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Report No. 32

26. Various modes of assignment by control considered.-

Before making such a detailed examination, we should like t+o dispose of a possible preliminary query that might be raised. The decision in State of Assam v. Ranga Muhammad, (21st September, 1966), (Civil Appeal No. 1367 of 1966) (SC)., it may be argued, relates only to transfers, while there are many other modes of assigning a Sessions Judge to a particular court. Therefore, (it may be contended), the amendment should be confined to transfers and should not cover initial assignment of a Sessions Judge.

Now, it is true that the decision in State of Assam v. Ranga Muhammad related to transfers; but the reasoning on which the Supreme Court's decision is based must, we think, apply to all the various modes of assignment of a Sessions Judge to a Sessions Court, for example-(i) assignment to a Sessions Court of a person appointed for the first time in the cadre, (ii) assignment to a Sessions Court on transfer from another sessions division, (iii) assignment to a Sessions Court on promotion, and (iv) appointment as Additional Sessions Judge under section 9(4).

Following passages from the Supreme Court's judgments may be referred to in this connection:

'In its ordinary dictionary meaning the word "to post" may denote either (a) to station someone 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 World 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 Article 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.'.

"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 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.".

We may, in this connection, refer to another passage in the judgment.

"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 Article 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 all the more clear when one reads the provisions of Articles 234 and 235.

By the first of these Articles the question of appointment is 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 Article 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.'.

1. State of Assam v. Ranga Muhammad, Civil Appeal No. 1367 and 1368 of 1966, decided 21-9-66 appeal (from Assam High Court judgment dated 19th April, 1966 in Civil Rules 171-236 of 1965).

Section 9 of the Code of Criminal Procedure, 1898 - Appointment of Sessions Judges, Additional Sessions Judges and Assistant Sessions Judges Back

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