1966 (9) TMI 144 - SC - Indian Laws

Summary

Issues Involved:
1. Authority to order the transfer of a District Judge.
2. Mandatory nature of consultation under Articles 233 and 235 of the Constitution.
3. Expunction of remarks made by Mr. Justice Dutta.

Detailed Analysis:

1. Authority to Order the Transfer of a District Judge:
The central issue was whether the power to transfer District Judges lies with the State Government or the High Court. The court examined Articles 233 and 235 of the Constitution to resolve this matter. Article 233 deals with the appointment, posting, and promotion of District Judges, which is to be done by the Governor in consultation with the High Court. Article 235 vests the control over District Courts and subordinate courts, including the posting and promotion of judicial officers below the rank of District Judge, in the High Court. The court concluded that the term "posting" in Article 233 refers to the initial assignment of a District Judge to a position within the cadre, and not to subsequent transfers. Therefore, the power to transfer District Judges, once appointed or promoted, falls under the control vested in the High Court by Article 235.

2. Mandatory Nature of Consultation Under Articles 233 and 235:
The court addressed whether the consultation required by Articles 233 and 235 is mandatory or directory. It was established that consultation is indeed mandatory, as affirmed in the case of Chandra Mohan v. U.P. The court found that there was consultation regarding the promotion and posting of D. N. Deka as a District Judge, thereby satisfying the constitutional requirement. However, since the State Government is not the authority to order transfers, the question of consultation for transfers does not arise.

3. Expunction of Remarks Made by Mr. Justice Dutta:
The State Government sought the expunction of remarks made by Mr. Justice Dutta, which were critical of the Government's actions. The court recognized that while the remarks were harsh, they did not amount to impropriety warranting the extraordinary power of expunction. The court emphasized that the High Court's opinion in such matters is entitled to the highest regard, and the consultation process should not be rendered meaningless by dismissing the High Court's views out of hand.

Conclusion:
The appeals by the State Government were dismissed, affirming that the power to transfer District Judges lies with the High Court, consultation under Articles 233 and 235 is mandatory, and the remarks made by Mr. Justice Dutta did not warrant expunction. The judgment underscores the constitutional mandate for the High Court's control over judicial appointments and transfers, ensuring the independence and proper functioning of the judiciary. Appeals dismissed without costs.