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Baishnab Patnaik and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberCriminal Misc. Nos. 87 and 88 of 1951
Judge
Reported inAIR1952Ori60; 17(1951)CLT366
ActsGovernment of India Act, 1935 - Sections 265(3); Constitution of India - Articles 22(4), 165(1) and 217(2)
AppellantBaishnab Patnaik and ors.
RespondentThe State
Appellant AdvocateV. Pasayat, Adv.
Respondent AdvocateGovt. Adv.
DispositionPetition dismissed
Excerpt:
.....6. but i think the difficulty can be solved by following the well-known rule that words and phrases should be given the same meaning throughout an act. it seems therefore that the better view would be to hold that the qualifications for appointment as a judge of a high court as contemplated in article 22(4)(a) and article 165(1) refer only to those qualifications described in clause (2) of article 217 and do not refer to the age limit fixed in clause (1) of that article......that sub-clause says that a member of the board should be a person qualified for appointment; as a judge of a high court. 3. as regards sri r.k. eath it appears that he was appointed a member of the bihar & orissa public service commission in december 1947 and he ceased to be a member of that commission in march 1949. after that he has not held any office till his appointment as a member of the board. mr. pasayat relied on clause (c) of sub-section (3) of section 265, government of india act, 1935 which says that a member of a provincial public service commission shall not be eligible for any other appointment under the crown in india without the approval of the governor of the province. mr. bath did not continue as a member of the public service commission after the advent of the.....
Judgment:

Narasimham, J.

1. These are petitions under Article 226 of the Constitution against the detention of the petitioners under the Preventive Detention Act. We are informed that their case was referred to the Advisory Board constituted under Sub-clause (a) of Clause (4) of Article 22 of the Constitution and that the Board has recommended the continuance of their detention for the period as originally ordered. We are not concerned with the question about the adequacy of the grounds of their detention or the propriety of the order of detention.

2. Mr. Pasayat on behalf of the petitioners urged that two of the members of the Board, namely, Sri R.K. Rath and Sri R.C. Mitra did not possess the necessary qualifications for appointment as members of the Advisory Board as required by sub Clause (a) of Clause (4) of Article 22 and that consequently the Board was not validly constituted. That sub-clause says that a member of the Board should be a person qualified for appointment; as a Judge of a High Court.

3. As regards Sri R.K. Eath it appears that he was appointed a member of the Bihar & Orissa Public Service Commission in December 1947 and he ceased to be a member of that Commission in March 1949. After that he has not held any office till his appointment as a member of the Board. Mr. Pasayat relied on Clause (c) of Sub-section (3) of Section 265, Government of India Act, 1935 which says that a member of a Provincial Public Service Commission shall not be eligible for any other appointment under the Crown in India without the approval of the Governor of the Province. Mr. Bath did not continue as a member of the Public Service Commission after the advent of the Constitution; nor was he reappointed to that post after that date. Consequently the provisions of Articles 319 and 378 of the Constitution have absolutely no application. A question arises whether the conditional disqualification imposed on him by Clause (c) of Sub-section (3) of Section 265, Government of India Act, 1935 would continue to apply. The answer to this question depends on whether by being a member of the Advisory Board constituted under the Preventive Detention Act he can be said to be holding any appointment under the State. It is however unnecessary for us to decide the question whether such membership constitutes 'appointment.' Even if we assume that he holds an appointment under the State we are satisfied from the affidavit sworn by the Under Secretary to Government in the Home Department that the Governor while considering his appointment as a member of the Board was aware of the fact that he was a member of the Joint Public Service Oommission and then applied his mind to the provisions of law in that respect and then approved his appointment as a member of the Board. Therefore the disqualification contained in Clause (c) of Subsection (3) of Section 265, Government of India Act, 1935 has been removed in accordance with the terms of that clause itself. [4] It was then contended that Clause (e) of Sub-section (3) of Section 265, Government of India Act, would be a bar to the appointment of Sr. R.K. Rath as a Judge of a High Court unless the bar was removed by the Governor-General (now the President of the Union). Therefore, so long as the bar remained Sri R.K. Eath was disqualified from being appointed as a Judge of a High Court and that consequently he did not possess the qualifications for appointment as a member of the Board as required by Sub-clause (a) of Clause (4) of Article 22 of the Constitution. I am however unable to accept this argument. It is true that a Judge of a High Court can be appointed only by the President of the Union. Bat we are now concerned with a personal disqualification to which Sri R.K. Rath was subject by virtue of Clause (c) of Sub-section (3) of Section 265, Government of India Act. That clause says that in the case of an appointment in connection with the affairs of a Province the Governor by giving his approval may remove the disqualification. The appointment of a Judge of a High Court seems undoubtedly to be 'in connection with the affairs of a Province' notwithstanding the fact that the appointing authority is not the Governor but the Governor-General or the President of the Union aa the case may be. Therefore, in terms of that clause the Governor is the competent authority to remove the disqualification by giving bis approval and in the present case, from the affidavit of the Under Secretary to Government in the Home Department it appears that the Governor has removed this disqualification so far as tho the appointment of Sri R.K. Rath as a member of the Advisory Board is concerned. It is unnecessary to consider at present tho broader question aa to who is the competent authority to remove the bar if he is to be appointed as a Judge of a High Court.

5. As regards Sri R.C. Mitra, Mr. Pasayat's submission is that as he is admittedly more than sixty yeara of age he is ineligible for appointment as a Judge of a High Court and consequently does not possess the qualification for appointment aa a Judge of a High Court and is therefore disqualified from being a member of the Advisory Board. Mr. Pasayat further urged that the qualifications for appointment as a Judge of a High Court as contemplated in Sub-clause (a) of Clause (4) of Article 22 relate not only to qualifications described in Clause (2) of Article 217 but also to the age limit specified in Clause (1) of that Article. This question is undoubtedly not free from difficulty. Clause (1) of Article 217 says that a Judge of a High Court shall hold office until he attains the age of sixty years. This clause by implication obviously means that a person who ia more than sixty years of age but possesses the other qualifications for appointment as a Judge of a High Court is still ineligible for such appointment because of the statutory age limit. In a sense therefore the age limit of a Judge may be said to be one of the qualifications for his appointment. But as against this view it may be reasonably urged that in Clause (2) of Article 217 alone are expressly mentioned the words 'qualified for appointment as a Judge of a High Court'. That clause says that a Judge shall not be qualified for such appointment unless: (i) he. is a citizen of India; and (ii) he has held judicial office for at least ten years; or (iii) he has been an advocate of a High Court for at least ten years. I was at first inclined to take the view that the qualifications for appointment as a Judge of a High Court must refer only to those special qualifications which make him fit for that post such as judicial experience or practice at the Bar. This view is supported by the dictionary meaning of the word which is as follows: 'A quality, accomplishment etc., which qualifies or fits a person for some office or function': (Oxford Dictionary). It may be urged that the age of a person can never be a qualification for his appointment because every person is of some age or other and his age has no direct bearing on his fitness for the post of a Judge. Bat as against this argument it may be rightly contended that the citizenship of Indian is also a general qualification which may ordinarily be required for appointment to any post in India of any person and that it has no connection whatsoever with the fitness for the post of Judge of a High Court. It may therefore be argued that if citizenship of India is considered to be one of the qualifications for appointment as a Judge of a High Court there is no reason why the age limit also should not be considered as a qualification.

6. But I think the difficulty can be solved by following the well-known rule that words and phrases should be given the same meaning throughout an Act. The expression 'qualified for appointment as a Judge of a High Court' occurs (subject to grammatical variations) in Sub-clause (a) of Clause (4) of Article 22, Clause (1) of Article 165 (appointment of Advocate General) and again in Clause (2) of Article 217. If the makers of the Constitution thought that the age limit was one of the qualifications for appointment as a Judge of a High Court they would not have specified it in Clause (1) of Article 217 but would have included it in Clause (2) of the said Article. It seems therefore that the better view would be to hold that the qualifications for appointment as a Judge of a High Court as contemplated in Article 22(4)(a) and Article 165(1) refer only to those qualifications described in Clause (2) of Article 217 and do not refer to the age limit fixed in Clause (1) of that Article. Sri R.C. Mitra should therefore be held to possess the qualifications for appointment as a Judge of a High Court and as such eligible to be a member of the Advisory Board constituted under Sub-clause (a) of Clause (4) of Article 22.

7. There being no illegality or want of jurisdiction in the orders passed by the authorities concerned, we see no reason to interfere with the detention of the petitioners.

8. The petitions are dismissed.

Ray, C.J.

9. I agree.


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