Full Judgment Text
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PETITIONER:
THE STATE OF ORISSA
Vs.
RESPONDENT:
SUDHANSU SEKHAR MISRA AND ORS.
DATE OF JUDGMENT:
07/11/1967
BENCH:
HEGDE, K.S.
BENCH:
HEGDE, K.S.
WANCHOO, K.N. (CJ)
BACHAWAT, R.S.
RAMASWAMI, V.
MITTER, G.K.
CITATION:
1968 AIR 647 1968 SCR (2) 154
CITATOR INFO :
RF 1971 SC 530 (326)
RF 1976 SC1207 (154,466,456)
RF 1977 SC2328 (14)
R 1979 SC 193 (38)
R 1979 SC 478 (152)
F 1990 SC 781 (23)
RF 1991 SC 672 (19)
ACT:
Constitution of India Arts. 233, 235--High Court
recalling District and Sessions Judges working in
administrative posts--in their place posting, judicial
officers to administrative posts in the Secretariat--if
competent.
HEADNOTE:
The Orissa Superior Judicial Service consisted of 15
posts. 10 of which were District and Sessions Judges or
Additional District and Sessions Judges; of the other five,
one was Registrar of the High Court and four were officers
of the State Government.
P, one of the District and Sessions Judges was posted as
Superintendent and Legal Remembrance in March 1962. B.
an Additional Judge. was posted as Joint Secretary in the
Law Department in the same month and sometime thereafter was
posted as Superintendent and Legal Remembrance. D, a
District and Sessions judge was posted in January 1962 as
member. Sales Tax Tribunal, which was a non-cadre post. In
February 1965 the High Court took a policy decision to the
effect that as a general rule, judicial officers working in
special posts. whether cadre or non-cadre. outside their
regular line, should be called to the regular line after the
completion of three years in the interest of the service as
well as the officers, so that the officers did not become
out of touch with judicial work. Although this policy
decision was accepted by the State Government. it was not
implemented’ in respect of P, B and D. The High Court
being under the impression at the time that in law the
Governor was the sole authority to effect the necessary
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transfers. did not take any action itself.
After the decision of this Court in Ranga Mohammad’s
case [1967] S.C.R. 454) holding that the power to transfer
Judges presiding over Courts vested with the High Court
under Art. 235 of the Constitution. the High Court. issued
an order on October 10. 1966. transferring P. B and D to
judicial posts and posting to the administrative posts in
their place, K. T and M who were doing judicial work till
then. In pursuance of those orders K. T and M handed over
charge of the posts they were holding and reported to the
Secretariat for assuming charge of the administrative posts
to which they were assigned. but the Government refused to
accept them. The State Government directed P. B and D to
continue in the posts they were previously holding and those
officers acted in accordance with the orders of the
Government. Consequently. some of the Sessions Divisions in
the State were without District and Sessions Judges for
several days and some Advocates practising in those
Divisions filet/petitions before the High Court for a writ
of mandamus against the Government. as well as the concerned
officers to implement the transfers ordered by the High
Court. They also sought a writ of quo warranto against P. B
and D questioning the authority under which they were
holding the administrative posts held by them until then.
The High Court allowed the petition and directed the
Governments to implement its orders forthwith. The
Government implemented these orders on March 6. 1967 and
thereafter appealed to this Court, by special leave.
155
HELD: (i) Although the High Court was within its powers.
in posting P. B and D, the three officers holding
administrative posts. as District and Sessions Judges, it
was beyond its powers to post in their places three other
officers to the administrative posts.
Just as the executive cannot know the requirements of a
particular court, the High Court cannot also know the
requirements of any post in the Secretariat. It is for the
Executive to say whether a particular officer would meet its
requirements or not. The High Court cannot foist an officer
on the Government. [163C-D]
While sparing the service of any judicial officer to the
government it is open to the High Court to fix the period
during which he may hold any executive post. At the end of
that period, the government is bound to allow him to go back
to his parent department unless the High Court agrees to
spare his services for some more time. In other words, the
period during which a judicial officer should serve in an
executive post must be settled by agreement between the High
Court and the government. If there is no such agreement it
is open to the Government to send him back to his parent
department at any time it pleases. It is equally open to
the High Court to recall him whenever it thinks [163 F-H]
It was not the case of the contesting respondents that
P, B and D did’ not have the necessary qualifications to
hold the posts that they were holding or that they had not
been validly appointed to those posts. In these
circumstances the High Court could not have held that they
had no authority to hold the posts in question. [159D]
State of Assam v. Ranga Mohammad and Ors. [1967] 1
S.C.R. 454; State of West Bengal v. Nripendra Nath Baghi;
[1966] 1 S.C.R. 771; explained and distinguished.
(ii) A decision is only an authority for what it
actually decides. What is of the essence in a decision is
its ratio and not other observations found therein nor what
logically follows from the various observations made in it.
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[162E-F]
Quin v. Leathem, [1901] A.C. 495; referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals No. 625630
of 1967.
Appeals by special leave from the judgment and order
dated’ March 6, 1967 of the Orissa High Court in O.J.C. Nos.
495 and 496 of 1966, and 3, 4, 27 and 28 of 1967
respectively.
C.K. Daphtary, Attorney-General, N.S. Bindra, G. Rath
and R.N. Sachthey, for the appellant (in all the appeals).
Sarjoo Prasad and S.N. Prasad, for respondents Nos. 8,
23, 8’ and 5 (in C.As. Nos. 6.25; 627,629 and 630 of 1967
respectively).,
N.M. Patnaik and Vinoo Bhagar, for respondents Nos. 5 to
7 (in C.As. Nos. 625 and 629 of 1967) and respondents Nos.
20 to 22 (in C.A. No. 627 of 1967).
156
The Judgment of the Court was delivered by
Hegde, J. These cases are the outcome of an
unfortunate conflict between the High Court and the
government of Orissa.
The Orissa Superior Judicial Service (senior branch) is
a combined cadre consisting of officers holding purely
judicial posts as well as posts which are essentially
administrative in character. It consists of eight district
and sessions judges, two additional district and sessions
judges, secretary to government in law department,
superintendent and legal remembrancer, law department,
deputy secretary to government in the law department, member
administrative tribunal and the Registrar of the Orissa High
Court, in all 15 in number. All these officers are the
members of the Orissa ’"Judicial Service" within the meaning
of that expression in art. 236(b) of the Constitution. Out
of these, the district and sessions judges and additional
district and sessions judges were discharging purely
judicial functions. In view of art. 229 of the Constitution.
the power to appoint the Registrar of the High Court is
exclusively that of the Chief Justice. Neither the High
Court as such nor the Governor has any hand in his
appointment. The power to appoint the secretaries to the
government is that of the Governor. Under the Government of
India Act 1935, the power to transfer a district judge from
one post to another was that of the Governor though that
power was always exercised in consultation with the High
Court and by and large on the recommendation of the High
Court. In Orissa, as in most of the other States, that
practice continued till the decision of tiffs Court in the
State of Assam v. Ranga Mahammad and others(1). Obviously
when the Governor promulgated the Orissa Superior Judicial
Service Rules 1963, he proceeded on the basis that the power
to transfer the district judges and addl. district judges,
from one post to another whether as a judge or to one of the
posts in the secretariat was in his hands.
It appears that for some time past there were
differences between the High Court and the government about
the posting of some of the judicial officers. The High
Court was anxious that a judicial officer occupying one of
the administrative posts enumerated above, should not, in
the interest of judicial work, continue in that post for an
unduly long time. The High Court insisted that ordinarily
judicial officers should: not hold those posts for more than
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three years. The High Court was repeatedly requesting the
government to send back judicial officers working in
administrative posts as district judges or as addl. district
judges as the case may be, after they had held those posts
for three years or more. But those requests were not
respected. On that account, there appears to have been
some friction between the High Court and the gov ernment for
some years past.
(1) [1967] 1 S.C.R. 454.
157
Shri B.K. Patro one of the district and sessions.
judges, was posted as superintendent and legal remembrancer
in March 1962 Shri K.K. Bose, addl. district and sessions
judge, was posted as joint secretary in the law department
in the same month. He worked in that capacity till February
1965. Thereafter, he was, posted as superintendent and
legal remembrancer. Shri P.C. Dey. a district and sessions
judge, was posted as member sales tax tribunal on 31-1-62.
That was a non-cadre post.
In February 1965, the High Court took a policy decision
to the effect that as a general rule, judicial officers
working in special posts whether cadre or non-cadre, outside
their regular line, should be recalled to the regular line
after the completion of three years. in the interest of the
service as well as the officers, so that "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." It is of utmost importance that
judicial officers should not be kept away from judicial work
for a long time lest they should lose touch. with judicial
work and even more than that should become indifferent to
judicial approach. The above. policy decision was duly
communicated to the government. The government by its
letter of April 2, 1965, intimated that it had no objection
to adhere to the principle of three years service in an
appointment at a particular station against a special post.
But when it came to the question of implementing that
policy, the government was reluctant. Every time the High
Court requested the government to release the three officers
mentioned above for ’being posted as district and sessions
judges or addl. district and sessions judges as the case
may be, the government turned down those requests on one
ground or the other. We do not think that it was proper
for the government to do so. But at that stage the High
Court felt helpless as it was under the impression that
under law the Governor was the sole authority to effect the.
necessary transfers.
On September 21 1966, this Court rendered its decision
in Ranga Mahammad’s(1) case. Therein this Court held that
power to transfer judges presiding over courts vested with
the High Court under art. 235 of the Constitution. Soon
after that decision was rendered and without any further
dialogue with government in the’ light of that decision, the
High Court took the precipitate step of transferring the
aforementioned officers to other posts and in their place
posted officers who were doing judicial work till then. By
its order dated October 10, 1966, the High Court ordered the
following transfers:
(a) Shri K.B. Panda who was attached to
the commission of enquiry in connection with
students’
(1) [1967] 1 S.C.R. 454
158
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agitation, as law secretary to the government
of Orissa,
(b) Shri B.K. Patro, the then law
secretary as district and sessions judge of
Ganjam-Boudh,
(c) Shri T. Misra, district and sessions
judge, Ganjam-Boudh, as superintendent and
legal remembrance and ex-officio additional
law secretary to the government of Orissa,
(d) Shri K.K. Bose, the then
superintendent and legal remembrance and
additional law secretary as district and
sessions judge of Mayurbhanj Keonjhar.
(e) Shri P.K. Mohanti, district and
sessions judge, Bolangir-Kalahandi, as deputy
secretary to the law department, a post which
was vacant then, and
(f) Shri P.C. Dey, member sales tax
tribunal, as district and sessions judge,
Bolangir-Kalahandi.
These orders were duly notified in the Orissa Gazette.
In pursuance of those orders, Shri K.B. Panda, Shri T.
Misra and Shri P. K. Mohanti handed over charge of
the posts they were holding and reported themselves at
the secretariat for assuming charge of the posts to which
they were posted. But the government refused to accept
them. Further it directed Shri Patro, Shri Bose and Shri
Dey to continue in the posts they were holding. Those
officers acted in accordance with the orders of the
government. Consequently, the sessions divisions of Ganjam-
Boudh, Mayurbhanj-Keonjhar and Bolangir-Kalahandi were
without district and sessions judges for several days. It
is at this stage the petitions which have given rise to
those appeals were filed by some of the advocates practising
in one or the other of the sessions divisions mentioned
above, praying for a writ of mandamus against the government
as well as the concerned officers to implement the transfers
ordered by the High Court on October 10, 1966 and also a
writ of quo warranto against Shri B.K. Patro, Shri K.K. Bose
and Shri P.C. Dey requiring them to show cause under what
authority they were holding the posts of the law secretary
the superintendent and legal remembrancer and member sales
tax tribunal, respectively. In every one of those
petitions, rule nisi was issued. The government as well as
the concerned officers in the returns made by them justified
the action taken by the government. On March 6, 1967 a
special Bench of the High Court by majority allowed those
petitions and made the rule absolute. The High Court
overruled the prayer made on behalf of the government to
stay the operation of its decision till necessary orders
were obtained from this Court. It directed the government
to imple-
159
ment its orders forthwith. Having no. alternative before
it, the government implemented the orders in question on
March 6 1967, on the very day the decision of the High
Court was rendered. The government’s prayer for necessary
certificates for leave to appeal to this Court was rejected.
Therefore, these appeals were filed after obtaining special
leave from this Court.
The order of the High Court consists of two parts,
namely, (1) holding that Shri B.K. Patro, Shri K.K. Bose and
Shri P.C. Dey had no authority to act as law secretary,
superintendent and legal remembrancer and member sales tax
tribunal, respectively, on and after October 10, 1966, and
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(2) commanding the State of Orissa, the Chief Secretary to
the government of Orissa, the Home Secretary to the
government of Orissa, Shri P.C. Dey, Shri K.K. Bose and
Shri Patro to implement the transfers ordered by the High
Court on October 10, 1966.
It was not the case of the contesting respondents that
Shri P.C. Dey, Shri K.K. Bose and Shri B.K. Patro had not
the necessary qualifications to hold the posts they were
holding. It was also not disputed that they had been
validly appointed to those posts. In these circumstances we
fail to see how the High Court could have held that they had
no authority to hold the posts in question. Shri Sarjoo
Prasad learned counsel for the High Court of Orissa at the
very commencement of his arguments conceded that the order
of the High Court holding that those officers had no
authority to hold the posts in question is unsustainable.
In view of that concession it is unnecessary for us to go
into that question further.
As mentioned earlier, member, sales tax tribunal, was an
ex-cadre post. Hence in the case of Shri P.C. Dey it must
be assumed that his services were placed by the High Court
at the disposal of the government for being posted as member
sales tax tribunal. It is not the case of the parties that
he was placed at the disposal of the government for any
definite period. AS seen earlier, he was holding the post
in question ever since 1962.In those circumstances, the High
Court was entitled to recall him and post him as a district
and sessions judge. Hence that part of the High Court’s
order is unassailable.
Before going into the validity of the orders of transfer
relating to the other officers, it is necessary to ascertain
the law bearing on the subject. As seen earlier, the cadre
of the superior judicial service (senior branch) consisted
of not only the posts of district and sessions judges and
addl. district and sessions judges but also officers
holding other posts. One of the officers included there is
the Registrar of the High Court. Neither the government nor
the High Court could have posted any officer as the
Registrar of the High Court as that post can be filled only
by
160
the Chief Justice. To hold otherwise would be to
contravene Art. 229 of the Constitution. Similarly the
posts of the law secretary, deputy law secretary and file
superintendent and legal remembrancer cannot be considered
as district courts or courts subordinate to district courts
within the meaning of those words in Art. 235 of the
Constitution. Those posts are similar to. the corresponding
posts in other departments in the secretariat. Prima facie
it is for the Governor to fill up those posts. It was
conceded that if those posts had not been included in the
cadre of superior judicial service the High Court would not
have had any right to fill those posts. But we were told
that in view of the decisions of this Court in State of West
Bengal v. Nripendra Nath Bagchi(1) and State of Assam v.
Ranga Mahammad(2) the High Court must be held to have that
right as those posts are included in the cadre of superior
judicial service. Before considering the correctness of
that submission it is necessary to notice that this argument
breaks down when we come to the question of filling up the
post of the Registrar. If the argument advanced on behalf
of the High Court is correct. the High Court must also have,
the power to fill up the post of the Registrar as that is
also Included in the cadre.
Now let us consider the ratio of the decisions in
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Nripendra Nath Bagchi’s case (1), and Ranga Mahammad’s (2)
case. In Bagchi’s case,(1), this Court laid down that the
word "control" found in Art. 235 includes disciplinary
jurisdiction as well. The only question that fell for
decision in that case was whether the government of West
Bengal was competent to institute disciplinary proceedings
against an addl. district and sessions judge. This Court
upheld the decision of the High Court of Calcutta holding
that it had no such jurisdiction. That was the single
question decided in that case. It is true that in the
course of the judgment. this Court observed that the High
Court is made the sole custodian of the control of the
judiciary, but that observation was made only in the context
of the question that arose for decision. In Ranga
Mahammad’s case(2), the point that arose for decision was as
to who was the authority to transfer a district judge. the
State government or the High Court. In that case, the
State government ordered the transfer of certain district
judges without even consulting the High Court. The rule
laid down in that decision is of no assistance in
determining the question as to whether the High Court has
power to fill up some of the posts in the secretariat. In
the course of that judgment, this Court observed (at
page 459 of the report):
"The question we have posed resolves
itself into a question of a very different but
somewhat limited form.
(1) [1966] 1 S C R 771.
(2) [1967] 1 S.C.R. 454.
161
namely, whether the power to transfer District
Judges is included in the ’control’
exercisable by the High Court over District
Courts under Art. 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 Art. 233,
albeit in consultation with the High Court.
If the sense of the matter be the former, then
the High Court and if the latter, the
Governor, would possess that ’power. The
right approach is, therefore, to enquire what
is meant by ’posting’ and whether the term
does not mean the initial posting of a
District Judge on appointment or promotion to
a vacancy in the cadre, permanent or
temporary. If this be the meaning, as the
High Court holds. then the transfer of
District Judges already appointed or promoted
and posted in the cadre must necessarily be
outside the power of the Governor and fall to
be made by the High Court as part of the
control vested in it by Art. 235."
After analysing Arts. 233 and 235 and
noticing the development of the law on the
subject this Court held that under Art. 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 which
power is vested in the High Court under Art.
235 as the control given to the High Court
over the district courts under that Article
includes control over the officers who preside
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over those courts.
Proceeding further this Court observed:
"This is, of course, as it should be, 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 he 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
them personally. There is less chance of being
influenced by secretaries who may withhold
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
162
other facilities. Some are good stations and
some are not so good. 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. The reason of the rule and the
sense of the matter combine to suggest the
narrow meaning accepted by us. The policy
displayed by the Constitution has been in
this direction as has been explained in
earlier cases of this Court."
Obviously relying on the observation of this Court that
after a judicial officer is posted to the cadre, it is for
the High Court to effect his transfers, the court below has
come to the conclusion that as the posts of the law
secretary, deputy law secretary and superintendent and legal
remembrancer are included in the cadre, the High Court has
the power to fill those posts by transfer of judicial
officers. The cadre this Court was considering in Ranga
Mahammad’s(1) case, namely, Assam Superior Judicial
Services Cadre consisted of the Registrar of the Assam High
Court and three district judges in the first grade and some
additional district judges in grade II. In that cadre, no
officer holding any post under the government was included.
Hence the reference by this Court to the cadre is a
reference to.a cadre consisting essentially ,of officers
under the direct control of the High Court. It was in that
context this Court spoke of the cadre. The question of law
considered in that decision was as regards the scope of the
expression "control over district court" in Art. 235. The
reference to the cadre was merely incidental. A decision is
only an authority for what it actually decides. What is of
the essence in a decision is its ratio and not every
observation found therein nor what logically follows from
the various observations made in it.
On this topic this is what Earl of Halsbury L.C. said in
Quinn v. Leathem(2):
"Now before discussing the case of Allen v.
Flood [1898] A.C. 1 and what was decided
therein, there are two observations of a
general character which I wish to make, and
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one is to repeat what 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 is
that a case is only an authority for what it
actually decides. I entirely deny that it can
(1) [1967] 1 S.C.R. 454. (2) [1901] A.C.
495.
163
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."
It is not a profitable task to extract a sentence here and
there from a judgment and to build upon it. Neither
Bagchi’s case nor Ranga Mahammad’s case is of any
assistance to us in deciding the question whether the High
Court has competence to fill some of the posts in the
secretariat by transfer judicial officers under Its control.
Just as the executive cannot know the requirements of a
particular court, the High Court also cannot know the
requirements of any post in the secretariat. Just as the
High Court resents any interference by the executive in the
functioning of the judiciary, the executive has a right to
ask the High Court not to interfere with its functions. It
is for the executive to say whether a particular officer
would meet its requirements or not. The High Court cannot,
as contended by the learned Attorney-General, foist any
officer on the government.
The cadre with which we are concerned in this case
consists of three parts i.e., (1) presiding officers of
district courts, (2) the Registrar of the High Court and (3)
the judicial officers working in the secretariat. No doubt
all these officers belong to the judicial service of the
State and they were before 1962 presiding over district
courts or courts subordinate to them and as such were under
the control of the High Court. Hence without the consent of
the High Court the government could not have posted them to
administrative posts in 1962. It must be presumed that they
were taken over by the government with the consent of the
High Court.
While sparing the service of any judicial officer
to the government it is open to the High Court to fix the
period during which he may hold any executive post. At the
end of that period, the government is bound to allow him to
go back to his parent department unless the High Court
agrees to spare his services for some more time. In other
words, the period during which a judicial officer should
serve in an executive post must be settled by agreement
between the High Court and the government. If there is no
such agreement it is open to the government to send him back
to his parent department at any time it pleases. It is
equally open to the High Court to recall him whenever ’it
thinks fit. If only there is mutual understanding and
appreciation of the difficulties of the one by the other,
there will be harmony. There is no reason why there should
be any conflict between the High Court and the government.
Except for very good reasons we think the High Court should
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always be
164
willing to spare for an agreed period the services of any of
the officers under its control for filling up such executive
posts as may require the services of judicial officers. The
government, in its turn should appreciate the anxiety of the
High Court that judicial officers should not be allowed to
acquire vested interest in the secretariat. Both the High
Court and the government should not forget the fact that
powers are conferred on them for the good of the public and
they should act in such a way as to advance public interest.
If they act with that purpose in view as they should, then
there is no room for conflict and no question of one
dominating the other arises. Each of the organs of the
State has a special role of its own. But our Constitution
expects all of them to work in harmony in a spirit of
service.
As Shri K.K. Bose and Shri B.K. Patro had not been
placed at the disposal of the government for any definite
period, it was open to the High Court to recall them and
post them as presiding officers of district courts. Hence,
the High Court was within its powers in posting Shri B.K.
Patro as district and sessions judge of Ganjam-Boudh
division, Shri K.K. Bose as district and sessions judge of
Mayurbhanj-Keonjhar division, and Shri P.C. Dey as district
and sessions judge of Bolangir-kalahandi division though it
would have been graceful if it had effected those
transfers after reasonable notice to the government. But it
was beyond the powers of the High Court to post Shri K.B.
Panda as the law secretary, Shri T. Misra as superintendent
and legal remembrancer and Shri P.K. Mohanti as the deputy
law secretary. That part of the High Court’s order is
clearly unsustainable. But as mentioned earlier, the
government has already implemented that part of the order as
well. Those officers are now functioning in the posts to
which they were transferred. The learned Attorney-General
told ’us that the government has no objection to those
officers continuing in those posts for the present. We are
sure if any change is required the same will be effected by
mutual understanding between the High Court and the
government.
In the result these appeals are partly allowed and the
order of the High Court holding that Shri B.K. Patro, Shri
K.K. Bose and Shri P.C. Dey had no authority to hold the
posts they were holding on or after October 10, 1966 is set
aside. Though we hold that the orders of the High Court
posting Shri B.K. Panda as law secretary, Shri T. Misra as
superintendent and legal remembrancer and Shri P.K. Mohanti
as deputy law secretary were excess of its powers, we do
not set aside the mandamus issued by it for the reasons
mentioned earlier. In other respects the judgment appealed
against is upheld.
The parties will bear their own costs in these appeals.
R.K.P.S.
Appeals allowed in part.
165