V.B. RAJU v. STATE OF GUJARAT & Anr.

"(l). Such of the Judges of the High Court of Bombay 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." H A B ·C D E F' 616 SUPREME COURT REPORTS [1981] 1 S.C.R. 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 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 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 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 In Letters Patent dismissed the, petition presented by the appellant. the opinion tha:t although the Appeal the Division Bench was of impugned order amounted to an order of transfer, the transfer effected 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 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 presented by the appellant.

#4. After hearing the appellant in I)erson and learned counsel for find no substance in the appeal_ and, broadly the respondents we 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 It was for the purpose of setting up that High ,High Court for it. :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 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 ·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; P.B.R. Appeal dismissed. c D