The Judgment of the Court was delivered by S.P. BHARUCHA, J.- This is an appeal by special leave which was filed by the High Court of Madhya Pradesh against the judgment and order of a Division Bench of the Madhya Pradesh High Court on a writ petition filed by the first respondent. By reason of the order dated 17-8-1994 the Secretary to the Government of Madhya Pradesh, Law and Legislative Affairs Department, Ministry of Law, was impleaded, upon his own application, as the second appellant.
2. The order under challenge states that the first respondent shall be deemed to have been confirmed in the post of Civil Judge, Class-11 with effect from 5-2-1973 and, in that behalf, quashes the resolutions or decisions of the Full Court of 5-2-1973, 27-7-1974, 26-4-1976 and 5-5-1985.
3. The first respondent was appointed Civil Judge, Class- 11 having been selected by the M.P. Public Service Commission along with 43 others (who, along with the appellants, were respondents to the writ petition). He was the first in the Commission's merit list. On 23-11-1971, the High Court informed the 1st respondent that he needed to be prompt in disposing of applications for temporary injunctions and in the matter of delivery of judgments. He also had to be firm in the matter of adjournments of civil suits at the stage of evidence. On 30-9-1972, the District Judge in whose district the first respondent was posted made the following remarks in the first respondent's confidential report for the period ending 30-9-1972:
"1. He is Civil Judge, Class-11 and Magistrate First Class without summary powers.
2. I have not heard anything against his honesty and integrity although inquiries in this behalf were made by me at the time of annual inspection of his Court on 17'-11-1972 from some senior members of the Bar at Mahidpur.
3. When I visited Mahidpur for annual inspection of his Court on 17-11-1972, it was reported to me by some of the members of the Bar at that station that he did not begin his judicial work punctually at 11 a.m. 207 and used to remain is his chamber for more than sufficient time during the Court hours. Suitable instructions in this behalf were immediately given by me to him orally. A surprise visit was paid by me to his Court on 17-5-1972 at 11.35 a.m. when he was found examining an accused in his chamber.
4. He has adequate knowledge of the procedural and substantive law, both civil and criminal, and he endeavours to follow the same correctly. His judgments, both civil and criminal, are in proper form and fairly well written. At the stage of evidence in civil suits, he was found to have failed to record the hours between which evidence was recorded and to have deviated from Rule 133 of the Civil Courts Rules. The provision regarding opening of cases at that stage was also found to have been ignored by him. His order sheets were found to have been written mostly by the Court clerks. His judicial diary was not judiciously arranged. More than sufficient work was found to have been fixed. Periodical inspections were not thoroughly done by him.
5. His disposal during the period under report was below the prescribed standard in every month, except the disposal for the months of May and June.
6. His relations with the members of the Bar remained cordial and his behaviour towards the litigants polite.
7. It has yet to be seen whether he follows the advise and directions given by me to him at the time of annual inspection of his Court."
At the foot thereof, the then learned Chief Justice endorsed the following: "Unsatisfactory. To be watched for 6 months."
4. The case of the first respondent and his 43 batchmates was considered for the purposes of confirmation as Civil Judges, Class-11 at the meeting of the Full Court held between 5-2-1973 and 9-2-1973. The full Court did not find the first respondent and three others fit for confirmation. The Full Court directed that the first respondent and these others be informed that if they did not improve, their services were likely to be terminated.
5. On 27-7-1974, the Full Court found the first respondent fit for confirmation in Class-11 with effect from that date and he was confirmed accordingly.
6. On 21-11-1975, the first respondent wrote to the Registrar of the High Court making a grievance about the fact that he had not been confirmed along with his batchmates. The confirmation of his batchmates from a date earlier to the date upon which he was confirmed, he stated, had the effect of causing a change in their inter se seniority. The 1st respondent's representation was considered by the Grievances Committee of the High Court. On 30-3-1976, the Grievances Committee, consisting of three learned Judges, resolved:
"We have seen the confidential reports of Shri Mahesh Prakash. We are satisfied that there was ample justification for not confirming him from an earlier date.
The recommendation of the Grievances Committee was accepted by the Full Court at its meeting held between 26-4-1976 and 1-5-1976 and accordingly, the first respondent's representation was rejected. On 14-5-1976 the Registrar of the High Court wrote to the first respondent informing him that the recommendation of the Grievances Committee had been accepted and, accordingly, his representation had been rejected.
7. On 20-9-1980 the first respondent made a second representation regarding the date of his confirmation and the protection of inter se seniority in accordance with the merit list made by the M.P. Public Service Commission. He did not, in the second representation, state that he had made an earlier representation and that it had been rejected. The second representation was considered by the Grievances Committee of three learned Judges of the High Court, before whom the first respondent appeared. Two of the learned Judges took the view, after a comparative appraisal of the confidential reports of the 39 Civil Judges who were junior to the first respondent in the merit list and had been confirmed on 5-2-1973, that the first respondent had deserved to be confirmed in the Full Court meeting of 5-2-1973. They recommended to the Full Court that the resolution of that date be modified and the 1st respondent be deemed to be confirmed and placed in the seniority list on that basis, not only in the cadre of Civil Judge, Class-II but also in the cadre of Civil Judge, Class- I, in which cadre he was then placed. The two learned Judges stated that the confidential reports of very many of the said 39 Civil Judges were similar to those of the first respondent and, in some cases, even worse. The third learned Judge who constituted the Grievances Committee disagreed. He stated that though an evaluation of merit by comparing the record of a candidate with the record of others was a legal method, the Grievances Committee had not undertaken such an exercise in any other case and there appeared to him to be no special reason why such an exercise needed to be undertaken in the case of the first respondent. Giving the first respondent seniority from 1973 would mean considering an old and stale grievance and reversing the decisions of the Full Court taken in 1974 and 1976. While it was his opinion that there was no merit in the case, it was for the Full Court to decide whether such an exercise should be undertaken in all cases of supersession and non- confirmation in spite of a final view taken earlier. The report of the Grievances Committee was considered by the Full Court at its meeting held between 27-4-1985 and 5-5- 1985. It was resolved that the recommendation of the two members of the Grievances Committee be rejected and, consequently, the first respondent's representation be rejected.
8. On 18-6-1985 the first respondent filed the writ petition upon which the order under challenge was passed. It was his case that his representation made in the year 1975 "remained undecided although the petitioner submitted several reminders by way of sending copies of the representation for consideration. The petitioner continued to write to the High Court for 209 redressal of his grievances time and again, claiming for restoration of his original seniority at Sr. No. 1 amongst his batchmates". The 1st respondent alleged that at the Full Court meeting held between 5-2-1973 and 9-2-1973, his case was not put up for independent consideration for confirmation because the learned Chief Justice had observed upon the relevant papers that his work was unsatisfactory and he was required to be watched for six months. These remarks, it was alleged, "had adversely influenced the decision of the High Court...... It was alleged that "the direction to watch the petitioner for six months was a decision taken by the Hon'ble the then Chief Justice in his administrative capacity and was without jurisdiction and in contravention of the provisions of Article 235 of the Constitution of India". The first respondent alleged that he had been discriminated against while assessing his fitness for confirmation as Civil Judge, Class-11.
9. The return filed on behalf of High Court in reply to the writ petition denied the allegations made therein. The return stated that the rejection of the 1st respondent's first representation by the Full Court had been communicated to him by the letter dated 14-5-1976.
10. In the order under appeal, the Division Bench of the High Court referred to the report of the two learned Judges of the Grievances Committee that considered the second representation of the first respondent and observed that no record had been placed before the Division Bench to indicate that the position was other than that found by them. The High Court, the Division Bench stated, had failed to controvert by sufficient material the allegation of discrimination against the first respondent and could not justify its action. Even the third member of the Grievances Committee had not disputed the correctness of the finding arrived at in favour of the first respondent on the comparative study of his confidential report and those of the confirmed Civil Judges. The earlier Grievances Committee which had recommended the rejection of the first respondent's first representation had not comparatively examined the grievance of the petitioner nor was it so stated. According to the Division Bench, this "by itself demonstrates its discrimination". The Division Bench, commenting on the return filed by the High Court, observed that it was nowhere stated that any comparative examination of the reports was made before confirming the other Civil Judges and finding the first respondent unfit for confirmation. The statement that, on the basis of his entire record and poor performance, the first respondent was not found fit for confirmation did not satisfy legal requirements. According to the Division Bench, "on a comparative appraisal of merits when number of persons are said to be considered for confirmation it could be found whether a particular person was found unfit". The Division Bench proceeded upon the basis that the first respondent had been superseded and stated that such action must be supported by reasons. "Mala fides", it stated, "may not be imputed but the situations have to be considered in a just and equitable manner and justifiable in the assessment of merits based on reasoning to overcome the allegation of discrimination and arbitrariness of the decision". In regard to the remarks made by the learned 210 Chief Justice in regard to the first respondent, it was stated, "... nor there was material for making such remarks". There appeared, therefore, to be some substance in the contention that the Full Bench had been influenced by the Chief Justice's remarks, which the first respondent had had no opportunity to explain. The dissent of the learned Judge who was a member of the Grievances Committee that considered the first respondent's second representation, in the view of the Division Bench, "supports the contention of the petitioner that the resolution was passed without a comparative study of the records. The view was expressed in the note that the comparative appraisal was the legal way of assessment and findings therefrom were admitted but the objection was that the granting of the desired relief to the petitioner required the reversal of earlier decisions of 1973, 1974 and 1976 of Full Court and that the petitioner's grievance in that regard had became old and stale". All this led the Division Bench to the conclusion that the Full Court resolutions "cannot be said to be the outcome of a dispassionate approach". Adverting to the ground of laches, the Division Bench stated that the High Court had not established that the rejection of the 1st respondent's first representation had been communicated to him. In view of his denial on oath of any communication to him of the rejection of his first representation, his grievance could not be said to be either stale or delayed and the petition was, therefore, not bad on the ground of laches. The High Court concluded that "the very ground of not finding the petitioner fit for confirmation is wholly baseless and misconceived.... It also smacks of extraneous considerations for such decision of 5-2-1973". Accordingly, the Division Bench ordered:
"The petitioner shall, therefore, be deemed to have been confirmed from 5-2-1973 and in that regard, the Resolution/decision (Annexure R-1) and the subsequent Resolutions/decisions (Annexures R-2, R-5 & R-6) to that extent are quashed. Respondents 1 and 2 are directed, accordingly, to place the petitioner with Annexure R-1 in Civil Judge, Class-11 cadre and, consequently, in subsequent cadres of Civil Judge, Class-1, Chief Judicial Magistrate and Additional District Judge. Respondents 1 and 2 shall bear their own costs and shall also bear the costs of the petitioner. Counsel's fee Rs 1000 if certified.,,
11. It is convenient to consider at the outset the submission of Mr Venugopal, learned counsel for the first respondent, that it was not open to the first appellant, the High Court, to have preferred this appeal. This submission is, it appears, based upon the impression that the High Court is the only appellant. As we have pointed out, the State Government is impleaded as the second appellant.
12. In any event, we shall examine the submission for it is of some importance. Mr Venugopal submitted that the High Court had rendered the decision under appeal and the High Court could not, therefore, have preferred the appeal against its own order.
13. Reliance in this behalf upon Syed Yakoob v. K.S. Radhakrishnan, is misplaced.- Orders passed by the State Transport Authority and the State Transport Appellate Tribunal had been impugned in a writ petition, to which they were made parties. In appeals to the Division Bench and this Court arising upon the order in the writ petition they were impleaded. They appeared before this Court and counsel on their behalf claimed costs. Except where allegations were made which needed a reply, this Court said, their position was like that of courts or other tribunals against whose decisions writ petitions were filed; they were not interested in the merits of the dispute in any sense and their representation by counsel was inappropriate and unnecessary.
14. The order that the first respondent challenged in the writ petition filed by him before the High Court was an order passed by the High Court on its administrative side. By reason of Article 226 of the Constitution it was permissible for the appellant to move the High Court on its judicial side to consider the validity of the order passed by the High Court on the administrative side and issue a writ in that behalf. In the writ petition the first respondent was obliged to implead the High Court for it was the order of the High Court that was under challenge. It was, therefore, permissible for the High Court to prefer a petition for special leave to appeal to this Court against the order on the writ petition passed on its judicial side. The High Court is not here to support the judicial order its Division Bench passed but to support its administrative order which its Division Bench set aside. We find, therefore, no merit in what may be termed the preliminary objection to the maintainability of the appeal.
15. Mr Venugopal next submitted that it was, in any event, not open to the High Court to argue, as its learned counsel Mr P.P. Rao had done, that the writ petition of the first respondent ought to have been dismissed by the High Court on the ground of delay and laches. In Mr Venugopal's submission, such an argument could only have been raised by a party aggrieved or, in other words, adversely affected by the order under appeal. Mr Venugopal submitted that only the 39 Civil Judges in whose favour rights had been created by the non-confirmation of the 1st respondent as on 5-2-1973 were adversely affected by the order under appeal and aggrieved thereby. They, not having preferred an appeal, must be deemed to have accepted the order under appeal. In support of this submission our attention was drawn by Mr Venugopal to the judgment of this Court in Dehri Rohtas Light Rly. Co. Ltd. v. District Board2. At paragraph 13, this Court said: (SCC pp. 602-03) "The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will depend on what the breach of the fundamental right and the 1 (1964) 5 SCR 64: AIR 1964 SC 477 2 (1992) 2 SCC 598 212 remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time.
Where the circumstances justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches."
16. In our view, there can be no doubt that when its administrative order is set aside the High Court is adversely affected. It is, therefore, a party aggrieved. In the instant case, even assuming that we ignore the observations of the Division Bench in regard to mala fides, lack of a dispassionate approach and extraneous considerations on the ground that these had not been urged by the first respondent and the High Court could have sought expunction thereof, as suggested by Mr Venugopal, the order under appeal found that the first respondent had been discriminated against by the Full Court. It is impossible to accede to the submission, in these circumstances, that the High Court was not aggrieved by the order under appeal. Apart therefrom, the 1st respondent's delay in approaching the writ court had resulted in the creation of a long- settled position as to seniority in the subordinate judiciary; disturbing the Ion--settled position adversely affected not only the 39 Civil Judges whose seniority was displaced but also the functioning of the subordinate judiciary, responsibility for which lay with the High Court. It is, therefore, as open to the High Court to agitate the ground of delay and laches as it would have been open for the 39 Civil Judges had they preferred an appeal.
17. Mr Rao, learned counsel for the appellants, laid great stress on the fact that the seniority of Civil Judges determined in 1973 was sought to be unsettled by the writ petition which was filed by the first respondent in 1985, i.e., 12 years later. Mr Venugopal, learned counsel for the first respondent, submitted that there had been no laches because the High Court had entertained the second representation made by the first respondent and decided thereon only in 1985.
18. The first representation made by the first respondent against his non-confirmation with effect from 5-2-1973 was rejected by the High Court in May 1976 and, according to the High Court, he was informed of such rejection by the letter dated 14-5-1976. If this be so, the period of the delay and laches in filing the writ petition must be reckoned from around June 1976. The Division Bench, in the order under appeal, took the view that this letter of rejection had not been received by the first respondent in view of his denial in that behalf on oath. The High Court failed to take note of the affidavit of the Additional Registrar of the High Court in support of its return; though based upon the record, it was entitled to some consideration. The averment of the first respondent in his writ petition in regard to his first 213 representation was that it "remained undecided although the petitioner submitted several reminders by way of sending copies of the representation for consideration. The petitioner continued to write to the High Court for redressal of his grievances time and again, claiming for restoration of his original seniority at Sr. No.1 amongst his batchmates." The averment is significantly silent about the dates of his communications to the High Court. Most telling of all is the fact that the first respondent's second representation did not state that the first representation had remained undisposed of or that he had sent copies of it time and again or that he had written letters repeatedly for redressal of his grievances; in fact, the second representation does not so much as mention the first representation. The Division Bench, as we think, has been very credulous. It should have known the ground reality; that when some matter concerning a Subordinate Judge is up before the Full Court for consideration, the Subordinate Judge comes to know what the Full Court has decided within days, if not hours. And there is nothing wrong with this, for the Full Court's decisions are, ordinarily, not confidential. We are in no doubt whatsoever that the first respondent's denial of knowledge that his first representation had been rejected by the Full Court in May 1976 is false. That being so, his approach to the writ court was grossly delayed and his writ petition ought to have been dismissed on the ground of delay and laches.
19. Mr Venugopal submitted that the Division Bench had been justified in coming to the conclusion that the first respondent had been discriminated against inasmuch as the Grievances Committee that considered the first respondent's second representation had found on comparative assessment of reports concerning the first respondent on the one hand and the 39 Civil Judges who were confirmed on 5-2-1973 on the other hand, that the reports of the 39 Civil Judges were of the same standard as those of the first respondent and, in some cases, poorer. In support of the submission that there had to be a comparative assessment of the merits of officers to be considered for confirmation, Mr Venugopal cited the decision of this Court in B.L. Goel v. State of U.p.3 This was a case of promoted officers who were to be confirmed as Civil and Sessions Judges. It was held that in the case of promoted officers, the main criteria to be considered for their confirmation were the availability of a substantive vacancy or post, and suitability therefore. In the case before the court, a substantive vacancy was available on 1-4-1966. By that date the appellant had put in service as an officiating Civil and Sessions Judge for a period of about 5 years and 9 months. There was nothing on the record to suggest that by that date he had not been found suitable for confirmation. Counsel for the State Government was unable to satisfy the court that in not allowing that date to the appellant as the date of his confirmation, the State Government was acting according to any intelligible differentia or reasonable principle, nor were these discernible from the impugned notification. 3 (1979) 2 SCC 378: 1979 SCC (L&S) 207 214
20. The first thing that requires to be noted is that in the case before us the first respondent was not a promoted officer whose case was being considered for confirmation in the promoted post. He was recruited as a Civil Judge, Class-II and was being considered for confirmation in that class. Secondly, it would not be correct to say that there was nothing on the record to suggest that he was not found suitable for confirmation. It would be remembered that he had been informed by the High Court on 23-11-1971 that he needed to be prompt in disposing of applications for temporary injunctions and in the matter of delivery of judgments; also, that he had to be firm in the matter of adjournments of civil suits at the stage of evidence. For the period ending 30-9-1972 his District Judge reported that he did not begin his judicial work punctually at 11 a.m. and remained in his chamber for too long during court hours. The District Judge stated that the first respondent had been found to have failed to record the hours between which evidence was recorded and to have deviated from the provisions of the Civil Court Rules. The provision regarding opening of cases had been found to have been ignored by him. His order-sheets had been written by his court clerks. His judicial diary was not judiciously arranged. Periodical inspections had not been thoroughly carried out by him. Most notable of all, his disposal during the period under report, except for two months, fell below the prescribed standard in every month. There was, we think, justification for the learned Chief Justice to have made about the first respondent the comment: "Unsatisfactory. To be watched for six months." It must be emphasised that this was a case of Civil Judges up for confirmation in the class to which they had been recruited, not for confirmation in the post in which they were officiating on promotion, nor for promotion on the basis of seniority-cum-merit. Each Civil Judge up for confirmation in Class-II, being the class to which he had been recruited, was liable to be judged individually on his own record. The Full Court cannot be faulted for not having confirmed the first respondent on 1-2-1973, based upon his own record.
21. The learned Chief Justice, as the head of the judiciary in the State and in over-all control of its administration, knows better than most of his brother Judges about his subordinate Judges. It is his function to appreciate their merits and demerits. He is entitled to record his comments upon them and make his views known during relevant discussions at a Full Court meeting. Decisions regarding confirmation, promotion, supersession and the like of Subordinate Judges are taken at Full Court meetings. Every High Court Judge is of the same stature, the learned Chief Justice being the first among equals. Every learned Judge is expected to contribute to the discussions of the Full Court and participate in the decisions arrived at. This mode of dealing with the confirmations, promotions and supersessions of those who man the subordinate judiciary is a sure safeguard against arbitrary or motivated decisions. The view of the learned Chief Justice would be heard with due respect, but 'It would not hold sway. It certainly cannot be said that the expression of his view by the learned Chief Justice would prevent independent consideration by the Full Court.
22.The Division Bench relied upon the comparative assessment of the records of the first respondent on the one hand and the 39 Civil Judges who were confirmed on 5-2-1973 on the other hand made by the Grievances Committee that considered the second representation of the first respondent. In its view, the dissent of the one learned Judge who was a member of the Grievances Committee supported the contention that the Full Court resolution of 5-2-1973 had been passed without a comparative study of the records. Having read the dissent of the third learned Judge, we do not put this construction upon it. The learned Judge declined to evaluate the first respondent's merit by comparison of his record with that of the others. He declined to do so because the Grievances Committee had not undertaken such an exercise in the past and there appeared to him to be no special reason why such an exercise should be performed in the case of the first respondent. The learned Judge also drew attention to the fact that giving to the first respondent seniority from 1973 would mean giving consideration to an old and stale grievance as also reversing decisions of the Full Court taken in 1974 and 1976. Very properly, he left it to the Full Court to decide whether the exercise of comparing the record of a candidate with that of other candidates should be undertaken not merely in the case of, the first respondent but in the case of all others who might have been superseded or not confirmed. The Full Court did not accept the recommendation of the two learned Judges of the Grievances Committee to give the 1st respondent seniority as of 5-2-1973 and rejected the second representation. We think the Full Court was right. Unless there is clear indication that there has been a misinterpretation of a legal position, it is undesirable and unsafe for one Full Court to revise the decision taken by an earlier Full Court, particularly in cases of promotion, confirmation, supersession and the like.
23.The order passed by the Division Bench states that the first respondent would be deemed to have been confirmed from 5-2-1973 and it quashes the Full Court resolutions that stand in the way. It then directs the High Court and the State Government to place the first respondent in ClassII as of that date and also "in subsequent cadres of Civil Judge Class-I, Chief Judicial Magistrate and Additional District Judge". This the Division Bench could, in any event, not have done. Where the promotional post is a selection post, the most that a court can do is to order the constitution of a committee to consider the case of the candidate for promotion as on the date on which his immediate junior had been promoted thereto.
24.We cannot part with this matter without expressing our distress. The writ petition filed by the first respondent averred that his case did not receive independent consideration by the Full Court because the Full Court was influenced by the remarks made by the learned Chief Justice. The writ petition did not impute to the Chief Justice or the puisne Judges mala fides or the lack of a "dispassionate approach" or "extraneous considerations". Yet, we find the Division Bench doing this. The learned Judges constituting the Division Bench ought, we think, not to have made these harsh and 216 wholly uncalled for remarks. They were unmindful of judicial restraint and decorum.
25.We shall make no order as to costs because we think that it should, ordinarily, not be made between a High Court and a Judge subordinate to it.
26.The appeal is allowed. The Judgment and order under appeal (dated 11-3-1993) is set aside. The writ petition (MP No. 1733 of 1985) filed by the first respondent is dismissed. No order as to costs.