Full Judgment Text
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PETITIONER:
STATE OF ASSAM
Vs.
RESPONDENT:
RANGA MAHAMMAD AND ORS.
DATE OF JUDGMENT:
21/09/1966
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
RAO, K. SUBBA (CJ)
SIKRI, S.M.
SHELAT, J.M.
MITTER, G.K.
CITATION:
1967 AIR 903 1967 SCR (1) 454
CITATOR INFO :
D 1968 SC 647 (2,6,11,12,13)
R 1970 SC 370 (8)
R 1972 SC1028 (15)
F 1975 SC 613 (34,35)
RF 1976 SC1841 (17)
F 1977 SC2328 (59)
R 1979 SC 193 (35,38)
R 1979 SC 478 (152)
ACT:
Constitution of India, Arts. 233 and 235-’Posting’of
District Judges under Art. 233-Whether includes transfers or
only first appointment to cadre or on promotion-Whether
consultation under Art. 233 with High Court mandatory-
Whether ’transfer’ can only be ordered by High Court under
Art. 235-Court’s power to expunge remarks from a judgment-
When exercised.
HEADNOTE:
The respondent, filed petitions under Am. 226 and 227 in the
Assam High Court asking that notifications by the State
Government of the transfer of one District & Sessions Judge
and the appointment and posting of another be quashed on the
ground that the High Court alone could make the transfers
and. in any event, the High Court was to be consulted and
was not consulted before the impugned orders were made. The
High Court held that there was no consultation with regard
to the posting of one of the District Judges and that his
transfer was irregular as the High Court alone could have
ordered it; and furthermore that the transfer of the other.
District Judge was for a like reason also irregular.
Holding, however, that none of the District Judges could be
said to occupy wrongly the office of District & Sessions
judge, the High Court declined the writ of quo warranto and
dismissed the petition, but without costs to the State
Govenment. One of the learned Judges of the High Court who
comprised the Division Bench that heard the petitions,, in a
separate but concurring judgment, passed some scathing
remarks on the action of the Government which he described
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as mala fide and actuated by some ulterior motive.
On being moved by the State Government, the High Court
granted certificates under Art. 132 of the Constitution to
appeal to the Supreme Court on the ground that the judgment
involved the interpretation of Arts. 233 and 235 of the
Constitution. By these appeals the State Government sought
a reversal of the opinion of the High Court on the two
Articles.
Three questions arose for decision in the appeal:- (a) who
is to order transfer of a District Judge-the State
Government or the High Court; (b) is the provision regarding
consultation in Art. 233 mandatory or directory and if the
former, whether the High Court was not in fact consulted;
and (c) whether the remarks complained of about the State
Government made by the learned Judge should be expunged.
HELD: (i) 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. The
latter is a matter of control of District Judges which is
vested in the High Court under Art. 235. [460 G]
The word posting means either to station some one at a place
or to assign someone to a post, I.e. a position or a job,
especially one to which a person is appointed. In Art. 233
it bears the second meaning. The word occurs in association
with the words ’appointment’ and ’promotion’ and takes its
colour from them. These words indicate the stage when 454
455
a person first gets a position or job and ’posting’by
association means the assignment of an appointee or promotee
to a position in the cadre of District Judges. The word
’posting’ cannot be understood in the sense of ’transfer’
when the idea of appointment and promotion is involved in
the combination. This meaning is quite out of place because
’transfer’ operates at a stage beyond appointment and
promotion. Transfer, therefore, falls within the control
vested in the High Court. [460 C-G]
State of West Bengal v. Nripendranath Bagcht,[1966] 1 S.C.R.
771, referred to.
(ii) As the High Court acting under Art. 235 and not the
State Government is the authority to make transfers, no
question can arise of a consultation on this account. In
the present case, however, consultation as required by Art.
233, was necessary before one of the District Judges was
promoted and posted as a District Judge.
Chandra Mohan v. U.P. [1967] 1 S.C.R. 77, referred to.
(iii) The power to expunge is an extraordinary power and can
be exercised only when a clear case is made out. Although
the opinion of this Court may be that the learned Judge need
not have made the remarks complained of, it could not be
said that in making them he acted with such impropriety that
the extraordinary powers should be exercised. [462 DIP]
JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeals Nos.1367 and 1368
of 1966.
Appeals from the judgment and order dated April 19, 1966 of
the Assam High Court in Civil Rules Nos. 171 and 236 of
1965.
Purshottam Trikamdas, A. K. Sen, Naunit Lal and Vineet
Kumar,for the appellant (in both the appeals).
Sarjoo Prasad, Vinoo Bhagat and S. N. Prasad, for respondent
No. 4 (in both the appeals).
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The Judgment of the Court was delivered by
Hidayatullah, J. These are two appeals by certificate
against a common judgment of the High Court of Assam &
Nagaland at Gauhati, dismissing two writ petitions filed by
one Ranga Mahammad against D. N. Deka and B. N. Sarma,
District & Sessions Judges respectively of Lower and Upper
Assam Districts questioning the transfer of the former from
Jorhat to Gauhati and the appointment and posting of the
latter at Jorhat. The petitioner had asked that the
relevant notifications by the Government be quashed on the
ground that the High Court alone could make the transfers
and, in any event, the High Court had to be consulted and
was not consulted before making the orders. The petitions
were heard and disposed of by a Divisional Bench consisting
of Chief Justice Mehrotra and Mr. Justice S. K. Dutta.
456
The Chief Justice held that there was no consultation with
regard to the posting of Deka, that the transfer of Deka to
Gauhati was irregular as the High Court alone could have
ordered it, and that the transfer of B. N. Sarma was for a
like reason also irregular. Holding, however, that none of
the District Judges could be said to occupy wrongly the
office of District & Sessions Judge the High Court declined
the writ of quo warranto. The petitions ,were accordingly
dismissed but without cost to the State Government. In a
separate but concurring judgment Dutta J. passed some
scathing remarks on the action of the Government which he
described as mala fide and actuated by some ulterior motive.
The High Court on being moved by the State Government
granted certificates under Art. 132 of the Constitution on
the ground that the judgment involved the interpretation of
Arts. 233 and 235 of the Constitution. By these appeals the
State Government seeks the reversal of the opinion of the
High Court on the interpretation of Arts. 233 and 235 of the
Constitution. The main contention is that the High Court
was, in fact, consulted and, alternatively, that the power
to transfer District Judges lies with the State Government
and not with the High Court. The State Government also asks
for the expunction of the remarks of Mr. Justice Dutta
above-mentioned.
The State of Assam consists of only three Sessions
Divisions. They are : The Upper Assam Districts, the Lower
Assam Districts and the Cachar Districts with Jorhat,
Gauhati and Silchar respectively as the Headquarters of the
three District Judges. The Government of Assam with the
concurrence of the High Court has made the Assam Judicial
Service (Senior) Rules and rule 5 deals with recruitment.
In the Senior Judicial Service of the State there are two
grades-Senior Grade 1 and Senior Grade 11. Grade I has four
posts earmarked for Registrar, and three District Judges,
and Grade 11 consists of the Additional District Judges.
Under sub-rule (1) of rule 5 the Chief Justice of the High
Court fills the post of the Registrar by virtue of Art. 229
of the Constitution of India preferably from Grade 1 or
Grade 11 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 in each Grade of the cadre may be filled
up by direct recruitment. The other posts are filled up by
promotion from Grade II of the cadre or Grade I of the Assam
Judicial Service (Junior) respectively.
One would think that with so few posts in the cadre and
places there would be little scope for disagreement but
unfortunately there was. On December 6, 1962 the Chief
Justice appointed A. Rahman, District Judge, Gauhati, as
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Registrar and recommended that D. N. Sarma, Additional
District & Sessions Judge be promoted and appointed District
Judge, Gauhati, and in B. N. Sarma’s
457
place D. C. Sharma should be appointed as Additional
District & Sessions Judge. This proposal was accepted by
Government. It appears, however, that one Medhi, District
Judge, was retiring and there was a vacancy. It also
appears from the correspondence which has been placed in our
hands that there was some conversation on the telephone
between the Chief Justice and the Finance Minister regarding
R. C. Choudhury (Joint Secretary Legal Department) whom the
Minister suggested for officiation in that vacancy and the
Chief Justice expressed his willingness to receive him.
Later by a D. O. letter of January 5, 1963 the Chief Justice
pointed out that the Rules did not permit this to be done.
He observed that not more than one-third of the District
Judges could be recruited from the Bar and as Choudhury
could only be recruited as a member of the Bar there was no
vacancy for direct recruitment. The Minister who had
accepted the telephone conversation as final and was about
to issue the necessary notification replied that as Sharma
was to continue for a year, Sharma’s post could be given to
Choudhury and suggested reconsideration of the case. The
Chief Justice replied that . the question was not of filling
Sharma’s vacancy but Medhi’s and that Choudhury could not be
transferred from the Legal Department to the Judicial
Service because appointments as District & Sessions Judges
must be made in accordance with Art. 233 of the
Constitution. He explained that an appointee had to be
either a person in the Judicial Service of the Union or the
State or an Advocate of 7 years’ standing and that persons
from other services could not be transferred and appointed
as District Judges. He ended by saying that he could have
taken Choudhury as a member of the Bar if the High Court
recommended him, but Rule 5(ii) of the Assam Judicial
Service (Senior) Rules, which reserved two out of the three
posts for promotees, was in the way. He declined to take
Choudhury directly from the Legal Department and recommended
D. N. Deka’s. name for promotion as District Judge to hold
the charge at Jorhat.
This letter apparently nettled the Minister for his letter
of the 24th January was worded somewhat strongly. It seems
that the Minister thought that the Chief Justice was
retreating from a position previously accepted by him. He
traced the history of the correspondence and the
conversations and expressed his amazement at the change of
opinion. He pointed out that the intention was not to
transfer Choudhury but to give him judicial experience and
observed that the constitutional provisions could not be
invoked when Choudhury had put in seven years’ practice at
the Bar and was qualified. He concluded by saying
"I am sorry, that I have to write all this but
you will understand that I have no other
alternative in view of the embarrassing
situation created by your letter. I would
458
’still request you to consider whether non-
cooperative and embarrassing attitude of this
nature is in’ the interest of the State. I do
not propose to enter into any further contro-
versy regarding appointment of Shri Choudhury
which I feel is also not good in the interest
of the administration."
Thus ended the episode of Choudhury but the result of the
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unpleasantness it occasioned was unfortunate in other
respects. The Chief Justice wrote on February 7, 1963
observing that there ’was no question of adopting any non-
cooperating or embarrassing attitude and that all the points
raised by the Minister could be ,explained satisfactorily.
He, however, saw no point in saying more as Choudhury’s name
was to be dropped. He enquired why Rahman was not released
although it had no connection with the other matter and the
appointment of the Registrar was entirely ,a matter for the
Chief Justice. He requested that Ralunan be released soon
and recommended the appointment of B. N. Sarma as District
Judge in his place. He also suggested S. C. Barua’s
transfer from Cachar to Gauhati. In the vacancy of Medhi he
recommended D. N. Deka’s promotion and recommended his
-transfer to Jorhat. A notification was issued on June 22,
1963 -appointing Deka as District Judge with Headquarters at
Jorhat. Nothing was done regarding the other
recommendations. On September 7, 1963, this is to say,
exactly seven months after the ,last letter of the Chief
Justice, the Secretary to the Government of Assam wrote to
the Registrar that the State Government after careful
consideration could not accept the suggestion about the
transfer -of Barua and proposed the transfer of B. N. Sarma
to Jorhat and of Deka to Gauhati immediately as Jorhat was
without a District Judge for months. The Registrar, in
reply, wrote back to say that the matter had become stale
and the High Court would like to reconsider the matter.
Some letters were exchanged but they arc not on the file of
this Court. On January 22, 1964 the Registrar of the High
Court wrote to say that B. N. Sarma should go to Silchar,
Barua to Jorhat and Deka to Gauhati. To this a final reply
was given by the Government on February 19, 1964 informing
the High Court that the recommendations were not acceptable
except as to Deka’s transfer from Jorhat to Gauhati. B. N.
Sarma was accordingly transferred to Jorhat leaving Barua
where he was Notifications transferring Deka and Sarma were
issued the same day.
One Ranga Mahammad of Gauhati then filed two petitions in
the High Court of Assam under Arts. 226 and 227 of the Con-
stitution questioning the jurisdiction of Deka, District &
Sessions Judge, Jorhat. He averred that the High Court was
not consulted regarding Deka’s appointment and posting at
Gauhati. By the second petition he questioned the transfer
of B. N. Sarma
459
to Jorhat. On rule being issued in the two petitions,
Government put in a detailed return pointing out that it had
acted within its powers and had also consulted the High
Court. The High Court did not accept the submissions of the
State Government.The state Government now appeals.
Three questions arise and they are : (a) who is to order
transfer of a District Judge-the State Government or the
High Court;(b) is the provision regarding consultation in
Arts. 233 and 235 mandatory or directory and if the former,
whether the High Court was not in fact consulted; and (c)
should the remarks of Mr. Justice Dutta about the State
Government be expunged ?
The answer to the first question depends on a true construc-
tion of Arts. 233 and 235 of the Constitution. The text of
these articles is set out below.* 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
Art. 235, or in the power of "appointment of persons to be
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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.
"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"
"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."
460
The history of the Arts. 233-237 in Chapter VI (Subordinate
Courts) of Part VI of the Constitution, was considered
elaborately in the State of West Bengal & Anr. v.
Nripendranath Bagchi(1) and it was pointed out that the
articles were intended to make the High ,Court the sole
custodian of control over the judiciary except in so far as
exclusive jurisdiction was conferred upon the Governor in
regard to the appointment and posting and promotion of
District ,Judges. Therefore, unless the transfer of a
District Judge can be said to be a "posting" of a District
Judge the High Court must ,obviously enjoy the exclusive
power.
In its ordinary dictionary meaning the word ’to post’ may
denote either (a) to station some one at a place, or (b) to
assign -someone to a post, i.e. a position or a job,
especially one to which -a person is appointed. See
Webster’s New Word Dictionary (1962). The dispute in this
case has arisen because the State Government applies the
first of the two meanings and the High Court the second. In
Art. 233 the word ’posting’ clearly bears the second
meaning. This word occurs in association with the words
"appointment’ and ’Promotion’ and takes its colour from
them. These words indicate the stage when a person first
gets a position or job ,and ’posting’ by association means
the assignment of an appointee or promotee to a position in
the cadre of district Judges. That a special meaning may be
given to a word because of the collocation of words in which
it figures, is a well-recognised canon of construction.
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Maxwell ("On Interpretation of Statutes" 11th Edn. p. 321
and the following pages) gives numerous examples of the
application of this principle, from which one may be given
here. The words ’places of public resort’ assume a very
different meaning when coupled with ’roads and streets’ from
that which the same words would have if they were coupled
with ’houses’. In the same way the word ’posting’ 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 at 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
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. The latter
is obviously a matter of control of district Judges which is
vested in the High Court. This meaning of the word
’posting’ is made an the more clear when one reads the
provisions of Arts. 234 and
235.By the first of these articles the question of
appointment is
(1) [1966] 1 S.C.R. 771.
461
considered separately but by the second of these articles
posting and promotion of persons belonging to the judicial
service of the State and holding any post inferior to the
post of a district Judge is also vested in the High Court.
The word ’post’ used twice in the article 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. The
association of words in Art. 235 is much clearer but as the
word ’posting’ in the earlier article deals with the same
subject matter, it was most certainly used in the same sense
and . this conclusion is thus quite apparent.
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 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. 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
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and assigned him to a post in cadre. Thereafter, transfer
of incumbents is a matter within the control of District
Courts including the control of persons presiding there as
explained in the cited case.
As the High Court is the authority to make transfers, there
was no question of a consultation on this account. The
State Government was not the authority to order the
transfers. There was, however, need for consultation before
D. N. Deka was promoted and posted as a District Judge.
That such a consultation is mandatory has been laid down
quite definitely in the recent decision of this Court in
Chandra Mohan v. U. P.(1) On this part of the case it is
sufficient to say that there was consultation.
(1) [1967] 1 S.C.R. 77.
462
This brings us to the question whether the remarks of Mr.
Justice Dutta should be expunged. There is no doubt that
the State Government and the High Court were working
together till Choudhury’s name was suggested. This is not
the first time when cordiality was ruined because a
Secretary’s name was suggested by the Minister and was not
acceptable to the High Court. The Assam High Court’s stand
has been completely vindicated by Chandra Mohan’s case cited
above. Choudhury could not be transferred from another
department and under the rules he could not be recruited
from the Bar as there was no vacancy. Consultation loses
all its meaning and becomes a mockery if what the High Court
has to say is received with ill-grace or rejected out of
hand. In such matters the opinion of the High Court is
entitled to the highest regard.
We have considered very carefully the question of expunging
Mr. Justice Dutta’s remarks, The power to expunge is an
extraordinary power and can be exercised only when a clear
case is made out. That another Judge in Mr. Justice Dutta’s
place would not have made those comments is not the right
criterion The question is whether Mr. Justice Dutta can be
said to have acted with impropriety. Although we think that
Mr. Justice Dutta need not have made the remarks we cannot
say that in making them he acted with such impropriety that
the extraordinary powers should be exercised.
The appeals accordingly fail and are dismissed but there
will be no order about costs.
R.K.P.S. Appeals dismissed.
M15Sup.C.I./66-15-4-67-GIPF.
463