Judgment

HIDAYATULLAH, J. : These are two appeals by certificate against a common judgment of the High Court of Assam and Nagaland at Gauhati, dismissing two writ petitions filed by one Ranga Muhammad against D. N. Deka and B. N. Sarma, District and Sessions Judges, respectively, of Lower and Upper Assam Districts questioning the transfer of the former from Jorhat to Gauhati and the appointment and posting of the latter at Jorhat. The petitioner had asked that the relevant notifications by the Government be quashed on the ground that the High Court alone could make the transfers and, in any event, the High Court had to be consulted and was not consulted before making the orders. The petitions were heard and disposed of by a Divisional Bench consisting of Chief Justice Mehrotra and Mr. Justice S. K. Dutta. The Chief Justice held that there was no consultation with regard to the posting of Deka, that the transfer of Deka to Gauhati was irregular as the High Court alone could have ordered it, and that the transfer of B. N. Sarma was for a like reason also irregular. Holding, however, that none of the District Judges could be said to occupy wrongly the office of District and Sessions Judge the High Court declined the writ of quo warranto. The petitions were accordingly dismissed but without cost to the State Government. In a separate but concurring judgment Dutta, J. passed some scathing remarks on the action of the Government which he described as mala fide and actuated by some ulterior motive. The High Court on being moved by the State Government granted certificates under Art. 132 of the Constitution on the ground that the judgment involved the interpretation of Arts. 233 and 235 of the Constitution. By these appeals the State Government seeks the reversal of the opinion of the High Court on the interpretation of Articles 233 and 235 of the Constitution. The main contention is that the High Court was, in fact, consulted and, alternatively, that the power to transfer District Judges lies with the State Government and not with the High Court. The State Government also asks for the expunction of the remarks of Mr. Justice Dutta above mentioned.

2. The State of Assam consists of only three Sessions Divisions. They are: The Upper Assam Districts, the Lower Assam Districts and the Cachar Districts with Jorhat, Gauhati and Silchar respectively as the Headquarters of the three District Judges. The Government of Assam with the concurrence of the High Court has made the Assam Judicial Service (Senior) Rules and Rule 5 deals with recruitment. In the Senior Judicial Service of the State there are two grades -Senior Grade I and Senior Grade II. Grade I has four posts earmarked for Registrar, and three District Judges, and Grade II consists of the Additional District Judges. Under sub-r. (i) of R. 5 the Chief Justice of the High Court fills the post of the Registrar by virtue of Art. 229 of the Constitution of India preferably from Grade I or Grade II of the Service, and under sub-r. (ii) the other posts of the cadre are filled by the Government in consultation with the High Court, but not more than one-third of the posts in each Grade of the cadre may be filled up by direct recruitment. The other posts are filled up by promotion from Grade II of the cadre or Grade I of the Assam Judicial Service (Junior), respectively.

3. One would think that with so few posts in the cadre and places there would be little scope for disagreement but unfortunately there was. On December 6, 1962 the Chief Justice appointed A. Rahman, District Judge, Gauhati as Registrar and recommended that B. N. Sarma, Additional District and Sessions Judge be promoted and appointed District Judge, Gauhati and in B. N. Sarma s place D.C. Sharma should be appointed as Additional District and Sessions Judge. This proposal was accepted by Government. It appears, however, that one Medhi, District Judge, was retiring and there was a vacancy. It also appears from the correspondence wh