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PETITIONER: PREM NATH & ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN & ORS.

DATE OF JUDGMENT: 15/03/1967

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. RAO, K. SUBBA (CJ) SHAH, J.C. BHARGAVA, VISHISHTHA MITTER, G.K.

CITATION:  1967 AIR 1599

ACT: Constitution   of  India  Art.  233-Selection   Commissioner consisting  of Chief Justice and two other Judges  only-List of eligible candidates prepared by the Committee transmitted by the High Court-If proper consultation. Art.  233A-Appointments  of Civil  and  Additional  Sessions Judge to the Rajasthan Higher judicial Service if validated. Art. 236-Civil Judge appointed as Additional Sessions  Judge under  the Rajasthan Higher Judicial Service Rules,  1955-If "District Judge" within the definition of the Article.

HEADNOTE: The Rajasthan Higher Judicial Service Rules, 1955,  provided that  recruitment to the Higher Judicial Service had  to  be made  by  the  Governor from out of the  lists  of  eligible candidates  sent  up  by the High Court but  prepared  by  a Selection  Committee  of the High Court  consisting  of  the Chief Justice, the Administrative Judge and another Judge of the  High  Court  nominated  by  the  Chief  Justice.   When recruitments  to the posts of Civil and Additional  Sessions Judge were made in accordance with this procedure they  were challenged on the ground that the Rules contravened Art. 233 of the Constitution.  The High Court upheld the validity  of the  Rules  and the appointments made thereunder.   In  this Court  it was contended that (i) the Rules were ultra  vires Art.  233,  and  (ii) the post of  a  Civil  and  Additional Sessions  Judge  is  not included in  the  definition  of  a "District   Judge"   in  Article  236  and   therefore   the appointments  were not validated by Article 233A  introduced by the Constitution (Twentieth Amendment) Act, 1966. Held  : The Rules contravened Article 233 and therefore  the appointments   were  illegal;  but  the  appointments   were validated by Article 233A. (i)  Consultation  as provided in Art. 233  is  consultation with  the High Court -and not with any other authority  such as  the Selection Committee appointed under the Rules.   The Committee,  though composed of Judges of the High Court,  is not the High Court.  The only function entrusted to the High Court  under the Rules is to transmit the lists prepared  by

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the  Committee and there is nothing in the Rules  empowering the  High Court, before submitting the lists to  vary  those lists if the High Court were to disagree with the Committee. [190 A-C] Chandra Mohan v. State of Uttar Pradesh, [1967] 1 S.C.R. 77, followed (ii) When  a  Civil  Judge is  appointed  as  an  Additional Sessions Judge, which is precisely what has happened in  the instant case, such an appointment is made in exercise of the powers conferred by s. 9 of the Code of Criminal  Procedure. The  Civil  Judge  exercises the  powers  of  an  additional Sessions  Judge not because he is a Civil Judge but  because he  is appointed as an Additional Sessions Judge.   The  two posts,  therefore,  cannot  be said  to  have  been  clubbed together.   So, when a person appointed as a Civil Judge  is also intended to work as an Additional Sessions Judge an 187 appointment  has  to  be  made under s. 9  of  the  Code  of Criminal  Procedure  as an Additional Sessions Judge.   Such an  appointment  has  to be  considered  as  an  appointment falling under the definition of "District Judge" within  the meaning  of  Art.  236.   Therefore  Article  233  and   the Rajasthan higher Judicial Service Rules 1955 apply to such a post  and not Article 234 or the Rajasthan Judicial  Service Rules, 1955. [195 E-H]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 93 of 1966. Appeal  from the judgment and order dated November 27,  1964 of  the Rajasthan High Court in D. B. Writ Petition No.  803 of 1964. M.   B. L. Bhargava and Naunit Lal, for the appellant. S.   V.  Gupte, Solicitor-General, G. C. Kasliwal,  Advocate General for the State of Rajasthan and K. Baldev Mehta,  for respontents Nos. 1-5. Sarjoo  Prasad, S. N. Prasad, and 0. C. Mathur, for  respon- dents Nos. 6 and 7 and Interveners Nos.  1 and 2. R.   K. Garg, S. C. Agarwal and D. P. Singh, for  intervener No. 3. Santi Bhushan, Addl.  Advocate-General, State of U.P. and 0.   P. Rana, for intervener No. 4. The Judgment of the Court was delivered by Shelat, J. This appeal, by certificate, raises two questions (1)  whether  the Rajasthan Higher Judicial  Service  Rules. 1955 are ultra vires Art. 233 and, therefore, the selections made  by  the Selection Committee appointed  thereunder  and appointments  made  on  the basis  of  such  selections  are invalid,  and  (2)  if  so,  whether  the  appointments  are validated  by  the Constitution (Twentieth  Amendment)  Act, 1966 which introduces Art. 233A in the Constitution. On May 9, 1955, the Rajpramukh of the then (Part B) State of Rajasthan,  in  exercise  of the  powers  conferred  by  the proviso  to  Art. 309 of the Constitution,  promulgated  the Rajasthan Higher Judicial Service Rules, 1955.  In pursuance of  the said Rules, the High Court of Rajasthan published  a notice  dated November 20, 1963, inviting  applications  for direct  recruitment  to four posts of Civil  and  Additional Sessions  Judge.  A number of applications were received  by the  High  Court and after scrutiny thereof  and  interviews granted   to  the  applicants,  the   Selection   Committee, appointed  under the said Rules and consisting of the  Chief Justice.  the Administrative Judge and another Judge of  the High  Court  nominated by the Chief Justice,  selected  four

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candidates.   Besides these four posts, there were  fourteen posts  to  be  filled up from amongst  the  members  of  the Rajasthan Judicial Service by 188 promotion.  The said Committee selected eligible  candidates from  amongst those members and prepared another list .  The High Court submitted the two lists prepared by the Committee to the Governor for appointments. The  appellants  who are members of the  Rajasthan  Judicial Service filed a writ petition in the High Court of Rajasthan challenging  the validity of the selection done,  the  lists prepared  by  the Selection Committee and  the  appointments made  on the basis of those lists on the (,round  that  they were  done  in contravention of Art. 233.   The  High  Court dismissed the writ petition holding that the said Rules were valid,   and,  therefore,  the  proceedings  of   the   said Committee,  the  lists prepared by it and submitted  to  the Governor  by the High Court and the appointments  made  were all valid.  Hence this appeal. Rule  1(2)  of the Rajasthan Higher Judicial  Service  Rules provides  that the said Rules shall apply to the members  of the  Service consisting of District and Sessions Judges  and Civil and Additional Sessions Judges.  Rule 6 provides  that the  strength  of  the Service and of each  class  of  posts therein  shall  be determined by the Governor from  time  to time  in consultation with the High Court and the  permanent strength  of the Service and of each class of posts  therein shall be as specified in Schedule 1. Sub-rule (3) of Rule  6 empowers the Governor, from time to time and in consultation with  the High Court, to leave unfilled or hold in  abeyance any post in the Service or create such additional  temporary or permanent posts in the Service as may be found necessary. Schedule  I provides the strength of District  and  Sessions Judges  at  18,  i.e.,  15 judgeships,  one  post  of  Legal Remembrance,  one post of Registrar of the High  Court,  and one  post of Joint Legal Remembrancer and that of the  Civil and  Additional  District  Judges at 20.   Rule  7  provides sources  of recruitment, viz., by promotion from  among  the members  of  the Rajasthan Judicial Service  and  by  direct recruitment  in  consultation  with  the  High  Court.   The persons  eligible  for direct recruitment are  Advocates  or Pleaders of more than seven years’ standing.  Rule 10  reads as under :-               (1)   Subject  to  the  provisions  of   these               rules,  the number of persons to be  recruited               at  each  recruitment  from each  of  the  two               sources  specified in rule 7 and  the  -period               (not  exceeding  three years) for  which  such               recruitment is to be made shall be  determined               by the Governor.               Provided that the number of persons  appointed               to the Service by direct recruitment shall  at               no  time  exceed  on---fourth  of  the   total               strength  of  the Service and  the  number  of               persons so appointed during any one period               189               of recruitment shall not exceed one-fourth  of               the total number of vacancies occurring during               that period". Rule  13 provides that after a decision is taken under  Rule 10 as of the number of persons to be recruited by promotion, selection  hall be made from among the eligible  members  of the  Rajasthan  judicial Service by  a  Selection  Committee consisting  of the Chief justice, the  Administrative  Judge and  a  Judge  of  the High Court  nominated  by  the  Chief

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Justice.   It also provides that the Committee shall  select from  among the eligible officers those whom  they  consider suitable  for  appointment to the Service.  A  list  of  the officers  selected shall then be made in the order of  their inter  se seniority in the Rajasthan Judicial  Service.   As regards   direct   recruitment,  Rule   17   provides   that applications  shall be invited by the High Court.   Rule  21 provides that the Selection Committee shall scrutinise  such applications and require such of the eligible candidates  as seem  best  qualified for appointment to the  Service  under these  Rules to appear before the Committee  for  interview. Under Rule 22 the Selection Committee have to prepare a list of candidates whom they consider suitable for appointment to the Service.  Under Rule 23 the High Court has to submit  to the Governor two copies each of the two lists of  candidates considered suitable for appointment to the Service from  the two  sources of recruitment as prepared in  accordance  with Rules 13 and 22.  Rule 24 provides that all appointments  to posts  in the Service shall be made by the Governor  on  the occurrence  of  substantive vacancies by  taking  candidates from  the  lists prepared under Rule 13 and Rule 22  in  the order  in  which they stand in the  respective  lists.   The first three vacancies shall be filled from the list prepared under  Rule 13 and the fourth vacancy shall be  filled  from the list prepared under Rule 22 and so on. It is clear from Rule 13(2) that the selection from  amongst the eligible officers for appointment to the Higher  Service is made by the Selection Committee and not by the High Court is  a  whole  though the list  prepared  thereunder  by  the Committee  is forwarded by the High Court to  the  Governor. There  is  no  provision in Rule 13 or  in  any  other  Rule empowering  the High Court to modify the lists  prepared  by the  Committee  either by substituting others in  the  lists whom   the  High  Court  considers  more  suitable   or   by withdrawing  or  deleting any one of those selected  by  the Committee  and  named  in  the  lists.   So  far  is  direct recruitment is concerned, under Rule 21 it is the  Committee which  scrutinise  the  applications and  it  is  again  the Committee  which decide whom to reject and whom to call  for interview.   The  High  Court has nothing  to  do  with  the scrutiny  of  applications.   It  is  again  the   Selection Committee   which.  interview  the   candidates   considered eligible for appointment and not the High Court.  It is also the 190 Selection  Committee  which prepare the  lists  of  eligible candidate selected by them.  The only function entrusted  to the  High Court under the Rules is, therefore,  to  transmit the  two lists prepare ’by the Committee under Rules 13  and 22.   As  aforesaid,  there is no  provision  in  the  Rules empowering the High Court before submitting the lists to the Governor to vary those lists even if the High Court were  to disagree   with  the  selections  made  by  the   Committee. Obviously,  the  Committee is not the High  Court  The  High Court  thus  is  only a transmitting  authority.   The  con- sultation as provided in Article 233 is consultation with th High  Court  and not with any other authority  such  as  the Selection  Committee appointed under the Rules.  The  Rules, therefore,   and  clearly  inconsistent  with  the   mandate provided  for  in  Art.  23  and  are,  therefore,  invalid. Consequently,  the  selections made by  the  Committee,  the lists  prepared  by them and  appointments  made  thereunder would be invalid. Recently,  the  U.P.  Higher  Judicial  Service  Rules   for recruitment  of District Judges, which were similar, if  not

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almost identical, with the Rules in this appeal, came up for consideration  by  this Court in Chandra Mohan V.  State  of Uttar Pradesh(1).  After an analysis of the said Rules, this Court  held that the said Rules were not in consonance  with and   contravened  Art.  233  and  further  held  that   the appointments  made  thereunder  were  illegal.   The   Court observed :-               "The  Constitutional  mandate of Art.  233  is               clear.    The   exercise  of  the   power   of               appointment by the Governor is conditioned  by               his consultation with the High Court, that  is               to  say, he can only appoint a person  to  the               post  of District Judge in  consultation  with               the High Court.  The object of consultation is               apparent.  The High Court is expected to  know               better  than  the Governor in  regard  to  the               suitability  or  otherwise of  a  person,  be-               longing  either to the Judicial Service or  to               the Bar, to be appointed as a District  Judge.               This mandate can be disobeyed by the  Governor               in  two ways; directly, by not consulting  the               High  Court  at all, and  indirectly  by  con-               sulting the High Court and also other persons.               That  this constitutional mandate has  both  a               negative  and  positive significance  is  made               clear   by   the  other  provisions   of   the               Constitution.  See Articles 124(2) and  217(2)               and  222.  These provisions indicate that  the               duty  to  consult is so  integrated  with  the               exercise  of the power that the power  can  be               exercised only in consultation with the person               or persons designated therein".               (1)   [1967] 1 S.C.R. 77.               191               The, Court also observed that :               "the  U.P. Higher Judicial Service Rules  were               constitutionally   void   as   they    clearly               contravened the constitutional mandate of Art.               233(1)   and   (2).   Under  the   Rules   the               consultation  of  the High Court is  an  empty               formality.    The  Governor   prescribes   the               qualifications,   the   Selection    Committee               appointed  by him selects the  candidates  and               the High Court has to recommend from the lists               prepared by the Committee.  This is a travesty               of the Constitutional provision.  The Governor               in  effect and substance does neither  consult               the   High   Court   nor  act   on   its   re-               commendations". It  is  obvious  that under the  Rajasthan  Higher  Judicial Service   Rules   the  entire  work  of   scrutinising   the applications,  interviewing  the  applicants,  selection  of eligible candidates from both the sources and preparation of the two lists is done by the Selection Committee and not  by the High Court.  The only function entrusted under the Rules to  the High Court is that of transmitting to  the  Governor the  two  lists  prepared  by  the  Committee.   The  Rules, therefore, do not provide for consultation of the High Court and,  therefore,  contravene Art. 233 which  envisages  con- sultation  with the High Court and not with any  other  body such as the Selection Committee which cannot substitute  the High  Court  even though the members thereof  happen  to  be three  Judges  of the High Court.   The  learned  Solicitor- General who appeared for the State frankly conceded that  it was not possible for him to distinguish these Rules from the

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U.P.  Higher  Judicial  Service Rules  and,  therefore,  the decision  in  Chandra  Mohan’s case(1) would  apply  to  the present  Rules.   Consequently,  the said  Rules  cannot  be sustained and have to be declared invalid.  The  proceedings taken  by  the Selection Committee and  following  them  the action taken must also be held to be invalid. The  next  question is : whether appointments  made  by  the Governor from amongst those in the said lists are  validated by   the  Constitution  (Twentieth  Amendment)  Act,   1966. Article  233A  introduced  by  the  said  Act,  inter  alia, provides.                "Notwithstanding  any  judgment,  decree   or               order  of any court (a)(i) no  appointment  of               any person already in the judicial service  of               a State or of any person who has been for  not               less  than  seven  years  an  Advocate  or   a               Pleader, to be a District Judge in that State,               and (ii) no posting, promotion or transfer  of               any  such person as a District Judge, made  at               any  time  before  the  commencement  of   the               Constitution (Twentieth Amendment) Act, (1)  [1967] 1 S.C.R. 77. 192               1966,  otherwise than in accordance  with  the               provisions  of Art. 233 or Art. 235  shall  be               deemed  to be illegal or void or ever to  have               become  illegal or void by reason only of  the               fact that such appointment, posting, promotion               or  transfer was not made in  accordance  with               the said provisions". The amendment thus validates the appointment, posting or pro motion of a person as a District Judge if such  appointment, by  reason of its not being in accordance with Art.  233  or Art.  235.  would have been illegal or void.   The  question raised  by counsel is whether appointment to the post  of  a Civil and Additional Sessions Judge can be said to be one of a District Judge. Article 236(a) defines a ’District Judge’ as including 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.  A  Civil  and Additional Sessions Judge does not apparently find place  in the  different categories of judicial officers  included  in this   definition.    Mr.  Bhargava  for   the   appellants, therefore,  argued that Art. 236, while defining a  District Judge,  does  not include a Civil  and  Additional  Sessions Judge; therefore, a person appointed as a Civil and Sessions Judge  is  not a District Judge and consequently  Art.  233A does not validate the appointment of a person to the post of a  Civil and Additional Sessions Judge if  that  appointment was  invalid.   In order to make good  his  submission,  lie relied  on  tile  Rajasthan Civil  Courts  Ordinance,  1950, section  6  of which provides for four categories  of  Civil Courts,  viz., (1) the Court of the District Judge, (2)  the Court of the Additional District Judge (3) the Court of  the Civil Judge and (4) the Court of th e Munsif.  Section 13 of the  Ordinance provides that appointments of persons  to  be Civil Judges and Munsifs shall be made by the Rajpramukh  in accordance  with the Rules made by him in that behalf  after consultation  with the Rajasthan Public  Service  Commission and the High Court.  Section 19 provides that the Court of a Civil  Judge shall have jurisdiction to hear  and  determine all original suits and proceedings of a civil nature and the

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Court  of  a  Munsif shall have  jurisdiction  to  hear  and determine  all  original suits and proceedings  of  a  civil nature  of  which the value does not  exceed  five  thousand rupees.   Sections  1  6 and 1 7 provide for  the  place  of sitting  and  seals  of ’the Courts.  On May  9,  1955.  the Rajpramukh  of Rajasthan promulgated the Rajasthan  Judicial Service Rules in exercise of powers under Art. 234 read with Art.  238  and the proviso to Art. 309.  Rule  4  defines  a ’member  of the service’ is meaning a person appointed in  a substantive capacity to a post in the cadre of the 193 Service under the provisions of these Rules or of any  Rules or  orders  superseded by Rule 2. Clause (f)  of  that  Rule defines ’service’ as meaning the Rajasthan Judicial Service. Rule  6 lays down the strength of the Service  and  provides that such strength of the Service and of each class of posts therein  shall be determined by the Rajpramukh from time  to time  in  consultation with the High  Court.   Sub-rule  (2) provides  that the permanent strength of the Service and  of each  class  of  posts  therein shall  be  as  specified  in Schedule 1. According to that Schedule, the number of  posts of Civil Judges was determined at 30 and that of the Munsifs at 80.  Mr. Bhargava’s contention was that neither under the Rajasthan  Higher  Judicial  Service  Rules  nor  under  the Rajasthan Judicial Service Rules, there is any provision for appointment as an Additional Sessions Judge of a person  who holds the post of a Civil Judge, that when respondents 6 and 7  were appointed they were appointed as Civil  Judges  with additional  powers  of an Additional Sessions  Judge,  that, therefore,  as  Civil Judges they would be amenable  to  the Rajasthan  Judicial  Service  Rules, 1955  and  not  to  the Rajasthan  Higher  Judicial Service Rules  and  consequently Art.  233A would not apply to their appointments.   He  also contended  that before Art. 233A can apply, the  appointment must  be to the post of a District Judge and that it is  not so  as the post of a Civil and Additional Sessions Judge  is not included in the detinition of a ’District Judge’ in Art. 236.  Mr. Garg appearing for the interveners argued that the appointments  as Civil and Additional Sessions  Judges  club together the post of a Civil Judge and that of an Additional Sessions  Judge, that though these, posts are so clubbed  to other,  such appointments would be governed by Art. 234  and not by Art. 233 and ’therefore Art. 233A would neither apply nor validate such appointments.  Such appointments according to  bull, would have to be made in accordance with the  pro- visions of Art. 234.  He also sought to argue that since the Rajasthan   Higher   Judicial   Service   Rules   were   not distinguishable  from those of Uttar Pradesh, the Rules  are invalid, that Art. 233A does not validate such invalid Rules and  that  as  the said appointments have  been  made  under invalid Rules, they were not cured by Art. 233A.  We may ,it this,   stage   make   it  clear  that   the   question   of constitutional validity of Art. 233A has not been raised  in this  appeal.  The appointments are challenged  as  invalid, because  they were made in contravention of Art.  233.   The vires of Art. 233A not having been challenged we  disallowed Mr.  Garg  appearing, for the interveners to  go  into  that question  in  this appeal and we  refrain,  therefore,  from deciding that question. Mr.  then referred to us tile Bengal . Agra and Assam  Civil Courts  Act, 1887, section 3 of which provides for the  same four classes of Civil Courts as is done in section 6 of  the Rajasthan Ordinance and contended, as did Mr. Bhargava, that the appoint- 194

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ment of a person as a Civil and Additional Sessions Judge is substantially  the appointment of such a person as  a  Civil Judge upon whom additional powers of an Additional  Sessions Judge   are   conferred.   Therefore,  said  he,   such   an appointment  cannot  be  said  to be  an  appointment  of  a District Judge within the meaning of Art. 236.  The  learned Solicitor-General,  on  the  other  hand,  argued  that  the appointment  of a person as a Civil and Additional  Sessions Judge  would not mean that he is only a Civil Judge or  that he  is  not  an Additional Sessions Judge  included  in  the definition of a ’District Judge’ by Art. 236.  Such a  Civil Judge  when appointed also as an Additional  Sessions  Judge would  have  all the powers of a Sessions  Judge  and  would possess  jurisdiction  in  a Sessions Court  of  a  Sessions division  and  all  the _jurisdiction and  powers  which  an Additional  Sessions  Judge  would have under  the  Code  of Criminal  Procedure.   The learned  Deputy  Advocate-General appearing  for the State of Uttar Pradesh as  an  intervener supported  the  Solicitor-General and  added  that  Judicial Service  under Art. 236 falls into two parts: (1) a  Service consisting exclusively of persons intended to fill the  post of  a  District  Judge and (2) other  civil  judicial  posts inferior to the post of a District Judge.  He relied on  the words  "appointments of persons to be District Judges"  used in Art. 233.  According to him, these two Articles apply  to persons  who  are appointed in the first instance  to  Civil Judicial posts inferior to the post of a District Judge  but who  are  intended to fill the post of a District  Judge  it some  time in the future and, therefore, such  persons  also are  District  Judges and to whom Arts. 233 and  233A  would apply.   It is not necessary in the present case to go  into the  question of interpretation and scope of Arts.  233  and 236 as the question raised by Mr. Bhargava and Mr. Garg  can well  be  resolved  by  a  consideration  of  some  of   the provisions of the Code of Criminal Procedure. Section  6 of the Code provides for five classes  of  courts apart from the High Court, viz., (1) Courts of Sessions, (2) Presidency Magistrates, (3) Magistrates of the first  class, (4) Magistrates of the second class, and (5) Magistrates  of the  third  class.   Section 7 provides  that  every  State, excluding the Presidency Towns, shall be a sessions division or  shall consist of sessions divisions; and every  sessions division shall, for the purposes of this Code, be a district or consist of districts.  Section 9 provides that the  State Government  shall  establish a Court of  Session  for  every sessions division, and appoint a Judge of such Court.   Sub- section (3) of s. 9 empowers the State Government to appoint Additional Sessions Judges and Assistant Sessions Judges  to exercise  jurisdiction in one or more such Courts.   Section 36  lays  down  that  District  Magistrates,  Sub-Divisional Magistrates  and  Magistrates of the first, second  and  the third class shall have powers thereinafter respectively con- ferred upon them and specified in the third Schedule.  Such 195 powers  are called ’ordinary powers, Section  37  authorises the State Government or the District Magistrate, as the case may  be,  to  invest any Sub-Divisional  Magistrate  or  any Magistrate of the first, second or third class with what are called  ’additional  powers’.  Under section  39  the  State Government  can confer such additional powers on persons  by name or by virtue of their office or on classes of officials generally  by  their official titles.  It is  manifest  that sections 36 to 39 cannot apply to the case of a Civil  Judge appointed  also as an Additional Sessions Judge,  for  these sections   contemplate  vesting  of  additional  powers   on

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District   Magistrates,   Sub-Divisional   Magistrates   and Magistrates   of   the  first,  second  and   third   class. Therefore,  the  power  to  appoint  a  Civil  Judge  as  an Additional Sessions Judge is to be found not in sections  36 to 39 but in section 9 which as aforesaid empowers the State Government  to  appoint  Additional  or  Assistant  Sessions Judges.  That is precisely what appears to have been done in Rajasthan.   By  a  notification  dated  June  2,  1950  the Rajasthan  Government  appointed with effect  from  July  1, 1950,  Civil  Judges therein mentioned by  virtue  of  their office   to  be  Additional  Sessions  Judges  to   exercise jurisdiction  in  courts of session mentioned  in  column  2 thereof.   Therefore, when a Civil- Judge is also  appointed as  an  Additional  Sessions  Judge  or  when  a  person  is appointed  both as a Civil Judge and also as  an  Additional Sessions  Judge such appointment as an  Additional  Sessions Judge  is made in exercise of power under s. 9 of the  Code. When such a Civil Judge exercises the power of an Additional Sessions  Judge, he does so not because he is a Civil  Judge but because of his being appointed as an Additional Sessions Judge  under  S. 9 of the Code.  The two  posts,  therefore, cannot  be  said to have been clubbed  to-ether.   Factually what  happens is that a person who is or who is appointed  a Civil Judge is also appointed an Additional Sessions  Judge. It  makes no difference whether he is first appointed  as  a Civil  Judge  and then as an Additional  Sessions  Judge  or whether  he  is  appointed  both as a  Civil  Judge  and  an Additional  Sessions Judge at the same time.  When  such  an appointment is made, the appointee exercises both the powers of a Civil Judge and those of an Additional Sessions  Judge. From such a combination of powers in the same person it does not  follow that he is not an Additional Sessions  Judge  or that he is a Civil Judge and, therefore, does not fall under the definition of a ’District Judge’ in Art. 236(a).   Since such a post falls under that definition it would be Art. 233 and the Rajasthan Higher Judicial Service Rules which  would apply  to  him and not Art. 234 or  the  Rajasthan  Judicial Service Rules, 1955. Articles 233 and 234 contemplate appointments falling  under one  or the other.  It cannot be that an  appointment  would fall  under both the Articles.  If such a construction  were to be 196 adopted, it would render the two Articles unworkable.  There fore,  in  deciding which of the two Articles applies  in  a particular  case, what has to be determined is what was  the intention   when  such  appointment  was  made.    Was   the appointment to the post of a Civil Judge under s. 13 of  the Rajasthan  Civil Courts Ordinance or one under s. 9  of  the Code  of Criminal Procedure.  If it is the latter, Art.  233 and  not  Art.  234  Would  apply.   Besides,  there  is  no provision  in the Code of Criminal Procedure under  which  a Civil  judge  can be invested with powers of  an  Additional Sessions  Judge.  Where, therefore, a person appointed as  a Civil  Judge  is  also intended to  work  as  an  Additional Sessions Judge, an appointment has to made under S. 9 of the Code of Criminal Procedure as an Additional Sessions  Judge. Therefore,,  such an appointment has to be considered as  an appointment falling Linder the definition of ’District Judge within  the  meaning of Art. 236.   Consequently,  Art.  233 would  apply  to  an  appointment of a  Civil  Judge  as  an Additional  Sessions  Judge.   Since  the  appointments   in question  were made in contravention of Art. 233  and  were, therefore, illegal they must be held to have been  validated under the new Art. 233A.

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Mr.  Bhargava, however, contended that even  assuiming  that Art. 233A applies, the appointments in the present case were still  invalid  as  in making them Rules 10 and  24  of  the Rajasthan Higher Judicial Service Rules were infringed.   As already  stated,  Rule 7 provides that  recruitment  to  the Higher  Service  shall  be made from two  sources-,  (1)  by promotion  from among the members of the Rajasthan  Judicial Service, and (2) by direct recruitment.  Rule 10 deals  with the number of appointments to be made and provides that  the number  of persons to be recruited at each recruitment  from each of the two sources and the period (not exceeding  three years)  for  which the recruitment is to be  made  shall  be first determined by the Governor.  The first proviso to that Rule  states  that the number of persons  appointed  to  the Service  by direct recruitment shall at no time  exceed  one fourth  of the total strength of the Service and the  number of persons so appointed during my one period of  recruitment shall not exceed one-fourth of the total number of vacancies occurring  during  that period.  According to Rule  24,  the Governor  ]its  to make appointments on  the  occurrence  of substantive  vacancies  by taking candidates  from  the  two lists  prepared under Rules 13 and 22 in the order in  which the eligible candidates stand in the respective lists.   The result  is that given a certain number of appointments,  the first three have to be filled in from the promoters and  the fourth  by the candidate selected by direct recruitment  and so on. It  appears from the Government’s letter dated  December  8, 1962, that under Rule 10 the Governor fixed the number of 197 appointments  to be made as 18, 14 out of which were  to  be filled  up by promotion and 4 by direct recruitment and  the proposed recruitment for these vacancies was to be upto  the period ending 1962.  The contention was that under Rule  10, the  period of recruitment is prospective and for  a  period not exceeding three years and, therefore, while  determining the number of posts for which recruitment was to be made the Governor  could  not take into account  vacancies  remaining unfilled  at  the  time.   Therefore,  it  was  urged   that determination by the Governor of the number of  appointments was  contrary  to Rule 10 and Rule 24 and  consequently  the proceedings of the Selection Committee based on such invalid determination were also invalid. It  is  true that out of the 18 posts as determined  by  the Governor,  there were 9 vacancies which were not  filled  up and  were included in the number of appointments  determined by  the Governor.  As a first step in the recruitment,  Rule 10 no doubt provides that the number of appointments at each recruitment from each of the two sources shall be determined by   the   Governor.   Rule  24  also  provides   that   the appointments so determined have to be filled in from the two lists  prepared by the Committee and submitted by  the  High Court,  three from those selected from the Judicial  Service and  the fourth from those selected for  direct  recruitment and so on.  But if certain posts intended to be filled up at the  time of the last recruitment have remained  vacant  for one  reason or the other, they would be vacancies which  can be.  filled up in the next recruitment.  It is difficult  to see why those unfilled posts cannot be regarded as vacancies to  be filled up at the next recruitment. There is  in  fact nothing in Rule 10 or Rule 24 to preclude the Governor  from including   them  in  the  number  of  appointments  to   be determined  by  him.   Even  if  persons  are  appointed  to officiate to such posts since their appointment would not be substantive  appointment,  they  would not  acquire  a  lien

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thereon  and, therefore, those posts remain  unfilled  until substantive appointments in respect of them are made.   They can,  therefore, be included in the number  of  appointments determined by the Governor under Rule 10. Rule 6(3) in terms provides that the Governor, in  consulta- tion  with  the High Court, can leave unfilled  or  hold  in abeyance  a  post for the time being.  If it is  decided  to fill  up  that post -At the next recruitment,  there  is  no reason why that appointment cannot be included in the number of  appointments determined by the Governor. . There is,  in our view, therefore, no validity in the contention that  the determination. of the number of appointments by the Governor was contrary to Rule 10 or that such determination  rendered the subsequent proceedings of the Selection Committee bad in law.  The contention, besides, is academic for it 198 appears  that on November 9, 1960, 9 Judicial Officers  were confirmed in 9 out of the 18 posts with the result that only 9 posts remained to be filled up.  In view of this fact  the High  Court  held  that there were only 9  posts  for  which recruitment  had  to be made and, therefore, only 2  out  of these 9 posts would go to the direct recruitees instead of 4 if those 9 officers had not been confirmed.  The  contention that the determination of appointments under Rule 10 was bad in  law  has,  therefore,  to be  rejected.   We  leave  the question  of the claim of seniority of Respondents 6 and  7, if any, open as it does not strictly arise in this appeal. These  were  the only contentions raised on  behalf  of  the appellants.   In  our view, they cannot be  sustained.   The appeal  is, therefore, dismissed.  In the  circumstances  of the case we do not pass any order as to costs. R.K.P.S.                                       Appeal dismissed. 199