CASE BRIEF
Appellants- V.B. Raju
Respondents- State of Gujarat & Anr
Decided On: 04.09.1980
Statues Referred – Constitution of India
Prior History:
From the Judgment and Order dated 2-8-1973 of the Gujarat High Court in L.P.A. No. 255/71.
Facts:
- The appellant was appointed an Additional Judge of the High Court of Bombay on June 29th 1959.
- After the Act (The Bombay Reorganization Act, 1960) came into force, an order under section 29(1) of the act was passed by the President of India where the appellant, who was still an Additional Judge of the High Court along with 4 other judges became Additional Judge of the High Court of Gujarat which were to come in effect from the 1st May 1960.
- The appellant claimed that the order amounted to an order of transfer under the article 222(1) and he was entitled to the allowance owed to him by the state of Gujrat in this case as he had been transferred during the period he served and was entitled to receive addition to his salary as prescribed by article 222(2).
- Appellant brought a petition under article 226 with prayer that the Governments of the Union of India 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 October, 1963
- Another prayer was also made in the petition but the same was withdrawn at a later stage.
Issue;
Whether the order passed by the President of India under The Bombay Reorganization Act, 1960 determining that the appellant shall 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?
Contentions by Parties-
Appellant’s Arguments
Appellant’s petition under article 226 was with the prayer that the Governments of the Union of India and the State of Gujarat should be directed to pay him an allowance to which was entitled under article 222(2) of the Constitution.
Appellant’s contentions before the High Court was also that the power conferred on the President to effect the transfer of a Judge from one High Court to another was article 222 read with article 217(1)(c) and the order under section 29(1) of the act amounted to the same as the source of power for both were the same.
Respondent’s Arguments –
Judgment
The court’s bench comprising KOSHAL, A.D., CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED MURTAZA held the following:
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 appellant was “allotted” to the Gujarat High Court on the setting up of that Court, he was not entitled to claim the compensatory allowance.
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 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.
The appeal failed and was dismissed and there was no order as to costs.
Conclusion
The Apex Court interpreted the Constitution along with the Act in this case in a manner which addressed the difference of transfer and allotment within the ambit of article 222 , all the necessary provisions were set out to explain tit further.
Prepared by Faigha Naz