STATE OF ASSAM versus RANGA MAHAMMAD AND ORS.

Citation: [1967] 1 S.C.R. 454 · Decided: 21-09-1966 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Dismissed
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Judgment (excerpt)

STATE OF ASSAM 
v. 
RANGA MAHAMMAD AND ORS. 
September 21, 1966 
[K. SUBBA RAo, C. J., M. HIDAYATIJLLAH, S. M. SIKRI, 
J.M. SHELAT AND G. K. MITTER JJ.] 
CoMtllurion o/ India, Am, 233 and 235-'Postin/( of DI.strict Judgu 
under Ari. 233-Whether includes transfers or only first appointment to 
cadre or on promotion-Whether conndtatlon wider Art. 233 with High 
Court mandatory-Whether 'trans/et can only be ordered by High Court 
wider Art. 235-Courr'• power to expunge remaru from a /ud1ment-Whe11 
exercised. 
The respondent, filed petitions under Arts. 226 and 227 in the Assam 
High Coun asking tha.t notifications by the 51,•.e Government of the trans-
fer of one District & Sessions Judge and the appointment and posting of 
another be quashed on the ground that the High Coun alone could make 
the transfers and, in any e'-eot, the High Court was to be consulted and 
was not consulted before the impugned orders were made. The Hi~h Court 
held that there was no consultation with regard to the posting of one of 
the District Judges and that bis transfer wu irregwar as the High Court 
alone could have ordered it; and furthermore that the transfer of the 
other District Judge was for a like reason also irregular. Holding, how-
ever, that none of the District Judges could be said to occupy wrongly 
the office of District & Sessions judge, the High Court declined the writ 
of quo warranJo and dismissed the petition, but without costs to the State 
Government. One of the learned Judges of the High Court who compriJed 
the Division Bench that heard the petitions, in a separate but concurring 
judgment, passed some scathing remarks on the action of the Government 
which he described as ma/a fide and actuated by some ulterior motive. 
On being moved by the State Government, the High Court granted 
cenificates under Art. 132 of the Constitution to appeal to the Supreme 
Court on the ground that the judgment involved the 
interpretation 
of 
Arts. 233 and 235 of the Constitution. 
By these appeals the State Gov-
ernment sought a reversal of the opinion of the High Court on the two. 
Articles. 
Three questions arose for decision in the appeal:- (a) who Is to order 
transfer of a District Judge-the State Government or the High Coun; 
(b) is the provision regarding consultation in 
Art. 
233 mandatory or 
directory and if the former, whether the High Court was not in fact con-
sulted; and (c) wehther the remarks complained of about the State Govern-
ment made by the learned Judge should be expunged. 
HELD: (i) Under Art. 233 the Governor is oaly concerned with the 
appointment, promotion and posting to the cadre of district Judges but 
not with the transfer of District Judges already appointed or promoted 
and posted to the cadre. 
The latter is a mattor of control of District 
Judges which is vested in the High Court under Art. 235. [460 GJ 
The word pos'ing means either to station some one at a place or 
to assign someone to a post, /.~. a position or a job, especially one to which 
a penon ls appointed. Jn Art. 233 it bean the second meaning. The word 
occurs 
in 
associ3tion with 
the 
words 
'appointment' 
and 
'promo-
tion' and takes its colour from them. These words indicate the stage when 
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G 
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A 
B 
c 
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11 
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H 
ASSAM v. R. MAHAMMAD (Hidayatul/ah, J.) 
455 
a person first gets a position or job and 'posting' by association means the 
assignment of an appointee or ,Promotee to a position in ~e cadre of Dis-
trict Judges. 
The word 'postm11' cannot be understood m the sense of 
'transfer' when the idea of appomtment and pr9motion is invoh-ed in the 
combination. This meaning is quite out of place because 'transfer' operates 
at a stage beyond appointment and promotion. Transfer, thereforo, fallll 
within the control vested in the High Court. 
[460 C-0) 
State o/ West Bengal v. Nripendranath Bagchl, [1966) I S.C.R. 771, 
referred to. 
(ii) As the High Court acting under Art. 235 and ·not the State Gov-
ernment is the authority to make transfers, no question can arise o~ a 
consultation on this account. In the present case, however, consultat1on 
as required by Art. 233, was necessary before one of the District Judges 
was promoted and posted as a District .Judge. 
Chandra Mohan v. U.P:"[1967] ~ S.C.R. 77, referred to. 
(iii) The power to expunge is an extraordinary power and can be m:er-
cised only when a clear case is made out. Although the opinion of this 
Court may be that the learned Judge need
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