1969 Supreme(Gau) 4

GAUHATI HIGH COURT
S.K.Dutta, K.C.Sen, JJ.
Kuseswar Saikia -Appellant
Versus
State of Assam -Respondent
Civil Rule No. 222 of 1968
Decided On : 05-02-1969

The power to promote a Subordinate Judge to the post of Additional District Judge vests in the High Court under Article 235 of the Constitution, and the change in designation of Subordinate Judge to Assistant District Judge cannot deprive the High Court of this power.

Headnote:

CONSTITUTIONAL LAW - APPOINTMENT AND PROMOTION OF JUDICIAL OFFICERS - POWER OF HIGH COURT AND GOVERNMENT - INTERPRETATION OF ARTICLES 233, 234, 235 AND 236 OF THE CONSTITUTION - ASSAM JUDICIAL SERVICE RULES 1952 AND 1967 - VALIDITY - PROMOTION OF SUBORDINATE JUDGE TO ADDITIONAL DISTRICT JUDGE - WHETHER A PROMOTION OR APPOINTMENT - POWER OF HIGH COURT - CHANGE IN DESIGNATION OF SUBORDINATE JUDGE TO ASSISTANT DISTRICT JUDGE - EFFECT - APPOINTMENT OF ADDITIONAL DISTRICT JUDGE AS DISTRICT JUDGE - WHETHER A PROMOTION OR APPOINTMENT - POWER OF GOVERNOR - CONTROL OF HIGH COURT OVER SUBORDINATE JUDICIARY - MEANING OF "CONTROL" - POLICY OF SEPARATION OF JUDICIARY FROM EXECUTIVE - DUTY OF ADVOCATE-GENERAL TO REPORT FLAWS IN LEGAL ENACTMENTS TO GOVERNMENT - QUO WARRANTO - SCOPE - JUDGMENT GIVEN BY DISTRICT JUDGE IN CAPACITY AS SESSIONS JUDGE - VALIDITY.

Fact of the Case:

The petitioners, convicted in a sessions case by Shri U. N. Rajkhowa, District & Sessions Judge, Barrang, filed a petition for a writ of Quo Warranto, challenging Shri Rajkhowa's entitlement to hold the post of District and Sessions Judge, Darrang. The petitioners contended that Shri Rajkhowa's promotions from Deputy Registrar to Additional District Judge and from Additional District Judge to District and Sessions Judge were void ab initio, as the power to promote judicial officers inferior to District Judges vested in the High Court under Article 235 of the Constitution.

Finding of the Court:

The court held that the promotion of a Subordinate Judge to the post of Additional District Judge was a promotion within the same service, the State Judicial Service, and could only be made by the High Court under Article 235 of the Constitution. The court further held that the change in designation of Subordinate Judge to Assistant District Judge was a subterfuge to deprive the High Court of its power to promote Subordinate Judges. The court also held that the appointment of an Additional District Judge as District Judge was an appointment and not a promotion, and could be made by the Governor in consultation with the High Court under Article 233 of the Constitution.

Issues: 1. Whether the promotion of a Subordinate Judge to the post of Additional District Judge was a promotion or an appointment. 2. Whether the change in designation of Subordinate Judge to Assistant District Judge affected the High Court's power to promote Subordinate Judges. 3. Whether the appointment of an Additional District Judge as District Judge was a promotion or an appointment.

Ratio Decidendi: 1. The court interpreted Articles 233, 234, 235, and 236 of the Constitution to determine the respective powers of the High Court and the Government in the appointment and promotion of judicial officers. 2. The court held that the power to promote a Subordinate Judge to the post of Additional District Judge vested in the High Court under Article 235 of the Constitution, as it was a promotion within the same service, the State Judicial Service. 3. The court held that the change in designation of Subordinate Judge to Assistant District Judge was a colourable legislation and a fraud on the Constitution, as it was intended to deprive the High Court of its power to promote Subordinate Judges. 4. The court held that the appointment of an Additional District Judge as District Judge was an appointment and not a promotion, as the post of Additional District Judge was included in the definition of District Judge under Article 236 of the Constitution.

Final Decision: The court allowed the petition partially, holding that Shri Rajkhowa was not entitled to hold the post of District Judge, but he could continue to hold the post of Sessions Judge, as he was validly appointed to that post by the competent authority.