Supreme Court Upholds High Court's Authority to Transfer District Judges Under Article 235, Rejecting State Government's Claim. Transfer of District Judges Not Covered by Governor's Appointment and Posting Powers Under Article 233 of Constitution of India.

Case Note & Summary

The litigation arose from writ petitions filed by Ranga Mahammad in the High Court of Assam and Nagaland at Gauhati under Articles 226 and 227 of the Constitution of India, challenging notifications issued by the State Government of Assam regarding the transfer of District and Sessions Judges. The petitioner sought quashing of the transfer of D. N. Deka from Jorhat to Gauhati and the appointment and posting of B. N. Sarma at Jorhat, contending that the High Court alone could order transfers of District Judges and that the High Court had not been consulted before the impugned orders were made. The High Court, by a Division Bench comprising Chief Justice Mehrotra and Justice S. K. Dutta, held that there was no consultation with regard to the posting of Deka, that both transfers were irregular as the High Court alone could have ordered them, but declined the writ of quo warranto on the ground that none of the District Judges could be said to occupy the office wrongly. The writ petitions were dismissed without costs, but Justice Dutta in a separate concurring judgment passed scathing remarks against the State Government, describing its action as mala fide and actuated by ulterior motive. The State Government obtained certificates under Article 132 of the Constitution to appeal to the Supreme Court on the ground that the judgment involved interpretation of Articles 233 and 235. The State of Assam, as appellant, contended before the Supreme Court that the High Court had in fact been consulted and, alternatively, that the power to transfer District Judges lay with the State Government and not the High Court. The appellant also sought expunction of the remarks made by Justice Dutta. The respondent Ranga Mahammad supported the High Court's reasoning that the High Court alone could make transfers and that consultation under Article 233 was mandatory. The Supreme Court examined the provisions of the Constitution and held that under Article 233 the Governor is only concerned with appointment, promotion and posting to the cadre of District Judges, not with transfer of District Judges already appointed or promoted and posted to the cadre. The word 'posting' in Article 233 was interpreted to mean the assignment of an appointee or promotee to a position in the cadre, taking colour from the associated words 'appointment' and 'promotion', and did not include transfer, which operates at a stage beyond appointment and promotion. Transfer of District Judges therefore fell within the control vested in the High Court under Article 235. The Court further held that consultation with the High Court under Article 233 was mandatory, and in the present case such consultation was necessary before one of the District Judges was promoted and posted. On the question of expunction of remarks, the Supreme Court observed that the power to expunge is an extraordinary power exercised only when a clear case is made out, and although the Court might think the remarks need not have been made, no such impropriety was established as to warrant expunction. Accordingly, the Supreme Court affirmed the High Court's interpretation of Articles 233 and 235, holding that the State Government could not order transfers of District Judges and that the power to transfer lay with the High Court. The appeals were disposed of consistently with these findings, and the request for expunction of remarks was not granted.

Headnote

Issue of Consideration

Final Decision

The Supreme Court held that under Article 233 of the Constitution the Governor is concerned only with appointment, promotion and posting to the cadre of District Judges, not with transfer of District Judges already appointed or promoted and posted. The word 'posting' in Article 233 does not include transfer; transfer falls within the control vested in the High Court under Article 235. Consultation with High Court under Article 233 is mandatory before appointment, promotion or posting. The power to expunge remarks is extraordinary and was not exercised. The appeals were disposed of accordingly, affirming the High Court's interpretation and declining to expunge the remarks.

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