Case: State Of Assam &amp; Anr Vs. S. N. Sen &amp; Anr

2. 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 II with effect from December 8, 1956.      3. On or about December 15, 1961, respondent No. 1 was promoted to act as the Additional Sub-Judge, Cacher, 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.      4. The Accountant General of Assam and Nagaland took objection to this order of confirmation. It was alleged that such confirmation was in violation of Rule 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.      5. 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 Rule 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 Rule 5 (iv) at this stage.      6. 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 Courts 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.      7. 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.

Reasoning: 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 promotion is also in the High Court. We also hold that insofar as Rule 5 (iv) is in conflict with Article 235 of the Constitution, it must be held to be invalidOn the basis of the last part of Article 235, an argument was purported to be advanced that the power of the High Court as to promotions was limited. In view of the plain words of the first part of this article, this argument has no basisIn this Court, no other point was made in support of this appeal.