Case: State Of Assam &amp; Anr Vs. Kuseswar Saikia And Ors

1. 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 a writ of quo warranto issued against Upendra Nath Rajkhowa, Distt. and 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 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 LJJ 74/66/65 dated 19-6-67 purporting to act under Art. 233*was void because he could only be promoted by the High Court acting under Art. 235**Consequently his further appointment as District 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 Rajkhowas simultaneous promotion as Addl. 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 District Judge by Rajkhowa were void since that question did not arise on a petition for writ of quo

Reasoning:
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 Art. 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 Additions Sessions Judge, 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 vested in the High Court. That is the function of the Governor under Art. 233.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 thinkthat the expression promotion of governs District Judges ignoring the comma that follows the word of. The article, if suitably expanded, reads asof persons to be, and the posting and promotion of (persons to be), District Judgesmeans that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression District Judge includes an additional 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 concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it. Further promotion of District Judges is a 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 Governor appointed Rajkhowa an Additional District Judge, it could either be an appointment or a promotion under Art. 233. If it was an appointment it was clearly a matter under Art. 233. If the notification be treated as promotion of Rajkhowa from the junior service to the senior service it was a promotion of a person to be a District Judge which expression, as shown above, includes an Additional District Judge. In our opinion it was the latter. Thus there is no doubt that the appointment of Rajkhowa as Additional District Judge by the Governor was a promotion and was made under Art. 233. It could not be made under Art. 235 which deals with posts subordinate to a District Judge including an Additional 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.6. The brings us to the next point in the case which arises as a side issue involving the Legal Secretary, who is also an appellant here. The Civil Courts Act was amended by the Assam Legislature by Act XII of 1967 which came into force on 16th August, 1967. The designation of subordinate judge was altered to Assistant District Judge. On August 17, 1967 new rules for the Assam Judicial Services were brought intoHigh Court was of opinion that this was deliberately done to grab at the power of promoting subordinate judges by taking advantage of the definition of District Judge which includes an Assistant District Judge. By this device, which the High Court described as a fraud upon the Constitution the power of promotion vested in the High Court in respect to persons belonging to the Judicial Service of a 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 grades 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 equal and carry equal 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 hierarchy 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 Court 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 Constitution 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 change of mere name without any additional benefits.