PETITIONER:
P.K.SARIN
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT16/12/1994
BENCH:
PUNCHHI, M.M.
BENCH:
PUNCHHI, M.M.
AHMADI A.M. (CJ)
CITATION:
1995 SCC (1) 468 JT 1995 (1) 180
1994 SCALE (5)303
ACT:
HEADNOTE:
JUDGMENT:
The Judgment of the Court was delivered by
PUNCHHI, J.- This bunch of matters comprising a civil appeal
and a few writ petitions under Article 32 of the
Constitution, have a common aim and therefore can
conveniently be disposed of by a common order. Necessary
facts can be gathered from the civil appeal focussing the
issue.
2.The appellants are members of the U.P. Civil Service
(Judicial Branch “Nyayik. Sewa”). They were writ
petitioners in one of the many writ petitions preferred
before and disposed of by the Allahabad High Court,
governing judgment of which is in Dinesh Chander Srivastava
v. State of U.P.1 In sum that judgment is under appeal. The
cause settled therein was the one which arose as an
aftermath of Chandra Mohan v. State of U.p2 and the steps
taken by the State of U.R in pursuance thereof.
3.Candidates for recruiting District Judges in the State of
Uttar Pradesh, under the U.R Higher Judicial Service Rules,
framed by the Government under Article 309 of the
Constitution, could be drawn from three sources i.e. members
of the Bar, Judicial Officers (a misleading expression) who
are members of the Executive Department discharging
magisterial and some revenue duties, and by promotion from
members of U.R Civil Services (Judicial Branch) under the
control of the High Court. Six appointments from two of the
afore-described services, i.e., three from the Bar and three
1 AIR 1977 All 3 1 0
2 (1967) 1 SCR 77 : AIR 1966 SC 1987
471
from the “Judicial Officers” were proposed to be made by the
State, after Involving the High Court, when Chandra Mohan, a
member of the U.P Civil Service (Judicial Branch) and others
filed a writ petition in the High Court for the issuance of
an appropriate writ directing the Government not to make the
appointments pursuant to the proposal. Since the writ
petition was dismissed and the matter was brought to this
Court in appeal, the canvas of dispute, on account of many
points involved, was widely spread, but for our purposes it
would suffice to say that this Court ruled that the rules as
such framed by the Governor empowering him to recruit Judges
from the “Judicial Officers” source were unconstitutional
and the recruitment of the “Judicial Officers” was bad. It
was emphasised by this Court that the Indian Constitution
had provided for an independent judiciary in the States and
in order to put the independence of the subordinate
judiciary beyond question, provision had been made in
Article 50 of the Constitution in the Chapter of Directive
Principles for the separation of the judiciary from the
executive, and further in enacting Articles 233 to 237 in
Part VI, Chapter VI of the Constitution, the appointment of
District Judges in any State was envisaged to be made only
from two sources i.e. (i) Service of the Union or of the
State; and (ii) members of the Bar. This Court went on to
rule that the Service of the Union or of the State mentioned
in the first category did not mean each and every service of
the Union or of the State but judicial service of the Union
or of the State. “Judicial Service” as defined in Article
236(b) meant a service consisting exclusively of persons
intended to fill the post of District Judge and other civil
judicial posts inferior to the post of District Judge.
4.Gathering the history of the Service, it was noticed
that after India attained independence in 1947, there were,
when the source of recruitment to Indian Civil Service had
died out, only two sources from which District Judges had
been recruited, i.e., either from the Judicial Service or
from the Bar, and there was no case of a member of the
executive having ever been promoted as a District Judge. In
this backdrop, it was thought that recruitment of District
Judges from the personnel available in the Executive
Department could be deleterious to the good name of the
judiciary, and an attempt to undermine it had to be frowned
upon. In this backdrop, it was viewed by this Court that
methodology under Article 237 of the Constitution was
available where the Governor had the power to notify that
Articles 223 to 226 could apply to Magistrates, subject to
certain modifications or exceptions, if necessary, and then
effect integration of the Magistrates in the Judicial
Service, which is one of the sources of recruitment to the
post of District Judge. It was emphasised that till such
step is taken in the manner envisaged by Article 237, the
Magistrates (Judicial Officers) were outside the scope of
Articles 223 to 226 of the Constitution. In sum, under the
rules then existing, the State of Uttar Pradesh could not
justify the appointments of “Judicial Officers” as District
Judges and attracted a mandamus issued by the Court for not
making any appointment from the source of
Magistrates/Judicial Officers. The Rules framed by the
Governor, without
472
resort to Article 237, empowering him to recruit District
Judges from the “Judicial Officers” were thus declared
unconstitutional and therefore the appointments of the
“Judicial Officers” concerned were declared bad.
5.The State of Uttar Pradesh went about clearing the
fall-out of Chandra Mohan case2 since the High Court on the
administrative side was also anxious to do justice to the
Magistrates/Judicial Officers. We would in the language of
the High Court, say that the Governor of Uttar Pradesh
issued the notification dated 12-3-1975, under Article 237
of the Constitution directing that the provisions of Chapter
VI of Part VI of the Constitution and any rules made
thereunder shall with effect from the date of notification
apply to Judicial Magistrates (including Chief Judicial
Magistrates) in the State who are members of the U.P.
Judicial Officers Service as they apply in relation to
persons appointed to the Judicial service of the State
subject to two exceptions, namely, (1) the members of the
U.P. Judicial Officers Service shall constitute a judicial
service to fill in the post of Additional Sessions Judge
only for purposes of Articles 233 and 236 of the
Constitution and (2) the U.P Judicial Officers Service shall
be a service distinct and separate from the U.P. Civil
Service (Judicial Branch). By means of this if’
notification the Judicial Magistrates who are members of the
Judicial Officers Service have become eligible for
appointment to the post of Additional Sessions Judge
included within the definition of “District Judge” as
defined by Article 236 of the Constitution. The
notification further declares that the Judicial Officers
Service shall be a judicial service.
6.By another notification dated 21-3-1975, the Governor
of Uttar Pradesh in exercise of his powers under Article 309
read with Article 233 of the Constitution framed rules,
namely, the U.P. Higher Judicial Service Rules, 1975,
regulating recruitment and appointment to the U.P Higher
Judicial Service. Under Rule 4 the Higher Judicial Service
consists of a single cadre comprising the posts of District
and Sessions Judges and Additional District and Sessions
Judges. Rule 5 lays down the sources of recruitment to the
service: According to it, recruitment to the service is to
be made by two sources (a) by direct recruitment of pleaders
and advocates of not less than seven years’ standing and (b)
by promotion of confirmed members of the U.P. Nyayik Sewa
(Members of the U.P. Civil Service, Judicial Branch) who may
have put in not less than seven years’ service in that
cadre. In addition to that Judicial Magistrates and
Judicial Officers have also been made eligible for
appointment but only to the post of Additional Sessions
Judge. Rule 6 prescribes quota for recruitment to the
service from the three sources prescribed by Rule 5. The
rule lays down that 70% of the vacancies are to be filled in
by promotion from the members of the Nyayik Sewa, while 15%
of the vacancies are to be filled by direct recruitment of
advocates and the remaining 15% of the vacancies are to be
filled in by promotion from amongst the members of the U.P.
Judicial Officers Service (Judicial Magistrates).
7.In Part VI of Chapter VI of the Constitution, the word
‘Magistrate’, though employed in Article 237, does not
figure to be defined and thus
473
inevitably resort has to be made to Section 3(32) of the
General Clauses Act, 1897 to note that a ‘Magistrate’ shall
include every person exercising all or any of the powers of
the Magistrate under the Code of Criminal Procedure for the
time being in force. Coming to the Code of Criminal
Procedure, 1973, as now existing, we have courts and
magistrates classified under Section 6 thereof, the latter
as Judicial Magistrates and Executive Magistrates, and the
Court of Session heading the classification. Section 9
provides that every Court of Session shall be presided over
by a Judge to be appointed by the High Court. The High
Court may also appoint Additional Sessions Judges and
Assistant Sessions Judges to exercise jurisdiction in a
Court of Session. The Executive Magistrates have roles and
functions assigned to them under the Code such as
undertaking proceedings under Sections 107, 108, 109, 110,
111, 133 and 145 CrPC. Judicial Magistrates, on the other
hand, are assigned their roles under the Code primarily of
trial of offences, as envisaged under Section 26 of the
Code.
8.The High Court recorded its
understanding of the new role of the
magistracy after the 1973 Code in paragraph 9
of its judgment as follows:
“ The Code of Criminal Procedure, 1973,
conferred power on the High Court to appoint
Sessions Judge, Magistrates, Chief’ Judicial
Magistrate and Special Magistrates and to
confer Magisterial powers on any person or
authority. Under the new Code, the Executive
has nothing to do with the appointment of
Magistrates. In pursuance of the provisions
of the Code of Criminal Procedure, 1973, the
High Court of Allahabad appointed Chief
Judicial Magistrates and the Magistrates with
effect from 1st April, 1974. The persons so
appointed are the same persons who were
earlier functioning as Judicial Magistrates
who had been appointed by the Governor and
were functioning as Judicial Officers. After
their appointment by the High Court, control
over the Magistrates vested in the High Court.
The Governor in order to effectuate the policy
underlying Article 50 of the Constitution
issued the impugned notification dated 12th
March, 1975 applying all the provisions of
Chapter VI of Part VI of the Constitution to
the existing class of Magistrates. The
intention and purpose behind the issue of the
notification is to make the Magistracy free
from executive influence and to make them part
of the Judicial Service of the State along
with civil judiciary.”
At this place, Articles 233, 234, 235, 236 and
237 from Part VI, Chapter VI of the
Constitution may be read with advantage:
“233. Appointment of district judges.- (1)
Appointments of persons to be, and the posting
and promotion of, district judges in any State
shall be made by the Governor of the State in
consultation with the High Court exercising
jurisdiction in relation to such State.
(2)A person not already in the service of
the Union or of the State shall only be
eligible to be appointed a district judge if
he has been for
474
not less than seven years an advocate or a
pleader and is recommended by the High Court
for appointment.
234. Recruitment of persons other than
district judges to the judicial service.-
Appointment of persons other than district
judges to the judicial service of a State
shall be made by the Governor of the State in
accordance with rules made by him in that
behalf after consultation with the State
Public Service Commission and with the High
Court exercising jurisdiction in relation to
such State.
235. Control over subordinate courts.- The
control over district courts and courts
subordinate thereto including the posting and
promotion of, and the grant of leave to,
persons belonging to the judicial service of a
State and holding any post inferior to the
post of district judge shall be vested in the
High Court, but nothing in this article shall
be construed as taking away from any such
person any right of appeal which he may under
the law regulating the conditions of his
service or as authorising the High Court to
deal with him otherwise than in accordance
with the conditions of his service prescribed
under such law.
236. Interpretation.- In this Chapter-
(a) the expression ‘district judge’ includes
judge of a city civil court, additional
district judge, joint district judge,
assistant district judge, chief judge of a
small cause court, chief presidency
magistrate, additional chief presidency
magistrate, sessions judge, additional
sessions judge and assistant sessions judge;
(b) the expression ‘judicial service’ means
a service consisting exclusively of persons
intended to fill the post of district judge
and other civil judicial posts inferior to the
post of district judge.
237. Application of the provisions of this
Chapter to certain class or classes of
magistrates.- The Governor may by public
notification direct that the foregoing
provisions of this Chapter and any rules made
thereunder shall with effect from such date as
may be fixed by him in that behalf apply in
relation to any class or classes of
magistrates in the State as they apply in
relation to persons appointed to the judicial
service of the State subject to such
exceptions and modifications as may be
specified in the notification.”
9. Much before the issuance of the impugned notification
the Government by notification dated 30-9-1967 issued under
Article 237 of the Constitution, had directed separation of
the Judicial Magistrates/Judicial Officers from the
Executive who were thereafter placed under the
administrative control and superintendence of the High Court
with effect from 2-10-1967. The Government, it appears,
stopped thereafter recruitment to the Judicial Officers
Service. On the other hand they continued to remain
ineligible for appointment to a post in the U.P Higher
Judicial Service by the dictate of Chandra Mohan case2. The
Judicial Officers Service thereupon
475
became a suffocated and dying cadre, as members of that
service were left with no avenues of promotion even though
most of them had sufficient experience of criminal judicial
work. The High Court appreciated their predicament and
moved into the matter. The State Government on the
recommendations of the High Court thought it prudent to
utilise the experience of the Judicial Magistrates trying
criminal cases and providing to them avenues of promotion.
With that end in view, the State of U.P. issued the two
notifications impugned before the High Court, as also here,
the effect of which was that the Judicial Officers became
eligible for appointment only to the post of Additional
Sessions Judge, and the Judicial Officers Service was
declared as a Judicial Service, becoming a third source for
recruitment under Rule 6, getting a quota of 15 per cent.
But, in the event of nonavailability of the prospective
candidates or exhaustion of their members, the quota meant
for Judicial Officers/Judicial Magistrates was to go to add
to the quota of the U.P. Civil Services (Judicial Branch)
vis-a-vis direct advocate recruits. Thus in the nature of
things, it was a self-consuming measure, working itself out
in the foreseeable future.
10.Article 237 of the Constitution enables the Governor to
apply the provisions of Chapter VI of Part VI of the
Constitution and any rules made thereunder, to certain class
or classes of Magistrates and not to any other class or
classes of officers. This is a ladder upon which a class or
classes of Magistrates in the State can be made to climb and
get transformed, with effect from a certain date, as persons
appointed to a Judicial Service of the State, subject to
such exceptions and modifications as may be specified in the
notification. The Constitution recognises the judicial
element permeating in the Magistracy, for they deal with the
liberty and property of individuals, functioning as criminal
courts. To put it tersely Magistracy alone is recognized as
judge-material meant for such transformation. Now in the
impugned notification, it is clear that the promotional
avenues of the Magistrates stop at the level of the
Additional Sessions Judge, a court which is a creation of
the Code of Criminal Procedure. In no way is this
designation to be confused with that of the Additional
District Judges. Under Article 236, which is the
interpretation box for Chapter VI, the inclusive definition
of the expression “District Judge” includes an Additional
Sessions Judge but only for the purposes of the Chapter, and
not for any other purpose. The Additional Sessions Judge is
a “District Judge” for the limited purpose of his
appointment as District Judge in terms of Article 233 of the
Constitution.
11.As is evident the domain of the present litigation is
confined to the members of the U.P. Judicial Officers
Service, recruitment to which was stopped after 2-10-1967.
The Service thenceforth became subject to all subtractions
but no addition. The sweep of Article 237 covers
Magistrates existing prior to the separation of judiciary
from the executive, those who may not have been appointed in
accordance with the rules framed under Article 234 or who
might not have been under the control of the High Court
under Article 235. It is towards achieving that end that
the Governor stood
476
empowered under Article 237 to act by means of a
notification, with such exceptions or modifications, as he
might consider fit. The powers thus conferred were
unfettered by any restriction. The Governor could apply all
or only some of the provisions of Chapter IV That here the
Governor in exercising his power under Article 237, issued
the notification of 12-3-1975, classifying Magistrates
(including Chief Judicial Magistrates) in the State as those
who belong to the Uttar Pradesh Judicial Officers Service
and applying to them all the articles contained in Chapter
VI of Part VI of the Constitution. barring of course Article
237, as they apply in relation to persons appointed to the
Judicial Service of the State subject to the exceptions and
modifications namely, (i) the members of the U.P. Judicial
Service Officers shall constitute a Judicial Service to fill
in the post of Additional Sessions Judge only for the
purpose of Articles 233 and 235 of the Constitution; (ii)
U.P Judicial Officers Service shall be a service distinct
and separate from the U.P. Civil Service (Judicial Branch).
12. The point for consideration before the High Court as
also here is whether the Governor could transform the
existing U.P. Judicial Officers Service to be a Judicial
Service of the State alongside the existing U.P. Civil
Service (Judicial Branch). The following passage from
Chandra Mohan case2 was put across to contend that a
distinct service could not be created:
“Article 237 enables the Governor to implement
the separation of the judiciary from the
executive. Under this Article, the Governor
may notify that Articles 233, 234, 235 and 236
of the Constitution will apply to magistrates
subject to certain modifications or
exceptions; for instance, if the Governor s
o
notifies, the said magistrates will become
members of the judicial service, they will
have to be appointed in the manner prescribed
in Article 234, they will be under the control
of the High Court under Article 235 and they
can be appointed as District Judges by the
Governor under Article 233(1). To state it
differently, they will then be integrated in
-the judicial service which is one of the
sources of recruitment to the post of district
judges. Indeed, Article 237 emphasises the
fact that till such an integration is brought
about, the magistrates are outside the scope
of the said provisions. The said view accords
with the constitutional theme of independent
judiciary and the contrary view accepts a
retrograde step.”
13. Reliance on Chandra Mohan case2 is misplaced as we view
it. The above passage talks of an instance of action but is
by no means exhaustive. The State is not bound to adopt the
course of making Magistrates become members of the existing
Judicial Service. They may obviate the procedure to be
followed in making appointments in the manner prescribed
under Article 234. The State is not bound to cause any
integration so that the Magistrates may become members of
the existing Judicial Service. No bar anywhere could be
pointed out to us by learned counsel for the
appellant/petitioners by which the State could be prohibited
from creating a parallel judicial service in which the
Magistracy of the kind involved herein was transformed. As
said before, the Constitution recognises, and it is plain
otherwise, that
477
Magistrates perform judicial functions when trying offences
under the Indian Penal Code and other statutes, empowered as
they are under the Code of Criminal Procedure. There could
thus be no bar to confining the promotional avenues of the
Magistrates to be uptil the Court of the Additional Sessions
Judge and none other. The grievance of the members of the
U.P Civil Service (Judicial Branch) is highly overblown when
it is scanned to discover that they without functioning as
criminal courts and without gaining any experience in that
field, go on to become Additional District and Session
Judges merely on the experience gained on the civil side.
This discloses that what is needed at that stage is judicial
temper. Their attempt to thwart the promotional benefit
given by the impugned notification to the Judicial
Magistrates in becoming Additional Sessions Judges is on the
face of it unequal in comparison to the service benefit
obtained by the personnel of the U.P. Civil Service
(Judicial Branch). The entire matter has to be viewed on
the touchstone of Article 50 of the Constitution. In
separating judiciary from the executive, the personnel of
judicial service so retrieved by separation have to be given
a place as a class as members of the judiciary, either- by
integration in the existing judicial service or by
transformation into a separate judicial service. There
apparently is no other way to place them. Articles 233 to
237 would have to be viewed in this light. On doing so, we
go to agree with the High Court that the impugned
notification of 12-3-1975 and the other consequential
notifications stood validly issued by tile Governor under
Article 237 of the Constitution and that the erstwhile
Magistrates, members of the U.P. Judicial Officers Service,
became members of a separate Judicial Service of the same
name intended to be promoted as Additional Sessions Judges
only in the post meant for the Additional District and
Sessions Judge and to stay apart alongside the U.P. Civil
Service (Judicial Branch). We also view that the said
service was validly created.
14.Before we conclude, we must notice a three-member Bench
decision of this Court in M.L. Sharma v. Union of India3
wherein it was ruled that even if a particular person comes
within the definition given under Article 236 of the
Constitution, it is open to the State Government under
appropriate rules to classify such officer included in the
inclusive definition not to be a District Judge proper and
to belong to a category different from that. That was a
case in converse where a person claimed to have become a
District Judge by means of the inclusive definition and to
have become, by this logic, a member of the Haryana State
Superior Judicial Service. This Court repelled the claim.
This case is of no assistance to either side.
15.There is thus no merit either in the appeal or in the
writ petitions. All of them fail and are dismissed but
without any order as to costs.
3 1992 Supp (2) SCC 430
483