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

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 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 consideration 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 process of consultation under the Constitution been followed.2. Shri Lal Thanhawla, Chief Minister, Mizoram by his letter dated September 29, 1989 addressed to Chief Justice, Gauhati High Court recommended the name of Srivastava for appointment as a Judge of Gauhati 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 addressed to Governor of Mizoram and Chief Minister, Mizoram acknowledged the receipt of the recommendations and stated that he would take necessary action immediately after formation of a Permanent Bench at Aizawl. Mr. Swaraj Kaushal who succeeded Capt. W.A. Sangma as Governor, Mizoram addressed a detailed letter dated May 5, 1990 recommending Srivastava for appointment as a Judge. Alongwith the recommendation he enclosed bio-data of Srivastava which is as underDATA OF SHRI K.N. SRIVASTAVA, M.J.S.LEGAL REMEMBRANCER AND SECRETARYLAW & JUDICIAL ETC. GOVERNMENT OF MIZORAM 1. Name : K.N. Srivastava (Keshari Nandan Srivastava) 2. Fathers Name : Late Sri Krishna Lal 3. Present Address : Law Department Civil Secretariat Govt. of Mizoram, Aizawal 796001 4. Permanent Address : C/o Sri Chandra Mohan Srivastava 254 Bazar Jhau Lal, Lucknow U.P. 226001. 5. Date of Birth and Age : 30 January, 1938 (52 years): 6. Nationality/Religion : Indian/Hindu 7. Qualification : B.A. LLB. (1957-1959 Lucknow University) 8. Service to which belongs : Mizoram Judicial Service9. Professional Experience:Took training for legal practice in 1960 in Lucknow.2. Joined Govt. of Assam in Law Department in 1966 as Gazetted Officer for Coordination and translation of all State Laws in consultation with official Legislative Language Commission Government of India.3. Posted as Law Officer in Finance Department of Government of Assam to tender legal advice and to look after taxation laws and litigations.4. Appointed Under Secretary Law and Judicial, 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 Administration Department, Revenue, Excise & Taxation Department, Education, and Social Welfare Department, Govt. of Mizoram from time to time.6. Appointed as Registrar of Firms and Societies, Government of Mizoram from 23.3.72 to 21.12.1979.7. Appointed Deputy Secretary Law & Judicial and Deputy Legal Remembrancer since 1979, and8. Legal Remembrancer and Secretary Law an Judicial since 1985, and also9. Appointed Presiding Member of one man Mizoram Motor Accident Claims Tribunal in 1986.10. D.C. (Judicial) in 1987.11. Presiding Officer, Industrial Tribunal in October, 1989.12. Declared as Law Officer to appear and conduct cases in all courts on behalf of Government for which also enrolled as an Advocate with the Bar Council of Assam, Nagaland, Meghalaya Manipur etc., Gauhati High Court, Gauhati.13. Attended and successfully completed a legal course consisting of studies in International Law and Organisations, Practical and Treaty drafting at London, U.K. from January 1980 to May 1980.14. Member, Mizo Customary Law Committee and also had been its Chairman during President Rules from September, 1988.15. Chairman of Executive Committee, Legal Aid and Advice Board.16. Chairman, State Level Screening Committee under the Prevention of Ilicit Traffic in Narcotic Drugs.17. Member, Board of Under-graduate studies, North Eastern Hill University, Shillong to consider course and prospectus for LL.B. course.18. Member, Committee to review the implementation of the recommendation of All India Committee on Jail Reforms.19. Member, Mizoram Resources Mobilisation and Taxation Enquiry Committee.20. Member State Level Road Safety Council for Mizoram.21. Member, Works Advisory Committee.22. Member, Supply Advisory Board for Assam Rifles in Mizoram.23. Member, Appellate Board for Water and Air Pollution in Mizoram.3. 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 a letter dated September 10, 1990 to the Governor of Assam bringing to his notice the names proposed by the Chief Justice of the Gauhati High Court and called 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 States. He recommended Srivastavas name and also sent his bio-data (reproduced above) alongwith 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 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 Srivastava alongwith his bio-data was considered by the Chief Justice of India on November 7, 1990. Regarding Srivastava he recorded as underK.N. Srivastava is a Judicial Officer, there is nothing adverse against him but his C.R. is not available ... After the C.Rs. 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 of Srivastava. The Chief Justice cleared the name of Srivastava in the following wordsfar as Srivastava is concerned he is a Judicial Officer and there is no objection. His name is, therefore, cleared.The Minister of Law and Justice approved Srivastavas appointment as a Permanent Judge of Gauhati High Court on August 14, 1991. Thereafter a summary was prepared by the Department of Justice for the consideration of the Prime Minister and the President of India. In the said summary Srivastava was presented as underK.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 Firms and Societies, Government of Mizoram, from 23.3.1972 to 21.12.1979. 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 Appointment was signed by the President on October 15, 1991 and notification appointing Srivastava as a Judge, Gauhati High Court was issued on October 25, 1991.7. Kumar Padma Prasad, a practising advocate, filed a writ petition 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 respondents to recall, rescind or otherwise forbear from giving effect to the impugned selection of Srivastava for being appointed as a Judge of the Gauhati High Court. The writ 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 termsstay matter shall be heard on 28.10.1991. Meanwhile, the respondent No. 1 Union of India, is restrained from issuing warrant appointing the respondent No. 9 (Shri K.N. Srivastava) as Judge of the Gauhati High Court tillOctober 28, 1991 the High Court noticed the fact that the warrant of appointment of Srivastava had already been received at Gauhati. The 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 underview of the above discussion, it is doubtful if the respondent 9 Shri K.N. Srivastava possesses qualifications as provided under Clause (2) of Article 217. Therefore, a bona fide dispute has been raised, thereby showing a prima facieHigh Court granted the interim stay in the followingthe 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 orders. It is further ordered and directed that respondent 9 Shri K.N. Srivastava is restrained 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. Srivastava as Judge in a High Court keeping in view the allegations 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. Sarma, JJ. suo-moto assumed jurisdiction on the judicial side presumably under Article 226 of the Constitution of India and on November 20, 1990 passed the following ordera case under public interest litigation with the cause title - The Registrar (Judicial), Gauhati High Court Versus Shri K.N. Srivastava, Secretary Law and Judicial Department, Government of Mizoram, Aizawl. Let a notice be issued to Shri K.N. Srivastava, Secretary, Law and Judicial Department, Government of Mizoram to show cause as to 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.In the interim, we direct the Secretary, Law and Judicial Department, Government of Mizoram to furnish full particulars of the law books and journals purchased for the Judges library positively within 7 (seven) days from the date of receipt of this notice. The particulars should contain amongst others - (1) total amount of fund allotted by the Government 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.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, 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.The above quoted directions were issued by the High Court after taking note, in the same order, of the following factsthe permanent Bench was established, regular Benches, both Division and Single, are sitting at Aizawl. But great difficulties are faced by the Judges in discharging their function for not having the Judges library equipped with essential law books and journals. Indeed, we are handicapped while sitting in the Court when reference books and law journals are not available for deciding important and complicated questions of law ... A casual look at the library which ismostly 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 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 purchased for the library. The aforesaid facts and circumstances and the unusual silence of the Secretary, Law and Judicial Department as regards furnishing of particulars of the books and journals purchased for the Judges library for more than four months, in spite of repeated reminders, gives rise to strong suspicion that all is not well in the matter of purchase of all books and journals for the Judges library by the Law and Judicial Department. The Secretary Law is duty bound to furnish full particulars of the law books and journals so purchased for the Judges library and is primarily accountable for anomalies, misuse, or misappropriation, if any, of the fund sanctioned by the Government for purchase of books for Judges Library and the consequent non-availability of the essential law 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 within the purview of the Chief Justice. Whether in the matter of purchase of books for the High Court, Srivastava acted honestly or dishonestly was not a matter for the learned Judges to probe by straining their judicial powers. Mr. K. Venugopal, learned senior Advocate appearing for Srivastava contended that Srivastavas name for appointment as a Judge was recommended in August 1990 and by November 1990 the process of consultation was at final stages. According to him the order dated November 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 to course they did.10. The Mizoram Bar Association passed a resolution on October 7, 1991 wherein it was resolved as undera qualified person Shri R.C. Thanga presently Advocate 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 misappropriation cases are pending in the High Court, (Aizawl 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.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 underhad recommended Shri K.N. Srivastava, Secretary Law and Judicial, 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 anomalies in the procurement of law books, journals etc. for the Aizawl Benchs library.We understand that the case is pending with the Gauhati High Court. I have, therefore, thought it desirable to bring this fact to your kind notice.Shri U.L. Bhat, Chief Justice, Gauhati High Court by his letter dated October 8, 1991 addressed to the Law Minister, Government of Indiaam indeed happy that President has approved the names of four persons for appointment of Judges in the Gauhati High Court namely, (1) Shri Dhirendra Nath Baruah (Assam-Bar), Shri Surjit Barman Roy (Tripura-Bar), (3) Shri K.N. Srivastava (Mizoram-Service), and (4) Shri Nani Gopal Das (Tripura- Service).The Chief Justice did not mention anything about the pendency of vigilance cases or any other case against Srivastava. The Law Minister after noticing the contents of both the letters opined that the contents of the Chief Ministers letter be ignored.14. 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 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 High Court till allegations against him were thoroughly inquired.15. 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 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.

Court's reasoning:
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.