HAR PRASAD GUPTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution of India by Har Prasad Gupta for the issue of a writ of certiorari to quash the order dated 13-3-1961 of the State of Uttar Pradesh (communicated to the petitioner under Annexure 'L' to the affidavit) and for such other and suitable order or direction as may be just and proper. A request was also made for the issue of a writ of mandamus to direct the respondent to treat the petitioner as having been appointed as District and Sessions Judge in pursuance of Rule 6 of the Uttar Pradesh Higher Judicial Service Rules, 1953, as and from June 16, 1953, and to treat the petitioner as having been confirmed with effect from November 18, 1953, in the substantive vacancy caused on the retirement of Sri R. K. Chowdhary.

(2.) It may at the very outset be observed that the present petition was filed on 13-7-1961 at the time the petitioner was in service and was posted at Bareilly as District and Sessions Judge, Bareilly, but it could not be decided till his retirement. The petitioner retired from service on December 31, 1961, and is no longer in service. This fact shall be of importance in laying down whether the present is a case where this Court may exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.

(3.) The admitted facts of the case are that the petitioner was selected as a Munsif in the year 1928 as a result of the competitive examination held in the State and his position was above Mr. C. B. Kapoor. The petitioner was junior to late Sri R. K. Singhal. The petitioner was confirmed as munsif and later as Civil Judge retaining his original seniority. He was in due course confirmed as Civil and Sessions Judge in the Uttar Pradesh Higher Judicial Service with effect from July 7, 1951. The order of seniority remained unaffected. He was appointed Additional District and Sessions Judge of Meerut, Moradabad and Aligarh with effect from June 16, 1953, according to the petitioner, in a substantive vacan-cy, meaning thereby substantively; but according to the respondent, the appointment was in an officiating capacity, though on a substantive post. The respondent's version is supported by documents on record and can be accepted. If the petition is read as a whole the position taken by the petitioner cannot be properly appreciated. It is said at one place that once the petitioner was appointed a District and Sessions Judge, he was so appointed in a substantive capacity; but in the relief sought for he himself sought for confirmation from a subsequent date meaning thereby that the appointment prior to the date from which he could be confirmed was in an officiating capacity and he should be deemed to be holding the substantive rank of the District and Sessions Judge with effect from November 18, 1953, and not earlier.