STATE OF ASSAM & ANR. versus KUSESWAR SAIKIA AND ORS.

STATE OF ASSAM & ANR.

KUSESWAR SAIKIA AND ORS.

October 17, 1969 (M. HIDAYATULLAH, C.J., J. M. SHELAT, C. A. VAIDIALINGAM, A. N. GROVER AND A. N. RAY, JJ.]

Co11stitutio11 of India, Arts. 233, 235,-Promotion of person in judi-cial service as Additional District Judge--Compe::~t authority-Powtr exercisable under Art. 233 or Art. 235.

Civil Courts Act Assam Amendment XI[ of 1961-Designation of Sub- ··c

ordinate Judge altered to Assistallt District Judge thus taking away High Court's jurisdiction under Art. 235-RenJedy lies in rescinding the law.

In exercise of the power conferred by Art. 233 of the Constitution and in consultation with the High Court the Governor of Assam "appointed" person belonging to the State Judicial Service (Junior Grade I) to ofli· ciate as Additional District & Sessions Judge. In petition for writ of quo 1rarranto the High Court held the "appointment" void because in th-.! vie\\! of the/High Court this \Vas case of promotion of person be-longing to the Judicial Service of the s:ate and the High Court was the authcrity to make the promotion under Art. 235.

Also, the Assam Legislature amended tho Civil Courts Act by Act Xll of 1967 by which the de;ignation of Subordinate Judge was altered to Assis:ant District Judge. The High Court was of opinion that by this de· vice which the High Court described as "a fraud upon the Constitution" the power of promotion vested in the High Court under Art. 235 in respect of persons belonging to the Judicial Service of State and holding po•ts inferior to the post of the District Judge, was taken away.

Allowing the appeal,

HELD : (i) The expression District Judge includes an additional Dis· trict. Judge and an additional Sessions Judge and they rank above those persons whose promotion is vested in the High Court under Art. 235. Therefore, the promotion of persons to be additional District Judges or Additional Sessions Judges is not ve;ted in the High Court. That is the function o'f the Governor under Art. 233. This follows from the language of the Article itself. The Article, if suitably expanded, reads :

"Appointments of persons to be. and the posting and promotion of (persons to be.), District Judges etc."

It means that appointment as well as promotion of persons to be District Judges is matter for the Go,·ernor in consultation with the High Court. The Article concerns initial appointment and initial promotion of persons to be either District Judge) or any Of the categories included in it. FurM ther promotion of District Judges is matter of control of the High C.Ourt. [932 E-G]

(ii) The High Court is not right in thinking that it can ignore the hierarchy of courts in Assam as established by law and treat the change as of no consequence. The change made by the Assam Amendment Act XII of 1967 is likely to lead to an impairment of the independence of the

judiciary at lowest levels whose promoti~n which was vested ~y th~ Cons-titution in the High Court advisedly, will no Jrnger be ent.irely m the hands of- the High Court. But the remedy is not to go against the C1v1l Courts Act as amended, but to have the amendment rescinded. [934 B-Cl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 358 of 1969.

Appeal from the judgment and order dated February 5, 1969 of lhe Assam and Nagaland High Court in Civil Rule No. 222 of 1968.

M. C. Setalvad, Naunit Lal and S. N. Choudhury, for the appellants. Sarjoo Prasad, R. B. Datar and S. N. Prasad, for respondent No. 4.

S. K. Nandy, for respondent No. 5.

The Judgment of the Court was delivered by Hidayatullah, C.J.' This is an appeal by certificate under Art. 132 of the Constitution against the judgment and order of the High Court of Assam, February 5, 1969. It is filed by the State of Assam and the Legal Secretary to the Government of Assam and challenges writ of quo warranto issued against Upendra Nath Rajkhowa, Dist!. & Sessions Judge, Darrang at Tezpur declaring that he was not entitled to hold that office. It was issued at the instance of Respondents 1 to 3 in this appeal. These respondents on conviction by Upendra Nath Rajkhowa in sessions trial, chal-lenged their conviction inter alia on the ground that Shri Rajkhowa was not entitled to hold the post of District and Sessions Judge, Darrang. The High Court held that the 'promotion' of Rajkhowa by the Governor as Additional District Judge by notification LJJ 74/66/65 dated 19-6-67 purporting to act under Art. 233* was void because he could only be pr<imoted by the High Court acting under Art. 235**. Consequently his further appointment as Dis-

*Art. 233. "ll) Appointments of pers0ns to be, and the postin2 and promotion of, district judges in any State shall be made by the Governor of the Stale in cousultation with the High Court exercising jurisdiction in relation to s<Jch State.

(2) person not already in the service '<'>f the Union or of the State shall only be eligible to be appointed district judge if he has been for not less· than se·[1]en yeari an advocate or pleader and is recommended by the High Court for appointment."

:r·'!IArt. 235. "The control over district courts and C'\Jnrts subordinate thereto including the posting and promotion of, and tl]e grar•. of leave to, J1ersons belonging to the judicial service of State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in thi~ 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 a'l auth·.:irising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."

trict Judge by the Governor by notification LJJ 94/67/14 dated 28-7-1967 was also declared by the High Court to be void. The High Court, however, held that Rajkhowa's simultaneous 'promo-tion' as Addi. Sessions Judge was valid as that post was not in-cluded in the judicial service of the State and the Governor was competent to make the appointment. The High Court also held that his further appointment as Sessions Judge was also valid. The .High Court, therefore, did not disturb the conviction and also did not pronounce any opinion on •vhether the judgments given as bis:rict Judge by Rajkhowa were void since that question did not .arise on petition for writ of quo warranto.

The Assam Judicial Service was constituted by notification of the Government of Assam issued on t.ugust 25, 1952. The Senior Branch of the service was known as State Judicial Service (Senior) .and it consisted of the following posts :

Senior Grade I

I. Registrar.

2. Legal Remembrancer.

3. District Judges.

Senior Grade II Additional District Judges.

On April 9, 1954, the State Judicial Service (Junior) was created. Sepi.,ate rules governed the junior service. The following posts werz included :

Junior Grade I

I. Subordinate Judges.

2. Deputy Registrar.

Junior Grade II

I. Munsiffs.

2. Assistant Registrar.

Rajkhowa was originally Munsiff in grade II. The Chief Justice of the High Court appointed him as Deputy Registrar and thus he was promoted to Grade I of the Junior Service. On June 19, 1967 the following notification was issued :

"No. LJJ.74/66/65-The services of Sri U. N. Raj-khowa, Deputy Registrar, High Court of Assam and Nagaland being replaced at the disposal of the Govern-ment. The Governo.- of Assam in consultation with the Hioh Court of Assam and Nagaland, and in exercise of po~ers conferred by Article 233 of the Constitution read

with Rule 5(ii) of the Assam Judicial Service (Senior) Rules, 1952 is pleased to appoint Sri Uppendra Nath Rajkhowa to officiate as Additional District and Sessions· Judge, Lower Assam Districts with Head Quarters at Nowgong with effect from the date he takes over as such vice Sri M. C. Mahajan.

Sd. B. Sarma, Secy. to the Government, Law Department".

It is this 'appointment' under Article 233 which is considered by the High Court to be void. According to the High Court this was case of 'promotion' of person belonging to the judicial service of the State and the High Coprt was the authority to make the promo-tion under Art. 235. In this appeal the view of the High Court is challenged.

Chapter VI of Part VI of the Constitution deals with Subor-D dinate Courts. The history of this Chapter and why judicial ser-vices _came to be provide~ for separate from other services has been discussed in The State of Wes• Bengal v. Nripendra Nath Bagchi('). This service was provided for separately to make the office of District Judge completely free of executive control. The Chapter contains six articles (233 to 237). We are not concerned with Art. 237 in the present case. Article 235 vests in the High Court 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 State and holding any post inferior to the post of District Judge. By reason of the definitions given in Art. 236, the expression 'Judicial Servz·ce' means service consisting exclusively of persons intended to the post of District Judge and other Civil Judicial posts infe or to the District Judge and the expression "District Judge" incfudes among others alt additional District Judge and an additional Ses-sions Judge. The promotion of persons belonging to the judicial service but holding post inferior to District Judge vests in the High Court. As the expression District Judge includes an addi-G tional District Judge and an additional Sessions Judge, they rank above those persons ·;vhose promotion is vested in the High Court under Art. 235. Therefore, the promotion of persons fo be addi-tional District Judges on additional Sessions Judges. is not vested in the High Court. That is the function of the Governor under Art. 233. This follows from the language of the article itself :

"(a) Appointments of persons to be, and the posting and, promotion of, district judges in any State sbll be

(I) [1966] I S.C.R. 771. LSSupCl/70-14

[!970] 2 S.C.R.

made by the Governor of ·the State in consttltation with the High 'CoUrt exetcisitlg jurisC:;ction in relation to such State.

The langJage seems to have given trouble to the High Court. The High Court holds :

(1) 'appointment 'to be' District Judge is to be

made by the Governor in consultation with the High Court vi de Art. 23 3; and

(2) 'promotion' of 'a District Judge and not promo-tion 'to be District Judge' is also to be made by the Governor in consultation with the High Court vide Art. 233.

The High Court gives the example of selection grade posts in the Cadre of District Judges which according to it is case of promo-tion of .i District Judge.

The reading of the article by the High Court is, with respect, contrary to ihe grammar and punctuation of the article. The learn-ed Chief Justice seems to think that the expression 'promotion of governs 'District Judges' ignoring the comma that fdllows the word 'of. The article, if suitably expanded, reads as under :

"Appointments of persons to be, and the postip'g and promotion of (persons to be), District Judges etc. n

It means that appointment as well as promotion of persons to be District JUdges is matter for the Governor in consultation with the High Court and the expressioa 'District Judge' includes an addi-tional District Judge and an additional Sessions Judge. It must be remembered that District' Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary. The article is intended to take care of both. It conce_!'ns initial appoint-ment and initial promotion of persons to be either Di•::rict Judges or any of the categories included in it. Further promotion of · District Judges is matter of control of the High Court. What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges. Therefore when the Gov-ernor appointed Rajkhowa an Additional District Judge, it could either be an 'appointment' or promotion under Art. 233. If it was an apPQintment it was clearly matter under Art. 233. If the notification be treated as 'promotion' of Rajkhowa from the junior servi:~ to the senior service it was 'promotion' of person to be District Judge which expression, as shown above, includes an Additional D'.strict Judge. In our opinion it was the latter.

Thus there is no doubt that the appointment of Rajkhowa as Ad-ditional District Judge by the Governor was promotion and was inade under Art. 23 3. It could not be made under Ai:t. 23 5 which deals with posts subordinate to District Judge including an addi-tional District Judge and an additional Sessions Judge. The High Court was in error in holding that the appointment of Rajkhowa to the position of an Additional District Judge was invalid because the order was made by the Governor instead of the High Court. The appointment or promotion was perfectly valid and according to the Constitution.

This brings us to the next point in the case which arises a~ side issue involving the Legal Secretary, who is also an appellant here. The Civil Courts Act was amended by the Assam Legli~­latll!'e by Act XII of 1967 which came into force on 16th August, 1967. The designation of subordinate judge was altered to Assis-tant District Judge. On: August 17, 1967 new rules for the Assam Judicial Services were brought into force. The Judicial Service was reconstituted as follows :-D Grade I.

(1) District and Sessions Judge.

( 2) Registrar.

(3) Presiding Officer, Industrial Tribunal.

( 4) Presiding Officer, Labour Court.

Grade II.

(1) Additional District Magistrate.

(2) Assistant District Judge.

(3) Deputy Registrar.

Grade ill.

(1) Munsiff.

(2) Judicial Magistrate.

(3) Sub-Dividonal Magistrate (Judicial).

(4) Assistant Registrar.

The High Court was of opini0n that this was deliberately done to grab at the power of promoting subordinate judges by taking ad-vantage of the definition of District Judge which includes an Assis-tant District Judge. By this device, which •he High Court des-cribed as 'a fraud upon the Constitution' the power of promotion vested in the High Court in respect to persons belongini: to the Judicial Service of State and holding posts inferior to the .Post of the District Judge the jurisdiction of the High Court under Art. 235 was taken away. Formerly, the subordinate service ·was

composed of two grade• and promotion between the two grades was made by the High Court. Under the new rules there is only one grade (i.e. grade III) in which Art. 235 can operate if at all. Since all the posts there are equ;tl and carry equal pay there is no scope for promotion at all. _The High Court is thus right that there is no scope for the exercise of the power of the High Court to make promotions in the case of persons below the rank of District Judges (which term includes an Assistant District Judge). The High Court was thus far right-but the High Court is not right in thinking that it can ignore the hi!'rarchy of courts in Assam as established by law and treat the change as of no consequence. The remedy is not to go against the Civil Courts Act as amended, but to have the amendment rescinded. We are of the view that the change is likely to lead to an impairment of the independence of the judiciary at the lowest levels whose promotion which was vested by the Con-stitution in the High Court advisedly, will no longer be entirely in the hands of the High Court. The remedy for it is by amendment of the law to restore the former position. We may say that we do not approve of the cha,nge of mere name without any additional benefits.

The High Court was unnecessarily hard upon the Legl!l Secre-tary. It is proved that this amendment was first thought of several years ago when there was some other Legal Secretary. It is also established that the amendment was intended to bring in the nom-enclature existing in some other States without realising what effect it would have upon the operation of Art. 235 in the State. The remarks of the Chief Justice against the Legal Secretary were unmerited.

For these reasons we allow the appeal and set a<ide the writ of quo warranto issued by the High Court, but in the circum-stances of the case we make no order about costs.

R.K.P.S.

Appeal allowed.