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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

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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.

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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:

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"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.

147