CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1061 of 1967. Appeal by Special leave from the Judgment and Order dated September 12, 1966 of the Assam and Nagaland High Court in Civil Rule No. 381 of 1965. A. K. Sen, Naunit Lal and S. N. Choudhury, for the appellants. A. V. Rangwn, for the Advocate-General for the State of Tamil Nadu. W. C. Chopra, for the Registrar, Madras High Court. -L500Sup.CI4/72 P. K. Chatterjee and G. S. Chatterjee, for the, Advocate General for the State of West Bengal. O. P. Rana, for the Advocate-General for the. State of U.P. J. D. Jain and A. R. Bar Thakur, for the Advocate-General for the State of Nagaland. Porus A. Mehta. and B. R. Agarwala, for the Registrar, Bombay High Court, Appellate Side. L. M. Singhvi and U. P. Singh, for the State of Bihar. Lal Narain Sinha, Advocate-General for the State of Bihar, D. P. Singh S. C. Agarwala, R. K. Garg and V. J. Francis, for the the Registrar, Patna High Court. The Judgment of the Court was delivered by Roy, J. This is an appeal by special leave against the judgment and order dated September 12, 1966, in Civil Rule No. 381 of 1965 of the High Court of Assam and Nagaland. By this judgment a Division Bench of the High Court allowed the petition under Art. 226 of the Constitution filed by the respondent S. N. Sen. The facts shortly are as follows : Respondent No. 1-S. N. Sen-was initially appointed as an Extra Assistant Commissioner by the Governor of Assam on December 21, 1950. Thereafter he opted for Judicial Service and was appointed Munsiff by the Governor of Assam with effect from January 1, 1955. He was confirmed in the post of Munsiff in Assam Judicial Service (Junior) Grade 11 with effect from December 8, 1956. On or about December 15, 1961, respondent No. 1 was promoted to act as the Additional Sub-Judge, Cachar, and he took charge on December 22, 1961. The High Court of Assam and Nagaland confirmed the appointment of respondent No. 1 in the Judicial Service (Junior) Grade I with effect from March 1, 1964 against the post of Sub-Judge No. 2, Gauhati This post of Sub-Judge No. 2, Gauhati. was temporary, but had been made permanent on December 31, 1963. This confirmation was published in the Assam Gazette dated May 1, 1964. The Accountant General of Assam and Nagaland took objection to this order of confirmation. It was alleged that such confirmation was in violation of r. 5(iv) of the Assam Judicial Service (Junior) Rules, 1954. It was alleged that the confirmation could only be made by the Governor, and not by the High Court. It appears that some correspondence went on between the High Court and the Accountant General. By letter dated December 21, 1964, the Registrar of the High Court informed the Accountant General that the Government had been moved to amend r. 5 (iv) of the Assam Judicial Service (Junior) Rules, 1954. By a letter dated May 1, 1965, the State Government informed the High Court regretting its inability to take up the question of the amendment of r. 5 (iv) "at this stage". On June 15, 1965, the Accountant General informed the High Court that, as the Government had not amended the Rules, the order of confirmation, communicated in the High Court’s notification dated May 1, 1964, was not in order. Thereupon the respondent No. 1 was informed by the High Court by its letter dated July 20, 1965, that the Accountant General had refused to accept his confirmation. Respondent No. 1 thereupon filed a writ petition in the High Court. On September 12, 1966, the High Court allowed the petition. There were two judgments-one by Mehrotra, C.J. and the other by S. K. Dutta, J. The High Court refused certificate, but on July 21, 1967, this Court granted special leave to appeal. Our Constitution makes specific provisions for appointment of district judges and for recruitment of the persons other than the district Judges to the judicial service. It also makes provision for the control to be exercised over the subordinate courts. The three articles are as follows :
Art. 233--’(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)
Art. 234--"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."
Art. 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, 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."’ As already indicated the respondent Sen was appointed to act as Additional Sub-Judge, Cachar, and he took charge on December 22, 1961. The High Court of Assam and Naga.and confirmed his appointment in the Judicial Service (Junior) Grade 1, with effect from March 1, 1964. Rule 5(iv), on the basis of which objection was raised by the Accountant Geaeral, is as follows :-
"5. Appointment, probation and confirmation
(iv) when a person is appointed to a permanent
post he will be confirmed in his appointment
at the end of the period of probation or
extended period of probation. In case of the
Deputy Registrar and Assistant Registrar of
the High Court confirmation shall be made by
the High Court. In other cases it will be
made by the Governor in consultation with the
High Court."
Dealing with it, Mehrotra, C.J., observed as
follows
"It will be anomalous to hold that power of
promotion and posting vests in the High Court
while the power of confirming an officer in
the post vests in the Government. With regard
to the scheme of the Constitution and the
Rules, it is clear that rule 5 (iv) applies to
the persons who are appointed by direct
recruitment to the post of a Sub-Judge and not
to the persons who have been promoted. In my
opinion, therefore, the power to confirm the
Judicial officers who have been promoted vests
in the High Court."
On the other hand, S. K. Dutta, J. was of the
view:
"In this connection it is not necessary to
examine Rule 5(iv) of the Assam Judicial
Service (Junior) Rules, 1954, on which the
State of Assam and the Accountant General,
Assam rely in their contention that a
Subordinate Judge can be confirmed in his post
only by the Government. If the rule is in
conflict with any constitutional provision, it
will be void and must be struck down." Under the provisions of the Constitution itself the power of promotion of persons holding post inferior to that of the district Judge is in the High Court . It stands to reason that the power to confirm such promotion should also be in the High Court. This Court has on several occasions expressed its views on Art. 235 of the Constitution. In The State of West Bengal v. Nripendra Nath Bagchi(1), it was pointed out :
In the case of the judicial service subordinate to the
district judge the appointment has to be made by the
Governor in accordance with the rules to be framed after
consultation with the State Public Service Commission
and the High Court but the power of posting, promotion
and grant of leave and the control of the courts are
vested in the High Court." A year later, in State of Assam v. Ranga Mahammed and Ors. (2) this Court against observed 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 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." This observation was made in relation to a case of transfer, but it applies with greater force to the case of promotion. The result is that we hold that the power of promotion of persons holding posts inferior to that of the district judge being in the High Court, the power to confirm such promotions is also in the High Court. We also hold that insofar as r. 5 (iv) is in conflict with Art. 235 of ’the Constitution, it must be held to be invalid. On the basis of the last part of Art. 235, an argument was purported to be advanced that the power of the High Court as to (1) [1966] 1 S.C.R. 771. (2) [1967] 1 S.C.R. 454. promotions was limited. In view of the plain words of the first part of this article, this argument has no basis. In this Court, no other point was made in support of this appeal. The appeal, therefore, fails and is dismissed, but in the circumstances of the case with no order as to costs. S.C. Appeal dismissed.