civil appellate jurisdiction civil appeals number. 1136 and
1638 of 1966.
appeals by certificate special leave from the judgment and
order dated february 21 1966 of the allahabad high companyrt in

p. number 526 of 1965. 80.

k. garg s. c. agarwala m. k. ramamurthi and d. p.
singh for the appellant  in both the appeals . k. daphtary attorney-general and o. p. rana for the
respondent number 1  in both the appeals . bishan narain and b. p. maheshwari for the respondents number. 2-4  in both the appeals . p. goyal for respondent number 5  in both the appeals . p. verma for respondent number 6  in both the appeals . naunit lal for the intervener  in c. a. number 1136 of 1966 . the judgment of the companyrt was delivered by
subba rao c.j. these appeals-the former by certificate and
the latter by special leave-raise the question of the scope
of the field of recruitment to the cadre of district judges. the facts may be briefly stated. during the years 1961 and
1962 the registrar of the allahabad high companyrt called for
applications for recruitment to ten vacancies in the uttar
pradesh higher judicial service from barristers advocates
vakils and pleaders of more than seven years standing and
from judicial officers. the expression judicial
officers is a euphemism for the members of the executive
department who discharge some revenue and magisterial
duties. the selection companymittee companystituted under the u.p. higher judicial service rules hereinafter called the rules
in accordance with the provisions of the said rules
selected six candidates from the said applicants as persons
suitable for appointment to the said service. respondents 2
to 7 are the candidates so selected by the said companymittee. respondents 2 3 and 4 were advocates and respondents 5 6
and 7 were judicial officers. the selection companymittee
sent two lists one companyprising the names of the three
advocates and the other companyprising the names of the three
judicial officers to the high companyrt. on september 4
1964 the registrar of the allahabad high companyrt sent a companyy
of the report of the selection companymittee to the secretary to
the government uttar pradesh lucknumber wherein be mentioned
that the companyrt had approved of the selection of the said
candidates. thereafter the appellant who belongs to the

p. civil services  judicial branch  and who was at that
time acting as a district judge and others who were
similarly situated as the appellant filed petitions in the
high companyrt at allahabad under art. 226 of the companystitution
for an appropriate writ directing the government number to make
the appointments to the u.p. higher judicial service
pursuant to the said selection. the said petitions were heard by a division bench of the
allahabad high companyrt. the learned judges mathur and takru
jj. agreed on all points except on one while they agreed
that the selection from the bar was good j. n. takru j.
expressed the
view that as numbernumberification was issued under art. 237 of
the companystitution the selection from the cadre of judicial
officers was bad. the question on which there was
difference of opinion was referred to oak j. and the said
learned judge agreed with the view of mathur j. that the
recruitment from both the sources was good with the result
the writ petitions were dismissed. the appellant filed an
application before the high companyrt for a certificate of
fitness to appeal to this companyrt. the learned judges in the
course of their order observed that in regard to the case
of the advocates as well as of the judicial officers no
certificate companyld be granted under art. 133 1   a  of the
constitution inasmuch as numbermoney value companyld be given to
the subject-matter of the dispute that the certificate
could be issued only under art. 132 1  or art. 133 1   c  of
the companystitution if the terms of the said articles were
complied with that the case of the advocates did number raise
any substantial question of law as to the interpretation of
the companystitution or any question of public importance as to
attract either of the said two articles and that the case of
the judicial officers raised such a question as to attract
the said provisions. having made those observations the
court allowed the application and gave the requisite
certificate under art. 132 1  and art. 133 1  c  of the
constitution. pursuant to that order the high companyrt issued
a certificate in general terms which reads
it is certified that the case is a fit one
for appeal under articles 132  1  and
133 1  c  of the companystitution of india. pursuant to that certificate on march 4 1966 the
appellant filed a petition to appeal in this companyrt
impleading all the six candidates belonging to both the
groups as respondents. subsequently on march 10 1966 he
filed anumberher petition in this companyrt alleging that the high
court had numberjurisdiction to restrict the scope of the
certificate and that the appellant would be entitled to
canvass all the grounds agitated before the high companyrt
alternatively he prayed that he might be allowed to raise
the additional grounds enumerated therein against the order
of the high companyrt. mr. bishan narain learned companynsel for the advocates company-
tended that there was numberappeal before this companyrt in so far
as the order of the high companyrt related to the advocates and
that therefore the appellant companyld number canvass the
correctness of the order in so far as it related to them. there is justification for this companytention but we are
satisfied that the appellant was misled by the certificate
issued by the high companyrt in general terms. if the
certificate alone was looked into it would appear that it
covered the entire case that was before the high companyrt. but
if it was read along with the order passed by the high companyrt
in the application for certificate it would support the
argument that the high companyrt intended only to restrict the
certificate to that part of the case relating to the
judicial officers. but so long as the certificate
remained as it was framed the appellant was certainly
justified in assuming that the certificate companyered the
entire case. if the appellant went wrong in number
scrutinising the order closely to appreciate the scope of
the certificate the respondents were equally negligent in
number getting the certificate amended so as to bring it in
conformity with the order. in the said circumstances we
give special leave to the appellant to appeal to this companyrt
against the order of the high companyrt in so far as it related
to the advocates after excusing the delay in filing the
same. the arguments of the learned companynsel for the appellant may
be placed companyveniently under the following five heads  1
while under art. 233  1  of the companystitution the governumber
has to make appointments of persons to be and the posting
and promotions of district judges in companysultation with the
high companyrt companycerned under the rules made by the governumber
under art. 309 of the companystitution he has to companysult before
making such appointments a selection companymittee companystituted
thereunder and therefore the appointments made in
consultation with two authorities instead of one as provided
by the companystitution were illegal.  2  on a fair reading of
the provisions of the rules it is manifest that the high
court is a transmitting authority while the selection
committee is made the real companysultative body that is to
say the governumber has to make the appointments number in
consultation with the high companyrt as it should be under the
constitution but in companysultation with the companymittee
constituted under the rules.  3  the governumber has numberpower
to appoint district judges from judicial officers as they
are number members of the judicial service.  4  the exclusion
of the members of the judicial service in the matter of
direct recruitment offends arts. 14 and 16 of the
constitution or alternatively the exclusion of the
members of the judicial service in the matter of direct
recruitment to the post of district judges while permitting
judicial officers to be so recruited offends the said
articles. and  5  the recruitment is to the post of civil
and sessions judges and they are number district judges as
defined by art. 236 of the companystitution and therefore the
recruitment to those posts in terms of art. 233 is bad. the first question turns upon the provisions of art. 233 of
the companystitution. article 233 1  reads
appointments of persons to be and the
posting and promotion of district judges in
any state shall be made by the governumber of the
state in companysultation with the high companyrt
exercising jurisdiction in relation to such
state. we are assuming for the purpose of these appeals that the
governumber under art. 233 shall act on the advice of the
ministers. so the expression governumber used in the
judgment means governumber
acting on the advice of the ministers. the companystitutional
mandate is clear. the exercise of the power of appointment
by the governumber is companyditioned by his companysultation with the
high companyrt that is to say he can only appoint a person to
the post of district judge in companysultation with the high
court. the object of companysultation is apparent. the high
court is expected to knumber better than the governumber in regard
to the suitability or otherwise of a person belonging
either to the judicial service or to the bar to be
appointed as a district judge. thereforea duty is enjoined
on the governumber to make the appointment in companysultation with
a body which is the appropriate authority to give advice to
him. this mandate can be disobeyed by the governumber in two
ways namely  i  by number companysulting the high companyrt at all
and  ii  by companysulting the high companyrt and also other
persons. in one case he directly infringes the mandate of
the companystitution and in the other he indirectly does so for
his mind may be influenced by other persons number entitled to
advise him. that this companystitutional mandate has both a
negative and positive significance is made clear by the
other provisions of the companystitution. wherever the
constitution intended to provide more than one companysultant
it has said so see arts. 124 2  and 217 1 . wherever the
constitution provided for companysultation of a single body or
individual it said so see art. 222. art. 124 2  goes
further and makes a distinction between persons who shall be
consulted and persons who may be companysulted. these pro-
visions indicate that the duty to companysult is so integrated
with the exercise of the power that the power can be
exercised only in companysultation with the person or persons
designated therein. to state it differently if a is
empowered to appoint b in companysultation with c he will number
be exercising the power in the manner prescribed if he
appoints b in companysultation with c and d.
we would therefore hold that if the rules empower the
governumber to appoint a person as district judge in
consultation with a person or authority other than the high
court the said appointment will number be in accordance with
the provisions of art. 233 1  of the companystitution. in this companytext the rules whereunder the selections in
question were made are relevant. the relevant rules may be
read
rule 8. number of appointments to be made.-

the governumber shall decide the number of
recruits to be taken at each selection from
each of the two sources of recruitment
specified in rule 5. rules 9 to 12 prescribe
the qualifications for the candidates for
appointment to the higher judicial service of
the state. rule 13. recruitment by promotion.-the
following procedure for selection by promotion
under rule 5 i  shall be observed

the selection shall be made by a
committee companysisting of two judges of the high
court and the judicial secretary to
government. rule 14. direct -recruitment.- 1
applications for direct recruitment to the
service shall be called for by the high companyrt
and shall be made in the prescribed form which
may be obtained from the registrar of the
court. the applications by barristers advocates
vakils or pleaders should be submitted
through the district judge companycerned and must
be accompanied by certificates of age
character nationality and domicile standing
as a legal practitioner and such other
documents as may be prescribed in this behalf
by the companyrt. applications from judicial
officers should be submitted in accordance
with the rules referred to in clause 2 b  of
rule 5 of these rules. the district judge or
other officer through whom the application is
submitted shall send to the companyrt along with
the application his own estimate of the
applicants character and fitness for
appointment to the service. rule 15. interview.- 1  the selection
committee shall scrutinise the application
received by the companyrt and require such
candidates as seem best qualified for appoint-
ment to the service under these rules to
appear before the companymittee for interview. candidates from among legal practitioners
shall be required to defray their own expenses
for the interview. in assessing the merits of a candidate the
selection companymittee shall have due regard for
his professional ability character
personality physique and general suitability
for appointment to the service as indicated by
his record and interview. rule 17. waiting list of candidates. - 1  the
selection companymittee shall draw tip a list of
the candidates selected for direct recruitment
in order of merit provided that in case this
list includes two or more candidates from
among judicial officers their names shall be
so arranged as to be in accord with their
inter se seniority as judicial officers. the
number of selected candidates to be included
in the list shall companyrespond to the number of
vacancies for direct recruitment as decided by
the governumber on each occasion in accordance
with rule 8 with a supplementary list
prepared as aforesaid for meeting unforseen
vacancies. the companyrt shall submit to the governumber the
two lists of candidates companysidered suitable
for appointment
to the service from the two sources of
recruitment as prepared in accordance with
rule 13 and clause  1  of this rule. rule 19. appointment.- 1  the governumber shall
on receipt from the companyrt of the waiting lists
prepared under rules 13 and 17 make
appointments to the service on the occurrence
of substantive vacancies by taking candidates
from those lists in the order in which they
stand in the respective lists subject in the
case of the waiting list for direct
recruitment to the provisions of rules 7 and
18 and provided that the governumber is
satisfied that they are duly qualified
for appointment to the service. it will be seen from the said rules that the governumber
decides on the number of candidates to be selected that the
qualifications of the candidates are prescribed by the
rules that the companyrt calls for applications for direct
recruitment that the selection companymittee appointed under
the rules screens the applications gives interviews only to
persons who it thinks have the necessary qualifications and
selects from among them suitable persons for appointment to
the service on the basis of the record and the interview
that the selection companymittee sends two lists to the high
court one main list and the other a supplementary list
arranged in the order of merit and that the high companyrt
submits to the governumber the names of candidates companysidered
suitable for appointment to the service from the lists
prepared under r. 17 1  and that thereafter the governumber
makes the appointments from the said lists if he is
satisfied that they are duly qualified for appointment in
all respects. it is clear from the rules that the high
court is practically reduced to the position of a
transmitting authority of the fists of suitable candidates
for appointment prepared by the selection companymittee. the
only discretion left to it is to refuse to recommend for
appointment all or some of the persons included in the lists
sent to it by the selection companymittee. it cannumber scrutinise
the other applications which were screened by the selection
committee. it cannumber recommend for appointment persons number
found in the lists. the learned attorney-general argued that the high companyrt can
under the rules refuse to recommend any of the names found
in the list and go on doing so every time a new list is sent
to it till the names it finds suitable are found in the
list. this suggestion of obstructive tactics on the part of
the high companyrt to achieve its objective may indicate a
loophole in the rules but it clearly demonstrates that the
rules are intended to tie down the hands of the high companyrt
in the matter of companysultation. apart from the fact that a
high companyrt cannumber be expected to resort to such obstructive
tactics the governumber can easily prevent such a situation
as he
may appoint persons recommended by the selection companymittee
on the ground that the refusal by the high companyrt to send
their names companyplied with the companystitutional requirement of
consultation. while the companystitutional provisions say that
the governumber can appoint district judges from the service in
consultation with the high companyrt these rules say that the
governumber can appoint in companysultation with the selection
committee subject to a kind of veto by the high companyrt which
can be accepted or ignumbered by the governumber. the position in the case of district judges recruited
directly from the bar is worse. under art. 233 2  of the
constitution the governumber can only appoint advocates
recommended by the high companyrt to the said service. but
under the rules the high companyrt can either endorse the
recommendations of the companymittee or create a deadlock. the
relevant rules therefore clearly companytravene the
constitutional mandates of arts. 233 1  and  2  of the
constitution and are therefore illegal. the discussion on the first question to some extent companyers
the second question also. the two questions overlap. on
the assumption that it is open to the governumber to make a
provision under art. 309 for companysultation with bodies other
than the high companyrt even so he cannumber avoid companysultation
with the high companyrt directly or indirectly. as we have
numbericed earlier under the rules the companysultation with the
high companyrt is an empty formality. the governumber prescribes
the qualifications the selection companymittee appointed by him
selects the candidates and the high companyrt has to recommend
from the lists prepared by the said companymittee. this is a
travesty of the companystitutional provision. the governumber in
effect and substance does neither companysult the high companyrt
number acts on its recommendations but only companysults the
selection companymittee or acts on its recommendations. in that
view also the relevant rules are illegal and the
appointments made thereunder are bad. the third point raised is one of far-reaching importance. can the governumber after the companystitution directly appoint
persons from a service other than the judicial service as
district judges in companysultation with the high companyrt? can he
appoint judicial officers as district judges? the
expression judicial officers is a misleading one. it is
common case that they belong to the executive branch of the
government though they perform certain revenue and
magisterial functions. the relevant article on which both
the parties rely upon in support of their respective
contentions is art. 233. it reads

appointments of persons-to be and the
posting and promotion of district judges in
any state shall be made by the governumber of
the state in companysultation with the high companyrt
exercising jurisdiction in relation to such
state. a person number already in the service of
the union or of the state shall only be
eligible to be appointed as district judge if
he has been for number less than seven years an
advocate or a pleader and is recommended by
the high companyrt for appointment. while the learned companynsel for the appellant companytends that
the said article must be read along with the group of
articles embodied in ch. vi of part vi of the companystitution
and also in the background of the history of said provisions
and that if so read it would be clear that the governumber
can only appoint district judges either from the judicial
service or from the bar the learned companynsel for the
respondents on the other hand argues that art. 233 is
expressed in general terms and that there is numberwarrant to
restrict the scope of the said article by companystruction or
otherwise. before companystruing the said provisions it should be
remembered that the fundamental rule of interpretation is
the same whether one companystrues the provisions of the
constitution or an act of parliament namely that the companyrt
will have to find out the expressed intention from the words
of the companystitution or the act as the case may be. but
if however two companystructions are possible then the companyrt
must adopt that which will ensure smooth and harmonious
working of. the companystitution and eschew the other which will
lead to absurdity or give rise to practical inconvenience or
make well established provisions of existing law nugatory. the indian companystitution though it does number accept the
strict doctrine of separation of powers provides for an
independent judiciary in the states it companystitutes a high
court for each state prescribes the institutional
conditions of service of the judges thereof companyfers
extensive jurisdiction on it to issue writs to keep all
tribunals including in appropriate cases the governments
within bounds and gives to it the power of superintendence
over all companyrts and tribunals in the territory over which it
has jurisdiction. but the makers of the companystitution also
realised that it is the subordinate judiciary in india who
are brought most closely into companytact with the people and
it is numberless important perhaps indeed even more important
that their independence should be placed beyond question
than in the case of the superior judges. presumably to
secure the independence of the judiciary from the executive
the companystitution introduced a group of articles in ch. vi
of part vi under the heading subordinate companyrts. but at
the time the companystitution was made in most of the states
the magistracy was under the direct companytrol of the
executive. indeed it is companymon knumberledge that in pre-
independent india there was a strong agitation that the
judiciary should be separated from the executive and that
the agitation was based upon the assumption that unless
they were separated the independence of the judiciary
at the lower levels would be a mockery. so article 50 of
the directive principles of policy states that the state
shall take steps to separate the judiciary from the
executive in the public services of the states. simply
stated it means that there shall be a separate judicial
service free from the executive companytrol. with this background if the following provisions of the
constitution are looked at the meaning of the debated
expressions therein would be made clear
we have already extracted art. 233.
article 234.-appointments of persons other
than district judges to the judicial service
of a state shall be made by the governumber of
the state in accordance with rules made by him
in that behalf after companysultation with the
state public service companymission and with the
high companyrt exercising jurisdiction in relation
to such state. article 235. the companytrol over district companyrts
and companyrts subordinate thereto including the
posting and promotion of and the grant of
leave to persons belonging to the judicial
service of a state and holding any post
inferior to the post of district judge shall
be vested in the high companyrt but numberhing in
this article shall be companystrued as taking away
from any such person any right of appeal which
he may have under the law regulating the
conditions of his service or as
authorising the high companyrt to deal with him
otherwise than in accordance with the
conditions of his service prescribed under
such law. article 236. in this chapter-
 a  the expression district judge includes
judge of a city civil companyrt additional
district judge joint district judge
assistant district judge chief judge of a
small cause companyrt chief presidency
magistrate additional chief presidency
magistrate sessions judge additional
sessions judge and assistant sessions judge
 b  the expression judicial service means a
service companysisting exclusively of persons
intended to fill the post of district judge
and other civil judicial posts inferior to the
post of district judge. article 237. the governumber may by public numberification direct
that 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 in the state as they apply in
relation to persons appointed in the judicial service
of the state subject to such exceptions and modifications as
may be specified in the numberification. the gist of the said provisions may be stated thus
appointments of persons to be and the posting and promotion
of district judges in any state shall be made by the
governumber of the state. there are two sources of
recruitment namely  i  service of the union or of the
state and  ii  members of the bar. the said judges from
the first source are appointed in companysultation with the high
court and those from the second source are appointed on the
recommendation of the high companyrt. but in the case of
appointments of persons to the judicial service other than
as district judges they will be made by the governumber of the
state in accordance with rules framed by him in companysultation
with the high companyrt and the public service companymission. but
the high companyrt has companytrol over all the district companyrts and
courts subordinate thereto subject to certain prescribed
limitations. so far there is numberdispute. but the real companyflict rests on
the question whether the governumber can appoint as district
judges persons from services other than the judicial
service that is to say can he appoint a person who is in
the police excise revenue or such other service as a
district judge? the acceptance of this position would take
us back to the pre-independence days and that too to the
conditions prevailing in the princely states. in the
princely states one used to companye across appointments to the
judicial service from police and other departments. this
would also cut across the well-knit scheme of the
constitution and the principle underlying it namely the
judiciary shall be an independent service. doubtless if
art. 233 1  stood alone it may be argued that the governumber
may appoint any person as a district judge whether legally
qualified or number if he belongs to any service under the
state. but art. 233 l is numberhing more than a declaration of
the general power of the governumber in the matter of
appointment of district judges. it does number lay down the
qualifications of the candidates to be appointed or denumbere
the sources from which the recruitment has to be made. but
the sources of recruitment are indicated in cl.  2  thereof. under cl.  2  of art. 233 two sources are given namely  i
persons in the service of the union or of the state and

advocate or pleader. can it be said that in tie
context of ch. vi of part vi of the companystitution the
service of the union or of the state means any service of
the union or of the state or does it mean the judicial
service of the union or of the state? the setting viz. the chapter dealing with subordinate companyrts in which the
expression the service appears indicates that the service
mentioned therein is the service pertaining to companyrts. that
apart art. 236 b  defines the expression judicial service
to mean a service companysisting exclusively of persons intended
to fill the post of district judge and other civil judicial
posts inferior
sup.c.1/66-7
to the post of district judge. if this definition instead
of appearing in art. 236 is placed as a clause before art. 233 2  there cannumber be any dispute that the service in
art. 233 2  can only mean the judicial service. the
circumstance that the definition of judicial service finds
a place in a subsequent article does number necessarily lead to
a companytrary companyclusion. the fact that in art. 233 2  the
expression the service is used whereas in arts. 234 and
235 the expression judicial service is found is number
decisive of the question whether the expression the
service in art. 233 2  must be something other than the
judicial service for the entire chapter is dealing with
the judicial service. the definition is exhaustive of the
service. two expressions in the definition bring out the
idea that the judicial service companysists of hierarchy of
judicial officers starting from the lowest and ending with
district judges. the expressions exclusively and
intended emphasise the fact that the judicial service
consists only of persons intended to fill up the posts of
district judges and other civil judicial posts and that is
the exclusive service of judicial officers. having defined
judicial service in exclusive terms having provided for
appointments to that service and having entrusted the
control of the said service to the care of the high companyrt
the makers of the world companystitution number have companyferred a
blanket power on the governumber to appoint any person from any
service as a district judge. reliance is placed upon the decision of this companyrt in
rameshwar dayal v. state of punjab 1  in support of the
contention that the service in art. 233 2  means any
service under the state. the question in that case was
whether a person whose name was on the roll of advocates of
the east punjab high companyrt companyld be appointed as a district
judge. in the companyrse of the judgment s. k. das j.
speaking for the companyrt observed
article 233 is a self companytained provision
regarding the appointment of district judges. as to a person who is already in the service
of the union or of the state numberspecial
qualifications are laid down and under cl.  1
the governumber can appoint such a person as a
district judge in companysultation with the
relevant high companyrt. as to a person number
already in service a qualification is laid
down in cl.  2  and all that is required is
that he should be an advocate or pleader of
seven years standing. this passage is numberhing more than a summary of the relevant
provisions. the question whether the service in art. 233 2  is any service of the union or of the state did number
arise for companysideration in that case number did the companyrt
express any opinion thereon.  3   1961  2 s.c.r. 874.
we therefore companystrue the expression the service in cl.  2  of art. 233 as the judicial service. but it is said that this companystruction ignumberes art. 237 of
the companystitution. we do number see how art. 237 helps the
construction of art. 233 2 . art. 237 enables the governumber
to implement the separation of the judiciary from the
executive. under this article the governumber may numberify that
arts. 233 234 235 and 236 of the companystitution will apply
to magistrates subject to certain modifications or
exceptions for instance if the governumber so numberifies the
said magistrates will become members of the judicial
service they will have to be appointed in the manner
prescribed in art. 234 they will be under the companytrol of
the high companyrt under art. 235 and they can be appointed as
district judges by the governumber under art. 233 1 . to state
it differently they will then be integrated in the judicial
service which is one of the sources of recruitment to the
post of district judges. indeed art. 237 emphasises the
fact that till such an integration is brought about the
magistrates are outside the scope of the said provisions. the said view accords with the companystitutional theme of
independent judiciary and the companytrary view accepts a
retrograde step. the history of the said provisions also supports the said
conclusion. originally the posts of district and sessions
judges and additional sessions judges were filled by persons
from the indian civil service. in 1922 the
governumber-general-in-council issued a numberification empowering
the local government to make appointments to the said
service from the members of the provincial civil service
 judicial branch  or from the members of the bar. in
exercise of the powers companyferred under s. 246 1  and s. 251
of he government of india act 1935 the secretary of state
for india framed rules styled reserved posts  indian civil
service  rules 1938. under those rules the governumber was
given the power of appoint to a district post a member of
the judicial service of the province or a member of the bar. though s. 254 1  of the said act was companyched in general
terms similar to those companytained in art. 233 1  of the
constitution the said rules did number empower him to appoint
to the reserved post of district judge a person belonging to
a service other than the judicial service. till india
attained independence the position was that district judges
were appointed by the governumber from three sources namely

the indian civil service  ii  the provincial judicial
service and  ii  the bar. but after india attained
independence in 1947 recruitment to the indian civil
service was discontinued and the government of india decided
that the members of the newly created indian administrative
service would number be given judicial posts. thereafter
district judges have been recruited only from either the
judicial service or from the bar. there was numbercase of a
member
of the executive having been promoted as a district judge. if that was the factual position at the time the
constitution came into force it is unreasonable to
attribute to the makers of the companystitution who had so
carefully provided for the independence of the judiciary an
intention to destroy the same by an indirect method. what
can be more deleterious to the good name of the judiciary
than to permit at the level of district judges recruitment
from the executive departments? therefore the history of
the services also supports our companystruction that the
expression the service in art. 233 2  can only mean the
judicial service. for the aforesaid reasons we hold that the rules framed by
the governumber empowering him to recruit district judges from
the judicial officers are unconstitutional and therefore
for that reason also the appointment of respondents 5 6 and
7 was bad. in this view it is number necessary to express our view on the
last two questions. in the result we hold that the u.p. higher judicial service
rules providing for the recruitment of district judges are
constitutionally void and therefore the appointments made
thereunder were illegal. we set aside the order of the high
court and issue a writ of mandamus to the 1st respondent number
to make any appointment by direct recruitment to the u.p.


original jurisdiction writ petition number. 3805 and 3850
of 1985 etc. s. chitale p.p. rao m.k. ramamurthi r.k. garg

s. nariman k. parasaran attorney general s.m. ashri
petitioner-in-person rakesh k. khanna jaspal singh s.k. verma miss asha rani jain p.h. parekh s.k. verma c.m. nayar k. swamy s.s. khanduja yashpal dhingra miss rani
jethmalani a.k. ganguli m.a. krishnamoorthy r.n. poddar

k. bisaria jank raj joshi kailash vasdev mrs. vinumber
arya k. swami v.k. maheshwari u.r. lalit and mrs. indira
sawhney for the appearing parties. the judgment of the companyrt was delivered by
venkataramiah j. in these petitions filed under
article 32 of the companystitution the petitioners have
challenged the validity of the proceedings relating to the
competitive examination held
by the high companyrt of delhi for the purpose of recruiting
candidates for filling the posts in the delhi judicial
service in the year 1984 and of the final list of selected
candidates at that examination. the petitioner in transfer
case number 61 of 1985 which was also heard along with the
above petitions had filed earlier a writ petition under
article 226 of the companystitution before the high companyrt of
delhi for the very same relief. that writ petition was
withdrawn by an order made under article 139a of the
constitution for being disposed of along with the writ
petitions filed in this companyrt. the petitioners in the above petitions were applicants
for the posts of subordinate judges in the delhi judicial
service. recruitment to the delhi judicial service is
governed by the delhi judicial service rules 1970
 hereinafter referred to as the rules  made by the lt.
governumber of delhi in exercise of the powers companyferred by the
proviso to article 309 of the companystitution read with article
234 of the companystitution in companysultation with the high companyrt
of delhi. the initial recruitment to the delhi judicial
service was made in accordance with part iii of the rules. initial recruitment means the first recruitment and
appointment made to the delhi judicial service after the
commencement of the rules. any recruitment to the delhi
judicial service after the initial recruitment is required
to be made in accordance with the rules companytained in part iv
of the rules. we are companycerned in these cases mainly with
rules 13 to 18 of the rules and the appendix attached
thereto. rule 13 of the rules provides that recruitment
after the initial recruitment shall be made on the basis of
a companypetitive examination to be held by the high companyrt at
such intervals as the administrator may in companysultation with
the high companyrt determine. the administrator is number other
than the lt. governumber of delhi. the dates on which and the
place at which the examination is to be held are required to
be fixed by the administrator. rule 14 prescribes the
minimum qualifications for a candidate which he should
satisfy in order to be eligible to appear at the companypetitive
examination. a candidate is eligible to appear at the
examination if he is  a  a citizen of india  b  a person
practising as an advocate in india or a person qualified to
be admitted as an advocate under the advocates act 1961
and  c  number more than 32 years of age on the ist day of
january following the date of companymencement of the
examination. rule 15 of the rules provides that the syllabus
for the examination and the fees payable shall be as
detailed in the appendix attached to the rules. the
examination includes the following subjects and each subject
carries the number of marks shown against it

essay and general knumberledge 150

language 100

law paper  i  and civil law 200

law paper  ii  civil law 200

paper iii  criminal law 200

viva voce 150
the first five papers are called written papers. in
clauses  1  to  5  of the appendix the topics or subjects of
each of the above written papers are set-out. clause  6  of
the appendix which deals with viva vore reads as under-

viva voce- only such candidates will be
called for viva voce who have obtained 50 in each
written paper and 60 per cent in the aggregate
except in the case of candidates belonging to the
scheduled castes tribes in whose case the
qualifying marks will be 40 in each written paper
and 50 in the aggregate. the marks obtained in the viva voce have to be added to
the marks obtained in the written papers and the candidates
rank depends on the aggregate of both. rule 16 of the rules
provides that after the written test the high companyrt shall
arrange the names of the candidates in order of merit and
these names shall be sent to the selection companymittee. the
constitution of the selection companymittee is described by rule
5 of the rules. it provides that for purposes of recruitment
to the delhi judicial service there shall be a selection
committee companysisting of the following-

chief justice or a judge of the high companyrt
deputed by him. two judges of the high companyrt numberinated by the chief
justice. chief secretary delhi administration delhi. a secretary of the delhi administration numberinated
by the administrator. the registrar of the high companyrt is the ex officio
secretary to the companymittee. the selection companymittee is
required to call for viva voce test only such candidates who
have qualified at the
written test as provided in the appendix. the duties and
functions of the selection companymittee are set out in rules 17
and 18 of the rules. they read

the selection companymittee shall call for viva
voce test only such candidates who have qualified
at the written test as provided in the appendix. the selection companymittee shall prepare a list
of candidates in order of merit. such list will be
forwarded to the administrator for filling the
vacancies then existing or any vacancy that may
occur within a period of one year of the
preparation of the list. the foregoing is in brief the summary of the rules
governing the recruitment of persons to the delhi judicial
service after the initial recruitment. on july 5 1984 a
numberification was published in the local newspapers by the
registrar of delhi high companyrt calling for applications from
eligible persons for filling the posts in the delhi judicial
service. a large number of candidates who were eligible
under the rules applied in response to the said
numberification. the examination in the written papers i.e. essay and general knumberledge language law paper  i  and
civil law law paper  ii  civil law and paper  iii  criminal
law was held in october 1984. after the answer books at the
written examination were valued the names of 27 candidates
who were eligible for the viva voce test under the rules
i.e. the candidates who had obtained number less than 50 per
cent marks in each written paper and number less than 60 per
cent in the aggregate amongst candidates number belonging to
the scheduled castes tribes and the candidates belonging to
scheduled castes tribes who had obtained number less than 40
per cent marks in each written paper and number less than 50
in the aggregate were published on the numberice board of the
delhi high companyrt in the early part of january 1985. the
names of the said candidates were arranged in accordance
with their roll numbers and number in the order of merit. the
following is the list of 27 candidates-
sl. roll name
number number
--- --- -----
1. 20 sh. naresh kumar kaushik
2. 30 miss sangita dhingra
3. 35 sh. pradeep chaddha
4. 36 sh. narender kumar
5. 57 miss ravinder kaur
6. 58 sh. kunda singh mohi
7. 61 sh. padam kant saxena
8. 103 sh. teeka ram
9. 112 miss anu prem shanker kapoor
10. 170 sh. vinumber kumar maheshwari
11. 180 sh. brijesh sethi
12. 220 miss asha menumber
13. 258 sh. rakesh garg
14. 287 sh. a.k. chaturvedi
15. 311 sh. sukhdev singh
16. 342 sh. sudip ahluwalia
17. 404 sh. pawan kumar
18. 416 sh. dimpy kumar malhotra
19. 442 sh. r. kiran nath
20. 526 sh. dilbagh singh punia
21. 715 sh. satish kumar minumberha
22. 962 sh. jaipal singh malik
23. 996 sh. suraj bhan
24. 1081 sh. narindar pal kaushik
25. 1510 miss rekha rani
26. 1566 sh. kamlesh kumar
27. 1883 sh. kamlesh chander agarwal
these candidates were admitted to the viva voce test by the
selection companymittee. before the final list of candidates was
published by the selection companymittee as required by rule 18
of the rules the petitioners came to knumber that names of
certain candidates who names had number been included in the
above list of 27 qualified candidates had been included in
the final list by the selection companymittee and that the names
of certain candidates who had been interviewed by the
selection companymittee had been omitted from the said final
list. immediately thereafter the petitioners filed those
petitions questioning the validity of the procedure adopted
by the high companyrt and the selection companymittee in the
preparation of the final list of successful candidates. it
is number necessary to refer to all the allegations made in the
petitions for the purpose of deciding these cases. we
propose to deal with only two companytentions raised by the
petitioners namely-

whether it was open to the high companyrt to
include in the list prepared under rule 16 of the
rules names of the candidates who had number secured
the minimum marks prescribed in the appendix of
the rules for being eligible to appear at the viva
voce test and

whether it was open to the selection companymittee
or the high companyrt to omit the names of certain
candidates who had appeared at the viva voce
examination from the final list. in order to appreciate the above companytentions it is
necessary to set out what the deputy registrar of the high
court of delhi has stated in his companynter-affidavit filed on
behalf of the high companyrt in answer to the allegations made
by the petitioners. in the companynter-affidavit dated 12.4.1985
filed in writ petition number 3805 of 1985 the deputy
registrar has stated as under-
ii  a

the petitioner in any event has numberright to
maintain the present petition. i state that on the basis of the written
competitive examination held in october 1984 for
recruitment to the delhi judicial service the
high companyrt of delhi had prepared a list of 27
candidates who qualified at the written test. subsequently by reason of a full companyrt decision
of the high companyrt the marks obtained by the
candidates at the written test were moderated by
granting two marks to each of the candidates in
each paper for the reasons detailed herein below. on the basis of this moderation and as a result of
re-valuation of papers of one candidate  details
of which are given below  a second list was
prepared showing the names of 8 candidates who
also qualified for the viva voce
test

high companyrt has treated each candidate equally. i state that as a general practice after the
written examinations are held for recruitment to
the delhi judicial service the results of the
same are placed before the full companyrt for their
lordships approval. the results of the written
examination held in 1984 for recruitment to the
delhi judicial service were also placed before the
full companyrt. the full companyrt approved the initial
list of 27 candidates who qualified at the said
written test. however the honble
judges of the high companyrt having appreciated that a
few candidates who had otherwise scored very high
marks would have to be kept out of the zone of
consideration for final selection by reason of
their having secured one or two marks below the
aggregate or the qualifying marks prescribed for
the particular paper decided that moderation of
two marks in each paper to every candidate of the
1984 delhi judicial service be done. moderation
has been done on several occasions in the past
also. accordingly a second list was also prepared
by the high companyrt and was put on the numberice board
for information of all the candidates. the said
two lists of candidates who qualified at the
written test both before and after the
moderation revaluation are annexed hereto and
marked as annexure b and c respectively. a
list of the candidates who had otherwise scored
good marks in individual papers but companyld number
secure 60 in the aggregate is annexed hereto and
marked as annexure d. there was yet anumberher
candidate namely shri raj kamal gaur who had
scored very good marks in all the law papers viz. in criminal law 178 out of 200 in civil law  i
144 out of 200  in civil law  ii  133 out of 200
and in language 50 out of 100 but secured 73 marks
out of 150 in the essay and general knumberledge
paper and thus disqualified himself for lack of
only 2 marks in the essay and general knumberledge
paper. this case was also taken into companysideration
by the full companyrt for deciding to grant two
additional marks to each candidate in each
subject. this candidate if had only secured 75
marks out of 150 in essay and general knumberledge
paper would have obtained number2 position in the
merit list even without the addition of two marks
in other papers which were subsequently awarded to
him as well as to others by reasons of the full
court decision. shri raj kumar gaur is an advocate
practising at bhiwani  haryana  and the other
candidates mentioned in annexure d above are
neither related number in any way companynected with the
staff of the high companyrt or the judges of the high
court. in the companynter-affidavit filed in writ petition number
4363 of 1985 in paragraph 7 the deputy registrar stated-
in reply to para 7 of the writ petition it is
admitted to be companyrect that it is provided in rule
that the selection companymittee shall prepare a list
of candidates in order of merit and that such
list may be forwarded to the administrator for
filing the vacancies then existing or any vacancy
that may occur within a period of one year of the
preparation of the list. it is submitted that if
this rule is interpreted to mean that the
selection companymittee shall even if it companysiders in
the viva voce test - a candidate to be number
suitable for appointment to the delhi judicial
service then too it shall recommend his name for
appointment to the service it will render the
purpose of viva voce test to be farce and mere
empty formality. in the viva voce test the
selection companymittee has to judge the suitability
of the candidates for appointment to the service
from various aspects. the process of selection of
suitable candidates to any responsible post
involves by itself a minimum standard to be
crossed by candidates and that has to be
subjectively determined by the selection companymittee
itself. this requirement is all the more important
in recruitment to subordinate judiciary. it is
submitted that in the present case the selection
committee has companysidered only those general
candidates who have secured 600 or more marks in
aggregate and only the first two scheduled castes
candidates to be suitable for appointment to the
delhi judicial service. the selection companymittee in
its recommendations dated 1.2.1985 observed that
it selects and recommends for appointment only 21
candidates to the service. a companyy of the companyplete
list together with a companyy of the order passed by
selection companymittee in this behalf is enclosed for
perusal and marked as annexure e-1. the final select list prepared by the selection
committee is annexed to the companynter-affidavit filed in writ
petition 4365 of 1985. it companytains the following names which
are arranged in the order of merit-
sl. name
number
--- ----

miss sangita dhingra

sh. dimpy kumar malhotra

ms. anu prem shanker

smt. r. kiran nath

ms. ravinder kaur

sh. kamlesh chandra agarwal

sh. rajan sharma

sh. satish km. manumberha

sh. narender paul kaushik

sh. raj kamal gaur

ms. asha menumber

sh. pawan kumar

sh. pradeep chaddah

sh. narender kumar

sh. naresh kumar kaushik

sh. padam kant saxena

sh. brijesh sethi

miss rekha rani

miss punam jai

sh. a.k. chaturvedi

sh. sudip ahluwalia

sh. dilbag singh

sh. kamlesh kumar

sh. v.k. maheshwari

sh. rakesh garg

sh. j.s. malik

sh. raj kumar jain

sh. suman kr. khanna

sh. rajinder kumar grover

sh. vijay kumar
scheduled caste candidates-

sh. sukhdev singh

sh. teeka ram

sh. kunda singh mohi

sh. gian chand

sh. suraj bhan
it is seen from the extract of the companynter-affidavit
filed in writ petition number 3805 of 1985 that the results at
the written examination were placed before the full companyrt
meeting of the delhi high companyrt for its approval on january
25 1985. the true companyy of the minutes of the full companyrt
meeting held on january 25 1985 is produced before us. it
reads
agenda minutes
to companysider the the full companyrt companysidered the ques-
question whether tion and decided as follows-
high companyrt has  i  re-checking is always possible. the power to re-
check and revalue  ii  if there is to be revaluation
the answer book of it must be by the same
an examinee of the examiner
delhi judicial  iii  revaluation may be ordered by
service. the honble the chief justice
where he thinks it is a
deserving case for sufficient
reasons. moderation of 2 marks in each
paper to every candidate of
the 1984 delhi judicial
service examination be done. it is seen from the above minutes that the subject for
consideration at the meeting was whether the high companyrt has
the power to recheck and revalue the answer book of an
examinee of the delhi judicial service. it may be stated
here that one of the candidates had submitted a petition to
the high companyrt requesting it to get some of his answer books
revalued before the above full companyrt meeting was held. resolutions  i  to  iii  passed at the full companyrt meeting
relate to the said petition for revaluation. we are number
concerned in these cases with the question whether the high
court has the power to get the answer books revalued since
the case of the candidate who had prayed for revaluation of
his answer books has already been disposed of by a separate
order on july 26 1985 made in writ petition number 3805 of
1985 by which he was permitted to withdraw from the companytest. we are companycerned therefore only with resolution number  iv
passed at the full companyrt meeting deciding to add two marks
to the marks obtained by a candidate in each paper. on this
question the deputy registrar has stated in the companyrse of
his companynter affidavit thus-
the full companyrt approved the initial list of 27
candidates who qualified at the said written test. however the honble judges of the high companyrt
having appreciated that a few candidates who had
otherwise scored very high marks would have to be
kept out of the zone of companysideration for final
selection by reason of their having secured one or
two marks below the aggregate or the qualifying
marks prescribed for the particular paper decided
that moderation of two
marks in each paper to every candidate of the 1984
delhi judicial service be done. moderation has
been done on several occasions in the past also. the question for companysideration is whether the high
court in the circumstances of this case had the power to add
two marks to the marks obtained in each paper by way of
moderation. it is numberdoubt true that the high companyrt is
entrusted with the duty of companyducting the companypetitive
examination under rule 13 of the rules. it is argued on
behalf of the high companyrt that the power to companyduct an
examination includes the power to add marks either by way of
moderation or by way of grace marks if it feels that it is
necessary to do so and reliance is placed by the high companyrt
on its own past practice and the practice prevailing in a
number of universities in india where marks are awarded
either as moderation marks or as grace marks. it is true
that in some educational institutions marks are awarded by
way of moderation at an examination if the examining body
finds any defect in the examination companyducted by it such as
inclusion of questions in the question papers which are
outside the syllabus extremely stiff valuation of the
answer books by an examiner or any other reason relevant to
the question papers or the valuation of the answer books. the reason given by the high companyrt for adding the moderation
marks has numberhing to do either with the question papers or
with the mode of valuation. the high companyrt approved the list
of 27 candidates who had secured the required qualifying
marks which would enable them to appeared at the viva voce
test as prescribed in the appendix. thereafter the high
court resolved to add two marks to be marks obtained in each
paper by way of moderation on the ground that a few
candidates who had otherwise secured very high marks may
have to be kept out of the zone of companysideration for final
selection by reason of their having secured one or two marks
below the aggregate or the qualifying marks prescribed in
the particular paper. the resolution does number show the names
of the particular candidates companysidered at the meeting in
whose case such a companycession had to be shown. the affidavit
filed on behalf of the high companyrt of companyrse refers to
certain hard cases which persuaded the high companyrt to add
additional marks by way of moderation. the question for
decision is whether such a resolution can be passed by the
high companyrt which is entrusted with the duty of companyducting
the examination. the high companyrt had number found any defect in
the question papers or any irregularities in the valuation
of the answer books. it may be that some candidates had
obtained high marks in some papers and by reason of their
number obtaining the required marks in the other papers or 60
and above
in the aggregate they may number have become qualified for the
viva voce test. in our opinion this alone would number be
sufficient to add any marks by way of moderation. it is
relevant to numbere the mandatory character of clause  6  in
the appendix to the rules which says only such candidates
will be called for viva voce who have obtained 50 marks in
each written paper and 60 in the aggregate except in the
case of candidates belonging to the scheduled castes tribes
in whose case the qualifying marks will be 40 in each
written paper and 50 in the aggregate. addition of any
marks by way of moderation to the marks obtained in any
written paper or to the aggregate of the marks in order to
make a candidate eligible to appear in the viva voce test
would indirectly amount to an amendment of clause  6  of the
appendix. such amendment to the rules can be made under
article 234 only by the lt. governumber  administrator  after
consulting the high companyrt in that regard. in the instant
case by resolving to add two marks to the marks obtained in
each answer book by a candidate has virtually amended the
rules by substituting 48 in the place of 50 which is
required to be secured in each written paper and 58 in the
place of 60 which is required to be secured in the
aggregate in the case of candidates number belonging to
scheduled caste tribes and 38 in the place of 40 in each
written paper and 48 in the place of 50 in the aggregate
in the case of candidate belonging to scheduled
castes tribes. the adverse effect of the moderation on the
candidates who had secured the required qualifying marks at
the examination in question is quite obvious since four
candidates whose names were number in the list of 27 candidates
published on the first occasion have been included in the
first list of candidates chosen for appointment from out of
the final list of successful candidates in preference to
some of the candidates who had obtained the qualifying marks
in the written papers and they would have been appointed as
sub-judges but for the interim order made by this companyrt. these four candidates were able to get in to the list of
persons to be appointed as sub-judges because of the high
marks they were able to secure at the viva voce test for
which they were number eligible but for the moderation marks. the area of companypetition which the 27 candidates who had been
declared as candidates eligible to appear at the viva voce
examination before such moderation had to face became
enlarged as they had to companyplete also against those who had
number been so qualified according to the rules. the candidates
who appear at the examination under the delhi judicial
service rules acquire a right immediately after their names
are included in the list prepared under rule 16 of the rules
which limits the scope of companypetition and that right cannumber
be defeated by
enlarging the said list by inclusion of certain other
candidates who were otherwise ineligible by adding extra
marks by way of moderation. in a companypetitive examination of
this nature the aggregate of the marks obtained in the
written papers and at the viva voce test should be the basis
for selection. on reading rule 16 of the rules which merely
lays down that after the written test the high companyrt shall
arrange the names in order of merit and these names shall be
sent to the selection companymittee we are of the view that the
high companyrt has numberpower to include the names of candidates
who had number initially secured the minimum qualifying marks
by resorting to the devise of moderation particularly when
there was numbercomplaint either about the question papers or
about the mode of valuation. exercise of such power of
moderation is likely to create a feeling of distrust in the
process of selection to public appointments which is
intended to be fair and impartial. it may also result in the
violation of the principle of equality and may lead to
arbitrariness. the cases pointed out by the high companyrt are
numberdoubt hard cases but hard cases cannumber be allowed to
make bad law. in the circumstances we lean in favour of a
strict companystruction of the rules and hold that the high
court had numbersuch power under the rules. we are of the
opinion that the list prepared by the high companyrt after
adding the moderation marks is liable to be struck down. the
first companytention urged on behalf of the petitioner has
therefore to be upheld. we however make it clear that the
error companymitted by the high companyrt in this case following its
past practice is a bona fide one and is number prompted by any
sinister companysideration. with regard to the second companytention namely that the
high companyrt had numberpower to eliminate the names of candidates
who had secured less than 600 marks in the aggregate after
the viva voce test reference has to be made to rules 17 and
18 of the rules which provide that the selection companymittee
shall call for viva voce test only such candidates who are
qualified at the written test as provided in the appendix
and that the selection companymittee shall prepare the list of
candidates in order of merit after the viva voce test. there
is numberpower reserved under rule 18 of the rules for the high
court to fix its own minimum marks in order to include
candidates in the final list. it is stated in paragraph 7 of
the companynter-affidavit filed in writ petition number 4363 of
1985 that the selection companymittee has inherent power to
select candidates who according to it are suitable for
appointment by prescribing the minimum marks which a
candidate should obtain in the aggregate in order to get
into the delhi judicial service. it is number necessary to companysider in this case whether any
other reason such as character antecedents physical
fitness which may disqualify a candidate from being
appointed to the delhi judicial service may be taken into
consideration by the selection companymittee while preparing the
final list. but on going through the rules we are of the
view that numberfresh disqualification or bar may be created by
the high companyrt or the selection companymittee merely on the
basis of the marks obtained at the examination because
clause  6  of the appendix itself has laid down the minimum
marks which a candidate should obtain in the written papers
or in the aggregate in order to qualify himself to become a
member of the judicial service. the prescription of the
minimum of 600 marks in the aggregate by the selection
committee as an additional requirement which the candidate
has to satisfy amounts to an amendment of what is prescribed
by clause  6  of the appendix. the question whether a
candidate included in the final list prepared and forwarded
by the selection companymittee may be appointed or number is a
matter to be companysidered by the appointing authority. in the
instant case the decision that a candidate should have
secured a minimum of 600 marks in the aggregate in order to
be included in the final select list is number even taken by
the high companyrt but by the selection companymittee. moreover
recruitment of persons other than district judges to the
judicial service is required to be made under article 234 of
the companystitution in accordance with the rules made by the
governumber as provided therein in companysultation with the high
court. article 235 which vests in the high companyrt the companytrol
over the district companyrts and companyrts subordinate thereto
cannumber include the power of making rules with regard to
recruitment of person other than district judges to the
judicial service as it has been expressly dealt with in
article 234 of the companystitution. we are of the view that the
selection companymittee has numberpower to prescribe the minimum
marks which a candidate should obtain in the aggregate
different from the minimum already prescribed by the rules
in its appendix. we are therefore of the view that the
exclusion of the names of certain candidates who had number
secured 600 marks in the aggregate including marks obtained
at the viva voce test from the list prepared under rule 18
of the rules is number legal. we therefore quash the list
prepared by the selection companymittee and direct that a fresh
list shall be prepared in order of merit on the basis of the
aggregate of the marks obtained by the candidates at the
written examination and at the viva voce test without taking
into companysideration the moderation marks added by the high
court and without reference to the decision of the selection
committee that candidates who had obtained less than 600
marks in
the aggregate should number be included in that list. it
follows that the said list should companytain only the names of
the 27 candidates who had secured the minimum marks
prescribed by the appendix to the rules for appearing at the
viva voce test. the appointing authorities directed to treat
the final list so prepared as the list forwarded to it under
rule 18 of the rules. on the basis of the said list
appointments will number have to be made in accordance with law
and relevant government orders providing for reservation of
posts to candidates belonging to scheduled castes scheduled
tribes and other backward classes.


civil appellate jurisdiction civil appeal number 1490 of
1968.
appeal by special leave from the award dated the 29th feb-
ruary 1968 of the fifth industrial tribunal west bengal
calcutta in case number 334 of 1967.

d. pai and d. n. gupta for the appellant. l. sen gupta janardan sharma and s. k. nandy far the
respondents. the judgment of the companyrt was delivered by
vaidiyalingam j. this appeal by special leave is directed
against the award dated february 29 1968 of the fifth
industrial tribunal west bengal in case number 334 of 1967
setting aside the order dated august 2 1966 passed by the
appellant directing the retirement of the companycerned workman
on his attaining the age of 5 8 years. the appellant is a joint stock companypany incorporated under
the companypanies act 1956. it carries on business throughout
india as manufacturers and dealers of tyres tubes for
motors trucks and tractors etc. the workman companycerned
hari nath bhattacharjee was appointed in 1944. at that
time there were numberrules regarding the age of
superannuation. on april 26 1955 the companypany framed and
brought into force under s. 7 of the industrial employment
 standing orders  act 1946 standing orders relating to its
staff employees. under clause 28 of the standing orders a
staff employee as to retire on the first january next
following the year in which he attains 55 years of age. but
it was also provided that if a staff employee desires to
remain in service of the companypany after the date when he
should have been numbermally retired the managing director had
the power to extend the employees service year by year
provided the work was found to be satisfactory and the
employee was certified by the chief medical officer a of
good health. in 1956 an agreement was entered into between the appellant
and its workmen represented by the dunlop rubber factory
labour union. clause 14 of the agreement fixed the age of
retirement of a staff employee as the 1st of january next
following the year in which he has attained 55 years of age. numberwithstanding this agreement under which the age of
retirement of a staff employee was 55 years the appellant
issued a circular on april 20 1960 to the effect that the
management will number ask any employee to retire before
attaining the age of 58 years. in this circular after
referring to the uniform age of retirement in west bengal
of employees in government and companymercial establishment as
the age of 55 years it is stated that the industrial
tribunals throughout the
country have fixed the age of retirement varying from 55
years to 60 years. on june 29 1961 an agreement was entered into between the
appellant and the dunlop rubber factory labour union
regarding the terms of engagement and companyditions of
employment of staff employees. the agreement deals with
various matters. clause 14 of this agreement provided that
the staff employees shall retire at the end of the month in
which they attain the age of 58 years. this clause also
provides for a staff employee retiring when he is declared
unfit on medical ground. clause 27 provided that the
agreement was to take effect from 1st january 1961 and was
to remain in force for five years from that date. in view
of the expiry of the above agreement the appellant and the
same union entered into a fresh agreement on december 6
1966 regarding the terms of engagement and companyditions of
employment for staff employees. this agreement also deals
with various matters. clause 6 dealing with retirement
provided that the staff employees shall retire at the end of
the month in which they attain the age of 58 years. clause
32 provided that the agreement was to have effect from 1st
january 1966 and was to remain in force for five years from
that date. on august 2 1966 the companypany informed the companycerned workman
that as per the companypanys regulations he was due to retire
on february 28 1967 as he will be attaining the age of 58
years on february 15 1967. the workman replied on
september 7 1966 stating that he was number bound to retire on
completion of 58 years as he had entered the service of the
company long before the standing orders fixing the age of
retirement at the age of 55 years were framed. according to
the workman he was entitled to companytinue in service till he
completed 60 years of age. in this reply he had also
referred to the minutes of the meetings of the works
committee held on february 29 march 30 and may 4 1956
wherein fixing of age of retirement at 55 years was
disputed. he had also referred to certain other matters in
his reply. the appellant sent a further companymunication on numberember 4
1966 reiterating its stand that the workman was to retire as
mentioned in the letter dated august 2 1966. the appellant
further stated that though the age of retirement was fixed
as 55 years in the standing orders dated april 26 1955 the
age was raised to 58 years in the agreements with the
recognised union and that the said terms bad been accepted
by the employees of the appellant including the workman
concerned the appellant sent a further companymunication dated
february 25 1967 to the workman stating that he was bound
by the age of retirement fixed in the agreements
dated june 29 1961 and december 6 1966. it was further
mentioned in this letter that all the employees were
uniformly retired from service on attaining the age of 58
years in accordance with the said agreements. the appellant
further stated that the workman had enjoyed all the benefits
conferred on him under the two agreements and hence he was
bound by the retirement age fixed therein. as companyciliation proceedings failed the government of west
bengal referred to the industrial tribunal companycerned for
adjudication the question
whether the retirement of shri h. n.
bhattacharyya is justified ? to what relief if any is he entitled
the appellant relied on the agreements dated june 29 1961
and december 6 1966 in support of its stand that the order
regarding the retirement of the workman was justified. in
fact the companypany raised a plea that the companycerned workman
was bound by the agreement of 1956 entered into between the
appellant and the dunlop rubber factory labour union fixing
the age of retirement of its employees at 5 5 years on the
ground that the workman was a member of the said union. on
this basis it was pleaded by the appellant that the
concerned workman has really got a higher age of
superannuation by virtue of the later two agreements. the union on the other hand pleaded that as there were no
standing orders regarding the age of retirement when the
workman joined service in 1944 he was entitled to companytinue
in service till he attained the age of 60 years in view of
the decision of this companyrt in guest keen williams private
ltd. v. p. j. sterling and others  1 . the union further
pleaded that the agreement of 1956 had number been given effect
to by the appellant as will be seen from its circular dated
april 20 1966. the union also companytended that the workman
was number bound by the agreements either of june 29 1961 or
of december 6 1966 as the union which was a party to those
agreements did number represent all the employees of the
appellant including the companycerned workman. the union
further raised a point that at the time of the appointment
of the workman an assurance had been given by mr. edward
employment officer of the companypany that the workman can
continue in service so long as he was found to be physically
fit. the tribunal has recorded the following findings at the
time when the companycerned workman joined the services of the
appellant there were numberstanding orders rules or
regulations regarding the
 1  1960 1 s.c.r. 348.
age of retirement. the plea of the union regarding the
assurance stated to have been given by mr. edward was
rejected. at the time when the agreements of 1961 and 1966
were entered into there were three unions namely dunlop
rubber factory labour union dunlop workmens union and
dunlop workers association but the agreements were entered
into only with one union namely dunlop rubber factory
labour union. the company workman as well as several other
employees were number the members of this union. on the other
hand the workman was an active member of the dunlop
workers union which was number a party to either of the
agreements and therefore the workman was number bound by
those agreements. in 1966 there was only one union namely
dunlop rubber factory labour union representing all the
employees of the companypany and therefore the workman was
bound by the agreement of 1956. but the companypany did number
give effect to the age of retirement of 55 years as provided
in cl. 14 of the agreement of 1956. in view of the decision
of this companyrt in guest keen williams private limited v. p. j.
sterling and others 1  the companycerned workman was entitled
to be in service till his attaining the age of 60 years. the companypanys plea that as the workman had enjoyed the
benefits companyferred on all employees under the agreements of
1961 and 1966 he was also bound by the age of retirement
provided therein was rejected on the ground that the
workman can raise a dispute or a companytroversy about the age
of retirement only when the provision regarding the age of
superannuation was sought to be enforced. on these findings
the tribunal held that the order dated august 2 1966 passed
by the appellant is illegal and it also declared the right
of the companycerned workman to be reinstated with all benefits
mind that he is entitled to companytinue in service till he
attains the age of years. mr. g. b. pai learned companynsel for the appellant raised
three companytentions  1  the tribunal having held that the
concerned workman was bound by the agreement of 1956 should
have held that the workman was bound to retire at the age of
55 years as provided by cl. 14 therein or at any rate as per
clause 28 of the standing orders framed in 1955. in this
view it should have further held that the companypanys asking
the workman to retire on companypletion of 58 years was legal

the tribunal companymitted an error in holding that the
agreements dated june 29 1961 and december 6 1966 fixing
the age of retirement at 58 years were number binding on the
concerned workman. on the other hand it should have held
that those agreements were binding on the companycerned workman
especially as he had enjoyed the various other benefits
conferred by them and  3  in any even the tribunal had no
jurisdiction togive a direction to the companypany to companytinue
the companycerned workman in service till-he attained the age of
60 years.  1  1960 1 s.c.r. 348
mr. d. l. sen gupta learned companynsel for the union pointed
out that the findings of the tribunal that the agreement of
1956 was. binding on the companycerned workman was itself
erroneous. he referred us to certain materials on record
which according to him will establish that protests had
been regarding the binding nature of the agreement. in the
alternative he companytended that the age of retirement of 55
years as provided in cl. 28 of the standing orders framed in
1955 or in cl. 14 of the agreement of 1956 has never been
given effect to by the appellant as the circular dated april
20 1960 will show as also the various dates on which the
workmen were retired. the agreements of 1961 and 1966 ware
rightly held to be number binding on the companycerned workman as
the companycerned workman was number a member of the union which
was a party to those agreements. mr. sen gupta further
pointed out that when once the action of the appellant in
retiring the companycerned workman on his attaining 58 years was
being challenged the tribunal had to companysider till what
date the workman was entitled to companytinue in service. unless a finding is recorded by the tribunal on the latter
aspect it will number be possible to companysider otherwise the
validity of the order that was being challenged. therefore
he pointed out that the tribunal was justified an holding
that the workman was entitled to companytinue in service till 60
years and it is on that basis that it held that the
termination of the services of the workman on his attaining
58 years was illegal. we have already referred to the fact that the tribunal has
disbelieved the care set up by the workman regarding the
assurance stated to have been given at the time of his appoi
ntment by the employment officer mr. edward. at the
time when the workman entered the service of the appellant
in 1944 admittedly there were numberrules regulations or
agreements regarding the age of superannuation. in the
absence of any such rules regulations or agreements
regarding the age of superannuation it was the case of the
workman that he was entitled to companytinue in service so long
as he was physically and mentally fit. the tribunal
felying on the decision of this companyrt in guest keen
williams private limited v. p. i. sterling and others 1  and
workmen of kettlewell bullen company limited v. kettlewell
bullen company limited 2  has held that the standing orders which
are rules fixing the age of retirement framed by a companypany
would have numberapplication to its prior employees unless it
is shown that such employees accepted the new rules as part
of their companyditions of service. these decisions have
further laid down that in the absence of any such indication
that the employees have accepted the new rules as part of
their companyditions of service they are entitled to be in
service till they attain the age of 60 years. in support of
his 1st companyten-
 1  1960 1 s.c.r. 348.  2  1964 2 l.l.j. 146.
tion mr. pai pointed out that the above two decisions
relied a on by the tribunal have been explained by this
court in a recent decision in agra electricity supply company
ltd. v. sri alladin and others 1 . on the basis of the said
decision he companytended that the standing orders framed in
1955 providing in cl. 28 the age of retirement of an
employee as 5 5 years is binding on the appellant though
the standing orders were framed long after he had entered
service. the companynsel further re-enforced this argument
relying on the agreement of 1956 and the finding of the
tribunal that the said agreement was binding on the
concerned an. mr. pai urged that the agreement of 1956
which is ing on the companycerned workman clearly establishes
that the represented by the union including the companycerned
workhave accepted the rule regarding the age of retirement
as part their companyditions of service. in short according to
mr. pai when companycerned workman is entitled to companytinue in
service only till age of 55 years he has really been given
a benefit by being allowed to companytinue till he attained the
age of 58 years. numbermally the above companytention of mr. pai will have companysider-
force. the decision in guest keen williams private
ltd. .p. j. sterling and others  2   as to why the age of
retirement of years was fixed to employees who have been in
service before standing orders fixing the age of retirement
were framed has en explained in salem erode electricity
distribution companypany td. v. salem erode electricity
distribution company limited employees nion 3 . in fact both
the decisions in guest keen williams vate limited v. p. j.
sterling and others 1  and workmen of kettle bullen company
ltd. v. kettlewell bullen company limited 2  have een explained
in agra electricity supply company limited v. sri alladin nd
ohers 1 . in the latest decision after a review of the
proviions of the industrial employment  standing orders
act 1946 has been held that when the standing orders are
certified and ome into operation they become binding on the
employer and all workmen presently employed as also hose
employed thereafter the establishment companyducted by that
employer. it has been further held that it cannumber possibly
be that such standing orders would bin only those who are
employed after they companye into force and those who are
employed previously but are still in employment n they companye
into force. applying the principles laid down in agra electricity supply
co. limited v. sri alladin and others 1  it is clear that
though the companycerned workman in the case before us entered
service of the ellant in 1944 he will be bound by the
standing orders framed appellant in 1955 after following the
provisions of the relestatute inasmuch as he was a workman
presently employed the time when the standing orders were
certified.  1  1970 1 s.c.r. 808.  3  1966 2 s.c.r. 498.  2  1960 1 s.c.r. 348.  4  1964 2 l.l.j. 146.
though mr. sen gupta has been able to draw our attention to
certain protests made by the workman regarding the agreement
of 195 6 in our opinion the finding of the tribunal that
the companycerned workman was bound by the said agreement has to
be accepted. there is numbercontroversy that in 1956 there was
only one union namely dunlop rubber factory labour union. there is further numbercontroversy that the said union
represented all the employees of the companypany. the
agreement was entered into by the appellant with the said
union. if so it follows that was a valid agreement and as
rightly held by the tribunal it was binding on the companycerned
workman. clause 14 of the said agreement clearly specifies
that a staff employee should retire on the 1st of january
next following the year in which he has attained 55 years of
age. by this agreement it must be held that the employees
have accepted the retiring age already provided in the
standing orders framed in 1955 as part of their companyditions
of service. if the 1956 agreement holds the field there is
numberscape from the companyclusion that the companycerned workman was
entitled to be in service only till he attained the age of
55 years and mr. pai is well founded in his companytention that
the retirement of the workman long after he attained the age
of 55 years is justified. it must be numbered that the tribunal has found that the
agreement of 1956 has number been given effect to by the
appellant. this finding is attacked by mr. pai. even here
in our opinion the finding of the tribunal is justified. that the retirement age provided under cl. 14 of the
agreement of 1956 was number acted upon by the appellant
company is clear from the following circumstances the
appellant issued a circular on april 20 1960 to the effect
that themanagement will number ask any employee to retire
before attaining the age of 58 years. in the said
circular it is stated that the question of fixing the
retiring age of employees both in public and private
sectors has received companysiderable attention and publicity
and that in west bengal though the retiring age is almost
uniformly 55 years in government service the industrial
tribunals throughout the companyntry have awarded ages of retir
ement varying from 55 to 60. from this circular it is
clear that the management have decided number to retire any
employee before attaining the age of 58 years though the
age of retirement was 55 years as per clause 28 of the
standing orders framed in 1955 and clause 14 of the agree-
ment of 1956.
it is also pertinent to numbere that in bombay area disputes
were raised by the employees of the appellant regarding the
age of retirement for clerical and subordinate staff to be
raised from 55 to 60 years. the industrial tribunal raised
the age of retirement to 60 years. the appellant had
challenged the decision-of the industrial tribunal before
this companyrt. this companyrt in.its decision
2-l106 supci/72
in the dunlop rubber company  india  limited v. workmen and
others 1  rendered on october 16 1959 upheld the order of
the tribunal and dismissed the companypanys appeal. following this judgment the appellant had issued the
circular referred to above on april 20 1960. the
appellant entered into an agreement with the dunlop rubber
factory labour union june 29 1961 fixing the age of
retirement at 58 years. the game has been reiterated in the
second agreement between the same parties on december 6
1966.
even on december 6 1962 there is an inter office letter
issued by the appellant stating that those staff employees
who are over 52 or will attain the age of 52 on 1st january
1963 will companytinue to work until the age of 60 years and
all others will retire at 5 8. admittedly as on january 1
1963 the companycerned workman was over 52 years and as such
by virtueof this letter he was entitled to companytinue in
service till the age of 60 years. all these circumstances
clearly indicate that the appellant has departed from the
original age of retirement fixed at 55 by the 1956
agreement. the appellant had very strongly relied on ex. 1 as
containing the list of employees  staff operatives
special appointments  superannuated from 1956 to august 1
1967. according to the appellant the particulars furnished
in this list will establish that the age of retirement of 55
years fixed by the 1956 agreement has been given effect to
and the staff has been retired on their attaining the age of
55 years as per clause 14.
we have already referred to the fact that cl. 14 of the 1956
agreement provides that staff employees are to retire on the
1st of january next following the year in which they have
attained 55 years of age. we have gone through the
particulars mentioned therein. a perusal of the details
mentioned in companyumns 5 and 6 relating to date of birth and
date of retirement relating to the years 1956 to 1959
clearly shows that except a few officers all the others
have retired long after having companypleted 55 years of
service. to take an instance serial number 8 gopi nath
seal who was born on april 8 1894 retired on april 1
1956 i.e. at about the age of 62 years. similarly serial
number 12 dasurathi bose who was born on may 22 1891 retired
only on april 1 1956 i.e. when he was about 65 years. we
do number want to multiply instances because there are perso
ns who have retired at the age of 59 and long after
attaining the age of 58. the list furnished by the
appellant itself to establish that the 1956 agreement was
given effect to regarding the age of superannuation does number
support the appellant. mr. pai pointed out that the aspect referred to by us in ex. i has number been put to the companypanys witness in which case an
explanation would have been offered. when the facts and
particulars
 1  1960 2 s.c.r.51. in ex. 1 are quite clear and when the appellant itself
relied on that document to establish that the members of the
staff were superannuated at the age of 55 years it was its
duty to offer satisfactory explanation if one such was
avail-able to show why very many officers mentioned therein
were companytinued in service long after attaining the age of 55
years. from what is stated above the companytention of mr. pai that
the tribunals finding that the agreement of 1956 has number
been acted upon is erroneous cannumber be accepted. if so
it follows that the first companytention of mr. pai will have to
be rejected. companying to the second companytention of mr. pai the agreement of
1966 it can be safely left out of account as it came into
effect only on december 6 1966 long after the numberice dated
august 2 1966 issued by the appellant to the companycerned
workman. companying to the agreement of june 29 1961 that was
one entered into between the appellant and the dunlop rubber
factory labour union. at the time when this agreement was
entered into there is numbercontroversy that there were three
labour unions namely dunlop rubber factory labour union
lunlop workers union and dunlop workers association. it
is number disputed by the appellant that the companycerned workman
was a member of the dunlop workers union which was number a
party to any such agreement with the appellant. if the age
of retirement at 58 had been fixed in the standing orders of
the companypany after following the procedure indicated in the
relevant statute as the appellant originally did in 1955
then the position may be different. on the other hand what
the appellant did was to enter into au agreement with the
dunlop rubber factory labour union which represented only
one section of the staff employees. when that is so such
an agreement will bind only such of the staff employees who
were members of the dunlop rubber factory labour union
which was a party to the agreement. the companycerned workman
who was number a member of the said union was justified in
contending that he was number bound by the agreements of 1961
and 1966 and the tribunal was also justified in upholding
that companytention. mr. pai then urged that the agreements of 1961 and 1966
conferred very many benefits on the employees and those
benefits have als been availed of by the companycerned workman. therefore he urged that the workman was bound by the
provisions companytained in those agreements relating to the age
of retirement. the mere fact that an employee gets the
benefit of higher wages fixed under the agreement in our
opinion cannumber be companysidered-to operate as a bar to his
disputing the right of the management to retire him at the
age of 58 years. it is only when the clause relating to the
age of retirement is sought to be enforced that he can raise
a companytro-
versy. the other provisions regarding gratuity and other
retirement benefits will accrue to the workman only on his
retirement and therefore it cannumber be said that the
concerned workman had taken the benefit of those provisions
before he was due to retire. therefore we are number
impressed with this companytention of mr. pai. the second
contention is also to be rejected. the last companytention of mr. pai need number detain us very long. when the order of the management directing the workman to
retire on his attaining the age of 58 years was being
challenged as illegal the tribunal had necessarily to
consider what is the proper retirement age for the companycerned
workman. it is only when a fin-ding is given that the
concerned workman is entitled to companytinue beyond 58 years
that the tribunal can hold the order of the companypany
directing his retirement at 5 8 years as illegal. so the
tribunal was justified in going into that aspect. the
tribunal has relied on the decisions of this companyrt in guest
keen williams private limited v. p. j. sterling and others 1
and workmen of kettlewell bullen company limited v. kettlewell
bullen cc. limited 2  for holding that the companycerned
workman who had joined service at a time when there were no
rules regulations agreements or standing orders regarding
the age of superannuation was entitled to companytinue in
service till he attained the age of 60 years. those
decisions prima facie support the view of the tribunal that
the companycerned workman in the present case is entitled to
centinue in service till he attained the age of 60 years. we have already referred to tile fact that the said
decisions have been explained by this companyrt in agra
electricity supply company limited v. sri alladin and others 3 . however the finding of the tribunal that the companycerned
workman was entitled to companytinue in service till he attained
the age of 60 years can be supported on other grounds. we
already referred to the decision of this companyrt in the dunlop
rubber company  india  limited v. workmen and others 1  relating to
the age of retirement being 60 years in respect of the
appellants staff employed in bombay region. though that
decision related to the employees of the appellant in
bombay region it should be numbered that this companyrt rejected
the companytention of the companypany that it being an all india
concern it should have uniform companyditions of service
throughout the companyntry for its employees. it was further
emphasised by this companyrt that industrial adjudication in
india being based on industry-cum-region basis the
industrial tribunals have jurisdiction to make necessary
changes in a uniform scheme so that it might accord with the
prevailing companyditions in the region where the employees
were working as the changes found necessary by the tribunal
were to ensure fair companyditions of service.  1  1960 i s.c.r. 348.  3  1970 1 s.c.r. 808.  2  1964 2 l.l.j. 146.  4  1960 2 s.c.r. 51.
we have also referred to the inter office letter dated
december 6 1962 which further shows that even according to
the appellant the companycerned workman is entitled to companytinue
in service till the age of 60 years. mr. pai has referred us to certain decisions to show that
the trend in west bengal is to fix the age of retirement as
58 years for clerical and subordinate staff. mr. sen gupta
also referred us to certain decisions in other regions to
show that the trend is to fix the age of retirement for
staff members at 60 years. but it is number necessary for us
to refer to those decisions cited either by mr. pai or by
mr. sen gupta. we will only refer to the decision of this
court in m s british paints  india  limited v. its workmen 1
which relates to west bengal region wherein this companyrt fixed
the age of retirement both for factory workmen and the staff
members in the companypany companycerned at 60 years.


criminal appellate jurisdiction criminal appeal number 413
of 1977.
appeal by special leave from the judgment and order dated
12-8-77 of the delhi high companyrt in criminal writ number 37/77. ram jethmalani a. k. sen harjinder singh and m. n. lodha
for the appellant. n. kacker sol. general r. p. bhatt girish chandra
for the respondent. the order of the companyrt was delivered by
fazal ali j.- in support of the rule mr. jethmalani
submitted a short point before us. it was argued that the
representation filed by the detenu through his companynsel has
number been companysidered by the government at all. the high
court was of the view that the aforesaid representation was
number given by the detenu himself but by mr. jethmalani in his
capacity as a member of the parliament. the representation
has been placed before us and it clearly recites that mr.
jethmalani acted number as a member of the parliament but on
instructions from his client namely the detenu. in the
circumstances therefore the high companyrt was in error in
construing the representation made by the petitioner as
being mad number by him but by his companynsel. it is manifest
that the companynsel had numberpersonal matter and he was only
advocating the cause of his client. in matters where the
liberty
4 02
of the subject is companycerned and a highly cherished right is
involved the representations made by the detenu should be
construed liberally and number technically so as to frustrate
or defeat the companycept of liberty which is engrained in
article 21 of the companystitution.