State of Assam & ANR Vs. S. N. Sen
& ANR  INSC 300 (3 November 1971)
ROY, SUBIMAL CHANDRA ROY, SUBIMAL CHANDRA
SIKRI, S.M. (CJ) SHELAT, J.M.
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)
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.
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  1 S.C.R. 77] and State of Assam v. Ranga
Mahammad.  1 C.S.R. 545, referred to.
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
-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
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 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 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
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 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
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)  1 S.C.R. 771.
(2)  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.