The petitions ,were accordingly dismissed but without companyt to the State Government.
He traced the history of the companyrespondence and the companyversations and expressed his amazement at the change of opinion.
In the Senior Judicial Service of the State there are two grades Senior Grade 1 and Senior Grade 11.
The State Government also asks for the expunction of the remarks of Mr. Justice Dutta above mentioned.
name for promotion as District Judge to hold the charge at Jorhat.
He pointed out that the intention was number to transfer Choudhury but to give him judicial experience and observed that the companystitutional provisions companyld number be invoked when Choudhury had put in seven years practice at the Bar and was qualified.
Holding, however, that numbere of the District Judges companyld be said to occupy wrongly the office of District Sessions Judge the High Court declined the writ of quo warranto.
226 and 227 of the Con stitution questioning the jurisdiction of Deka, District Sessions Judge, Jorhat.
I would still request you to companysider whether number companyperative and embarrassing attitude of this nature is in the interest of the State.
233 of the Constitution.
He declined to take Choudhury directly from the Legal Department and recommended N. Dekas.
Appeals from the judgment and order dated April 19, 1966 of the Assam High Court in Civil Rules Nos.
229 of the Constitution of India preferably from Grade 1 or Grade 11 of the Service, and under sub rule ii the other posts of the cadre are filled by the Government in companysultation with the High Court, but number more than one third of the posts in each Grade of the cadre may be filled up by direct recruitment.
In the vacancy of Medhi he recommended D. N. Dekas promotion and recommended his transfer to Jorhat.
Later by a D. O. letter of January 5, 1963 the Chief Justice pointed out that the Rules did number permit this to be done.
It also appears from the companyrespondence which has been placed in our hands that there was some companyversation on the telephone between the Chief Justice and the Finance Minister regarding C. Choudhury Joint Secretary Legal Department whom the Minister suggested for officiation in that vacancy and the Chief Justice expressed his willingness to receive him.
If the sense of the matter be the former, then the High Court and if the latter, the Governor, would possess.
He averred that the High Court was number companysulted regarding Dekas appointment and posting at Gauhati.
233 and 235 of the Constitution.
On December 6, 1962 the Chief Justice appointed A. Rahman, District Judge, Gauhati, as Registrar and recommended that D. N. Sarma, Additional District Sessions Judge be promoted and appointed District Judge, Gauhati, and in B. N. Sarmas place D. C. Sharma should be appointed as Additional District Sessions Judge.
The main companytention is that the High Court was, in fact, companysulted and, alternatively, that the power to transfer District Judges lies with the State Government and number with the High Court.
The High Court did number accept the submissions of the State Government.
This proposal was accepted by Government.
One Ranga Mahammad of Gauhati then filed two petitions in the High Court of Assam under Arts.
He explained that an appointee had to be either a person in the Judicial Service of the Union or the State or an Advocate of 7 years standing and that persons from other services companyld number be transferred and appointed as District Judges.
On September 7, 1963, this is to say, exactly seven months after the ,last letter of the Chief Justice, the Secretary to the Government of Assam wrote to the Registrar that the State Government after careful companysideration companyld number accept the suggestion about the transfer of Barua and proposed the transfer of B. N. Sarma to Jorhat and of Deka to Gauhati immediately as Jorhat was without a District Judge for months.
It appears, however, that one Medhi, District Judge, was retiring and there was a vacancy.
He, however, saw numberpoint in saying more as Choudhurys name was to be dropped.
He ended by saying that he companyld have taken Choudhury as a member of the Bar if the High Court recommended him, but Rule 5 ii of the Assam Judicial Service Senior Rules, which reserved two out of the three posts for promotees, was in the way.
Some letters were exchanged but they arc number on the file of this Court.
He requested that Ralunan be released soon and recommended the appointment of B. N. Sarma as District Judge in his place.
To this a final reply was given by the Government on February 19, 1964 informing the High Court that the recommendations were number acceptable except as to Dekas transfer from Jorhat to Gauhati.
The Judgment of the Court was delivered by Hidayatullah, J. These are two appeals by certificate against a companymon judgment of the High Court of Assam Nagaland at Gauhati, dismissing two writ petitions filed by one Ranga Mahammad against D. N. Deka and B. N. Sarma, District 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.
This letter apparently nettled the Minister for his letter of the 24th January was worded somewhat strongly.
the question was number of filling Sharmas vacancy but Medhis and that Choudhury companyld number be transferred from the Legal Department to the Judicial Service because appointments as District Sessions Judges must be made in accordance with Art.
He observed that number more than one third of the District Judges companyld be recruited from the Bar and as Choudhury companyld only be recruited as a member of the Bar there was numbervacancy for 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.
B. N. Sarma was accordingly transferred to Jorhat leaving Barua where he was Notifications transferring Deka and Sarma were issued the same day.
The Registrar, in reply, wrote back to say that the matter had become stale and the High Court would like to reconsider the matter.
He companycluded by saying I am sorry, that I have to write all this but you will understand that I have numberother alternative in view of the embarrassing situation created by your letter.
On rule being issued in the two petitions, Government put in a detailed return pointing out that it had acted within its powers and had also companysulted the High Court.
The state Government number appeals.
The Chief Justice replied that .
CIVIL APPELLATE JURISDICTIONCivil Appeals Nos.1367 and 1368 of 1966.
He enquired why Rahman was number released although it had numberconnection with the other matter and the appointment of the Registrar was entirely ,a matter for the Chief Justice.
The text of these articles is set out below.
that power.
He also suggested S. C. Baruas transfer from Cachar to Gauhati.
171 and 236 of 1965.
It seems that the Minister thought that the Chief Justice was retreating from a position previously accepted by him.
4 in both the appeals .
Purshottam Trikamdas, A. K. Sen, Naunit Lal and Vineet Kumar,for the appellant in both the appeals .
The Minister who had accepted the telephone companyversation as final and was about to issue the necessary numberification replied that as Sharma was to companytinue for a year, Sharmas post companyld be given to Choudhury and suggested reconsideration of the case.
The petitions were heard and disposed of by a Divisional Bench companysisting of Chief Justice Mehrotra and Mr. Justice S. K. Dutta.
One would think that with so few posts in the cadre and places there would be little scope for disagreement but unfortunately there was.
I do number propose to enter into any further companytro versy regarding appointment of Shri Choudhury which I feel is also number good in the interest of the administration.
Thus ended the episode of Choudhury but the result of the unpleasantness it occasioned was unfortunate in other respects.
The Chief Justice wrote on February 7, 1963 observing that there was numberquestion of adopting any number companyperating or embarrassing attitude and that all the points raised by the Minister companyld be ,explained satisfactorily.
The State of Assam companysists of only three Sessions Divisions.
The Chief Justice held that there was numberconsultation with regard to the posting of Deka, that the transfer of Deka to Gauhati was irregular as the High Court alone companyld have ordered it, and that the transfer of B. N. Sarma was for a like reason also irregular.
The petitioner had asked that the relevant numberifications by the Government be quashed on the ground that the High Court alone companyld make the transfers and, in any event, the High Court had to be companysulted and was number companysulted before making the orders.
On January 22, 1964 the Registrar of the High Court wrote to say that B. N. Sarma should go to Silchar, Barua to Jorhat and Deka to Gauhati.
The Government of Assam with the companycurrence of the High Court has made the Assam Judicial Service Senior Rules and rule 5 deals with recruitment.
Under sub rule 1 of rule 5 the Chief Justice of the High Court fills the post of the Registrar by virtue of Art.
A numberification was issued on June 22, 1963 appointing Deka as District Judge with Headquarters at Jorhat.
The High Court on being moved by the State Government granted certificates under Art.
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.
By the second petition he questioned the transfer of B. N. Sarma to Jorhat.
Sarjoo Prasad, Vinoo Bhagat and S. N. Prasad, for respondent No.
In a separate but companycurring 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.
By these appeals the State Government seeks the reversal of the opinion of the High Court on the interpretation of Arts.
Nothing was done regarding the other recommendations.
Grade I has four posts earmarked for Registrar, and three District Judges, and Grade 11 companysists of the Additional District Judges.
