V.B. RAJU versus STATE OF GUJARAT & ANR

Citation: [1981] 1 S.C.R. 613 · Decided: 04-09-1980 · Supreme Court of India · Bench: Y.V. CHANDRACHUD · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

V.B. RAJU. 
v. 
STATE OF GUJARAT & ANR. 
Septe111ber 4, 1980 
JY. v .. CHANDRAcHuD, CJ., s. MuRTAZA FAZAL Au 
AND A. D. KOSHAL, JJ.) 
613 
Constitution of India, 195~Articles 217 and 222(2)-Scope of-On reorga-
>rtisation of a State a Judge allotted to another High Court-Such allotment 
if amounts to transfer from one High Court to anothe~. 
Exercising power under section 29(1) of the Bombay Reorganisation Act 
the President had determined that the appellant who then was an additional 
Judge of the Bombay High Court should cease to be a Judge of that High 
Court and become a Judge of the newly formed High Court. of Gujarat. 
In 
his petition under article 226 of the Constitution the appellant claimed that 
the source of power to transfer a Judge from one High Court to another being 
ill article 222 read with article 217(1) (c) of the Constitution the impugned 
order though purporting to have been passed under section 29(1) of the Bombay 
Reorganisation Act, amounted to an order of transfer .of a Judge and, therefore, 
be was entitled to the compensatory allowance contemplated by article 222(2). 
A single Judge of the High Court held that the order passed under section 29 
was an order of allocation of Judges of the erstwhile High Court of Bombay 
to the two new High Courts and that such allocation did not amount to transfer, 
On appeal a Division Bench held that the transfer envisaged by article 222 was 
a transfer in a situation when a Judge of one High Court was sent to another 
existing High Court for reasons which had nothing to do with the bifurcation, 
or reorganisation of a State and the setting up of a new High Court while 
section 29 was part of the provisions which were supplemental, incidental· or 
-consequential to the formation of the State of Gujarat. 
Dismissing the appeal 
HELD: 
The entitlement to compensatory allowance under article 222(2) 
is conditional upon the Judge being "so transferred", that is, transferred as 
envisaged by article 222(1). 
Since the appellant was "allotted" to the Gujarat 
High Court on the setting up of that Court, he was not entitled to claim· the 
'Compensatory allowance. [617 D] 
Articles 3 and 4 of the Constitution deal with a special situation and so 
1ong as a provision of law promulgated by Parliament can be considered as 
supplemental, incidental or consequential to the formation of a new State it 
c 
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F 
G 
would be enforceable even though it might amount to an amendment of certain· 
provisions of the Constitution. 
The provision contained in section 29 of the 
H 
Act is clearly consequential to the formation of the State of Gujarat 11nd 
establishment of a High Court for it. 
It was for the purpose of setting up 
'that High Court that Judges then serving in the Bombay High Court were so 
A 
B 
c 
D 
F. 
F 
G 
614 
SUPREME COURT REPORTS 
[1981] 1 S.C.R~ 
to say allotted to the High Court of Gujarat and although their appointment 
to the Gujarat High Court may partake of some of the characteristics of a 
transfer, they cannot be said to have been transferred from the Bombay High 
Court to the Gujarat High Court within the meaning of article 222(1) of the 
Constitution. (617 A-CJ 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1134 of 1974. 
From the Judgment and .Order dated 2-8-1973 of the Gujarat 
High Court in L.P.A. No. 255/71. 
Appellant in person. 
L. J. Nain and Miss A. Subhashini for the Respondents. 
The Judgment of the Court was delivered by 
KoSHAL, J.-This appeal by certificate granted under Article 
133(1)(c) of the Constitution of India by the High Court of Gujarat is 
directed against its judgment dated.2-8-1973 and the sole point requiring 
decision therein is as to whether an order passed by the President of 
India under sub-section (1) of section 29 of The Bombay Re-organisa-
tion Aot, 1960 (hereinafter referred to as the Act) and determining 
that the appellant shall on the 1st day of May 1960 cease to be a 
Judge of the High Court of Bombay and become a Judge of the High 
Court of Gujarat is to be regarded as an order of transfer under 
article 222( 1) of the Constitution. 
2. 
The appellant was appointed an Additional Judge of the High 
Court of Bombay on June 29, 1959. After the Act came into force 
the President of India passed the said order (hereinafter referred to 
as the impugned order) under, section 29(1) of the Act in respect of" 
the appellant, who was still an Additional Judge of the High Court 
of Bombay (and 4 other Judges of th

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