http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: SHRI P.K. SARIN & ANR. ETC. ETC.

       Vs.

RESPONDENT: STATE OF U.P. & ORS. ETC.

DATE OF JUDGMENT14/12/1994

BENCH: A.M. AHMADI, CJI. & MADAN  MOHAN PUNCHHI, JJ.

ACT:

HEADNOTE:

JUDGMENT: PUNCHHI, J.: 1.    This bunch of matters comprising a Civil Appeal and  a few  writ  petitions under Article 32 of  the  Constitution. have  a  common.  aim  and  therefore  can  conveniently  be disposed  of  by  a common order.  Necessary  facts  can  be gathered from the Civil Appeal focussing the issue. 2.     The appellants are members of the U.P. Civil  Service (Judicial Branch) "Nyayik Sewa". They were writ  petition’rs in  one  of  the many writ petitions  preferred  before  and disposed of by the Allahabad High Court. governing  judgment of which is in Dinesh Chander Srivastava & Ors. v. State  of U.P. reported in AIR 1977 All. 310.  In sum that judgment is under  appeal.  The cause settled therein was the one  which arose  as  an aftermath of Chandra Mohan v. State  of  Uttar Pradesh & Others [1967(1) SCR 77] and the steps taken by the State of U.P. in pursuance thereof. 3.    Candidates for recruiting District Judges in the State of  Uttar  Pradesh. under the U.P. Higher  Judicial  Service Rules.  framed  by the Government under Article 309  of  the Constitution. could be drawn from flu’ sources i.e.  members of the Bar. Judicial Officers (a misleading expression)  who are   members  of  the  Executive   Department   discharging magisterial  and some revenue duties. and by promotion  from members  of U.P. Civil Services (Judicial Branch) under  the control of the High Court. Six appointments from two of  the afore-described services. i... three from the Bar and  three from the "Judicial Ofticrs" were proposed to be made by  the State. after involving the High Court. when Chandra Mohan. a member  of  the  U.P. Civil Service  (Judicial  Branch)  and others  filed  a  writ petition in the High  Court  for  the issuance of an appropriate writ directing the Government not to make the appointments pursuant to the proposal. Since the writ  petition was dismissed and the matter was  brought  to this Court in appeal. the canvass of dispute. on account  of many  points  involved.  was  widely  spread.  but  for  our purposes it would suffice to say that this Court ruled  that the  Rules as such framed by the Governor empowering him  to recruit  Judges  from the "Judicial  Officers"  source  were unconstitutional  and  the  recruitment  of  the   "Judicial Officers" was bad. It was emphasised by this Court that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

Indian   Constitution  had  provided  for   an   Independent Judiciary in the States and in order to put the independence of the subordinate judiciary beyond question. provision  had been  made in Article 50 of the Constitution in the  Chapter of Directive Principles for the Separation of the  judiciary from the executive. and further in enacting Articles 233  to 237  in  Part  VI.  Chapter  VI  of  the  Constitution.  the appointment of District Judges in any State was envisaged to be made only from two sources i.e. (i) Service of the  Union or  of  the State; and (ii) members of the Bar.  This  Court went  on  to rule that the Service of the Union  or  of  the State men- 182 tioned  in  the first category did not mean each  and  every service of the Union or of the State but judicial service of the Union or of the State. "Judicial Service" as defined  in Article  236(b)  meant 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. 4.     Gathering the history of the Service, it was  noticed that after India attained independence in 1947, there  were, when the source’ of recruitment of Indian Civil Service  had died  out,  only two sources from which District Judges  had been  recruited, i.e., either from the Judicial  Service  or from  the  Bar,  and there was no case of a  member  of  the executive having ever been promoted as a District Judge.  In this  backdrop, it was thought that recruitment of  District Judges  from  the  personnel  available  in  the   Executive Department  could  be deleterious to the good  name  of  the judiciary, and an attempt to undermine it had to be  frowned upon.  In  this backdrop, it was viewed by this  Court  that methodology  under  Article  237  of  the  Constitution  was available  where the Governor had the power to  notify  that Articles 223 to 226 could apply to Magistrates, subjected to certain modifications or exceptions, if necessary,  and then effect  integration  of  the  Magistrates  in  the  Judicial Service,  which is one of the sources of recruitment to  the post  of District Judges. It was emphasised that  till  such step  is taken in the manner envisaged by Article  237,  the Magistrates  (Judicial Officers) were outside the  scope  of Articles 223 to 226 of the Constitution.  In sum, under  the rules  then existing, the State of Uttar Pradesh  could  not justify the appointments of "Judicial Officers" as  District Judges and attracted a mandamus issued by the Court for  not making    any    appointment    from    the    source     of Magistrates/Judicial  Ofricers.   The Rules  flamed  by  the Governor, without resort to Article 237,  empowering him  to recruit  District Judges from the "Judicial  Officers"  were thus    declared   unconstitutional   and   therefore    the appointments  of  the  concerned  "Judicial  Officers"  were declared bad. 5.     The  State of Uttar Pradesh went about  clearing  the fail out of Chander Mohan’s case since the High Court on the administrative  side was also anxious to do justice  tO  the Magistrates/Judicial  Officers. We would in the language  of the  High  Court,  say that the Governor  of  Uttar  Pradesh issued the notification dated March 12, 1975, under  Article 237  of  the Constitution directing that the  provisions  of Chapter VI of Part VI of the Constitution and any rules made thereunder  shall with effect from the date of  notification apply  to  Judicial Magistrates  (including  Chief  Judicial Magistrates)  in  the  State who are  members  of  the  U.P. Judicial  Officers  Service  as they apply  in  relation  to persons  appointed  to  the Judicial service  of  the  State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

subject  to two exceptions, namely, (1) the members  of  the U.P.  Judicial Ofricers Service shall constitute a  judicial service  to  fill in the post of Additional  Sessions  Judge only   for  purposes  of  Articles  233  and  236   of   the Constitution and (2) the U.P.Judicial Officers Service shall be  a  service  distinct and separate from  the  U.P.  Civil Service (Judicial Branch). By means of this notification the Judicial  Magistrates  who  are  members  of  the   Judicial Officers Service have become eligible for appointment to the post  of  Additional  Sessions  Judge  included  within  the definition of "District Judge" as defined by Article 183 236  of the Constitution. The notification further  declares that  the  Judicial  Officers Service shall  be  a  judicial service. 6.      By  another notification dated March 21,  1975,  the Governor  of Uttar Pradesh in exercise of his  powers  under Article 309 read with Article 233 of the Constitution framed rules, namely, the U.P. Higher Judicial Service Rules, 1975, regulating  recruitment and appointment to the  U.P.  Higher Judicial  Service.   Under R.4 the Higher  Judicial  Service consists of a single cadre comprising the posts of  District and  Sessions  Judges and Additional District  and  Sessions Judges.  Rule 5 lays down the sources of recruitment to  the service:  according to it, recruitment to the service is  to be made by two sources (a) by direct recruitment of pleaders and advocates of not less than seven years standing and  (b) by  promotion of confirmed members of the U.P.  Nyayik  Sewa (Members of the U.P. Civil Service, Judicial Branch) who may have put in not less than seven years service in that cadre. In  addition  to  that  Judicial  Magistrates  and  Judicial Officers  have  also been mad eligible for  appointment  but only  to  the  post of Additional  Sessions  Judge.  Rule  6 prescribes  quota  for recruitment to the service  from  the three sources prescribed by R.5. The rule lays down that 70% of  the vacancies are to be filled in by promotion from  the members  of the Nyayik Sewa, while 15% of the vacancies  are to  be  filled by direct recruitment of  Advocates  and  the remaining  15%  of  the vacancies are to  be  filled  in  by promotion  from  amongst the members of  the  U.P.  Judicial Officers Service (Judicial Magistrates). 7.      In  Part VI of Chapter VI of the  Constitution,  the word "Magistrate", though employed, in Article 237, does not figure  to be defined and thus inevitably resort has  to  be made  to Section 3(32) of the General Clauses Act,  1897  to note   that  a  "Magistrate"  shall  include  every   person exercising all or any of the powers of the Magistrate  under the Code of Criminal Procedure for the time being in  force. Coming  to  the  Code of Criminal Procedure,  1973,  as  now existing,  we have Courts and Magistrates  classified  under section  6 thereof, the latter as Judicial  Magistrates  and Executive Magistrates, and the Court of Session heading  the classification.  Section  9  provides  that  very  Court  of Session shall be presided over by a Judge to be appointed by the  High Court. The High Court may also appoint  Additional Sessions  Judges and Assistant Sessions Judges  to  exercise jurisdiction   in   a  Court  of  Session.   The   Executive Magistrates have roles and functions assigned to them  under the Cod such as undertaking proceedings under sections  107, 108,  109,  110,  111, 133, 133  and  145  Cr.P.C.  Judicial Magistrates,  on  the other hand, are assigned  their  roles under the Code primarily of trial of offences, as  envisaged under section 26 of the Code. 8.     The High Court rcorded its understanding of  the  new role of the Magistracy alter the 1973 Code in paragraph 9 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

its judgment as follows:               "The   Code  of  Criminal   Procedure,   1973,               conferred  power on the High Court to  appoint               Sessions  Judge, Magistrates,  Chief  Judicial               Magistrate  and  Special  Magistrates  and  to               confer  Magisterial  powers on any  person  or               authority.  Under the new Code, the  Executive               has  nothing  to do with  the  appointment  of               Magistrates. In pursuance of the provisions of               the Code of Criminal Procedure, 1973, the High               Court of Allahabad appointed Chief               184               Judicial Magistrates and the Magistrates’ with               effect from l st April, 1974.  The persons  so               appointed  are  the  same  persons  who   were               earlier  functioning as  Judicial  Magistrates               who  had  been appointed by the  Governor  and               were  functioning as Judicial Officers.  After               their  appointment by the High Court,  control               over the Magistrates vested in the High Court.               The Governor in order to effectuate the policy               underlying  An.50 of the  Constitution  issued               the  impugned notification dated  12th  March,               1975  applying all the provisions of Chap.  VI               of Part VI of the Constitution to the existing               class   of  Magistrates.  The  intention   and               purpose  behind the issue of the  notification               is to make the Magistracy free from  Executive               influence  and  to  make  them  part  of   the               Judicial Service of the State along with Civil               Judiciary"               9.     At this place, Articles 233, 234,  235,               236  and 237 from Part VI, Chapter VI  of  the               Constitution may be read with advantage:               "233.  APPOINTMENT OF DISTRICT JUDGES - ( 1  )               Appointments of persons to be and the  posting               and promotion of, dialrig Judges in any  State               shall be made by the Governor of the State  in               consultation  with the High  Court  exercising               jurisdiction in relation to such State.               (2)  A  person not already in the  service  of               Union  or of the State shall only be  eligible               to  be  appointed  a  district  judge  if   an               advocate  or a pleader and is  recommended  by               the High Court for appointment."               "234.   RECRUITMENT  OF  PERSONS  OTHER   THAN               DiSTRICT  JUDGE  TO  THE  JUDICIAL  SERVICE  -               Appointment  of  persons other  than  district               judges  to  the judicial service  of  a  State               shall be made by the Governor of the State  in               accordance  with  rules made by  him  in  that               behalf  after  consultation  with  the   State               Public  Service Commission and with  the  High               Court  exercising jurisdiction in relation  to               such State.’ ’               "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  the               High Court, but nothing in this article  shall               be  construed  as taking away  from  any  such               person any right of appeal which he may  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

             the  law  regulating  the  conditions  of  his               service  or as authorising the High  court  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    course   court,   chief    presidency               magistrate.   additional   chief    presidency               megistrate   ,  sessions   judge.   additional               sessions judge and assistant sessions judge;               (b) the expression ’judicial service’ means  a               service  consisting  exclusively  of   persons               intended  to fill the post of  district  judge               and other civil judicial posts inferior to the               post of district judge."               "237.  APPLICATION OF THE PROVISIONS  OF  THIS               CHAFFER   TO  CERTAIN  CLASS  OR  CLASSES   OF               MAGISTRATES  -  The  Governor  may  by  public               notification   direct  that   the    foregoing               provisions of this Chapter and any rules  such               date as may be fixed by him in that               185               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.’’ 10.   Much before the issuance of the impugned  notification the  Government  by notification dated  September  30,  1967 issued  under Article 237 of the Constitution, had  directed separation  of  the Judicial  Magistrates/Judicial  Officers from  the   Executive who were thereafter placed  under  the Administrative control and superintendence of the High Court with  effect  from  October  2,  1967.  The  Government,  it appears,  stopped  thereafter recruitment  to  the  Judicial Officers  service.   On  the other hand  they  continued  to remain  ineligible  for appointment to a post  in  the  U.P. Higher  Judicial Service by the dictate of  Chander  Mohan’s case.  The  Judicial  Officers service  thereupon  became  a suffocated and dying cadre. as members of that service  were left  with no avenues of promotion even though most of  them had  sufficient  experience of criminal judicial  work.  The High Court appreciated their predicament and moved into  the matter.  The State Government on the recommendations of  the High  Court thought it prudent to utilize the experience  of the Judicial Magistrate trying criminal cases and  providing to  them  avenues of promotion. With that end in  view.  the State  of U.P. issued the two notifications impugned  before the High Court. as also here, the effect of which, was  that the  Judicial Officers became eligible for appointment  only to  the  post  of Additional Sessions Judge  only.  and  the Judicial  Officers  Service  was  declared  as  a   Judicial Service. becoming a third source for recruitment under  Rule 6.  getting  a quota of l 5 per cent. But, in the  event  of non-availability of the prospective candidates or exhaustion of   their   members,   the   quota   meant   for   Judicial Officers/Judicial Magistrates was to go to add to the  quota of  the  U.P.  Civil Services  (Judicial  Branch)  vis-a-vis direct  advocate recruits. Thus in the nature of things,  it was  a  self consuming measure, working itself  out  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

foreseeable future. 11.    Article 237 of the Constitution enables the  Governor to  apply  the provisions of Chapter VI of Part  VI  of  the Constitution and any Rules made thereunder, to certain class or  classes  of Magistrates and not to any  other  class  or classes of Officers. This is a ladder upon which a class  or classes of Magistrates in the State can be made to climb and get transformd, with effect from a certain date, as  persons appointed  to  a Judicial Service of the State.  subject  to such exceptions and modifications as may be specified in the notification.  The  Constitution  recognizes  the   judicial element permeating in the Magistracy, for they deal with the liberty and property of individuals, functioning as criminal courts. To put it tersely magistracy alone is recognized  as judge-material  meant  for such transformation. Now  in  the impugned  notification,  it is clear  that  the  promotional avenues  of  the  Magistrates  stop  at  the  level  of  the Additional  Sessions Judge. a court which is a  creation  of the   Code  of  Criminal  Procedure.  In  no  way  is   this designation  confused with that of the  Additional  District Judges.  Under Article 236, which is the interpretation  box for  Chapter VI. the inclusive definition of the  expression "District Judge"’ includes an Additional Sessions Judge  but only for the purposes of the Chapter. and not for any  other purpose. The Additional Sessions Judge is a "District Judge" for the limited purpose of his appointment as 186 District Judge in terms of Article 233 of the Constitution. 12.   As is evident the domain of the present litigation  is confined  to  the  members  of  the  U.P.Judicial   Officers Service,  recruitment to which was stopped after October  2, 1967.   The  service  thenceforth  became  subject  to   all subtractions  but  no  addition. The sweep  of  Article  237 covers  Magistrates  existing  prior to  the  separation  of judiciary  from the executive, those who may not  have  been appointed in accordance with the rules framed under  Article 234 or who might not have been under the control of the High Court  under Article 235.  It is towards achieving that  end that  the Governor stood empowered under Article 237 to  act by  means  of  a  notification,  with  such  exceptions   or modifications,  as he might consider fit.  The  powers  thus conferred  were unfettered by any restriction. The  Governor could  apply all or only some of the provisions  of  Chapter IV.  That  here the Governor in exercising his  power  under Article  237,  issued the notification of  March  12,  1975, classifying    Magistrates   (including    Chief    Judicial Magistrates)  in  the  State as those belong  to  the  Uttar Pradesh  Judicial Officers Service and applying to them  all the  Articles  contained  in Chapter VI of Part  VI  of  the Constitution,  barring of course Article 237, as they  apply in relation to persons appointed to the Judicial Service  of the  State  subject  to  the  exceptions  and  modifications namely,  (i)  the  members  of  the  U.P.  Judicial  Service Officers shall constitute a Judicial Service to fill in  the post  of Additional Sessions Judge only for the  purpose  of Article 233 and 235 of the Constitution; (ii) U.P.  Judicial Officers  Service shall be a service distinct  and  separate from the UP. Civil Service (Judicial Branch). 13.    The point for consideration before the High Court  as also  here  is  whether the  Governor  could  transform  the existing  U.P.  Judicial Officers Service to be  a  Judicial Service  of  the  State alongside the  existing  U.P.  Civil Service  (Judicial  Branch).  The  following  passage   from Chandra  Mohan’s  case  was put across  to  contend  that  a distinct service could not be created:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

             "Article 237 enables the Governor to implement               the  separation  of  the  judiciary  from  the               executive.   Under this Article, the  Governor               may notify that Articles 233, 234, 235 and 236               of the Constitution will apply to  magistrates               subject    to   certain    modifications    or               exceptions;  for instance, if the Governor  so               notifies,  the  said magistrates  will  become               members  of  the judicial service,  they  will               have to be appointed in the manner  prescribed               in Article 234, they will be under the control               of  the High Court under Article 235 and  they               can  be  appointed as District Judges  by  the               Governor  under Article 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, Article 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 constitutional theme of  independent               judiciary  and  the contrary  view  accepts  a               retrograde step." 14.    Reliance on Chandra Mohan’s case is mis-placed as  we view  it.  The above passage talks of an instance of  action but  is by no means exhaustive.  The State is not  bound  to adopt the course of making magistrates become members of the existing Judicial Service. They may obviate the procedure to be followed in making appointments in the manner  prescribed under Article 234, State is not bound to cause 187 any  integration so that the Magistrates may become  members of the existing Judicial Service.  No bar anywhere could  be pointed   out   to   us   by   learned   counsel   for   the appellant/petitioners by which the State could be prohibited from  creating  a  parallel judicial service  in  which  the magistracy  of the kind involved herein was transformed.  As said  before, the Constitution recognises, and it  is  plain otherwise, that Magistrates perform judicial functions  when trying  offences  under  the Indian  Penal  Code  and  other statutes,  empowered as they are under the Code of  Criminal Procedure.  There  could  thus be no bar  to  confining  the promotional  avenues  of the Magistrates to  be  uptill  the Court  of the Additional Sessions Judge and none other.  The grievance of the members of the U.P. Civil Service (Judicial Branch) is highly over-blown when it is scanned to  discover that they without functioning as criminal courts and without gaining  any  experience  in that field, get  on  to  become Additional   District  &  Session  Judges  merely   on   the experience  gained  on the civil side. This  discloses  that what  is  needed  at that stage is  judicial  temper.  Their attempt  to  thwart  the promotional benefit  given  by  the impugned   notification  to  the  Judicial  Magistrates   in becoming  Additional  Sessions Judges is on the face  of  it unequal in comparison to the service benefit obtained by the personnel  of the U.P. Civil Service (Judicial Branch).  The entire matter has to be viewed on the touchstone of  Article 50  of the Constitution.  In separating judiciary  from  the executive, the personnel of judicial service so retrieved by separation have to be given a place as a class as members of the  judiciary,  either  by  integration  in  the   existing judicial  service  or  by  transformation  into  a  separate judicial service. There apparently is no other way to  place them.  Articles 233 to 237 would have to be viewed  in  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

light.  On doing so, we go to agree with the High Court that the  impugned notification of March 12, 1975 and the  others consequential  notification  stood  validly  issued  by  the Governor under Article 237 of the Constitution and that  the erstwhile Magistrates, members of the U.P. Judicial Officers Service,  became members of a separate Judicial  Service  of the same name intended to be promoted as Additional Sessions Judges  only in the post meant for the  Additional  District and  Sessions  Judge and to stay apart  alongside  the  U.P. Civil Service (Judicial Branch). We also view that the  said service was validly created. 15.    Before  we conclude, we must  notice  a  three-member Bench  decision  of this court in M.L. Sharma  v.  Union  of India  [1992 (Supp)(2) SCC 430] cited, wherein it was  ruled that even if a particular person comes within the definition given  under Article 236 of the Constitution, it is open  to the  State  Government under appropriate rules  to  classify such officer included in the inclusive definition not to  be a  District  Judge  proper  and  to  belong  to  a  category different  from that. ’That was a case in converse  where  a person  claimed to have become a District Judge by means  of the inclusive definition and to have become, by this  logic, a  member  of the Haryana State Superior  Judicial  Service. This Court repelled the claim. This case is of no assistance to either side. 16.   There is thus no merit either in the appeal or in  the writ  petitions.  All  of them fail and  are  dismissed  but without any order as to costs. 188