Holding

The petition was dismissed as the petitioner’s case had been duly considered, no violation of Articles 14 or 16 was found, and the allegation of malice was not pleaded.

Summary

Rameshwar Prasad filed a writ petition under Article 32 challenging the Governor's order that superseded his promotion to Additional District Judge by promoting other subordinate judges. He contended that his unblemished judicial record warranted promotion and that the High Court's recommendation to exclude him violated Articles 14 and 16 of the Constitution, also alleging a colour of malice. The Supreme Court examined whether his case had been duly considered and whether the promotion of junior judges without reason amounted to discrimination. It held that the High Court had fully examined his suitability, found him unfit for promotion, and therefore Article 16 was not infringed; similarly, there was no equal‑merit basis for an Article 14 claim. The Court also ruled that an allegation of malice could not be taken since it was not pleaded or proved in the petition. Consequently, the petition was dismissed without any order as to costs.

Issues considered

Whether the supersession of the petitioner’s promotion violated Article 16 of the Constitution.
Whether the petitioner’s claim of discrimination under Article 14 is maintainable.
Whether an allegation of malice, not pleaded in the petition, can be taken into consideration.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 32

Subjects

promotionsupersessionArticle 14Article 16discriminationmalicejudicial servicewrit petitionArticle 32

Judgment

456

A RAMESHWAR PRASAD
v.
STATE OF BIHAR AND ORS.
August 31, 1979

• [S. MURTAZA FAZAL ALI, P. S. KAILASAM AND A. P. SEN, JJ.]
Supersession for promotion as Additional District Judge-Challenge under
Constitution of India, Articles 14 and 16-When can arise.

MaUc~Plea of malice not taken or 1nade out in the Petition cannot be
'taken notice of when argued.
c The petitioner challenged the order of the High Court recommending his
supersession by promoting other Sub-judges as Additional District Judges, and
also the acc'eptance 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
.Jf malice in the recomm'endation by the High Court.
D Dismissing the petition, the Court

HELD : 1. All that Artide 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 ony reason. [457D-E]

E In this case, Article 16 is not violated as his case for promotion was fully
considered bY the High Court and the Government and 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 th'e 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
•tage. [457B-C, 458A-Bl
(I'
(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 Con•titution also does not arise. [457H, 458ABJ

Supreme Corirt cannot take notice of a1legation of malice as an argument
when no such plea has 11een taken in the petition or proved in the affidavit filed
G in support of the petition. [458B]

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.
H
U. P. SinKh and S. N. Iha for Respondent No. 1.
S. V. Gupte and B. P. Singh for Respondent No. 2.
RAMESHWAR v. BIHAR (Fazal Ali, !.) 457

The Judgment of the Court was delivered by A
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 B
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
.--J\
. was nothing against hlm 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- c
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 con-
sidered 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 D
High Court and the Government and then it was decided not to pro-
mote 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- E
out any reason, then something could be said in support of the peti-
tioner's case. It would appear from the affidavit filed by the High Court
that the Government considered the ca~e of the petitioner. The aver-
:nent 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 F
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 hls 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 con-
sidering the case of the concerned appellant Mr. Rameshwar Prasad
and it is also established that the Government concurred with the re-
commendation of the High Court. Although Mr. Prasad submitted that H
the petitioner had an unblemished career, there are enongh materials
on the record to show that this is not correct. Thus the petitioner and
458 SUPREME COURT REPORTS (1980] l s.c.R.

other Sub-Judges not being similarly situate as being of equal merit the
question of discrimination or infraction of Article 14 of the Constitu- ~
tion 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 High "
Court but no such clear plea has been taken in the petition or proved 'h
in the allidavit filed by the petitioner. In these circumstances, we can-
not take any notice of such an allegation. For these reasons, we find
..
I

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 be shows
improvement and progress.
The application is accordingly dismissed. There will be no order
as to costs .

.S.R.. Petition dismissed.

•