# STATE OF ASSAM & ANR v. S. N. SEN & ANR

- **Citation:** [1972] 2 S.C.R. 251
- **Court:** Supreme Court of India
- **Decided:** 1971-11-03
- **Case number:** Civil Appeal No. 1061 of 1967
- **Bench:** S. M. Sikri, J. M. Shelat, I. D. DuA, S. C. Roy, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-anr-v-s-n-sen-anr-5641
- **Pages:** 6

## Headnote

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Constitution of India, 1950, Art. 235-Assam Judicial Service (Junior)
Rules, 1964, r. 5(iv)-Power to confirm the post of sub-judge vested ino
the High Court-Validity of Rule.
Respondent no. 1, a member of tbe Assam Judicial Service, was confirmed '1.Y tbe· High Court of Assam and Nagaland in Judicial Service
(Junior) Grade I against the post of sub-Judge. The Accountant Gencrat
of Nagaland took objection to this order of confirmation on tbe ground
tbat undtr r. 5 (iv) of the Assam Judicial Service (Junior) Rules, 1954
tbe confirmation could only be made by the Governor and not by tbe
High Court, Rule 5(iv) inter alia, provides tbat "when a person is appointed
to a permanent post, he will be confirmed after the period of probation.-
in tbe case of Qeputy Registrar and Assistant Registrar-by the High Cou;t
and in other cases, it will be made by the Governor in consultation witb
the High Court". The Accountant General refused to accept the confirmation made by the High Court and the respondent was informed accordingly,
Thereupon, the respondent filed a writ petition. The Hieb
Court allowed the petition.
Dismissing the appeal,
HELD: (!) Under Art. 235 of tbe Constitution, tbe power of promotion of persons holding posts inferior to tbat of the District Judge
being in the High Court, tbe power to confirm such promotions is also
in the High Court. [245 HJ
(2) In so far as r. 5(iv) of the Assam Judicial Service (Junior) Rl''~.
1954, is in conflict with Art. 235 of the Constitution, it must be held tO"
be invalid. [255 G-H]
State of West Bengal v. Niripendra Nath Bagchi [1966] I S.C.R. 7H
and State of Assam v. Ranga Mahammad, [1967] I C.S.R. 545, referred to.
CML APPELLATE JURISDICTIOi.i :
Civil Appeal No. 1061
of 1967.
Appeal by Special leave from the Judgment and Order dated
September 12, 1966 of the Assam and Nagaland High Court in
Civil Rule No. 381 of 1965.
A. K. Sen, Naunit Lal and S. N. Choudhury, for the a~-
lants.
·
ff
A. V. Rangam, for the Advocate-General for the State of
Tam\l Nadu.
.
W. C. Chopra, for the Registrar, Madras High Court.
3-LSOtSuP.Cl4/72
252
SUPREME COURT REPORTS
[1972] 2 S.C.R.
P. K. Clwtterjee and G. S. Chatterjee,
for the AdvocateGeneral for the State of West Bengal.
0. P. Rana, for the AdvocMe-General for the State of U.P.
J. D. Jain and A. R. Bar Thakur, for tb~ Advocate-General
for the State of Nagaland.
Porus A. Mehta. and B. R. Aganva/a, for the Registrar, Bombay High Couri, Appellate Side.
L. M. Singhvi and U. P. Sillgh. for the State of Bihar.
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Lal Narain· Sinha, Advocate-General for the State of Bihm-,
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D. P. Singh S. C. Aganvala, R. K. Garg and V. J. Francis, for the
the Registrar, Patna High Couvt.
The Judgmept of the Court was delivered by
Roy, J.
This is an appeal by special leave against lhe judgment and order dated September 12, 1966, in Civil Rule No. 381
of 1965 of the High Court of Assam and Nagaland.
By this
judgment a Division Bench of the High Court allowed 1he petition
under Art. 226 of the Constitution filed by the respondent S. N.
Sen.
The facts shortly are as follows :
Respondent No. 1-S. N. Sen-was initially appointed as an
Extra Assistant Commissioner by the Governor of Assam on
December 21, 1950.
Thereafter he opted for Judicial Service and
was appointed Munsiff by the Governor of Assam with effect from
January 1, 1955. He was co.nfirmed in the post of Munsiff in
Assam Judicial Service (Junior) Grade II with effect from December 8, 1956.
On or about December 15, 1961, respondent No. 1 was promoted to act as the Additional Sub-Judge, Cachar, and he took
charge on December 22, 1961. The High Court of Assam and
Nagaland confirmed the appointm~nt of respondent No. 1 in the
Judicial Service (Junior) Grade I with effect from March 1, 1964
against the post of Sub-Judge No. 2, Gauhati. This post of SubJudge No. 2. Gauhati, was temporary, but had been made permanent on December 31, 1963. This confirmation was published in
the Assam Gazette dated May 1, 1964.
The 'Accountant G

## Text

A
STATE OF ASSAM & ANR.
v.
S. N. SEN & ANR.
November 3, 1971
251
B
[S. M. SIKRI, C.J., J. M. SHELAT, I. D. DuA, S. C. Roy AND
G. K. MITTER, JJ.]
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Constitution of India, 1950, Art. 235-Assam Judicial Service (Junior)
Rules, 1964, r. 5(iv)-Power to confirm the post of sub-judge vested ino
the High Court-Validity of Rule.
Respondent no. 1, a member of tbe Assam Judicial Service, was confirmed '1.Y tbe· High Court of Assam and Nagaland in Judicial Service
(Junior) Grade I against the post of sub-Judge. The Accountant Gencrat
of Nagaland took objection to this order of confirmation on tbe ground
tbat undtr r. 5 (iv) of the Assam Judicial Service (Junior) Rules, 1954
tbe confirmation could only be made by the Governor and not by tbe
High Court, Rule 5(iv) inter alia, provides tbat "when a person is appointed
to a permanent post, he will be confirmed after the period of probation.-
in tbe case of Qeputy Registrar and Assistant Registrar-by the High Cou;t
and in other cases, it will be made by the Governor in consultation witb
the High Court". The Accountant General refused to accept the confirmation made by the High Court and the respondent was informed accordingly,
Thereupon, the respondent filed a writ petition. The Hieb
Court allowed the petition.
Dismissing the appeal,
HELD: (!) Under Art. 235 of tbe Constitution, tbe power of promotion of persons holding posts inferior to tbat of the District Judge
being in the High Court, tbe power to confirm such promotions is also
in the High Court. [245 HJ
(2) In so far as r. 5(iv) of the Assam Judicial Service (Junior) Rl''~.
1954, is in conflict with Art. 235 of the Constitution, it must be held tO"
be invalid. [255 G-H]
State of West Bengal v. Niripendra Nath Bagchi [1966] I S.C.R. 7H
and State of Assam v. Ranga Mahammad, [1967] I C.S.R. 545, referred to.
CML APPELLATE JURISDICTIOi.i :
Civil Appeal No. 1061
of 1967.
Appeal by Special leave from the Judgment and Order dated
September 12, 1966 of the Assam and Nagaland High Court in
Civil Rule No. 381 of 1965.
A. K. Sen, Naunit Lal and S. N. Choudhury, for the a~-
lants.
·
ff
A. V. Rangam, for the Advocate-General for the State of
Tam\l Nadu.
.
W. C. Chopra, for the Registrar, Madras High Court.
3-LSOtSuP.Cl4/72
252
SUPREME COURT REPORTS
[1972] 2 S.C.R.
P. K. Clwtterjee and G. S. Chatterjee,
for the AdvocateGeneral for the State of West Bengal.
0. P. Rana, for the AdvocMe-General for the State of U.P.
J. D. Jain and A. R. Bar Thakur, for tb~ Advocate-General
for the State of Nagaland.
Porus A. Mehta. and B. R. Aganva/a, for the Registrar, Bombay High Couri, Appellate Side.
L. M. Singhvi and U. P. Sillgh. for the State of Bihar.
n
Lal Narain· Sinha, Advocate-General for the State of Bihm-,
c
D. P. Singh S. C. Aganvala, R. K. Garg and V. J. Francis, for the
the Registrar, Patna High Couvt.
The Judgmept of the Court was delivered by
Roy, J.
This is an appeal by special leave against lhe judgment and order dated September 12, 1966, in Civil Rule No. 381
of 1965 of the High Court of Assam and Nagaland.
By this
judgment a Division Bench of the High Court allowed 1he petition
under Art. 226 of the Constitution filed by the respondent S. N.
Sen.
The facts shortly are as follows :
Respondent No. 1-S. N. Sen-was initially appointed as an
Extra Assistant Commissioner by the Governor of Assam on
December 21, 1950.
Thereafter he opted for Judicial Service and
was appointed Munsiff by the Governor of Assam with effect from
January 1, 1955. He was co.nfirmed in the post of Munsiff in
Assam Judicial Service (Junior) Grade II with effect from December 8, 1956.
On or about December 15, 1961, respondent No. 1 was promoted to act as the Additional Sub-Judge, Cachar, and he took
charge on December 22, 1961. The High Court of Assam and
Nagaland confirmed the appointm~nt of respondent No. 1 in the
Judicial Service (Junior) Grade I with effect from March 1, 1964
against the post of Sub-Judge No. 2, Gauhati. This post of SubJudge No. 2. Gauhati, was temporary, but had been made permanent on December 31, 1963. This confirmation was published in
the Assam Gazette dated May 1, 1964.
The 'Accountant General of Assam anC. Nagaland took objection to this order of confirmation. It was alleged that such confir-
'roation was in violation of r. S(iv) of the Assam Judicial Service
(Junior) Rules, 1954. It was alleged that the confim1ation could
"only be :made by the Governor, and not by the 1ligh Court.
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ASSAM v. s. N. SEN (Ro,v, J.)
253
It appears that some correspondence went on between the High
Court and the Accountant General.
By letter dated December 21,
1964, the Registrar of the High Court informed the Accountant
General that the Government had been moved to amend r. 5 (iv)
of the Assam Judicial Service (Junior) Rules, 1954. By a letter
dated May 1, 1965, the State Government informed the High
Court regretting its inability to take up the question of the amendment of r. 5(iv) "at this stage".
On June 15, 1965, the Accountant General informed the High
Court that, as the Government had not amended the Rules, the
order of confirmation, communicated in the High Court's notification dated May 1, 1964, was not in order.
Thereupon the respondent No. 1 was informed by the High Court by its Jetter dated
July 20, 1965, that the Accountant General had refused to accept
his confirmation.
Respondent No. 1 thereupon filed a writ petition in the High
Court.
On September 12, 1966, the High Court allowed the petition.
There were two judgments-one by Mehrotra, C.J. and the
other by S. K. Dutta, J.
The High Court refused certificate, but,
on July 21, 1967, this Court granted special leave to appeal.
Our Constitution makes specific provisions for appointme.nt of
district judges and for recruitment of the persons other than the
district Judges to the judicial service.
It also makes provision for
the control to be exercised over the subordinate courts. The three
articles are as follows :
Art. 233-" (1) Appointments of persons to be,
and the posting and promotion of, district judges in any
State shall be made by the Governor c.f the State in consultation with the High Court exercising jurisdictio,n in
relation to such State.
(2)
"
Art. 234-"Appointments of persons other than
district judges to the judicial service of a State shall be
made by the Governor of the State in accordance with
rules made by him in that behalf after consultation with
the State Public Service Commission and with the High
Court exercising jurisdiction in relation to such State."
Art. 235-"The control over district courts and
courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belong-
!ng t~ the judicial service of a State and holding any post
mfenor to the post of district judge shall be vested i,u the
High Court, but nothing in this article shall be construed
as taking away from any such person any right of appeal
254
SUPREME COURT REPORTS
[1972] 2 S.C.R.
which he may have under the law regulating .the conditiqns of his service or as authorising the High Court to
deal with him otherwise than in accordance with the
conditions of his service prescribed under such law."
As a!ready indicated the respondent Sen was appointed to act
as Additional Sub-Judge, Ca char, and he took charge on December 22, 1961. The High Court of Assam and Naga and confirmed
his appointment in the Judicial Service (Junior) Grade I, with
effect from March 1, 1964.
Rule 5 (iv), on the basis of which objection was raised by the
Accountant Ge.neral, is as follows :-
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"5. Appointment, probation and confirmationc
(iv) when a person is
appointed to a permane.nt
post, he will be confi med in his appointment at the end
of the period of probation or extended period of probation.
In case of the Deputy Registrar
and Assistant
Registrar of the High Court confirmation shall be made
by the High Court. In other cases it will be made by the
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Governor in consultation with the High Court."
Dealing with it, Mehrotra, C.J., observed as follows :
"It will be anomalous to hold that power of promotion and posting vests in the High Court while the power
of confirming ·an officer in the post vests in the Government. With regard to the scheme of the Constitution and
the Rules, it is clear that rule 5 (iv) applies to the persons who are appointed by direct recruitment to the post
of a Sub-Judge and not to the persons who have been
promoted. In my opinion, therefore, the power to confirm the Judicial officers who have been promoted vests
in the High Court."
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On the other hand, S. K. Dutta, J. was of the view :
"In this connection it is not necessary to examine
Rule 5 (iv) of the Assam Judicial Service
(Junior)
Rules,
1954, on which the State of Assam and the
Accountant General, Assam rely in their contention that
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a Subordinate Judge can be ccmfirmed in his post only
by the Government. If the rule is in conflict with any
co.istitutional provision, it will be void and must be
struck down."
Under the provisions of the Constitution itself the power of
promotion of perl!ons holding posts inferior to that of the district
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judge is in the High Court. It stands to reason that the power
tC' confirm such promotions should also be in the High Court.
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ASSAM V. S. N. SEN (Roy, J.)
255
This Court has on several occasions expressed its views on
Art. 235 of the Constitution.
In The State of West Bengal v.
Nripendra Nath Bagchi('), it was pointed out:
"In the case of the judicial service subordinate to the
district judge the appointment has to be made by the
Governor in accordance with the rules to be framed after
consultation with the State Public Service Commission
and the High Court but the power of posting, promotion
and grant of leave and the control of
the courts are
vested in the High Court."
A year later, in State of Assam v. Raff.ga Mahammed and
Ors. (2 ) this Court against observed as follows :
"The High Court is in the day to day control oi
courts and knows the capacity for work of individuals
and the requirements of a particular station or Court.
The High Court is bettet suited to make transfers than
a Minister.
For however well-meaning a Minister may
be he can neveJ possess the same intimate knowledge of
the working of the judiciary as a whole and of individual judges, as the High Court. He must depend on
his departmenvfor information. The Chief Justice and
his colleagues know these matters and deal with them
personally. There is less chance of being influenced by
secretaries who may withhold some vital. info·mation ii
they are interested themselves.
It is also well-known
that all itations 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 person seeking advantage for himself if the
Chief Justice and his colleagues, with personal information, deal with the matter, than when a Minister deals
with it on notes and information supplied b_v a secretary."
This observation was made in relation to a case of transfer, but it
applies with greater force to the case of promotion. The result is
that we hold that the power of promotion of person~ holding posts
inferior to that of the district judge being in the High Court, the
power to confirm such promotions is also in the High Court. We
also hold that insofar as r. 5(iv) is in conflict with Art. 235 of
the Constitution, it must be held to be invalid.
.
On the basis of the last part of Art. 235. ·an arnument was
purported to be advanced that the power of the High Court as to
(I) [196611 S.C.R. 771.
(2) [1967] I S.C.R. 454.
256
SUPREME COURT REPORTS
[ 1972] 2 S.C.R.
promotions was limited.
In view Of the plain wor_ds of the first
part of this article, this argument has no basis.
In this Court, no other point was made in support of this
appeaL
The appeal, therefore, fails and is dismissed, but in the circumstances of the case with no order as to costs.
s.c.
Appeal dismissed.
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