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1968 Supreme(P&H) 182
PUNJAB & HARYANA HIGH COURT
S.B.Capoor and R.S.Narula JJ.
Manmohan Singh Tandon
Versus
Manmohan Singh Gujral
Civil Writ No. 2264 of 1968,
Decided On : DECEMBER 6, 1968
The appointment of a District Judge by the Governor is conditioned by his consultation with the High Court, that is to say, the Governor can appoint a person to the post of District Judge only in consultation with the High Court and not other wise.
Headnote:
CONSTITUTIONAL LAW - APPOINTMENT OF DISTRICT JUDGE - CONSULTATION WITH HIGH COURT - DELEGATION OF POWERS - UNION TERRITORY OF CHANDIGARH - PUNJAB COURTS ACT, 1918, S. 20 - CONSTITUTION OF INDIA, ARTS. 233(1), 239(1).
Fact of the Case:
The appointment of respondent No.1, a permanent Senior scale Superior judicial Service Officer of the Punjab Government , as District Judge, Chandigarh, has been challenged in this writ petition by Manmohan Singh Tandon petitioner who is the opposite party in a pending petition of annulment of his marriage filed by Shrimati Rajinder kaur respondent No. 4 in the Court of the District Judge, Chandigarh) on the following grounds:- (i) Section 20 of the Punjab Courts Act (6 0f 1918) (as subsequently amended) under which notification, dated APRIL 1, (Annexure A ) appointing respondent No.1 as District Judge, Chandigarh, has been issued, is ultra vires article 233 (1) of the Constitution; (ii) The appointment of respondent No.1 as District judge, Chandigarh has been made in violation of Article 233 (1) of the Constitution, as the High Court has not been consulted before making the same; (iii) The Chief Commissioner, Chandigarh, who purports to have made the appointment, has no jurisdiction or authority under the Constitution to appoint a District Judge and this power which vests for the Union Territory of Chandigarh in the President of India, has not been delegated f by the latter to the Chief Commissioner,. Chandigarh, under Article 239 of the Constitution; and (iv) The appointment of respondent No.1 as District judge, Chandigarh, has in fact not been made either by the president of India or even by the Chief Commissioner Chandigarh,, and the impugned notification is not immune from this attack as it does nor Have the protection of clause (3) of Article 166 of the constitution, inasmuch as Section 46 of the Union Territories Act (20 of 1963) does not apply to Chandigarh.
Finding of the Court:
1. Section 20 of the Punjab Courts Act is not unconstitutional as it has to be read subject to the constitutional provision, and is deemed to have been superseded to that extent. 2. The High Court was consulted for appointing the first respondent as District Judge of Chandigarh. 3. The impugned appointment was made by the Chief Commissioner of Chandigarh himself and not merely in his name. 4. The President of India could and has delegated his powers in respect of the administration of Union Territory of Chandigarh to the Chief Commissioner under Article 239 (1) of the Constitution.
Issues: 1. Whether Section 20 of the Punjab Courts Act is unconstitutional? 2. Whether the High Court was consulted for appointing the first respondent as District Judge of Chandigarh? 3. Whether the impugned appointment was made by the Chief Commissioner of Chandigarh himself or not? 4. Whether the President of India could and has delegated his powers in respect of the administration of Union Territory of Chandigarh to the Chief Commissioner under Article 239 (1) of the Constitution?
Ratio Decidendi: 1. Article 372 (1) of the Constitution provides that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered or repealed or amended by a competent Legislature or other competent authority. 2. If the Constitution contains a provision corresponding to the one contained in any other pre-existing law, but the requirements of the two provisions are different, it is the constitutional provision which shall prevail over the statutory provision contained in the pre-constitution Act. 3. Clause (1) of Article 233 of the Constitution makes consultation with the High Court a Condition precedent for the appointment of a District judge, but does not require the formal notification of appointment taken place. 4. The Governor and State Government are not the same things. The Constituent Assembly, while framing Constitution deliberately avoided using the expression " State Government " in Article 233 (1) of the Constitution and used the word "Governor" so as to make it clear that it is the Governor in his individual judgment who has to appoint a District Judge and not on the advice of his Ministers. 5. In respect of the Union Territory of Chandigarh, the powers of the Governor under the Constitution are vested in the president of India. 6. The President of India can delegate all or any of his functions in connection with the governance of a Union Territory to the Administrator of that territory in exercise of his powers under Article 239 of the Constitution.
Final Decision: Writ petition dismissed.
R.S.Narula, J.
1. The appointment of Manmohan Singh Gujral respondent No.1, a permanent Senior scale Superior judicial Service Officer of the Punjab Government , as District Judge, Chandigarh, has been challenged in this writ petition by Manmohan Singh Tandon petitioner who is the opposite party in a pending petition of annulment of his marriage filed by Shrimati Rajinder kaur respondent No. 4 in the Court of the District Judge, Chandigarh) on the following grounds:-
(i) Section 20 of the Punjab Courts Act (6 0f 1918) (as subsequently amended) under which notification, dated APRIL 1, (Annexure A ) appointing respondent No.1 as District Judge, Chandigarh, has been issued, is ultra vires article 233 (1) of the Constitution;
(ii) The appointment of respondent No.1 as District judge, Chandigarh has been made in violation of Article 233 (1) of the Constitution, as the High Court has not been consulted before making the same;
(iii) The Chief Commissioner, Chandigarh, who purports to have made the appointment, has no jurisdiction or authority under the Constitution to appoint a District Judge and this power which vests for the Union Territory of Chandigarh in the President of India, has not been delegated f by the latter to the Chief Commissioner,. Chandigarh in the President of India, has not been delegated by the latter to the Chief Commissioner, Chandigarh, under Article 239 of the Constitution; and
(iv) The appointment of respondent No.1 as District judge, Chandigarh, has in fact not been made either by the president of India or even by the Chief Commissioner Chandigarh,, and the impugned notification is not immune from this attack as it does nor Have the protection of clause (3) of Article 166 of the constitution, inasmuch as Section 46 of the Union Territories Act (20 of 1963) does not apply to Chandigarh.
2. The Union Territory of Chandigarh was carved out of the erstwhile State of Punjab by Section 4 of the Punjab Reorganisation Act) on and with effect from November, 1966. Thereupon the area comprised in the said Union Territory ceased to form part of the then existing State of Punjab. Notification No. S.O. 3269 of was issued in Gazette of India Extraordinary, dated November 1, 1966, under Section 4 of the Punjab Reorganisation Act. The notification (Annexure B) provided inter alia:-
"And whereas the powers exercisable by the State Government under any such law as aforesaid are now exercisable by the Central Government ; Now, therefore, in pursuance of clause (1) of Article 239 of the Constitution and all other powers enabling him in this behalf the President hereby directs that, subject to his control and until further orders, the Administrator of the Union Territory of Chandigarh shall, in relation to the said territory, exercise and discharge, with effect from the 1st day of November, 1966, the powers and functions of the State Government under any such law."
On the same day, i.e., on November I 1966, Government of India, Ministry of Home Affairs Notification No. G.S.P. 1875 (Annexure R-2) was published in the Gazette of India extraordinary of the same day under clause (I) of Article 239 of the constitution in the following words:-
"In exercise of the powers conferred by clause (1) of Article 239 of the Constitution the president hereby directs that all orders and other instruments made and executed in the name of the Chief Commissioner of the Union Territory of Chandigarh shall be authenticated by the signature of a Secretary, a Deputy secretary, an under-Secretary, and Assistant Secretary ion any of the Departments of the Chandigarh Administration".
3. On February 19, 1968, the chief justice and Judges of this Court directed the posting of respondent No.1 as District and Sessions Judges, Chandigarh, and an order of this Court under the signature of the Registrar of this court to the above effect was issued (copy whereof is Annexure "R-1) and copies of the said order were endorsed to the then District and Session
