Shri H.D. Kainthala vs The Union of India (UOI) and Others

R.S. Pathak, C.J.—The Petitioner prays for the quashing of the orders of the Central Government u/s 82(2) of the Punjab Re-organisation Act in regard to the equation of judicial posts of the erstwhile State of Punjab and of the Union Territory of Himachal Pradesh and determining the seniority of Judicial Officers allotted to Himachal Pradesh in relation to the officers already serving in Himachal Pradesh. The Petitioner prays for a mandamus directing the High Court of Himachal Pradesh to determine the appropriate seniority of the Petitioner and the Respondents Nos. 4 to 10. Alternatively, the Petitioner prays that the seniority list in respect of Subordinate Judges of Himachal Pradesh finalised by the Government of India should be quashed and a mandamus be issued to the Union of India, the State of Himachal Pradesh and the High Court of Himachal Pradesh to assign the appropriate seniority to the Petitioner and grant consequential promotion to him.

The Petitioner, who was a Government Advocate at Bilaspur, was appointed a member of the subordinate judiciary in Himachal Pradesh and posted as Additional Sub-Judge at Mandi as from November 1, 1961. In January, 1963, he was appointed Senior Sub-Judge-cum-Assistant Sessions Judge at Mandi and was confirmed with effect from November 1, 1963. In April, 1968, he was appointed Chief Judicial Magistrate, Kangra district at Dharamsla. On the transfer of certain territories of the existing State of Punjab to the Union territory of Himachal Pradesh under the Punjab Re-organisation Act, 1966, two members of the Superior Judicial Service Class I and 13 members of the subordinate judiciary Class 11 were allotted to Himachal Pradesh as from November 1, 1966, the "appointed day". The Respondents Nos. 4 to 10 are officers of the subordinate judiciary Class 11 who were so allotted. In Himachal Pradesh, at the time, there were 7 Judicial Officers of Class II, namely Senior Sub-Judge--Assistant Sessions Judges and Sub-Judges, and there were 9 posts then in the subordinate cadre. The Central Government, acting u/s 82 of the Punjab Re-organisation Act, took proceedings for the division and integration of the services. A provisional joint seniority list was prepared on the basis of what has come to be known as the K.L.M. formula and objections were invited from the Judicial Officers. The Petitioner submitted a representation and also appeared before a Committee of Judges of the Delhi High Court on October 18, 1969. Thereafter, it appears, the matter reached the Advisory Committee constituted by the Central Government. The Petitioner applied for a hearing before the Advisory Committee but was subsequently informed that his representation had been rejected. The joint seniority list was finalised by the Central Government and a copy of it was received by the Petitioner on November 12, 1970.

The Petitioner raises three contentions before us. The first contention is that there has been no proper equation of the Punjab judicial posts with the Himachal Pradesh judicial posts. It is urged that by the letter dated February 14, 1967, the Central Government had laid down the principles on the basis of which integration was to be effected. It is contended that those principles have not been followed. Several details have been set out in the writ petition in the attempt to show that the post of Senior Sub-Judge-cum-Assistant Sessions Judge in Himachal Pradesh held by the Petitioner on the "appointed day" was superior to and, therefore, could not be equated with the post of Subordinate Judge in Punjab.

The second contention, which relates to a slightly different aspect of the first, is that confirmed Judicial Officers cannot be equated with unconfirmed Judicial Officers and that they belong to two different classes and by treating them as one class discrimination had been practised against the confirmed judicial officers.

In the connected Writ Petition, A.N. Bhoil v. Union of India and Ors. Civil Writ Petition No. 70 of 1970, decided by Hon''ble C.J. and Hon''ble D.B. Lal, J. on June 28, 1973., I have expressed the view that the function of accomplishing the division and integration of the services, which includes the equation of posts and the fixation of seniority, is a function entirely entrusted to the Central Government by Section 82 of the Punjab Re-organisation Act and that it is not open to this Court to sit in judgment on the merits of a decision of the Central Government in exercise of that function. It is not necessary to set out here the several considerations upon which I came to that conclusion. They have been sufficiently detailed in my judgment in that case. A decision of the Central Government u/s 82 can assailed either on the ground that it is in excess of the powers conferred by the statute or violates some constitutional provision or is vitiated by mala fides and promoted by extraneous considerations. My brother Chet Ram Thakur agreed when he observed in the same case.

I am also of the same view that it being an administrative decision cannot be questioned in a court of law unless the same is mala fides, based on extraneous considerations and outside the scope of authority given by the statute.

I think it is beyond dispute that considerations such as these can constitute a basis for assailing the validity of an administrative order. They are equally available for '' challenging the validity of a quasi-judicial order. But whereas a quasi-judicial order is open to challenge, in some degree, on the merits by certioriari, an administrative order cannot be so questioned.

The decision of the Central Government impugned in the present case is an administrative decision, and it has not been shown that in arriving at the decision the Central Government has committed any of the errors for which an administrative order can be struck down by the Court. For the reasons which have prevailed with me in A.N. Bhoil (supra), I hold that the two contentions now raised by the Petitioner cannot be the subject of adjudication on the merits by this Court.

The third contention is that the Central Government was not competent to determine the equation of posts and fix the seniority of Judicial Officers inasmuch as that is a function essentially entrusted to the High Court under Articles 233 - 235 of the Constitution. According to the submission of the Petitioner, the Central Government was competent merely to allot Judicial Officers from the erstwhile State of Punjab to the successor States. We have been referred to a number of cases in support of the proposition that matters such as confirmation, promotion and determination of seniority lie with the High Court. The cases referred to are The General Manager, Southern Railway Vs. Rangachari, Kidar Nath v. Punjab Government AIR 1964 P&H 285, Moti Lal Bhagwan Das v. The Union of India AIR 1965 Pun. 444 , Madan Mohan Prasad and Others Vs. Government of Bihar and Others, and State of Assam v. S.N. Sen and Anr 1972 S.L.R. 1. On their basis, the Petitioner contends that the final seniority list drawn up by the Central Government is invalid. The contention can be disposed of shortly.

On the "appointed day", Himachal Pradesh was a Union Territory, as was governed by Part VIII of the Constitution. Under Article 239, it was administered by the President acting through an administrator. Article 241(1) provides that Parliament may by law constitute a High Court for a Union Territory. Article 241(2) declares that the provisions of Chapter V of Part VI shall apply in relation to every High Court referred to in Clause (1) as they apply in relation to a High Court referred to in Article 214 subject to such modifications or exceptions as Parliament may by law provide. Chapter V of Part VI of the Constitution contains Article 230 which provides that Parliament may by law extend the jurisdiction of a High Court to any Union Territory. Now under Article 241(1) Parliament enacted the Delhi High Court Act, 1966, constituting a High Court for the Union Territory of Delhi. And with the aid of Article 241(2) read with Article 230, the jurisdiction of the Delhi High Court was extended to the Union Territory of Himachal Pradesh. It will be noticed that Article 241(2) does not apply Chapter VI of Part VI to a High Court constituted for a Union Territory. Consequently Articles 233 - 235, which occur in Chapter VI of Part VI, could; not be applied in relation to subordinate courts in Himachal Pradesh. That was the position obtaining when proceedings for the integration of allotted officers were under way in the Union Territory of Himachal Pradesh.

It is urged for the Petitioner that in any event the power lies with the High Court under the provisions of the Himachal Pradesh (Courts) Order, 1948, to determine the seniority of judicial officers, and the Central Government has no power in the matter. Now, as I have already said, the Punjab Re-organisation Act has conferred power on the Central Government in respect of the division and integration of the services. The Central Government has been entrusted with the power to determine the equation of posts and fix the seniority of all the judicial officers, be they allotted from Punjab or already serving in Himachal Pradesh. The Punjab Re-organisation Act can be traced to the provisions of Article 3 and Article 4 of the Constitution. Article 3(a) empowers Parliament to enact a law forming a new State by separation of territory from any State. Under Article 3(b) the law can provide for increasing the area of any State. The Explanation to Article 3 defines the expression ''State'' used in Clauses (a) and (b) of Article 3 as including a Union Territory. Article 4 provides that a law referred to in Article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provision of the law and may also contain such supplementary, incidental and consequential provisions as Parliament may deem necessary. The Punjab Re-organisation Act is an example of such legislation. Section 95 of the Act declares that the provisions of that Act shall have elfect notwithstanding anything inconsistent therewith contained in any other law. There can be no dispute then that if there is any clash between the Punjab Re-organisation Act and the Himachal Pradesh (Courts) Order, 1948, the latter must yield to the former.

I 10. In my opinion, Articles 233 - 235 of the Constitution cannot be applied in the present case, and the provisions of the Punjab Re-organisation Act must be given full elfect notwithstanding anything to the contrary in the Himachal Pradesh (Courts) Order, 1918.

finally, the Petitioner urges that the order of the Advisory Committee rejecting his representation is invalid inasmuch as it docs not disclose the reasons for the rejection. In A.N. Bhoil (supra), I have taken the view that the proceedings u/s 82 of the Punjab Reorganisation Act are purely administrative. That being so, no question rises of any obligation to disclose reasons in the order.

The petition fails and is dismissed. But in the circumstances there is no order as to costs.

D.B. Lal, J.

I have had the advantage of reading judgment of the learned Chief Justice, and I entirely agree with the conclusion to which he has reached. However, I wish to point out my reasons for non-interference by this Court in the matters of allocation, integration, equation and fixation of inter se seniority so far as the Petitioner is concerned, with reference to Section 82 of the Punjab Re-organisation Act, 1966.

The reliefs sought for by the Petitioner are that the integration, equation and fixation of seniority as made by the Central Government should be quashed for the reasons stated by him. He has further asked for mandamus to set aside the seniority list and to allocate a different seniority making him senior to Respondents 4 to 10 who are the judicial officers allocated from the State of Punjab. His reasons are, that officers with longer record of service have been allocated to his disadvantages, that such an allocation has made his chance of promotion remote, that the K.L.M. formula was wrongly applied, that unconfirmed officers were equated with confirmed officers, and that Assistant Sessions Judges were equated with Subordinate Judges. Upon these grounds, contends the Petitioner, he deserves to be declared senior-most as compared to the Respondents 4 to 10. According to him, Article 14 and 16 of the Constitution have been violated.

As to the allocation of officers senior in service and not junior in service as compared to the Petitioner, he can have no objection, the decision being administrative. The directions of the Central Government that were issued u/s 84 of the Act laid down principles to be followed for equation of posts. These instructions were meticulously followed in the case of the Petitioner. There has not been any post of Assistant Sessions Judges as such in Himachal Pradesh. Under the Himachal Pradesh (Courts) Order, 1948, the only post recognised was that of the Subordinate Judge. The Respondents 4 to 10 were as much Subordinate Judges as the Petitioner can claim to be. The nature of post and duties performed by the Petitioner as Assistant Sessions Judge were of the same category as performed by the Respondents 4 to 10. It is also evident that the powers of Assistant Sessions Judge were conferred qua the place of posting and not the officer posted. Therefore, the equation of post was also validly made. In fact, the Petitioner has not been able to point out any reasonable ground upon which it could be held that the integration, equation or determination of seniority has been made against the statutory rules or for any reasons to be considered mala fide. In my opinion therefore, on merits the Petitioner has no case.

While delivering my dissenting judgment in A.N. Bhoil v. Union of India decided by this Court on 28th June, 1973, I expressed my own doubts if it could be held that any decision of whatever nature arrived at u/s 82 of the Act would be an administrative decision and not a quasi-judicial decision open to interference by court. If a decision violates any provision of the constitution or negatives any statutory provision or is not sustainable otherwise for reasons of natural justice in my opinion the said decision is questionable in a court of law. My learned brother Chet Ram, J. to whom this point was referred by us, seems to have reiterated this view. In his judgment the following observation is found:

Unless the persons feeling aggrieved can show that the authority has acted mala fide or on extraneous considerations not warranted by the statute then necessarily that act of the administrative body would be open to challenge before the court otherwise not.

At another place, the learned Judge observed:

I am also of the same view that it being an administrative decision cannot be questioned in a court of law unless the same is mala fide, based on extraneous considerations and outside the scope of authority given by the statute.

I fully endorse this view expressed by the learned third Judge to whom our points of difference were referred in the aforementioned decision. Since in the instant case it has not been established by the Petitioner that "any extraneous considerations not warranted by the statute" were brought in, or that any rule was violated, or that the authorities acted mala fide, he is not entitled to get the relief claimed by him. For this reason, I am not in favour of granting any relief to the Petitioner.

In my opinion, therefore, the petition required dismissal, leaving the parties to bear their own costs.

For the reasons contained in our respective judgments the writ petition is dismissed. There is no order as to costs.