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PETITIONER: STATE OF ASSAM & ANR.

       Vs.

RESPONDENT: S. N.  SEN & ANR.

DATE OF JUDGMENT03/11/1971

BENCH: ROY, SUBIMAL CHANDRA BENCH: ROY, SUBIMAL CHANDRA MITTER, G.K. SIKRI, S.M. (CJ) SHELAT, J.M. DUA, I.D.

CITATION:  1972 AIR 1028            1972 SCR  (2) 251  1972 SCC  (1) 889  CITATOR INFO :  RF         1975 SC 613  (11,12,43)  RF         1979 SC 193  (38)  R          1979 SC 478  (152)  R          1980 SC1426  (28)

ACT: Constitution  of  India,  1950,  Art.  235--Assam   Judicial Service (Junior) Rules, 1964, r. 5(iv)--Power to confirm the post  of  sub-judge vested in the  High  Court--validity  of Rule.

HEADNOTE: Respondent  no. 1, a member of the Assam  Judicial  Service, was  confirmed fly the High Court of Assam and  Nagaland  in Judicial  Service (Junior) Grade I against the post of  sub- Judge.  The Accountant General., of Nagaland took  objection to  this order of confirmation on the ground that  under  r. 5(iv) of the Assam Judicial Service (Junior) Rules, 1954 the confirmation  could only be made by the Governor and not  by the High Court.  Rule 5 (iv) inter alia, provides that "when a  person  is  appointed to a permanent  post,  he  will  be confirmed  after  the period of probations in  the  case  of Deputy  Registrar and Assistant Registrar-by the High  Court and  in  other  cases, it will be made by  the  Governor  in consultation  with the High Court".  The Accountant  General refused  to accept the confirmation made by the  High  Court and the respondent was informed accordingly.  Thereupon, the respondent  filed a writ petition.  The High  Court  allowed the petition. Dismissing the appeal, HELD:  (1) Under Art. 235 of the Constitution, the power  of pro-motion of persons holding posts inferior to that of  the District Judge being in the High Court, the power to confirm such promotions is also, in the High Court. [245 H] (2)  In  so far as r. 5(iv) of the  Assam  Judicial  Service (Junior)  Rules,. 1954, is in conflict with Art. 235 of  the Constitution, it must be held to, be invalid. [255 G-H] State  of  West Bengal v. Niripendra Nath  Bagchi  [1966]  1 S.C.R.  77] and State of Assam v. Ranga Mahammad.  [1967]  1

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C.S.R. 545, referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1061  of 1967. Appeal  by Special leave from the Judgment and  Order  dated September  12, 1966 of the Assam and Nagaland High Court  in Civil Rule No. 381 of 1965. A.  K.  Sen,  Naunit  Lal  and  S.  N.  Choudhury,  for  the appellants. A.  V.  Rangwn, for the Advocate-General for  the  State  of Tamil Nadu. W. C. Chopra, for the Registrar, Madras High Court. -L500Sup.CI4/72 252 P.  K.  Chatterjee and G. S. Chatterjee, for  the,  Advocate General for the State of West Bengal. O. P. Rana, for the Advocate-General for the.  State of U.P. J. D. Jain and A. R. Bar Thakur, for the Advocate-General for the State of Nagaland. Porus A. Mehta. and B. R. Agarwala, for the Registrar,  Bom- bay High Court, Appellate Side. L. M. Singhvi and U. P. Singh, for the State of Bihar. Lal  Narain Sinha, Advocate-General for the State of  Bihar, D.  P. Singh S. C. Agarwala, R. K. Garg and V.  J.  Francis, for the the Registrar, Patna High Court. The Judgment of the Court was delivered by Roy, J. This is an appeal by special leave against the judg- ment  and order dated September 12, 1966, in Civil Rule  No. 381  of  1965 of the High Court of Assam and  Nagaland.   By this judgment a Division Bench of the High Court allowed the petition  under  Art. 226 of the Constitution filed  by  the respondent S. N. Sen. The facts shortly are as follows : Respondent  No. 1-S.  N. Sen-was initially appointed  as  an Extra  Assistant  Commissioner by the Governor of  Assam  on December 21, 1950.  Thereafter he opted for Judicial Service and  was  appointed Munsiff by the Governor  of  Assam  with effect  from January 1, 1955.  He was confirmed in the  post of Munsiff in Assam Judicial Service (Junior) Grade 11  with effect from December 8, 1956. On or about December 15, 1961, respondent No. 1 was promoted to  act  as the Additional Sub-Judge, Cachar,  and  he  took charge  on December 22, 1961.  The High Court of  Assam  and Nagaland  confirmed the appointment of respondent No.  1  in the Judicial Service (Junior) Grade I with effect from March 1,  1964 against the post of Sub-Judge No. 2,  Gauhati  This post  of  Sub-Judge No. 2, Gauhati. was temporary,  but  had been made permanent on December 31, 1963.  This confirmation was published in the Assam Gazette dated May 1, 1964. The Accountant General of Assam and Nagaland took  objection to  this  order of confirmation.  It was alleged  that  such confirmation  was  in  violation of r. 5(iv)  of  the  Assam Judicial Service (Junior) Rules, 1954.  It was alleged  that the confirmation could only be made by the Governor, and not by the High Court. 253 It appears that some correspondence went on between the High Court and the Accountant General.  By letter dated  December 21,  1964,  the  Registrar of the High  Court  informed  the Accountant  General  that the Government had been  moved  to amend  r.  5  (iv) of the Assam  Judicial  Service  (Junior) Rules,  1954.   By  a letter dated May 1,  1965,  the  State Government informed the High Court regretting its  inability

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to  take up the question of the amendment of r. 5  (iv)  "at this stage". On  June 15, 1965, the Accountant General informed the  High Court that, as the Government had not amended the Rules, the order  of  confirmation, communicated in  the  High  Court’s notification dated May 1, 1964, was not in order.  Thereupon the  respondent No. 1 was informed by the High Court by  its letter dated July 20, 1965, that the Accountant General  had refused to accept his confirmation. Respondent No. 1 thereupon filed a writ petition in the High Court.   On September 12, 1966, the High Court  allowed  the petition.   There were two judgments-one by  Mehrotra,  C.J. and  the  other by S. K. Dutta, J. The  High  Court  refused certificate,  but  on  July 21,  1967,  this  Court  granted special leave to appeal. Our  Constitution makes specific provisions for  appointment of district judges and for recruitment of the persons  other than  the district Judges to the judicial service.  It  also makes  provision  for the control to be exercised  over  the subordinate courts.  The three articles are as follows :               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. (2)               (2) ................................."               Art. 234--"Appointments of persons other  than               district  judges to the judicial service of  a               State  shall  be made by the Governor  of  the               State in accordance with rules made by him  in               that behalf after consultation with the  State               Public  Service Commission and with  the  High               Court  exercising jurisdiction in relation  to               such State."               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               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 254               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."’ As already indicated the respondent Sen was appointed to act as  Additional  Sub-Judge,  Cachar, and he  took  charge  on December  22,  1961.  The High Court of Assam  and  Naga.and confirmed  his appointment in the Judicial Service  (Junior) Grade 1, with effect from March 1, 1964. Rule  5(iv), on the basis of which objection was  raised  by the Accountant Geaeral, is as follows :-               "5. Appointment, probation and confirmation               (iv) when a person is appointed to a permanent               post  he will be confirmed in his  appointment               at  the  end  of the period  of  probation  or               extended period of probation.  In case of  the               Deputy  Registrar and Assistant  Registrar  of               the  High Court confirmation shall be made  by               the  High  Court.  In other cases it  will  be

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             made by the Governor in consultation with  the               High Court."               Dealing  with it, Mehrotra, C.J., observed  as               follows               "It  will be anomalous to hold that  power  of               promotion and posting vests in the High  Court               while  the power of confirming an  officer  in               the post vests in the Government.  With regard               to  the  scheme of the  Constitution  and  the               Rules, it is clear that rule 5 (iv) applies to               the  persons  who  are  appointed  by   direct               recruitment to the post of a Sub-Judge and not               to the persons who have been promoted.  In  my               opinion,  therefore, the power to confirm  the               Judicial officers who have been promoted vests               in the High Court."               On the other hand, S. K. Dutta, J. was of  the                             view:               "In  this  connection it is not  necessary  to               examine  Rule  5(iv)  of  the  Assam  Judicial               Service  (Junior)  Rules, 1954, on  which  the               State  of  Assam and the  Accountant  General,               Assam   rely  in  their  contention   that   a               Subordinate Judge can be confirmed in his post               only  by  the Government.  If the rule  is  in               conflict with any constitutional provision, it               will be void and must be struck down." Under the provisions of the Constitution itself the power of promotion  of persons holding post inferior to that  of  the district  Judge is in the High Court . It stands  to  reason that  the power to confirm such promotion should also be  in the High Court. 255 This  Court has on several occasions expressed its views  on Art.  235 of the Constitution.  In The State of West  Bengal v. Nripendra Nath Bagchi(1), it was pointed out :     In  the case of the judicial service subordinate to  the     district  judge  the appointment has to be made  by  the     Governor in accordance with the rules to be framed after     consultation  with the State Public  Service  Commission     and  the High Court but the power of posting,  promotion     and  grant  of leave and the control of the  courts  are     vested in the High Court." A  year later, in State of Assam v. Ranga Mahammed and  Ors. (2) this Court against observed as follows               "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

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             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." This observation was made in relation to a case of transfer, but it applies with greater force to the case of  promotion. The  result is that we hold that the power of  promotion  of persons holding posts inferior to that of the district judge being  in  the  High  Court,  the  power  to  confirm   such promotions  is  also in the High Court.  We also  hold  that insofar  as r. 5 (iv) is in conflict with Art. 235  of  ’the Constitution, it must be held to be invalid. On  the basis of the last part of Art. 235, an argument  was purported to be advanced that the power of the High Court as to (1) [1966] 1 S.C.R. 771. (2) [1967] 1 S.C.R. 454. 256 promotions  was limited.  In view of the plain words of  the first part of this article, this argument has no basis. In  this Court, no other point was made in support  of  this appeal. The  appeal, therefore, fails and is dismissed, but  in  the circumstances of the case with no order as to costs. S.C.                               Appeal dismissed. 257