# [1967] 3 S.C.R. 186

- **Citation:** [1967] 3 S.C.R. 186
- **Court:** Supreme Court of India
- **Decided:** 1967-03-15
- **Bench:** SUBBA R.Ao, J. C. Shah, J •. M. Shblat, V. Bharoava, 0. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1967-3-s-c-r-186-4194
- **Pages:** 13

## Headnote

Constitmion of India Art. 233-Selection Committe.f consisting of Chief
Justice and two other Judges only-List of eligible candidates prepared by
th_e Committee transmitted by the High Court-I/ proper
consultation.
Art. 233A-Appointments of Civil and Additional Sessions Juda• to thR
Rajasthan Higher Jw#cial Service if v"lidated.
Art. 236-Civil Judge appointed as Additional Sessions Judge rmdor
tire Rajasthan Higher Judicial Service
Rules, 1955-I/ "District Judge"
within tire definition of fhe Article.
The Rnjas•han Higher Judicial Service Rules,
1955,
provided
that
recruitment to the Hi~her lud'.cial Service had to be made by the Governor from out of the lists of eli&ible candidates sent up by the Hi1!11 Court
but prepared by a Selection Committee of the Hi&h Court cons11ting of
the Chief Justice, the Administrative Judae and another Judae of the
High Court nominated )>y the Chief Justice.
When recruitments to the
posts of Civil and Additional Sessions Judge
were made in accordance
wit'h this procedure they were challen_ged on the JP:OUnd that the Rulea
contravened Art. 233 _of the Constitutron. The Hrgh Court upheld the
validity of the Rules and the appointments made thereunder. In this Court
it was contended that (i) the Rules were ultra vires Art. 233, and
(ii)
the post of a, Civil and Additional Sessions Judge is not included in the
definition of a "District Judge" in Article 236 and therefore the appoint·
ments were not validated by Article 233A introduced by the Constitution
(Twentieth Amendment) Act, 1966.
Held : The Rules contravened Article 233 and therefore the appointments were illegal; but tbe appointments were validated by Article 233A.
( i) Consultation as provided in Art. 233 is consultation with the High
Court and n.ot with any other authority such as the Selection Committee
appointed under the Rules. The Committee, though composed of Judges
of the High Court, is not the High Court. The only function entrusted
10 the High Court under the Rules is to transmit the lists prepared by the
Committee and there is nothing in the Rules empowering the High Court.
before submitting the lists to vary those lists if tbe High Court were tr
disagree with the Committee. [190 A-CJ
Chandra Mohan v. State of Uttar Pradesh, [1967] I S.C.R: 77, followed
(ii) When a Civil Judge is appointed as an Additional Sessions Judge,
which is precisely what has happened in the instant case, such an appointment is made in exercise of the powers conferred by s. 9 of the Code of
Criminal Procedure. The Civil Judge exercises the powers of an Additional
Sessions Judge not because he is a Civil Judge but because he is appointed as an Additionμ! Sessions Judge .• The two posts, therefore, cannot be
said to have been clubbed together. So, when a person appointed as a
Civil Judge is also intended to work as an Additional Sessions Judg~ an
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PREM NATH v. RAJASTHAN (She/at, J.)
1117
appointment has to be made under s. 9 of the Code of Criminal Procedure, as an Additional Sesoions Judge. Such an appointment has to be COii·
sidered u an ap,POintment fallina under the deflnltlon of "District Judie"
within the meanma of Art. 236, Therefore Article 233 and the RajastD&n
Higher Judicial Service Rules 1955 apply to such a post and not Article
234 or the R•jasthan Judicial Service Rules, 1955. [195 E-Hl
C1v1L APPELLATE JuR1so1CTION : Civil Appeal No. 93 of
1966.
· Appeal from the judgment und order dated November 27,
1964 of the Rajasthan High Court in D. B. Writ :Petition No. 803
<>f 1964.
M. B. L. Bhargavu and Naunlt Lal, for the appellant.
S. V. Gupte, Solicitor-General, G. C. Ka.r//wal, Jtdvocate-G1111ral for the State of Ra/asthan and K. Bcildev Mehta, for respon·
dents Nos. k~·
Sarjoo Prasad, S. N. Prasad, and 0. C. Mathur, for respondents Nos. 6 and 7 and Interveners Nos. I and 2.
R. K. Garg, S. C. Agarwal and D. P. Singh, for intervener
No. 3.
Sami Bhushan, Addi. Advocate-General, State of U.P. and
0. P. Rana, for intervener No.

## Text

PREM NATH & ORS.
v.·
STATE OF RAJASTIIAN & ORS.
March 15, 1967
[K, SUBBA R.Ao, C.J., J. C. SHAH, J •. M. SHBLAT, V. BHAROAVA
AND 0. K. MITTER, JJ.]
Constitmion of India Art. 233-Selection Committe.f consisting of Chief
Justice and two other Judges only-List of eligible candidates prepared by
th_e Committee transmitted by the High Court-I/ proper
consultation.
Art. 233A-Appointments of Civil and Additional Sessions Juda• to thR
Rajasthan Higher Jw#cial Service if v"lidated.
Art. 236-Civil Judge appointed as Additional Sessions Judge rmdor
tire Rajasthan Higher Judicial Service
Rules, 1955-I/ "District Judge"
within tire definition of fhe Article.
The Rnjas•han Higher Judicial Service Rules,
1955,
provided
that
recruitment to the Hi~her lud'.cial Service had to be made by the Governor from out of the lists of eli&ible candidates sent up by the Hi1!11 Court
but prepared by a Selection Committee of the Hi&h Court cons11ting of
the Chief Justice, the Administrative Judae and another Judae of the
High Court nominated )>y the Chief Justice.
When recruitments to the
posts of Civil and Additional Sessions Judge
were made in accordance
wit'h this procedure they were challen_ged on the JP:OUnd that the Rulea
contravened Art. 233 _of the Constitutron. The Hrgh Court upheld the
validity of the Rules and the appointments made thereunder. In this Court
it was contended that (i) the Rules were ultra vires Art. 233, and
(ii)
the post of a, Civil and Additional Sessions Judge is not included in the
definition of a "District Judge" in Article 236 and therefore the appoint·
ments were not validated by Article 233A introduced by the Constitution
(Twentieth Amendment) Act, 1966.
Held : The Rules contravened Article 233 and therefore the appointments were illegal; but tbe appointments were validated by Article 233A.
( i) Consultation as provided in Art. 233 is consultation with the High
Court and n.ot with any other authority such as the Selection Committee
appointed under the Rules. The Committee, though composed of Judges
of the High Court, is not the High Court. The only function entrusted
10 the High Court under the Rules is to transmit the lists prepared by the
Committee and there is nothing in the Rules empowering the High Court.
before submitting the lists to vary those lists if tbe High Court were tr
disagree with the Committee. [190 A-CJ
Chandra Mohan v. State of Uttar Pradesh, [1967] I S.C.R: 77, followed
(ii) When a Civil Judge is appointed as an Additional Sessions Judge,
which is precisely what has happened in the instant case, such an appointment is made in exercise of the powers conferred by s. 9 of the Code of
Criminal Procedure. The Civil Judge exercises the powers of an Additional
Sessions Judge not because he is a Civil Judge but because he is appointed as an Additionμ! Sessions Judge .• The two posts, therefore, cannot be
said to have been clubbed together. So, when a person appointed as a
Civil Judge is also intended to work as an Additional Sessions Judg~ an
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PREM NATH v. RAJASTHAN (She/at, J.)
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appointment has to be made under s. 9 of the Code of Criminal Procedure, as an Additional Sesoions Judge. Such an appointment has to be COii·
sidered u an ap,POintment fallina under the deflnltlon of "District Judie"
within the meanma of Art. 236, Therefore Article 233 and the RajastD&n
Higher Judicial Service Rules 1955 apply to such a post and not Article
234 or the R•jasthan Judicial Service Rules, 1955. [195 E-Hl
C1v1L APPELLATE JuR1so1CTION : Civil Appeal No. 93 of
1966.
· Appeal from the judgment und order dated November 27,
1964 of the Rajasthan High Court in D. B. Writ :Petition No. 803
<>f 1964.
M. B. L. Bhargavu and Naunlt Lal, for the appellant.
S. V. Gupte, Solicitor-General, G. C. Ka.r//wal, Jtdvocate-G1111ral for the State of Ra/asthan and K. Bcildev Mehta, for respon·
dents Nos. k~·
Sarjoo Prasad, S. N. Prasad, and 0. C. Mathur, for respondents Nos. 6 and 7 and Interveners Nos. I and 2.
R. K. Garg, S. C. Agarwal and D. P. Singh, for intervener
No. 3.
Sami Bhushan, Addi. Advocate-General, State of U.P. and
0. P. Rana, for intervener No. 4.
The Judgment of the Court was de\lvered by
Sbelat, J. This appeal, by certificate, mises two questions : ( l)
whether the Rajasthan Higher Judicial Service Rules, 1955 are
ultra vircs Art. 2.33 and, therefore, the selections made by the
Selection Committee appointed thereunder and appointments made
on the 1'asis of such selections are invalid, and (2) if so, whether
the appointments are validated by the Constitution (Twentieth
Amendment) Act, 1966 which introduces Art. 233/\ in the Constitution.
On May 9, 1955, the Rajpramukh of the then (Part Bl State
of Rajasthan, in exercise of the powers conferred by the proviso
to Art. 309 of the Constitution, promulgated the Rajasthan Hiohcr
Judicial Service Rules, 1955. In pursuance of the said Rules," the
High Court of Rajasthan published a notice dated November 20.
1963, inviting applications for direct recruitment to four posts
of Civil and Additional Sessions Judge.
A number of applica·
tions were received by the High Court and after scrutiny thereof
and interviews granted to the applicants, the Selection Committee.
appointed under the said Rules and consisting of the Chief Justice,
the Administrative Judge and another Judge of the High Court
nominated by the Chief Justice, selected four candidates.
Besides these four posts, there were fourteen posts to be filled up
from amongst the members of the Rajasthan Judicial Service by
188
SUPREME COURT REPORTS
[1907) 3 S.C.R.
promotion. The 5aid Committee selected eligible candidates from
amongst those members and prepared another list.
The High
Court submitted the two lists prepared by the Committee to the
Governor for appointments.
The appellants who are members of the Rajasthan Judicial
Service filed a writ petition in the High Court of Rajasthan challenging the validity of the selection done, the lists prepared by the
Selection Committee and the appointments made on the basis of
those lists on the ground that they were done in contravention of
Art. 233. The High Court dismissed the writ pe\ition holding that
the said Rules were valid, and, therefore, the proceedings of the
said Committee, the lists prepared by it and submitted to the
Governor by the High Court and the appointments made were
all valid. Hence this appeal.
Rule 1 (2)
of the Rajasthan Higher Judicial Service Rules
provides that the said Rules shall apply to the members of the
Service consisting of District and Sessions Judges and Civil and
Additional Sessions Judges. Rule 6 provides that the strength of
the Service and of each class of posts therein shall be determined
by the Governor from time to time in consultation with the High
Court and the permanent strength of the Service and of each class
of posts therein shall be as specified in Schedule I. Sub-rule (3)
of Rule 6 empowers the Governor, from time to time and in consultation with the High Court, to leave unfilled or hold in abeyance any post in the Service or create such additional temporary
or permanent posts in the Service as may be found necessary. Schedule I provides the strength of District and Sessions Judges at
18, i.e., 15 judgeships, one post of Legal Remembrancer, one post
of Registrar of the High Court, and one post of Joint Legal
Remembrancer and that of the Civil and Additional District Judges
at 20. Rule 7 provides sources of recruitment, viz., by promotion from among the members of the Rajasthan Judicial Service
and by direct recruitment in consultation with the High Court.
The persons eligible for direct recruitment are Advocates or Pleaders of more than seven years' standing.
Rule 10 reads
as
under:-
"(l) Subject to the provisions of these rules, the number of persons to be recruited at each recruitment from
each of the two sources specified in rule 7 and the period
(not exceeding three years) for which such recruitment
is to be made shall be determined by the Governor.
Provided that the number of persons appointed to
the Service by direct recruitment shall at no time exceed
one-fourth of the total strength of the Service and the
number of persons so appointed during any one period
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PREM NATH v. RAJASTHAN (She/at, J.)
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of recruitment shall not exceed one-fourth of the total
number of vacancies occurring during that period".
Rule 13 provides that after a decision is taken under Rule 10 as
to the number of persons to be recruited by promotion, selection
shall be made from among the eligible members of the Rajasthan
Judicial Service by a Selection Committee consisting of the Chief
Justice, the Administrative Judge and a Judge of the High Court
nominated by the Chief Justice. It also provides that the Cororoittee shall select from among the eligible officers those whom they
consider suitable for appointment to the Service.
A list of the
officers selected shall theu be made in the order of their inter se
seniority in the Rajasthan Judicial Service. As regards direct recruitment, Rule 17 provides that applications shall be invited by
the High Court. Rule 21 provides that the Selection Committee
shall scrutinise such app1ications and require such of the eligible
candidates as seem best qualified for appointment to the Service
under these Rules to appear before the Committee for interview.
Under Rule 22 the Selection Committee have to prepare a list of
candidates whom they consider suitable for appointment to the
Service.
Under Rule 21 the High Court has to submit to the
Governor two copies each of the two lists of candidates considered
suitable for appointment to the Service from the two sources. of
recruitment as prepared in accordance with Rules 13 and 22.
Rule 24 provides that all appointments to posts in the Service shall
be made by the Governor on the occurrence of substantive vacancies by taking candidates from the lists prepared under Rule 13 and
Rule 22 in the order in which they stand in the respective lists.
The first three vacancies shall be filled from the list prepared under
Rule 13 and the fourth vacancy shall be filled from the list prepared under Rule 22 and so on.
It is clear from Rule 13(2) that the selection from amongst the
eligible officers for appointment to the Higher Service is made by
the Selection Committee and not by the High Court as a whole
though the list prepared thereunder by the Committee is forwarded
by the !figh Court to the Governor. There is no provision in Rule
13 o: m any other Rule empowering the High Court to modify
!he hsts prepared by the Committee either by substituting others
m the lists whom the High Court considers more suitable or by
withdrawing or deleting any one of those selected bv the Committee-and named in the lists. So far as direct recruitment is concerned, under Rule 21 it is the Comm;ttee which scrutinise the
applications and it is again the Committee which decide whom
to reject and whom to call for interview.
The Hieh Court has
nothing to do with the scrutiny of applications. It is again the
Selection Committee which interview the candidates considered
eligible for appointment and not the High Court. It is also the
190
SUPREME COURT REPORTS
[1967] 3 S.C.R.
Selection Committee which prepare the lists of eligible candidates
selected by them. The only function entrusted to the High Court
under the Rules is, therefore, to transmit the two lists prepared
by the Committee under Rules 13 and 22.
As aforesaid, there
is no provision in the Rules empowering the High Court before
submitting the lists to the Governor to vary those lists even if the
High Court were to disagree with the selections made by the
Committee.
Obviously, the Committee is not the High Court.
'the High Court thus is only a transmitting authority. The con·
sultation as provided in Article 233 is consultation with the
High Court and not with any other authority such as the Selection
Committee appointed under the Rules. The Rules, therefore, are
clearly inconsistent with the nuuidate provided for in Art. 233
and are, therefore, invalid. Consequently, the selections made by
the Committee, the lists prepared by them and appointments made
thereunder would be invalid.
·
Recently, the U.P. Higher Judicial Service Rules for recruit·
ment of District Judges, which were similar, if not almost idcnti·
cal, with the Rules in this appeal, came up for consideration by
tliis Court in Chandra Mohan v. State of Uttar Pradesh('). After
an analysis of the said Rules, this Court held that the said Rules
were not in consonance with and contravened Art. 233 and further
held that the appointments made thereunder were illegal.
The
Court observed :-
"The Constitutional mandate of Art. 233 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 ~son to the
post of District Judge in consultation with the High
Court.
The object of consultation is apparent.
The
High Court is expected to know better than the Governor
in regard to the suitability or otherwise of a person, belonging either to the Judicial Service or to the Bar, to be
appointed as a District Judge. This mandate can be disobeyed by the Governor in two ways; directly, by not
consulting the High Court at all, and indirectly by consulting the High Court and also other persons.
That
this constitutional mandate has both a negative and positive significance is made clear by the other provisions of
the Constitution. See Articles 124(2) and 217(2) and
222. These provisions indicate that the 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".
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(!) )1967] I S.C.R. 77.
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'PREM NATH V. RAJASTHAN (.She/at, J.)
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The Court also observed that :
"the U .P. Higher Judicial Service Rules were consti·
tutionally void as they clearly contravened the constitu·
tional mandate of Art. 233(1) and (2). Under the Rules
the consultation of 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 Committee. This is a travesty of the Constitutional provision. The Governor in effect and substance
does neither consult the High Court nor act on its re·
commendations".
It is obvious that under the Rajasthan Higher Judicial Service
Rules the entire work of scrutinisfng the applications, interviewing the applicants, selection of eligible candidates from both the
llOUl'CCS and preparation of the two lists is done by the Selection
Committee and not by the High Court. The only function en·
trusted under the Rules to the High Court is that of transmitting
to the Governor the two lists prepared by the Committee. The
Rules, therefore, do not provide for consultation of the High
Court and, therefore, contravene Art. 233 which envisages con~
Bultation with the High Court and not with any other body such
as the Selection Committee which cannot substitute the High Court
even though the members thereof happen to be three Judges of the
High Court. The learned Solicitor-General who appeared for the
:I State frankly conceded that it was not possible for him to dis·
liilguish these Rules from the U.P. Higher Judicial Service Rules
and, therefore, the decision in Chandra Mohan's case(') would
apply to the present Rules. Consequently, the said Rules cannot
be sustained and have to be declared invalid. The proceedings
·taken by the Selection Committee and following them the action
r
talcen must also be held to be invalid.
•
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The next question is : whether appointments made by the
Governor from amongst those in the said lists are validated by
the Constitution (Twentieth Amendment) Act, 1966.
Article
233A introduced. by the said Act, inler alia, provides .
"Notwithstanding any judgment, decree or order of
any court (a)(i) no appointment of any person already
in .the judicial service of a State or of any person who has
been for not less than seven years an Advocate or a
Pleader, to be a District Judge in that State, and (ii) no
posting, promotion or transfer of any such person as a
. District Judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act,
11)(1967] I S.C.R, 77.
•.
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SUPREME COURT REPORTS
[1967] 3 s.c.R.
1966, otherwise than in accordance with the provisions
of Art. 23 3 or Art. 23 5 shall be deemed to be illegal or
void or ever to have become illegal or void by reason only
of the fact that such appointment, posting, promotion or
transfer was not made in accordance with the said provisions".
The amendment thus validates the appointment, posting or promotion of a person as a District Judge if such appointment, by
reason of its not being in accordance with Art. 233 or Art. 235,
would have been illegal or void. The question raised by counsel
is whether appointment to the post of a Civil and Additional
Sessions Judge can be said to be one of a District Judge.
Article 236{a) defines a 'District Judge' as including 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. A Civil and Additional Sessions Judge does not
apparently find place in the- different categories of judicial officers
included in this definition. Mr. Bhargava for the appellants,
therefore, argued that Art. 236, while defining a District Judge,
does not include a Civil and Additional Sessions Judge; therefore,
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a person appointed as a Civil and Sessions Judge is not a District
Judge and consequently Art. 233A does not validate the appointment of a person to the post of a Civil and Additional Sessions
Judge if that appointment was invalid. In order to make good his
submission, he relied on the Rajasthan Civil Courts Ordinance,
1950, section 6 of which provides for four categories of C:::ivil
Courts, viz., ( 1) the Court of the District Judge,
(2)
the
Court of the Additional District Judge, (3) the Court of the
Civil Judge, and (4) the Court of the Munsif. Section 13 of the · F
Ordinance provides that appointments of persons to be Civil Jtidges
and Munsifs shall be made by the Rajpramukh in accordance with
the Rules made by him in that behalf after consultation with the
Rajasthan Public Service Commission and the High Court. Section 19 provides that the Court of a Civil Judge shall have jurisdiction to hear and determine all original suits and proceedings of
a civil nature and the Court of a Munsif shall hav~jurisdiction to
hear and determine all original suits and proceedmgs of a civil
nature of which the value does not exceed five thousand rupees.
Sections 16 and 17 provide for the place of sitting and seals of the
Courts. On May 9, 1955, the Rajpramukh of Rajasthan promulgated the Rajasthan Judicial Service Rules in exercise of powers
under Art. 234 read with Art. 238 and the proviso to Art. 309.
Rule 4 defines a 'member of the service' as meaning a person appointed in a substantive capacity to a post in .the cadre of the
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Service under the provisions of these Rules or of any Rules or
orders superseded by Rule 2. Clause (f) of that Rule defines 'service' as meaning the Rajasthan Judicial Service. Rule 6 lays down
the "strength of the Service and provides that such strength of the
Service and of each class of posts therein shall be determined by
the Rajpramukh from time to time in consultation with the High
Court. Sub-rule (2) provides that the permanent strength of the
Service and of each class of posts therein shall be as specified in
Schedule I. According to that Schedule, the number of posts of
Civil Judges was determined at 30 and that of the Munsifs at 80.
Mr. Bhargava's contention was that neither under the Rajasthan
Higher Judicial service Rules nor under the Rajasthan Judicial
Service Rules, there is any provision for appointment as an Additional Sessions Judge of a person who holds the post of a Civil
Judge, that when respondents 6 and 7 were appointed they were
appointed as Civil Judges with additional powers of an Additional
Sessions Judge, that, therefore, as Civil Judges they would be
amenal;>le to the Rajasthan Judicial Service Rules, 1955 and not
to the Rajasthan Higher Judicial Service Rules and consequently
Art. 233A would not apply to their appointments. He also contended that before Art. 233A can apply, the appointment must be
to the post of a District Judge and that it is not so as the post of
a Civil and Additional Sessions Judge is not included in the de-
"linition of a 'District Judge' in Art. 236. Mr. Garg appearing tor
the interveners argued that the appointments as Civil and Additional Sessions Judges club together the post of a Civil Judge and
that of an Additional Sessions Judge, that though these posts are
·so clubbed together, such appointments would be governed by Art.
234 and not by Art. 233 and therefore Art. 233A would neither
apply nor validate such appointments. Such appointments, according to him, would have to be made in accordance with the provisions of Art. 234.
He also sou!!ht to arP.:ue that since the
Rajasthan Higher Judicial Service Riiles were "not distinguishable
from those of Uttar Pradesh. the Rules are invalid, that Art. 233A
·does not validate such invalid Rules and that as the said appointments have been made under invalid Rules, they were not cured
by Art .. 233A.
w~ mav at thi< stage make it clear that the qnestion of constitutional validity of Art. 233A has not been rai<ed in
this appeal.
The appointments are challengt',d as invalid because
they were made in contravention of Art. 233. The vir~ of Art.
~33A not having been challenged we disallowed Mr. Garg apoear·
mg for ~e interveners to go into that question iJ) this appeal and
we refram, therefore, from deciding that question .
. . Mr. Garg then referrrd to us the Ben!!nl. Agra and A~sam
CIVIi Courts Act. 1887, section 3 of which provides for the same
foo~ classes of Civil Courts as is done in section 6 of the Rajasthan
Ordinance and contended, as did Mr. Bhargava, that the appoint-
'1·9.'4
S!IPREMI! COURT Jl,BPORTS
[1967] 3 S.C.K,
ment of a person as a Civil and Additional Sessions Judge is sub·
stantially. the appointment of such a person as a Civil Judge upon
whom additional powers of an Additional Sessions .Judge are conferred.
Therefore, said he, such an appointment cannot be said
·to be an appointment of a District Judge within the meaning of
Art. 236.
The learned
Solicitor-General, on the other hand,
argued that the-appointment of a person as a Civil and Additional
Sessions Judge would not mean that he is only a Civil Judge or
that he is not an Additional Sessions Judge included in the defini·
tion of a 'District Judge' b;,- Art. 236.. Such a Civil Judge when
appointed also as an Additional Sessions Judge would have all the
powers of a Sessions ~1 udge and would jossess jurisdiction in a
Sessions Court of a ~ssions division an all the ,Jurisdiction and
.J!Owers which an Add1tlonal Sessions Judge would have under the
Code of Criminal Procedure.
The learned Deputy Advocate·
General appearing for the State of Uttar Pradesh as an inter·
vener supported the Solicitor-General · and added that Judicial
Service under Art. 236 falls into two parts; (I) a Service con'
~isting exclusively of persons intended to fill the post of a District
Judge and (2) other civil judicial posts inferior to the post of a
District Judge. He relied on the words "appointments of persons
to be District Judges" used in Art. 233. According to him, these
two Articles apply to persons who are appointed in the first instance
to Civil Judicial posts inferior to the post of a District Judge bllt
who are intended to fill the post of a District Judge at some tinie ·
in the future and, therefore, such ~rsoils also are District Judges
and to whom Arts. 233 and 233A would apply. It is not neceS·
sary in the present case to go into the question of interpretation and
scope of Arts. 233 and 236 as the question raised hy Mr. Bhargava
and Mr. Garg can well be resolved by a consideration of some of
the provisions of the Code of Criminal Procedure.
·
Section 6 of the Code provides for five classes .of courts apart
from the High Court, viz., (1) Courts of Sessions, (2) Presidency
Magistrates, (3) Magistrates of the first class, (4) Magistrates of
the. second class, and (5) Magistrates of the third class.
Sect.ion
7 provides that every State, excluding the Presidency Towns, sha11
be a sessions division or shall consist of sessions divisions; and every
sessions division shall, for the purposes of this Code, be a district
or consist of districts. Section 9 provides that the State Govern.-
men! shall establish a Court of Session for every sessions division,
.and appoint a Judge of such Court. Sub-section (3) of s. 9 em'
powers the State ~overnment to appoi?t -:'d?iti.o~al ~essions Judges
and Assistant Sessions Judges to exercise iunsd1ctton m one or more
.such Courts.
Section 36 lays down that District Magistrates,
Sub-Divisional Magistrates and Magistrates of the first, second
and the third class shall'have powers thereinafter respectively conferred upon them
and specified in the third Schedule.
Such
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powers are called 'ordinary powers'.
Section 37 authorises. the
State Government or the District Magistrate, as the case may be,
to invest any Sub-Divisional Magistrate or any Magistrate of the
first, second or third class with what are called 'additional powers'.
Under section 39 the State Government can confer such additional
powers on persons by name or by virtue of their office or on
classes of officials generally by their official titles. It is manifest
that sections 36 to 39 cannot apply to the case of a Civil Judge
appointed also as an Additional Sessions Judge, for these sections
contemplate vesting of additional powers on District Magistrates,
Sub-Divisional Magistrates and Magistrates of the first, second
and third class. Therefore, the power to appoint a Civil Judge as
an Additional Sessions Judge is to be found not in sections 36
to 39 but in section 9 which as aforesaid empowers the State
Government to appoint Additional or Assistant Sessions Judges.
That is precisely what appears to have been done in Rajasthan.
By a notification dated June 2, 1950 the Rajasthan Government
appointed with effect from July 1, 1950, Civil Jud~es therein
mentioned by virtue of their office to bei Additional SeSS1ons Judges
to exercise jurisdiction in courts of session mentioned in column
2 thereof. Therefore, when a Civil Judge is also ap~ointed as an
Additional Sessions Judge or when a person is appomted both as
a Civil Judge and also as an Additional Sessions Judge such
appointment as an Additional Sessions Judge is made in exercise
of power. under s. 9 of the Code. When such a Civil Judge exercises the power of an Additional Sessions Judge, he does so not
because he is a Civil Judge but because of his being appointed as
an Additional Sessions Judge under s. 9 of the Code.
The two
posts, therefore, cannot be said to have been clubbed together.
Factually what happens is that a person who is or who is appointed a Civil Judge is at~o appointed an Additional Sessions Judge.
It makes no difference whether he is first· appointed as a Civil
Judge and then as an Additional Sessions Judge or whether he
is appointed both as a Civil Judge and an Additional Sessions
Judge at the same time. When such an appointment is made, the
appointee exercises both the powers of a Civil Judge and those of
~n Additional Sessions Judge. From such a combination of powers
m the same person it does not follow that he is not an Addi·
tional Sessions Judge or that he is a Civil Judge and, th~refore,
does not fall under the definition of a 'District Judge' in. Art.
236 (a).
Since such a post falls under that definition it would be
Art. 233 and the Rajasthan Higher Judicial Service Rules which
would apply to him and not Art. 234 or the Rajasthan Judicial
Service Rules, 1955.
Articles 233 and 234 contemplate.appointments falling under
one or the other. It cannot be that an appointment would fall
under both the Articles. If such
a construction were to be
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SUPREME COURT REPORTS
[1967] 3 S.C,R.
adopted, it would render the two Articles unworkable.
Therefore, in deciding which of the two Articles applies in a particu!ar
case, what has to be determined is what was the intention when
such appointment was made.
Was the appointment to the post
of a Civil Judge under s. 13 of the Rajasthan Civil Courts Ordinance or one under s. 9 of the Code of Criminal Procedure. If
it is the latter, Art. 233 and not Art. 234 would apply.
Besides, there is no provision in the Code of Criminal Procedure
under which a Civil Judge can be invested with powers of an
Additional Sessions Judge. Where, therefore, a person appointed
as a Civil Judge is also intended to work as an Additional Sessions
Judge, an appointment has to made under s. 9 of the Code of
Criminal Procedure as an Additional Sessions Judge. Therefore,
such an appointment has to be considered as an appointment
falling under the definition of 'District Judge' within the. meaning
of Art. 236. Consequently, Art. 233 would apply to an appointment of a Civil Judge as an Additional Sessions Judge.
Since
the appointments in question were made in contravention of Art.
233 and were, therefore, illegal they must be held to have been
validated under the new Art. 233A.
Mr. Bhargava, however, contended that even assuming that
.Art. 233A applies, the appointments in the present case were
still invalid as in making them Rules 10 and 24 of the Rajasthan
Higher Judicial Service Rules were infrjnged. As already state<f,
Rule 7 provides that recruitment to the Higher Service shall be
made from two sources; (1) by promotion from among the members of the Rajasthan Judicial Service, and (2) by direct recruitment.
Rule 10 deals with . the number of appointments to be
made and provides that the number of persons to be recruited at
each recruitment from each of the two sources and the period
(not exceeding three years) for which the recruitment is to be
made shall be first determined by the Governor. The first proviso
to thai Rule states that the number of persons appointed to the
·Service by direct recruitment shall at no time exceed one-fourth
of the total strength of the Service and the number of persons so
appointed during any one period of recruitment shall not exceed
·one-fourth of the total number of vacancies occurring during that
period.
Accoroing to Rule 24, the Governor has to make appointments on the occurrence of substantive vacancies by taking
candidates from the two lists prepared under Rules 13 and 22
in the order in which the eligible candidates stand in the respective lists.
The result is that given a certain number of appointments, the first three have to be filled in from the promotees and
the fourth by the candidate selected by direct recruitment and
so on.
lt appears from the Government's letter dated December 8,
1962, that under Rule 10 the Governor fixed the number of
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PREM NATH v. RAJASTHAN (Shelat, !.)
197
appointments to be made as 18, 14 out of which were to be filled
up by promotion and 4 by .direct recruitment and th~ prop~ed
recruitment for these vacancies was to be upto the penod endmg
1962.
The contention was that under Rule 10, the period of
recruitment is prospective and for a period not exceeding three
years and, therefore, while determining the number of posts for
which recruitment was to be made the Governor could not take
into account vacancies remaining unfilled at the time. Therefore,
it was urged that determination by the Governor of the number
of appointments was contrary to Rule 10 and Rule 24 and conse·
quently the proceedings of the Selection Committee based on such
invalid determination were also invalid.
It is true that out of the 18 posts
as determined by the
Governor, there were 9 vacancies which were not filled up and
were included in the .number of appointments determined by the
Governor. As a first step in the recruitment, Rule 10 no doubt
provides that the number of appointments at each recruitment
from each of the two sources shall be determined by the Governor.
Rule 24 also provides that the appointments so determined have
to be filled in from the two lists prepared by the Committee and ·
submitted by the High Court, three from those selected from the
Judicial Service and the fourth from those selected for direct recruitment and so on.
But if certain posts intended to be filled
up at the time of the last recruitment have remained vacant for
one reason or the other, they would be vacancies which can be
filled up in the next recruitment It is difficult to see why those
unfilled posts cannot be regarded as vacancies to be filled up at
the next recruitment.
There is in fact nothing in Rule 10 or
Rule 24 to preclude the Governor from including them in the
number of appointments to be determined by him. Even if per·
sons are appointed to officiate to such posts since their appointme.nt wo~ld not be substantive appointment, they would not acqulfe a hen thereon and, therefore, those posts remain unfilled
until substantive appointments in respect of them are made. They
can, therefore, be included in the number of appointments determined by the Governor under Rule 10.
Rule 6(3) in terms provides that the Governor in consultation with the High Court, can leave unfilled or hold in abeyance
a post for the time being. If it is decided to fill up that post at
·the next recruitment, there is no reason why that appointment
cannot be included in !he. number. of appointments determined by
the Governor. There 1s, m our view, therefore, no validity in the
contention that the determination of the number of appointments
by the Governor was contrary to Rule 10 or that such determination rendered the subsequent proceedings of the Selection Committee bad in law.
The contention, besides, iS academic for it
198
SUPllEME COURT REPOllTS
(1967] 3 S.C.R.
appears that on November 9, 1960, 9 Judicial Officers were con•
firmed in 9 out of the 18 posts with the result that only 9 posls
remained· to be lilied up. In view of this fact the High Court
held that there were only 9 posts for which recruitment had to be
made and, therefore, only 2 out of these 9 posts would go to the
direct recruitees instead of 4 if those 9 officers had not been con~
firmed.
The contention that the determination of appointments
under Rule 10 was bad in law has, therefore, to be re1ected. We
leave the question of the claim of seniority of Respondents 6
and 7, if any, open as it does not strictly arise in this appeal.
These were the only contentions raised on behalf of the appellants. In our view, they cannot be sustained. The appeal is,
therefore, dismissed. In the circumstances of the case we do not
pass any order as to costs.
R.K.P.S.
Appeal dismissed.
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