M. A. Qureshi v. State of M. P. — 1978 DIGILAW 500 (MP)

ORDER G. P. Singh, J.-1. This order shall also dispose of Misc. Petitions Nos. 222 of 1978 and 137 of 1978. 2. The petitioners in all these petitions are employed in the High Court Registry at Jabalpur. In all these petitions certain promotions made by the former Chief Justice Shri Shivdayal Parmeshwar Dayal Shrivastava have been challenged The Chief Justice passed the impugned order on the file on 18th June 1977 and formal order was issued by the Registrar on 1st July 1977. By this order, M.P. Verma, who is respondent No. 4 in all these petitions, was promoted as Section Officer. His promotion has been challenged in all the petitions. By the same order, V.N. Dumbhare was also promoted as Section Officer Dumbhare’s promotion has been challenged in Misc. Petition No 137 of 1978 where in he has been joined as respondent No. 5. By the same order, A.C. Mehta was promoted as Examiner, ILR Branch, Mehta has been joined as respondent in Misc. Petitions Nos. 102 and 137 of 1978, but his promotion has only been challenged in Misc. Petition No. 137 of 1978. 3. Before coming to the points in controversy in these petitions, it is necessary to refer to the service record of the parties involved in these petitions. 4. M.P. Verma started his career as Lower Division Clerk in the establishment of the Court of the District Judge, Chhindwara. In 1959 he was, selected for appointment as officiating L.D.C. in the High Court Registry at Jabalpur. On 30th October 1968 he was promoted as U.D.C. Grade II. On 25th August 1970 he was appointed as Translator. On 21st June 1974 he was confirmed as Translator. On 22nd June 1974 he was appointed as Stamp Reporter. He was confirmed on that post on 19th April 1977. By the impugned order dated 1st July 1977, he was promoted as Section Officer. An order was issued on 5th September 1977 confirming Vearm as Section Officer. There is some controversy about this order whether there was really any order of confirmation passed by the Chief Justice or whether the order of confirmation was issued under a mistake. 5. A.C. Mehta started his career in 1951 as U.D.C. Grade II in the Court of the Judicial Commissioner, Bhopal. He was absorbed as U.D.C. Grade II in the High Court establishment after the reorganisation in 1956. 5. A.C. Mehta started his career in 1951 as U.D.C. Grade II in the Court of the Judicial Commissioner, Bhopal. He was absorbed as U.D.C. Grade II in the High Court establishment after the reorganisation in 1956. From 1st August 1962 he was promoted as U.D.C. Grade 1. He was confirmed on that post on 14th May 1964. By the impugned order dated 1st July 1977, he was appointed as Examiner, ILR. He accepted this promotion under protest. His reply in the return also states that he ought to have been considered for the post of Section Officer. He was at No. 4 is the order of seniority of U.D.C's Grade I on 1st July 1977. 6. V.N. Dumbhare was a confirmed U.D.C. Grade I and was at No. 3 in the order of seniority on 1st July 1977. The two persons who were senior to him were due to retire on 1st September 1977 and 1st August 1977. Dumbhare was, therefore, promoted on the basis of his seniority as Section Officer by the order dated 1st July 1977. As already noticed A.C. Mehta was next in the order of seniority in the cadre of U.D.C's Grade I. 7. M.A. Qureshi, who is petitioner in Misc. Petition No. 102 of 1978, started his career in 1951 as U.D.C. Grade II in the Court of the Judicial Commissioner, Bhopal. From 30th October 1968 he was promoted as U.D.C Grade 1. On 1st February 1971 he was confirmed on that post. By order dated 1st July 1977, he was appointed as officiating Stamp Reporter. Qureshi was next to A.C. Mehta in the order of seniority in the Cadre of U.D.C's. Grade I. 8. S.C. Vinze, who is a petitioner in Misc. Petition No. 222 of 1978, started his career in 1946 as LDC in the High Court of Judicature at Nagpur. He was appointed temporarily as U.D.C. Grade II in 1960. He was promoted as U.D.C. Grade I on 31st December 1969 and was confirmed on that post on 1st February, 1971. 9. The petitioners in Misc. Petition No. 137 of 1978, namely, Padmakar Shastri, Prem Narayan Verma and Ramesh Gupta, started their careers as Translators in the High Court of Judicature at Nagpur Shastri was appointed Translator in 1954. He was appointed Head Translator on 28th June 1973 Verma and Gupta, the other two petitioners, were appointed Translators in March 1954. 9. The petitioners in Misc. Petition No. 137 of 1978, namely, Padmakar Shastri, Prem Narayan Verma and Ramesh Gupta, started their careers as Translators in the High Court of Judicature at Nagpur Shastri was appointed Translator in 1954. He was appointed Head Translator on 28th June 1973 Verma and Gupta, the other two petitioners, were appointed Translators in March 1954. They are continuing as Translators. 10. Apart from the petitioners in these three petitions, three persons have intervened in M.P. No. 137 of 1978 for challenging the order of promotion of M.P. Verma as Section Officer. These interveners are H.A. Thakre, Sheikh Dilawar and S.D. Pasarkar. H.A. Thakre started his career in 1947 as L.D.C in the High Court of Judicature at Nagpur. He was appointed U.D.C Grade II on 1st February 1957 and was confirmed on that post on 15th December 1962. On 15th December 1968 he was promoted as U.D.C Grade I and was confirmed on that post from 1st February 1971 In the order of seniority in the cadre of U.D.C's Grade I he comes immediately after Qureshi who is petitioner is M.P. No. 102 of 1978. Seikh Dilawar started his career in 1948 as L.D.C. He was promoted as U.D.C Grade II on 4th June 1958 and was confirmed on that post on 10th January 1963. He was promoted as UDC Grade I on 6th April 970 and was confirmed from 1st February 1971 Pasarkar has not given his case history, but at the relevant time and even now he is a confirmed UDC Grade I. 11. It will be seen that the petitioners in M.P. No. 102 of 1978 and M.P. No. 222 of 1978 are U.D.Cs. Grade I or as now called Assistants. The interveners in M.P. No. 137 of 1978 also belong to the same category. They challenge the promotions of M.P. Verma, V.N. Dumbhare and A.C. Mehta on the ground that they ought to have been considered for promotion which was not done. They further contend that the post of Stamp Reporter is an isolated post and the incumbent of this post is not entitled to be promoted as Section Officer. They also contend that Translators cannot be considered for promotion for the post of Section Officer. They further contend that the post of Stamp Reporter is an isolated post and the incumbent of this post is not entitled to be promoted as Section Officer. They also contend that Translators cannot be considered for promotion for the post of Section Officer. The petitioners in M.P. No. 137 of 1978 are all Translators They claim that they also ought to have been considered for promotion to the posts of Section Officers and, as that was not done, the promotions made were invalid. 12. The High Court of Judicature at Nagpur was constituted by Letters Patent issued on 3rd January 1936. Section 6 of the Letters Patent authorised and empowered the Chief Justice of the High Court, subject to any rules and restrictions which may be prescribed from time to time by the Governor of the Central Province in Council, to appoint clerks and other ministerial officers as may be found necessary for the administration of justice in the High Court. This section further directed that officers and clerks so appointed shall receive such reasonable salary as the Chief Justice from time to time may fix for each office and place and as the Governor of the Central Province in Council may approve. By the conjoint operation of sections 241 (2) (b) and 224 of the Government of India Act, 1935, the Chief Justice of the High Court was empowered to make rules laying down the conditions of service for appointments to, and persons serving on the staff attached to the High Court. It was, however, provided by clause (b) of section 244 that the rules made by the Chief Justice so far as they relate to salaries, allowances, leave or pensions will require the approval of the Governor. Similar provisions have been made in Article 229 of the Constitution. Clause (1) of this Article provides that appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct. There is a proviso which empowers the Governor to make rule requiring that in such cases as may be specified in the rule no person not already attached to the High Court shall be appointed save after consultation with the State Public Service Commission No rules have so far been made by the Governor under this proviso. There is a proviso which empowers the Governor to make rule requiring that in such cases as may be specified in the rule no person not already attached to the High Court shall be appointed save after consultation with the State Public Service Commission No rules have so far been made by the Governor under this proviso. Clause (2) of Article 229 provides that subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice of the High Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. There is a proviso to clause (2) which says that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State. The State Legislature is empowered under item 3 of List II of 7th Schedule to legislate with respect to "officers and servants of the High Court". The rule making power under Article 229 (2), as already seen, is subject to the provisions of a law made by the State Legislature. However, the State Legislature has so far not made any law with respect to the officers and servants of the High Court. 13. The Chief Justice of the High Court of Judicature at Nagpur made rules in exercise of the powers conferred by sub-section (2) (b) of section 241 of the Government of India Act, 1935. These rules were made on 17th June 1937 for regulating the recruitment and conditions of service of the staff attached to the High Court. The rules came into force retrospectively from 1st April 1937. We shall refer to the relevant rule in detail later. The Central Province became the erstwhile State of Madhya Pradesh after coming into force of the Constitution on 26th January 1950. From the same date, the High Court of Judicature at Nagpur became the High Court of the State of Madhya Pradesh. The rules made in 1937 being the "law in force" immediately before the commencement of the Constitution, continued to be in force under Article 372 of the Constitution. From the same date, the High Court of Judicature at Nagpur became the High Court of the State of Madhya Pradesh. The rules made in 1937 being the "law in force" immediately before the commencement of the Constitution, continued to be in force under Article 372 of the Constitution. The present State of Madhya Pradesh was constituted by section 9 of the States Reorganisation Act, 1956. By section 49 of the Act, the High Court at Nagpur which was the High Court exercising jurisdiction in relation to the erstwhile State of Madhya Pradesh, became the High Court for the new State of Madhya Pradesh. By orders issued by the President under section 51 of the Act, Jabalpur was made the Principal seat of the High Court of Madhya Pradesh and benches of the High Court were established, at Indore and Gwalior. 14. Section 119 of the States Reorganisation Act provides that the provisions of Part II which deal with the territorial changes and formation of new States, shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to an existing State shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day. It was submitted by Shri Y.S. Dharmadhikari, learned counsel for the petitioner in M.P. No. 222 of 1978, that the rules made by the Chief Justice of the High Court at Nagpur on 17th June 1937 were applicable to the High Court only till the High Court was located at Nagpur and that after coming into force of the States Reorganisation Act and shifting of the High Court from Nagpur to Jabalpur, the rules ceased to be applicable for the formation of the new State had no effect on the territorial extent of the laws as provided in section 119. It is true that the States Reorganisation Act does not effect any change in the territorial operation of laws which were in force before the coming into force of the Act or formation of the States under the Act. It is true that the States Reorganisation Act does not effect any change in the territorial operation of laws which were in force before the coming into force of the Act or formation of the States under the Act. Territorial changes in the operation of the laws can be made only by a competent Legislature as provided in section 119 and not by adaptation under section 120 or by construction under section 121: [See P.B. Mawle v. State of A.P AIR 1965 SC 1827 and Ekambarappan v. EPT Officer AIR 1967 SC 1541 . But the aforesaid principle has no application for laws which apply to a particular institution such as the High Court and to the staff attached to such institution. The rules made by the Chief Justice in 1931 have no specific territorial operation. These rules regulate the recruitment and conditions of service of the staff attached to the High Court. The operation of the rules is not with reference to any particular territory but to the staff attached to the High Court. The rules were no doubt made at a time when the High Court used to sit at Nagpur, but the continuity of the applicability of the rules is not broken by shifting of the High Court. The High Court of the new State of Madhya Pradesh is the same High Court which used to sit at Nagpur. The operation of the rules being with reference to the High Court and not with reference to any particular territory, section 119 of the States Reorganisation Act has no application. Just as the Letters Patent of the High Court of Judicature at Nagpur and the rules of procedure made by it continue to apply to the High Court of Madhya Pradesh, similarly the rules made by the Chief Justice in 1937 regulating the recruitment and conditions of service of the staff attached to the High Court continue to be in operation. 14-A. On the formation of the new State of Madhya Pradesh, the Judicial Commissioner's Courts of Bhopal and Vindhya Pradesh and the High Court of Madhya Bharat were abolished by section 50 (1) of the States Reorganisation Act. The staff attached to these Courts was absorbed in the High Court of Madhya Pradesh. 14-A. On the formation of the new State of Madhya Pradesh, the Judicial Commissioner's Courts of Bhopal and Vindhya Pradesh and the High Court of Madhya Bharat were abolished by section 50 (1) of the States Reorganisation Act. The staff attached to these Courts was absorbed in the High Court of Madhya Pradesh. The integration of the staff of the High Court which came from Nagpur and the staff attached to the abolished Courts was done under orders issued by the Chief Justice. The final combined gradation list was published in the official Gazette of 19th May 1961 by notification dated 2nd May 1961 issued on orders of the Chief Justice in exercise of his powers conferred by Article 229 (2) of the Constitution. Shri Y.S. Dharmadhikari submitted that this integration was not done in accordance with section 115(5) of the States Reorganisation Act and that the integration was invalid. It was submitted by the learned counsel that the integration ought to have been done under the orders of the Central Government and not the Chief Justice. It is not necessary for us to go into this question because the question of integration of the staff has not been directly challenged in any of the petitions. The integration of the staff was done long back and all concerned have acquiesced in the orders issued by the Chief Justice in that behalf. It is now too late to say that the integration was bad. Any challenge to the integration of the staff of the High Court must fail on the ground of laches. However, as earlier stated, the point not having been directly raised, does not require any detailed consideration. 15. The appointments of M.P. Verma and V.N. Dumbhare as Section Officers and A.C. Mehta as Examiner, I.L.R. were as earlier stated, made under orders of the Chief Justice. Under Article 229 (1) of the Constitution, appointments of officers and servants of the High Court are to be made by the Chief Justice or such other Judge or Officer of the Court as he may direct. The appointments of the respondents were thus made by the competent authority. The petitioner's grievance, in the circumstances, essentially is that their claims for appointment to the posts of Section Officer and Examiner were not considered and that they were bye-passed without any reasonable justification. The appointments of the respondents were thus made by the competent authority. The petitioner's grievance, in the circumstances, essentially is that their claims for appointment to the posts of Section Officer and Examiner were not considered and that they were bye-passed without any reasonable justification. The petitioners base their case under Articles 14 and 16 of the Constitution as also under rule 16 of the Rules of High Court made in 1937. A question was raised whether Articles 14 and 16 are applicable to the staff attached to the High Court. Article 14 provides that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 16 (1) provides that there shall be equality of opportunity for all citizens in matters relating to employment/or appointment to any office under the State. The fundamental rights guaranteed under Articles 14 and 16 are available against the State. The "State" has, however, an extended definition for purposes of Part III of the Constitution which incorporates the fundamental rights. Article 12 in this part defines the "State" to include the Government and Parliament of India and the Government and the Legislature of the each of the State and all local or other authorities within the territory of India or under the control of the Government of India. The Chief Justice of the High Court falls within the description of “other authorities within the territory of India" as these words occur in Article 12. Articles 12, 14 and 16 came up for consideration before the Supreme Court in Sukhdev Singh v. Bhagatram AIR 1975 SC 1331 . In this case, it was held that the statutory Corporations are authorities within the meaning of Article 12. In this context, the Supreme Court approved its previous decision in Rajasthan States Electricity Board, Jaipur v. Mohanlal AIR 1967 SC 1857 , which laid down that the expression "other authorities" in Article 12 will include all constitutional or statutory authorities on whom powers are conferred by law. Having regard to the law laid down in Sukhdev Singh's case, it must be held that the High Court and the Chief Justice, while exercising administrative powers conferred by the Constitution or other laws, are authorities within the meaning of Art. 12, The petitioners are, therefore, entitled to invoke Arts. 14 and 16 in support of these petitions. Having regard to the law laid down in Sukhdev Singh's case, it must be held that the High Court and the Chief Justice, while exercising administrative powers conferred by the Constitution or other laws, are authorities within the meaning of Art. 12, The petitioners are, therefore, entitled to invoke Arts. 14 and 16 in support of these petitions. 16. When the rules were made in 1937, the ministerial service of the High Court consisted of the following: 1. Superintendents 2. Assistant Superintendents 3. Translators 4. Clerks Upper Division 5. Clerks Lower Division 6. Stenographers The strength as given above was changed from time to time with the approval of the Government. At the relevant time i.e. in 1977, there were following categories in the ministerial service; 1. Section officers or Superintendents Rs. 400-800 2. Assistants or U.D.Cs. Grade I (previously known as Assistant Superintendents) Rs. 280-480 3. U.D.C. Grade II ,, 205-375 4. L.D.C. ,, 169- 300 5. Assistant Editor, I.L.R. ,, 400-720 6. Examiner I. L. R. ,, 280-480 plus 75/- PM. allowance. 7. Head Translator ,, 280-480 8. Translators ,, 280-480 9. Personal Assistants-cum- Stenographers to Hon'ble the Chief Justice and Hon'ble Judges. 400-800 (P.A. to Hon. the Chief Justice is called as Private Secre-tary and gets an allowance of Rs. 100/- p. m.) 10. Other Stenographers in the Registry 350-600 11. Stamp Reporter 350-550 12. Librarian 350- 600 17. Rule 16 of the 1937 rules, which deals with promotions reads as follows: “16. There is no bar to advancement from the Lower Division to the Upper Division but promotion to higher posts the duties of which demand a greater degree of intelligence will be made strictly on merit tempered by seniority and not by vice versa. A thoroughly efficient lower Division Clerk may be given a trial in a temporary vacancy in the Upper Division and his confirmation will depend upon his ability and work. The minimum educational qualifications prescribed for candidates directly recruited for these posts will not be enforced in the cases of these promotions." 18. The words "lower division to upper division" as they occur in rule 16 refer to the categories of lower division clerks and upper division clerks. The minimum educational qualifications prescribed for candidates directly recruited for these posts will not be enforced in the cases of these promotions." 18. The words "lower division to upper division" as they occur in rule 16 refer to the categories of lower division clerks and upper division clerks. The expression "higher posts" in rule 16 has obviously reference to Superintends now called as Section Officer and Assistant Superintendents, now called as Assistants or UD.Cs Grade I. The promotion to the higher post according to the rule is to be made strictly on merit tempered by seniority. The principle of merit tempered by seniority' or 'merit-cum-seniority' means that promotion is to be made primarily on merit and seniority is to be regarded when merit is equal. The principle requires that all eligible persons must be considered for promotion irrespective of their seniority; [Sant Ram v. State of Rajasthan AIR 967 SC 1910, pp. 1914, 1915 and Mahesh Chandra Gupta v. M.P. State Road Transport and Corporation M.P. No. 701 of 1971, Decided on 30.5.1978. Non-consideration of eligible persons will offend their rights under Articles 14 and 16 of the Constitution and will make the promotion invalid. 19. We will first take up the question whether Translators can claim to be considered for promotion to the posts of Superintendents or Section Officers. In the past, barring one or two exceptions, the posts of Superintendents or Section Officers were filled up by promotion from the category of U.D.Cs. Grade I or Assistants. The recruitment to the posts of Translators is not done by promotion. They are directly recruited by competitive examination. In this competition, the members of the Registry working as L.D.C. or U.D.C. Grade II are also allowed to compete if they fulfill the requisite qualifications. The work of Translators was regarded as a technical one and previously they did exclusively the work of Translation for preparation of paper books in the Registry when English was the exclusive language of the High Court. After the introduction of Hindi in the High Court, the work of translation became much reduced. Since 1960 records received from the lower Courts are not required to be translated into English. The work of translation is now mainly confined in the Supreme Court section where the record is translated into English for purposes of appeal to the Supreme Court. After the introduction of Hindi in the High Court, the work of translation became much reduced. Since 1960 records received from the lower Courts are not required to be translated into English. The work of translation is now mainly confined in the Supreme Court section where the record is translated into English for purposes of appeal to the Supreme Court. The Translators are surplus, in the sense that they are not needed for translation work. They are given various other jobs in the High Court which should be done by Assistants. The pay scales of Translators and Assistant is the same. There is no statutory rule prohibiting promotion of Translators as Superintendents or Section Officers but as Translators previously worked only as Translators and, therefore, had no experience of administrative work, they were not considered for promotion to the posts of Superintendents or Section Officers. These posts were regarded as promotion to post for U.D.Cs. Grade I or Assistants. Translators, however, could be appointed as Examiner or Head Translator which carried a Special allowance of Rs. 75/- p.m. They could also be considered for promotion to the posts of Assistant Editor which carried a higher scale. The posts of Head Translator, Examiner and Assistant Editor were not considered to be open to Assistants, i.e. U.D.Cs. Grade I. As the only chance of promotion which Translators had was to the posts of Head Translator, Examiner, and Assistant Editor they represented for creation of select grade posts of Translators and also for revision of their pay scales. Translators were also agitating that they should be equated with Assistants or U.D.Cs. Grade 1 so as to enable them to claim promotion to the posts of Superintendent or Sections Officers. The matter was examined in the Registry and discussed with the Administrative Judge and the Chief Justice. On 26th July 1974 the following order was proposed by the Administrative Judge: “The translators were appointed by direct recruitment. Their cadre is separate. It is true that they have no right or title to be promoted as section Officers, but it is not fair to them that they have no future prospects at all and will have to stagnant throughout their career as translators. In the past, certain proposals were sent to Government, but they were not accepted. To give them relief and at the same time bearing in mind the prospects of U.D.Cs. In the past, certain proposals were sent to Government, but they were not accepted. To give them relief and at the same time bearing in mind the prospects of U.D.Cs. I and U.D.Cs. II, it is proposed as follows: (1) The existing posts of Translators should be equated with the posts of Assistants (previously U.D.Cs. Grade 1) as both the categories of posts carry identical revised scales of pay of Rs. 280-480: (2) 3 posts of Special Translators at Jabalpur and one each at Indore and Gwalior shall be exclusively earmarked for translation work (e.g.) in Supreme Court cases; (3) For purposes of determination of inter-se seniority of the Translators vis-a-vis the U.D.Cs. Grade I, in view of the varied experience of the incumbents of latter category of posts (U.D.Cs. Grade I) and their length service, the Translators in the order of their seniority should be put below the last confirmed U.D.C. Grade I on the date of orders. (4) The equated number of posts of Translators falling vacant (except the earmarked posts of special Translators) should be made posts of promotion for the incumbents holding the posts of U.D.C. Grade II. A post of Special Translator, whenever falls vacant, shall be filled in by an open competitive test. (5) While filling the posts of Section Officers (previously Superintendents) in future, claims not only of the U.D.Cs. Grade I, but also of the Translators shall be considered on merits tempered by seniority and not vice-versa, the posts of Section Officer being posts of selection; and (6) If and when exigencies of public service so require, the existing incumbents of the posts of Translators equated with the posts of U.D.Cs. Grade I could be drafted purely and exclusively for translation work and they will have no right, to do translation work on the ground of equation of their posts with the posts of U.D.Cs. Grade I.” The aforesaid proposal made by the Administrative Judge was approved by the Chief Justice on 29th July 1974. It, however, appears that the aforesaid order did not satisfy the Translators. They, therefore, made further representation. Translators wanted that their representation for upgrading their posts and for conversion of 20 percent posts into select grade should be forwarded to the Government. It, however, appears that the aforesaid order did not satisfy the Translators. They, therefore, made further representation. Translators wanted that their representation for upgrading their posts and for conversion of 20 percent posts into select grade should be forwarded to the Government. On this, the Registry made the following proposal: (A) May the representation be forwarded on the condition that the concessions about equation of posts with U.D.Cs. Grade I and granting of promotions in the regular line to the translators granted under orders of the Hon'ble the Chief justice dated 29-7-1974 are withdrawn. (B) May the Translators be also given to understand that their representation will be forwarded at their own risk and in future the question of giving concessions about equation of posts and giving of promotions in the regular line will be a closed chapter? When this proposal came up before the Administrative Judge, he agreed with proposal (A). As regards (B), he observed that let us not be rigid for future. The Chief Justice on 17th October 1974 noted his approval in the words "As proposed" which means that the proposals as recommended by the Administrative Judge were approved. The effect of approval given to proposal (A) was that the representation of Translators for creating select grade posts was forwarded to the Government, but the concession granted to them under the order dated 29th July 1974, that they would be equated with Assistants or UDCs. Grade I and will be considered for promotion in the regular line was withdrawn. As was expected, the representation of Translators as regards upgrading their scales of pay and creation of 20 percent select grade posts was turned down by the Government. Had the matter rested with that, there would have been no difficulty in holding that translators had no claim of being considered for promotion to the posts of Section Officers. The Translators, however, again made a representation. The Chief Justice referred this representation to a Committee consisting of Tankha and Verma, JJ. This committee along with other similar committees was constituted by the Chief Justice by order dated 21st October 1975. The committee by this order exercised administrative powers of the Chief Justice on 1, topics enumerated in an Annexure to the order. Items 11 and 12 in the Annexure are as follows: "11. This committee along with other similar committees was constituted by the Chief Justice by order dated 21st October 1975. The committee by this order exercised administrative powers of the Chief Justice on 1, topics enumerated in an Annexure to the order. Items 11 and 12 in the Annexure are as follows: "11. Appointments, transfer posting, promotion crossing efficiency bar, withholding increments, confirmation of Class II and III employees of High Court (Jabalpur, Indore, Gwalior)." "12 Representation of Class II, II and IV employees of High Court (through C J.)." The order of the Chief Justice dated 21 at October 1975 shows that only in case of difference of opinion between members of the committee the matter was to be referred to the Chief Justice. Subject to this, in matters falling within their jurisdiction, the committee exercised the delegated powers of the Chief Justice. On the representation made by Translators and referred to the committee, two proposals were made by the Registry. Proposal (Aa) was to the effect that the Government be moved for creating seven posts of Chief Translators with special pay of Rs. 75 p.m. and proposal (Ba) was that at the time of making selection to the posts of Section Officers, selection be made from UDCs. Grade I, i.e. Assistants, and Translators on the basis of merit-cum seniority. These proposals were approved by the committee. Tankha, J. added an observation that proposal (Ba) had been approved earlier. There may be some inaccuracy in this observation, because the order of the Chief Justice dated 29th July 1974 giving Translators the benefit that they would be considered for promotion to the posts of Section Officers was later on withdrawn by order dated 17th October, 974. Even so the Administrative Committee which exercised the delegated powers of the Chief Justice, could again lay down the principle on the representation of Translators that they should be considered for promotion to the posts of Section Officers, more so because in the order dated 17th October 1974 the proposal of the Registry that Translators should be finally told that in future the question of giving them the concession of equation of their posts with Assistants i.e. UDCs. Grade I and of promotion in the regular line will be taken to be a closed chapter, was not approved. The Administrative Committee exercised the delegated powers of the Chief Justice. Grade I and of promotion in the regular line will be taken to be a closed chapter, was not approved. The Administrative Committee exercised the delegated powers of the Chief Justice. The representation made by Translators was referred to the committee by the Chief Justice. By the order of the committee, it must be taken to have been laid down that translators could be considered for promotion to the posts of Section Officers along with Assistants. This is also fair and just because Translators, though recruited as Translators, have been working since 1960 on various posts in the Registry which are meant to be manned by Assistants. 20. The next question to be considered by us is whether the post of Stamp Reporter is an isolated post and the person appointed as Stamp Reporter cannot be considered for promotion to the post of Section Officer. The post of Stamp Reporter was created in April 1953. The present grade of the post is Rs. 350-550. Except in the case of respondent M.P. Verma, no other Stamp Reporter was ever promoted to the post of Superintendent or Section Officer. The matter was examined in 1956 when one Sumant who was then the Stamp Reporter made a representation that his claim for the post of Superintendent was not considered while promoting others to that post. The representation was examined by the Registrar and his opinion was that the post of Stamp Reporter, like the post of Librarian, was a special post and the incumbent could not be considered for promotion to the post of Superintendent. The Registrar's note was examined by Mangalmurti, J. on the request of the Chief Justice (Hidayatullah, C.J.). Mangalmurti, J. agreed with the opinion of the Registrar and the Chief Justice accepted that view. The same question was again examined after reorganisation of the States on a reference made by the Bombay High Court. It appears that Sumant had, who opted for serving the State of Maharashtra, again made a representation to the Bombay High Court that his case for promotion to the post of Superintendent was not considered on which the Bombay High Court wanted information whether the post of Superintendent in the Nagpur High Court was a promotion post in the regular flow of promotion from the post of Stamp Reporter. The reply that was sent by the Registrar on 3rd October 1960, after obtaining the approval of the Administrative Judge, was that the post of Stamp Reporter was a special post with special pay and the post of Superintendent was not a promotion post in the regular flow of promotion from the post of Stamp Reporter From all this, it is clear that the post of Section Officer or Superintendent was never a post of promotion for the Stamp Reporter. It was for this reason that many senior Assistants end Translators refused in the past to be appointed as Stamp Reporter as that would have prejudicially affected their chances of promotion to the posts of Section Officers. Shri Munshi, learned counsel for M.P. Verma, submitted that having regard to its scale of pay the post of Stamp Reporter should be considered to be just below the posts of Section Officers entitling the Stamp Reporter to be considered for promotion before Assistant. He referred in this connection to the gradation list issued in 1956 we do not accept this submission. As earlier stated by us, the post of Stamp Reporter is a special or isolated post and is not in the normal flow of promotion to the post of Section Officer. 21. The order of the Chief Justice dated 18th June 1977, which is challenged in the petitions, is a detailed one. The Chief Justice first rejected the cases of Personal Ass;tants, Assistant Editor and Librarian for promotion to the post of Section Officer as none of these persons claimed to be considered for the post of Section Officer. As the order of the Chief Justice has not been challenged by anyone of them, it is not necessary to refer to this part of the order. Dealing with the case of Stamp Reporter and in holding that M.P. Verma who was then the Stamp Reporter had a claim for promotion to the post of Section Officer, the Chief Justice observed as follows: "(vi) Stamp Reporter: From the Registrar's note it appears that the present Stamp Reporter, M.P. Verma, was appointed as LDC. with effect from 30-4-1949 to 7-7-1959. on the District establishment. He was drawn to the High Court establishment as LDC. with effect from 8-7-1959. Thereafter he was promoted as UDC. with effect from 30-10-1968 and worked in that post upto 24-8-1970. with effect from 30-4-1949 to 7-7-1959. on the District establishment. He was drawn to the High Court establishment as LDC. with effect from 8-7-1959. Thereafter he was promoted as UDC. with effect from 30-10-1968 and worked in that post upto 24-8-1970. He was promoted as Translator with effect from 25-8-1970, where he worked upto 24-8-1975. Then he was promoted as Stamp Reporter with effect from 25-8-1975 and holds that post now. He has worked on different posts in the Administrative Branch. Thus, Shri Verma has worked as LDC. then U.D.C., and then Translator (equivalent to the post of an Assistant) and then Stamp Reporter. His appointments were by promotion. Therefore, he (350550) must be considered as senior to Assistants and Translators (promotes) (280-480). He has, therefore, a claim for promotion to the post of Section Officer." Further, in rejecting the claims of Head Translator and Translators, the Chief Justice said as follows: "(viii) Head Translator: Shri P.R. Shastri has also been shown to be recruited to the post of Translator with effect from 13-3-1954 till 27.6.1973. He was promoted as Head Translator with effect from 28-6-1973. He gets a special pay of Rs, 75. This shows that the post of Head Translator was considered to be a technical post. (ix). Translators: It appears from the Registrar's note that Shri S.P. Tiwari is under suspension. Shri P.N. Verma, Shri R.S. Gupta and Shri R.S. Pardeshi were directly recruited to the post of Translator with effect from 15-3-1954, 16-3-1954 and 9-10-1954 respectively. They are continuing as Translators. A Translator may be appointed by direct recruitment i.e. by a competitive test, in which along with graduate employees of the High Court as also of the District Courts, outsiders (altogether fresh candidates) are also allowed to compete. An employee of the High Court or of the District Court, who has worked as LDC and UDC, is different from an outsider who has not worked as such. The former having worked as LDC. & U.D.C do not lose their claim for a higher post in the Registry merely because on competitive test they have shown better efficiency and proficiency in the work of Translator. The post of a Translator is the next higher post to a UDC and it is equivalent to the post of Assistant. The former having worked as LDC. & U.D.C do not lose their claim for a higher post in the Registry merely because on competitive test they have shown better efficiency and proficiency in the work of Translator. The post of a Translator is the next higher post to a UDC and it is equivalent to the post of Assistant. However, since all the aforesaid three translators were appointed by direct recruitment and it is not shown in the Registrar's note that any of them had worked as LDC and DOC also, they have no claim for promotion as Section Officer. Moreover, the post of Translator and that of Assistant are equivalent posts. Even the case of a Translator, who has worked as LDC and UDC can be considered along with Assistant and therefore, their inter se seniority has to be taken into consideration, but this does not apply to a Translator who has been directly recruited." The Chief Justice then considered the case of Assistants and in selecting Dumbhare, made the following observations: "Among the Assistants, the senior-most are: (1) Shri Prahlad Das (2) Shri K.G. Vashistha (3) Shri V.N. Dumbhare Shri Prahlad Das is due to retire on September 1, 1977. Actually he is on refused leave at present. I am told that he is drawing the maximum of his grade, i.e. Rs. 480. That being so, he will get no advantage in emolument or pension inasmuch as the Section Officer’s salary starts at Rs. 400. Even if he gets one or two increments, It will be less than Rs. 480. In these circumstances, there is no point in appointing him as Section Officer for two months. Shri Krishna Gopal Vashistha is due to retire on August 1, 1977. He is already on leave preparatory to retirement. Nothing has been said against Shri V.N. Dumbhare in the Registrar's note. He should, therefore, be promoted as Section Officer." 22. A reading of the aforesaid passages of the order of the Chief Justice will show that the Chief Justice divided the Translators into two categories. In the first category he put those persons who, before appointment as Translators, had worked as LDC. or UDC in the High Court establishment. In the second category, he put those persons who came to be appointed as Translators from outside without having worked as LDC or UDC. In the first category he put those persons who, before appointment as Translators, had worked as LDC. or UDC in the High Court establishment. In the second category, he put those persons who came to be appointed as Translators from outside without having worked as LDC or UDC. As regards the first category, the Chief Justice observed that they had a right to be considered for promotion as Section Officer. But as regards the second category, it was observed that they had no claim for being considered for promotion, presumably for the reason that they had no experience of working on the administrative side in the High Court. In our opinion, the classification so made by the Chief Justice is unreal and unreasonable. All Translators are appointed by competitive examination. A person employed in the establishment of the Registry can compete along with others for the post of Translator but the appointment is always by direct recruitment and not by promotion. The Translators, however, do not work as Translators for the last eighteen years, as in 1960 translation of records for preparation of paper-books was dispensed with. The persons employed as Translator's work on the posts which are normally manned by Assistants or UDCs. Grade I. Only one or two Translators actually do the translation work in the Supreme Court section. The rest do the work of Assistants or UDCs. Grade I, such as Readers to Hon'ble Judges, Section Incharge etc. It is thus wholly unreal to say that the Translators who, before their recruitment, had not worked as LDC or UDC have no experience of working on the administrative side and, therefore, should not be considered for promotion to the posts of Superintendents or Section Officers. The order of the Chief Justice refers to the Registrar's note that none of the Translators, namely, P.R. Shastri, P.N. Verma and R.S. Gupta, who are petitioners in M.P. No. 137 of 1978 and R.S. Pardeshi worked as LDC or UDC. All the four persons have been since long working as Readers which are posts normally manned by Assistants or UDCs. Grade I. They like other Translators have tile experience of working on the Administrative side. All the four persons have been since long working as Readers which are posts normally manned by Assistants or UDCs. Grade I. They like other Translators have tile experience of working on the Administrative side. As the aforesaid classification of Translators made by the Chief Justice is unreal and unreasonable, tile exclusion of Translators who are directly recruited from outside for being considered for promotion to the posts of Section Officers, clearly violates Articles 14 and 16 of the Constitution. In this connection, it may be pointed out that the order of the Administrative Committee which decided that the Translators should be equated with Assistants i.e. UDCs. Grade I, for purposes of promotion to the posts of Section Officers, did not make any such distinction. Indeed, the note of the Registrar on which the aforesaid order of the Administrative Committee was passed clearly mentions that the Translators are working since long on the posts which are normally manned by UDCs. Grade I. 23. As regards the observations made by the Chief Justice regarding Stamp Reporter, he failed to notice that the post of Stamp Reporter was throughout regarded as an isolated post and no Stamp Reporter had till then been promoted as Section Officer. The Chief Justice also observed that M.P. Verma worked as LDC., UDC, then Translator and Stamp Reporter and that his appointments were by promotion. It is true that M.P. Verma was appointed as Translator and then as Stamp Reporter, but these appointments were not by promotion Verma was selected as Translator in competitive examination in which he participated along with others. At that time, he was U.D.C. Grade II. He was appointed as Translator thus by selection in the normal course in accordance with the usual practice for appointment of Translators. So far as the post of Stamp Reporter is concerned, many other senior persons who were working as Translators and Assistants, refused to accept the post essentially for the reason that it is an isolated post and no person from this post is considered for promotion to the post of Section Officer. It was in these circumstances that Verma was appointed as Stamp Reporter. However, Verma never worked either as Translator or Stamp Reporter. Thus the two observations made by the Chief Justice that Verma worked as Translator and then as Stamp Reporter and that his appointments were by promotion are clearly wrong. It was in these circumstances that Verma was appointed as Stamp Reporter. However, Verma never worked either as Translator or Stamp Reporter. Thus the two observations made by the Chief Justice that Verma worked as Translator and then as Stamp Reporter and that his appointments were by promotion are clearly wrong. There are further observations made by the Chief Justice in his order that because of his holding the post of Stamp Reporter Verma must be considered as senior to Assistants & Translators and, therefore, he had a claim for promotion to the post of section Officer. As earlier pointed out by us, the post of Stamp Reporter had all along been considered to be an isolated post. By holding such a post, it cannot be said that Verma became senior to Translators & Assistants and got a claim for promotion to the post of Section Officer. No. Stamp Reporter had till then been promoted as Section Officer. If the Chief Justice wanted to change the established practice, he should have so decided at the time when Verma was appointed as Translator. We are sure that had he so decided at that time, many of her persons who where senior as Translators and Assistants to Verma would have accepted the post of Stamp Reporter. It was, therefore, wholly unrtasonab1e to hold that Verma by virtue of his appointment as Stamp Reporter became senior to all Translators and Assistants and became entitled to promotion to the post of Section Officer. Indeed, as the post of Stamp Reporter was outside the channel of promotion, Verma ought not to have been considered at all for promotion to the post of Section Officer. Verma's appointment as Section Officer thus suffers from two defects. First, that he being a confirmed Stamp Reporter ought not to have been considered for promotion to the post of Section Officer and secondly that other eligible persons, i.e. Translators and Assistants, were not considered for promotion. 24. Coming to the case of Assistants, V.N. Dumbhare was rightly considered for promotion as Section Officer. However, it appears that no other Assistant below Dumbhare was considered for promotion. According to rule 16 of the Rules, the promotion to the post of section Officer is made on the principle of merit tempered by seniority. All eligible persons have, therefore, to be considered for promotion. Eligible persons would include Assistants and Translators. However, it appears that no other Assistant below Dumbhare was considered for promotion. According to rule 16 of the Rules, the promotion to the post of section Officer is made on the principle of merit tempered by seniority. All eligible persons have, therefore, to be considered for promotion. Eligible persons would include Assistants and Translators. The latter come in because as earlier pointed out by us, the Administrative Committee exercising the delegated power of the Chief Justice decided as a matter of policy that since Translators also do the same work as is done by Assistants and get the same salary, they should be treated as equivalent to Assistants and considered for promotion. We have also pointed out that this is just and reasonable a, Translators do the same work as Assistants. We have further stated that classification of Translators as was done by the Chief Justice is not reasonable Non-consideration of eligible persons makes the promotion of Dumbhare invalid. 25 Coming now to the appointment of A.C. Mehta as Examiner; the order of the Chief Justice on this point reads as follows : “The senior most among the Assistants next to Shri V.N. Dumbhare are (1) Shri A.C. -Mehta (2) Shri M.A. Qureshi. (3) Shri P.B. Joshi and Shri D.J. Joshi. Among the Translators, the senior most are: (1) Shri S.P. Tiwari (under suspension) (2) Shri P.N. Verma (3) Shri R.S, Gupta (4) Shri R.S. Pardeshi Out of these Shri SP. Tiwari is under suspension and the other 3 are direct recruits. As such, Shri AC. Mehta should be appointed as Examiner". It will appear from the aforesaid order that Translators who were direct recruits were not considered for appointment as Examiner. This was clearly in breach of the previous practice that the post of Examiner was always filled from amongst the Translators. Secondly, as earlier pointed out by us, the distinction between Translators who were directly recruited from outside and those who were recruited from amongst the members of the registry is entirely unreal & unreasonable. In the circumstances, Translators should have also been considered for appointment as Examiner, The consideration of Assistants for appointment as Examiner is, however, not wrong. Translators and Assistants now rank in the same category and just as Translators can be considered for promotion to the posts of Section Officers, Assistants can also be considered for appointment as Examiner. In the circumstances, Translators should have also been considered for appointment as Examiner, The consideration of Assistants for appointment as Examiner is, however, not wrong. Translators and Assistants now rank in the same category and just as Translators can be considered for promotion to the posts of Section Officers, Assistants can also be considered for appointment as Examiner. The reason, as earlier stated by us is that Assistants and Translators now do the same type of work. The selection, however, is by merit and not by seniority. The appointment of AC. Mehta as Examiner is, therefore, invalid for the reason that other eligible persons were not considered for appointment to that post. 26. Before concluding, we must refer to certain preliminary objections raised by Shri Munshi, learned counsel for M.P. Verma. The first preliminary objection is that the petitions suffer from delay Misc. Petition No. 102 of 1978 was filed on 27th February 1978, Misc. Petition No 137 of 1978 was filed on 17th March 1978 and Misc. Petition No. 222 of 1978 was filed on 15th April 1978. The formal order impugned in these petitions was passed on 1st July 1977. Thus all the petition have been filed within ten and half months. The petitions, therefore, cannot be said to be delayed. The former Chief Justice retired on 28th February 1978. Presumably, the petitioners did not file the petitions earlier because they did not wish to incur the displeasure of the then Chief Justice. That explains the delay, if it may be said that there is any delay. In our opinion, the petitions cannot be dismissed on the ground of laches or delay. The second objection is that all persons concerned in the chain of promotions have not been impleaded. What the learned counsel urged was, that though all persons whose appointments or promotions have been challenged have been impleaded, the persons who came in their places by consequential promotions have not been impleaded. The appointments of persons in the vacancies created by the promotions of M.P. Verma, V.N. Dumbhare and A.C. Mehta were consequential. The petitioners only challenge the promotions or appointments of Verma, Dumbhare and Mehta. The persons who are directly affected have been joined. The persons concerned in consequential appointments or promotions are not necessary parties and it was not necessary to join them in these petitions. The petitioners only challenge the promotions or appointments of Verma, Dumbhare and Mehta. The persons who are directly affected have been joined. The persons concerned in consequential appointments or promotions are not necessary parties and it was not necessary to join them in these petitions. The third objection is that the former Chief Justice should have been also joined as allegations of bias against him have been made in the petitions. The learned counsel for the petitioners at the out-set submitted that they do not attack the impugned order on the ground of bias. They also categorically withdrew the allegations of bias if any in the petitions in view of this stand of the petitioners the objection loses all significance. The fourth objection is that unnecessary parties have been joined. It was submitted that the State of Madhya Pradesh was unnecessarily joined in all the three petitions. It was further submitted that the High Court was unnecessarily joined in M.P. No. 137 of 1978 and similarly the Registrar was unnecessarily joined in M.P. No. 222 of 1978. It was then submitted that A.C. Mehta was unnecessarily joined in M.P. No. 102 of 1978 as no relief was claimed against him. Even assuming without deciding that the joinder of the said parties was not necessary in these petitions, yet the joinder of unnecessary parties does not make the petitions defective and they cannot be dismissed on that ground. The next preliminary objection is that the order by which M.P. Verma was confirmed has not been challenged in M.P. No. 102 of 1978 and M.P. No 137 of 1978. Verma was confirmed by order dated 5th September 1977. This order was issued by the Deputy Registrar in the form "By order of the Chief Justice". The notes made by the Chief Justice on the basis of which this order was issued have been produced before us and the photo state copies have also been exhibited, which are Annexure R/2-6 in M.P. No. 222 of 1978. There was no proposal made by the Registrar for confirmation of M.P. Verma or V.N. Dumbhare who were shown as officiating Section Officers in a list of officiating Section Officers in the order of seniority. The Chief Justice made a note 'Approved" which only meant that the list of seniority as put up before him was approved. There was no proposal made by the Registrar for confirmation of M.P. Verma or V.N. Dumbhare who were shown as officiating Section Officers in a list of officiating Section Officers in the order of seniority. The Chief Justice made a note 'Approved" which only meant that the list of seniority as put up before him was approved. As there was no proposal for confirming these officers, the approval could not be construed as an approval for their confirmation. It appears to us that the Registrar by mistake issued the order of confirmation misconstruing the note "Approved" mace by the Chief Justice. The order issued by the Registrar confirming Verma and Dumbhare being an Older issued under mistake, cannot have any legal effect. Apart from that, the order of confirmation will stand or fall with the initial appointment. If the initial appointment is struck down as invalid, the confirmation, which is consequential, must fall with it. In our opinion, Misc. Petitions Nos. 102 and 137 of 1978 are not defective because the purported order of confirmation issued by the Registrar is not challenged in them. All the preliminary objections raised by Shri Munshi are unsubstantial and are, therefore, rejected. 27. Shri Dharmadhikari learned counsel for the petitioner in M.P. No. 222 of 1978, submitted that the Chief Justice should be directed to frame rules laying down the conditions of service of the employees of the High Court. As earlier pointed out by us, the 1937 rules made by the Chief Justice under the Government of India Act, 1935, laying down the method of recruitment and conditions of service continue to be in force. Further, by order dated 12th July 1960, the Chief Justice in exercise of the powers conferred on him under Article 229 (2) of the Constitution, and with the previous approval of the Governor, directed that the conditions of service of officers and servants of the High Court, so far as salaries and addition to salaries including traveling allowances, leave, pension, including retirement benefits, medical attendance and provident fund are concerned, shall be the same as are applicable to persons appointed to public services and posts in connection with the affairs of the State of Madhya Pradesh, except as otherwise hitherto ordered or may hereafter be ordered by the Chief Justice with the approval of the Governor. This order of the Chief Justice thus applies all the rules relating to Government servants on the subjects mentioned in the order to the officers and servants of the High Court. The 1937 rules plus the rules made applicable by the order of the Chief Justice dated 12th July 1960 and other orders passed from time to time hold the field and there is no vacuum. The argument of Shri Dharmadhikari primarily was that as there are no rules, the Chief Justice should be directed to frame rules laying down the conditions of service of the employees of the High Court. For the reasons given above, this argument must fail. The Chief Justice cannot, therefore, be directed to frame rules. There has, however, been considerable change in the establishment of the High Court from 1937. It can certainly be said that the rules of 1937 now require revision. The Chief Justice may, therefore, well consider whether it would be advisable to revise the rules to adapt them to the present situation and to clear obscurities. The question of revision of the rules or framing of new rules is, however a matter solely within the discretion of the Chief Justice and no writ or direction can be issued to him in that matter. 28. The petitions are allowed. The promotions of M.P. Verma, V.N. Dumbhare, to the posts of Section officers, and of A.C. Mehta, to the post of Examiner are quashed. The Chief Justice may, however, allow them to work on these posts on ad hoc basis until promotions or appointments to fill up the posts are made in accordance with law. Parties shall bear their own costs of these petitions. The security amount be refunded to the petitioners. Shri Munshi, counsel for M.P. Verma, orally prays for certificate for appeal to the Supreme Court. The prayer for certificate is refused.