THE STATE OF ORISSA v. SUDHANSU SEKHAR MISRA ANO ORS.
Citation: [1968] 2 S.C.R. 154; 1967 INSC 252
Court: Supreme Court of India
Bench: K.N. WANCHOO , R.S. BACHAWAT, V. RAMASWAMI, G.K. MITTER, K.S. HEGDE
Judgment date:
Case summary
1967 INSC 252. Supreme Court of India judgment dated 1967-11-07. THE STATE OF ORISSA v. SUDHANSU SEKHAR MISRA ANO ORS. Read the judgment and case details on...
Judgment text
SUPREME COURT REPORTS (1968) 2 S. C. R. THE STA TE OF ORIS. 'tA \', SUDHANSU SEKHAR MISRA ANO ORS. N01·ember 7. 1967 R fK N. \VANCH lrath·e posts-in 1/ieir place posting judicial o/fic t of the service a' well as the officers. so that the officers did not ·hecomc out of touch with judicial work. Although this policy Jc.. >eision v. ·as accepted by th. c State (Jo'•crnmcnl, it was not implemented in respect of P. B and D. The Hi~ (-Ourt being under the impression at th-! time that in law the Governor Yva. c; the sole authority to effect the nC"CCSsarr tran~fers. (>Sis to which they were :. ssigned, but the Govcrpment refused to ;1cccpt them. The State Government directed P, B and D to continue in the posts they. v. ·erc previously holding and those officers acted in ;1ccorJancc wilh the orders of the Government. Consequ-~ntly. some of rhc Sessions J)ivisions in the State were \\1ithout District and Sessions Jud).! ~ for sc\.
·cral Jays a1;1d som·: Advocates pracHsing in those Divisions filetl pctilions before the High Court for :i writ of 1na11dan1us a2ain. ~t the Go"crnmcnt. as well as the concerned officers to impte~t the transfers ordered hv the High observations made in it. [I 62E-Fl Quinn V. LCatf1t•111, £19011 A. C. 495; referred to. CIVIL APPELLATE JURismcnoN : Civil Appeals No. 625- 630 of 1967. Appeals by special leave from the judgment and order dated March 6,. 1967 of the Orissa High Court in 0. J. C. Nos. 495 and 496 of 1966, and 3, 4, 27 and 28 ol 1967 respectively.. C. K. Daphtary, Attorney-GenertJl, . N. S. Bindra. G. Rmh and R. N. Sachthey, for the appellant (in all the appeals) Sarjoo Prasad and S. N. Prasad, for respondents Nos. 8, 23, 8 and 5 (in C. As. Nos. 625, 627, 629 and630of1967 respectively). N. M. Patnaik and Vinoo Bhagat, for respondents N6s. 5 lo 7 (in, C. As. Nos. 625 and 629 of 1967) and respondents Nos. 20 to 22 (in C. A. No. 627 of 1967).
The Judgment of the Court was delivered by ~. J. These cases are the outCO! lle of an unfortunate confhct between the High Court and the government of Orissa. . The Orissa S~! 'C'. rior Judicial Service (senior branch) is a com· bined cadre con~1Stmg of officers holding purely judicial post~ as well as posts which are essenually administrative in cbaracter. It consists f ei~t district and sessiorui judges, two additional district • and ~JOns 1udges, secretary to government in law department. supenntendent and k:gal remembrancer, law department, deputy secretary to government in the law department, member adminis-trat! ve tribunal and the Registrar of the Orissa High Court, in all 15 ·ID number. All these officers are the members of the Orissa ~Judicial Service" within the meaning of that expression in art. 236 ( b) of the Constitution. Out of these, the district and sessions judg~ and additional district and sessions J! idges were discharging purely judicial functions. In view of art.
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 socretaries to the government is that of the Governor. Uuder 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 Stale of Assam 'V. Ranga 1 Mahammad and others( ). Obviously when the Governor pro· mulgated the Orissa Superior Judicial Service Rules 1963, be pro-ceeded on the basis that the power to transfer the district judges and add!. di. strict judges, from one post to another whether as judge or to one of the posts in the secretariat was in his hands.
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 judi· cial officer occupying one of the administrative posts enumerated above, should not, in the interest of judicial work, continue in that post for an unduly Jong time. The High Court insisted that ordina-rily 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 add!. 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 a~ount, there appears to have been some friotion between the High Court and the gov· ·ernment. for some years J"ast. ---- (! ) (1967) I S. (;. R. 4S4. ORISSA V. SUDHANSU SEKHAR (Hegde· /. ) 157 Shri B. K. Patro one of the dis.
trict and sessions judges, was. posted as silperintendentand legal remembrancer in March 1962. Shri K. K. Bose, addl. district and sessions judge, was posted a ra and Shri P. K. Mohanti handed over charge of the po~ts they were ·holding and reported themselves at the secretariat for assuming charge of the post~ to which they were posted. But the government refused to accept them. Further it directed Shri Patro, Shri Bose and Shri Dey to continue in the posts they were holding. Those officers acted in accordance with the orders of the government. Consequently, the sessions divisions of Ganjanl-Boudh, Mayurbhan}-Keonjhar and Bolangir-Kalahandi were without district and sessions judges for s. :veral days.
It is at this stage the petitions which have given rise to those appeals were filed by some of the advocates practL~ing in one or the other of the =sions divisions mentioned above, praying for a writ of 111a11- Aam11s against the government as well as the concerned officers to implement . the transfers ordered by the High Court on October 10. 1966 and also a writ of quo warranto against Shri B. K. Patro, Shri K. K. Bose and Shri P. C. Dey requiring them to show cause under what authority they were holding the posts of the law secretary the superintendent and legal remembrancer and member sales iax tribunal, respectively. In every one of those petitions, rule 11isi was i~ued. The government as well as the concerned officers in the returns made by them justified the action taken by the government. On March 6, 1967 a special Bench of the High Court hy majority allowed those petitions and made the rule absolute.
The Higl;i Court overruled the pray"r made on behalf of the government to stay the operation of its decision till necessary orders wcr~ f that judgment, this Court observed (at pagz 459 of the report) : "The question we have posed resolves itself into a question of a very different but somewhat limited form, ------ ·--. -- -ti) lt966! t S. C. R. 771. (~) 119671 t S. C. R. 454. • ORISSA v. SUDHANSU SEKHAR (Hegde, J. ) 161 namely, whether the power to transfer District Judges is . included in the 'control' exercisabh by the High Court over District Courts under Art. 235, or in the power of 'appointment of persons to be and the po;ting and promotion, of district judges' which is to be exercised by the Governor under Art. 233, a/beir in consultation with the High Court. If the sense of the mat·er be the former, then the High Court and if the latter, the Governor, would posseis that power.
The right approach is, therefore, to enquire what is meant by 'posting' and whether the terin does not mean the ini:ial posting of a District Judge on appointment or promotion to a vacancy in the cadre, permanent or tempo-rary. If this be the meaning, as the High Court holds, then the transfer of District Judges already appointed or promoted and posted in the cadre must necessarily be outside the power of the Governor and fall to be made by the High Court as part of the control vested in it by Art. 235. " After analysing Arts. 233 and 235 and noticing the development of the law on the subject th:s Court held that under Art. 233, the Governor is only c011-cemed with the appointment, promotion and posting to the cadr::: of district judges but not with the transfer of district judges already appointed or promoted and posted to the cadre which power is vested in the High Court under Art.
235 as the control given to the High Court over the illstrict courts under that Article includes control over the officers who preside over those courts. r: Proceeding further this Court observed : "This is, of course, as it should be, the High Court is in the day to day control of courts and knows the capacity for work of individuals and the requirements of a particular station or Court. The High Court is better suited to make transfers than a Minister. For however well-meaning a Minister may be he can never possess the same intimate knowledge of the working of the judiciary. as a whole and of individual Judges, as the High Court. He must d. epend on his department for information. The Chief Justice and his colleagues know thei. e matters and deal with them personally. Th~re is less chance of being influenced by secretaries who may withhold some vital information if they are inter-ested themselves.
I,t is also well known that all stations are not similar in climate and education, medical and other facilities. Some are good stations and some are not so good. There is less chance of success for a perso'n seeking advantage for himself if the Chief Justice. and his colleagues, with personal infonnation, deal with the matter, than when a Minister deals with it on notes and infonnation supplied by a secretary. The reason of the rule and the sense of the matter combine. to s~w. st the narrow meaning accepted by us. The pohcy displayed by the Constitution has been in this direction as has been explained in earlier cases of this Court. " Obviously relying on the observation of this Court that after a judicial officer is posted to the cadre, it is for the High Court to effect his transfers, the court below has come 10 the conclusion that as the posts of the law secretary, deputy law secretary and superintendent and legal remembrancer are included in the cadre.
the High Court has the power to fill those posts by transfer of judicla:I officers. The cadre this Court was considering in Ra11ga Mahammad'. r,(1) case, namely, Assam Superior Judicial Scrviecs Cadre consisted of the Registrar of the Assam High Court and lhree district judges in the first grade and some ~dditional dbtrict judges io grade I I. In that cadre, no officer holding any post under the government was included. Hence the reference by this Court to the cadre is a reference to a cadr. ~ consisting . -,.. scntially <>f offieers under the direct control of the High Court. It was in that context this Court spoke of thr cadre. The question of law considered in that decision was as regards the scope of the expression ··control over district court"' in Art. 235. The rder· cnca to the cadre was merely incidental. A decision is only an authority for what it actually decides.
What is of the essence in " decision is its ratio and not every observation found th,~rein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury L. C. said in Quinn v. l. et1them ( ') : '"Now before discussing the case of Allen v. Flood 11898] A. C. I and what wa~ decided tht:rein, . there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before. that every judgm. ~nt must be read as applicable to the particular facts proved, or assumed to be prov gtcal at all. " It is not a profitable task to extract a sentence here and there from a judgment and to build upon it. Neither Bagchi"s case nor Ranga Mahammad' s case is of any assistance to us in deciding the question whether the High C()urt bas competence to fill ·some Of the posts in the secretariat by transfer judicial officers under its contrQI.
Just ·:is the exeeμtive cannot know the requirements of a particular court, the High Coort also cannot know the requirements of any post in the secretariat. J us. t as the High Court resents any ·interference by the executive in the functioning of the judiciary; the executive has a right to ask the High Coμrt not to interfe~ with its functions. It is for the executive to say whether ·a particular officer would meet its requirements or not. The High Court cannot, as contended· by the learned Attorney- General, foist any officer on the government. 'D The cadre with which we are Concerned in this case consists 6f three pans i. e. , (1) presiding officers ofdistrict courts, <2) 1he Registrar of the High Court and ( 3) the judicial . officers working in the secretartat. No doubt all these officers belorig to the judicial service of the State and they . were before 1962 pie- . siding over district courts or courts subordinate to them and as si. ch were under the cohtrol of the High Court.
Hence Without the consent of the f! :igh Court the government could hot have posted them to administrative posts in 1962. It must . be presumed that they were taken over by the government with the consent of the High Coui:t. While sparing the service of any judicial officer to tbe government it is open to the High Court to fix the period during which he may hold any . executive post. At the. end of that period, the government is bound to allow him to go back to his parent department unless the High Court agrees to ·sp. are )lis services for some more time. In other wordS, the period during which a judicial officer should serve in an executive post must 'he settled by agreement between the High Court ana the govern- ·ment. If there is no such agreement it is open to· the government to send him ·back t6 his parent department at any time it please5. It is equally open to the High Court to recall him when. -ever . it thinks fit.
If only there is mutual understanding and appreciation of the difficulties of the one by the other, there will be harmony. There is no reason why there should be. any conflict between the High Court and· the govermnent. Except for very good . reasons we think the High Court should always he willing to spare for an agreed period the services of any of the officers under its. control. fo~ filling up such executive posts as may require the scrv;ces of 1ud1c1al officers. The government, in its tum should appreciate the anxiety of the High Court that judicial officers should not be allowed to acquire vested inter~st in the secretariat. Bo'. h the High Court and the government should not forget the fact that powers are conferred on them for the good of the public and they should act in such a way as to advance public interest. If they act with that purpose in view as they should. then ther'e is no room for conflict and no question of one domi-nating the other arises.
Each of the organs of the State has a special role of its own. But our Constitution expects all of them to work in harmony in a spirit of service. As Shri K. K. Bose and Shri B. K. Patro bad not been placed at the disposal of the government for any definite ~criod. it was open to the High Court to recall them and post them as presiding officers of district courts. · Hence, the High Court was within its powe1 s in posting Sbri B. K. Patro as district and sessions judge of Ganjam-Boudh division, Shri K. K. Bose as· district and sessions judge of Mayurbhanj-Keonjhar division, and Shri P. C. Dey as district and ~cssions judge of Bolangir-Kala-handi division though it would have been graceful if it had effected those transfers after reasonable notice to the government. But it was beyond the powers of the High Court to post Shri K. B. Panda as the law secretary, Shri T. Misra as sur~rintcn dent and legal remembrancer and Shri P. K. Mohanti as the deputy law secretary.
That part of the High Court's order is clearly unsustainable. But as mentioned earlier, the government has already implemented that part or the order as well. Those officers are now functioning in the poses to which they were transferred. The learned Attorney-General told us that the government has no objection to those officers continuing in tho~~ posts for the present. We are sure if any change is required the same will be effected by mutual understanding between the High Court and the government. In the r. ~sult these appeals are partly allowed and the order of the High Court holding that Shri B. K. Patro, Shri K. K. Bose and Shri P. C. Dey had no authority to hold the posts they were holding on or after October 10, 1966 is set aside. Though we hold that the orders of the High Court posting Shri B. K. Panda as law secretary, Shri T. Misra as superintendent and legal remembrancer and Shri P. K.
Mohanti as deputy law secretary were in excess of its powers, we do not set aside the mandamus issued hy it for the reasons mentioned earlier. In other respects the judgment appealed against is upheld. The parties will bear their own costs in these appeals. R. K. P. S. Appeals a/lowed in part.
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