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Ashok Kumar Mukherjee Vs. the Registrar of High Court of Madhya Pradesh and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 421 of 1971
Judge
Reported inAIR1976MP25
ActsConstitution of India - Articles 14, 16 and 311(2); ;Madhya Pradesh Civil Courts Act
AppellantAshok Kumar Mukherjee
RespondentThe Registrar of High Court of Madhya Pradesh and anr.
Appellant AdvocateK.P. Munshi and ;Y.K. Munshi, Advs.
Respondent AdvocateY.S. Dharmadhikari, Adv. General and ;J.P. Bajpai, Dy. Adv. General
Cases ReferredParshottam Lal Dhingra v. Union of India
Excerpt:
- - 11. bearing in mind the dictionary meaning of the word 'rank' as well as the legal connotation of this word, it would appear to us that the post of a civil judge, class i, must be treated as one of superior grade or rank than that of civil judge, class ii, particularly after the adoption of the aforesaid resolution by the high court. it clearly says that the selection of a civil judge, class ii, as civil judge, class i, shall be deemed as promotion, and promotion means being raised to a higher position or rank. it, therefore, follows that if a civil judge holding the post of a civil judge class i, is reverted and posted as civil judge, class ii, it clearly amounts to his reduction in rank. of a civil judge, class ii, as pointed out above, is clearly a post of a lower grade than the.....raina, j.1. this is a petition under articles 226 and 227 of the constitution of india for quashing the reversion of the petitioner from the post of civil judge, class i to the post of civil judge, class ii.2. the petitioner was appointed as civil judge in 1962, and was confirmed in 1964. he was initially posted as civil judge, class ii and continued to occupy that post until he was appointed as civil judge class i at umaria on 24-5-1968. on 13-5-1969, he was transferred to seoni as civil judge class ii vide annexure 'b'. according to the petitioner, this amounted to reduction in rank. he, therefore, challenged the order dated 13-5-1969 on the ground that it was in contravention of article 311 of the constitution and also on the ground that it was in violation of articles 14 and 16.....
Judgment:

Raina, J.

1. This is a petition under Articles 226 and 227 of the Constitution of India for quashing the reversion of the petitioner from the post of Civil Judge, Class I to the post of Civil Judge, Class II.

2. The petitioner was appointed as Civil Judge in 1962, and was confirmed in 1964. He was initially posted as Civil Judge, Class II and continued to occupy that post until he was appointed as Civil Judge Class I at Umaria on 24-5-1968. On 13-5-1969, he was transferred to Seoni as Civil Judge Class II vide Annexure 'B'. According to the petitioner, this amounted to reduction in rank. He, therefore, challenged the order dated 13-5-1969 on the ground that it was in contravention of Article 311 of the Constitution and also on the ground that it was in violation of Articles 14 and 16 thereof.

3. The Division Bench of this Court before which the petition came up for hearing referred the following questions for decision to a larger Bench in view of the decision of this Court in B.A. Nigam v. Registrar, High Court of M. P., 1971 MPLJ 973 = (1972 Lab 1C 95).

(1) Whether it is correctly decided in B. A. Nigam v. Registrar, High Court of M. P. (supra) that maintenance of a separate list of Civil Judges, Class I, counting their seniority from the date they are appointed as Civil Judges, Class I, amounts to creation of a new cadre?

(2) Whether in considering the names of Civil Judges, Class I, in the order in which they are shown in the said list, Articles 14 and 16 of the Constitution are violated?

(8) Whether the withdrawal of powers of a Civil Judge, Class I, from a Civil Judge and asking him to exercise powers of Civil Judge. Class II, amounts to 'reduction in rank?

4. Before we proceed to deal with the aforesaid questions it would be pertinent to take note of the fact that the decision of this Court in B.A. Nigam v. Registrar, High Court of M. P., 1971 MPLJ 973 = (1972 Lab IC 95), has been set aside by the Supreme Court in Registrar of High Court of M. P. v. B. A. Nigam, 1973 MPLJ 680 = (AIR 1973 SC 1371). Learned counsel for both the sides frankly conceded that in view of the decision of the Supreme Court the first two questions have to be answered in the negative. We, therefore, do not consider it necessary to deal with this matter any further and answer the first two questions in the negative.

5. The controversy before us was confined to the third question. The point for consideration in connection with this question is whether the posting of a Civil Judge, Class I as Civil Judge, Class II amounts to reduction in rank. This question assumes importance particularly in the context of Articles 311 of the Constitution of India. The word 'rank' has not been defined in the Constitution. Its ordinary dictionary meaning is 'an official grade or position'. It also means 'a relative position usually in a scale classifying persons or things.' (Webster's New World Dictionary, Second College Edition page 1176). According to 'Black's Law Dictionary' Fourth Edition, page 1426 it signifies 'grade of official standing'.

In 7.5 C. J. S. at page 458 'Rank' is defined as meaning 'grade of official standing'. Bearing in mind the aforesaid meaning of the word 'rank' we may examine the question referred to us. For a proper examination of this question it is necessary to take note of the following facts. There is one single cadre of Civil Judges borne on a uniform scale of pay. There are no separate cadres of Civil Judges Class I and Civil Judges Class n with different scales of pay.

6. Section 3 of the Madhya Pradesh Civil Courts Act, 1958 (hereinafter referred to as 'the Act') however, lays down that there shall be the following classes of Civil Courts, namely:--

(1) the Court of the District Judge;

(2) the Court of the Additional District Judge;

(3) the Court of the Civil [fudge (Class I); and

(4) the Court of the Civil Judge (Class II).

Section 6 of the Act provides that the Court of Civil Judge (Class II) shall have jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rs. 5,000/- while the Court of Civil Judge (Class I) shall have jurisdiction to hear and determine any suit or original proceeding of a value not exceeding Rupees 10,000/-.

7. A Civil fudge is originally appointed as Civil (fudge, Class II and it is only after he has gained sufficient experience of judicial work that he is posted as Civil Judge, Class I. Usually a Civil Judge, Class II of 5 or 7 years standing is posted as Civil Judge, Class I.

8. Under Section 5 of the Act, the State Government is empowered to establish as many Courts of Civil Judges, Class I or Civil Judges, Class II for each Civil District as it may think fit. Thus there is only a limited number of Courts of Civil Judges, Class I as established by the State Government under the said section and the number of posts of Civil Judges, Class I available is equivalent to the number of Courts established by the Government. Under Section 8 of the Act, a Civil Judge may be appointed as Additional Judge to the Court of Civil Judge, Class I and thus additional posts of Civil Judges, Class I can be created under the said section. In any case the number of posts available for appointment as Civil Judge, Class I or Additional Civil Judge, Class I is limited. There being a single cadre of Civil Judges, usually the senior ones amongst them are posted as Civil Judges, Class I. It appears that originally, although some seniority was considered essential for posting as Civil Judge, Class I, the appointment to such post was not strictly in accordance with the seniority. Often such postings were made on the basis of practical convenience. For example, in a small place a Civil Judge, Class II may be appointed as Civil Judge, Class I to deal with suits upto the value of Rs. 10,000/-even though many Civil Judges senior to him may not be appointed to work as Civil Judges, Class I elsewhere. This did not, however, affect the chances of promotion, of other Civil fudges who were senior, the appointment being treated as purely fortuitous.

9. On or about the 3rd May, 1968 a new principle was introduced by the High Court for promotion of Civil Judges to the post of Additional District and Sessions Judges. That principle was that for such promotion the seniority was to be counted from the date when he first exercised the powers of Civil Judge, Class I. Finally this was formally accepted and adopted on October 1, 1969 by the following resolution passed in a meeting of the Court:

'Resolved that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so, only the cases of Civil Judges, Class I, shall be considered for promotion as Additional District and Sessions Judges in order of their seniority. '

10. In our view, the effect of the aforesaid resolution was to sub-divide the cadre of Civil Judges into two parts--one consisting of posts of Civil Judge, Class II, and the other of posts of Civil Judges, Class I--even though the posts in both the parts carried the same scale of pay. In pursuance of the aforesaid resolution, there was a regular screening and selection of Civil Judges, Class II, for promotion as Civil Judges, Class I, and the date of appointment as Civil Judge, Class I, was treated as the material date for determining the inter se seniority of Civil Judges holding the posts of Civil Judges, Class I. The promotion to the post of Additional District Judge was exclusively from the posts of Civil Judges, Class I. No Civil Judge, Class II, could be directly promoted as Additional District and Sessions Judge.

11. Bearing in mind the dictionary meaning of the word 'rank' as well as the legal connotation of this word, it would appear to us that the post of a Civil Judge, Class I, must be treated as one of superior grade or rank than that of Civil Judge, Class II, particularly after the adoption of the aforesaid resolution by the High Court. This conclusion is fully supported by the stand taken by the High Court in B. A. Nigam's case, (1972 Lab 1C 95 Madh Pra). We may here refer to the following statements made in the return filed by the Registrar, High Court of Madhya Pradesh in Miscellaneous Petition No. 537 of 1969 vide Annexure E:

In paragraph 8 of the return it was stated as under-

'Before a Civil Judge, Class II, is appointed as Civil Judge, Class I, having higher pecuniary jurisdiction and carrying greater powers, his suitability, which is a matter of selection and screening, is considered.' In paragraph 11 of the said return it was stated as under:

'If a Civil Judge, Class I, is to be sent as Civil Judge, Class II, it would be derating his superior position, status and jurisdiction from a higher class to a lower class, hence it would further come in his way of being considered amongst Civil Judges Class I for promotion to the cadre of Additional District and Sessions Judge.' Further, in paragraph 12 it was stated as under:

'As submitted earlier, the distinction in the categories of Civil Judges, Class I, and II is real and substantial for a Civil Judge, Class II, who is found unsuitable to be taken in the Class of Civil Judge, Class I, cannot be considered suitable for his promotion as Additional District and Sessions Judge.' It would be clear from the aforesaid assertions made by the Registrar on behalf of the High Court in that _case that the posts of Civil Judges, Class I, are to be treated as of higher rank and grade, and as such reversion to the post of Civil Judge, Class II, amounts to reduction in rank.

12. An argument has been advanced on behalf of the State that posting of a Civil Judge as Civil Judge, Class I, merely implies that he is invested with higher powers and it cannot be construed as promotion to a post of higher rank. There might have been some force in this contention, if separate Courts of Civil Judges Class I, had not been established by the Government, and Civil Judges, Class II, could be invested with powers ' to deal with suits upto Rs. 10,000/- just as they can be invested with the powers of Small Cause Courts under Section 9 of the Act. Moreover, the resolution of the High Court has made all the difference. It clearly says that the selection of a Civil Judge, Class II, as Civil Judge, Class I, shall be deemed as promotion, and promotion means being raised to a higher position or rank. It is significant that their Lordships also used the word 'promotion in the context of appointment of Civil Judges, Class II, as Civil Judges, Class I, twice in paragraph 3 of the judgment in Registrar of High Court of M. P. v. B. A. Nigam, (AIR 1973 SC 1271) (supra). Thus, keeping in view the scheme of the Act and the principle adopted by the High Court by the aforesaid resolution, it is quite clear to us that there is a regular selection of Civil Judges holding the posts of Civil Judge, Class II, for promotion and posting as Civil Judge, Class I, the post of Civil Judge, Class I, being treated as a post of superior rank. It, therefore, follows that if a Civil Judge holding the post of a Civil Judge Class I, is reverted and posted as Civil Judge, Class II, it clearly amounts to his reduction in rank.

13. It has been urged that the expression 'reduction in rank' in Clause (2 of Article 311 of the Constitution should be construed in a technical sense in which it is used in the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1965. Reliance in this connection has been placed on the decision of the Delhi High Court in S.K. Shrivastava v. Union of India, (1971) 2 Serv LR 453. But, even if it is so construed, it would not make any difference in this case. Rule 6 of the said Bules classifies the Civil Services of the State into Class I, Class II, Class III and Class IV; but this classification is not exhaustive. Moreover from sub-rule (2) of the said Rule it would appear that a service in a particular class may consist of more than one grade. Rule 9 of the said Rules specifies reduction to a lower service, grade or post as one of the penalties which may be imposed on a Government servant. The post: of a Civil Judge, Class II, as pointed out above, is clearly a post of a lower grade than the post of a Civil Judge, Class I, even though both the posts are borne on the same scale of pay.

14. The learned Advocate General relied strongly on the observations of the Delhi High Court in paragraph 17 of the judgment in S. K. Shrivastava v. Union of India, (1971) 2 Serv LR 453 (supra) in support of his contention that the scale of pay of a post is the sole criterion to determine the rank of the post. The scale of pay is no doubt an important criterion; but there are other factors which are equally important.

15. In our view, it would be erroneous to assume that there is no reduction in rank so long as there is no loss of emoluments. In K. Gopaul v. The Union of India, AIR 1967 SC 1864, their Lordships, while considering the question whether any reduction in rank was involved took into account various factors, apart from the scale of pay itself. There can be posts of various grades in the same scale of pay. In such a case reversion of a person from the post of a higher grade to a lower grade would amount to reduction in rank even though no loss of emoluments is involved thereby. For purposes of illustration it may be pointed out that it is open to the Government to create in the State Education Service a single cadre on a uniform scale of pay which may cover the posts of teachers as well as Headmasters. Reversion from the post of Headmaster to the post of teacher may not in such a case involve loss of emoluments but it would certainly amount to reduction in rank.

16. We, therefore, hold that the withdrawal of powers of Civil Judge, Class I, from a Civil Judge and asking him to exercise the powers of a Civil Judge, Class II, amounts to reduction in rank, because he cannot be considered for promotion as Additional District and Sessions Judge unless and until he is again promoted as Civil Judge, Class I, and even then his chances of promotion will be based on his seniority as Civil Judge, Class I, as counted from the date of his second promotion.

17. We, therefore, answer the questions referred to us as under:--

Question

Answer

(1)

Whether it is correctly decided in B. A. Nigam v.Registrar, High Court of M. P., 1971 MPLJ 973 = (1972 Lab IC 95), thatmaintenance of a separate list of Civil Judges, Class I, counting theirseniority from the date they are appointed as Civil Judges, Class I, amountsto creation of a new cadre?

No.

(2)

Whether in considering the names of Civil Judge, ClassI, in the order in which they are shown in the said list, Articles 14 and 16of the Constitution are violated?

No.

(3)

Whether the withdrawal of powers of a Civil Judge, ClassI, from a Civil Judge and asking him to exercise the powers of Civil Judge,Class II, amounts to 'reduction in rank'?

Yes.

18. Before we conclude, we would like to observe that it is settled law that Article 311 of the Constitution is not attracted in every case of reduction in rank. As pointed out by their Lordships of the Supreme Court in Parshotam Lal Dhingra v. Union of India, AIR 1958 SC 36, Article 311 is attracted only where such reduction amounts to punishment.

19. Shri K. P. Munshi, learned counsel for the petitioner, cited a number of decisions of the Supreme Court on the point to show that the reversion of the petitioner in this case amounted to reduction in rank by way of punishment. But we do not consider it necessary to go into the question whether the reduction in rank in this case way by way of penalty or not, as it has not been referred to us. That would be a separate question to be determined by the Division Bench on the basis of the material on record.

20. We answer the reference accordingly.

Malik, J.

21. I had the advantage of reading the draft order prepared by Brother Baina, J. I regret, I am unable to agree with him that withdrawal of powers of Civil Judge, Class I, from a Civil Judge and asking him to exercise the powers c; Civil Judge, Class II, would amount to 'reduction in rank'. In the view I have taken, the answer to the question should be in the negative, that is, withdrawal of powers would not amount to 'reduction in rank.'

22. Brother Baina, J. has lucidly stated the facts leading to the making of this reference to a larger Bench. The Division Bench hearing the matter was of the opinion that decision in Nigam's case B. A. Nigam v. Registrar of the High Court of Madhya Pradesh, Jabalpur, 1971 MPLJ 973 = (1972 Lab 1C 95), required a reconsideration on the following points:

Yes.

(i) Whether it is correctly decided in B. A. Nigam v. Registrar, High Court of M. P. (supra) that maintenance of a separate list of Civil Judges, Class I. counting their seniority from the date they are appointed as Civil Judges, Class I, amounts to creation of a new cadre?

(ii) Whether in considering the names of Civil Judges, Class I, in the order in which they are shown in the said list, Artcles 14 and 16 of the Constitution are violated?

(iii) Whether the withdrawal of powers of a Civil Judge, Class I, from a Civil Judge and asking him to exercise powers of Civil Judge, Class II, amounts to 'reduction in rank'?

23. Nigam's case, (1972 Lab TC 95 (Madh Pra), went up in appeal to the Supreme Court and the order of this Court was set aside. The said judgment of the Supreme Court is reported in Registrar of High Court of Madhya Pradesh v. B. A. Nigam, 1973 MPTJ 680 = (AIR 1973 SC 1271). The judgment of the Supreme Court came to be delivered after the order of reference was made. The task is now easy, since I find, all the three questions raised by the Division Bench have been expressly or by implication answered in that judgment. Brother Raina, J. has, however, answered the first two questions in the negative in view of the Supreme Court's pro-nouncements ie Nigam's case. The answers are that maintenance of a separate list of Civil Judges, Class I, by the High Court, does not amount to creation of a new cadre, and that consideration of the Civil Judges, Class I, in the order in which they have been shown in that list, for promotion as Additional District Judges, does not violate Articles 14 and 16 of the Constitution.

24. Raina, J., does net read into the judgment the answer to the third question.

He says that the point is neither expressly nor by implication decided. For reasons given in his order, he is of the opinion that withdrawal of powers of Civil Judge, Class I, from a Civil Judge and to post him as a Civil Judge, Class II, would amount to 'reduction in rank'. And this is where I disagree and I propose to give my own reasons.

25. 'Reduction in rank' has a technical meaning envisaged as a punishment. The expression is derived, very probably, from the Civil Services (Classification, Control and Appeal) Rules, 1930, and signifies 'reduction to a lower post, or to a lower time-scale or to a lower stage in the same time-scale.' That was the meaning attributed to the expression in Dhingra's case P. L. Dhingra v. Union of India, AIR 1958 SC 36. To the same effect is Fundamental Rule 15 which says that 'the lien of a person cannot be transferred to a lower post or to a lower time-scale without his consent except for misbehaviour, that is, by way of punishment.

26. The admitted position in our State i.s that there is only one cadre of Civil Judges, governed by one set of service conditions, without any compartments or grades. The Madhya Pradesh Civil Courts Act, no doubt, has created two types of Courts, the Court of Civil Judge, Class I, exercising a little wider pecuniary jurisdiction than that of the Court of Civil Judge, Class II. But classification of Courts would neither constitute a cadre within a cadre, nor would the cadre-strength be determined by the number of such Courts created. Creation of cadre, that is, determining the unit of service and its strength, is a function which the State Government performs under Entry 41 of List II read with Article 162 of the Constitution. That is essentially an executive function. The High Court cannot, by adopting a resolution that the selection of a Civil Judge for exercising the power of a Class I Court would be deemed as promotion and that the further promotion of an Additional District Judge would be made from out of those Civil Judges exercising Class I powers in order of their seniority in that list, create a new cadre, or cadre within cadre, of a superior type. It would again be wrong to suggest that the strength of the new cadre of Civil Judges, Class I would be the same as the number of Class I Courts created by the State Government under the Madhya Pradesh Civil Courts Act. The fallacy of the suggestion can be explained thus. The State Government creates 45 Courts of Civil Judges. But the cadre strength of Civil Judges is say, just 30. The work has to be managed by thirty Judges, some Courts functioning whole-time and some as Circuit Courts. The cadre strength and the number of Courts could thus be different.

27. The State Government have not agreed to create a separate cadre of Civil Judges Class I and to sanction a higher pay-scale to them. They have appointed Civil Judges under a uniform time-scale and have determined their strength, leaving the choice to the High Court as to which of them should preside over the Courts of Civil Judge Class II and which of them over the Courts of Civil Judge Class I, The unit of service, despite some exercising higher powers and some lower powers, remains but one integrated whole, insofar as their service conditions are concerned. Just because some Civil Judges are required to man Courts of higher jurisdiction and some of lower jurisdiction, those who man the higher Courts do not acquire any superior rank or status. Unless the service conditions recognized the exercise of higher powers, conferring on them higher rank, all those would but constitute one unit.

28. Our Civil Judges work as magistrates also and if classification were to be made on the basis of powers conferred upon them, they could be put in a number of categories, such as Civil Judge Class II-Magistrate 2nd Class, Civil Judge Class II-Magistrate 1st Class, Civil Judge 1st Class-Magistrate 1st Class, Civil Judge 1st Class-Chief Judicial Magistrate, Civil Judge Class II with small cause powers, aside Civil Judges who work as Railway Magistrates, Municipal Magistrates, Traffic Magistrates and Special Magistrates and so on. It would be a dangerous proposition to split up the unit of service on the basis of powers conferred on each individual Judge. Neither would conferral of powers upon a Civil Judge give him higher rank in the sense of promotion to higher grade or post, nor would withdrawal of powers be a reduction in rank in the sense that expression has to be understood.

29. The question to ask is this. Does a Civil Judge, when he functions as Presiding Officer of the Court of Civil Judge, Class I, officiate on a higher post? The word 'officiate' has a technical meaning of its own. While officiating oa a higher post, the person is supposed to retain a lien on his substantive post. He is supposed to officiate to a higher post where the incumbent of that post has proceeded on leave or deputation and holds a lien, or where the post is lying vacant. Could we, by any stretch of imagination, say that the Civil Judge retained his lien on his substantive post of Civil Judge Class II, when he was posted to function as Civil Judge, Class 1? We could not possibly say so unless the strength of that higher unit was determined by an express executive order and unless that unit was recruited directly or by promotion.

30. It logically follows that a Civil Judge, while presiding over the Court of Civil Judge, Class I, is not officiating on a higher post and his work cannot be deemed to involve the assumption of duties or responsibilities of any greater importance. The Government has, by placing all Civil Judges under the same pay-scale, refused to recognize the two categories as separate entities for the purposes of rank. The Government has recognized the first higher rank to that of a Civil Judge, to be that of an Additional District Judge. When powers are conferred on a Civil Judge to preside over a Class I Court, it is not in fact a promotion and transfer, either substantively or on officiating basis, on a post in a superior cadre. There is to cadre, no confirmation, no lien, no officiation, no permanency, as we understand by Service Rules, when Civil Judge is posted as Civil Judge, Class I. The Civil Judges form but one unit whether they function as Class II Courts or as Class I Courts. There is neither promotion nor reduction in rank upon conferral of powers or withdrawal of powers,

31. I may usefully reproduce here the placitum in S.K. Srivastava v. Union of India, (1971) 2 Serv LR 453 (Delhi), explaining the meaning of the word 'rank' as understood by service rules and the Constitution of India, Article 311(2):

'The word 'rank' as used in Article 311(2) of the Constitution has not been defined. But it is well-established that the words 'dismissal, removal and reduction in rank' have a technical significance due to the special meanings attached to them historically from the very beginning. The meaning so attached to the word 'rank' is that it is a class or a grade of service. The classes or the grades relevant for this purpose are those which are arranged in an ascending or a descending order, that is to say they must be one above the other or one below the other.

The word 'rank' has, therefore, a strictly service law significance. One rank is distinguished from another only by the classification of services or of posts within which they respectively fall.

The concept of 'rank' being solely significant for the purposes of administration or services and the law relating to it, the Government has always applied the criterion of pay to distinguish one class or grade of service or post from another. In fixing the pay of a particular post or the scale of pay of a particular service, the Government considers the status and responsibility attached to a particular post or class of service.

The pay itself is determined by the Government after taking into account the nature of the duties involved in the post. As the Government would have already taken into account the nature of duties, responsibilities and the status of different posts before classifying them and would have indicated the classification by the fixation or different salaries, or pay scales, the Courts should be well advised in regarding the pay or the scale of pay of a post as the principal criterion to determine the rank of the post. Further, the Courts are not in the same position as the Government is in determining the nature of duties, responsibilities and status of a particular post and in comparing those with the nature of duties, responsibilities and status of another post. It would not be advisable, therefore, for the Courts to ignore the classification made by the Government as indicated by the emoluments fixed by the Government and try to determine afresh the rank of a particular post by having regard to consideration other than the pay specially because these considerations, have already been taken into account by the Government in fixing the pay or the pay-scale of a particular post.'

The emphasis towards the end is that the Courts should not ignore the classification made by the Government which is indicated by the pay-scale, a particular grade carried, and try to determine afresh the rank of a particular post by having regard to the nature of duties performed and such other considerations.

32. Brother Raina, J. relying on the authority of K. Gopaul v. The Union of India, AIR 1967 SC 1864, observed that the pay-scale was not the only factor to be taken into account in deciding whether a person had suffered reduction in rank. There could be posts of various grades in the same scale of pay. For instance, he says, the Head-Master and the other teachers could be borne on the same pay-scale but reversion of the Head-Master to the post of a teacher wculd be reduction in rank.

In my reading of the K. Gopal's authority, I find the ratio to be something different. K. Gopal was Inspector General of Registration. He was transferred to the post of 'Accommodation Controller', a post carrying the same scale of pay, both posts included in I. A. S. Cadre. K. Gopal's contention was that his transfer to the latter post was reduction in rank firstly because the latter post was not the post of the Head of the Department and secondly because the post of Inspector General was superior in rank to that of Deputy Secretary and that of Controller was not. Their Lordships observed:

'That the plea taken by K. Gopal was without force. The fact that the latter post was not designated as that of a head of department was of no consequence as rank in Government service did not depend upon the mere circumstances that the Government servant in the discharge of his duties is given certain powers. In Government service, there may be senior posts, the holders of which are not declared Heads of the Department, while persons holding junior posts may be declared as such. Further, the post of I. G. could be filled up by transfer of a Deputy Collector or an Assistant Secretary and that showed that the post of I. G. is equated with them. The Accommodation Controller's post was not lower than that of a Deputy Collector or an Assistant Secretary.'

The ratio seems to be that the rank does not depend upon the responsibilities an incumbent of a unit discharges, or whether he is the Head of the Department. So long the scale of pay is the same, he can be transferred to any post borne on the strength of that unit. The authority does not seem to support the view Raina, J. has taken.

33. I might as well cite the authority of the Supreme Court in AmalKumar Roy's case, High Court, Calcutta v.Amal Kumar Roy, AIR 1962 SC 1704. Thefacts were these. The respondent was aMunsif in the West Bengal Civil Service(Judicial). When the cases of several Munsifs came up for consideration before theHigh Court for inclusion of names in thepanel of officers to officiate as SubordinateJudges, the respondent's name was excluded. He was told by the Registrar of theCourt, on a representation made by him,that the Court had decided to consider thecase after a year. As a result of such exclusion, the respondent, who was then the senior most in the list of Munsifs, lost eightplaces in the cadre of Subordinate Judgesbefore he was actually appointed to act asan Additional Subordinate Judge. He filed asuit praying that a declaration might bemade that he occupied the same position inrespect of seniority in the cadre of Subordinate Judges as he would have done itno supersession had taken place. His case,in substance, was that as a result of theHigh Court's order he was reduced byeight places in the list of SubordinateJudges, and that in law amounted to reduction in rank within the meaning of Article 311(2)of the Constitution.Their Lordships of the Supreme Court held:

'In our opinion, there is no substance in this contention because losing places in the same cadre, namely, of Subordinate Judges, does not amount to reduction in rank, within the meaning of Article 311(2). The plaintiff sought to argue that 'rank', in accordance with dictionary meaning, signifies 'relative position or status or place', according to Oxford English Dictionary. The word 'rank' can be and has been used in different senses in different contexts. The expression 'rank' in Article 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. Hence, in the context of the Judicial Service of West Bengal, 'reduction in rank' would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsiff, the rank of a Subordinate Judge being higher than that of a Munsif. But Subordinate Judges in the same cadre hold the same rank, though they have to be listed in order of seniority in the Civil List, Therefore, losing some places in the seniority list is not tantamount to reduction in rank. Hence, it must be held that the provisions of Article 311(2) of the Constitution are not attracted in this case.'

The expression 'rank' has reference to person's classification in the hierarchy of service to which he belongs, and not to higher or lower responsibilities the incumbents of the same cadre discharge.

Amal Kumar Roy's decision has been quoted with approval in subsequent decisions of the Supreme Court in The Divisional Personnel Officer, Southern Railway, Mysore v. S. Raghavendrachar, AIR 1966 SC 1529 and Shitla Sahai Srivastava v. General Manager, North Eastern Railway. Gorakhpur, AIR 1966 SC 1197.

34. To revert to the decision of the Supreme Court in Nigam's case, it is implicit in their Lordships' Judgment that there was no provision in the Service Rules for classifying Civil Judges as Class I and Class II and the power to make such classification vested with the Government and not with the High Court. Their Lordships, therefore, construed the resolution of the High Court in the following words:

'While it is true that the Service Rules do not provide for Civil Judges being classed as Class I Civil Judges and Class II Civil Judges, we cannot ignore the fact that the jurisdiction of the Class II Civil Judges is only upto Rs. 5,000 and that of Class I Civil Judges upto Rs. 10,000/-. The resolution of the High Court of May, 1968 should not be interpreted literally. If it is done in its proper background, it would be appreciated that what was done was not to create a new class of Civil Judges called Class I Civil Judges but to have a list of persons who were qualified to be posted as Class I Civil Judges and to provide that fitness for being posted as Class I Civil Judges and acting as such for some time should be considered as a qualification for promotion as Additional District and Sessions Judges.'

Their Lordships have pointedly said that the resolution of the High Court could not be interpreted literally, clarifying further that the High Court had not created a new class of Civil Judges Glass I, but had only prepared a list of persons who had qualified to exercise the powers of the Court of Civil Judge Class I and in turn would further qualify themselves for promotion as Additional District Judges. A person who has not been found fit to exercise the powers o! the Court of Civil Judge Class I, does not deserve to be considered for still higher powers of the Court of the Additional District Judge, follows as a necessary corollary.

35. The mere fact that such a list, is prepared, would not give the person included in the list an indefeasible right to promotion as an Additional District Judge. He must maintain his fitness for promotion till such time his turn comes for being considered for promotion. If he does not maintain efficiency, he can any time be eliminated from the list and that can never be construed as 'reduction in rank'. A person, who was earlier dropped, could as well exert and show better proficiency and claim to be included in the list and be restored to his original place of seniority. The resolution the Court had adopted, was in the nature of an administrative policy, not an inflexible rule of a statute, but just a norm, which could conveniently serve the object.

36. We have cases wherein a person officiating in a higher post was reverted to his substantive post and the question arose whether the action was penal, whether it entailed forfeiture of his pay, or loss in the seniority in the substantive rank or had af-fected his chances of future promotion. In the present case, however, such a question would not arise because while presiding over the Court of Civil Judge, I, the petitioner could not be said to be officiating on a higher post. Whether he presided over the Court of Civil Judge Class II or over the Court of Civil Judge, Class I, he was just a Civil Judge in the cadre meant for manning both types of Courts.

37. In this view of the matter, the third question should also be answered in the negative. My answers to all the questions referred to in para 2 (here para 22) above are in the negative.

P.K. Tare, C.J.

38. I have had the advantage of perusing the differing orders proposed by my learned brothers, Raina, J. and Malik, J. The facts have been succinctly stated in the order of my brother Raina, J. and I need not repeat them except to appreciate the main questions arising. Out of the three questions referred by the Division Bench to a Full Bench, both Raina, J. and Malik, J. have concurred that questions Nos. 1 and 2 should be answered in the negative and I agree with them. However, as regards question No. 3, Raina, J. is of (he opinion that the reversion of a Judge from Civil Judge, Class I to Civil Judge, Class II would amount to reduction in rank; while Malik J. has expressed the opinion that it would not be so. It is, therefore, necessary to examine as to what the phrase 'reduction in rank' signifies.

39. There can be no doubt that as laid down by their Lordships of the Supreme Court in Parshottam Lal Dhingra V. Union of India, AIR 1958 SC 36, the phrase has a technical meaning with reference to the service rules. It would imply (i) reduction to a lower post, (ii) or to a lower time scale, (iii). or to a lower stage in the same time scale. Thus, the consequences of reduction in rank would have the effect of putting an employee in a lower post or in the alternative to a lower time scale or to a lower stage in the same time scale. Therefore, we have to examine whether the reversion of the petitioner from Civil Judge, Class I, to Civil Judge, Class II, had any of the said consequences.

40. An anomalous position has been created on account of the tact that the service rules do not exactly conform to the Madhya Pradesh Civil Courts Act, 1958. The Civil Judge, as he is ordinarily known, exercises not only civil powers, but also criminal powers. Before the coming into force of the Code of Criminal Procedure, 1973 with effect from 1-4-1974, the Madhya Pradesh State Judicial Service (Classification, Recruitment and Conditions of Service) Rules, 1955, although not in force legally, were for all practical purposes adopted by the State Government as also by the High Court. Under the Central Provinces Civil Courts Act, 1917, there were separate Courts of Civil Judge, Class I and Civil Judge, Class II and the former of which could be considered to be a promotion post. The next higher post was that of the Additional District Judge and according to the view prevailing then, the Court of the Additional District Judge used to be a part and parcel of the Court of the District Judge. But, ail the same the pay scales were different. In the year 1956 the Central Provinces Civil Courts Act, 1917, was amended and the distinction between Civil Judge, Class I, and Civil Judge, Class II was abolished and thereafter, the lowest cadre was that of Civil Judges. The next cadre was that of Additional District Judges and the next thereafter was the cadre of District Judges. So far as the District Judges were concerned, the Indian Administrative Service Rules were applied to them in almost all respects except some. As such, under the Service Rules all Civil Judges were of the same cadre, whether they exercise powers of Class I or Class II. On the criminal side they all used to be Magistrates of First Class irrespective of the powers on the civil side. The position was again altered on account of the Madhya Pradesh Civil Courts Act, 1958, which again created separate Courts of Civil Judge, Class II, who would exercise powers of trial of suits valued up to Rs. 5,000/-; while the Courts of Civil Judge, Class I, would be able to try suits valued up to Rs. 10,000/-; and thereafter, the jurisdiction would be that of the Additional District Judge and the District Judge. But, on the criminal side, no change was made except under the Code of Criminal Procedure, 1973, whereunder Chief Judicial Magistrates have been introduced, who are competent to sentence a person to imprisonment up to seven years and Assistant Sessions Judges, who are competent to sentence a person up to ten years. After the coming into force of the Code of Criminal Procedure, 1973, Chief Judicial Magistrates have been appointed in the State, who on the civil side are still known as Civil Judge, Class I. Assistant Sessions Judges have not yet been appointed. This state of affairs has created an anomalous position. However, as long as the State Legislature does not intervene or the State Government in exercise of its powers under Article 162 read with Article 309 of the Constitution of India does not make a provision, the anomalous situation arising out of difference in the statutory powers exercised by the Judges and the Service Rules has to be resolved. For the purpose of Article 311 of the Constitution of India, I am of the opinion that it is the Service Rules which have to be looked into to ascertain as to whether there is in fact a reduction in rank.

41. The petitioner was recruited as Civil Judge in the year 1962 and was confirmed in 1964. He was posted as Civil Judge, Class II. On 24-5-1968 he was pasted as Civil Judge, Class I. It appears that the High Court was not probably satisfied with his performance and, therefore, on 13-5-1969 he was posted to Seoni as Civil Judge, Class II. But, even so, the petitioner exercised Magisterial powers of the first class on the criminal side even after the so-called reversion. It did not affect his pay in any manner. We have, therefore, to examine whether this amounted to reduction in rank.

42. The High Court by resolution, dated 1st October, 1969, resolved that selection of a Civil Judge, Class II, as a Civil Judge, Class I, shall be deemed as promotion and that being so only cases of Civil Judges, Class I, shall be considered for pro-motion as Additional District and Sessions Judges in order of their seniority. The High Court thus in the matter of promotion as Additional District Judges gave preference to Judges, who came to be appointed as Civil Judge, Class I, and the chances of promotion for Civil Judges, Class II, thus receded. There was no bar to the promotion of a Civil Judge, Class II, to the post of an Additional District Judge. This matter was raised in the case of B. A. Nigam v. Registrar of the High Court of Madhya Pradesh, 1971 MPLJ 973 = (1972 Lab 1C 95). However, the view of a Division Bench of this Court was reversed by their Lordships of the Supreme Court in Registrar of High Court of Madhya Pradesh v. B. A. Nigam, 1973 MPLJ 680 = (AIR 1973 SC 1271). We have, therefore, to examine the implications of the said Supreme Court decision. Though the Service Rules do not provide for classification of Civil Judges as Class I and Class II, the Madhya Pradesh Civil Courts Act, 1958, did provide for such classification and the former exercise greater powers. Their Lordships of the Supreme Court laid down that the High Court by passing the resolution had not created a new class of Civil Judges a new cadre. It was also held that the High Court was justified in taking the experience of the exercise of larger powers as a criterion for the post of Additional District and Sessions Judges and that such requirement had a rational relation to the suitability of Civil Judges for such promotion. With respect to the said Supreme Court decision, my brothers Raina, J. and Malik, J. have come to contrary conclusions. Brother Raina, J. is of the opinion that the third question posed before us does not stand answered by the said Supreme Court decision; while Malik, J. is of the opinion that the third question also stands answered by the pronouncement of their Lordships of the Supreme Court, in B. A. Nigam's case (supra). It is, therefore, necessary to ascertain whether the withdrawal of powers of Civil Judge, Class I, from a Judge and posting him as Civil Judge, Class II, would amount to a reduction in rank. Their Lordships of the Supreme Court in Registrar of the High Court of Madhya Pradesh v. B. A. Nigam (supra) have clearly laid down that the High Court had not created any separate cadre by adopting the resolution and that the criterion adopted by the High Court for promotion to the post of Additional District and Sessions Judges was quite rational and reasonable because experience regarding exercise of wider powers would be a relevant consideration for such a promotion. The question about reduction in rank has, therefore, in my opinion, to be answered in the light of the consequences that might ensue on account of withdrawal of such powers.

43. As already indicated earlier, the powers on the criminal side would remain the same, namely, that the Civil Judge would still continue to be Magistrate First Class despite the fact that he may have been reverted from Civil Judge, Class J, to Civil Judge, Class II. There would be no reduction of pay. The only thing would be that he would lose his seniority and would become junior to Civil Judges, Class I and his chances of promotion would consequently recede. Now losing seniority in the same grade or in the same time scale resulting in chances of promotion receding can certainly not be equated with reduction in rank. The phrase 'reduction in rank' implies reduction to a lower post or to a lower time scale or to a lower stage in the same time scale, as laid down by their Lordships of the Supreme Court in Parshottam Lal Dhingra v. Union of India, AIR 1958 SC (sic) (supra), Therefore, by no stretch of imagination can loss of seniority resulting in receding of the chances of promotion be termed as reduction in rank, The petitioner was neither reduced to a lower post, nor to a lower time scale, nor to a lower stage in the same time scale. Reduction has the result of adversely affecting the status as a Government servant holding a particular post or in the alternative-it would adversely affect pay. Therefore, if neither of the evil consequences ensues, the petitioner's posting as Civil Judge, Class II, in the year 1969 cannot at all be considered to be reduction in rank, although it is true that his chances of promotion did recede and he would be considered for promotion as Additional District judge after the list of Civil Judges, Class I is exhausted. It is true that the pay scale is not the only factor to be considered in ascertaining whether a person has been reduced in rank. Reduction in rank would mean either loss of status or loss of salary or loss of time scale. But where the chances of promotion recede, the same can never be equated with reduction in rank or where there is loss of seniority, the same can also not be considered to be reduction in rank. In this view of the matter I agree with my learned brother, Malik, J. in holding that the third question should be answered in the negative.


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