The State of Orissa Vs. Sudhansu
Sekhar Misra & Ors  INSC 251 (7 November 1967)
07/11/1967 HEGDE, K.S.
WANCHOO, K.N. (CJ) BACHAWAT, R.S.
CITATION: 1968 AIR 647 1968 SCR (2) 154
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)
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
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 transfers. did not take any action itself.
After the decision of this Court in Ranga
Mohammad's case  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
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
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.  1 S.C.R. 454;
State of West Bengal v. Nripendra Nath Baghi;
 1 S.C.R. 771; explained and
(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.
[162E-F] Quin v. Leathem,  A.C. 495;
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
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 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 government for some years past.
(1)  1 S.C.R. 454.
157 Shri B.K. Patro one of the district and
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
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
(a) Shri K.B. Panda who was attached to the
commission of enquiry in connection with students' (1)  1 S.C.R. 454 158
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
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 implement 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 (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 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)  1 S C R 771.
(2)  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 analyzing 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 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
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
Flood  A.C. 1 and what was decided
therein, there are two observations of a general character which I wish to
make, and 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)  1 S.C.R. 454. (2)  A.C.
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 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
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
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
Appeals allowed in part.