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TMI Blog1966 (8) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding 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- 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 se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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 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 constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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. 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 purs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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