Ahmad, C.J. - (1.) THERE are six applications, all under Article 226 of the Constitution of India and are in three sets. Each of the three sets comprises _two applications (both by a common Petitioner) -one for a writ of mandamus and/or order/direction in the nature of mandamus and the other for a writ of quo warranto or order/direction in the nature of quo warranto, in respect of matters and officers detailed hereafter. Along with the two applications in each of the three sets there is also a third application made by the same common Petitioner, for having a proceeding in contempt drawn against a common batch of four officers (1) Sri V. Natarajan I.A.S. Secretary to the Government of Orissa in the Home Department (Opposite party No. 2 in O.J.C. No. 495 of 1966), (2) Sri P.C. De (Opposite party No. 1 in O.J.C. No. 495 of 1966), (3) Sri K.K. Bose (Opposite Party No. 6 in O.J.C. No. 495 of 1966), and (4) Sri B.K. Patro, opposite party No. 5 in O.J.C. No. 495 of 1966. The applications for proceedings in contempt are not before this Bench; and this judgment is confined to the reliefs sought in the aforesaid six petitions alone. Therefore, the facts stated in the applications for proceedings in contempt are not stated here.
(2.) THE six applications arise out of he three orders of transfer passed by the High Court on 10th October, 1966 concerning the three officers (1) Sri P.C. De, (2) Sri K.K. Bose and (3) Sri B.K. Patro as District Judges in the composite judgeships and sessions divisions of (1) Bolangir -Kalahandi, (2) Mayurbhanj -Keonjhar and (3) Ganjam -Boudh respectively - The main question in controversy is whether these orders of transfer passed by the High Court are within the scope and ambit of the power vested in the High Court under Article 235 of the Constitution and as such valid in law and not illegal and void All these three officers are admittedly the members of "The Orissa Superior. Judicial Service" as defined in "The Orissa Superior Judicial Service Rules, 1963" (hereafter called the Superior Judicial Service Rules), and were at the time of the order of transfer holding respectively (1) the non -cadre post of Member, Sales Tax Tribunal (2) the cadre post of the Superintendent and Legal Remembrancer and ex -officio. Additional Secretary, Law Department, and (3) the cadre post of Secretary, Law Department. These posts which were then held by these officers -as the members of the Superior Judicial Service may, for brevity, be called the special posts as contra -distinguished with the posts which are held by the members of the Superior Judicial Service as presiding officers of district Courts. Their orders of transfer were passed under three separate High Court notifications bearing Nos. 201A, 199A and 197A respectively, but published under a common, composite notification dated Cuttack, the 10th October, 1966. Simultaneously, along with these notifications there were also three other notifications issued by the High Court - bearing Nos. 198A, 196A and 200A -and published in the same common and composite notification dated Cuttack, the 10th October 1966. They related to the transfer of a group of three other officers, namely (1) Sri T. Misra (opposite party No. 8 in (3) Shri P.K. Mohanty (opposite party No. 9 in O.J.C. No. 495 of 19(6). These three officers are also admittedly the member of the Orissa Superior Judicial Service and were at that time respectively holding the posts of (1) District and Sessions Judge, Ganjam. Boudh (2) Special Officer attached to the Home Department in connection with the Commission of Enquiry, Students' Agitation, and (3) District and Sessions Judge, Bolangir - Kalahandi. They were under these notifications, transferred respectively to the three cadre posts of (1) Superintendent and Legal Remembrancer and ex -officio Additional Secretary to the Government of Orissa, Law Department in place of Sri K.K. Bose, (2) the Secretary to the Government of Orissa, Law Department of Orissa, in place of Shri B.K. Patro, and (3) the Deputy Secretary to the Government of Orissa, Law Department, which post had been then for some time past in abeyance for the reason of the controversy between the High Court and the Government over the choice of the incumbent for that post. It may however be noted here that in place of Sri P.C. De, no member of the Superior Judicial Service or any other judicial officer was transferred by the High Court to the post of the Member, Sales Tax Tribunal, as that post is a non cadre post. The High Court in connection with that post simply informed the Government under D.O. letter No. 8060 dated 10th October 1966 (annexure 0 to the counter -affidavit filed by the Registrar, High Court -opposite party No. 10 in O.J.C. No. 495 of 1966 that As regards fining up the ex -cadre post of Member, Sales Tax Tribunal, the Court have no objection to spare the service's of some senior officers of the Superior Judicial Service, if Government want to fill up the said post by deputation Government despite that has not so far sent any intimation to the High Court for sparing any member of the Judicial Service for that post. Therefore no further action has been taken by the High Court in connection with that post. Thus, what the High Court in passing the aforesaid order of transfer did was that it transferred the three members of the Superior Judicial Service holding the special posts -cadre or non -cadre as presiding officer in the different District Courts and simultaneously transferred three other members of that Service functioning as presiding officers of the District Courts to the vacancies in the special cadre posts. It may however be made here clear that the facts relating to the transfer orders of the three other officers functioning as presiding officers of the District Courts to the vacancies in the special cadre posts have no bearing on the reliefs sought in these six petitions though it is a different matter that the three officers affected thereby, have also been made parties to all the three petitions for the writ of mandamus, perhaps with a view to provide a comprehensive picture of the background in which the reliefs stated therein have been sought.
(3.) IT is not disputed that in pursuance of the direction given by the High Court, three officers, (1) Sri T. Misra, (2) Sri K.B. Panda, (3) Sri P.K. Mohanty made over charge of their respective posts on 14th November 1966, 9th November 1966 and 14th November 1966 respectively, to join their new posts to which they had been transferred, and thereafter in due course reported themselves for duty in their' new posts to the appropriate authorities and submitted joining reports. Their joining reports were not accepted and these officers have been so far not allowed to join their new posts. In the case of Shri T. Misra, who offered himself to join his new posts of the Superintendent and Legal Remembrancer and ex -officio Additional Secretary to the Government of Orissa Law Department, on the 18th November, 1966, the Home Secretary intimated to him substantially in terms (as already communicated to Sri A. Misra, Registrar, High Court, in D.O. letter no 2713/HC dated 10th November, 1966. from Shri V. Natarajan, I.A.S., Secretary to Government in the Home Department) that Government have ordered Sarvasri B.K. Patro, P.C. De, and K.K. Bose not to make over charge of their respective offices. In view of these specific orders of Government under whom these officers are serving, it is not open to them to make over charge of their present offices. Subsequently in his memo No. 27693 dated 18th November 1966, he informed him that be could not be allowed to join the post. The other officer, namely Shri K.B. Panda made over charge of his post of Special Officer on 9th November 1966 to the Home Secretary, Sri V. Natarajan and perhaps the very next day on 10th November] 966 he reported himself to the Home Secretary to join his new post. To him as well the Home Secretary gave the same reply and did not allow him to join his new post. The last officer, namely Sri P.K. Mohanty made over charge of his post in the afternoon of 14 November 1966, and reported himself for joining his new post to the then Law Secretary Shri B.K. Patro on 25th November 1966, but the latter directed him to file the joining report before the Home Secretary Shri V. Natarajan. Accordingly he filed his joining report before the Home Secretary Sri V. Natarajan, on the same day. But on the next day he was informed by the Home Secretary that his joining report was also not accepted by Government. Thus the notifications of transfers passed by the High Court in respect of these three officers have not been so far allowed to be given effect to by the Home Secretary Sri V. Natarajan and the relevant authorities concerned. The result is that these three officers have been so far since then without any office or post or function or responsibility or duty to discharge. They are virtually hanging in the air and despite the letters addressed by them and Sri A. Misra, Registrar, High Court, to the Accountant. General, Orissa, for issue of pay ship entitling them at least to draw their substantive pay no action has been taken by him; and so they have not been able, since then, even to draw their substantive pay from the treasury. Likewise , it is also an admitted fact that despite the aforesaid High Court notifications and directions given to (1) Sri P.C. De, (2) Sri K.K. Bose and (3) Sri B.K. Patro, none of them has so far joined their new posts as District and Sessions Judges of Bolangir -Kalahandi, Mayurbhanj -Keonjhar and Ganjam -Boudh respectively, and all of them have been as before still functioning in their old posts as (1) Member, Sales Tax Tribunal, (2) Superintendent and Legal Rememberancer and ex -officio Additional Secretary to the Government of Orissa, Law Department, and (3) Secretary to the Government of Orissa, Law Department respectively. Thus, the allegations made in all these petitions are substantially of the same pattern and are for all practical purposes the same or similar excepting a few minor facts here and there like the names of the offices or officers or of the dates of their movements, and some such other facts which necessarily vary from petition to petition. Therefore, we will in the course of our discussion refer, for convenience, to the facts and the position of parties as stated in one of them, namely, 0 J. C No. 495 of 1966 unless otherwise necessary.;