# [1967] 1 S.C.R. 77

- **Citation:** [1967] 1 S.C.R. 77
- **Court:** Supreme Court of India
- **Decided:** 1966-08-08
- **Bench:** K. Subba Rao, M. Hidayatullah, S. M. S!Kri, V. Ramaswami, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-1-s-c-r-77-3914
- **Pages:** 16

## Headnote

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Constitution of India, 1950, Art" 233 to 237-Scope of-"Service of
the Ul'liOn or of the State"-!/ includes any service or only Judicial Se,--
vice.
Constitution of India, 1950, Arts. 132 and 133-Appea/ filed against
all respo.ndents-Leave to appeal against some respondents not granted by
High Court, but certificate misleading-G-rant of special leave by Suprenie
Court.
The pro<:edure for recruiting district judges in the State of U.P. was
pr~ribed by the U.P. Higher Judicial Service Rules made by the Governor under Art. 309 of the Constitution.
Under the Rules, the Governor
decides on the number of candidates to be selected, prescribes the qualifications of the candidates, the High Court calls tor applications, the
Selection Committee constituted under the. Rules screens the applications,
gives interviews only to those persons who it thinks have the neccsaary
qualifications and selects
from
among them
suitable pe·rsons for appointment, and sends two lists to the High Court-a main and a
supplementary list-the High Court submits to the Governor the names of
candidates considered suitable from the lists, and thereafter, the Governor
makes the appointments from the said lists.
In 1961-62, the Registrar
of the Allahabad High Court called for applications for recruitment to
the cadre of the district judges from the members
of the Bar of moro
than 7 years' standing and from
"judicial officers" \vho
were members
of the executive department discharging some revenue and magisterial
duties.
The rule> empowered the recruitment of district j"dg"" from
such "judicial officers''. The Selection Committee selected 6 candidates--
3 from the Bar and 3 from the "judicial offieers"-and sent their names
to the High Court. The Registrar of the High Court sent a cony of
the report of the Committee to the Government mentioning that t.h~ High
Court had approved the selection of the said candidate3. The appellant,
a member of the U.P. Civil Services (Judicial Branch) and others filed
petition in the High Court for the issue of an appropriate writ directing
the Government
not to make· the appointments pursuant
to the
said
selectio~. The petitions were
dismissed.
On the application
for leave
to appeal to thi• Court, the High Court observed that the case of the
Advocates did not raise any substantial question of law as
to the interpretation of the Constitution or any question of public importance, ~ut
that the case of the "Judicial Officers" raised such questions.
The High
Court, however, issued a certificate in general terms that _the case '"a~ a
fit one for appeal to the Supreme Court.
In appeal to this Court it \Vas contended by the "Advocate-recruits"
that in view of the order on the application for leave, the appellant
could not canvass
the correctness of the judgment of the
High Court
in so far as it related to them; and the appellant contended that:
(i)
while under Art. 233(1) of the Constitution the Governor has to make
the appointrne~ts in consultation with the High Court concerned, under
SUPREME COURT REPORTS
(1967] 1 s.c.a.
the Rules he has to consult the Selection Committee constituted there·
under, and therefore, the appointments made in consuJtation with two
aUthorities instead of one as provided by the Constitution
v.•ere illegal;
that as a maller of fact, under the Rules, the High Court was only a
traμsmitting authority while the Selection Committee was made the real
consultative body; and (ii) the Governor had no power to appoint dis·
triCt judges from the "judicial officers" as they were not members of the
judicial service.
HELD: (i) The case was a fit one for granting special leave to the
appellant to appeal to this Court e\·en in so far as it related to the
"advocate-recruits" after excusing the delay in filing the appeal.
The arpellant was misled by the certificate issued by the High Court
in genera terms as it appeared. to cover the entire case.
If he went
wrong in not scrutiniSing the order granting leave closely, the adv

## Text

_Characters 0–39,907 of 46,201. This is a partial read: ask again with offset=39907 for what follows._

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CHANDRA MOHAN
l'.
STATE OF UTIAR PRADESH & ORS.
August 8, 1966.
B
(K. SUBBA RAO, C. J., M. HIDAYATULLAH, S. M. S!KRI,
V. RAMASWAMI AND J. M. SHELAT, JJ.)
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Constitution of India, 1950, Art" 233 to 237-Scope of-"Service of
the Ul'liOn or of the State"-!/ includes any service or only Judicial Se,--
vice.
Constitution of India, 1950, Arts. 132 and 133-Appea/ filed against
all respo.ndents-Leave to appeal against some respondents not granted by
High Court, but certificate misleading-G-rant of special leave by Suprenie
Court.
The pro<:edure for recruiting district judges in the State of U.P. was
pr~ribed by the U.P. Higher Judicial Service Rules made by the Governor under Art. 309 of the Constitution.
Under the Rules, the Governor
decides on the number of candidates to be selected, prescribes the qualifications of the candidates, the High Court calls tor applications, the
Selection Committee constituted under the. Rules screens the applications,
gives interviews only to those persons who it thinks have the neccsaary
qualifications and selects
from
among them
suitable pe·rsons for appointment, and sends two lists to the High Court-a main and a
supplementary list-the High Court submits to the Governor the names of
candidates considered suitable from the lists, and thereafter, the Governor
makes the appointments from the said lists.
In 1961-62, the Registrar
of the Allahabad High Court called for applications for recruitment to
the cadre of the district judges from the members
of the Bar of moro
than 7 years' standing and from
"judicial officers" \vho
were members
of the executive department discharging some revenue and magisterial
duties.
The rule> empowered the recruitment of district j"dg"" from
such "judicial officers''. The Selection Committee selected 6 candidates--
3 from the Bar and 3 from the "judicial offieers"-and sent their names
to the High Court. The Registrar of the High Court sent a cony of
the report of the Committee to the Government mentioning that t.h~ High
Court had approved the selection of the said candidate3. The appellant,
a member of the U.P. Civil Services (Judicial Branch) and others filed
petition in the High Court for the issue of an appropriate writ directing
the Government
not to make· the appointments pursuant
to the
said
selectio~. The petitions were
dismissed.
On the application
for leave
to appeal to thi• Court, the High Court observed that the case of the
Advocates did not raise any substantial question of law as
to the interpretation of the Constitution or any question of public importance, ~ut
that the case of the "Judicial Officers" raised such questions.
The High
Court, however, issued a certificate in general terms that _the case '"a~ a
fit one for appeal to the Supreme Court.
In appeal to this Court it \Vas contended by the "Advocate-recruits"
that in view of the order on the application for leave, the appellant
could not canvass
the correctness of the judgment of the
High Court
in so far as it related to them; and the appellant contended that:
(i)
while under Art. 233(1) of the Constitution the Governor has to make
the appointrne~ts in consultation with the High Court concerned, under
SUPREME COURT REPORTS
(1967] 1 s.c.a.
the Rules he has to consult the Selection Committee constituted there·
under, and therefore, the appointments made in consuJtation with two
aUthorities instead of one as provided by the Constitution
v.•ere illegal;
that as a maller of fact, under the Rules, the High Court was only a
traμsmitting authority while the Selection Committee was made the real
consultative body; and (ii) the Governor had no power to appoint dis·
triCt judges from the "judicial officers" as they were not members of the
judicial service.
HELD: (i) The case was a fit one for granting special leave to the
appellant to appeal to this Court e\·en in so far as it related to the
"advocate-recruits" after excusing the delay in filing the appeal.
The arpellant was misled by the certificate issued by the High Court
in genera terms as it appeared. to cover the entire case.
If he went
wrong in not scrutiniSing the order granting leave closely, the advocaterespondents were equally negligent in not getting the certificate amend·
ed. [82 BJ
(ii) The Rules contravene the constitutional mandates of An. 233(1)
and (2) and therefore the Rules as well as the appointments made thereunder were illegal,
Under Art. 233(1) the Governor can appoint a person to the post
of a district judge from the services only In consultation with the High
Court.
This mandaie can be disobeyed by not consulting the High
Court; and also, by consulting the High Court and other persons, be·
cause, his mind may be influenced by those other persons who are not
entitled to advise him.
Jn the present case the Rules say that the Qov ..
crnor can appoint a district judge in consultation with the Selection Com·
mittec subject to a kind of veto by the High Court which may be accept.
ed or ignored by the Governor. The High Coun is practically reduced
to the position of a transmitting authority of the lists.
The only discretion left to it is to refuse to recommend all or some of the persons in
the lists, but it cannot scrutinise the other applications which were screened by the Committee or recommend for appointment per;ons not found
in the lists.
In the case of the
0 Advocate-recruits", the Governor can
only appoint those recommtndei by the High Court under Art. 233(2).
But under the Rules, the High Court can either endorse the recommendations
of the Committee or merely create a deadlock. j83 A -D; 85 F; 86 CJ
Even if it was open to the Governor to make a pro\ision under
Art. 309 for consultation with bodies other th"an the High Court, he
cannot avoid consultation with the Hi)zh Court directly or indirectly, and
under the Rules, the consultation with the High Court is an empty
formality and travesty of the constitutional provision.
The Governor
in effect and substance does neither consults the High Court nor acts on
ib recommendations but only consults the Committee or acts on its
recommendations. [86 D-F]
(iii) The Ru!.,. framed by the Governor empowering him to recruit
district judges from the "judicial officers"
are ako unconstitutional and,
the recruitment of the "Judicial officer.respondents" was had.
The (ndian Constitution p-rovides
for
an
f"ndeoendent judiciarV
in
the States, and in order to place the independence of the subordinate
judiciary beyond quec;tion, orovidec; in Art. 50 of the Direcl;ve Princintes
for the ~eparation of the iuc!.!ciarv from the executive and secure! ~uch
Independence by enacting Arts. 233 to 237 in Chapter VI of the Con•ti·
totfon.
Under these Articles
the appointment of the district judges
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CHANDRA MOHAN V. U.P, STATB
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in· any State shall be made by the Governor of the State, and the two
sources of recruitment are : ·(i) service of the Union or of the
State and (ii) members of the Bar.
The words "service of the Onion
or of the State" do not mean any service of the Union or of the State
but the judicial service of
the Union or of the State,
for the entiro
Chapter VI is only dealing with judicial service.
Judicial service i•
defined in Art. 236(b) to mean a service consisting exclusively of persons intended to fill the post of the district judge and other civil posts inferior to the post of district judge. The definition is exhaustive of the
service because the expressio~ "excl~sively" and "intended". emphasise
the fact that the judicial service consists only of persons intended to fill the
posts of district judge9 and other civil judicial po>ts, and that judicial
service is the exclusive service of judicial officers. In the case of appointment of persons to the judicial
service, ·other than as district judges,
they will be made by the Governor in accordance with rules ·framed by
him in consultation with the High Court and the Public Sen·ice Commission, But the High Court has control over all the district courts and
courts subordinate thereto, subject to certain prescribed limitations. Havin.g defined "judicial service" in exclusive terms, having provided for
appo,intment to that service and having entrusted the control of the
service to the care of the High Court, the makers of .the Constitution
would not have conferred a blanket power on the Governor to appoint
any person from any service as a district judge. [89 B, E-90 D; 91 AJ
Under Art. 237,
the Governor may notify
that Arts. 233 to 236
will apply to magistrates subject to certain modifications or exceptions,
and they will then be integrated in the judicial service which is one
of the sources of recruitment to the pO'St of district judges. The article
emphasises lbe fact that till such an integration is brought about, the
magistrates are outside the scope of Arts. 233 to 236. [91 B-DJ
Moreover., the posts of district and Sessions judges were originally
filled by persons from the Indian Civil Service. In 1922, the GovernorGeneral in Council issued a notification empowering the local Government
to mak eappointments also from members of the Provincial Civil Service
(Judicial Branch) or from the members of the Bar.
Under the Government of India Act, 1935, and the Rule9 thereunder, the Go\·ernor was
given the power to appoint IQ a district judge's post a member of the Indian Civil Service or a member of the judicial service -of the province or a
member of the Bar, bui the rules did not empower him to appoint to the
reserved post- of a district judl!I' a person belon(!ing to a service othor
than the judicial service.
Aft11r India attained mdependence in 1947,
the recruitment to the I. C. S. was discontinued and district judges have
been recruited only from either the judicial service or from
the Bar.
There was no case of a member of the executive having been promoted
as a district judge.
If that was the factual position at the commencement of the Constitution, it is unreasonable
to attribute to its maken,
who had so carefully provided for the independence of the judiciary, an
intention to destroy it by an indirect method, for, nothing could be more
deleterious to the good name of the judiciary than to permit, at the level
of district judge9, recruitment from the executive departments. [91E-92BJ
CIVIL APPELLATE JURISDICDON·: Civil Appeals Nos. 1136 and
1638 of 1966.
Appeals by certificate/Special Leave from the Judgment and
Order dated February 21, 1966 of the Allahabad High Co11rt in
W. P. No. 526 of 1965.
80
SUPUMB COUl.T llEPOl.TS
(1967) I S.C.ll.
R. K. Garg, S. C. Agarwala, M. K. Ramamurthi and D. P.
SinKh, for the appellant (in both the appeals).
C. K. Daphtary, Attorney-General and 0. P. Rana, for the
respondent No. I (in both the appeals).
Bishan Narain and B. P. Maheshwari, for the respondents Nos.
2-4 (in both the appeals).
J. P. Goyal, for respondent No. 5 (in both the appeals).
0. P. Verma, for respondent No. 6 (in both the appeals).
Naunit Lal, for the intervener (in C. A. No. 1136 of 1966).
The Judgment of the Court was delivered by
Sabba Rao, C.J. These appeals-the former by certificate
and the latter by special leave-raise the question of the scope of
the field of recruitment to the cadre of District Judges.
The facts may be briefly stated. During the years 1961 and
1962, the Registrar of the Allahabad High Court called for applications for recruitment to ten vacancies
in the Uttar Pradesh
Higher Judicial Service from Barristers, Advocates, Vakils and
Pleaders of more than seven years' standing and from "judicial
officers"
The expression "judicial officers" is a euphemism for
the members of the Executive department who discharge some
revenue and magisterial duties. The Selection Committee constituted under the U.P. Higher Judicial Service Rules, hereinafter
called the Rules, in accordance with the provisions of the said
Rules, selected six candidates from the said applicants as persons
suitable for appointment to the said service.
Respondents 2 to
7 are the candidates so selected by the said Committee.
Respondents 2, 3 and 4 were Advocates and respondents 5, 6 and 7
were "judicial officers". The Selection Committee sent
two
lists, one comprising the names of the three Advocates and the
other comprising the names of the three "judicial officers" to the High
Court. On ~ptember 4, 1964, th~ Registrar of the Allahabad
High Court sent a copy of the report of the. Selection Committee
to the Secretary to the Government, Uttar Pradesh, Lucknoy..,
wherein he mentioned that the Court had approved of the selection
of the said candidates. Thereafter, the appellant, who belongs to
the U.P. Civil Services (Judicial Branch) and who was at that time
acting as a District Judge, and others, who were similarly situated
as the appellant, filed petitions in the High Court at Allahabad
under Art. 226 of the Constitution for an appropriate writ directing
the Government not to make the appointments to the U.P. Higher
Judicial Service pursuant to the said selection.
The said petitions were heard by a Division Bench of the
Allahabad High Court. The learned Judges, Mathur and Takru,
JJ. agreed on all points except on one: while they agreed that the
selection from the Bar was good, J. N. Takru, J. expressed 'the
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view that,. as no notification was issued under Art. 237 of the
Constitution, the selection from the cadre of ''Judicial Officers"
was bad. The question on which there was difference of opinion
was referred to Oak, J., and the said learned Judge agreed with
the view of Mathur, J. that the recruitment from both the sources
was good, with the result the writ petitions were dismissed. The
appellant filed an application before the High Court for a
certificate of fitness to appeal to this Court. The learned Judges,
in the course of their order, observed that in regard to the case of
the Advocates as well as of the "Judicial Officers" no certificate
could be granted under Art. 133(1) (a) of the Constitution inasmuch as no money value could be given to the subject-matter of
the dispute, that the certificate could be issued only under Art. 132(1)
or Art. 133(1) (c) of the Constitution if the terms of the said articles
were complied with, that the case of the Advocates did not raise
any substantial question of law as to the interpretation of the
Constitution or any question of public importance .as to attract
either of the said two articles and that the case of the judicial
officers rais.ed such a question as to attract the said provisions.
Having made those observations, the court allowed the applicatiori
and gave the requisite certificate under Art. 132(1) and Art. 133(1)(c)
of the Constitution. Pursuant to that order the High Court issued
a certificate in general terms, which reads:
"It is certified that the case is a fit one for appeal under
Articles 132 (1) and 133(1)(c) of the Constitution of
India."
Pursuant to that certificate, on March 4, 1966, the appellant filed
a petition to appeal in this Court impleading all the six candidates
belonging to both the groups as respondents. Subsequently,
on March 10, 1966, he filed another petition in this Court alleging
that the High Court had no jurisdiction to restrict the scope of
the certificate and that the appellant would be entitled to canvass
all the grounds agitated before the High Court; alternatively, he
prayed that lie 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, contended that there was no appeal before this Court in so far as the
order of the High Court related to the Advocates and that, therefore, the appellant could not canvass the correctness of the order
in so far as it related to them.
There is justification for this contention; but we are satisfied
that the appellant was misled by the certificate issued by the High
Court in general terms. · If the certificate alone was looked into,
it would appear that it covered the entire case that. was before
the High Court. But if it was read along with the order .passed
by the High Court in the application for certificate, it would support
the argument that the High Court intended only to restrict the
82
SUPREME
COURT
RJ!PORTS
(1967) I S.C.R.
certificate to that part of the case relating to the "judicial .officers".
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But so long a8 the certificate remained as it was framed, the appellant
was certainly justified.in assuming that the certificate covered the
entire case. If the appellant went wrong in not scrutinising the
order closely to appreciate. the scope of the certificate, the respondents were equally negligent in not getting the certificate amended
so as to bring it in~nformity with the order. In the said circumsB
tances, we give special leave to the appellant to appeal to this Court
against the order of the High Court in so far as it related to the
Advocates, after excusing the delay in filirtg .the same.
The arguments of the learned counsel for the appellant may
be placed conveniently under the followfog five heads:{!) While
under Art. 233 (I) of the Constitution the Governor has to make
appointments of persons to bet and the posting and ·promotions
of, district judges in consultation with the High Court concerned,
under the Rules made by the Governor under Art. 309 of the Constitution he has to consult, before making such appointments, a
selection committee
constituted t!tereunder and, therefore, the
appointments made in consultation with two authorities instead
of one as provided by the Constitution, were illegal. (2) On a
fair reading of the provisions of the Rules, it is manifest that the
High Court is a transmitting authority while the selection committee is made the real consultative body, that is to say, the Governor
has to make the appointments not in consultation with the
High Court as 'it should be under the Constitution but in consultation with the committee constituted under the Rules. (3)
The Governor has ,no power to appoint district judges froni judicial
officers as they are not members of the judicial service. ( 4) The
exclusion of the members of the judicial service in the matter of
direct recruitment offends Arts. 14 and 16 of the Constitution;
or, alternatively, the exolusion·ofthe members of the judicial service
in the matter of direct recrui~ment to the post of district judges
while permitting "judicial officers" to ·be so recruited offends the
said articles .. And (5) the recruitment is to the post of "Civil and/
Sessions Judges" and they arll not "District Judges" as defined!
by Art. ;236 of the Constitution and, therefore, the recruitment to
those posts in terins Df Art. 233 is bad.
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The first question turns upon the provisions of Art. 233 of the
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Constitution. Article 233(1) reads:
"Appointments of persons to 'be, and the posting and
promotion of, district judges in.any State shall be made by
th.e· Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such State."
we- are assuming for the purpose of these appeals that the "Governor" .under Art.. 233 shall act on the advice of the Ministers. So,
the expression "Governor" used in the judgment means Governor
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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
Governo,r in regard to the suitability or otherwise of a person,
belonging either to the "judicial service" or to the Bar, to be appoint--
ed as a distpcfjudge<..,. Therefore, a duty is enjoined on the Governor
to make the appointment-ii\ 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 Constitqtion and in the other he indirectly does
so, for his 'mind may be influenced by other persons not entitled
to advise him. That this constitutional mandate has both a negative
and positive significance is made clear l;>y the other provisions of
the Constitution. Wherever the Constitution intended to provide
more than one consultant, it has said so: see Arts. 124(2J and
217(1). Wherever the Constitution provided for co.nsultation of' a
single body or individual it said so: see Art, 222. ,μt. 124(2)
goes further and makes a distinction between persons who shall
be consulted and persons who may be consulted. These provisiqns indicate that (he ·duty to consult is so integrated with the
exercise of the power that· the power can be exercised only in consultation. with the. person or persons designated therein. To
-state it differently, if A is empowered to appoint. B in consultation
with C, he will., not be exercising the power in the manner prescribed
if he appoints Bin consultation with C and D.'
We would, therefore, hold that if the Riμes empower the Governor to appoint a person lj.S district judge in consultation with a
person or' authority other than the High Court, the sai.d appointment will not be in -acc6rdance with the provisions of Art. 233(1)
Qf the Constitution.
In this context, the Rules .whereunder the selections in question
were made are relevant: · 'Fhe relevant rules may be read:
"Rule 8. Number of appoilitments tp be made.-(l) The
Governor shall decide the number of recruits to be taken
at .each selection from each of the two sources of recruitment specified in rule 5.
Rules 9 to 12 pr~cribe the qualifications for the candidates for appointment to the higher
judicial se~vice of the State.
Rule 13. Recruitment by promotion.-The following
procedure for selection by promotion under rule S(i) shall
be observed:
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SUPllBMB COUJlT Rl!POllTS
(1967) l S.C.R.
(c) The selection shall be made by a Committee
A
consisting of two Judges of the High Court and the Judicial
Secretary to Government.
Rule 14. Direct Recruitment.--{I) Applications for
direct recruitment to the service shall be called for by the
High Court and shall be made in the prescribed form which
B
may be obtained from the Registrar of the Court.
(2) The applications by barristers, advocates, vakils
or plcaders, should be submitted through the District Judge
concerned, and must be accompanied by certificates of
age, character, nationality and domicile, standing as a legal
practitioner, and such other documents as may be prescribed
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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
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character and fitness for appointment to the service.
Rule 15. lnterview.-(1) The Selection Committee
shall scrutinise the application received by the Court, and
require such candidates as seem best qualified for appointment to the service under these Rules, to appear before the
rommittee for interview. Candidates from among legal
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practitioners shall be required to defray •!Jeir 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, persoriality, physique and general suitability
for appointment to the service as indicated by his record
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and interview.
Rule 17.
Waiting list of candidates.-(1) The Selection
Committee shall draw up a list of the candidates selected for
direct recruitment in order of merit; provided that in case
this list includes two or more candidates from among Judicial Officers, their names shall be so arranged as to be in
accord with their inter se seniority as Juqicial Officers. The
number of selected candidates to be included in the list shall
correspond to the number of vacancies for direct recruitment as decided by the Governor on each occasion in
accordance with rule 8, with a supplementary list prepared
as aforesaid for, meeting unforseen vacancies.
(2) The Court shall submit to the Governor the two
lists of candidates considered suitable for appointment
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to the service from the two sources of recruitment as
prepared in accordance with rule 13, and clause (1) of this
rule.
Rule 19. Appointment.-(!) The Governor shall, on
receipt from the Court of the waiting lists prepared under
rules 13 and 17, make appointments.to the service on the
occurrence of substantive vacancies, by taking candidates
from those lists in the order in which they stand in the respective lists, subject, in the case of the waiting list for direct
recruitment, to the provisions of rules 7 and 18, and provided that the Governor is satisfied that they are duly qualified
for appointment to the service."
It will be seen from the said Rules that the Governor decides
on the number of candidates to be selected, that the qualifications
of the candidates are prescribed by the Rules, that the Court calls
for applications for direct recruitment, that the Selection Committee appointed under the Rules screens the applications, gives interviews only to persons who it thinks have the necessary qualifications and selects from among them suitable persons for appointment to the service on the basis of the record and the interview,
that the Selection Committee sends two lists to the High Court,
one main list. and the other a supplementary list, arranged in the
order of merit and th.at the High Court submits to the Governor
the names of candidates considered suitable for appointment
to the service from the lists prepared under r. 17(1), and that thereafter the Governor makes the appointments from the said lists if
he is satisfied that they are duly qualified for appointment in all
respects. It is clear from the Rules that the High Court is practically reduced to the position of a transmitting authority of the
lists of suitable candidates for appointment prepared by the Selection Committ.ee. 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 Ii~t. 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
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SUPREME COURT llBPOllTS
(1967] I S.c.tl.
may appoint persons recommended by the Selection Committee on
the ground that the refusal by the High Court to send their names
complied with the constitutional requirement of consultation. While
the constitutional provisions say that the Governor can appoint
District Judges from the service in consultation with the High
Court, these rules say that the Governor can appoint in consultation with the Selection Committee, subject to a kind of veto by
the High Court which can be accepted or ignored by the Governor.
The position in the case of district judges recruited directly from
the Bar is worse.
Under Art. 233(2) of the Constitution,
the
Governor can only appoint advocates recommended by the High
Court to the said service.
But under the Rules, the High Court
can either endorse the
recommendations of the Committee or
create a deadlock. The relevant rules, therefore, clearly contravene the constitutional mandates of Arts. 233(1) and (2) of the
Constitution and are, therefore, illegal.
The discussion on the first question, to some extent, covers
the second question also. The two questions overlap. On the
assumption that it is open to the Governor to make a provision
under Art. 309 for consultation with bodies other than the High
Court, even so he cannot avoid consultation with the High Court
directly or indirectly. As we have
noticed earlier, under the
Rules the consultation with the High Court is an empty formality.
The Governor prescribes the qualifications, the Selection Committee appointed by him selects the candidates and the High Court
has to recommend from the lists prepared by the said Committee.
This is a travesty of the constitutional provision. The Covernor,
in affect and substance, docs neither consult the High Court nor
acts on its recommendations,
but only consults the Selection
Committee or acts .on its recommendations. In that view also,
the relevant rules are illegal and the appointments made thereunder
are bad.
The third point raised is one of far-reaching importance.
Can the Governor, after the Constitution, directly appoint persons
from a service other than the judicial service as district judges in
consultation with the High Court? Can he appoint "judicial
officer~" as district judges? The expression "judicial officers"
is a misleading one. It is common case that they belong to the
executive branch of the Government, though they perform certain
revenue and magisterial functions. The relevant article on which
both the parties rely upon in support of their respective contentions
is Art. 233.
It reads:
"(I) 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.
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CHANDRA MOHAN v. U.P. STATE (Subba Rao, C.J.)
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(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 bee.n for not less than seven years an advocate
or a pleader and is recommended by the High Court for
appointment."
While the learned counsel for the appellant contends that the said
article must be read along with the group of articles embodied
in Ch. VI of Part VI of the Constitution and also in the background of the history of said provisions and that, if so read, it
would be clear that the Governor can only
appoint district
judges either from the judicial service or from the Bar, the learned
counsel for the respondents, on the other hand, argues that Art.
233 is. expressed in general terms and that there is no warrant to
restrict the scope of the said article by construction or otherwise.
Before construing the said provisions, it should be remembered
that the fundamental rule of interpretation is· the same whether
one construes the provisions of the Constitution or an Act of Parliament, namely, that the court will have to find out the expressed
intention from the words of the Constitution or the Act, as the
case may be.
But, "if, however, two constructions are possible
then the Court must adopt that which will ensure smooth and
harmonious working of the Constitution and eschew the other
which will lead to absurdity or give rise to practical inconvenience
or make
well established provisions of existing law nugatory."
The Indian Constitution, though it does not accept the strict
doctrine of separation of powers, provides for an independent
judiciary in the States; it constitutes a High Court for each State,
prescribes the institutional conditions of service of the Judges
thereof, confers extensive jurisdiction on it to issue writs to keep
all tribunals, including in appropriate cases the Governments,
within bounds and gives to it the power of superintendence over
all courts and tribunals in the territory over which it has jurisdiction.
But the makers of the Constitutiun also realised that "it is the
Subordinate Judiciary in India who are brought most closely into
contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed
beyond question than in the case of the superior Judges." Presumably to secure the independence of the judiciary from the
executive, the Constitution introduced a group of articles in Ch.
VI of Part VI under the heading "Subordinate Courts". But at
the time the Constitution was made, in most of the States the
magistracy was under the direct control of the executive. Indeed
it is common knowledge that in pre-independent India there was
a strong agitation that the judiciary should be separated from the
executive and that the agitation was based upon the assumption
that unless they were separated, the independence of the judiciary
88
SUPIU!MB COURT Rl!PORTS
(1967) I S.C.ll.
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.
With this background, if the following provisions of the Constitution are looked at, the meaning of the debated expressions
therein would be made clear:
We have already extracted Art. 233.
Article 234.-Appointments of persons other than district judges to the judicial service of a State shall oo made
by the Governor of the State in accordance with rules made
by him in that behalf after consultation with the State Public
Service Commission and with the High Court exercising
jurisdiction in relation to such State.
Article 235. The control over district courts and
courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging
to the judicial service of a State and holding any post inferior
to the post of district judge shall be vested in the High
Court, but nothing in this Article shall be construed as taking away from any such person any right of appeal which
he may have under the law regulating the conditions of
his service or as authorising the High Court to deal with
him otherwise than in accordance with the conditions of
his service prescribed under such law.
Article 236. In this Chapter-
(a) the expression "district judge" includes judge of
a city civil court, additional district judge, joint
district judge, assistant district judge, chief judge
of a small cause court, chief presidency magistrate,
additional chief presidency magistrate, sessions
judge,
additional sessions judge and assistant
sessions judge:
(b) the expression "judicial service" means a service
consisting exclusively of persons intended to fill
the post of district judge and other civil judicial
posts inferior to the post of district judge.
Article 237.
The Governor may by public notification
direct that the foregoing provisions of this Chaplet
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
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of the State subject to such exceptions and modifications
as may be specified in the notification.
The gist of the said provisions may be stated thus: Appointments
of persons to be, and the posting and promotion of, district judges
in any State shall be made by the Governor of the State. There
are two sources of recruitment, namely, (i) service of the Union or
of the State, and (ii) members of the Bar. The said judges from
the first source are appointed in consultation with the High Court
and those from the second source are appointed on the recommendation of the High Court. But in the case of appointments of
persons to the judicial service other than as district judges, they
will be made by the Governor of the State in accordance with
rules framed by him in consultation with the High Court and the
Public Service
Commission. But the High Court has control
over all the district courts and courts subordinate thereto, subject
to certain prescribed limitations.
So far there is no dispute. But the real conflict rests on the
question whether the Governor can appoint
as district judges
D
persons from services other than the judicial service; that is to ~ay,
can he appoint a person who is in the police, excise, revenue or
such other service as a district judge? The acceptance of this
position would take us back to the pre-independence days and that
too to the conditions prevailing in the Princely States. In the
Princely States one used to come acr06:s appointments to the judicial
E
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
independen~
service. Doubtless, if Art. 233(1) stood alone, it may be argued
that the Governor may appoint any person as a district judg9,
whether legally qualified or not, if he belongs to any service under
F
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 sources of recruitment are
indicated in cl. (2) thereof. Under cl. (2) of Art. 233 two sources
are given, namely, (i) persons in the serv.ice of the Union or of the
~ State, and (ii) advocate or pleader. Can it be said that in tb.e
context of Ch. VI of Part VI of the Conititution "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
R
that the service mentioned therein is the service pertaining to
courts. That apart, Art. 236(b) defines the expression "judicial
aervice" to mean a service consisting exclusively of persons intended
to fill the post of district judge and other civil judicial posts inferior
M14 Swp.C.1;66-7
90
~UPRBMB COURT REPORTS
[1967] I S.C.R.
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 docs .not necessarily
lead to a contrary conclusion. The fact that in Art. 233(2) the
expression "the service" is used whereas in Arts. 234 and 235 the
expression "judicial service" is found is not decisive of the question
whether the expression "the service" in Art. 233(2) must be something. other than the judicial service, for, the entire chapter is
dealing with the judicial service. The definition is exhaustive of
the service. Two expressions in the definition bring out the idea
that the judicial service consists of hierarchy of judicial officers
starting from the lowest and ending with district judges. The
.eitpressions "exclusively" and "intended" emphasise the fact that
the judicial service consists only of persons intended to.