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TMI Blog1992 (3) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... endation 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 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 : Mizora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise forbear from giving effect to the impugned selection of Srivastava. 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, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical experience even for a day as a Magistrate or as an advocate, and against whom three misappropriation cases are pending in the High Court, (Aizawl Bench) and whose integrity is seriously being questioned, is considered to be qualified for appointment as a Judge of Gauhati High Court in the near future. This Bar Association vehemently urge the concerned authorities to reconsider or review the matter. Shri Lal Thanhawla, Chief Minister Mizoram, by his letter dated October 7, 1991 addressed to Shri K. Vijaya Bhaskara Reddy, Minister of Law, Justice and Company Affairs, Government of India, New Delhi stated as under: We had recommended Shri K.N. Srivastava, Secretary, Law and Judicial, Government of Mizoram for being considered for appointment as a Judge of the Gauhati High Court. Subsequent to our recommendation it has been reported that a vigilance case has been instituted against Shri Srivastava by the Aizawl Bench of the Gauhati High Court in regard to alleged anomalies in the procurement of law books, journals etc. for the Aizawl Bench's library. We understand that the case is pending with the Gauhati High Court. I have, therefore, thought it desirable to bring thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he territory of India. 2. Srivastava has produced during the course of arguments, a notification issued by the Government of Mizoram showing that he was appointed as Assistant to the Deputy Commissioner Aizawl District during the year 1979 and he worked as such for about 6/7 months. It is contended by the learned counsel that by virtue of his appointment as Assistant, in addition to his own duties as Under Secretary, Law and Judicial, Srivastava did not hold a judicial office as envisaged under Article 217(2) of the Constitution. 3. There has been no consultation amongst the constitutional authorities as required under Article 217(1) of the Constitution of India. It was contended that the Gauhati High Court Order dated November 20, 1990, the letter from Chief Minister Mizoram dated October 7, 1991 addressed to the Minister, Law and Justice and the factum of pendency of vigilance inquiry against Srivastava were some of the important and relevant material which was not brought of the notice of the contitutional authorities and as such the process of consultation is vitiated. Relying on S.P.Gupta and Ors., etc. etc. v. Union of India and Ors., etc. etc., [1982] 2 S.C.R 365, It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judicial service in accordance with the Rules made by him in consultation with the High Court. Article 235 vests control over district courts and courts subordinate thereto in the High Court. The judicial service whether at the level of district courts or courts subordinate thereto is under the control of the High Court in all respects. The subordinate judiciary which mans the courts subordinate to the district courts consists of judicial officers who are recruited in consultation with the High Court. The district judges are recruited for amongst the members of the bar and by promotion from the 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 juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontact 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependence 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter 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 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 regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. Similarly under Rule 15 the administration of civil justice was entrusted to the Deputy Commissioner and his Assistants. Srivastava exercised the powers of Assistant to the Deputy commissioner from June 23, 1979 to December 19,1979. According to Mr. Venugopal the office of the Assistant to which Srivastava of about six months was a judicial office. According to him period for which he held the judicial office and the quality of the said office are not relevant factors. He therefore, forcefully contended that Srivastava, having held the judicial office of Assistant to the Deputy Commissioner under the 1937 Rules fulfills the qualification under Article 217(2)(a) read with (a) to the Explanation According to him all the office held by Srivastava after relinquishing the office of the Assistant to the Deputy Commissioner required special knowledge of law and as such whole of that period is liable to be included for counting 10 years during which he held a judicial office. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts of Assistants to the Deputy Commissioner were not separately created and only officers working in various Government Departments were invested with the powers under the 1937 Rules in addition to their own duties. We have further no material before us to show that Srivastava in fact presided over any court and conducted any trial or decided any civil cases during the said period of six months. Rather there is an affidavit filed by Under Secretary, Law, Judicial and Parliamentary Affairs Department Government of Mizoram affirming that no post of Assistant to Deputy Commissioner was created during the relevant period. It is further stated in the said affidavit that Srivastava did not deal with or decide any case (civil or criminal) during that period. Mr. Anil Diwan relying on Smt. Kanta Kathuria v. Manak Chand Surana, [1969] 3 SCC 268 has contended that the judicial office under Article 217(1)(a) of the Constitution of India has to be an office which is subsisting permanent, substantive and which has an independent existence from the person who fills it. In Smt. Kanta Kathuria Case (supra) Sikri, J. (as he then was) who delivered the majority judgment referred to with appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept 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 another argument advanced by Mr. Venugopal. He contended that there being no separation of judiciary in Mizoram and justice civil and criminal being solely administered by the executive officers under the 1937 Rules they are judicial officers within the ambit of Article 217(2)(a) of the Constitution of India. We do not agree. Before independence the district judges were appointed by the the Governor from three sources, namely, (1) the Indian Civil Service, (2) the Provincial Judicial Service and (3) the Bar After independence recruitment to the Indian Civil Service was discontinued and the officers of the India Administrative Service which substituted the Indian Civil Service were not to be given judicial posts. The district judges have been recruited only from two sources(1) bar and (2) judicial service. There has been no case of a member of the executive having been promoted as a district judge. The independ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Article 237 of the Constitution Of India. Till the time there is separation of judiciary or a notification under Article 237 of the Constitution of India is issued there is no question of considering the executive officers or even Magistrates for appointment to the post of District Judge or a High Court Judge even though the executive officers or Magistrates concerned have the adornment of a judicial office. We, therefore, reject the contention of Mr. Venugopal. The view we have taken on the first and the second points, the very interesting and learned discussion on the third point need not detain us and we express no opinion about it. We allow transferred writ petition of Kumar Padma Prasad and declare that K.N. Srivastava, on the date of issue of warrant by the president of India, was not qualified to be appointed as a Judge of the High Court. As a consequence, we quash his appointment as a judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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