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