Holding

A "judicial office" for the purpose of Article 217(2)(a) means an office that is part of the judicial service defined in Article 236(b), and the respondent did not hold such an office nor satisfy the ten‑year requirement, rendering his appointment invalid.

Summary

The petition challenged the appointment of K.N. Srivastava as a Judge of the Gauhati High Court on the ground that he did not satisfy the qualifications under Article 217(2) of the Constitution. The Court examined the meaning of "judicial office" and held that it must be an office within the judicial service defined by Article 236(b), not a generic executive post with magisterial powers. Srivastava’s service as Assistant to the Deputy Commissioner under the 1937 Rules and his later executive posts were not part of the judicial service, and the period he served in the Mizoram Judicial Service did not total ten years. Consequently, his appointment was unconstitutional. The Supreme Court quashed the appointment, barred him from taking oath under Article 219, and directed the Union and other respondents not to administer the oath.

Issues considered

The meaning of "judicial office" under Article 217(2)(a) of the Constitution.
Whether the post of Assistant to the Deputy Commissioner under the 1937 Rules qualifies as a judicial office within the meaning of Article 217(2)(a).
Whether the period of service in the Mizoram Judicial Service satisfies the ten‑year requirement of Article 217(2)(a).
Whether the constitutional consultation process under Article 217(1) was complied with.

Legislation cited

Code of Criminal Procedure, 1973
Constitution of Indias. Article 136, s. Article 139A, s. Article 217(1), s. Article 217(2), s. Article 233, s. Article 234, s. Article 235, s. Article 236(b), s. Article 237, s. Article 50
Industrial Disputes Acts. Section 7(3)(d)

Subjects

judicial appointmentqualification of judgeshigh court judgejudicial officeseparation of judiciaryconstitutional lawArticle 217independence of judiciaryjudicial serviceappointment quashed

Judgment

KUMAR PADMA PRASAD A
v.
' UNION OF INDIA AND ORS.

MARCH 10, 1992

[KULDIP SINGH, P.B. SAWANT AND N.M. KASLIWAL, JJ.] B
Constitution of India, 1950 :

Articles 50, 136, 139A, 217 (2 ), 233, 236(b ), 237-High Court
Judge-Appointment-Necessary qualifications-Whether Supreme ·
Court/High Court can exercise jurisdiction on the ground that the incumbent C
does not fulfil qualifications as required by Article 217.

-( 'Judicial Office'-Concept of-Explained.

Government of Mizoram Notification CS/MZ/APPT/79 dated
n.6.1979-Assistant to Deputy Commissioner appointed under Rules 8, 9 D
and 15 of 1937-R.ules for regulation of procedure of officers to administer
justice in Lushai Hills, 1937-R.s. 8, 915-Assistant to Dy. Commissioner-Ex-
ercising powers analogous to those of a Judicial Magistrate First Class under
Code of Criminal Procedure, 1973-Whether holds a judicial office.

Independence of judiciary-Necessity for. E

Administration of justice-Whether High Court can assume jurisdiction
on judicial side to probe into matter purely of administrative nature and
exclusively within purview of Chief Justice.

Words and Phrases F

''Judicial Office'~ ''Judicial service"-fnterpretation of

The Governor of Mizoram, by a letter dated 5.5.1990, addressed to
the Chief Justice of Gauhati High Court, recommended the name of
respondent no. 9 for appointment as a Judge of the High Court. The G
bio-data enclosed with the said letter indicated that respondent no. 9,
after passing L L.B., joined the Government of Assam in Law Department
in 1966 as a Gazetted Officer. He worked on various posts, under the
Government of Mizoram and Assam, such as, Law Officer in Finance
.:;,:.,,artment, Under Secretary, Law and Judicial, Registrar Firms, Deputy H
109
110 SUPREME COURT REPORTS [1992] 2 S.C.R.

A Secretary Law & Judicial and Deputy Legal Remembrancer. In 1985 he
was appointed as Legal Remembrancer and Secretary Law and Judicial.
He worked as D.C. (Judicial) in 1987. He also worked as Member/Presid-
ing Officer/Chairman of certain Tribunals/Committees. The bio data
described him as belonging to Mizoraw Judicial Service. The Chief Justice
forwarded the papers to the Minister of Law and Justice Government of
B India. The Union Law Minister, the Chief Justice of India, the Prime
Minister of India and the President of India on their respective turns
cleared/approved the name of respondent no. 9 for the appointment. The
warrant of appointment was signed by the President of India on 15.10.1991
and the Notification appointing respondent no. 9 as a Judge of Gauhati
C High Court was issued on 25.10.1991.

The petitioner filed a writ petition before the Gauhati High Court
on October 23, 1991 challenging the selection of respondent no. 9 for
>-·
appointment as a Judge of the Gauhati High Court on the ground that he
D was not qualified for such an appointment. The High Court passed an
interim order holding that it was doubtful if respondent no. 9 possessed
qualifications as provided under Article 217(2), and directed· that the
warrant of appointment of respondent No. 9 issued by the President of
India should not be given effect to. Responde~t No. 9 was also restrained
from subscribing his oath or affirmation in terms of Article 219 of the
E ·Constitution.

Before the writ petition was filed by the petitioner, the Mizoram
Bench of Gauhati High Court suo-motu assumed jurisdiction under Ar-
ticle 226 of the Constitution and by its order dated 20.11.1990 directed to
F register a case against respondent no.9 in respect of anomalies in purchase
of law books for the High Court. The Chief Minister, Mizoram by letter
dated 7.10.1991 conveyed to the Union Law Minister that a vigilance case
was instituted against respondent no.9. The lettel_" dated 8.10.1991 ad-
J
dressed by Chief Justice, Gauhati High Court to the Union Law Minister
did not indicate about any such case. The Law Minister ignored the letter
G of the Chief Minister. Later on the State Government by a wireless message
dated 2.11.1991 informed the Department of Justice, Government of India
that respondent no.9 had been placed under suspension in view of the case
pending against him in the High Court. - ~

H Respondent No.9 tiled a special leave petition and a writ petition
PADMAPRASAD v. U.0.1. 111

before this Court. Two transfer petitions, one by respondent no.9 and the A
other by the petitioner, were also ftled seeking transfer to this Court of the
writ petition filed by the petitioner in Gauhati High Court. Consequently
the said Writ Petition was transferred to and was heard by this Court.

It was contended by the petitioner that the appointment of respon-
dent no.9 as a High Court Judge was violative of Article 217(2) of the B
Constitution as be did not fulfil the qualifications prescribed therein
inasmuch as be neither had been an Advocate of a High Court nor had he
ever held a judicial office; and that by virtue of respondent's appointment
as Assistant to the Deputy Commissioner during the year 1979 in addition
to his own duties as Under Secretary, Law and Judicial, be did not hold a C
Judicial Office as envisaged under Article 217(2)(a) of the Constitution.

Allowing the transferred writ petition of the petitioner, this Court,

HELD: 1. The High Court Judges are appointed from two sources,
member of the Bar and from amongst the persons who have held "judicial D
office" for not less than ten years. Even a subordinate judicial officer
manning a court inferior to the District Judge can be appointed as a Judge
of a High Court. [p.131E]

2.1 Expression "Judicial office" has not been defined under the E
Constitution, nevertheless, it bas to be interpreted in consonance with the
scheme of Chapters V and VI of Part VI of the Constitution and has to be
given the meaning in the context of the concept of judiciary as enshrined
tberein. .lfwould'be logical and consistent with the Constitutional scheme
to read "judicial office" under Article 2i7(2)(a) to mean an office within
the judicial service of the State. [pp.127D; 132E; 133FJ F
Statesman (Private) Ltd. v. H.R. Deb & Ors., (1968] 3 SCR 614,
referred to.

2.2 Holder of "judicial office" under Article 217(2){a) means the
person who exercises only judicial functions, determines causes inter- G
partes and renders decisions in a judicial capacity. He must belong to the
judicial service which as a class is free from executive-control abd is
disciplined to uphold the dignity, integrity and independence of judiciary.
The expression "judicial office" in the said Article means an office which
is a part of judicial service as defined under Article 236(b) of the Constitu- H
112 SUPREME COURT REPORTS [1992] 2 S.C.R.

A tion. [pp.131G-H; 132A, F-G]

2.3 Article 236(b) defines "judicial service" to meau District Judges
and Judges subordinate thereto. Appointment of District Judges under
Articles 233(2) can only be from the judicial service of the State as defined
under Article 236(b). [pp.127 EF; 131D]
B
Chandra Mohan v. State of Uttar Pradesh & Ors., [1967J 1 SCR 77, ---{
followed.

2.4 Ordinarily the District Judges who are superior members of the
judicial service are considered for appointment as Judges of the High Court
c but the constitution-makers wanted to hold-out a possibility of elevation as
.:J__ - - -

a Judge of High Court to the Subordinate Judges, so as to infuse amongst
them a sense of responsibility and an incentive for maintaining efficiency
and it was with that objective that the expression "judicial office" has been
>-
used in Article 217 (2) (a) of the Constitution. [p.132E-F]
D
2.5 In order to qualify for appointment as a Judge of a High Court
under Article 217(2)(a) a persons must hold a "Judicial Office" which
must be a part of the judicial service of the State. [p.133F-G]

2.6 The expression "judicial office" in generic sense may include wide
E variety of offices which are connected with the administration of justice in
one way or the other. Although under the Criminal Procedure Code, 1973
powers of Judicial Magistrate can be conferred on any person who holds or
r
has held any office under th~ Government and officers holding various posts

F
under the executive are often vested with the Magisterial-powers to meet a
particular situation, yet the constitution framers did not provide a source of
appointment to the high office of a High Court Judge from amongst the
-
holders ofa "judicial office". [p.131F-G]

2.7 A person-who is holding a judicial office in the generic sense .1_
and is not a member of the judicial service of the State - is not eligible
to be appointed as District Judge. When a person is n,ot eligible to be
G
appointed as a District Judge it would be mockery of the Constitution to
hold that he is eligible to be appointed as a Judge of a High Court. The
Constitutional-scheme is clear. [p.1328-D]
-~
3,1 The independence of judiciary is part of the basic structure of
H the Constitution. To achieve this objective there has to be separation of
PADMA PRASAD v. U.0.1. 113

judiciary from the executive. The framers of the Constitution did not and A
could not have meant by a "judicial office" which did not exist inde-
pendently and the duties or part of the duties of which could be conferred
on any person whether trained or not in the administration of justice. The
Directive Principles as enshrined in Article SO of the Constitution, give a
mandate that the State shall take steps to separate the judiciary from the B
executive which means that there shall be a seprate judicial service free
from the executive control. Chapters V and VI in Part VI of the Constitu-
tion provide for the High Courts and subordinate courts in the State. The
scheme under the Constitution for establishing an independent judiciary
is very clear. The Constitution-scheme, therefore, only permits _members
of the judicial service as constituted in terms of Article 236(b) of the C
Constitution to be considered for the post of District judge and that of the
High Court Judge. [pp.132D; 143D; 144C-D]

~ 3.2 The word "judicial office" in Article 217(2)(a) means a subsist-
ing office with a substantive position which has an existence independent D
from its holder. [p.143E]

Smt. Kanta Katharia v. Manak Chand Surana, [1969) 3 SCC 268 and
Great Western Railway Company v. Bater, 8 Tax Cases 231, referred to.

3.3 The judicial service in a State is distinct and separate from the other E
services under the executive. The members of the judicial service perform
exclusively judicial functions and are responsible for the administration of
justice in the State. Magistrates who are not appointed to the judicial
service of the State can be brought into the judicial service by way of a
notification under Article 237 of the Constitution of India. Till the time there
is separation of judiciary or a notification under Article237 of the Constitu- F
tion of India is issued there is no question of considering the executive
officers or even Magistrates for appointment to the post of District Judge or
a Hig~ Court Judge even though the executive officers or Magistrates
concerned have the adornment of a judicial office. [pp.128A; 145C-E]

3.4 The office of the Assistant to Deputy Commissioner, held by res- G
pondent No.9 for about six months, by virtue of Notification dated 23.6.1979
issued by the Gov~rnment of Mizoram under 1937 Rules for the Regulation
of the procedure of officers appointed to administer justice in the Lushai
,,._ Hills, was neither a'judicial office nor was it part of a judicial service as
defined under Article 236(b) of the Constitution. [pp.138C-H; 143F-G] H
114 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 3.5 Keeping in view the exigency of administration different officers
working with the Government of Mizoram, including respondent no.9,
who was working as Under Secretary, Law and Judicial were by the
Notification dated 23.6.1979, appointed Assistant to Deputy Commissioner
and were invested with the powers of judicial and executive Magistrates in
addition to their own duties. There was no separate office with a designa-
B tion of Assistant to the Deputy Commissioner. Under the 1937 Rules there
was no separation of judiciary from the executive. There was no judicial
service as envisaged by Article 236(b) of the Constitution and as such an
Assistant to Deputy Commissioner could not be a judicial officer in terms
of Article 217(2)(a) of the Constitution. [pp.141E-H; 142A-B]
c
3.6 The office of Legal Remembrancer-cum-secretary Law and Judi-
cial is a non-judicial office under the control of the executive. The Mizoram
Judicial Service came into existence with effect from February 17, 1986 and >--
even if full benefit of that service is given to the respondent for the
purposes of Article 217 (2) (a) he is not qualified as the total period counted
D from February 17, 1986 comes to less than ten years as required under the
said Article. Besides, be never held any of the judicial offices as
enumerated in Schedule A to 1989 Rules pertaining to· Mizoram Judicial
Service, and unless he has held a judicial office in a judicial service he
does not come within the purview of Article 217(2)(a). [p.136A-C]
E
3.7 A cursory look at the bio-data would show that the respondent
was not qualified for appointment as a Judge of the High Court on the r·
admitted facts which have been on the official files all the time. [p.137A]

F
4. The independence, efficiency and integrity of the judidary can
only be maintained by selecting the best persons in accordance with the
procedure provided under the Constitution. These objectives enshrined
--
under the Constitution of India cannot be achieved unless the
functionaries accountable for making appointments act with meticulous
care and utmost responsibility. [p.137A-B]
G S. Ordinarily the domain in such matters lies wholly with the con-
stitutional authorities mentioned in Article 217 of the Constitution, but in
exceptional circumstances like the· present, where the incumbent con·
sidered for appointment as a Judge of a High Court does not fulfil the
qualification J>.S laid down expressly under the provisions of the Constitu-
H tion itself, it becomes bounden duty of the Court to see that no person
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.] 115

ineligible or unqualified is appointed to a high constitutional and august A
,; office of a Judge of a High Court. [p.137E-F]

" 6. The High Court was not justified in assuming jurisdiction on the
judicial side to probe into the anomalies in purchase of books involving
respondent no.9. It was a matter purely of administrative nature and was
exclusively within the purview of the Chief Justice. [pp.123F-G; 124A] B
)-
7. Since on the date of issue of the warrant by the President of India,
respondent no.9 was not qualified to be appointed as a Judge of the High
Court, his appointment would be quashed and the Union of India and
,__A-. other respondents would not administer him oath or affirmation under c
Article 219 of the Constitution of India. [p.145F-G]

S.P. Gupta and others v. Union of India & Ors., [1982] 2 SCR 365,
~ cited.

ORIGINAL JURISDICTION : Transferred Case (Civil) No.101 of
D
1991.

Under Article 139(A)(l) of the Constitution of India.

V.R.Reddy, Add. Solicitor General, Anil B.Divan, P.K.Goswami,
K.K.Venugopal, Ram Jethmalani, M.L.Verma, Kapil Sibal and Shanti
E
Bhushan, A.R.Borthakar, Advocate General, K.N.Madhusudan, Asstt. Ad-
..,, vocate General, Syed Naqvi, Ms. Lira Goswami, Ms. Alpana Kripal,
M.J.Paul, Kailash Vasudev, P.P.Tripathi, Shaihid Rizvi, K.V.Vishwanathan,
Vinod Kumar, S.Banerjee, Ms. A.Subhashini, Ms. Niranjana Singh, Ms.
L.Krishnamurthy, Mrs. H.Wahi, S.K. Nandy, Ms. Urmila Kapoor, P. Gos-
wami, S.Chatterji, D.N.Mukherjee, Anil Katiyar, Ms. Kamini Jaiswal, F
P.K.Dey, Ms. S.Janani and Ms. Minakshi for the appearing parties.
>-
-->. Shanti Bhusan, Ms. Indira J aisingh, Soli J. Sorabjee, Jitendra Sharma,
Prashant Bhushan, Ms. Kamini Jaiswal, P.H. Parekh and B.N. Aggarwal
for the Intervenor. G
The Judgment of the Court was delivered by

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 H
116 SUPREME COURT REPORTS [1992] 2 S.C.R.

A oath/affirmation as required under Article 219 of the Constitution of India
and as such has not entered upon his office. The question for our con- ,..I..._
sideration is whether the appointment of Srivastava as High Court Judge
is infraction of Article 217(2) and 217(1) of the Constitution of India.

Is he qualified for appointment as a Judge - If so has the mandatory
B
process of consultation under the Constitution been followed.

Shri Lal Thanhawla, Chief Minister Mizoram by his letter dated
September 29, 1989 addressed to Chief Justice Gauhati High Court recom-
mended the name of Srivastava for appointment as a Judge of Gauhati
C 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 ad-
dressed to Governor of Mizoram and Chief Minister, Mizoram acknow-
ledged the receipt of the recommendations and stated that he would take
D necessary action immediately after formation of a Permanent Bench at
Aizawl. Mr. Swaraj Kaushal who succeeded Capt. W.A. Sangma as Gover-
nor 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:
E "BIO DATA OF SHRI KN SRIVASTAVA, M.J.S.
LEGAL REMEMBRANCER AND SECRETARY
LAW & JUDIClAL ETC. GOVERNMENT OF MIZORAM ':r

1. Name K.N. Srivastava
F (KESHARI NANDAN SRIVASTAVA)
.
2. Father's Name Late Sri Krishna Lal

3. Present address Law Department
Civil Secretariat
G Govt. of Mizoram,
Aizawl 796001

4. Permanent Address Clo Sri Chandra Mohan Srivastava
254 Bazar Jhau Lal
H Lucknow U.P. 226001
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.) 117

5. Date of Birth & Age 30 January 1938 (52 years) A
6. Nationality/Religion Indian/Hindu

7. Qualification B.A. LL.B.
(1957 -1959 Lucknow University)
B
8. Service to which Mizoram Judicial Service
belongs

9. Professional Took Training for legal practice in 1960 in
Experience Lucknow.
- - _A_
c
2. Joined Govt. of Assam in Law Department
in 1956 as Gazetted Officer for Coordination
and translation of all State Laws in consult-
ation official Legislative language Commission
Govt. of India.
D
3. Posted as Law Officer in Finance Depart-
ment of Govt. of Assam to tender legal advice
and to look after taxation laws and litigations.

4. Appointed Under Secretary Law & Judicial, E
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 Ad- F
ministration Department, Revenue Excise &
Taxation Department, Education, and. Social
Welfare Department, Govt. of Mizoram from
time to time.
G
6. Appointed as Registrar of Firms &
Societies, Government of Mizoram from
23.3.72 to 21.12.1979

8. Appointed Deputy Secretary Law & Judi-
cial and Deputy Legal Remembrancer since H
118 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 1979 and
~

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

iii. Appointed Presiding Member of one man
B Mizoram Motor Accident Claims Tribunal in
1986. --..(

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

12. Presiding Officer, Industrial Tribunal in ...;.___.....
c 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,
D
Meghalaya, Manipur etc., Gauhati High Court,
Gauhati.

14. Attended and successfully completed a
legal course consisting of studies in Interna-
E tional Law & Organizations, Practical &
Treaty drafting at London, U.K. f~om January '_,,.,-
1980 to May 1980

15. Member, Mizo Customary Law Commit-
tee, and also had been its Chairman during
F President Rule for September 1988

16. Chairman of Executive Committee, Legal
Aid and Advice Board. 1
17. Chairman, State l..evel Screening Commit-
G
tee under the Prevention of Illicit Traffic in
Narcotic Drugs.

18. Members, Board of under-graduate studies,
---(
North Eastern Hill University Shillong to con-
H sider course and prospectus for LLB course.
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.] 119

19. Member, Committee to review the Im- A
plementation of the recommendation of All
India Committee on Jail Reforms.

20. Members, Mizoram Resources Mobilisa-
tion and Taxation Enquiry Committee.
B
21. Members, State Level Road Safety Council
for Mizoram.

22. Member, Works Advisory Committee

23. Member, Supply Advisory Board for
c
Assam Rifles in Mizoram

24. Member, Appellate Board for Water and
Air Pollution in Mizoram.
D
Chief Justice Gauhati High Court by his letter dated August 6, 1990
addressed to Minister of Law and Justice, Government of India forwarded
the recommendations, including that of Srivastava, for appointment of
Judges to the Gauhati High Court. The recommendation included the
above quoted bio-data of Srivastava. Minister of Law and Justice addressed E
a letter dated September 10, 1990 to the Governor Assam bringing to his
notice the names proposed by the Chief Justice of the Gauhati High Court
and C'alled-for his recommendations and those of the Governors and Chief
Ministers of the North Eastern States. Shri D.D. Thakur Governor of
Assam by letter dated October 20, 1990 conveyed his views and those of
other Governors and Chief Ministers of North Eastern State. He recom- F
mended Srivastava's name and also sent his bio-data (reproduced abuve)
along with his recommendation. The Intelligence Bureau Ministry of Home
Affairs Government of India informed the Law Ministry on October 8,
1990 that Srivastava was considered to be professionally competent and
nothing adverse regarding character, integrity and political affiliation had G
come to notice. The original file regarding appointment of Judges in the
Gauhati High Court with all the proposals was sent to the Chief Justice of
India. The file containing all the recommendations including that of Srivas-
tava along with his bio-data was considered by the Chief Justice of India
on November 7, 1990. Regarding Srivastava he recorded as under: H
120 SUPREME COURT REPORTS (1992] 2 S.C.R.

A "Shri KN.Srivastava is a judicial officer, there is nothing
adverse against him but his C.R. is not available... After the
CRs of Sri K.N. Srivastava and Shri N.G. Das are obtained the
file may be sent to me ......."

The file was again sent to the Chief Justice of India along with CRs
B of Srivastava. The Chief Justice cleared the name of Srivastava in the
following words:

"So far as Srivastava is concerned he is a Judicial Officer
and there is no objed.on. His name is, therefore, cleared."
c
The Minister of Law and Justice approved Srivastava's appointment
as a Permanent Judge of Gauhati High Court on August 14, 1991. There-
after a summary was prepared by the Department of Justice for the ;>-
consideration of the Prime Minister and the President of India. In the said
D summary Srivastava was presented as under:

"Shri K.N. Srivastava B.A., LL.B. was born on 30th January,
1938. He joined Government of Assam in Law Department in
1956. He was appointed as an Under Secretary, Law and
Judiciary in 1972 and as Registrar of F'trms and Societies,
E Government of Mizoram, from 233.72 to 21.12.79. He was
appointed the Legal Remembrancer and Secretary, Law and
Judiciary in 1985".

The Prime Minister approved the appointment on September 24,
1991 and the President of India on September 30, 1991. The Warrant of
F
Appointment was signed by the President on October 15, 1991 and notifica-
tion appointing Srivastava as a Judge, Gauhati High Court was issued on
October 25, 1991.

Kumar Padma ·Prasad, a practising advocate, filed a writ petition
G under Article 226 of the Constitution of India before Gauhati High Court
on October 23, 1991 challenging the selection of Srivastava for appointment
as a Judge of the Gauhati. High Court on the ground that he was not
qualified for such an appointment. He prayed for issuance of a mandamus ---'{_
directing the Union of India and other respondent(to re-call, rescind or
H otherwise forbear from giving effect to the impugned selection of Srivastava
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.) 121

,.).
for being appointed as a Judge of the Gauhati High Court. The writ A
... petition was listed the same day for hearing before a learned single Judge
of the High Court. The learned Judge issued rule nisi and passed interim
order in the following terms:

"The stay matter shatl be heard on 28.10.1991. Meanwhile
the respondent No.1 Union of India, is restrained from issui:llC B
~··
warrant appointing the respondent No. 9 (Shri K.N. Srivastava)
as Judge of the Gauhati High Court till 28.10.1991."

On October 28, 1991 the High Court noticed the fact that the warrant
-A-- of appointment of Srivastava had already been received at Gauhati. The c
petitioner was permitted to amend the writ petition and the hearing on the
interim relief was adjourned to November 6, 1991. A Division Bench of the
--~ High Court heard the stay matter on November 6, 1991. After noticing the
points raised by the petitioner the High Court observed as under:

"In view of the above discussion, it is doubtful if the respon- D
dent a Shri K.N. Srivastava possesses qualification as provided
under Clause (2) of Article 217. Therefore, a bona fide dispute
has been raised, thereby showing a prima facie case."

The High Court granted the interim stay in the following words:-
E
---....; "In the result, it is ordered and directed that the warrant of
appointment of respondent 9 Shri K N Srivastava issued by the
President of India shall not be given effect to by the concerned
respondents until further ordet's. It is further ordered and
directed the respondent-9 Shri K.N. Srivastava is restrained F
from making and subscribing his oath or affirmation in terms
~ of Article 219 of the Constitution until further orders. However,
?-
notwithstanding the pendency of the writ petition and making
this interim order, the Central Government is given liberty to
+ reconsider the appointment of respondent-9 Shri K.N. Srivas-
tava as Judge in a High Court keep:ng in view the allegations
G
made in this writ petition."

We may at this stage notice another controversy taken-up by the
'>--
High Court on Judicial side. The Mizoram Bench of Gauhati High Court
consisting of S.K. Homchaudhuri and M. Sharma, JJ suo-moto assumed H
122 SUPREME COURT REPORTS [1992] 2 S.C.R.

A jurisdiction on the judicial side presumably under Article 226 of the
Constitution of India and on November 20, 1990 passed the following
order:-

"Register a case under public interest litigation with the
cause title- The Registrar (Judicial), Gauhati High Court Ver-
B sus - Shri K.N. Srivastava, Secretary, Law & Judicial Deptt.
Govt. of Mizoram, Aizawl.

Let a notice be issued to Shri K.N. Srivastava, Secretary, Law
& Judicial Department, Govt. of Mizoram show cause as to
c why an investigation shall not be ordered by this Court in the
~--
matter of purchase of Law Books and journals, furnitures and
stationery articles, by the Law and Judicial Department,
Mizoram for the permanent Bench of the High Court at Aizawl;
or why such further or other orders should not be passed as to
this court· may seem fit and proper.
D
In the interim, we direct the Secretary, Law and Judicial
Department, Govt. of Mizoram to furnish a full particulars of

E
the law books and journals purchased for the Judge's library
positively within 7 (seven) days from the date of receipts of this
notice. The particulars should contain amongst others-(1) total
-
amount of fund allotted by the Govt. and the fund spent with
list of law books purchased, names and particulars of the
suppliers and the price thereof, (3) copies of the bills of the
suppliers, (4) date of payment to the suppliers, and (5) date of
receipt of the books against each payment made etc.
F
The notice to Shri K.N. Srivastava, Secretary Law and Judicial
Department shall be accompanied by copies of letter dated
23-7-1990 and the subsequent reminders.

Let a copy of this order be sent to (1) the Advocate General,
G Mizoram, (2) Chief Secretary to the Govt. of Mizoram, (3) The
Secretary to the Govt. of India, Ministry of Home Affairs, New
Delhi, and (4) The Secretary to the Govt. of India, Ministry of
Law and Justice, New Delhi."

H The above quoted directions were used by the High Court after
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.] 123

taking note, in the same order, of the following facts:- A
..J
"After the permanent Bench was established, regular
Benches, both Division and Single, are sitting at Aizawl. But
the great difficulties are faced by the Judges in discharging their
function of not having the Judge's library equipped with essen-
tial law books and journals. Indeed, we are handicapped while B
\.- - sitting in the Court when reference books and Law journals are
not available in deciding important and complicated question
of law ...........A casual look at the library which mostly filled up
with books of law and Judicial Department purchased earlier,
-~
do not at all disclose that a sum of Rs. 6,45,000- and odd was c
spent for purchase of law books and journals. Important law
journals like- All India Reporters, Supreme Court Reports,
-( Supreme Court Cases etc. do not appear to have been pur-
chased for the library ...............The aforesaid facts and cir-
cumstances and the unusual silence of the Secretary, Law &
"' D
Judicial Department as regards furnishing of particulars of the
Books and journals purchased for the Judge's Library for more
than 4 months, inspite of repeated reminders, gives rise to
strong suspicion that all is not well in the matter of purchase
of law books and journals for the Judge's Library by the Law
& Judicial Department. The Secretary Law is in duty bound to E
furnish full particulars of the law books and journals so put-
-""'(
chased for the Judge's Library and is primarily accountable for
anomalies, misuse, or misappropriation, if any, of the fund
sanctioned by the Govt. for purchase of books for Judge's
Library and the consequent non availability of the essential law
F
books and.journals, is very much detrimental to the function of
the High Court and in turn to the interest of the public at large."
,_
~ We fail to appreciate the action of the two learned Judges of the
High Court in assuming jurisdiction on the judicial side to probe into a
matter which was purely of administrative nature and was exclusively G
within the purview of the Chief Justice. Whether in the matter of purchase
of books for the High Court, Srivastava acted honestly or dis-honestly was
not a matter for the learned Judges to probe by straining their judicial
'r-- powers. Mr. K.K.Venugopal, learned senior Advocate appearing for Srivas-
tava contended that Srivastava's name for appointment as a Judge was H
124 SUPREME COURT REPORTS [1992] 2 S.C.R.

A recommended in August 1990 and by November, 1990 the process of
consultation was at final stages. According to him the order dated Novem-
ber 20, 1990 was passed by the learned Judges with a view to stall his
appointment as a Judge. Be that as it may, we are of the view that there
was no justifiable reason for the learned Judges to have adopted the course
B they did.

The Mizoram Bar Association passed a resolution on October 7,
1991 wherein it was resolved as under:

"While a qualified person Shri R.C. Thanga presently Ad-
C vocate General, Mizoram is excluded at the last stage under
mysterious and suspicious circumstances, a person Shri K.N.
Srivastava. who has no practical experience even for a day as
a Magistrate or as an advocate, and against whom three misap-
propriation cases are pending in the High Court, (Aizawl
D Bench) and whose integrity is seriously being questioned, is
considered to be qualified for appointment as a Judge of
Gauhati High Court in the near future. This Bar Association
vehemently urge the concerned authorities to reconsider or
review the matter."

E Shri Lal Thanhawla, Chief Minister Mizoram, by his letter dated
October 7, 1991 addressed to Shri K.Vijaya Bhaskara Reddy, Minister of
Law, Justice and Company Affairs, Government of India, New Delhi stated
as under:

F "We had recommended Shri K.N. Srivastava, Secretary, Law
and Ju~icial, Government of Mizoram for being considered for
appointment as a Judge of the Gauhati High Court. Subsequent
to our recommendation it has been reported that a vigilance
case has been instituted against Shri Srivastava by the Aizawl
Bench of the Gauhati High Court in regard to alleged
G anomalies in the procurement of law books, journals etc. for
the Aizawl Bench's library.

We understand that the case is pending with the Gauhati
High Court. I have, therefore, thought it desirable to bring this
H fact to your kind notice."
PADMA PRASAD v. U.O.I. [KULDIP SINGH, J.) 125

Shri U.L. Bhat, Chief J~tice, Gauhati High Court by his letter dated A
October 8, 1991 addressed to the Law Minister Government of India stated:

" I am indeed happy that President has approved the names
of four persons for appointment of Judges in the Gauhati High
Court namely, (1) Shri Dhirender Nath Baruah (Assam-Bar)
Shri Sujit Barman Roy (Tripura-Bar), (3) Shri K.N. Srivastava B
(Mizoram- service) and (4) Shri Nai Gopal Das (Tripura-Ser-
vice)."

The Chief Justice did not mention anything about the pendency of
vigilance cases or any other case against Srivastava. The Law Minister after C
noticing the contents of both the letters opined that the contents of the
Chief Minister's letter be ignored.

The Chief Secretary, Government of Mizoram by a wireless message
dated November 2, 1991 informed the Secretary to Government of India,
Department of Justice that Keshari Nandan Srivastava, Secretary, Law and D
Judicial Department, Government of Mizoram had been placed under
suspension in view of the case pending against him in Gauhati High Court
on corruption charges and other serious complaints against him on corrupt
practices. It was further requested that the Government of India should
consider cancelling his appointment as permanent Judge of the Gauhati E
High Court till allegations against him were thoroughly inquired.

Srivastava filed special leave petition against the High Court order,
transfer petition seeking transfer of writ proceedings pending in Gauhati
High Court and also a writ petition under Article 32 of the Constitution of F
India. By an order dated November 20, 1991 this Court withdrew the writ
petition, filed by Kumar Padma Prasad, from the file of the Gauhati High
Court and transferred the same to this Court. This is how the matter is
before us.

Mr. Anil Diwan, learned senior advocate appearing for Kumar G
Padma Prasad and Shri Ram Jethmalani, learned Senior Advocate for the
State of Mizoram have raised the following points for our consideration:

1. Srivastava's appointment as a Judge of Gauhati High Court is
violative of Article 217(2) of the Constitution of India as he does not fulfil H
126 SUPREME COURT REPORTS [1992] 2 S.C.R.

A the qualifications prescribed therein. Admittedly he has not been an advo-
cate of a High Court for at least ten years. The bio-data of Srivastava ,,/"'
before the authorities does not show that he ever held a judicial office in
the territory of India.

2. Srivastava has produced during the course of arguments, a
B notification issued by the Government of Mizoram showing that he was
appointed as Assistant to the Deputy Commissioner Aizawl District during --{
the year 1979 and he worked as such for about 6/7 months. It is contended
by the learned counsel that by virtue of his appointment as Assistant, in
addition to his own duties as Under Secretary, Law and Judicial, Srivastava
c did not hold a judicial office as envisaged under Article 217{2) of the
Constitution.

3. There has been no consultation amongst the constitutional
authorities as required under Article 217{1) of the Constitution of India.
D It was contended that the Gauhati High Court Order dated November 20,
1990, the letter from Chief Minister Mizoram dated October 7, 1991
addressed to the Minister, Law and Justice and the factum of pendency of
vigilance inquiry against Srivastava were some of the important and
relevant material which was not brought of the notice of the constitutional
E authorities and as such the process of consultation is vitiated. Relying on
S.P.Gupta and Ors. etc. etc. v. Union of India and Ors. etc. etc., [1982] 2
S.C.R. 365, It is contended that there has to be "full and effective consult-
ation" on "full and identical facts" . The same material must be present
before the Constitutional functionaries whose consultation is mandatory
under Article 217(1) of the Constitution of India.
F
We may notice Article 217(2) of the Constitution of India which lays
down the qualifications for appointment as a Judge of a High Court.

"217(2) A person shall not be ·qualified for appointment as
G a Judge of a High Court unless he is a a citizen of India and-

(a) has for at least ten years held a judicial office in the
territory of India; or

(b) has for at least ten years been an advocate of a High
H Court or of two or more such Courts in succession;
PADMA PRASAD v. U.O.I. [KULDIP SINGH, J.) 127

Explanation- For the purposes of this clause - A
(a) in computing the period during which a person has held
judicial office in the territory of India, there shall be included
any period, after he has held any judicial office, during which
the person has been an advocate of a High Court or has held
the office of a member of a tribunal or any post, under the B
Union or a State, requiring special knowledge of law;

(aa) ......................

(b) ......................." c
It is not disputed that Article 217(2)(b) is not attracted as admittedly
Srivastava has not been an advocate of a High Court for at least 10 years.
The question for our consideration is whether he has for at least 10 years
held a judicial office in the territory of India as provided under Article
217(2)(a) or read with (a) to the explanation therein. D
\
Expression "Judicial Office" has not been defined under the Constitu-
tion, nevertheless, it has to be given the meaning in the context of the
concept of judiciary as enshrined in the Constitution of India. The constitu-
tion seeks to establish an independent judiciary in the country. Article 50 E
of the Constitution gives a mandate that the State shall take steps to
separate the judiciary from the executive in the public services of the State.
Chapter V and VI in Part VI of the Constitution proved for the High
Courts and subordinate courts in the State. The Scheme under the Con-
stitution for establishing an independent judiciary is very clear. Article
236(b) defines 'judicial service' to mean district Judges and Judges subor- F
dinate thereto. Under Article 234 the Governor of the State makes ap-
pointments of persons other than District Judges to the judicial service in
accordance with the Rules made by him in consultation with the High
Court. Article 235 vests control over district courts and courts subordinate
thereto in the High Court. The judicial service whether at the level of G
district courts or courts subordinate thereto is under the control of the
High Court in all respects. The subordinate judiciary which mans the courts
subordinate to the district courts consists of judicial officers who .are
recruited in consultation with the High Court. The district judges are ·
recruited for amongst the members of the bar and by promotion from the H
128 SUPREME COURT REPORTS [1992] 2 S.C.R.

A subordinate judiciary. The judicial service in a State is distinct and separate
from the other services under the executive. The members of the judicial
service perform exclusively judicial functions and are responsible for the
administration cf justice in the State. We may at this stage refer_ to the
relevant articles of the Constitution which are as under:
B "233. Appointment of district judges. - (1) Appointments of
per~ons to be, and the posting and promotion of, district judges
in any State ·shall be made by the Governor of the State in
consultation with the High Court exercising jurisdiction in
relation ~o such State.
c ~- '
(2) A person not already in the service of the Union or of
the State shall only be eligible to be appointed a district judges
if he has been for not less than seven years an advocate or a
pleader and is recommended by the High Court for appoint-
ment.
D
235. Control over subordinate courts, - The control over district
courts and courts subordinate thereto including the posting and
promotion of, and the grant of leave to, persons belonging to
the judicial service of a State and holding any post inferior to
E the post of district judge shall be V'ested in the High Court, but
nothing in this article shall be construed as taking away from
any such person any right of appeal which he may under the
· '1aw regulating the conditions of his service or as authorising
the High Court to deal with him otherwise than in accordance
with the conditions of his service prescribed under such law.
F
236. Interpretation. In this Chapter -

(a) the expression "district judge" includes judge of a city
civil court, additional district judge, joint district judge, assis-
tant district judge, chief judge of a small caur.e court, chief
G presidency magistrate, additional chief presidency magistrate,
sessions judge, additional sessions judge and assistant sessions
judge;

(b) the expression "Judicial service" means a service con-
H sisting exclusively of persons intended to fill the post of district
PADMA PRASAD v. U.0.I. [KULDIP SINGH, J.] 129

judge and other civil judicial posts inferior to the post of district A
judge.

In Chandra Mohan v. State of Uttar Pradesh & Ors., [1967] 1 SCR 77
this Court had an occasion to construe the above quoted provisions of
Chapter VI Part VI of the Constitution of India. Subha Rao, CJ speaking
for the Court held as under:
B

"The Indiim Constitution, though it does not accept the strict
doctrine of separation of powers, provides for an independent
judiciary in the States; it constitutes a High Court for each
State, prescribes the institutional conditions of service of the c
Judges thereof, confers extensive jurisdiction on it to issue writs
to keep all tribunals, including in appropriate cases the Govern-
ments, within bounds and gives to it the power of superin-
tedence over all courts and tribunals in the territory over which
it has jurisdiction. But the makers of the Constitution also D
realised that "it is the Subordinate Judiciary in India who are
brought most closely into contact with the people, and it is no
less important, perhaps indc,ed even more important, that their
independence should be placed beyond question than in the
case of the superior Judges. Presumably to secure the inde-
pendence of the judiciary from the executive, the Constitution E
introduced a group of articles in Ch. VI of Part VI under the
heading "Subordinate Courts". But at the time the Constitution
was .made, in most of the States the magistracy was under the ,
direct control of the executive. Indeed it is common knowledge
tbat in preindependent India there was a strong agitation that F
the judiciary should be separated from the executive and that
the agitation was based upon the assumption that unless they
were separated, the independence of the judiciary at the lower
levels would be a mockery. So article 50 of the Directive
Principles of Policy states that the State shall take steps to
separate the judiciary from the executive in the public services G
of the States. Simply stated, it means that there shall be a
separate judicial service free from the executive control."

"... the real conflict rests on the question whether the Governor
can appoint as di!trict judges persons from services other than H
130 SUPREME COURT REPORTS [1992] 2 S.C.R.

A the judicial service; that is to say, can he appoint a person who
is in the police, excise, revenue or such other service as a district
judge? The acceptance of this position would take us back to ~
the preindependeuce days and that too to the conditions
prevailing in the Princely States. In the Princely States one used
to come across appointments to the judicial service from police
B
and other departments. This would also cut across the well-knit
scheme of the Constitution and the principle underlying it,
namely, the judiciary shall be an independent service.· Doubt- --r'
less, if Art. 233 (1) stood alone, it may be argued that the
Governor may appoint any person as a district judge, whether
c legally qualified or not, if he belongs to any service under the
~........_,
State. But Art. 233(1) is nothing more than a declaration of the
general power of the Governor in the matter of appointment
of district judges. It does not lay down the qualifications of the
candidates to be appointed or denote the sources from which >-
D the recruitment has to be made. But the resources of recruit-
ment are indicated in cl.(2) thereof. Under cl.(2) of Art. 233
two sources are given, namely, (i) persons in the service of the
Union or the State, and (ii) advocate or pleader. Can it be said
that in the context of Ch. VI of Part VI of the Constitution"
the service of the Union or of the States" mean any service of
E
the Union or of the State or does it mean the judicial service
of the Union or of the State ? l'he setting, viz., the chapter
dealing with subordinate courts, in which the expression "the r
service" appears indicates that the service mentioned therein
the service pertaining to courts. That apart, Art. 236(b) defines
F the expression "judicial service" to mean a service consisting
exclusively of persons intended to fill the post of district 1udge
and other civil judicial posts inferior to the post of district
judge. If this definition, instead of appearing in Art. 236, is
placed as a clause before Art. 233(2), there cannot be any
-\
G dispute that "the service" in Art. 233(2) can only mean the -""
judicial service. The circumstance that the definition of "judicial
service" finds a place in a subsequent Article does not neces-
sarily lead to a contrary conclusion. The fact that in art. 233(2)
the expression "the service" is used _whereas in Arts. 234 and
235 the expression "judicial servi~e" is found is not decisive of
H --i
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.) 131

the question whether the expression "the service" in Art. 233(2} A
must be something other than the judicial service, for, the entire
chapter is dealing with the judicial service. The definition is
exhaustive of the service. Two expressions in the definition
bring out the idea that the judicial service consists of hierarchy
of judicial officers starting from the lowest and ending with B
district judges. The expressions "exclusively" and "intended"
emphasise the fact that the judicial service consists only of
persons intendeci to fill up the posts of district judges and other
civil judicial posts and that is the exclusive service of judicial
officers. Having defined 'judicial service" in exclusively terms,
having provided for appointments to that service arid having C
-,.4__ entrusted the control of the said service to the care of the High
Court, the makers of the world Constitution not have conferred
a blanket power on the Governor to appoint any person from
-'---·. any service as a district judg~s.".
D
This Court has thus authoritatively laid down that the appointment
of district judges under Article 233(2) can only be from the judicial service
of the State as defined under Article 236(b) of the Constitution.

It is in the above context that we have to interpret the meaning of E
expression "judicial office" under Article 217(2)(a) of the Ccnstitution of
India. The High Court Judges are appointed from two sources, member$
of the Bar and fi:om amongst the persons who have held "judicial office"
for not less than ten years. Even a subordinate judicial officer manning a
court inferior to the District Judge can be appointed as a Judge of a High
Court. The expression "judicial office" in generic sense may include wide
F
variety of offices which are connected with the administration of justice in
one way or the other. Under the Criminal Procedure Code 1973 powers of
judicial Magistrate can be conferred on any person who holds or has held
any office under the Government. Officers holding various posts under the
executive are often vested with the Magesterial-powers to meet a particular G
situation. Did the framers of the Constittttion had this type of 'offices' in
mind when they provided a source of appoiptment to the high office of a
Judge of High Court from amongst the holders of a "judicial office". The
answer has .to be in the negative. We are of the view that holder of "judicial
office" under Article 217(2)(a) means the person who exercises only judi- H
132 SUPREME COURT REPORTS [1992] 2 S.C.R.

A cial functions, determines causes inter-partes and renders decisions in a
judicial capacity. He must belong to the judicial service which as a class is ·
free form executive-control and is disciplined to uphold the dignity, in-
tegrity and independence of judiciary.

This Court in Chandra Mohan's case (supra) has held that "Ser-
B vice ...... of t1J.e State" in Article 233(2) means the judicial service as defined
under Article 236(b) of the Constitution. Therefore, a person - who is
holdng a judicial office in the generic ~ense and is not a member of the
judicial service of the State - is not eligible to be appointed as District
Judge. Can such person be qualified for appointment as a Judge of a High
C Court? An affirmative answer will not be in conformity with the scheme of
Chapter V and VI of Part VI of the Constitution and will also go contrary
to the ratio in Chandra Mohan's case. When a person is not eligible to be
appointed as a District Judge it would be mockery of the Constitution to
hold that he is eligible to be appointed as a Judge of a High Court. The
D constitutional-scheme is clear. Independence of judiciary is the basic fea-
ture of the Constitution. To achieve that objective there has to be separa-
tion of judiciary from the executive. The judicial service under Article
236(b) consists of District Judges who preside over. the District Courts and
the Subordinate Judges who man the courts inferior to the District Courts.
E Subordinate Judges who are member of the judicial service are eligible for
appointment as District Judges. It would be logical and consistent with the
constitutional scheme to read "judicial office" under (Article 217(2)(a) to
mean an office within the judicial service of the State. Ordinarily the
District Judges who are superior membt<rs of the judicial service are
considered for appointment as Judges of the 'High Court but the constitu-
F tion-makers wanted to hold-out a possibility of elevation a:; a Judge of High
Court to the Subordinate Judges, so as to infuse amongst them a sense of
responsibility and an incentive for maintaining efficiency and it was with
that objective that the expression"judicial office" has been used in Article
217(2)(a) of the Constitution. In our view the expression "judicial office" in
G the said article means an office which is a part of judicial service as defined
under Article 236(b) of the Constitution.

In Statesman (Private) Ltd. v. H.R, Deb & Ors., (1968] 3 SCR 614, the
question before this Court was whether a Sub-Deputy Collector vested with
H the powers of a first class magistrate was a judicial officer in terms of
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.] 133

Section 7(3)( d) of the Industrial Disputes Act. The said section provides A
that a person shall not be qualified for appointment as the presiding officer
of a labour court unless he has held any judicial office in India for not less
than 7 years. H.R. Deb was holding office of the Sub-Deputy Collector and
was vested with magisterial powers which he enjoyed for about nineteen
years. He was appointed presiding officer of a labour court. His appoint- B
ment was challenged on the ground that he had not held judicial office for
7 years prior to his appointment. Hidayatullah, C.J. who spoke for the
Court held that since a magistrate exercises judicial functions he holds a
judicial office. Whether his duties are partly judicial and partly other does
not in any way detract from the position that while acting as a magistrate
he is a judicial officer. On these findings the appointment of H.R. Deb as
c
...( a labour officer was upheld. While holding so the learned Chief Justice
observed as under:

"Nor does the argument that magistrates will claim to be
appointed Judges of the High Court need detain us. The D
scheme of Chapter V of Part VI of the Constitution has its own
affect on the meaning of the expressions 'judicial office' and
'judicial service'. In any case the use of the same expression in
any other enactment not in pari materia can have no bearing
upon the Industrial Disputes Act and vice versa. In the Con- E
stitution these words must bear the meaning which the context
dic,tates and in that connection the history of appointment of
Judges cannot be overlooked."

It is thus, clear that the expression "judicial office" under Article
217(2)(a) of the Constitution has to be interpreted in consonance with the F
scheme of Chapter V and VI of Part VI of the Constitution. We, therefore,
hold that expression "judicial office" under Article 217(2)(a) of the Con-
stitution means a "judicial office" which belongs to the judicial service as
defined under Article 236(b) of the Constitution of India. In order to
qualify for appointment as a Judge of a High Court under Article 217(2)(a) G
a person must hold a ''judicial office" which must be a part of the judicial
service of the State.

We may now examine whether Srivastava is qualified for appoint-
ment as a Judge of a High Court on the basis of the offices held by him as H
134 SUPREME COURT REPORTS (1992] 2 S.C.R.

A detailed in his bio-data reproduced above. The Constitution of India in
clear terms lays down the qualifications for appointment as a Judge of a
High Court. The Chief Minister/Chief Justice selected Srivastava for
recommending his n.ame for appointment as a Judge of Gauhati High
Court. Obviously on their asking Srivastava submitted his bio-data which
B we have re-produced above and which is part of the appointment files
maintained in the Higii Court and in the Ministry' of Law, Government of
India. Srivastava mentioned therein that he belongs to "Mizoram Judicial
Service" thereby giving in an impression that he has had held judicial offices
as a membe; of the judicial service of Mizoram. This is not a correct
C representation. Mizuram Judicial Service Rules, 1986 came into force with
effect from November 17, 1986. These Rules were superseded by the
Mizoram Judicial Service Rules, 1989 (1989 Rules) framed under Article
309 read with Articles 233 and 234 of the Constitution of India in consult-
>--
ation with the Gauhati High Court. These Rules were enforced with effect
from February 17, 1986. Under the 1989 Rules various posts in different
D grades were created. Schedule-A to the 1989 Rules which give the com-
position of the Service is an under:

SCHEDULE-A

E (See rule 2(g) and rule 4)
.""r- .

SI. No. Grade & Post

1. GRADEi

F (a) SENIOR
1)

2)
Legal Remembrancer-cum-Secy., Law & Judicial.

Registrar, High Court
1
3) District & Sessions Judge
G
(b) JUNIOR
4) Joint Legal Remembrancer cum
Jt. Secretary, Law & Judicial

H 5) Special Judge
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.) 135
_;,
' II. GRADE II A
1} Chief Judicial Magistrate

2) Dy. Legal Remembrancer-Cum-Deputy Secretary, Law & Judicial

'
y- 3} Deputy Registrar, High Court B
4) Assistant District & Sessions Judge

III GRADE III
-----~
1} Asstt. Legal Remembrancer-Cum~Under Secretary, Law & Judicial c
-1. ~
2) President & Recorder,District Council Court, Aizawl.

3} Sub-Division:il Judicial Magistrate

4} Assistant Registrar, High Court D
5) Judicial Officer I, District Council Courts, Aizawl and Magistrate
Subordinate District Council Courts in Aizawl and Lunglei Districts.

IV GRADE IV
""""'(
E
1} Munsiffs/Judicial Magistrates

2) Magistrate Cum Judicial Officer II, Additional Subordinate District
Council Courts in Aizawl & Lunglei Districts.

3) Special Officer-Cum-Assistant Draftsman F
Ir-

,~
4) Translator"

Srivastava, according to his bio-data, was appointed legal
Remembrancer-Cum-Secretary, Law & Judicial in 1985 and has been
working as such since ther.: It is on th!s bac;is that he claims to be a member G
of Mizoram Judicial Servic>'.:. Without examining as to whe~her the
Mizoram Judicial Service constituted under the 1989 Rules is a service
r envisaged under Article 23S(b) of the Constitution of Indi.a, •.ve assume ,it
to be so for the purposes of the presc1t controv~rsy. S,c:hedule A to the
1989 Ru_les enumerates various 'judicial offices' such as District & Sessions H
136 SUPREME COURT REPORTS [1992) 2 S.C.R.

A Judge (Grade I), Chief Judicial Magistrate (Grade II), Sub-Divisional
Judicial Magistrate, Judicial officer and Magistrates (Grade III) aud mun-
siffs/Judicial Magistrates, Magistrate-cum-Judicial Officer II (Grade IV).
It is not disputed that Srivastava never held any of these offices. He,
however, claims that since he has been holding the office of Legal
B Remembrancer-cum-Secretary Law & Judicial, he is member of the
Mizoram Judicial Service. That may be so but unless he has held a judicial
officr in a judicial service he does not come within the purviews of Article
217(2)(a) of the Constitution. The office of Legal Remembrancer-cum-
Secretary Law and Judicial is a non-Judicial office under the control of the
C 'executive. In any case the Mizoram Judicial Service came into existence
with effect from February 17, 1986 and even if full benefit of that service
is given to Srivastava for the purposes of Article 217(2)(a) he is not
qualified as the total period counted from February 17, 1986 comes to kss
>
than ten years as required under the said Article. Srivastava, his bio-data,
under the said heading 'professional experience', has listed 24 various
D offices held by him during the course of his career. A bare look into the
list shows that none of those offices were/are judicial offices even in the
generic sense. The office of D.C.(Judicial) claimed to have been held by
Srivastava in the year 1987 is again of no· consequence because even if we
assume the said office to be judicial office in judicial service the period
E counted from 1987 would not make the requisite period of ten years under
the Constitution. All the other officer listed in the bio-data are neither
judicial nor part of. any judicial service. All those offices were/are under
the employment and control of the Executive. We, therefore, agree with
Mr. Anil Diwan and Mr. Ram Jethmalani that assuming every word of
F Srivastava's bio-data to be correct he is not qualified for appointment as a
judge of a High Court.

It is for the first time in the post-independent era that this Court is
seized of a situation where it has to perform the painful duty of determining
the eligibility of a person who has been appointed a Judge of High Court
G by the President of India and who is awaiting to enter upon his office. We
looked into the official record and permitted learned counsel for the I
parties to examine the same. We are at a loss to understand as to how the
bio-data of Srivastava escaped the scrutiny of the authorities during the
process of consultation under Article 217(1) of the Constitution of India.
H
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.j 137

A cursory look at the bio-data would have disclosed that Srivastava was A
not qualified for appointment as a Judge of the High Court on the
admitted tacts which have been on the official files all the time. Needless
to say that the independence, efficiency and integrity of the judiciary can
only be maintained by selecting the best persons in accordance with the
procedure provided under the Constitution. These objectives enshrined B
under the Constitution of India cannot be achieved unless the functionaries
accountable for making appointments act with meticulous care and utmost
responsibility.
- ,.__ Mr. Anil Diwan and Mr. Ram Jethmalani vehemently argued that in
case we come to the conclusion, as we have, that - on the basis of the c
bio-data taken into consideration by the constitutional authorities - Srivas-
-~
tava is not qualified for appointment as a Judge of a High Court then his
appointment be quashed on the grounds that there has been violatiun of
Article 217(2) of the Constitution and there was total lack of application
of mind on the part of the authorities responsible for making the appoint- D
ment. We can adopt this course but after hearing Mr. Venugopal, learned
senior advocate appearing fer Srivastava we refrain from doing so and
intend going into further material placed on record by Srivastava to show
that notwithstanding his bio-data before the authorities he is qualified to
be appointed as a Judge of the High Court. We are fully aware of the E
. -<
delicacy and sensitivity of the matter and the stage at which tlie matter has
been brought before us for judicial scrutiny. We make it clear that ordinari-
ly the domain in such matters lies wholly with the constitutional authorities
mentioned in Article 217 of the Constitution, but in exceptional cir-
cumstances like the present, where the incumbent considered for appoint-
ment as a Judge of a High Court does not fulfil the qualification as laid
F
}-
down expressly under the provisions of the Constitution itself, it becomes
) ..
our bounden duty to see that no person ineligible or unqualified is ap-
..,. pointed to a high constitutional and august office of a Judge of a High
Court. Thus taking in view the entire facts and circumstances of the case
and in order to do full justice to Srivastava we gave him full opportunity G
to place any fresh material before us to justify that he was qualified ,for
appointment as a Judge of a High Court, even though such material had
r-- not been brought to the notice of the constitutional authorities.

., During the course of arguments Srivastava has filed additional af- H
138 SUPREME COURT REPORTS [1992] 2 S.C.R.
_,,.j,...__
A fidavit and placed documents before us, which were not before the
authorities, under Article 217(1) of the Constitution of India. Under Rules
8 and 15 of the Rules for the regulation of the procedure of officers

B
appointed tu administer justice in the Lushai Hills promulgated on March
25, 1937 (hereinafter called '1937 Rules'). Srivastava was appointed as
Assistant to the Deputy Commissioner Aizawl District by the Lt. Governor
(Administrator) of Mizoram. He was invested under Rule 9 of the 1937
--(
-
Rules with the powers analogous to the powers of a judicial magistrate of
the First Class as defined in the Code nf Criminal Procedures, 1973. In
support of his contention he has produced the notification dated June 23, ........t~

1979 which is reproduced hereunder :
c
"NOTIFICATION"
>-
Dated Aizawl, the 23rd June 1979

D No.CS/MZ/APPT/79 : Under rules 8 and 15 of the Rules for the
regulation of the procedure of officers appointed to administer justice in
the Lushai Hills, published vide Notification No.2530(a)A.P. dated 25th ~

March 1937 the Lt. Governor (Administrator) of Mizoram is pleased to
appoint the following Officers as Assistant to the Deputy Commissioner,
E Aizawl District and further to invest under rule 9 of the aforesaid Rules
with the powers analogous to the powers of a Judicial Magistrate of the 'r
First Class defmed in the Code of Criminal Procedures, 1973 (Act No. 2
of 1974) in addition to their duties.

Name of Officer Designation
F
1.
2.
Shri M. Lalmanzuala:
Shri C. Lalchhuma
Secretary Appointment
Secretary, Finance
·1
3. Shri Khuanga Director, LA. T.P. & H
+
4. Shri Lalthamuama Director, Supply & Tpt.
G 5. Shri M. Gasowaimi Under Secy, P.W.D.
6. Shri S.P. Nag Deputy Director, Fisheries
7. Shri Shushil Kumar Deputy Director. C.D.
8. Shri K.N. Srivastava Under Secy. Law & Judicial --(
9. Shri A.K. Ghose Architect P.:W.D.
H 10. Shri S.S.Dutta Under Secy. Finance
P ADMA PRASAD v. U.O.I. [KULDIP SINGH, J.] 139

Further in exercise of the powers conferred by sub-section (1) of A
section 20 of Code of Criminal Procedure, 1973 (Act 2 of 1974) read ~th _
the Notification of the Government of India, Ministry of Home Affairs No.
11 11/2/74-UTL (iii) (S.O. 185(E) dated the 20th March, 1974 the Lt.
Governor (Administrator) is pleased to appoint the above mentioned
officers as Executive Magistrates also in the Aizawl District. B
Sd/-A.J. Kundan
Chief Secy. to the Govt. of Mizoramn

Rules 1,8, 9, 10, 14, 15, and 19 of the 1937 Rules which are relevant
for our purposes are reproduced hereunder: c
"l. The administration of the district known as the Lushai
Hills is vested in the Governor of Assam, and the Deputy
Commissioner of the Lushai Hills and his assistants and in the
chiefs and headmen of villages.
D
8. Criminal justice shall be ordinarily administered by the
Deputy Commissioner and his Assistants.

9. The Deputy Commissioner shall be competent to pass
sentence of death, t:ansportation or imprisonment up to the
--~
maximum amount provided for the offence, of whipping, and E
of fine up tO any amount : provided that all sentences of death,
transportation or impr_isonment of seven years and upwards
shall be subject to the confirmation by the Assam High Court.

The Assam High Court hereinafter referred to as the High
Court or Deputy Commissioner may call for the proceedings F
of any officer subordinate to him, and may reduce, enhance or
cancel any sentence passed or rema,d the case for retrial but
no offence shall be punished by a sentence exceeding that
awardable under the Indian Penal Code.
G
Assistant to the Deputy Commissioner shall exercise such
powers as they may be invested with by the Governor of Assam
r- not exceeding those of a Magistrate of the first class, as defined
in the Criminal Procedure Code.

10. An appeal shall lie to the Deputy Commissioner against H
140 SUPREME COURT REPORTS [1992) 2 S.C.R.

A any order passed by any of his Assistants.

An appeal shall lie to the High Court for any sentence

-
passed by the Deputy Commissioner.

In respect of magisterial decisions of the Commandant of
B the Assam Rifles, the Superintendent shall exercise the appel-
late revisional powers conferred upon the Court of Sessions or
the District Magistrate by the Code of Criminal Procedure in
the case of decisions of the class of Magistrates with the powers
of which the Commandant of Assam Rifles has been invested.
c 14. The Deputy Commissioner and all Magistrates shall
keep such registers of criminal cases and submit S).lCh returns ·
as the High Court shall from time to time prescribe.

15. The administration of ci\jl justice in the Lusbai Hills is
D entrusted to the Deputy Commissioner and his Assistants, who
shall take special cognizance of well established Lushai cus-
toms.

19. The High Court and the Courts of the Deputy Commis-
sioner and his Assistants shall be guided by the spirit of the
E Code of Civil Procedures, so far as it is applicable to the
circumstances of the Lushai Hills and consistent with these
Rules.

Mr. Venugopal contended that the administration of justice both on
civil and criminal side was being manned exclusively by the Deputy Com-
F missioner and his Assistants under the 1937 Rules. No other courts were
functioning. Apart from administering criminal and civil justice the total
administration of the district known as the Lushai Hills was vested in the
_l
Governor of Assam, the Deputy Commissioner of the Lushai Hill, and his
Assistants. The Deputy Commissioner under the 1937 Rules was com-
G petent to pass sentence of death, transportation or imprisonment up to a
maximum provided for the offence and fine up to any amount. The
Assistants to the Deputy Commissioner were to exercise such powers as
conferred by the Governor not exceeding those of a magistrate of the first
class as defined under the Code of Criminal Procedure. An appeal lies to
H the Deputy Commissioner against any order passed by any of his Assis-
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.] 141

tants. Similarly under Rule 15 the. administration of civil justice was A
entrusted to the Deputy Commissioner and his Assistants. Srivastava exer-
cised the powers of Assistant to the Deputy Commissioner from June 23,
1979 to December 19, 1979. According to Mr. Venugopal the office of the
Assistant to which Srivastava was appointed for a period of about six
months was a judicial office. According to him period for which he held B
·the judicial office and the quality of the said office are not relevant factors.
He, therefore, forcefully contended that Srivastava, having held the judicial
office of Assistant to the Deputy Commissioner under the 1937 Rules he
fulfils the qualification unde~ Article 217(2)(a) read with (a) to the Ex-
planation. According to him all the offices held by Srivastava after relin- C
quishing the office of .the Assistant to the Deputy Commissioner required
special knowledge of law and as such whole of that period is liable to be
included for counting 10 years during which he held a judicial office.
Srivastava, according to him, is qualified for appointment as a Judge of a
High Court.
D
We have given our thoughtful consideration to the argument ad-
vanced by Mr. Venugopal. We are not inclined to agree with him. ·

Srivastava has been shown at serial No. 8 in the notification dated
June 23, 1979 reproduced above. The post held by him on that day was E
that of Under Secretary, Law and Judicial. While holding the said post he
was appointed as Assistant to the Deputy Commissioner in addition to his
own duties. He was further invested with the powers analogous to the
powers pf a Judicial magistrate. He was also appointed as Executive
Magistrate in the Aizawl District. In the said notification at serial No. 9 is
A.K. Ghose who was architect in the Public Works Department of the
F
Government of Mizoram. Similarly at serial No. 2 is Secretary Finance.
Serial No. 4 Director Supply and Transport, Serial No. 5 Under Secretary
y
P.W.D and No. 6 Deputy Director Fisheries.The very fact that officers from
different departments were appointed as Assistants in addition to their
duties is significant and clearly goes to show that there was no separate G
office with a designation of Assistant to the Deputy Commissioner on
which these appointments were made. Keeping in view the exigency of
administration different officers working with the Government of Mizoram
were invested with the powers of judicial and executive magistrates by
appointing them Assistants in addition to their own duties. It would be H
142 SUPREME COURT REPORTS (1992) 2 S.C.R.

A travesty of justice if we hold that an Architect worlting in the P.W.D.
department by virtue of his being vested with the powers of an Assistant
,...i...._
in addition to his own duties comes to hold a "judicial office" in term of
Article 217(2)(a) of the Constitution of India. There was no separation of
judiciary from the executive under the,1937 Rules and the total administra-
B tion of the area including administration of justice was being done by the
officers who were under the control of the executive. There was no judicial
service as envisaged by Article 236(b) of the Constitution of India and as
such an Assistant to the Deputy Commissioner could not be a judicial -Y
officer in terms of Article 217(2)(a) of the Constitution of India. There is
no material before us to show that there was a regular cadre of Assistants
c at the relevant time. From the notification reproduced above it is obvious __.._ ~

that the posts of Assistants to the Deputy Commissioner were not separate-
ly created and only officers working in various Government Departments
were invested with the powers under the 1937 Rules in addition to their ,........
own duties. We have further no material before us to show that Srivastava
D in fact presided over any court and conducted any trial or decided any civil '-

cases during the said period of six months. Rather there is an affidavit filed
by Under Secretary, Law, Judicial and Parliamentary Affairs Department
Government of Mizoram affirming that no post of Assistant to Deputy
Commissioner was created duri:i1g the relevant period. It is further stated
E in the said affidavit that Srivastava did not deal with or decide any case
(civil or criminal) during that period.

Mr. Anil Diwan relying on Smt. Kanta Kathuria v. Manak Chand ~
I

Surana, [1969) 3 SCC 268 has contended that the judicial office under
Article 217(1)(a) of the Constitution of India has to be an office which is
F
subsisting, perm~nent, substantive and which has an independent existence
from the person who fills it. In Smt. Kanta Kathuria Case (supra) Silcri, J. ~

(as he then was) who delivered the majority judgment referred to with

G
approval the definition of word "office" given by Rowlatt, J. in Great
Western Railway Company v. Bater 8 Tax Cases 231 which is in the following .l
terms: ~

"Now it is argued, and to my mind argued most forcibly,
that shows that what those who use the language of the Act of
1842 meant, when they spoke of an office or employment, was
H an office or employment which was a subsisting, permanent, ·--r
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.) 143

substantive position, which had an existence independent from A
the person who filled it, which went on and was filled in
succession by successive holders; and if you merely had a man
who was engaged on whatever terms, to do duties which were
assigned to him, his employment to do those duties did not
create an office to which those duties were attached. He merely B
was employed to do certain things and that is an end of it; and
if there was no office or employment existing in the case as a
thing, the so-called office or employment was merely an ag-
gregate of the activities of the particular man for the time being.
And I think myself that that is sound. l am not going to decided
that, because I think I ought not to in the sta~e of the authorities, C
but my own view is that the people in 1842 who use this
language meant by an office a substantive thing that existed
apart from the holder."

The word "office" has various meanings and we have to see which is D
the appropriate meaning to be ascribed to this word in the context it
appears in the Constitution. We are of the view that the framers of the
Constitution did not and could not have meant by a "judicial office" which
did not exist independently and the duties or part llf the duties of which
could be conferred on any person whether trained or not in the administra-
tion of justice. The word "Judicial office" under Article 217(2)(a) in our E
view means a subsisting office with a substantive position which has an
---(
existence independent from its holder.

We have already held that "judicial office" in Article 217(2)(a) means
an office as a part of the judicial service as defined under Article 236(b) F
of the Constitution of India. The office of the Assistant to Deputy Com-
missioner held by Srivastava fot a period of about six months under the
notification reproduced above, was neither a judicial office nor was it part
of a judicial service as defined under Article 236(b) of the Constitution of

- India. We, therefore, accept the second contention advanced by Mr. Anil
Diwan and Ram J ethmalani and hold that Srivastava was not qualified for
appointment as a Judge of a High Court under Article 217(2)(a) of the
Constitution of India.
G

Before parting with the point under discussion we may notice H
144 SUPREME COURT REPORTS [1992) 2 S.C.R.

A another argument advanced by Mr. Venugopal. He contended that there
being no separation of judiciary in Mizoram and justice civil and criminal
being solely. administered by the executive officers under the 1937 Rules ~

they are judicial officers within the ambit of Article 217(2)(a) of the
Constitution of India. We do not agree. Before independence the district
judges were appointed by the Governor from three sources, namely, {1)
B
. the Indian Civil Service, (2) the Provincial Judicial Service and (3) the Bar.
After independence recruitment to the Indian Civil Service was discon-
tinued and the -0fficers of the Indian Administrative Service which sub- ---r /

stituted the Indian Civil Service were not to be given judicial posts. The
district judges have been recruited only from two sources (1) bar and (2)
c judicial service. There has been no case of a member of the executive ----,
having been promoted as a district judge. The independence of judiciary ~ I

is part of the basic structure of the Constitution. The Directive Principles
give a mandate that the State shall take steps to separate the judiciary from
~
the executive which means that there shall be a separate judicial service
D free from the executive control. The constitution-scheme, therefore, only
permit members of the judicial service as constituted in terms of Article
236(b) of the Constitution to be considered for the post of district judge
and that of the High Court Judge. It would be useful to refer to Article

E
237 of the Constitution of India :

'>237. Application of the provisions of this Chapter to certain
-
class or classes of ~agistrate. The Governor may by public
notification direct that the fore_going provisions of this Chapter ~-
and any rules made thereunder shall with effect from such date
as may be fixed by him in that behalf apply in relation to any
F class or classes of magistrates in the State as they apply in
relation lo persons appointed to the judicial service of the State
subject to such exceptions and modifications as may be
~
specified in the notification."

G
l
In Chandra Moho.n's case (supra) Subba Rao, CJ interpreted Article
237 in the following terms :

"Art. 237 enables the Governor to implement the separation
of the judiciary from the executive. Under this Article, the
H Governor may notify that Arts. 233, 234, 235 and 236 of the
PADMA PRASAD v. U.0.1. [KULDIP SINGH, J.} 145

Constitution will apply to magistrates subject to certain A
modifications or exceptions; for instance, if the Governor so
notifies, the said magistrates will become members of the
judicial service, they will have to be appointed in the manner
prescribed in Art. 234, they will be under the control of the
High Court under Art. 235 and they can be appointed as B
District Judges by the Governor under Art. 233 (1). To state it
differently, they will then be integrated in the judicial service
which is one of the sources of recruitment to the post of district
Judges. Indeed, Art. 237 emphasises the fact that till such an
integration is brought about, the magistrates are outside the
scope of the said provisions. The said view accords with the C
constitutional theme of independent judiciary and the contrary
view accepts a retrograde step."

It is thus obvious that the Magistrates who are not appointed to the
judicial service of the State can be brought into the judicial service by way D
of a notification under Article 237 of the Constitution of India. Till the time
there is separation of judiciary or a notification under Article 237 of the
Constitution of India is issued there is no question of considering the
·executive officers or even Magistrates for appointment to the post of
District Judge or a High Court Judge even though .the executive officers E
or Magistrates concerned have the adornment of a judicial office. We,
- -I' therefore, reject the contention of Mr. Venugopal.

The view we have taken on the first and the second points, the very
interesting and learned discussion on the third point need not detain us
and we express no opinion about it. F

We allow transferred writ petition of Kumar Padma Prasad and
declare that K.N. Srivastava, on the date of issue of the warrant by the
President of India, was not qualified to be appointed as a Judge of the
High Court. As a consequence, we quash his appointment as a Judge of G
the Gauhati High Court. We direct the Union of India and other respon-
dents present before us not to administer oath or affirmation under Article
219 of the Constitution of India to K.N. Srivastava. We further restrain K.N.
Srivastava from making and subscribing an oath or affirmation in terms of
Article 219 of the Constitution of India and assuming office of the Judge H
146. SUPREME COURT REPORTS [1992] 2 S.C.R.

A of the High Court. We direct the Registry to send a copy of this judgment
to the President of India for his consideration and necessary action in terms
of our judgment. There shall be no order as to costs.

R.P. Petition allowed.