The High Court, Calcutta v. Amal Kumar Roy

Sinha C.J. and decree of the Trial Court itself.

In order to bring out the points in controversj it is necessary to state the following facts. The plaintiff, who is now funotioning as on Additional District a.nd Sessions Judge, was, at the date of the suit filed on September 4, 1958, a. member of the West Bengal Civil Service (Judicial). He joined the service on April 1, 1937, as a Munsif, a.nd was duly confirmed on April 1, 1939. In the West Bengal Civil List, corrected up to January 1, i954, his name appeared against serial No. 53, in the list of Munsifs. Just a.hove him against serial No. 52 was Shri Bibhutosh Banerjee, and the name of Shri Ja.gadindranath Hore (Respondent No. 2) appeared against serial No. 54. In course of time, all Munsifs down to serial No. 52-Shri Bibhutosh Banerjee-in the Civil L':it aforesaid were appointed to the postH of Subordinate Judges, according to thoir seniority indicated in that list. In Pebruary 1.955 th<' plaintiff w"" at the head of the list of Munsifs. In April l!J!i5, the plaintiff noticed that the second respondent aforesaid had been appointed a Subonli-na.te Jndg<\ and the notification of his appointment appeared in the Calcutta Gazette dated April 28, 1955, although the plaintiff had not received any order of appointment as a Subordinate Judl!'e. On representation being made by the plaintiff to the High Court, he was informed by the Registrar of the Court that "tho Court decided to consider his case again in December 1955." In t.he meantime, several other !Jfunsifs, whose names appeared below that of the plaintiff in t.he Civil .List, were appoin-ted ns Subordim1te .TndgeH, one after another. The plaintiff then addrt•sse<l a. petition of appe~.1 against the action of the High Court in not appointing him 1962 as a Subordinate Judge, to the Governor of the

of West Bengal. That appeal was with-The High Court. ~tate CakuttJ held by the High Court with the remarkes v. "that the action complained of not being diciplinary Amal Kumar ROJ action, no such appeal lies!' The plaintiff there-Siaha C. J, upon addressed a petition to the Governor, praying that the said petition of appeal withheld by the High Court, as aforesaid, be called for. This petition was also withheld by the High Court with the remarks that in the Court's opinion no such petition lay. In April 1956, the plaintiff was appo-inted to act as an Additional Subordinate Judge, by an order of the High Court. In the meantime, eight Mu:nsifs, who occupied lower places in the Civil List (impleaded as proforma defendants in the suit) had been appointed and posted as Subordinate Judges, one after another in succession, in the order in which their names appeared in the Civil List. In May 1956, the plaintiff addressed a memorial to tho Governor of West Benga.L This memorial was also withheld by the High Court on the ground that no such memorial lay. The plaintiff ha.d sent a copy of the memorial to the Secretary to the Government of West Bengal (Judicial ·Department). He was informed by the Department that the Governor had declined to interfere. Thereupon the plaintiff in-stituted the suit, originally against the State of West Bengal, as the principal defendant, and the eight Munsifs, who had been appointed Subordinate Judges in preference to the plaintiff, as proforma defendants. But subsequently, on the plea of defect of parties, raised in the written statement of the State of West Bengal, the High Court of Calcutta., and the sitting Judges~ were a.oded as defendants l(a) to l(x) in the category of principal defendants. The cause of action alleged in the plaint was that the High Court hn.d never declared the plaintiff as unfit to act as a Subordina.te Judge; it had never called upon the plaintiff t.o show cause, under Art, 311(2) of tho 196Z Constitution, or r. 55-A of the Civil Services (Classifi· Thi High Court, cation, Control and Appeal) Rules, as to why hie

Calcutta ·- promotion should not be withheld. As a matter of Am al Kumar Roy fact, the High Court never declared, in terms, that

it was going to withhold the plaintiff's appointment Sinha C. J. as a Subordinate .Judge. On the contrary, the

plaintiff was vested with special powers two months before April 1955, when the order complained of was passed by the High Court, conferring upon him pecuniary jurisdiction to try suits of the value upto Rs. 3500/·; and small cause court suits up to the value of Rs. 300/--powers which ordinarily are conferred by way of stepping-stones to subordinate judgeship. The plaintiff was also allowed to cross the efficiency bar at the highe1· level on due date, namely April 1956, and was recommended for ap-po.intment as an Assistant Sessions Judge, soon after be was post-ed as a Subordinate Judge. The plaintiff a !so made a point of the fact that though the High Court expressly declared that its action in not appointing him a Subordinate Judge in the ordinary course was not by way of disciplinary action, or of imposing a penalty, within the meaning of cl. (ii) ofr. 49 of the Civil Services (Classification, Control and Appeal) Rules, the High Court actually withheld the plaintiff's promotion as Subordinate Judge, withheld his petition o" appeal to the Gover-nor, and did not consult the West Bengal State Pubilc S irvice Cc>mmission. The plaint also added that the Munsifs and Subordinate Judges belong to one and the same service, namely, the West Bengal Service (J udioial), and that a number of the service is entitled to be considered for promotion according to seniority, to the West Bengal Judicial Service. In the premises, the plaintiff prayed that "a decla-ration be made that he occupies the same position, with the ea.me privileges and benefits, as if he had been appointed as a Subordinate Judge immediately before the second respondent", and that "his name be inserted in the West Bengal Civil List, and in 11ony other relevant grad11otion list maintained as a. Subordinate Judge immediately below tba.t of 196Z Shri Bibriutosh Benerjee and immediately above that of Shri Jagadiildra Nath Hore". 'Fhe High Court, Calcutta Arrears of salary as Subordinate Judge, v. Amal Eum~r Ra, together with dearness allowance, with interest at 6% per annum, amounting to Si11ha C. J. Rs. 1,090/- were also claimed, and a permanent injunction was also prayed for directing the princi-pal defendants to plaoo the plaintifi's name in the Civil List, in terms of the declaration sought, besides other reliefs, not necessary to be mentioned here.

The suit was contested mainly by the added defen-dants, as the first defendant, the State of West Bengal, disclaimed any knowledge of the action taken by the High Court, or the rea-ons thereof, though it denied that the plaintiff had a cause of action, or that he was entitled to any relief. The sub~tantial defence to the suit raised by the High Court was that in December 195!, the High Court considered the question of inclusion of names of certain Munsifs in the panel of officers to officiate as Subordinate Judges; the plaintifi's name was ex-cluded from that panel, and it was decided that the High Court wquld consider his case a year later, after a special report .from the District Judge con-cerned; and that the plaintiff was not thought fit, at that time, to act a.s a Subordinate Judge. On the question of plaintiff's fitness as a judicial officer, the High Court made reference to the plaintiff having issued an injunotion in his own favour, in a. casi:i in which he himself W&'i the plaintiff. The order of injunction was judicially considered, on appeal, and set a.side. The matter came up before, a Full Court of the High Court for consideration administrati-vely, as a result of 'Yhicb a. Committee of three Jqdges of the High Coqrt was app9inted to consider the pla.iiltiff's oond~ct. i\.fter considering the plain-ti(f'e explanatjon, tb,e High Court came to. the con-clusion tihat his explana.tfon was unsatisfactory, and that his oonduct sbottld a total disregard of all judi-oial propriety. It was denied that the plaintiff'~ oase 1902 came within the scope and ambit of Art. 31I(2) of The Hi· la Courl, the Const,itution, or r, 55-A of the Civil Services

Calcutta (Classification, Control and Appeal) Rules. It was

v.

Ar, cl Kwnor Roy claimed on behalf of the High Court that under the

Constitution and otherwise the High Court was the Sin/i4 C.J. sole administrative authority to determine queetions

of promotion of Munsifs to Subordinate Judge's grade; in exercise of that sole authority and discre-tion, the High Court considered the plaintiff's caee for promotion as Subordinate Judge, and paesed orders on a proper appreciation of the plaintiff's record of service, and in the best interests of the judicial administration of the State. It. was also denied that the plaintiff's case should have been referred to the State Public Service Commission. It was affirmed that the suit, as fro.med, claiming the reliefs aforesaid, was not maintainable. The High Court relied upon the provisions of Art. 235 of the Constitution, as vesting complete control, authority, jurisdiction and discretion to consider and decide the question of fitnees of a Munsif to be promoted as a Subordinate Judge, and its order in not promo-ting the plaintiff, after a proper consideration of his record of servioe, was neither a disciplinarv action nor an imposition of a penalty, which would bring his case within the purview of the State Public Ser. viee Commission, and the plantiff had no right of appeal against the order of the High Court, com-plained of, as it was not governed by the Civil Ser-vices (Classfication, Control and Appeal) RuleA, relied upon by the plaintifi. In the premises, it was contended that the Court had so jurisdiction to entertain the suit or to grant any of the reliefs claimed by the plaintiff.

On those plea.ding~, and after recording the plaintiff's and considering the documentary evidence adduced by the parties, the learned Judge below, of the City Court, observed at the outset that at the trial, tbe learned counsel for the pla.intitf did not rely upon the provisions of Art. 311(2) of the Cons-1962 titution, though reference to it had been made in The High Court, the plaint. He relied upon the provisions of Art. C•lcutla 235 of the Constitution, read with rr. 49, 55-A and v. Amal Kumar &y 56 of the Civil Services (Classification, Control and Appeal) Rules, and came to / the conclusion "tht\t Sinha C. J. the High Court intentionally deferred con1iideration of the plaintiff's promotion with a view to penali-sing him for his conduct in the past .. .'', and that the plaintiff was entitled to bring the suit inasmuch a.s the High Court was not authorised, under Art.

235 of the Constitution, to withhold the plaintiff's promotion as Subordinate Judge, without comply-ing with the requirements of the Rules aforesaid.

In the result, the suit was decreed with costs, giving the declaration sought for, as also a money decree for Rs, 1,060/-, as arrears of salary and· dearness allowance. The judgm.ent and decree of the Civil Court, is dated February 17, 1960. On April 12, 1960, application for specia.l leave to appeal to this Court, directly from the judgment and decree afore-said, was made, and the special leave was granted by this Court on April 26, 1960.

In this Court, at the very outset, the ·learned Standing Counsel for the Government .of West Bengal very properly and candidly admitted before us that due to defective instructions he had not l:>rought it to the notice of the learned Trial Judge that the r. 55-A, enacted in 1948 by the Governor-General, was not applicable to the Judicial Service in Bengal. The plaintiff-respondent, who argued his oa.se in this Court in person, with singular ability and persistence, was not able to show to the con-trary. We must, therefore, proceed on the footing that this Rule does not, in terms, apply to this case, and is wholly out of the way.

At the threshold-of his arguments, the learned counsel for the appellants contended that the suit was not inainta.inable ·beoaUBe the controversies re.ised

446 SUPREME OOURT REPORTs (1963]

i962 by the plaintiff are not justiciable. We have, there-The High Court, fore to determine the question w beth er the issues

Calcutta •• raised in the pleadings of the parties were justici-Amal Ktlmar Roy able. The answer to this question must depend

upon the answer to the questions whether the plain-Sinha C.J. tiff had a right to promotion, which right had been

withheld from him., ~bus giving him a cause of action. Was the plaintiff subjected to a penalty, without taking the necessary proceedings, as con-templated by Art. 3ll(2) of the Constitution, or the Service Rules? Was there any breach of procedure, laid down by law, in determining the plaintiff's right, if any. Was the action of the High Court postponing by a year the consideration of the plaintiff's promotion as Subordinate Judge without jurisdiction? Was there any delegation of powers under Art. 235 of the Constitution to the English Committee, as contended by the plaintiff respon-dent? Was there a breach of tb.e provisions of Art. 320(3)(0) of the Constitution? Was the plaintiff "reduced in rank" within the meaning of Art. 311(2) of the Constitution? These are matters which are interconnected and will, therefore, have to be con· sidered together. The question whether the plain-tiff had a right to promotion has to be determined with reference to the provision of the Bengal, Agra and Assam Civil Courts Act (XII ~f 1887)-whioh may for the sake of brevity be called the Civil Courts Act -along with the Civil Service Rules governing the judicial branch of the Provincial Civil Service of West Bengal. The Civil Court Act con-solidated the law relating to Civil Courts in Bengal, and other parts of India. By s. 3, it prescribed four classes of Civil Courts, namely; ( l) the Court of the District Judge; (2) the Court of the Additional District Judge; (3) the Court of the Subordinat.e Judge; and (4) the Court of the Munai/. By e. 21 of the Act, appc11.ls from a Mumi/ shall lie to the District Judge, who may assign the appeal to be heard by a Subordina~ Judge. Hence, in t.b.e hierarchy of the Courts in the district, the Court of 1962 a Subordinate Judge is higher in rank than the Thi High Conre, Court of a Munsif which stands at the bottom. Cofrutta B11t the Civil Courts Act does not make any provi-v. dmol Kumar Roy sion about promotion from the rank of a Munsif to that of a Subordinate Judge, or the machinery or Sinh1J C. J, the proceBB by which a M unsif may become a Subordinat~ Judge. Under s. 255 of the Government of India Act, 1935, the Governor of a Province, after consultation with the Provincial Public Service Commission, and with the High Court concerned, was authorised to make rules for recruitment to the Subordinate Civil Juqicial Servi-ce, which expression meant civil judicial posts inferior to the post of a District Judge. By sub-s.(3) of that section, the High Court was vested with the power of posting, promotion, etc. of persons befong-ing to the service, subject to the conditions of service, laid down by the Governor. After the in-auguration of the Consititution, Art. 235 vests the control over District Courts, and courts subordinate thereto, including the posting and promotion of persons belonging to the Judicial Service of a State, holding any post inferior to that of the District Judge, in the High Court. This power of the High Court is subject to any right of appeal, which a member of the service may have under the law regulating the conditions of his service, and to his other rights under that law. It is therefore, clear that after the coming into force of the Consti-tution, the High Court is the authority which has the power of promotion in respect of persons belong-ing to the State Judicial Service; holding any poat inferior to that of a District Judge. It is not conten-ded by the plaintiff-respondent that there is any other authority which could have dealt with him in the matter of promotion from the post of a Munsif to that of a Subordinate Judge. But it was conten-ded that the authority of the High Court, derived M it is solely from Art. 235,, is subject to the service 1~61 rules governing the matter. Even so it was not H1fh claimed. that there is anything in the rules, which Tiu Court, categoncally confers a right on the plaintiff to be

c.1a1ua

y, promoted as a Subordinate Judge. What is claimed Arn.i Kumar Ro.1 by the plaintiff is that r. 49(2) of the Civil Services

Sinha c. '· (ClassificaUon Control and Appeal) Rules embodied

his right in a negative way, namely that he shall not be withheld promotion except by recourse to procee-dings contemplated by that rule, and tne rules follo-wing that rule. In other words the plaintiff is not claiming an absolute right to promotion, irrespective of the question whether or not there is a vacancy in the higher cadre or thttt he must be promoted when he becomes the seniormost Munsif. He claims that, under the Rules aforesaid, if there is a vacancy in the cadre of Subordinate Judges, he should have been appointed in t,hat vacancy of a Subordinate Judge, as he was the seniormost Munsif and that if a Munsif lower to him in the seniority list is appoin-ted as a Subordinate Judge in that vacancy, with· out good or sufficient reasons being shown, and 1 without giving him the right of appeal, then his right is infringed, and in that sen•e he claims that he has a right not to be withheld promotion from him, and that in the events that have happened, his supersession by a Munsif junior to him in the Civil List amounted to withholding promotion from him within the meaning of r. 49. That rule lays down several categories of penalties, which may for good and sufficient reasons be imposed upon a member of the service. One of those penalties is "withholding of increments or promotion, including stoppage at an efficiency bar", and r. 55-A lays down that a penalty like that of withholding promotion, as also some other penalties not relevant to our present purpose, shall not be imposed upon a member of the service unless he has been given adequate op-portunity of making any representation that he may desire to make, and such representation, if any, has been taken into consideration before the order imposing the penalty is passed. One thing is clear 1941 with referAnce to Art. 235, read with the service The High Court, rules, thn.t there fa no right of promotion which the Colculla v. plaintiff could have claimed to enforce by action in Amal Kumar BoJ• I a Court. Rule 49, on which reliance was placed by

the plaintiff to make out his right to be considered Sinha C. J, for promotion as a Suberdinate Judge, is in the first instance, not a right but only a safe guard to a public servant that punishment by way of with-holding of promotion shall not be imposed upon him unless he has been given adequate opportunity of showing cause against the aetion proposed to be taken. It is also clear that r. 49 comes into play only when proceedings are taken by way of discipli-nary action against a public servant. In such dis-ciplinary proceedings, the G~lvernment servant pro-ceeded against has a right to insist upon the proce-dure being strictly followed. But in this case there was no such disciplinary ·proceeding against the plaintiff, and therefore, r. 49 is wholly out of the way. If r. 49 is not available to the plaintiff, r. 55-A was equally not available to him, even assu-ming that the rule applied to the case of members of the State Judicial Service. It follows from what bas been said that there was no question of a penal-ty being imposed upon ·the plaintiff. That being so, there could not be any breach of the procedure laid down by tp.e rules for proceedings against a govern-ment servant, like the plaintiff.

But it was argued by the plaintiff that the action taken against him, namely, postponing con-sideration of his case for promotion as a Subordi-nate Judge, as aforesaid, was be:J ond the jurisdic-tion of the English Committee. This argument is advanced on the assumption that the High Court, as such, had delegated its powers, under Art. 235 of the Constitution, to the English Committee, which passed final orders against him. In our opi-nion, no foundation was la.id in the plaint for any

450 SUPREME COUR'.i. REPORTS [1963]

1962 such contention. It is not alleged in the plaint that Thi Hig\ CoUTI, the resolution of the English Committee of the

C"leal'a Judges of the Calcutta High Court, dated .December

v. 16, 11154, was not adopted by the Full Court in Amal Eltl'nar Roy

,wcordance with the Rules of Business laid down by Sinha C J. that Court. According to r. 1 of Ch. I of the High

Court Rules, there shall be a Standing Committee, called the English Committee, composed of the Chief Justice and at least four other Judges, to be appointed from time to time by the Chief Juetice. According to r. 2 this Committee shall be associated with the control and direction of the Subordinate Courts, and according tor. 3 the English Committee shall have power inter alia "to make recommenda-tions for the appointment of Subordinate Judges ... " The English Committee, therefore, by its resolution aforesaid, only made a recommendation, which re-commendation has to be circulated to all the Jud-ges as soon after each meeting as possible, according to r. 13. The relevant portion of r. 15 is in these terms:

"On the following matters all the Judges shall be . consulted :- . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

( e) all appointments which by law are made by the High Court and which are not otherwise expressly provided by the rules in this Chapter."

It must therefnre, be held that in accordance with the Rules of Business of the Court, the appointment of Subordinate Judges from amongst Mumif8 bas to be made by the High Court as a whole, on the recommendation of the English Committee. The resolution of the English Committee in connection with the selection of the plaintiff as a Subordinate Judge must have, in ordinary course, according to tbe Rules, been placeo before all the Judges of the

I s.C.R. SUPREME COUR'.l. 1 REPORTS 451

Court, a.nd presumably the Court a.a a whole accep-1962 ted the recommendation of the English Committee.

It is true that there is nothing in the record of this Tlt1 High Court, Calcutta case to prove all this. But, as already indicated, v. as the plaintiff did not make any allegations that Amal Kumar Btt1 the High Court as such had not passed the orders Sinha C.J. complained of, the High Court did not think it necessary to place the other relevant documents on the record. Hence, there is no basis for the submis-sion either the High Court and made unjustifiable delegation of its powers under Art. 235 of the Cons-titution, or that the High Court as a whole did not pass the order which was the plaintiff's alleged cause of action. What has happened with reference to his complaint ma.de iu the' plaint has been thus stated by the High Court in paragraph 6 of the written statement :

'•With further reference to paragraph 4 of the plaint these defendants state that on or about 16th December, 1954:, the cases of eeve· ral Munshifs came up for consideration before this High Court for inclusion of names in the panel of officers to officiate as Subordinate Judges. The plaintiff's name was excluded and it was decided by this High Court that, after the -special report from the District Judge was received, the case of the . plaintiff would be considered a year later. The plaintiff was not thought fit at that time to act as a Subor-dinate Judge and these defendants will refer to the relevant records in connection t-here-with. Subsequently, the plaintiff was allowed to act as a Subordinate ;Tudge under Order of this High Court and therefore, in the mean-time and in due course and for good reasons the plaintiff had lost eight places and became a Subordinate Judge after 8ri Anatb Bandhu Syam. Ultimately, the plaintiff was con.firmed as a SuboJ."din~te Judge and was inoluded in 1963 the fit list to officiate in the West Bengal The High Court, Higher Judicial Service, and has since been

Calcutta appointed to officiate as Additional District

v. and Sessions Judge."

Amal Kumar Ro'1

Sinha C . .J. Thus, unfortunately for the plaintiff, the effect

of the order of the High Court was tha.t he was not selected as a Subordinate Judge when bis turn in the ordinary course came, for certain reasons which need not be gone into, because we have held that the plaintiff had no right to promotion, and, therefore, no right of action iQ a Court. The plaintiff lost eight places in the cadre of Subordinate Judges of West Bengal, but that was a natural consequence of the order of the High Court deferring the con-sideration of his selection as Subordinate Judge by a year. But that is the normal incidence of public service. In this connection, we may notice the argument advanced by the plaintiff that before the High Court decided to pass him over in favour of those Munsifs who were lower in the Civil List, the Bengal Public Service Commission should have been consulted, in accordance with the provisions of Art.320(3)( c) of the Constitution. That has reference to "all disciplinary matters". As already pointed out no disciplinary proceedings had been started against the plaintiff. Hence, there could be no occasion for the State Pu blio Service Commission being consulted. It is not, therefore, necessary for us to reconsider the question as to whether the provision in question is mandatory or only direc-tory, as held by this Court previously.

But it was further contended that even though there may not have been any disciplinary proceed-ings taken against him, the effect of the High Court's order was that lie was reduced by eight places in the list of Subordinate Judges, and that in law amounted to reduction in rank, within the meaning of Art. 311(<!) of the Constitution. Though in the Trial Court the plaintiff's counsel (apparently the plaintiff did not argue his case himself in that 1961 Court) had conceded that no reliance was placed on The High Court. the provisions of that Article on behalf of the· Calcutta plaintiff, the plaintiff in this Court has tried to v. Amal Kumar Roy invoke those provisions in aid of his submission aforesaid. In our .opinion, there is no substance in Sinha C. J. this contention because losing places in the same cadre, namely, of Subordinate Judges does not a.mount to re notion in rank, within the meaning of ;\rt. 311(2). The plaintiff sought to argue that "rank'', in accordance with dictionary meaning, signjfies ''relative position or status or place", a.coording to Oxford English Dictionary. The word "rank" .can be and has been used in different senses in different contexts; The expression ''rank"

in Art. 311 (2) hae reference to a person's classifica-tion and not his particular place in the same cadre in the hierarchy of the service to which he belongs.

Hence, in the context of the Judicial Service of West Bengal, "reduction in rank'' would imply that a person who is already holding the post of a Subordinate Judge has been reduced to the position of a Munsif, the rank of a Subordinate Judge being higher than that of a Munsif. But Subordinate Judge in the same cadre hold the same rank, though they have to be listed in order of seniority in the Civil List. ·Therefore, losing some places in the seniority list is not ·tantamount to reduction in rank. Hence, it must be held that· the provisions of Art. 31)(2) of the Constitution are not attracted to this case.

Lastly, it was submitted that the plaintiff has been discriminated against in the matter or his promotion, and, therefore, Arts. 14 and 16(1) of the Constitution have been violated. It is difficult to se,e how either .of those Articles can be pressed in ~id of the plaintiff's case. The plaintiff's case was considered along with tha.t of the others and the High Court, after a consideration of the relative 1969 fitness of the Munaifs chose to place a number of

them on the panel for appointment as Subordinate Tht Hi_gh Court, Judges, as and when vacancies occurred. He had,

Ca/cur •• ta

therefore, along with others, equal opportunity • Amal frumar Roy But equal opportunity does not mean getting the

Sinha C. J. particular post for which a number of persons may

have been considered. So long as the plaintiff, along with others under consideration, had been given his chance, it cannot be said that he had not equal opportunity along with others, who may have been selected in preference to him. Where the number of posts to be filled is less than the number of persons under consideration for those posts, it would be a case of many being called and few being chosen. Th\l fact that the High Court made ite choice in a particular way cannot be said to amount to discrimination against the plaintiff.

It must, therefore, be held that the plaintiff has failed to make out a cause of action for the suit. The High Court, being the sole authority to decide the question of appointment of a Munaif to the higher rank of a Subordinate Judge, had exer-cised its power, after fully considering the plaintiff'• case for promotion, to pass him over for a year. His case was later considered and he was promoted to the higher rank of a Subordinate Judge and subsequently to the still higher rank of an Additio-nal District and Sessions Judge. The exercise of the power vested in the High Court is not justicia-ble, and rightly so. The High Court, by Art. 226 of the Constitution, has been constituted, without in any way derogating from the powers of the Supreme Court in that behalf, the custodian of individual rights and libertie1, guaranteed by part III of the Constitution, and has been further vested with the power to enforce those rights by issuing appropriate orders or writs. By Art. 235, the High Court has be.~n v"sted with complete control over the subordinate eourts. Naturally, therefore, not pnly "s citizens but as members of the Judicial Service, they look upon the High Court as the custo-1962 dian of 'their rights in accordance with the rules prescribed by itself. It io a little surprising that Thi High Court, Calculta the plaintiff should have convinced himself that the v. High Court had not given him his due, and should Amal Kumar Roy have ta.ken recourse to the Courts to enforce such Sinha C.J. rights as the law gives him as a member of the State Judicial Service. The plaintiff, who argued his own case in this Court, though not in the Trial Court, gave a very good account of himself in arguing his case and placing all relevant considera-tions before the Court. But ho seems to have more learning than wisdom. He has, without any justifi-cation, taken recourse to Courts instead of leaving his case to be dealt with by the High Court, which must be presumed to have acted in all· fairness, in accordance with the established praotioe and rules of the Court, so as best to subserve the interests of efficient and impartial administration of justice.

The plaintiff appears to have been a victim of circum-stances, which were more or less his own creation.

He tried to convinoe us that he bad no alterna.tive but, as a Court, to grant an injunction in his own favour as a plaintiff. We have not thought fit to go into that question because on the face of it, it appears to be rather wholly unarguable that a litigant should be the judge in his own ca.use, however just it may be. Instead of allowing some delay in obtaining the injunction, on account of circumstances beyond his control, and even taking the risk of judgment going against him in the Small Cause Court, he thought better to issue the injunction in his own favour, sitting as a Judge in his own case. That has been the cause of all his misfortunes in the" service, and he has to thank himself for all that has happened. But however much one may sympa.thiae with him, it has got to be held that in law he had no right which could be enforced through the machinery of the Courts. The appeal must, therefore, be allowed. But as the

19~1 defendants-appellants allowed the case to be deci-

ded against them without placing all relevant The Nigh CtnJrt, considerations before the Trial Court, particularly

Calculla ••

the fact that r. 55-A did not apply to members of Amal Kumar Roy the State Judicial Service, we direct that each

Sinha C.J. party will bear its own costs, here and below. The

appeal is accordingly allowed, but without costs. Appeal allowed.

MST. KHARBUJA KUER

v.

JANGBAHADUR RAI

(A. K. SARKAR, K. SUBBA RAO and

J. R. MUDHOLKAR, JJ.)

Pardanashin lady-Execution of deed-Binrling nature-Burden of proof.

R, the husband of the appellant, had separated from his uncle J. in 1924. After the death ofR, J got a main-tenance deed executed by the appellant containing recitals that there had been no separation between R. and J. The appellant filed a suit for a declaration of her title to the property and for a declaration that the deed having been got executed by fraud was not binding on her. The trial court decreed the suit holding that R and J had separated, that the appellant was an ignorant pardanashin lady and that she did not execute the deed after understanding the contents thereof. On appeal the first appellate court con· firmed the findings and decree. In second appeal the High Court reversed the findings of facts on the ground that the onus was on the appellant "'prove that the deed had been got executed by fraud. The appellant CQntemled th11t the

CIVIL APPELLATE JURISDICTION : Civil Appeal 1961 No. 193/1961. Thr High Cai.rt,

Appeal by special leave from the judgment Calcatta v. and decree dated February 17, 1960, of the City Amal Kumar. Roy Civil Court, Calcutta, in Title Suit No. 409 of 1958.

A. 0. Mitra, B. Das, B~ Basak and P. [{, Bose, for appellants Nos. 2 a11d l(a) to l(t).

M. O. Set,alvad. Attorney General of India, B.

Das, B. Basak and P. K. Bose, for appellant No. 2.

M. Adhikari, Advooate General, Madhya Pradesh and /. N. Shroff, for intervener No. I.

P. D. Menon, for intervener No. 2.

S. M. 8ikri, Advooate-General, Punjab and P. D. Menon, for the intervener No. 3.

G. 0. Kasliwal, Advooate-General, Rajastkan, 8. K. Kapur and P. D. Menon, for intenener No. 4.

G. R. Ethirajulu Naidu, Advocate-General, Mysore and P. D. Menon, for intervener No. 5.

0. P. Lal, for intervener No. 6.

1962. April 9. The ,Judgment of the Court was delivered by

SINHA, C.J.-This appeal, by special leave, is directed againet the judgment and decree dated Sinha C.J, February 17, 1960, of the City Civil Court at Calcutta, decreeing the plaintiff's suit for a declaration and consequential reliefs, to be hereinafter noticed. The appeal arises under very special circumstances. the most notable feature of the case being that it comes direct to this Court .from the judgment and decree of the Trial Court, without having gone through .the ordinary process of appeal to the High Court of Calcutta. The reason why this happened was that the High Court of Calcutta, and the sitting judges 1962 of that Court, wer<J the appellants, having been the The CDurl, principal contesting defendants in the Trial Court,

Hieh and, therefore, could not, in a.II propriety, have Calcutta ••

heard the appeal. That was the reason why special Anal Kum 1r Roy le(we was granted to appeal from the judgment