Report No. 32
27. Prem Nath's Case.-
We had the opportunity of considering a judgment of the Supreme Court which was pronounced after we undertook the preparation of this Report. In that case,1 the appeal, by certificate, raised two questions, namely, (1) whether the Rajasthan Higher Judicial Service Rules, 1955 were ultra wires Article 233 of the Constitution, and, therefore, the selections made by the Selection Committee appointed thereunder and appointments made on the basis of such selections were invalid, and, (2) if so, whether the appointments were validated by the Constitution (Twentieth Amendment) Act, 1966.
The appointments in question were to the posts of Civil and Additional Sessions Judges. By a notification dated 2nd June, 1950, the Government of Rajasthan appointed, (with effect from July 1, 1950), Civil Judges by virtue of their office to be Additional Sessions Judges to exercise jurisdiction, in the Courts of session mentioned in column 2 of the notification. The point (so far as is relevant to the present subject), which the Supreme Court had to consider was, whether, when a person is appointed both as a Civil Judge and as an Additional Sessions Judge, the appointment falls under Article 233. The Supreme Court answered the question in the affirmative, and the points made in the judgment may be thus summarised.
(1) When a Civil Judge is also appointed an Additional Sessions Judge or when a person is appointed both as a Civil Judge and as an Additional Sessions Judge, the appointment to the post of Additional Sessions Judge is under section 9, Code of Criminal Procedure. Such a Civil Judge exercises the powers of an Additional Sessions Judge, not because he is a Civil Judge, but because he is appointed as an Additional Sessions Judge under section 9 of the Code of Criminal Procedure, 1898.
(2) From the fact that, when such an appointment is made, the appointee exercises both the powers of a Civil Judge and those of an Additional Sessions Judge, it does not follow that he is not an Additional Sessions Judge or that he is (only) a Civil Judge.
(3) Since the post of an Additional Sessions Judge falls under the definition of a "District Judge" under Article 236(a) it will be Article 233 of the Constitution that would apply, and not Article 234.
(4) Since the appointments in question were made in contravention of Article 233, and were, therefore, illegal, they must be held to have been validated by the Constitution (Twentieth Amendment) Act, 1966.
To put it more briefly, in so far as a Civil Judge is also appointed as an Additional Sessions Judge, the appointment must comply with Article 233.
1. Prem Nath v. State of Rajasthan, Civil Appeal No. 93 of 1966, decided 15th March, 1967 (SC).