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Report No. 32

20 .Inter-relationship of Articles 233 and 235.-

As regards the inter­relationship of Articles 233 and 235, the Supreme Court has stated the position in these words1.

"Articles 233 and 235 make a mention of two distinct powers. The first is power of appointment of persons, their postings and promotion and the other is power of control. In the case of the District Judges, appointments Section 9 of the Code of Criminal Procedure, 1898-Appointment of Sessions 32.15 Judges, Additional Sessions Judges and Assistant Sessions Judges of persons to be and posting and promotion are to be made by the Governor but the control over the District Judge is of the High Court.

We are not impressed by the argument that the term used is "district court" because the rest of the Article clearly indicates that the word "court" is used compendiously to denote not only the court proper but also the presiding Judge. The latter part of Article 235 talks of the man who holds the office. 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.

What is vested includes disciplinary jurisdiction. Control is useless if it is not accompanied by disciplinary powers. It is not to be expected that the High Court would run to the Government or the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal or removal. These Articles go to show that by vesting "control" in the High Court the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Article 50 of the Constitution which reads:-

"50. The State shall take steps to separate the judiciary from the executive in the public services of the State".'.

1. State of West Bengal v. N.N. Bagchi, (1966) 1 SCR 771 (786, 787): (1966) 2 SCJ 59 (67).

21. To illustrate and elaborate the amplitude of the expression "control" in Article 235, we might also usefully refer to certain broad conclusions drawn by the Calcutta High Court, in a judgment which was affirmed by the Supreme Court1-

(1) The Constitution vests in express language in the High Court "the control over District Courts", etc.

Adequate meaning, due regard and appropriate effect should be given to this new constitutional provision.

(2) The control does not take away the right of appeal of any person under the law regulating the conditions of service nor does it authorise the High court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

(3) The words "including inferior to the post of District Judge" in Article 233 mean, that posting, promotion and leave are only illustrative of the types of "control" mentioned in the Article, and are not exhaustive. The word "control" in Article 235 "means all residuary controls except those which are already expressly provided for in the two preceding Articles 233 and 234.".

(4) The expression "control over District Courts" must necessarily include control over District Judges, they being the presiding officers of the District Courts.

(5) In addition to this control, the High Court has "superintendence over all Courts", etc., under Article 227, and this superintendence also imports control, as there can be no superintendence without control.

"Article 227 also includes power of control in the High Court in respect of its Subordinate Courts including control by disciplinary proceedings and action.".

1. Nripendra Nath v. Chief Secretary, Government of West Bengal, AIR 1961 Cal 1 (7, 8), paras. 21 to 25, affirmed in State of West Bengal v. Nripendra Nath Bagchi, (1966) 1 SCR 771: (1966) 2 SCJ 59.



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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