TMI Blog1966 (9) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... consisting of Chief Justice Mehrotra and Mr. Justice S. K. Dutta. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Beng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernor 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 impropr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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