CHANDER BHANversusHOTILAL GUPTA AND OTHERS

-                         CHANDER BHAN
                                v.
                    HOTILAL GUPTA AND OTHERS
                                                                                A


                             OCTOBER 9, 1990

             [M.H. KANIA AND M. FATHIMA BEEVI, JJ.]                             B

          Punjab Courts Act, 1918/High Court Rules and Orders Vol. 1
    Chapter XVIII A: Section 35(3)/Rules II, IV & VI-Promotion to the
    post of Upper Division Clerk-Rule of rotation-Whether applicable to
    the establishment of Judge, Small Causes Court.

             One post of Upper Division Clerk/English Clerk fell vacant in
                                                                                c
    the Small Causes Court. Appellant made his claim to the post on the
    footing that he was a graduate and on the basis of Rule of Rotation
    embodied in Rule VI of the High Court Rules and Orders, Volume I,
    Respondent No. 1 made his claim on the basis of seniority. The Judge,
    Small Causes Court took the view that the appellant was entitled to         D
    promotion in preference to Respondent No. 1 because of the rule of
    rotation. On an Administrative Appeal, the District & Sessions Judge
    held that the rule of rotation was not applicable to the establishment of
    Judge, Small Causes Court, and appointed Respondent No. 1 as Upper
    Division Clerk. The Appellant preferred a departmental appeal which
    was heard by a Single Judge on the Administrative side of the High          E
    Court. He took the view that the promotion in question could he made
    by the District & Sessions Judge, and should he in accordance with the
    rule of rotation.

          Respondent No. 1 challenged the said decision by way of a Writ
    Petition. The High Court allowed the Writ Petition and held that not        F
    only initial appointments but also appointments by promotion were to
    be made by the Judge, Small Causes Court and not by the District &
    Sessions Judge, and that the rule of rotation was not applicable.

          Against the High Court's decision, the appellant bas preferred
    this appeal contending that the promotion in question could only he         G
    made by the District & Sessions Judge and that the rule of rotation was
    applicable even to the appointment by promotion.

          Dismissing the appeal, this Court,

         HELD: 1. Whenever a specific mention is. made regarding a              H
•
                                        133
     134          SUPREME COURT REPORTS                   [ 1990) Supp. 2 S.C.R.

A   particular officer of an establishment in a rule, that particular rule
     would normally apply to that establishment alone and the powers con-
    ferred by that rule would be conferred on the officer mentioned in the
  . rule. Rule VI(I) of the High Court Rules speaks of appointments to the
    higher grades of the ministerial establishments and states that these
    appointments should ordinarily be made by seniority from lower grades
B provided that the officer to be promoted possesses the qualifications pre-
    scribed. The first proviso to that rule goes on to say that the permanent
    vacancies in the original grade of Rs. 75-5-125 shaH be filled in by the
    District & Sessions Court by rotation as set out in the said sub-rule (1)
    of Rule VI. The first part of Rule VI deals with appointments by promo-
    tion to the higher grade of ministerial establishment. Generally it must
C be held applicable to the establishment of the District & Sessions Court
    as well as that of the Judge, Small Causes Court. This part, however,
    does not deal specificially with the question as to who is the officer competent
    to promote. In view of this, the proviso can only be construed as laying
    down thiit, where the power of appointment by promotion is vested in the
    District & Sessions Judge, in making appointments by promotion to fill
D in the permanent vacancies in the said original grade of Rs. 75-5-125,
    rule of rotation set out' in the first proviso to clause (I) of Rule VI should
   ordinarily be followed. It is not disputed that there is a separate Cadre
    for the Court of Small Causes. Rule IV(3) shows that the fll'St appoint-
    ment of the ministerial officers in the Court of Small Causes is to be
    made by the Judge of the Small Causes Court. [139F-H; 140A-C]
E
          2. A reading of sub-section (I) of the Punjab Courts Act, 1918 the
    High Court Rules, and Notification issued makes it clear that appoint-
    ments by promotion to the posts in the entire ministerial cadre other than
   those in the process serving and mental establishments in the Court of
   Small Causes have to be made by the Judge, Court of Small Causes and
F the first proviso to Rule VI(I) prescribing the rule of rotation bas no
   application to such appointments. Moreover, it would be unreasonable
   to apply the principle of rotation to the Court of Small Causes where
   there is only one U.D.C. The principle of rotation can be made applic-
   able to the District & Sessions Court because there are a number of
   posts of Upper Division Clerks. It would be irrational to apply that
G principle of rotation to the Court of Small Causes in which there is only
   one Upper Division Clerk/English Clerk; [1400-E)

         3. In the seniority list of the establishment of the Judge of Small
    Causes Court, Delhi, the name of Respondent No. 1 appears at Serial
    No. 9 whereas that of the appellant appears at Serial No. 19. Both of
H   them satisfy the test of integrity. The only claim the appellant can have
              CHANDER.BHAN v. H.L. GUPTA [KANIA, J.]                   135

is on the principle of rotation as he Is a graduate. As that principle does
                                                                              A
not apply to an appointment by promotion to the post in question, the
claim of the appellant cannot be upheld. [140F-G]

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 592
of 1982.
                                                                              B
     From the Judgment and Order dated 7.8.1981 of the Delhi High
Court in Civil Writ Petition No. 1003 of 1974.

      Prithvi Raj and T.C. Sharma for the Appellant.

      Dr. Arun Kumar and V.B. Saharya for the Respondents.
                                                                              c
      The Judgment of the Court was delivered by

      KANIA, J. On the retirement of one Jagan Nath. Kohli, who
was holding the post of Clerk of Court (Upper Division Clerk) in the
grade of Rs.130-300 (old Scale Rs.75-5-125), one post of Upper Divi-          D
sion Clerk (U .D.C. )/English Clerk fell vacant in the office of the
Judge, Small Causes Court, Delhi. Five officials of that court, namely,
the appellant and respondents nos. 1, 5, 6 & 7 asserted their claim to
the said post. The appellant, Chander Bhan, made his claim on the
footing that he was a graduate and on the basis of the rule of rotation
as emobodied in Rule VI in Chapier XVIII-A of the High Court Rules            E
and Orders, Volume-I referred to more particularly hereinafter.
Respondent no. 1, Hotilal Gupta, claimed the said post ort the basis of
his seniority. We are not concerned with the claims of the other claim-
ants because the contest before us is between the claims of the appel-
lant and respondent no. 1. The Judge, Small Causes Court in his order
dated August 10, 1971, took the view that the appellant who is a              F
graduate and has got 2-1/2 years office experience as Lower Division
Clerk (L.D.C. ), was an honest and efficient worker and was entitled to
promotion in preference to respondent no. 1 because of the rule of
rotation. The aggrieved parties filed an Administrative Appeal before
the District & Sessions Judge, Delhi who passed his order dated July
17, 1973 and held that the rule of rotation did not apply to the              G
establishment of the Judge, Small Causes Court. He held that respon-
dent no. 1 being the senior most official as Lower Division Clerk was
entitled to the post of Upper Division Clerk and accordingly appointed
respondent no. 1 as Upper Division Clerk against the said vacancy.
Being aggrieved, the appellant filed a departmental appeal against the
said order to the High Court of Delhi which was heard by a learned            H
     136        SUPREME COURT REPORTS               [ 1990] Supp. 2 S.C.R.

     Judge on the Administrative Side of that Court who, by his order
A
     dated August 7. 1974. accepted the appeal of the appellant and set
     aside the appointment of respondent no. I. He took the view that
     promotion in the office of the Judge, Small Causes Court, Delhi could
     only be made by the District and Sessions Judge, Delhi and that the
     said vacancy should be filled in accordance with rule VI of the Rules
fl   framed by the erstwhile Punjab High Court, under section 35(3) of the
     Punjab Courts Act, 1918, for subordinate services attached to Civil
     Courts other than the High Court (hereinafter referred to as 'the said
     rules').

            Respondent no. 1, Hotilal Gupta challenged the corredness of
     the view taken by the learned Judge on the Administrative side by
c    filing a writ petition being C.W. No. 1003 of 1974 in the Delhi High
     Court. By· an order dated 7th August, 1981, the Division Bench of the
     Delhi High Court allowed the said writ petition, quashed the order
     dated 7th August, 1974, passed by the learned Single Judge and up-
     held the order of the District and Sessions Judge, Delhi appointing
D    respondent no. 1 to the said post. The Division Bench took the view
     that not only the initial appointments but also the appointments by
     promotion to the post of Upper Division Clerk in the office of the
     Judge, Small Causes Court were to be made by the Judge, Small
     Causes Court and not by the District and Sessions Judge, and held that
     the rule of rotation on the basis of which the appellant had been
E    appointed to the said post by the order of the Single Judge on the
     Administrative Side was not applicable to the said appointment. It is
     submitted by learned counsel for the appellant that the Division Bench
     of the High Court was in error in coming to the said conclusion. It was
     submitted by him that although the first appointment to the post of
     Upper Division Clerk in the office of the Judge, Small Causes Court,
F    Delhi is to be made by a Judge of Small Causes Court, promotion to
     that post could only be made by the District & Sessions Judge and the
     rule of rotation contained in the first proviso to Rule VI of the said
     Rules was applicable to the appointment by promotion.
                                                                               '
           In order to consider the merit of the submission of learned
G    counsel for the appellant, it is necessary to bear in mind the relevant
     provisions of law.

            The relevant portion of section 35 of the Punjab Courts Act.
     19 11' reads as follows:           ·

H                "( 1) The ministerial officers of the District Courts and
-                  CHANDER BHAN v. H.L. GUPTA [KANIA, J.]

                 Courts of Small Causes shall be appointed and may be
                                                                            137

                                                                                    A
                 suspended or removed by the Judges of ·those Courts
                 respe€·tively.
                                                                       .
                 (2) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

                 (3) Every appointment under this section shall be subject
                                                                                   ·- B
                 to such rules as the High Court may prescribed in this be-
                 half, and in dealing with any matter under this section, a
                 Judge of a Court of Small Causes shall act subject to the
                 control of the District Court."

            The rules for subordinate services attached .to Civil Courts other
      than the High Court were framed by the erstwhile Punjab High Court
                                                                                    c
      under section 35(4) of .the Pun.jab Courts Act. A perusal of Rule II of
      the said Rules dealing with cfassification, shows inter alia that Clerks
      of Cou~t to Senior Subordinate Judges and Judges of Courts of Small
      Causes and English and Vernacular Clerks form a joint cadre. Sub-
      rule (b) of Rule II of the said Rules inter alia provide$ that there shall    D
    . be a separate cadre for each Revenue District and a sep~rate cadre for
      each Court of Small Causes. Rule III deals with qualifications and
      sub-rule (2) of that Rule·provides that no person shall be appointed to,
      or accepted as a candidate for, any clerical ministerial post, unless he
      has passed the Matriculation Examination of the Punjab University or
      an equivalent examination. The material part of Rule ·IV runs as
      follows:

                 "IV. First appointments.

                 First appointment shall be made as follows:
                                                                                    F
                 ( 1) By the District Judge:-   '

                 (a) Ministerial officeFS in his own court and in all courts
                 controlled by the District Co.urt other than c'o~rts of Smal1
                 Causes·,                                    /
                                                             I
•                                                                                   G
                 (b) x        x       x                 //
                •(2) x        x       x

                 (3) By the Judge of a Court of Small Causes:-.Ministerial
                 Officers and menials in his own Court." .                          H
    138         SUPREME COURT REPORTS                [ 1990] Supp, 2 S.C.R.

A   Rule V deals with appointment and sub-rule (1) of that Ru'le thereof
    runs as follows:


               "(I) Appointment to ministerial posts shall ordinanly be
               made either by open competition or by selection from a list
B              of qualified candidates or apprentices accepted by the Dis-
               trict Judge. Judge of a Small Causes Court, or Sub-Judge to
               whom powers of appointment have been delegated, as the
               case may be. Any departure from either of these methods
               should be reported to the High Court for confirmation."


c   Rule VI. which is of central importance in this appeal runs as follows:

               ''\!!. Promotion-( 1) Appointments to the higher grades
               of the ministerial establishment should ordinarily be made
               by seniority from lower grades, provided that the official
D              who would thus receive promotion possesses the prescribed
               educational qualifications and is otherwise fit to perform
               the duties to which he will be promoted, for which purpose
               tests 111ay be imposed. This rule does not apply to such
               posts as that of stenographer, for which special qualifica-
               tions are needed; but preference should be given to officers
E              with such qualifications who are already working in the
               lower grades:

                     Provided that permanent vacancies in the 75-5-125
               grade shall be filled by the District and Sessions Judges in
               the following rotation:
F
               (i) By selection on merit out of graduates who have at least
               two years' experience in the work of the office, if there is
               no suitable graduate who fulfils this condition an 'outsider'
               graduate may be appointed, but he must be orie who
               normally resides within the jurisdiction of the District and
G              Sessions Judge.                                                 •
               (ii) & (iii) By normal promotion in the office, i.e. the
               appointment of the next senior man whether graduate or
               non-graduate subject to his fitness:

H                    Provided further that the rotation may be modified in
               CHANDER BHAN v. H.L. GUPTA [KANIA, J.l                 139

             very exceptional cases when the direct appointment of a
             graduate would mean the ousting of a man, who had been         A
             officiating quasi-permanently in the post concerned for
             an appreciable period. What is an appreciable period will
             depend on the circumstances of each case. After such a
             modification. the rotation should be restored as soon as
             possible.                                                      B
            (2) In making promotions. preference may invariably be
            shown to officials who are known to be strictly honest. No
            promotion should be given and no recommendation for
            promotion made in the case of an official who does not
            possess and maintain a reputation for strict integrity. Effi-
            ciency without ronesty is not to be regarded as constituting C
             a claim to promotion.

        A Notification dated October 28, 1953 was issued in exercise of
  the. powers conferred by the proviso to Article 309 of the Constitution
  and iri supersession of the Notification issued earlier on February 17,
  1941. The said Notification sets out that subject to such general rules as D
  may be made by the Hon'ble Judges of the Punjab High Court in that
  behalf appointments to the posts on the establishment of the Civil
  Courts at Delhi specified in Column (I) of the Schedule thereto shall
  be made by the Authority specified in the corresponding entry in
  Column (2) of the said Schedule. A perusal of the Schedule shows that
  appointments to the posts on establishments other than process serv- E
· ing and menial establishments in the Small Causes Couri at Delhi are
  to be made by the Judge, Small Causes Court, Delhi.
       It h.as been pointed out in the impugned judgment that the
 estblishment of the District and Sessions Court and that of the Court
 at the Small Causes constitute separate cadres. This 1s not disputed
 before us. Hence, whenever a specific mention is made regarding a          f
 particular officer of an establishment in a rule, that particular rule
 would normally apply to that establishment alone and the powers c''}n-
ferred by that rule would be conferred on the officer mentioned in the
rule. Rule VJ( 1) speaks of appointments to the higher grades of the
ministerial establishments .and states that these appointments should
ordinarily be made by seniority from lower grades provided that the         G
official to be promoted possess the qualifications presco·ibed. The first
proviso to that rule goes on to say that the pcm.anent vacancjcs in the
original grade of Rs. 75-5-125 shall be filled in by the District and
Sessions Court by rotation as set out in the said sub-rule ( 1) of Rule
VI. The first part of Rule VI deals with appointments by promotion to
                                                                             H
the higher grade of ministerial establishment. Generally it must be
    140         SUPREME COURT REPORTS                [1990] Supp. 2 S.C.R.

    held applicable to the establishment of the District and Sessions Court
A
    as well as that of the Judge of the Small Causes Court. This rule,
    however, does not deal specifically with the question as to who is the
    officer competent to promote. In view of this, the proviso can only be
    construed as laying down that, where the power of appointment by
    promotion'· is vested in the District and Sessions Judge, in making
B   appointments by promotion to fill in the permanent vacancies in the
    said original grade of Rs.75-5-124, rule of rotation set out in the.first
    proviso to clause ( 1) of Rule VI should ordinarily be followed. It is not
    disputed that there is a separate Cadre for the Court of Small Causes.
    Rule IV(3) shows that the first appointment of the ministerial officers
    in the Court of Small Cause is to be made,by the Judge of the Small
    Causes Court. The notification dated October 28, 1953 referred to
c   earlier provides that the appointments to the posts on establishment
    other than process serving and menial in the Court of Small Causes are
    to be made by the Judge, Small Causes Court, Delhi.
          A reading of sub-section (I) of the Punjab Courts Act and the
    mies and Notification discussed earlier makes it clear that appoint'
D   ments·by promotion to the posts in the entire ministerial cadre other
    than in the process serving and menial establishments in the Court of
    Small Causes have to be made by the Judge, Court of Small Causes
    and the first proviso to Rule VI(!) prescribing the rule of rotation has
    no application to such appointments. Moreover, it would be unreason·
    able to apply the principle of rotation to the Court of Small Causes
E   where there is only one U .D.C. The principle of rotation can be made
    applicble to the District & Sessions Court because there are a number
    of posts of Upper Division Clerks. It would be irrational to apply that
    principle of rotation to the Court of Small Causes in which there is
    only one Upper Division Clerk/English Clerk.
F          In the seniority list of the establishment of the Judge of Small
    Causes Court, Delhi, the name of. respondent no. I appears at Serial
    No. 9 whereas that of the appellant appears at Serial No. 19. Both of
    them satisfy the test of integrity. The only claim the appellant can have
    is on the principle of rotation as he is a graduate. As that principle
    does not apply to an appointment by promotion to the post in ques-
G   .tion, the claim of the appellant cannot be upheld. As we have already
    observed, none of the other respondents have pressed their claims in
    the High Court or here.
           In the result, the appeal fails and is dismissed. Looking to the
    facts and circumstances of the case, there will be no order as to costs.
H
    G.N.                                                   Appeal dismissed.