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HIGH COURT OF ORISSA
Ray, C. J. And Narasimham, J.
BAISHNAB PATNAIK - Appellant
Versus
STATE - Respondent
Criminal Misc. 88 Of 1951
Decided On : SEPTEMBER 07, 1951
PREVENTIVE DETENTION ACT - ADVISORY BOARD - QUALIFICATIONS OF MEMBERS - AGE LIMIT FOR JUDGES OF HIGH COURT - WHETHER APPLICABLE TO MEMBERS OF ADVISORY BOARD.
Fact of the Case:
The petitioners were detained under the Preventive Detention Act. Their case was referred to the Advisory Board constituted under Article 22(4)(a) of the Constitution, which recommended the continuance of their detention. The petitioners challenged the validity of the Board's recommendation on the ground that two of its members, Sri R. K. Rath and Sri R. C. Mitra, did not possess the necessary qualifications for appointment as members of the Board.
Finding of the Court:
The court held that Sri R. K. Rath and Sri R. C. Mitra possessed the necessary qualifications for appointment as members of the Advisory Board. It held that the age limit for judges of High Courts, as specified in Article 217(1) of the Constitution, did not apply to members of the Advisory Board. The court also held that the disqualification imposed on Sri R. K. Rath by Clause (c) of Sub-section (3) of Section 265 of the Government of India Act, 1935, had been removed by the Governor in accordance with the terms of that clause itself.
Issues: 1. Whether the age limit for judges of High Courts, as specified in Article 217(1) of the Constitution, applied to members of the Advisory Board. 2. Whether the disqualification imposed on Sri R. K. Rath by Clause (c) of Sub-section (3) of Section 265 of the Government of India Act, 1935, had been removed.
Ratio Decidendi: 1. The court held that the qualifications for appointment as a Judge of a High Court as contemplated in Article 22(4)(a) and Article 165(1) of the Constitution referred only to those qualifications described in Clause (2) of Article 217 and did not refer to the age limit fixed in Clause (1) of that Article. 2. The court held that the disqualification imposed on Sri R. K. Rath by Clause (c) of Sub-section (3) of Section 265 of the Government of India Act, 1935, had been removed by the Governor in accordance with the terms of that clause itself.
Final Decision: The court dismissed the petitions.
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 and 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 app
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