Report No. 32

13. The Supreme Court formulated the questions for consideration thus:-

"Three questions arise and they are:-

(a) who is to order transfer of a District Judge -the State Government or the High Court;

(b) is the provision regarding consultation in Articles 233 and 235 mandatory or directory and if the former, whether the High Court was not in fact consulted; and

(c) should the remarks of Mr. Justice Dutta about the State Government be expunged?".

14. As regards the first question, the Supreme Court stated, that the answer depended on the true construction of Articles 233 and 235 of the Constitution. It observed, 'The question we have posed resolves itself into a question of a very different but somewhat limited form, namely, whether the power to transfer District Judges is included in the "control" exercisable by the High Court over District Judges under Article 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 Article 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 Article 235.'.

15. The Supreme Court then referred to the judgment in State of West Bengal v. Nripendranath Bagchi, (1966) 1 SCR 771: (1966) 2 SCJ 59. where it was pointed out, that the Articles in question were intended to make the High Court the sole custodian of control over the judiciary except in so far as exclusive jurisdiction was conferred upon the Governor in regard to the appointment and posting and promotion of District Judges. Therefore unless the transfer of a District Judge can be said to be a "posting" of a District Judge, the High Court must obviously enjoy the exclusive power.

16. The Supreme Court then stated, that 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. The State Government applied the first meaning, and the High Court the second. According to the Supreme Court, in Article 233 the word "posting" clearly bore the second meaning, because it occurred in association with the words "appointment" and "promotion" and took 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 judge. 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.".

17. Alter pointing out that the High Court was in the day to day control of the courts and was better suited to make transfers than a Minister, the Supreme Court observed as follows:-

"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 case1."

1. The cited case was State of West Bengal v. N.N. Bagchi, (1966) 1 SCR 771: (1966) 2 SCJ 59.

18. This finishes the first question1 dealt with by the Supreme Court. As regards the second question, the Supreme Court held, "As the High Court is the authority to make transfers, there was no question of consultation on this account. The State Government was not the authority to order the transfers." The Supreme Court added, however, that there was need for consultation before one of the persons appointed as a District and Sessions Judge was "promoted" and "posted" as a district judge. The consultation was mandatory, as had been laid down quite definitely in Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987. and there had been no consultation in fact.

1. Para. 13, supra.