Full Judgment Text
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PETITIONER:
KUMAR PADMA PRASAD
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT10/03/1992
BENCH:
KULDIP SINGH (J)
BENCH:
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.
HEADNOTE:
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
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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
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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
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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
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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]
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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]
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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
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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]
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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)
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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.
JUDGMENT:
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.
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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
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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
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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,
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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
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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
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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
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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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