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Farzand Vs. Mohan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 3691 of 1966
Judge
Reported inAIR1968All67; (1970)ILLJ241All
ActsConstitution of India - Articles 225, 226, 233, 234, 235, 309 and 367; Uttar Pradesh Civil Service (Judicial Branch) Rules, 1951 - Rules 9, 21 and 32(2); Government of India Act, 1935 - Sections 255; General Clauses Act - Sections 6
AppellantFarzand
RespondentMohan Singh and ors.
Appellant AdvocateSant Prakash, Adv.
Respondent AdvocateKrishna Swarup, Adv. and ;Standing Counsel
DispositionPetition dismissed
Excerpt:
constitution - writ - articles 225, 226, 233, 234 and 235 of constitution of india - meaning of high court should not split up according to the importance of the function - after framing the appropriate rules the high court would lay down that which function is to performed by the whole court - consultation cannot be to the reference to appointment but to framing the rules - appointment made without consultation - held, appointment without consultation is not illegal - petition dismissed. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of.....ordersatish chandra, j. 1. this petition under article 226 of the constitution seeks an information in the nature of quo warranto requiring sri mohan singh munsif, banda, the first respondent to show cause by what authority he is holding the office of munsif.2. the petitioner is one of the defendants to a suit for specific performance of a contract of sale instituted by respondent nos 2 and 3 against the petitioner who is alleged to be a subsequent, purchaser and respondent no. 4, the vendor the suit was filed on 6th of august, 1966, and is pending before sri mohan singh munsif, the first respondent sri mohan singh was appointed as a temporary munsif on 1-3-1961 under the u p civil service (judicial branch) rules 1951 the petitioner challenges the constitutional validity of these rules......
Judgment:
ORDER

Satish Chandra, J.

1. This petition under Article 226 of the Constitution seeks an information in the nature of quo warranto requiring Sri Mohan Singh Munsif, Banda, the first respondent to show cause by what authority he is holding the office of Munsif.

2. The petitioner is one of the defendants to a suit for specific performance of a contract of sale instituted by respondent Nos 2 and 3 against the petitioner who is alleged to be a subsequent, purchaser and respondent No. 4, the vendor The suit was filed on 6th of August, 1966, and is pending before Sri Mohan Singh Munsif, the first respondent Sri Mohan Singh was appointed as a temporary Munsif on 1-3-1961 under the U P Civil Service (Judicial Branch) Rules 1951 The petitioner challenges the constitutional validity of these rules. It is urged that the rules being in violation of the mandatory provisions of the Constitution are void and of no legal effect and appointments made thereunder to the Judicial Service of the State are illegal. The validity of the rules was challenged on the fol-lowins grounds:

(1) That the rules had not been framed after consultation with the High Court as required by Article 234 of the Constitution.

(2) That the rules with respect to appointments to the Judicial Service can only be made under Article 234 of the Constitution and the impuged rules having been expressed to have been made under Article 309 of the Constitution are invalid.

(3) That consultation to be valid ought to have been done after Article 234 came into existence, anv prior consultation is of no legal efficacy.

(4) That the Public Service Commission was not consulted prior to the framing of the rules.

(5) That on a true interpretation. Article 234 requires consultation with the High Court for each appointment and not for making the rules, and the respondents' appointment violated this condition.

3. The State of Uttar Pradesh has in its counter-affidavit repelled the statements of facts in the oetition in relation to these contentions It was stated that the rules were framed after due consultation with the High Court and the Public Service Commission. It was also urged that the rules were valid notwithstanding that they did not mention that they have been framed under Article 234 of the Constitution.

4. Before dealing with the various submissions on their merits, it may be observed that the learned counsel for the petitioner was not right in arguing the case on the basis that the entire burden to establish the validity of his appointment lay on the shoulders of the respondents. The true legal position is that in a quo warranto proceeding the petitioner has to establish the claimed invalidity and then alone can the respondents be required to answer the grounds made fay the petitioner.

5. In Halsbury's Laws oi England 3rd Edition, Vol. II, page 152, Paragraph 289, it is stated that it is not enough to state in the affidavit supporting the application that the respondent is not entitled to the office ..... for the objections to the respondent's title are not thereby specified. The applicant (the incumbent) cannot be called upon to show generally the validity of his election, for the onus is upon the applicant to show a disqualification in the respondent. In Rex v. Jefferson (1833) 5 B & Ad 855 it was alleged that a large proportion of the votes cast were bad, but it was not shown for whom the bad votes were given. In this state of affairs the relief was refused. It is, therefore, evident that the petitioner has to establish the disqualification or the invalidity in the occupation of the office by the respondent before the respondent can be called upon.

6. The first submission of the learned counsel was that the U. P. Civil Service (Judicial Branch) Rules, 1951, violate the mandatory directives of Article 234 of the Constitution. Learned counsel urged that the rules can be framed only after consultation with the High Court, which means consultation with all the Judges of the High Court; in fact all the Judges were not consulted and the alleged consultation was of no value. It was also urged that the consultation within the meaning of Article 234 can only be at a meeting or conference of the Judges of the High Court and not by the process of circulation of the subject matter to the Judges individually.

7. For the first question that consultation with the High Court means consultation with the full Court and not a committee thereof, reliance has been placed by the learned counsel for the petitioner on the decision of Rajasthan High Court in Prem Nath v. State of Rajasthan, AIR 1966 Raj 26. In this case a Bench of the Rajasthan High Court held that consultation with the High Court under Article 233 means consultation with the full Court and not with a committee consisting of the Chief Justice and a few Judges. There is no discussion of the point in this decision and I am unable to endorse the dicta of the Bench. Article 233 of the Constitution requires the Governor to make appointments, posting and promotion of the District Judge in consultation with the High Court. Under Article 234 rules for recruitment to posts other than that of the District Judge are to be made by the Governor after consultation with the High Court. Under Article 235 control over district courts including the posting, promotion of and grant of leave to all persons holding any post inferior to the post of the District Judge is vested in the High Court. This vesting of the control and the consultation of the High Court is an administrative function of the High Court. There is nothing in Chapter VI of Part VI of the Constitution in which these Articles occur, either expressly, or by necessary implication to indicate that the High Court means the whole High Court, that is to say, all the Judges of the High Court. These articles do not prescribe any procedure how the High Court is to act in the matter of consultation or in the matter of exercising the control vested in it.

8. The High Court at Allahabad consists of 39 Judges at present. If it be held that the High Court means all the Judges of the Court, then, the consultation will have to be with all the Judges. Similarly the control vested in the High Court under Article 235 will have to be exercised by all the Judges. Article 233(2) contemplates direct recruitment to the post of District Judges on the recommendation of the High Court. For such recruitment a large number of candidates running into hundreds apply and will have to be considered and examined. It will be practically impossible for all the 39 Judges of the Court to perform the function of screening and examining or interviewing the various candidates. The Supreme Court has in the State of Assam v Rana Mohammad, Civil Appeals : (1968)ILLJ282SC held that the function of transfer is included in the power of control vested in the High Court by Article 235 and is to be exercised by the High Court. Matters like grant of leave to or transfer of individual officers will have to be considered by all the 39 Judges. In the State of West Bengal v. N. N. Bagchi : (1968)ILLJ270SC the Supreme Court has held that the word 'control' in Article 235 includes disciplinary jurisdiction, and the High Court alone can hold enquiries and impose punishments other than dismissal or removal (which are included in power of appointment possessed by the Governor). If the submission advanced for the petitioner be right, all the 39 Judges will have to sit and hold the enquiry and pass orders. This will involve immense practical difficulties. It may become impossible to satisfactorily dispose of such matters. So interpreted the provisions will become rigid.

9. The Constitution aims at flexibility. It does not place any of its functionaries in a straight jacket.

10. The Constitution vests the executive power of the Union and the State in the President (Article 53) and the Governors (Article 154). The President and the Governors have by Articles 76(3) and 166(3) been authorised to make rules for the more convenient transaction of the business of the Government. This is with a view to make the exercise of the executive power conveniently workable The Constitution in Articles 233 to 237 associates the High Court in certain matters and entrusts to it certain other powers in respect of the executive business relating to the administration of justice By Article 225, the Constitution preserves, the powers of its Judges in relation to the administration of justice in the Court Including power to make any rules of Court. The High Court has thus been recognised to have the power to make rules of Court to govern the respective powers of the Judges in relation to the administration of justice in the Court. The rules can provide for the allocation amongst Judges of the business of the Court relating to the administration of justice as also for the manner and method of its performance. Such rules will facilitate the carrying out of the function entrusted to the High Court in respect of administration of justice and would be valid.

11. It was suggested that the term 'High Court' should be construed to mean the whole Court for the purpose of important matters like appointments and promotion and not for minor questions like grant of leave or transfer. There is no indication either in the language or the context, or the legislative history of these Articles that High Court means differently according to whether the question is of promotion or grant of leave. All these functions vest in the same entity. Article 236 uses the term 'High Court' only once and says that control including posting, promotion and grant of leave of officers shall vest in the High Court. The same legal personality will, in my opinion, have power to act in respect of all these mentioned matters. The meaning of the 'High Court' should not be split up according to the importance of the function. The Constitution by recognising the rule-making power of the High Court intended to leave this to the High Court itself. By framing appropriate rules the High Court would lay down as to which function will be performed by the whole Court, that is to say by all the Judges, and which one by committees consisting of lesser number of Judges, or even individual Judges.

12. Learned Counsel placed reliance on the Supreme Court decision in High Court of Calcutta v. Amal Kumar : [1963]1SCR437 for the submission that the High Court cannot delegate functions entrusted to it to any committee. In my opinion this decision is no authority for that proposition. There a Munsif challenged the action of the High Court in deferring consideration of his case for promotion to the post of subordinate Judge. One submission was that the English Committee of the Calcutta High Court had passed the order and that the English Committee had no jurisdiction to do so. The Supreme Court held that this argument was advanced on the assumption that the High Court as such had delegated its power under Article 235 of the Constitution to the English Committee. The Supreme Court rejected the submission. It held that there was no allegation in the plaint that the resolution of the English Committee was not adopted by the full Court in accordance with the rules of business laid down by that Court It also held that in accordance with the rules of the Court the English Committee made recommendations which had to be placed before all the Judges of the High Court under the rules. It then held that there was no basis for the submission either that the High Court had made unjustifiable delegation of the power under Article 235 of the Constitution or that the High Court as a whole did not pass the order which was the alleged cause of action.

13. The Supreme Court has not in this case either expressly or by any implication given its approval to the assumption on which the argument was advanced that the High Court cannot delegate its power under article 235 of the Constitution to a committee. The Supreme Court dealt with the argument in the form in which it was advanced and rejected it on the preliminary ground that the argument does not arise because there was no factual foundation for it in the pleadings under the rules of the Court. No occasion, therefore, arose for the Supreme Court to consider the question of the correctness of the assumed basis that the allocation of such a power to a committee would either be a delegation of powers or that such delegation would be illegal or unconstitutional They have nowhere held that under Article 235 the High Court means the whole High Court that is to say, all the Judges of the Court.

14. There is nothing in the decision of the High Court in Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987 to suggest that the High Court in these Articles means the whole court. The Supreme Court held that under the Higher Judicial Service Rules the Governor prescribes the qualification. The Selection Committee appointed by him selects the candidates. The Governor in effect and in substance does not consult the High Court but only consults its selection committee. The mentioned Selection Committee was to be appointed under the rules framed by the Governor. That was not a committee of the High Court. There is no suggestion anywhere in the judgment of the Supreme Court that if the Governor consults the High Court, a committee of the Judges of the High Court cannot lawfully act for the Court. It does not advert to the rules of the Court relating to the administrative business of the Court. This decision, therefore, cannot be pressed in service for the submission that the High Court means the whole court or that the rules of the Court cannot make provision for allocation of the administrative business of the Court.

15. Assuming, however, that the requisite consultation has to be with the whole Court, the next question is whether the petitioners have established that these 1951 rules were framed without consulting the whole Court. For this purpose learned counsel for the petitioners placed reliance upon the facts mentioned in the counter-affidavit filed by the State. From that it appears that prior to 1952 there were two sets of rules governing the recruitment and conditions of service of Members of the U. P. Civil Services (Judicial Branch). One was the U P. Civil Services (Judicial Branch) Recruitment Rules, 1940 and the other was U. P. Civil Services (Judicial Branch) Conditions of Service Rules, 1942. The State Government considered it advisable to have a combined set of Civil Service Rules for the U. P. Civil Service Judicial Branch and to constitute a separate set of service Rules in respect of the post of District Judge. The U P Civil Service (Judicial Branch) was to comprise the posts inferior to that of a District Judge. It framed a draft set of rules for both the proposed services and sent them to the High Court and the Public Service Commission for their comments on 29-7-1949. In the letter the Government indicated that. the constitution of a Higher Judicial Service and the steps proposed for getting a better type of recruit for the lower judicial service will entail changes in the existing service rules for the United Provinces Civil Service (Judicial Branch), which has at present rules for 'recruitment' and 'conditions of service' The letter further stated that the tentative proposals for a combined set of service rules for United Provinces Civil Service (Judicial Branch) as it will become on the establishment of a Higher Judicial Service, were enclosed in the second set of draft rules which were also for favour of the comments of the High Court/ Commission.

16. Along with his reply dated 7th October, 1949 the Registrar of the High Court forwarded the comments of the Court on the draft rules of the United Provinces Higher Judicial Service and 'amendments to the U P. Civil Services (Judicial Branch) (Recruitment) and (Conditions of Service) Rules'. Some argument was made on the language of this letter. It was submitted that the High Court considered and sent its comments to the Government on the amendments to the pre-existing rules for recruitment and conditions of service, and not to the draft of the combined set of rules for U. P. Civil Services (Judicial Branch). This letter of the Registrar was in reply to the Government's letter dated July 29, 1949. It is to be read in the light of the contents of the letter of the Government. There is no suggestion in the present petition that the Government had made amendments to the pre-existing recruitment and conditions of service rules, apart from the combined set of service rules. The Government had sent no such amendments to the High Court. The Registrar's letter cannot hence be made tht basis of the suggestion that the High Court was consulted in respect of only the amendments to the pre-existing rules. On a fair read-Ing of this letter it appears that the reference was to the combined set of service rules mentioned in the Government letter of July 29, 1949.

17. Annexure III to the counter-affidavit is the reply from the Public Service Commission that the Commission had considered the draft rules for the United Provinces Civil (Judicial) Service and was sending its comments. Thereafter correspondence ensued between the State Government and High Court on the one hand and the State Government and the Public Service Commission on the other, in respect of these rules. The State Government finalised the rules and on 2-1-1951 sent the final draft of the rules to the High Court for its comments. Tht Registrar of the High Court on 1st of February, 1951 forwarded to the Government the comments of the High Court on the final draft rules. Thereafter the rules were published in the Gazette under the notification dated 29th September, 1951. These rules called the U. P Civil Service (Judicial Branch) Rules, 1951 came into force with effect from August 20, 1952 The preamble of the rules states that in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India the Governor of Uttar Pra-desh makes the following rules regulating recruitment to posts in. and the conditions of service of person appointed to, the Uttar Pradesh Civil Service (Judicial Branch).

18. From this correspondence it is clear that the Government referred the proposed rules to the High Court for its comments. It forwarded the finalised set of rules again to the High Court for its consideration. The communication was to the High Court, The consultation hence was within the High Court as such, and not with any individual judge or any committee of the High Court. In paragraph 12 of the petition the allegation that there was no consultation with the full Court has been based only on the aforesaid correspondence. In paragraph 14 of the petition it is stated that Article 234 does not contemplate consultation with a committee of Judges or with one or two individual Judges of the Court. But it is nowhere alleged that the consultation was in fact made by the Government only with some individual Judges or with any committee of the Court. In the absence of any positive allegation in this behalf, the respondents could not be expected to make any detailed answer to this point or to furnish any information as to whether all the Judges of the High Court gave their opinion. The State Government was under a duty to consult the High Court. In discharging this duty it could only refer the rules to the High Court in order to consult it and ask the Court's opinion. If the Government did this, it complied with the constitutional requirement of consulting the High Court. The State Government could not predicate as to how the High Court will deal with the matter The same view was taken in V. K. Kulkarni v. State of Mysore, AIR 1963 Mys 303. On the materials, the conclusion is inescapable that the rules were framed after consultation with the High Court.

19. It was urged that the State Government's letter dated January 2, 1951 forwarding the enclosed draft set of rules was addressed to Hon'ble Mr. Justice V. Bhar-gava. From this it was sought to be inferred that the Government consulted only Mr. Justice Bhargava and not the Court. If this fact had been alleged in the petition, some explanation might have been forthcoming from the respondent's side. The reply dated February 1, 1951 by the Registrar makes it clear that the matter was considered by the Court because he forwarded the views of 'the Court' to the State Government.

20. Learned counsel for the petitioner relied upon Chapter XXIII of the Rules of the Court as it existed in 1949, and urged that thereunder only the English Committee of the Court acted for the Court in matters like recommendations as to the changes in the law etc. The learned counsel has completely misapprehended the Rules of the Court. Chapter XXIII nowhere mentions an English Committee Rule 6 requires the matters mentioned in it to be referred to an English meeting. Under Clause (d) of Rule 6, matters upon which the Government desires the opinion of the whole Court are to be referred to an English meeting. Obviously English meeting can only be of the whole Court, that is to say of all the Judges of the Court. It is a well known fact that English meeting in those days consisted of all the Judges. Under rule 14, English meeting is to be called by the Chief Justice when there is business to be disposed of at an English meeting. Under Rule 15 the Registrar has to give to each Judge at least one clear day's notice of the meeting. There is no provision in the rules for any committee consisting of lesser number of Judges. All these aspects show that the English meeting was of all the Judges of the Court.

21. The rules contained in Chapter XXIII of the Rules of the Court were substituted by a new set of rules with effect from 30th April, 1949. This new set of rules contemplated an Administrative Committee consisting of the Chief Justice and six other Judges. Under Rule 9 of this Chapter, all the Judges of the Court have to be consulted, inter alia, in respect of proposed changes in the law by Clause (a), and in matters which the Administrative Committee considers fit to be laid before them for consideration under Clause (i). The change in the service rules was a change in the law and came under Clause (a) of Rule 9 of Chapter XXIII. Under the rules, all the Judges of the Court had to consider the matter. On the basis of these rules, therefore, it cannot be urged that all the Judges of the Court were not required to be consulted in the matter of framing of the rules for the U. P. Civil Service Judicial Branch.

22. The High Court Rules were repealed and re-enacted in 1952. The re-enacted set of rules came into force on the 15th day of September, 1952, that is after the Civil Service Judicial Branch Rules had been framed, published and also enforced with effect from August 20, 1952. These new rules, therefore will not govern the matter. But assuming that they did, the position is not different because the relevant rules are contained in Chapter III of the Rules and are to the same effect as Chapter XXIII of the old rules after its amendment in 1949. On the basis of the rules, therefore, it cannot successfully be urged that the whole Court was not consulted.

23. It was next urged that consultation within the meaning of Article 234 can only be at a meeting or conference of the Judges of the Court and not by the process of circulation to individual judges. This pre-sup-poses that the matter was dealt with in the High Court by the process of circulation, and not at a meeting of the Judges. There is no averment to this effect. The requisite factual foundation for this submission not having been laid in the petition, I do not consider it necessary to deal with it any further.

24. The next point that needs consideration is whether the rules have been framed under Article 234 of the Constitution. The preamble to the rules states that they have been framed in the exercise of the powers conferred by the proviso to Article 309 of the Constitution, and that they relate to the recruitment and conditions of service. Under the proviso to Article 309 the Governor could legitimately frame rules governing the conditions of service. Article 234 requires the Governor to consult the High Court before making the rules for recruitment. The Governor, therefore had the requisite power to frame rules regarding recruitment. The question is whether the non-mention of Article 234 of the Constitution in the preamble invalidates them. In my opinion, the answer should be in the negative. There is ample authority for it.

25. In Afzal Ullah v. State of Uttar Pradesh : [1964]4SCR991 certain bye-laws were made by a Municipality under Section 298(2) Clauses A(a), (b) and (c). It was held by the Supreme Court that,

'The validity of the bye-laws must be tested by reference to the question as to whether the Board had the power to make those bye-laws If the power is otherwise established the fact that the source of the power has incorrectly or inaccurately been indicated in the preamble to the bye-laws, would not make the bye-laws invalid {vide P. Balakotlah v. Union of India, : [1958]1SCR1052 .'

26. Similarly in Gopal Narain v. State of Uttar Pradesh : [1964]4SCR869 the Supreme Court held that.

'That question of the validity of the tax depends upon the existence of power to tax in respect of a subject. The Municipal Board had certainly power to impose the scavening tax. The mention of Clause (xii) in the notification appears to be a mistake for Clause (xi) and that does not affect the power of the Municipal Board to impose the tax.'

In another case the Supreme Court ruled that the principle is well settled that the exercise of the power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under which it will be a nugatory, Hazarimal v. I.-T. Officer : [1961]41ITR12(SC) .

27. In yet another case, the Supreme Court held that rules purporting to have been made under one provision, were partly sustainable under that provision, but the other part subserved the purpose of another provision which was not mentioned nonetheless the rules would be valid because the two powers will concur to sustain them, E. M. Muthappa Chettiar v. I.-T. Officer : [1961]41ITR1(SC) . Similar views were expressed by a Division Bench of this Court in State of U. P. v. O. P. Sharma, 1964 All LJ 764. The Governor had power to frame rules relating to recruitment under Article 234 and about conditions of service under the first proviso to Article 309. The impugned rules being in respect of both matters are valid because both powers will concur to sustain them and the mere non-mention of Article 234 in the preamble will not affect their validity. The only effect of non-mention of Article 234 would be that no presumption could be raised that the High Court was consulted The respondents do not rely on any presumption. They have sought to establish the fact by evidence.

28. The third submission of learned counsel was that consultation under Article 234 could only be after 26-1-1950. when the Constitution came into force. The process of consultation commenced in 1949 and was of no legal value as Article 234 was not in existence then. I am unable to endorse this submission. The Government consulted the High Court in 1951 afresh, on the finalized draft set of the rules. That satisfied Article 234. Moreover, the Government of India Act, 1935 by Article 255, also similarly required consultation with the High Court. The consultation in 1949 was hence under valid legal authority. Section 6 of the General Clauses Act read with Article 387 of the Constitution will save the validity of these pre-constitution proceedings.

29. The facts mentioned above show that the Public Service Commission was in fact consulted. There is hence no merit in the fourth point raised by learned counsel.

30. The next submission of the learned counsel was that under Article 234, of the Constitution the Governor has to consult the High Court and the Public Service Commission for each appointment and not for framing the rules relating to recruitment. The question is whether the consultation referred to in Article 234 is with reference to the 'appointments' mentioned at the beginning of the Article, or to, the framing of the rules The language of Article 234 is not amenable to the interpretation that the consultation has to be for both of them i.e. for appointments as well as for making of the rules. The legislative history of the Article can usefully be looked into to throw light on the intention of the legislature. The Supreme Court has outlined the Development of the law on this matter in detail in : (1968)ILLJ270SC . Hidayatullah, J. pointed out that the Islington Commission in its report referred to the question of the separation of the executive from the judiciary. The Government of India Act, 1915 did not make any provision for this separation. The question of the independence of the judiciary was considered by the joint committee when the Government of India Act, 1935 was on the anvil. The Committee recommended the separation of the subordinate judiciary. As a result, the Government of India Act, 1935 contained special provisions (Articles 254-256) with regard to District Judges and the subordinate judiciarv Article 255(1) of that Act provided.

'The Governor of each Province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a province.'

This Article was a part of Chapter 2 of Part X which dealt with the Civil Services generally. Thus the first step for achieving the independence of subordinate judiciary was taken. The Governor was to frame rules in consultation with the High Court for defining the standard of qualification for the subordinate Civil Judicial services. The consultation was for making the rules. When the Constitution came to be drafted an advance was made in two respects. The provisions about subordinate judiciary were separated from Part XIV of the Constitution which dealt with the services under the Union and the States, and were incorporated in Part VI immediately after the provisions relating to the High Courts. Secondly, the High Court was associated with the entire matter of recruitment to the subordinate judicial service.

This included not merely the standard of qualifications, but also the method of recruitment as well as the manner of appointment to the Service that is by probation and confirmation. The idea was to make progress towards the goal of independence of the subordinate Judiciary. Under Article 235 of the Government of India Act, the consultation with the High Court was for making of the rules. The same scheme was continued by the Constitution, but the scope of the rules was enlarged. The intention was to make consultation with the High Court compulsory at the stage of the framing of the rule and (not?) merely at the time of individual appointment. The submission of the learned counsel, of accepted, would mean that the Governor need not consult the High Court in the matter of making the rules for recruitment. That will, instead of advancing the manifest intention of securing independence of the subordinate judiciary, set the clock bark.

31. The intention behind taking out the provisions relating to subordinate courts from Part XIV of the Constitution and putting them in Part VI, seems to be to make the consultation with the High Court in the matter of framing of the rules, really effective and thus to secure the independence of the subordinate Judiciary from executive (See AIR 1966 SC 1987 (Para 14)). Under the proviso to Article 309 the Governor is competent to frame rules relating to recruitment as well as condition of service. The rules made by the Governor operate only until a provision in that behalf is made by an Act of the Legislature. The legislature while making an Act under Article 309 is not required even by Article 234, to consult any one. The provision for consultation with the High Court would become nugatory as soon as the legislature acted to enact. To avoid this and to keep the rules governing recruitment to the judicial service outside the purview of the State legislature, Article 234 was taken out of Part XIV which includes Article 309. Article 309 is 'subject to the other provisions of the Constitution', which means and includes Article 234. Article 234, on the other hand, is not subject to any other provision of the Constitution. The rules, made under Art 234, will hence not be subject to any Act of legislature made under Art, 309. Then again, if the Governor alone was to frame the rules for recruitment to the judicial service, there was no point in making this invidious distinction between the rules for the judicial and the other services This distinction became necessary because the rules for the Judicial Service were to be framed in consultation with the High Court. All these aspects of the matter lead to the inevitable view that Article 234 requires consultation with the High Court only in the matter of the making of the rules.

32. Learned counsel for the State referred me to the decision of Rajagopala Ayyangar, J. in N. Devasahayam v. State of Madras, AIR 1958 Mad 53. In paragraph 24 his Lordship has with reference to Article 234 pointed out that.

'The absence of a comma, or other punctuation mark in the Article which may serve to specify 'the appointment' as the event which required the consultation appeared to me very significant. In the absence of any panctuation mark the grammar of the Article seemed to point to the consultation referred to being in relation to the making of the rules.'

His Lordship further drew support from Article 237 of the Constitution. He observed:

'It (Art- 237) refers to the 'foregoing' provisions of this Chapter and any rules made thereunder, and there is no other article in the chapter which refers to any rules made under it except Article 234. The reference to the rules in Article 237 must, therefore, have been to the rules made under Article 234, which necessarily meant (a) that the rules might be made under Article 234, and (b) that these rules required prior consultation of the authorities named before they are made.'

33. In Bagchi's case, : (1968)ILLJ270SC also, the Supreme Court read Article 234 in the same way. Referring to Articles 233 and 234, Hidayatullah, J. observed at page 779 (of SCR)=(at p. 450 of AIR):

'They also provide for special rules to be made by the Governor of the State after consultation with the State Public Service Commission and the High Court exercising jurisdiction in relation to each State.'

Later on at the bottom of page 786 (of SCR)= (at p 454 of AIR) his Lordship observed:

'In the case of the Judicial service subordinate to the District Judge the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court.....'

It is true that Article 234 was not up for interpretation before the Supreme Court, but nonetheless the observations are clear and cogent Article 234 was read in the same manner by the Supreme Court in AIR 1968 SC 1987 (at p. 1993 2nd Col. bottom). In my opinion, the learned counsel for the petitioner is not right in contending that the High Court must in view of Article 234, be consulted for each appointment of a person to the judicial service.

34. The second limb of this argument relates to Rule 21 of the Rules. Rule 21 provides that the Governor shall consult the High Court and shall, after taking into consideration the views of the High Court, select candidates for appointment. It is urged that the appointment of the respondent was not made after consulting the High Court. I may again observe with regret, that this submission has been made without any such averment in the petition. It has nowhere been said that the appointment of the respondent had been made without consulting the High Court. This apart, Sub-rule (2) of Rule 32 of the rules provides a saving clause. It says:

'When in his opinion it appears necessary to do so the Governor may make any appointment to the service in relaxation of these rules and in case of any appointment which is not in strict accordance with the rules the Governor shall be deemed to have made the appointment in relaxation of the rules.'

The position, therefore, is that if there has been any breach of Rule 21, the appointment will be deemed to have been made in relaxation of the said rule. The appointment, therefore, cannot be held to be illegal in that ground.

35. In some of the other writ petitions which were also heard along with this one, the incumbent is occupying the post of Civil Judge. In those petitions (Nos. 3386 of 1966. 3712 of 1966, 3788 of 1966, 3790 of 1966, 3943 of 1966, 4214 of 1966 and 4221 of 1966) the only ground taken was that the rules were invalid and hence also the appointment to the service At the hearing, learned counsel urged that appointment to the service is made on the post of Munsif. Thereafter the officer is promoted to the post of Civil Judge Under Article 235 of the Constitution 'promotion' vests exclusively in the High Court The promotion of the respondent officer not having been done by the High Court, he could not validlv occupy the port of Civil Judge This submission again was made without any averment in the petition that the High Court did not pass the requisite order or that some one else did. In the circumstances the submission cannot be entertained. Thus, all the submission are without merit.

36. The petition fails and is dismissed with costs.


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