TMI Blog1967 (2) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... void and of no legal effect and appointments made thereunder to the Judicial Service of the State are illegal. The validity of the rules was challenged on the followings grounds: (1) That the rules had not been framed after consultation with the High Court as required by Article 234 of the Constitution. (2) That the rules with respect to appointments to the Judicial Service can only be made under Article 234 of the Constitution and the impugned rules having been expressed to have been made under Article 309 of the Constitution are invalid. (3) That consultation to be valid ought to have been done after Article 234 came into existence, any prior consultation is of no legal efficacy. (4) That the Public Service Commission was not consulted prior to the framing of the rules. (5) That on a true interpretation. Article 234 requires consultation with the High Court for each appointment and not for making the rules, and the respondents' appointment violated this condition. 3. The State of Uttar Pradesh has in its counter-affidavit repelled the statements of facts in the petition in relation to these contentions It was stated that the rules were framed after due consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f, reliance has been placed by the learned counsel for the petitioner on the decision of Rajasthan High Court in Prem Nath v. State of Rajasthan AIR 1966 Raj 26. In this case a Bench of the Rajasthan High Court held that consultation with the High Court under Article 233 means consultation with the full Court and not with a committee consisting of the Chief Justice and a few Judges. There is no discussion of the point in this decision and I am unable to endorse the dicta of the Bench. Article 233 of the Constitution requires the Governor to make appointments, posting and promotion of the District Judge in consultation with the High Court. Under Article 234 rules for recruitment to posts other than that of the District Judge are to be made by the Governor after consultation with the High Court. Under Article 235 control over district courts including the posting, promotion of and grant of leave to all persons holding any post inferior to the post of the District Judge is vested in the High Court. This vesting of the control and the consultation of the High Court is an administrative function of the High Court. There is nothing in Chapter VI of Part VI of the Constitution in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenient transaction of the business of the Government. This is with a view to make the exercise of the executive power conveniently workable The Constitution in Articles 233 to 237 associates the High Court in certain matters and entrusts to it certain other powers in respect of the executive business relating to the administration of justice By Article 225, the Constitution preserves, the powers of its Judges in relation to the administration of justice in the Court Including power to make any rules of Court. The High Court has thus been recognised to have the power to make rules of Court to govern the respective powers of the Judges in relation to the administration of justice in the Court. The rules can provide for the allocation amongst Judges of the business of the Court relating to the administration of justice as also for the manner and method of its performance. Such rules will facilitate the carrying out of the function entrusted to the High Court in respect of administration of justice and would be valid. 11. It was suggested that the term 'High Court' should be construed to mean the whole Court for the purpose of important matters like appointments and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 235 of the Constitution or that the High Court as a whole did not pass the order which was the alleged cause of action. 13. The Supreme Court has not in this case either expressly or by any implication given its approval to the assumption on which the argument was advanced that the High Court cannot delegate its power under article 235 of the Constitution to a committee. The Supreme Court dealt with the argument in the form in which it was advanced and rejected it on the preliminary ground that the argument does not arise because there was no factual foundation for it in the pleadings under the rules of the Court. No occasion, therefore, arose for the Supreme Court to consider the question of the correctness of the assumed basis that the allocation of such a power to a committee would either be a delegation of powers or that such delegation would be illegal or unconstitutional They have nowhere held that under Article 235 the High Court means the whole High Court that is to say, all the Judges of the Court. 14. There is nothing in the decision of the High Court in Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987 to suggest that the High Court in these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice rules for the United Provinces Civil Service (Judicial Branch), which has at present rules for 'recruitment' and 'conditions of service' The letter further stated that the tentative proposals for a combined set of service rules for United Provinces Civil Service (Judicial Branch) as it will become on the establishment of a Higher Judicial Service, were enclosed in the second set of draft rules which were also for favour of the comments of the High Court/ Commission. 16. Along with his reply dated 7th October, 1949 the Registrar of the High Court forwarded the comments of the Court on the draft rules of the United Provinces Higher Judicial Service and amendments to the U P. Civil Services (Judicial Branch) (Recruitment) and (Conditions of Service) Rules . Some argument was made on the language of this letter. It was submitted that the High Court considered and sent its comments to the Government on the amendments to the pre-existing rules for recruitment and conditions of service, and not to the draft of the combined set of rules for U. P. Civil Services (Judicial Branch). This letter of the Registrar was in reply to the Government's letter dated July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been based only on the aforesaid correspondence. In paragraph 14 of the petition it is stated that Article 234 does not contemplate consultation with a committee of Judges or with one or two individual Judges of the Court. But it is nowhere alleged that the consultation was in fact made by the Government only with some individual Judges or with any committee of the Court. In the absence of any positive allegation in this behalf, the respondents could not be expected to make any detailed answer to this point or to furnish any information as to whether all the Judges of the High Court gave their opinion. The State Government was under a duty to consult the High Court. In discharging this duty it could only refer the rules to the High Court in order to consult it and ask the Court's opinion. If the Government did this, it complied with the constitutional requirement of consulting the High Court. The State Government could not predicate as to how the High Court will deal with the matter The same view was taken in V. K. Kulkarni v. State of Mysore AIR 1963 Mys 303. On the materials, the conclusion is inescapable that the rules were framed after consultation with the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the law and came under Clause (a) of Rule 9 of Chapter XXIII. Under the rules, all the Judges of the Court had to consider the matter. On the basis of these rules, therefore, it cannot be urged that all the Judges of the Court were not required to be consulted in the matter of framing of the rules for the U. P. Civil Service Judicial Branch. 22. The High Court Rules were repealed and re-enacted in 1952. The re-enacted set of rules came into force on the 15th day of September, 1952, that is after the Civil Service Judicial Branch Rules had been framed, published and also enforced with effect from August 20, 1952. These new rules, therefore will not govern the matter. But assuming that they did, the position is not different because the relevant rules are contained in Chapter III of the Rules and are to the same effect as Chapter XXIII of the old rules after its amendment in 1949. On the basis of the rules, therefore, it cannot successfully be urged that the whole Court was not consulted. 23. It was next urged that consultation within the meaning of Article 234 can only be at a meeting or conference of the Judges of the Court and not by the process of circulation to individu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction under which it will be a nugatory, Hazarimal v. I.-T. Officer [1961]41ITR12(SC) . 27. In yet another case, the Supreme Court held that rules purporting to have been made under one provision, were partly sustainable under that provision, but the other part subserved the purpose of another provision which was not mentioned nonetheless the rules would be valid because the two powers will concur to sustain them, E. M. Muthappa Chettiar v. I.-T. Officer [1961]41ITR1(SC) . Similar views were expressed by a Division Bench of this Court in State of U. P. v. O. P. Sharma 1964 All LJ 764. The Governor had power to frame rules relating to recruitment under Article 234 and about conditions of service under the first proviso to Article 309. The impugned rules being in respect of both matters are valid because both powers will concur to sustain them and the mere non-mention of Article 234 in the preamble will not affect their validity. The only effect of non-mention of Article 234 would be that no presumption could be raised that the High Court was consulted The respondents do not rely on any presumption. They have sought to establish the fact by evidence. 28. The third submission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a province. This Article was a part of Chapter 2 of Part X which dealt with the Civil Services generally. Thus the first step for achieving the independence of subordinate judiciary was taken. The Governor was to frame rules in consultation with the High Court for defining the standard of qualification for the subordinate Civil Judicial services. The consultation was for making the rules. When the Constitution came to be drafted an advance was made in two respects. The provisions about subordinate judiciary were separated from Part XIV of the Constitution which dealt with the services under the Union and the States, and were incorporated in Part VI immediately after the provisions relating to the High Courts. Secondly, the High Court was associated with the entire matter of recruitment to the subordinate judicial service. This included not merely the standard of qualifications, but also the method of recruitment as well as the manner of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became necessary because the rules for the Judicial Service were to be framed in consultation with the High Court. All these aspects of the matter lead to the inevitable view that Article 234 requires consultation with the High Court only in the matter of the making of the rules. 32. Learned counsel for the State referred me to the decision of Rajagopala Ayyangar, J. in N. Devasahayam v. State of Madras AIR 1958 Mad 53. In paragraph 24 his Lordship has with reference to Article 234 pointed out that. The absence of a comma, or other punctuation mark in the Article which may serve to specify the appointment as the event which required the consultation appeared to me very significant. In the absence of any punctuation mark the grammar of the Article seemed to point to the consultation referred to being in relation to the making of the rules. His Lordship further drew support from Article 237 of the Constitution. He observed: It (Art- 237) refers to the 'foregoing' provisions of this Chapter and any rules made thereunder, and there is no other article in the chapter which refers to any rules made under it except Article 234. The reference to the rules in Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les. The position, therefore, is that if there has been any breach of Rule 21, the appointment will be deemed to have been made in relaxation of the said rule. The appointment, therefore, cannot be held to be illegal in that ground. 35. In some of the other writ petitions which were also heard along with this one, the incumbent is occupying the post of Civil Judge. In those petitions (Nos. 3386 of 1966. 3712 of 1966, 3788 of 1966, 3790 of 1966, 3943 of 1966, 4214 of 1966 and 4221 of 1966) the only ground taken was that the rules were invalid and hence also the appointment to the service At the hearing, learned counsel urged that appointment to the service is made on the post of Munsif. Thereafter the officer is promoted to the post of Civil Judge Under Article 235 of the Constitution 'promotion' vests exclusively in the High Court The promotion of the respondent officer not having been done by the High Court, he could not validly occupy the port of Civil Judge This submission again was made without any averment in the petition that the High Court did not pass the requisite order or that some one else did. In the circumstances the submission cannot be entertained. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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