Rameshwar Prasad vs State Of Bihar - Latest Court Judgement

Judgement

Rameshwar Prasad vs State Of Bihar And Ors on 31 August, 1979

Equivalent citations: 1980 AIR 104, 1980 SCR (1) 456

Author: S M Fazalali

Bench: Fazalali, Syed Murtaza

           PETITIONER:

RAMESHWAR PRASAD

Vs.

RESPONDENT:

STATE OF BIHAR AND ORS.

DATE OF JUDGMENT31/08/1979

BENCH:

FAZALALI, SYED MURTAZA

BENCH:

FAZALALI, SYED MURTAZA

SHINGAL, P.N.

SEN, A.P. (J)

CITATION:

 1980 AIR  104   1980 SCR  (1) 456

 1979 SCC  (4) 368

ACT:

     Supersession  for promotion  as Additional  District

Judge-challenge under Constitution of India, Articles 14 and

16-When can arise.

     Malice-Plea of  malice not taken or  made out  in the

Petition cannot be taken notice of when argued.

HEADNOTE:

     The petitioner  challenged the  order of the High Court

recommending his  supersession by promoting other Sub-judges

as Additional  District Judges,  and  also  the  acceptance

thereof by  the Government,  on the ground that his judicial

career was  without any blemish and therefore, the impugned

orders were  in violation  of Articles 14  and 16  of the

Constitution and  that there  was a  colour of malice in the

recommendation by the High Court.

     Dismissing the petition, the Court

^

     HELD: 1.  All that Article 16 requires is that the case

of  the   employees  similarly situate  and  eligible for

promotion must be considered before others are promoted. The

petitioner must establish that his case was not considered

at all and persons  junior to him were promoted without any

reason. [457D-E]

     In this  case, Article  16 is  not violated as his case

for promotion was fully considered by the High Court and the

Government an(l then it  was decided not to promote him. At

any rate,  since the  High Court  is the  best. judge of the

performance of its officers  and if  the High Court was not

satisfied about the suitability  of the  Petitioner  having

regard to  his past  record, for  promotion Art.  16 is not

attracted and  this Court  would not, therefore interfere at

this state. [457B-C. 458A-B]

     (b) The  petitioner  and  other  Sub-judges  not  being

similarly situate  as being  of equal  merit the question of

discrimination or   infraction of   Article  14   of the

Constitution also does not arise. [457H, 458AB]

     Supreme Court  cannot  take  notice  of  allegation  of

malice as  an argument when no such plea has been taken in

the petition  or proved in the affidavit filed in support of

the petition. [458B]

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition No. 4313 of 1978. Under Article 32 of the Constitution.

Sarjoo Prasad, (Dr.) Y. S. Chitale and M. L. Verma for the Petitioner.

U. P. Singh and S. N. Jha for Respondent No. 1. S. V. Gupta and B. P. Singh for Respondent No. 2.

The Judgment of the Court was delivered by FAZAL ALI, J. This petition under Article 32 has been filed against the order of the Governor of Bihar accepting recommendations of the High Court and superseding the petitioner Rameshwar Prasad by promoting other subordinate Judges as Additional District Judge, Mr. Sarjoo Prasad appearing in support of the petitioner mainly raised two points before us. In the first place it was contended that the judicial career of the petitioner was without any blemish and there was nothing against him to justify his supersession when the High Court recommended the case of promotion of the Sub-Judges for appointment as Additional District Judge and hence the order impugned is violative of Article 16 of the Constitution. There is, how- ever, abundant material on the record to show that the case of the petitioner was fully considered by the High Court and he was not considered fit for promotion by the High Court, hence his case was not recommended for promotion as Additional District Judge. In this view of the matter it is manifest that Article 16 cannot be violated because the petitioner's case for promotion was fully considered by the High Court and the Government and then it was decided not to promote him. All that Art. 16 requires is that the case of employees similarly situate and eligible for promotion must be considered before others are promoted. If it was established that the petitioner's case was not considered at all and persons junior to him were promoted with- out any reason, then something could be said in support of the petitioners case. It would appear from the affidavit filed by the High Court that the Government considered the case of the petitioner. The averment in para 14 of the affidavit filed by the High Court runs:

"It is incorrect to say that there was any departure from any common usual practice in sending the second proposal though final orders on the first proposal were not passed by the State Government specially in the context that at the time of sending the second proposal this Respondent came to a definite conclusion that the work and conduct of the petitioner was such that he should not be recommended for promotion unless he showed improvement in his conduct."

G Further more at page 85 of Annexure I it is clearly mentioned that the Court has recommended the case of other Sub-Judges after considering the case of the concerned appellant Mr. Rameshwar Prasad and it is also established that the Government concurred with the recommendation of the High Court. Although Mr. Prasad submitted that the petitioner had an unblemished career, there are enough materials on the record to show that this is not correct. Thus the petitioner and other Sub-Judges not being similarly situate as being of equal merit the question of discrimination or infraction of Article 14 of the Constitution also does not arise. At any rate, since the High Court is the best Judge of the performance of its officers and if the High Court was not satisfied about the suitability of the petitioner having regard to his past record, for promotion, Art. 16 is not attracted and this Court would not, therefore, interfere at this stage. Secondly, it was faintly suggested that there was a colour of malice in the recommendation by the Court but no such clear plea has been taken in the petition or proved in the affidavit filed by the petitioner. In these circumstances, we cannot take any notice of such an allegation. For these reasons, we find no merit in this petition. We would, however, like to observe that the High Court itself was of the opinion that in case the petitioner improves his merit and ability, he may be considered for promotion and for this purpose one vacancy was kept reserved. Although this vacancy has since been filled up, yet if in future there is any vacancy, the High Court may consider his case for promotion, if he shows improvement and progress.

The application is accordingly dismissed. There will be no order as to costs.

S.R.   Petition dismissed