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PETITIONER: THE STATE OF ORISSA

       Vs.

RESPONDENT: SUDHANSU SEKHAR MISRA AND ORS.

DATE OF JUDGMENT: 07/11/1967

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. WANCHOO, K.N. (CJ) BACHAWAT, R.S. RAMASWAMI, V. MITTER, G.K.

CITATION:  1968 AIR  647            1968 SCR  (2) 154  CITATOR INFO :  RF         1971 SC 530  (326)  RF         1976 SC1207  (154,466,456)  RF         1977 SC2328  (14)  R          1979 SC 193  (38)  R          1979 SC 478  (152)  F          1990 SC 781  (23)  RF         1991 SC 672  (19)

ACT:     Constitution   of  India  Arts.  233,  235--High   Court recalling   District   and  Sessions   Judges   working   in administrative  posts--in  their  place  posting,   judicial officers  to  administrative posts  in  the  Secretariat--if competent.

HEADNOTE:     The  Orissa  Superior Judicial Service consisted  of  15 posts.   10  of which were District and Sessions  Judges  or Additional District and Sessions Judges; of the other  five, one  was Registrar of the High Court and four were  officers of the State Government.     P, one of the District and Sessions Judges was posted as Superintendent  and Legal Remembrance in  March   1962.   B. an   Additional Judge. was posted as Joint Secretary in  the Law Department in the same month and sometime thereafter was posted  as  Superintendent  and  Legal  Remembrance.   D,  a District  and Sessions judge was posted in January  1962  as member. Sales Tax Tribunal, which was a non-cadre post.   In February  1965 the High Court took a policy decision to  the effect that as a general rule, judicial officers working  in special  posts.  whether cadre or non-cadre.  outside  their regular line, should be called to the regular line after the completion of three years in the interest of the service  as well  as the officers, so that the officers did  not  become out  of  touch  with judicial work.   Although  this  policy decision  was accepted by the State Government. it  was  not implemented’   in  respect of P, B and D.   The  High  Court being  under  the  impression at the time that  in  law  the Governor  was  the sole authority to  effect  the  necessary

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transfers. did not take any action itself.     After  the decision of this Court in   Ranga  Mohammad’s case  [1967] S.C.R. 454) holding that the power to  transfer Judges   presiding  over Courts vested with the  High  Court under Art.  235 of the Constitution. the High Court.  issued an  order  on October 10. 1966. transferring P. B and  D  to judicial  posts and posting to the administrative  posts  in their  place, K. T and M who were doing judicial  work  till then.   In pursuance of those orders K. T and M handed  over charge  of the posts they were holding and reported  to  the Secretariat for assuming charge of the administrative  posts to  which they were assigned. but the Government refused  to accept  them.  The State Government directed P. B and  D  to continue in the posts they were previously holding and those officers  acted   in  accordance  with  the  orders  of  the Government.  Consequently. some of the Sessions Divisions in the  State  were without District and  Sessions  Judges  for several   days  and  some  Advocates  practising  in   those Divisions  filet/petitions before the High Court for a  writ of mandamus against the Government. as well as the concerned officers  to  implement the transfers ordered  by  the  High Court.  They also sought a writ of quo warranto against P. B and  D  questioning  the authority  under  which  they  were holding  the administrative posts held by them  until  then. The  High  Court  allowed  the  petition  and  directed  the Governments   to  implement  its  orders   forthwith.    The Government  implemented these  orders on March 6.  1967  and thereafter appealed to this Court, by special leave. 155     HELD: (i) Although the High Court was within its powers. in  posting  P.  B  and  D,  the  three   officers   holding administrative  posts.  as District and Sessions Judges,  it was  beyond its powers to post in their places  three  other officers to the administrative posts.     Just as the executive cannot know the requirements of  a particular  court,  the  High Court  cannot  also  know  the requirements of any post in the Secretariat.  It is for  the Executive to say whether a particular officer would meet its requirements or not.  The High Court cannot foist an officer on the Government.  [163C-D]     While sparing the service of any judicial officer to the government  it is open to the High Court to fix  the  period during which he may hold any executive post.  At the end  of that period, the government is bound to allow him to go back to  his  parent department unless the High Court  agrees  to spare his services for some more time.  In other words,  the period  during which a judicial officer should serve  in  an executive post must be settled by agreement between the High Court and the government.  If there is no such agreement  it is  open  to the Government to send him back to  his  parent department  at any time it pleases.  It is equally  open  to the High Court to recall him whenever it thinks [163 F-H]     It  was not the case of the contesting respondents  that P,  B  and D did’ not have the necessary  qualifications  to hold  the posts that they were holding or that they had  not been   validly   appointed  to  those   posts.    In   these circumstances  the High Court could not have held that  they had no authority to hold the posts in question.  [159D]     State  of  Assam  v. Ranga Mohammad and  Ors.  [1967]  1 S.C.R.  454; State of West Bengal v. Nripendra  Nath  Baghi; [1966] 1 S.C.R. 771; explained and distinguished.     (ii)  A  decision  is  only an  authority  for  what  it actually  decides. What is of the essence in a  decision  is its ratio and not other  observations found therein nor what logically follows from the various observations made in  it.

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[162E-F] Quin v. Leathem, [1901] A.C. 495; referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeals No.  625630 of 1967.     Appeals  by  special leave from the judgment  and  order dated’ March 6, 1967 of the Orissa High Court in O.J.C. Nos. 495  and  496  of  1966,  and  3,  4,  27  and  28  of  1967 respectively.     C.K.  Daphtary, Attorney-General, N.S. Bindra,  G.  Rath and R.N. Sachthey, for the appellant (in all the appeals).     Sarjoo  Prasad and S.N. Prasad, for respondents Nos.  8, 23,  8’ and 5 (in C.As. Nos. 6.25; 627,629 and 630  of  1967 respectively).,     N.M. Patnaik and Vinoo Bhagar, for respondents Nos. 5 to 7  (in C.As. Nos. 625 and 629 of 1967) and respondents  Nos. 20  to 22 (in C.A. No. 627 of 1967). 156 The Judgment of the Court was delivered by     Hegde,   J.   These  cases  are  the  outcome    of   an unfortunate   conflict  between  the  High  Court  and   the government of Orissa.     The Orissa Superior Judicial Service (senior branch)  is a  combined  cadre  consisting of  officers  holding  purely judicial  posts  as  well as  posts  which  are  essentially administrative in character.  It consists of eight  district and  sessions judges, two additional district  and  sessions judges,   secretary   to  government  in   law   department, superintendent  and  legal  remembrancer,  law   department, deputy secretary to government in the law department, member administrative tribunal and the Registrar of the Orissa High Court,  in  all 15 in number.  All these  officers  are  the members of the Orissa ’"Judicial Service" within the meaning of  that expression in art. 236(b) of the Constitution.  Out of  these, the district and sessions judges  and  additional district   and  sessions  judges  were  discharging   purely judicial functions. In view of art. 229 of the Constitution. the  power  to appoint the Registrar of the  High  Court  is exclusively  that  of the Chief Justice.  Neither  the  High Court  as  such  nor  the  Governor  has  any  hand  in  his appointment.  The  power to appoint the secretaries  to  the government is that of the Governor. Under the Government  of India Act 1935, the power to transfer a district judge  from one  post  to another was that of the Governor  though  that power  was always exercised in consultation with  the   High Court  and  by and large on the recommendation of  the  High Court.  In  Orissa,  as in most of the  other  States,  that practice continued till the decision of tiffs Court in   the State  of Assam v. Ranga Mahammad and  others(1).  Obviously when  the Governor promulgated the Orissa Superior  Judicial Service Rules 1963, he proceeded on the basis that the power to  transfer the district judges and addl. district  judges, from one post to another whether as a judge or to one of the posts in the secretariat was in his hands.     It   appears  that  for  some  time  past   there   were differences between the High Court and the government  about the  posting  of some of the judicial  officers.   The  High Court  was anxious that a judicial officer occupying one  of the  administrative posts enumerated above, should  not,  in the interest of judicial work, continue in that post for  an unduly  long time. The High Court insisted  that  ordinarily judicial officers should: not hold those posts for more than

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three  years.  The High Court was repeatedly requesting  the government  to  send  back  judicial  officers  working   in administrative posts as district judges or as addl. district judges  as the case may be, after they had held those  posts for  three  years   or more.  But those  requests  were  not respected.   On that account,  there  appears to  have  been some friction between the High Court and the gov ernment for some years past. (1) [1967] 1 S.C.R. 454. 157     Shri  B.K.  Patro  one of  the  district  and  sessions. judges, was posted as superintendent and legal  remembrancer in  March 1962 Shri K.K. Bose, addl. district  and  sessions judge,  was posted as joint secretary in the law  department in the same month.  He worked in that capacity till February 1965.   Thereafter,  he was, posted  as  superintendent  and legal remembrancer.  Shri P.C. Dey. a district and  sessions judge,  was posted as member sales tax tribunal on  31-1-62. That was a non-cadre post.     In February 1965, the High Court took a policy  decision to  the  effect that as a general  rule,  judicial  officers working in special posts whether cadre or non-cadre, outside their  regular line, should be recalled to the regular  line after the completion of three years. in the interest of  the service  as well  as  the  officers,  so that "Officers  may not  deteriorate  by remaining out  of touch   from  regular judicial work for continuously long periods and the  service will not suffer by being deprived of the services of  senior and  experienced  officers in manning the   posts   in   the regular  judicial line."   It is of utmost  importance  that judicial officers should not be kept away from judicial work for  a long time lest they should lose touch. with  judicial work  and even more than that should become  indifferent  to judicial  approach.   The above. policy  decision  was  duly communicated  to  the  government.  The  government  by  its letter of April 2, 1965, intimated that it had no  objection to  adhere  to the principle of three years  service  in  an appointment at a particular station against a special  post. But  when  it  came to the  question  of  implementing  that policy,  the government was reluctant.  Every time the  High Court requested the government to release the three officers mentioned  above for ’being posted as district and  sessions judges  or  addl.  district and sessions judges as the  case may  be,  the government turned down those requests  on  one ground  or the other.  We  do not think that it  was  proper for  the  government to do so.  But at that stage  the  High Court  felt  helpless as it was under  the  impression  that under law the Governor was the sole authority to effect the. necessary transfers.     On  September 21 1966, this Court rendered its  decision in  Ranga Mahammad’s(1) case. Therein this Court  held  that power  to transfer judges presiding over courts vested  with the  High  Court under art. 235 of the  Constitution.   Soon after  that  decision was rendered and without  any  further dialogue with government in the’ light of that decision, the High  Court  took the precipitate step of  transferring  the aforementioned officers to other posts  and  in their  place posted  officers who were doing judicial work till then.  By its order dated October 10, 1966, the High Court ordered the following transfers:                   (a)  Shri K.B. Panda who was  attached  to               the  commission of enquiry in connection  with               students’               (1) [1967] 1 S.C.R. 454               158

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             agitation, as law secretary to the  government               of Orissa,                   (b)   Shri  B.K.  Patro,  the   then   law               secretary  as district and sessions  judge  of               Ganjam-Boudh,                   (c)  Shri T. Misra, district and  sessions               judge,  Ganjam-Boudh,  as  superintendent  and               legal  remembrance and  ex-officio  additional               law secretary to the government of Orissa,                   (d)    Shri    K.K.   Bose,    the    then               superintendent   and  legal  remembrance   and               additional  law  secretary  as  district   and               sessions judge of Mayurbhanj Keonjhar.                   (e)   Shri  P.K.  Mohanti,  district   and               sessions judge, Bolangir-Kalahandi, as  deputy               secretary to the law department, a post  which               was vacant then, and                   (f)  Shri  P.C.  Dey,  member  sales   tax               tribunal,  as  district  and  sessions  judge,               Bolangir-Kalahandi. These orders were duly notified in the Orissa Gazette.     In  pursuance of those orders, Shri K.B. Panda, Shri  T. Misra and  Shri  P.  K.  Mohanti  handed   over  charge   of the posts they were  holding  and  reported  themselves   at the  secretariat for assuming charge of the posts  to  which they  were  posted.  But the government  refused  to  accept them.   Further it directed Shri Patro, Shri Bose  and  Shri Dey  to  continue  in the posts  they  were  holding.  Those officers  acted  in  accordance  with  the  orders  of   the government. Consequently, the sessions divisions of  Ganjam- Boudh,   Mayurbhanj-Keonjhar  and  Bolangir-Kalahandi   were without  district and sessions judges for several days.   It is  at  this stage the petitions which have  given  rise  to those appeals were filed by some of the advocates practising in  one  or the other of  the sessions  divisions  mentioned above, praying for a writ of mandamus against the government as well as the concerned officers to implement the transfers ordered  by  the High Court on October 10, 1966 and  also  a writ of quo warranto against Shri B.K. Patro, Shri K.K. Bose and  Shri P.C. Dey requiring them to show cause  under  what authority  they were holding the posts of the law  secretary the  superintendent and legal remembrancer and member  sales tax   tribunal,  respectively.   In  every  one   of   those petitions, rule nisi was issued.  The government as well  as the concerned officers in the returns made by them justified the  action  taken by the government.  On March  6,  1967  a special  Bench of the High Court by majority  allowed  those petitions  and  made  the  rule  absolute.  The  High  Court overruled  the  prayer made on behalf of the  government  to stay  the  operation of its decision till  necessary  orders were  obtained from this Court.  It directed the  government to imple- 159 ment  its orders forthwith.  Having no.  alternative  before it,  the  government implemented the orders in  question  on March   6  1967, on the very day the decision  of  the  High Court  was rendered.  The government’s prayer for  necessary certificates for leave to appeal to this Court was rejected. Therefore, these appeals were filed after obtaining  special leave from this Court.     The  order  of  the High Court consists  of  two  parts, namely, (1) holding that Shri B.K. Patro, Shri K.K. Bose and Shri  P.C.  Dey had no authority to act  as  law  secretary, superintendent  and legal remembrancer and member sales  tax tribunal,  respectively, on and after October 10, 1966,  and

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(2)  commanding the State of Orissa, the Chief Secretary  to the  government  of  Orissa,  the  Home  Secretary  to   the government  of Orissa,   Shri P.C. Dey, Shri K.K.  Bose  and Shri  Patro to implement the transfers ordered by  the  High Court on October 10, 1966.     It  was not the case of the contesting respondents  that Shri  P.C. Dey, Shri K.K. Bose and Shri B.K. Patro  had  not the  necessary  qualifications to hold the posts  they  were holding.   It  was  also not disputed  that  they  had  been validly appointed to those posts.  In these circumstances we fail to see how the High Court could have held that they had no  authority  to hold the posts in question.   Shri  Sarjoo Prasad  learned counsel for the High Court of Orissa at  the very  commencement of his arguments conceded that the  order of  the  High  Court holding that   those  officers  had  no authority  to hold the posts in question  is  unsustainable. In  view of that concession it is unnecessary for us  to  go into that question further.     As mentioned earlier, member, sales tax tribunal, was an ex-cadre  post.  Hence in the case of Shri P.C. Dey it  must be  assumed that his services were placed by the High  Court at the disposal of the government for being posted as member sales tax tribunal.  It is not the case of the parties  that he  was  placed at the disposal of the  government  for  any definite  period.  AS seen earlier, he was holding the  post in question ever since 1962.In those circumstances, the High Court was entitled to recall him and post him as a  district and  sessions  judge.  Hence that part of the  High  Court’s order is unassailable.     Before going into the validity of the orders of transfer relating to the other officers, it is necessary to ascertain the law bearing on the subject.  As seen earlier, the  cadre of  the superior judicial service (senior branch)  consisted of  not only the posts of district and sessions  judges  and addl.  district   and   sessions judges  but  also  officers holding other posts.  One of the officers included there  is the Registrar of the High Court.  Neither the government nor the  High  Court  could  have  posted  any  officer  as  the Registrar of the High Court as that post can be filled  only by 160 the   Chief  Justice.   To  hold  otherwise  would   be   to contravene  Art.  229 of the  Constitution.   Similarly  the posts  of the law secretary, deputy law secretary  and  file superintendent and  legal remembrancer cannot be  considered as district courts or courts subordinate to district  courts within  the  meaning  of  those words in  Art.  235  of  the Constitution.  Those posts are similar to. the corresponding posts  in other departments in the secretariat. Prima  facie it  is  for the Governor to fill up those  posts.    It  was conceded  that if those posts had not been included  in  the cadre of superior judicial service the High Court would  not have  had any right to fill those posts.  But we  were  told that in view of the decisions of this Court in State of West Bengal  v.  Nripendra Nath Bagchi(1) and State of  Assam  v. Ranga  Mahammad(2)  the High Court must be held to have that right as those  posts are included in the cadre of  superior judicial  service.   Before considering the  correctness  of that submission it is necessary to notice that this argument breaks  down when we come to the question of filling up  the post  of the Registrar.  If the argument advanced on  behalf of the High Court is correct. the High Court must also have, the  power to fill up the post of the Registrar as  that  is also Included in the cadre.     Now  let  us  consider the ratio  of  the  decisions  in

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Nripendra  Nath Bagchi’s case (1), and Ranga Mahammad’s  (2) case.  In Bagchi’s case,(1), this Court laid down  that  the word  "control"  found  in Art.  235  includes  disciplinary jurisdiction  as  well.   The only question  that  fell  for decision  in  that case was whether the government  of  West Bengal  was competent to institute disciplinary  proceedings against  an addl. district and sessions judge.   This  Court upheld  the decision of the High Court of  Calcutta  holding that  it  had  no such jurisdiction.  That  was  the  single question  decided  in  that case.  It is true  that  in  the course  of the judgment. this Court observed that  the  High Court  is  made  the sole custodian of the  control  of  the judiciary, but that observation was made only in the context of   the  question  that  arose  for  decision.   In   Ranga Mahammad’s case(2), the point that arose for decision was as to  who was the authority to transfer a district judge.  the State  government  or  the High Court.  In  that  case,  the State  government ordered the transfer of  certain  district judges  without  even consulting the High Court.   The  rule laid  down   in   that  decision  is  of  no  assistance  in determining  the  question as  to whether the High Court has power  to fill up some of the posts in the secretariat.   In the  course  of  that  judgment,  this  Court  observed  (at page 459 of the report):                     "The  question  we have  posed  resolves               itself into a question of a very different but               somewhat limited form.               (1)  [1966]  1  S C  R  771.               (2) [1967] 1 S.C.R. 454.                    161               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 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."               After   analysing  Arts.  233  and  235    and               noticing  the  development of the law  on  the               subject  this Court held 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  which               power  is vested in the High Court under  Art.               235 as the  control  given  to  the High Court               over  the district courts under  that  Article               includes control over the officers who preside

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             over those courts.               Proceeding further this Court observed:                   "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               162               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." Obviously  relying  on the observation of  this  Court  that after  a judicial officer is posted to the cadre, it is  for the High Court to effect his transfers, the court below  has come  to  the  conclusion  that as  the  posts  of  the  law secretary, deputy law secretary and superintendent and legal remembrancer  are included in the cadre, the High Court  has the  power  to  fill those posts  by  transfer  of  judicial officers.   The  cadre this Court was considering  in  Ranga Mahammad’s(1)    case,  namely,  Assam   Superior   Judicial Services Cadre consisted of the Registrar of the Assam  High Court and three district judges in the first grade and  some additional  district judges in grade II.  In that cadre,  no officer holding any post under the government was  included. Hence  the  reference  by  this Court  to  the  cadre  is  a reference  to.a  cadre consisting essentially  ,of  officers under the direct control of the High Court.  It was in  that context this Court spoke of the cadre.  The question of  law considered in that decision was as regards the scope of  the expression  "control over district court" in Art. 235.   The reference to the cadre was merely incidental.  A decision is only an authority for what it actually decides.  What is  of the  essence  in  a  decision is its  ratio  and  not  every observation  found therein nor what logically  follows  from the various observations made in it.     On this topic this is what Earl of Halsbury L.C. said in Quinn v. Leathem(2):               "Now  before discussing the case of  Allen  v.               Flood  [1898]  A.C.  1 and  what  was  decided               therein,  there  are  two  observations  of  a               general  character which I wish to  make,  and

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             one  is to repeat what I have very often  said               before,  that every judgment must be  read  as               applicable to the particular facts proved,  or               assumed to be proved, since the generality  of               the  expressions which may be found there  are               not  intended to be expositions of  the  whole               law,   but  governed  and  qualified  by   the               particular  facts  of the case in  which  such               expressions  are to. be found.  The  other  is               that  a case is only an authority for what  it               actually decides.  I entirely deny that it can               (1)  [1967] 1 S.C.R. 454.    (2)  [1901]  A.C.               495.                    163               be  quoted for a proposition that may seem  to               follow  logically  from it.  Such  a  mode  of               reasoning assumes that the law is  necessarily               a  logical  code, whereas  every  lawyer  must               acknowledge that the law is not always logical               at all." It  is not a profitable task to extract a sentence here  and there  from  a  judgment  and to  build  upon  it.   Neither Bagchi’s   case   nor  Ranga  Mahammad’s  case  is  of   any assistance  to us in  deciding the question whether the High Court  has  competence  to fill some of  the  posts  in  the secretariat by transfer judicial officers under Its control. Just  as  the executive cannot know the  requirements  of  a particular  court,  the High Court also  cannot   know   the requirements  of any post in the secretariat.  Just  as  the High Court resents any interference by the executive in  the functioning  of the judiciary, the executive has a right  to ask the High Court not to interfere with its functions.   It is  for  the executive to say whether a  particular  officer would  meet its requirements or not. The High Court  cannot, as  contended  by the learned  Attorney-General,  foist  any officer on the government.     The  cadre  with  which we are concerned  in  this  case consists  of  three parts i.e., (1)  presiding  officers  of district courts, (2) the Registrar of the High Court and (3) the  judicial officers working in the secretariat.  No doubt all  these  officers belong to the judicial service  of  the State  and  they were before 1962  presiding  over  district courts or courts subordinate to them and as such were  under the control of the High Court. Hence without the consent  of the High Court the government could not have posted them  to administrative posts in 1962.  It must be presumed that they were  taken over by the government with the consent  of  the High Court.     While  sparing  the  service  of  any  judicial  officer to  the government it is open to the High Court to  fix  the period  during which he may hold any executive post. At  the end of that period, the government is bound to allow him  to go  back  to  his parent department unless  the  High  Court agrees to  spare  his services for some more time.  In other words,  the  period during which a judicial  officer  should serve  in  an executive post must be  settled  by  agreement between  the High Court and the government.  If there is  no such agreement it is open to the government to send him back to  his  parent department at any time it  pleases.   It  is equally  open to the High Court to recall him  whenever  ’it thinks  fit.   If only there is mutual   understanding   and appreciation  of the difficulties of the one by  the  other, there will be harmony.  There is no reason why there  should be  any conflict between the High Court and the  government. Except for very good reasons we think the High Court  should

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always be 164 willing to spare for an agreed period the services of any of the officers under its control for filling up such executive posts as may require the services of judicial officers.  The government, in its turn should appreciate the anxiety of the High  Court that judicial officers should not be allowed  to acquire  vested interest in the secretariat.  Both the  High Court  and  the government should not forget the  fact  that powers are conferred on them for the good of the public  and they should act in such a way as to advance public interest. If  they act with that purpose in view as they should,  then there  is  no  room  for conflict and  no  question  of  one dominating  the  other arises.  Each of the  organs  of  the State  has a special role of its own.  But our  Constitution expects  all  of  them to work in harmony  in  a  spirit  of service.     As  Shri K.K. Bose and Shri B.K. Patro  had   not   been placed  at the disposal of the government for  any  definite period,  it  was open to the High Court to recall  them  and post them as presiding officers of district courts.   Hence, the  High Court was within its powers in posting  Shri  B.K. Patro   as   district  and sessions  judge  of  Ganjam-Boudh division,  Shri K.K. Bose  as district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P.C. Dey as  district and sessions judge of Bolangir-kalahandi division though  it would  have  been   graceful   if  it   had  effected  those transfers after reasonable notice to the government. But  it was  beyond the powers of the High Court to post  Shri  K.B. Panda as the law secretary, Shri T. Misra as  superintendent and  legal remembrancer and Shri P.K. Mohanti as the  deputy law  secretary.   That part of the High  Court’s  order   is clearly  unsustainable.   But  as  mentioned  earlier,   the government has already implemented that part of the order as well.   Those officers are now functioning in the posts   to which  they were transferred.  The learned  Attorney-General told  ’us  that  the government has no  objection  to  those officers continuing in  those posts for the present.  We are sure if any change is required the same will be effected  by mutual   understanding  between  the  High  Court  and   the government.     In  the result these appeals are partly allowed and  the order  of the High Court holding that Shri B.K. Patro,  Shri K.K.  Bose  and Shri P.C. Dey had no authority to  hold  the posts they were holding on or after October 10, 1966 is  set aside.   Though  we hold that the orders of the  High  Court posting  Shri B.K. Panda as law secretary, Shri T. Misra  as superintendent and legal remembrancer and Shri P.K.  Mohanti as  deputy law secretary  were excess of its powers,  we  do not  set  aside the mandamus issued by it  for  the  reasons mentioned earlier.  In other respects the judgment  appealed against is upheld. The  parties  will bear their own costs  in  these  appeals. R.K.P.S.                            Appeals allowed in part. 165