STATE OF ASSAM Vs. KUSESWAR SAIKIA

JUDGEMENT

(1.) THE Judgment of the court was delivered by -

(2.) THIS is an appeal by certificate under Article 132 of the Constitution against the judgment and order of the High court of Assam, February 5, 1968. It was filed by the State of Assam and the Legal secretary to the Goverment of Assam and challenges a writ of quo warranto issued against Upendra Nath Rajkhowa, District and Sessions Judge, Darrang at Tazpur declaring that he was not entitled to hold that office. It was issued at the instance of Respondents 1 to 3 in this appeal. These respondents on conviction by Upendra Nath Rajkhowa in a sessions trial, challenged their conviction inter alia on the ground that Shri Rajkhowa was not entitled to hold the post of District and Sessions Judge, Darrang. The High court held that the 'promotion' of Rajkhowa by the governor as Additional District Judge by notification No. LJJ 74/66/65 dated 19-6-67 purporting to act under Article 233 was void because he could only be promoted by the High court

(3.) CH. VI of Part VI of the Constitution deals with Subordinate courts. The history of this CH. and why judicial services came to be provided for separate from other services has been discussed in The State of West Bengal v. Nripendra Nath Bagchi. This service was provided for separately to make the office of a District Judge completely free of executive control. The CH. contains six articles (233 to 237). We are not concerned with Article 237 in the present case. Article 235 vests in the High court the control over District courts and courts subordinate thereto, including the posting and promotion and grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge. By reason of the definitions given in Article 236, the expression 'Judicial Service' means a service consisting exclusively of persons intended to fill the post of District Judge and other Civil Judicial posts inferior to the District Judge and the expression "District Judge" includes among others an additional District Judge and an additional Sessions Judge. The promotion of persons belonging to the judicial service but holding post inferior to a District Judge vests in the High court. As the expression District Judge includes an additional District Judge and an additional Sessions Judge, they rank above those persons whose promotion is vested in the High court under Article 235. Therefore, the promotion of persons to be additional District Judges or additional Sessions Judges is not vested in the High court. That is the function of the governor under Article 233. This follows from the language of the article itself :