Kumar Padma
Prasad Vs. Union of India & Ors [1992] INSC 72 (10 March 1992)
Kuldip
Singh (J) Kuldip Singh (J) Sawant, P.B. Kasliwal, N.M.
(J)
CITATION:
1992 AIR 1213 1992 SCR (2) 109 1992 SCC (2) 428 JT 1992 (2) 247 1992 SCALE
(1)581
ACT:
Constitution
of India, 1950 :
Articles
50, 136, 139A, 217(2), 233, 236(b), 237-High Court Judge-Appointment-Necessary
qualifications-Whether Supreme Court/High Court can exercise jurisdiction on
the ground that the incumbent does not fulfill qualifications as required by
Article 217.
`Judicial
Office'-Concept of-Explained.
Government
of Mizoram Notification CS/MZ/APPT/79 dated 23.6.1979-Assistant to Deputy
Commissioner appointed under Rules 8,9 and 15 of 1937-Rules for regulation of
procedure of officers to administer justice in Lushi Hills. 1937-Rs.
8,915-Assistant to Dy. Commissioner-Exercising powers analogous to those of a
judicial Magistrate First Class under Code of Criminal Procedure, 1973-Whether
holds a judicial office.
Independence of judiciary-Necessity for.
Administration
of justice- Whether High Court can assume jurisdiction on judicial side to
probe into matter purely of administrative nature and exclusively within
purview of Chief Justice.
Words
and Phrases "Judicial Office", "Judicial service"-Interpretation
of.
HEAD NOTE:
The
Governor of Mizoram, by a letter dated 5.5 1990, addressed to the Chief Justice
of Gauhati High Court, recommended the name of respondent no. 9 for appointment
as a Judge of the High Court. The bio-data enclosed with the said letter
indicated that respondent no. 9, after passing L L.B., joined the Government of
Assam in Law Department in 1966 as a Gazetted Officer. He worked on various
posts, under the Government of Mizoram and Assam, such as, Law Officer in Finance Department, Under Secretary, Law and
Judicial, Registrar Firms, Deputy 110 Secretary law & Judicial and Deputy
Legal Remembrancer. In 1985 he was appointed as Legal Remembrancer and
Secretary Law and Judicial. He worked as D.C. (Judicial) in 1987. He also
worked as Member/Presiding Officer/Chairman of certain Tribunals/Committees.
The bio data described him as belonging to Mizoram Judicial Service. The Chief
Justice forwarded the papers to the Minister of Law and Justice Government of
India. The Union law Minister, the Chief Justice of
India, the Prime Minister of India and the President of India on their
respective turns cleared/approved the name of respondent no. 9 for the
appointment. The warrant of appointment was signed by the President of India on
15.10.1991 and the Notification appointing respondent no. 9 as a Judge of Gauhati
High Court was issued on 25.10.1991.
The
petitioner filed a writ petition before the Gauhati High Court on October 23, 1991 challenging the selection of
respondent no. 9 for appointment as a Judge of the Gauhati High Court on the
ground that he was not qualified for such an appointment. The High Court passed
an interim order holding that it was doubtful if respondent no. 9 possessed
qualifications as a provided under Article 217(2), and directed that the
warrant of appointment of respondent No. 9 issued by the President of India
should not be given effect to. Respondent No.9 was also restrained from
subscribing his oath or affirmation in terms of Article 219 of the
Constitution.
Before
the writ petition was filed by the petitioner, the Mizoram Bench of Gauhati
High Court suo-motu assumed jurisdiction under Article 226 of the Constitution
and by its order dated 20.11.1990 directed to register a case against
respondent no. 9 in respect of anomalies in purchase of law books for the High
Court. The Chief Minister, Mizoram by letter dated 7.10.1991 conveyed to; the
Union law Minister that a vigilance case was instituted against respondent
no.9. The letter dated 8.10.1991 addressed by Chief Justice, Gauhati High court
to the Union Law Minister did not indicate about any such case. The Law
Minister ignored the letter of the Chief Minister. Later on the State
Government by a wireless message dated 2.11.1991 informed the Department of
Justice, Government of India that respondent no.9 had been placed under
suspension in view of the case pending against him in the High Court.
Respondent
No.9 filed a special leave petition and a writ petition 111 before this Court.
Two transfer petitions, one by respondent no.9 and the other by the petitioner,
were also filed seeking transfer to this Court of the writ petition filed by
the petitioner in Gauhati High Court. Consequently the said writ Petition was
transferred to and was heard by this Court.
It was
contended by the petitioner that the appointment of respondent no.9 as a High
Court Judge was violative of Article 217(2) of the Constitution as he did not
fulfill the qualifications prescribed therein inasmuch as he neither had been
an Advocate of a High Court nor had he ever held a judicial officer; and that
by virtue of respondent's appointment as Assistant to the Deputy Commissioner
during the year 1979 in addition to his own duties as Under Secretary, Law and
Judicial, he did not hold a Judicial Office as envisaged under Article
217(2)(a) of the Constitution.
Allowing
the transferred writ petition of the petitioner, this Court,
HELD:
1. The High Court Judges are appointed from two sources, member of the Bar and
from amongst the persons who have held "judicial office" for not less
than ten years.
Even a
subordinate judicial officer manning a court inferior to the District Judge can
be appointed as a Judge of a High Court. [p.131E]
2.1
Expression "Judicial office" has not been defined under the Constitution,
nevertheless, it has to be interpreted in consonance with the scheme of
Chapters V and VI of part VI of the Constitution and has to be given the
meaning in the context of the concept of judiciary as enshrined therein. It
would be logical and consistent with the Consistent with the Constitutional
scheme to read "judicial office" under Article 217 (2)(a) to mean an
office within the judicial service of the State. [pp.127D;132E, 133F] Statesman
(Private) Ltd. v. H.R. Dev & Ors., [1968] 3 SCR 614, referred to.
2.2
Holder of "judicial office" under Article 217(2)(a) means the person
who exercise only judicial functions, determines causes interprets and renders
decisions in a judicial capacity. He must belong to the judicial service which
as a class is free from executive-control and is disciplined to uphold the
dignity, integrity and independence of judiciary. The expression "judicial
office" in the said Article means an office which is a part of judicial
service as defined under Article 236(b) of the Constitution. [pp.131G-H; 132A,
F-G] 112
2.3
Article 236 (b) defines "judicial service" to mean District Judges
and Judges subordinate thereto. Appointment of District Judges under Articles
233(2) can only be from the judicial service of the State as defined under Article
236(b). [pp.127 EF; 131D] Chandra Mohan v. State of Uttar Pradesh & Ors.,
[1967] 1 SCR 77, followed.
2.4
Ordinarily the District Judges who are superior members of the judicial service
are considered for appointment as Judges of the High Court but the
constitution-makers wanted to hold-out a possibility of elevation as a Judge of
High Court to the Subordinate Judges, so as to infuse amongst them a sense of
responsibility and an incentive for maintaining efficiency and it was with that
objective that the expression "judicial office" has been used in
Article 217(2)(a) of the Constitution. [p.132E-F]
2.5 In
order to qualify for appointment as a Judge of a High Court under Article 217(2)(a)
a person must hold a "Judicial Office" which must be a part of the
judicial service of the State. [p.133F-G]
2.6
The expression "judicial office" in generic sense may include wide
variety of offices which are connected with the administration of justice in
one way or the other.
Although
under the criminal Procedure Code, 1973 powers of Judicial Magistrate can be
conferred on any person who holds or has held nay office under the Government
and officers holding various posts under the executive are often vested with
the Magisterial-powers to meet a particular situation, yet the constitution
framers did not provide a source of appointment to the high office of a High
Court Judge from amongst the holders of a "judicial office".
[p.131F-G]
2.7 A
person-who is holding a judicial office in the generic sense and is not a member
of the judicial service of the State-is not eligible to be appointed as
District Judge.
When a
person is not eligible to be appointed as a District Judge it would be mockery
of the Constitution to hold that he is eligible to be appointed as a Judge of a
High Court.
The
Constitutional-scheme is clear. [p.132B-D]
3.1
The independence of judiciary is part of the basic structure of the
Constitution. To achieve this objective there has to be separation of 113
judiciary from the executive. The framers of the Constitution did not and could
not have meant by a "judicial office" which did not exist
independently and the duties or part of the duties of which could be conferred
on any person whether trained or not in the administration of justice.
The
Directive Principles as enshrined in Article 50 of the Constitution, give a
mandate that the State shall take steps to separate the judiciary from the
executive which means that there shall be a separate judicial service free from
the executive control. Chapters V and VI in part VI of the Constitution provide
for the High Courts and subordinate courts in the State. The scheme under the
Constitution for establishing an independent judiciary is very clear. The
Constitution-scheme, therefore, only permits members of the judicial service as
constituted in terms of Article 236(b) of the Constitution to be considered for
the post of District judge and that of the High Court Judge.[pp.132D;143D;
144C-D]
3.2
The Word"judicial office" in Article 217(2) means a subsisting office
with a substantive position which has an existence independent from its holder.
[p.143E] Smt. Kanta Kathuria v. Manak Chand Surana, [1969] 3 SCC 268 and Great
Western Railway Company v. Bater, 8 Tax Cases 231, referred to.
3.3
The judicial service in a State is distinct and separate from the other service
under the executive.
The
members of the judicial service perform exclusively judicial functions and are
responsible for the administration of justice in the State. Magistrates who are
not appointed to the judicial service of the State can be brought into the
judicial service by way of a notification under Article 237 of the Constitution
of India. Till the time there is separation of judiciary or a notification
under Article 237 of the Constitution of India is issued there is no question
of considering the executive officers or even Magistrates for appointment to
the post of District Judge or a High Court Judge even though the executive
officers or Magistrates concerned have the adornment of a judicial office.
[pp.128A;145C-E]
3.4
The office of the Assistant to Deputy Commissioner, held by respondent No. 9
for about six months, by virtue of Notification dated 23.6.1979 issued by the
Government of Mizoram under 1937 Rules for the Regulation of the procedure of
officers appointed to administer justice in the Lushai Hills, was neither a
judicial office nor was it part of a judicial service as defined under Article
236(b) of the Constitution. [pp.138C-H;143F-G] 114
3.5
Keeping in view the exigency of administration different officers working with
the Government of Mizoram, including respondent no.9, who was working as Under
Secretary, Law and Judicial were by the Notification dated 23.6.1979, appointed
Assistant to Deputy Commissioner and were invested with the powers of judicial
and executive Magistrates in addition to their own duties. There was no
separate office with a designation of Assistant to the Deputy Commissioner.
Under the 1937 Rules there was no separation of judiciary from the executive.
There was no judicial service as envisaged by Article 236(b) of the
Constitution and as such an Assistant to Deputy Commissioner could not be
judicial officer in terms of Article 217(2)(a) of the Constitution. [pp.141E-H;
142A-B]
3.6
The office of Legal Remembrancer-cum-secretary Law and Judicial is non-judicial
office under the control of the executive. The Mizoram Judicial Service came
into existence with effect from February 17, 1986 and even if full benefit of
that service is given to the respondent for the purposes of Article 217(2)(a)
he is not qualified as the total period counted from February 17, 1986 comes to
less than ten years as required under the said Article. Besides, he never held
any of the judicial offices as enumerated in Schedule A to 1989 Rules pertaining
to Mizoram Judicial Service, and unless he has held a judicial office in a
judicial service he does not come within the purview of Article 217(2)(a). [p.136A-C]
3.7 A
cursory look at the bio-data would show that the respondent was not qualified
for appointment as a Judge of High Court on the admitted facts which have been
on the official files all the time. [p.137A]
4. The
independence, efficiency and integrity of the judiciary can only be maintained
by selecting the best persons in accordance with the procedure provided under
the Constitution. These objectives enshrined under the Constitution of India
cannot be achieved unless the functionaries accountable for making appointments
act with meticulous care and utmost responsibility. [p.137A-B]
5.
Ordinarily the domain in such matters lies wholly with the constitutional
authorities mentioned in Article 217 of the Constitution, but in exceptional
circumstances like the present, where the incumbent considered for appointment
as a Judge of a High Court does not fulfill the qualification as laid down
expressly under the provisions of the Constitution itself, it becomes bounden
duty of the Court to see that no person 115 ineligible or unqualified is
appointed to a high constitutional and august office of a Judge of a High
Court. [p.137E-F]
6. The
High Court was not justified in assuming jurisdiction on the judicial side to
probe into the anomalies in purchase of books involving respondent no.9.
It was
a matter purely of administrative nature and was exclusively within the purview
of the Chief Justice. [pp.123F-G;124A]
7.
Since on the date of issue of the warrant by the President of India, respondent
no.9 was not qualified to be appointed as Judge of the High Court, his
appointment would be quashed and the Union of India and other respondents would
not administer him oath or affirmation under Article 219 of the Constitution of
India. [p.145F-G] S.P. Gupta and others v. Union of India & Ors., [1982] 2
SCR 365, cited.
ORIGINAL
JURISDICTION : Transferred Case (Civil) No.101 of 1991.
Under
Article 139(A)(1) of the Constitution of India.
V.R.Reddy,
Add. Solicitor General, Anil B.Divan, P.K.Goswami, K.K.Venugopal, Ram Jethmalani,
M.L.Verma, Kapil Sibal and Shanti Bhushan, A.R.Borthakar, Advocate General, K.N.Madhusudan,
Asstt. Advocate General, Syed Naqvi, Ms. Lira Goswami, Ms. Alpana Kripal, M.J.Paul,
Kailash Vasudev, P.P.Tripathi, Shaihid Rizvi, K.V.Vishwanathan, Vinod Kumar, S.Banerjee,
Ms. A.Subhashini, Ms. Niranjana Singh, Ms. L.Krishnamurthy, Mrs. H.Wahi, S.K. Nandy,
Ms. Urmila Kapoor, P.Goswami, S.Chatterji, D.N.Mukherjee, Anil Katiyar, Ms. Kamini
Jaiswal, P.K.Dey, Ms. S.Janani and Ms. Minakshi for the appearing parties.
Shanti
Bhusan, Ms. Indira Jaisingh, Soli J.Sorabjee, Jitendra Sharma, Prashant Bhushan,
Ms. Kamini Jaiswal, P.H. Parekh and B.N. Aggarwal for the Intervenor.
The
Judgment of the Court was delivered by KULDIP SINGH, J. The President of India
by a warrant dated October
15, 1991 under his
hand and seal appointed K.N. Srivastava as a Judge of Gauhati High Court. He
has not as yet made and subscribed an 116 oath/affirmation as required under
Article 219 of the Constitution of India and as such has not entered upon his
office. The question for our consideration is whether the appointment of Srivastava
as High Court Judge is infraction of Article 217(2) and 217(1) of the
Constitution of India.
Is he
qualified for appointment as a Judge - If so has the mandatory process of
consultation under the Constitution been followed.
Shri Lal
Thanhawla, Chief Minister Mizoram by his letter dated September 29, 1989
addressed to Chief Justice Gauhati High Court recommended the name of Srivastava
for appointment as a Judge of Gauhati High Court Capt.
W.A.Sangama,
Governor of Mizoram reiterated the recommendation by his letter dated October
4, 1989. The Chief Justice Gauhati High Court by his separate letters dated
October 25, 1989 addressed to Governor of Mizoram and chief Minister, Mizoram
acknowledged the receipt of the recommendation and stated that he would take
necessary action immediately after formation of a Permanent Bench at Aizawl.
Mr. Swaraj Kaushal who succeeded Capt. W.A.Sangma as Governor Mizoram addressed
a detailed letter dated May 5, 1990 recommending Srivastava for appointment as
a Judge.
Along
with the recommendation he enclosed bio-data of Srivastava which is as under:
"BIO
DATA OF SHRI K N SRIVASTAVA, M.J.S LEGAL REMEMBRANCER AND SECRETARY LAW &
JUDICIAL ETC. GOVERNMENT OF MIZORAM
1. Name
: K.N Srivastava (KESHARI NANDAN SRIVASTAVA)
2.
Father's Name : Late Sri Krishna Lal
3.
Present address : Law Department Civil Secretariat Govt. of Mizoram, Aizawl
796001
4.
Permanent Address : C/o Sri Chandra Mohan Srivastava 254 Bazar Jhau Lal Lucknow
U.P. 226001 117
5.
Date of Birth & Age : 30 January 1938 (52 years)
6.
Nationality/Religion : Indian/Hindu 7. Qualification : B.A. LL.B. (1957-1959 Lucknow
University)
8.
Service to Which : Mizoram Judicial Service belongs
9. Professional
: Took Training for legal practice Experience in 1960 in Lucknow.
2.
Joined Govt. of Assam in Law Department in 1966 as Gazetted Officer for
Coordination and translation of all State Laws in consultation official
Legislative language Commission Govt. Of India.
3.
Posted as Law Officer in Finance Department of Govt. Assam to tender legal
advice and to look after taxation laws and litigations.
4.
Appointed Under Secretary Law & Judicial Govt. of Mizoram, in 1972 to look
after all legal matters, advice, litigation, court cases drafting of State
Legislation etc.
5. Held
charge of Under Secretary, Secretariat Administration Department, General
Administration Department, Revenue Excise & Taxation Department, Education,
and Social Welfare Department, Govt. of Mizoram from time to time.
6.
Appointed as Registrar of Firms & Societies, Government of Mizoram from
23.3.72 to 21.12.1979
8.
Appointed Deputy Secretary Law & Judicial and Deputy Legal Remembrancer
since 118 1979 and
9.
Legal Remembrancer and Secretary Law and Judicial since 1985 and also
10.
Appointed Presiding Member of one man Mizoram Motor Accident Claims Tribunal in
1986.
11.
D.C. (Judicial) in 1987.
12.
Presiding Officer, Industrial Tribunal in October 1989.
13.
Declared as Law Officer to appear and conduct cases in all courts on behalf of
Govt. for which also enrolled as an Advocate with the Bar Council of Assam, Nagaland,
Meghalaya, Manipur etc., Gauhati High Court Gauhati.
14.
Attended and successfully completed a legal course consisting of studies in
International Law & Organizations, Practical & Treaty drafting at London, U.K. from January 1980 to May 1980
15.
Member, Mizo Customary Law Committee, and also had been its Chairman during
President Rule for September 1988
16.
Chairman of Executive Committee, Legal Aid and Advice Board.
17.
Chairman, State Level Screening Committee under the Prevention of illicit
Traffic in Narcotic Drugs.
18.
Members, Board of under- graduate studies, North Eastern Hill University Shillong
to consider course and prospectus for LLB course.
119
19.
Member, Committee to review the Implementation of the recommendation of All
India Committee on Jail Reforms.
20.
Members, Mizoram Resources Mobilisation and Taxation Enquiry Committee.
21.
Members, State Level
Road Safety Council
for Mizoram.
22.
Member, Works Advisory Committee
23.
Member, Supply Advisory Board for Assam Rifles in Mizoram
24.
Member, Appellate Board for Water and Air Pollution in Mizoram.
Chief
Justice High Court by his letter dated August 6, 1990 addressed to Minister of Law and Justice,
Government of India forwarded the recommendations, including that of Srivastava,
for appointment of Judges to the Gauhati High Court. The recommendation
included the above quoted bio- data of Srivastava. Minister of Law and Justice
addressed a letter dated September
10, 1990 to the
Governor Assam bringing to his notice the names proposed by the Chief Justice
of the Gauhati High Court and called-for his recommendations and those of the
Governors and Chief Ministers of the North Eastern State. Shri D.D. Thakur Governor of Assam by letter dated October
20, 1990 conveyed his views and those of other Governors and Chief Ministers of
North Eastern State. He recommended Srivastava's name and also sent his
bio-data (reproduced above) along with his recommendation. The Intelligence
Bureau Ministry of Home Affairs Government of India informed the Law Ministry
on October 8, 1990 that Srivastava was considered to be professionally
competent and nothing adverse regarding character, integrity and political
affiliation had come to notice. The original file regarding appointment of
Judges in the Gauhati High Court with all the proposals was sent to the Chief
Justice of India. The file containing all the recommendations including that of
Srivastava along with his bio-data was considered by the Chief Justice of India
on November 7, 1990. Regarding Srivastava he recorded as under:
120
"Shri K.N.Srivastava is a judicial officer, there is nothing adverse
against him but his C.R. is not available ...After the CRs of Sri K.N. Srivastava
and Shri N.G.Das are obtained the file may be sent to me...." The file was
again sent to the Chief Justice of India along with CRs of Srivastava. The
Chief Justice cleared the name of Srivastava in the following words:
"So
far as Srivastava is concerned he is a Judicial Officer and there is no
objection. His name is, therefore, cleared." The Minister of Law and
Justice approved Srivastava's appointment as a Permanent Judge of Gauhati High
Court on August 14, 1991. Thereafter a summary was prepared by the Department
of Justice for the consideration of the Prime Minister and the President of
India. In the said summary Srivastava was presented as under:
"Shri
K.N. Srivastava B.A., LL.B. was born on 30th January, 1938. He joined
Government of Assam in Law Department in 1956. He was appointed as an Under
Secretary, LAw and Judiciary in 1972 and as Registrar of Firms and Societies,
Government of Mizoram, from 23.3.72 to 21.12.79. He was appointed the Legal Remembrancer
and Secretary, Law and Judiciary in 1985".
The
Prime Minister approved the appointment of September 24, 1991 and the President
of India on September 30, 1991. The Warrant of Appointment was signed by the
President on October 15, 1991 and notification appointing Srivastava as a
Judge, Gauhati High Court was issued on October 25, 1991.
Kumar Padma
Prasad, a practising advocate, filed a writ petition under Article 226 of the
constitution of India before gauhati High Court on October 23, 1991 challenging
the selection of Srivastava for appointment as a Judge of the Gauhati High
Court on the ground that he was not qualified for such an appointment. He
prayed for issuance of a mandamus directing the Union of India and other
respondents to re-call, rescind or otherwise forbear from giving effect to the
impugned selection of Srivastava.
121
for being appointed as a Judge of the Gauhati High Court.
The
writ petition was listed the same day for hearing before a learned single Judge
of the High Court. The learned Judge issued rule nisi and passed interim order
in the following terms:
"The
stay matter shall be heard on 28.10.1991.
Meanwhile
the respondent No. 1 Union of India, is restrained from issuing warrant
appointing the respondent No.9 (Shri K.N. Srivastava) as Judge of the Gauhati
High Court till 28.10.1991." On October 28, 1991 the High Court noticed
the fact that the warrant of appointment of Srivastava had already been
received at Gauhati. The petitioner was permitted to amend the writ petition
and the hearing on the interim relief was adjourned no November 6, 1991. A
Division Bench of the High Court heard the stay matter on November 6, 1991.
After
noticing the points raised by the petitioner the High Court observed as under:
"In
view of above discussion, it is doubtful if the respondent a Shri K.N. Srivastava
possesses qualification as provided under Clause (2) of Article 217. Therefore,
a bona fide dispute has been raised, thereby showing a prima facie case."
The High Court granted the interim stay in the following words:- "In the
result, it is ordered and directed that the warrant of appointment of
respondent 9 Shri K N Srivastava issued by the President of India shall not
given effect to by the concerned respondent until further orders. It is further
ordered and directed the respondent-9 Shri K.N. Srivastava is restrained from
making and subscribing his oath or affirmation in terms of Article 219 of the
Constitution until further orders. However, notwithstanding the pendency of the
writ petition and making this interim order, the Central Government is given
liberty to reconsider the appointment of respondent-9 Shri K.N. Srivastava as
Judge in a High Court keeping in view the allegation made in this writ
petition." We may at this stage notice another controversy taken- up by
the High Court on Judicial side. The Mizoram Bench of Gauhati High Court
consisting of S.K. Homchaudhuri and M. Sharma, JJ suo-moto assumed 122
jurisdiction on the judicial side presumably under Article 226 of the
Constitution of India and on November 20, 1990 passed the following order:-
"Register a case under public interest litigation with the cause title-
The Registrar (Judicial), Gauhati High Court Versus - Shri K.N. Srivastava,
Secretary, Law & Judicial Deptt Govt. Mizoram, Aizawl.
Let
notice be issued to Shri K.N. Srivastava, Secretary, Law & Judicial
Department, Govt. of Mizoram show cause as to why an investigation shall not be
ordered by this Court in the matter of purchase of Law Books and journals,
furniture and stationery articles, by the Law and Judicial Department, Mizoram for
the permanent Bench of the High Court at Aizawl; or why such further or other
orders should not be passed as to this court may seem fit and proper.
In the
interim, we direct the Secretary, Law and Judicial Department, Govt. of Mizoram
to furnish a full particulars of the law books and journals purchased for the
Judge's library positively within 7(seven) days from the date of receipts of
this notice. The particulars should contain amongst others-
(1)
total amount of fund allotted by the Govt. and the fund spent with list of law
books purchased, names and particulars of the suppliers and the price thereof,
(3) copies
of the bills of the suppliers,
(4) date
of payment to the suppliers, and
(5) date
of receipt of the books against each payment made etc.
The
notice of Shri K.N. Srivastava, Secretary Law and Judicial Department shall be
accompanied by copies of letter dated 23-7-1990 and the subsequent reminders.
Let a
copy of this order be sent to (1) the Advocate General, Mizoram, (2) Chief
Secretary to the Govt. of Mizoram, (3) The Secretary to the Govt. of India,
Ministry of Home Affairs, New Delhi, and
(4) The Secretary to the Govt. of India, Ministry of Law and Justice, New Delhi." The above quoted directions
were used by the High Court after 123 taking note, in the same order, of the
following facts:- "After the permanent Bench was established, regular
Benches, both Division and Single, are sitting at Aizawl. But the great
difficulties are faced by the Judges in discharging their function of not having
the Judge's library equipped with essential law books and journals. Indeed, we
are handicapped while sitting in the Court when reference books and Law
journals are not available in deciding important and complicated question of
law ......A casual look at the library which mostly filled up with books of law
and Judicial Department purchased earlier, do not at all disclose that a sum of
Rs. 6,45,000- and odd was spent for purchase of law books and journals.
Important law journals like- All India Reporters, Supreme Court Reports,
Supreme Court Cases etc. do not appear to have been purchased for the library
......The aforesaid facts and circumstances and the unusual silence of the
Secretary, Law & Judicial Department as regards furnishing of particulars
of the Books and journals purchased for the Judge's Library for more than 4
months, inspite of repeated reminders, gives rise to strong suspicion that all
is not well in the matter of purchase of law books and journals for the Judge's
Library by the Law & Judicial Department.
The
Secretary Law is in duty bound to furnish full particulars of the law books and
journals so purchased for the Judge's Library and is primarily accountable for
anomalies, misuse, or misappropriation, if any, of the fund sanctioned by the
Govt. for purchase of books for Judge's Library and the consequent non
availability of the essential law books and journals, is very much detrimental
to the function of the High Court and in turn to the interest of the public at
large." We fail to appreciate the action of the two learned Judges of the
High Court in assuming jurisdiction on the judicial side to probe into a matter
which was purely of administrative nature and was exclusively within the
purview of the Chief Justice. Whether in the matter of purchase of books for
the High Court, Srivastava acted honestly or dis- honestly was not a matter for
the learned Judges to probe by straining their judicial powers. Mr. K. K. Venugopal,
learned senior Advocate appearing for Srivastava contended that Srivastava's
name for appointment as a Judge was 124 recommended in August 1990 and by
November, 1990 the process of consultation was at final stages. According to
him the order dated November
20, 1990 was passed by
the learned Judges with a view to stall his appointment as a Judge. Be that as
it may, we are of the view that there was no justifiable reason for the learned
Judges to have adopted the course they did.
The Mizoram
Bar Association passed a resolution on October 7, 1991 wherein it was resolved as under:
"While
a qualified person Shri R.C.Thanga presently Advocate General, Mizoram is
excluded at the last stage under mysterious and suspicious circumstances, a
person Shri K.N. Srivastava. who has no practical experience even for a day as
a Magistrate or as an advocate, and against whom three misappropriation cases
are pending in the High Court, (Aizawl Bench) and whose integrity is seriously
being questioned, is considered to be qualified for appointment as a Judge of Gauhati
High Court in the near future. This Bar Association vehemently urge the
concerned authorities to reconsider or review the matter." Shri Lal Thanhawla,
Chief Minister Mizoram, by his letter dated October 7, 1991 addressed to Shri K. Vijaya Bhaskara
Reddy, Minister of Law, Justice and Company Affairs, Government of India, New Delhi stated as under:
"We
had recommended Shri K.N. Srivastava, Secretary, Law and Judicial, Government
of Mizoram for being considered for appointment as a Judge of the Gauhati High
Court. Subsequent to our recommendation it has been reported that a vigilance
case has been instituted against Shri Srivastava by the Aizawl Bench of the Gauhati
High Court in regard to alleged anomalies in the procurement of law books,
journals etc. for the Aizawl Bench's library.
We
understand that the case is pending with the Gauhati High Court. I have,
therefore, thought it desirable to bring this fact to your kind notice."
125 Shri U.L. Bhat, Chief Justice, Gauhati High Court by his letter dated October 8, 1991 addressed to the Law Minister
Government of India stated:
"I
am indeed happy that President has approved the names of four persons for
appointment of Judges in the Gauhati High Court namely,
(1) Shri
Dhirender Nath Baruah (Assam-Bar) Shri Sujit Barman Roy (Tripura-Bar),
(3) Shri
K.N. Srivastava (Mizoram- service) and
(4) Shri
Nai Gopal Das (Tripura-SErvice)."
The
Chief Justice did not mention anything about the pendency of vigilance cases or
any other case against Srivastava. The Law Minister after noticng the contents
of both the letters opined that the contents of the Chief Minister's letter be
ignored.
The
Chief Secretary, Government of Mizoram by a wireless message dated November 2,
1991 informed the Secretary to Government of India, Department of Justice that Keshari
Nandan Srivastava, Secretary, Law and Judicial Department, Government of Mizoram
had been placed under suspension in view of the case pending against him in Gauhati
High Court on corruption charges and other serious complaints against him on
corrupt practices. It was further requested that the Government of India should
consider cancelling his appointment as permanent Judge of the Gauhati High
Court till allegations against him were thoroughly inquired.
Srivastava
filed special leave petition against the High Court order, transfer petition
seeking transfer of writ proceedings pending in Gauhati High Court and also
writ petition under Article 32 of the Constitution of India. By an order dated November 20, 1991 this Court withdrew the writ
petition, filed by Kumar Padma Prasad, from the file of the Gauhati High Court
and transferred the same to this Court. This is how the matter is before us.
Mr.
Anil Diwan, learned senior advocate appearing for Kumar Padma Prasad and Shri
Ram Jethmalani, learned Senior Advocate for the State of Mizoram have raised the following points
for our consideration:
1. Srivastava's
appointment as a Judge of Gauhati High Court is violative of Article 217(2) of
the constitution of India as he does not fulfill 126 the
qualifications prescribed therein. Admittedly he has not been an advocate of a
High Court for at least ten years.
The
bio-data of Srivastava before the authorities does not show that he ever held a
judicial office in the territory of India.
2. Srivastava
has produced during the course of arguments, a notification issued by the
Government of Mizoram showing that he was appointed as Assistant to the Deputy
Commissioner Aizawl District during the year 1979 and he worked as such for
about 6/7 months. It is contended by the learned counsel that by virtue of his
appointment as Assistant, in addition to his own duties as Under Secretary, Law
and Judicial, Srivastava did not hold a judicial office as envisaged under
Article 217(2) of the Constitution.
3.
There has been no consultation amongst the constitutional authorities as
required under Article 217(1) of the Constitution of India. It was contended
that the Gauhati High Court Order dated November 20, 1990, the letter from
Chief Minister Mizoram dated October 7, 1991 addressed to the Minister, Law and
Justice and the factum of pendency of vigilance inquiry against Srivastava were
some of the important and relevant material which was not brought of the notice
of the contitutional authorities and as such the process of consultation is
vitiated. Relying on S.P.Gupta and Ors., etc. etc. v. Union of India and Ors.,
etc. etc., [1982] 2 S.C.R 365, It is contended that there has to be "full
and effective consultation" on "full and identical facts". The
same material must be present before the Constitutional functionaries whose
consultation is mandatory under Article 217(1) of the Constitution of India.
We may
notice Article 217(2) of the Constitution of India which lays down the
qualifications for appointment as a Judge of a High Court.
"217(2)
A person shall not be qualified for appointment as a Judge of a High Court
unless he is a citizen of India and- (a) has for at least ten years held a
judicial office in the territory of India; or (b) has for at least ten years
been an advocate of a High Court of two or more such Courts in succession;
127
Explanation - For the purposes of this clause - (a) in computing the period
during which a person has held judicial office in the territory of India, there
shall be included any period, after he has held any judicial office, during
which the person has been an advocate of a High Court or has held the office of
a member of a tribunal or any post, under the Union or a State, requiring
special knowledge of law;
(aa)
................
(b)
................." It is not disputed that Article 217(2)(b) is not
attracted as admittedly Srivastava has not been an advocate of a High Court for
at least 10 years. The question for our consideration is whether he has for at
least 10 years held a judicial office in the territory of India as provided
under Article 217(2)(a) or read with (a) to the explanation therein.
Expression
"Judicial Office" has not been defined under the Constitution,
nevertheless, it has to be given the meaning in the context of the concept of
judiciary as enshrined in the Constitution of India. The constitution seeks to
establish an independent judiciary in the country.
Article
50 of the Constitution gives a mandate that the State shall take steps to
separate the judiciary from the executive in the public services of the State.
Chapter V and VI in Part VI of the Constitution proved for the High Courts and
subordinate courts in the State. The Scheme under the Constitution for
establishing an independent judiciary is very clear. Article 236(b) defines
'judicial service' to mean district Judges and Judges subordinate thereto.
Under Article 234 the Governor of the State makes appointments of persons other
than District Judges to the judicial service in accordance with the Rules made
by him in consultation with the High Court. Article 235 vests control over
district courts and courts subordinate thereto in the High Court. The judicial
service whether at the level of district courts or courts subordinate thereto
is under the control of the High Court in all respects. The subordinate
judiciary which mans the courts subordinate to the district courts consists of
judicial officers who are recruited in consultation with the HIgh Court. The
district judges are recruited for amongst the members of the bar and by
promotion from the 128 subordinate judiciary. The judicial service in a State
is distinct and separate from the other services under the executive. The
members of the judicial service perform exclusively judicial functions and are
responsible for the administration of justice in the State. We may at this
stage refer to the relevant articles of the Constitution which are as under:
"233.
Appointment of district judges. - (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.
(2) A
person not already in the service of the Union
or of the State shall only be eligible to be appointed a district judges if he
has been for not less than seven years an advocate or a pleader and is
recommended by the High Court for appointment.
235.
Control over subordinate courts, - 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 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.
236.
Interpretation. 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 129 judge and other civil
judicial posts inferior to the post of district judge.
In
Chandra Mohan v. State of Uttar Pradesh & Ors., [1967] 1 SCR 77 this Court
had an occasion to construe the above quoted provisions of Chapter VI Part VI
of the Constitution of India. Subha Rao, CJ speaking for the Cour held as
under:
"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 case the
Government, within bounds and gives to it the power of superintedence 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 State the magistracy was
under the direct control of the executive. Indeed it is common knowledge that
in the preindependent 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 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." "...the real conflict rests
on the question whether the Governor can appoint as district judges persons
from services other than 130 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 preindependence
days and that too 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. 223 (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(1)
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 resources 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 the State, and (ii) advocate or pleader. Can it be said that in the context
of Ch. VI of Part VI of the Constitution" the service of the Union or of the State "mean 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
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 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 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 131 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
exclusively 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 judges.".
This
Court has thus authoritatively laid down that the appointment of district
judges under Article 233(2) can only be from the judicial service of the State
as defined under Article 236(b) of the Constitution.
It is
in the above context that we have to interpret the meaning of expression
"judicial office" under Article 217(2)(a) of the Constitution of
India. The High Court Judges are appointed from two source, members of the Bar
and from amongst the persons who have held "judicial office" for not
less than ten years. Even a subordinate judicial officer manning a court
inferior to the District Judge can be appointed as a Judge of a High Court. The
expression "judicial office" in generic sense may include wide
variety of offices which are connected with the administration of justice in
one way or the other. Under the Criminal Procedure Code 1973 powers of judicial
Magistrate can be conferred on any person who holds or has held any office
under the Government. Officers holding various posts under the executive are
often vested with the Magisterial-powers to meet a particular situation. Did
the framers of the constitution had this type of 'offices' in mind when they
provided a source of appointment to the high office of a Judge of High Court
from amongst the holders of a "judicial office". The answer has to be
in the negative. We are of the view that holder of "judicial office"
under Article 217(2)(a) means the person who exercises only judicial 132
functions, determines causes inter-parties and renders decisions in a judicial
capacity. He must belong to the judicial service which as a class is free from
executive- control and is disciplined to uphold the dignity, integrity and
independence of judiciary.
This
Court in Chandra Mohan's case (supra) has held that "Service....of the
State" in Article 233(2) means the judicial service as defined under
Article 236(b) of the Constitution. Therefore, a person - who is holding a
judicial office in th generic sense and is not a member of the judicial service
of the State - is not eligible to be appointed as District Judge. Can such
person be qualified for appointment as a Judge of a High Court? An affirmative
answer will not be in conformity with the scheme of Chapter V and VI of Part VI
of the Constitution and will also go contrary to the ratio in Chandra Mohan's
case. When a person is not eligible to be appointed as a District Judge it
would be mockery of the Constitution to hold that he is eligible to be
appointed as a Judge of a High Court. The constitutional-scheme is clear. Independence of judiciary is the basic feature
of the Constitution. To achieve that objective there has to be separation of
judiciary from the executive. The judicial service under Article 236(b)
consists of District Judges who preside over the District courts and the
Subordinate Judges who man the courts inferior to the District Court.
Subordinate Judges who are member of the judicial service are eligible for
appointment as District Judges. It would be logical and consistent with the
constitutional scheme to read "judicial office" under Article 217(2)(a)
to mean an office within the judicial service of the State. Ordinarily the
District Judges who are superior members of the judicial service are considered
for appointment as Judges of the 'High Court but the constitution-makers wanted
to hold-out a possibility of elevation as a Judge of High Court to the
Subordinate Judges, so as to infuse amongst them a sense of responsibility and
an incentive for maintaining efficiency and it was with that objective that the
expression "judicial office" has been used in Article 217(2)(a) of
the Constitution. In our view the expression "judicial office" in the
said article means an office which is a part of judicial service as defined
under Article 236(b) of the Constitution.
In
Statesman (Private) Ltd. v. H.R. Dev & Ors., [1968]3 SCR 614, the question
before this Court was whether a Sub- Deputy collector vested with the powers of
a first magistrate was a judicial officer in terms of 133 Section 7(3)(d) of
the Industrial Disputes Act. The said section provides that a person shall not
be qualified for appointment as the presiding officer of a labour court unless
he has held any judicial office in India for not less than 7 years. H.R. Deb
was holding office of the Sub-Deputy Collector and was vested with magisterial
powers which he enjoyed for about nineteen years. He was appointed presiding
officer of a labour court. His appointment was challenged on the ground that he
had not held judicial office for 7 years prior to his appointment. Hidayatullah,
C.J. who spoke for the Court held that since a magistrate exercises judicial
functions he holds a judicial office.
Whether
his duties are partly judicial and partly other does not in any way detract
from the position that while acting as a magistrate he is a judicial officer. On
these findings the appointment of H.R Deb as a labour officer was upheld.
While
holding so the learned Chief Justice observed as under:
"Nor
does the argument that magistrates will claim to be appointed Judges of the
High Court need detain us. the scheme of Chapter V of Part VI of the
Constitution has its own affect on the meaning of the expressions 'judicial
office' and 'judicial service'. In any case the use of the same expression in
any other enactment not in pari meteria can have no bearing upon the Industrial
Disputes Act and vice versa. In the Constitution these words must bear the
meaning which the context dictates and in that connection the history of
appointment of Judges cannot be overlooked." It is thus, clear that the
expression "judicial office" under Article 217(2)(a) of the
Constitution has to be interpreted in consonance with the scheme of Chapter V
and VI of Part VI of the Constitution. We, therefore, hold that expression
"judicial office" under Article 217(2))(a) of the Constitution means
a "judicial office" which belongs to the judicial service as defined
under Article 236(b) of the Constitution of India. In order to qualify for
appointment as a Judge of a High Court under Article 217(2)(a) a person must
hold a "judicial office" which must be a part of the judicial service
of the State.
We may
now examine whether Srivastava is qualified for appointment as a Judge of a
High Court on the basis of the offices held by him as 134 detailed in his
bio-data reproduced above. The Constitution of India in clear terms lays down
the qualification for appointment as a Judge of a High Court. The Chief
Minister/Chief Justice selected Srivastava for recommending his name for
appointment as a Judge of Gauhati High Court.
Obviously
on their asking Srivastava submitted his bio-data which we have re-produced
above and which is part of the appointment files maintained in the High Court
and in the Ministry of Law, Government of India. Srivastava mentioned therein
that he belongs to "Mizoram Judicial Service" thereby giving in an
impression that he has had held judicial offices as a member of the judicial
service of Mizoram. This is not a correct representation. Mizoram Judicial
Service Rules, 1986 came into force with effect from November 17, 1986. These Rules were superseded by the
Mizoram Judicial Service Rules, 1989 (1989 Rules) framed under Article 309 read
with Articles 233 and 234 of the Constitution of India in consultation with the
Gauhati High Court. These Rules were enforced with effect from February 17, 1986. Under the 1989 Rules various posts
in different grades were created. Schedule-A to the 1989 Rules which give the
composition of the Service is an under:
SCHEDULE
- A (See rule 2(g) and rule 4) Sl. No. Grade & Post
1.
GRADE I
(a)
SENIOR
1) Legal
Remembrancer-cum-Secy., Law & Judicial.
2)
Registrar, High Court
3)
District & Sessions Judge (b) JUNIOR
4)
Joint Legal Remembrancer cum Jt. Secretary. Law & Judicial
5)
Special Judge 135 II
GRADE
II
1)
Chief Judicial Magistrate
2) Dy.
Legal Remembrancer-Cum-Deputy Secretary, Law & Judicial
3)
Deputy Registrar, High Court
4)
Assistant District & Sessions Judge III
GRADE
III
1) Asstt.
Legal Remembrancer-Cum-Under Secretary, Law & Judicial
2)
President & Recorder, District Council Court, Aizawl.
3)
Sub-Divisional Judicial Magistrate
4)
Assistant Registrar, High Court
5)
Judicial Officer I, District Council Courts, Aizawl and Magistrate Subordinate
District Council Courts in Aizawl and Lunglei Districts.
IV
GRADE IV
1) Munsiffs/Judicial
Magistrates
2)
Magistrate Cum Judicial Officer II, Additional Subordinate District Council
Courts in Aizawl & Lunglei Districts.
3)
Special Officer-Cum-Assistant Draftsman
4)
Translator" Srivastava, according to his bio-data, was appointed legal Remembrancer-Cum-Secretary,
Law & Judicial in 1985 and has been working as such since then. It is on
this basis that he claims to be a member of Mizoram Judicial Service
constituted under the 1989 Rules is a service envisaged under Article 236(b) of
the Constitution of India, we assume it to be so for the purposes of the
present controversy.
Schedule
A to the 1989 Rules enumerates various 'judicial offices' such as District
& Sessions 136 Judge (Grade I), Chief Judicial Magistrate (Grade II), Sub-
Divisional Judicial Magistrate, Judicial officer and Magistrates (Grade III)
and munsiffs/Judicial Magistrates, Magistrate-cum-Judicial officer II (Grade
IV). It is not disputed that Srivastava never held any of these offices.
He,
however, claims that since he has been holding the office of Legal Remembrancer-cum-Secretary
Law & Judicial, he is member of the Mizoram Judicial Service. That may be
so but unless he has held a judicial office in a judicial service he does not
come within the purviews of Article 217(2)(a) of the Constitution. The office
of Legal Remembrancer-cum-Secretary Law and Judicial office under the control
of the executive. In any case the Mizoram Judicial Service came into existence
with effect from February 17, 1986 and even if full benefit of that service is
given to Srivastava for the purposes of Article 217(2)(a) he is not qualified
as the total period counted from February 17,1986 comes to less then ten years
as required under the said Article. Srivastava, his bio-data, under the said
heading 'professional experience', has listed 24 various offices held by him
during the course of his career. A bare look into the list shows that none of
those offices were/are judicial offices even in the generic sense. The office
of D.C.(Judicial) claimed to have been held by Srivastava in the year 1987 is
again of no consequence because even if we assume the said office to be
judicial office in judicial service the period counted from 1987 would not make
the requisite period of ten years under the Constitution. All the other officer
listed in the bio-data are neither judicial nor part of any judicial service.
All those offices were/are under the employment and control of the Executive.
We, therefore, agree with Mr. Anil Diwan and Mr. Ram Jethmalani that assuming
every word of Srivastava's bio- data to be correct he is not qualified for
appointment as a judge of a High Court.
It is
for the first time in the post-independent era that this Court is seized of a
situation where it has to perform the painful duty of determining the
eligibility of a person who has been appointed a Judge of High Court by the
President of India and who is awaiting to enter upon his office. We looked into
the official record and permitted learned counsel for the parties to examine
the same. We are at a loss to understand as to how the bio-data of Srivastava
escaped the scrutiny of the authorities during the process of consultation
under Article 217(1) of the Constitution of India.
137 A
cursory look at the bio-data would have disclosed that Srivastava was not
qualified for appointment as a Judge of the High Court on the admitted facts
which have been on the official files all the time. Needless to say that the
independence, efficiency and integrity of the judiciary can only be maintained
by selecting the best persons in accordance with the procedure provided under
the Constitution. These objectives enshrined under the Constitution of India
cannot be achieved unless the functionaries accountable for making appointments
act with meticulous care and utmost responsibility.
Mr.
Anil Diwan and Mr Ram Jethmalani vehemently argued that in case we come to the
conclusion, as we have, that - on the basis of the bio-data taken into
consideration by the constitutional authorities - Srivastava is not qualified
for appointment as a Judge of a High Court then his appointment be quashed on
the grounds that there has been violation of Article 217(2) of the constitution
and there was total lack of application of mind on the part of the authorities
responsible for making the appointment. We can adopt this course but after
hearing Mr Venugopal, learned senior advocate appearing for Srivastava we
refrain from doing so and intend going into further material placed on record
by Srivastava to show that notwithstanding his bio-data before the authority he
is qualified to be appointed as a Judge of the High Court. We are fully aware
of the delicacy and sensitivity of the matter and the stage at which the matter
has been brought before us for judicial scrutiny. We make it clear that
ordinarily the domain in such matters lies wholly with the constitutional
authorities mentioned in Article 217 of the Constitution, but in exceptional
circumstances like the present, where the incumbent considered for appointment
as a Judge of High Court does not fulfill the qualification as laid down
expressly under the provisions of the Constitution itself, it becomes our
bounded duty to see that no person ineligible or unqualified is appointed to a
high constitutional and august office of a Judge of a High Court. Thus taking
in view the entire facts and circumstances of the case and in order to do full
justice to Srivastava we gave him full opportunity to place any fresh material
before us to justify that he was qualified for appointment as a Judge of a High
Court even though such material had not been brought to the notice of the
constitutional authorities.
During
the course of arguments Srivastava has filed additional affidavit 138 and
placed documents before us, which were not before the authorities, under
Article 217(1) of the Constitution of India. Under Rules 8 and 15 of the Rules
for the regulation of the procedure of officers appointed to administer justice
in the Lushai Hills promulgated on March 25, 1937 (hereinafter called '1937 Rules'). Srivastava
was appointed as Assistant to the Deputy Commissioner Aizawl District by the
Lt. Governor (Administrator) of Mizoram. He was invested under Rule 9 of the
1937 Rules with the powers analogous to the powers of a judicial magistrate of
the First Class as defined in the Code of Criminal Procedures, 1973. In support
of his contention he has produced the notification dated June 23, 1979 which is reproduced hereunder :
"NOTIFICATION"
Dated Aizawl, the 23rd June 1979 No.CS/MZ/APPT/79 : Under rules 8 and 15 of the
Rules for the regulation of the procedure of officers appointed to administer
justice in the Lushai Hills, published vide Notification No.2530(a)A.P. dated
25th March 1937 the Lt.
Governor
(Administrator) of Mizoram is pleased to appoint the following Officers as
Assistant to the Deputy Commissioner, Aizawl District and further to invest
under rule 9 of the aforesaid Rules With the powers analogous to the power of
Judicial Magistrate of the First Class defined in the Code of Criminal
Procedures, 1973 (Act No. 2 of 1974) in addition to their duties.
Name
of Officer Designation
1. Shri
M. Lalmanzuala Secretary Appointment
2. Shri
C, Lalchhuma Secretary, Finance
3. Shri
Khuanga Director, L.A. T.P. & H 4. Shri Lalthamuama
Director, Supply & Tpt.
5. Shri
M. Gasowaimi Under Secy, P.W.D.
6. Shri
S.P.Nag Deputy Director, Fisheries 7. Shri Shushil Kumar Deputy Director, C.D.
8. Shri
K.N. Srivastava Under Secy. Law & Judicial 9. Shri A.K. Ghose Architect
P.W.D.
10.Shri
S.S, Dutta Under Secy. Finance 139 Further in exercise of the powers conferred
by sub- section (1) of section 20 of Code of Criminal Procedure, 1973 (Act 2 of
1974) read with the Notification of the Government of India, Ministry of Home
Affairs No. 11 11/2/74-UTL (iii) (S.O. 185(E) dated the 20th March, 1974 the
Lt. Governor (Administrator) is pleased to appoint the above mentioned officers
as Executive Magistrates also in the Aizawl District.
Sd/-
A.J. Kundan Chief Secy. to Govt. of Mizoram" Rules 1,8,9,10,14,15, and 19
of the 1937 Rules which are relevant for our purposes are reproduced hereunder:
"1.
The administration of the district known as the Lushai Hills is vested in the
Governor of Assam, and the Deputy Commissioner of the Lushai Hills and his
assistants and in the chiefs and headmen of villages.
8.
Criminal justice shall be ordinarily administered by the Deputy Commissioner
and his Assistants.
9. The
Deputy Commissioner shall be competent to pass sentence of death,
transportation or imprisonment up to the maximum amount provided for the
offence, of whipping, and of fine up to any amount provided that all sentences
of death, transportation or imprisonment of seven years and upwards shall be
subject to the confirmation by the Assam High Court.
The
Assam High Court hereinafter referred to as the High Court of Deputy
Commissioner may call for the proceedings of any officer subordinate to him and
may reduce, enhance or cancel any sentence passed or remand the case for
retrial but no offence shall be punished by a sentence exceeding that awardable
under the Indian Penal Code.
Assistant
to the Deputy Commissioner shall exercise such powers as they may be invested
with by the Governor of Assam not exceeding those of a Magistrate of the first
class, as defined in the Criminal Procedure Code.
10. An
appeal shall lie to the Deputy Commissioner against 140 any order passed by any
of his Assistants.
An
appeal shall lie to the High Court for any sentence passed by the Deputy
Commissioner.
In
respect of magisterial decisions of the Commandant of the Assam Rifles, the
Superintendent shall exercise the appellate revisional powers conferred upon
the Court of Sessions or the District Magistrate by the Code of Criminal
Procedure in the case of decisions of the class of Magistrates with the powers of
which the Commandant of Assam Rifles has been invested.
14.
The deputy commissioner and all Magistrates shall keep such registers of
criminal cases and submit such returns as the High Court shall from time to
time prescribe.
RM60
15.
The administration of civil justice in the Lushai Hills is entrusted to the
Deputy Commissioner and his Assistants, who shall take special cognizance of
well established Lushai Customs.
19.
The High Court and the Courts of the Deputy commissioner and his Assistants
shall be guided by the spirit of the Code of Civil Procedures, so far as it is
applicable to the circumstances of the Lushai Hills and consistent with these
Rules.
Mr. Venugopal
contended that the administration of justice both on civil and criminal side
was being manned exclusively by the Deputy Commissioner and his Assistants
under the 1937 Rules. No other courts were functioning.
Apart
from administering criminal and civil justice the total administration of the
district known as the Lushai Hills was vested in the Governer of Assam , the
Deputy Commissioner of Lushai Hill, and his Assistants. The Deputy Commissioner
under the 1937 Rules was competent to pass sentence of death, transportation or
imprisonment up to a maximum provided for the offence and fine up to any
amount.
The
Assistants to the Deputy Commissioner were to exercise such powers as conferred
by the Government not exceeding those of a magistrate of the first class as
defined under the Code of Criminal Procedure. An appeal lies to the Deputy Commissioner
against any order passed by any of his Assistants.
141
Similarly under Rule 15 the administration of civil justice was entrusted to
the Deputy Commissioner and his Assistants.
Srivastava
exercised the powers of Assistant to the Deputy commissioner from June 23, 1979 to December 19,1979.
According
to Mr. Venugopal the office of the Assistant to which Srivastava of about six
months was a judicial office.
According
to him period for which he held the judicial office and the quality of the said
office are not relevant factors. He therefore, forcefully contended that Srivastava,
having held the judicial office of Assistant to the Deputy Commissioner under
the 1937 Rules fulfills the qualification under Article 217(2)(a) read with (a)
to the Explanation According to him all the office held by Srivastava after
relinquishing the office of the Assistant to the Deputy Commissioner required
special knowledge of law and as such whole of that period is liable to be
included for counting 10 years during which he held a judicial office. Srivastava,
according to him, is qualified for appointment as a judge of a High Court.
We
have given our thoughtful consideration to the argument advanced by Mr. Venugopal.
We are not inclined to agree with him.
Srivastava
has been shown at serial at No. 8 in the notification dated June 23, 1979 reproduced above. The post held by
him on that day was that of Under Secretary, Law and Judicial. While holding
the said post he was appointed as Assistant to the Deputy Commissioner in
addition to his own duties. He was further invested with the powers analogous
to the powers of a judicial magistrate. He was also appointed as Executive
Magistrate in the Aizawl District. In the said notification at serial No.9 is
A.K. Ghose who was architect in the Public Works Department of the Government
of Mizoram. Similarly at serial No. 2 is Secretary Finance. Serial No. 4
Director Supply and Transport, Serial No.5 Under Secretary P.W.D and No. 6
Deputy Director Fisheries. The very fact that officers from different
departments were appointed as Assistants in addition to their duties is
significant and clearly goes to show that there was no separate office with a
designation of Assistant to the Deputy Commissioner on which these appointments
were made. Keeping in view the exigency of administration different officers
working with the Government of Mizoram were invested with the powers of
judicial and executive magistrates by appointing them Assistants in addition to
their own duties. It would be 142 travesty of justice if we hold that an
Architect working in the P.W.D. department by virtue of his being vested with
the powers of an Assistant in addition to his own duties comes to hold a
"judicial office" in term of Article 217(2)(a) of the Constitution of
India. There was no separation of judiciary from the executive under the 1937
Rules and the total administration of the area including administration of
justice was being done by the officers who were under the control of the
executive. There was no judicial service as envisaged by article 236(b) of the
Constitution of India and as such an Assistant to the Deputy Commissioner could
not be a judicial officer in terms of Article 217(2)(a) of the Constitution of
India. There is no material before us to show that there was a regular cadre of
Assistants at the relevant time. From the notification reproduced above it is
obvious that the posts of Assistants to the Deputy Commissioner were not
separately created and only officers working in various Government Departments
were invested with the powers under the 1937 Rules in addition to their own
duties. We have further no material before us to show that Srivastava in fact
presided over any court and conducted any trial or decided any civil cases
during the said period of six months. Rather there is an affidavit filed by
Under Secretary, Law, Judicial and Parliamentary Affairs Department Government
of Mizoram affirming that no post of Assistant to Deputy Commissioner was
created during the relevant period. It is further stated in the said affidavit
that Srivastava did not deal with or decide any case (civil or criminal) during
that period.
Mr.
Anil Diwan relying on Smt. Kanta Kathuria v. Manak Chand Surana, [1969] 3 SCC
268 has contended that the judicial office under Article 217(1)(a) of the
Constitution of India has to be an office which is subsisting permanent,
substantive and which has an independent existence from the person who fills
it. In Smt. Kanta Kathuria Case (supra) Sikri, J. (as he then was) who
delivered the majority judgment referred to with approval the definition of
word "office" given by Rowlatt, J. in Great Western Railway Company
v. Bater 8 Tax Cases 231 which is in the following terms:
"Now
it is argued, and to my mind argued most forcibly, that shows that what those
who use the language of the Act of 1842 meant, when they spoke of an office or
employment, was an office or employment which was an office or employment which
was a subsisting, permanent, 143 Substantive position which had an existence
independent from the person who filled it, which went on and was filled in
succession by successive holders; and if you merely had a man who was engaged
on whatever terms, to do duties which were assigned to him, his employment to
do those duties did not create an office to which those duties were attached.
He merely was employed to do certain things and that is an end of it; and if
there was no office or employment existing in the case as a thing, the
so-called office or employment was merely an aggregate of the activities of the
particular man for the time being. And I think myself that that is sound. I am
not going to decide that, because I think I ought not to in the state of the
authorities, but my own view is that the people in 1842 who use this language
meant by an office a substantive thing that existed apart from the
holder." The Word "office" has various meanings and we have to
see which is appropriate meaning to be ascribed to this word in the context it
appears in the Constitution. We are of the view that the framers of the
Constitution did not and could not have meant by a "judicial office"
which did not exist independently and the duties or part of the duties of which
could be conferred on any person whether trained or not in the administration of
justice. The word "Judicial office" under Article 217(2)(a) in our
view means a subsisting office with a substantive position which has an
existence independent from its holder.
We
have already held that "judicial office" in Article 217(2)(a) means
an office as a part of the judicial service as defined under Article 236(b) of
the Constitution of India. The office of the Assistant to Deputy Commissioner
held by Srivastava for a period of about six months under the notification
reproduced above, was neither a judicial office nor was it part of a judicial
service as defined under Article 236(b) of the Constitution of India. We,
therefore, accept the second contention advanced by Mr. Anil Diwan and Ram Jethmalani
and hold that Srivastava was not qualified for appointment as a Judge of a High
Court under Article 217(2)(a) of the Constitution of India.
Before
parting with the point under discussion we may notice 144 another argument
advanced by Mr. Venugopal. He contended that there being no separation of judiciary
in Mizoram and justice civil and criminal being solely administered by the
executive officers under the 1937 Rules they are judicial officers within the
ambit of Article 217(2)(a) of the Constitution of India. We do not agree.
Before independence the district judges were appointed by the the Governor from
three sources, namely, (1) the Indian Civil Service, (2) the Provincial
Judicial Service and (3) the Bar After independence recruitment to the Indian
Civil Service was discontinued and the officers of the India Administrative
Service which substituted the Indian Civil Service were not to be given
judicial posts. The district judges have been recruited only from two sources(1)
bar and (2) judicial service. There has been no case of a member of the executive
having been promoted as a district judge. The independence of judiciary is part
of the basic structure of the Constitution. The Directive Principles give a
mandate that the State shall take steps to separate the judiciary from the
executive which means that there shall be a separate judicial service free from
the executive control.
The
constitution-scheme, therefore, only permit members of the judicial service as
constituted in terms of Article 236(b) of the Constitution to be considered for
the post of district judge and that of the High Court Judge. It would be useful
to refer to Article 237 of the Constitution of India :
"237.
Application of the provisions of this Chapter to certain class or classes of
magistrate.
The
Governor may by public notification direct that the foregoing provisions of
this Chapter and any rules made thereunder 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 to the
judicial service of the State subject to such exceptions and modifications as
may be specified in the notification." In Chandra Mohan's case (supra) Subba
Rao, CJ interpreted Article 237 in the following terms :
"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
this 145 Constitution will apply to magistrates subject to certain modification
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 constitution theme of
independent judiciary and the contrary view accepts a retrograde step." It
is thus obvious that the Magistrates who are not appointed to the judicial
service of the State can be brought into the judicial service by way of a
notification under Article 237 of the Constitution Of India. Till the time
there is separation of judiciary or a notification under Article 237 of the
Constitution of India is issued there is no question of considering the
executive officers or even Magistrates for appointment to the post of District
Judge or a High Court Judge even though the executive officers or Magistrates
concerned have the adornment of a judicial office. We, therefore, reject the
contention of Mr. Venugopal.
The
view we have taken on the first and the second points, the very interesting and
learned discussion on the third point need not detain us and we express no
opinion about it.
We
allow transferred writ petition of Kumar Padma Prasad and declare that K.N. Srivastava,
on the date of issue of warrant by the president of India, was not qualified to be appointed
as a Judge of the High Court. As a consequence, we quash his appointment as a
judge of the Gauhati High Court. We direct the Union of India and other
respondents present before us not to administer oath or affirmation under
Article 219 of the Constitution of India to K.N. Srivastava. We further
restrain K.N. Srivastava from making and subscribing an oath or affirmation in
terms of Article 219 of the Constitution of India and assuming office of the
Judge 146 of the High Court. We direct the Registry to send a copy of this
judgment to the President of India for his consideration and necessary action
in terms of our judgment.
There
shall be no order as to costs.
R.P.
Petition allowed.
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