Rameshwar Prasad Vs. State of Bihar
& Ors  INSC 163 (31 August 1979)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1980 AIR 104 1980 SCR (1) 456 1979
SCC (4) 368
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.
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]
ORIGINAL JURISDICTION: Writ Petition No. 4313
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.
S. V. Gupta and B. P. Singh for Respondent
457 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 458 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.