Judgement

HEGDE, J. :- These cases are the outcome of an unfortunate conflict between the High Court and the Government of Orissa.

2. The Orissa Superior Judicial Service (senior branch) is a combined cadre consisting of officers holding purely judicial posts as well as posts which are essentially administrative in character. It consists of Bight district end cessions Judges, two additional district end cessions judges. secretary to government in the law department, superintendent and legal remembrancer, law department, deputy secretary to government in the law department, member, administrative tribunal and the Registrar of the Orissa High Court in all 15 in number. A11 these officers are the members of the Orissa "Judicial Service" within the meaning of that expression in Article 236 (b) of the Constitution. Out of these, the district and sessions judges and additional district and sessions judges were discharging purely judicial functions. In view of Article 229 of the Constitution, the power to appoint the Registrar of the High Court is exclusively that of the Chief Justice. Neither the High Court as such nor the Governor has any hand in his appointment. The power to appoint the secretaries to the government is that of the Governor. Under the Government of India Act 1935 the power to transfer a district judge from one post to another was that of the Governor though that power was always exercised in consultation with the High Court and by and large on the recommendation of the High Court. In Orissa, as in most of the other states, that practice continued till the decision of this Court in the State of Assam v Ranga Mohammad, 1967-1 SCR 454: Obviously when the Governor promulgated the Orissa Superior Judicial Service Rules 1963, he proceeded on the basis that the power to transfer the district judges and additional district judges, from one post to another whether as a judge or to one of the posts in the secretariat was in his hands.

3. It appears that for some time past there were differences between the High Court and the government about the posting of some of the judicial officers. The High Court was anxious that a judicial Officer occupying one of the administrative posts enumerated above, should not, in the interest of judicial work, continue in that post for an unduly long time. The High Court insisted that ordinarily judicial officers should not hold those posts for more than three years. The High Court was repeatedly requesting the government to send back judicial officers working in administrative posts as district judges or as additional district judges as the case may be, after they had held those posts for three years or more. But those requests were not respected. On that account there appears to have been some friction between the High Court and the government for some years past.

4. Shri B. K. Patro one of the district and sessions judges, was posted as superintendent and legal remembrancer in March 1962. Shri K. K. Bose, additional district and sessions judge, was posted as joint secretary in the law department in the same month. He worked in that capacity till February 1965. Thereafter, he was posted as superintendent and legal remembrancer. Shri P. C. Dey, a district and sessions judge was posted as member of sales tax tribunal on 31-1-62. That was a non-cadre post.

5. In February 1965, the High Court took a policy decision to the effect that as a general rule, judicial officers working in special posts whether cadre or non-cadre outside their regular line, should be recalled to the regular line after the completion of three years in the interest of the service as well as the officers, so that "Officers may not deteriorate by remaining out of touch from regular judicial work for continuously long periods and the service will not suffer by being deprived of the services of senior and experienced officers in manning the posts in the regular judicial line." It is of utmost importance that judicial officer should