PETITIONER:
SHRI P.K. SARIN & ANR. ETC. ETC.
Vs.
RESPONDENT:
STATE OF U.P. & ORS. ETC.
DATE OF JUDGMENT14/12/1994
BENCH:
A.M. AHMADI, CJI. & MADAN MOHAN PUNCHHI, JJ.
ACT
HEADNOTE
JUDGMENT
PUNCHHI, J.: 1. 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 petition’rs 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 & Ors. v. State of U.P. reported in AIR 1977 All. 310. 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 Uttar Pradesh & Others [1967(1) SCR 77] and the steps taken by the State of U.P. in pursuance thereof. 3. Candidates for recruiting District Judges in the State of Uttar Pradesh. under the U.P. Higher Judicial Service Rules. framed by the Government under Article 309 of the Constitution. could be drawn from flu’ 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.P. Civil Services (Judicial Branch) under the control of the High Court. Six appointments from two of the afore-described services. i... three from the Bar and three from the "Judicial Ofticrs" 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 canvass 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 men- 182 tioned 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 of 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, subjected 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 Judges. 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 Ofricers. The Rules flamed by the Governor, without resort to Article 237, empowering him to recruit District Judges from the "Judicial Officers" were thus declared unconstitutional and therefore the appointments of the concerned "Judicial Officers" were declared bad. 5. The State of Uttar Pradesh went about clearing the fail out of Chander Mohan’s case 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 March 12, 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 Ofricers 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 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 183 236 of the Constitution. The notification further declares that the Judicial Officers Service shall be a judicial service. 6. By another notification dated March 21, 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 R.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 mad 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 R.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 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 very 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 Cod such as undertaking proceedings under sections 107, 108, 109, 110, 111, 133, 133 and 145 Cr.P.C. 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 rcorded its understanding of the new role of the Magistracy alter 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
184
Judicial Magistrates and the Magistrates’ with
effect from l st 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 An.50 of the Constitution issued
the impugned notification dated 12th March,
1975 applying all the provisions of Chap. 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"
9. 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, dialrig 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
Union or of the State shall only be eligible
to be appointed a district judge if an
advocate or a pleader and is recommended by
the High Court for appointment."
"234. RECRUITMENT OF PERSONS OTHER THAN
DiSTRICT JUDGE 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 course court, chief presidency
magistrate. additional chief presidency
megistrate , 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
CHAFFER TO CERTAIN CLASS OR CLASSES OF
MAGISTRATES - The Governor may by public
notification direct that the foregoing
provisions of this Chapter and any rules such
date as may be fixed by him in that
185
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.’’ 10. Much before the issuance of the impugned notification the Government by notification dated September 30, 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 October 2, 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 Chander Mohan’s case. The Judicial Officers service thereupon 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 utilize the experience of the Judicial Magistrate 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 only. and the Judicial Officers Service was declared as a Judicial Service. becoming a third source for recruitment under Rule 6. getting a quota of l 5 per cent. But, in the event of non-availability 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. 11. 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 transformd, 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 recognizes 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 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 186 District Judge in terms of Article 233 of the Constitution. 12. 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 October 2, 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 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 March 12, 1975, classifying Magistrates (including Chief Judicial Magistrates) in the State as those 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 Article 233 and 235 of the Constitution; (ii) U.P. Judicial Officers Service shall be a service distinct and separate from the UP. Civil Service (Judicial Branch). 13. 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’s case 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 so
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." 14. Reliance on Chandra Mohan’s case is mis-placed 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, State is not bound to cause 187 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 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 uptill 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 over-blown when it is scanned to discover that they without functioning as criminal courts and without gaining any experience in that field, get on to become Additional District & 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 March 12, 1975 and the others consequential notification stood validly issued by the 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. 15. Before we conclude, we must notice a three-member Bench decision of this court in M.L. Sharma v. Union of India [1992 (Supp)(2) SCC 430] cited, 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. 16. 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. 188