Report No. 32

6. Case-law on Articles 233 to 235.-

Some important decisions on Articles 233 to 237 may be referred to. Under Article 233(1), it has been held by the Supreme Court1 that consultation with the High Court, in the appointment, posting and promotion of district judges is mandatory, and appointments made in pursuance of rules which empower the Government to appoint a person as district judge in consultation with a person or authority other than the High Court would not be in accordance with Article 233(1). The following observations made in the judgment are important:-

"The constitutional mandate is clear. The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of a district judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the "judicial service" or to the Bar, to be appointed as a district judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.

This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so, for his mind may be influenced by other persons not entitled to advise him. That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one consultant, it has said so2.

Wherever the Constitution provided for consultation of a single body or individual it said so3. Article 124(2) goes further and makes a distinction between persons who may be consulted. Those provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein. To state it differently, if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D.".

1. Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987 (1990), para. 7 (December issue of the AIR).

2. See Articles 124(2) and 217(1).

3. See Article 222.

In the same case, Article 233(2) was also considered, but that is not relevant for the present purpose.

7. In the State of Assam v. Ranga Muhammad, (21st September, 1966), (Civil Appeal No. 1367 of 1966 (SC)', the Supreme Court held that in Article 233, the word "posting" means not "to station someone at a place" but "to assign someone to a post", i.e., a position or a job, especially one to which a person is appointed. It was held in that case, that "transfer" operates at a stage beyond appointment and promotion, and "posting" is not intended to mean transfer. Under Article 233, the Governor is concerned only 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 under Article 235.

These two decisions are referred to in the Statement of Objects and Reasons to the Bill 1-2 which became the Constitution (Twentieth) Amendment Act, 1966, whereby Article 233A was inserted in the Constitution.

1. Statement of Objects and Reasons to the Constitution (Twenty-third Amendment) Bill, 1966 (Lok Sabha Bill No. 89 of 1966), dated 20th November, 1966, introduced on 25th November, 1966.

2. Appendix 21.

8. Article 234 provides that the appointment of persons other than district judges to the judicial service of a State will be made by the Governor of the State in accordance with the 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. The case-law under this Article need not be discussed, for the present purpose.1

1. For a list of important cases under Articles 233 to 237, see Appendix 5.

9. We now proceed to Article 235 which is the most important one. The manifold implications of Article 235 have been brought out in a number of recent decisions of the Supreme Court. The opening part of Article 235 vests in the High Court "control over district courts and courts subordinate thereto". This "control" is stated in the article to include 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.

The opening part of the Article-"The control over district courts......shall be vested in the High Court....has assumed an important significance, under the case-law pertaining to this Article.

In a case which related to disciplinary jurisdiction over district judges, the Supreme Court held1, that "control" must include disciplinary jurisdiction. It also pointed out, that Article 235 goes a little further than sections 254 to 256 of the Government of India Act, 1935, which Act was silent about the control over the district judges and the subordinate judicial services, and under which the independence of the subordinate judiciary and of the district judges was assured to a certain extent, but not fully. The following observations in the judgment of the Supreme Court are apposite:-

"When the Constitution was being drafted the advance made by the 1935 Act was unfortunately lost sight of. The Draft Constitution made no mention of the special provisions, not even similar to those made by the Government of India Act, 1935, in respect of the Subordinate Judiciary. If that had remained, the Judicial Services would have come under Part XIV dealing with the services in India. An amendment, fortunately, was accepted and led to the inclusion of Articles 233 to 237. These articles were not placed in the Chapter on Services but immediately after the provisions in regard, to the High Courts.

The Articles went a little further than the corresponding sections of the Government of India Act. They vested the "control" of the District Courts and the Courts subordinate thereto in the High Courts and the main question is what is meant by the word "control". The High Court has held that the word "control" means not only in general superintendence of the working of the Courts but includes disciplinary control of the presiding judges, that is to say, the District Judge and Judges subordinate to him. It is this conclusion which is challenged before us on various grounds.".

1. State of West Bengal v. Nripendra Nath Bagchi, (1966) 1 SCR 771 (784): 2 SCJ 59 (66).

10. In Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987 (1993), para. 14., it was stated, that the makers of the Constitution realised that "it is the subordinate judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question as in the case of the superior judges". The Supreme Court stated, that presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of Articles in Chapter VI of Part VI under the heading "Subordinate Courts".

11. In State of Assam v. Ranga Muhammad, (21st September, 1966), (Civil Appeal No. 1387 of 1966) (SC). the transfer of one District and Sessions Judge from Jorhat to Gauhati and the appointment and posting of another District and Sessions Judge at Jorhat was questioned by the petitioner Ranga Muhammad, on the ground that the High Court alone could make the transfer, and, in any event, the High Court had to be consulted, and was not consulted before making the orders. The High Court of Assam held that there had been no consultation in both the cases, and therefore, the transfers were irregular for that reason. Holding, however, that none of the Judges could be said to occupy wrongly the office of District and Sessions Judge, the High Court declined the writ of quo warranto.

12. The State Government (after obtaining a certificate under Article 132 of the Constitution) appealed to the Supreme Court, and sought the reversal of the opinion of the High Court on the interpretation of Articles 233 and 235. Its main contention was, that the High Court was in fact consulted, and, alternatively, that the power to transfer district judges lay with the State Government and not with the High Court. (The State Government also asked for the expunction of certain remarks made by one of the Judges of the High Court of Assam, but that part of the controversy is not relevant for our purpose.)