the petitioners that Rule 28 is very significant because it states that no recommendations except those received in accordance with these rules shall be taken into consideration. Rule 28 is again divisible into two parts and the first part is with regard to the manner of recommendations which should be in accordance with the rules. The second part of the rule is forbidding any canvassing to enlist support. Rule 28 would give indication that Rule 27 is mandatory, but at the same time this is also a matter for consideration that Rule 28 although it occurs just after Rule 27 does not show that the recommendation referred to or this rule means only one that is made under Rule 27 because the words are "in accordance with these rules". This would also it elude the rule laid down in Rules 24 and 25.

Now as far as the question whether Rule 27 is mandatory or directory, here again the same considerations should arise as I have already discussed with regard to Rule 3. In my opinion considering the purpose of the rules and the intention there can be no doubt that Rule 27 is mandatory, but, of course, the question whether Rule 27 applies or not is completely a different question and I have already discussed that aspect of the matter. Mr. Basudeva Prasad has also referred to Rule 2(b). Rule 2 runs as follows:--

2 (a) Recruitment to the post of Munsifs shall be made either in accordance with the rules in Part II or in accordance with the rules in Part III, or both.

(b) Recruitment to the posts of Subordinate Judges shall be made, by the High Court; by promotion of Munsifs confirmed under Rule 27.

Mr. Basudeva Prasad has strenuously argued that if Rule 27 does not apply to the temporary Munsifs and their confirmation has not been in accordance with Rule 27 then under Rule 2(b) they are disqualified and debarred from being promoted as Sub-Judges because they have not been confirmed in conformity with Rule 27. He has very aptly observed that if such be the case, then the petitioners would not mind such a seniority given to the respondents because it will not be a "Pinching seniority" inasmuch as, they will not be eligible for promotion as Sub-Judges.

It has been urged on the other hand on behalf of the respondents that although a rule to this effect, viz., Rule 2(b) has been framed under Article 234 yet this Rule 1(b) has been framed under Article 234 yet this Rule 2(b) is violative of the provisions of Article 235 of the Constitution. This contention seems to be correct because it puts restriction on the powers of the High Court in the matter of promotion as conferred by Article 235 of the Constitution because the High Court in the authority which has the power of promotion as also held by the Supreme Court in the case of ((sic)) the High Court of Calcutta and another versus Kamal Kumar Roy and others (A.I.R. 1962 Supreme Court, 1740).

Now the second question which arises for consideration is that even if it be assumed that Rule 27 did apply to the case of the respondents also, then could it be applied with retrospectivity. Reference in this connection may be made to a very important decision of the Supreme Court in the case of (10) B.S. Vadera Vs. Union of India (UOI) and Others, . In that case the Indian Railway Establishment Code had been issued, by the President, in the exercise of the powers vested in him by the proviso to Article 309 of the Constitution. Rule 157 of the Code conferred full powers to Railway Board to make rules of general application to non-gazetted railway servants under their control and in exercise of that power a schema was actually framed and then there was an amendment of the scheme and both these were made retrospectively effective from the date of the initial constitution of the service. It was held by the Supreme Court that the Board had such power in absence of an Act of an appropriate Legislature under the main part of Article 309 and the rule making authority under the proviso had power to nuke a rule both prospectively and retrospectively. It may also be mentioned here that their Lordships of the Supreme Court also, referred to a Lull Bench decision of the Allahabad High Court, vide paragraph 27 page 125 of the aforesaid report. Their Lordships observed with reference made to two decisions, one of the Mysore High Court and another of the Allahabad High Court and the view of the Full Bench of the Allahabad High Court was approved. It would be necessary, therefore, in this correction to see the Full Bench decision of the Allahabad High Court in the case of (11) Ram Autar Pandey Vs. State of Uttar Pradesh and Another, , That was a case of compulsory retirement from service. The Government had issued notification by which the age of superannuation had been raised from 55 years to 58 years and then by another notification the age of superannuation was again reduced to 55 years and this was challenged. The Full Bench of the Allahabad High Court held that the rule making power conferred by Article 309 on the Governor or his nominee is not confined to prospective rule making and appears to be wide enough to include the makings of rules with retrospective effect. The Legislature can legislate prospectively as well as retrospectively and the powers of the Governor under the proviso to Article 309 being identical with that of the legislation under the main article the Governor can make rules with similar effect. The decision of the Supreme Court known as Vadera''s case was also considered by a Full Bench of this Court in the case of (12) Madan Mohan Prasad and Others Vs. Government of Bihar and Others, and on the basis of the decision in Vadera''s case this Court held that the Schedule to the Bihar Superior Judicial Service could be amended.

Reliance on Vadera''s case has been placed on be half of the respondents and Mr. Basudeva Prasad has submitted that the facts are distinguishable and even in view of the decision in Vadera''s case it cannot be held that the Government could make appointment under Rule 27 with retrospectivity. This position is clear that there is nothing in the rules imposing any restriction on the power to give effect with retrospectivity.

Mr. Basudeva Prasad also in this connection relied on a decision of the Supreme Court in the case of (13) The Cannanore Spinning and Weaving Mills Ltd. Vs. Collector of Customs and Central Excise Cochin and Others, . In that case the word "hank" had been used in the notification and a question arose as to what would be the meaning of the word and whether it was used in a technical sense and there it was held that the rule making authority under the Central Excise and Salt Act, 1944 was not invested with powers to make rules with retrospective effect. Therefore, it was ultra vires. The facts and the circumstances of the Case are quite distinguishable and would not apply to the facts of the present case.

Reliance has also been placed on a decision of the Punjab High Court in the case of (14) Suresh Kumar and Another Vs. Union of India and Others, . Mr. Basudeva Prasad has relied on the decision in this case to the effect that service conditions of Government servants cannot be effected with retrospectivity by executive instructions and this was with regard to Article 309 of the Constitution. The facts of that case are quite different and distinguishable from the facts of the present case because in that case according to Government executive instructions seniority list of the lower division clerks was prepared and approved and as a result of this the appellants were confirmed in their services and promoted to the upper division cadre and it was held that they could not be reverted and ranked lower in the scale in another seniority list prepared according to new instructions issued subsequently for fixing seniority amongst lower division clerk. It was held that no Government by its inherent power can make changes in the service conditions of its personnel with retrospective effect by mere executive instructions. The present case is not one where the seniority list has been changed by the Government, but it is a case where according to certain equitable principles which had been evolved notifications were issued. Mr. Lal Narain Sinha contended that the decision in the Punjab High Court case also show that in the determination of the question of seniority the length of seniority is one of the important principles for determination.

Reference has also been made in this connection to a decision of the Supreme Court in the case of (15) Sant Ram Sharma versus State of Rajasthan and others, reported in AIR 1910. That was a case with regard to the promotion to Selection Grade post in the Indian Police Service, and at page 1914, in paragraph 7, their Lordships while repelling the contention that in the absence of any statutory rules governing promotion to selection grade posts the Government cannot issue administrative instructions were pleaded to observe that they were unable to accept this argument as correct and that it is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts, but that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts.

Now as already observed in this present case the rules were silent on the question of the determination of the seniority and particularly on the question of seniority of the petitioners vis-a-vis the respondents. It is true that in the notifications appointing these respondents on probation retrospective effective dates were given, but in my opinion, this present case is really not a case where it can be said that a particular order has been given retrospective effect either Arbitrarily, nationally or fictionally. In this present case the temporary Munsifs, that is, the respondents were already in service. They have been continuing in service and although the Government could have terminated their services yet this was not done and the posts which were held by them were not only made permanent, but under the orders of the Government, already referred above, they were treated as officiating against those posts and I think on consideration of all these aspects of the matter that, this is clearly a case where the notifications in effect and substance only gave an official-recognition of an actual fact which had been in existence from before.

Mr. Basudeva Prasad appearing for the petitioners also submitted that even if it be taken that the Government could issue notifications with retrospective effect, then this could help only those of the respondents, who were appointed in 1952, but could not help that bitch of respondents who had been appointed in 1955. He has relied in this connection to two documents, viz., Annexure-D and Annexure G to the counter-affidavit of the High Court.

In Annexure D the High Court in its letter to the Government pointed out that the work and conduct of the 58 Munsifs of the temporary batch of 1952 were reviewed by the Court only in July, 1955 and the work and conduct of all these Munsifs, except three, were found to be satisfactory. It was also pointed out in that letter that as regards the temporary Munsifs of the 1955 batch, the Court are of the opinion that it would be better from the administrative point of view to review their work and conduct at the end of 1957 for they would then be in possession of sufficient material regarding the work of these temporary Munsifs for two years to judge their merit and capacity.

The Government replied to this letter (Annexure D) and the reply is Annexure G to the counter-affidavit of the High Court. The Government appreciated the difficulty pointed out by High Court, but towards the concluding portion of this letter has been stated that if the temporary Munsifs are appointed to the permanent posts with effect from the 1st March, 1956, they will continue to be senior to the new recruits, but as for temporary Munsifs whose records are unsatisfactory and who are not taken on the permanent cadre before 1957, no special provision need be made for them.

It has, therefore, been cc contended by Mr. Basudeva Prasad that the Government had put a date line which was "before 1957" and, therefore, the 1955 batch who had either not completed two years by that time or had not been recommended by the High Court till then could not be considered as those with regard to whom the Government had given retrospective dates for their appointment. It may be also stated here that this letter of the Government (Annexure G) is dated the 4th August, 1956 and it also appears that there were correspondence after that and recommendations were actually made by the High Court and then thereafter the Government issued notifications on the 29th April, 1958 which included those of 1955 batch also. In my opinion, the Government no doubt at one stage had taken such a decision, but after consideration of the reasons which given by the High Court, they acceded and deviated from the date line which had been given in Annexure G. I think that this was within the competence of the Government to do so.

It may also be mentioned here that as far as giving retrospective dates the petitioners cannot legitimately make a grievance of the same because as I have already pointed above although the notification confirming the petitioners was issued on the 22nd December, 1962, yet they were confirmed with effect from different dates in the year 1960.

Another question which is equally important which arises for consideration and it is this whether it can be said that the petitioners has a right which they are claiming in these petitions. It has been contended by Mr. Lal Narain Sinha that the principle of seniority may be governed by various principles and one such principle can be when the competition is between temporary appointees and other appointees, the length of service without reference to their relative dates of confirmation and he has relied in this connection the decision of the Punjab High Court in (14) Suresh Kumar and Another Vs. Union of India and Others, , referred above. It is also apparent from the materials on record that after the temporary posts wore made permanent, a single cadre was constituted comprising of those permanent posts which were existing from before and those posts which were made permanent subsequently. The cadre was thus enlarged, and, therefore, question relating to the filling up from the two sources naturally came up for consideration. It was, therefore, a case of determining initial seniority, and it was while considering the equities and fairness of the case the High Court and the Government evolved administratively a rule of seniority based on length of service which was to govern the temporary appointees vis-a-vis those appointed against permanent posts. In this connection I may refer here to two important documents, viz., Annexures "S" and "T" to the counter-affidavit of the High Court.

It appears from Annexure-S which is a letter from the High Court to the Government, dated the 2nd December, 1952 that a very similar situation had arisen in that year as there were temporary Munsifs, who had been appointed in the years 1943, 1945, 1946 and 1948. The High Court considered all aspects of the matter in that letter and towards the concluding portion while pointing out the difficulties and the case in paragraph 8 it was stated that the Court is of the opinion that the cadre should be to formed as to make it ore harmonious whole, and the offers should be so graded as to give due weight to their judicial and administrative experience, the year of their recruitment, seniority in age, practice at the Bar.

In the letter (Annexure-T) dated the 21st September, 1953, the Government agreeing with the view of the High Court stated that it will be against the best interest of the judicial administration in the State, if the temporary Munsifs referred above are placed below the directly recruited Munsifs confirmed in 1919. It may also be pointed that the petitioners must be presumed to have known that there were already temporary Munsifs working with the assurance of permanent absorption.

Mr. Basudeva Prasad has contended that the aforesaid two letters (Annexures S and T) should not be taken into consideration because these would be treated as dead letters and of no avail after the rules were framed under Article 234 of the Constitution. In my opinion for an appreciation of the position in its true perspective the relevant background, history and antecedent events have also to be considered.

As pointed above, the petitioners were appointed, as probationary Munsifs and a very vital question arises for consideration as to what are the status and the rights of a probationer and Mr. Balabhadra Prasad Singh appearing for some of the respondents has emphatically asserted that having regard to the relevant rules in this regard, in the Bihar Service Code it will appear that the position of the probationer was not better than that of the temporary Munsifs, The word, "Probationer" has not been defined in the Rules and Rule 27 entitles him to be confirmed if he fulfils the conditions laid down in that Rule. In Rule 41 of the Bihar Service Code ''Probationer'' has been defined as meaning a Government servant employed on probation against a substantive vacancy in the cadre of a Department. Rule 37 of the Code defines a "permanent Government servant" as one who holds a lien to the post and the word "lien" has been defined in Rule 28 of the Code. A probationer, in my opinion, until he is made permanent cannot be deemed to hold a lien. In this connection I may refer to an important decision of the Supreme Court known as the Dhingra''s case in the case of (16) Parshotam Lal Dhingra Vs. Union of India (UOI), . Their Lordships of the Supreme Court have considered the meaning and the status of a person appointed to a temporary post and on probation and they were pleased to hold that a temporary post for a certain specified period also gives the servant who is appointed a right to hold the post for the entire period of his tenure and his tenure cannot be put to an end during that period and further that the appointment to a post permanent or temporary or on probation or on an officiating basis or a substantive appointment to a temporary post gives to the servant so appointed no right to the post and his service may be terminated unless his service had ripened into what is, in the service rules, called a quasi permanent service. The post of a temporary Government servant in my opinion is certainly more precarious than one who has been appointed on probation against a permanent post, but it is clear that until he has been confirmed, he has no further right except that he would be eligible for confirmation subject to fulfilling the conditions which may have been laid down in the Rules. The appointment on probation as against a permanent post does not also, in my opinion, ipso facto confer the right of seniority over those who were in service although temporarily from before. If there be rules giving such a seniority to such a Government servant then of course that would be enforceable. In the absence of the Rules then having regard of the equities of the case certain principles regarding seniority may be evolved and as already pointed above, length of service may be an important criterion.

The granting of a relief in an application under Article 226 is discretionary with the Court and before such a relief can be granted the petitioner must satisfy the Court that he has such a legal right as was held by the Supreme Court in the case of (17) Rai Shivendra Bahadur Vs. The Governing Body of the Nalanda College, .

In the case of (18) Veerappa Pillai Vs. Raman and Raman Ltd. and Others, it was held by the Supreme Court that the writs referred to in Article 226 are intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of the record and such act, omission or error or excess has resulted in manifest injustice.

In another decision of the Supreme Court in the case of (19) The State of Bombay and another versus The United Motors (India) Ltd. and others, reported in 1953 Supreme Court Reports (Vol. 4), page 1969 it was held that it is always desirable when relief under Article 226 is sought on allegations of infringement of fundamental rights, that the Court should satisfy itself that such allegations are well founded before proceeding further with the matter.

This brings us to another very important aspect of the matter, that is, whether there has been an infringement of the fundamental rights as contemplated by Articles 14 and 16(1) of the Constitution. It may be mentioned here that although Article 14 has also been pleaded yet really the infringement of Article 16(1) has been pressed. Article 16(1) of the Constitution is only an instance of the application of the general rule of equality laid down in Article 14. It is now well settled that persons claiming the infringement of such a right must be equally situated and it has been also well settled now that Article 16(1) does not bar a reasonable classification or a reasonable test for selection. I may in this connection refer here to three important decisions of the Supreme Court One of these is in the case of (20) S.G. Jaisinghani Vs. Union of India (UOI) and Others, . It was a case with regard to the income tax officers and their Lordships were pleased to hold that promotions from the Departmental promotees and the direct recruits are based on reasonable classification and doss not offend the guarantee under Articles 14 and 16(1) of the Constitution. It was also further held that promotion or appointment to a service from two sources is a reasonable classification.

The other decision is in the case of (21) Govind Dattatray Kelkar and Others Vs. Chief Controller of Imports and Exports and Others, where it was held that whether classification of employees for the purpose of appointment or promotion is reasonable or not depends upon facts of each case and unless classification is prima facie unjust, onus lies on party attacking such classification to show that it is unreasonable and violative of Article 16(1). In that case the recruitment from different source was with different ratios and it was held that in the case of recruitment to posts from different sources as to what the ratio between the two sources would be adequate or not would depend upon the facts of each case, and that unless the ratio is so unreasonable as to amount to discrimination, court carrot strike it down or suggest a different one.

The third decision is in the case of (22) Mervyn Coutindo and Others Vs. Collector of Customs, Bombay and Others, . It was a case in respect of the cadre of Appraisers in Customs Department where seniority was fixed by a rotational system, that is, by alternately fixing promoted and direct recruit in seniority list and it was held that even in case there was no violation of the principles of equality.

The last point which I will now consider is the argument which has been advanced by Mr. Rash Bihari Sinha appearing for respondents'' 58 and 5. I have also referred to this in the earlier part of my judgment. Mr. Rash Bihari Sinha has appeared for respondents 58 and 59. Both respondents 58 and 59 were confirmed by Notification dated 24/11/1960, but with effect from 11/1/1967 and 13/1/1957 respectively. It may be stated here that no counter affidavit has been filed on behalf of these two respondents. Mr. Rash Bihari Sinha has submitted that he is entitled to support the case of the petitioners even if he has not filed a counter affidavit because a writ application is like a civil proceeding and just as defendant can support the case of the plaintiff wholly or partly, so a respondent in a writ application also without filing a counter affidavit can support wholly or partly the case of the petitioners. There can be no doubt that this proposition, as stated by him is correct because undoubtedly a writ application would be a civil proceeding, but the facts which I will be, discussing here would show that the point which he has raised is quite different from one which has been urged by the petitioners themselves and in such view of the matter, it would have been desirable if a counter affidavit has been filed to enable the other respondents to meet this contention. However, his submission is that in matters governing seniority, the date of confirmation should be the only and the sole criterion for determining the seniority. He has submitted that logically it follows that an officer who is confirmed earlier should rank senior to those confirmed later. Mr. Rash Bihari Sinha, therefore, has in other words raised an issue not only of seniority between the petitioners vis-a-vis the respondents, but rather a question of seniority vis-a-vis the respondents inter se themselves. He has also in this connection relied on an unreported decision of a Division Bench of this Court in the case of (23) Sheonath Roy versus Union of India and others (C.W.J.C. No. 167 of 1969) disposed of on the 27th February, 1970. He has relied on observations of their Lordships in that case at page 18 which run as follows:

It is a matter of general principle in Government service that a servant confirmed earlier in a particular grade or class of service is senior to the one who is confirmed later in the same grade or class.

In the first place I may point out that the facts in that case are quite different and distinguishable from the facts of the present case, and it also appears that their Lordships had considered other aspects of the matter also because at another place it was also observed thus:--

That being so, it follows from the entire history of the case, which I have given in my judgment, that he was undoubtedly senior to respondent no. 5 in grade I service. The order of respondent no. 4 is arbitrary and is based upon obviously wrong interpretation of the Board''s letter...........

As a general principle of course it can be said that the date of confirmation is an important criterion for determining inter se seniority, but it carrot be laid down that it will be the sole criterion. The determination of such a question has to depend on the facts and circumstances of each individual case.

It hay been urged on the other hand by Mr. Lal Narain Sinha that Mr. Rash Bihari Singh cannot be allowed to raise this question which has neither been pleaded by the petitioner nor any relief sought for on that score and therefore it will be an attempt to enlarge the scope of these present writ applications. The facts which I have stated above will clearly show that the scope of these two writ applications is the determination of the question of inter se seniority between one group of persons against the other. In both these writ applications the petitioners who have, been appointed directly on probation have jointly filed the applications forming one group and the respondents from the other group who were in temporary service and were subsequently appointed on probation. The relief is, therefore, directed against the respondents appointed in 1952 and 1955. The main ground of attack has been that there has been a violation of Rules 3 and 27 of the Rules and of Article 16(1) of the Constitution. It is obvious also from a perusal of the writ petitions as well as the submissions which have made that the foundation of the applications is not on the ground that the seniority must be determined on the basis of the effective dates of confirmation because no enunciation of such a contention has been given in the petitions, but only there his been given an enumeration of the dates of confirmation. The mere enumeration of the dates of confirmation cannot be an enunciation of a contention. Further more it appears that the petitioners themselves could not have raised this point because Annexure ''4'' which has been filed along with the petition already shows that the order in which the names have been mentioned are also not on the basis of the dates of confirmation. It was not disputed that this Annexure "4" is according to the gradation list as it stands. It may be also stated that this list is not in alphabetical order and it is also clear that some consideration other than the date of confirmation were there because Serial No. 7 in this Annexure "4" shows that he was confirmed from 27th November, 1960, Serial Nos. 8 and 9 were confirmed from the 6th of February and the 10th of February, 1960 respectively, but still their names appear in Annexure "4" below Serial No. 7. There are such other instances also in the list. It cannot also be disputed that no rule has been framed with regard to the seniority and the point, therefore, which has been raised by respondents 58 and 59 in effect would be enlarging the scope of the writ applications because this does not arise for consideration in view of the scope and the relief sought for in this petition.

Before I conclude I may mention here that on the request at the Bar by Mr. B.C. Ghose appearing for the respondents the delivery of the judgment was withheld because he brought to our notice that there has been a recent decision of the Supreme Court in a case from Assam. We, therefore, waited until a cyclostyled copy of the judgment of the Supreme Court which is supplied to the members of the Supreme Court was given to us. It may also be mentioned here that this was filed on behalf of the respondents, but the learned counsel for the respondents as well as the petitioners did not wish to advance any argument. This recent decision of the Supreme Court is in the case of (24) State of Assam and another versus S.N. Sen and another (Civil Appeal No. 1081 of 1967), decision on the 3rd of November, 1971, The short facts which gave rise to that case briefly stated are that the respondent no. 1 was initially appointed as an Extra Assistant Commissioner by the Governor of Assam on the 21st of December, 1950 and therefore he opted for Judicial Service and was appointed Munsif by the Governor of Assam with effect from the 1st of January, 1955. He was confirmed in the post of Munsif in Assam Judicial Service (Junior) Grade II with effect from the 8th of December, 1956. On or about the 15th of December, 1961, respondent no. 1 was promoted to act as the Additional Sub-Judge, Cachar, and he took charge on the 22nd December, 1961, The High Court of Assam and Nagaland confirmed the appointment of respondent no. 1 in the Judicial Service (Junior) Grade I with effect from the 1st of March, 1964 against the post of Sub-Judge No. 2 Gauhati. This post of Sub-Judge No. 2, Gauhati was temporary, but had been made permanent on the 31st of December, 1963. The Accountant General of Assam and Nagaland took objection to this order of confirmation as the violation of Rule 5 of the Assam judicial Service (Junior) Rules, 1954 because under that Rule the confirmation could only be made by the Governor and not by the High Court. Rule 5(iv) of the Assam Rules runs as follows:--

"5" Appointment, probation and confirmation--(iv) When a person is appointed to a permanent post, he will be confirmed in his appointment at the end of the period of the probation or extended period of probation. In case the Deputy Registrar and Assistant Registrar of the High Court, confirmation shall be made by the High Court. In other cases it will be made by the Governor in consultation with the High Court.

Their Lordships of the Supreme Court were pleased to hold that the Constitution makes specific provisions for appointment of District Judges and for recruitment of the person other than the District Judge to the Judicial Service and it also makes provision for the control to be exercised over the subordinate courts. They were also pleased to refer to Article 235 of the Constitution and it was held that respondent no.(Sic) in that case was appointed as Additional Sub-Judge, Cachar, and he was confirmed by the High Court of Assam and Nagaland and under the provisions of the Constitution itself the power of promotion of persons holding posts inferior to that of the District Judge is in the High Court and it stands to reason that the power to confirm such promotions should also be in the High Court. The facts of that case which I have stated above are different from the facts of the present case because there the question of promotion and confirmation on promotion arose, but here in this present case this question does not arise. Rule 27 deals with the confirmation of Munsif, that is to say, who are initially appointed and does not deal with the case of promotion. Rule 2(b) of course with the case of promotion and as far as Rule 2(b) is concerned, I have already discussed this Rule in paragraphs 25 and 26 of the judgment. This recent decision of the Supreme Court further strengthens my view as far as promotion is concerned, it is a matter absolutely within the control of the High Court under Article, 235 of the Constitution and, therefore, Rule 2(b) is violative of that Article, in as much as, it puts a kind of restriction on that power and control of the High Court.

On a consideration of all the aforesaid facts and the circumstances, in my opinion, this does not appear to be a fit case in which these two applications should be allowed and, thereafter both these applications are dismissed, but in the circumstances of the case, I would not make any order for costs.

P.K. Banerji, J.

I agree