Allahabad High Court

Farzand vs Mohan Singh And Ors. on 20 February, 1967

Equivalent citations: AIR 1968 All 67, (1970) ILLJ 241 All
Author: S Chandra
Bench: S Chandra
ORDER Satish Chandra, J.
1. This petition under Article 226 of the Constitution seeks an information in the nature of quo
warranto requiring Sri Mohan Singh Munsif, Banda, the first respondent to show cause by what
authority he is holding the office of Munsif.
2. The petitioner is one of the defendants to a suit for specific performance of a contract of sale
instituted by respondent Nos 2 and 3 against the petitioner who is alleged to be a subsequent,
purchaser and respondent No. 4, the vendor The suit was filed on 6th of August, 1966, and is
pending before Sri Mohan Singh Munsif, the first respondent Sri Mohan Singh was appointed as a
temporary Munsif on 1-3-1961 under the U P Civil Service (Judicial Branch) Rules 1951 The
petitioner challenges the constitutional validity of these rules. It is urged that the rules being in
violation of the mandatory provisions of the Constitution are void and of no legal effect and
appointments made thereunder to the Judicial Service of the State are illegal. The validity of the
rules was challenged on the fol-lowins grounds:
(1) That the rules had not been framed after consultation with the High Court as required by Article
234 of the Constitution.
(2) That the rules with respect to appointments to the Judicial Service can only be made under
Article 234 of the Constitution and the impuged rules having been expressed to have been made
under Article 309 of the Constitution are invalid.
(3) That consultation to be valid ought to have been done after Article 234 came into existence, anv
prior consultation is of no legal efficacy.
(4) That the Public Service Commission was not consulted prior to the framing of the rules.
(5) That on a true interpretation. Article 234 requires consultation with the High Court for each
appointment and not for making the rules, and the respondents' appointment violated this
condition.
3. The State of Uttar Pradesh has in its counter-affidavit repelled the statements of facts in the
oetition in relation to these contentions It was stated that the rules were framed after due
consultation with the High Court and the Public Service Commission. It was also urged that the
rules were valid notwithstanding that they did not mention that they have been framed under Article
234 of the Constitution.
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4. Before dealing with the various submissions on their merits, it may be observed that the learned
counsel for the petitioner was not right in arguing the case on the basis that the entire burden to
establish the validity of his appointment lay on the shoulders of the respondents. The true legal
position is that in a quo warranto proceeding the petitioner has to establish the claimed invalidity
and then alone can the respondents be required to answer the grounds made fay the petitioner.
5. In Halsbury's Laws oi England 3rd Edition, Vol. II, page 152, Paragraph 289, it is stated that it is
not enough to state in the affidavit supporting the application that the respondent is not entitled to
the office ..... for the objections to the respondent's title are not thereby specified. The applicant (the
incumbent) cannot be called upon to show generally the validity of his election, for the onus is upon
the applicant to show a disqualification in the respondent. In Rex v. Jefferson (1833) 5 B & Ad 855 it
was alleged that a large proportion of the votes cast were bad, but it was not shown for whom the
bad votes were given. In this state of affairs the relief was refused. It is, therefore, evident that the
petitioner has to establish the disqualification or the invalidity in the occupation of the office by the
respondent before the respondent can be called upon.
6. The first submission of the learned counsel was that the U. P. Civil Service (Judicial Branch)
Rules, 1951, violate the mandatory directives of Article 234 of the Constitution. Learned counsel
urged that the rules can be framed only after consultation with the High Court, which means
consultation with all the Judges of the High Court; in fact all the Judges were not consulted and the
alleged consultation was of no value. It was also urged that the consultation within the meaning of
Article 234 can only be at a meeting or conference of the Judges of the High Court and not by the
process of circulation of the subject matter to the Judges individually.
7. For the first question that consultation with the High Court means consultation with the full
Court and not a committee thereof, reliance has been placed by the learned counsel for the
petitioner on the decision of Rajasthan High Court in Prem Nath v. State of Rajasthan, AIR 1966 Raj
26. In this case a Bench of the Rajasthan High Court held that consultation with the High Court
under Article 233 means consultation with the full Court and not with a committee consisting of the
Chief Justice and a few Judges. There is no discussion of the point in this decision and I am unable
to endorse the dicta of the Bench. Article 233 of the Constitution requires the Governor to make
appointments, posting and promotion of the District Judge in consultation with the High Court.
Under Article 234 rules for recruitment to posts other than that of the District Judge are to be made
by the Governor after consultation with the High Court. Under Article 235 control over district
courts including the posting, promotion of and grant of leave to all persons holding any post inferior
to the post of the District Judge is vested in the High Court. This vesting of the control and the
consultation of the High Court is an administrative function of the High Court. There is nothing in
Chapter VI of Part VI of the Constitution in which these Articles occur, either expressly, or by
necessary implication to indicate that the High Court means the whole High Court, that is to say, all
the Judges of the High Court. These articles do not prescribe any procedure how the High Court is to
act in the matter of consultation or in the matter of exercising the control vested in it.
8. The High Court at Allahabad consists of 39 Judges at present. If it be held that the High Court
means all the Judges of the Court, then, the consultation will have to be with all the Judges.
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Similarly the control vested in the High Court under Article 235 will have to be exercised by all the
Judges. Article 233(2) contemplates direct recruitment to the post of District Judges on the
recommendation of the High Court. For such recruitment a large number of candidates running into
hundreds apply and will have to be considered and examined. It will be practically impossible for all
the 39 Judges of the Court to perform the function of screening and examining or interviewing the
various candidates. The Supreme Court has in the State of Assam v Rana Mohammad, Civil Appeals
Nos. 1367 and 1368 of 1966 D/-30-9-1966=(AIR 1967 SC 903) held that the function of transfer is
included in the power of control vested in the High Court by Article 235 and is to be exercised by the
High Court. Matters like grant of leave to or transfer of individual officers will have to be considered
by all the 39 Judges. In the State of West Bengal v. N. N. Bagchi, (1966) 1 SCR 771 = (AIR 1966 SC
447) the Supreme Court has held that the word 'control' in Article 235 includes disciplinary
jurisdiction, and the High Court alone can hold enquiries and impose punishments other than
dismissal or removal (which are included in power of appointment possessed by the Governor). If
the submission advanced for the petitioner be right, all the 39 Judges will have to sit and hold the
enquiry and pass orders. This will involve immense practical difficulties. It may become impossible
to satisfactorily dispose of such matters. So interpreted the provisions will become rigid.
9. The Constitution aims at flexibility. It does not place any of its functionaries in a straight jacket.
10. The Constitution vests the executive power of the Union and the State in the President (Article
53) and the Governors (Article 154). The President and the Governors have by Articles 76(3) and
166(3) been authorised to make rules for the more convenient transaction of the business of the
Government. This is with a view to make the exercise of the executive power conveniently workable
The Constitution in Articles 233 to 237 associates the High Court in certain matters and entrusts to
it certain other powers in respect of the executive business relating to the administration of justice
By Article 225, the Constitution preserves, the powers of its Judges in relation to the administration
of justice in the Court Including power to make any rules of Court. The High Court has thus been
recognised to have the power to make rules of Court to govern the respective powers of the Judges in
relation to the administration of justice in the Court. The rules can provide for the allocation
amongst Judges of the business of the Court relating to the administration of justice as also for the
manner and method of its performance. Such rules will facilitate the carrying out of the function
entrusted to the High Court in respect of administration of justice and would be valid.
11. It was suggested that the term 'High Court' should be construed to mean the whole Court for the
purpose of important matters like appointments and promotion and not for minor questions like
grant of leave or transfer. There is no indication either in the language or the context, or the
legislative history of these Articles that High Court means differently according to whether the
question is of promotion or grant of leave. All these functions vest in the same entity. Article 236
uses the term 'High Court' only once and says that control including posting, promotion and grant of
leave of officers shall vest in the High Court. The same legal personality will, in my opinion, have
power to act in respect of all these mentioned matters. The meaning of the 'High Court' should not
be split up according to the importance of the function. The Constitution by recognising the
rule-making power of the High Court intended to leave this to the High Court itself. By framing
appropriate rules the High Court would lay down as to which function will be performed by the
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whole Court, that is to say by all the Judges, and which one by committees consisting of lesser
number of Judges, or even individual Judges.
12. Learned Counsel placed reliance on the Supreme Court decision in High Court of Calcutta v.
Amal Kumar, AIR 1962 SC 1704 for the submission that the High Court cannot delegate functions
entrusted to it to any committee. In my opinion this decision is no authority for that proposition.
There a Munsif challenged the action of the High Court in deferring consideration of his case for
promotion to the post of subordinate Judge. One submission was that the English Committee of the
Calcutta High Court had passed the order and that the English Committee had no jurisdiction to do
so. The Supreme Court held that this argument was advanced on the assumption that the High
Court as such had delegated its power under Article 235 of the Constitution to the English
Committee. The Supreme Court rejected the submission. It held that there was no allegation in the
plaint that the resolution of the English Committee was not adopted by the full Court in accordance
with the rules of business laid down by that Court It also held that in accordance with the rules of
the Court the English Committee made recommendations which had to be placed before all the
Judges of the High Court under the rules. It then held that there was no basis for the submission
either that the High Court had made unjustifiable delegation of the power under Article 235 of the
Constitution or that the High Court as a whole did not pass the order which was the alleged cause of
action.
13. The Supreme Court has not in this case either expressly or by any implication given its approval
to the assumption on which the argument was advanced that the High Court cannot delegate its
power under article 235 of the Constitution to a committee. The Supreme Court dealt with the
argument in the form in which it was advanced and rejected it on the preliminary ground that the
argument does not arise because there was no factual foundation for it in the pleadings under the
rules of the Court. No occasion, therefore, arose for the Supreme Court to consider the question of
the correctness of the assumed basis that the allocation of such a power to a committee would either
be a delegation of powers or that such delegation would be illegal or unconstitutional They have
nowhere held that under Article 235 the High Court means the whole High Court that is to say, all
the Judges of the Court.
14. There is nothing in the decision of the High Court in Chandra Mohan v. State of Uttar Pradesh,
AIR 1966 SC 1987 to suggest that the High Court in these Articles means the whole court. The
Supreme Court held that under the Higher Judicial Service Rules the Governor prescribes the
qualification. The Selection Committee appointed by him selects the candidates. The Governor in
effect and in substance does not consult the High Court but only consults its selection committee.
The mentioned Selection Committee was to be appointed under the rules framed by the Governor.
That was not a committee of the High Court. There is no suggestion anywhere in the judgment of the
Supreme Court that if the Governor consults the High Court, a committee of the Judges of the High
Court cannot lawfully act for the Court. It does not advert to the rules of the Court relating to the
administrative business of the Court. This decision, therefore, cannot be pressed in service for the
submission that the High Court means the whole court or that the rules of the Court cannot make
provision for allocation of the administrative business of the Court.
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15. Assuming, however, that the requisite consultation has to be with the whole Court, the next
question is whether the petitioners have established that these 1951 rules were framed without
consulting the whole Court. For this purpose learned counsel for the petitioners placed reliance
upon the facts mentioned in the counter-affidavit filed by the State. From that it appears that prior
to 1952 there were two sets of rules governing the recruitment and conditions of service of Members
of the U. P. Civil Services (Judicial Branch). One was the U P. Civil Services (Judicial Branch)
Recruitment Rules, 1940 and the other was U. P. Civil Services (Judicial Branch) Conditions of
Service Rules, 1942. The State Government considered it advisable to have a combined set of Civil
Service Rules for the U. P. Civil Service Judicial Branch and to constitute a separate set of service
Rules in respect of the post of District Judge. The U P Civil Service (Judicial Branch) was to
comprise the posts inferior to that of a District Judge. It framed a draft set of rules for both the
proposed services and sent them to the High Court and the Public Service Commission for their
comments on 29-7-1949. In the letter the Government indicated that. the constitution of a Higher
Judicial Service and the steps proposed for getting a better type of recruit for the lower judicial
service will entail changes in the existing service rules for the United Provinces Civil Service
(Judicial Branch), which has at present rules for 'recruitment' and 'conditions of service' The letter
further stated that the tentative proposals for a combined set of service rules for United Provinces
Civil Service (Judicial Branch) as it will become on the establishment of a Higher Judicial Service,
were enclosed in the second set of draft rules which were also for favour of the comments of the
High Court/ Commission.
16. Along with his reply dated 7th October, 1949 the Registrar of the High Court forwarded the
comments of the Court on the draft rules of the United Provinces Higher Judicial Service and
"amendments to the U P. Civil Services (Judicial Branch) (Recruitment) and (Conditions of Service)
Rules". Some argument was made on the language of this letter. It was submitted that the High
Court considered and sent its comments to the Government on the amendments to the pre-existing
rules for recruitment and conditions of service, and not to the draft of the combined set of rules for
U. P. Civil Services (Judicial Branch). This letter of the Registrar was in reply to the Government's
letter dated July 29, 1949. It is to be read in the light of the contents of the letter of the Government.
There is no suggestion in the present petition that the Government had made amendments to the
pre-existing recruitment and conditions of service rules, apart from the combined set of service
rules. The Government had sent no such amendments to the High Court. The Registrar's letter
cannot hence be made tht basis of the suggestion that the High Court was consulted in respect of
only the amendments to the pre-existing rules. On a fair read-Ing of this letter it appears that the
reference was to the combined set of service rules mentioned in the Government letter of July 29,
1949.
17. Annexure III to the counter-affidavit is the reply from the Public Service Commission that the
Commission had considered the draft rules for the United Provinces Civil (Judicial) Service and was
sending its comments. Thereafter correspondence ensued between the State Government and High
Court on the one hand and the State Government and the Public Service Commission on the other,
in respect of these rules. The State Government finalised the rules and on 2-1-1951 sent the final
draft of the rules to the High Court for its comments. Tht Registrar of the High Court on 1st of
February, 1951 forwarded to the Government the comments of the High Court on the final draft
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rules. Thereafter the rules were published in the Gazette under the notification dated 29th
September, 1951. These rules called the U. P Civil Service (Judicial Branch) Rules, 1951 came into
force with effect from August 20, 1952 The preamble of the rules states that in exercise of the powers
conferred by the proviso to Article 309 of the Constitution of India the Governor of Uttar Pra-desh
makes the following rules regulating recruitment to posts in. and the conditions of service of person
appointed to, the Uttar Pradesh Civil Service (Judicial Branch).
18. From this correspondence it is clear that the Government referred the proposed rules to the High
Court for its comments. It forwarded the finalised set of rules again to the High Court for its
consideration. The communication was to the High Court, The consultation hence was within the
High Court as such, and not with any individual judge or any committee of the High Court. In
paragraph 12 of the petition the allegation that there was no consultation with the full Court has
been based only on the aforesaid correspondence. In paragraph 14 of the petition it is stated that
Article 234 does not contemplate consultation with a committee of Judges or with one or two
individual Judges of the Court. But it is nowhere alleged that the consultation was in fact made by
the Government only with some individual Judges or with any committee of the Court. In the
absence of any positive allegation in this behalf, the respondents could not be expected to make any
detailed answer to this point or to furnish any information as to whether all the Judges of the High
Court gave their opinion. The State Government was under a duty to consult the High Court. In
discharging this duty it could only refer the rules to the High Court in order to consult it and ask the
Court's opinion. If the Government did this, it complied with the constitutional requirement of
consulting the High Court. The State Government could not predicate as to how the High Court will
deal with the matter The same view was taken in V. K. Kulkarni v. State of Mysore, AIR 1963 Mys
303. On the materials, the conclusion is inescapable that the rules were framed after consultation
with the High Court.
19. It was urged that the State Government's letter dated January 2, 1951 forwarding the enclosed
draft set of rules was addressed to Hon'ble Mr. Justice V. Bhar-gava. From this it was sought to be
inferred that the Government consulted only Mr. Justice Bhargava and not the Court. If this fact had
been alleged in the petition, some explanation might have been forthcoming from the respondent's
side. The reply dated February 1, 1951 by the Registrar makes it clear that the matter was considered
by the Court because he forwarded the views of "the Court" to the State Government.
20. Learned counsel for the petitioner relied upon Chapter XXIII of the Rules of the Court as it
existed in 1949, and urged that thereunder only the English Committee of the Court acted for the
Court in matters like recommendations as to the changes in the law etc. The learned counsel has
completely misapprehended the Rules of the Court. Chapter XXIII nowhere mentions an English
Committee Rule 6 requires the matters mentioned in it to be referred to an English meeting. Under
Clause (d) of Rule 6, matters upon which the Government desires the opinion of the whole Court are
to be referred to an English meeting. Obviously English meeting can only be of the whole Court, that
is to say of all the Judges of the Court. It is a well known fact that English meeting in those days
consisted of all the Judges. Under rule 14, English meeting is to be called by the Chief Justice when
there is business to be disposed of at an English meeting. Under Rule 15 the Registrar has to give to
each Judge at least one clear day's notice of the meeting. There is no provision in the rules for any
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committee consisting of lesser number of Judges. All these aspects show that the English meeting
was of all the Judges of the Court.
21. The rules contained in Chapter XXIII of the Rules of the Court were substituted by a new set of
rules with effect from 30th April, 1949. This new set of rules contemplated an Administrative
Committee consisting of the Chief Justice and six other Judges. Under Rule 9 of this Chapter, all the
Judges of the Court have to be consulted, inter alia, in respect of proposed changes in the law by
Clause (a), and in matters which the Administrative Committee considers fit to be laid before them
for consideration under Clause (i). The change in the service rules was a change in the law and came
under Clause (a) of Rule 9 of Chapter XXIII. Under the rules, all the Judges of the Court had to
consider the matter. On the basis of these rules, therefore, it cannot be urged that all the Judges of
the Court were not required to be consulted in the matter of framing of the rules for the U. P. Civil
Service Judicial Branch.
22. The High Court Rules were repealed and re-enacted in 1952. The re-enacted set of rules came
into force on the 15th day of September, 1952, that is after the Civil Service Judicial Branch Rules
had been framed, published and also enforced with effect from August 20, 1952. These new rules,
therefore will not govern the matter. But assuming that they did, the position is not different
because the relevant rules are contained in Chapter III of the Rules and are to the same effect as
Chapter XXIII of the old rules after its amendment in 1949. On the basis of the rules, therefore, it
cannot successfully be urged that the whole Court was not consulted.
23. It was next urged that consultation within the meaning of Article 234 can only be at a meeting or
conference of the Judges of the Court and not by the process of circulation to individual judges. This
pre-sup-poses that the matter was dealt with in the High Court by the process of circulation, and not
at a meeting of the Judges. There is no averment to this effect. The requisite factual foundation for
this submission not having been laid in the petition, I do not consider it necessary to deal with it any
further.
24. The next point that needs consideration is whether the rules have been framed under Article 234
of the Constitution. The preamble to the rules states that they have been framed in the exercise of
the powers conferred by the proviso to Article 309 of the Constitution, and that they relate to the
recruitment and conditions of service. Under the proviso to Article 309 the Governor could
legitimately frame rules governing the conditions of service. Article 234 requires the Governor to
consult the High Court before making the rules for recruitment. The Governor, therefore had the
requisite power to frame rules regarding recruitment. The question is whether the non-mention of
Article 234 of the Constitution in the preamble invalidates them. In my opinion, the answer should
be in the negative. There is ample authority for it.
25. In Afzal Ullah v. State of Uttar Pradesh, AIR 1964 SC 264 certain bye-laws were made by a
Municipality under Section 298(2) Clauses A(a), (b) and (c). It was held by the Supreme Court that,
"The validity of the bye-laws must be tested by reference to the question as to whether the Board
had the power to make those bye-laws If the power is otherwise established the fact that the source
of the power has incorrectly or inaccurately been indicated in the preamble to the bye-laws, would
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not make the bye-laws invalid {vide P. Balakotlah v. Union of India, AIR 1958 SC 232, 236)."
26. Similarly in Gopal Narain v. State of Uttar Pradesh, 1964 All LJ 479=(AIR 1964 SC 370) the
Supreme Court held that.
"That question of the validity of the tax depends upon the existence of power to tax in respect of a
subject. The Municipal Board had certainly power to impose the scavening tax. The mention of
Clause (xii) in the notification appears to be a mistake for Clause (xi) and that does not affect the
power of the Municipal Board to impose the tax."
In another case the Supreme Court ruled that the principle is well settled that the exercise of the
power will be referable to a jurisdiction which confers validity upon it and not to a jurisdiction under
which it will be a nugatory, Hazarimal v. I.-T. Officer, AIR 1961 SC 200(202).
27. In yet another case, the Supreme Court held that rules purporting to have been made under one
provision, were partly sustainable under that provision, but the other part subserved the purpose of
another provision which was not mentioned nonetheless the rules would be valid because the two
powers will concur to sustain them, E. M. Muthappa Chettiar v. I.-T. Officer, AIR 1961 SC 204.
Similar views were expressed by a Division Bench of this Court in State of U. P. v. O. P. Sharma,
1964 All LJ 764. The Governor had power to frame rules relating to recruitment under Article 234
and about conditions of service under the first proviso to Article 309. The impugned rules being in
respect of both matters are valid because both powers will concur to sustain them and the mere
non-mention of Article 234 in the preamble will not affect their validity. The only effect of
non-mention of Article 234 would be that no presumption could be raised that the High Court was
consulted The respondents do not rely on any presumption. They have sought to establish the fact
by evidence.
28. The third submission of learned counsel was that consultation under Article 234 could only be
after 26-1-1950. when the Constitution came into force. The process of consultation commenced in
1949 and was of no legal value as Article 234 was not in existence then. I am unable to endorse this
submission. The Government consulted the High Court in 1951 afresh, on the finalized draft set of
the rules. That satisfied Article 234. Moreover, the Government of India Act, 1935 by Article 255,
also similarly required consultation with the High Court. The consultation in 1949 was hence under
valid legal authority. Section 6 of the General Clauses Act read with Article 387 of the Constitution
will save the validity of these pre-constitution proceedings.
29. The facts mentioned above show that the Public Service Commission was in fact consulted.
There is hence no merit in the fourth point raised by learned counsel.
30. The next submission of the learned counsel was that under Article 234, of the Constitution the
Governor has to consult the High Court and the Public Service Commission for each appointment
and not for framing the rules relating to recruitment. The question is whether the consultation
referred to in Article 234 is with reference to the "appointments" mentioned at the beginning of the
Article, or to, the framing of the rules The language of Article 234 is not amenable to the
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interpretation that the consultation has to be for both of them i.e. for appointments as well as for
making of the rules. The legislative history of the Article can usefully be looked into to throw light on
the intention of the legislature. The Supreme Court has outlined the Development of the law on this
matter in detail in 1966-1 SCR 771 = (AIR 1966 SC 447). Hidayatullah, J. pointed out that the
Islington Commission in its report referred to the question of the separation of the executive from
the judiciary. The Government of India Act, 1915 did not make any provision for this separation. The
question of the independence of the judiciary was considered by the joint committee when the
Government of India Act, 1935 was on the anvil. The Committee recommended the separation of the
subordinate judiciary. As a result, the Government of India Act, 1935 contained special provisions
(Articles 254-256) with regard to District Judges and the subordinate judiciarv Article 255(1) of that
Act provided.
"The Governor of each Province shall, after consultation with the Provincial Public Service
Commission and with the High Court, make rules defining the standard of qualifications to be
attained by persons desirous of entering the subordinate civil judicial service of a province."
This Article was a part of Chapter 2 of Part X which dealt with the Civil Services generally. Thus the
first step for achieving the independence of subordinate judiciary was taken. The Governor was to
frame rules in consultation with the High Court for defining the standard of qualification for the
subordinate Civil Judicial services. The consultation was for making the rules. When the
Constitution came to be drafted an advance was made in two respects. The provisions about
subordinate judiciary were separated from Part XIV of the Constitution which dealt with the services
under the Union and the States, and were incorporated in Part VI immediately after the provisions
relating to the High Courts. Secondly, the High Court was associated with the entire matter of
recruitment to the subordinate judicial service.
This included not merely the standard of qualifications, but also the method of recruitment as well
as the manner of appointment to the Service that is by probation and confirmation. The idea was to
make progress towards the goal of independence of the subordinate Judiciary. Under Article 235 of
the Government of India Act, the consultation with the High Court was for making of the rules. The
same scheme was continued by the Constitution, but the scope of the rules was enlarged. The
intention was to make consultation with the High Court compulsory at the stage of the framing of
the rule and (not?) merely at the time of individual appointment. The submission of the learned
counsel, of accepted, would mean that the Governor need not consult the High Court in the matter
of making the rules for recruitment. That will, instead of advancing the manifest intention of
securing independence of the subordinate judiciary, set the clock bark.
31. The intention behind taking out the provisions relating to subordinate courts from Part XIV of
the Constitution and putting them in Part VI, seems to be to make the consultation with the High
Court in the matter of framing of the rules, really effective and thus to secure the independence of
the subordinate Judiciary from executive (See AIR 1966 SC 1987 (Para 14)). Under the proviso to
Article 309 the Governor is competent to frame rules relating to recruitment as well as condition of
service. The rules made by the Governor operate only until a provision in that behalf is made by an
Act of the Legislature. The legislature while making an Act under Article 309 is not required even by
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Article 234, to consult any one. The provision for consultation with the High Court would become
nugatory as soon as the legislature acted to enact. To avoid this and to keep the rules governing
recruitment to the judicial service outside the purview of the State legislature, Article 234 was taken
out of Part XIV which includes Article 309. Article 309 is "subject to the other provisions of the
Constitution", which means and includes Article 234. Article 234, on the other hand, is not subject
to any other provision of the Constitution. The rules, made under Art 234, will hence not be subject
to any Act of legislature made under Art, 309. Then again, if the Governor alone was to frame the
rules for recruitment to the judicial service, there was no point in making this invidious distinction
between the rules for the judicial and the other services This distinction became necessary because
the rules for the Judicial Service were to be framed in consultation with the High Court. All these
aspects of the matter lead to the inevitable view that Article 234 requires consultation with the High
Court only in the matter of the making of the rules.
32. Learned counsel for the State referred me to the decision of Rajagopala Ayyangar, J. in N.
Devasahayam v. State of Madras, AIR 1958 Mad 53. In paragraph 24 his Lordship has with
reference to Article 234 pointed out that.
"The absence of a comma, or other punctuation mark in the Article which may serve to specify "the
appointment" as the event which required the consultation appeared to me very significant. In the
absence of any panctuation mark the grammar of the Article seemed to point to the consultation
referred to being in relation to the making of the rules."
His Lordship further drew support from Article 237 of the Constitution. He observed:
"It (Art- 237) refers to the 'foregoing' provisions of this Chapter and any rules made thereunder, and
there is no other article in the chapter which refers to any rules made under it except Article 234.
The reference to the rules in Article 237 must, therefore, have been to the rules made under Article
234, which necessarily meant (a) that the rules might be made under Article 234, and (b) that these
rules required prior consultation of the authorities named before they are made."
33. In Bagchi's case, 1966-1 SCR 771 = (AIR 1966 SC 447) also, the Supreme Court read Article 234
in the same way. Referring to Articles 233 and 234, Hidayatullah, J. observed at page 779 (of
SCR)=(at p. 450 of AIR):
"They also provide for special rules to be made by the Governor of the State after consultation with
the State Public Service Commission and the High Court exercising jurisdiction in relation to each
State."
Later on at the bottom of page 786 (of SCR)= (at p 454 of AIR) his Lordship observed:
"In the case of the Judicial service subordinate to the District Judge the appointment has to be made
by the Governor in accordance with the rules to be framed after consultation with the State Public
Service Commission and the High Court....."
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It is true that Article 234 was not up for interpretation before the Supreme Court, but nonetheless
the observations are clear and cogent Article 234 was read in the same manner by the Supreme
Court in AIR 1968 SC 1987 (at p. 1993 2nd Col. bottom). In my opinion, the learned counsel for the
petitioner is not right in contending that the High Court must in view of Article 234, be consulted for
each appointment of a person to the judicial service.
34. The second limb of this argument relates to Rule 21 of the Rules. Rule 21 provides that the
Governor shall consult the High Court and shall, after taking into consideration the views of the
High Court, select candidates for appointment. It is urged that the appointment of the respondent
was not made after consulting the High Court. I may again observe with regret, that this submission
has been made without any such averment in the petition. It has nowhere been said that the
appointment of the respondent had been made without consulting the High Court. This apart,
Sub-rule (2) of Rule 32 of the rules provides a saving clause. It says:
"When in his opinion it appears necessary to do so the Governor may make any appointment to the
service in relaxation of these rules and in case of any appointment which is not in strict accordance
with the rules the Governor shall be deemed to have made the appointment in relaxation of the
rules."
The position, therefore, is that if there has been any breach of Rule 21, the appointment will be
deemed to have been made in relaxation of the said rule. The appointment, therefore, cannot be
held to be illegal in that ground.
35. In some of the other writ petitions which were also heard along with this one, the incumbent is
occupying the post of Civil Judge. In those petitions (Nos. 3386 of 1966. 3712 of 1966, 3788 of 1966,
3790 of 1966, 3943 of 1966, 4214 of 1966 and 4221 of 1966) the only ground taken was that the rules
were invalid and hence also the appointment to the service At the hearing, learned counsel urged
that appointment to the service is made on the post of Munsif. Thereafter the officer is promoted to
the post of Civil Judge Under Article 235 of the Constitution 'promotion' vests exclusively in the
High Court The promotion of the respondent officer not having been done by the High Court, he
could not validlv occupy the port of Civil Judge This submission again was made without any
averment in the petition that the High Court did not pass the requisite order or that some one else
did. In the circumstances the submission cannot be entertained. Thus, all the submission are
without merit.
36. The petition fails and is dismissed with costs.
Farzand vs Mohan Singh And Ors. on 20 February, 1967
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