Chandra Mohan Vs. State of Uttar
Pradesh & Ors [1966] INSC 133 (8 August 1966)
08/08/1966
ACT:
Constitution of India 1950, Arts. 233 to
237--Scope of"Service of the Union or of the State"-If includes any
service or only Judicial Service.
Constitution of India, 1950, Arts. 132 and
133-Appeal filed against all respondents-Leave to appeal against some
respondents not granted by High Court, but certificate misleading--Grant of
special leave by Supreme Court.
HEADNOTE:
The procedure for recruiting district judges
in the State of U.P, was prescribed by the U.P. Higher Judicial Service Rules
made by the Governor under Art. 309 of the Constitution. Under the Rules, the
Governor decides on the number of candidates to be selected, Prescribes the
qualifications of the candidates, the High Court calls for applications, the
Selection Committee constituted under the Rules screens the applications, gives
interviews only to those persons who it thinks have the necessary
qualifications and selects from among them suitable persons for appointment,
and sends two lists to the High Court-a main and a supplementary list-the High
Court submits to the Governor the names of candidates considered suitable from
the lists, and thereafter, the Governor makes the appointments from the said
lists. In 1961-62, the Registrar of the Allahabad High Court called for
applications for recruitment to the cadre of the district judges from the
members of the Bar of more than 7 years' standing and from "judicial
officers" who were members of the executive department discharging some
revenue and magisterial duties.
The rules empowered the recruitment of
district judges from Such "judicial officers". The Selection
Committee selected 6 candidates 3 from the Bar and 3 from the "judicial
officers"-and sent their name.-, to the High Court. The Registrar of the
High Court sent a copy of the report of the Committee to the Government
mentioning that the High Court had approved the selection of the said
candidates. The appellant, a member of the U.P. Civil Services (Judicial
Branch) and others filed petition in the High Court for the issue of an
appropriate writ directing the Government not to make the appointments pursuant
to the Said selection. The petitions were dismissed. On the application for
leave to appeal to this Court, the High Court observed that the case of the
Advocates did not raise any substantial question of law as to the
interpretation of the Constitution or any question of public importance, but
that the case of the "Judicial Officers" raised such questions. The
High Court, however, issued a certificate in general terms that the case was a
lit one for appeal to the Supreme Court.
in appeal to this Court it was contended by
the "Advocate recruits" that in view of the order on the application
for leave, the appellant could not canvass the correctness of the judgment of
the High Court in so far as it related lo them; and the appellant contended
that : (i)While under Art.
233(1) of the Constitution the Governor has
to make the appointments in consultation with the High Court concerned.
under 78 the Rules he has to consult the
Selection Committee constituted there under, and therefore, the appointments
made in consultation with two authorities instead of one as provided by the
Constitution were illegal; that as a matter of fact, under the Rules, the High
Court was only a transmitting authority while the Selection Committee was made
the real consultative body; and (ii) the Governor had no power to appoint
district judges from the "judicial officers" as they were not members
of the judicial service.
HELD : (i) The case was a fit one for
granting special leave to the appellant to appeal to this Court even in so far
as it related to the '.advocate-recruits" after excusing the delay in
filing the appeal.
The appellant was misled by the certificate
issued by the High Court in general terms as it appeared to cover the entire
case. If he went wrong in not scrutinising the order granting leave closely,
the advocate respondents were equally negligent in not getting the certificate
amended.
[82 B] (ii) The Rules contravene the
constitutional mandates of Art. 233(1) and (2) and therefore the Rules as well
as the appointments made there under were illegal.
Under Art. 233(1) the Governor can appoint a
person to the post of a district judge from the services only in consultation
with the High Court. This mandate can be disobeyed by not consulting the High
Court; and also, by consulting the High Court and other persons, because, his
mind may be influenced by those other persons who are not entitled to advise
him. In the present case the Rules say that the Governor can appoint a district
judge in consultation with the Selection Committee subject to a kind of veto by
the High Court which may be accepted or ignored by the Governor. The High Court
is practically reduced to the position of a transmitting authority of the
lists. The only discretion left to it is to refuse to recommend all or some of
the persons in the lists, but it cannot scrutinise the other applications which
were screened by the Committee or recommend for appointment persons not found
in the lists.
In the case of the
"Advocate-recruits", the Governor can only appoint those recommended
by the High Court under Art. 233(2).But under the Rules, the High Court can
either endorse the recommendations of the Committee or merely create a
deadlock. [83 A-D; 85 F; 86 C] Even if it was open to the Governor to, make a
provision under Art. 309 for consultation with bodies other than the High
Court, he cannot avoid consultation with the High Court directly or indirectly,
and under the Rules, the consultation with the High Court is an empty formality
and travesty of the constitutional provision. The Governor in effect and
substance does neither consults the High Court nor acts on its recommendations
but only consults the Committee or acts on its recommendations. [86 D-F] (iii)
The Rules framed by the Governor empowering him to recruit district judges from
the "judicial officers" are also unconstitutional and, the recruitment
of the "Judicial officer respondents" was bad.
The Indian Constitution provides for an
independent judiciary in the States, and in order to place the independence of
the subordinate judiciary beyond question, provides in Art. 50 of the Directive
Principles for the separation of the judiciary from the executive and secures
such independence by enacting Arts. 233 to 237 in Chapter VI of the
Constitution. Under these Articles the appointment of the district judges 79 in
any State shall be made by the Governor of the State, and the two sources of
recruitment are : (i) service of the Union or of the State and (ii) members of
the Bar. The words "service of the Union or of the State" do not mean
any service of the Union or of the State but the judicial service of the Union
or of the State, for the entire Chapter VI is only dealing with judicial
service. Judicial service is defined in Art. 236(b) to mean a service
consisting exclusively of persons intended to fill the post of the district
judge and other civil posts inferior to the post of district judge. The
definition is exhaustive of the service because the expressions
"exclusively" and "intended" emphasise the fact that the
judicial service consists only of persons intended to fill the posts of
district judges and other civil judicial posts, and that judicial service is
the exclusive service of judicial officers. In the case of appointment of
persons to the judicial service, other than as district judges, they will be
made by the Governor in accordance with rules framed by him in consultation
with the High Court and the Public Service Commission. But the High Court has
control over all the district courts and courts subordinate thereto, subject to
certain prescribed limitations. Having defined "judicial service" in
exclusive terms, having provided for appointment to that service and having
entrusted the control of the service to the care of the High Court, the makers
of the Constitution would not have conferred a blanket power on the Governor to
appoint any person from any service as a district judge. [89 B, E-90 D; 91 A]
Under Art. 237, the Governor may notify that Arts. 233 to 236 will apply to
magistrates subject to certain modifications or exceptions, and they will then
be integrated in the judicial service which is one of the sources of
recruitment to the post of district judges. The article emphasises the fact
that till such an integration is brought about, the magistrates are outside the
scope of Arts. 233 to 236. [91 B-D] Moreover,, the posts of district and
Sessions judges were originally filled by persons from the Indian Civil
Service.
In 1922, the Governor-General in Council
issued a notification empowering the local Government to make appointments also
from members of the Provincial Civil Service (Judicial Branch) or from the
members of the Bar.
Under the Government of India Act, 1935, and
the Rules there under, the Governor was given the power to appoint to a
district judge's post a member of the Indian Civil Service or a member of the
judicial service of the province or a member of the Bar, but the rules did not
empower him to appoint to the reserved post of a district judge a person
belonging to a service other than the judicial service.
After India attained independence in 1947,
the recruitment to the 1. C. S. was discontinued and district judges have been
recruited only from either the judicial service or from the Bar. There was no
case of a member of the executive having been promoted as a district judge. If
that was the factual position at the commencement of the Constitution, it is
unreasonable to attribute to its makers, who had so carefully provided for the
independence of the judiciary, an intention to destroy it by an, indirect
method, for, nothing could be more deleterious to the good name of the
judiciary than to permit, at the level of district judges, recruitment from the
executive departments. [91 E 92B]
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1136 and 1638 of 1966.
Appeals by certificate/Special Leave from the
Judgment and Order dated February 21, 1966 of the Allahabad High Court in W. P.
No. 526 of 1965.
80.
R. K. Garg, S. C. Agarwala, M. K. Ramamurthi
and D. P. Singh, for the appellant (in both the appeals).
C. K. Daphtary, Attorney-General and O. P.
Rana, for the respondent No. 1 (in both the appeals).
Bishan Narain and B. P. Maheshwari, for the
respondents Nos.
2-4 (in both the appeals).
J. P. Goyal, for respondent No. 5 (in both
the appeals).
O. P. Verma, for respondent No. 6 (in both
the appeals).
Naunit Lal, for the intervener (in C. A. No.
1136 of 1966).
The Judgment of the Court was delivered by
Subba Rao, C.J. These appeals-the former by certificate and the latter by
special leave-raise the question of the scope of the field of recruitment to
the cadre of District Judges.
The facts may be briefly stated. During the
years 1961 and 1962, the Registrar of the Allahabad High Court called for
applications for recruitment to ten vacancies in the Uttar Pradesh Higher
Judicial Service from Barristers, Advocates, Vakils and Pleaders of more than
seven years' standing and from "judicial officers". The expression
"judicial officers" is a euphemism for the members of the Executive
department who discharge some revenue and magisterial duties. The Selection
Committee constituted under the U.P.
Higher Judicial Service Rules, hereinafter
called the Rules, in accordance with the provisions of the said Rules, selected
six candidates from the said applicants as persons suitable for appointment to
the said service. Respondents 2 to 7 are the candidates so selected by the said
Committee.
Respondents 2, 3 and 4 were Advocates and
respondents 5, 6 and 7 were "judicial officers". The Selection
Committee sent two lists, one comprising the names of the three Advocates and
the other comprising the names of the three "judicial officers" to
the High Court. On September 4, 1964, the Registrar of the Allahabad High Court
sent a copy of the report of the Selection Committee to the Secretary to the
Government, Uttar Pradesh, Lucknow, wherein be mentioned that the Court had
approved of the selection of the said candidates. Thereafter, the appellant,
who belongs to the U.P. Civil Services (Judicial Branch) and who was at that
time acting as a District Judge, and others, who were similarly situated as the
appellant, filed petitions in the High Court at Allahabad under Art. 226 of the
Constitution for an appropriate writ directing the Government not to make the
appointments to the U.P. Higher Judicial Service pursuant to the said
selection.
The said petitions were heard by a Division
Bench of the Allahabad High Court. The learned Judges, Mathur and Takru, JJ.
agreed on all points except on one: while they agreed that the selection from
the Bar was good, J. N. Takru, J.
expressed the 81 view that, as no
notification was issued under Art. 237 of the Constitution, the selection from
the cadre of "Judicial Officers" was bad. The question on which there
was difference of opinion was referred to Oak, J., and the said learned Judge
agreed with the view of Mathur, J. that the recruitment from both the sources
was good, with the result the writ petitions were dismissed. The appellant
filed an application before the High Court for a certificate of fitness to
appeal to this Court. The learned Judges, in the course of their order,
observed that in regard to the case of the Advocates as well as of the
"Judicial Officers" no certificate could be granted under Art. 133(1)
(a) of the Constitution inasmuch as no money value could be given to the
subject-matter of the dispute, that the certificate could be issued only under
Art. 132(1) or Art. 133(1) (c) of the Constitution if the terms of the said
articles were complied with, that the case of the Advocates did not raise any
substantial question of law as to the interpretation of the Constitution or any
question of public importance as to attract either of the said two articles and
that the case of the judicial officers raised such a question as to attract the
said provisions. Having made those observations, the court allowed the
application and gave the requisite certificate under Art. 132(1) and Art.
133(1)(c) of the Constitution. Pursuant to that order the High Court issued a
certificate in general terms, which reads:
"It is certified that the case is a fit
one for appeal under Articles 132 (1) and 133(1)(c) of the Constitution of
India." Pursuant to that certificate, on March 4, 1966, the appellant
filed a petition to appeal in this Court imp leading all the six candidates
belonging to both the groups as respondents. Subsequently, on March 10, 1966,
he filed another petition in this Court alleging that the High Court had no
jurisdiction to restrict the scope of the certificate and that the appellant
would be entitled to canvass all the grounds agitated before the High Court;
alternatively, he prayed that he might be
allowed to raise the additional grounds enumerated therein against the order of
the High Court.
Mr. Bishan Narain, learned counsel for the
Advocates, contended that there was no appeal before this Court in so far as
the order of the High Court related to the Advocates and that, therefore, the
appellant could not canvass the correctness of the order in so far as it
related to them.
There is justification for this contention;
but we are satisfied that the appellant was misled by the certificate issued by
the High Court in general terms. If the certificate alone was looked into, it
would appear that it covered the entire case that was before the High Court.
But if it was read along with the order passed by the High Court in the
application for certificate, it would support the argument that the High Court
intended only to restrict the 82 certificate to that part of the case relating
to the "judicial officers". But so long as the certificate remained
as it was framed, the appellant was certainly justified in assuming that the
certificate covered the entire case. If the appellant went wrong in not
scrutinising the order closely to appreciate the scope of the certificate, the
respondents were equally negligent in not getting the certificate amended so as
to bring it in conformity with the order. In the said circumstances, we give
special leave to the appellant to appeal to this Court against the order of the
High Court in so far as it related to the Advocates, after excusing the delay
in filing the same.
The arguments of the learned counsel for the
appellant may be placed conveniently under the following five heads: (1) While
under Art. 233 (1) of the Constitution the Governor has to make appointments of
persons to be, and the posting and promotions of, district judges in
consultation with the High Court concerned, under the Rules made by the
Governor under Art. 309 of the Constitution he has to consult, before making
such appointments, a selection committee constituted there under and,
therefore, the appointments made in consultation with two authorities instead
of one as provided by the Constitution, were illegal. (2) On a fair reading of
the provisions of the Rules, it is manifest that the High Court is a transmitting
authority while the selection committee is made the real consultative body,
that is to say, the Governor has to make the appointments not in consultation
with the High Court as it should be under the Constitution but in consultation
with the committee constituted under the Rules. (3) The Governor has no power
to appoint district judges from judicial officers as they are not members of
the judicial service. (4) The exclusion of the members of the judicial service
in the matter of direct recruitment offends Arts. 14 and 16 of the
Constitution; or, alternatively, the exclusion of the members of the judicial
service in the matter of direct recruitment to the post of district judges
while permitting "judicial officers" to be so recruited offends the
said articles. And (5) the recruitment is to the post of "Civil and
Sessions Judges" and they are not "District Judges" as defined
by Art. 236 of the Constitution and, therefore, the recruitment to those posts
in terms of Art. 233 is bad.
The first question turns upon the provisions
of Art. 233 of the Constitution. Article 233(1) reads:
"Appointments of persons to be, and the
posting and promotion of, district judges in any State shall be made by the
Governor of the State in consultation with the High Court exercising
jurisdiction in relation to such State." we are assuming for the purpose
of these appeals that the "Governor" under Art. 233 shall act on the
advice of the Ministers. So, the expression "Governor" used in the
judgment means Governor 83 acting on the advice of the Ministers. The
constitutional mandate is clear. The exercise of the power of appointment by
the Governor is conditioned by his consultation with the High Court, that is to
say, he can only appoint a person to the post of district judge in consultation
with the High Court. The object of consultation is apparent. The High Court is
expected to know better than the Governor in regard to the suitability or
otherwise of a person, belonging either to the "judicial service" or
to the Bar, to be appointed as a district judge. Therefore,a duty is enjoined
on the Governor to make the appointment in consultation with a body which is
the appropriate authority to give advice to him. This mandate can be disobeyed
by the Governor in two ways, namely, (i) by not consulting the High Court at
all, and (ii) by consulting the High Court and also other persons. In one case
he directly infringes the mandate of the Constitution and in the other he
indirectly does so, for his mind may be influenced by other persons not
entitled to advise him. That this constitutional mandate has both a negative
and positive significance is made clear by the other provisions of the
Constitution. Wherever the Constitution intended to provide more than one
consultant, it has said so: see Arts. 124(2) and 217(1). Wherever the
Constitution provided for consultation of a single body or individual it said
so: see Art. 222. Art. 124(2), goes further and makes a distinction between
persons who shall be consulted and persons who may be consulted. These provisions
indicate that the duty to consult is so integrated with the exercise of the
power that the power can be exercised only in consultation with the person or
persons designated therein. To state it differently, if A is empowered to
appoint B in consultation with C, he will not be exercising the power in the
manner prescribed if he appoints B in consultation with C and D. We would,
therefore, hold that if the Rules empower the Governor to appoint a person as
district judge in consultation with a person or authority other than the High
Court, the said appointment will not be in accordance with the provisions of
Art. 233(1) of the Constitution.
In this context, the Rules where under the
selections in question were made are relevant. The relevant rules may be read:
"Rule 8. Number of appointments to be
made.(1) The Governor shall decide the number of recruits to be taken at each
selection from each of the two sources of recruitment specified in rule 5.
Rules 9 to 12 prescribe the qualifications for the candidates for appointment
to the higher judicial service of the State.
Rule 13. Recruitment by promotion.-The
following procedure for selection by promotion under rule 5(i) shall be
observed:
84 (c) The selection shall be made by a
Committee consisting of two Judges of the High Court and the Judicial Secretary
to Government.
Rule 14. Direct -Recruitment.-(1)
Applications for direct recruitment to the service shall be called for by the
High Court and shall be made in the prescribed form which may be obtained from
the Registrar of the Court.
(2) The applications by barristers,
advocates, vakils or pleaders, should be submitted through the District Judge
concerned, and must be accompanied by certificates of age, character,
nationality and domicile, standing as a legal practitioner, and such other
documents as may be prescribed in this behalf by the Court. Applications from
Judicial Officers should be submitted in accordance with the rules referred to
in clause 2(b) of rule 5 of these Rules. The District Judge or other officer
through whom the application is submitted shall send to the Court, along with
the application, his own estimate of the applicant's character and fitness for
appointment to the service.
Rule 15. Interview.-(1) The Selection Committee
,shall scrutinise the application received by the Court, and require such
candidates as seem best qualified for appointment to the service under these
Rules, to appear before the committee for interview.
Candidates from among legal practitioners
shall be required to defray their own expenses for the interview.
(2) In assessing the merits of a candidate
the Selection Committee, shall have due regard for his professional ability,
character, personality, physique and general suitability for appointment to the
service as indicated by his record and interview.
Rule 17. Waiting list of candidates. -(1) The
Selection Committee shall draw tip a list of the candidates selected for direct
recruitment in order of merit; provided that in case this list includes two or
more candidates from among Judicial Officers, their names shall be so arranged
as to be in accord with their inter se seniority as Judicial Officers. The
number of selected candidates to be included in the list shall correspond to
the number of vacancies for direct recruitment as decided by the Governor on
each occasion in accordance with rule 8, with a supplementary list prepared as
aforesaid for, meeting un for seen vacancies.
(2) The Court shall submit to the Governor
the two lists of candidates considered suitable for appointment 85 to the
service from the two sources of recruitment as prepared in accordance with rule
13, and clause (1) of this rule.
Rule 19. Appointment.-(1) The Governor shall,
on receipt from the Court of the waiting lists prepared under rules 13 and 17,
make appointments to the service on the occurrence of substantive vacancies, by
taking candidates from those lists in the order in which they stand in the
respective lists, subject, in the case of the waiting list for direct
recruitment, to the provisions of rules 7 and 18, and provided that the
Governor is satisfied that they are duly qualified for appointment to the
service." It will be seen from the said Rules that the Governor decides on
the number of candidates to be selected, that the qualifications of the
candidates are prescribed by the Rules, that the Court calls for applications
for direct recruitment, that the Selection Committee appointed under the Rules
screens the applications, gives interviews only to persons who it thinks have
the necessary qualifications and selects from among them suitable persons for
appointment to the service on the basis of the record and the interview, that
the Selection Committee sends two lists to the High Court, one main list and
the other a supplementary list, arranged in the order of merit and that the
High Court submits to the Governor the names of candidates considered suitable
for appointment to the service from the lists prepared under r. 17(1), and that
thereafter the Governor makes the appointments from the said lists if he is
satisfied that they are duly qualified for appointment in all respects. It is
clear from the Rules that the High Court is practically reduced to the position
of a transmitting authority of the fists of suitable candidates for appointment
prepared by the Selection Committee. The only discretion left to it is to
refuse to recommend for appointment all or some of the persons included in the
lists sent to it by the Selection Committee. It cannot scrutinise the other
applications which were screened by the Selection Committee. It cannot
recommend for appointment persons not found in the lists.
The learned Attorney-General argued that the
High Court can, under the Rules, refuse to recommend any of the names found in
the list and go on doing so every time a new list is sent to it till' the names
it finds suitable are found in the list. This suggestion of obstructive tactics
on the part of the High Court to achieve its objective may indicate a loophole
in the Rules but it clearly demonstrates that the Rules are intended to tie
down the hands of the High Court in the matter of consultation. Apart from the
fact that a High Court cannot be expected to resort to such obstructive
tactics, the Governor can easily prevent such a situation, as he 86 may appoint
persons recommended by the Selection Committee on the ground that the refusal
by the High Court to send their names complied with the constitutional
requirement of consultation. While the constitutional provisions say that the
Governor can appoint District Judges from the service in consultation with the
High 'Court, these rules say that the Governor can appoint in consultation with
the Selection Committee, subject to a kind of veto by the High Court which can
be accepted or ignored by the Governor.
The position in the case of district judges
recruited directly from the Bar is worse. Under Art. 233(2) of the
Constitution, the Governor can only appoint advocates recommended by the High
Court to the said service. But under the Rules, the High Court can either
endorse the recommendations of the Committee or create a deadlock. The relevant
rules, therefore, clearly contravene the constitutional mandates of Arts.
233(1) and (2) of the Constitution and are, therefore, illegal.
The discussion on the first question, to some
extent, covers the second question also. The two questions overlap. On the
assumption that it is open to the Governor to make a provision under Art. 309
for consultation with bodies other than the High Court, even so he cannot avoid
consultation with the High Court directly or indirectly. As we have noticed
earlier, under the Rules the consultation with the High Court is an empty
formality. The Governor prescribes the qualifications, the Selection Committee
appointed by him selects the candidates and the High Court has to recommend
from the lists prepared by the said Committee. This is a travesty of the
constitutional provision. The Governor, in effect and substance, does neither
consult the High Court nor acts on its recommendations, but only consults the
Selection Committee or acts on its recommendations. In that view also, the
relevant rules are illegal and the appointments made there under are bad.
The third point raised is one of far-reaching
importance.
Can the Governor after the Constitution,
directly appoint persons from a service other than the judicial service as
district judges in consultation with the High Court? Can he appoint
"judicial officers" as district judges? The expression "judicial
officers" is a misleading one. It is common case that they belong to the
executive branch of the Government, though they perform certain revenue and
magisterial functions. The relevant article on which both the parties rely upon
in support of their respective contentions is Art. 233. It reads:
"(1) Appointments of persons-to be, and
the posting and promotion of, district judges in any State shall be made by the
Governor of the, State in consultation with the High Court exercising
jurisdiction in relation to such State.
87 (2) A person not already in the service of
the Union or of the State shall only be eligible to be appointed as district
judge if he has been for not less than seven years an advocate or a pleader and
is recommended by the High Court for appointment." While the learned
counsel for the appellant contends that the said article must be read along
with the group of articles embodied in Ch. VI of Part VI of the Constitution
and also in the background of the history of said provisions and that, if so
read, it would be clear that the Governor can only appoint district judges
either from the judicial service or from the Bar, the learned counsel for the
respondents, on the other hand, argues that Art. 233 is expressed in general
terms and that there is no warrant to restrict the scope of the said article by
construction or otherwise.
Before construing the said provisions, it
should be remembered that the fundamental rule of interpretation is the same
whether one construes the provisions of the Constitution or an Act of
Parliament, namely, that the court will have to find out the expressed
intention from the words of the Constitution or the Act, as the case may be.
But, "if, however, two constructions are possible then the Court must
adopt that which will ensure smooth and harmonious working of. the Constitution
and eschew the other which will lead to absurdity or give rise to practical
inconvenience or make well established provisions of existing law
nugatory." The Indian Constitution, though it does not accept the strict
doctrine of separation of powers, provides for an independent judiciary in the
States; it constitutes a High Court for each State, prescribes the
institutional conditions of service of the Judges thereof, confers extensive
jurisdiction on it to issue writs to keep all tribunals, including in
appropriate cases the Governments, within bounds and gives to it the power of
superintendence over all courts and tribunals in the territory over which it
has jurisdiction. But the makers of the Constitution also realised that
"it is the Subordinate Judiciary in India who are brought most closely
into contact with the people, and it is no less important, perhaps indeed even
more important, that their independence should be placed beyond question than
in the case of the superior Judges." Presumably to secure the independence
of the judiciary from the executive, the Constitution introduced a group of
articles in Ch. VI of Part VI under the heading "Subordinate Courts".
But at the time the Constitution was made, in most of the States the magistracy
was under the direct control of the executive. Indeed it is common knowledge
that in pre independent India there was a strong agitation that the judiciary
should be separated from the executive and that the agitation, was based upon
the assumption that unless they were separated, the independence of the
judiciary 88 at the lower levels would be a mockery. So article 50 of the
Directive Principles of Policy states that the State shall take steps to
separate the judiciary from the executive in the public services of the States.
Simply stated, it means that there shall be a separate judicial service free
from the executive control.
With this background, if the following
provisions of the Constitution are looked at, the meaning of the debated
expressions therein would be made clear:
We have already extracted Art. 233.
Article 234.-Appointments of persons other
than district judges to the judicial service of a State shall be made by the
Governor of the State in accordance with rules made by him in that behalf after
consultation with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such State.
Article 235. The control over district courts
and courts subordinate thereto including the posting and promotion of, and the
grant of leave to, persons belonging to the judicial service of a State and
holding any post inferior to the post of district judge shall be vested in the
High Court, but nothing in this Article shall be construed as taking away from
any such person any right of appeal which he may have under the law regulating
the conditions of his service or as authorising the High Court to deal with him
otherwise than in accordance with the conditions of his service prescribed under
such law.
Article 236. In this Chapter(a) the
expression "district judge" includes judge of a city civil court,
additional district judge, joint district judge, assistant district judge,
chief judge of a small cause court, chief presidency magistrate, additional
chief presidency magistrate, sessions judge, additional sessions judge and
assistant sessions judge:
(b) the expression "judicial
service" means a service consisting exclusively of persons intended to
fill the post of district judge and other civil judicial posts inferior to the
post of district judge.
Article 237. The Governor may by public
notification direct that the foregoing provisions of this Chapter and any rules
made there under shall with effect from such date as may be fixed by him in
that behalf apply in relation to any class or classes of magistrates in the
State as they apply in relation to persons appointed in the judicial service 89
of the State subject to such exceptions and modifications as may be specified
in the notification.
The gist of the said provisions may be stated
thus:
Appointments of persons to be, and the
posting and promotion of, district judges in any State shall be made by the
Governor of the State. There are two sources of recruitment, namely, (i)
service of the Union or of the State, and (ii) members of the Bar. The said
judges from the first source are appointed in consultation with the High Court
and those from the second source are appointed on the recommendation of the
High Court. But in the case of appointments of persons to the judicial service
other than as district judges, they will be made by the Governor of the State
in accordance with rules framed by him in consultation with the High Court and
the Public Service Commission. But the High Court has control over all the
district courts and courts subordinate thereto, subject to certain prescribed
limitations.
So far there is no dispute. But the real
conflict rests on the question whether the Governor can appoint as district
judges persons from services other than the judicial service; that is to say,
can he appoint a person who is in the police, excise, revenue or such other
service as a district judge? The acceptance of this position would take us back
to the pre-independence days and that took to the conditions prevailing in the
Princely States. In the Princely States one used to come across appointments to
the judicial service from police and other departments. This would also cut
across the well-knit scheme of the Constitution and the principle underlying
it, namely, the judiciary shall be an independent service. Doubtless, if Art.
233(1) stood alone, it may be argued that the Governor may appoint any person
as a district judge, whether legally qualified or not, if he belongs to any
service under the State. But Art. 233(l)is nothing more than a declaration of
the general power of the Governor in the matter of appointment of district
judges. It does not lay down the qualifications of the candidates to be
appointed or denote the sources from which the recruitment has to be made. But
the sources of recruitment are indicated in cl. (2) thereof.
Under cl. (2) of Art. 233 two sources are
given, namely, (i) persons in the service of the Union or of the State, and
(ii) advocate or pleader. Can it be said that in tie context of Ch. VI of Part
VI of the Constitution "the service of the Union or of the State"
means any service of the Union or of the State or does it mean the judicial
service of the Union or of the State? The setting, viz., the chapter dealing
with subordinate courts, in which the expression "the service"
appears indicates that the service mentioned therein is the service pertaining
to courts. That apart, Art. 236(b) defines the expression "judicial
service" to mean a service consisting exclusively of persons intended to
fill the post of district judge and other civil judicial posts inferior
Sup.C.1/66-7 90 to the post of district judge. If this definition, instead of
appearing in Art. 236, is placed as a clause before Art.
233(2), there cannot be any dispute that
"the service" in Art. 233(2) can only mean the judicial service. The
circumstance that the definition of "judicial service" finds a place
in a subsequent Article does not necessarily lead to a contrary conclusion. The
fact that in Art. 233(2) the expression "the service" is used whereas
in Arts. 234 and 235 the expression "judicial service" is found is
not decisive of the question whether the expression "the service" in
Art. 233(2) must be something other than the judicial service, for, the entire
chapter is dealing with the judicial service. The definition is exhaustive of
the service. Two expressions in the definition bring out the idea that the
judicial service consists of hierarchy of judicial officers starting from the
lowest and ending with district judges. The expressions "exclusively"
and "intended" emphasise the fact that the judicial service consists
only of persons intended to fill up the posts of district judges and other
civil judicial posts and that is the exclusive service of judicial officers.
Having defined "judicial service" in exclusive terms, having provided
for appointments to that service and having entrusted the control of the said
service to the care of the High Court, the makers of the world Constitution not
have conferred a blanket power on the Governor to appoint any person from any
service as a district judge.
Reliance is placed upon the decision of this
court in Rameshwar Dayal v. State of Punjab(1) in support of the contention
that "the service" in Art. 233(2) means any service under the State.
The question in that case was, whether a person whose name was on the roll of
advocates of the East Punjab High Court could be appointed as a district judge.
In the course of the judgment S. K. Das, J., speaking for the Court, observed:
"Article 233 is a self contained
provision regarding the appointment of District Judges.
As to a person who is already in the service
of the Union or of the State, no special qualifications are laid down and under
cl. (1) the Governor can appoint such a person as a district judge in
consultation with the relevant High Court. As to a person not already in
service, a qualification is laid down in cl. (2) and all that is required is
that he should be an advocate or pleader of seven years' standing." This
passage is nothing more than a summary of the relevant provisions. The question
whether "the service" in Art.
233(2) is any service of the Union or of the
State did not arise for consideration in that case nor did the Court express
any opinion thereon.
(3) (1961) 2 S.C.R. 874.
91 We, therefore, construe the expression
"the service" in cl. (2) of Art. 233 as the judicial service.
But, it is said that this construction
ignores Art. 237 of the Constitution. We do not see how Art. 237 helps the
construction of Art. 233(2). Art. 237 enables the Governor to implement the
separation of the judiciary from the executive. Under this Article, the
Governor may notify that Arts. 233, 234, 235 and 236 of the Constitution will
apply to magistrates subject to certain modifications or exceptions; for
instance, if the Governor so notifies, the said magistrates will become members
of the judicial service, they will have to be appointed in the manner
prescribed in Art. 234, they will be under the control of the High Court under
Art. 235 and they can be appointed as District Judges by the Governor under
Art. 233(1). To state it differently, they will then be integrated in the
judicial service which is one of the sources of recruitment to the post of
district judges. Indeed, Art. 237 emphasises the fact that till such an
integration is brought about, the magistrates are outside the scope of the said
provisions.
The said view accords with the constitutional
theme of independent judiciary and the contrary view accepts a retrograde step.
The history of the said provisions also
supports the said conclusion. Originally the posts of district and sessions
judges and additional sessions judges were filled by persons from the Indian
Civil Service. In 1922 the Governor-General-in-Council issued a notification
empowering the local government to make appointments to the said service from
the members of the Provincial Civil Service (Judicial Branch) or from the
members of the Bar. In exercise of the powers conferred under S. 246(1) and s.
251 of he Government of India Act, 1935, the Secretary of State for India
Framed rules styled Reserved Posts (Indian Civil Service) Rules, 1938. Under
those Rules, the Governor was given the power of appoint to a district post a
member of the judicial service of the Province or a member of the Bar.
Though s. 254(1) of the said Act was couched
in general terms similar to those contained in Art. 233(1) of the Constitution,
the said rules did not empower him to appoint to the reserved post of district
judge a person belonging to a service other than the judicial service. Till
India attained independence, the position was that district judges were
appointed by the Governor from three sources, namely, (i) the Indian Civil
Service, (ii) the Provincial Judicial Service, and (ii) the Bar. But after
India attained independence in 1947, recruitment to the Indian Civil Service
was discontinued and the Government of India decided that the members of the
newly created Indian Administrative Service would not be given judicial posts.
thereafter district judges have been recruited only from either the judicial
service or from the Bar. There was no case of a member 92 of the executive
having been promoted as a district judge.
If that was the factual position at the time
the Constitution came into force, it is unreasonable to attribute to the makers
of the Constitution, who had so carefully provided for the independence of the
judiciary, an intention to destroy the same by an indirect method. What can be
more deleterious to the good name of the judiciary than to permit at the level
of district judges, recruitment from the executive departments? Therefore, the
history of the services also supports our construction that the expression
"the service" in Art. 233(2) can only mean the judicial service.
For the aforesaid reasons, we hold that the
Rules framed by the Governor empowering him to recruit district judges from the
"judicial officers" are unconstitutional and, therefore, for that
reason also the appointment of respondents 5, 6 and 7 was bad.
In this view, it is not necessary to express
our view on the last two questions.
In the result, we hold that the U.P. Higher
Judicial Service Rules providing for the recruitment of district judges are
constitutionally void and, therefore, the appointments made there under were
illegal. We set aside the order of the High Court and issue a writ of mandamus
to the 1st respondent not to make any appointment by direct recruitment to the
U.P.
Higher Judicial Service in pursuance of the
selections made under the said Rules. The last respondent will pay the costs of
the appellant. The other respondents will bear their own costs.
V.P.S. Appeal allowed.
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