CHANDRAMOULESHWAR PRASAD versus PATNA HIGH COURT & ORS.

Citation: [1970] 2 S.C.R. 666 · Decided: 07-10-1969 · Supreme Court of India · Bench: M. HIDAYATULLAH
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Judgment (excerpt)

•·666 
CHANDRAMOULESHWAR PRASAD 
A 
v. 
PATNA HIGH COURT & ORS. 
October 7, 1969 
[M. HIDAYATULLAH, C.J., S. M. SrKRI, G. K. MITTER, A. N. RAY, 
B 
AND P. JAGANMOHAN REDDY, JJ.J 
Constitution of India, 
1950, Art. 
233-Appointment of 
Di.Hrict 
Judge:;-Consultatio11 lVith High Court, what is. 
Gradation List of Additional District Judges prepared by High Coun--
Eflect of entry therein. 
The petitioner as well as 
respondents 3 to 5 belong to the Judicial 
Service of Bihar. 
They joined service as Munsif, the petitioner in 1941 
and the respo~dents 3 to 5 in 1944. They were promoted '" SuborJir.atio 
Judges and in 1962 the question of promoting them as Additional Dh.trict 
:and Session Judges was considered by the High Court ~nd Governm-ent. 
and although the High Court wanted respondents 3 and 4 to function as 
Additional District and Sessions Judges ahead of the petitioner and its re-
commendation in that behalf was accepted by the Government, due 
to 
certain circumstances the petitioner started acting as ~uch earlier. than ri:s,-
pondents 3 to 5 from January 1963. The Bihar Civil 'List published in 
March 1968 showed the petitioner as No. 10, and respondents 3 to 5 as 
No. 12 to 14 in· the cadre. The respondents made a representation· to the 
High Court for a correction of their gradation in the Jist and the High 
'Court accepted the representation in September 1968. · In the samt: month. 
the District and Sessions Judge at Arrah retired and respondent No. 3 
who was the third Additional District and Sessions Juilge was asked by 
1he High Court to officiate in the vacancy. The petitioner "ho was also 
workinB as first Additional District and Sessions Judge at the. same place 
.onsidered this to be a supersession and memorialized the Government 
•nd the Government took action on I.7th· October 1968 appointin~ the 
: .!titioner as officiating District and Sessions Judge. l"hereupon the High 
Court transferred the petitioner to another district on 25th October 1968. 
In a writ petition under Art. 32 for quashing the High Court's order 
-0f transfer, 
HELD: (1) The position of a person in a Civil List gives no indica-
tion of his intrinsic quality as an officer. 
The List merely shows 
the 
1en~th of service of the officers according to the dates of their app;Jintincn!. 
their posting at the time \.Vhen the list is published and their design<'!tion and 
scale of pay at that time. The. gradation 1ist of the High Court has no lel!al 
basis and its preparation is not sanctioned by the, Bihar Superior Judicial Ser-
vice Rules. The seniority inter se of the peitioner and the three respondents 
v.·oulfl have to be determined \vhen the question of their confilrmation 
comes up :for consideration since they are all holding vnly cfficia.ting posts. 
The ord~r of the High Court could not be supported on the basis' of 
seniority. [675 G] 
(2) But, the Government Notification of 17th October 1968 was not 
in compliance of Art. 233 of the Constitution. 
Under Art. 233 of the Constitution the a2pointment of a person to 
he District Judae rests with the Governor but he must m~'.\:e. the ·appointment 
in consultalione with the High Court. The Governor sho11ld make up his 
c 
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F 
G 
H 
A 
B 
c 
D 
E 
F 
G 
H 
c. PRASAD v. 11ATNA HIGH COURT (Mitter, J.) 
667 
mind afte.r there has been a deliberation with the High Court, because, 
the High Court is the body familiar with the efficiency and quality 
of 
officers who are fit to be promoted as District Judges. 
The consultation 
is not to be an empty formality. 
The consultation or deliberation 
i" 
not complete or effective before the parties thereto make their respective 
points of view known to the other or others and discuss an<l examine the 
relative merits of their views. 
If oµe party makes a proposal to the other 
who has a counter proposal in his mind which is not communicaK:ih to 
the propose.r, the direction to give effect to the counter· proposal, ·~ut 
anything more, cannot be said to have been issued 
~fter consultation. 
[674 F-675 Bl 
. 
In the present case, the correspondence showed that .whereas 
the 
High Court had definitely taken the view that respondent·' No. 3 as the 
senior Additional District and Sessions Judge should. take charge from 
the retiring District Judge the Government was not '"1 that view. 
But 
the Government never suggested to the High Court that the petitioner was 
senior to the, 3rd respondent or that he had a better claim and as such 
was the
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