1992 (3) TMI 345 - SC - Indian Laws

Summary

Issues Involved:
1. Qualification of K.N. Srivastava for appointment as a Judge of Gauhati High Court.
2. Whether the mandatory process of consultation under the Constitution was followed.
3. The validity of Srivastava's claim of holding a judicial office.

Summary:

1. Qualification of K.N. Srivastava for appointment as a Judge of Gauhati High Court:

The Supreme Court examined whether K.N. Srivastava fulfilled the qualifications prescribed u/s 217(2) of the Constitution of India for appointment as a Judge of the High Court. The Court noted that Srivastava had not been an advocate of a High Court for at least ten years, which is a requirement under Article 217(2)(b). The Court further scrutinized whether Srivastava held a "judicial office" for at least ten years as stipulated in Article 217(2)(a). The Court interpreted "judicial office" to mean an office within the judicial service as defined under Article 236(b) of the Constitution, which Srivastava did not hold. The Court concluded that Srivastava was not qualified for the appointment as he did not meet the ten-year requirement of holding a judicial office.

2. Whether the mandatory process of consultation under the Constitution was followed:

The Court examined the process of consultation required under Article 217(1) of the Constitution. It was argued that the Gauhati High Court Order dated November 20, 1990, the letter from the Chief Minister of Mizoram dated October 7, 1991, and the pendency of a vigilance inquiry against Srivastava were not brought to the notice of the constitutional authorities. The Court emphasized that the consultation must be "full and effective" on "full and identical facts" as per the precedent set in S.P. Gupta v. Union of India. The Court found that there was a lack of application of mind and that relevant material was not considered during the consultation process.

3. The validity of Srivastava's claim of holding a judicial office:

Srivastava argued that he held the position of Assistant to the Deputy Commissioner, which he claimed was a judicial office. The Court examined the notification dated June 23, 1979, which appointed Srivastava and others to this position in addition to their existing duties. The Court noted that these appointments were administrative and not part of a judicial service. The Court held that the office of Assistant to the Deputy Commissioner was neither a judicial office nor part of a judicial service as defined under Article 236(b) of the Constitution. Therefore, Srivastava did not fulfill the requirement of holding a judicial office for ten years.

Conclusion:

The Supreme Court allowed the writ petition, declaring that K.N. Srivastava was not qualified to be appointed as a Judge of the High Court on the date of the issuance of the warrant by the President of India. Consequently, the Court quashed his appointment and directed the Union of India and other respondents not to administer the oath or affirmation to Srivastava under Article 219 of the Constitution. The Court also restrained Srivastava from assuming office as a Judge of the High Court and directed the Registry to send a copy of the judgment to the President of India for necessary action.