STATE OF BIHAR versus MADAN MOHAN PRASAD & ORS.

Citation: [1976] 3 S.C.R. 110 · Decided: 19-12-1975 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed
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Judgment (excerpt)

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STATE OF BIHAR 
v. 
MADAN MOHAN PRASAD & ORS. 
December 19, 1975 
[A. N. RAY, C.J., M. H. BEG, R. S. SARKARIA AND P. N. SH!NGHAL, JJ.] 
Bihar Superior Judicial Service Rules, 1951-r. 16(e)-"may have 
beeli 
allowed to officiate continuously"-Scope and meaning of-Notional officiation 
-If pennissible. 
Cons1it11tion of India-Art. 235-Power of detennining seniority of District 
Judges-If ve.\ts in the High Court. 
Rule 6 of the Bihar Superior Judicial Service Rules, 1951, says that of the 
posts in the cadre of the service·, two-thirds shall be filled by promotion and 
one-third by direct recruitment. 
Clause (e) of r. 16 provides,.- that seniority of 
direct recruits vis-a-vis promoted officers shall be determined with reference to 
the dates from \Vhich they may 
have been allowed to o!Jiciate continuously 
in a post in the cadre of the Service. 
Respondents 1, 2 and 3 who were direct recruits were appointed as Additional 
District & Sessions Judges with effect from April 21, 1960. Respondents 4, 5 
· and 6 belonged to the judicial service of the State. 
Respondents 5 and 6 were 
promoted as Additional District & Sessions Judges. 
But despite the ava_ilability 
of a post from November 1, 1959, and suitability of respondent 4, he 
was 
appointed to that post only on September 19, 1960. His representation that his 
seniority should be fixed below that of respondent 6 was rejected by the High 
Court. 
But, the State Government said that in order to relieve undue hard-
ship to respondent 4, he should be deemed to have bei!n officiating as Additional 
District & Sessions Judge with effect from November 1, 1959 and that for the 
purposes of ~eniority he should rank immediately below respondents 5 and 6 
on the view that, on a proper interpretation of r. 16(e) of the Rules, the Gov-
ernment was authorised to fix the seniority from a date frorn lvliich officiation 
was possible on account of availability of vacancies. 
Respondents 1 to 3 (direct recruits1 in a writ petition impugned the Govern-
ment's action in fixing the seniority of respondent 4 below that of respondents 
5 and 6 but above them. 
Before the High Court the State contended that the 
meaning of the expression "might have been allowed to officiate continuously" 
in r. 16(e) is that a notional, continuous officiation in a post in the cadre of the 
service or outside it, will give preference to the promoted officers in the matter 
of seniority over the direct recruits provided there were vacancies, in one of 
which he could or might have been allowed to officiate continuously. The High 
Court rejected this contention and held that this expression meant actual and 
continuous officiation and not a fictional or notional one. 
Di.srnissing the appeal, 
HELD: (1) (a) The words "may have been allowed to officiate· continuously" 
in cl. (e) of r. 16 mean actual and continuous officiation and not a fortuitous 
or fictional officiation. A notional construction of the clause would lead to 
anomalous results. The State Government, therefore, could not, on an inter-
pretation of r. 16(e) say that for the limited purpose of seniority respondent 4 
would rank below respondents 5 and 6 but above the writ petitioners (respon-
dents 1 to 3) and will be deen1ed to have been officiating as Additional District 
& Sessions Judges with effect from November 1, 1959. Such a deeming officia-
tion for the purpose of determination of seniority on a construction of cl. (e) 
was not permissible. [117 H-118 B] 
(b) Reading cl. (e) together with cl. (a) and (b) of r. 16, it is clear that 
before fixing the seniority of direct recruits vis-a-vis promoted officers it will be 
necessary, as a prelin1inary step, to prepare two separate lists-one of direct 
recruits under cl. (a) and the other of promoted officers under cl. (b) of r. 16 
in the chronological order of their confirmation. [117 D-E] 
BIHAR v. M. M. PRASAD (Sarkaria, !.) 
111 
(2) The power of confirmation of District Judges is a par.t o~ the p~wcr of 
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control vested in the High Court under Art. 23 5 of the Co1~shtutlon. Since the 
Bihar Superior Judicial Service Rules make ~e chronological orde~ <?f c_on:fir-
mation an integral part of the process of fixation of the order of sen1onty in. the 
service the inference is that both these. powers were int~nded to be exercised 
by on~ and the same authority. 
Since Art. 235 of the Co~ti_tution vest~ t~e 
pO\\'er of confirmation in the High _Court, the pow
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