STATE OF ASSAM & ANR. versus KUSESWAR SAIKIA AND ORS.

Citation: [1970] 2 S.C.R. 928 · Decided: 17-10-1969 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Appeal(s) allowed
Cited by 4 judgment(s) · see the full citation network in Lexace
Open in Lexace · Ask the AI about this case
Judgment (excerpt)

928 
STATE OF ASSAM & ANR. 
v. 
KUSESWAR SAIKIA AND ORS. 
October 17, 1969 
(M. HIDAYATULLAH, C.J., J. M. SHELAT, C. A. VAIDIALINGAM, 
A. N. GROVER AND A. N. RAY, JJ.] 
Co11stitutio11 of India, Arts. 233, 235,-Promotion of a person in judi-
cial service as Additional District Judge--Compe::~t authority-Powtr 
exercisable under Art. 233 or Art. 235. 
A 
B 
Civil Courts Act Assam Amendment XI[ of 1961-Designation of Sub- ··c 
ordinate Judge altered to Assistallt District Judge thus taking away High 
Court's jurisdiction under Art. 235-RenJedy lies in rescinding the law. 
In exercise of the power conferred by Art. 233 of the Constitution and 
in consultation with the High Court the Governor of Assam "appointed" 
a person belonging to the State Judicial Service (Junior Grade I) to ofli· 
ciate as Additional District & Sessions Judge. 
In a petition for a writ of 
quo 1rarranto the High Court held the "appointment" void 
because in 
D 
th-.! vie\\! of the/High Court this \Vas a case of promotion of a person be-
longing to the Judicial Service of the s:ate and the High Court was the 
authcrity to make the promotion under Art. 235. 
Also, the Assam Legislature amended tho Civil Courts Act by Act Xll 
of 1967 by which the de;ignation of Subordinate Judge was altered to 
Assis:ant District Judge. The High Court was of opinion that by this de· 
vice which the High Court described as "a fraud upon the Constitution" 
E 
the power of promotion vested in the High Court under Art. 235 in respect 
of persons belonging to the Judicial Service of a State and holding po•ts 
inferior to the post of the District Judge, was taken away. 
Allowing the appeal, 
HELD : (i) The expression District Judge includes an additional Dis· 
trict. Judge and an additional Sessions Judge and they rank above those 
persons whose promotion is vested in the High Court under Art. 235. 
Therefore, the promotion of persons to be additional District Judges or 
Additional Sessions Judges is not ve;ted in the High Court. That is the 
function o'f the Governor under Art. 233. This follows from the language 
of the Article itself. The Article, if suitably expanded, reads : 
"Appointments of persons to be. and the posting and promotion of 
(persons to be.), District Judges etc." 
It means that appointment as well as promotion of persons to be District 
Judges is a matter for the Go,·ernor in consultation with the High Court. 
The Article concerns initial appointment and initial promotion of persons 
to be either District Judge) or any Of the categories included in it. FurM 
ther promotion of District Judges is a matter of control of the High C.Ourt. 
[932 E-G] 
F 
G 
(ii) The High Court is not right in thinking that it can ignore the 
H 
hierarchy of courts in Assam as established by law and treat the change as 
of no consequence. 
The change made by the Assam Amendment Act 
XII of 1967 is likely to lead to an impairment of the independence of the 
A 
B 
c 
D 
E 
F 
ASSAM v. KUSESWAR (Hidayatullah, C.l.) 
929 
judiciary at lowest levels whose promoti~n which was vested ~y th~ Cons-
titution in the High Court advisedly, will no Jrnger be ent.irely m the 
hands of- the High Court. But the remedy is not to go against the C1v1l 
Courts Act as amended, but to have the amendment rescinded. [934 B-Cl 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 358 of 
1969. 
Appeal from the judgment and order dated February 5, 1969 
of lhe Assam and Nagaland High Court in Civil Rule No. 222 of 
1968. 
M. C. Setalvad, Naunit Lal and S. N. Choudhury, for the 
appellants. 
Sarjoo Prasad, R. B. Datar and S. N. Prasad, for respondent 
No. 4. 
S. K. Nandy, for respondent No. 5. 
The Judgment of the Court was delivered by 
Hidayatullah, C.J.' This is an appeal by certificate under Art. 
132 of the Constitution against the judgment and order of the High 
Court of Assam, February 5, 1969. 
It is filed by the State of 
Assam and the Legal Secretary to the Government of Assam and 
challenges a writ of quo warranto issued against Upendra Nath 
Rajkhowa, Dist!. & Sessions Judge, Darrang at Tezpur 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, chal-
lenged 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
Excerpt shown. Read the full judgment & AI analysis in Lexace.