# ( KUMAR PADMA PRASAD v. ' UNION OF INDIA AND ORS

- **Citation:** [1992] 2 S.C.R. 109
- **Court:** Supreme Court of India
- **Decided:** 1992-03-10
- **Bench:** Kuldip Singh, P.B. Sawant, N.M. Kasliwal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kumar-padma-prasad-v-union-of-india-and-ors-11411
- **Pages:** 38

## Headnote

B
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 C
does not fulfil qualifications as required by Article 217.
'Judicial Office'-Concept of-Explained.
Government of Mizoram Notification CS/MZ/APPT/79 dated
n.6.1979-Assistant to Deputy Commissioner appointed under Rules 8, 9 D
and 15 of 1937-R.ules for regulation of procedure of officers to administer
justice in Lushai Hills, 1937-R.s. 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"-fnterpretation of
The Governor of Mizoram, by a letter dated 5.5.1990, addressed to
E
F
the Chief Justice of Gauhati High Court, recommended the name of
respondent no. 9 for appointment as a Judge of the High Court. The G
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
.:;,:.,,artment, Under Secretary, Law and Judicial, Registrar Firms, Deputy H
109
110
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
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 Tribunals/Committees. The bio data
described him as belonging to Mizoraw Judicial Service. The Chief Justice
B 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
C 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
D 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 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. Responde~t No. 9 was also restrained
from subscribing his oath or affirmation in terms of Article 219 of the
E · 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
>-·
F
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
J
was instituted against respondent no.9. The lettel_" 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
G 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

## Text

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-(
KUMAR PADMA PRASAD
A
v.
' UNION OF INDIA AND ORS.
MARCH 10, 1992
[KULDIP SINGH, P.B. SAWANT AND N.M. KASLIWAL, JJ.]
B
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 C
does not fulfil qualifications as required by Article 217.
'Judicial Office'-Concept of-Explained.
Government of Mizoram Notification CS/MZ/APPT/79 dated
n.6.1979-Assistant to Deputy Commissioner appointed under Rules 8, 9 D
and 15 of 1937-R.ules for regulation of procedure of officers to administer
justice in Lushai Hills, 1937-R.s. 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"-fnterpretation of
The Governor of Mizoram, by a letter dated 5.5.1990, addressed to
E
F
the Chief Justice of Gauhati High Court, recommended the name of
respondent no. 9 for appointment as a Judge of the High Court. The G
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
.:;,:.,,artment, Under Secretary, Law and Judicial, Registrar Firms, Deputy H
109
110
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
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 Tribunals/Committees. The bio data
described him as belonging to Mizoraw Judicial Service. The Chief Justice
B 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
C 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
D 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 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. Responde~t No. 9 was also restrained
from subscribing his oath or affirmation in terms of Article 219 of the
E · 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
>-·
F
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
J
was instituted against respondent no.9. The lettel_" 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
G 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. -
~
H
Respondent No.9 tiled a special leave petition and a writ petition
PADMAPRASAD v. U.0.1.
111
before this Court. Two transfer petitions, one by respondent no.9 and the A
other by the petitioner, were also ftled 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 B
Constitution as be did not fulfil the qualifications prescribed therein
inasmuch as be neither had been an Advocate of a High Court nor had he
ever held a judicial office; 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, be did not hold a C
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 D
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. [p.131E]
2.1 Expression "Judicial office" has not been defined under the E
Constitution, nevertheless, it bas 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
tberein . .lfwould'be logical and consistent with the Constitutional scheme
to read "judicial office" under Article 2i7(2)(a) to mean an office within
the judicial service of the State. [pp.127D; 132E; 133FJ
F
Statesman (Private) Ltd. v. H.R. Deb & Ors., (1968] 3 SCR 614,
referred to.
2.2 Holder of "judicial office" under Article 217(2){a) means the
person who exercises only judicial functions, determines causes interG
partes and renders decisions in a judicial capacity. He must belong to the
judicial service which as a class is free from executive-control abd 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 Constitu- H
112
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
tion. [pp.131G-H; 132A, F-G]
B
c
D
E
F
G
H
2.3 Article 236(b) defines "judicial service" to meau 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., [1967J 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
.:J__ ---
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 persons 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
r
powers of Judicial Magistrate can be conferred on any person who holds or
has held any office under th~ 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 ofa "judicial office". [p.131F-G]
.1_
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 n,ot 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.1328-D]
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
PADMA PRASAD v. U.0.1.
113
judiciary from the executive. The framers of the Constitution did not and A
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 SO of the Constitution, give a
mandate that the State shall take steps to separate the judiciary from the B
executive which means that there shall be a seprate 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 C
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)(a) means a subsisting office with a substantive position which has an existence independent D
from its holder. [p.143E]
Smt. Kanta Katharia 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 E
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. 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 Article237 of the ConstituF
tion 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 Hig~ 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 res- G
pondent No.9 for about six months, by virtue of Notification dated 23.6.1979
issued by the Gov~rnment 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]
H
A
B
c
114
SUPREME COURT REPORTS
[1992] 2 S.C.R.
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 a judicial officer in terms
of Article 217(2)(a) of the Constitution. [pp.141E-H; 142A-B]
3.6 The office of Legal Remembrancer-cum-secretary Law and Judicial is a 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
D from February 17, 1986 comes to less than ten years as required under the
said Article. Besides, be 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]
E
3.7 A cursory look at the bio-data would show that the respondent
was not qualified for appointment as a Judge of the High Court on the
r·
admitted facts which have been on the official files all the time. [p.137 A]
4. The independence, efficiency and integrity of the judidary can
F
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]
G
S. 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 con·
sidered for appointment as a Judge of a High Court does not fulfil the
qualification J>.S laid down expressly under the provisions of the ConstituH tion itself, it becomes bounden duty of the Court to see that no person
--
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.]
115
,;
ineligible or unqualified is appointed to a high constitutional and august A
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]
B
)-
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 a Judge of the High
Court, his appointment would be quashed and the Union of India and
,__A-. other respondents would not administer him oath or affirmation under c
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.
ORIGINAL JURISDICTION : Transferred Case (Civil) No.101 of D
1991.
Under Article 139(A)(l) 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 E
Bhushan, A.R.Borthakar, Advocate General, K.N.Madhusudan, Asstt. Ad-
..,,
vocate 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.
L.Krishnamurthy, Mrs. H.Wahi, S.K. Nandy, Ms. Urmila Kapoor, P. GosF
wami, 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 J aisingh, Soli J. Sorabjee, Jitendra Sharma,
Prashant Bhushan, Ms. Kamini Jaiswal, P.H. Parekh and B.N. Aggarwal
for the Intervenor.
G
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 H
116
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
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 con-
,..I..._
B
sideration 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
C High Court. Capt. W.A.Sangma, 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 recommendations and stated that he would take
D 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:
E
F
G
H
"BIO DATA OF SHRI KN SRIVASTAVA, M.J.S.
LEGAL REMEMBRANCER AND SECRETARY
LAW & JUDIClAL ETC. GOVERNMENT OF MIZORAM
1. Name
2. Father's Name
3. Present address
4. Permanent Address
K.N. Srivastava
(KESHARI NANDAN SRIVASTAVA)
..
Late Sri Krishna Lal
Law Department
Civil Secretariat
Govt. of Mizoram,
Aizawl 796001
Clo Sri Chandra Mohan Srivastava
254 Bazar Jhau Lal
Lucknow U.P. 226001
':r
-- _A_
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.)
117
5. Date of Birth & Age
6. Nationality/Religion
7. Qualification
8. Service to which
belongs
9. Professional
Experience
30 January 1938 (52 years)
Indian/Hindu
B.A. LL.B.
(1957 -1959 Lucknow University)
Mizoram Judicial Service
Took Training for legal practice in 1960 in
Lucknow.
2. Joined Govt. of Assam in Law Department
in 1956 as Gazetted Officer for Coordination
and translation of all State Laws in consultation official Legislative language Commission
Govt. of India.
3. Posted as Law Officer in Finance Department of Govt. of Assam to tender legal advice
and to look after taxation laws and litigations.
A
B
c
D
4. Appointed Under Secretary Law & Judicial, E
Govt. of Mizoram, in 1972 to look after all
legal matters, advice, litigations, court cases
drafting of State Legislation etc.
5. Held charge of Under Secretary, Secretariat
Administration Department, General AdF
ministration Department, Revenue Excise &
Taxation Department, Education, and. Social
Welfare Department, Govt. of Mizoram from
time to time.
G
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 H
118
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
1979 and
~
9. Legal Remembrancer and Secretary Law
and Judicial since 1985 and also
iii. Appointed Presiding Member of one man
B
Mizoram Motor Accident Claims Tribunal in
1986.
--..(
11. D.C. (Judicial) in 1987.
c
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
D
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 InternaE
tional Law & Organizations, Practical &
Treaty drafting at London, U.K. f~om January
'_,,.,-
1980 to May 1980
15. Member, Mizo Customary Law CommitF
tee, and also had been its Chairman during
President Rule for September 1988
16. Chairman of Executive Committee, Legal 1
Aid and Advice Board.
G
17. Chairman, State l..evel Screening Committee under the Prevention of Illicit Traffic in
Narcotic Drugs.
18. Members, Board of under-graduate studies,
---(
North Eastern Hill University Shillong to conH
sider course and prospectus for LLB course.
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.]
119
19. Member, Committee to review the ImA
plementation 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 Gauhati High Court by his letter dated August 6, 1990
addressed to Minister of Law and Justice, Government of India forwarded
B
c
D
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 E
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 C'alled-for his recommendations and those of the Governors and Chief
Ministers of the North Eastern States. 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 recomF
mended Srivastava's name and also sent his bio-data (reproduced abuve)
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 G
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:
H
A
B
c
120
SUPREME COURT REPORTS
(1992] 2 S.C.R.
"Shri KN.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 objed.on. 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
D summary Srivastava was presented as under:
E
F
"Shri K.N. Srivastava B.A., LL.B. was born on 30th January,
1938. He joined Government of Assam in Law Department in
1956. He was appointed as an Under Secretary, Law and
Judiciary in 1972 and as Registrar of F'trms and Societies,
Government of Mizoram, from 233.72 to 21.12.79. He was
appointed the Legal Remembrancer and Secretary, Law and
Judiciary in 1985".
The Prime Minister approved the appointment on 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
G 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 respondent(to re-call, rescind or
H otherwise forbear from giving effect to the impugned selection of Srivastava
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.)
121
,.).
for being appointed as a Judge of the Gauhati High Court. The writ A
...
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 shatl be heard on 28.10.1991. Meanwhile B
the respondent No.1 Union of India, is restrained from issui:llC
~··
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
-A--
of appointment of Srivastava had already been received at Gauhati. The c
petitioner was permitted to amend the writ petition and the hearing on the
interim relief was adjourned to 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 the above discussion, it is doubtful if the responD
dent 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:-
E
---....;
"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 be given effect to by the concerned
respondents until further ordet's. It is further ordered and
directed the respondent-9 Shri K.N. Srivastava is restrained F
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. SrivasG
tava as Judge in a High Court keep:ng in view the allegations
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. Sharma, JJ suo-moto assumed H
122
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A jurisdiction on the judicial side presumably under Article 226 of the
Constitution of India and on November 20, 1990 passed the following
order:-
B
c
D
E
F
G
"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. of Mizoram, Aizawl.
Let a 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, furnitures 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 to 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."
H
The above quoted directions were used by the High Court after
~--
-
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.]
123
taking note, in the same order, of the following facts:-
A
..J
"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 essenB
tial 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 c
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 cir-
"'
cumstances and the unusual silence of the Secretary, Law & D
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 E
furnish full particulars of the law books and journals so put-
-""'(
chased 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 F
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 G
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
'r--
powers. Mr. K.K.Venugopal, learned senior Advocate appearing for Srivastava contended that Srivastava's name for appointment as a Judge was H
124
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
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
B
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 AdC
vocate 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
D
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."
E
Shri Lal Thanhawla, Chief Minister Mizoram, by his letter dated
F
G
H
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 Ju~icial, Government of Mizoram for being considered for
appointment as a Judge of the Gauhati High Court. Subsequent
to our recommendation it has been reported that a vigilance
case has been instituted against Shri Srivastava by the Aizawl
Bench of the Gauhati High Court in regard to alleged
anomalies in the procurement of law books, journals etc. for
the Aizawl Bench's library.
We understand that the case is pending with the Gauhati
High Court. I have, therefore, thought it desirable to bring this
fact to your kind notice."
PADMA PRASAD v. U.O.I. [KULDIP SINGH, J.)
125
Shri U.L. Bhat, Chief J~tice, Gauhati High Court by his letter dated A
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 B
(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 C
noticing 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 D
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 E
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 a writ petition under Article 32 of the Constitution of F
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 G
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 fulfil H
126
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A 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
,,/"'
B
c
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.
D It was contended that the Gauhati High Court Order dated November 20,
1990, the letter from Chief Minister Mizoram dated October 7, 1991
addressed to the Minister, Law and Justice and the factum of pendency of
vigilance inquiry against Srivastava were some of the important and
relevant material which was not brought of the notice of the constitutional
E
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
F
G
H
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 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 or of two or more such Courts in succession;
--{
\
PADMA PRASAD v. U.O.I. [KULDIP SINGH, J.)
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) ..................... .
A
B
(b) ....................... "
c
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.
D
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 constituF
tion seeks to establish an independent judiciary in the country. Article 50 E
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 G
district courts or courts subordinate thereto is under the control of the
High Court in all respects. The subordinate judiciary which mans the courts
subordinate to the district courts consists of judicial officers who .are
recruited in consultation with the High Court. The district judges are ·
recruited for amongst the members of the bar and by promotion from the H
128
SUPREME COURT REPORTS
[1992] 2 S.C.R.
A
subordinate judiciary. The judicial service in a State is distinct and separate
from the other services under the executive.