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1976 Supreme(All) 358
Allahbad High Court
YASHODANANDAN,K.N.SINGH
Dinesh Chandra Srivastava - Appellant
Versus
The State of U.P. - Respondent
Decided On : 10/26/1976
Jagdish Swarup, for Petitioners; Vinod Swarup, for Respondent.
The Governor has the power to apply the provisions of Chap. VI of Part VI of the Constitution to the existing class of Magistrates by bringing them into contact with the Judicial Service of the State. Once a notification is issued applying the provisions of Chap. VI of Part VI of the Constitution and the rules framed thereunder, the provisions of these Articles would be applicable to Magistrates with full force as they operate in respect of judicial service of the State and Magistrates would become members of judicial service within the meaning of Art.236 (b) of the Constitution.
Headnote:
CONSTITUTION OF INDIA, 1950 - ARTICLES 233, 234, 236 AND 237 - INTERPRETATION - NOTIFICATION ISSUED BY GOVERNOR UNDER ARTICLE 237 - VALIDITY - JUDICIAL OFFICERS SERVICE - WHETHER CONSTITUTES JUDICIAL SERVICE - PROMOTION OF JUDICIAL OFFICERS TO THE POST OF ADDITIONAL SESSIONS JUDGE - VALIDITY - U.P. HIGHER JUDICIAL SERVICE RULES, 1975 - VALIDITY.
Fact of the Case:
The petitioners, members of the U.P. Civil Service (Judicial Branch) Nyayik Sewa, challenged the U.P. Government notification No. 41/13/1966- Appointment-4, dated March 12, 1975, and the U.P. Higher Judicial Service Rules as notified by the U.P. Government Notification No. 41/13/1966-Appointment-4, dated March 21, 1975. They contended that the members of the U.P. Judicial Officers Service (Judicial Magistrates) are not included in Judicial service as defined under Art.236 (b) of the Constitution and as such the notification dated 12th March, 1975, and Rr. 5 and 6 of the 1975 Rules are ultra vires of the Constitution.
Finding of the Court:
The Court held that the impugned notification has been validly issued by the Governor under Art.237 of the Constitution. After the issue of the notification the erstwhile Magistrates who are members of the U.P. Judicial Officers Service have become members of Judicial service as defined by Art.236 (b) of the Constitution with the limitation that they are intended to fill the posts of Additional Sessions Judge only. Even though the U.P. Judicial Officers Service constitutes Judicial Service within the meaning of Art.236 (b) of the Constitution, it is separate from the U.P. Civil Service (Judicial Branch). Since the members of the Judicial Officers Service form part of the Judicial Service of the State, the U.P. Higher Judicial Service Rules as notified by the notification dated March 21, 1975, are valid and they do not violate Art.233 or 236 of the Constitution.
Issues: 1. Whether the members of the U.P. Judicial Officers Service (Judicial Magistrates) are included in Judicial service as defined under Art.236 (b) of the Constitution? 2. Whether the notification dated 12th March, 1975, and Rr. 5 and 6 of the 1975 Rules are ultra vires of the Constitution? 3. Whether the U.P. Higher Judicial Service Rules as notified by the notification dated March 21, 1975, are valid?
Ratio Decidendi: 1. The Court interpreted Articles 233, 234, 236 and 237 of the Constitution and held that the Governor has the power to apply the provisions of Chap. VI of Part VI of the Constitution to the existing class of Magistrates by bringing them into contact with the Judicial Service of the State. Once a notification is issued applying the provisions of Chap. VI of Part VI of the Constitution and the rules framed thereunder, the provisions of these Articles would be applicable to Magistrates with full force as they operate in respect of judicial service of the State and Magistrates would become members of judicial service within the meaning of Art.236 (b) of the Constitution. 2. The Court held that the impugned notification has been validly issued by the Governor under Art.237 of the Constitution. After the issue of the notification the erstwhile Magistrates who are members of the U.P. Judicial Officers Service have become members of Judicial service as defined by Art.236 (b) of the Constitution with the limitation that they are intended to fill the posts of Additional Sessions Judge only. Even though the U.P. Judicial Officers Service constitutes Judicial Service within the meaning of Art.236 (b) of the Constitution, it is separate from the U.P. Civil Service (Judicial Branch). Since the members of the Judicial Officers Service form part of the Judicial Service of the State, the U.P. Higher Judicial Service Rules as notified by the notification dated March 21, 1975, are valid and they do not violate Art.233 or 236 of the Constitution.
Final Decision: The petitions were dismissed with costs.
K. N. SINGH, J. :- These are three petitions under Art.226 of the Constitution which raise common questions of law. We consider it proper to dispose of the three petitions by a common judgment.
2. The petitioners are members of the U. P. Civil Service (Judicial Branch) Nyayik Sewa. They have invoked jurisdiction of this court for the issue of a writ of certiorari quashing the U. P. Government notification No. 41/13/1966- Appointment-4, dated March 12, 1975, and also the U. P. Higher Judicial Service Rules as notified by the U. P. Government Notification No. 41/13/1966-Appointment-4, dated March 21, 1975, and for the issue of a mandamus restraining the State of Uttar Pradesh from giving effect to the said Rules and making any appointment in pursuance thereof.
3. The Governor of Uttar Pradesh issued the notification dated March 12, 1975, under Art.237 of the Constitution directing that the provisions of Chap. 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 Officers Service shall constitute a judicial service to fill in the post of Additional Sessions Judges only for purposes of ArtS.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 Art.236 of the Constitution. The notification further declares that the Judicial Officers Service shall be a judicial service.
4. By another notification dated March 21, 1975, the Governor of Uttar Pradesh in exercise of his powers under Art.309 read with Art.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 made eligible for appointment to the post of Additional Sessions Judges. 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).
5. Prior to the enforcement of the 1975 Rules all the vacancies in the Higher Judicial Service were filled by direct recruitment and by promotion of the members of the Nyayik Sewa. Under the U. P. Higher Judicial Service Rules, 1953, the Judicial Magistrates were not eligible for promotion to any post included in the Higher Judicial Service but the Judicial Officers were eligible for selection as direct candidates along with Advocates. In the year 1965 certain Judicial Officers were selected for appointment to t
