JUDGMENT V.G. Oak, J.
1. The question for consideration in this reference is whether Judicial Magistrates are eligible for appointment to Uttar Pradesh Higher Judicial Service. The reference arises out of three connected writ petitions, in which the proposed appointment of certain persons to Uttar Pradesh Higher Judicial Service is being challenged by the petitioners. It will be sufficient to refer to the facts of one of these three cases.
2. Sri Chandra Mohan is the petitioner in Civil Miscellaneous Writ No. 526 of 1065. He Is temporary Civil and Sessions Judge at Kan pur. The State of Uttar Pradesh la respondent 1. The Registrar of this Court Invited applications for recruitment to the Uttar Pradesh Higher Judicial Service, A selection committee interviewed and examined a number of candidates. The selection committee was of the opinion that six persons, who are respondents 2 to 7 in the writ petition, are suitable for appointment to this service. The petitioner apprehends that respondent 1 is likely to appoint respondents 2 to 7 to the Uttar Pradesh Higher Judicial Service. According to the petitioner, respondents 2 to 7 cannot be appointed to the Uttar Pradesh Higher Judicial Service for various reasons.
3. These writ petitions were heard by a Division Bench of this Court. On moat points the learned Judges of the Division Bench agreed. But there was disagreement on one point. Respondents 5, 6 and 7 are Judicial Officers or Judicial Magistrates. It has been urged for the petitioners that Judicial Magistrates cannot be appointed to Uttar Pradesh Higher Judicial Service. This contention was accepted by Justice Sri Takru. He was of the opinion that, in the absence of a notification under Article 237 of the Constitution, Judicial Magistrates cannot be appointed to Uttar Pradesh Higher Judicial Service. Justice Sri Mathur was of the opinion that Judicial Magistrates are eligible for appointment to Uttar Pradesh Higher Judicial Service, even if no notification under Article 237 of the Constitution was issued. In view of this difference, the following two questions of law have been referred to me:
(1) Does Article 233(1) of the Constitution of India authorize the Governor to appoint, in consultation with the High Court, a person already in the service of the Union or of the State, but not in the Judicial Service, as District Judge, that is, to the Uttar Pradesh Higher Judicial Service ?
(2) Can a Magistrate already in the service of the Union or of the State be appointed a District Judge under Article 233(1) of the Constitution of India, even though no notification under Article 237 has been published by the Governor with regard to the class of Magistrates to which that Magistrate belongs ?
4. In Banarsi Das v. Uttar Pradesh Government , I had occasion to trace the history of civil service in India from 1858 to 1947 with special reference to Judicial Service In United Provinces or Uttar Pradesh. According to the Government of India Act, 1861, all vacancies in the posts specified in the schedule annexed to the Act had to be filled up from amongst the covenanted civil servants of the Crown in India. The offices mentioned in the schedule to the Act included the posts of Civil and Sessions Judges and Chief Judicial Officers of districts. In the Government of India Act, 1870, It was stated that It was expedient that additional facilities should be given for the employment of natives of India of proved merit and ability in the civil service of Her Majesty in India. On 12 January 1893 the Lieutenant-Governor of North-Western Provinces and Oudh Issued a notification to the effect that four posts of District and Sessions Judges might be filled up from appointments of members belonging to the Provincial Civil Services, Section 98B of the Government of India Act, 1915, dealt with civil services in India. Section 98 of that Act reserved certain offices for members of the Indian Civil Service. By a notification dated 30 March 1922 the Governor-General-in-Council framed rules about recruitment to services. By Rule 2, the Local Government was authorized to appoint a member of the Provincial Civil Service or a legal practitioner to a superior judicial office. Rule 3 stated:
Notwithstanding anything contained in Rule 2, the Local Government may, within the limit of a number declared under Rule 1, appoint to a superior executive or judicial office any person not having the qualification prescribed for such office by Rule 2 ...
In the resolution dated 30 March 1922, it was observed that the Government of India wanted to watch the experiment of filling certain District and Sessions Judgeships direct from the bar. The Joint Committee on Indian Constitutional Reforms (Session 1933-34) proposed that a recommendation for direct appointment from the bar should be made from among persons nominated by the High Court.
5. Section 246 of the Government of India Act, 1935, provided for reserved posts. Certain posts were reserved for members of the Indian Civil Service. Section 254 of the Act provided for appointments to the posts of District Judges. Sub-sectiontion (1) of Section 254, Government of India Act, 1935, stated:
Appointments of persons to be, and the posting and promotion of, District Judges\ in any province shall be made by the Governor of the province, exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor.
That provision was similar to the provision in Article 233 of the Constitution of India. By virtue of authority conferred by tine Government of India Act, 1935, the Secretary of State for India framed " The Reserved Posts (Indian Civil Service) Rules, 1938," Rule 2 of the 1938 rules stated:
The posts specified in the schedule to these rules (hereinafter referred to as 'reserved poets') shall be filled either by members of the Indian Civil Service, or by persons, not members of the Indian Civil Service, appointed in accordance with the provisions of these rules.
Rule 4 laid down that a member of the Provincial Judicial Service or a legal practitioner could be appointed to a Judicial post. The posts mentioned in the schedule to the 1938 rules included 29 posts of District and Sessions Judges in the United Provinces. The India (Provisional Constitution) Order, 1947, deleted Section 246 of the Government of India Act. 1932. By this time recruitment to the Indian Civil Service ceased. It, therefore, became necessary to make alternative arrangements for making appointments to posts of District Judges.
6. Chapter VI of Part VI of the Constitution of India deals with subordinate Courts. This chapter contains five articles (Articles 233 to 237). Article 233 provides for appointment of District Judges. Article 234 provides for recruitment of parsons other than District Judges to the Judicial Service. Article 236 deals with control over subordinate Courts. Article 236 contains interpretation of the two expressions, "District Judge" and "Judicial Service. 1' Article 237 provides for application of the provisions of this chapter to certain classes of Magistrates.
7. In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Uttar Pradesh framed in 1953 the Uttar Pradesh Higher Judicial Service Rules. Part III of the rules deals with recruitment. Sources for recruitment are mentioned In Rule 5. According to 01. (1) of Rule 5, recruitment shall be made to the posts of Civil and Sessions Judges by promotion from members of the Uttar Pradesh Civil Service (Judicial Branch), and by direct recruitment after consultation with the High Court. Clause (2) of Rule 5 states:
Persons eligible for direct recruitment under Sub-clause (ii) of Clause (1) of this rule shall be-
(a) barristers, advocates, vakils or pleaders of more than seven years standing;
(b) Judicial Officers, as defined in Uttar Pradesh Government's notification...dated 14 October 1950, who may be eligible for applying for recruitment to the service in accordance with such rules as may be prescribed by the Governor in this behalf from time to time.
The rules framed under Sub-clause (b) of Clause (2) of Rule 5 are to be found in appendix B. Rule 2 of appendix B states:
He should have put in a minimum of seven years' total service in posts of Judicial Magistrates, Revenue Officers' or Judicial Officers or in posts deemed to be equivalent thereto by the Governor for this purpose.
The combined effect of Rule 5 of Uttar Pradesh Higher Judicial Service Rules and Rule 2 of appendix B is that Judicial Magistrates with a standing of seven years are eligible for appointment to the posts of Civil and Sessions Judges. Sri Jagdish Swarup, appearing for two petitioners, contended that Sub-clause (b) of Clause (2) of Rule 5 of Uttar Pradesh Higher Judicial Service Rules is ultra vires the Constitution of India.
8. In State of West Bengal v. N. N. Bagchi (1965) 2 S.C.A. 884, it was held that disciplinary control over District Judges and Judicial Officers subordinate to District Judges including the power to institute enquiries Into their conduct is vested in the High Court. The Executive Government has no authority to institute any such enquiry. The question before the Supreme Court in that case was whether the State Government or the High Court was competent to hold an enquiry against a District Judge. That matter is contained in Article 235 of the Constitution. N. N. Bagchi case (1965) 2 S.O.A. 884 (vide supra,) is of little assistance in understanding the true scope of Article 233.
9. As already mentioned, Article 233 of the Constitution of India provides for appointment of District Judges. Article 233 state:
(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 wits 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 had been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
10. In the present case we have to consider the eligibility of Judicial Magistrates for such appointments. Judicial Magistrates are already in the service of the State. Their case does not fall under Clause (2) of Article 233. We have to consider whether they are eligible for appointment under 01. (1) of Article 233. It will be seen that, under Clause (1) of Article 233, the Governor has very wide discretion In the matter of appointments of District Judges. The only condition Is that there must be consultation with the High Court. Subject to that condition, the Governor may recruit District Judges from any source. According to Article 237, a person shall not be qualified for appointment as a Judge of a High Court unless he satisfies certain conditions. No such qualifications are laid down in Article 233(1) for appointment of District Judges. Suppose a Sales Tax Officer is a barrister. He practised at the bar for a number of years before Joining service. The State Government and the High Court are both satisfied that the person is suitable for appointment to a post of District Judge. It would be open to the Governor to appoint the Sales Tax Officer as a District Judge under Article 233(1). Sri Jagdish Swarup conceded that, if we confine our attention to Article 233(1), the Governor appears to have unlimited field in the matter of selection of District Judges. But Sri Jagdish Swarup contended that this apparently unlimited power Is limited by other articles in Chap. VI of Fart VI of the Constitution. Reliance was placed on Articles 236 and 237.
11. Article 236 contains Interpretation of the two expressions, "District Judge" and " Judicial Service." The expression "District Judge" Includes a Sessions Judge and an Additional Sessions Judge. A Civil and Sessions Judge is either a Sessions Judge or an Additional Session Judge. So, a Civil and Sessions Judge is a District Judge as defined by Clause (a) of Article 236.
Clause (b) of Article 236 states:
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.
12. Relying on this definition of "Judicial Service," Sri Jagdish Swarup contended that Judicial Magistrates are not members of Judicial Service so defined. Consequently they are not eligible for appointment as District Judges.
13. In Shree Hanuman Foundries, Ltd. v. Hem Ranjan Deb and Ors. 1963 1 L.L.J. 683, it was held that a Magistrate did not hold any Judicial office In India. He was not eligible for appointment as a presiding officer of a labour court. That question was governed by Section 7 of the Industrial Disputes Act. Section 7 of Industrial Disputes Act, stated:
A person shall not be qualified for appointment as the presiding officer of a labour court unless--
(a) he has held any Judicial office in India for not less than seven years ...
We have seen that no such condition is to be ' found In Article 233(1) of the Constitution of India.
14. The learned Standing Counsel conceded that Judicial Magistrates do not belong to Judicial Service, as defined in Article 236. But it does not follow that they are not eligible for appointment as District Judges under Article 233(1). Article 234 provides for appointments of persons other than District Judges. There can be no objection to the appointment of a Magistrate as a Munsif under Article 234. If a Magistrate with an experience of three months can be appointed a Munsif under Article 234, there should be no serious objection to the appointment of a Judicial Magistrate of seven years' standing as a District Judge under Article 233(1).
15. Sri Jagdish Swarup laid some stress on the word " exclusively" appearing in the definition of "Judicial Service" in Article 236. It was suggested that the word " exclusively " was inserted in the interpretation clause In order to make it dear that this service is not open to outsiders, Under Clause (2) of Article 233, a legal practitioner with a standing of seven years can be directly appointed a District Judge. A legal practitioner before such appointment is obviously not a member of a Judicial Service. So, the word " exclusively " appearing in Clause (b) of Article 236 of the Constitution of India cannot have the effect of confining recruitment to persons, who are already members of the Judicial Service. We must remember that Article 236 Is an Interpretation clause. An Interpretation clause should not be construed as a provision limiting the wide powers conferred on the Governor in the matter of recruitment of of District Judges under Article 233(1).
16. Article 237 enables the Governor to apply provisions of Chap. VI to certain classes of Magistrates. Article 237 states:
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.
17. It has been urged for the petitioners that Magistrates cannot be appointed District Judges unless the Governor issues a notification under Article 237.
18. Articles 209A to 209E of the draft Constitution correspond to Articles 233 to 237 of the Constitution of India. Dr. Ambedkar's speech with reference to Articles 209A to 209E of the draft Constitution is to be found in the Constituent Assembly Debates, Vol. IX, on pp. 1570 and 1571. With reference to Article 209E of the draft Constitution (corresponding to Article 237 of the Constitution of India), Dr. Ambedkar said:
The Drafting Committee would have been very happy if it was in a position to recommend to the House that Immediately on the commencement of the Constitution, provisions with regard to the appointment and control of the Civil Judiciary by the High Court were also made applicable to the magistracy. But it has been realized, and It must be realized, that the magistracy is Intimately connected with general system of administration. We hope that the proposals which are now being entertained by some of the provinces to separate the Judiciary from the executive will be accepted by the other provinces so that the provisions of Article 209E would be made applicable to the Magistrate in the same way as we propose to make them applicable to the Civil Judiciary. But some time must be permitted to elapse for the effectuation of the proposals for the separation of the Judiciary and the executive. It has been felt that the best thing is to leave this matter to the Governor to do by public notification as soon as the appropriate changes for the separation of the judiciary and the executive are carried through In any of the provinces.
19. It is not necessary to discuss the question whether debates in the Constituent Assembly are admissible in evidence for the purpose of interpreting the Constitution of India. Suffice it to Bay that Dr. Ambedkar's speech brings out the Idea underlying Article 237 of the Constitution. Article 50 states :
The State shall take steps to separate the judiciary from the executive in the public service of the State.
20. Steps taken by different States in India for separation of judiciary from executive are not uniform. There is separation pf judicial and executive functions in the State of Madras. Judicial Magistrates In the State of Madras are under the administrative control of the High Court (Law Commission of India, Fourteenth Report p. 853). The position in Uttar Pradesh is somewhat different.
21. Although Magistrates are engaged in disposing of judicial business, they are often under the control of executive officers. According to Article 235, District Judges and officers holding civil judicial posts are under the control of the High Court. It is open to the Governor to issue a notification directing that Article 235 shall apply to Magistrates also. On the issue of such a notification, Magistrates would come under the control of the High Court. The subject-matter of Article 237 is conditions of service of Magistrates. That article has nothing to do with appointments of District Judges. It is true that Article 237 appears in Chap. VI of Part VI of the Constitution. But it was possible to insert Article 237 in Part XIV dealing with services under the Union and the States.
22. In Rameshwar Dayal v. State of Punjab , their lordships of the Supreme Court interpreted Article 233 thus:
Article 233 is a self-contained provision regarding the appointment of District Judges. As to a person who is already in the service of the Union or the State, no special qualifications are laid down, and under Clause (1) the Governor can appoint such a person as a District Judge in consultation with the relevant High Court. As to a person not already In Service, a qualification is laid down in Clause (2), and all that is required is that he should be an advocate or pleader of seven years' standing.
23. That passage explains the true scope of Article 233 of the Constitution of India. It may be that the plan adopted in Uttar Pradesh Higher Judicial Service Rules, 1963, is slightly different from the plan of recruitment of District Judges that was In force before 1947. But the slight difference in the two plans does not render Uttar Pradesh Higher Judicial Service Rules invalid. Validity of the rules has to be tested in the light of the provisions of Article 233. Under 01. (1) of Article 233 there is no restriction on the Governor's power of appointment of District Judges, except that there must be consultation with the High Court. In my opinion, Sub-clause (b) of 01. (2) of Rule 5 of Uttar Pradesh Higher Judicial Service Rules, 1953, is valid; and Judicial Magistrates are eligible for appointment as District Judges. This is the position whether the Governor has issued a notification under Article 237 or not. My answers to both the questions referred to me are in the affirmative.
24. Let the papers be returned to the Division Bench with these answers.
J.N. Takru and D.S. Mathur, JJ.
25. We were in disagreement on two points which were referred to a third Judge. He has expressed the opinion that Judicial Magistrate could be appointed to the Uttar Pradesh Higher Judicial Service even though no notification under Article 237 of the Constitution of India bad been published by the Governor, Consequently, the respondents other than Sri Om Prakash Jauhari can be appointed to the service. Sri Om Prakash Jauhari was not, as already mentioned earlier, eligible to apply for appointment at the time applications for direct recruitment to the Uttar Pradesh Higher Judicial Service were invited in 1962.
26. In view of the majority opinion the three writ petitions are partly allowed and partly dismissed. A writ in the nature of mandamus shall be issued to direct the State of Uttar Pradesh not to make any appointment to the Uttar Pradesh Higher Judicial Service by direct recruitment on the basis of the test held in February 1965, and also to direct the State of Uttar Pradesh not to make any appointment to this service by direct recruitment in violation of the provisions of the Constitution of India and the valid rules of the Uttar Pradesh Higher Judicial Service Rules, Costs of the three writ petitions Should be on the parties. The stay orders are vacated.