HIDAYATULLAH, G. - (1.) THE Judgment of the court was delivered by -
(2.) THIS is an appeal by certificate under Article 132 of the Constitution against the judgment and order of the High court of Assam, February 5, 1968. It was filed by the State of Assam and the Legal secretary to the Goverment of Assam and challenges a writ of quo warranto issued against Upendra Nath Rajkhowa, District and Sessions Judge, Darrang at Tazpur 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 a sessions trial, challenged 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 No. LJJ 74/66/65 dated 19-6-67 purporting to act under Article 233 was void because he could only be promoted by the High court Article 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) 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." 507 acting under Article 235. Consequently, his further appointment as DistrictJudge by the governor by notification No.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 'promotion' as Additional Sessions Judge was valid as that post was not included 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 whether the judgments given as DistrictJudge by Rajkhowa were void since that question did not arise on a petition for a writ of quo warranto. The Assam Judicial Service was constituted by a notification of the government of Assam issued on 25/08/1952. The Senior Branch of the service was known as State Judicial Service (Senior) and it consisted of the following posts: JUDGEMENT_505_3_1969Html1.htm On 9/04/1954, the State Judicial Service (Junior) was created. Separate rules governed the junior service. The following posts were included : JUDGEMENT_505_3_1969Html2.htm Rajkhowa was originally a Munsiffin 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 19/06/1967 the following notification was issued: "No.LJJ 74/66/65. The services of Sri U.N. Rajkhowa, Deputy Registrar, High court of Assam and Nagaland being replaced at the 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 lie may have under the law regulating the conditions of Ills 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." 508 disposal of the government. The governor of Assam in consultation with the High court of Assam and Nagaland, and in exercise of powers 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 Upendra 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. G. 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 a case of 'promotion' of a person belonging to the judicial service of the State and the High court was the authority to make the promotion under Article 235. In this appeal the view of the High court is challenged.
(3.) CH. VI of Part VI of the Constitution deals with Subordinate courts. The history of this CH. and why judicial services came to be provided for separate from other services has been discussed in The State of West Bengal v. Nripendra Nath Bagchi. This service was provided for separately to make the office of a District Judge completely free of executive control. The CH. contains six articles (233 to 237). We are not concerned with Article 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 a State and holding any post inferior to the post of District Judge. By reason of the definitions given in Article 236, the expression 'Judicial Service' means a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the District Judge and the expression "District Judge" includes among others an additional District Judge and an additional Sessions Judge. The promotion of persons belonging to the judicial service but holding post inferior to a District Judge vests in the High court. As the expression District Judge includes an additional District Judge and an additional Sessions Judge, they rank above those persons whose promotion is vested in the High court under Article 235. Therefore, the promotion of persons to be additional District Judges or additional Sessions Judges is not vested in the High court. That is the function of the governor under Article 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 shall be made by the governor of the State in consultation with the High court exercising jurisdiction in relation to such State. X X X X X. The language seems to have given trouble to the High court. The High court holds : (1) 'appointment to be' a District Judge is to be made by the governor in consultation with the High court vide Article 233 ; and (2) 'promotion' of a District Judge and not promotion 'to be a District Judge' is also to be made by the governor in consultation with the High court vide Article 233. 509 The High court gives the example of selection grade posts in the cadre of District Judges which according to it is a case of promotion of a District Judge. The reading of the article by the High court is, with respect, contrary to the grammar and punctuation of the article. The learned chief justice seems to think that the expression 'promotion of governs 'District Judges' ignoring the comma that follows the word 'of. The article, if suitably expanded, reads as under : "Appointments of persons to be, and the posting and promotion of (persons to be), District Judge etc." ;