Holding

Article 237 empowers the Governor to apply Chapter VI provisions to a class of magistrates, permitting the creation of a separate judicial service and validating the 1975 notifications.

Summary

The petitioners, members of the Uttar Pradesh Civil Service (Judicial Branch), challenged two 1975 notifications issued by the Governor under Article 237 of the Constitution which transformed the Uttar Pradesh Judicial Officers Service into a separate judicial service and made its members eligible for promotion only to the post of Additional Sessions Judge. The Supreme Court examined whether the Governor could, by such notification, create a third source of recruitment for the Higher Judicial Service, thereby deviating from the constitutional mandate that District Judges be appointed only from the State or Union judicial service or from the Bar. Relying on the broad powers conferred by Article 237, the Court held that the Governor may apply the provisions of Chapter VI to a class of magistrates with specified exceptions, allowing the creation of a distinct judicial service. The Court further clarified that an Additional Sessions Judge falls within the definition of "District Judge" for the limited purpose of appointment under Article 233. Consequently, the notifications of 12 March 1975 and 21 March 1975 were held constitutionally valid, and the appeal and all writ petitions were dismissed.

Issues considered

The Governor's power under Article 237 to transform the Uttar Pradesh Judicial Officers Service into a separate judicial service.
Whether the inclusion of Judicial Officers as a source for recruitment to Additional Sessions Judge violates the constitutional requirement for appointment of District Judges.
The constitutional validity of the 1975 notifications issued under Articles 237 and 309.
The permissibility of creating a third source of recruitment for the Higher Judicial Service.
The interpretation of Article 236's definition of "District Judge" with respect to Additional Sessions Judges.

Legislation cited

Code of Criminal Procedure, 1973s. Section 2, s. Section 6, s. Section 9
Constitution of Indias. Article 233, s. Article 234, s. Article 235, s. Article 236, s. Article 237, s. Article 309, s. Article 50
General Clauses Act, 1897s. Section 3(32)

Subjects

Judicial serviceArticle 237Separation of judiciaryPromotion of magistratesUttar Pradesh Judicial Officers ServiceConstitutional lawAppointment of district judgesHigher Judicial ServiceJudicial independence

Judgment

SH. P.K. SARIN AND ANR. ETC.ETC A
t• v.
STATE OF U.PAND ORS ETC.

DECEMBER 16, 1994

[A.M AHMADI, CJ AND MADAN MOHAN PUNCHHI, J.] B

Constitution of India 1950; Articles 50, 233, 234, 235, and 236-237-
Powers of Government-Whether the Governor could transform the
existing UP Judicial Officers Service into Judicial Service of the State
alongside the existing UP Civil Service (Judicial Branch). Held: Article
)
237 of the Constitution enables the Governor to apply the provisions of C
Constitution to certain class or classes of Magistrates and not to any other
class or classes of Officers.

UP Higher Judicial Service Rules 4, 5 and 6.

District Judges-Recruitment of Criteria for filling up vacancies. D
The appellants are members of the U.P Civil Service (Judicial
Branch) Nyayik Sewa. Candidates for recruitment of District Judges in
the State of U.P under the U.P Higher Judicial Service Rules, could be
drawn for three sources namely members of the bar, Judicial Officers,
discharging Magisterial and some revc'1ue duties and by promotion E
from members of U.P Civil Service (Judicial Branch).

In Chandra Mohan v. State of UP., [1967) 1 SCR 77 the U.P. Higher
Judical Service Rules were struck down as unconstitutional and certain
appointments made were declared bad. It was emphasized that in view
of the provisions of Article 50 and Articles 233 and 237 of the F
Constitution, the appointment of District Judges could be made from
two sources only viz.; Service of the Union or State and members of
Bar. The service of Union or State did not mean every service, but only
judicial service of Union or State as defined in Article 326 (b) of the
Constitution.
G
In order to do justice to Judicial Officers appointed before 2.10.67
Governor issued two notifications dt. 12.3.75 and 21.3.75 under article
237 of the Constitution directing that on the date of notification the
provisions of Chapter VI of Part VI of the Constitution of India would
apply to Judicial Magistrates (including Chief Judicial Magistrate) who H
661
662 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A are judicial officers as they apply to persons appointed to Judicial
Service of the state subject to the exceptions; (i) Members of Judicial
.
\

Officers Service shall Constitute a Judical Service to fill the post of
Additional Sessions Judge; and (ii) U.P. Judicial Officers Service shall
be a service distinct and separate from U.P. Civil Service (Judical
Branch).
B
By notification dt. 21.3.75, issued under Article 309 read with Art.
233 of the Constitution of India U.P. Higher Judicial Service Rules,
1975 were framed. Under Rule 4, the Higher Judicial Service consists
of a single cadre comprising the posts of District and Sessions Judge
and Additional District and Sessions Judge. The recruitment to the
C service is to be made by direct recruitment of pleaders and advocates of
not less than seven years standing and by promotion of confirmed
member of U.P. Nyayik Sewa with not less than seven years service in
the cadre. By this notification Judicial Magistrate and Judicial Officers
were made eligible for appointment to the post of Additional Sessions
Judge.
D
By the two notifications the Judicial Officers btcome eligible for
appointment only to the post of Additional Sessions Judge and the
judicial Officers Service became a third source for recruitment.
Aggrieved by these two notifications, the petitioners and others
preferred writ petitions before the High Court and the same were
E disposed of on the basis of the judgment in Dineshchander Srivastava
and Ors. v. State of UP., AIR (1977) ALL. 310. Hence this appeal. The \
'
writ petitions have been filed under Article 32.

Dismissing the appeal and the writ petitions, this Court

HELD: 1. Much before the issuance of the impugned notification,
F
the Government by notification dated September 30, 1967 issued under
Article 237 of the Constitution, had directed separation of the Judicial
Magistrates/Judicial Officers from the Executive who were thereafter
placed under the Administrative control and superintendence of the
High Courts with effect from October 2, 1967. Thereafter the
G Government stopped recruitment to the Judicial Officers Service. On
the other hand they continued to remain ineligible for appointment to a
post in the U.P. Higher Judicial Service by the dictate of Chander
Mohan's case. The Judical Officers Service thereupon became a
suffocated and dying cadre, as members of that service were left with
no avenues of promotion even though most of them had sufficient
H experience of criminal judicial work. [670 A to CJ
P.K. SARIN v. STATE OF U.P 663

2. The State Government on the recommendations of the High A
Court thought it prudent to utilize the experience of the Judicial
Magistrates trying criminal cases and providing avenues of promotion
to them. With that end in view, the State of U.P. issued the two
notifications the effect of which was that the Judicial Officers became
eligible for appointment only to the post of Additional Sessions Judge
and the Judicial Officers Service was declared as a Judical Service, B
becoming a third source for recruitment under rule 6, getting a quota
of 15 percent. But, in the event of the prospective candidates or
exhaustion of their members the quota meant for judicial
Officers/Judicial Magistrates was to add to the quota of U.P. Civil
Services (Judicial Branch) vis-a-vis direct recruits. Thus in the nature
of things, it was a self consuming measure, working itself out in the C
foreseable future. (670 C to E]

3. The Constitution recognizes the judicial element permeating in
the magistracy, functioning as criminal courts. To put it tersely
magistracy alone is recognized as judge material meant for such
transformation. Now in th'! impugned notification, it is clear that the D
promotional avenues of the Magistrates stop at the level of Additional
Sessions Judge, a court which is a creation of the Code of Criminal
Procedure. In no way is this designation confused with that of the
Additional District Judges. Under Article 236 which is the
interpretation box for Chapter VI, the inclusive definition of the E
expression 'District Judge' includes an Additional Sessions Judge but
only for the purpose of the Chapter, not for any other purpose. The
Additional Sessions Judge is a "District Judge" for the limited purpose
of his Appointment as District Judge in terms of Article 233 of the Con-
stitution. (670 G, H, 671 A to BJ
F
4. The sweep of Article 237 covers Magistrates existing prior to the
separation of Judiciary from the executive, those who may not have
been appointed in accordance with the rules framed under Article 234
or who might not have been under the control of the High Court under
Article 235. It is towards achieving that end that the Governor stood
empowered under Article 237 to act by means of a notification with G
such exceptions or modifications, as he might consider fit. The
Governor could apply all or only some of the provisions of Chapter IV.
That here the Governor in exercising his power under Article 237,
issued the notification of March 12, 1975 classifying Magistrates
(including Chief Judicial Magistrates) in the State as those belong to
the Uttar Pradesh Judicial Officers Service and applying to them all H
664 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A the Articles contained in Chapter VI of part VI of the Constitution,
barring of course Article 237, as they apply in rela~ion to persons
appointed to the Judicial Service of the State· subject to the exceptions
and modifications namely, (i) the members of the U.P. Judicial Service
Officers shall constitute a Judicial Service to fill in the post of
Additional Sessions Judge only for the purpose of Articles 233 and 235
B of the Constitution; (ii) U.P. Judicial Officers Service shall be a service
distinct and separate from the U.P. Civil Service (Judicial Branch).
(671 C to F]

5. In separating judiciary from the executive the personnel of·
Judicial Service so retrieved by separation have to be given a place as a
c class as members of the judiciary either by integration in the existing
judicial service or by transformation into a separate 'judicial service.
There apparently in no other way to place them. The impugned
notification of March 12, 1975 and other consequential notification
stood validly issued by the Governor under Article 237 of the
Constitution and the erstwhile ·Magistrates, members of the U.P.
D Judicial Officers Service, became members of a separate Judicial
Service of the same name intended to be promoted as Additional
District and Sessions Judge and to stay apart along side the U.P. Civil
Service (Judicial Branch). The said service was validly created. ML.
Sharma v. Union of India, [1992] Suppl. 2 SCC 430, referred to.
(672 H, 673 A to B]
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. '1997 of
1977.

From the Judgment and Order dated 26.10.76 of the Allahabad High
Court in C.M.W.P. No. 161 of 1976.
F Raja Ram Agrawal, Pramod Swarup, Ms. Praveena Swarup, R.K.
Kappor, B.R. Kapoor, Manendra Singh, P. Verma, A.A. Khan, Ms. Anil
Katiyar, S. Balakrishnan for R.N. Keshawani, K.K. Gupta, (NP), Ms.
Rachna Gupta, R.B. Misra, A.K. Srivastava, (NP), R. Venkataramani (NP)
A.K. Goel, (NP), Jitendra Sharma, A.S. Pundir, (NP) for the appearing
parties.
G
The Judgment of the Court was delivered by

PUNCHHI, J. This bunch of matters comprising a Civil Appeal and a
few writ petitions under Article 32 of the Constitution, have a common aim
and therefore can conveniently be disposed of by a common order.
H Necessary facts can be gathered from the Civil Appeal focussing the issue.
P.K. SARIN v. STATE OF U.P [PUNCHHI, J.] 665

The appellants are members of the U.P.Civil Service (Judicial Branch) A
"Nyayik Sewa". They were writ petitioners in one of the many writ
petitions preferred before and disposed of by the Allahabad High Court,
governing judgment of which is in Dinesh Chander Srivastava and Ors. v.
State of UP., reported in AIR (1977) All. 310. In sum that judgment is
under appeal. The cause settled therein was the one which arose as an
aftermath of Chandra Mohan v. State of Uttar Pradesh and ·others, [ 1967] B
l SCR 77 and the steps taken by the State ofU.P. in pursuance thereof.

Candidates for recruiting District Judges in the State of Uttar Pradesh,
under the U.P. Higher Judicial Service Rules, framed by the Government
under Article 309 of the Constitution, could be drawn from three sources
i.e. members of the Bar, J1:1dicial Officers (a misleading expression) who are C
members of the Executive Department discharging magisterial and some
revenue duties, and by promotion from members of U.P. Civil Services
(Judicial Branch) under the control of the High Court. Six appointments
from two of the afore-described services, i.e., three from the Bar and three
from the "Judicial Officers" were proposed to be made by the State, after
involving the High Court, when Chandra Mohan, a member of the U.P. D
Civil Service (Judicial Branch) and others filed a writ petition in the High
Court for the issuance of an appropriate writ directing the Government not
to make th~ appointments pursuant to the proposal. Since the writ petition
was dismissed and the matter was brought to this Court in appeal, the
canvass of dispute, on account of many points involved, was widely spread,
but for our purposes it would suffice to say that this Court ruled that the E
Ru !es as such framed by the Governor empowering him to recruit judges
from the "Judicial Officers" source were unconstitutional and the
recruitment of the "Judicial Officers" was bad. It was emphasized by this
Court that the Indian Constitution had provided for an Independent
Judiciary in the States and in order to put the Independence of the
subordinate judiciary beyond question, provision had been made in Article F
50 of the Constitution in the Chapter of Directive Principles for the
separation of the Judiciary from the executive, and further in enacting
Articles 233 to 237 in part VI, Chapter VI of the Constitution, the
appointment of District Judges in any State was envisaged to be made only
from two sources i.e. (i) Servi_ce of the Union or of the State; and (ii) mem- G
hers of the bar. This Court went on to rule that the Service of the Union or
of the State mentioned in the first category did not mean each and every
service of the Union or of the State but judicial service of the Union or of
the State. "Judicial Service" as defined in Article 236 (b) mean a service
consisting exclusively of persons intended to fill the post of District Judge
and other Civil Judicial posts inferior to the post of District Judge. H
666 SUPREME COURT REPORTS (1994) SUPP. 6 S.C.R

A Gathering the history of the Service, it was noticed that after India
attained independence in 1947, there were, when the source ofrecruitment
of Indian Civil Service had died out, only two sources from which District
Judges had been recruited, i.e., either from the Judicial Service or from the
Bar, and there was no case of a member of the executive having ever been
promoted as a District Judge. In this backdrop, it was thought that recruit-
B ment of District Judges from the personnel available in the Executive
Department could be deleterious to the good name of the judiciary, and an
attempt to undermine it had to be frowned upon. In this backdrop, it was
viewed by this Court that methodology under Article 237 of the
Constitution was available where the Governor had the power to notify that
Articles 223 to 226 could apply to Magistrates, subjected to certain
c modifications or exceptions, if necessary, and then effect integration of the
Magistrates in the Judicial Service, which is one of the sources of
recruitment to the post of District Judges. It was emphasized that till such
step is taken in the manner envisaged by Article 237, the Magistrates
(Judicial Officers) were outside the scope of Articles 233 to 236 of the
Constitution. In sum, under the rules then existing, the State of Uttar
D Pradesh could not justify the appointments of "Judicial Officers" as District
Judges and attracted a mandamus issued by the court for not making any
appointment from the source of Magistrates/Judicial Officers. The Rules
framed by the Governor, without resort to Article 237, empowering him to
recruit District Judges from the "Judicial Officers" were thus declared
unconstitutional and therefore the appointments of the concerned "Judicial
E Officers" were declared bad.

The State of Uttar Pradesh went about clearing the fall out of Chander
Mohan's case since the High Court on the administrative side was also
anxious to do justice to the Magistrate~/Judicial Officers. We would in the
language of the High Court, say that the Governor of Uttar Pradesh issued
F the notification dated March 12, 1975, under Article 237 of the Constitution
directing that the provisions of Chapter VI of part VI of the Constitution
and any rules made thereunder shall with effect from the date of notifi-
cation 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
G
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 Addi-
tional Sessions Judge only for purposes of Articles 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
H means _of this notification the Judicial Magistrates who are members of the
P.K. SARIN v. STATE OF U.P [PUNCHHI, J.] 667

) Judicial Officers Service have become eligible for appointment to the post A
of Additional Sessions Judge included within the definition of "District
Judge" as defined by Article 236 of the Constitution. The notification
further declares that the Judicial Officers Service shall be a judicial service.

By another notification dated March 21, 1975, the Governor of Uttar
Pradesh in exercise of his powers under Article 309 read with Article 233 B
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 C
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 D
made eligible for appointment but only to the post of Additional Sessions
Judge. 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
1
Advocates and the remaining 15% of the vacancies are to be filled in by E
promotion from amongst the members of the U.P. Judicial Officers Service
(Judicial Magistrates).

In Part VI of Chapter VI of the Constitution, the word "Magistrate",
though employed, in Article 237, does not figure to be defined and thus
inevitably resort has to be made to Section 3(32) of the General Clauses F
Act, 1897 to note that a "Magistrate" shall include every person exercising
all or any of the powers of the Magistrate under the code of Criminal
Procedure for the time being in force, Coming to the Code of Criminal
Procedure, 1973, as now existing, we have Courts and Magistrates
classified under section 6 thereof, the later as Judicial Magistrates and
Executive Magistrates, and the Court of Session heading the classification. G
Section 9 provides that every Court of Session shall be presided over by a
Judge to be appointed by the High Court. The High Court may also appoint
Additional Sessions Judges and Assistant Sessions Judges to Exercise
jurisdiction in a Court of Session. The Executive Magistrates have roles and
functions assigned to them under the Code such as undertaking proceedings
under sections 107, 108, 109, 110, 111, 133, 133 and 145 Cr.P.C. Judicial H
668 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R
A Magistrates, on the other hand, are assigned their roles under the Code
primarily of trial of offences, as envisaged under section 2~ of the Code.

The High Court recorded its understanding of the new role of the
Magistracy after the 1973 Code in paragraph 9 of its judgment as follows:

B "The Code of Criminal Procedure, 1973, conferred power on
the High Court to appoint Sessions Judge, Magistrates, Chief
Judicial Magistrate and Special Magistrates and to confer
Magisterial powers on any person or authority. Under the
new Code, the Executive has nothing to do with the
appointment of Magistrates. In pursuance of the provisions of
c the Code of Criminal Procedure, 1973, the High Court of
Allahabad appointed Chief Judicial Magistrates and the
Magistrates with effect from 1st April, 1974. The persons so
appointed are the same persons who were earlier functioning
as Judicial Magistrates who had been appointed by the
Governor and were functioning as Judicial Officers. After
D their appointment by the High Court, control over the
Magistrates vested in the High Court. The Governor in order
to effectuate the policy underlying Art.50 of the Constitution
issued the impugned notification dated 12th March, 1975
applying all the provisions of Chap. VI of Part VI of the
Constitution to the existing class of Magistrates. The t
E intention and purpose behind the issue of the notification is to
make the Magistracy free from Executive influence and to
make them part of the Judicial Service of the State along with
Civil Judiciary".

At this place, Articles 233, 234, 235, 236 and 237 from part VI,
F Chapter VI of the Constitution may be read with advantage:

"233. APPOINTMENT OF DISTRICT JUDGES- (I)
Appointments of persons 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
G exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the
State shall only be eligible to be appointed a District Judge if
he has been for not less than seven years an advocate or a
pleader and is recommended by the High Court for
H appointment."
P.K. SARIN v. STATE OF U.P [PUNCHHI, J.] 669

"234. RECRUITMENT OF PERSONS OTHER THAN A
DISTRICT JUDGES TO THE JUDICIAL SERVICE-
Appointment of persons other than District Judges to the
Judicial Service of a State shall be made by the Governor of
the state in accordance with rules made by him in that behalf
after consultation with the Stat.e Public Service Commission
and with the High Court exercising jurisdiCtion in relation to B
such State."

"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 C
and holding any post inferior to the post of District Judge
shall be vested 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 law regulating the
conditions of his service or as authorising the High Court to
deal with him otherwise than in accordance with the D
conditions of his service prescribed under such law.''

"236. INTERPRETATION- In this Chapter- (a) the
expression 'district judge includes judge of a city civil court,
Additional District Judge, Joint District Judge, Assistant

' District Judge, Chief Judge of a small causes court, Chief
Presidency Magistrate, Additional Chief Presidency E
Magistrate, Sessi9ns Judge, Additional Sessions Judge and
Assistant Sessioris Judge;

(b) the expression 'judicial service' means a service
consisting exclusively of persons intended to fill the post of
district judge and other civil judicial posts inferior to the post F
of district judge."

"237. APPLICATION OF THE PROVISIONS OF THIS
CHAPTER TO CERTAIN CLASS OR CLASSES OF
MAGISTRATES- The Governor may by public notification
direct that the foregoing provisions of this Chapter and any G
rules made thereunder shall with effect from such date as·
may be fixed by him in that behalf apply in relation to any
class or classes of Magistrates in the State as they apply in
relation to persons appointed to the judicial service of the
State subject to such exceptions and modifications as may be
specified in the notification." H
670 SUPREME COURT REPORTS [1994] SUPP. 6 S.C.R

A Much before the issuance of the impugned notification the Government
by notification dated September 30, 1967 issued under Article 237 of the
Constitution, had directed separation of the Judicial Magistrates/Judicial
Officers from the Executive who were thereafter placed under the
Administrative control and superintendance of the High Court with effect
from October 2, 1967. The Government, it appears, stopped thereafter
B recruitm~nt to the Judicial Officers service. On the other hand they
continued to remain ineligible for appointment to a post in the U.P. Higher
Judicial Service by the dictate of Chander Mohan's case. The Judicial
Officers service thereupon became a suffocated and dying cadre, as
members of that service were left with no avenues of promotion even
though most of them had sufficient experience of criminal judicial work.
c The High Court appreciated their predicament and moved into the matter.
The State Government on the recommendations of the High Court thought
it prudent to utilize the experience of the Judicial Magistrate trying criminal
cases and providing to them avenues of promotion. With that end in view,
the State of U.P.issued the two notifications impugned before the High
Court, as also here, the effect of which was that the Judicial Officers
D became eligible for appointment only to the post of Additional Sessions
Judge only, and the Judicial Officers Service was declared as a Judicial
Service, becoming a third source for recruitment under Rule 6, getting a
quota of 15 per cent. But, in the event of non-availability of the prospective
candidates or exhaustion of their members, the quota meant for Judicial
Officers/Judicial Magistrates was to go to add to the quota of the U.P.Civil
E Services (Judicial Branch) vis-a-vis direct advocate recruits. Thus in the
nature of things, it was a self consuming measure, working itself out in the
foreseable future.

Article 237 of the Constitution enables the Governor to apply the
provisions of Chapter VI of part VI of the Constitution and any Rules made
F thereunder, to certain class or classes of Magistrates and not to any other
class or classes of Officers. This is a ladder upon which a class or classes of
Magistrates in the State can be made to climb and get transformed, with
effect from a certain date, as persons appointed to a Judicial Service of the
State, subject to such exceptions and modifications as may be specified to
in the notification. The Constitution recognizes the judicial element
G
permeating in the Magistracy, for they deal with the liberty and property of
individuals, functioning as criminal courts. To put it tersely magistracy
alone is recognized as judge-material meant for such transformation. Now
in the impugned notification, it is clear that the promotional avenues of the
magistrates stop at the level of the Additional Sessions Judge, a court which
H is a creation of the Code of Criminal Procedure. In no way is this
P.K. SARIN v. STATE OF U.P [PUNCHHI, J.] 671

designation confused with that of the Additional District Judges. Under A
Article 236, which is the interpretation box for Chapter VI, the inclusive
definition of the expression "District Judge" includes an Additional Ses-
sions Judge but only for the purposes of the Chapter, and not for any other
purpose. The Additional Sessions Judge is a "District Judge" for the limited
purpose or his appointment as District Judge in terms of Article 233 of the
Constitution. B

' As is evident the domain of the present litigation is confined to the
members of the U.P. Judicial Officers Service, recruitment to which was
stopped after October 2, 1967. The service thenceforth became subject to
all subtractions but no addition. The sweep of Article 237 covers
Magistrates existing prior to the separation of judiciary from the executive, C
those who may not have been appointed in accordance with the rules
framed under Article 234 or who might not have been under the control of
the High Court under Article 235. It is towards achieving that end that the
Governor stood empowered under Article 237 to act by means of a
notification, with such exceptions or modifications, as he might consider fit.
The powers thus conferred were unfettered by any restriction. The D
Governor could apply all or only some of the provisions of Chapter IV.
That here the Governor in exercising his power under Article 237, issued
the notification of March 12, 1975, classifying Magistrates (including Chief
Judicial Magistrates) in the State as those belong to the Uttar Pradesh Judi-
cial Officers Service and applying to them all the Articles contained in
Chapter VI of Part VI of the Constitution, barring of course Article 23 7, as E
they apply in relation to persons appointed to the Judicial Service of the
State subject to the exceptions and modifications namely, (i) the members
of the U.P. Judicial Service Officers shall constitute a Judicial Service to fill
in the post of Additional Sessions Judge only for the purpose of Article 233
and 235 of the Constitution; (ii) U.P. Judicial Officers Service shall be a
service distinct and separate from the U.P. Civil Service (Judicial Branch). F
The point for consideration before the High Court as also here is
whether the Governor could transform the existing U.P.Judicial Officers
Service to be a Judicial Service of the State alongside the existing U.P.
Civil Service (Judicial Branch). The following passage from Chandra
Mohan's case was put across to contend that a distinct service could not be G
created:

"Article 237 enables the Governor to implement the
separation of the judiciary from the executive. Under this
Article, the Governor may notify that Articles 233, 234, 235
and 236 of the Constitution will apply to Magistrates subject H
r
672 SUPREME COURT REPORTS [1994] !suPP. 6 S.C.R

A to certain modifications or exceptions; for i9stance, if the
Governor so notifies, the said magistrates will become
members of the judicial service, they wiU have to be
appointed in the manner prescribed in Article 1234, they will

•
be under the control of the High Court under Article 235 and
they can be appointed as District Judges by Ithe Governor
B under Article 233( 1). To state it differently, they will then be
integrated in the judicial service which is one lof the sources
of recruitment to the post of district judges. Indeed, Article
237 emphasizes the fact that till such an I integration is
brought about, the magistrates are outside the scope of the
said provisions. The said view accords with th¢ constitutional
c theme of independent judiciary and the contrary view accepts
a retrograde step." I

Reliance on Chandra Mohan's case is misplaced as ie view it. The
above passage talks of an instance of action but is by no means exhaustive.
The State is not bound to adopt the course of making magjstrates become
D members of the existing Judicial Service. They may obviate the procedure
to be followed in making appointments in the manner prescribed under
Article 234, State is not bound to cause any integrati~n so that the
Magistrates may become members of the existing Judicial Service. No bar
anywhere could be pointed out to us by learned c~unsel for the
appellant/petitioners by which the State could be prohibited'from creating a
E parallel judicial service in which the magistracy of the kind [involved herein
was transformed. As said before, the Constitution recognizeis; and it is plain
otherwise, that Magistrates perform judicial functions wheq trying offences
under the Indian Penal Code and other statutes, empowered as they are
under the Code of Criminal Procedure. There could th~s be no bar to
confining the promotional avenues of Magistrates to be uptill the Court of
F the Additional Sessions Judge and none other. The grievance of the ...
members of the U.P. Civil Service (Judicial Branch) is hi~hly over-blown
when it is scanned to discover that they without functioring as criminal
courts and without gaining any experience in that field, get on to become
Additional District and Session Judges merely on the experience gained on
the civil side. This discloses that what is needed at that Istage is judicial
G
temper. Their attempt to thwart the promotional benefit given by the
impugned notification to the Judicial Magistrates in becdming Additional
Sessions Judges is on the face of it unequal in comparison to the service
benefit obtained by the personnel of the U.P. Civil Service (Judicial
Branch). The entire matter has to be viewed on the touchsfone of Article 50
H of the Constitution. In separating judiciary from th~ executive, the
P.K. SARIN v. STATE OF U.P [PUNCHHI, J.] 673

personnel of judicial service so retrieved by separation have to be given a A
place as a class as members of the judiciary, either by integration in the
.,,,, ~ existing judicial service or by transformation into a separate judicial
service. There apparently is no other way to place them. Articles 233 to 237
would have to be viewed in this light. On doing so, we go to agree with the
High Court that the impugned notification of March 12, 1975 and the others
consequential notification stood validly issued by the Governor under B
Article 237 of the Constitution and that the erstwhile Magistrates, members
of the U.P. Judicial Officers Service, became members of a separate
Judicial Service of the same name intended to be promoted as Additional
Sessions Judges only in the post meant for the Additional District and
Sessions Judge and to stay apart alongside the U.P. Civil Service (Judicial
Branch). We also view that the said service was validly created. C
Before we conclude, we must notice a three-member Bench decision pf
this court in ML. Sharma v. Union of India, [1992] Supp 2 SCC 430 cited,
wherein it was ruled that even if a particular person comes within the
definition given under Article 236 of the Constitution, it is open to the State
Government under appropriate rules to classify such officer included in the D
inclusive definition not to be a District Judge proper and to belong to a
category different from that. That was a case in converse where a person
claimed to have become a District Judge by means of the inclusive
definition and to have become, by this logic, a member of the Haryana State
Superior Judicial Service. This Court repelled the claim. This case is of no
assistance to either side. E
There is thus no merit either in the appeal or in the writ petitions. All of
them fail and are dismissed but without any order as to costs.

K.S.D. Appeal and petitions dismissed.