TMI Blog1976 (10) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... Uttar Pradesh issued the notification dated March 12, 1975, under Article 237 of the Constitution directing that the provisions of Chap. VI of Part VI of the Constitution and any rules made thereunder shall with effect from the date of notification apply to Judicial Magistrates (including Chief Judicial Magistrates) in the State where members of the U. P. Judicial Officers Service, as they apply in relation to persons appointed to the judicial service of the State 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 Additional Sessions Judges 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 means of this notification the Judicial Magistrates who are members of the Judicial Officers Service have become eligible for appointment to the post 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not be appointed to the Higher Judicial Service under Clause (2) of Article 233 of the Constitution. Thereafter Judicial Magistrates were not recruited to the U. P. Higher Judicial Service. 6. The State Government in pursuance of the directive principle as laid down in Article 50 of the Constitution took steps for separation of the executive with the judiciary and for the purpose the Judicial Magistrates/Judicial Officers were separated from the executive and placed under the administrative control and superintendence of the High Court with effect from 2nd October, 1967. by notification dated September 30, 1967, issued under Article 237 of the Constitution. The Government however stopped further recruitment to the judicial officers service and they continued to be ineligible for appointment to the post in the Higher Judicial Service. The U. P. judicial Officers Service thereupon became a dying cadre and members of that service were left with no channel or avenue of promotion even though most of them had sufficient experience of criminal judicial work. The State Government in the recommendation of the High Court considered it necessary to utilise the experience of the Judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. 236 . 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 Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions 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 of District Judge. 237 . The Governor may by public notification direct that the forgoing 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inferior to the post of District Judge. Articles 233 and 236 read together make it clear that appointment to the post of District Judge as defined by Clause (a) of Article 236 can be made from amongst the persons who belong to the Judicial service as defined by Clause (b). No other person even if he is in the service of the Union or State is eligible for appointment as District Judge under Article 233(2) unless he is included within the expression 'judicial service' and it was for this reason that the appointment of Judicial Officer-cum-Judicial Magistrate was held invalid in Chandra Mohan's case. The Judicial Magistrates were no doubt administering criminal justice but since they were under the control of the executive the Supreme Court held that they could not fall within the expression Judicial Service and the provisions of Chap. VI of Part VI of the Constitution was not applicable to them. 8. Prior to the promulgation of the Constitution, Judicial Magistrates were quite separate from Civil Judiciary although on the higher level at the stage of Sessions Judge, the Civil Judges and District Judges were conferred power under the Code of Criminal Procedure to enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed power on the Governor to issue notification applying the provisions of the Constitution relating to the appointment, control and other matters to the Magistrates as they apply to Civil Judiciary and also for vesting the control over them to the High Court. It was with this purpose that Article 237 was enacted. The Constitution framers were therefore keen that the existing class of Magistrates should be placed under the High Court and that they should constitute a wing of the Judicial Service of the State. 9. In the State of Utter Pradesh during the second world war Revenue Officers and Judicial Officers were appointed by the Executive. Powers of Magistrate were conferred on them by the Executive under the Code of Criminal Procedure. Since 1956 Judicial Officers who are commonly known as Judicial Magistrate were recruited along with Munsifs, namely, members of the Nyayik Sewa by selection through Public Service Commission, hut appointment, grant of leave, promotion and all other matters of control in the case of Judicial Magistrates vested in the Executive. In 1960, the Governor framed rules known as U. P. Judicial Officers Service Rules, 1960, regulating service conditions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lass or classes of Magistrates who may not have been appointed in accordance with the Rules framed under Article 234 and who may not be under the control of the High Court for the purpose of Article 235. In this context Article 237 was inserted in the Constitution conferring power on the Governor to bring change by placing class of Magistrates under the High Court and to apply provisions of Articles 233, 234, 235 and 236 to them as they apply to the judicial service of the State. Once a notification is issued by the Governor applying the provisions of Chap. VI of Part VI of the Constitution to the existing class of Magistrates, then Articles 233, 234, 235 and 236 would operate in relation to the Magistrates also in the same manner as they operate in the case of members of civil judicial service of the State. The expression the foregoing 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 class or classes of Magistrates as they apply in relation to persons appointed to the judicial service of the State indicates the intention that on the issue of a notification applying the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The submission that the notification issued under Article 237 has enlarged the definition of 'Judicial Service' is based on the petitioners' interpretation of Article 236(b) of the Constitution. Learned counsel urged that the definition of Judicial service as contained in Article 236(b) contemplates that before a person or class of persons is included in the judicial service, two things must be complied with; firstly, that such person or class of persons must be intended to fill the post of District Judge and, secondly, such person or class of persons must be entitled to fill the posts of other civil judicial officers inferior to the post of District Judge. He laid emphasis on the word 'and' occurring in Clause (b) of Article 236 and contended that unless both the conditions are satisfied no class of persons can be included within the expression 'Judicial Service'. We find no valid reason to accept the contention. In the first place, even if the existing class of Magistrates are not included within the expression Judicial Service as defined in Clause (2) of Article 236, they should be deemed to be included after the issue of the notification by the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be eligible for promotion to the post of Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge, namely, the posts which are included within the definition of 'District Judge'. In N. Deva-sahayam v. State of Madras AIR 1958 Mad 53 the contention that Article 237 did not contemplate creation of two parallel services, one for administration of criminal justice and the other for civil causes was repelled and it was held that judicial service as defined by Article 236 itself contemplated two classes of persons. Raja-gopala Ayyangar, J. observed: I am unable to agree that the Constitution intended to preserve and perpetuate for ever the dichotomy between civil judicial service and the magisterial service or that the Constitution laid or lay an embargo on Magistrates being appointed to civil judicial posts like Subordinate Judges or District Munsifs. In the first place, the definition of district judge includes 'Chief Presidency Magistrates, Additional Chief Presidency Magistrates, Sessions Judges, Additional Sessions Judge and Assistant Sessions Judge so that at the level of the District Judge there is no distinction made between those discharging purel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving option to one class of officers. The question which we are dealing was neither raised nor considered in Krishna Nair's case. In paragraph 15 of the report the Kerala High Court repelled the contention that if the power of the Governor to create criminal judicial service is accepted it would then enlarge the definition of the term 'judicial service' as defined by Art. 236(b) of the Constitution. The Bench observed thus: Article 237 gives the Governor the power to apply the provisions of Chap. VI of the Constitution and the Rules made thereunder to any class or classes of Magistrates in the State in the same way in which they apply to persons appointed to the judicial service of the State. There is no enlargement of the definition of 'judicial service' in Article 236(b) of the Constitution nor any clash with the said provision. These observations are consistent with our views. In making the judicial officers and Magistrates eligible for appointment to the post of Additional Sessions Judge, the impugned notification does not enlarge the definition of 'judicial service' nor it is in clash with any of the provisions of Chap, VI of Part VI of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the exceptions specified in the notification were not inconsistent with Article 237 and the Judicial Officers were not eligible for appointment to the post of District Judge. The judgment of the Division Bench is founded on the terms and contents of the notification dated 30th September, 1967. In the instant case, the impugned notification is quite different. In the circumstances the observations in Vishnu Chandra's case are not relevant for the purpose of interpreting the impugned notification. 16. In Chandra Mohan's case AIR 1966 SC 1987 (supra) the Supreme Court considered the scope of Article 237 and observed thus:-- 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 to certain 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 Article 234, they will be under the control of the High Court under Article 235 and they can be appointed as Distric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose would be served by issuing any notification under Article 237 applying the provisions of Chap. VI of Part VI of the Constitution to the Magistrate because in that event their appointment itself would be in accordance with those provisions. 17-18. As already noticed, the Constitution framers were anxious that the Magistrates who were under the control of the executive should also be brought under the control of the High Court and they should also be appointed in accordance with the rules framed under Article 234 and in that event they should be treated as members of Judicial Service. The plain language of Article 237 does not admit of any restriction on the power of the Governor to apply the provisions of Chap. VI of Part VI to the existing class of Magistrate. If the petitioners' contention is correct that unless the Magistrates are appointed afresh in accordance with the rules framed under Article 234 of the Constitution, they cannot form part of the Judicial Service, in that event, no purpose could be served by Article 237. The submission that Article 237 empowers the Governor only to place the existing class of Magistrates under the High Court for the purpose of Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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