PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT10/03/1992 BENCH: <NAME> BENCH: <NAME> SAWANT, P.B. KASLIWAL, N.M. (J) CITATION: 1992 AIR 1213 1992 SCR (2) 109 1992 SCC (2) 428 JT 1992 (2) 247 1992 SCALE (1)581 ACT: Constitution of India, 1950 : Articles 50, 136, 139A, 217(2), 233, 236(b), 237-<ORG> Judge-Appointment-Necessary qualifications-Whether <ORG>/<ORG> can exercise jurisdiction on the ground that the incumbent does not fulfill qualifications as required by Article 217. `Judicial Office'-Concept of-Explained. <ORG> of Mizoram Notification CS/MZ/APPT/79 dated 23.6.1979-Assistant to Deputy Commissioner appointed under Rules 8,9 and 15 of 1937-Rules for regulation of procedure of officers to administer justice in Lushi Hills. 1937-Rs. 8,915-Assistant to Dy. Commissioner-Exercising powers analogous to those of a judicial Magistrate First Class under Code of Criminal Procedure, 1973-Whether holds a judicial office. Independence of judiciary-Necessity for. Administration of justice- Whether <ORG> can assume jurisdiction on judicial side to probe into matter purely of administrative nature and exclusively within purview of Chief Justice. Words and Phrases "Judicial Office", "Judicial service"-Interpretation of. HEADNOTE: The Governor of Mizoram, by a letter dated 5.5 1990, addressed to the Chief Justice of <NAME> <ORG>, recommended the name of respondent no. 9 for appointment as a Judge of the <ORG>. The bio-data enclosed with the said letter indicated that respondent no. 9, after passing L L.B., joined <ORG> in <ORG> in 1966 as a Gazetted Officer. He worked on various posts, under <ORG>, such as, Law Officer in Finance Department, Under Secretary, <ORG>, Registrar Firms, Deputy 110 Secretary law & Judicial and Deputy Legal Remembrancer. In 1985 he was appointed as Legal Remembrancer and Secretary <ORG>. He worked as D.C. (Judicial) in 1987. He also worked as Member/Presiding Officer/Chairman of certain Tribunals/Committees. The bio data described him as belonging to <ORG>. The Chief Justice forwarded the papers to the Minister of Law and <ORG> of India. The <ORG> law Minister, the Chief Justice of India, the Prime Minister of India and the President of India on their respective turns cleared/approved the name of respondent no. 9 for the appointment. The warrant of appointment was signed by the President of India on 15.10.1991 and the Notification appointing respondent no. 9 as a Judge of <NAME> <ORG> was issued on 25.10.1991. The petitioner filed a writ petition before the <NAME> <ORG> on October 23, 1991 challenging the selection of respondent no. 9 for appointment as a Judge of the <NAME> <ORG> on the ground that he was not qualified for such an appointment. The <ORG> passed an interim order holding that it was doubtful if respondent no. 9 possessed qualifications as a provided under Article 217(2 ), and directed that the warrant of appointment of respondent No. 9 issued by the President of India should not be given effect to. Respondent No.9 was also restrained from subscribing his oath or affirmation in terms of Article 219 of the Constitution. Before the writ petition was filed by the petitioner, the Mizoram Bench of <NAME> <ORG> suo-motu assumed jurisdiction under Article 226 of the Constitution and by its order dated 20.11.1990 directed to register a case against respondent no. 9 in respect of anomalies in purchase of law books for the <ORG>. The Chief Minister, Mizoram by letter dated 7.10.1991 conveyed to; the <ORG> law Minister that a vigilance case was instituted against respondent no.9. The letter dated 8.10.1991 addressed by Chief Justice, <NAME> High court to the <ORG> Law Minister did not indicate about any such case. The Law Minister ignored the letter of the Chief Minister. Later on <ORG> by a wireless message dated 2.11.1991 informed <ORG>, <ORG> that respondent no.9 had been placed under suspension in view of the case pending against him in the <ORG>. Respondent No.9 filed a special leave petition and a writ petition 111 before this Court. Two transfer petitions, one by respondent no.9 and the other by the petitioner, were also filed seeking transfer to this Court of the writ petition filed by the petitioner in <NAME> <ORG>. Consequently the said writ Petition was transferred to and was heard by this Court. It was contended by the petitioner that the appointment of respondent no.9 as a <ORG> Judge was violative of Article 217(2) of the Constitution as he did not fulfill the qualifications prescribed therein inasmuch as he neither had been an Advocate of a <ORG> nor had he ever held a judicial officer; and that by virtue of respondent's appointment as Assistant to the Deputy Commissioner during the year 1979 in addition to his own duties as Under Secretary, <ORG>, he did not hold a Judicial Office as envisaged under Article 217(2)(a) of the Constitution. Allowing the transferred writ petition of the petitioner, this Court, HELD: 1. The <ORG> Judges are appointed from two sources, member of the <ORG> and from amongst the persons who have held "judicial office" for not less than ten years. Even a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a <ORG>. [p.131E] 2.1 Expression "Judicial office" has not been defined under the Constitution, nevertheless, it has to be interpreted in consonance with the scheme of Chapters V and VI of part VI of the Constitution and has to be given the meaning in the context of the concept of judiciary as enshrined therein. It would be logical and consistent with the Consistent with the Constitutional scheme to read "judicial office" under Article 217 (2)(a) to mean an office within the judicial service of the <ORG>. [pp.127D;132E, 133F] <CITATION> .,  3 SCR 614, referred to. 2.2 Holder of "judicial office" under Article 217(2)(a) means the person who exercise only judicial functions, determines causes interprets and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive-control and is disciplined to uphold the dignity, integrity and independence of judiciary. The expression "judicial office" in the said Article means an office which is a part of judicial service as defined under Article 236(b) of the Constitution. [pp.131G-H; 132A, F-G] 112 2.3 Article 236 (b) defines "judicial service" to mean District Judges and Judges subordinate thereto. Appointment of District Judges under Articles 233(2) can only be from the judicial service of the <ORG> as defined under Article 236(b). [pp.127 EF; 131D] <CITATION> .,  1 SCR 77, followed. 2.4 Ordinarily the District Judges who are superior members of the judicial service are considered for appointment as Judges of the <ORG> but the constitution-makers wanted to hold-out a possibility of elevation as a Judge of <ORG> to the Subordinate Judges, so as to infuse amongst them a sense of responsibility and an incentive for maintaining efficiency and it was with that objective that the expression "judicial office" has been used in Article 217(2)(a) of the Constitution. [p.132E-F] 2.5 In order to qualify for appointment as a Judge of a <ORG> under Article 217(2)(a) a person must hold a "Judicial Office" which must be a part of the judicial service of the <ORG>. [p.133F-G] 2.6 The expression "judicial office" in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Although under the criminal Procedure Code , 1973 powers of Judicial Magistrate can be conferred on any person who holds or has held nay office under the <ORG> and officers holding various posts under the executive are often vested with the Magisterial-powers to meet a particular situation, yet the constitution framers did not provide a source of appointment to the high office of a <ORG> Judge from amongst the holders of a "judicial office". [p.131F-G] 2.7 A person-who is holding a judicial office in the generic sense and is not a member of the judicial service of the <ORG>-is not eligible to be appointed as District Judge. When a person is not eligible to be appointed as a District Judge it would be mockery of the Constitution to hold that he is eligible to be appointed as a Judge of a <ORG>. The Constitutional-scheme is clear. [p.132B-D] 3.1 The independence of judiciary is part of the basic structure of the Constitution. To achieve this objective there has to be separation of 113 judiciary from the executive. The framers of the Constitution did not and could not have meant by a "judicial office" which did not exist independently and the duties or part of the duties of which could be conferred on any person whether trained or not in the administration of justice. The Directive Principles as enshrined in Article 50 of the Constitution, give a mandate that the <ORG> shall take steps to separate the judiciary from the executive which means that there shall be a separate judicial service free from the executive control. Chapters V and VI in part VI of the Constitution provide for the <ORG>s and subordinate courts in the <ORG>. The scheme under the Constitution for establishing an independent judiciary is very clear. The Constitution-scheme, therefore, only permits members of the judicial service as constituted in terms of Article 236(b) of the Constitution to be considered for the post of District judge and that of the <ORG> Judge.[pp.132D;143D; 144C-D] 3.2 The Word"judicial office" in Article 217(2) means a subsisting office with a substantive position which has an existence independent from its holder. [p.143E] <CITATION> ,  3 SCC 268 and <ORG> v. <NAME>, 8 Tax Cases 231, referred to. 3.3 The judicial service in a <ORG> is distinct and separate from the other service under the executive. The members of the judicial service perform exclusively judicial functions and are responsible for the administration of justice in the <ORG>. Magistrates who are not appointed to the judicial service of the <ORG> can be brought into the judicial service by way of a notification under Article 237 of the Constitution of India. Till the time there is separation of judiciary or a notification under Article 237 of the Constitution of India is issued there is no question of considering the executive officers or even Magistrates for appointment to the post of District Judge or a <ORG> Judge even though the executive officers or Magistrates concerned have the adornment of a judicial office. [pp.128A;145C-E] 3.4 The office of the Assistant to Deputy Commissioner, held by respondent No. 9 for about six months, by virtue of Notification dated 23.6.1979 issued by the <ORG> of Mizoram under 1937 Rules for the Regulation of the procedure of officers appointed to administer justice in the Lushai Hills, was neither a judicial office nor was it part of a judicial service as defined under Article 236(b) of the Constitution. [pp.138C-H;143F-G] 114 3.5 Keeping in view the exigency of administration different officers working with the <ORG> of Mizoram, including respondent no.9, who was working as Under Secretary, <ORG> were by the Notification dated 23.6.1979, appointed Assistant to Deputy Commissioner and were invested with the powers of judicial and executive Magistrates in addition to their own duties. There was no separate office with a designation of Assistant to the Deputy Commissioner. Under the 1937 Rules there was no separation of judiciary from the executive. There was no judicial service as envisaged by Article 236(b) of the Constitution and as such an Assistant to Deputy Commissioner could not be judicial officer in terms of Article 217(2)(a) of the Constitution. [pp.141E-H; 142A-B] 3.6 The office of Legal Remembrancer-cum-secretary <ORG> is non-judicial office under the control of the executive. The <ORG> came into existence with effect from February 17, 1986 and even if full benefit of that service is given to the respondent for the purposes of Article 217(2)(a) he is not qualified as the total period counted from February 17, 1986 comes to less than ten years as required under the said Article. Besides, he never held any of the judicial offices as enumerated in Schedule A to 1989 Rules pertaining to <ORG>, and unless he has held a judicial office in a judicial service he does not come within the purview of Article 217(2)(a). [p.136A-C] 3.7 A cursory look at the bio-data would show that the respondent was not qualified for appointment as a Judge of <ORG> on the admitted facts which have been on the official files all the time. [p.137A] 4. The independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. These objectives enshrined under the Constitution of India cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility. [p.137A-B] 5. Ordinarily the domain in such matters lies wholly with the constitutional authorities mentioned in Article 217 of the Constitution, but in exceptional circumstances like the present, where the incumbent considered for appointment as a Judge of a <ORG> does not fulfill the qualification as laid down expressly under the provisions of the Constitution itself, it becomes bounden duty of the Court to see that no person 115 ineligible or unqualified is appointed to a high constitutional and august office of a Judge of a <ORG>. [p.137E-F] 6. The <ORG> was not justified in assuming jurisdiction on the judicial side to probe into the anomalies in purchase of books involving respondent no.9. It was a matter purely of administrative nature and was exclusively within the purview of the Chief Justice. [pp.123F-G;124A] 7. Since on the date of issue of the warrant by the President of India, respondent no.9 was not qualified to be appointed as Judge of the <ORG>, his appointment would be quashed and the <ORG> of India and other respondents would not administer him oath or affirmation under Article 219 of the Constitution of India. [p.145F-G] S.P. Gupta and others v. <ORG> of India & Ors.,  2 SCR 365, cited. JUDGMENT:

ORIGINAL JURISDICTION : Transferred Case (Civil) No.101 of 1991.

Under Article 139(A)(1) of the Constitution of India. <NAME>, Add. Solicitor General, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, <NAME>, Advocate General, <NAME>, Asstt. Advocate General, <NAME>, Ms. <NAME>, Ms. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, Ms. <NAME>, Ms. <NAME>, Mrs. <NAME>, <NAME>, Ms. <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, <NAME>, Ms. <NAME> and Ms. <NAME> for the appearing parties.

<NAME>, Ms. <NAME>, <NAME>, <NAME>, <NAME>, Ms. <NAME>, <NAME> and <NAME> for the Intervenor.

The Judgment of the Court was delivered by <NAME>, J. The President of India by a warrant dated October 15, 1991 under his hand and seal appointed <NAME> as a Judge of <ORG>. He has not as yet made and subscribed an oath/affirmation as required under Article 219 of the Constitution of India and as such has not entered upon his office. The question for our consideration is whether the appointment of <NAME> as <ORG> Judge is infraction of Article 217(2) and 217(1) of the Constitution of India.

Is he qualified for appointment as a Judge - If so has the mandatory process of consultation under the Constitution been followed.

<NAME>, Chief Minister Mizoram by his letter dated September 29, 1989 addressed to Chief Justice <ORG> recommended the name of <NAME> for appointment as a Judge of <ORG> Capt. <NAME>, Governor of Mizoram reiterated the recommendation by his letter dated October 4, 1989. The Chief Justice <ORG> by his separate letters dated October 25, 1989 addressed to Governor of Mizoram and chief Minister, Mizoram acknowledged the receipt of the recommendation and stated that he would take necessary action immediately after formation of a Permanent Bench at Aizawl. Mr. <NAME> who succeeded Capt. <NAME> as Governor Mizoram addressed a detailed letter dated May 5, 1990 recommending <NAME> for appointment as a Judge. Along with the recommendation he enclosed bio-data of <NAME> which is as under:

"BIO DATA OF <ORG>, M.J.S LEGAL REMEMBRANCER AND SECRETARY LAW & JUDICIAL ETC. GOVERNMENT OF MIZORAM

1. Name : <NAME> (KESHARI NANDAN SRIVASTAVA)

2. Father's Name : Late <NAME>

3. Present address : <ORG> of Mizoram, Aizawl 796001

4. Permanent Address : C/o Sri Chandra Mohan Srivastava 254 Bazar Jhau Lal Lucknow U.P. 226001

5. Date of Birth & Age : 30 January 1938 (52 years)

6. Nationality/Religion : Indian/Hindu

7. Qualification : B.A. LL.B.

(1957-1959 <ORG>)

8. Service to Which : <ORG> belongs

9. Professional : Took Training for legal practice Experience in 1960 in Lucknow.

2. Joined Govt. of Assam in <ORG> in 1966 as Gazetted Officer for Coordination and translation of all State Laws in consultation official <ORG>.

3. Posted as Law Officer in <ORG> Assam to tender legal advice and to look after taxation laws and litigations.

4. Appointed Under Secretary <NAME> & Judicial Govt. of Mizoram, in 1972 to look after all legal matters, advice, litigation, court cases drafting of State Legislation etc.

5. Held charge of Under Secretary, <ORG>, <ORG>, <ORG>, <ORG>, and <ORG>, <ORG> from time to time.

6. Appointed as Registrar of <ORG>, <ORG> from 23.3.72 to 21.12.1979

8. Appointed Deputy Secretary Law & Judicial and Deputy Legal Remembrancer since 1979 and

9. Legal Remembrancer and Secretary Law and Judicial since 1985 and also

10. Appointed Presiding Member of one man <ORG> in 1986.

11. D.C. (Judicial) in 1987.

12. Presiding Officer, <ORG> in October 1989.

13. Declared as Law Officer to appear and conduct cases in all courts on behalf of <ORG>. for which also enrolled as an Advocate with <ORG> Nagaland, Meghalaya, Manipur etc., <ORG> Gauhati.

14. Attended and successfully completed a legal course consisting of studies in International Law & Organizations, Practical & Treaty drafting at London, U.K. from January 1980 to May 1980

15. Member, <ORG>, and also had been its Chairman during President Rule for September 1988

16. Chairman of <ORG>, <ORG>.

17. Chairman, <ORG>.

18. Members, <ORG>

graduate studies, <ORG> Shillong to consider course and prospectus for LLB course.

19. Member, Committee to review the Implementation of the recommendation of <ORG>.

20. Members, <ORG>.

21. Members, <ORG>.

22. Member, <ORG>

23. Member, <ORG> in Mizoram

24. Member, <ORG> in Mizoram.

Chief Justice High Court by his letter dated August 6, 1990 addressed to Minister of Law and Justice, <ORG> forwarded the recommendations, including that of <NAME>, for appointment of Judges to <ORG>. The recommendation included the above quoted bio- data of <NAME>. Minister of Law and Justice addressed a letter dated September 10, 1990 to the Governor Assam bringing to his notice the names proposed by the Chief Justice of <ORG> and called-for his recommendations and those of the Governors and Chief Ministers of the North Eastern State. <NAME> Governor of Assam by letter dated October 20, 1990 conveyed his views and those of other Governors and Chief Ministers of North Eastern State. He recommended <NAME>'s name and also sent his bio-data (reproduced above) along with his recommendation. The Intelligence Bureau Ministry of Home Affairs <ORG> informed <ORG> on October 8, 1990 that <NAME> was considered to be professionally competent and nothing adverse regarding character, integrity and political affiliation had come to notice. The original file regarding appointment of Judges in <ORG> with all the proposals was sent to the Chief Justice of India. The file containing all the recommendations including that of <NAME> along with his bio-data was considered by the Chief Justice of India on November 7, 1990. Regarding <NAME> he recorded as under:

"<NAME> is a judicial officer, there is nothing adverse against him but his C.R. is not available ...After the CRs of Sri <NAME> and <NAME> are obtained the file may be sent to me...."

The file was again sent to the Chief Justice of India along with CRs of <ORG>. The Chief Justice cleared the name of <ORG> in the following words: "So far as <ORG> is concerned he is a Judicial Officer and there is no objection. His name is, therefore, cleared."

The Minister of Law and Justice approved <NAME>'s appointment as a Permanent Judge of <ORG> on August 14, 1991. Thereafter a summary was prepared by <ORG> for the consideration of the Prime Minister and the President of India. In the said summary <NAME> was presented as under:

"<NAME> LL.B. was born on 30th January, 1938. He joined <ORG> in <ORG> in 1956. He was appointed as an Under Secretary, <ORG> and <ORG> in 1972 and as Registrar of Firms and Societies, <ORG>, from 23.3.72 to 21.12.79. He was appointed the Legal Remembrancer and Secretary, Law and <ORG> in 1985".

The Prime Minister approved the appointment of September 24, 1991 and the President of India on September 30, 1991. The Warrant of Appointment was signed by the President on October 15, 1991 and notification appointing <NAME> as a Judge, <ORG> was issued on October 25, 1991.

<NAME>, a practising advocate, filed a writ petition under Article 226 of the constitution of India before <ORG> on October 23, 1991 challenging the selection of <NAME> for appointment as a Judge of <ORG> on the ground that he was not qualified for such an appointment. He prayed for issuance of a mandamus directing <ORG> and other respondents to re-call, rescind or otherwise forbear from giving effect to the impugned selection of <NAME>.

for being appointed as a Judge of <ORG>. The writ petition was listed the same day for hearing before a learned single Judge of <ORG>. The learned Judge issued rule nisi and passed interim order in the following terms:

"The stay matter shall be heard on 28.10.1991. Meanwhile the respondent No. 1 <ORG>, is restrained from issuing warrant appointing the respondent No.9 (Shri <NAME>) as Judge of <ORG> till 28.10.1991." On October 28, 1991 <ORG> noticed the fact that the warrant of appointment of <NAME> had already been received at Gauhati. The petitioner was permitted to amend the writ petition and the hearing on the interim relief was adjourned no November 6, 1991. <ORG> of <ORG> heard the stay matter on November 6, 1991. After noticing the points raised by the petitioner <ORG> observed as under:

"In view of above discussion, it is doubtful if the respondent <NAME> possesses qualification as provided under Clause (2) of Article 217. Therefore, a bona fide dispute has been raised, thereby showing a prima facie case." <ORG> granted the interim stay in the following words:-

"In the result, it is ordered and directed that the warrant of appointment of respondent 9 Shri <NAME> issued by the President of India shall not given effect to by the concerned respondent until further orders. It is further ordered and directed the respondent-9 Shri <NAME> is restrained from making and subscribing his oath or affirmation in terms of Article 219 of the Constitution until further orders. However, notwithstanding the pendency of the writ petition and making this interim order, <ORG> is given liberty to reconsider the appointment of respondent-9 Shri <NAME> as Judge in <ORG> keeping in view the allegation made in this writ petition." We may at this stage notice another controversy taken- up by <ORG> on Judicial side. The Mizoram Bench of Gauhati High Court consisting of <NAME> and <NAME>, JJ suo-moto assumed jurisdiction on the judicial side presumably under Article 226 of the Constitution of India and on November 20, 1990 passed the following order:-

"Register a case under public interest litigation with the cause title- The Registrar (Judicial), Gauhati High Court Versus - Shri K.N. Srivastava, Secretary, <ORG> Mizoram, Aizawl.

Let notice be issued to <NAME>, Secretary, <ORG>, Govt. of Mizoram show cause as to why an investigation shall not be ordered by this Court in the matter of purchase of Law Books and journals, furniture and stationery articles, by <ORG>, Mizoram for the permanent Bench of <ORG> at Aizawl; or why such further or other orders should not be passed as to this court may seem fit and proper.

In the interim, we direct the Secretary, <ORG>, <ORG>. of Mizoram to furnish a full particulars of the law books and journals purchased for the Judge's library positively within 7(seven) days from the date of receipts of this notice. The particulars should contain amongst others-(1) total amount of fund allotted by the <ORG>. and the fund spent with list of law books purchased, names and particulars of the suppliers and the price thereof, (3) copies of the bills of the suppliers, (4) date of payment to the suppliers, and (5) date of receipt of the books against each payment made etc. The notice of Shri <NAME>, Secretary <ORG> shall be accompanied by copies of letter dated 23-7-1990 and the subsequent reminders.

Let a copy of this order be sent to (1) the Advocate General, Mizoram, (2) Chief Secretary to the Govt. of Mizoram, (3) The Secretary to the Govt. of India, <ORG>, New Delhi, and (4) The Secretary to the Govt. of India, <ORG>, New Delhi." The above quoted directions were used by <ORG> after taking note, in the same order, of the following facts:-

"After the permanent Bench was established, regular Benches, both Division and Single, are sitting at Aizawl. But the great difficulties are faced by the Judges in discharging their function of not having the Judge's library equipped with essential law books and journals. Indeed, we are handicapped while sitting in the Court when reference books and Law journals are not available in deciding important and complicated question of law ......A casual look at the library which mostly filled up with books of law and <ORG> purchased earlier, do not at all disclose that a sum of Rs. 6,45,000- and odd was spent for purchase of law books and journals. Important law journals like- All India Reporters, <ORG>, <ORG> etc. do not appear to have been purchased for the library ......The aforesaid facts and circumstances and the unusual silence of the Secretary, Law & <ORG> as regards furnishing of particulars of the Books and journals purchased for the Judge's Library for more than 4 months, inspite of repeated reminders, gives rise to strong suspicion that all is not well in the matter of purchase of law books and journals for the Judge's Library by the Law & <ORG>. The Secretary Law is in duty bound to furnish full particulars of the law books and journals so purchased for the Judge's Library and is primarily accountable for anomalies, misuse, or misappropriation, if any, of the fund sanctioned by the Govt. for purchase of books for Judge's Library and the consequent non availability of the essential law books and journals, is very much detrimental to the function of <ORG> and in turn to the interest of the public at large." We fail to appreciate the action of the two learned Judges of <ORG> in assuming jurisdiction on the judicial side to probe into a matter which was purely of administrative nature and was exclusively within the purview of the Chief Justice. Whether in the matter of purchase of books for <ORG>, <ORG> acted honestly or dis- honestly was not a matter for the learned Judges to probe by straining their judicial powers. Mr. <NAME>, learned senior Advocate appearing for <ORG> contended that <ORG>'s name for appointment as a Judge was recommended in August 1990 and by November, 1990 the process of consultation was at final stages. According to him the order dated November 20, 1990 was passed by the learned Judges with a view to stall his appointment as a Judge. Be that as it may, we are of the view that there was no justifiable reason for the learned Judges to have adopted the course they did.

<ORG> passed a resolution on October 7, 1991 wherein it was resolved as under: "While a qualified person <NAME> Advocate General, Mizoram is excluded at the last stage under mysterious and suspicious circumstances, a person <NAME> who has no practical experience even for a day as a Magistrate or as an advocate, and against whom three misappropriation cases are pending in <ORG>, (<ORG>) and whose integrity is seriously being questioned, is considered to be qualified for appointment as a Judge of <ORG> in the near future. <ORG> vehemently urge the concerned authorities to reconsider or review the matter." <NAME>, Chief Minister Mizoram, by his letter dated October 7, 1991 addressed to <NAME>, <ORG>, <ORG>, New Delhi stated as under:

"We had recommended <NAME>, Secretary, Law and Judicial, <ORG> for being considered for appointment as a Judge of <ORG>. Subsequent to our recommendation it has been reported that a vigilance case has been instituted against <NAME> by <ORG> of <ORG> in regard to alleged anomalies in the procurement of law books, journals etc. for <ORG>'s library.

We understand that the case is pending with <ORG>. I have, therefore, thought it desirable to bring this fact to your kind notice."

<NAME>, Chief Justice, <ORG> by his letter dated October 8, 1991 addressed to the Law Minister Government of India stated:

"I am indeed happy that President has approved the names of four persons for appointment of Judges in <ORG> namely, (1) Shri <NAME> (<ORG>) <NAME> (<ORG>), (3) Shri <NAME> (Mizoram- service) and (4) Shri <NAME> (<ORG>)."

The Chief Justice did not mention anything about the pendency of vigilance cases or any other case against <NAME>. The Law Minister after noticng the contents of both the letters opined that the contents of the Chief Minister's letter be ignored.

The Chief Secretary, <ORG> by a wireless message dated November 2, 1991 informed the Secretary to <ORG>, <ORG> that <NAME>, Secretary, <ORG>, <ORG> had been placed under suspension in view of the case pending against him in <ORG> on corruption charges and other serious complaints against him on corrupt practices. It was further requested that the <ORG> should consider cancelling his appointment as permanent Judge of the <ORG> till allegations against him were thoroughly inquired.

<ORG> filed special leave petition against the <ORG> order, transfer petition seeking transfer of writ proceedings pending in Gauhati <ORG> and also writ petition under Article 32 of the Constitution of India. By an order dated November 20, 1991 this Court withdrew the writ petition, filed by <NAME>, from the file of the Gauhati <ORG> and transferred the same to this Court. This is how the matter is before us.

Mr. <NAME>, learned senior advocate appearing for <NAME> and <NAME>, learned Senior Advocate for the State of Mizoram have raised the following points for our consideration:

1. <NAME>'s appointment as a Judge of <ORG> is violative of Article 217(2) of the constitution of India as he does not fulfill the qualifications prescribed therein. Admittedly he has not been an advocate of <ORG> for at least ten years. The bio-data of <NAME> before the authorities does not show that he ever held a judicial office in the territory of India.

2. <NAME> has produced during the course of arguments, a notification issued by <ORG> showing that he was appointed as Assistant to the Deputy Commissioner Aizawl District during the year 1979 and he worked as such for about 6/7 months. It is contended by the learned counsel that by virtue of his appointment as Assistant, in addition to his own duties as Under Secretary, Law and Judicial, <NAME> did not hold a judicial office as envisaged under Article 217(2) of the Constitution.

3. There has been no consultation amongst the constitutional authorities as required under Article 217(1) of the Constitution of India. It was contended that the Gauhati High Court Order dated November 20, 1990, the letter from Chief Minister <NAME> dated October 7, 1991 addressed to the Minister, Law and Justice and the factum of pendency of vigilance inquiry against <NAME> were some of the important and relevant material which was not brought of the notice of the contitutional authorities and as such the process of consultation is vitiated. Relying on S.P.Gupta and <ORG>., etc. etc. v. <ORG> and <ORG>., etc. etc.,  2 S.C.R 365, It is contended that there has to be "full and effective consultation" on "full and identical facts". The same material must be present before the Constitutional functionaries whose consultation is mandatory under Article 217(1) of the Constitution of India.

We may notice Article 217(2) of the Constitution of India which lays down the qualifications for appointment as a Judge of <ORG>.

"217(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and-

(a) has for at least ten years held a judicial office in the territory of India; or

(b) has for at least ten years been an advocate of <ORG> of two or more such Courts in succession;

Explanation - For the purposes of this clause -

(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of <ORG> or has held the office of a member of a tribunal or any post, under the <ORG> or a <ORG>, requiring special knowledge of law;

(aa) ................

(b) ................."

It is not disputed that Article 217(2)(b) is not attracted as admittedly <NAME> has not been an advocate of <ORG> for at least 10 years. The question for our consideration is whether he has for at least 10 years held a judicial office in the territory of India as provided under Article 217(2)(a) or read with (a) to the explanation therein.

Expression "Judicial Office" has not been defined under the Constitution, nevertheless, it has to be given the meaning in the context of the concept of judiciary as enshrined in the Constitution of India. The constitution seeks to establish an independent judiciary in the country. Article 50 of the Constitution gives a mandate that the <ORG> shall take steps to separate the judiciary from the executive in the public services of the <ORG>. Chapter V and VI in Part VI of the Constitution proved for <ORG> and subordinate courts in the <ORG>. The Scheme under the Constitution for establishing an independent judiciary is very clear. Article 236(b) defines 'judicial service' to mean district Judges and Judges subordinate thereto. Under Article 234 the Governor of the <ORG> makes appointments of persons other than District Judges to the judicial service in accordance with the Rules made by him in consultation with <ORG>. Article 235 vests control over district courts and courts subordinate thereto in <ORG>. The judicial service whether at the level of district courts or courts subordinate thereto is under the control of <ORG> in all respects. The subordinate judiciary which mans the courts subordinate to the district courts consists of judicial officers who are recruited in consultation with <ORG>. The district judges are recruited for amongst the members of the bar and by promotion from the subordinate judiciary. The judicial service in a <ORG> is distinct and separate from the other services under the executive. The members of the judicial service perform exclusively judicial functions and are responsible for the administration of justice in the <ORG>. We may at this stage refer to the relevant articles of the Constitution which are as under:

"233. Appointment of district judges. - (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with <ORG> exercising jurisdiction in relation to such State.

(2) A person not already in the service of the <ORG> or of the <ORG> shall only be eligible to be appointed a district judges if he has been for not less than seven years an advocate or a pleader and is recommended by <ORG> for appointment.

235. Control over subordinate courts, - The control over district courts and courts 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 <ORG>, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising <ORG> to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

236. Interpretation. In this Chapter -

(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;

(b) the expression "Judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

<CITATION> .,  1 SCR 77 this Court had an occasion to construe the above quoted provisions of Chapter VI Part VI of the Constitution of India. <NAME>, CJ speaking for the Cour held as under:

"The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the <ORG>s; it constitutes a High Court for each <ORG>, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate case the <ORG>, within bounds and gives to it the power of superintedence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less 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 Constitution introduced a group of articles in Ch. VI of Part VI under the heading "Subordinate Courts". But at the time the Constitution was made, in most of the <ORG> the magistracy was under the direct control of the executive. Indeed it is common knowledge that in the preindependent 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 <ORG> shall take steps to separate the judiciary from the executive in the public services of the <ORG>s. Simply stated, it means that there shall be a separate judicial service free from the executive control."

"...the real conflict rests on the question whether the Governor 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 preindependence days and that too to the conditions prevailing in the Princely <ORG>s. In the Princely <ORG>s one used to come 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. 223 (1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the <ORG>. But Art. 233(1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the resources 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 <ORG> or the <ORG>, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution" the service of the <ORG> or of the <ORG> "mean any service of the <ORG> or of the <ORG> or does it mean the judicial service of the <ORG> or of the <ORG> ? The setting, viz., the chapter dealing with subordinate courts, in which the expression "the service" appears indicates that the service mentioned therein the service pertaining to courts. That apart, Art. 236(b) defines the expression "judicial service" to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Art. 236 , is placed as a clause before Art. 233(2 ), there cannot 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 not necessarily lead to contrary conclusion. 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 not 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 consists 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 exclusively terms, having provided for appointments to that service and having entrusted the control of the said service to the care of <ORG>, the makers of the world Constitution not have conferred a blanket power on the Governor to appoint any person from any service as a district judges.".

This Court has thus authoritatively laid down that the appointment of district judges under Article 233(2) can only be from the judicial service of the <ORG> as defined under Article 236(b) of the Constitution.

It is in the above context that we have to interpret the meaning of expression "judicial office" under Article 217(2)(a) of the Constitution of India. The <ORG> Judges are appointed from two source, members of the <ORG> and from amongst the persons who have held "judicial office" for not less than ten years. Even a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a <ORG>. The expression "judicial office" in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Under the Criminal Procedure Code 1973 powers of judicial Magistrate can be conferred on any person who holds or has held any office under the <ORG>. Officers holding various posts under the executive are often vested with the Magisterial-powers to meet a particular situation. Did the framers of the constitution had this type of 'offices' in mind when they provided a source of appointment to the high office of a Judge of <ORG> from amongst the holders of a "judicial office". The answer has to be in the negative. We are of the view that holder of "judicial office" under Article 217(2)(a) means the person who exercises only judicial functions, determines causes inter-parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive- control and is disciplined to uphold the dignity, integrity and independence of judiciary.

This <ORG> in <NAME> case (supra) has held that "Service....of the <ORG>" in Article 233(2) means the judicial service as defined under Article 236(b) of the Constitution. Therefore, a person - who is holding a judicial office in th generic sense and is not a member of the judicial service of the <ORG> - is not eligible to be appointed as District Judge. Can such person be qualified for appointment as a Judge of a High <ORG>? An affirmative answer will not be in conformity with the scheme of Chapter V and VI of Part VI of the Constitution and will also go contrary to the ratio in <NAME> case. When a person is not eligible to be appointed as a District Judge it would be mockery of the Constitution to hold that he is eligible to be appointed as a Judge of a High <ORG>. The constitutional-scheme is clear. Independence of judiciary is the basic feature of the Constitution. To achieve that objective there has to be separation of judiciary from the executive. The judicial service under Article 236(b) consists of District Judges who preside over the District courts and the Subordinate Judges who man the courts inferior to the District <ORG>. Subordinate Judges who are member of the judicial service are eligible for appointment as District Judges. It would be logical and consistent with the constitutional scheme to read "judicial office" under Article 217(2)(a) to mean an office within the judicial service of the <ORG>. Ordinarily the District Judges who are superior members of the judicial service are considered for appointment as Judges of the 'High <ORG> but the constitution-makers wanted to hold-out a possibility of elevation as a Judge of High <ORG> to the Subordinate Judges, so as to infuse amongst them a sense of responsibility and an incentive for maintaining efficiency and it was with that objective that the expression "judicial office" has been used in Article 217(2)(a) of the Constitution. In our view the expression "judicial office" in the said article means an office which is a part of judicial service as defined under Article 236(b) of the Constitution.

<CITATION> ., 3 SCR 614, the question before this <ORG> was whether a Sub- Deputy collector vested with the powers of a first magistrate was a judicial officer in terms of  Section 7(3)(d) of the Industrial Disputes Act. The said section provides that a person shall not be qualified for appointment as the presiding officer of a labour court unless he has held any judicial office in India for not less than 7 years. <NAME> was holding office of the Sub-Deputy Collector and was vested with magisterial powers which he enjoyed for about nineteen years. He was appointed presiding officer of a labour court. His appointment was challenged on the ground that he had not held judicial office for 7 years prior to his appointment. <NAME>, C.J. who spoke for the <ORG> held that since a magistrate exercises judicial functions he holds a judicial office. Whether his duties are partly judicial and partly other does not in any way detract from the position that while acting as a magistrate he is a judicial officer. On these findings the appointment of <NAME> as a labour officer was upheld. While holding so the learned Chief Justice observed as under:

"Nor does the argument that magistrates will claim to be appointed Judges of <ORG> need detain us. the scheme of Chapter V of Part VI of the Constitution has its own affect on the meaning of the expressions 'judicial office' and 'judicial service'. In any case the use of the same expression in any other enactment not in pari meteria can have no bearing upon the Industrial Disputes Act and vice versa. In the Constitution these words must bear the meaning which the context dictates and in that connection the history of appointment of Judges cannot be overlooked." It is thus, clear that the expression "judicial office" under Article 217(2)(a) of the Constitution has to be interpreted in consonance with the scheme of Chapter V and VI of Part VI of the Constitution. We, therefore, hold that expression "judicial office" under Article 217(2))(a) of the Constitution means a "judicial office" which belongs to the judicial service as defined under Article 236(b) of the Constitution of India. In order to qualify for appointment as a Judge of <ORG> under Article 217(2)(a) a person must hold a "judicial office" which must be a part of the judicial service of the <ORG>.

We may now examine whether <NAME> is qualified for appointment as a Judge of <ORG> on the basis of the offices held by him as detailed in his bio-data reproduced above. The Constitution of India in clear terms lays down the qualification for appointment as a Judge of <ORG>. The Chief Minister/Chief Justice selected <NAME> for recommending his name for appointment as a Judge of <ORG>. Obviously on their asking <NAME> submitted his bio-data which we have re-produced above and which is part of the appointment files maintained in <ORG> and in <ORG>, <ORG>. <NAME> mentioned therein that he belongs to "<ORG> thereby giving in an impression that he has had held judicial offices as a member of the judicial service of Mizoram. This is not a correct representation. Mizoram Judicial Service Rules, 1986 came into force with effect from November 17, 1986. These Rules were superseded by the Mizoram Judicial Service Rules, 1989 (1989 Rules) framed under Article 309 read with Articles 233 and 234 of the Constitution of India in consultation with the <ORG>. These Rules were enforced with effect from February 17, 1986. Under the 1989 Rules various posts in different grades were created. Schedule-A to the 1989 Rules which give the composition of the Service is an under:

SCHEDULE - A (See rule 2(g) and rule 4) Sl. No. Grade & Post

1. GRADE I

(a) SENIOR

1) Legal Remembrancer-cum-Secy., Law & Judicial.

2) Registrar, <ORG>

3) District & Sessions Judge

(b) JUNIOR

4) Joint Legal Remembrancer cum Jt. Secretary. <NAME> & Judicial

5) Special Judge II GRADE II

1) Chief Judicial Magistrate

2) <ORG>. Legal Remembrancer-Cum-Deputy Secretary, Law & Judicial

3) Deputy Registrar, <ORG>

4) Assistant District & Sessions Judge III GRADE III

1) Asstt. Legal Remembrancer-Cum-Under Secretary, Law & Judicial

2) President & Recorder, <ORG>, Aizawl.

3) Sub-Divisional Judicial Magistrate 4) Assistant Registrar, <ORG> 5) Judicial Officer I, <ORG>, Aizawl

and Magistrate Subordinate District Council Courts in Aizawl and Lunglei Districts.

IV GRADE IV 1) Munsiffs/Judicial Magistrates 2) Magistrate Cum Judicial Officer II, Additional

Subordinate <ORG> Courts in Aizawl & Lunglei Districts.

3) Special Officer-Cum-Assistant Draftsman 4) Translator"

<NAME>, according to his bio-data, was appointed legal Remembrancer-Cum-Secretary, Law & Judicial in 1985 and has been working as such since then. It is on this basis that he claims to be a member of <ORG> constituted under the 1989 Rules is a service envisaged under Article 236(b) of the Constitution of India, we assume it to be so for the purposes of the present controversy. Schedule A to the 1989 Rules enumerates various 'judicial offices' such as District & Sessions Judge (Grade I), Chief Judicial Magistrate (Grade II), Sub- Divisional Judicial Magistrate, Judicial officer and Magistrates (Grade III) and munsiffs/Judicial Magistrates, Magistrate-cum-Judicial officer II (Grade IV). It is not disputed that <NAME> never held any of these offices. He, however, claims that since he has been holding the office of Legal Remembrancer-cum-Secretary Law & Judicial, he is member of the <ORG>. That may be so but unless he has held a judicial office in a judicial service he does not come within the purviews of Article 217(2)(a) of the Constitution. The office of Legal Remembrancer-cum-Secretary Law and Judicial office under the control of the executive. In any case the <ORG> came into existence with effect from February 17, 1986 and even if full benefit of that service is given to <NAME> for the purposes of Article 217(2)(a) he is not qualified as the total period counted from February 17,1986 comes to less then ten years as required under the said Article. <NAME>, his bio-data, under the said heading 'professional experience', has listed 24 various offices held by him during the course of his career. A bare look into the list shows that none of those offices were/are judicial offices even in the generic sense. The office of <ORG>) claimed to have been held by <NAME> in the year 1987 is again of no consequence because even if we assume the said office to be judicial office in judicial service the period counted from 1987 would not make the requisite period of ten years under the Constitution. All the other officer listed in the bio-data are neither judicial nor part of any judicial service. All those offices were/are under the employment and control of the <ORG>. We, therefore, agree with Mr. <NAME> and Mr. <NAME> that assuming every word of <NAME>'s bio- data to be correct he is not qualified for appointment as a judge of <ORG>.

It is for the first time in the post-independent era that this Court is seized of a situation where it has to perform the painful duty of determining the eligibility of a person who has been appointed a Judge of <ORG> by the President of India and who is awaiting to enter upon his office. We looked into the official record and permitted learned counsel for the parties to examine the same. We are at a loss to understand as to how the bio-data of <NAME> escaped the scrutiny of the authorities during the process of consultation under Article 217(1) of the Constitution of India.

A cursory look at the bio-data would have disclosed that <NAME> was not qualified for appointment as a Judge of <ORG> on the admitted facts which have been on the official files all the time. Needless to say that the independence, efficiency and integrity of the judiciary can only be maintained by selecting the best persons in accordance with the procedure provided under the Constitution. These objectives enshrined under the Constitution of India cannot be achieved unless the functionaries accountable for making appointments act with meticulous care and utmost responsibility.

Mr. <NAME> and Mr <NAME> vehemently argued that in case we come to the conclusion, as we have, that - on the basis of the bio-data taken into consideration by the constitutional authorities - <NAME> is not qualified for appointment as a Judge of <ORG> then his appointment be quashed on the grounds that there has been violation of Article 217(2) of the constitution and there was total lack of application of mind on the part of the authorities responsible for making the appointment. We can adopt this course but after hearing Mr <NAME>, learned senior advocate appearing for <NAME> we refrain from doing so and intend going into further material placed on record by <NAME> to show that notwithstanding his bio-data before the authority he is qualified to be appointed as a Judge of <ORG>. We are fully aware of the delicacy and sensitivity of the matter and the stage at which the matter has been brought before us for judicial scrutiny. We make it clear that ordinarily the domain in such matters lies wholly with the constitutional authorities mentioned in Article 217 of the Constitution, but in exceptional circumstances like the present, where the incumbent considered for appointment as a Judge of <ORG> does not fulfill the qualification as laid down expressly under the provisions of the Constitution itself, it becomes our bounded duty to see that no person ineligible or unqualified is appointed to a high constitutional and august office of a Judge of <ORG>. Thus taking in view the entire facts and circumstances of the case and in order to do full justice to <NAME> we gave him full opportunity to place any fresh material before us to justify that he was qualified for appointment as a Judge of <ORG> even though such material had not been brought to the notice of the constitutional authorities.

During the course of arguments <NAME> has filed additional affidavit and placed documents before us, which were not before the authorities, under Article 217(1) of the Constitution of India. Under Rules 8 and 15 of the Rules for the regulation of the procedure of officers appointed to administer justice in the Lushai Hills promulgated on March 25, 1937 (hereinafter called '1937 Rules'). <NAME> was appointed as Assistant to the Deputy Commissioner Aizawl District by the Lt. Governor (Administrator) of Mizoram. He was invested under Rule 9 of the 1937 Rules with the powers analogous to the powers of a judicial magistrate of the First Class as defined in the Code of Criminal Procedures, 1973. In support of his contention he has produced the notification dated June 23, 1979 which is reproduced hereunder :

Dated Aizawl, the 23rd June 1979 No.CS/MZ/APPT/79 : Under rules 8 and 15 of the Rules for the regulation of the procedure of officers appointed to administer justice in the Lushai Hills, published vide Notification No.2530(a)A.P. dated 25th March 1937 the Lt. Governor (Administrator) of Mizoram is pleased to appoint the following Officers as Assistant to the Deputy Commissioner, Aizawl District and further to invest under rule 9 of the aforesaid Rules With the powers analogous to the power of Judicial Magistrate of the First Class defined in the Code of Criminal Procedures, 1973 (Act No. 2 of 1974) in addition to their duties.

Name of Officer Designation 1. <NAME> Secretary Appointment 2. <NAME>, <NAME> Secretary, Finance 3. <NAME> Director, L.A. T.P. & H 4. <NAME> Director, Supply & Tpt. 5. <NAME> Under Secy, P.W.D. 6. <NAME> Deputy Director, Fisheries 7. <NAME> Deputy Director, C.D. 8. <NAME> Under Secy. Law & Judicial 9. <NAME> Architect P.W.D. 10.Shri S.S, <NAME> Under Secy. Finance

Further in exercise of the powers conferred by sub- section (1) of section 20 of Code of Criminal Procedure, 1973 (Act 2 of 1974) read with the Notification of the Government of India, <ORG> No. 11 11/2/74-UTL (iii) (S.O. 185(E) dated the 20th March, 1974 the Lt. Governor (Administrator) is pleased to appoint the above mentioned officers as Executive Magistrates also in the Aizawl District.

Sd/- A.J. Kundan Chief Secy. to Govt. of Mizoram"

Rules 1,8,9,10,14,15, and 19 of the 1937 Rules which are relevant for our purposes are reproduced hereunder:

"1. The administration of the district known as the Lushai Hills is vested in the Governor of Assam, and the Deputy Commissioner of the Lushai Hills and his assistants and in the chiefs and headmen of villages.

8. Criminal justice shall be ordinarily administered by the Deputy Commissioner and his Assistants.

9. The Deputy Commissioner shall be competent to pass sentence of death, transportation or imprisonment up to the maximum amount provided for the offence, of whipping, and of fine up to any amount provided that all sentences of death, transportation or imprisonment of seven years and upwards shall be subject to the confirmation by <ORG>.

<ORG> hereinafter referred to as <ORG> may call for the proceedings of any officer subordinate to him and may reduce, enhance or cancel any sentence passed or remand the case for retrial but no offence shall be punished by a sentence exceeding that awardable under the Indian Penal Code .

Assistant to the Deputy Commissioner shall exercise such powers as they may be invested with by the Governor of Assam not exceeding those of a Magistrate of the first class, as defined in the Criminal Procedure Code .

10. An appeal shall lie to the Deputy Commissioner against any order passed by any of his Assistants.

An appeal shall lie to <ORG> for any sentence passed by the Deputy Commissioner.

In respect of magisterial decisions of the Commandant of <ORG>, the Superintendent shall exercise the appellate revisional powers conferred upon <ORG> or the District Magistrate by the Code of Criminal Procedure in the case of decisions of the class of Magistrates with the powers of which the Commandant of Assam Rifles has been invested.

14. The deputy commissioner and all Magistrates shall keep such registers of criminal cases and submit such returns as <ORG> shall from time to time prescribe.

<NAME>

15. The administration of civil justice in the Lushai Hills is entrusted to the Deputy Commissioner and his Assistants, who shall take special cognizance of well established <ORG>.

19. <ORG> and the Courts of the Deputy commissioner and his Assistants shall be guided by the spirit of the Code of Civil Procedures, so far as it is applicable to the circumstances of the Lushai Hills and consistent with these Rules.

Mr. <NAME> contended that the administration of justice both on civil and criminal side was being manned exclusively by the Deputy Commissioner and his Assistants under the 1937 Rules. No other courts were functioning. Apart from administering criminal and civil justice the total administration of the district known as the Lushai Hills was vested in the Governer of Assam , the Deputy Commissioner of Lushai Hill, and his Assistants. The Deputy Commissioner under the 1937 Rules was competent to pass sentence of death, transportation or imprisonment up to a maximum provided for the offence and fine up to any amount. The Assistants to the Deputy Commissioner were to exercise such powers as conferred by the <ORG> not exceeding those of a magistrate of the first class as defined under the Code of Criminal Procedure. An appeal lies to the Deputy Commissioner against any order passed by any of his Assistants.

Similarly under Rule 15 the administration of civil justice was entrusted to the Deputy Commissioner and his Assistants. <NAME> exercised the powers of Assistant to the Deputy commissioner from June 23, 1979 to December 19,1979. According to Mr. <NAME> the office of the Assistant to which <NAME> of about six months was a judicial office. According to him period for which he held the judicial office and the quality of the said office are not relevant factors. He therefore, forcefully contended that <NAME>, having held the judicial office of Assistant to the Deputy Commissioner under the 1937 Rules fulfills the qualification under Article 217(2)(a) read with (a) to the Explanation According to him all the office held by <NAME> after relinquishing the office of the Assistant to the Deputy Commissioner required special knowledge of law and as such whole of that period is liable to be included for counting 10 years during which he held a judicial office. <NAME>, according to him, is qualified for appointment as a judge of <ORG>.

We have given our thoughtful consideration to the argument advanced by Mr. <NAME>. We are not inclined to agree with him.

<NAME> has been shown at serial at No. 8 in the notification dated June 23, 1979 reproduced above. The post held by him on that day was that of Under Secretary, Law and <ORG>. While holding the said post he was appointed as Assistant to the Deputy Commissioner in addition to his own duties. He was further invested with the powers analogous to the powers of a judicial magistrate. He was also appointed as Executive Magistrate in the Aizawl District. In the said notification at serial No.9 is <NAME> who was architect in <ORG> of <ORG>. Similarly at serial No. 2 is Secretary Finance. Serial No. 4 Director Supply and Transport, Serial No.5 Under Secretary P.W.D and No. 6 Deputy Director <ORG>. The very fact that officers from different departments were appointed as Assistants in addition to their duties is significant and clearly goes to show that there was no separate office with a designation of Assistant to the Deputy Commissioner on which these appointments were made. Keeping in view the exigency of administration different officers working with <ORG> were invested with the powers of judicial and executive magistrates by appointing them Assistants in addition to their own duties. It would be travesty of justice if we hold that an Architect working in the P.W.D. department by virtue of his being vested with the powers of an Assistant in addition to his own duties comes to hold a "judicial office" in term of Article 217(2)(a) of the Constitution of India. There was no separation of judiciary from the executive under the 1937 Rules and the total administration of the area including administration of justice was being done by the officers who were under the control of the executive. There was no judicial service as envisaged by article 236(b) of the Constitution of India and as such an Assistant to the Deputy Commissioner could not be a judicial officer in terms of Article 217(2)(a) of the Constitution of India. There is no material before us to show that there was a regular cadre of Assistants at the relevant time. From the notification reproduced above it is obvious that the posts of Assistants to the Deputy Commissioner were not separately created and only officers working in various Government Departments were invested with the powers under the 1937 Rules in addition to their own duties. We have further no material before us to show that <NAME> in fact presided over any court and conducted any trial or decided any civil cases during the said period of six months. Rather there is an affidavit filed by Under Secretary, Law, <ORG> and Parliamentary Affairs Department Government of Mizoram affirming that no post of Assistant to Deputy Commissioner was created during the relevant period. It is further stated in the said affidavit that <NAME> did not deal with or decide any case (civil or criminal) during that period.

Mr. <NAME> relying on <CITATION> ,  3 SCC 268 has contended that the judicial office under Article 217(1)(a) of the Constitution of India has to be an office which is subsisting permanent, substantive and which has an independent existence from the person who fills it. In Smt. Kanta Kathuria Case (supra) <NAME>, J. (as he then was) who delivered the majority judgment referred to with approval the definition of word "office" given by <NAME>, J. in <ORG> v. Bater 8 Tax Cases 231 which is in the following terms:

"Now it is argued, and to my mind argued most forcibly, that shows that what those who use the language of the Act of 1842 meant, when they spoke of an office or employment, was an office or employment which was an office or employment which was a subsisting, permanent, Substantive position which had an existence independent from the person who filled it, which went on and was filled in succession by successive holders; and if you merely had a man who was engaged on whatever terms, to do duties which were assigned to him, his employment to do those duties did not create an office to which those duties were attached. He merely was employed to do certain things and that is an end of it; and if there was no office or employment existing in the case as a thing, the so-called office or employment was merely an aggregate of the activities of the particular man for the time being. And I think myself that that is sound. I am not going to decide that, because I think I ought not to in the state of the authorities, but my own view is that the people in 1842 who use this language meant by an office a substantive thing that existed apart from the holder."

The Word "office" has various meanings and we have to see which is appropriate meaning to be ascribed to this word in the context it appears in the Constitution. We are of the view that the framers of the Constitution did not and could not have meant by a "judicial office" which did not exist independently and the duties or part of the duties of which could be conferred on any person whether trained or not in the administration of justice. The word "Judicial office" under Article 217(2)(a) in our view means a subsisting office with a substantive position which has an existence independent from its holder.

We have already held that "judicial office" in Article 217(2)(a) means an office as a part of the judicial service as defined under Article 236(b) of the Constitution of India. The office of the Assistant to Deputy Commissioner held by <NAME> for a period of about six months under the notification reproduced above, was neither a judicial office nor was it part of a judicial service as defined under Article 236(b) of the Constitution of India. We, therefore, accept the second contention advanced by Mr. <NAME> and <NAME> and hold that <NAME> was not qualified for appointment as a Judge of <ORG> under Article 217(2)(a) of the Constitution of India.

Before parting with the point under discussion we may notice another argument advanced by Mr. <NAME>. He contended that there being no separation of judiciary in Mizoram and justice civil and criminal being solely administered by the executive officers under the 1937 Rules they are judicial officers within the ambit of Article 217(2)(a) of the Constitution of India. We do not agree. Before independence the district judges were appointed by the the Governor from three sources, namely, (1) <ORG>, (2) <ORG> and (3) the Bar After independence recruitment to <ORG> was discontinued and the officers of <ORG> which substituted <ORG> were not to be given judicial posts. The district judges have been recruited only from two sources(1) bar and (2) judicial service. There has been no case of a member of the executive having been promoted as a district judge. The independence of judiciary is part of the basic structure of the Constitution. The Directive Principles give a mandate that the <ORG> shall take steps to separate the judiciary from the executive which means that there shall be a separate judicial service free from the executive control. The constitution-scheme, therefore, only permit members of the judicial service as constituted in terms of Article 236(b) of the Constitution to be considered for the post of district judge and that of the <ORG>. It would be useful to refer to Article 237 of the Constitution of India :

"237. Application of the provisions of this Chapter to certain class or classes of magistrate. The Governor may by public notification 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 to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification."

In <NAME> case (supra) <NAME>, CJ interpreted Article 237 in the following terms : " Art. 237 enables the Governor to implement the separation of the judiciary from the executive. Under this Article, the Governor may notify that Arts. 233, 234, 235 and 236 of the this Constitution will apply to magistrates subject to certain modification or exceptions; for instance, if the Governor so notifies, the said magistrates will become members of the judicial service, they will have to be appointed in the manner prescribed in Art. 234 , they will be under the control of <ORG> under Art. 235 and they can be appointed as District Judges by the Governor 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 constitution theme of independent judiciary and the contrary view accepts a retrograde step." It is thus obvious that the Magistrates who are not appointed to the judicial service of the <ORG> can be brought into the judicial service by way of a notification under Article 237 of the Constitution Of India. Till the time there is separation of judiciary or a notification under Article 237 of the Constitution of India is issued there is no question of considering the executive officers or even Magistrates for appointment to the post of District Judge or a <ORG> Judge even though the executive officers or Magistrates concerned have the adornment of a judicial office. We, therefore, reject the contention of Mr. <NAME>.

The view we have taken on the first and the second points, the very interesting and learned discussion on the third point need not detain us and we express no opinion about it.

We allow transferred writ petition of <NAME> and declare that <NAME>, on the date of issue of warrant by the president of India, was not qualified to be appointed as a Judge of <ORG>. As a consequence, we quash his appointment as a judge of <ORG>. We direct <ORG> and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to <NAME>. We further restrain <NAME> from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of <ORG>. We direct the <ORG> to send a copy of this judgment to the President of India for his consideration and necessary action in terms of our judgment. There shall be no order as to costs.

R.P. Petition allowed.


<NAME>, J.

1. This is an appeal, from a judgment and decree of <ORG>, dated the 10th January 1908, which set aside a decree of the Subordinate Judge of Gaya in Bengal, dated the 27th January 1905.

2. The suit was brought by the appellant as plaintiff to obtain possession of a certain share, amounting to 5 annas 1 1/2 pies, in four villages in the Gaya district which are named in the plaint. The appellant's rights are those of a purchaser who bought these properties at a revenue-sale, that is to save sale for arrears of revenue. The appellant pleads that he has received, in his character of purchaser and as from the date of sale, a right which cannot be defeated by the respondent. The respondent was a mortgagee holding a security over the property for money lent thereon, and in respect of this loan the property was sold in execution to him. It is out of this conflict between the rights of the former, who may be called the revenue vendee, and the latter, who was mortgagee and purchaser at the execution-sale, that the suit has arisen.

3. As their Lordships are unable to agree with the views which have been taken with regard to this case, either by the Subordinate Judge or by <ORG>, it is necessary to mention certain dates which are material, and to test crucially what were the rights of parties at those dates.

4. On the 9th August 1886 a mortgage for Rs. 5,000 was granted in favour of the respondent over the shares aforesaid of four out of seventy-one villages. On the 31st May 1899 the respondent obtained a decree on his mortgage-bond, which was made absolute on the following 19th December. He executed his decree, a sale in the ordinary course took place, and on the 19th March, which is the first important date in the case, the mortgaged property was sold, and it was purchased by himself, the mortgagee.

5. Nine days thereafter, namely, on the 28th March 1900, the March instalment of <ORG> revenue on the 71 villages, amounting to Rs. 1,554, fell into arrear, and the whole, including the four which had just been purchased by the mortgagee were notified for sale by the Collector. The situation of matters accordingly then was that, so far as the ownership of the property was concerned, a transaction of sale thereof in favour of the mortgagee as purchaser had in point of fact taken place, and this at a time when, by the use of the ordinary information available as public facts, or upon enquiry with regard to the property purchased, it would have been found that the period of the falling due of revenue was almost at hand, and that proceedings preliminary to a sale in respect of arrears then left/unpaid would inevitably be commenced.

6. The mortgagee, however, did not pay the revenue-which fell of March. Without doing so, he went forward feedings to get the sale to himself in execution of the mortgage confirmed. On the 2 3rd April he obtained a certificate w confirming the sale, the certificate bearing that he " has been declared the purchaser at sale by public auction on the 19th March, 1900. . . . and that the said sale has been duly confirmed by this Court on the 23rd April 1900."

7. It was maintained in argument for the mortgagee that the true meaning of this was that the sale to him did not become a legal fact until the 23rd April. In their Lordships opinion, this is an under-statement and a mis-statement of the mortgagee's rights. It is true that upon that date the sale was confirmed, but what was, as the certificate bears, confirmed, was a sale "by public auction on the 19th March 1900." There seems little reason to doubt that upon the 19th March all the lands sold had been transferred to the mortgagee, and that if there had been any accretions to the property between that date and the date of confirmation, those accretions would have become the property of the purchaser. On the other hand, there seems no legal principle which would leave un-transferred to the mortgagee, any obligations which arose during the same period. Furthermore, if the properties which were the subject of sale were liable to attachment for sums due from the lands as revenue, and falling into arrear subsequent to the actual date of sale, namely, the 19th March 1900, it was not within the legal right of the mortgagee on the one hand to claim as against the mortgagor that the ownership of the property had been transferred, and at the same time to claim against the Government, or in J respect of third parties unconnected with either mortgagor or mortgagee, that the mortgagor had not transferred the rights of ownership to the mortgagee, but himself remained in the position of owner. For the mortgagee to be permitted to say to the mortgagor that the ownership had been transferred, and to say to an outsider, like the Collector of Revenue, that the ownership had not been transferred, is a conclusion not- supported by good sense and, in the opinion of their Lordships, they are not forced to it by any canon or rule of law,

8. If the date of sale be taken as the true and actual date in .fact, which, in their Lordships' opinion, was, as explained, the 19th March 1900, it appears to their Lordships equally clear that what was in fact then sold was the estate itself and nothing other or less than this which might be denominated by the terms " right, title, or interest " of the mortgagor only, or the like. And it would seem to follow as a necessary consequence that when the mortgagee thus became the purchaser and owner of the subjects mortgaged, he was not in a position to maintain as against himself, or as against third parties unconnected with mortgage transactions upon the property, the position that his mortgage still remained an encumbrance thereon.

9. In their Lordships' opinion it is clearly unsafe to apply considerations as to the rights of prior and succeeding mortgagees to questions like the present. For in the present case no question arises as between a first and succeeding mortgagee, and no right or duty emerges with regard to the avoidance of an inequitable priority alleged to arise inferentially by acquisition of the estate. On the 19th March 1900, the crucial date in question, there were no interests of any kind to enter into account or consideration so as to impede the full and complete transfer of ownership of the estate as such.

10. In these circumstances, when the 29th March 1900 was reached, the property which-fell then into arrear of revenue and became liable to subsequent sale was the property in fact and in law of no one but the purchaser, namely, the mortgagee. It is admitted-the concession was logically unavoidable-that if at the sale on the 19th March the mortgagee himself had not purchased, but a stranger or outsider had, then such purchaser would have stood liable for the obligations accruing on the property and been responsible to Government for the payment of revenue and for the consequences which would ensue if the revenue fell into arrear. It seems somewhat difficult to discern why these consequences, which would be inevitable in the case of a stranger purchaser, should be avoided because the mortgagee was purchaser himself.

11. The above considerations seem substantially to dispose of the whole case and lead their Lordships to a conclusion the opposite of that reached by <ORG>, who think that it was possible for a mortgagee to maintain the ownership of the property in himself with an encumbrance which he should use to defeat, or, to use the term which the learned Judges employ as a " shield against" the rights of third parties.

12. Upon this subject it is true that the language of Section 54 of the Act No. 11 of 1859-the Bengal Statute as to sales of land for arrears of revenue-provides that when a share or shares of an estate may be sold ' the purchaser shall acquire the share or shares subject to all encumbrances, and shall not acquire any rights which were not possessed by the previous owner or owners." This provision, however, appears to their Lordships-(1) to confirm the view that what is taken by a revenue vendee is nothing less nor more than what belonged to the former owner, and (2) to negative the idea that it is open to an owner to protect himself as by " a shield" against the consequences of that full transfer by keeping incumbrances alive against the revenue vendee. These incumbrances had become extinct and lost in the mortgagee's overriding right when he became the complete owner of the lands. To keep them alive as sought would introduce confusion into the mechanism of transfer and an insecurity into the rights in real estate which are not warranted by the Act.

13. Their Lordships will humbly advise His Majesty that the judgments of the Courts below be reversed, and that the plaintiff be declared entitled to the lands in suit in terms of the plaint, that possession be delivered to the appellant of the properties in dispute the possession of the respondent being removed, that the name of the plaintiff be caused to be entered in <ORG> accordingly, the name of the defendant being expunged, and his illegal possession removed, and that the cause be remitted to <ORG> for the ascertainment of mesne profits for the period of dispossession up to the date of delivery of possession and for a decree therefor against the respondent. The respondent will pay the costs both here and in the Courts below.