Ahmad, C.J.@mdashThere are six applications, all under Article 226 of the Constitution of India and are in three sets. Each of the three sets comprises _two applications (both by a common Petitioner)-one for a writ of mandamus and/or order/direction in the nature of mandamus and the other for a writ of quo warranto or order/direction in the nature of quo warranto, in respect of matters and officers detailed hereafter. Along with the two applications in each of the three sets there is also a third application made by the same common Petitioner, for having a proceeding in contempt drawn against a common batch of four officers (1) Sri V. Natarajan I.A.S. Secretary to the Government of Orissa in the Home Department (Opposite party No. 2 in O.J.C. No. 495 of 1966), (2) Sri P.C. De (Opposite party No. 1 in O.J.C. No. 495 of 1966), (3) Sri K.K. Bose (Opposite Party No. 6 in O.J.C. No. 495 of 1966), and (4) Sri B.K. Patro, opposite party No. 5 in O.J.C. No. 495 of 1966. The applications for proceedings in contempt are not before this Bench; and this judgment is confined to the reliefs sought in the aforesaid six petitions alone. Therefore, the facts stated in the applications for proceedings in contempt are not stated here.
2. The six applications arise out of he three orders of transfer passed by the High Court on 10th October, 1966 concerning the three officers (1) Sri P.C. De, (2) Sri K.K. Bose and (3) Sri B.K. Patro as District Judges in the composite judgeships and sessions divisions of (1) Bolangir-Kalahandi, (2) Mayurbhanj-Keonjhar and (3) Ganjam-Boudh respectively- The main question in controversy is whether these orders of transfer passed by the High Court are within the scope and ambit of the power vested in the High Court under Article 235 of the Constitution and as such valid in law and not illegal and void All these three officers are admittedly the members of "The Orissa Superior. Judicial Service" as defined in "The Orissa Superior Judicia) Service Rules, 1963" (hereafter called the Superior Judicial Service Rules), and were at the time of the order of transfer holding respectively (1) the non-cadre post of Member, Sales Tax Tribunal (2) the cadre post of the Superintendent and Legal Remembrancer and ex-officio. Additional Secretary, Law Department, and (3) the cadre post of Secretary, Law Department. These posts which were then held by these officers -as the members of the Superior Judicial Service may, for brevity, be called the special posts as contra-distinguished with the posts which are held by the members of the Superior Judicial Service as presiding officers of district Courts. Their orders of transfer were passed under three separate High Court notifications bearing Nos. 201A, 199A and 197A respectively, but published under a common, composite notification dated Cuttack, the 10th October, 1966.
3. Simultaneously, along with these notifications there were also three other notifications issued by the High Court- bearing Nos. 198A, 196A and 200A-and published in the same common and composite notification dated Cuttack, the 10th October 1966. They related to the transfer of a group of three other officers, namely (1) Sri T. Misra (opposite party No. 8 in (3) Shri P.K. Mohanty (opposite party No. 9 in O.J.C. No. 495 of 19(6). These three officers are also admittedly the member of the Orissa Superior Judicial Service and were at that time respectively holding the posts of (1) District and Sessions Judge, Ganjam. Boudh (2) Special Officer attached to the Home Department in connection with the Commission of Enquiry, Students'' Agitation, and (3) District and Sessions Judge, Bolangir- Kalahandi. They were under these notifications, transferred respectively to the three cadre posts of (1) Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government of Orissa, Law Department in place of Sri K.K. Bose, (2) the Secretary to the Government of Orissa, Law Department of Orissa, in place of Shri B.K. Patro, and (3) the Deputy Secretary to the Government of Orissa, Law Department, which post had been then for some time past in abeyance for the reason of the controversy between the High Court and the Government over the choice of the incumbent for that post. It may however be noted here that in place of Sri P.C. De, no member of the Superior Judicial Service or any other judicial officer was transferred by the High Court to the post of the Member, Sales Tax Tribunal, as that post is a non cadre post. The High Court in connection with that post simply informed the Government under D.O. letter No. 8060 dated 10th October 1966 (annexure 0 to the counter-affidavit filed by the Registrar, High Court-opposite party No. 10 in O.J.C. No. 495 of 1966 that
As regards fining up the ex-cadre post of Member, Sales Tax Tribunal, the Court have no objection to spare the service''s of some senior officers of the Superior Judicial Service, if Government want to fill up the said post by deputation
Government despite that has not so far sent any intimation to the High Court for sparing any member of the Judicial Service for that post. Therefore no further action has been taken by the High Court in connection with that post. Thus, what the High Court in passing the aforesaid order of transfer did was that it transferred the three members of the Superior Judicial Service holding the special posts-cadre or non-cadre as presiding officer in the different District Courts and simultaneously transferred three other members of that Service functioning as presiding officers of the District Courts to the vacancies in the special cadre posts. It may however be made here clear that the facts relating to the transfer orders of the three other officers functioning as presiding officers of the District Courts to the vacancies in the special cadre posts have no bearing on the reliefs sought in these six petitions though it is a different matter that the three officers affected thereby, have also been made parties to all the three petitions for the writ of mandamus, perhaps with a view to provide a comprehensive picture of the background in which the reliefs stated therein have been sought.
4. It is not disputed that in pursuance of the direction given by the High Court, three officers, (1) Sri T. Misra, (2) Sri K.B. Panda, (3) Sri P.K. Mohanty made over charge of their respective posts on 14th November 1966, 9th November 1966 and 14th November 1966 respectively, to join their new posts to which they had been transferred, and thereafter in due course reported themselves for duty in their'' new posts to the appropriate authorities and submitted joining reports. Their joining reports were not accepted and these officers have been so far not allowed to join their new posts. In the case of Shri T. Misra, who offered himself to join his new posts of the Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government of Orissa Law Department, on the 18th November, 1966, the Home Secretary intimated to him substantially in terms (as already communicated to Sri A. Misra, Registrar, High Court, in D.O. letter no 2713/HC dated 10th November, 1966. from Shri V. Natarajan, I.A.S., Secretary to Government in the Home Department) that
Government have ordered Sarvasri B.K. Patro, P.C. De, and K.K. Bose not to make over charge of their respective offices. In view of these specific orders of Government under whom these officers are serving, it is not open to them to make over charge of their present offices.
Subsequently in his memo No. 27693 dated 18th November 1966, he informed him that be could not be allowed to join the post.
The other officer, namely Shri K.B. Panda made over charge of his post of Special Officer on 9th November 1966 to the Home Secretary, Sri V. Natarajan and perhaps the very next day on 10th November] 966 he reported himself to the Home Secretary to join his new post. To him as well the Home Secretary gave the same reply and did not allow him to join his new post. The last officer, namely Sri P.K. Mohanty made over charge of his post in the afternoon of 14 November 1966, and reported himself for joining his new post to the then Law Secretary Shri B.K. Patro on 25th November 1966, but the latter directed him to file the joining report before the Home Secretary Shri V. Natarajan. Accordingly he filed his joining report before the Home Secretary Sri V. Natarajan, on the same day. But on the next day he was informed by the Home Secretary that his joining report was also not accepted by Government. Thus the notifications of transfers passed by the High Court in respect of these three officers have not been so far allowed to be given effect to by the Home Secretary Sri V. Natarajan and the relevant authorities concerned. The result is that these three officers have been so far since then without any office or post or function or responsibility or duty to discharge. They are virtually hanging in the air and despite the letters addressed by them and Sri A. Misra, Registrar, High Court, to the Accountant. General, Orissa, for issue of pay ship entitling them at least to draw their substantive pay no action has been taken by him; and so they have not been able, since then, even to draw their substantive pay from the treasury.
5. Likewise, it is also an admitted fact that despite the aforesaid High Court notifications and directions given to (1) Sri P.C. De, (2) Sri K.K. Bose and (3) Sri B.K. Patro, none of them has so far joined their new posts as District and Sessions Judges of Bolangir-Kalahandi, Mayurbhanj-Keonjhar and Ganjam-Boudh respectively, and all of them have been as before still functioning in their old posts as (1) Member, Sales Tax Tribunal, (2) Superintendent and Legal Rememberancer and ex-officio Additional Secretary to the Government of Orissa, Law Department, and (3) Secretary to the Government of Orissa, Law Department respectively.
6. Thus, the allegations made in all these petitions are substantially of the same pattern and are for all practical purposes the same or similar excepting a few minor facts here and there like the names of the offices or officers or of the dates of their movements, and some such other facts which necessarily vary from petition to petition. Therefore, we will in the course of our discussion refer, for convenience, to the facts and the position of parties as stated in one of them, namely, 0 J. C No. 495 of 1966 unless otherwise necessary.
7. Coming now to the individual petitions we find that O.J.C. No. 495 of 1966 and O.J.C. No. 496 of 1966-the former for a writ of mandamus and the latter for a writ of quo warranto-constitute one of the three sets. They have been filed by Mr. Sudhanshu Sekhar Misra an Advocate practising ordinarily before the District Courts and Courts subordinate thereto in the composite judgeship and sessions division of Bolangir-Kalahandi whereto under the aforesaid relevant High Court notification Shri P.C. De was transferred as District and Session Judge, with a direction to make over charge of his the then non-cadre post of Member, Sales Tax Tribunal in the afternoon of 19th October 1966 and join as District and Sessions Judge, Bolangir-Kalahandi in the forenoon of 31st October, 1966 in place of its then District and Sessions Judge Sri P.K. Mohanty who was, as already stated, another High Court notification transferred
8. The main grievance made by the Petitioner in these petitions is that the disobedience of the order of the Hon''ble High Court issued in exercise of the powers conferred on it under the Constitution of India has put the litigants the Judgeship to considerable and irreparable hardship and inconvenience and led to the extraordinary situation in which the judgeship of Bolangir-Kalahandi is going without a judge for over a month" and it is further asserted therein that it is apprehended from reliable information available that this extraordinary state of affairs would continue indefinitely unless appropriate orders or directions are issued under the law directing opposite party No. 1 Shri P.C. De to join as District and Sessions Judge, Bolangir forthwith, and also further directions are issued on the opposite parties Nos. 2, 3 and 4 to relieve opposite party No. 1 from the post of Member, Sales Tax Tribunal, forthwith and to implement the directives of the High Court of Orissa under the Constitution of India in the notifications referred to hereinbefore".
9. In the other application of this set, namely O.J.C. No. 496 of 1966 there is the additional allegation made that in view of the position of law the opposite party No. 1 "has ceased to be a member, Sales Tax Tribunal, with effect from 20th October 1966 and since then he has been usurping the office and exercising the functions thereof unlawfully". Accordingly, the prayer made inter alia therein is that a writ of quo warranto or order or direction in the nature of quo warranto should issue out of, and under the seal of this Hon''ble Court calling upon the opposite parties to show cause on what authority they are holding the offices mentioned in the petition and exercising the functions thereof." These two petitions were filed in the Court on 17th December 1966.
10. O.J.C. No. 3 of 1967 and. O.J.C. No. 41967 form the second set of the applications-the former for mandamus and the latter for quo warranto. These two applications have been filed by sixteen Petitioners. The first three Petitioners are (1) Sri Suresh Chandra Das, (2) Sri Satish Chandra Das Patnaik and (3) Sri Purushottam Panigrahi, the President, Vice-President and Secretary of the Baripada Bar Association, Baripada, District Mayurbhanj and the remaining thirteen Petitioners are Advocates of the same Bar Association practising in the District Courts of the composite Judgeship and sessions division of Mayurbhanj-Keonjhar whereto, under the aforesaid relevant High Court notifications Shri K.K. Bose was transferred as District and Sessions Judge, with a direction to make over charge of his the then cadre post of Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government, Law Department in the afternoon of 19th October 1966 and join as District and Sessions Judge, Mayurbhanj-Keonjhar as soon as possible in place of its then District and Sessions Judge, shri B.K. Patro. These two petitions were filed on 3rd January 1967 with substantially the same assertions and grievances as made in the aforesaid first set of the petitions and the reliefs sought therein are also practically the same.
11. O.J.C. No. 27 of 1907 and O.J.C. No. 28 of 1967 go to make the third set of the petitions, the former for mandamus and the latter for quo warranto. The common Petitioner in these two applications is Miss. G. Usharani, the Advocate, ordinarily practising in the district Courts of the composite judgeship and Sessions Division of Ganjam-Boudh whereto under the aforesaid relevant High Court notification Sri B.K. Patro was transferred as District and Sessions Judge, with a direction to make over charge of his, the then cadre post of Law Secretary, in the forenoon of 1st November 1966, and join as District and Sessions Judge, Ganjam-Boudh, as soon us possible in place of its then District and Sessions Judge, Shri T. Misra who was, as already stated, by another High Court notification transferred, therefrom as Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government, Law Department. These two applications were filed on the 23rd January, 1967. They are also on the same line as the other two sets.
12. Thus we find that three of the applications in the three sets, namely O.J.C. No. 495 of 1966. O.J.C. No. 3 of 1967, and O.J.C. No. 27 of 1967, are for the writ of mandamus, an i the other three applications, namely, O.J.C. No. 496 of 1966, O.J.C. No. 4 of 1967 and O.J.C. No. 28 of 1967, are for the writ of quo warranto.
13. In all the three applications for the writ of mandamus, ten persons have been impleaded as members of the opposite parties, though in each under different arrangements. In the previous paragraphs, reference has already been made to eight of these officers, namely, (1) Sri P.C. De, (2) Sri V. Natarajan, (3) Sri B.K. Patro, (4) Sri K.K. Bose, (5) Sri K.B. Panda, (6) Sri T. Misra, (7) Sri P.K. Mohanty, (8) Sri A. Misra, the Registrar of the High Court, who have been impleaded in O.J.C. No. 495 of 1966 as opposite parties Nus. 1, 2,5, 6, 7, 8, 9, and 10 respectively. The remaining two members of the opposite parties impleaded in that petition are opposite party No. 3 Sri A.K. Barren, Chief Secretary to the Government of Orissa, Bhubaneswar, and opposite party No. 4, the State of Orissa through the Chief Secretary to the Government. The persons impleaded as opposite parties in the other three petitions which relate to the prayer for the writ of quo warranto are, as already stated, a common set of three officers whose transfers have led to these petitions namely (1) Sri P.C. De, (2) K.K. Bose, and (3) Sri B.K. Patro.
14. Returns have been filed on behalf of an these ten members of the opposite parties. Of these, the returns filed by Sri A. Misra, the Registrar of the High Court (opposite party No. 10) and Shri Barren, the Chief Secretary to the Government of Orissa (opposite party No. 3) give in fun the respective stands taken on one side by the Registrar of the High Court and on the other side jointly by (1) the State of Orissa (opposite party No. 4) and (2) Shri Barren, the Chief Secretary to the Government of Orissa (opposite party No. 3) as to the validity or invalidity of the aforesaid first three notifications issued by the High Court in respect of the three officers, namely: (1) Sri P.C. De, (2) Sri K.K. Bose and (3) Sri B.K. Patro.
15. The counter-affidavit filed by the registrar in all these three O.J. Cs. namely, O.J. Cs. 495 of 1966, O.J.C. No. is of 1967 and O.J.C. No. 27 of 1967, are in verbatim the same. The Registrar, in paragraph 4 inter alia states that- "For a proper appreciation of the action by this deponent in the matter of implementation of the notifications and adjudication of the issues involved in the present proceeding, it is necessary that the facts and circumstances leading to the issue notifications and happenings and events subsequent notifications and correspondence in relation thereto should be placed before this Hon''ble Court". Thereafter, in paragraphs 5, 6, 7, 8, 9 and 10 the previous history of the service of the three officers is narrated. They read as follows:
5. That the opposite parties nos 1. (Shri P.O. De), 5. (Shri B.K. Patro) and 6. (Shri K.K. Bose) were promoted to the rank of District and Sessions Judges from the Orissa Judicial Service Class I, in the years mentioned in the notifications quoted below....
6. That the said opposite parties Nos. 1, 5 and 6 were confirmed as District and Sessions Judges in the years mentioned in the notification quoted below....
7. That the notifications quoted in the preceding paragraphs 5 and 6 (not 6 and 7) would show that the opposite parties Nos. 1, 5 and 6 were first appointed as Additional District and Sessions Judges and were subsequently confirmed as District and Sessions Judges. It is submitted that the substantive rank and status of the opposite parties Nos. 1, 5 and 6 is that of District and Sessions Judges and they continue to hold the said status until today without any break of interruption.
8. That Shri B.K. Patro, opposite party No. 5 was posted as Superintendent and Remembrancer of
Legal Affairs of the Government of Orissa in March 1962. Prior to taking over as Superintendent and Remembrancer of Legal Affairs he was functioning as District and Sessions Judge. The said opposite party No. 5 continued as Legal Remembrancer till February 1966. Thereafter, he was posted as Secretary to the Government of Orissa in the Law Department and is still purporting to hold the said post.
9. That Sri K.K. Bose, opposite party No. 6 was posted as Joint Secretary to the Government of Orissa, Law Department in March 1962. Prior to taking over as Joint Secretary, he was functioning as Additional District and Sessions Judge. The said opposite party No. 6 continued as Joint Secretary till February, 1966. Thereafter, he was posted as Superintendent and Remembrancer of Legal Affairs of the Government of Orissa, in the Law Department and is still purporting to hold the said post.
10. That Shri P.C. De opposite party No. 1 was posted as Member Sales Tax Tribunal, Orissa, on 31-1-1962. Prior to taking over as Member, Sales Tax Tribunal, he was functioning as District and Sessions Judge, Ganjam-Boudh. The said opposite party No. 1 is still purporting to bold the post of Member, Sales Tax Tribunal,
Thereafter, in paragraph 13 of his counter the Registrar states that notwithstanding the fact that the High Court had all along been requesting the Government to revert the District and Sessions Judge working in special posts (both cadre and non-cadre) continuously for more than three years, the officers as named by him therein were never reverted and instead were appointed by Government straight from there to other special posts without any prior consultation with, or the concurrence of the High Court. This as stated by the Registrar was not only contrary to w hat is laid down in Book Circular 3 which reads
Prolonged deputation of officers to special posts in other departments is to be avoided as it is likely to render their utility for general administration more restricted in the long run
but was also contrary to the spirit of the assurance given by Government in their confidential D.O. letter No. 5793A SJS/2-8-1959 dated 24th March 1959 and in their letter No. 11294 dated 7th June, 1960 (annexure z to Registrar''s counter) sent by the Home Secretary to the Registrar of the High Court. Accordingly it, is claimed that
In February, 1965, a firm policy decision was taken by the Full Court that as a general rule judicial officers working in special posts, whether cadre or non-cadre, outside the regular line, should be recalled to the regular line after the completion of three years hi the interests of the service and of the officers, so that the officers may not deteriorate by remaining out of touch from regular judicial work for continuously long periods and the service will not suffer by being deprived of the services of senior and experienced officers in manning the posts in the regular judicial line
As such thereafter, Government were communicated this decision of the Court by the letter dated the 26th February 1965 and therein a list of six officers including opposite parties 1, 5 and 6 who had by then completed more than three years outside the judicial line was sent to the Government with a request that they should be reverted to the general line. In paragraph 14 it is asserted that The Secretary to the Government of Orissa, Home Department, opposite party No. 2, in his D.O. letter No. 9840 dated the 2nd April 1960 (Annexure A to the Registrar''s counter" intimated that ''Government have no objection to adhere to the principle of three years service in an appointment at a particular station against a special post."
At that time Shri K.K. Bose was holding the non-cadre post of Additional Legal Rememberancer and Joint Secretary Law Department, and Shri B.K. Patro was holding the cadre post of Legal Remembrancer and ex-officio Additional Secretary, Law Department. The claim made by the Registrar is that in the aforesaid letter Government agreed to the policy, but in pursuance of the request made by the Court for the reversion of these six officers, only one of them, was reverted namely, Sri L. Panda, who had already put in more than seven years in the special post of Endowments Commissioner; and as for the other remaining officers, Government kept expressing their inability from time to time, to revert them on one ground or the other. Subsequently, it is stated in paragraph 17 that "The Home Secretary, by his letter no- 13682 dated the 17th May 1955 (Annexure D to the Registrar''s counter) proposed to post opposite party No. 5, Shri B.K. Patro, as Law Secretary, and opposite party No. 6, Sri K.K. Bose as the Legal Remembrancer and requested for concurrence of the Court."
The Court, it is said, did not agree to the proposal made in the aforesaid letter of the Home Secretary and in reply thereto, under letter No. 4295 dated the 5th July 1965 (Annexure G to Registrar''s Counter) the names of other officers were recommended for appointment to the posts referred to in Government''s letter, including those of Sri T. Misra (opposite party No. 8) and Sri P.K. Mohanty (opposite party No. 9) for the cadre posts of Superintendent and Legal Remembrancer and Deputy or Joint Secretary, Law Department respectively. Government did not accept this proposal of the Court, and having informed the Court in their letter No. 23818/HC dated 2nd September J 965 (Annexure H to Registrar''s counter) that "consultation does not mean concurrence and therefore Government have the final say in respect of posts directly under the Government" issued notifications appointing opposite party No. 5, Sri B.K. Patro and opposite party No. 6, Sri K.K. Bose as Law Secretary and Legal Remembrancer respectively, and the cadre post of the Deputy Secretary was left in abeyance, despite the earlier Government intimation conveyed to the Registrar in the letter of the Home Secretary dated 29th January, 1966, as stated in paragraph 27 that ''Government bad decided to accept the Court''s recommendation to appoint Sri P.K. Mohanty, opposite party No. 9, as Deputy Secretary to the Government of Orissa, Law Department." As to Shri P.C. De also, as stated in paragraph 19 Government went back to the implied assurance given earlier in their letter No. 18696 dated 3rd July, 1965 (Annexure F to the Registrar''s counter). Thus the controversy for the reversion of these members of Superior Judicial Service dragged on without any substantial result between the High Court on the one side and the Government on the other, for about full 18 months from February 1965 to August 1966, in the course of which numerous correspondence passed between them ending with the Registrar''s letter No. 1366 dated 18-2-1966 (annexure M to Registrar''s counter) which, in spite of repeated reminders dated March 21, 1966, April 21, 1966, June 27, 1966 and August 19, 1966, was never acknowledged. The matter was in this state of suspense when it is stated in paragraph 32, that on the 21st day of September 1966 the judgment of the Supreme Court in State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 Service Law Reporter 40, was delivered. Thereafter, as stated in paragraph 34, "By order of the Court the deponent issued notifications dated 10-10-1966 inter alia transferring the opposite party Nos. 1, 5 and 6 from the posts held by them under the Government, to posts of District and Sessions Judges." And in the concluding paragraph 46 the deponent states "that opposite parties Nos. 1 t 5 and 6 are not functioning as District and Sessions Judges of the districts to which they have been posted and as such there is substantial obstruction in the administration of justice in the said districts" These in short are the main facts stated in the counter filed by the Registrar.
16. We next come to the counters filed by/Shri Barren, the Chief Secretary to the Government of Orissa, in the aforesaid three cases, namely, O.J.C. No. 495 of 1966, O.J.C. No. 3 of 1967 and O.J.C. No. 27 of 1967. Those filed in O.J.C. No. 495 of 1956 and O.J.C. No. 3 of 1967 are substantially identical in terms, each consisting of 16 paragraphs. In the counter filed in O.J.C. No. 27 of 1967 two additional paragraphs have been added. They are paragraphs 3 and 4. Thus therein there are 18 paragraphs. The new ground stated in these two paragraphs in support of the stand taken by the Government is based on the provisions made in Section 6 of the Bengal, Agra and Assam Civil Courts Act, 1987 and Section 9(1) of the Code of Criminal Procedure. On the basis of these provisions it is claimed therein that "no District and Sessions judge of a particular judgeship and sessions division can legally function as such in another judgeship and sessions division" in the absence of his appointment as such by Government as provided in Section 6 of the Bengal, Agra and Assam Civil Courts Act and Section 9 of the Code of Criminal Procedure. The rest of the paragraphs in this counter is substantially the same as those in the other two counters. These counters do not relate much to facts save and except a few non-controversial facts. They deal mostly with, as claimed therein, "the correct legal position as the Government understands and appreciates" of the import and implication of the constitutional provisions made in Articles 233, 234, 235 and 236 of the Constitution and of the law of contempt-in the the light of the facts as stated in the petitions for proceedings in contempt.
17. It may he recalled here that Shri Barren, the Chief Secretary, is not one of those officers against whom any petition has been filed for a proceeding in contempt. But the major or at least a substantial portion of his counters is more or less in the form of a show cause on behalf of opposite party No. 2, the Home Secretary opposite party No. 1 Sri P.C. De, opposite party No. 6 Sri K.K. Bose and opposite party No. 5 Sri B.K. Patro, as to why a proceeding in contempt should not be drawn against them. As the petitions for proceedings in contempt are not before this Bench, the facts stated in these counters in connection therewith are not relevant for our present purposes, and are not referred to here.
18. In the other part of his counters dealing with the law on the subject of control over the members of the Superior Judicial Service while holding the special posts, cadre or non cadre, Shri Barren it may he noted is not content only with his reading of the law on the subject, hut has further in his wisdom thought it advisable and that too with an air of authority which Shri Barren as the head of the State Secretariat may be used to, to find fault with the various orders passed by the High Court on the administrative side, and to make comments as to what the High Court on the administrative side should or should not have done. It is lamentable that Shri Barren, in his anxiety to support t he stand taken by Government should have crossed the permissible limits of pleadings and gone to the length of making insinuations against the High Court as has been done by him in his counters, if not directly at least indirectly. We do know that it may be claimed in this connection on behalf of Shri Barun that these counters were not prepared by him and he simply signed these counters as directed. But be must know that this explanation does not exonerate him from the responsibility he has for the statements made by him therein. We however hope that in future Shri Barren will be careful in not falling into this irresponsible blunder again. Ignoring for the present therefore this part of the counters we proceed now straight to the specific stand taken therein in regard to the question of control over the aforesaid members of the Superior Judicial Service holding special posts-cadre or non-cadre. That may be summarised as far as possible in his own words-but avoiding repetitions-in the following paragraphs:
(a) Where the Judicial Service of a State consists exclusively of persons intended to fill the posts of District Judges and other civil judicial posts inferior to the post of a District Judge, the High Court has power to transfer a District Judge meaning an officer presiding over a district Court, to another district Court to preside over it as a District Judge.
(b) The High Court has no control over an officer not presiding over a district Court, but functioning as a Law Officer or an Administrative Officer under the Government notwithstanding the fact that prior to his appointment as a Law Officer or-Administrative Officer he was a District Judge, or a member of the Subordinate Judicial service. There is nothing in Article 235 to affect the control of the Government over the Law Secretary, Legal Remembrancer, Member, bales Tax Tribunal, and Member, Administrative Tribunal. The power of the Government to transfer these officers from one post to another other than to the post of a District Judge, remains unaffected, and the result therefore is that the High Court has no power to order transfer of a District Judge as a Law Officer, or of a Law Officer as a District Judge. Such transfer, inter se can be effected only by the High Court and the Government acting in agreement.
(c) In fact, when a member of the Superior Judicial Service while acting as a District Judge, is appointed as a Law Officer under Government, he ceases to be a District Judge on such appointment, and consequently if sometime later it is proposed to appoint him again as a District Judge, it cannot be done merely by an order of transfer, but should be brought about by a fresh appointment made by the Governor in accordance wit h the provisions of Article 233 of the Constitution.
(d) Here in the State of Orissa there is no cadre consisting of purely District Judge. Since the year 1949 there is a combined cadre called "The Orissa Superior Judicial Service" consisting of some posts of District and Sessions Judges, Additional District and Sessions Judges, one post of Registrar, High Courts and some posts of Law Officers. The Service thus constituted is not purely ''Judicial Service'' as that expression is defined in Article 236(b) of the Constitution, as the cadre does not consist exclusively of persons intended to fill the posts of District Judges and other Civil Judicial posts, inasmuch as some of them are meant to fill posts which are neither posts of District Judges nor other Civil Judicial Posts.
(e) It is not correct to say that the substantive rank of either the Law Secretary or the Legal Remembrancer or of a Deputy Secretary, Law Department, is simply that of a District Judge. Everyone of them is a substantive member of the Superior Judicial Service (Senior Branch) which includes some posts of District Judges and Additional District Judges.
(f) It is not correct to say that opposite parties I, 5 and 6 are at present ''District Judges''. These and other officers of the Superior Judicial Service are confirmed as members of the Superior Judicial Service (Senior Branch) which as already pointed out includes therein certain posts of Law Officers besides the posts of District Judges. In substance, therefore, the stand taken by Shri Barren and the Government of Orissa is that the orders passed by the High Court regarding opposite parties Nos. 1, 5 and 6 are not covered by the provisions made in Article 235 of the Constitution, and are as such invalid and void.
19. The counters filed by opposite parties Nos. 1, 2, 5 and 6 are comparatively very brief and short. They are mainly confined to two points-one relating to contempt and the other relating to the validity of the orders of transfer passed by the High Court against the aforesaid members of the Superior Judicial Service holding special posts-cadre or non-cadre. The first point as already stated is not relevant for our present purpose, and therefore it need not be noticed here. As to the second point the stand taken by them also is substantially the same as taken by Shri Barren in his counter-affidavits. Therefore, they are not necessary to be repeated over again.
20. The last in the chain of counters are those filed by the group of the other three officers, namely, (1) Sri T. Misra, opposite party No. 8, (2) Sri K.B. Panda, opposite party No. 7, and (3) Sri P.K. Mohanty opposite party No. 9. The facts stated in them have already been referred to in the statements of facts. Thus, there is -nothing further left to be stated here again about them.
21. The averments made in these counters, therefore, make it clear that so far as the main facts involved in the present controversy are concerned, they are not in dispute. As such the fate of these petitions rests exclusively in the construction of Article 235 of the Constitution and the true determination of its scope and ambit. In other words, the main question that falls for consideration in these petitions is whether the expression "the control over district Courts" as used in Article 235 of the Constitution includes the control over the members of the Superior Judicial Service who are for the time being holding any special posts cadre or non-cadre, and not presiding over any district Court; or, to put it more directly, whether the expression "the control over district Courts", includes in the power of transfer in the High Court, of the members of the Superior Judicial Service from and to any special post-cadre and non-cadre-to and from the post of a presiding officer of Court. If the answer to this question, or more particularly the first part of it is in the affirmative, the impugned orders of transfer passed by the High Court are to be held as valid and the petitions have to be allowed either with or without necessary modification of the reliefs as sought therein. But if the answer is in the negative, these petitions have to fail and the impugned orders of transfer passed by the High Court in respect of these three officers, (1) Sri P.C. De, (2) Sri K.K. Bose, and, (3) Sri B.K. Patro, are to be held as invalid and without jurisdiction.
22. This takes us straight to the construction of Article 235 of the Constitution and to the scope and ambit of the power that is vested thereunder in the High Court and more particularly the scope and ambit of the power that is vested therein by the expression "the control over district Courts".
23. Much of the controversy about the scope and power of the High Court as is vested in it by the expression "the control over district Courts" as used in Article 235, has been by now resolved in the three important decisions of the Supreme Court, namely (1)
233. Appointment of District Judges:
(1) Appointments of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union, or of the State shall only be eligible to be appointed as a District Judge, if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
"235. Control over subordinate Courts.
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 a 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 such right of appeal 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.
The corresponding provisions made in the Government of India Act 1935, were to be found in Section 254(1) and (2) and Section 255(3). Those sections enacted:
254(1) Appointments of persons to be, and the posting and promotion of, District Judges, in any
Province shall be made by the Governor of the Province, and the High Court shall be consulted before a recommendation as to the making of such appointment is submitted to the Governor.
(2) A person not already in the service of His Majesty shall only be eligible to be appointed a District Judge if he has been for not less than five years, a barrister, a member of the Faculty of Advocates in Scotland, or a pleader, and is recommended by the High Court for appointment"
255(3) The posting and promotion of, and the grant of leave to, persons belonging to the, Subordinate Civil Judicial Service of a Province and holding any post inferior to that post of District Judge, shall be in the hands of the High Court, but nothing in this section shall be construed as taking away from-any -such person the right of appeal required to be given to him by the foregoing provisions of this chapter, or as authorising High Court to deal with any such person otherwise than in accordance with the conditions of his service prescribed thereunder
Section 255(3) as phrased had obviously no application to persons holding the post of District Judge, despite the fact that they may have been the members of the Subordinate Civil Judicial Service of any Province. Nor the power vested thereunder in the Rig and. Court included the expression "the control over district Courts and Courts subordinate thereto". Necessarily, therefore, the District Judges and district Courts with which alone we are at present directly concerned were governed and regulated under the Government of India Act, 1935, in part by its Section 254(1) and (2) which provided exclusively for some of their matters, and in part by the general provisions including Section 241 laid down in its Chapter II, Part X, for all the Civil Services in common. This joint control over the District Judges as provided thereunder continued until the Constitution of India came into force. In the Constitution of India the provisions corresponding to Sections 254(1) and (2) and 255(3) of the Government of India Act, 1935, as already stated, were incorporated in Articles 233 and 235 respectively. So far as the provisions made in Article 233 are concerned, they are substantially the same as were enacted in Section 254(1) and (2) of the Government of India Act, 1935. In other words the Constitution made no substantial alteration or addition in the corresponding provisions which were formerly laid down in Section 254(1) and (2) of the Government of India Act, 1935. But what is now laid down in Article 235 of the Constitution is obviously not the same provision as was formerly incorporated in the corresponding provision 255(3) of the Government of India Act, 1935. The provision formerly laid down in Section 255(3) of the Government of India Act, 1935 has now been very much widened in Article 235, by adding therein its judgment dated 1st July, 1960, made the rule absolute and quashed the order of dismissal as well as the enquiry. This order in appeal was affirmed by the Supreme Court. The main point that arose for consideration before the Supreme Court was "Whether the enquiry ordered by the Government and conducted by an Executive Officer of Government against a District and Sessions Judge contravened the provisions of Article 235 of the Constitution which vests in the High Court "the control over the district Courts and Courts subordinate thereto". In deciding this point, the specific question that was posed for consideration in the Supreme Court was "Whether the Government or the High Court should order, initiate, and hold enquiries into the'' conduct of District Judges". While dealing with this question, it was observed therein that
This problem would not have arisen if there was no special provision for District Judges in the Constitution, in Chapter, ''VI'' ''entitled "Subordinate'' Courts" immediately after Chapter V, which deals with High Courts in the States" and that This group articles is intended to make Special provision for the Judicial service in the State" The expression "Special provision" has been, in our opinion, used in these observations in contradistinction with the general provision which has been provided in the Constitution in Part XIV for all the services in common under the Union and the States. Therefore, the provision made for the Judicial Service in Chapter VI of Part VI entitled "Subordinate Courts" being the special provision, has normally to prevail in the case of the Judicial Service, in regard to all the matters connected therewith, over the general provision made for all services in common under the Union and the States in part XIV-unless there is a provision made to the contrary in the Constitution-(expression unius exclusio alterius-express mention of one thing implies exclusion of another). Accordingly, in order to determine the real purpose underlying the special provision that is provided for the Judicial Service in Chapter VI, Part VI, the whole history of the constitutional development which has been, in this regards made from time to time, has been traced-and that right from the year 1912 when the persistent public demand was made before the Islington Commission for two matters-(1) recruitment from the Bar to the Superior Judicial Service namely District judgeship, and (2) the separation of the judiciary from, the executive meaning thereby, primarily the independence of judicial officers from the influence and control of the Executive and more particularly the pressure which may be exerted upon a judicial officer by men who are known or believed, to have the means of bringing influence to bear upon a minister. In tracing the history of the progress made in the fulfillment of this public demand their Lordships have referred to the gradual progress made from time to time in this field, firstly under the Government of India Act, 1915 as amended by the Government of India Act, 1919, and secondly under the Government of India Act, 1935, and lastly under the Constitution of India. In referring to the progress made in the fulfillment of this demand under the Government of India Act, 1915 as amended by the Government of India Act, 1919, their Lordships have observed that
It would thus appear that the problem about the independence of judicial officers which was exercising the minds of the people, did not receive full attention and to all intents and purposes, the Executive Government and Legislature controlled them. The recommendations of the Islington Commission remained a dead letter.
Thereafter, referring to the progress made in this direction under the Government of India Act, 1935, it has been observed that
"The Government of India Act, 1935, was silent about the control over the District Judge and the Subordinate Judicial Services. The administrative control of the High Court u/s 224 over the Courts subordinate to it, extended only to the enumerated topics and to superintendence over them. The independence of the subordinate judiciary and of the District Judges was thus assured to a certain extent, but not quite".
Lastly, reference is made to the progress made under the Constitution. In that regard the observation made is that
The Articles (233 to 237) of the Constitution 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
Thus, having traced the history of the gradual progress made in the fulfillment of the aforesaid two demands their Lordships next proceeded to construe the meaning of the word ''control'' in the light of that history and observed that
Articles 233 and 235 make a mention of two distinct powers. The first is the power of appointments of persons, their postings, and promotion and the other is the power of control. In the case of the District Judges appointments of persons to be and posting and promotion are made by the Governor, but the control over the District Judges is of the High Court
It may be noted here that in making this observation their Lordships repelled the contention made by Mr. Sen...appearing for West Bengal that ''District Courts'' and ''Courts subordinate thereto'' did not include the incumbents, namely the District Judges and Judges subordinate to them and held that
We are not impressed by, the argument that the word used is ''District Court'' because the rest of the Articles clearly indicates that the word "Courts" is used compendiously to denote not only the Courts proper, but also the presiding Judge".VOL. XXXIII To that their Lordships further added that
The control which is vested in the High Court is a complete control, subject only - to the power to the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of district judges".
In other words, what has been held therein is not only ''that the expression ''control over District Courts'' includes control over the District Judges but also that the degree of that control which the High Court has over the District Judges is complete. The expression ''complete control'' as it appears from the context of the discussion, has been used therein in contrast to the limited or dual, control which the High Court formerly had, as just explained above, in the matter of District Judges under the Government of India Act, 1935. It is to be noted that Section 254(1) and (2) provided only for the appointment of persons to be, and the posting and promotion of District Judges. Therefore, it is clear that in these provisions of the Government of India Act, 1935, other matters in relation to the District Judges were not included; as such, in those matters the District Judges were governed and controlled by the general provisions made in its Chapter II, Part X, which was meant for all the civil services in common. In that way, in those other matters the District Judges were in part under the control of the Executive. Thus, under the Government of India Act, in the matter of control over the judiciary in general and the District Judges in particular, as in all other fields of administration, the rule of dyarchy prevailed, the reason being that the then Government was foreign and anxious to have its control in all important matters. That means that the control over the District Judges was partly with the High Court and partly with the Government, i. e. Executive. Necessarily, therefore, if in order to achieve the separation of the Judiciary from the Executive the control of the High ''Court had to be made complete-as has been held to have been done under the Constitution-it would be done only by transferring in the first instance all the residuary matters relating to the District Judges, from the general provisions made under the Government of India Act, 1935, in Chapter II part X for all the civil services in common, to the special provision now made in Chapter VI, Part VI of the Constitution exclusively for the subordinate Courts. Therefore, the observation made in the aforesaid decision of the Supreme Court to the effect that "the control which is vested in the High Court is a complete control" necessarily implies that now all the residuary matters relating to the district judges which were formerly controlled and governed, under the Government of India Act, 1935, by the general provisions made in its Chapter II, Part X, for all the civil services in common, have been, under the Constitution, in order to effectuate the purpose of securing the complete independence of the subordinate judiciary, taken out from the general provisions made in the Constitution for all the civil services in common in its part XIV and expressly incorporated in its Chapter VI, Part VI, by the addition of the expression "the control over District Courts and Courts subordinate thereto" in its Article 235. That is why it is sometimes claimed that now under the Constitution there is a complete code provided for the entire subordinate courts in Chapter VI, Part VI of the Constitution. It follows, therefore, that thereby the control of the Executive over the District Judges in respect of the residuary matters which formerly they had under the Government of India Act, 1935, has been completely eliminated and the control of the High Court over the District Judges has been in all those matters, made complete. It follows, therefore, that the power of the Governor or the Government in the matter of the administration of the subordinate Courts is now left confined only to the few specific items which "are expressly enumerated in Chapter VI, Part VI, for example in the matter of "appointments of persons to be, and the posting and promotion of, District Judges" as laid down in Article 233, or in the matter of appointment of persons other than District Judges to the judicial service as laid down in Article 23-1, or in the matter of the manner and procedure which has to be followed in the exercise of the control as laid down in the latter part of Article 235 of the Constitution. The result is that what is not expressly provided in any of the Articles of Chapter VI, Part VI as falling within the power of the Governor is all covered by the expression "the control over District Courts and Courts subordinate thereto" as used in Article 235 and as such is now all vested in the High Court. We may recall here that what is provided in Article 233 or 234 is not substantially in any way different to what was formerly provided in the corresponding Section 254(1) and (2) of the Government of India Act, 1935. Therefore, barring the impact which these provisions may have been put to by the use of the expression "the control over District Courts" in Article 235, they substantially remain intact in Chapter VI, Part VI of the Constitution; but the rest of the control which the Executive had over the District Judges under the Government of India Act,1935, is now all transferred to the exclusive jurisdiction of the High Court. Therefore, it is in this context that, in our opinion, the full import of the expression ''complete control'' as used in the case of the
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
The clear import of this observation in the context of the discussion made therein is that otherwise the very object and purpose of securing the independence of the subordinate judiciary by the enactment of the Articles in Chapter VI, Part VI of the Constitution would have been frustrated. As such, though it is true that therein the controversy was confined to the sole question whether the expression ''the control over District Courts'' included disciplinary jurisdiction over District Judges, the approach to the solution of that problem was made from a larger point of view. This is why we find that the following observations have been made therein, with some emphasis:
That the High Court is made the sole custodian of the control over the judiciary. Control therefore is not merely the power to arrange the day to day working of the Court but contemplates disciplinary jurisdiction over the presiding Judge. The word ''control'' in Article 235 must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges.
2. That the history which lies behind the enactment of these Articles indicates that ''control'' was vested in the High Court to effectuate a purpose namely the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well, the very object would be frustrated
Therefore, this decision is an authority not only for the propositions (1) that the word "Court" is used compendiously to denote not only the Court proper but also the presiding Judge, and (2) that the word ''control'' must include disciplinary jurisdiction; but what is more important and of general application-is that it unambiguously lays down that the object underlying the use of the expression "the control over District Courts and Courts subordinate thereto" in Article 285 of the Constitution and the special provisions made in Chapter VI of Part VI of the Constitution for ''Subordinate Courts'' was to "effectuate the securing of the complete control of the High Court over the subordinate judiciary" and thereby to fulfil the persistent demand of the people for the separation of the Judiciary from the Executive.
25. Necessarily, therefore, what follows from this decision is that as a result of the incorporation of the expression "the control over District Courts" in Article 235 there is now no control left in the Executive over District Judges, in any of their matters save and except those which are specifically enumerated in Articles 233 and 234 of the Constitution.
26. This view also gets support from the subsequent decisions of the Supreme Court in the case of Chandra Mohan v. State of U.P.A.I.R. 1966 S.C. 1987 and State of Assam v. Rana Muhammad and Ors. C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40. It may be noted that in none of them the subject matter of controversy was the disciplinary control of the High Court as it was in the case of
Accordingly, in answering the questions as referred to above reliance was placed not only on the words and expressions used in Article 233 of the Constitution, but also dominantly on the purpose which the provision made in Chapter VI, Part VI of the Constitution has been intended by the framers of the Constitution to effectuate, namely, the securing of the complete control of the High Court over the subordinate judiciary, meaning thereby primarily the securing of the complete control of the High Court over the judicial officers and to take them out from the influence and control of the Executive. Judged in that context, therefore, the conclusions which their Lordships came to in answer to the aforesaid two questions were in substance to the following effect:
(1) That the mere information to the High Court as to what is proposed to be done by the Governor does not comply with the constitutional requirement of consultation. Such a consultation is but an empty formality and a travesty of the constitutional provisions. Or, in other words, it is a contrivance to by-pass a mandate given thereunder and a negation of the concept of independence of the Judiciary as contemplated under Chapter VI, Part VI of the Constitution. The duty to consult is mandatory and 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. Thus, it cannot be exercised in consultation with any other person or persons not designated thereunder the reason being that the High Court alone is expected to know 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. The purpose underlying the scheme of consultation, as provided in Article 233, is to guarantee that the Governor in acting thereunder, would not function in a manner which may jeopardise or frustrate the provisions made in the Constitution for securing the independence of the judiciary, or may result in any negation of the complete control of the High Court over the District Judge.
(2) That there cannot be any dispute that "the service" in Article 233(2) can only mean "the Judicial Service"
27. This was followed by the decision of the Supreme Court in the State of Assam v. Rana Muhammad and Ors. C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40. The controversy in that case related to the ''power concerning the transfer of District Judges. In the Assam High Court that matter was canvassed under the heading as to "who is to order transfer of a District Judge-the State Government or the High Court"? In the Supreme Court that form was slightly changed and the question framed was. Whether the power to transfer District Judges is included in the "control" exercisable by the High Court over District Courts under Article 235, or in the power "appointments 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"? In that case, therefore" the controversy raised was substantially the same as is the one now before us, though with this difference that the order of transfer which was passed in that case related to those District Judges who were functioning at that time as the Presiding Officers of Courts and not holding any special post or post not connected with Courts. But the fact remains that the words ''control'' and ''posting'' as used in Article 235/ and 233 respectively were construed therein not purely from the point of view of their textual or dictionary meaning but also very much in the historical background of the object, underlying the use of the expression the control over District Courts in Article 235. Accordingly, we find that in answering this question it was at the outset observed that-
The history of the Articles,233-237 in Chapter VI (Subordinate Courts) of Part VI of the Constitution was VOL. XXXIII 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
Having stated so, the matter was thereafter looked at from the point of view as to which of the two meanings of the word ''posting'' would be consistent and in harmony with the complete control of the High Court over District Judges, as envisaged-for the separation of the judiciary from the executive-in Chapter VI, Part VI of the Constitution. And in the course of that examination it was observed that the word ''post'' 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.
Accordingly it was held that under Article 233 the Governor is only concerned with the ''appointment'', ''promotion'', or ''posting'' to the cadre of District Judges and not to the transfer of District Judges already appointed or promoted or posted to the cadre. The latter is obviously a matter of control over the District Judges which is vested in the High Court. The reason given in support of this conclusion as stated therein was that:
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, be 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 t hem personally. - There is less chance of being influenced by Secretaries who may with bold 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 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
28. Therefore, in our opinion, there is little scope for any disagreement to the extent that in all these three decisions of the Supreme Court the construction of Article 233 and 235, as of other Articles falling under Chapter VI, Part VI of the Constitution, has been uniformly and consistently founded on the footing of the scheme that is incorporated thereunder as a special provision for securing the separation of the judiciary from the executive by placing the judicial service in the complete control of the High Court; and that has been done-as is quite evident from the discussion made and the reasonings given in all these decisions-without- making any distinction inter se between one member of the judicial service and the other; in other words these relevant Articles have been construed in all these cases independent of the fact whether the post held by the District Judges is the one or the other of the posts which are borne on the cadre, rather purely from the point of view of the persons or officers who are members of the Judicial Service and are to fill up the various posts in the cadre, as one unit; that is to say, from the point of view, of judicial service as a whole. Thus the proposition raised here that the word ''control'' as used in Article 235 attracts only those District Judge who are a part of the Court or for the time being preside over a Court, and does not attract those District Judges who are not connected with a Court or do not for the time being preside over a Court, has been in our opinion impliedly in all these cases rejected.
29. In that view of the matter, we think that the controversy in the present case as to the scope and ambit of Article 235 has to be resolved not only on the basis of the text and the dictionary meaning of the words used in the Article, but along with them in the background of the special scheme which is provided in Chapter VI, Part VI of the Constitution for securing the independence of the judiciary.
30. But before we take up this aspect of the matter, it may be noted here that so far as the two decisions of the.... Supreme Court in
(1). That the word ''Court'' in Article 235 is used compendiously to denote not only the Court proper, but also the presiding Judge;
(2). That the power to transfer District Judge is included in the word ''control'' as used in Article 235, and is as such exercisable by the High Court and is not included in the power of appointment as used in Article 235 and therefore the power of transfer is not open to be exercised by the Governor, and
(3). That the word ''control'' as used in Article 235 must included disciplinary jurisdiction. These three propositions, therefore, now stand concluded, and in fact have not been challenged before us.
31. In this background, therefore, one would have expected that there was little scope left for any challenge against an order of the High Court transferring any member of the Senior Branch of the Superior Judicial Service from one post to another within the cadre of the Senior Branch. But it has happened-howsoever unexpected it may have been and the orders of transfer passed by the High Court under the aforesaid notifications dated 10-10-1966 are, despite all these decisions, faced with challenge by Government and even now with the same vigour and persistence with which so far all the attempts made by the High Court for the reversion of the three officers have been thwarted during the last 18 months, as if in the absence or these officers involved in the orders of transfer the entire hierarchy of administration in the departments concerned would have come to a stand-still. One can understand that some important matters may, at a point of time, be pending in their file and therefore there may have been some difficulty in their sudden transfer from the offices held by them at that juncture until those important matters were finally disposed of. But such a state of affairs is not likely to continue for months together and much less for a continuous period of full 18 months. Any way for the present we have to proceed on the assumption that there may have been some special reason, best known to Government-at least in the matter of these three officers-which has so far stood in the way of Government in complying with the persistent request of the High Court for their reversion to the general line. And perhaps that is why we find that though Government is so particular in the case of their transfer, but the same stand has not been taken by the Government in the matter of reverting Shri K.B. Panda, opposite party No. 7 Shri Panda was also at the time when the impugned order of transfer was passed by the High Court, working as Special Officer, Home Department, in connection with the enquiry of Students Agitation, and by the aforesaid order of the High Court he was transferred to another special post of Law Secretary. The consistency demanded that if the order passed in respect of Shri P.C. De, Shri K.K. Bose, and Sri B.K. Patro was bad for the reason that they were then holding special posts and were not functioning as presiding officers of any Court, the same should have been said in the case of Shri K.B. Panda. But his order of transfer was not challenged and he was quietly allowed to hand over charge of his special post though it is a different matter that thereafter his transfer to the post of the Law Secretary was not accepted as legally valid. He, however, as it may, let us now proceed to examine as to how far these impugned orders of transfer are legal and valid-irrespective of any consideration whether the resistance of the Government in not complying with the High Court''s request as to the reversion of these officers is reasonable, proper or consistent.
32. The grounds made in support of the stand taken by Government in the counters filed by the Chief Secretary have already been quoted in paragraph 18. They are six in numbers from (a) to (f). The first of the grounds is in the nature of concession. Thus we are here left only with the remaining five grounds which are from (b) to (f).
33. In the course of the argument in support of some of these grounds reference has been made to the provisions of the Superior. Judicial Service Rules. Therefore it may be necessary to place here first some of those important provisions. They may help us in disposing of such grounds fully.
34. These rules have been made by the Government of Orissa in exercise of the powers conferred on him by the proviso to Article 309 of the Constitution for the regulation of recruitment to posts in and the conditions of service of the persons appointed to the Superior Judicial Service as stated in Notification No. 4695 H.C. dated 5th March, 1963, since when the Superior Judicial Service Rules came into force. These rules have four parts. Part I is headed "Preliminary" including therein the definition Section 3. Part II deals with Cadre. Therein Rule 4 is important. It reads as follows:
4. (1): The cadre of the Service shall consist of two branches,
namely
(i) Superior Judicial Service, senior Branch and
(ii) Superior Judicial Service, Junior Branch.
(2) The cadre of the Superior Judicial Service, Senior Branch, shall be comprised as follows, namely:
(i) District and Sessions Judges 8
(ii) Additional District and Sessions Judges 2
(iii) Secretary to Government in Law
Department1
(iv) Superintendent and Legal Remem-
brancer, Law Department 1
(v) Deputy Secretary to Government in
the Law Department1
(vi) Registrar High Court 1
(vii) Member, Administrative Tribunal 1
Total 15
(3) The cadre of the Superior Judicial Service, Junior Branch, shall consist of nine Additional District Magistrates (Judicial).
Provided that the Governor may, in consultation with the High Court, create such further number of permanent or temporary posts in the aforesaid cadres of the Service or may keep in abeyance, or leave unfilled, any post in the said cadres, as may be considered necessary from time to time.
Part III bears on the question of recruitment. It includes Rules 5 to 10. Of .these Rules 5, 7,8,9 and 10 deal directly with recruitment-the former four to the Senior Branch and the latter one to the Junior Branch of the Superior Judicial Service. They read as follows:
5. Recruitment to the Service shall be made by the following methods, namely
(1) In respect of the Senior Branch
(a) by direct recruitment in accordance with
rule 8, and
(b) by promotion of officers from the Junior
Branch of the Service.
(2) In respect of the Junior Branch by promotion of officers of the Orissa Judicial Service (Glass I) in accordance with Rule 10.
...
7. (1) When a vacancy occurs in the Senior Branch of the Service, Government shall decide in consultation with the High Court, whether it may be filled up by direct recruitment or by promotion.
8. (1) Direct recruitment to the Senior Branch of the Service shall be made from the Bar.
(2) Candidates for direct recruitment to the Senior Branch of the Service shall-
(i) be at least 7 years standing at the Bar;
and
(ii) not be under 35 and over 45 years of age.
(3) The High Court shall for each vacancy open to direct recruits, to the Senior Branch of the Service, furnish to Government a list of two candidates in order of merit, and Government shall appoint one of them after satisfying themselves as to the character and antecedents of the selected candidates.
(4) Selected candidates shall be physically fit and shall be required to appear before the State Medical Board, before final appointment.
9. (1) Whenever a vacancy in the Senior Branch of the Service is decided to be filled up by promotion, the Government shall fill up the same after due consideration of the recommendation of the High Court in accordance with Sub-rule (2);
(2) The High Court shall recommend for appointment to such vacancy an officer of the Junior Branch of the Service who in the opinion of the High Court, is the most suitable for the purpose;
Provided that if, for any reason, Government are unable to accept the recommendation as aforesaid, they may call for further recommendations from the High Court to fill up the vacancy.
10. Recruitment to the Junior Branch of the Service shall be made by the High Court by promotion from amongst the Subordinate Judges.
Part IV deals with Pay and Allowances and the last Part v. is headed ''Miscellaneous".
35. The scheme, therefore, that is laid down in these rules of the Superior Judicial Service Rules, visualises three things-one, the service known as Superior Judicial Service, secondly, the different ranks of the officers within that service and thirdly the posts which are made available for the; members of the different ranks in the service. The points:that we are to decide here do not in our opinion relate to the nature of the duties or the kind of work which is assigned to the different posts, which either happen to fall within the same cadre or are made available to the members of one rank or the other but with the incumbents of these posts. It is important to note that these in cum bents of the posts are sometimes named with reference to the name of the post, sometimes with reference to the name of the rank, and sometimes with reference to the names of the service with which they are identified. Therefore, that can be no ground for holding that there is any difference in their rights or obligations which are defined, in respect of these incumbents, either under one or the other of these descriptions.
36 Now so far as the cadre of the Superior Judicial Service (Junior Branch) is concerned that does not, it is clear, consist of any District Judges and the recruitment to the junior branch is not made in accordance with Article 233 of the Constitution, but by promotion under Article 235, from amongst Subordinate Judges. Therefore, the rank which the members of the Junior Branch of the Superior Judicial Service hold is a rank in between that of a District Judge as defined in Article 233 and that of a Subordinate Judge as provided in Rule 3(2)(1) of the Orissa Judicial Service Rules, 1964. As such any consideration of their case is not called for here, and is irrelevant for our present purpose.
37. Now coming to Rules 5, 7, 8 and 9 of the Superior Judicial Service Rules, which regulate the recruitment to the Senior branch of the Service, there is no difficulty to hold that the provisions made therein are all based on and in conformity with the terms of Article 233 of the Constitution which relate to the appointment of District Judges. Indeed, in law they could not be otherwise; for in that case they would have been ultra vires the Constitution Article 309 clearly states that
Subject to the provisions of this Constitution Acts of appropriate Legislature may regulate recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State.
Therefore, the Acts made in exercise of the power as laid down thereunder cannot be contrary to or inconsistent with, either Article 233, or Article 235, or as a matter of any of the provisions of Chapter VI, Part VI of the Constitution. The same principle will apply also to the Rules framed by the Governor in exercise of the power given under the proviso to Article 309. Therefore, there is no escape from the conclusion that the persons recruited to the Senior Branch of the Superior Judicial Service under Rules 5, 8 and 9, are nothing but ''District Judges'' within the meaning of that expression as used in Article 233. As such, it is obvious that no person can be a member of the senior branch of that service unless he is a District Judge.
38. It may be noted here that ''Judicial Service'' as defined in Article 236(b) of the Constitution has been in the State of Orissa classified into two categories of officers-one category of officers belonging to the lower hierarchy by the rules called the Orissa Judicial Service Rules, 1964, and the other category of officers belonging to the higher hierarchy governed by the Superior Judicial Service Rules, 1963. Accordingly, Rule 3 of the Orissa Judicial Service Rules 1964 inter alia reads that
(1). The Service shall consist of all posts in the Judicial Service of the State other than the posts in the Orissa Superior Judicial Service constituted under the Orissa Superior Judicial Service Rules, 1963".
(2). The Service hall be comprised of two branches, namely
(i) the Orissa Judicial Service, Class I, consisting of Subordinate Judges and
(ii) the Orissa Judicial Service, Class, II, consisting of Munsifs.
And it is these two categories of officers which taken together, constitute the entire judicial service of the State with this difference that Subordinate Judges and Munsifs as already stated are governed and regulated by the Orissa Judicial Service Rules 1964 while the Additional District Magistrates (Judicial) and, the members of the Senior branch of the Superior Judicial Service, who, as already discussed, are none else but District Judges, are governed by the Superior Service Rules. Unless therefore, a person is appointed a District Judge as provided in Rules 5, 7, 8 and 9 of the Superior Judicial Service Rules, he cannot be a member of the Superior Judicial Service, Senior Branch. The number of posts made available under Rule 4(3) for the cadre of the Superior Judicial Service Junior Branch is 9, while the number of posts provided for the members of the Superior Judicial service Senior Branch as given in Rule 4(2) is 15. Therefore, though a person may be a member of the Judicial Service as defined in Article 236(b) but so long as he is a member of the superior Judicial Service (junior branch) or a member of the Orissa Judicial Service, he is not entitled to bold any of the posts borne on the cadre of the Superior Judicial Service (senior branch) and this be can hold only if, as already stated, he is appointed a District Judge within the meaning of that word as used in Article 233. It is, therefore, in this background and in the background of the definition that is provided in Article 236(b) in respect of ''Judicial Service'' that the following observation made in the case of Chandra Mohan v. State of U.P.A.I.R. 1966 S.C. 1987, while dealing with the implication of the word'' ''service'' as used in Article 233(2) has to be read:
The definition is exhaustive of the Service. Two expressions in the definition bring out the idea that the Judicial Service consists of hierarchy of Judicial officers starting from the lowest and ending with District Judges. The expressions ''exclusively'' and ''intended'' emphasise the fact that the judicial service consists only of persons intended to fin up the posts of District Judges and other civil judicial posts and that is the exclusive service of judicial officers
Therefore, it cannot be accepted as contended by the learned Advocate General, that the expression ''District Judge'' as used in the Superior Judicial Service rules has not the same meaning and import as that expression has in Article 233, or that the post held by the Additional District Magistrate (Judicial) is not a civil judicial post or that the service which is referred to in the Superior Judicial Service Rules is not Judicial Service within the meaning of that expression as used in Article 236(b). It is true that the definition of the expression ''District Judge'' as given in Article 255(3) is meant for the purposes of Chapter VI alone. But as already discussed the Superior Judicial Service Rules having been framed in exercise of the power given under Article 309, the expression ''District Judge'' used t herein cannot be anything different to the expression ''District Judge'' as used in Article 233. Likewise, though it is true that the Additional District Magistrate (Judicial) is vested with the power of Additional District Magistrate (Executive) as laid down in the Criminal Procedure Code, but that power is vested in him only for the purpose of promoting him to the higher rank of Additional District Magistrate Judicial; thereby he is not deprived of or taken out from the judicial Service. In other words, even thereafter, the post that is held by him is substantially that of a Subordinate Judge with the additional power of the Additional District Magistrate, as provided in the Criminal Procedure Code, Therefore, neither of the two contentions advanced by the learned Advocate-General can be held to have any substance. The expression ''District Judge'' as used in the Superior Judicial Service Hulls has as already discussed, the same import and meaning as that expression has in Article 233 and as such he too is a member of the judicial service as defined in Article 236(b). Looked at therefore, from this point of view also, there is no escape from the conclusion that if the expression ''District Court'' includes in its scope "District Judge" as held in
(i) That it is not correct to say that the substantive rank of either the Law Secretary or the Legal Remembrancer or of a Deputy Secretary, Law Department, is simply that of a District Judge. Every-one of them is a substantive member of the Superior Judicial Service (Senior Branch) which includes some posts of District Judges and Additional District Judges, and
(ii). That it is not correct to say that opposite parties 1, 5 and 0 are at present District Judges. These and other officers of the Senior Judicial Service are confirmed as members of the superior Judicial Service (Senior Branch) which, as already pointed out, includes therein certain posts of Law Officers besides the posts of District Judges.
39. It is true that the members of the Superior Judicial Service (Junior Branch) are officers holding posts inferior to the post of District Judge and therefore in that way all the members of the Superior Judicial Service are not District Judges; but for that reason it cannot be said that the members of the Superior Judicial Service (Senior Branch) are also not District Judges as provided in Article 233 of the Constitution. As already discussed a person cannot be a member of the Superior Judicial Service (Senior Branch) unless he is a District Judge. Therefore, the moment he is confirmed as a District Judge he automatically becomes a confirmed member of the Superior Judicial Service (Senior Branch). In other words the latter automatically follows from the former. Likewise, once an officer is confirmed as a District Judge his substantive post is that of District Judge and as such he is a substantive member of the Superior Judicial Service (Senior Branch). And this is equally applicable in the case of all the members of the senior branch of the Superior Judicial Service, irrespective of the consideration as to which post in the cadre a District Judge holds. There is therefore, no special charm in the expression ''Superior Judicial Service''. That expression has to be understood within the meaning of what is laid down about it in the Rules. Therefore, so far as the two expression ''District Judge'' and ''member of the Superior Judicial Service (Senior Branch)'' are concerned they are one and the same though it is a different matter that these officers in the course of their career as District Judge may hold from time to time one or the other of the posts which are borne on the cadre. The difference in the nature of these posts does not create any distinction between their incumbents g1ta District Judges.
40. Much of the controversy in this case has been raised due to lack of a clear concept as to cadre. What is cadre? Cadre, in Rule 9(4) of the Fundamental Rules, is said to mean "the strength of a service or a part of a service sanctioned as a separate unit", In substance therefore, quantitatively it is the arithmetical strength of a number of posts which are clubbed together to constitute a specific unit of service. Qualitatively, cadre refers to the kind and nature of the posts which, together go to make up the arithmetical strength. The word ''cadre'' as such has no reference to the incumbents of any of those posts. In other words, the word ''cadre'' provides only the quantitative strength and the qualitative character of the posts which are under the relevant provisions of rules made available to all members of the service wherein that cadre falls. This quantitative strength and qualitative character of the posts necessarily vary from time to time according to the exigencies of the service. In other words, it may either increase or decrease in numerical strength or it may have variation and change in the character of the different posts which together go to constitute that numerical strength. But the effect of the change will be only this much that in the case of the former the number of posts available for that particular service will be varied and in the case of the latter the nature of the work appertaining to the specific posts which are brought on the cadre may be different. Any change therefore, that may be brought about in the cadre either quantitatively or qualitatively will not affect the character and qualification of the members of the Service who are to fill the posts in the cadre. In other words, the variation in the cadre may it be quantitative or qualitative, has nothing to do with the conditions of the entry of the members of that service into any of the posts borne on the cadre, nor with the power of the authority who under the relevant rule or law has to post the members of that service to the different posts borne on the cadre. Read in this light, therefore, what is meant to be provided in Rule 4(2) is firstly the number of posts available in that cadre, which is 15, and secondly, the nature of the posts which together go to constitute that arithmetical number namely, (1) 8 posts of District and Sessions Judges, (2) posts of Additional District and Sessions Judges, (3) the post of Secretary to the Government in the Law Department, (4) the post of Superintendent and Legal Remembrancer, Law Department, (5) the post of Deputy Secretary to Government in the Law Department, (6) the post of Registrar, High Court and (7) the post of Member, Administrative Tribunal. It may be mentioned here that it was only recently that this last post has been encadred in the Superior Judicial Service. Can it be said that though as a result of the en cad ring of this post in the Superior Judicial Service the Administrative Tribunal has to be now presided over by a District Judge, yet as the post has been en cad red therefore, that District Judge has ceased to be under the control of the High Court though be was so prior to his appointment as such? In our opinion, this is a proposition which is sustainable neither on principle nor under any relevant rules. In fact, the position is otherwise. Once any post is included in the cadre of the Superior Judicial Service (Senior Branch) the strength of the cadre is increased; in other words the number of the incumbents in the cadre is increased; and as these incumbents are under the control of the High Court there is an obligation created on the High Court to have the post fined by one of the District Judges. This position however may be different when a post is not a cadre post. In that case the High Court may at the request of the Government agree to spare the services of any of the District Judges for such a post, but that is done not in the discharge of any obligation imposed on the High Court for having that post filled by a District Judge, but in exercise of the discretion which absolutely vests in the High Courts to decide it one way or the other. It has been submitted by the learned Advocate-General that in such a case the power of the High Court over a District Judge whose service is spared for the non-cadre post is for the time being suspended, or put in abeyance. Unfortunately, no authority has been cited before us in support of this proposition, nor any provision has been brought to our notice to define the authority who is to exercise control over such a District Judge during the period of his deputation. And on principle we find it difficult to accept that any power given under the Constitution is ever open to be suspended, or put in abeyance either by agreement or consent, implied or express. Such a notion is repugnant to the very concept of a constitutional power. Therefore, a mere consent on the part of the High Court to spare the service of a District Judge for a non-cadre post cannot result in any deprivation of the control which it has over such a District Judge in all matters including transfer as provided in Article 236, though it is a different matter that as the High Court is a consenting party to the arrangement made for the non-cadre post, the High Court will necessarily in the exercise of that control keep itself fully alive to the exigencies and demands of the post which is allowed to be filled with its own consent by a District Judge and will not be unreasonable in the exercise of the power and the control which it has on the District Judge. In the result, therefore, the fact that the post is a cadre post or non-cadre post makes no difference in the matter of power or control which is vested in the High Court under Article 235 over a District Judge who fills such posts.
The difficulty, if any, in understanding the nature of the cadre of the Superior Judicial Service (Senior Branch) is created by the fact that some of the posts borne on the cadre have the same name as that of the rank of the officers in that cadre, namely, that of District Judge as contra distinguished with the names of the other posts in that cadre, as those of Law Secretary, Legal Remembrancer, Member, Administrative Tribunal, Deputy Secretary, Law Department, etc. Therefore though the description of these officers of the rank of District Judge, either by the name of the rank, namely that of District Judge, or by the name of the service, namely as the member of the Superior Judicial Service (Senior Branch) will be the same, their description by the name of the post may vary as they change one post for the other in the cadre as a result of transfer. This difference however in the description of these officers of the rank of the District Judge by the name of the post which is held by them will not in any way alter the position that all of them have the same rank, namely, that of District Judge and belong to the same service, namely, that of the Superior Judicial Service (Senior Branch)-may they be described by the name of the post or by the name of the rank or by the name of the service.
Now what Article 283 deals with IS the "appointment of persons to be.... District Judges" and not with the post of District Judge, though it is a different matter that those persons are intended to fill the post of District Judge. In other words, Article 233 relates to all the persons who as a class are to hold the rank of District Judges and who as a class under the Superior Judicial Service Rules are to constitute the Senior Branch of the Superior Judicial Service, and does not relate to any specific post which is to be held by them. The same is the position under Article 235 with regard to the expression "District Judge" as contemplated therein by the expression "District Court". As such the nature and content of the power which the Governor has under Article 233 and of the control which the High Court has under Article 235 over the officers of the rank of District Judges has nothing to do with the names of the various posts which are borne on the cadre of the rank of District Judges who constitute the Senior Branch of the Superior Judicial Service. If that is so, which in our opinion is so, the transfer of an officer of the rank of District Judge from one post to the other either within the cadre or without the cadre cannot affect the nature of the power which the Governor has under Article 233, and the High Court has under Article 235 over the officers of the rank of District Judges. In other words, so long as these officers hold the rank of District Judges and as such are members of the Superior Judicial Service (Senior Branch), they are governed by Article 2;3;) in matters specified therein and in all other matters by Article 235 as contemplated therein by the expression "the control over District Courts".
41. This conclusion is also supported by the fact that in the case of all officers of the rank of District Judge-whether they are to hold a post, cadre or non-cadre, or a post of presiding Officer of a Court or a post not connected with any Court-their entry into the Senior Branch of the Superior Judicial Service, at the initial stage-may it be either by direct recruitment or by promotion-is always to be made in two stages as held by the Supreme Court in the case of State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 In the first stage, he will be, on appointment or promotion, posted to a vacancy in the cadre, permanent or temporary, by the Governor under Article 233 of the Constitution. This will be his initial posting. In the the second stage, having been already appointed or promoted and posted to a vacancy in the cadre, he will be posted to a station, or to a place by the High Court, in exercise of its power under Article 235. This will be his posting to his office at the station or place-since when he commences to function as a District Judge. It follows that in the second stage the choice of the station or place for the officer shall be made by the High Court as it is the High Court which alone has power to do it, and that must necessarily be to the one or the other of the posts which are borne on the cadre of the Senior Branch of the Service. There is nothing to be found in Article 235 of the Constitution whereunder this power is exercised by the High Court at the commencement of the career of a District Judge, to suggest that the High Court in the exercise of that power has any limitation imposed on it in, the matter of its decision as to which of the posts borne on the cadre or as to which of the stations or places should be assigned to the District Judge as such. That being so there can be no justification to qualify that power when there is none given in the Article. One may understand that under Article 235 the expression "District Court" does not include the District Judge who is to preside over it, or that the word "control" does not refer to transfer; but once it is found-as has been found by the Supreme Court-that the expression ''District Court'' does include in it the District Judge who presides over that Court and the word "control" covers also the power of transfer, there is no justification left in the absence of any provision to that effect, to draw any distinction thereunder between one District Judge and another in respect of that power of control. It is, therefore, open to the High Court in exercise of that power to post that District Judge to any place or station where there is a post-borne on the cadre of the Senior Branch -available, independent of the consideration whether that post is that of a presiding Judge or a post not connected with any Court, that is, a special post. It is a different matter that in the past w hen the posting in the second stage was also considered to be included in the expression ''posting'' as used in Section 254(1) of the Government of India Act, 1935, it used to be done by the Governor; but now when it is found to be included in the word ''control'' as used in Article 235 it has to be done by the High Court. All the difference that this change in the construction of the word ''posting'' has brought about is that what formerly used to be done by the Governor, is now to be done by the High Court in the matter of posting of a District Judge already appointed or promoted and posted in the cadre, but in either case irrespective of the consideration whether the post to which he is posted is the one of the presiding officer of a Court, or a post which has no relationship with any Court. And if at that stage, on his appointment or promotion to a vacancy in the cadre by the Governor the High Court has power to post the officer in the second stage of the commencement of his career, as a member of the Senior Branch, to any post-either that of a presiding Judge or to one not connected with any Court-there seems to be no valid reason to hold that the High Court is thereafter deprived of that unrestricted power in the matter of transferring him from one place or station to another place or station, at a subsequent stage. The source of power in the High Court in the matter of transfer at all stages is one and only one, namely the expression ''the control over District Courts'' as used in Article 235. That expression therefore as used in that Article cannot have a different content at different stages of the career of a District Judge as such. The contention however made by the learned Advocate-General is that as the power of the High Court in the matter of transfer of a District Judge is derived from the expression ''the control over District Courts'' as used in Article 235, this power must be in relation to those District Judges who are functioning as presiding officers of Courts and not in relation to those District Judges who are not functioning as such or have for the time being no connection of any kind with a Court. It is this plea which, in substance, is averred by the Chief Secretary in his counter and is referred to in the foregoing paragraph 18 as point (b).
42. In support of this contention, the learned Advocate-General has advanced a number of grounds which we shall VOL. XXXIII presently examine, one after another. Suffice it to say here that in our opinion this contention has no substance. It will lead not only to inconvenience, but to a situation unthinkable and absurd. Let us take the case of a District Judge who has been I just appointed or promoted to a vacancy in the cadre by the Governor under Article 233. This is his initial posting as described in the case of State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 and as such he has not yet been stationed at any place nor posted to any defined post borne on the cadre either of a presiding officer of a Court, or a post which is not connected with any Court. But having been posted on his appointment or promotion to a vacancy in the cadre he is qualified for any of the posts in the cadre, including that of the Law Secretary. Suppose exactly at that point of time, the post of Law Secretary falls vacant. Question arises whether he can be at that stage posted to that office of the Law Secretary and if so, by whom-the Governor or the High Court. The fact that he is entitled to that post cannot be disputed as that post is admittedly borne on the cadre of the Superior Judicial Service Senior Branch, and as such open to be filled up by any member of the Superior Judicial Service (Senior Branch). Therefore, the only question that remains to be considered is as to which of the said two authorities has power to station him to that post. The same question may arise also in the case of a District Judge who has been on appointment or promotion posted by the Governor to a vacancy in the cadre under Article 233 and thereafter posted to the post of a presiding officer of a Court by the High Court under Article 235. He is also entitled under the rules, to hold the post of the Law Secretary and as such may be posted to that post of law Secretary. Now this much is clear that the Governor cannot do it under Article 233, for, as observed in the case of State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40
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 the cadre.
Therefore, the result will be that though both these officers are qualified to hold the post of the Law Secretary, none of them can be stationed to that post either by the Governor or by the High Court-not by the Governor for the reason that the power of the Governor in that regard has by that time ceased, and not by the High Court as the post of Law Secretary which is to be filled up is, as contended by the learned Advocate General a post not connected with any Court. The result will be that the post of Law Secretary notwithstanding the fact that some of the member of the Superior Judicial Service entitled to hold the post are available for it, will remain vacant perhaps-may be for ever, unless the rules of the Superior Judicial Service are amended and thereby the post of the Law Secretary is taken out of the cadre of the senior branch of that Service. In our opinion, a construction leading to such an absurd and unthinkable situation, could not have been intended by the framers of the Constitution and as such cannot be accepted.
43. An attempt has been made to suggest that on behalf of the Government that though the Governor has no power under Article 233 of the Constitution to station any of Such District Judges to the post of the Law Secretary, he may notwithstanding the fact that they are District Judges, appoint any of them to the post of the Law Secretary in _exercise of the power which he has as the executive head of the State under Article 154 read with Article 162, and the Rules of Business made under Article 166 of the Constitution. I must confess that I have not been able to follow this part of the contention raised in support of the stand taken by Government. Two word ''Governor'' as used either in Article 233 or Article 154, undisputedly refers to the same person as provided in Article 153. Therefore, if the dower of the Governor under Article 233 has ceased over these officers after their being appointed or promoted and posted in the cadre that cannot be thereafter again made to revive under Article 151 for the same purpose namely, to empower him to appoint any of these District Judges to the post of the Law Secretary. If such a contention were to succeed, that would have necessarily meant what the Governor cannot do directly under Article 233 can be got done by him indirectly under Article 154-A proposition contrary to the very basic concept of constitutional law. Therefore it has to be rejected vide K.C.G. Narayan Deo v. State of Orissa 20 C.L.T.I (S.C.). Further though it is true that the carrying out of the administration of the laws enacted by the State Legislature is the primary function of the Government on the executive side, but the exercise of such a power is not unlimited or unqualified. It is always subject to the conditions: (i) that it is not in relation to an act assigned by the Constitution to any other authority or body, (ii) that it is not contrary to any law or any provision of the Constitution, and (iii) that it does not encroach upon or otherwise infringe the legal right of an individual. As such the matter of control over District Courts and District Judges having been specially provide in Article 235 of Chapter VI, Part VI of the Constitution, that cannot be any more thereafter the subject of exercise of such a power by the Government. Once therefore the power of the Governor over such District Judges has ceased under Article 2;) 3, it has ceased for ever and in normal conditions under all the Articles of the Constitution; and it is more so in view of the fact that the provisions made in Chapter VI, Part VI, are special provisions made exclusively for the control over members of the subordinate Courts. Secondly, none of the aforesaid Articles relied upon on behalf of the Government has any bearing on the construction of the word ''control'' as used in Article 235, or any relation to the conditions of service of a civil servant. Lastly, any exercise of power by the Governor as an executive head of the State under Article 154 over such District Judges may it be in any form or manner-is contrary to the very purpose for which these special provisions have been separately made in Chapter VI, Part VI of the Constitution, namely, to provide a judiciary completely independent of the control of the executive. Alternatively, it has also been suggested that even if such a deadlock happens because of the absence of power both in the Governor and t he High Court for appointing any of such two District Judges to the office of the Law Secretary, that can be solved by agreement. Perhaps this concept of agreement has been borrowed from Article 233 of the Constitution. We may recall here that till before the decision of the Supreme Court given in the case of State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 it was taken for granted at least in this High Court that the power of stationing a District Judge to a defined post after his initial posting by the Governor to a vacancy in the cadre was included in the word ''posting'' as used in Article 233; as such it was the Governor who could order the transfer of District Judges though in consultation with the High Court; and at that time the controversy between the High Court and the Government was confined to the import and implication of the expression ''in consultation with the High Court''; in other words, it was not then claimed that the expression ''in consultation with the High Court'' related only to the District Judges presiding over Courts and not to those District Judges who were holding any special post or post not connected with any Court. But as recently, by the decision of the Supreme Court in the case of State of Assam v. Rana Muhammad such a transfer has been taken out completely from the content of the word ''posting'' as used in Article 233 and has been imported in the word ''control'' as used in Article 235, a new stand has been taken namely that though in the matter of transfer the word ''control'' as used in Article 235 governs and regulates the District Judges presiding over Courts, the rest of the District Judges who do not hold any post connected with a Court are not governed and controlled by Article 233 as they used to be before. In our opinion such a reading of the decision of the Supreme Court in the case of State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 , is contrary not only to all canons of construction-may they relate to a statute or any legislative act or a judgment. Therefore if the word ''control'' as used in Article 2:15 includes therein-as we think it does-the case of all District Judges, independent of the consideration whether the posts held by them are those of presiding officers or are posts not connected with Courts, the question of consultation has no bearing on the exercise of the power under Article 235 in relation to any of them. Despite that, however, it seems that in order to retain the old position as it stood before the decision in the case of State of Assam v. Rana Muhmmad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966- 1967 SLR 40 in regard to those District Judges who are for the time being connected with Government by holding special posts, there is now a new stand taken by the Government that though the word ''control'' includes the power of control in respect of District Judges presiding over Courts, it has no application to the District Judges who hold posts not connected with Courts, and in the latter class of District Judges their posting to and from a special post can be effected only by agreement or what may be called by some sort of consultation between the Government and the High Court, and indeed their posting to and from one special post to another special post can be effected absolutely by the Government, and in that case even consultation between the Government and the High Court is not necessary. In our opinion, this is not a correct reading or construction either of Article 235 or of the judgment given in the case of State of Assam v. Rana Muhmmad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 . Once, as already stated, the power of the Governor as provided in Article 233 ceases over a District Judge already appointed or promoted and posted in the cadre by him, there is no scope left thereafter for the Government to claim as a matter of right any consultation with them by the High Court. Thus, in a situation like this there are only two alternatives left: (1) either to construe the expression ''the control over District Courts'' as used in Article 235, is such a way as to cover the cases of all District, Judges in the matter of their transfer irrespective of the consideration whether they are for the time being holding the post of a presiding officer of a Court or a post which is not connected with any Court, or (2) by excluding the case of the latter class of District Judge and thereby allow the situation to drift to a crisis as already explained above. In our opinion, the very fact that a construction as canvassed by the learned Advocate-General appearing for the State may lead to a crisis in the matter of transfer of those District Judges who are either holding a post of presiding officer of a Court or not yet holding any defined post-to a special post like that of the Law Secretary, is by itself an inherent proof of the unsoundness of the construction propounded by the learned Advocate-General. But that is not an. After an transfer is a two-way traffic. The illustration which we have just given relate''s only to the transfer of a District Judge who is to be sent to a special post. The return journey of the District Judge from the special post will also not be free from difficulty if the construction given by Government is accepted. For, if that construction is true, it will be open to Government to retain a District Judge once he is comfortably placed in any berth of the special posts to retain him there for any" indefinite period-may be even till the end of his Service career, either by retaining him in anyone special post for ever, or by transferring him from one to the other. In that case, one of the two contingencies may arise: (1) that he will cease to be a District Judge, or (2) that he continues to be a District Judge. If he ceases to be a District Judge he will not cease only a s a District Judge, but necessarily also as a member of the Senior Branch of the Superior Judicial Service as is self-evident from the Rules of the Superior Judicial Service. Therefore, in that case his position will be very anomalous, for unless a fresh appointment is given to him in some Service or other, he will be left hanging in the air without any Service, and during the period preceding his fresh appointment, there will be no rule available to govern his promotion, position, etc. In our opinion, this is another absurd and unthinkable situation which the construction given by the Government of the word ''control'' will lead to. Rightly, therefore, the learned Advocate-General fair as he always is in his submissions-conceded that a District Judge holding any special post needs no fresh appointment on his return, as set up in the counter affidavit filed by the Chief Secretary. But if that is so namely that on reversion from the special post he will need no fresh appointment, and will have his lien on the post of District Judge which he held when he left for the special post, it necessarily implies that during the period the District Judge holds that post be, as before, continues'' to be a District Judge and does not cease to be a District Judge as claimed by the Chief Secretary in his counter; and if he continues to be a District Judge during the period during which he holds the special post, the concept of any control by the Governor over him is not consistent either with the independence of the judiciary as specially provided in the Constitution'', in its Chapter VI, Part VI, or with the concept of complete control of the High Court over subordinate Courts as held by the Supreme Court in the case of
44. It has however been contended by the learned Advocate-General that the language or text of the provision made in Article 235 does not give support to such a construction and in any case it is not consistent with what is laid down in Section 6 of the Bengal, Agra, and Assam Civil Courts Act, 1887, and Section 9(1) of the Criminal Procedure Code.
45. The second part of this contention is comparatively not much complicated; therefore it may be disposed'' of first. Section 6 of the Bengal, Agra and Assam Civil Courts Act, 1887 provides that on the happening of certain events as stated therein "the State Government, or, as the case may be, the High Court, may fill up the vacancy or appoint the Additional District Judges or Subordinate Judges". Section 9(1) of the Code of Criminal Procedure reads that "The State Government shall establish a Court of session for every sessions division, and appoint a Judge of such Court". In our opinion, it is not necessary for the purpose of this case to find out the true import and ambit of the words "appoint" and ''fill up'' as used in these sections; this part of the contention may be disposed of on the simple ground that if they are inconsistent with the provisions of the Constitution as laid down in Article 235, they have to be struck down as ultra vires, and to this extent the learned Advocate-General also concedes. Therefore, if the power of transfer of all the District Judges is vested in the High Court by virtue of the provision made in Article 235, as we think it is, these provisions cannot stand in the way of the exercise if that power which the High Court has thereunder. Therefore, this by itself is sufficient to reject the contention advanced by the learned Advocate-General on the basis of the aforesaid two sections.
46. Then comes the first part of his contention. In support of the first part of that contention reliance has been placed on the expression "District Courts" and the phrase "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" as used in Article 235. It is true that the two expressions "District Court" and "District Judge" are prima facie not the same. Therefore our attention has been drawn to the following well established principle of law as laid down in the case of Hill v. William Hill (Park Lane) Ltd. 1949 App. Cases 530., that-
prima facie every word in an Act, of Parliament must be given an effective meaning of its own. Whether or not the Legislature in any given case has condescended to tautology is a question the answer to which depends upon the language used, but in the absence of an appropriate context one statutory provision which is expressed in entirely different language from another, whether in the same or in a different section is not to be interpreted as repetitive or unnecessary.
And on the basis of this principle the learned'' Advocate-General has contended that as the two expressions "District Court" and "District Judge" are different and have been used in the'' two Articles 233 and 235 in different context, they should not be given the same meaning. As an abstract proposition of law there can be no two opinions about its correctness, but in our opinion it has no application to the facts of the present case. Mr. Patnaik who appears for the Petitioners and has argued their case elaborately and ably, does not contend, nor has it been so laid down by the Supreme Court, that the expression "District Court" has the same meaning as the expression "District Judge". On the contrary, all that has been contended by Mr. Patnaik is that the expression "District Court" refers to the institution of Court as a whole and therefore all the different constituents or elements which go to constitute the institution known as "District Court" are included therein. A District Judge as a presiding officer of the District Court is undisputedly one of such constituents of that institution and therefore it is contended that a District Judge who is to preside over a District Court is also included in the expression "District Court". In our opinion, this contention is wen founded as is clear also from the observation made by their Lordships in the case of West Bengal v. Nripendranath Bagchi2, to the effect "that the word ''Court'' is used compendiously to denote not only the Court proper but also the presiding Judge". Therefore it is in this sense that the expression (''the control over District Courts" has been construed, to include in itself the control over "District Judges. It may be that in a given context the expression "District Court" may be narrower in scope than the expression "District Judge" or under a particular system of law or statute the word "Court" may not include a Judge at Chambers as laid down in Baker v. Oakes (1876) 2 Q.B.D. 171., but where, as here, the District Court is construed to mean as one unit having different constituents, one of them being the District Judge, those constructions will be of no avail for their application here. Looked at therefore from that point of view, the expression "District Court" as used in Article 235 is clearly wider than the expression "District Judge" as the District Judge is only one of the constituents which, together with other constituents, constitutes a District Court. Thus despite the fact that the expression "District Judge" is not specifically used in Article 235, if that expression is to be deemed to have been included in the expression "District Court", as has been held by the Supreme Court, there is no difficulty left in holding that the expression "the control over District Courts" as used in Article 235 bas to be read as "the control over District Courts and, District Judges". As such any construction of Article 235 on the basis of such an implied meaning of the expression "the control over District Courts" cannot be attacked on the ground that it is any way hit by the rule of construction as laid down in the aforesaid case of Hill v. William Hill (Park Lane) Ltd. 1949 App. Cases 530.. The controversy however raised in this connection does not end here. There is a further argument advanced by the learned Advocate-General that even if it be accepted that the expression "District Judge" is impliedly included in the expression "District Court" such a "District Judge" cannot have the same meaning and import as that expression has in Article 233. In other words, the submission made by the learned Advocate-General is that in that case the expression "District Judge" as contemplated in Article 235 cannot be construed as one who has no connection with any District Court. Therefore it will necessarily mean only those District Judges who are connected with District Courts or are for the time being presiding over District Courts as District Judges and not those District Judges who are not any part of a Court or are not for the time being presiding over a Court. In other words, the submission made by the learned Advocate-General is that though the scheme as laid down in Chapter VI, Part VI is one for the establishment of the entire subordinate Courts as a whole, the expression "District Judge" as expressly used in Article 233 and impliedly used in Article 235 does not bear the same meaning. It has been argued that the expression "District Judge" as impliedly used in Article 235 is only a specie of the bigger genus of District Judges as expressly provided in Article 233. In other words it is contended that the expression "District Judge" as used in Article 233 refers to the entire class of District Judges while the expression "District Judge" as impliedly used in Article 235 refers only to a section of it, namely, those who are connected with Court or are for the time being presiding over a court. We have already elaborately discussed as to how in the case of such a construction the entire scheme of Chapter VI, Part VI will be reduced to absurdity and incongruity. Here therefore it will suffice to say that such a construction is wholly repugnant not only to the constitutional scheme as is provided in Chapter VI, Part VI and to the definition of the expression "District Judge" as provided in Article 236(a) which is applicable to the entire Chapter VI as a whole, but also to the provisions made in the Superior Judicial Service Rules. If in fact there had been two classes of District Judges there should have been two independent rules provided for each of these two classes separately. But the fact is that all the District Judges appointed under Article 233 and designated as such as the members of the Superior Judicial Service (Senior Branch) are governed and controlled by one common rules of service as laid down in the Superior Judicial Service Rules. Further the definition of the expression "District Judge" as provided in Article 236(a) also proceeds on the assumption that there is only one class of District Judges and not two and it is only in that sense that that expression is made applicable to the entire Chapter VI of Part VI. Therefore, once it is held that the expression "District Judge" is impliedly included in the expression "District Court" it necessarily follows from the definition given in Article 236(a) that it had the same meaning and import in Article 235 as that expression has in Article 233. This is so is also evident from the observations made by the Supreme Court in the aforesaid three cases. In the case of Chandra Mohan v. State of U.P.A.I.R. 1966 S.C. 1987, the observation made is:
Having defined ''Judicial Service'' in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a District Judge
In this observation, the word ''control'' as has been referred to is not used in relation to any section or class of District Judges or any section or class of Judicial Service but in relation to the entire Judicial Service as a whole, which includes all the District Judges. Therefore, the word ''control'' as used in Article 235 cannot be construed to mean control only over those District Judges who are connected with a Court or who for the time being preside over a Court, leaving other District Judges who are not part of a Court or who do not for the time being preside over a Court, out of that control. Likewise, in the case of
In the case of District Judges, appointments 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 Bibb Court
Here as well, the word ''control'' has been construed in the sense of control over all District Judges without making any distinction inter se between them. Then again the same is the view taken in the case of the State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 , Therein it is laid down 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 letter is obviously a matter of control of District Judges which is vested in the High Court
Therefore, in this observation, too the expression "control of District Judges" has been used without any limitation or qualification. No doubt this much is true that the specific controversy that has been now raised before us was not the subject-matter of consideration in any of these three cases, but the discussion as made therein all irresistibly lead to the conclusion that the concept of control as laid down in Article 235 has always been construed to mean a control over all the members of the Judicial Service as a whole. Therefore, it must necessarily mean a control over all District Judges. Mr. Mitter appearing for the Registrar has rightly pointed out in his clearly analysed and helpful argument that once a person is appointed to be a District Judge under Article 233 of the Constitution, he automatically becomes a member of the Judicial Service within the meaning of a person intended to fill the post of District Judge. Therefore in order that a person may be a member of the Judicial Service as a District Judge it is not necessary for him that he should be actually functioning as such, namely, either as (1) Judge of a City Civil Court (2) Additional District Judge (3) Joint District Judge, (4) Assistant District Judge, (5) Chief Judge of a ;Small Cause Court, (6) Chief Presidency Magistrate, (7) Additional Chief Presidency Magistrate, (8):Sessions Judge, (9) Additional Sessions Judge, and (10) Assist an t Sessions Judge, as referred to in the definition of the expression "District Judge" in Article 236(a) ; on the contrary it is said that by virtue of his very appointment as District Judge under Article 233, he is entitled to hold any of these posts. Therefore, in our opinion, the use of the expression "District Court" in Article 235 cannot lead to the conclusion that the expression "District Judge" implied thereby means only a District Judge who is actually functioning as a Judge and not that District Judge who, though entitled to hold any of those posts by virtue of his appointment under Article 233, is not for the time being functioning as a Judge.
47. Lastly it has to be noted that from the point of view of the incumbents of the posts, the provisions made in Article 235 as to the control over District Judges (as) implied by the expression "the control over District Courts" is nothing but one of the conditions of their Service as laid down by the Constitution itself leaving the rest to be added by the Governor in exercise of its power under Article 309. Therefore as a condition of service the control under Article 235 has to be a common rule for all the members of the Judicial Service and applicable equally to all the officers who belong to that Service without any distinction or variation. In other words, it cannot change from class to class or rank to rank, and much less from place to place or from post to post. It is therefore obvious that the control being a common condition of Service for all the members of the Judicial Service is independent of the post or the place that a member of the Judicial Service may bold. Judged thus from any point of view it cannot be accepted that the expression "District Judge" as implied in the expression "District Court" of Article 235 means only those District Judges who are connected with Court or for the time being preside over a Court and not other District Judges who for the time being are not connected with a Court or do not preside over a Court.
48. The other branch of the submission made by the learned Advocate-General in support of his aforesaid view is founded on the construction of the phrase "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" as used in Article 235. In our opinion, any construction of this phrase-whether it be this or that-can have and has no bearing or impact on the import and the amplitude of the power that is vested in the High Court by the expression "the control over District Courts and Courts subordinate thereto" under Article 235. We know that this provision is not any new provision or imported for the first time in Article 235. It was already there in the corresponding section of the Government of India Act, namely, Section 255(3). Therein this provision was worded as "the posting and promotion of, and the grant of leave to, persons belonging to the Subordinate Civil Judicial Service of a province and holding any post inferior to the post of District Judge". So barring the nominal variations which had to be made therein in the light of the special features of the Constitution, the whole of that proposition word to word has been bodily imported in Article 235. That being so, this whole expression has to be as a rule construed to have the same meaning and import as it had in Section 255(3) unless the context otherwise demands for which in this case there is no indication. Therefore in order to have its full import and implication we have to go back to Section 255(3) of the Government of India Act, 1935. In that section as we all know this expression was meant to convey and define the extent of the control which was by then vested in the High Court over the subordinate Civil Judicial Service. This control, as already discussed, was a limited control and thereafter it was this limited control of the High Court over the Judicial Service which under the Constitution was made complete control by providing special scheme in its Chapter VI, Part VI with a view to secure the complete independence of judiciary. One of the main features of this special scheme is the addition of the expression "the control over the District Courts and Courts subordinate thereto". Therefore if the very purpose of using the expression "the control over District Courts and Courts subordinate thereto" in Article 235 was, as the historical background shows to extend the limited control of Section 255(3) into a complete control the expression used in Section 255(3) to define that limited control, namely, the expressions "the posting and promotion of, and the grant of leave to, persons belonging to the Subordinate Civil Judicial Service of a province and holding any post inferior to the post of District Judge", can be no criteria either of measuring the amplitude or import or of construing the true meaning of the expression "the control over District Courts and Courts subordinate thereto" which has now been used for the first time in Article 235 in order to convey thereby the idea of fun control. As a matter of fact, the limited control which was vested in the High Court by the use of the aforesaid expression in Section 255(3) of the Government of India Act, 1935, is now not only included within the expression "the control over Courts subordinate thereto" as used in Article 235, but stands very much enlarged and extended thereunder. Therefore though that old expression of Section 255(3) is still in form present in Article 255(3), but in effect it is only a repetition of what is already included in the wider expression of Article 235, namely, "the control over.... Courts subordinate thereto". In that view of the matter, the retention of the former old expression in Article 235 is nothing but a surplusage or a case of tautology. This is so is also evident from the use of the word ''including'' along with that expression. In that case, however, it may be argued and not without force that if it was so there was no necessity of retaining it now in Article 235. In our opinion if it had been deleted as it could have been, that would have made no difference in the matter of the scope and ambit of the complete control that is now provided in Article 235 by the expression "the control over District Courts and Courts subordinate thereto", But perhaps the framers of the Constitution in their wisdom thought that in order to avoid all future complication the better course to follow was to leave it as it was in Section 255(3); otherwise if deleted that may have reopened many of the old controversies which were by then already settled in the light of that expression as made in the Government of India Act, 1935. It seems therefore that it was only by way of abundant caution that it was not deleted, instead bodily incorporated in Article 235 though in the context of this Article it had now no purpose left to serve. As such this expression of narrower and limited control can be no aid to construe the ambit and scope of the wider and complete control which is now vested in the High Court by the new provision made in Article 235. In that view of the matter it is not necessary to give any further consideration to the submission that has been made before us on the footing of this expression "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 Judges. As already observed, the expression "the control over District Courts and Courts subordinate thereto" as used in Article 235 is by itself full, complete and self-contained in the sense that all the matters relating to the District Courts and Courts subordinate thereto including all the matters relating to the District Judges and Judges subordinate to them, or in other words relating to all the members of the Judicial Service, now fall within the exclusive jurisdiction of the High Court - barring of course those matters which are specifically provided in Articles 233 and 234 as falling within the jurisdiction of the Governor or those which are referred to in the last limb of Article 235, namely, the right of appeal which a member of Judicial Service may have under the law regulating his condition of service and the right to the way in which a member of Judicial Service has to be dealt with thereunder. It is however to be noted that the limitation which is imposed under the last limb of Article 235 is a limitation imposed not on the power which is vested in the High Court by the expression "the control over District Courts and Courts subordinate thereto", but is a limitation imposed on the exercise of that power, or, in other words, on the way in which that power is to be exercised. And as the law regulating the condition of service has to be made in terms of Article 309 and as the power laid thereunder is subject to the provisions of the Constitution, it necessarily imports into the conditions of service also what is provided in Articles 310 and 311. For these reasons, we have no hesitation to hold that neither the contention of the learned Advocate-General nor the claim made in the counters filed by opposite parties Nos. 1, 2, is, 4, 5 and 6-Sri P.C. De, Shri V. Natarajan, The Chief Secretary to the Government of Orissa, The State of Orissa, Shri B.K. Patro and Shri K.K. Bose respectively-to the effect, that the impugned orders passed by the High Court are invalid or illegal or are not covered by the power vested in the High Court under Article 235 has any substance. Necessarily therefore two conclusions follow-(A) that all the three members of the Superior Judicial Service involved in the impugned orders of transfer, namely, (1) Sri P.C. De, (2) Shri K.K. Bose, and (3) Shri B.K. Patro have ceased to have any valid jurisdiction over the offices formerly held by them, namely, those of (1) Member, Sales Tax Tribunal, (2) Superintendent and Legal Remembrancer and ex-officio Additional Secretary in the Law Department, and (3) Secretary, Law Department, with effect from 19-10-66, 19-10-66 and 1-11-66 respectively, on which dates thereunder they were to make over charge of those offices and to join thereafter as soon as possible the new posts assigned to them. In other words, since the aforesaid dates these three members of the Superior Judicial Service have been in the eye of law functioning in their former posts without any legal sanction or authority; and (B) that these officers, namely, (1) Sri P.C. De, (2) Sri K.K. Bose, and (3) Sri B.K. Patro, as also opposite parties Nos. 2,3 and 4, namely Sri V. Natarajan, (2) The Chief Secretary to the Government of Orissa and The State of Orissa have all failed in the discharge of their duties assigned to them under the Constitution to comply with the aforesaid orders of transfer passed by the High Court and to give effect to them which in law they were bound to do.
49. It is unfortunate that as a result of the refusal and failure on the part of the three officers concerned, namely, (1) Sri P.C. De, (2) Shri K. K Bose, and (3) Shri B.K. Patro, and on the part of opposite parties Nos. 2, 3 and 4, namely, (1) Shri V. Natarajan. (2) The Chief Secretary to the Government of Orissa, and (3) The State of Orissa, to give effect to the aforesaid orders of transfer passed by the High Court, the three composite judgeships of this State, or in other words, the six executive Districts which in all cover about half of its area, have been left for about the last four months without any District Judge. The result is that in the absence of District Judges in these judgeships during this long period of about four months the litigant public of those Districts have been as rightly claimed by the responsible and public spirited Petitioners not only deprived of the benefits of the District Courts which under the Constitution they had the right to have but have been put to great hardship and immeasurable inconvenience. It is therefore of the utmost importance that these officers should now at once comply with the aforesaid orders of transfer passed by this High Court without any further delay.
50. Before however we part with these cases it is necessary to add a few words about the uncalled for insinuation which the Government has thought it proper in these cases to make against the High Court in the counter filed on its behalf by Shri Barren and more particularly those in the latter half of its paragraph 2 (in O.J.C. No. 495 of 1966), This part of paragraph 2 can be conveniently subdivided into three parts. Under the first part the High Court has been held responsible for the unfortunate situation which has been brought about in the Districts concerned by directing the District Judges to hand over charge immediately and to leave the Courts without presiding officers, and asking the law officers to hand over charge when the whole question of power of the High Court to transfer them was in issue. The second part suggests that until the High Court had its power and jurisdiction in the matter of transfer established perhaps in a Court of law, it should not have exercised that power or jurisdiction. In the last part there is a plea of justification taken that because the High Court exercised that power and jurisdiction without waiting for any decision over the conflict. Government had no option but to District the Law Secretary, the Superintendent and Legal Remembrancer, and the Member, Sales Tax Tribunal not to hand over charge. We cannot help observing that the whole of this part of the averment made in the counter filed on behalf of the State betrays a complete ignorance and misconceived notion of the provisions laid down in the Constitution for the functioning of the different organs of the State and is dominantly saturated by the concept of power. Such an averment is not consistent either with the dignity of the State which under the Constitution it is to have or with the responsibility which a democratic set-up owes to the people in the matter of administration of justice in the State. Even if the Government were of the view that 18 months were not sufficient for them to come to a correct decision or to comply with the repeated request of the Court made in this regard or that the Government bad a bona fide belief that the view taken by the High Court was wrong, the proper course for the Government to follow was first to give effect to the orders of transfer passed by the High Court and thereafter to get the matter tested in a Court of law if they so liked, and not to disregard them. Worse still was the decision taken by the Government to direct the judicial officers concerned not to hand over charge of their special posts. The stand taken by the Government seems to suggest that unless they are satisfied as to the validity of any order passed by the High Court on the administrative side it is always open to them to so move in the matter as to coerce the Court either to recall its orders or to make it run to a Court for its enforcement leaving in the meantime all matters connected therewith in a state of complete suspense. Such a view, if followed to its logical conclusion, may in the end lead to the very negation of any purposeful existence of the High Court-a state of affairs which one shudders even to think. Rightly therefore it has been observed if I may say so with all respect, by their Lordships of the Privy Council in the case of Eastern Trust Company v. McKenzie Mann and Co. Ltd. (1915) App Cases 750., that,
It is the duty of the Crown and of every branch of the Executive to abide by and obey the law. If there is any difficulty in ascertaining it the Courts are open to the Crown to sue, and it is the duty of the Executive in cases of doubt to ascertain the law, in order to obey it, not be disregard it.
Government perhaps may after sometime realise that it was the aforesaid wrong line of thinking on their part which gave encouragement even to the'' members of the Superior Judicial Service concerned to circumvent the orders passed by the High Court on some plea or other and to allow themselves to be influenced by the considerations which under the Constitution IS made a forbidden fruit for the members of the Judicial Service. By the refusal on their part to carry out the orders of the High Court they have not only put the reputation of the entire Judicial Service to ridicule but have also made their own utility as members of the judicial service open to doubt. We hope such a situation will not be allowed to recur again hereafter.
51. For these reasons, therefore, the applications are allowed and the rule nisi passed in them is made absolute. Let a writ of mandamus be issued (A) Commanding (1) The State of Orissa through Chief Secretary to the Government, (2) The Chief Secretary to the Government of Orissa, (3) Sri V. Natarajan, I.A.S., Secretary to the Government of Orissa in the Home Department, (4) Shri P.C. De, (5) Sri K.K. Bose, and (15) Shri B.K. Patro to forthwith implement the orders of transfers passed by the High Court under notification Nos. 196A, 197A, 198A, 199A, 200A and 201A all dated Cuttack the 10th October, 1966 in respect of the officers named therein without any further delay,
(B) Commanding (1) Shri P.C. De, (2) Shri K.K. Bose, and (3) Shri B.K. Patro to carry out forthwith the orders of transfer passed by the High Court in respect of them under the notifications Nos. 201A, 199A and 197A respectively dated 10-10-1966 and to forthwith join their posts as District Judges of (1) Bolangir-Kalahandi, (2) Mayurbhanj-Keonjhar, and (3) Ganjam-Boudh respectively without any further delay,
(C) Commanding (1) The State of Orissa through the ''Chief Secretary to the Government, (2) The Chief Secretary to the Government of Orissa, (3) Shri v. Natarajan, LA S., Secretary to the Government of Orissa in Home Department, to relieve forthwith, (1) Shri P.C. De, (2) Shri K.K. Bose, and (3) Shri B.K. Patro, from the posts of (1) Member, Sales Tax Tribunal, (2) Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government, Law Department, and (3) Secretary to the Government,, Law Department, respectively, and to allow forthwith (1) Shri K.B. Panda, (2) Shri T. Misra, and (3) Shri P.K. Mohanty, to join their posts as: (1) Secretary to the Government, Law Department, (2) Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government, Law Department, and (3) Deputy Secretary to the Government, Law Department.
52. Further we direct that a direction be made in the nature of quo warranto holding that (1) Shri P.C. De, (2) Shri K K. Bose and (3) Shri B.K. Patro ceased to have any legal authority or sanction of law to validity hold the posts of (1) Member, Sales Tax Tribunal, (2) Superintendent and Legal Remembrancer and ex-officio Additional Secretary, Law Department, and (3) Secretary, Law Department, since 19-10-1966, 19-10-1966 and 1-11-1966 respectively, and they are restrained from exercising the function of those offices.
53. The Petitioners in each of the petitions will be entitled to costs. The costs shall be payable by the State Government alone. Hearing fee Rs 200/ - (two hundred) in each petition.
Barman, J.-These six writ petitions involve the determination of the short-but not simple-question of the limit or extent of the control of the High Court over District Courts under Article 235 of the Constitution and, in that context, the point, of conflict of powers of the High Court and the Governor or the State Government under the Constitution. The controversy arises out of the Orissa High Court notification dated October 10, 1966 issued by the Registrar of the High Court by which the High Court purported to transfer three officers holding posts directly under the State Government, namely,
(1) Shri B.K. Patro, Secretary to the Government of Orissa, Law Department;
(2) Shri K.K. Bose, Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government of Orissa, Law Department and
(3) Shri P.C. De, Member, Sales Tax Tribunal, each as a District and Sessions Judge respectively in the Judgeship and sessions Division of Ganjam. Boudh with headquarters at Berhampur of Mayurbhanj Keonjhar with headquarters at Baripada and of Balangir-Kalahandi with headquarters at Balangir; by the very same notification, the High Court also purported to fill up simultaneously the posts of Law Secretary and Legal Remembrancer by transferring
(1) Shri K.B. Panda, then working in connexion with the Commission of Enquiry, Students'' Agitation (appointed by the State Government), as Secretary to the Government of Orissa, Law Department, Bhubaneswar ; and
(2) Shri T. Misra, District and Sessions Judge, Ganjam-Boudh as Superintendent and Legal Remembrancer and ex-officio Additional Secretary to the Government of Orissa, Law Department, Bhubaneswar the High Court by the same notification also purported to transfer
Shri P.K. Mohanty, District and Sessions Judge, Bolangir-Kalahandi, Bolangir as Deputy Secretary to the Government of Orissa, Law Department, Bhubaneswar all these changes-transfers, from and to posts at various stations, of the officers, including the said officers of the Government in appropriate Government Department-were evidently made by the High Court forthright neither with the concurrence of nor in immediate prior consultation with nor even on immediate prior intimation to the Governor or the State Government about the impending changes by transfer, as ordered by the High Court in the said notification.
55. For appreciation of the tenor, nature and legal implications of the High Court notification in question, the portion of the same, so far as relevant for the present purpose, are set out below;:
ORISSA HIGH COURT,
Cuttack.
NOTIFICATION
Dated Cuttack, the 10th October, 1966 No. 196/A.-Sri K.B. Panda, now working in connexion with the Commission of enquiry, Students Agitation is transferred as Secretary to Government of Orissa, Law Department Bhubaneswar. No. 197/A.-Sri B.K. Patra, Secretary to Government of Orissa, Law Department, is transferred as District and Sessions Judge in the Judgeship and Sessions Division of Ganjam-Boudh, with headquarters at Berhampur. No. 198/A.-Sri T. Misra, District and Sessions Judge, Ganjam-Boudh, is transferred as Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government of Orissa, Law Department, Bhubaneswar.
No. 199/A.-Sri K.K. Bose, Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government of Orissa, Law Department, is transferred as District and Sessions Judge, in the Judgeship and Sessions Division of Mayurbhanj-Keonjhar with headquarters at Baripada. VOL. XXXIII No. 200/A.-Sri P.K. Mohanty, District and Sessions Judge, Bolangir-Kalahandi, is Bolangir is transferred as Deputy Secretary to Government of Orissa, Law Department Bhubaneswar.
No. 201/A.-Sri P.C. De, Member, Sales-Tax Tribunal is transferred as District and Sessions Judge in the Judgeship and Sessions Division of Bolangir-Kalahandi with headquarters at Bolangir. By order of the High Court,
Sd. A. Misra,
Registrar.
Memo No....
Dated Cuttack, the 10th October, 1966.
(1) Copy forwarded to Sri B.K. Panda for information and necessary action.
He is requested to make over charge of his present post in the afternoon of 31-10-1966 and join as Secretary to Government of Orissa, Law Department, as soon as possible.
Sd. A. Misra,
Registrar, Orissa High Court.
Memo No....
Dated Cuttack, the 10th October, 1966.
(2) Copy forwarded to Sri T. Misra, District and Sessions Judege, Ganjam-Boudh, Berhampur for information and necessary action.
He is requested to make over charge of his present post in the forenoon of 1-11-1966 and join as Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government of Orissa, Law Department, as soon as possible.
Sd. A. Misra, Registrar,
Orissa High Court
Memo No. ....
Dated Cuttack, the 10th October, 1966.
Copy forwarded to Sri P.K. Mohanti, District and Sessions Judge, Bolangir-Kalahandi for information and necessary action. He is requested to make over charge to his successor on his joining there and join as Deputy Secretary to Government of Orissa, Law Department, Bhubaneswar, as soon as possible.
Sd. A. Misra, Registrar,
Orissa High Court.
Memo No....
Dated Cuttack, the 10th October, 1966.
Copy forwarded to Sri B.K. Patra, Secretary to Government of Orissa, Law Department, for information and necessary action.
He is requested to make over charge of his present post in the forenoon of 1st November, 1966 and join as District and Sessions Judge at Berhampur, as soon as possible.
Sd. A. Misra, Registrar,
Orissa High Court.
Memo No....
Dated Cuttack, the 10th October, 1966.
Copy forwarded to Sri P.C. De, Member, Sales-Tax
Tribunal for information and necessary action.
He is requested to make over charge of his present post in the afternoon of 19-10-1966 and join as District and Sessions Judge, Bolangir in the forenoon of 00.10.1966.
Sd. A. Misra, Registrar,
Orissa High Court.
Memo No....
Dated Cuttack, the 10th October, 1966.
Copy forwarded to Sri K.K. Bose, Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government of Orissa, Law Department, Bhubaneswar, for information and necessary action. He is requested to make over charge of, his per sent post in the afternoon of 19.10.1966 and join as District Judge, Mayurbhanj-Keonjhar at Baripada, as soon as possible.
Sd. A. Misra,
Registrate,
Orissa High Court.
Memo No....
Dated Cuttack, the 10th October, 1966
Copy forwarded to the Secretary, Government of Orissa, Home Department/Law Department/Finance Department/ Accountant General, Orissa/District Judge, Ganjam-Boudh, Berhampur/District Judge, Mayurbhanj Keonjhar, Baripada/ District Judge, Bolangir-Kalahandi, Bolangir,
Sd. A. Misra, Registrar,
Orissa High Court
56. On October 17, 1966 after the issue of the Notification by the High Court dated October 10, 1966, the Law Secretary Shri B.K. Patra, the Legal Remembrancer Shri K.K. Bose and the Member, Sales-tax Tribunal Shri P.C. De-each by letter-requested the Government, directly under whom they are holding their respective posts, that orders of the Government regarding making over charge by them of their respective posts might be communicated to them at an early date. On the same date (October 17, 19(6) these officers were informed by Government that the High Court had been moved to cancel the notification and they were directed not to hand over charge of their respective posts under Government. In these circumstances, it was not possible on t he part of any of these three officers to make over charge of their respective present office held under Government and to proceed to take over charge of the office of District and Sessions Judge in the respective districts at the respective Headquarters stations as ordered by the High Court notification; it is not that any of these officers deliberately declined to make over charge of his office held under Government; under circumstances beyond their control it was not possible on their part to make over charge, as directed.
57. As ordered by the High Court notification, Shri K.B. Panda made over charge of his post as Special Officer, Home Department on November 9, 1966 and offered himself to join his new appointment as Law Secretary to the Government of Orissa. In the meantime, be received a communication from the Government purporting not to allow him to join all Law Secretary in the circumstances stated in a letter dated November 10, 1966 addressed by the Home Secretary to the Registrar of the High Court, a copy of which, was sent to Shri Panda.
58. In pursuance of the High Court notification, Shri T. Misra., then District and Sessions Judge, Ganjam-Boudh made over charge of his office on November 14, 1966 and reported himself for duty as Legal Remembrancer at Bhubaneswar on November 18, 1966, but on the same date, Government pointed out to him that he cannot be allowed to join his new appointment, for reasons mentioned in the Government''s said letter dated November 10, 1966, a copy of which, was also forwarded to Shri Misra.
52. Shri P.K. Mohanti, then District and Sessions Judge Bolangir-Kalahandi was directed by the High Court to join his new appointment as Deputy Secretary to the Government of Orissa, Law Department after making over charge to his successor Shri P.C. De, who was directed to join as District and Sessions Judge, Bolangir in the forenoon of October 30, 1966. Shri De could not join as District and Sessions Judge Bolangir-Kalahandi as directed by the High Court by reason of the order of Government on him not to make over charge as Member, Sales-Tax Tribunal until further Government orders. In the meantime, the High Court by their letters dated November 8 and 12, 1960 directed Shri P.K. Mohanti to make over charge on November 14, 1966 and join his new appointment as Deputy Secretary to the Government of Orissa, Law Department as early as possible. In pursuance of the High Court''s instruction, Shri Mohanty made over charge of his office as District and Session Judge, Bolangir-Kalahandi on November 14, 1966 and after availing the usual joining time reported himself for duty as Deputy Secretary at Bhubaneswar on November, 25, 1966. On the following day, he was verbally informed by .the, Government that his joining report as Deputy Secretary was not accepted by Government. It appears that Government forwarded to Shri Mohanti a copy of the Government''s said letter dated November 10, 1966 stating the reasons why Government were not in a position to allow the three officers to join as Law Secretary, Legal Remembrancer and Deputy Secretary of the Law Department respectively.
60. For convenience of the reference, the order of Government contained in the letter dated November 10, 1966 addressed by the Home Secretary to the Registrar of the High Court stating the reasons why Government are not in a position to relieve the three officers holding posts under Government and allow the other three officers to join the posts as ordered by the High Court notification, is quoted below in extenso:
Copy of D.O. letter No. 2713/HC., dated 16-11-1966, from Shri V. Natarajan, I.A.S., Secretary to Government, Home Department to Shri A. Misra, B. L, Registrar, Orissa High Court, Cuttack. Please refer to your demi-official letter No. 8633 dated 7th November, 1906. Government reiterate their view that the Supreme Court judgment in the case of State of Assam v. Banga Mohammad does not in any way confer Jurisdiction on the High Court to order the transfer of such of the members of the Superior Judicial Service as are holding the post of Law Secretary, Legal Remembrancer and Member, Sales-Tax Tribunal directly under Government, and to appoint any officers in their places. It is needless for Government to emphasise that the Governor alone can appoint a person to the post of a Secretary, Additional Secretary or Deputy Secretary of any of the Departments of Government, including the Law Department, as also to the post of Member, Sales-tax Tribunal Furthermore, in the interests of administration, Government have decided not to make any changes in the posts of Law Secretary, Legal Remembrancer and Member, Sales-tax Tribunal. It is therefore that Government have ordered Sarbashri B.K. Patra, P.C. De and K.K. Bose not to make over charge of their respective offices. In view of these specific orders of Government under whom these officers are serving, it is not open to them to make over charge of their present offices. Government fail to see how this decision of Government not to relieve Sarbashri B.K. Patro, P C. De, and K.K. Bose will in any way prejudice the smooth working of judicial administration or affect discipline among judicial officers.
In the circumstances, Government are not in a position to allow Sarbashri K.B. Panda, T. Misra and P.K. Mohanti to join as Law Secretary, Legal Remembrancer and Deputy Secretary, Law, respectively, and they trust that the Court will not order their relief as contemplated.
61. The legality of the Government order as contained in the said letter dated November 10, 1966 of the Home Secretary is challenged both by the Registrar of High Court and the Petitioners herein and is sought to be quashed.
62. In consequence of the three officers transferred by the ''High Court notification in question not having been relieved by Government of their present offices as Law Secretary, Legal Remembrancer and Member, Sales-tax Tribunal respectively, three Judgeship and Sessions Divisions covering six districts out of thirteen districts in Orissa are going without District Judge. This position naturally has been interfering with the day-to-day administration of justice, and as a result of the continuing deadlock in the three judgeships, the litigant public are necessarily suffering; in fact, unfortunate position arising out of the conflicting orders of the High Court and Government has been causing practical inconvenience to all concerned.
63. In this state of things, on December 17, 1966 a petition O.J.C. No. 495/66 was filed by Shri Sudhansu Sekhar Misra, an Advocate of Bolangir for Mandamus in which he implead as parties the said three officers holding posts under Government as also the Home Secretary, Chief Secretary, State of Orissa and the Registrar of the Court; the other three officers who by the High Court notification were transferred to the posts under Government in their Law Department as aforesaid, but not allowed by Government to join their respective posts were also made proforma parties. In the said petition, the Petitioner, inter alia, prayed for issue of an appropriate Writ of Mandamus and for other incidental reliefs for implementation of the High Court notification dated October 10th, 1966 and also for quashing the order of Government contained in the Home Secretary''s letter dated November 10, 1966 addressed to the Registrar of the High Court.
64. On the same date (December 17, 1966), the same Petitioner Shri Sudhansu Sekhar Misra also filed another writ petition O.J.C. No. 496/66 against the said three officers holding posts of Law Secretary, Legal Remembrancer and Member, Sales-tax Tribunal respectively for issue of an appropriate Writ of Quo Warranto calling upon them to show cause on what authority they are holding offices and exercising functions thereof and other consequential reliefs as prayed for in the petition.
65. On December 20, 1966 this Court passed an order of injunction in the Quo Warranto writ petition O.J.C. No. 496/66 by which Shri B.K. Patro, Shri K.K. Bose and Shri P.C. D were restrained from functioning in their offices as Secretary, to Government in the Law Department, Superintendent and Legal Remembrancer and ex-officio Additional Secretary to Government in the Law Department, and Member, Sales-tax Tribunal respectively.
66. The State of Orissa in the said writ petition O.J.C. No: 496/66 went in appeal by special leave to the Supreme Court against this Court''s order of injunction restraining the said three officers holding posts under Government from functioning in their respective offices as Law Secretary, Superintendent and Legal Remembrancer and Member, Sales-tax Tribunal as aforesaid. On January 3, 1967 their Lordships of the Supreme Court stayed the said order of injunction of the High Court dated December 20, 1966.
67. Apart from the two writ petitions O.J. C Nos. 495 and 496 of 1900 filed by Shri Sudhansu Sekhar Misra, there were also four more successive writ petitions filed by some local Advocates of the other affected judgeships-Baripada and Berhampur-for substantially the same reliefs as prayed for in the aforesaid two writ petitions filed from Bolangir. O.J.C. No. 3/67 for issue of an appropriate writ of Mandamus and O.J.C. No. 4/67 for issue of an appropriate writ of Quo Warranto were filed by some Advocates of Baripada Bar. Similarly, a few days thereafter on January 23, 1967, an Advocate of Berhampur (Ganjam) filed a writ petition O.J.C. No. 27/07 for issue of an appropriate writ of Mandamus and also O.J.C. No. 28/67 for issue of an appropriate writ of Quo Warranto. The parties in the writ petitions subsequently filed in the month of January 1967 were the same as in O.J.C. Nos. 495 and 490 of 1966. These three batches of writ petitions (6 in number)-2 from each of the three affected judgeships Bolangir, Baripada and Berhampur-were all beard together.
68. The Petitioners'' case and the submissions made before us on behalf of the Registrar of the High Court are substantially on the same lines. The stand taken by them is mainly on the basis of a recent judgment of their Lordships of the Supreme Court in the State of Assam v. Rana Muhammad and Ors. C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 delivered on September 21, 1960, this is to say, barely 19 days before the issue of the High Court notification dated October 10, 1966, the legality of which notification is under challenge in these writ petitions. In fact, a few lines (the ''two key sentences'' as described by the learned Counsel for the Petitioners)-detached from the context-have been quoted in all these writ petitions; the said two sentences are these:
It follows, therefore, that under Article 233, the Governor is only concerned with the appointment, promotion and posting in the cadre of District Judges 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.
The Petitioners'' point is, that the said three officers holding posts of Law Secretary, Legal Remembrancer and Member, Sales-tax Tribunal are, in the words of the Supreme Court quoted above, ''District Judges'' already appointed or promoted and posted to the cadre''; that i since these officers were appointed or promoted and posted to the cadre ''control'' over them in terms of Article 235 of the constitution as interpreted by the Supreme Court-vests in the High Court and not in Government. It was submitted on behalf of the Petitioners that accordingly the High Court notification dated October 10, 1966 transferring these three officers holding posts under Government is valid and constitutional. In his affidavit, the Registrar of the High Court, while supporting the Petitioners prayer for implementation of the High Court notification dated October 10, 1966 issued by him by order of the High Court, fairly) Jut before the Court in some details about the position, as understood by him, with particular reference to the Orissa Superior. Judicial Service Rules, 1963 and other material facts in the present context, as he thought relevant.
69. The writ petitions were contested both on behalf of the State of Orissa and the three affected officers, who all filed counter affidavits. The legality of the High Court notification dated October 10, 1966 is being questioned. The main stand taken in all these affidavits is in substance the same as taken by the Chief Secretary and Home Secretary on behalf of the State of Orissa. Their common case is in substance to this effect:
(a) The order of the High Court on the administrative side transferring a District Judge as a Law Officer under Government and transferring a Law Officer under Government as a District Judge without consultation with or without concurrence of the Government is without jurisdiction and is not justified by the provisions of the Constitution.
(b) The control of the High Court under Article 235 relates to such members of the Orissa Superior Judicial Service as are District Judges actually presiding over Courts.
(c) The State of Orissa does not accept the High Court''s interpretation of the Supreme Court judgment in the State of Assam v. Rana Muhammad and Ors. Ors C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 . to extend the control of the High Court under Article 235 so as to enable the High Court to transfer officers belonging to the cadre of the Orissa Superior Judicial Service (Senior Branch) whether they are in the regular line as District Judges or holding posts under Government.
(d) Since the said officers holding posts under Government are not District Judges presiding over Courts, Article 235 can have no application to them; therefore, the power of the High Court to transfer as part of control vested in the High Court under Article 235 cannot apply to holders of the posts directly under Government.
(e) The position that these officers holding posts under Government are members of the Orissa Superior Judicial Service which includes certain posts of District Judges makes no difference in the constitutional position; that part, a combined cadre of the type of the Orissa Superior Judicial Service (Senior Branch) was not contemplated nor is it envisaged by the Constitution.
(f) Having regard to the peculiar constitution of the Orissa Superior Judicial Service, it cannot be said to be a cadre of District Judges as that expression is interpreted in Article 236(a) of the Constitution. The posts of Law Secretary. Legal Remembrancer and Member, Sales-tax Tribunal which are directly under Government, are not posts of ''District Judges'' although the same are included in the combined cadre of the Orissa Superior Judicial Service (Senior Branch) framed under Article 309 of the Constitution, and as such, Article 235 of the Constitution can have no application to the holders of such posts under Government.
(g) The power to appoint persons to the posts of Law Secretary, Legal Remembrancer and Deputy Secretary in the Law Department, Member, Administrative Tribunal in the Political and Services Department and Member, Sales-tax Tribunal in the Finance Department under the State Government vests exclusively in the Governor; the power of the High Court in the context of the structure of the Orissa Superior Judicial Service extends only to transfer of a presiding officer of one Court as presiding officer of another Court.
(h) Besides, the issue, by the Registrar, of the notification of the transfers of three officers as District and Sessions Judges in the different Judgeships and Sessions Divisions was not regular in that-according to the procedure laid down by law-after the High Court''s decision about the transfer of a District Judge from one Court to another Court, the process of transfer is not complete until the State Government issues the necessary notification and orders in conformity with the provisions of Section 6 of the Bengal, Agra and Assam Civil Courts Act (Act 12 of 1887) and Section 9 of the Code of Criminal Procedure; without and until such notifications, the transfer of a District Judge does not become complete and effective; so the issue of the High Court notification dated October 10, 1966 straightaway appointing the three officers as District and Sessions Judges in different Judgeships and Sessions Divisions is irregular in that the procedure, as required by law, to give effect to the High Court''s decision to transfer, was not- followed in this case.
70. These, as briefly stated above, are the rival contentions on behalf of the Petitioners and the Registrar of the High Court on the one side and the State of Orissa and the affected officers of Government on the other. This case was ably argued at length by eminent counsel on both sides; by Mr. J.P. Mitter (a former Judge of the Calcutta High Court) appearing for the Registrar of the High Court and Mr. B. M Patnaik for the Petitioners on the one side ; and Mr. H. Mohapatra (a former Judge of the Patna High Court) learned Advocate General appearing for the State of Orissa and the Government Officers concerned. In this context, I must make it clear that while interpreting the Constitution, this Court is not bound to accept the argumentative statements either in the petition or in the different counter affidavits or made in course of argument, or any of the purported concessions under misconception of law, if any, made on behalf of any of the parties in this proceeding; the issue before us is a pure question of law to be decided on the interpretation of the Constitution.
71. On the facts and in the circumstances of this case, the, main question is: Can the High Court by virtue of its ''control over district Courts and Courts Subordinate thereto'' under Article 235 of the Constitution lawfully transfer officers belonging to the combined cadre of the Orissa Superior Judicial Service to and from the posts directly under Government? In my opinion, the High Court cannot transfer such officers'' holding posts directly under Government nor can the High Court transfer in their places other officers of the said combined cadre unless by agreement with or concurrence of Government. The reasons for my taking this view are as discussed hereunder.
72. What is the constitution of this combined cadre of Orissa Superior Judicial Service? Why is it called ''combined''? Combination of what? The word ''cadre'' has not been defined by the Orissa Superior Judicial Service Rules; it is a military term meaning a framework. In any event, the High Court in their correspondence call it:
"The combined cadre created to the advantage of both the Judicial service and Government" (letter dated February 18,1966 from the Registrar of the High Court to the Home Secretary annexed to the counter affidavit of the Registrar of the High Court)".
Thus, the Orissa Superior Judicial Service cadre is a combination of District and Sessions Judges, Additional District and Sessions Judges under the control of the High Court, Registrar as an officer of the High Court, and Law Secretary, Legal Remembrancer, Deputy Secretary in the Law Department and Member, Administrative Tribunal in the Political and Services Department all the last four as holding posts directly under the Government. For clear appreciation of the position, the relevant rules of the Orissa Superior Judicial Service Rules made by the Governor under Article 309 of the Constitution are quoted below:
GOVERNMENT OF ORISSA HOME DEPARTMENT NOTIFICATION
The 5th March, 1963 No. 4695-H.C.-In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Orissa is pleased to make the the following rules for the regulation of recruitment to posts in, and the conditions of service of persons appointed to, the Orissa Superior Judicial Service, namely:
... ... ...
... ... ...
PART II
Cadre
4(1) The cadre of the Service shall consist of two branches, namely:
(i) Superior Judicial Service, Senior Branch, and
(ii) Superior Judicial Service, Junior Branch.
(2) The cadre of the Superior Judicial Service, Senior Branch, shall be comprised as follows, namely:
(1) District and Sessions Judges ... 8
(2) Additional District and Sessions Judges ... 2
(3) Secretary to Government in Law Department.... 1
(4) Superintendent and Legal Remembrancer,
Law Department ... 1
(5) Deputy Secretary to Government in the
Law Department... 1
(6) Registrar, High Court... 1
(7) Member, Administrative Tribunal... 1
Total ... 15
(a) The cadre of the Superior Judicial Service, Junior Branch, shall consist of nine Additional District Magistrates (Judicial):
Provided that the Governor may, in consultation with the High Court, create such further number of permanent or temporary posts in the aforesaid cadres of the Service or may keep in abeyance, or leave unfilled any post in the said cadres as may be considered necessary from time to time.
PART III
Recruitment
... ... ...
... ... ...
73. When a vacancy occurs in the Senior Branch of the Service, Government shall decide in consultation with the High Court whether it may be filled up by direct recruitment or promotion.
SUDHANSHU SEKHAR MISRA v. P.C. DE
8. (1) Direct recruitment to the Senior Branch of the Service shall be made from the Bar.
(2) Candidates for direct recruitment to Senior Branch of the Service shall:
(i) be at least of 7 years'' standing at the Bar, and
(ii) not be under 35 and over 45 years of age.
(3) The High Court shall for each vacancy open to direct recruits to the Senior Branch of the Service, furnish to Government a list of two candidates in order of merit and Government shall appoint one of them after satisfying themselves as to the character and antecedents of the selected candidates.
(4) Selected candidates shall be physically fit and shall be required to appear before the State Medical Board before final appointment.
9. (1) Whenever a vacancy in the Senior Branch of the Service is decided to be filled up by promotion, the Government shall fill up the same after due consideration of the recommendation of the High Court in accordance with Sub-rule (2).
(2) The High Court shall recommend for appointment to such vacancy, an officer of the Junior Branch of the Service, who in the opinion of the High Court, is the most suitable for the purpose:
Provided that if for any reason, Government are unable to accept the recommendation as aforesaid they may call for further recommendations from the High Court to fill up the vacancy.
10. Recruitment to the Junior Branch of the Service shall be made by the High Court by promotion from amongst Subordinate Judges.
74. The Orissa Superior Judicial Service Rules were, made by the Governor for the combined cadre of executive posts directly under Government, such as, Law Secretary, Legal Remembrancer, Deputy Secretary in the Law Department and Member, Administrative Tribunal in the Political and Services Department and judicial posts under the control of the High Court, namely, District and Sessions Judges, Additional District and Sessions Judges under Article 235 and the Registrar as an officer of the High Court appointed by the Chief Justice under Article 229. In this context, it is to be noticed that just as a District Judge is to be initially appointed by the Governor under Article 233 and after hid appointment, he, as presiding over a district Court, comes under the High Court''s "control over district Court"; in the same way, the Registrar is appointed by the Chief Justice of the High Court as an officer of the High Court under Article 229 and after his appointment as such, he becomes and remains an officer of the High Court. Therefore, the post of Registrar as an officer of the High Court cannot be equated with that of the Law Secretary, Legal Rememberancer, Deputy Secretary or Member, Administrative Tribunal directly under the Government. The Registrar as an officer of the Court belongs to the High Court, whereas the said officers holding posts directly under the Government belong to the Government an d they do not belong to the High Court during the period of their office in those posts directly under the Government.
75. Under Rule 4, there are 7 categories of posts clubbed together in what is called the combined cadre of Orissa Superior X, Judicial Service. In my opinion, these 7 categories are mutually exclusive; in other exclusive; in other words, one person cannot hold more than one post out of the 7 categories. For example, one person cannot be the Registrar of the High Court and at the same time be the Law Secretary in the Law Department of Government. Similarly, if a person is holding any of the posts directly under Government, namely, Law Secretary or Legal Remembrancer or Deputy Secretary in the Law Department or Member, Administrative Tribunal in the Political and Services Department comprised in the combined cadre of the Orissa Superior Judicial Service, he cannot at the same time be treated as still holding the post of a District Judge. It is in this sense that these 7 categories of posts are said to be mutually exclusive.
76. It is this unholy and unfortunate (as it turned out to be in practical working of the combined cadre) combination (or inclusion) of some executive posts under Government (Law Secretary, Legal Remembrancer, Deputy Secretary in the Law Department and Member, Administrative Tribunal in the Political and Services Department) and some judicial posts (District and Sessions Judges and Additional District and Sessions Judges) and Registrar (an officer of the High Court) which has created the complications. No doubt, District and Sessions Judges and Additional District and Sessions Judges, as Judges presiding over District Courts come directly under the High Court''s ''control over District Courts and Courts Subordinate thereto'' including their transfer from one station to another as District and Sessions Judge or Additional District and Sessions Judge as presiding over a, "District Court". This position in law has been settled by the Supreme Court in State of Assam v. Rana Muhammad and Ors. C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 .
77. The question is: Can we say that these officers Law Secretary, Legal Remembrancer, Member, Sales-tax Tribunal-holding posts directly under Government form district Courts within the meaning of ''District Courts'' in Article 235 as interpreted in Rana Muhammad''s case1? My answer is: No. These officers-holding executive pests under Government-can in no Sense be called ''District Courts''; indeed, far from being District Courts, they are not Courts at all,
78. It is not without significance that in the Constitution the word ''District Court'' has for the first time, been used in Article 233 by which Parliament vested the High Court with ''control over District Courts and Courts subordinate thereto''. What does ''District Court'' in Article 2;) 5 mean? This leads us now directly to the interpretation of the relevant provisions of the Constitution in the context of the facts and circumstances of the present case.
79 Before construing the relevant provisions, it should be remembered that the fundamental rule of interpretation is the same whether one construes the provisions of the Constitution or an Act of Parliament, namely, that the Court will have to find out the expressed intention from the words of the Constitution or the Act, as the case may be. But, if however two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provisions of existing law nugatory Chandra Mohan v. State of Uttar Pradesh AIR 1966 S.C. 1987.
80. The relevant portion of Article 235 with which we are directly concerned is as follows:
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,....
Article 235 is an Article in Chapter VI of Part VI of the Constitution which deals with ''Subordinate Courts''. It is in the light of the scheme of this "Chapter VI-Subordinate Courts" that Article 235, which is included in this Chapter, is to be interpreted. Part VI consisting of six Chapters deals with ''The States". Chapter I containing Article 152 is a ''General'' Chapter defining the expression ''State''; Chapter II containing Articles 153-167 deals with ''The Executive'' including inter alia, the power of the Governor, conduct of Government business; Chapter II deals with ''The State Legislature''; Chapter IV deals with the ''Legislative power of the Governor''; Chapter v. containing Articles 214, to 231 deal with ''The High Courts in the States''; then comes Chapter VI containing Articles 233-237 dealing with ''Subordinate Courts''.
81. For proper appreciation of the legal implication of Article 235 dealing with the High Court''s control over District Courts and Courts Subordinate thereto, the provisions of Chapter VI of Part VI (including the marginal notes) with which we are concerned, are set out as follows:
233. Appointment of District Judges: (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) A person not already in the Service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an Advocate or a Pleader and is recommended by the High Court for appointment.
233A. Inserted by the Constitution (Twentieth Amendment) Act, 1966-we are not concerned with this article for the present purpose.
234 Recruitment of persons other than District Judges to the Judicial Service: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.
235. Control over Subordinate Courts: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 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.
236. Interpretation:In this Chapter:
(a) the expression "District Judge" includes Judge of a City Civil Court, Additional District Judge Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge;
(b) the expression "Judicial Service" means a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the post of District Judge.
237. Application of the provisions of this Chapter to certain class or classes of Magistrates: The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes or Magistrates in the State as they apply in relation to persons appointed t) the Judicial Service of the State subject to such exceptio us and modifications as may be specified in the notification."
Evidently, Chapter VI is intended to deal with persons and object pertaining to ''Subordinate Courts'', that is to say, Courts Subordinate to the High Court, namely, ''District Courts and Courts Subordinate'' thereto.
82. The broad scheme of ''Chapter VI-Subordinate Courts'', intended to be self- contained, is in substance this: The initial appointment of a person as District Judge is to be made by the Governor under Article 233. Article 234 provides for recruitment of persons other than District Judges to the Judicial Service. It is only after appointment under Articles 233 and 234 that the High Court shall be vested with ''the control over District Courts and Courts Subordinate thereto'' under Article 235. By Article 236, the interpretation of the expressions ''District Judge'' and ''Judicial Service'' as given therein is confined to only ''Chapter VI-Subordinate Courts'' containing Articles 233-237 ; these expressions- ''District Judge'' and ''Judicial Service''-therefore, have been given a restricted meaning intended to be confined to Chapter VI only. Therefore, the interpretation of the expressions ''District Judge'' and'' Judicial Service'' as in Article 236 is not intended for application to these expressions used in other Chapters of the Constitution or in the Orissa Superior Judicial Service Rules; this interpretation is exclusively applicable only to Chapter VI of Part VI of the Constitution. Under Article 237, the power of application of the provisions of this Chapter to certain class or classes of Magistrates is with the Governor and not with the High Court.
83. On a careful study and analysis of the scheme of Chapter VI dealing with ''Subordinate Courts'', I am of the opinion that it is not that the High Court has been vested with unlimited power over the Subordinate Courts. It is the Governor who appoints District Judges under Article 233, also recruits persons other than District Judges; but for Article 235 vesting the High Court with ''control over District Courts and Courts subordinate thereto'', the High Court would have no such control. Apparently, the intention of -the legislature is to give such control to the High Court as is necessary for the working of the institution of the Courts, as such, being ''District Courts and Courts Subordinate thereto''; anything pertaining to the functioning of such Courts, including matters of discipline over officers presiding in such Courts, is within the High Court''s ''control over District Courts and Courts subordinate thereto'' as explained in the case of the
84. The words ''District Court'' used in Article 235 should be taken in a restricted sense. The material words used in Article 233 are ''persons'' and ''District Judge''. In Article 234, the material words used are ''persons'' and Judicial Service''. It is for the first time that in Article 235, the words ''District Courts'' have been used; in fact, the phrase ''District Courts'' does not occur anywhere else in this Chapter VI, except in Article 235 vesting the High Court with ''the control over District Courts and Courts subordinate thereto''. The phrase ''District Courts'' as used in Article 235 and not used in Article 233 or Article 234 means a different intention of the legislature and must be understood that way.
85. The use of the word ''Court'' in the phrase ''District Court'' in Article 235 is not without meaning or sense. The word ''Court'' has not been used either in Article 233 or Article 234. What follows after the phrase ''the control over District Courts'' in Article 235 as quoted above, has no connection with ''District Courts''; the latter portion beginning with the words ''and Courts subordinate thereto'' and ending with the words ''and holding any post inferior to the post of District Judge'' relate only to the Courts subordinate to the District Court.
86. In this context, the words ''Judicial Service'' occurring in Article 235 needs some consideration. In this Article, the words ''Judicial Service'' has not been used with reference to District Courts, but in relation to officers belonging to the Judicial Service and holding any post inferior to the post of District Judge; in Article 235, the word ''Judicial Service'' have been used for the purpose of particularly specifying the class of officers whose posting, promotion and the grant of leave are vested in the High Court with regard to posting, promotion and the grant of leave to Courts subordinate to the District Court, such control of the High Court is specifically provided for to be over
persona belonging to the Judicial Service of a State
and holding any post inferior to the post of District Judge
(The relevant portion of Article 235, which is somewhat involved, has been paraphrased as above for purposes of appreciation of the point. The word ''and'' underlined by me is significant).
87. This analysis of Article 235 shows that the particular class of officers whose posting, promotion and the grant of leave are vested in the High Court should not only be belonging to the Judicial Service of a State but they must also be "holding" post as stated in the Article. The emphasis is on the words ''and holding any post'' as provided therein.
88. It follows from this construction that if, for instance, a Subordinate Judge goes out, say on loan Service, as Legal Remembrancer is Tripura State under the Central Government, the Central Government will assume control over such an officer, because he ceases to be ''holding any post'' in the Orissa Judicial Service. During the period of time such an officer remains in the Service of the central Government, the actual control of the High Court under Article 235 is suspended or held in abeyance. If the Service of the officer have been lent, say for three years, that is the period of redemption (as in the case of mortgage). If no period is mentioned or stipulated, the moment the High Court agree to the officer''s going out to Tripura, the High Court''s control under Article 235 remains in abeyance for the time being. The power to recall does not vest in the High Court; even if the term is extended beyond the stipulated period, the High Court has no power to recall under Article 235. The officer can only be recalled through the accepted protocol.
89. This kind of lending Service to another Government is of course not an instance of transfer; in fact, such lending of Services, for instance, to the Tripura Government, is not in exercise of the power under Article 235, but the example given above tests the extent of the possible exercise of the power or control over officers. Once the High Court removes or permits to be removed the object of their control for the time being, the exercise of their power remains in abeyance.
90. Thus, what follows from this interpretation both grammatically and with reference to Article 233 is, in substance, this: The control over District Courts shall be vested in the High Court. The Courts Subordinate to the District Courts as belonging to the Judicial Service of a State and holding any post inferior to the post of District Judge shall also be vested in the High Court; therefore, District Courts and Courts Subordinate thereto must be taken to mean only the Courts, presiding officers there and personnel connected with the Courts.
91. In the ultimate analysis, therefore, the import of the use of the words ''District Courts'' in Article 235 must be intended to be different from the words ''District Judge'' in the other Articles. The question is: which is wider-'' District Judge'' or ''District Court''? In my opinion, the phrase'' District Judge'' has a wider connotation than the phrase ''District Court'' ; a District Court must be a District Judge but the converse is not true; a District Judge need not necessarily be a District Court; in order to be a District Court, a District Judge must be connected with the institution of a Court as such. Once this institutional aspect of ''District Court'' in Article:235 is kept in view, there will be no difficulty in determining which among the officers in what is called the Orissa Superior Judicial Service (combined cadre) are District Courts and which arc not. In this context, we must also keep in view the difference of the meaning between a ''Judge'' and ''Court''; a Judge need not necessarily be a Court, but to from a Court it must be a Judge; all Courts are Judges but all Judges are not Courts ; "Judge" is not co-terminous with "Court".
92. In order to appreciate the position, let us take an example, of, any, 20 District Judges in a:State. Out of them, 15 are presiding over Courts as District Courts; out of the remaining 5, 2 are on leave and 3 are holding executive posts directly under Government. In such a case, the 15 District Judges as presiding officers in District Courts are under the High Court''s control under Article 235. As regards the 2 on leave, they are also amenable to High Court''s control, because they are so on leave with the permission of the High Court; the officers on leave are not within the administrative control of any other authority.
93. Then the question arises: In whom does the control vest over the residue, namely, the 3 officers holding executive posts directly under Government?In my opinion, as regards these 3 officers, the High Court''s control under Article 235 remains in abeyance during the period they are holding such posts directly under the Government. These officers for the time being become part of and are under the control of the Government under whom they are serving. In Orissa, they are governed by "The Orissa Government Rules of Business made under Article 166 of the Constitution of India" and also by the "Instructions Regarding the Business of the Government issued under Rule 14 of the Rules made under Article 166 of the Constitution of India."
94. It is clear from these Rules of Business and Instructions regarding the Business of the Government that the Law Secretary in the Law Department of Government-like any other Secretary to Government in each Department of the Secretariate (e. g. Home Secretary, Finance Secretary and other Secretaries)-is responsible for the careful observance of the Rules and when he considers that there has been any material departure from them, be shall personally bring the matter to the notice of the Minister-in-charge and the Chief Secretary; the Law Secretary in his Department shall also be responsible for the due execution of sanctioned policy and for the discipline and efficiency of the administrative department or branch in his charge (Rule 13 of the Orissa Government Rules of Business). In Part v. of the Instructions, there is a provision for Proposals for Legislation to be initiated by the Law Secretary in charge of the Law (Legislative) Department as provided therein.
95. Thus, on a close study of the Orissa Government Rules of Business and Instructions made under Article 160(3) ''for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business'', it is clear that these officers now serving in the respective Departments directly under Government are, in fact absorbed in and are part of the Government under the Executive power of the State vested in the Governor under Article 154 of the Constitution.
96. As regards their conditions of service, they are governed by "Chapter I -Services" of Part XIV ''Services under the Union and the States'' including Article 309 and the appropriate rules made under the said Article, subject to the provisions of the Constitution and to the extent that these rules are applicable to them. In this context, it will be noticed that the service rules under Article 309 are ''subject to the provisions of this Constitution''; whereas, there is no such restrictive clause with regard to the Rules of Business of Government made by the Governor under Article 166(3) which therefore must prevail.
97. This leads us directly to the question: Can we say that there officers, as so absorbed in the posts directly under the Executive Government, still continue to be District Judges as forming District Courts and presiding there and are amenable to the High Court''s control under Article 235? My answer is No. It was argued that the word ''Court'' used in Article 235 does not signify control over only the person presiding over it; that such control extends also to a Judge not presiding over Court. This argument is untenable. Both in Articles 227 and 235, the word ''Court'' has been used. It cannot be said that the framers of the Constitution had not used this word to mean persons presiding over those Courts or other functionaries of those Courts. While the use of the word ''Judge'' may denote only the person, the word ''Court'' when used not only includes a person presiding over that Court but also all the functionaries of that Court and in matters pertaining thereto including discipline. The ordinary meaning to be given to the word "Court" not only includes the building in which the Court is held but also the Judges and their officials who preside there. A reference to the Chambers Dictionary would show that the meaning of the word ''Court'' is ''a hall of justice; the Judges and officials who preside there; and body of persons assembled to decide causes; a sitting of such a body''.
98. The phrase "a Court or a Judge" was held in Baker v. Oakes (1876) 2 Q.B.D. 171., to mean the Court sitting in bench or a Judge at chambers representing the Court in bench. It has never been held that such a phrase comprised a Judge, who was neither the Court nor acting at chambers, merely because he was the Judge at the trial. Therefore, ''Court'' does not include a judge at chambers. In the present case, considered from this aspect, ''District Court'' in Article 235 does not include a ''District Judge'' holding executive post directly under Government.
99. There is no need to cite an authority for the proposition that prima facie every word in an Act of Parliament must be given an effective meaning of its own. Whether or not the legislature in any given case has condescended to tautology is a question the answer to which depends upon the language used, but in the absence of an appropriate context one statutory provision which is expressed in entirely different language from another, whether in the same or a different section is not to be interpreted as repetitive or unnecessary. In the present context the use of entirely different words in different Articles- "District Judge" in Article 233, ''persons other than District Judges'' in Article 234 and ''District Courts and Courts Subordinate thereto'' in Article 285-is not without any purpose. There is no justification for interpreting the entirely different words- ''District Judge'' and ''District Court'' - in the same sense. A competent draftsman purposely used different words in the different Articles with a view to give effect to the intention of the legislature. The legislature, which must be taken to have been aware of the purpose of Chapter VI of part VI, while drafting Article 235 deliberately avoided the phrase ''District Judge'' used in Article 233 and has instead used the words ''District Court'' in Article 235. By doing so, the legislature has, I think, purposely excluded the particular class of District Judges-not presiding over Courts nor connected with the institution of Courts like the officers in question holding executive posts directly under the Government-from High Court''s ''control over District Courts and Courts Subordinate thereto'' under Article 235.
100. The reason why the word ''District Judge'' was used in Article 233 and the phrase ''person other than District Judges'' (Munsifs and Subordinate Judges) was used in Article 234 was that as regards initial appointment, the Governor cannot appoint District Courts as such or Courts Subordinate thereto as such; the Governor can only appoint District Judges under Article 233(1) and Munsifs and Subordinate Judges under Article 234. The High Court cannot appoint either the District Judges or persons other than District Judges (Munsifs and Subordinate Judges). It is only after the initial appointment by the Governor that ''the control over District Courts and Courts Subordinate thereto'' is vested in the High Court under Article 235. That is why the legislature took great care not to use the word ''Court'' in either Article 233 or Article 234 which relate to initial appointment only. It is only over the institution of district Courts and Courts Subordinate thereto that the High Court has been vested with control under Article 235. This view is supported by the trend of decisions of the Supreme Court hereinafter discussed.
101. In Chandra Mohan v. State of Uttar Pradesh AIR 1966 S.C. 1987, their Lordships of the Supreme Court, while dealing with the scheme of Chapter VI of Part VI of the Constitution with particular reference to Article 233(2) observed:
The setting, viz, the chapter dealing with Subordinate Courts, in which the expression ''the service'' appears indicates that the service mentioned therein is a service pertaining to Courts.
Similarly, for the purpose of High Court''s control under Article 235, the institutional aspect of the Courts as such permeates and is the sine qua non of the entire scheme. In the absence of this institutional aspect as Courts, the High Court has no control under Article 235.
102. Then we come to the cited authorities, including the latest decision of the Supreme Court in the State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 on which both sides relied in support of their rival contentions on their respective reading of the decisions as VOL. XXXIII understood by them. As to how a judgment should be read, certain wholesome principles have been land down by the English Judges as also by their Lordships of the Privy Council and the High Courts of this country following those principles.
103. Before discussing what was decided in State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 . I quote two observations of general character from Lord Halsbury''s famous judgment in Quinn v. Leathem (1901) App. Cases 495, 506 (House of Lords):
... I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other (observation) is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
104. In this connection, the weighty observations of Lord Haldane in Kreglinger v. New Patagonia Meat and Cold Storage- Co. Ltd. (1914) App. Cases 25, as to the misuse of the Judicial Precedents may also be usefully recalled. The language of a judicial pronouncement must be understood as spoken in reference to the facts under consideration and limited in meaning by those facts; the generality of the expression which may be found there is not intended to be an exposition of the whole law, but is governed and qualified by the particular facts of the case in which such expressions are to be found. It follows as a corollary that a case is only an authority for that it actually decides, and cannot be quoted for a proposition that may seem logically to follow from it. The Privy Council also laid down to the effect that to understand and apply a decision of any Court it is necessary to see what are the facts of the case in which the discussion was given and what was the point which had to be decided. These principles have been consistently followed by the Courts in India in reading the judicial precedents cited before them Hari Baksh v. Babu Lal and Anr. A.I.R 1924 P.C. 126. The King Emperor v. Barendra Kumar Ghose AIR 1924 Cal. 275 (F.B.).
105. The application of the two propositions laid down by Lord Halsbury renders the decision of this case perfectly plain notwithstanding the decision in the case of the State of Assam v. Rana Muhammad and Ors. C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 . Now, the hypothesis of fact upon which State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 was decided was, in substance, this: The State of Assam consists of only three Sessions Divisions-the Upper Assam Districts, the Lower Assam Districts and the Cachar Districts with Jorhat, Gauhati and Silchar respectively as the Headquarters of three District Judges. The Government of Assam with the concurrence of the High Court made the Assam Judicial Service (Senior) Rules. In the Senior Judicial Service of the State, there are two grades-Senior Grade I and Senior Grade II. Grade I has four posts earmarked for three District Judges and the Registrar, and Grade II consists of the Additional District Judges. Under Sub-rule (i) of Rule 5, the Chief Justice of the High Court fills the post of the Registrar by virtue of Article 229 preferably from Grade I or Grade II of the Service; and under Sub-rule (ii) the other posts of the cadre are filled by the Government in consultation with the High Court, but not more than one third of the posts may be filled by direct recruitment. The other posts are filled up by promotion from Grade II of the cadre and Grade I of the Assam Judicial Service (Junior) respectively. Thus, there were very few posts in the cadre consisting of 3 District Judges and Additional District Judges and 1 Registrar appointed by the Chief Justice as an officer of the High Court. There can be no doubt that all the members of the Assam cadre-District Judges appointed by the Governor under Article 233(1) and the Registrar appointed by the Chief Justice as an officer of the High Court-were all under the High Court, that is to say, District Judges under the High Court under Article 235 and the Registrar as an officer of the High Court. It is to be noticed that the Assam Judicial Service cadre did not include in it either the Law Secretary or Legal Rememberancer or Deputy Secretary in the Law Department or Member, Administrative Tribunal as in Orissa Superior Judicial Service combined cadre. Thus, in the Assam case, the cadre with which the Supreme Court was dealing was a pure cadre of District Judges and the Registrar as an officer of the High Court; whereas, in Orissa it is a case of combined cadre of District and Sessions Judges, Additional District and Sessions Judge along with other executive posts directly under Government. It was contended on behalf of the Petitioners that Assam Judicial Service is also a combined cadre in that it is a combination of District Judges, Additional District Judges and the Registrar of the High Court. There is no substance in this contention. In my opinion the Assam Judicial Service simple combination of the post of Registrar of High Court with the posts of District Judges and Additional District Judges cannot be equated with the, Orissa Superior Judicial Service complex combination of executive posts directly under Government in their respective departments (Law and Political and Service Departments) with the posts of District and Sessions Judges, Additional District and Sessions Judges and the Registrar of High Court.
106. While reading the case of State of Assam v. Rana Muhammad and Ors.1 this Court must look at the hypothesis of fact upon which the case was decided. The material facts on which the Supreme Court decided the case were these: On June 22, 1903 the Government of Assam issued a notification appointing Deka as District. Judge with Head quarters at Jorhat in the vacancy of District Judge Medhi (who retired) as recommended by the Chief Justice. Prior to that, the Chief Justice had made certain other recommendations but nothing was done by Government regarding the same. On September 7, 1963, the Secretary to the Government of Assam wrote to the Registrar that the State Government could not accept the suggestion about the transfer of District Judge Barua and proposed the transfer of District Judge B.N. Sarma to Jorhat and of Deka to Gauhati immediately as Jorhat was without a District Judge for months. The High Court, however, did not accept the Government''s proposal and made certain counter proposals about the transfer of District Judges concerned. Ultimately on February 19, 1964 the Government of Assam informed the High Court that the recommendations were not acceptable except as to Deka''s transfer from Jorhat to Gauhti; B.N. Sarma was accordingly transferred to Jorhat leaving Barua where he was. Notifications transferring Deka and Sarma were issued by the Government of Assam on the same day. It was in this back ground that two writ petitions were filed by one Rana Muhammad of Gauhati-one writ petition questioning the jurisdiction of Deka, District and Sessions Judge of Jorhat, and by the other petition he questioned the transfer of B.N. Sarma to Jorhat.
107. The main question, with which we are concerned, in State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 was: Who is to order transfer of a District Judge-the State Government or the High Court? On the facts of the Assam case-transfer of District Judges in the State of Assam from one station to another as stated above-the Supreme Court posed the question in a limited form thus:
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 Courts 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.
108. After posing the question in the limited form as aforesaid, their Lordships answered the said question immediately in the same paragraph thus:
If the sense of the matter be the former (as posed in question), then the High Court and if the latter (as also posed in question as above), 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 cadre must necessarily be outside the power of the Governor and fan to be made by the High Court as part of the control vested in it by Article 235
In the next paragraph of the judgment, while referring to the history of Article 233-237 in Chapter VI (Subordinate Courts) of Part VI of the Constitution 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 appointment and posting and promotion of District Judges, the Supreme Court observed:
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
109. It is clear that in the Assam case before the Supreme Court their attention was only on the question of ''posting'' of District Judge. It was in that particular context of the transfer of certain District Judges from one station to another, it was held that the High Court has the exclusive power. Their Lordships held:
... the word ''posting'' (in Article 233) cannot be understood in the sense of ''transfer'' when the idea of appointment and promotion is involved in the combination. In fact, this meaning is quite out of place because ''transfer'' operates of a stage beyond appointment and promotion. 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
The reason for taking this view is clearly stated in the immediately succeeding paragraph of the judgment, the material portion of which reads 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 It Minister. For however well meaning a Minister may be can never possess the same intimate knowledge of the working of the judiciary as a whole and of individual Judges, as the High Court It is also well known that all stations are not similar in climate and education, medical and other facilities.... 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 the cadre. Thereafter, transfer of incumbents is a matter within the control of (over) District Courts including the control of persons presiding there....
110. It is amply clear that the Supreme Court, while expressing the view they took, referred to ''District Courts including the control of persons presiding there'', ''working of the judiciary'' and ''the day to day control of Courts'' all these phrases occurring in the above quoted paragraph of the judgment are connected with the institution of Court as such including the persons presiding there, and the day to day working of the Courts as such.
III. The last sentence in the above quotation:
"Thereafter, the transfer of incumbents is a matter
within the control of (over) District Courts including
the control of persons presiding there is of great significance. The language of this crucial sentence in the Supreme Court judgment must be understood as spoken in reference to the facts under consideration and limited in meaning by these facts: the generality of the expression which may be found in the sentence is not intended to be an exposition of the whole law, but is governed and qualified by the particular facts of the case in Assam stated above. Therefore State of Assam v. Rana Muhammad\\ is only an authority for what it actually decided, and cannot be quoted for a proposition that may seem logically to follow from it. Therefore the said sentence in the Supreme Court judgment has to be understood in a limited sense, that is to say, as applicable only to District Judges presiding over Courts; reading the sentence in a literal sense, even so, it does not mean that the High Court''s control over ''District Courts and Courts subordinate thereto'' extends to persons not presiding over Courts nor connected therewith.
112. For these reasons I cannot agree with the submissions made on behalf of the Petitioners on their reading of the State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 as they appear to have understood the same. I do not deny that if some of the observations of general character made in that case were to be pushed to the logical conclusion, it would be somewhat difficult to resist the inflexible logic underlying the stand of the Petitioners: but I cannot accept the Petitioners'' reading of the decision in the State of Assam v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 .
113. The present case is distinguished in, its facts, which are essentially important facts from those in the State of Assam. v. Rana Muhammad C.A. Nos. 1367 and 1368 of 1966 decided on 21st September 1966: 1967 SLR 40 . In my opinion, therefore, the High Court''s right to transfer District Judges by virtue of control over ''District Courts and Courts Subordinate thereto'' under Article 235 was not intended to be extended to persons not presiding over any Court nor connected with Court.
114. The Petitioners also relied on certain observations of the Supreme Court in
115. The main point of controversy in Bagchi''s case2, was this: The control over the District Courts and the Courts Subordinate thereto is vested in the High Court under Article 235 of the Constitution, and the authority competent to take disciplinary proceedings and action against the Petitioner (Bagchi) or to deal with him in any way was the High Court and not any other authority.
116. When Bagchi''s case2, came up before the Supreme Court, the main point, as summarised by their Lordships, was whether the enquiry ordered by Government, and conducted by an Executive officer of Government against a District and Sessions Judge contravened the provisions of Article 235 of the Constitution which vests in the High Court the control over the District Courts and the Courts Subordinate thereto. It is clear from paragraph 11 of the judgment that the main question was: What is meant by the word ''control''? In that context, the Supreme Court considered the question whether the Government or the High Court should order, initiate and hold enquiries into ''the conduct of District Judges. What their Lordships considered in Bagchi''s case2 was the nature of control not the object or subject-matter of control. Bagchi was a District Judge on leave whose services were extended by Government for the purpose of disciplinary jurisdiction and then he was suspended. Therefore, the object or subject-matter of control was Bagchi, a District Judge. There was no dispute that High Court had control over Bagchi under Article 235. The question was: What was the nature of High Court''s control over him? In other words, whether it was the Government or'' the High Court who could order, initiate and hold enquiries into the conduct of Bagchi as a District Judge. In Bagchi'' s case2, the scope of the decision was limited to this aspect only, namely, the nature of High Court''s control over District Courts and the Courts Subordinate thereto and not the question whether Bagchi was a ''District Court'' or not. It was not mooted whether the control would go beyond persons presiding in Court or connected therewith. The scope of the decision in Bagchi''s case, appears from the following observations of the Supreme Court in paragraph 11 of the judgment, namely this: the main question is what is meant by the word ''control''. The High Court has held that the word ''control'' means not only a 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."
On this point, the Supreme Court, while dismissing the appeal of the State of West Bengal, accepted the findings of the Calcutta. High Court.
117. This view is further made clear by the Supreme Court in Bagchi''s case2, explaining the content of the word ''control'' in Article 235 in these concluding words on this point:
control'' therefore, is not merely the power to arrange the day to day working of the Court but contemplates disciplinary jurisdiction over the presiding Judge. Article 227 gives to the High Court superintendence over these Courts and enables the High Court to call for returns etc. The word ''control'' in Article 235 must have a different content. It includes something in addition to more superintendence. It is control over the conduct and discipline of the Judges.
118. This, ultimately, is the final decision of the Supreme Court on the nature of control under Article 235. The use of the words ''the Judges'' in the last sentence of the above quotation is not without significance; it is sufficiently indicative of the High Court''s control over the conduct or discipline of ''the'' Judges, that is to say, the Judges presiding in or as connected with Court. It is also clearly laid down that the High Court''s control over District Courts and Courts Subordinate thereto under Article 235 is more than mere superintendence.
119. The crucial sentences in Bagchi''s case2, clearly indicative of the nature of control under Article 235 are these:
In the case of the District Judges, appointments 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 word 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 use of the words ''the District Judge'' and ''the Presiding Judge'' is significant; it shows that it is only over that particular class of District Judges who are associated with the institution of Court as a Presiding Judge that control is vested in the High Court, and what is vested includes disciplinary jurisdiction because control is useless if it is not accompanied by disciplinary powers. It is in this view of the matter as to the Nature of control or "complete control" over District Courts and Courts Subordinate thereto under Article 235 that the Supreme Court ultimately held that the High Court alone could initiate the disciplinary proceeding against Bagchi and hold enquiries into the charges against him. It is thus abundantly clear as to on what particular aspect the decision of the Supreme Court in Bagchi''s case\\ was limited. It is an authority for what it actually decided.
120. In the case of Chandra Mohan v. the State of Uttar Pradesh AIR 1966 S.C. 1987, the Supreme Court decided that Chapter VI of Part VI dealing with "Subordinate Courts" in which the expression "the Service" appears, indicates that the Service mentioned therein is the Service pertaining to Courts; that the expressions "the Service" and "Judicial Service" bring out the idea that the Judicial Service consists of hierarchy of Judicial officers starting from the lowest and ending with District Judges. The significance of this is that for an officer to belong to the "Judicial Service" he must be within this hierarchy; any officer who has gone out of this hierarchy such as the officers holding posts directly under the Government cannot be said to be within this hierarchy of Judicial Officers as long as they are under the Government.
121. The case of State of Assftm v. Horizon Union and Anr.13 (Civil Appeal No. 1565) decided by the Supreme Court on September 23, 1966 decided the limited question whether an officer Shri B.C. Dutta, while Registrar of the Assam High Court, could be treated to have "been" an Additional Judge. This was a case decided in the particular context for determining the qualification for appointment as the Presiding Officer of an Industrial Tribunal u/s 7-A(3) of the Industrial Disputes (Amendment) Act (No. 36 of 1964), which requires that a person shall not be qualified for appointment as a Presiding Officer of a Tribunal unless he has, for a period of not less than three years, been a District Judge or an Additional District Judge. This decision was relied on behalf of the Petitioners in support of their case that the Registrar appointed by the Chief Justice as an Officer of the Court, continues to be District Judge. In other words, their point is that in the present case, the three officers, though holding posts directly under Government, continue to remain District Judges. In my opinion the State of Assam v. Horizon Union13, does not support this proposition of the Petitioners. The facts of the case were peculiar. The Supreme Court, while noticing the special circumstances, observed thus:
The records show that until April 24, 1958 the Government continued to retain Shri Dutta in his office of Additional District Judge. On'' this footing, the Government passed- an order on March 26, 1958 whereby Shri Dutta, then officiating Registrar, of the High Court was confirmed in Senior Grade II with effect from February 16, 1957. On April 2"4, 1958 he was confirmed in Senior Grade I with effect from May 2, 1957. On June 10, 1959 he retired from the office of Registrar the High Court omitted to consider whether he continued to hold the office of an Additional District Judge after March 8, 1957.
On the facts and the footing as quoted above, the Supreme Court decided that for over three years Shri Dutta held the post of an Additional District Judge. Evidently the officer was treated to have been (it was not necessary that he must have actually worked as) an Additional District Judge for the purpose of qualification for the post of the Presiding Officer, Industrial Tribunal. In any event, as I have already expressed, the post of Registrar as an officer of the High Court cannot be equated with the holders of executive posts directly under and absorbed therein as a part of the Government.
122. Now, I come to another point: The issue of the High Court Notification dated October, 10, 1966 appointing the three officers as District and Sessions Judge in the different Judgeships and Sessions Divisions at different stations is stated to be not regular on the ground that the procedure, as required by law, to give effect to the High Court''s decision to transfer, was not followed in this case. In support of this submission the State Government relied on the provisions of section of the Code of Criminal Procedure and Section 6 of the Bengal, Agra and Assam Civil Courts Act, 1887 (Act 12 of 1887).
123. The point of the State Government is that after the High Court decides about the transfer of a particular District Judge from one Court to another, the process of transfer is not complete -until the State Government issues the necessary notification and order in conformity with the provisions in the said statutes which are part of the existing law of the land. Section 9 of the Code of Criminal Procedure provides as follows:
9. (1) The State Government shall establish a Court of Session for every Sessions Division, and appoint a Judge of such Court.
(2) The State Government may, by general or special order in the Official Gazette, direct at what place or places the Court of Sessions shall ordinarily hold its sitting; but if, in any particular case, the Court of Sessions is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sitting at any other place in the Sessions Division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein.
(3) The State Government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A Sessions Judge of one Sessions Division may be appointed by the State Government to be also an Additional Sessions Judge of another Division, and in such case he may sit for the disposal of cases at such place or places in either division as the State Government may direct.
(5) ...Section 6 of the Bengal, Agra and Assam Civil Court Act, 1887 is this:
"6. (1) Whenever the office of District Judge or Subordinate Judge is vacant by reason of the death, resignation of removal of the Judge or other cause, or whenever an increase in the number of District or Subordinate Judges has been made under the provisions of Section 4, the State Government or, as the case may be, the High Court may fill up the vacancy or appoint the Additional District Judges or Subordinate Judges.
(2) Nothing in this section shall be construed to prevent a State Government from appointing a District Judge or Subordinate Judge to discharge, for such period as it thinks fit, in addition to the functions devolving on him as such District Judge or Subordinate Judge, all or any of the functions of another District Judge or Subordinate Judge, as the case may be.
124. The question is: Whether these provisions conflict with the High Court''s control over District Courts and Courts Subordinate thereto under Article 235? In my opinion, they do not conflict with the High Court''s control over the working of the Judiciary or the day to day "control over District Courts and Courts Subordinate thereto" under Article 235. The reasons are these: What these provisions lay down is the procedure for giving effect to the High Court''s decision to transfer a District and Sessions Judge; these provisions do not in any way purport to put any restriction on the High Court''s control over District Courts and Courts Subordinate thereto under Article 235. The power of transfer and selection of the personnel to be so transferred as District and Sessions Judge at a particular station is with the High Court. The State Government, as the Executive, is only to execute and give effect to the High Court''s decision. It is in this sense that the provisions of the statutes quoted above are to be read and understood. Section 9 of the Code of Criminal Procedure and Section 6 of the Bengal, Agra and Assam Civil Court Act read with the Article 235 of the Constitution indicate that there are more than one agencies-High Court and the State Government-to implement the High Court''s decision to transfer a District and Sessions Judge it is the duty (and not power) of the State Government to carry out the High Court''s decision of transfer and to make the necessary arrangements accordingly. In fact, if the State Government do not issue the necessary notification of such transfer pursuant to the decision of the High Court, or be in any way obstructive, the State Government may be compelled to issue such notification in compliance with the High Court''s decision; that power is with the High Court, so much so that an appropriate writ may be issued by the High Court against the State Government accordingly.
125. Thus understood, the provisions of Section 9 of the Code of Criminal Procedure and Section 6 of the Bengal, Agra and Assam Civil Courts Act only lay down the manner in which and the agency by which the High Court''s control over District Courts and Courts Subordinate thereto in the matter of transfer of District and Sessions Judges is to be exercised and given effect to: these provisions lay down the procedure for the exercise of the control by the High Court; in that connection certain functions or duties have been enjoined on the Government as laid down in the Code of Criminal Procedure and the Bengal Agra and Assam Civil Courts Act. The law envisages and in fact contemplates and pre supposes harmonious working between the two authorities, namely, the High Court and the State Government. The principle of separation of powers-the three functions of a welfare State, Legislative, Judicial and Executive-is based on mutual respect and mutual understanding of each other''s functions for the common good of the people. If this very fundamental principle underlying the constitution is kept in view, there is no scope for any conflict.
126. The transfer of a District and Sessions Judge from a particular station to another station envisages two things: First, decision and selection of the personnel to be so transferred as a District and Sessions Judge are entirely with the High Court under Article 235. Secondly, in order to give effect to this decision, the State Government has certain functions which are ]aid down in the said provisions of the Code of Criminal Procedure and the Bengal Agra and Assam Civil Courts Act.
127. This view is further supported by the provisions in Article 246(3) read with ''List II-State List'' which provides that the State Legislature has exclusive power to make Jaws for such State with respect to any of the matters enumerated in
List II in the said Schedule including items 3 and 65 in the List, namely,
"3. Administration of justice, constitution and organisation of all Courts except the Supreme Court and the High Court: officers and servants of the High Court: procedure in rent and revenue Courts: fees taken in all Courts except the Supreme Court.
... ... ...
65. Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List.
Therefore, there is no question of repugnancy between the High Court''s ''control over District Courts Subordinate there to'' under Article 235 and the State Government''s function and duties to implement or to execute the High Court''s orders and decisions in that respect, as a matter of procedure u/s of the Code of Criminal Procedure and Section 6 of the Bengal, Agra and Assam Civil Courts Act. These statutes are part of the existing law of the land: these provisions have not been repealed; no such construction should be given as to make the well established provisions of the existing law nugatory which is a fundamental rule of interpretation whether for construction of the provisions of the Constitution or an Act of Parliament as laid down by the Supreme Court in Chandra Mohan v. the State of Uttar Pradesh1.
128. In the light of the above discussions, it appears that the issue of the notification dated October] 0, 1906 by the Registrar, transferring the three officers as District and Sessions Judge in the different Judgeships and Sessions Divisions at different stations as notified therein, was not regular as not having been in compliance with the procedure laid down in Section 9 of the Code of Criminal Procedure and ''Section 6 of the Bengal, Agra and Assam Civil Courts Act.
129. On a careful perusal of the records in this case, a further question arises: was the order of the particular transfers by the High Court notification dated October 10, 1966 issued with the prior concurrence of or in immediate prior consultation with or even on immediate prior intimation to the Governor or the State Government? There is nothing on record in this proceeding to show any such concurrence, or immediate prior consultation or even immediate previous intimation about the particular impending changes by transfers of the particular personnel to particular posts at particular stations as effected by the notification. In fact, as regards Shri K.B. Panda''s transfer as Law Secretary to the Government, there was not even any such prior proposal from the High Court to the Government at any time before the issue of the said High Court notification dated October 10, 1966. In my opinion, the High Court notification having been forthright issued neither with the prior concurrence of nor in immediate prior consultation with nor even on immediate previous intimation to the Governor or the State Government under whom the three officers-Law Secretary, Legal Remembrancer and Member, Sales-tax Tribunal-are working cannot be reasonably implemented. That apart, such order of transfers by the High Court notification in the manner done from and to posts directly under Government amounts to conflict or interference with the powers and duties of the Governor and the State Government under the Constitution and the existing law. In my opinion, no effect can be given to the High Court notification because it is unworkable as involving conflict of powers of the High Court and Governor of the State Government.
130. This view about the conflict of powers and duties is further supported by certain interesting features of the said notification dated October 10, 1966 which need special consideration with particular reference to some of the posts directly under Government.
131. The post of Member, Sales tax Tribunal, of which Shri P.C. De is the present incumbent, is an ex cadre post-not included in the Orissa Superior Judicial Service cadre. The position with regard to this post is, therefore, different from the other posts affected by the notification. u/s 3 of the Orissa Sales Tax Act, 1947, it is the State Government who appoints a person as Sales-tax Tribunal which is a post under the Finance Department as appears from the First Schedule of the Orissa Government Rules of Business. The services of Shri P.C. De were placed at the disposal of the Finance Department: thereafter, he was appointed by the State Government as the Member, Sales-tax Tribunal. The High Court by the said notification dated October 10, 1966 transferred Shri P.C. De then holding the post of Member, Sales-tax Tribunal in the Finance Department of Government as District and Sessions Judge, Bolangir. The portion of the High Court notification, so far as it relates to Shri P.C. De''s transfer, is quoted as follows:
201/A-Shri P.C. De, Member, Sales-tax Tribunal is transferred as District and Sessions Judge in the Judgeship and Sessions Division of Bolangir-Kalahandi with head-quarters at Bolangir.
... ... ...
Copy forwarded to Shri P.O. De, Member, Sales-tax Tribunal for information and necessary action.
He is requested to make over charge of his present post in the afternoon of 19-10-1966 and join as District and Sessions Judge, Bolangir in the forenoon of 30-10-1966.
The question is: What is the effect of this part of the notification concerning the post of Member, Sales-tax Tribunal directly under Government? In my opinion, the High Court order Shri P.C. De''s transfer from his post of Member, sales-tax Tribunal as District and Sessions Judge is not regular. His services were placed at the disposal of the Finance Department of Government. It was only after Government places back Shri P.C. De''s services at the disposal of the High Court, that the High Court can transfer him as a District and Sessions Judge by virtue of control under Article 235. In my opinion, as long as Shri De is in the service directly under Government holding the post in the Finance Department, the High Court cannot transfer him straight from the post of Member Sales-tax Tribunal to that of a District and Sessions Judge. Such order of transfer was without jurisdiction.
132. Then as regards Shri K.B. Panda, he was at the time holding the post of Special Officer in the Home Department of Government-a post not included in the cadre of the Orissa Superior Judicial Service; he was still working in connection with the Commission of Enquiry, Students'' Agitation for the purpose of winding up the affairs of the Commission. The High Court by the said notification dated October 10, 1966, without even making any prior proposal to the Government in this respect with regard to Shri K.B. Panda at any time, transferred him from the post of Special Officer in the Home Department as Secretary to Government, Law Department The portion of the High Court notification dated October 10, 1966, so far as it relates to Shri K.B. Panda, is this:
196/A-Shri K.B. Panda, now working in connection with the Commission of Enquiry, Students'' Agitation, is transferred as Secretary to Government of Orissa, Law Department, Bhubaneswar.
Copy forwarded to Shri K.B. Panda for information and necessary action.
He is requested to make over charge of his present post in the afternoon of 31-10-1966 and join as Secretary to Government of Orissa, Law Department as soon as possible.
So, the High Court transferred Shri K.B. Panda from the Home Department to the Law Department. It is not understandable how the High Court could transfer an officer of one Department of Government to another Department of Government. In my opinion, such transfer was without jurisdiction.
133. As regards the transfer of Shri P.K. Mohanti from his present post of District and Sessions Judge, Bolangir-Kalahandi to the post of Deputy Secretary to Government is the Law Department, the position is this: The post of Deputy Secretary to Government in the Law Department is included in the Orissa Superior Judicial Service cadre. At the point of time when the High Court by notification dated October l0, 1966 transferred Shri P.K. Mohanti as Deputy Secretary in the Law Department, there was no officer holding such post. Evidently, the post of Deputy Secretary was in abeyance for the time being In fact, by virtue of the proviso to Sub-rule (3) of Rule 4 of the Orissa Superior Judicial Service Rules, it is open to the Governor in consultation with the High Court to keep in abeyance or leave unfilled any post in the cadre as may be considered necessary from time to time. There was at the time no incumbent of the post in whose place Shri P.K. Mohanti was transferred by the High Court. The portion of the High Court notification dated October 10, 1966, so far as it relates to Shri P.K. Mohanti, is this:
"200/A-Shri P.K. Mohanti. District and Sessions Judge, Bolangir-Kalahandi, Bolangir is transferred as Deputy Secretary to the Government of Orissa, Law Department, Bhubaneswar.
... ... ...
Copy forwarded to Shri P.K. Mohanti, District and Sessions Judge, Bolangir-Kalahandi for information and necessary action.
He is requested to make over charge to his successor on his joining there and join as Deputy Secretary to the Government of Orissa, Law Department., Bhubaneswar, as soon as possible."
There is nothing on record of this proceeding to show that at the time the High Court issued the notification dated October 10, 1906, the State Government wanted or finally decided to fill up again the post of Deputy Secretary in the Law Department which remained unfilled for some time part. It is not understandable how-without previously ascertaining from Government their final decision about filling up again the post of Deputy Secretary in the Law Department-could the High Court suo motu issue the notification transferring Shri P.K. Mohanti as Deputy Secretary in the Law Department. In any event, this transfer was also not regular and was without jurisdiction.
134. In the result, therefore, for the reasons stated above, the Petitioners are not entitled to any of the reliefs prayed for in the petitions. So, all the six writ petitions-O.J.C.
Nos. 495, 496 of 1966 and O.J.C. Nos. 3, 4, 27 and 28 of 1967-must fail and are all accordingly dismissed. Each party to bear own costs throughout.
O.J.C. No. 495 of 1966 No. 496 of 1966 No. 3 of 1967 No. 4 of 1967 No. 27 of 1967 and No. 28 of 1967
Misra, J.-Officers in the Judicial Service of this State constitute four Grandes-
(i) Munsifs
(ii) Subordinate Judges
(iii) Additional District Magistrates (Judicial)
(iv) District and Additional District and Sessions Judges.
The Orissa Judicial Service Rules, 1964 regulate the methods of recruitment of Munsifs and Subordinate Judges and their conditions of service. By Rule 3(1), that Service consists of posts in the Judicial Service of the State other than the posts in the Orissa Superior Judicial Service constituted under the Orissa Superior Judicial Service Rules, 1963.
By Rule 3(2), the Service comprises of two branches, namely,
(i) the Orissa Judicial Service, Class I, consisting of
Subordinate Judges, and
(ii) the Orissa Judicial Service, Class II, consisting of
Munsifs.
The Orissa Judicial Service Rules, 1964 were made by the Governor of Orissa after consultation with the High Court and the Public Service Commission of the State in exercise of the powers conferred by the proviso to Article 309 read with Article 234 of the Constitution of India. Under Rule 4, recruitment to the posts of Subordinate Judges shall be made by the High Court by promotion from amongst the Munsifs. This rule is in consonance with the provisions of Article 235 of the Constitution that the power of posting and promotion of persons in Judicial Service holding any post inferior to that of District Judges vests in the High Court.
136. The Orissa Superior Judicial Service Rules, 1963 were made by the Governor of Orissa for the regulation of recruitment to posts in, and the conditions of service of persons
appointed to, the Orissa Superior Judicial Service, in exercise of the powers conferred by the proviso to Article 309 of the Constitution.
Under Rule 3(d), "Service" means the Orissa Superior Judicial Service.
Rule 4(1) prescribes that the cadre of the Service shall consist of two branches namely,
(i) Superior Judicial Service, Senior Branch,
and
(ii) Superior Judicial Service, Junior Branch. The cadre of the Superior Judicial Service, Junior Branch, consists of 9 Additional District Magistrates (Judicial). Under Rule 10, recruitment to the posts of ADMs (Judicial) shall be made by the High Court by promotion from amongst Subordinate Judges. Rule 10 is in consonance with High Court''s power under Article 235.
Under Rule 4(2), the cadre of the Superior Judicial Service, Senior Branch, shall be comprised as follows, namely
(1) District and Sessions Judges:... 8
(2) Additional District and Sessions Judges: ... 2
(3) Secretary to Government in Law Department: .. 1
(4) Superintendent and Legal Remembrancer: ... 1
(5) Deputy Secretary to Government in Law
Department:... 1
(6) Registrar, High Court:... 1
(7) Member, Administrative Tribunal:... 1
The Proviso to the rule is to the effect-Provided that the Governor may, in consultation with the High Court, create such further number of permanent or temporary posts in the aforesaid cadres of the::Service or may keep in abeyance, or leave unfilled any post in the said cadres as may be considered necessary from time to time.
137. Till the decision of the Supreme Court on 21-9-1906 in the case of State of Assam v. Rana Muhammad and Ors.1, hereinafter referred to as Rana Muhammad''s easel, the prevailing notion in this State was that the word "posting" in Article 233(1) of the Constitution meant "transfer." Accordingly all transfers of members of the Superior Judicial Service, Senior Branch, were being made by the Governor in consultation with the High Court under Article 233.
138. While working as District Judges in different judgeships, Shri P.C. De (opposite party No. 1), Shri B.K. Patro (opposite party No. 5) and Shri K.K. Bose (Opposite party No. 6) in O.J.C. 49/66 were respectively transferred as Member, Sales-tax Tribunal, Superintendent and Remembrancer of Legal Affairs, and Additional Legal Remembrancer on 31-1-62, 7-3-62 and 12-3-62. By March, 1905 each of them had put in a period of three years in their respective special post". In February, 1965 the High Court took a policy decision that as a general rule, Judicial Officers working in special posts outside the regular judicial line, whether cadre or non-cadre, should be recalled to the regular line after completion of three years in the interest of the Service and of the Officers, so that the officers may not deteriorate by remaining out of touch with the regular judicial work for continuously long periods. In pursuance of the policy, letters were addressed from the High Court to the Government calling upon the latter to replace the Services of these officers in the general line and to take three other officers as their substitutes.
139. Government were not responsive. In their letter dated 16-4-65 they went so far as to say that the Services of Shri P.C. De Could not be spared as a number of important cases were pending before the Tribunal for decision on Sales-tax revenue. Cases under the Sales-tax Act are to be judicially determined by the Tribunal and can be disposed of by any District Judge. It is difficult to imagine the imperative necessity for a particular officer to continue as Sales-tax Tribunal for more than three years whatever he the importance of the cases. Besides these three officers, two other officers, namely, Shri B.C. Das and Shri I.C. Misra, had remained in the special posts for more than three years by then. Government did not agree to return even these officers to the general line despite Court''s letter dated 31-7-1963. Thus Government paid scant regard to the opinion of the High Court taking the view that they had absolute power under Article 233 to retain the Services of all officers in the special posts.
140. In his letter dated 2-9-1965, the Home Secretary went so far as to say that:
"Article 233 provides about postings and promotion of the District Judges in the State, which will be done by the Governor in consultation with the High Court. It is upto to the Government to decide such cases in consultation with the High Court. "Consultation" does not mean "concurrence" and therefore Government have the final say, of course after advice of the High Court is obtained, especially in respect of the posts directly under the Government."
Contrary to the opinion of the High Court, Shri B.K. Patro, Legal Remembrancer, was appointed Law Secretary and Shri K.K. Bose, Additional Legal Remembrancer, was appointed as Legal Remembrancer. The stand taken by the High Court was subsequently vindicated by the following observation of the Supreme Court in Rana Muhammad''s case1-556 Consultation loses all its meaning and becomes a mockery if what the High Court has to say is received with m grace or rejected out of hand. In such matter the opinion of the High Court is entitled to the highest regard.
141. As the views of the State Government not to relieve these officers from the special posts were well known, further correspondence in the matter would have served no useful purpose before issuing the impugned notifications for transfer on 10-10-66. Subsequent reaction of the Government amply justifies Courts attitude in not resorting to dilatory tactics by way of further correspondence. The basic fact remains that it become a matter of public scandal that the Government paid scant regard to the opinion of the High Court.
142. The counter affidavit of the Chief Secretary to the Government (Opposite Party No. 3) is elaborate and opposite parties 1, 2 and 4 to 6 have more or less adopted the same. The stand of the Government as presented in the counter affidavit may be briefly noticed. Article 235 vests the power of control in the High Court only over the District Courts including the officers presiding over such Courts. The High Court has no control over an officer in the Judicial Service nut presiding over District or any Court. As such, the High Court has no control over a Law Officer or an Administrative officer under the Government, notwithstanding the fact that prior to his appointed as a Law Officer or as an Administrative officer, he was a District Judge or a member of the subordinate Judicial Service.
143. On the aforesaid statements of the constitutional position, it was conceded on behalf of the State in the counter affidavit itself that the control over the 8 District Judges in the 8 judgeships of the State, 2 Additional District Judges, and the Registrar of the High Court, vests in the High Court, and as such, the High Court has full power to transfer these 11 officers inter so. It was, however, averred that the High Court had no power to transfer a District Judge to any of the special posts, conceding at the same time that the Government had also no power to transfer a District Judge to a special post or from a special post to a District Judge. Government claimed full power of transfer amongst the special posts inter se. It was conceded in the counter affidavit that in the cadre of the:Superior Judicial Service, a person holding a special post can be transferred as a District Judge and similarly a District Judge can be transferred to a special post. This according to them, can be done only by agreement between the High Court and the Government, and no such transfer can be done unless there is concurrence of both. A further stand was taken that the moment a District Judge is transferred to a special post, he ceases to be a District Judge and when be is transferred from a special post to the post of a District Judge, he is to be again appointed as a District Judge under Article 233 of the Constitution.
144. At the opining of his argument, the learned Advocate-General conceded that he would not support the assertions of the State in the counter affidavit that on transfer of a District Judge from the regular line to a special post, he ceases to be a District Judge and that again he is to be appointed as a District Judge under Article 233 when he is re-transferred from the special post to the general line.
145. The concession of the learned Advocate-General is well founded. All the members of the Superior Judicial Service have been appointed as District Judges either by District recruitment from the Bar under Rule 8 or by promotion under Rule 9 of the Orissa: Superior Judicial Service Rules, which have been framed in consonance with Article 233 of the Constitution. Out of 15, 4 have been appointed from the Bar under Rule 8 and 11 have been promoted from the rank of Subordinate Judges under the Superior Judicial Service Rules, 1949. If the contention that on transfer to the special post from the general line they cease to be District Judges, be correct, obviously they cannot be again appointed as District Judges at the time of their transfer from the special posts to the general line. The promoted officers, while holding the special posts, would cease to be members of the Judicial Service on their own argument. They are not also members of the Bar having the minimum requisite period practice and can have no recommendation of the High Court. It follows that on retransfer they cannot be appointed as District Judges-under Article 233 if they cease to be District Judges while holding the special posts. On their fresh appointment, they must lose their seniority, pay and other prospects. In the matter of getting Selection Grade, their previous work, either as District Judges or in the special posts, must be ignored. In their frantic effort to retain the Officers, the State advanced an absurd proposition in the counter affidavit which the learned Advocate-General fairly and rightly abandoned.
146. The substantial contention advanced by the learned Advocate-General may now be noticed. Article 233 vests control in the High Court over District Courts and Courts subordinate thereto, except in certain stated matters. The expression "District Court" is narrower than the expression "District Judge". The 15 members constituting the Superior Judicial Service were recruited satisfying the qualifications prescribed for appointment of District Judges under Article 233. 11 of them were promoted from the subordinate. Judicial Service and 4 of them were recruited from the Bar. Though all the 15 members were either appointed or promoted as District Judges, all of them do not preside over District Courts. 10 of them (8 District Judges and 2 Additional District Judges) preside over Courts. The Registrar is under the control of the High Court. The residual 4 District Judges, namely Law Secretary, Legal Remembrancer, Deputy Secretary, Law, and the Administrative Tribunal do not preside over Courts. High Court has control under Article 235 only over those 10 District Judges, who preside over Courts, and the Registrar, and not over the rest who do not preside over Courts but work in executive, administrative or quasi Judicial posts.
147. If the aforesaid contention is correct, the writ applications are bound to be dismissed as the High Court would have no jurisdiction to transfer those four officers.
148. In support of the aforesaid view, the learned Advocate-General contends that in Articles 233 to 236 a distinction has been made between a person appointed as District Judge and a District Court. The expression "District Court" has been used only in Article 235. This difference in the two expressions used in different Articles is not irrelevant or purposeless and must be kept in view in answering the problem. According to him, the Supreme Court held that the power of transfer comes within the expression "control" in respect of District'' Courts and of the District Judge presiding therein and connected with the working thereof. He argues that different words used with different meanings must be given due weight, and a particular decision must be taken as deciding the law in its own context and facts and should not be extended beyond its periphery. Reliance was placed on Hill v. William Hill (Park Lane) Ltd. 1949 App. Cases 530., and Baker v. Oaks (1876) 2 Q.B.D. 171. These decisions merely emphasise the elementary principle that the Law, laid down in a case, cannot have universal application dehors the facts and circumstances of that case. Those decisions, however, do not establish the converse that the principle enunciated in a particular case must only be confined to its own facts and has never any wider application. It need hardly be stressed that in applying the ratio decidendi of one case to another, the Court must look to the principle enunciated and see whether it has any wider application beyond the facts and circumstances of the case in which it was laid down, whether it has wider or narrower application would again depend on the facts and circumstances of each case.
149. The scope and ambit of Article 235 have been fully explained in the three successive decisions of the:Supreme Court in
150. In Bagchi''s case, the facts may be stated. Bagchi was an Additional District Judge and had been granted leave by the Government from July 17, 1953 preparatory to retirement. On July 20, 1953 he was placed under suspension and an inquiry was started against him by the Government and not by the High Court. On May 27, 1954 he was dismissed. Bagchi contended that the control of the District Judges vested in High Court and the power to start disciplinary proceeding came within the ambit of the word "control".:Supreme Court upheld this contention and quashed the orders of dismissal as being unconstitutional. In reaching that conclusion, their Lordships observed thus This group of Articles (meaning Articles 233 to 236) is intended to make special provision for the Judicial Service of the State. (Para 7.)
151. As the word "control" is not defined in the Constitution, their Lordships had to take resort to the history lying behind the enactment of these Articles. Their Lordships observed-
...the history which lies behind the enactment of these Articles indicate''s that "control" was vested in the High Court to effectuate a purpose, namely, the securing of the independence of subordinate judiciary and unless it included disciplinary control as well the very object would be frustrated. This aid to construction is admissible became to find out the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sough to be removed and the process by which the law was evolved. The word "control", as we have seen, was used for the first time in the Constitution and it is accompanied by the word "vest" which is a strong word. It shows that the High Court is made the sole custodian of the control over the judiciary. Control, therefore, is not merely the power to arrange the day) to day working of the Court but contemplates disciplinary jurisdiction over the presiding Judge. (Para 13.)
Their Lordships again observed...but the control over the District Judge is of the High Court. We are not impressed by the argument that the word used is "District Court" because the rest of the Article clearly indicates that the word "control" 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... ... ... 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 requires 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. (Part 14.)
Their Lordships further observed-
... ... ... the control which is vested in the High Court is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court, the High Court can hold inquiries impose punishments other than dismissal or removal, subject however to the conditions of Service, and a right of appeal if granted by the conditions of Service, and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 ... ... ... (Para 18.)
152. Doubtless the meaning of the word "control" in Article 235 was examined to decide the question whether the High Court or the Government had disciplinary control over the District Judges. The learned Advocate-General emphasised that the Supreme Court in more places than one observed that the control extended only to District Judges presiding over District Courts and that the general observations of their Lordships at other places regarding vesting of control in the High Court to effectuate the independence of the Subordinate Judiciary or that the control is a complete control or that the High Court was the sole custodian of the control over the Judiciary must be given a restricted meaning and would be confined to the other observations that control must pertain to District Judges working in Courts.
153. I am unable to accept such a contention. Bagchi was not presiding over any Court and was in fact on leave preparatory to retirement. The argument of the learned Advocate-General that so long as a District Judge is on leave and is not placed ''under the administrative control of some other authority, he:must be taken to be discharging duties pertaining to a Court, is not at all convincing. Even assuming that Bagchi would be taken to be the Presiding Officer of a Court, their Lordships had to examine if "District Court" in Article 235 would mean merely the Court or include the Presiding Judge.
154. Though Bagchi''s case did not directly relate to a case of a District Judge working under the Government, the observations of their Lordships in relying upon the history of the constitutional enactments for securing the independence of the Judiciary cannot be confined only to the facts of that case. The prior state of the law, the evil sought to be removed and the process by which law was evolved were traced out only to determine the contents of the word "control" in Article 225. Their Lordships'' observations in the aforesaid paras that control vested in the High Court for securing the independence of the Subordinate Judiciary, that the High Court is made the sale custodian of the control of the Judiciary and that the control, which is vested in the High Court, is accomplete control subject to the stated exceptions as mentioned in para 18, Cannot be limited merely to the facts of Bagchi''s case. They have much wider application and fully explain the meaning of the word "control" in Article 235.
155. Though the question of the power to grant leave to the District Judges is not in issue in the case before us, it was contended by the learned Advocate-General that the power to grant leave to the District Judges vested in the Government and not in the High Court, and the question was raised only to illustrate that High Court''s power was not absolute or complete as was observed by the Supreme Court in para IS. Reliance was placed on the first part of Article 235 to the effect "the control over District Courts and Courts Subordinate thereto including the posting and promotion and grant of leave to persons belonging to the Judicial Service of a State and holding any post inferior to the post of a District Judge, shall be vested in the High Court, "The argument runs thus:
156. Power of appointment and promotion of District Judges under Article 233 is excluded from the ambit of the word "control" in Article 235. So far as persons belonging to the Judicial Service of the State and holding any post inferior to the post of District Judges are concerned, the power of posting and promotion and the grant of leave to them is expressly vested in the High Court. It is argued that but for this inclusive definition the power of posting and promotion of officers holding any post inferior to that of a District Judge and the power to grant leave to them would not have come within the ambit of the word "control", and by necessary implication, the grant of leave is excluded from the contents of the word "control" in Article 235 and the High Court has no power to grant leave to the District Judge. Though the contention cannot be said to be without force, I am unable to accept it.
157. To appreciate it, the corresponding Section 255(3) of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act) may be compared with the first part of Article 235. The relevant portions of Section 255(3) run thus-
The posting and promotion of and the grant of leave to persons belonging to Subordinate Civil Judicial Service of a Province and holding any post inferior to the post of District Judge shall be in the hands of the High Court
Two constructions are possible. One is that by the inclusive definition, the power of the High Court to grant leave to District Judges is excluded by necessary implication. The rival view is that the inclusive portion was inserted ex abundanti cautela to avoid a possible argument that those powers did not come within the word "control" unless in express terms the relevant portions of Section 255(3) were incorporated in Article 235. The second view seems to be more plausible. The framers of the Constitution could have expressly stated that the power to grant leave to the District Judge is excluded from the ambit of the expression "control over the District Courts". The contention of the learned Advocate-General does not fit in with the view of the Supreme Court as to the meaning of "control". If the power to start disciplinary proceeding and to transfer the District Judges from one Judgeship to another vests in the High Court, it is difficult to imagine that the power to grant leave would be outside the powers of the High Court. The very process by which their Lordships reached their conclusion by examining the history of the constitutional enactments and how the independence of the Judiciary was desired to be achieved by giving control to the High Court would lead to the necessary conclusion that the word "control of District Courts" unrestricted by any express language not to grant leave vests the power to grant leave to the District Judges in the High Court. The learned Advocate-General''s view is supported by the observations of Mr. Justice. P.B. Mukherji in para 23 of his judgment in Nripendra Nath Bagchi v. Chief Secretary to Government, West Bengal4. The view that I have taken is supported by the observations of Mr. Justice P.N. Mukherji in para 120 of the same decision. My view gains strength from the observation of the Supreme Court in Bagchi''s case. In para 14 their Lordships refer to this part of Article 235. The final conclusion expressed in para 18 that the control which is vested in the High Court is a complete control, subject to certain stated exceptions enumerated therein leaves no room for doubt that their Lordships did not purport to exclude the power to grant leave from the word "control". The observations of Mr. Justice P.B. Mukherji to the contrary was directly before their Lordships and if they had accepted that view, in para 18 of their judgment they could have also included the grant of leave to the District Judges as coming within the stated exceptions. I am clearly of opinion that the power to grant leave to all the members of the Judicial Service including District Judges vests in the High Court.
158. In Oxford Dictionary, the meanings of the word "control" are very wide. Those are:
The fact of controlling or of checking and directing action. The function or power of directing or regulating.
The power of appointment and promotion of a District Judge is excluded from control not by virtue of any express exclusion in Article 235 but by virtue of the specific provision in Article 233. The Constitution could have expressly made exclusion of any other contents from control if that were the intention.
159. Chandramohan''s case3, has no direct bearing on the interpretation of the word "control". It is however a direct authority on the point that a person can be promoted as a District Judge only from amongst persons holding any post inferior to that of a District Judge in the Judicial Service and from no other Service. It was held that the definition of "Judicial Service" in Article 236(b) is exhaustive of the Service and that the Judicial Service consists of a hierarchy of Judicial Officers starting with the lowest and ending with the District Judges. Their Lordships said-
"The expressions "exclusively" and "intended" emphasise the fact that the Judicial Service consists only of persons intended to fill of posts of District Judges and other Civil Judicial posts and that is the exclusive Service of the Judicial Officers" It is on this view it was ruled in that case that the Governor had no power to appoint any person from any Service other than Judicial Service as a District Judge.
160. After Chandramohan''s case3, the contention that a District Judge transferred to a special post ceases to be a District Judge is wholly unacceptable. Doubtless when a District Judge is transferred as Law Secretary, or Legal Remembrancer, he does not function as a District Judge in the sense of presiding over a Court. He has no power to pass judgment as a District Judge does. He however does not cease to be a member of the Judicial Service wherein he continues to occupy the rank of a District Judge. The nature and character of his service as a District Judge in the Judicial Service do not come to an end because he does not preside over a Court. The cadre of the Superior Judicial Service consists of 15 posts. What would be the strength of the cadre is determined after taking into account the requirement of posts which are to be manned by persons having qualifications of a District Judge and recruited as such. It is open to the Government to amend the Superior Judicial Service Rules and take a policy decision that in future the special posts would not be recruited from members of the Judicial Service. But so long as such a policy decision has not been taken, those posts must be filled up only from amongst District Judges. The hands of the Governor are tied. The Judicial Service is the source from which the members of the special posts spring. A River cannot rise higher than its source. The incumbents of the special posts would continue to be members of the Judicial Service functioning not as District Judges presiding over Courts but in the particular administrative work to which they are assigned. A sitting High Court Judge working as Commission of inquiry would not cease to be a High Court, Judge merely because an inquiry beyond the ordinary sphere of his work is entrusted to him. In other words, the incumbents in the 4 special posts are members of the Judicial Service. They are subject to the control of the High Court, though at a particular point of time the member might be working under some other authority and is not under the day to day administrative control of the High Court.
161. The learned Advocate-General frankly conceded that initially the High Court had complete control over these officers before their appointment to the special posts. He, however, contends that the High Court''s power of control becomes suspended until the Government returned those officers. He went to the length of saying that the Government can retain the services of these officers for the entire period of their service, however long, once they are transferred to the special posts. A question was put to him as to which authority has power to revive High Court''s control after its suspension and under what constitutional provisions? The learned Advocate-General could not give any satisfactory reply. The constitutional power vested in the High Court cannot be suspended or bargained even at the wish of the High Court.
162. The learned Advocate-General contended that transfer to a special post and retransfer therefrom to the general line are possible only by agreement between High Court and the Government, and unless an agreement is reached there cannot be such inter se transfers. This argument is also unacceptable. Firstly, the constitutional power vested in the High Court cannot be delimited by any contractual agreement; and secondly, in the very nature of it, it is unworkable. If ultimately there is disagreement, there must be one single authority whose voice would prevail. It may be either the Government or the High Court, but certainly not both. Before the decision of the Supreme Court in Rana Muhammad''s case1 the power of transfer was construed to have vested in the Government to be exercised under Article 233 in consultation with the High Court, Cases were not rare in which Government''s view prevailed as final. In fact, in this very case, Shri B.K. Patra, and Shri K.K. Bose had been transferred by the Government from the posts of Legal Remembrancer to Law Secretary and from Additional Legal Remembrancer to Legal Remembrancer respectively in complete disregard of the High Court''s opinion. After Rana Muhammad''s case the position has merely reversed. The final voice rests with the High Court and there is nothing for the Government to feel Bore over it. As a matter of fact, the observation of the Supreme Court is-
As the High Court is the authority to make transfers, there was no question of a consultation on this account
It is conceded on behalf of the Government that in respect of 11 posts out of 15, the High Court has got final say. It would be difficult to imagine that in respect of other 4 posts the power would Dot vest either in the High Court or in the Government, but would vest in an ethereal conception of the power being exercised by agreement. I find absolutely no difficulty in rejecting the contention that the incumbents of the 4 special posts ceased to be members of the Judicial Service during the period they work in the special posts, or that the power of transferring them did not vest in the High Court.
163. The learned Advocate-General very fairly conceded that if the word "control'' in Article 235 would cover even cases of transfers of District Judges not presiding over Courts, then there is no conflict of power and the notifications are valid and within jurisdiction and the Governor is bound to carry out such notifications.
164.. In Rana Muhammad''s case1, no new principle was laid down. Their Lordships only construed "posting" to mean "posting to a job" and not transfer from one station to another. Two observations made in this case support the conclusion that control in Article 235 is over all the members of the Judicial Service including persons not presiding over Courts. In strong language their Lordships expressed thus
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 the 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.
The expression "including the control of persons presiding there" was expressed in that case as "directly the transfer of a Presiding Judge was in issue. But there is no justification for confining those words only to the Presiding Officers of the Courts and not to the other members of the Judicial Service not presiding over Courts at a particular point of time.
165. One more decision of the Supreme Court State of Assam v. Horizon Union and Anr. 10, Rana Muhammad''s case C.A. No. 1565 of 1966, needs notice though it does not throw any light on the constitutional question. The question in that case was whether Shri B.C. Dutta was qualified for appointment as the Presiding Officer of an Industrial Tribunal u/s 7 -A(3) of the Industrial Disputes Act, 1947. He had to satisfy the best u/s 7-A(3)(aa) which was to the effect
He has, for a period of not less than three years, been a District Judge or an Additional District Judge
166. Admittedly Shri Dutta was never a District Judge. In the Assam Judicial Service (Senior) Rules, 1952 there were two Grades, as in Orissa, Senior Grade I and Grade II. In the first category, there were four posts of District Judges and one post of Registrar of the High Court. In Grade II, there were three posts of Additional District Judges. The Chief Justice fills up the post of the Registrar from one of the members of the two Grades. Shri Dutta was appointed as officiating Additional District and Sessions Judge on 16-8-1954. He was temporarily promoted to Senior Grade I on 8-3-1957 and was appointed by the Chief Justice as the Registrar of the Assam High Court. It was not disputed that between 16-8-1954 and 8-3-1957 Shri Dutta held the office of an Additional District Judge. On the records be continued to officiate as Additional District Judge till 24-4-1958. On this footing Government passed an order on 26-3-1958 whereby he was confirmed in Senior Grade II with effect from 16-2-1957. On 24-4-1958 he was confirmed in Senior Grade I with effect from 2-5-1957. He retired from the office of the Registrar of the High Court on 30-6-1959.
167. In point of fact Shri Dutta never acted as a District Judge but worked as an Additional District Judge for less than three years. The Assam High Court held that Shri Dutta did not hold the office of an Additional District Judge while he was officiating as the Registrar of the High Court. As he never worked as a District Judge and his actual period of acting as an Additional District Judge fell short of three years, his appointment as the Presiding Officer of the Industrial Tribunal was struck down.
168. The Supreme Court, however, did not agree and made the following observations. The High Court was right in saying that under the Assam Judicial Services (Senior) Rules, 1952 the post of the Registrar was separate from that of the District Judge and Shri Dutta never held the office of the District Judge. But the High Court omitted to consider whether be continued to bold the office of an Additional District Judge after March 8, 1957. We are satisfied that during the period from March 8, 1957 upto April 24, 1958, Shri Dutta, while officiating as Registrar of the High Court, continued to hold the office of an Additional District Judge. The High Court was in error in thinking that in order to satisfy the conditions of Section 7-A(3)(aa), Shri Dutta should have actually worked as an Additional District Judge for a period of not less than three years. For over three years Shri Dutta held the post of an Additional District Judge. Consequently, during this period he had been an Additional District Judge as required by Section 7-A(3)(aa). To satisfy the requirements of Section 7-A(3)(aa) it was not necessary that he must have actually worked as an Additional District Judge for this period.
169. The learned Advocate-General contends that this case is an authority for the proposition that the special puts were separate from those of the District Judges. Shri Patnaik argues that though Shri Dutta was not presiding over any Court, while he was officiating as the Registrar, he was held to be holding the office of an Additional District Judge. The contention of Shri Patnaik is well founded.
170. There can be no controversy over the proposition that the post of a District Judge is separate and distinct from the posts of Registrar, Law Secretary, Legal Remembrancer, Deputy Secretary, Law and Administrative Tribunal. The observation of the Supreme Court in the first part merely emphasises this patent fact. The quest ion for consideration is not whether the posts are separate but whether in holding one of these posts, the incumbent loses his distinct character of being a member of the Judicial Service. If the contention of the learned Advocate-General is accepted, Shri Dutta, while working as the Registrar, cannot be said to be holding the office of an Additional District Judge. The observation of the Supreme Court is, therefore, a clear authority for the proposition that a member of the Judicial Service does not lose his grade or rank merely because he officiates in an administrative post in which he is not to discharge any Judicial function or to preside over a Court.
171. It may be incidentally mentioned that the Law Commission in para 52 at page 89, Volume I of the 14th Report narrated how borne on these special posts are borne on the cadre of the Judicial Service. The relevant passage may be extracted-
In most of the States, posts of Legal Remembrancer, Deputy Legal Remembrancer, and Assistant Legal Remembrancer in the Law Department of the State Secretariate are borne on the Judicial cadre. A Judicial Officer may be taken up as an Assistant Legal Remembrancer and in course of time it would be possible for him to earn his promotion in the Judicial Service on the length of his Service in the Secretariate. In the course of our inquiry, we came across some of the officers of the Judicial Service working in the Secretariate who have been appointed as District Judges in the Judicial Service without ever having performed the duties of a District Judge. Notwithstanding the absence of experience as higher Judicial Officers, these Judicial Officers would under the constitutional provision be eligible for appointment as Judges of the High Court. In fact, recently, an officer in the Law Department of a State Government whose Judicial experience was confined to work as a Munsif has been appointed to the High Court Bench
172. The Law Commission strongly commented that the discharge of their duties in the Secretariate in the various posts held by them would not give to such officers experience in the performance of Judicial function and cannot fit them for appointment to the High Court.
173. This passage is however extracted to show how the incumbents of the special posts continued to be members of the Judicial Service.
174. One more point needs consideration in view of the observation made by my learned brother Barman J., in course of arguments that transfer of a District Judge to one of the special posts by the High Court would tantamount to the High Court transgressing the Powers of the Governor and that there would be conflict of powers. The learned Advocate-General very candidly stated that if the High Court had powers of transfer under Article 235, there was no conflict of powers and Article 309 read with Article 166 would not stand in the way. My learned brother, however, made an observation that the Court is not bound by such a concession. While accepting the position that the Court is not bound to accept a concession made by an Advocate on a question of law, it cannot, however, be overlooked that a concession cannot be easily made by an Advocate of the status of the learned Advocate-General if the point had any substance.
175. I would, however, deal with this point in brief as one of us takes a contrary view. Article 154(1) lays down that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through Officers Subordinate to him in accordance with this Constitution. Article 162 speaks of the extent of executive power of State to the effect that subject to the provisions of this Constitution, executive powers of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. The Legislature of the State cannot pass any law contrary to the provisions of Article 235. The opening words of Article 162 make the position clear. Article 166 merely speaks of the conduct of business of the Government of a State. Under Sub-section (1), all executive action of the Government of a State shall be expressed to be taken in the name of the Governor, under Sub-section (3), the Governor shall make rules for the more convenient transaction of the business. Thus Article 166 does not at an relate to the executive powers of the Governor which are conferred on him under Article 162. It merely deals with the mode and manner of conduct of business. If any of the Rules of business framed under Article 166(3) conflict with the power of control envisaged under Article 235, the Rules of business must give way and would be struck down as unconstitutional. Article 245 deals with the extent of laws made by the Legislature of State. Sub-section (1) thereof says that subject to the provisions of this Constitution, the Legislature of a State may make laws for the whole or any part of the State.
176. Reading all the Articles together, the position is clear that the legislative and executive powers of a State cannot control Article 235 but are subject to it. Under Article 309, power to make rules regarding recruitment and conditions of service of persons serving a State is again subject to the provisions of the Constitution and Article 235 is one of such provisions. It is in this view of the matter that the Supreme Court rejected the contention of Mr. B. Sen and observed as follows in para 15 of Bagchi''s case The argument 18 that the legislation regarding services of the State falls within the jurisdiction of the State Legislature and Article 309 gives the power to the State Legislature to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the State. This is perhaps true. But Mr. Sen seems to make no distinction between legislative and executive powers. Under Article 162 the power of the Executive of the State is coextensive with that of the Legislature of the state but all that is subject to the other provisions of the Constitution.
177. I am satisfied that the learned Advocate-General was right in submitting that if the High Court had power to transfer District Judges from, the general line to the special posts under Article 235, there would no conflict of powers, though his argument was that the High Court had no such power under Article 235.
178. After successive Pronouncement of the Supreme Court on Articles 233 to 237 in Chapter VI, Part VI of the Constitution in the three decisions, it is difficult to hold that the High Court has no control over all the members of the Judicial Service within the meaning of Articles 236(b) and that its control is confined only to those Judicial Officers who preside over Courts. Such a contention would undermine the control of the High Court even on officers presiding over Courts and consequently on the Judiciary as a whole.
179 The Constitution has made provisions for three District and independent limbs-Legislature, Executive and Judiciary. In its respective field, each is supreme. The Governor or the Government is not omnipotent. Constitution itself is the fountain source of the powers of the three different organs.
180. The High Court alone is in possession of materials relating to the merits of the Judicial Officer. From the stage of a Munsif to that of a District Judge, they work under the High Court and the latter knows about the merit and efficiency of each Individual Officer both on the Judicial and Administrative sides. When officers are to be deputed to work in special posts, High Court knows the merit of the Individual Officers to be most suitable for the posts. On the recommendation of the High Court these officers are taken to the special posts. It is difficult to imagine why the Government would apprehend that their powers in their own field would be affected if the highest Judicial Authority in the State exercises complete control over the members of the Judicial Service to effectuate independence of the Judiciary.
181. The observations of the Supreme Court in Rana Muhammad''s Case1that 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 can never possess the same intimate knowledge of the working of the Judiciary as a whole and of the 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, have full application to the cases of transfer of members of the Judicial Service including the incumbents of the special posts.
182. The last point which needs reference is the argument that even if the High Court has the power of transfer of District Judges in different Judgeships, the District, Judges cannot effectively function in Courts as Sessions Judges or as District Judges unless powers are conferred upon them by notifications issued by the Government u/s v. of the Criminal Procedure Code and Section 6 of the Bengal, Agra and Assam Civil Courts Act, respectively. The learned Advocate-General, however, fairly conceded that this argument did not touch the question of jurisdiction of the High Court regarding transfer. In this view of the matter, it is unnecessary to examine whether these sections are constitutional or not. It cannot, however, be denied that if they impinge upon the power of control under Article 235, they must be struck down as unconstitutional.
183. For the foregoing reasons the writ applications are allowed
184. As to the various writs to be issued and costs, I agree with the order passed by the learned Chief Justice.
ORDER
185. In accordance ''with the opinion of the majority the writ applications are allowed in terms of the order as made by Hon''ble C.J. in his judgment.
Writ applications allowed.
