Judgement

ROY, J.:- This is an appeal by special leave against the judgment and order dated September 12, 1966, in Civil Rule no. 381 of 1965 of the High court of Assam and Nagaland. By this judgment a Division Bench of the High Court allowed the petition under Article 226 of the Constitution filed by the respondent S. N. Sen. The facts shortly are as follows:

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 Court s 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.

8. Our Constitution makes specific provisions for appointment of district judges and for recruitment of the persons other than the district Judges to the Judicial Service. It also makes provision for the control to be exercised over the subordinate Courts. The three articles are as follows:

Article 233- "(1) Appointment of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.

(2) x x x x x x"

x x x x x x

Article 234 - "Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State."

Article 235. - "The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of district Judge shall be vested in the High Court, but nothing in this article shall be construed as