V.B. RAJUversusSTATE OF GUJARAT & ANR

                                                                             613



                                 V.B. RAJU.
                                        v.
                     STATE OF GUJARAT & ANR.
                              Septe111ber 4, 1980
          JY. v .. CHANDRAcHuD, CJ., s. MuRTAZA FAZAL Au
                        AND A. D. KOSHAL, JJ.)


      Constitution of India, 195~Articles 217 and 222(2)-Scope of-On reorga-
>rtisation of a State a Judge allotted to another High Court-Such allotment          c
if amounts to transfer from one High Court to anothe~.
     Exercising power under section 29(1) of the Bombay Reorganisation Act
the President had determined that the appellant who then was an additional
Judge of the Bombay High Court should cease to be a Judge of that High
Court and become a Judge of the newly formed High Court. of Gujarat. In
his petition under article 226 of the Constitution the appellant claimed that        D
the source of power to transfer a Judge from one High Court to another being
ill article 222 read with article 217(1) (c) of the Constitution the impugned
order though purporting to have been passed under section 29(1) of the Bombay
Reorganisation Act, amounted to an order of transfer .of a Judge and, therefore,
be was entitled to the compensatory allowance contemplated by article 222(2).
      A single Judge of the High Court held that the order passed under section 29   E
 was an order of allocation of Judges of the erstwhile High Court of Bombay
to the two new High Courts and that such allocation did not amount to transfer,
 On appeal a Division Bench held that the transfer envisaged by article 222 was
a transfer in a situation when a Judge of one High Court was sent to another
existing High Court for reasons which had nothing to do with the bifurcation,
 or reorganisation of a State and the setting up of a new High Court while
 section 29 was part of the provisions which were supplemental, incidental· or
                                                                                     F
-consequential to the formation of the State of Gujarat.

     Dismissing the appeal
     HELD: The entitlement to compensatory allowance under article 222(2)
 is conditional upon the Judge being "so transferred", that is, transferred as
 envisaged by article 222(1). Since the appellant was "allotted" to the Gujarat
 High Court on the setting up of that Court, he was not entitled to claim· the       G
'Compensatory allowance. [617 D]
      Articles 3 and 4 of the Constitution deal with a special situation and so
 1ong as a provision of law promulgated by Parliament can be considered as
 supplemental, incidental or consequential to the formation of a new State it
  would be enforceable even though it might amount to an amendment of certain·
 provisions of the Constitution. The provision contained in section 29 of the        H
  Act is clearly consequential to the formation of the State of Gujarat 11nd
 establishment of a High Court for it. It was for the purpose of setting up
'that High Court that Judges then serving in the Bombay High Court were so
     614                          SUPREME COURT REPORTS        [1981] 1 S.C.R~

A    to say allotted to the High Court of Gujarat and although their appointment
     to the Gujarat High Court may partake of some of the characteristics of a
     transfer, they cannot be said to have been transferred from the Bombay High
     Court to the Gujarat High Court within the meaning of article 222(1) of the
     Constitution. (617 A-CJ

           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1134 of 1974.
B
         From the Judgment and .Order dated 2-8-1973 of the Gujarat
     High Court in L.P.A. No. 255/71.
           Appellant in person.
           L. J. Nain and Miss A. Subhashini for the Respondents.
c
           The Judgment of the Court was delivered by
          KoSHAL, J.-This appeal by certificate granted under Article
     133(1)(c) of the Constitution of India by the High Court of Gujarat is
     directed against its judgment dated.2-8-1973 and the sole point requiring
     decision therein is as to whether an order passed by the President of
D    India under sub-section (1) of section 29 of The Bombay Re-organisa-
     tion Aot, 1960 (hereinafter referred to as the Act) and determining
     that the appellant shall on the 1st day of May 1960 cease to be a
     Judge of the High Court of Bombay and become a Judge of the High
     Court of Gujarat is to be regarded as an order of transfer under
     article 222( 1) of the Constitution.
F.
           2. The appellant was appointed an Additional Judge of the High
      Court of Bombay on June 29, 1959. After the Act came into force
      the President of India passed the said order (hereinafter referred to
      as the impugned order) under, section 29(1) of the Act in respect of"
      the appellant, who was still an Additional Judge of the High Court
F     of Bombay (and 4 other Judges of that Court) so that with effect
      ftom the 1st of May 1960 the appellant became an Additional Judge
      of the High Court of Gujarat. Claiming that the impugned order
      amounts to an order of transfer within the meaning of article 222(1)
       of the Constitution the appellant brought a petition under article 2.26
       thereof with the prayer that the Governments of the Union of India
G      and the State of Gujarat be directed to pay him an allowance to
       which, according to him, he had become entitled under article 222(2)
       of the Constitution with effect from Octo-ber, 1963. Another prayer
       was also made in the petition but therewith we are no longer concerned
       as the same was withdrawn at a later stage.
H           3. In order to appreciate the contention raised by the appellant
      before a learned Single Judge of the Gujarat High Court and again
      :in
       .
          the Letters Patent
                       .
                             Appeal before the Division Bench,.which passed1
                  v. B. 'RAJU v. GUJARAT (Koshal, J.)                 615'

the judgment now under appeal, it is necessary to set out the provisions
of clause (1) of article 217and those of article 222 of the Constitution.:
           "217(1) Every Judge of a High Court shall be appointed by
      the President by warrant under his hand and seal after consultation
      with the Chief Justice of India, the Governor of the State, and,
      in the case of appointment of a Judge other than the Chief Justice,
     the Chief Justice of the High Court, and shall hold office, in the
     case of an additional or acting Judge, as provided in article 224,
      and in any oth_er case, until he attains the age ·of sixty-two
     yeats:
           "Provided that-
                (a) a Judge may, by writing under his hand addressed         •C
           to the P~esident, resign his office:
                (b) a Judge may be removed from his office by the
           President in the manner provided in clause {4) of article 124
           for the removal of a Judge of the Supreme Court:
                (c) the office of a Judge shall be vacated by his being      D·
           appointed by the President to be, a ]udge of the Supreme
           Court or by his ·being transferred by the President to any
           other High Court within the territory of India."
           "222(1) The President may, after consultation with the Chief
     Justice of India, transfer a Judge from one High Court to any
     other High Court.                                                       'E
           "(2) When a Judge has been or is so transferred, he shall,
      during the period he serves, after the commencement of the
      Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the
     other High Court. be entitled to receive in addition to his salary
     such compensatory allowance as may be determined by Parliament          F
     by law and, until so determined, such compensatory allowance as
      the President may by order fix."
According to the appellant's contentions before the High Court the
only source of power conferred on the President to effect the transfer
of a Judge from one High Court to another was article 222 read with          G
article 217(1)(c) and the impugned order which was an order flowing
from that source of power, therefore. amounted to an order of transfer
even though it was passed under section 29(1) of the Act which runs
thus:                                           ·
           "(l). Such of the Judges of the High Court of Bombay              H
      holding office immediately before the appointed day as may be
     determined by President shall on that day cease to be Judges of
     the High Court at Bombay and become Judges of the "High Court
     of Gujarat."
       616                    SUPREME COURT REPORTS            [1981] 1 S.C.R.

A            The High Court noted that the Act was passed in pursuance of
       the powers vested in Parliament under articles 3 and 4 of the Constitu~
       tion. Article 3 provides, inter alia, for 'the formation of new States:
       Under clause (a) thereof Parliament may by law form a new State by           ~
       separation of territory from any existing State or by uniting two or
       more existing States or parts thereof or by uniting any territory to a
B      part of any State. Under article 4(1) any Jaw referred 'to in article 3
       shall contain such provisions for the amendment of the First Schedule
        and the Fourth Schedule as may be necessary to give effect to the
        provisions of such law and may also contain such supplemental,
        incidental and consequential provisions (including provisions as to
        representation in Parliament and in the Legislature or Legislatures
·C      of the State or States affected by such law) as Parliament may deem
        necessary. Under clause (2) of article 4 no such law shall be deemed
        to be an amendment of the Constltution for the purposes of article
        368. The learned Single Judge held that an order under section 29
         of the Act was an order of "allocatiorl" of Judges of the Hj.gh Court
D       of Bombay to the two new High Courts and that such allocation did
         not amount to a transfer within the meaning of article 217(1)(c) or
         222(1) of the Constitution. It was in that view of the matter that he
         dismissed the, petition presented by the appellant. In Letters Patent
         Appeal the Division Bench was of the opinion tha:t although the
         impugned order amounted to an order of transfer, the transfer effected
 E       by it was of a type entirely different from that contemplated by article
         222(1). In effect, however. the reasons for dismissal of the appeal were
         the same as those for which the petition could not succeed before the
         learned Single Judge. According to the Division Bench the transfer
         envisaged by article 222 was a transfer in a situation when a Judge
         of a High Court was sent to another existing High Court for reasons        ·~·
 F'       which had nothing to do with the bifurcation or reorganisation of a
          State and the setting up of a new High Court in consequence, while
          section 29 of the Act was part of the ,provisions which were supple-
          mental, incidental or consequential to the formation of the State of
          Gujarat.
 .c;         It was also argued before the Division Bench that the Government
        of Gujarat itself had, during the course of its correspondence with
        the appellant, treated his appointment to the High Court of Gujarat
        as a transfer from the High Court of Bombay, a fact which was not
        denied but which, the High Court held, had no bearing on the matter
        in dispute as there was no plea of estoppel raised in the petition
 ff     presented by the appellant.
             4. After hearing the appellant in I)erson and learned counsel for
         the respondents we find no substance in the appeal_ and, broadly
                  v. B. RAJU v. GUJARAT (Kosihal, J.)                617

 speaking, our reasons for so holding coincide with those given by the
 learned Single Judge and the Division Bench of the High Court.
 Articles 3 and 4 of the Constitution deal with a special situation and
 so long as a provision of law promulgated by Parliament can be
 considered as supplemental, incidental or consequential to the formation
 of a new State it would be· enforceable even though it might amount
.to an amendment of certain provisions of the Constitution. The
 provision contained in section 29 of the Act is clearly consequential '
 to the formation of the State of Gujarat and· the establishment of a
,High Court for it. It was for the purpose of setting up that High
 :court that Judges then serving in the Bombay High Court were, so to
 say, "allotted" ·to the High Court of Gujarat; and although their
  appointment to tlie Gujarat High Court may partake of some of the          c
  characteristics of a transfer, we do not think that they can be said
 .to have been transferred from the Bombay High Court to the Gujarat
 High Court within the meaning of article 222(1) of the Constitution.
 ·Tue entitlement to compensatory allowance under article 222(2) is
  conditional upon the Judge being "so transferred'', that is, transferred
                                                                             D
 ·as envisaged by article 222(1). Since the appellant was "allotted" to
  the Gujarat High Court on the setting up of that Court, he will not
 ,be entitled to claim the compensatory allowance.                  ·

     5. In the result the appeal fails and h dismissed but there will
:be no order as to costs;

                                                        Appeal dismissed.
 P.B.R.