STATE OF ASSAM & ANR. versus S. N. SEN & ANR.

Citation: [1972] 2 S.C.R. 251 · Decided: 03-11-1971 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Dismissed
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Judgment (excerpt)

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.] 
c 
D 
E 
F 
G 
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 con-
firmed '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 con-
firmation made by the High Court and the respondent was informed ac-
cordingly, 
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 pro-
motion 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 Advocate-
General 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, Bom-
bay 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 judg-
ment 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 Decem-
ber 8, 1956. 
On or about December 15, 1961, respondent No. 1 was pro-
moted 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 Sub-
Judge No. 2. Gauhati, was temporary, but had been made perma-
nent on December 31, 1963. This confirmation was published in 
the Assam Gazette dated May 1, 1964. 
The 'Accountant General of Assam anC. Nagaland took objec-
tion 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
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