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PETITIONER: STATE OF ASSAM

       Vs.

RESPONDENT: RANGA MAHAMMAD AND ORS.

DATE OF JUDGMENT: 21/09/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. RAO, K. SUBBA (CJ) SIKRI, S.M. SHELAT, J.M. MITTER, G.K.

CITATION:  1967 AIR  903            1967 SCR  (1) 454  CITATOR INFO :  D          1968 SC 647  (2,6,11,12,13)  R          1970 SC 370  (8)  R          1972 SC1028  (15)  F          1975 SC 613  (34,35)  RF         1976 SC1841  (17)  F          1977 SC2328  (59)  R          1979 SC 193  (35,38)  R          1979 SC 478  (152)

ACT: Constitution   of  India,  Arts.  233  and   235-’Posting’of District Judges under Art. 233-Whether includes transfers or only  first  appointment to cadre  or  on  promotion-Whether consultation  under  Art.  233 with  High  Court  mandatory- Whether  ’transfer’ can only be ordered by High Court  under Art.  235-Court’s power to expunge remarks from a  judgment- When exercised.

HEADNOTE: The respondent, filed petitions under Am. 226 and 227 in the Assam  High  Court asking that notifications  by  the  State Government of the transfer of one District & Sessions  Judge and the appointment and posting of another be quashed on the ground  that the High Court alone could make  the  transfers and.  in any event, the High Court was to be  consulted  and was not consulted before the impugned orders were made.  The High  Court held that there was no consultation with  regard to  the posting of one of the District Judges and  that  his transfer  was irregular as the High Court alone  could  have ordered it; and furthermore that the transfer of the  other. District  Judge  was  for  a  like  reason  also  irregular. Holding, however, that none of the District Judges could  be said  to  occupy wrongly the office of District  &  Sessions judge, the High Court declined the writ of quo warranto  and dismissed  the  petition,  but without costs  to  the  State Govenment.  One of the learned Judges of the High Court  who comprised the Division Bench that heard the petitions,, in a separate  but  concurring  judgment,  passed  some  scathing remarks  on the action of the Government which he  described

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as mala fide and actuated by some ulterior motive. On  being  moved  by the State Government,  the  High  Court granted  certificates under Art. 132 of the Constitution  to appeal to the Supreme Court on the ground that the  judgment involved  the  interpretation of Arts. 233 and  235  of  the Constitution.  By these appeals the State Government  sought a  reversal  of  the opinion of the High Court  on  the  two Articles. Three  questions arose for decision in the appeal:- (a)  who is   to  order  transfer  of  a  District  Judge-the   State Government or the High Court; (b) is the provision regarding consultation  in Art. 233 mandatory or directory and if  the former,  whether the High Court was not in  fact  consulted; and  (c) whether the remarks complained of about  the  State Government made by the learned Judge should be expunged. HELD: (i) Under Art. 233 the Governor is only concerned with the  appointment,  promotion  and posting to  the  cadre  of district Judges but not with the transfer of District Judges already appointed or promoted and posted to the cadre.   The latter  is a matter of control of District Judges  which  is vested in the High Court under Art. 235. [460 G] The word posting means either to station some one at a place or  to assign someone to a post, I.e. a position or  a  job, especially one to which a person is appointed.  In Art.  233 it bears the second meaning.  The word occurs in association with  the words ’appointment’ and ’promotion’ and takes  its colour from them.  These words indicate the stage when 454 455 a  person  first  gets a position  or  job  and  ’posting’by association means the assignment of an appointee or promotee to  a  position in the cadre of District Judges.   The  word ’posting’  cannot be understood in the sense  of  ’transfer’ when  the idea of appointment and promotion is  involved  in the combination.  This meaning is quite out of place because ’transfer’  operates  at  a  stage  beyond  appointment  and promotion.   Transfer, therefore, falls within  the  control vested in the High Court. [460 C-G] State of West Bengal v. Nripendranath Bagcht,[1966] 1 S.C.R. 771, referred to. (ii)  As  the High Court acting under Art. 235 and  not  the State  Government  is the authority to  make  transfers,  no question  can arise of a consultation on this  account.   In the present case, however, consultation as required by  Art. 233,  was  necessary before one of the District  Judges  was promoted and posted as a District Judge. Chandra Mohan v. U.P. [1967] 1 S.C.R. 77, referred to. (iii) The power to expunge is an extraordinary power and can be  exercised only when a clear case is made out.   Although the opinion of this Court may be that the learned Judge need not  have  made the remarks complained of, it could  not  be said that in making them he acted with such impropriety that the extraordinary powers should be exercised. [462 DIP]

JUDGMENT: CIVIL APPELLATE JURISDICTION:Civil Appeals Nos.1367 and 1368 of 1966. Appeals from the judgment and order dated April 19, 1966  of the  Assam  High Court in Civil Rules Nos. 171  and  236  of 1965. Purshottam  Trikamdas,  A.  K. Sen, Naunit  Lal  and  Vineet Kumar,for the appellant (in both the appeals). Sarjoo Prasad, Vinoo Bhagat and S. N. Prasad, for respondent No. 4 (in both the appeals).

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The Judgment of the Court was delivered by Hidayatullah,  J.  These  are  two  appeals  by  certificate against  a  common  judgment of the High Court  of  Assam  & Nagaland at Gauhati, dismissing two writ petitions filed  by one  Ranga  Mahammad  against D. N. Deka and  B.  N.  Sarma, District  & Sessions Judges respectively of Lower and  Upper Assam Districts questioning the transfer of the former  from Jorhat  to  Gauhati and the appointment and posting  of  the latter  at  Jorhat.   The  petitioner  had  asked  that  the relevant  notifications by the Government be quashed on  the ground  that the High Court alone could make  the  transfers and,  in any event, the High Court had to be  consulted  and was  not consulted before making the orders.  The  petitions were heard and disposed of by a Divisional Bench  consisting of Chief Justice Mehrotra and Mr. Justice S. K. Dutta. 456 The  Chief Justice held that there was no consultation  with regard to the posting of Deka, that the transfer of Deka  to Gauhati  was  irregular as the High Court alone  could  have ordered  it, and that the transfer of B. N. Sarma was for  a like reason also irregular.  Holding, however, that none  of the  District  Judges could be said to  occupy  wrongly  the office of District & Sessions Judge the High Court  declined the  writ of quo warranto.  The petitions ,were  accordingly dismissed  but without cost to the State Government.   In  a separate  but  concurring  judgment  Dutta  J.  passed  some scathing  remarks on the action of the Government  which  he described as mala fide and actuated by some ulterior motive. The  High  Court  on being moved  by  the  State  Government granted  certificates under Art. 132 of the Constitution  on the ground that the judgment involved the interpretation  of Arts. 233 and 235 of the Constitution.  By these appeals the State  Government seeks the reversal of the opinion  of  the High Court on the interpretation of Arts. 233 and 235 of the Constitution.   The main contention is that the  High  Court was,  in fact, consulted and, alternatively, that the  power to  transfer District Judges lies with the State  Government and not with the High Court.  The State Government also asks for  the  expunction  of the remarks of  Mr.  Justice  Dutta above-mentioned. The   State  of  Assam  consists  of  only  three   Sessions Divisions.  They are : The Upper Assam Districts, the  Lower Assam  Districts  and  the  Cachar  Districts  with  Jorhat, Gauhati and Silchar respectively as the Headquarters of  the three  District  Judges.  The Government of Assam  with  the concurrence  of the High Court has made the  Assam  Judicial Service  (Senior) Rules and rule 5 deals  with  recruitment. In  the Senior Judicial Service of the State there  are  two grades-Senior Grade 1 and Senior Grade 11.  Grade I has four posts  earmarked for Registrar, and three  District  Judges, and  Grade  11 consists of the Additional  District  Judges. Under  sub-rule (1) of rule 5 the Chief Justice of the  High Court fills the post of the Registrar by virtue of Art.  229 of  the  Constitution of India preferably from  Grade  1  or Grade  11 of the Service, and under sub-rule (ii) the  other posts  of  the  cadre  are  filled  by  the  Government   in consultation  with  the High Court, but not more  than  one- third of the posts in each Grade of the cadre may be  filled up by direct recruitment.  The other posts are filled up  by promotion from Grade II of the cadre or Grade I of the Assam Judicial Service (Junior) respectively. One  would  think that with so few posts in  the  cadre  and places  there  would be little scope  for  disagreement  but unfortunately  there  was.  On December 6,  1962  the  Chief Justice  appointed  A. Rahman, District Judge,  Gauhati,  as

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Registrar  and  recommended  that D.  N.  Sarma,  Additional District & Sessions Judge be promoted and appointed District Judge, Gauhati, and in B. N. Sarma’s 457 place  D.  C.  Sharma  should  be  appointed  as  Additional District  & Sessions Judge.  This proposal was  accepted  by Government.  It appears, however, that one  Medhi,  District Judge,  was  retiring  and there was  a  vacancy.   It  also appears from the correspondence which has been placed in our hands  that  there was some conversation  on  the  telephone between the Chief Justice and the Finance Minister regarding R. C. Choudhury (Joint Secretary Legal Department) whom  the Minister  suggested for officiation in that vacancy and  the Chief  Justice  expressed his willingness  to  receive  him. Later by a D. O. letter of January 5, 1963 the Chief Justice pointed  out that the Rules did not permit this to be  done. He  observed  that not more than one-third of  the  District Judges  could  be recruited from the Bar  and  as  Choudhury could only be recruited as a member of the Bar there was  no vacancy  for  direct  recruitment.   The  Minister  who  had accepted  the telephone conversation as final and was  about to  issue the necessary notification replied that as  Sharma was to continue for a year, Sharma’s post could be given  to Choudhury  and suggested reconsideration of the  case.   The Chief Justice replied that . the question was not of filling Sharma’s vacancy but Medhi’s and that Choudhury could not be transferred  from  the  Legal  Department  to  the  Judicial Service  because appointments as District & Sessions  Judges must   be   made  in  accordance  with  Art.  233   of   the Constitution.   He  explained that an appointee  had  to  be either a person in the Judicial Service of the Union or  the State  or an Advocate of 7 years’ standing and that  persons from  other services could not be transferred and  appointed as  District Judges.  He ended by saying that he could  have taken  Choudhury  as a member of the Bar if the  High  Court recommended  him,  but  Rule 5(ii)  of  the  Assam  Judicial Service (Senior) Rules, which reserved two out of the  three posts  for promotees, was in the way.  He declined  to  take Choudhury directly from the Legal Department and recommended D.  N. Deka’s. name for promotion as District Judge to  hold the charge at Jorhat. This  letter apparently nettled the Minister for his  letter of the 24th January was worded somewhat strongly.  It  seems that  the  Minister  thought  that  the  Chief  Justice  was retreating  from a position previously accepted by him.   He traced   the   history  of  the   correspondence   and   the conversations  and expressed his amazement at the change  of opinion.   He  pointed  out that the intention  was  not  to transfer  Choudhury but to give him judicial experience  and observed  that  the constitutional provisions could  not  be invoked  when Choudhury had put in seven years’ practice  at the Bar and was qualified.  He concluded by saying               "I am sorry, that I have to write all this but               you  will  understand  that I  have  no  other               alternative   in  view  of  the   embarrassing               situation created by your letter.  I would 458               ’still  request you to consider  whether  non-               cooperative and embarrassing attitude of  this               nature is in’ the interest of the State.  I do               not propose to enter into any further  contro-               versy regarding appointment of Shri  Choudhury               which I feel is also not good in the  interest               of the administration." Thus  ended the episode of Choudhury but the result  of  the

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unpleasantness  it  occasioned  was  unfortunate  in   other respects.   The  Chief  Justice wrote on  February  7,  1963 observing  that there ’was no question of adopting any  non- cooperating or embarrassing attitude and that all the points raised  by the Minister could be ,explained  satisfactorily. He, however, saw no point in saying more as Choudhury’s name was to be dropped.  He enquired why Rahman was not  released although it had no connection with the other matter and  the appointment of the Registrar was entirely ,a matter for  the Chief  Justice.  He requested that Ralunan be released  soon and  recommended the appointment of B. N. Sarma as  District Judge  in  his  place.   He also  suggested  S.  C.  Barua’s transfer from Cachar to Gauhati.  In the vacancy of Medhi he recommended  D.  N.  Deka’s promotion  and  recommended  his -transfer to Jorhat.  A notification was issued on June  22, 1963 -appointing Deka as District Judge with Headquarters at Jorhat.     Nothing   was   done   regarding    the    other recommendations.   On  September 7, 1963, this  is  to  say, exactly  seven  months after the ,last letter of  the  Chief Justice,  the Secretary to the Government of Assam wrote  to the  Registrar  that  the  State  Government  after  careful consideration  could  not accept the  suggestion  about  the transfer -of Barua and proposed the transfer of B. N.  Sarma to  Jorhat and of Deka to Gauhati immediately as Jorhat  was without  a  District Judge for months.   The  Registrar,  in reply,  wrote back to say that the matter had  become  stale and  the  High Court would like to  reconsider  the  matter. Some letters were exchanged but they arc not on the file  of this  Court.  On January 22, 1964 the Registrar of the  High Court  wrote to say that B. N. Sarma should go  to  Silchar, Barua to Jorhat and Deka to Gauhati.  To this a final  reply was  given by the Government on February 19, 1964  informing the High Court that the recommendations were not  acceptable except as to Deka’s transfer from Jorhat to Gauhati.  B.  N. Sarma  was accordingly transferred to Jorhat  leaving  Barua where he was  Notifications transferring Deka and Sarma were issued the same day. One  Ranga Mahammad of Gauhati then filed two  petitions  in the High Court of Assam under Arts. 226 and 227 of the  Con- stitution  questioning the jurisdiction of Deka, District  & Sessions Judge, Jorhat.  He averred that the High Court  was not  consulted regarding Deka’s appointment and  posting  at Gauhati.  By the second petition he questioned the  transfer of B. N. Sarma 459 to  Jorhat.   On  rule being issued in  the  two  petitions, Government put in a detailed return pointing out that it had acted  within  its powers and had also  consulted  the  High Court.  The High Court did not accept the submissions of the State Government.The state Government now appeals. Three  questions  arise and they are : (a) who is  to  order transfer  of  a District Judge-the State Government  or  the High Court;(b) is  the provision regarding  consultation  in Arts. 233 and 235 mandatory or directory and if the  former, whether  the High Court was not in fact consulted;  and  (c) should  the  remarks of Mr. Justice Dutta  about  the  State Government be expunged ? The answer to the first question depends on a true construc- tion of Arts. 233 and 235 of the Constitution.  The text  of these articles is set out below.* The question we have posed resolves  itself  into a question of a  very  different  but somewhat  limited  form,,  namely,  whether  the  power   to transfer  District  Judges  is  included  in  the  ’control’ exercisable  by  the High Court over District  Courts  under Art.  235, or in the power of "appointment of persons to  be

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and the posting and promotion, of district judges" which  is to  be exercised by the Governor under Art. 233,  albeit  in consultation  with  the  High Court.  If the  sense  of  the matter be the former, then the High Court and if the latter, the Governor, would possess. that power.  The right approach is,  therefore,  to enquire what is meant by  "posting"  and whether  the  term does not mean the initial  posting  of  a District  Judge on appointment or promotion to a vacancy  in the cadre, permanent or temporary.  If this be the  meaning, as  the  High  Court holds, then the  transfer  of  District Judges already appointed or promoted and posted in the cadre must  necessarily be outside the power of the  Governor  and fall  to  be made by the High Court as part of  the  control vested in it by Art. 235. "233.Appointment of district Judges. (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. (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" "235.  Control over subordinate Courts. 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 inferior 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." 460 The history of the Arts. 233-237 in Chapter VI  (Subordinate Courts)  of  Part  VI of the  Constitution,  was  considered elaborately   in  the  State  of  West  Bengal  &  Anr.   v. Nripendranath  Bagchi(1)  and it was pointed  out  that  the articles  were  intended to make the High  ,Court  the  sole custodian of control over the judiciary except in so far  as exclusive  jurisdiction was conferred upon the  Governor  in regard  to  the  appointment and posting  and  promotion  of District  ,Judges.   Therefore,  unless the  transfer  of  a District  Judge can be said to be a "posting" of a  District Judge  the  High Court must ,obviously enjoy  the  exclusive power. In  its ordinary dictionary meaning the word ’to  post’  may denote either (a) to station some one at a place, or (b)  to assign  -someone  to  a  post, i.e. a  position  or  a  job, especially  one  to  which  -a  person  is  appointed.   See Webster’s  New Word Dictionary (1962).  The dispute in  this case  has  arisen because the State Government  applies  the first of the two meanings and the High Court the second.  In Art.  233  the  word  ’posting’  clearly  bears  the  second meaning.   This  word occurs in association with  the  words "appointment’  and  ’Promotion’ and takes  its  colour  from them.   These words indicate the stage when a  person  first gets  a position or job ,and ’posting’ by association  means the assignment of an appointee or promotee to a position  in the cadre of district Judges.  That a special meaning may be given to a word because of the collocation of words in which it  figures,  is a well-recognised  canon  of  construction.

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Maxwell  ("On Interpretation of Statutes" 11th Edn.  p.  321 and  the  following pages) gives numerous  examples  of  the application  of this principle, from which one may be  given here.   The  words ’places of public resort’ assume  a  very different meaning when coupled with ’roads and streets’ from that  which the same words would have if they  were  coupled with ’houses’.  In the same way the word ’posting’ cannot be understood  in  the  sense of ’transfer’ when  the  idea  of appointment  and promotion is involved in  the  combination. In  fact  this  meaning  is  quite  out  of  place   because -’transfer’  operates  at  a stage  beyond  appointment  and promotion. if ’Posting’ was intended to mean ’transfer’  the draftsman  would  have  hardly chosen to  place  it  between "appointment" and "promotion" and could have easily used the word  ’transfer’ itself.  It follows, therefore, that  under Art.   233,  the  Governor  is  only  concerned   with   the appointment, promotion and posting to the cadre of  district Judges but not with the transfer of district Judges  already ,appointed or promoted and posted to the cadre.  The  latter is obviously a matter of control of district Judges which is vested  in  the  High  Court.   This  meaning  of  the  word ’posting’  is  made  an the more clear when  one  reads  the provisions of Arts. 234 and 235.By   the  first  of  these  articles  the  question   of appointment is (1) [1966] 1 S.C.R. 771. 461 considered  separately but by the second of  these  articles posting  and promotion of persons belonging to the  judicial service  of the State and holding any post inferior  to  the post  of a district Judge is also vested in the High  Court. The word ’post’ used twice in the article clearly means  the position  or job and not the station or place and  ’posting’ must obviously mean the assignment to a position or job  and not   placing  in-charge  of  a  station  or   Court.    The association of words in Art. 235 is much clearer but as  the word  ’posting’ in the earlier article deals with  the  same subject matter, it was most certainly used in the same sense and . this conclusion is thus quite apparent. This  is, of course, as it should be.  The High Court is  in the day to day control of courts and knows the capacity  for work  of  individuals and the requirements of  a  particular station  or Court.  The High Court is better suited to  make transfers  than  a  Minister.  For  however  well-meaning  a Minister  may  be  he can never possess  the  same  intimate knowledge of the working of the judiciary as a whole and  of individual Judges, as the High Court.  He must depend on his department  for  information.   The Chief  Justice  and  his colleagues know these matters and deal with them personally. There is less chance of being influenced by secretaries  who may  withhold some vital information if they are  interested themselves.  It is also well-known that all stations are not similar   in  climate  and  education,  medical  and   other facilities.   Some  are good stations and some  are  not  so good.  There is less chance of success for a person  seeking advantage   for  himself  if  the  Chief  Justice  and   his colleagues, with personal information, deal with the matter, than when a Minister deals with it on notes and  information supplied  by  a secretary.  The reason of the rule  and  the sense  of the matter combine to suggest the  narrow  meaning accepted  by us.  The policy displayed by  the  Constitution has been in this direction as has been explained in  earlier cases  of this Court.  The High Court was thus right in  its conclusion  that the powers of the Governor cease  after  he has  appointed or promoted a person to be a  district  Judge

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and  assigned him to a post in cadre.  Thereafter,  transfer of  incumbents  is a matter within the control  of  District Courts  including the control of persons presiding there  as explained in the cited case. As the High Court is the authority to make transfers,  there was  no  question of a consultation on  this  account.   The State  Government  was  not  the  authority  to  order   the transfers.  There was, however, need for consultation before D.  N.  Deka was promoted and posted as  a  District  Judge. That  such  a consultation is mandatory has been  laid  down quite  definitely  in the recent decision of this  Court  in Chandra  Mohan  v. U. P.(1) On this part of the case  it  is sufficient to say that there was consultation. (1) [1967] 1 S.C.R. 77. 462 This  brings us to the question whether the remarks  of  Mr. Justice  Dutta should be expunged.  There is no  doubt  that the  State  Government  and  the  High  Court  were  working together  till Choudhury’s name was suggested.  This is  not the  first  time  when  cordiality  was  ruined  because   a Secretary’s  name was suggested by the Minister and was  not acceptable to the High Court.  The Assam High Court’s  stand has been completely vindicated by Chandra Mohan’s case cited above.   Choudhury  could not be  transferred  from  another department  and  under the rules he could not  be  recruited from  the Bar as there was no vacancy.   Consultation  loses all its meaning and becomes a mockery if what the High Court has  to  say is received with ill-grace or rejected  out  of hand.   In  such matters the opinion of the  High  Court  is entitled to the highest regard. We have considered very carefully the question of  expunging Mr.  Justice  Dutta’s remarks, The power to  expunge  is  an extraordinary  power and can be exercised only when a  clear case is made out.  That another Judge in Mr. Justice Dutta’s place  would not have made those comments is not  the  right criterion  The question is whether Mr. Justice Dutta can  be said to have acted with impropriety.  Although we think that Mr.  Justice Dutta need not have made the remarks we  cannot say that in making them he acted with such impropriety  that the extraordinary powers should be exercised. The  appeals  accordingly fail and are dismissed  but  there will be no order about costs. R.K.P.S.                       Appeals dismissed. M15Sup.C.I./66-15-4-67-GIPF. 463