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PETITIONER: STATE OF ASSAM & ANR.

       Vs.

RESPONDENT: KUSESWAR SAIKIA AND ORS.

DATE OF JUDGMENT: 17/10/1969

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) SHELAT, J.M. VAIDYIALINGAM, C.A. GROVER, A.N. RAY, A.N.

CITATION:  1970 AIR 1616            1970 SCR  (2) 928  1969 SCC  (3) 505  CITATOR INFO :  R          1975 SC 613  (11,38,39,42)  RF         1977 SC2328  (14)  R          1979 SC 193  (38)  R          1980 SC1426  (22)  R          1982 SC1579  (16)

ACT: Constitution  of  India,  Arts. 233,  235,--Promotion  of  a person  in  judicial service as  Additional  District  Judge Competent authority-Power exercisable under Art. 233 or Art. 235. Civil Courts Act Assam Amendment XII of 1967-Designation  of Subordinate  Judge altered to Assistant District Judge  thus taking away High Court’s jurisdiction under Art.  235-Remedy lies in rescinding the law.

HEADNOTE: In  exercise  of  the power conferred by  Art.  233  of  the Constitution  and  in consultation with the High  Court  the Governor  of  Assam "appointed" a person  belonging  to  the State  Judicial  Service (Junior Grade I)  to  officiate  as Additional  District & Sessions Judge.  In a petition for  a writ  of quo warranto the High Court held the  "appointment" void  because in the view of the High Court this was a  case of  promotion of a person belonging to the Judicial  Service of  the State and the High Court was the authority  to  make the promotion under Art. 235. Also; the Assam Legislature amended the Civil Courts Act  by Act  XII  of 1967 by which the  designation  of  Subordinate Judge  was  altered to Assistant District Judge.   The  High Court  was  of opinion that by this device  which  the  High Court described as "a fraud upon the Constitution" the power of  promotion  vested in the High Court under  Art.  235  in respect  of persons belonging to the Judicial Service, of  a State and holding posts inferior to the post of the District Judge, was taken away. Allowing the appeal, HELD  :  (i)  The  expression  District  Judge  includes  an

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additional  District Judge and an additional Sessions  Judge and they rank above those persons whose promotion is  vested in the High Court under Art. 235.  Therefore, the  promotion of  persons to be additional District Judges  or  Additional Sessions  Judges is not vested in the High Court.   That  is the  function of the Governor under Art. 233.  This  follows from  the language of the Article itself.  The  Article,  if suitably expanded, reads : "Appointments  of  persons  to  be,  and  the  posting   and promotion of (persons to be), District Judges etc." It means that appointment as well as promotion of persons to be  District  Judges  is  a  matter  for  the  Governor   in consultation  with  the High Court.   The  Article  concerns initial  appointment and initial promotion of persons to  be either District Judges or any of the categories included  in it.   Further  promotion of District Judges is a  matter  of control of the High Court. [932 E-G] (ii) The  High  Court is not right in thinking that  it  can ignore  the hierarchy of courts in Assam as  established  by law  and treat the change as of no consequence.  The  change made  by  the Assam Amendment Act XII of 1967 is  likely  to lead to an impairment of the independence of the                             929 judiciary at lowest levels whose promotion which was  vested by  the  Constitution in the High Court advisedly,  will  no longer be entirely in the hands of the High Court.  But  the remedy is not to go against the Civil Courts Act as amended, but to have the amendment rescinded. [934 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 358 of 1969. Appeal from the judgment and order dated February 5, 1969 of the  Assam and Nagaland High Court in Civil Rule No. 222  of 1968. M.   C.  Setalvad, Naunit Lal and S. N. Choudhury, for  the, appellants. Sarjoo Prasad, R. B. Datar and S. N. Prasad, for  respondent No. 4. S. K. Nandy, for respondent No. 5. The Judgment of the Court was delivered by Hidayatullah,  C.J. This is an appeal by  certificate  under Art.  12 of the Constitution against the judgment and  order of  the High Court of Assam, February 5, 1969.  It is  filed by  the  State  of  Assam and the  Legal  Secretary  to  the Government  of Assam and challenges a writ of  quo  warranto issued  against  Upendra Nath Rajkhowa,  Distt.  &  Sessions Judge, Darrang at Tezpur declaring that he was not  entitled to  hold  that  office.  It was issued at  the  instance  of Respondents  1  to 3 in this appeal.  These  respondents  on conviction  by  Upendra Nath Rajkhowa in a  sessions  trial, challenged  their conviction inter alia on the  ground  that Shri Rajkhowa was not entitled to hold the post of  District and  Sessions Judge, Darrang.  The High Court held that  the ’promotion’  of  Rajkhowa  by  the  Governor  as  Additional District  Judge by notification LJJ 74/66/65  dated  19-6-67 purporting to act under Art. 233* was void because he  could only  be promoted by the High Court acting under Art.  235** Consequently his further appointment as Dis- *Art.  233.   "(1) Appointments of persons to  be,  and  the posting and promotion of, district judges in any State shall be  made by the Governor of the State in  consultation  with the  High Court exercising jurisdiction in relation to  such State.

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(2)  A person not already in the service of the Union or  of the State shall only be eligible to be appointed a  district judge  if  he  has been for not less  than  seven  years  an advocate  or a pleader and is recommended by the High  Court for appointment.". **Art.  235.  "The control over district courts  and  courts subordinate thereto including the posting and promotion  of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferror to the post of  district  judge shall be vested in the High  Court,  but nothing  in this article shall be construed as  taking  away from  any such person any right of appeal which he may  have under the law regulating the conditions of his service or as authorising  the High Court to deal with him otherwise  than in accordance with the conditions of his service  prescribed under such law." 930 trict  Judge  by the Governor by notification  LJJ  94/67/14 dated  28-7-1967 was also declared by the High Court  to  be void.   The  High  Court,  however,  held  that   Rajkhowa’s simultaneous ’promotion’ as Addl.  Sessions Judge was  valid as that post was not included in the judicial service of the State   and   the  Governor  was  competent  to   make   the appointment.   The  High Court also held  that  his  further appointment  as  Sessions Judge was also  valid.   The  High Court,  therefore, did not disturb the conviction  and  also did not pronounce any opinion on whether the judgments given as District Judge by Rajkhowa were void since that  question did not arise on a petition for a writ of quo warranto. The Assam-Judicial Service was constituted by a notification of  the Government of Assam issued on August 25, 1952.   The Senior  Branch  of the service was known as  State  Judicial Service (Senior) and it consisted of the following posts Senior Grade I 1.   Registrar. 2.   Legal Remembrancer. 3.   District Judges. Senior Grade 11 Additional District Judges. On  April 9, 1954, the State Judicial Service  (Junior)  was created.   Separate rules governed the junior service.   The following posts were included : Junior Grade I 1.   Subordinate Judges. 2.   Deputy Registrar. Junior Grade 11 1. Munsiffs. 2. Assistant Registrar. Rajkhowa  was originally a Munsiff in grade 11.   The  Chief Justice of the High Court appointed him as Deputy  Registrar and  thus he was promoted to Grade I of the Junior  Service. On June 19, 1967 the following notification was issued :               "No.   LJJ.74/66/65-The services of Sri U.  N.               Rajkhowa,  Deputy  Registrar,  High  Court  of               Assam  and  Nagaland  being  replaced  at  the               disposal  of the Government.  The Governor  of               Assam in consultation with the, High Court  of               Assam and Nagaland, and in exercise of  powers               conferred  by Article 233 of the  Constitution               read                                    931               with Rule 5(ii) of the, Assam Judicial Service               (senior) Rules, 1952 is pleased to appoint Sri               uppendr  a  Nath  Rajkhowa  to  officiate   as               Additional District and Sessions Judge,  Lower

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             Assam Districts with Head quarters at Now gong               with  effect  from the date he takes  over  as               Service Sri M. C. Mahajan.                Sd. B. Sarma,                Secy. to the Government,                Law Department". It  is  this  ’appointment’  under  Article,  233  which  is considered  by the High Court to be void.  According to  the High  Court  this  was a case of  ’promotion’  of  a  person belonging to the judicial service of the State and the  High Court  was the authority to make, the promotion  under  Art. 235.   In  this  appeal  the  view  of  the  High  Court  is challenged. Chapter VI of Part VI of the, Constitution deals with Subor- dinate Courts.  The history of this Chapter and why judicial services  came  to  be  provided  for  separate  from  other services  has been discussed in The State of West Bengal  v. Nripendra  Nath  Bagchi(l).  This service was  provided  for separately to make the office of a District Judge completely free  of  executive-  control.   The  Chapter  contains  six articles  (233 to 237).  We are not concerned with Art.  237 in  the present case.  Article 235 vests in the  High  Court the  control  over District Courts  and  Courts  subordinate thereto,  including the posting and promotion and  grant  of leave  to  persons belonging to the judicial  service  of  a State and holding, any post inferior to the post of District Judge.  By reason of the definitions given in Art. 236,  the expression  ’Judicial  Service’ means a  service  consisting exclusively of persons intended to fill the post of District Judge,  and  other  Civil Judicial  posts  inferior  to  the District Judge and the, expression "District Judge" includes among others an additional District Judge and an  additional Sessions  Judge.  The promotion of persons belonging to  the judicial  service but holding post inferior to  a,  District Judge  vests in the High Court.  As the expression  District Judge,   includes  an  additional  District  Judge  and   an additional  Sessions  Judge, they rank above  those  persons whose promotion is vested in the High Court under Art.  235. Therefore,  the,  promotion  of  persons  to  be  additional District Judges on additional Sessions Judges is not  vested in  the High Court.  That is the function of  the,  Governor under  Art.  233.  This follows from the language,  of  the, article itself               "(a)  Appointments of persons to be,  and  the               posting  and promotion of, district judges  in               any State shall be               (1) [1966] 1 B.C.R. 771.               5SupCI/70-14               932               made   by,  the  Governor  of  the  State   in               consultation  with the High  Court  exercising               jurisdiction in relation to such State.               The  language seems to have given  trouble  to               the High Court.  The High Court holds :               (1)   ’appointment ’to be’ a District Judge is               to  be  made by the Governor  in  consultation               with the High Court vide Art. 233; and               (2)   ’promotion’ of ’a District Judge and not               promotion ’to be a District Judge’ is also  to               be  made by the Governor in consultation  with               the High Court vide Art. 233. The High Court gives the example of selection grade posts in the Cadre of District Judges which according to it is a case of promotion of a District Judge. The  reading  of  the article by the  High  Court  is,  with

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respect,  contrary  to the grammar and  punctuation  of  the article.  The learned Chief Justice seems to think that  the expression ’promotion of’ governs ’District Judges’ ignoring the  comma  that  follows the word ’of’.   The  article,  if suitably expanded, reads as under : "Appointments  of  persons  to  be,  and  the  posting   and promotion of (persons to be), District Judges etc." It means that appointment as well as promotion of persons to be  District  Judges  is  a  matter  for  the  Governor   in consultation   with  the  High  Court  and  the   expression ’District  Judge’ includes an additional District Judge  and an  additional Sessions Judge.  It must be  remembered  that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary.  The article is intended to take care of both.  It concerns initial appoint- ment and initial promotion of persons to be either  District Judges  or  any of the categories included in  it.   Further promotion  of District Judges is a matter of control of  the High  Court.  What is said of District Judges  here  applies equally   to  additional  District  Judges  and   Additional Sessions  Judges.   Therefore when  the  Governor  appointed Rajkhowa an Additional District Judge, it could either be an ’appointment’  or a promotion under Art. 233.  If it was  an appointment it was clearly a matter under Art. 233.  If’ the notification be treated as ’promotion’ of Rajkhowa from  the junior service to the senior service it was a ’promotion’ of a  person to be a District Judge which expression, as  shown above,  includes  an Additional.  District  Judge.   In  our opinion it was the latter. 933 Thus  there is no doubt that the appointment of Rajkhowa  as Additional  District Judge by the Governor was  a  promotion and  was  made under Art. 233.  It could not be  made  under Art.  235 which deals with posts subordinate to  a  District Judge   including  an  additional  District  Judge  and   an additional  Sessions Judge.  The High Court was in error  in holding that the appointment of Rajkhowa to the position  of an  Additional District Judge was invalid because the  order was  made  by the Governor instead of the High  Court.   The appointment  or promotion was perfectly valid and  according to the Constitution. This brings us to the next point in the case which arises as a  side issue involving the Legal Secretary, who is also  an appellant  here.   The Civil Courts Act was amended  by  the Assam  Legislature by Act XII of 1967 which came into  force on 16th August, 1967.  The designation of subordinate  judge was altered to Assistant District Judge.  On August 17, 1967 new rules for the Assam Judicial Services were brought  into force.  The Judicial Service was reconstituted as follows Grade I. (1)  District and Sessions Judge. (2)  Registrar. (3)  Presiding Officer, Industrial Tribunal. (4)  Presiding Officer, Labour Court. Grade II. (1)  Additional District Magistrate. (2)  Assistant District Judge. (3)  Deputy Registrar. Grade III. (1) Munsiff. (2)  Judicial Magistrate. (3)  Sub-Divisional Magistrate (Judicial). (4)  Assistant Registrar. The  High  Court was of opinion that this  was  deliberately done to grab at the power of promoting subordinate judges by

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taking  advantage of the definition of District Judge  which includes an Assistant District Judge.  By this device, which the High Court described as ’a fraud upon the  Constitution’ the  power of promotion vested in the High Court in  respect to persons belonging to the Judicial Service of a State  and holding posts inferior to the post of the District Judge the jurisdiction  of  the High Court under Art.  235  was  taken away.  Formerly, the subordinate service was 934   composed  of  two  grades and promotion  between  the  two grades Was made by the High court Under the new rules  there is  only  one grade (i.e. grade III) in which Art.  235  can operate if at all.  Since all the posts there are equal  and carry equal pay there is no scope for promotion at all.  The High  Court is thus right that there is no scope for the  of the  power of the High Court to make promotions in the  case of  persons  below the rank of District Judges  (Which  term includes  an Assistant District Judge).  The High Court  was thus  far right-but the High Court is not right in  thinking that  it  can  ignore the hierarchy of courts  in  Assam  as established   by  law  and  treat  the  change  as   of   no consequence.   The  remedy is not to go  against  the  Civil Courts Act as amended, but to have the amendment  rescinded. We  are of the view that the change is likely to lead to  an impairment  of  the independence of the  judiciary  ,at  the lowest levels, whose promotion which was, vested by the Con- stitution  in  the High Court advisedly, will no  longer  be entirely in ,the hands of the High Court.  The remedy for it is by amendment ,of the law to the former position.  We  may say  that  we  do not approve of the  change  of  more  nine without,any additional benefits. The High Court was unnecessarily hard upon the Legal  Secre- tary.  It is proved that this amendment was first thought of several years ago when there was some other Legal Secretary. It  is also established that the amendment was  intended  to bring  in  the nomenclature existing in  some  other  States without  reprising  what  effect  it  would  have  upon  the operation  of  Art. 235 in the State.  The  remarks  of  the Chief Justice against the Legal Secretary were unmerited. For these reasons we allow the appeal and set aside the writ of quo warranto issued by the High Court, but in the circum- stances of the case we make no order about costs. R.K.P.S. Appeal allowed. 935