Case: Kumar Padma Prasad Vs. Union Of India And Ors


Decision:
1[ds]25. 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 scheme of Chapters V and VI of Part VI of the Constitution. We, therefore, hold that expression ``judicial office under Article 217(2)(a) of the Constitution 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) person must hold a ``judicial office which must be a part of the judicial service of the State.The word ``office has various meanings and we have to see which is 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 of the duties of which could be conferred on any person whether trained or not in the administration of justice. The word ``Judicial Office under Article 217(2)(a) in our view means a subsisting office with a substantive position which has an existence independent from its holder.36. 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) of the Constitution of India. The office of the Assistant to Deputy Commissioner held by Srivastava for 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 Jethmalani 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.37. Before parting with the point under discussion we may notice 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) the Indian Civil Service, (2) the Provincial Judicial Service, and (3) the Bar. After independence recruitment to the Indian Civil Service was discontinued and the officers of the Indian Administrative Service which substituted 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) judicial service. There has been no case of a member of the executive having been promoted as a district judge. The independence of judiciary 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 free from the executive control. The constitutional 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 CourtIt 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 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 or Magistrates concerned have the adornment of a judicial office. We, therefore, reject the contention of Mr. Venugopal.40. 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.