Ganesh Prasad Dube Vs. State of Bihar
& Ors  INSC 52 (16 February 1971)
CITATION: 1972 AIR 2396 1971 SCR (3) 726 1971
SCC (1) 691
Practice-Grant of Certificate by High
Court-Application under Arts. 132(1) and 133(1) (a) to (c) of ConstitutionProcedure
to be followed by High Court.
The appellant, who was acting as Director of
Public Instruction, challenged an order posting him as Director of State
Institute of Education by a writ petition in the High Court, on various
grounds. It was dismissed. He applied for grant of certificate to appeal to
this Court under Arts.
132(1) and 133(1)(a) to (c) of the
Constitution. The High Court held that Art. 133(1)(a) did not apply, did not
consider whether Arts. 133 (1) (c) and 132 were applicable, doubted whether
Art. 133 (1) (b) would apply, but ultimately granted a certificate under Art,
On the question whether the certificate was
HELD : As the High Court has not properly considered
the application for grant of certificate,under Arts. 132(1) and 133(1)(b) and
(c), it will have to be remanded to be considered by the High Court afresh. The
High Court, in the fresh order to be passed, must clearly indicate ,under what
particular Article or clause of the Article the certificate is granted [733
A-C] Saya Narain Prasad v. State of Bihar  2 S.C.R. 275 and M/s Krishna
Gyanodaya Sugar Ltd. v. The State of Bihar and Ors. A.I. R. 1970 S.C. 2041,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1256 of 1969.
Appeal from the judgment and order dated
February 17, 1969 of the Patna High Court in Civil Writ Jurisdiction Case No. 153
,of 1969 with Civil Miscellaneous Petition No. 4499 of 1969.
Application by respondent No. 1 for revocation
of the certificate granted by the High Court under Art. 133(1)(b) of the
S. T. Desai, Tarkeshwar Dayal and S. N.
Prasad, for the appellant.
L. M. Singhvi and U. P. Singh, for
respondents Nos. 1 and 3 to 5.
7 27 Basudeva Prasad, Nawal Kishore Prasad
Sinha and U. P. Singh, for respondents Nos. 2 and 6 to 10.
The Judgment of the Court was delivered byVaidialingam,
J.-In this appeal, on certificate, the appellant challenges the order dated
February 17, 1969 of the Patna High Court dismissing summarily C.W.J.C. No. 153
of 1969 filed under Art. 226 of the Constitution.
The appellant was appointed by the order
dated March 21, 1968, by the State of Bihar temporarily to act as Director of
Public Instruction, Bihar. On the date of the said appointment the appellant
was the Director of State Institute of Science. In the endorsement in this
order,'-it was stated that the appellant's appointment as Director of Public
Instruction has been made by promotion on a temporary basis for a period not exceeding
six months in anticipation of the concurrence of the Public Service Commission.
By order dated November 18, 1968, the State Government passed an order posting
the appellant as Director of State Institute of Education. It is stated in the
said order that the appellant had been officiating in the post of Director of
Public Instruction by virtue of the order dated March 21, 1968.
The appellant filed C.WJ.C. No. 153 of 1969
before the High Court challenging this order of November 18, 1968 on various
grounds. He had also alleged mala-fides in the passing of the said order. In
the view that we take that the order of the High Court granting the certificate
has to be remitted for fresh consideration, we do not propose to refer to the
various grounds of attack made by the appellant in his writ petition before the
High Court. The High Court by its order dated February 17 1969 has taken the
view that as the appellant's appointment as Director of Public Instruction was
on a temporary basis for a period not exceeding six months in anticipation of
the concurrence of the Public Service Commission, the Public Service
Commission, which was subsequently consulted did not give its concurrence to
the appointment of the appellant as Director of Public Instruction and therefore,
the government passed the impugned order dated November 18, 1968 posting the
appellant as Director. State Institute of Education. As the appellant was
appointed purely on a temporary basis, he has no right to claim the post. The
High Court has further expressed the view that it is not satisfied prima facie
that there was any mala-fides on the part of the Public Service Commission in
not giving its concurrence to the appointment of the appellant or on the part
of the government in not appointing the appellant as Director of Public
A further contention taken on behalf of the
appellant 728 that the impugned order was not in conformity with the decision
of the Council of Ministers, was rejected by the High Court. On this reasoning
the High Court held "as no prima facie case has been made out for
interference with the order of the Government, as contained in Annexure 1, this
application is summarily rejected". Annexure 1, in the above quotation was
the impugned order dated November 18, 1968. It may be noted that the writ
petition was dismissed without issuing notice to the State and other
On behalf of the appellant Mr. S. T, Desai,
learned counsel, attempted to argue on merits by urging that the High Court, in
view of the allegations made by the appellant in the writ petition, was not
justified in rejecting the petition summarily. The learned counsel also
attempted to argue that even on the basis of the materials placed before the
court, the order is unsustainable.
On behalf of the first respondent, State of
Bihar, C.M.P. No. 4498 of 1969 has been filed for revoking the certificate
granted by the High Court under Art. 133(1)(b) of the Constitution. Dr. L. M.
Singhvi, learned counsel for the State, therefore, raised preliminary objection
that the certificate granted by the High Court is not valid and as such it
should be revoked. If the certificate is revoked, as prayed for by the State,
the counsel urged, then there will be no need to go into the merits of the
appeal, sought to be canvassed by Mr. S. T. Desai, learned counsel for the
As the preliminary objection has to be first
dealt with it is now necessary to refer to the order of the High Court granting
the certificate. After dismissal of the writ petition by the High Court, the
appellant filed an application (Supreme Court Appeal No. 42 of 1969) for grant
of certificate of fitness to appeal to this Court. That application, no doubt,
was opposed by the present respondents. The High Court by its order dated March
13, 1969 granted the certificate to the effect "that the requirement of
valuation to enable the petitioner to get a certificate is fulfilled under
Article 133(1) of the Constitution." From the order of the High Court it
is seen that the, application for the grant of certificate was made under Arts.
132(1) and 133(1) of the Constitution. So far as Art.
133(1) was concerned, the request for
certificate was made under clauses (a) and (c) and not under clause (b). But,
however, during the course of arguments, the appellant's counsel relied on
clause (b) of Art. 133(1) and that was permitted by the High Court. Therefore,
ultimately the certificate was prayed for under Art. 132(1) and Art. 133(1)
clauses (a) to (c). After 'discussing the case of the appellant, the High Court
held that in a case of this nature the 7 29 salary or allowances attached to
the office of the appellant cannot be considered to be the subject matter of
disputewithin the meaning 1 of clause (a) of Art. 133(1) of the Constitution.
According to the High Court, the subject matter of the dispute is the right to
continue in office and not the right to get the salary if he is allowed to
continue in office. In this view the High Court held that the appellant cannot
be granted a certificate under clause (a) of Art. 133(1).
The High Court then considered the question
of granting a certificate under clause (b) of Art.133(1) of the Constitution.
The High Court was of the view that it is perhaps possible to hold that the
emoluments attached to the office can be taken into consideration for the
purpose of valuation under clause (b). The High Court has expressed the view
that the future emoluments which an incumbent of an office will be, getting, if
he succeeds in getting the office, will be the property respecting which some
claim or question will be directly involved in the judgment sought to be
appealed against provided it is a property. But, however, the High Court
entertained a doubt whether the emoluments which became payable to an incumbent
of the office in future, if an incumbent does not lose The office, due to any
other reason, other than the subject matter of the dispute in the case, can be
said to be property within the meaning of clause (b). But inspite of all these
doubts, the High Court held that certificates have been granted by the High
Court of Patna in several cases and then finally concluded "...but for the
purpose of determination of the question of valuation it is legitimate to
assume in his favour that he claims a right to the office of the Director of
Public Instruction which could have brought him the emoluments for a period of
3 years 3 months, if he succeeds." Ultimately the High Court certified
that the requirements of valuation to enable the appellant to get a certificate
is fulfilled under Art. 1 3 3 ( 1 ) of the Constitution.
Dr. L. M. Singhvi's contention is that the
certificate granted by the High Court is not valid. His argument ran as follows
The High Court has not granted the certificate under Art. 1 3 3 ( 1) (c); the
High Court has categorically held that the appellant cannot be granted a
certificate under Art. 133 (1) (a). Though the concluding part of the order
granting the certificate states that it has been granted under Art. 133(1), in
the circumstances mentioned above, it is clear that the certificate has been
granted only under Art.' 1 3 3 (1 ) (b). This is on the ground that the
appellant claimed his right to the office of the Director, Public 730
Instruction, which would have brought him the emoluments referred to by him for
a period of 3 years and three months, if the impugned order had not been
passed. This method of valuation for the purpose of clause (b) is not correct.
We are to state that the appellant had
claimed that on the date of the impugned notification, he was getting a monthly
salary of Rs. 1950/-. The post of Director of Public Instruction was in the
scale of Rs. 1850-100-2250. He was entitled to get an annual increment of Rs.
100/-. But for the impugned order the appellant claimed that he would have continued
in service for a period of 3 years and 3 months before attaining the age of
superannuation, and as such during this period he would have earned a salary of
Mr. S. T. Desai, learned counsel for the
appellant urged that the grant of a certificate under clause (b) of Art.33(1)
is correct. In the alternative he contended that as the claim made by the
appellant for grant of a certificate under Art. 132(1) and under Art. 13 3 (1 )
(e) has not been at all discussed or decided by the High Court and, if it is
held that the certificate as now 'granted is not valid, the High Court may be
required to consider the grant of a certificate under Arts. 132(1) and
133(1)(c). Mr. Desai also urged that as very serious allegations of mala-fides
in the passing of the impugned order have been made by the appellant, the High
Court was not justified in rejecting the writ petition summarily without
issuing notice to the respondents. He contended that all the material records
bearing on the matters arising for consideration are available in this Court
and in view of this circumstance, he requested that the hearing of the appeal
may be proceeded with by this Court.
We are not inclined to agree with Mr. Desai
that if the certificate granted by the High Court is not valid, this Court can
proceed to hear the appeal on merits. Mr. Desai relied on the decision of this
Court reported in Century Spinning and Manufacturing Company Ltd. and another
v. The Ulhasnagar Municipal Council and another(1) in support of his contention
that the High Court was not justified in dismissing the writ petition
summarily. It is no doubt true that in the above decision it has been held that
though the High Court has a discretion to decline to exercise its
extra-ordinary jurisdiction under Art. 226, nevertheless, the discretion is to
be judicially exercised and if the petitioner makes a claim which is frivolous,
vexatious or prima facie unjust, the High Court may decline to entertain the
petition. But if a party claims to be aggrieved by the unlawful, arbitrary (1)
 1 S.C.C. 582.
731 or unjust order of a public body or
authority, he is entitled to a hearing of his petition on merits and the High
Court will not be justified in dismissing such a petition in limine. Following
the above decision in M/s Exen Industries v. The Chief Controller of Imports
and Exports and others(1), Mitter J., speaking for the Court set aside the
order of the High Court dismissing the writ petition in limine with the
following observations :
"However the High Court though competent
to decline to exercise its extraordinary jurisdiction under Art. 226 of the
Constitution when it finds that the petition is frivolous or without substance
should not throw it out in limine if a prima facie cage for investigation is made
out. The High Court can reject a petition in limine if it takes the view that
the authorities whose acts were called in question had not acted improperly or
if it felt that the petition raised complicated questions of fact for
determination which could not be properly adjudicated upon in a proceeding
226 of the Constitution." Similarly in
Gyan Chand and others v. State of Haryana and others (2 ) where allegations of
mala-fides have been made and a writ petition was dismissed in limine by the
High Court, this Court set aside the order and remanded the matter for a fresh
consideration after calling upon the authorities concerned to file a return.
The above decisions are of no assistance to
the appellant as the orders of remand were passed in those appeals which came
to this Court either on a proper certificate issued by the High Court or on
special leave granted by this Court. In all those cases there was a proper
appeal pending before this Court in which merits of the points raised for
decision in the appeal were gone into and suitable directions were given
If the certificate granted by the High Court,
as contended by Dr. Singhvi, is invalid, then the appeal before us is an
incompetent appeal and no direction on merits-can be given by this Court on
such an incompetent appeal. There can be no controversy that if the certificate
is not valid, the only course open to this Court will be to dismiss the appeal.
Dr. Singhvi urged that the grant of' certificate under Art.' 133 (1) (b) in
this case is not justified because the method of valuation adopted by the High(1)
C.A. No. 971 of 1967 decided on 22-1-1971.
(2) C.A. No. 64 of 1970 decided on 21-8-1970.
73 2 Court is not correct. In this context
Dr. Singhvi relied on the decisions of this Court in Chhitarmal v. M/s Shah
Pannalal Chandulal(1) and Satyanarain Prasad v. State of Bihar(1) regarding the
test to be applied for the purpose of granting a certificate under clause (a)
or (b) of Art.
133(1). Dr. Singhvi also relied on the first
of the above references, in support of his contention that in the absence of a
valid certificate, the appeal is incompetent and it has to be dismissed.
Mr. S. T. Desai, learned counsel for the
appellant, urged that the High Court has not properly considered the claim made
by the appellant for a certificate under Arts. 132 (1) and 133 (1) (b) and (c).
Article 132(1) has not been considered at all nor has the High Court considered
clause (c) of Art. 133 (1) (c). Even with regard to clause (b), the High Court
has given a very halting finding. Therefore, the counsel urged that the High
Court may be required to consider the application for grant of a certificate
It is not necessary at this stage to consider
whether correct principles have been applied by the High Court in granting the
certificate under Art. 13 3 (1 ) (b). As we have pointed out earlier, it has
expressed doubts here an& there and it has granted the certificate under
that clause on the ground that the Patna High Court has granted certificates
under similar circumstances. As the High Court is being required to consider
this matter afresh, we do not think it necessary to express any opinion on this
Admittedly the High Court has not considered
the question whether the appellant wig be entitled to a certificate under Art.
132 ( 1 ) or Art. 13 3 ( 1 ) (c). It was pointed out to us on behalf of the
respondent that the High Court did not consider the grant of a certificate
under clause (c) of Art. 133(1) as no argument was advanced by the appellant
that the case involves a substantial question of law as to the interpretation
of the Constitution. No doubt there is such a passing remark in the order of
the High ,Court, but as the matter has to be reconsidered by the High Court, it
is desirable that the claim of the appellant under this clause is also
considered by the High Court. We have already referred to the fact that even
clause (b) has been considered only in a very halting manner by the High Court.
Therefore, the position is that the
certificate as granted by the High Court is not a valid certificate and as such
the appeal must be held to be incompetent. But the matter does no rest there.
In cases where the claim for certificate made on other clauses or under other
Articles have not been considered at all, this Court has directed the High
Court to consider the question whether a case has been made out for issue ,of a
certificate under such other provisions. (Vide Satyanarain (1) 2 S.C.R.
(2)  2 S.CC 275.
733 Prasad v. State of Bihar(1)and M/s Shree
Krishna Gyanodaya Sugar Ltd. v. The State of Bihar and others(1).
As the High Court has not properly considered
the application filed by the appellant, that is, Supreme Court Appeal No. 42 of
1969, before the High Court for grant of the certificate, that application will
be taken up by the High Court afresh. The High Court will consider whether the
appellant is able to satisfy the court that he is eligible to got a certificate
under Art. 132(1) or under Art. 13 3 ( 1 ) (b) or (c) of the Constitution. It
is not necessary for the High Court to consider whether the certificate is to
be granted under clause (a) of Art. 13 3 ( 1 ) as that question is already
concluded against the appellant in its order dated March 13,1969. The High Court in the fresh order to be passed must clearly indicate under what particular
Article or clauses of the Article, the certificate is granted. We are
constrained to make this remark because in the present order the High Court has
merely stated that the certificate is issued under Art. 133(1).
As already a long time has elapsed, the High
Court is required to dispose of the said application as expeditiously as
possible within a period not exceeding two months from the date of receipt of
this order by the High Court.
Subject to the observations contained above,
the appeal is dismissed. There will be no order as to costs in this appeal.
V.P.S. Appeal dismissed.
(1)  2 S.C.C. 275.
(2) A.I.R. 1970 S.C. 2041.