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Allahbad High Court
SATISHCHANDRA
Chandra Mohan - Appellant
Versus
State of U. P. - Respondent
Decided On : 11/24/1967
CONSTITUTIONAL LAW - 20TH CONSTITUTION AMENDMENT ACT, 1966 - VALIDITY - APPOINTMENT OF DISTRICT JUDGES - U. P. HIGHER JUDICIAL SERVICE RULES - VALIDITY - ARTICLE 233 OF THE CONSTITUTION - INTERPRETATION - ARTICLE 233-A OF THE CONSTITUTION - EFFECT - WRIT OF QUO WARRANTO - ISSUANCE.
Fact of the Case:
The petitioner, a Civil and Sessions Judge, challenged the validity of the 20th Constitution Amendment Act, 1966, which validated the appointments of District Judges made under the U. P. Higher Judicial Service Rules, which were declared unconstitutional by the Supreme Court. The petitioner also sought a writ of quo warranto to oust the respondents, who were appointed as District Judges under the said rules, from their offices.
Finding of the Court:
The Court held that the 20th Constitution Amendment Act, 1966, was unconstitutional and void in so far as it made valid the appointments of the parties to the Supreme Court decision in Chandra Mohan's case, AIR 1966 SC 1987. However, the Court held that the amendment was severable and the rest of it remained valid. The Court also held that the petitioner was not entitled to a writ of quo warranto to oust the respondents from their offices, as there was no material on record to establish that the petitioner's own appointment was illegal.
Issues: 1. Whether the 20th Constitution Amendment Act, 1966, was valid? 2. Whether the petitioner was entitled to a writ of quo warranto to oust the respondents from their offices?
Ratio Decidendi: 1. The Court held that the 20th Constitution Amendment Act, 1966, was unconstitutional and void in so far as it made valid the appointments of the parties to the Supreme Court decision in Chandra Mohan's case, AIR 1966 SC 1987, because it directly and substantially affected Article 142 of the Constitution, which guarantees the enforceability of the decrees and orders of the Supreme Court, and necessitated a change in Article 142, which could only be brought about under the proviso to Article 368 by obtaining the requisite ratification. The amendment was silent as to this necessary consequential amendment in Article 142 and was therefore ultra vires the amending power of Parliament. 2. The Court held that the petitioner was not entitled to a writ of quo warranto to oust the respondents from their offices, as there was no material on record to establish that the petitioner's own appointment was illegal.
Final Decision: The petition was partly allowed. Respondent Nos. 13, 14 and 15 were declared to be holding the post of District Judge illegally and without the authority of the Constitution. A writ in the nature of quo warranto was issued ousting all of them from their offices. No order was made as to costs.
2. The present petition is a concomitant of the Supreme Court decision in an earlier writ petition filed by the petitioner in this Court, Chandra Mohan v. State of U. P., AIR 1966 SC 1987. On 8th August, 1966, the Supreme Court reversed the decision of this Court. It declared that the U. P. Higher Judicial Service Rules (which I shall hereinafter called "the rules") providing for the recruitment of District Judges are constitutionally void, because they infringe Art. 233 of the Constitution and therefore the appointments made thereunder were illegal. This decision invalidated practically all appointments made by promotion or direct recruitment. Thereupon, the judgments rendered by the Judges so appointed were challenged as being without jurisdiction. The majority opinion of a Full Bench of this Court in Jai Kumar v. State, 1966 All WR (HC) 705, decided on 17-10-1966 held that the judgments of such Judges could not be collaterally challenged in appeals till the de facto colour under which they functioned in office had been exposed. In view of this decision all judgments rendered by practically the entire strength of the District Judges after the date of decision of the Supreme Court would have been illegal. To remedy this serious situation, Parliament intervened, and by the 20th Constitution Amendment Act, 1966 (passed on 22nd December, 1966) added the following as Art. 233-A to the Constitution:-
"233-A. Notwithstanding any judgment, decree or order of any Court-
(a) (i) no appointment of any person already in the Judicial Service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a District Judge, in that State, and
(ii) no posting, promotion or transfer of any such person as a District Judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of Article 233 or Article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions;
(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966, by, or before, any person appointed, posted, promoted or transferred as a District Judge in any State otherwise than in accordance with the provisions of Art. 233 or Art. 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions."
It validated all past appointments (except of Judicial Officers) notwithstanding non-compliance of Article 233 and notwithstanding any judgment or decree of any Court Judgments rendered by such Judges were also declared immune.
3. Thereupon the present petition was filed on 1st February, 1967, primarily to challenge the validity of the Twentieth Amendment to the Constitution. The two out of the five questions urged before the Supreme Court, but not answered by it, have also been reiterated in the present petition. Before the Supreme Court the following five points were canvassed :
"(1) While under Article 233 (1) of the Constitution the Governor has to make appointments of persons to be, and the posting and promotions of, District Judges in consultation with the High Court concerned, under the Rules made by the Governor under Article 309 of the Constitution he has to consult, before making such appointments, a selection committee constituted thereunder and therefore, the appointments ma
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