THE STATE OF ORISSA versus SUDHANSU SEKHAR MISRA ANO ORS.

Citation: [1968] 2 S.C.R. 154 · Decided: 07-11-1967 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Case Partly allowed

Cited by 11 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

THE ST A TE OF ORIS.'tA 
\', 
SUDHANSU SEKHAR MISRA ANO ORS. 
N01·ember 7. 1967 
fK N. \VANCH<Xl, C.J .. R. S. RACllAWAT, V. RAMASWAMI, 
G. K. MITTER A:"D K. S. HEGD.E, JJ.) 
CunHitutio11 of India Art.f. 233. 235-High Court recalling District 
c11ul Sessio11f Jruli;c.~· l1'orki11;: in ad11rl11i:>lrath·e posts-in 1/ieir place posting 
judicial o/fic<-r\· to ac/H1inistratii·e po.\l.\ in the Secretariaf--if colnpetent. 
The Oriss:1 Superior Judicial Scrvic·~-- consisted o[ 15 posts, 
10 
of 
\11hich "·ere District anJ Seo;..c;ions Judges or Additional District and Ses-
sion .. Judges; of the orhcr five, one was Registrar of the High Coun and 
four "·ere officers of th~ State Government. 
P, one of the Districr and Sessions Judges "''<IS posted as Superinten-
di.:nt and LcJ,?al Remembrancer in 
f'vlarch 
1962. 
B. 
an Additional 
JtK1izc. y,·as posted as Joint Secretary in -the Law Department in tlrw same 
month and sometime thereafter was posted as Superintendent and Legal 
Remembrancer. 
D. a District and Sessions judge ~:as posted in January 
1~62 as member. Sales Tax: Tribunal, which was a non-cadre post. 
Jn 
Fcbruury 1965 the High Court took a policy decision to the effect that 
•1~ a general rule. judicial officers v.·orking in special posts, whether cad~ 
or non-cadre. outside their regular line. should be called to the regular 
line after the completion of three years in the intert..°!'>t of the service a' 
well as the officers. so that the officers did not ·hecomc out of touch with 
judicial work. 
Although this policy Jc..>eision v.·as accepted by th.c State 
(Jo'•crnmcnl, it was not implemented 
in respect of P. B and D. 
The 
Hi~ (-Ourt being under the impression at th-! time that in law the Governor 
Yva.c; the sole authority to effect the nC"CCSsarr tran~fers. <lid not take any 
action itself. 
Aftc.r the decision of this Court in 
Rant?a Molia111111ad·.~ casc([I967] 
I S.C.R. 454) holding th.11 the power Io Iransfcr Judges 
presidin~ ov-er 
Courts vesled wilh the High Court under Art. 
235 of the Constitution. 
1hc High Court. is.ued an order on October !O, 1966, 1ransferring P, B 
and D to judicial !)OSls and posting to the administrative post~ in their 
plucc, K, T and M who were doing judicial work Iill then. In pursuance 
of tho'C orders K. T and M handed ov;,r charge of the posts they were 
holding and reported to the Secretariat for assuming charge of the admi-
nistrativ·: !>(>Sis to which they were :.ssigned, but the Govcrpment refused 
to ;1cccpt them. 
The State Government directed P, B and D to continue 
in the posts they. v.·erc previously holding and those officers acted 
in 
;1ccorJancc wilh the orders of the Government. 
Consequ-~ntly. some of 
rhc Sessions J)ivisions in the State were \\1ithout District and Sessions 
Jud).!~ for sc\.·cral Jays a1;1d som·: Advocates pracHsing in those Divisions 
filetl pctilions before the High Court for :i writ of 1na11dan1us a2ain.~t the 
Go"crnmcnt. as well as the concerned officers to impte~t the transfers 
ordered hv the High <:Curt. 
'Ibey also sought a writ of quo 'M'arranto 
:tgainst p: B and D uucstioning the authorily under v.·hich they Vr·cre 
holding the administrative posts held by them until then. 
The Hi~h 
Court etllowcJ the petitions and directed the Governments to implement 
it~ orJerg forthv.·ith. 
The Government implemented these 
ordeB on 
March 6. 1%7 and thcrc-aftor appealed to tlris Courl. by special leave. 
R 
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A 
ORISSA V. SUDHANSU -SEKHAR (Heg4f., /.) 
15& 
HELD : (i) Altf)ough. the .High Couit was within its powers 
in 
po\ting P. B and D, the three officers holding administrative posts,. as 
District and Sessions Judges, it ,was .. beyo-nd its powers' to· post in their 
pl;.iccs three other officers to ~he ·administrative Posts 
Just ac; the executive cannot know the rc~uirements of a particular 
court. the High Court cannot also know the requirements of any post 
in the Secretariat. 
It is for the Executive to say whether a particular 
B 
olficei would meet its requirements or not. 
The High Court cannot foist 
an officer on the Government. 
[J63C-D] 
c 
D 
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While sparing the service of any judicial offiocr to the government 
it is open to the High Court to fix the period during which he may bold 
any executive post. 
At the end of that period, the government is bound· 
lo allow him to go back to his parent department 'unless the High Court 
agrees to spare his services for some more time. 
In other w

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