Kumar Padma Prasad vs Union Of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(SC) 221

SUPREME COURT OF INDIA
KULDIP SINGH, P.B. SAWANT AND N.M. KASLIWAL, JJ.
Shri Kumar Padma Prasad, Petitioner
Versus
Union of India and others, Respondents
Transferred Case (Civil) No. 101 of 1991, D/-10-3-1992.
Advocates appeared :
Mr. V.R. Reddy, Addl. Solicitor General, Mr. Anil B. Divan, Mr. P. K. Goswami, Mr. K.K. Venugopal, Mr. Ram Jethmalani, Mr. M.L. Verma, Mr. Kapil Sibal and Mr. Shanti Bhushan, Sr.Advocates, Mr. A.R.Borthakar, Advocate-General, Mr. K. N.Madhusudan,Asstt. Advocate-General, Mr. Syed Naqvi, Ms. Lira Goswami, Ms. Alpana Kripal, Mr. M.J. Paul, Mr. Kailash Vasudev, Mr. P.P. Tripathi, Mr. Shahid Rizvi, Mr. K.V. Vishwanathan, Mr. Vinod Kumar, Mr. S. Banerjee, Ms. A. Subhashini, Ms. Niranjana Singh, Ms. L. Krishnamurthy, Mrs. H. Wahi, Mr. S.K.Nandy, Ms. Urmila Kapoor, Mr. P. Goswami, Mr. S. Chatterji, Mr. D. N. Mukherjee, Mr. D.N. Mukherjee, Mr. Anil Katiyar, Ms. Kamini Jaiswal, Mr. P.K. Dey, Ms. S. Janani and Ms. Minakshi, Advocates with them for Appearing Parties; Mr. Shanti Bhushan, Ms. Indira Jaisingh, Mr. Soli J. Sorabjee, Sr. Advocate, Mr. Jitendra Sharma, Mr. Prashant Bhushan, Ms. Kamini Jaiswal, Mr. P.H. Parekh and Mr. B.N. Agarwal, Advocates with them, for Intervenor.

Advocates:
A.R.BARTHAKUR, A.Subhashini, ALPANA KIRPAL, Anil B.Divan, ANIL KATIYAR, B.N.AGRAWAL, D.N.MUKHERJI, H.P.VAHI, INDIRA JAISINGH, JITENDRA SHARMA, K.K.VENUGOPAL, K.N.MADHYSUDHAN, K.V.VISHWANATHAN, KAILASH VASUDEV, KAMINI JAISWAL, KAPIL SIBAL, LATA KRISHNAMURTHY, LIRA GOSVAMI, M.J.Paul, M.L.Verma, MINAKSHI, Niranjana Singh, P.H.Parekh, P.K.Dev, P.K.GOSWAMI, P.P.TRIPATHI, Prashant Bhushan, RAM JETHMALANI, S.BANERJEE, S.CHATTERJEE, S.JANANI, S.K.NANDY, SHANTI BHUSHAN, SOLI J.SORABJI, Syed Naqvi, SYED SHAHID HUSSAIN RIZVI, URMILA KAPUR, V.R.REDDY, VINOD KUMAR

Headnote:
Constitution of India,1950 – Articles 217, 219 and 226 - Posted as Law Officer in Finance Department - Tender legal advice - Taxation laws and litigations - Appointment as a Judge - Recommendation included above quoted bio-data - Minister of Law and Justice addressed a letter September to Governor Assam bringing to his notice the names proposed by the Chief Justice of High Court and called for his recommendations and those of the Governors and Chief Ministers of the North Eastern States Governor of Assam by letter dated October conveyed his views and those of other Governors and Chief Ministers of North Eastern States - He recommended name and also sent his bio-data (reproduced above) along with his recommendation - Intelligence Bureau Ministry of Home Affairs Government of India informed the Law Ministry on October that was considered to be professionally competent and nothing adverse regarding character, integrity and political affiliation had come to notice - Held, Governor to implement separation of judiciary from executive - Under this Article Governor may notify that Arts. 233, 234, 235 and 236 of Constitution will apply to magistrates subject to certain modifications or exceptions for instance if Governor so notifies said magistrates will become members of judicial service they will have to be appointed in the manner prescribed in Art. 234 they will be under control of High Court under Art. 235 and they can be appointed as District Judges by Governor under Art. 233(1) - To state it differently they will then be integrated in judicial service which is one of the sources of recruitment to post of District Judges - Indeed, Art. 237 emphasises the fact that till such an integration is brought about magistrates are outside scope of said provisions said view accords with the constitutional theme of independent judiciary and the contrary view accepts a retrograde step - Petition allowed.

Judgment

KULDIP SINGH, J.:- The President of India by a warrant dated October 15, 1991 under his hand and seal appointed K. N. Srivastava as a Judge of Gauhati High Court. He has not as yet made and subscribed an oath/ affirmation as required under Art. 219 of the Constitution of India and as such has not entered upon his office. The question for our consideration is whether the appointment of Srivastava as High Court Judge is infraction of Arts. 217(2) and 217(1) of the Constitution of India. Is he qualified for appointment as a Judge - if so has the mandatory process of consultation under the Constitution been followed.

2. Shri Lal Thanhawla, Chief Minister, Mizoram by his letter dated September 29, 1989 addressed to Chief Justice, Gauhati High Court recommended the name of Srivastava for appointment as a Judge of Gauhati High Court. Capt. W. A. Sangma, Governor of Mizoram reiterated the recommendation by his letter dated October 4, 1989. The Chief Justice, Gauhati High Court by his separate letters dated October 25, 1989 addressed to Governor of Mizoram and Chief Minister, Mizoram acknowledged the receipt of the recommendations and stated that he would take necessary action immediately after formation of a Permanent Bench at Aizwal. Mr. Swaraj Kaushal who succeeded Capt. W. A. Sangma as Governor, Mizoram addressed a detailed letter dated May 5, 1990 recommending Srivastava for appointment as a Judge. Along with the recommendation he enclosed bio-data of Srivastava which is as under:

"BIO DATA OF SHRI K. N. SRIVASTAVA, M.J.S.

LEGAL REMEMBRANCER AND SECRETARY LAW AND JUDICIAL

ETC. GOVERNMENT OF MIZORAM

1. Name : K. N. SRIVASTAVA (KESHARI NANDAN SRIVASTAVA)

2. Fathers Name : Late Sri Krishna Lal

3. Present address : Law Department, Civil Secretariate, Govt. of Mizoram, Aizwal-796001

4. Permanent Address : C/o Sri Chandra Mohan Srivastava, 254 Bazar Jhau Lal, Lucknow U.P. 226001

5. Date of Birth & Age : 30 January, 1938 (52 Years)

6. Nationality/Religion : Indian/ Hindu

7. Qualification : B.A., LL.B. (1957 1959 Lucknow University)

8. Service to which belongs : Mizoram Judicial Service

9. Professional Experience : Took Training for legal practice in 1960 in Lucknow.

2. Joined Govt. of Assam in Law Department in 1966 as Gazetted Officer for Co-ordination and translation of all State Laws in consultation officials Legislative language Commission Govt. of India.

3. Posted as Law Officer in Finance Department of Govt. of Assam to tender legal advice and to look after taxation laws and litigations.

4. Appointed Under Secretary Law & Judicial, Govt. of Mizoram in 1972 to look after all legal matters, advice, litigations, Court cases drafting of State Legislation etc.

5. Held charge of Under Secretary, Secretariat Administration Department, General Administration Department, Revenue, Excise and Taxation Department, Education, and Social Welfare Department, Govt. of Mizoram from time to time.

6. Appointed as Registrar of Firms and Societies, Government of Mizoram from 23-3-72 to 21-12-1979.

8. Appointed Deputy Secretary Law and Judicial and Deputy Legal Remembrancer since 1979 and

9. Legal Remembrancer and Secretary Law and Judicial since 1985 and also.

10. Appointed Presiding Member of one man Mizoram Motor Accident Claims Tribunal in 1986.

11. D. C. (Judicial) in 1987.

12. Presiding Officer, Industrial Tribunal in October, 1989.

13. Declared as Law Officer to appear and conduct cases in all Courts on behalf of Govt. for which also enrolled as an Advocate with the Bar Council of Assam, Nagaland, Meghalaya, Manipur etc., Gauhati High Court, Gauhati.

14. Attended and successfully completed a legal course consisting of studies in International Law and Organisations, Practical and Treaty drafting at London, U.K. from January, 1980 to May, 1980.

15. Member, Mizo Customary Law Committee, and also had been its Chairman during President Rule from September, 1988.

16. Chairman of Executive Committee, Legal Aid and Advice Board.

17. Chairman, State L

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1992 Supreme(SC) 221

Cases Referred (3)