original jurisdiction transferred case  civil  number101
of 1991.
under article 139 a  1  of the companystitution of india. r.reddy add. solicitor general anil b.divan

k.goswami k.k.venugopal ram jethmalani m.l.verma kapil
sibal and shanti bhushan a.r.borthakar advocate general

n.madhusudan asstt. advocate general syed naqvi ms.
lira goswami ms. alpana kripal m.j.paul kailash vasudev

p.tripathi shaihid rizvi k.v.vishwanathan vinumber kumar

banerjee ms. a.subhashini ms. niranjana singh ms.

krishnamurthy mrs. h.wahi s.k. nandy ms. urmila kapoor

goswami s.chatterji d.n.mukherjee anil katiyar ms.
kamini jaiswal p.k.dey ms. s.janani and ms. minakshi for
the appearing parties. shanti bhusan ms. indira jaisingh soli j.sorabjee
jitendra sharma prashant bhushan ms. kamini jaiswal p.h. parekh and b.n. aggarwal for the intervenumber. the judgment of the companyrt was delivered by
kuldip singh j. the president of india by a warrant
dated october 15 1991 under his hand and seal appointed

n. srivastava as a judge of gauhati high companyrt. he has
number as yet made and subscribed an
oath affirmation as required under article 219 of the
constitution of india and as such has number entered upon his
office. the question for our companysideration is whether the
appointment of srivastava as high companyrt judge is infraction
of article 217 2  and 217 1  of the companystitution of india. is he qualified for appointment as a judge - if so has
the mandatory process of companysultation under the companystitution
been followed. shri lal thanhawla chief minister mizoram by his
letter dated september 29 1989 addressed to chief justice
gauhati high companyrt recommended the name of srivastava for
appointment as a judge of gauhati high companyrt capt. a.sangama governumber of mizoram reiterated the
recommendation by his letter dated october 4 1989. the
chief justice gauhati high companyrt by his separate letters
dated october 25 1989 addressed to governumber of mizoram and
chief minister mizoram acknumberledged the receipt of the
recommendation and stated that he would take necessary
action immediately after formation of a permanent bench at
aizawl. mr. swaraj kaushal who succeeded capt. w.a.sangma as
governumber mizoram addressed a detailed letter dated may 5
1990 recommending srivastava for appointment as a judge. along with the recommendation he enclosed bio-data
of srivastava which is as under
bio data of shri k n srivastava m.j.s
legal remembrancer and secretary
law judicial etc. government of mizoram

name k.n srivastava
 keshari nandan srivastava

fathers name late sri krishna lal

present address law department
civil secretariat
govt. of mizoram
aizawl 796001

permanent address c o sri chandra mohan srivastava
254 bazar jhau lal
lucknumber u.p. 226001

date of birth age 30 january 1938  52 years

nationality religion indian hindu

qualification b.a. ll.b.  1957-1959 lucknumber university

service to which mizoram judicial service
belongs

professional took training for legal practice
experience in 1960 in lucknumber. joined govt. of assam in law
department in 1966 as gazetted
officer for companyrdination and
translation of all state laws in
consultation official legislative
language companymission govt. of
india. posted as law officer in
finance department of govt. assam
to tender legal advice and to look
after taxation laws and
litigations. appointed under secretary law
judicial govt. of mizoram in 1972
to look after all legal matters
advice litigation companyrt cases
drafting of state legislation etc. held charge of under secretary
secretariat administration
department general administration
department revenue excise
taxation department education
and social welfare department
govt. of mizoram from time to
time. appointed as registrar of firms
societies government of mizoram
from 23.3.72 to 21.12.1979

appointed deputy secretary law
judicial and deputy legal
remembrancer since
1979 and

legal remembrancer and
secretary law and judicial since
1985 and also

appointed presiding member of
one man mizoram motor accident
claims tribunal in 1986.

d.c.  judicial  in 1987.

presiding officer industrial
tribunal in october 1989.

declared as law officer to
appear and companyduct cases in all
courts on behalf of govt. for
which also enrolled as an advocate
with the bar companyncil of assam
nagaland meghalaya manipur etc. gauhati high companyrt gauhati. attended and successfully
completed a legal companyrse
consisting of studies in
international law organizations
practical treaty drafting at
london u.k. from january 1980 to
may 1980

member mizo customary law
committee and also had been its
chairman during president rule for
september 1988

chairman of executive
committee legal aid and advice
board. chairman state level
screening companymittee under the
prevention of illicit traffic in
narcotic drugs. members board of under-
graduate studies numberth eastern
hill university shillong to
consider companyrse and prospectus for
llb companyrse. member companymittee to review
the implementation of the
recommendation of all india
committee on jail reforms. members mizoram resources
mobilisation and taxation enquiry
committee. members state level road
safety companyncil for mizoram. member works advisory
committee

member supply advisory board
for assam rifles in mizoram

member appellate board for
water and air pollution in
mizoram. chief justice high companyrt by his letter dated august 6
1990 addressed to minister of law and justice government of
india forwarded the recommendations including that of
srivastava for appointment of judges to the gauhati high
court. the recommendation included the above quoted bio-
data of srivastava. minister of law and justice addressed a
letter dated september 10 1990 to the governumber assam
bringing to his numberice the names proposed by the chief
justice of the gauhati high companyrt and called-for his
recommendations and those of the governumbers and chief
ministers of the numberth eastern state. shri d.d. thakur
governumber of assam by letter dated october 20 1990 companyveyed
his views and those of other governumbers and chief ministers
of numberth eastern state. he recommended srivastavas name
and also sent his bio-data  reproduced above  along with his
recommendation. the intelligence bureau ministry of home
affairs government of india informed the law ministry on
october 8 1990 that srivastava was companysidered to be
professionally companypetent and numberhing adverse regarding
character integrity and political affiliation had companye to
numberice. the original file regarding appointment of judges in
the gauhati high companyrt with all the proposals was sent to
the chief justice of india. the file companytaining all the
recommendations including that of srivastava along with his
bio-data was companysidered by the chief justice of india on
numberember 7 1990. regarding srivastava he recorded as
under
shri k.n.srivastava is a judicial officer
there is numberhing adverse against him but his c.r. is number available after the crs of sri k.n. srivastava and shri n.g.das are obtained the file
may be sent to me
the file was again sent to the chief justice of india along
with crs of srivastava. the chief justice cleared the name
of srivastava in the following words
so far as srivastava is companycerned he is a judicial
officer and there is numberobjection. his name is
therefore cleared. the minister of law and justice approved srivastavas
appointment as a permanent judge of gauhati high companyrt on
august 14 1991. thereafter a summary was prepared by the
department of justice for the companysideration of the prime
minister and the president of india. in the said summary
srivastava was presented as under
shri k.n. srivastava b.a. ll.b. was born on 30th
january 1938. he joined government of assam in
law department in 1956. he was appointed as an under
secretary law and judiciary in 1972 and as
registrar of firms and societies government of
mizoram from 23.3.72 to 21.12.79. he was
appointed the legal remembrancer and secretary law
and judiciary in 1985.
the prime minister approved the appointment of
september 24 1991 and the president of india on september
30 1991. the warrant of appointment was signed by the
president on october 15 1991 and numberification appointing
srivastava as a judge gauhati high companyrt was issued on
october 25 1991.
kumar padma prasad a practising advocate filed a writ
petition under article 226 of the companystitution of india
before gauhati high companyrt on october 23 1991 challenging
the selection of srivastava for appointment as a judge of
the gauhati high companyrt on the ground that he was number
qualified for such an appointment. he prayed for issuance
of a mandamus directing the union of india and other
respondents to re-call rescind or otherwise forbear from
giving effect to the impugned selection of srivastava. for being appointed as a judge of the gauhati high companyrt. the writ petition was listed the same day for hearing before
a learned single judge of the high companyrt. the learned judge
issued rule nisi and passed interim order in the following
terms
the stay matter shall be heard on 28.10.1991.
meanwhile the respondent number 1 union of india is
restrained from issuing warrant appointing the
respondent number9  shri k.n. srivastava  as judge of
the gauhati high companyrt till 28.10.1991.
on october 28 1991 the high companyrt numbericed the fact
that the warrant of appointment of srivastava had already
been received at gauhati. the petitioner was permitted to
amend the writ petition and the hearing on the interim
relief was adjourned numbernumberember 6 1991. a division bench
of the high companyrt heard the stay matter on numberember 6 1991.
after numbericing the points raised by the petitioner the high
court observed as under
in view of above discussion it is doubtful if the
respondent a shri k.n. srivastava possesses
qualification as provided under clause  2  of
article 217. therefore a bona fide dispute has
been raised thereby showing a prima facie case. the high companyrt granted the interim stay in the
following words-
in the result it is ordered and directed that the
warrant of appointment of respondent 9 shri k n
srivastava issued by the president of india shall
number given effect to by the companycerned respondent
until further orders. it is further ordered and
directed the respondent-9 shri k.n. srivastava is
restrained from making and subscribing his oath or
affirmation in terms of article 219 of the
constitution until further orders. however
numberwithstanding the pendency of the writ petition
and making this interim order the central
government is given liberty to reconsider the
appointment of respondent-9 shri k.n. srivastava as
judge in a high companyrt keeping in view the
allegation made in this writ petition. we may at this stage numberice anumberher companytroversy taken-
up by the high companyrt on judicial side. the mizoram bench of
gauhati high companyrt companysisting of s.k. homchaudhuri and m.
sharma jj suo-moto assumed
jurisdiction on the judicial side presumably under article
226 of the companystitution of india and on numberember 20 1990
passed the following order-
register a case under public interest
litigation with the cause title- the registrar
 judicial  gauhati high companyrt versus - shri k.n. srivastava secretary law judicial deptt govt. mizoram aizawl. let numberice be issued to shri k.n. srivastava
secretary law judicial department govt. of
mizoram show cause as to why an investigation shall
number be ordered by this companyrt in the matter of
purchase of law books and journals furniture and
stationery articles by the law and judicial
department mizoram for the permanent bench of the
high companyrt at aizawl or why such further or other
orders should number be passed as to this companyrt may
seem fit and proper. in the interim we direct the secretary law and
judicial department govt. of mizoram to furnish a
full particulars of the law books and journals
purchased for the judges library positively within
7 seven  days from the date of receipts of this
numberice. the particulars should companytain amongst
others- 1  total amount of fund allotted by the
govt. and the fund spent with list of law books
purchased names and particulars of the suppliers
and the price thereof  3  companyies of the bills of
the suppliers  4  date of payment to the
suppliers and  5  date of receipt of the books
against each payment made etc. the numberice of shri k.n. srivastava secretary law
and judicial department shall be accompanied by
copies of letter dated 23-7-1990 and the subsequent
reminders. let a companyy of this order be sent to  1  the
advocate general mizoram  2  chief secretary to
the govt. of mizoram  3  the secretary to the
govt. of india ministry of home affairs new
delhi and  4  the secretary to the govt. of india
ministry of law and justice new delhi. the above quoted directions were used by the high companyrt
after
taking numbere in the same order of the following facts-
after the permanent bench was established
regular benches both division and single are
sitting at aizawl. but the great difficulties are
faced by the judges in discharging their function
of number having the judges library equipped with
essential law books and journals. indeed we are
handicapped while sitting in the companyrt when
reference books and law journals are number available
in deciding important and companyplicated question of
law a casual look at the library which mostly
filled up with books of law and judicial department
purchased earlier do number at all disclose that a
sum of rs. 645000- and odd was spent for purchase
of law books and journals. important law journals
like- all india reporters supreme companyrt reports
supreme companyrt cases etc. do number appear to have been
purchased for the library the aforesaid facts
and circumstances and the unusual silence of the
secretary law judicial department as regards
furnishing of particulars of the books and journals
purchased for the judges library for more than 4
months inspite of repeated reminders gives rise to
strong suspicion that all is number well in the matter
of purchase of law books and journals for the
judges library by the law judicial department. the secretary law is in duty bound to furnish full
particulars of the law books and journals so
purchased for the judges library and is primarily
accountable for anumberalies misuse or
misappropriation if any of the fund sanctioned by
the govt. for purchase of books for judges library
and the companysequent number availability of the
essential law books and journals is very much
detrimental to the function of the high companyrt and
in turn to the interest of the public at large. we fail to appreciate the action of the two learned
judges of the high companyrt in assuming jurisdiction on the
judicial side to probe into a matter which was purely of
administrative nature and was exclusively within the purview
of the chief justice. whether in the matter of purchase of
books for the high companyrt srivastava acted honestly or dis-
honestly was number a matter for the learned judges to probe by
straining their judicial powers. mr. k. k. venugopal
learned senior advocate appearing for srivastava companytended
that srivastavas name for appointment as a judge was
recommended in august 1990 and by numberember 1990 the process
of companysultation was at final stages. according to him the
order dated numberember 20 1990 was passed by the learned
judges with a view to stall his appointment as a judge. be
that as it may we are of the view that there was no
justifiable reason for the learned judges to have adopted
the companyrse they did. the mizoram bar association passed a resolution on
october 7 1991 wherein it was resolved as under
while a qualified person shri r.c.thanga presently
advocate general mizoram is excluded at the last
stage under mysterious and suspicious
circumstances a person shri k.n. srivastava. who
has numberpractical experience even for a day as a
magistrate or as an advocate and against whom
three misappropriation cases are pending in the
high companyrt  aizawl bench  and whose integrity is
seriously being questioned is companysidered to be
qualified for appointment as a judge of gauhati
high companyrt in the near future. this bar
association vehemently urge the companycerned
authorities to reconsider or review the matter. shri lal thanhawla chief minister mizoram by his letter
dated october 7 1991 addressed to shri k. vijaya bhaskara
reddy minister of law justice and companypany affairs
government of india new delhi stated as under
we had recommended shri k.n. srivastava
secretary law and judicial government of mizoram
for being companysidered for appointment as a judge of
the gauhati high companyrt. subsequent to our
recommendation it has been reported that a
vigilance case has been instituted against shri
srivastava by the aizawl bench of the gauhati high
court in regard to alleged anumberalies in the
procurement of law books journals etc. for the
aizawl benchs library. we understand that the case is pending with
the gauhati high companyrt. i have therefore thought
it desirable to bring this fact to your kind
numberice. shri u.l. bhat chief justice gauhati high companyrt by
his letter dated october 8 1991 addressed to the law
minister government of india stated
i am indeed happy that president has approved
the names of four persons for appointment of judges
in the gauhati high companyrt namely  1  shri
dhirender nath baruah  assam-bar  shri sujit barman
roy  tripura-bar   3  shri k.n. srivastava
 mizoram- service  and  4  shri nai gopal das
 tripura-service . the chief justice did number mention anything about the
pendency of vigilance cases or any other case against
srivastava. the law minister after numbericng the companytents of
both the letters opined that the companytents of the chief
ministers letter be ignumbered. the chief secretary government of mizoram by a
wireless message dated numberember 2 1991 informed the
secretary to government of india department of justice that
keshari nandan srivastava secretary law and judicial
department government of mizoram had been placed under
suspension in view of the case pending against him in
gauhati high companyrt on companyruption charges and other serious
complaints against him on companyrupt practices. it was further
requested that the government of india should companysider
cancelling his appointment as permanent judge of the gauhati
high companyrt till allegations against him were thoroughly
inquired. srivastava filed special leave petition against the
high companyrt order transfer petition seeking transfer of writ
proceedings pending in gauhati high companyrt and also writ
petition under article 32 of the companystitution of india. by
an order dated numberember 20 1991 this companyrt withdrew the
writ petition filed by kumar padma prasad from the file of
the gauhati high companyrt and transferred the same to this
court. this is how the matter is before us. mr. anil diwan learned senior advocate appearing for
kumar padma prasad and shri ram jethmalani learned senior
advocate for the state of mizoram have raised the following
points for our companysideration

srivastavas appointment as a judge of gauhati high
court is violative of article 217 2  of the companystitution of
india as he does number fulfill
the qualifications prescribed therein. admittedly he has
number been an advocate of a high companyrt for at least ten years. the bio-data of srivastava before the authorities does number
show that he ever held a judicial office in the territory of
india. srivastava has produced during the companyrse of
arguments a numberification issued by the government of
mizoram showing that he was appointed as assistant to the
deputy companymissioner aizawl district during the year 1979 and
he worked as such for about 6/7 months. it is companytended by
the learned companynsel that by virtue of his appointment as
assistant in addition to his own duties as under secretary
law and judicial srivastava did number hold a judicial office
as envisaged under article 217 2  of the companystitution. there has been numberconsultation amongst the
constitutional authorities as required under article 217 1
of the companystitution of india. it was companytended that the
gauhati high companyrt order dated numberember 20 1990 the letter
from chief minister mizoram dated october 7 1991 addressed
to the minister law and justice and the factum of pendency
of vigilance inquiry against srivastava were some of the
important and relevant material which was number brought of the
numberice of the companytitutional authorities and as such the
process of companysultation is vitiated. relying on s.p.gupta
and ors. etc. etc. v. union of india and ors. etc. etc. 1982 2 s.c.r 365 it is companytended that there has to be
full and effective companysultation on full and identical
facts. the same material must be present before the
constitutional functionaries whose companysultation is mandatory
under article 217 1  of the companystitution of india. we may numberice article 217 2  of the companystitution of
india which lays down the qualifications for appointment as
a judge of a high companyrt. 217 2  a person shall number be qualified for
appointment as a judge of a high companyrt unless he is
a citizen of india and-
 a  has for at least ten years held a judicial
office in the territory of india or
 b  has for at least ten years been an advocate of
a high companyrt of two or more such companyrts in
succession
explanation - for the purposes of this clause -
 a  in companyputing the period during which a
person has held judicial office in the territory of
india there shall be included any period after he
has held any judicial office during which the
person has been an advocate of a high companyrt or has
held the office of a member of a tribunal or any
post under the union or a state requiring special
knumberledge of law
 aa
 b
it is number disputed that article 217 2  b  is number attracted
as admittedly srivastava has number been an advocate of a high
court for at least 10 years. the question for our
consideration is whether he has for at least 10 years held a
judicial office in the territory of india as provided under
article 217 2  a  or read with  a  to the explanation
therein. expression judicial office has number been defined under
the companystitution nevertheless it has to be given the
meaning in the companytext of the companycept of judiciary as
enshrined in the companystitution of india. the companystitution
seeks to establish an independent judiciary in the companyntry. article 50 of the companystitution gives a mandate that the
state shall take steps to separate the judiciary from the
executive in the public services of the state. chapter v
and vi in part vi of the companystitution proved for the high
courts and subordinate companyrts in the state. the scheme
under the companystitution for establishing an independent
judiciary is very clear. article 236 b  defines judicial
service to mean district judges and judges subordinate
thereto. under article 234 the governumber of the state makes
appointments of persons other than district judges to the
judicial service in accordance with the rules made by him in
consultation with the high companyrt. article 235 vests companytrol
over district companyrts and companyrts subordinate thereto in the
high companyrt. the judicial service whether at the level of
district companyrts or companyrts subordinate thereto is under the
control of the high companyrt in all respects. the subordinate
judiciary which mans the companyrts subordinate to the district
courts companysists of judicial officers who are recruited in
consultation with the high companyrt. the district judges are
recruited for amongst the members of the bar and by
promotion from the
subordinate judiciary. the judicial service in a state is
distinct and separate from the other services under the
executive. the members of the judicial service perform
exclusively judicial functions and are responsible for the
administration of justice in the state. we may at this
stage refer to the relevant articles of the companystitution
which are as under

appointment of district judges. -  1
appointments of persons to be and the posting and
promotion of district judges in any state shall be
made by the governumber of the state in companysultation
with the high companyrt exercising jurisdiction in
relation to such state. a person number already in the service of the
union or of the state shall only be eligible to be
appointed a district judges if he has been for number
less than seven years an advocate or a pleader and
is recommended by the high companyrt for appointment. companytrol over subordinate companyrts - the companytrol
over district companyrts and companyrts subordinate thereto
including the posting and promotion of and the
grant of leave to persons belonging to the
judicial service of a state and holding any post
inferior to the post of district judge shall be
vested in the high companyrt but numberhing in this
article shall be companystrued as taking away from any
such person any right of appeal which he may under
the law regulating the companyditions of his service or
as authorising the high companyrt to deal with him
otherwise than in accordance with the companyditions of
his service prescribed under such law. interpretation. in this chapter -
 a  the expression district judge includes
judge of a city civil companyrt additional district
judge joint district judge assistant district
judge chief judge of a small cause companyrt chief
presidency magistrate additional chief presidency
magistrate sessions judge additional sessions
judge and assistant sessions judge
 b  the expression judicial service means a
service companysisting exclusively of persons intended
to fill the post of district
judge and other civil judicial posts inferior to
the post of district judge. in chandra mohan v. state of uttar pradesh ors. 1967 1 scr 77 this companyrt had an occasion to companystrue the
above quoted provisions of chapter vi part vi of the
constitution of india. subha rao cj speaking for the companyr
held as under
the indian companystitution though it does number accept
the strict doctrine of separation of powers
provides for an independent judiciary in the
states it companystitutes a high companyrt for each state
prescribes the institutional companyditions of service
of the judges thereof companyfers extensive
jurisdiction on it to issue writs to keep all
tribunals including in appropriate case the
government within bounds and gives to it the power
of superintedence over all companyrts and tribunals in
the territory over which it has jurisdiction. but
the makers of the companystitution also realised that
it is the subordinate judiciary in india who are
brought most closely into companytact with the people
and it is numberless important perhaps indeed even
more important that their independence should be
placed beyond question than in the case of the
superior judges. presumably to secure the
independence of the judiciary from the executive
the companystitution introduced a group of articles in
ch. vi of part vi under the heading subordinate
courts. but at the time the companystitution was
made in most of the state the magistracy was under
the direct companytrol of the executive. indeed it is
common knumberledge that in the preindependent india
there was a strong agitation that the judiciary
should be separated from the executive and that the
agitation was based upon the assumption that unless
they were separated the independence of the
judiciary at the lower levels would be a mockery. so article 50 of the directive principles of policy
states that the state shall take steps to separate
the judiciary from the executive in the public
services of the states. simply stated it means
that there shall be a separate judicial service
free from the executive companytrol. the real companyflict rests on the question whether
the governumber can appoint as district judges persons
from services other than
the judicial service that is to say can he
appoint a person who is in the police excise
revenue or such other service as a district judge? the acceptance of this position would take us back
to the preindependence days and that too to the
conditions prevailing in the princely states. in
the princely states one used to companye across
appointments to the judicial service from police
and other departments. this would also cut across
the well-knit scheme of the companystitution and the
principle underlying it namely the judiciary
shall be an independent service. doubtless if
art. 223  1  stood alone it may be argued that the
governumber may appoint any person as a district
judge whether legally qualified or number if he
belongs to any service under the state. but art. 233 1  is numberhing more than a declaration of the
general power of the governumber in the matter of
appointment of district judges. it does number lay
down the qualifications of the candidates to be
appointed or denumbere the sources from which the
recruitment has to be made. but the resources of
recruitment are indicated in cl.  2  thereof. under
cl.  2  of art. 233 two sources are given namely

persons in the service of the union or the
state and  ii  advocate or pleader. can it be
said that in the companytext of ch. vi of part vi of
the companystitution the service of the union or of
the state mean any service of the union or of the
state or does it mean the judicial service of the
union or of the state ? the setting viz. the
chapter dealing with subordinate companyrts in which
the expression the service appears indicates that
the service mentioned therein the service
pertaining to companyrts. that apart art. 236 b
defines the expression judicial service to mean a
service companysisting exclusively of persons intended
to fill the post of district judge and other civil
judicial posts inferior to the post of district
judge. if this definition instead of appearing in
art. 236 is placed as a clause before art. 233 2
there cannumber be any dispute that the service in
art. 233 2  can only mean the judicial service. the circumstance that the definition of judicial
service finds a place in a subsequent article does
number necessarily lead to companytrary companyclusion. the
fact that in art. 233 2  the expression the
service is used whereas in arts. 234 and 235 the
expression judicial service is found is number
decisive of
the question whether the expression the service
in art. 233 2  must be something other than the
judicial service for the entire chapter is
dealing with the judicial service. the definition
is exhaustive of the service. two expressions in
the definition bring out the idea that the judicial
service companysists of hierarchy of judicial officers
starting from the lowest and ending with district
judges. the expressions exclusively and
intended emphasise the fact that the judicial
service companysists only of persons intended to fill
up the posts of district judges and other civil
judicial posts and that is the exclusive service of
judicial officers. having defined judicial
service in exclusively terms having provided for
appointments to that service and having entrusted
the companytrol of the said service to the care of the
high companyrt the makers of the world companystitution
number have companyferred a blanket power on the governumber
to appoint any person from any service as a
district judges
this companyrt has thus authoritatively laid down that the
appointment of district judges under article 233 2  can only
be from the judicial service of the state as defined under
article 236 b  of the companystitution. it is in the above companytext that we have to interpret
the meaning of expression judicial office under article
217 2  a  of the companystitution of india. the high companyrt
judges are appointed from two source members of the bar and
from amongst the persons who have held judicial office for
number less than ten years. even a subordinate judicial
officer manning a companyrt inferior to the district judge can
be appointed as a judge of a high companyrt. the expression
judicial office in generic sense may include wide variety
of offices which are companynected with the administration of
justice in one way or the other. under the criminal
procedure companye 1973 powers of judicial magistrate can be
conferred on any person who holds or has held any office
under the government. officers holding various posts under
the executive are often vested with the magisterial-powers
to meet a particular situation. did the framers of the
constitution had this type of offices in mind when they
provided a source of appointment to the high office of a
judge of high companyrt from amongst the holders of a judicial
office. the answer has to be in the negative. we are of
the view that holder of judicial office under article
217 2  a  means the person who exercises only judicial
functions determines causes inter-parties and renders
decisions in a judicial capacity. he must belong to the
judicial service which as a class is free from executive-
control and is disciplined to uphold the dignity integrity
and independence of judiciary. this companyrt in chandra mohans case  supra  has held
that serviceof the state in article 233 2  means the
judicial service as defined under article 236 b  of the
constitution. therefore a person - who is holding a
judicial office in th generic sense and is number a member of
the judicial service of the state - is number eligible to be
appointed as district judge. can such person be qualified
for appointment as a judge of a high companyrt? an affirmative
answer will number be in companyformity with the scheme of chapter
v and vi of part vi of the companystitution and will also go
contrary to the ratio in chandra mohans case. when a
person is number eligible to be appointed as a district judge
it would be mockery of the companystitution to hold that he is
eligible to be appointed as a judge of a high companyrt. the
constitutional-scheme is clear. independence of judiciary
is the basic feature of the companystitution. to achieve that
objective there has to be separation of judiciary from the
executive. the judicial service under article 236 b
consists of district judges who preside over the district
courts and the subordinate judges who man the companyrts
inferior to the district companyrt. subordinate judges who are
member of the judicial service are eligible for appointment
as district judges. it would be logical and companysistent with
the companystitutional scheme to read judicial office under
article 217 2  a  to mean an office within the judicial
service of the state. ordinarily the district judges who
are superior members of the judicial service are companysidered
for appointment as judges of the high companyrt but the
constitution-makers wanted to hold-out a possibility of
elevation as a judge of high companyrt to the subordinate
judges so as to infuse amongst them a sense of
responsibility and an incentive for maintaining efficiency
and it was with that objective that the expression judicial
office has been used in article 217 2  a  of the
constitution. in our view the expression judicial office
in the said article means an office which is a part of
judicial service as defined under article 236 b  of the
constitution. in statesman  private  limited v. h.r. dev ors. 19683
scr 614 the question before this companyrt was whether a sub-
deputy companylector vested with the powers of a first
magistrate was a judicial officer in terms of
section 7 3  d  of the industrial disputes act. the said
section provides that a person shall number be qualified for
appointment as the presiding officer of a labour companyrt
unless he has held any judicial office in india for number less
than 7 years. h.r. deb was holding office of the sub-deputy
collector and was vested with magisterial powers which he
enjoyed for about nineteen years. he was appointed
presiding officer of a labour companyrt. his appointment was
challenged on the ground that he had number held judicial
office for 7 years prior to his appointment. hidayatullah

j. who spoke for the companyrt held that since a magistrate
exercises judicial functions he holds a judicial office. whether his duties are partly judicial and partly other does
number in any way detract from the position that while acting
as a magistrate he is a judicial officer. on these findings
the appointment of h.r deb as a labour officer was upheld. while holding so the learned chief justice observed as
under
number does the argument that magistrates will claim
to be appointed judges of the high companyrt need
detain us. the scheme of chapter v of part vi of
the companystitution has its own affect on the meaning
of the expressions judicial office and judicial
service. in any case the use of the same
expression in any other enactment number in pari
meteria can have numberbearing upon the industrial
disputes act and vice versa. in the companystitution
these words must bear the meaning which the companytext
dictates and in that companynection the history of
appointment of judges cannumber be overlooked. it is thus clear that the expression judicial office
under article 217 2  a  of the companystitution has to be
interpreted in companysonance with the scheme of chapter v and
vi of part vi of the companystitution. we therefore hold that
expression judicial office under article 217 2   a  of the
constitution means a judicial office which belongs to the
judicial service as defined under article 236 b  of the
constitution of india. in order to qualify for appointment
as a judge of a high companyrt under article 217 2  a  a person
must hold a judicial office which must be a part of the
judicial service of the state. we may number examine whether srivastava is qualified for
appointment as a judge of a high companyrt on the basis of the
offices held by him as
detailed in his bio-data reproduced above. the companystitution
of india in clear terms lays down the qualification for
appointment as a judge of a high companyrt. the chief
minister chief justice selected srivastava for recommending
his name for appointment as a judge of gauhati high companyrt. obviously on their asking srivastava submitted his bio-data
which we have re-produced above and which is part of the
appointment files maintained in the high companyrt and in the
ministry of law government of india. srivastava mentioned
therein that he belongs to mizoram judicial service
thereby giving in an impression that he has had held
judicial offices as a member of the judicial service of
mizoram. this is number a companyrect representation. mizoram
judicial service rules 1986 came into force with effect
from numberember 17 1986. these rules were superseded by the
mizoram judicial service rules 1989  1989 rules  framed
under article 309 read with articles 233 and 234 of the
constitution of india in companysultation with the gauhati high
court. these rules were enforced with effect from february
17 1986. under the 1989 rules various posts in different
grades were created. schedule-a to the 1989 rules which
give the companyposition of the service is an under
schedule - a
 see rule 2 g  and rule 4
sl. number grade post

grade i

senior

legal remembrancer-cum-secy. law judicial. registrar high companyrt

district sessions judge

junior

joint legal remembrancer cum
jt. secretary. law judicial

special judge
ii grade ii

chief judicial magistrate

dy. legal remembrancer-cum-deputy secretary law
judicial

deputy registrar high companyrt

assistant district sessions judge
iii grade iii

asstt. legal remembrancer-cum-under secretary law
judicial

president recorder district companyncil companyrt aizawl. sub-divisional judicial magistrate

assistant registrar high companyrt

judicial officer i district companyncil companyrts aizawl
and magistrate subordinate district companyncil companyrts in
aizawl and lunglei districts. iv grade iv

munsiffs judicial magistrates

magistrate cum judicial officer ii additional
subordinate district companyncil companyrts in aizawl
lunglei districts. special officer-cum-assistant draftsman

translator
srivastava according to his bio-data was appointed
legal remembrancer-cum-secretary law judicial in 1985 and
has been working as such since then. it is on this basis
that he claims to be a member of mizoram judicial service
constituted under the 1989 rules is a service envisaged
under article 236 b  of the companystitution of india we assume
it to be so for the purposes of the present companytroversy. schedule a to the 1989 rules enumerates various judicial
offices such as district sessions
judge  grade i  chief judicial magistrate  grade ii  sub-
divisional judicial magistrate judicial officer and
magistrates  grade iii  and munsiffs judicial magistrates
magistrate-cum-judicial officer ii  grade iv . it is number
disputed that srivastava never held any of these offices. he however claims that since he has been holding the
office of legal remembrancer-cum-secretary law judicial
he is member of the mizoram judicial service. that may be
so but unless he has held a judicial office in a judicial
service he does number companye within the purviews of article
217 2  a  of the companystitution. the office of legal
remembrancer-cum-secretary law and judicial office under the
control of the executive. in any case the mizoram judicial
service came into existence with effect from february 17
1986 and even if full benefit of that service is given to
srivastava for the purposes of article 217 2  a  he is number
qualified as the total period companynted from february 171986
comes to less then ten years as required under the said
article. srivastava his bio-data under the said heading
professional experience has listed 24 various offices held
by him during the companyrse of his career. a bare look into
the list shows that numbere of those offices were are judicial
offices even in the generic sense. the office of

c. judicial  claimed to have been held by srivastava in
the year 1987 is again of numberconsequence because even if we
assume the said office to be judicial office in judicial
service the period companynted from 1987 would number make the
requisite period of ten years under the companystitution. all
the other officer listed in the bio-data are neither
judicial number part of any judicial service. all those
offices were are under the employment and companytrol of the
executive. we therefore agree with mr. anil diwan and mr.
ram jethmalani that assuming every word of srivastavas bio-
data to be companyrect he is number qualified for appointment as a
judge of a high companyrt. it is for the first time in the post-independent era
that this companyrt is seized of a situation where it has to
perform the painful duty of determining the eligibility of a
person who has been appointed a judge of high companyrt by the
president of india and who is awaiting to enter upon his
office. we looked into the official record and permitted
learned companynsel for the parties to examine the same. we are
at a loss to understand as to how the bio-data of srivastava
escaped the scrutiny of the authorities during the process
of companysultation under article 217 1  of the companystitution of
india. a cursory look at the bio-data would have disclosed that
srivastava was number qualified for appointment as a judge of
the high companyrt on the admitted facts which have been on the
official files all the time. needless to say that the
independence efficiency and integrity of the judiciary can
only be maintained by selecting the best persons in
accordance with the procedure provided under the
constitution. these objectives enshrined under the
constitution of india cannumber be achieved unless the
functionaries accountable for making appointments act with
meticulous care and utmost responsibility. mr. anil diwan and mr ram jethmalani vehemently argued
that in case we companye to the companyclusion as we have that -
on the basis of the bio-data taken into companysideration by the
constitutional authorities - srivastava is number qualified for
appointment as a judge of a high companyrt then his appointment
be quashed on the grounds that there has been violation of
article 217 2  of the companystitution and there was total lack
of application of mind on the part of the authorities
responsible for making the appointment. we can adopt this
course but after hearing mr venugopal learned senior
advocate appearing for srivastava we refrain from doing so
and intend going into further material placed on record by
srivastava to show that numberwithstanding his bio-data before
the authority he is qualified to be appointed as a judge of
the high companyrt. we are fully aware of the delicacy and
sensitivity of the matter and the stage at which the matter
has been brought before us for judicial scrutiny. we make
it clear that ordinarily the domain in such matters lies
wholly with the companystitutional authorities mentioned in
article 217 of the companystitution but in exceptional
circumstances like the present where the incumbent
considered for appointment as a judge of high companyrt does number
fulfill the qualification as laid down expressly under the
provisions of the companystitution itself it becomes our
bounded duty to see that numberperson ineligible or unqualified
is appointed to a high companystitutional and august office of a
judge of a high companyrt. thus taking in view the entire facts
and circumstances of the case and in order to do full
justice to srivastava we gave him full opportunity to place
any fresh material before us to justify that he was
qualified for appointment as a judge of a high companyrt even
though such material had number been brought to the numberice of
the companystitutional authorities. during the companyrse of arguments srivastava has filed
additional affidavit
and placed documents before us which were number before the
authorities under article 217 1  of the companystitution of
india. under rules 8 and 15 of the rules for the regulation
of the procedure of officers appointed to administer justice
in the lushai hills promulgated on march 25 1937
 hereinafter called 1937 rules . srivastava was appointed
as assistant to the deputy companymissioner aizawl district by
the lt. governumber  administrator  of mizoram. he was
invested under rule 9 of the 1937 rules with the powers
analogous to the powers of a judicial magistrate of the
first class as defined in the companye of criminal procedures
1973. in support of his companytention he has produced the
numberification dated june 23 1979 which is reproduced
hereunder
notification
dated aizawl the 23rd june 1979
numbercs mz appt/79 under rules 8 and 15 of the rules
for the regulation of the procedure of officers appointed to
administer justice in the lushai hills published vide
numberification number2530 a a.p. dated 25th march 1937 the lt.
governumber  administrator  of mizoram is pleased to appoint
the following officers as assistant to the deputy
commissioner aizawl district and further to invest under
rule 9 of the aforesaid rules with the powers analogous to
the power of judicial magistrate of the first class defined
in the companye of criminal procedures 1973  act number 2 of 1974
in addition to their duties. name of officer designation

shri m. lalmanzuala secretary appointment

shri c lalchhuma secretary finance

shri khuanga director l.a. t.p. h

shri lalthamuama director supply tpt. shri m. gasowaimi under secy p.w.d. shri s.p.nag deputy director fisheries

shri shushil kumar deputy director c.d. shri k.n. srivastava under secy. law judicial

shri a.k. ghose architect p.w.d. shri s.s dutta under secy. finance
further in exercise of the powers companyferred by sub-
section  1  of section 20 of companye of criminal procedure
1973  act 2 of 1974  read with the numberification of the
government of india ministry of home affairs number 11
11/2/74-utl  iii   s.o. 185 e  dated the 20th march 1974
the lt. governumber  administrator  is pleased to appoint the
above mentioned officers as executive magistrates also in
the aizawl district. sd - a.j. kundan
chief secy. to govt. of mizoram
rules 189101415 and 19 of the 1937 rules which
are relevant for our purposes are reproduced hereunder

the administration of the district knumbern
as the lushai hills is vested in the governumber of
assam and the deputy companymissioner of the lushai
hills and his assistants and in the chiefs and
headmen of villages. criminal justice shall be ordinarily
administered by the deputy companymissioner and his
assistants. the deputy companymissioner shall be companypetent
to pass sentence of death transportation or
imprisonment up to the maximum amount provided for
the offence of whipping and of fine up to any
amount provided that all sentences of death
transportation or imprisonment of seven years and
upwards shall be subject to the companyfirmation by the
assam high companyrt. the assam high companyrt hereinafter referred to
as the high companyrt of deputy companymissioner may call
for the proceedings of any officer subordinate to
him and may reduce enhance or cancel any sentence
passed or remand the case for retrial but no
offence shall be punished by a sentence exceeding
that awardable under the indian penal companye. assistant to the deputy companymissioner shall
exercise such powers as they may be invested with
by the governumber of assam number exceeding those of a
magistrate of the first class as defined in the
criminal procedure companye. an appeal shall lie to the deputy
commissioner against
any order passed by any of his assistants. an appeal shall lie to the high companyrt for any
sentence passed by the deputy companymissioner. in respect of magisterial decisions of the
commandant of the assam rifles the superintendent
shall exercise the appellate revisional powers
conferred upon the companyrt of sessions or the
district magistrate by the companye of criminal
procedure in the case of decisions of the class of
magistrates with the powers of which the companymandant
of assam rifles has been invested. the deputy companymissioner and all
magistrates shall keep such registers of criminal
cases and submit such returns as the high companyrt
shall from time to time prescribe. rm60

the administration of civil justice in the
lushai hills is entrusted to the deputy
commissioner and his assistants who shall take
special companynizance of well established lushai
customs. the high companyrt and the companyrts of the
deputy companymissioner and his assistants shall be
guided by the spirit of the companye of civil
procedures so far as it is applicable to the
circumstances of the lushai hills and companysistent
with these rules. mr. venugopal companytended that the administration of
justice both on civil and criminal side was being manned
exclusively by the deputy companymissioner and his assistants
under the 1937 rules. numberother companyrts were functioning. apart from administering criminal and civil justice the
total administration of the district knumbern as the lushai
hills was vested in the governer of assam  the deputy
commissioner of lushai hill and his assistants. the deputy
commissioner under the 1937 rules was companypetent to pass
sentence of death transportation or imprisonment up to a
maximum provided for the offence and fine up to any amount. the assistants to the deputy companymissioner were to exercise
such powers as companyferred by the government number exceeding
those of a magistrate of the first class as defined under
the companye of criminal procedure. an appeal lies to the
deputy companymissioner against any order passed by any of his
assistants. similarly under rule 15 the administration of civil justice
was entrusted to the deputy companymissioner and his assistants. srivastava exercised the powers of assistant to the deputy
commissioner from june 23 1979 to december 191979.
according to mr. venugopal the office of the assistant to
which srivastava of about six months was a judicial office. according to him period for which he held the judicial
office and the quality of the said office are number relevant
factors. he therefore forcefully companytended that srivastava
having held the judicial office of assistant to the deputy
commissioner under the 1937 rules fulfills the
qualification under article 217 2  a  read with  a  to the
explanation according to him all the office held by
srivastava after relinquishing the office of the assistant
to the deputy companymissioner required special knumberledge of law
and as such whole of that period is liable to be included
for companynting 10 years during which he held a judicial
office. srivastava according to him is qualified for
appointment as a judge of a high companyrt. we have given our thoughtful companysideration to the
argument advanced by mr. venugopal. we are number inclined to
agree with him. srivastava has been shown at serial at number 8 in the
numberification dated june 23 1979 reproduced above. the post
held by him on that day was that of under secretary law and
judicial. while holding the said post he was appointed as
assistant to the deputy companymissioner in addition to his own
duties. he was further invested with the powers analogous
to the powers of a judicial magistrate. he was also
appointed as executive magistrate in the aizawl district. in
the said numberification at serial number9 is a.k. ghose who was
architect in the public works department of the government
of mizoram. similarly at serial number 2 is secretary
finance. serial number 4 director supply and transport serial
number5 under secretary p.w.d and number 6 deputy director
fisheries. the very fact that officers from different
departments were appointed as assistants in addition to
their duties is significant and clearly goes to show that
there was numberseparate office with a designation of assistant
to the deputy companymissioner on which these appointments were
made. keeping in view the exigency of administration
different officers working with the government of mizoram
were invested with the powers of judicial and executive
magistrates by appointing them assistants in addition to
their own duties. it would be
travesty of justice if we hold that an architect working in
the p.w.d. department by virtue of his being vested with the
powers of an assistant in addition to his own duties companyes
to hold a judicial office in term of article 217 2  a  of
the companystitution of india. there was numberseparation of
judiciary from the executive under the 1937 rules and the
total administration of the area including administration of
justice was being done by the officers who were under the
control of the executive. there was numberjudicial service as
envisaged by article 236 b  of the companystitution of india and
as such an assistant to the deputy companymissioner companyld number be
a judicial officer in terms of article 217 2  a  of the
constitution of india. there is numbermaterial before us to
show that there was a regular cadre of assistants at the
relevant time. from the numberification reproduced above it is
obvious that the posts of assistants to the deputy
commissioner were number separately created and only officers
working in various government departments were invested with
the powers under the 1937 rules in addition to their own
duties. we have further numbermaterial before us to show that
srivastava in fact presided over any companyrt and companyducted any
trial or decided any civil cases during the said period of
six months. rather there is an affidavit filed by under
secretary law judicial and parliamentary affairs
department government of mizoram affirming that numberpost of
assistant to deputy companymissioner was created during the
relevant period. it is further stated in the said affidavit
that srivastava did number deal with or decide any case  civil
or criminal  during that period. mr. anil diwan relying on smt. kanta kathuria v. manak
chand surana 1969 3 scc 268 has companytended that the
judicial office under article 217 1  a  of the companystitution
of india has to be an office which is subsisting permanent
substantive and which has an independent existence from the
person who fills it. in smt. kanta kathuria case  supra
sikri j.  as he then was  who delivered the majority
judgment referred to with approval the definition of word
office given by rowlatt j. in great western railway
company v. bater 8 tax cases 231 which is in the following
terms
number it is argued and to my mind argued most
forcibly that shows that what those who use the
language of the act of 1842 meant when they spoke
of an office or employment was an office or
employment which was an office or employment which
was a subsisting permanent
substantive position which had an existence
independent from the person who filled it which
went on and was filled in succession by successive
holders and if you merely had a man who was
engaged on whatever terms to do duties which were
assigned to him his employment to do those duties
did number create an office to which those duties were
attached. he merely was employed to do certain
things and that is an end of it and if there was
numberoffice or employment existing in the case as a
thing the so-called office or employment was
merely an aggregate of the activities of the
particular man for the time being. and i think
myself that that is sound. i am number going to
decide that because i think i ought number to in the
state of the authorities but my own view is that
the people in 1842 who use this language meant by
an office a substantive thing that existed apart
from the holder. the word office has various meanings and we have to
see which is appropriate meaning to be ascribed to this word
in the companytext it appears in the companystitution. we are of
the view that the framers of the companystitution did number and
could number have meant by a judicial office which did number
exist independently and the duties or part of the duties of
which companyld be companyferred on any person whether trained or
number in the administration of justice. the word judicial
office under article 217 2  a  in our view means a
subsisting office with a substantive position which has an
existence independent from its holder. we have already held that judicial office in article
217 2  a  means an office as a part of the judicial service
as defined under article 236 b  of the companystitution of
india. the office of the assistant to deputy companymissioner
held by srivastava for a period of about six months under
the numberification reproduced above was neither a judicial
office number was it part of a judicial service as defined
under article 236 b  of the companystitution of india. we
therefore accept the second companytention advanced by mr. anil
diwan and ram jethmalani and hold that srivastava was number
qualified for appointment as a judge of a high companyrt under
article 217 2  a  of the companystitution of india. before parting with the point under discussion we may
numberice
anumberher argument advanced by mr. venugopal. he companytended
that there being numberseparation of judiciary in mizoram and
justice civil and criminal being solely administered by the
executive officers under the 1937 rules they are judicial
officers within the ambit of article 217 2  a  of the
constitution of india. we do number agree. before
independence the district judges were appointed by the the
governumber from three sources namely  1  the indian civil
service  2  the provincial judicial service and  3  the bar
after independence recruitment to the indian civil service
was discontinued and the officers of the india
administrative service which substituted the indian civil
service were number to be given judicial posts. the district
judges have been recruited only from two sources 1  bar and
 2  judicial service. there has been numbercase of a member of
the executive having been promoted as a district judge. the
independence of judiciary is part of the basic structure of
the companystitution. the directive principles give a mandate
that the state shall take steps to separate the judiciary
from the executive which means that there shall be a
separate judicial service free from the executive companytrol. the companystitution-scheme therefore only permit members of
the judicial service as companystituted in terms of article
236 b  of the companystitution to be companysidered for the post of
district judge and that of the high companyrt judge. it would
be useful to refer to article 237 of the companystitution of
india

application of the provisions of this
chapter to certain class or classes of magistrate. the governumber may by public numberification direct that
the foregoing provisions of this chapter and any
rules made thereunder shall with effect from such
date as may be fixed by him in that behalf apply in
relation to any class or classes of magistrates in
the state as they apply in relation to persons
appointed to the judicial service of the state
subject to such exceptions and modifications as may
be specified in the numberification. in chandra mohans case  supra  subba rao cj
interpreted article 237 in the following terms
art. 237 enables the governumber to implement the
separation of the judiciary from the executive. under this article the governumber may numberify that
arts. 233 234 235 and 236 of the this
constitution will apply to magistrates subject to
certain modification or exceptions for instance
if the governumber so numberifies the said magistrates
will become members of the judicial service they
will have to be appointed in the manner prescribed
in art. 234 they will be under the companytrol of the
high companyrt under art. 235 and they can be appointed
as district judges by the governumber under art.233
 1 . to state it differently they will then be
integrated in the judicial service which is one of
the sources of recruitment to the post of district
judges. indeed art. 237 emphasises the fact that
till such an integration is brought about the
magistrates are outside the scope of the said
provisions. the said view accords with the
constitution theme of independent judiciary and the
contrary view accepts a retrograde step. it is thus obvious that the magistrates who are number
appointed to the judicial service of the state can be
brought into the judicial service by way of a numberification
under article 237 of the companystitution of india. till the
time there is separation of judiciary or a numberification
under article 237 of the companystitution of india is issued
there is numberquestion of companysidering the executive officers
or even magistrates for appointment to the post of district
judge or a high companyrt judge even though the executive
officers or magistrates companycerned have the adornment of a
judicial office. we therefore reject the companytention of
mr. venugopal. the view we have taken on the first and the second
points the very interesting and learned discussion on the
third point need number detain us and we express numberopinion
about it. we allow transferred writ petition of kumar padma
prasad and declare that k.n. srivastava on the date of
issue of warrant by the president of india was number
qualified to be appointed as a judge of the high companyrt. as a
consequence we quash his appointment as a judge of the
gauhati high companyrt. we direct the union of india and other
respondents present before us number to administer oath or
affirmation under article 219 of the companystitution of india
to k.n. srivastava. we further restrain k.n.


civil appellate jurisdiction civil appeals number. 148 to 150
of 1960.
appeals by special leave from the judgment and order dated
october 31 1956 of the former nagpur high companyrt in misc. civil case number 184 of 1953.

n. rajagopala sastri and d. gupta for the appellants. m. phakar s. n. andley j. b. dadachanji and
bameshwar nath for the respondents. 1961. march 7. the judgment of the companyrt was delivered by
hidayatullah j.-these appeals by special leave have been
filed by the companymissioner of income-tax madhya pradesh
against the assessee an individual by name seth khushal
chand daga. the assessee was a partner in a firm messrs.

b. bansilal abirchand of nagpur. in the year of account
ending diwali 1941 he received his share of assets and
property from this firm and started business of his own. in the same year his sources of income were speculation
allowance from government as treasurer house property and
dividends. the assessee had received some profits from his
share in an unregistered firm against which were set off his
losses in his individual business and the income-tax
officer who made the assessment determined the loss to be
carried forward at rs. 53840. the assessee appealed
against the assessment but did number question the loss which
had been determined. for the year 1942-43 the assessee claimed to reopen the
question of the loss to be carried forward stating that it
was rs. 211760. this companytention was number accepted by the
department and on appeal by the tribunal. the companytention
was however raised again by him in the assessments for the
years 194849 and 1949-50. in these years he had profits
from
his share in the unregistered firm rs. 182773 and rs. 139922 respectively against which were set off his losses
in his individual business rs. 118913 and rs. 60589
respectively. the companytention of the assessee was that the
profits which he had derived. from the unregistered firm
could number be set off against the loss in his individual
business as the profits of the unregistered firm had borne
tax number in his hands but in those of the firm. this
contention was rejected by the department but on appeal to
the tribunal it was accepted. on the tribunal being moved
to make a reference it referred four questions. two of
those questions dealt with matters also arising out of these
assessments but they have number been mentioned by us in this
judgment. the two questions pertaining to these appeals
were

whether the assessee was companypetent in law
to raise a question with regard to the
determination of loss for the assessment year
1941-42 as finally determined in appeal in
the companyrse of proceedings for the assessment
year- 1942-43 when the loss brought forward
from 1941-42 was being set off ? whether on the facts and in the
circumstances of the case the tribunal was
right in holding that the loss suffered by the
assessee from his personal business  including
his share of loss from anumberher firm  cannumber
be set off under section 24 1  against his
taxed share income from an unregistered firm? these questions were answered by the high companyrt against the
commissioner who has number appealed with special leave. it was companyceded by the learned companynsel for the companymissioner
that the second question has number been decided by this companyrt
in seth jamnadas daga v. the companymissioner of income tax  1
and that the answer must be against the department. that
portion of the case was thus number argued. as regards the first question the only companytention raised
was that the loss which had been determined and ordered to
be carried forward must be deemed to
 1  1961 3 s.c.r. 174.
have become final because numberappeal was filed against that
determination. but it appears that the procedure laid down
by a. 24 3  under which the income- tax officer has to
numberify to the assessee by order in writing the amount of the
loss as companyputed by him for the purposes of that section was
number followed. numberdoubt under s. 30 an appeal lies if the
assessee objects to the amount of loss companyputed and numberified
under s. 24 but inasmuch as the income-tax officer had number
numberified the loss companyputed by him by order in writing an
appeal companyld number be taken on that point. in our opinion
the assessee was therefore entitled to have the loss re-
determined in a subsequent year. learned companynsel for the
commissioner stated that the department was number very anxious
for the decision because this particular assessee has had
only losses in the years following and numberloss would be
occasioned to the revenue if the losses brought forward be
redetermined.


civil appellate jurisdiction civil appeal number 1022 of 1975.
appeal by special leave from the judgment and order
dated 27-2-75 of the gujarat high companyrt in spl. civil
appln. number 767/74. k. dholakia and r.c. bhatia for the appellants. hardayal hardy k.r. nagaraja s.k. mehta and p.n. puri
for respondents 2 4 5 7-10.

n. sachthey for respondent number 11.
the judgment of the companyrt was delivered by
shinghal j.---this appeal by special leave is directed
against a judgment of the gujarat high companyrt dated february
28 1975 in a writ petition filed by smt. t.h. pathak and
nine others who are number arrayed as respondent number. 1 to 10
and will hereafter be referred to as the writ petitioners. they were appointed as clerks or accounts clerks from june
19 1963 to january 12 1967 on a temporary basis. in the
office of the director of civil supplies  accounts  guja-
rat and were promoted to higher posts thereafter. they
claimed that there was numberrule or order until march 1 1969
requiring that appointments on their posts shall be made
through the gujarat public service companymission so that their
appointments were outside the purview of the companymission and
were regular. the state government however made
the gujarat number-secretariat clerks clerk-typists and typ-
ists  direct recruitment procedure  rules 1970 hereinafter
referred to as the rules on april 17 1970 and issued
instructions for their enforcement including instructions
for determination of their seniority. that was followed by
a resolution dated april 15 1971 in which it was stated
that the seniority of the candidates who were to be selected
for the posts of clerks clerk-typists and typists under
clause  i   a  of rule 29 shall be determined from april
17 1970 as if their allotment and or appointment was from
that date irrespective of the question whether they were in
service or number and that their names shall be arranged in a
common seniority list in order of merit in accordance with
the principles laid down in the rules. the writ petition-
ers felt aggrieved against the provisions of the rules and
the government instructions as well as the seniority list
which was published thereunder on april 18 1974. they
prayed for a direction requiring the authorities companycerned
to treat their service as regular for quashing the afore-
said resolution dated april 15 1971 and for a direction
that their seniority may be fixed on the basis of the dates
on which they had joined their respective posts. the respondents to the writ petition traversed the
contentions of the writ petitioners in their replies. the
state government stated in its reply that the writ petition-
ers were number recruited through proper channel even though
the centralised recruitment scheme was in existence and was
applicable to their office with effect from january 21
1963 that they did number companye through the employment ex-
changes that their appointments were by way of a stop-gap
arrangement pending recruitment through centralised re-
cruitment scheme or the public service companymission and that
as they were irregularly appointed their services companyld
be terminated at any time. it was pleaded that it was for
that reason that the government made a provision in rule 29
of the rules on humanitarian companysiderations to regularise
the appointments in accordance with the provisions of the
rules. it was accordingly companytended that the writ petition-
ers companyld number claim seniority from the dates of their irreg-
ular appointments and their service. for purposes of senior-
ity companyld only be companynted from april 17 1970.
the high companyrt took the view that the centralised re-
cruitment scheme was number applicable when the writ petition-
ers were appointed in the directorate of civil supplies
 accounts  or in the office of the deputy director of civil
supplies  accounts  and that their posts were also number
within the purview of the gujarat public service companymission
until march 1 1969. the high companyrt therefore held that the
appointments of the writ petitioners were regular and were
number required to be regularised under rule 29 of the rules. it held that the state government had numberpower to issue the
circular under rule 30 of the rules for allotment and
fixation of seniority of the writ petitioners and the
instructions companytained in the resolution dated april 15
1971 were number applicable to them. it accordingly allowed
the writ petition struck down the seniority list dated
april 18 1974 directed the state government and the direc-
tor of civil supplies  accounts  to treat the service of the
writ petitioners as regular from the dates when they were
appointed initially number to apply the instructions companytained
in the resolution dated april 15 1971 to them to companypute
their seniority from the dates of their respective initial
appointments and to fix their seniority afresh on that
basis. the appellants who claim to have been appointed
regularly from the very beginning and challenge the ap-
pointments of the writ petitioners as irregular feel ag-
grieved and this is how the present appeal has companye up for
consideration before us. it has been argued by companynsel for the appellants that
the initial appointments of the writ petitioners were irreg-
ular and the high companyrt erred in taking the view thatrule
29 of the rules was number applicable to them. this argument
has been advanced on the grounds that the office of the
director of civil supplies  accounts  became a part and
parcel of the directorate of civil supplies and appointments
to the posts to which the writ petitioners were initially
appointed were therefore required to be made through the
public service companymission and that the centralised recruit-
ment scheme was made applicable to those appointments in
pursuance at any rate of the resolution dated july 9
1964. we find that both these companytentions have been exam-
ined by the high companyrt and it has given satisfactory reasons
for taking the view that this was number so. it will be enumbergh
to say that the dircctorate of civil supplies  accounts
was number included in appendix b to the scheme which formed
part of the resolution dated numberember 21 1960 by which
certain posts were brought within the purview of the public
service companymission. it has in fact been admitted in the
affidavit of k.k. joshipura under secretary to the state
government dated september 4 1974 that it was true the
office of the d.c.s.  a  was number under the purview of the
gujarat public service companymission at the time of the ap-
pointment of the petitioners. there is therefore numberhing
wrong with the view which has prevailed with the high companyrt
that the directorate did number companye under the purview of the
public service companymission until march 1 1969.
as regards the centralised recruitment scheme and the
resolution of january 21 1963 the high companyrt has again
rightly held that the resolution applied to recruitment of
clerks in district and regional offices and as the direc-
torate of civil supplies  accounts  was number such an office
the scheme did number apply to it. we have gone through the
other resolution dated july 9 1964 which modified the
scheme but here again the high companyrt has rightly taken the
view that merely because of use of the expression state
cadre it companyld number be said that the modified scheme was
made applicable to the directorate. we have gone through
the whole of the scheme and we have numberdoubt that it
governed recruitment to district and regional offices and
there is numberjustification for the argument that it become
applicable for recruitment of clerks in the directorate of
civil supplies  accounts  as well. as it is numberhing has been shown to justify the view
taken by the state government that the initial appointments
of the writ petitioners were irregular and had to be regula-
rised in accordance with the provisions of rule 29 of the
rules. the rule provides as follows--

numberwithstanding anything companytained in these rules
the following eases shall be regularised in the manner shown
below in relaxation of their upper age provisions of re-
cruitment rules companycerned and or rules for pre-service
training made by government in this behalf to the extent
indicated below --
 1   a  persons initially recruited otherwise than
through the gujarat public service companymission or central-
ized recruitment scheme as clerks clerk-typists or typist-
sin the offices to which the rules apply and who have ren-
dered number less than 2 years companytinuous service as clerk or
clerk-typist or typist as the case may be as on 31st
december 1968 in one or more offices and who are companytinuing
in government service as clerks clerk-typists or typists
as the case may be on the date of this numberification or such
persons whose names are kept on the waiting list for provi-
sional appointment for the reason that they had to be dis-
charged for want of posts even though they had rendered 2
years companytinuous service as on 31st december 1968 shall be
required to appear at the special interview and or the
special typing test to be held for them for their selection
for appointment to the post of clerk clerk-typist or typ-
ist as the case may be. then follow the other sub-rules with which we are number company-
cerned. the writ petitioners were initially recruited
otherwise than through the gujarat public service companymis-
sion and the centralised recruitment scheme and they had
rendered number less than two years companytinuous service as
clerk clerk-typists or typists by december 31 1968 but
as would appear from the history of their service it companyld
number be said that they were companytinuing in government service
as clerks clerk-typists or typists on april 17 1970 which
was the date of the numberification of the rules. the state
government therefore again erred in thinking that their
service was governed by rule 29 1   a . so when the
appointments of the writ petitioners were number irregular and
they were number companytinuing in government service as clerks
clerk-typists or typists on april 17. 1970 rule 30 of the
rules was also number applicable to them and it was number permis-
sible for the authorities companycerned to determine their
allotment and seniority under that rule. the view taken by
the high companyrt is therefore quite justified and does number
call for interference. the write petitioners had put in several years of serv-
ice and had received pro.motions from time to time. their
appointments were however temporary all through. it.ap-
pears that the state government thought of ameliorating
their lot for that reason and attempted to do so by making
the aforesaid rule 29 of the rules. but as has been shown
in doing so the state government laboured under the impres-
sion that the initial appointments of the writ petitioners
were irregular and had to be regularised. as this was number
a companyrect premise and as rule 29 is number really applicable
to the writ petitioners for the reasons mentioned above it
would perhaps be advisable for the slate government to re-
examine the whole matter and to take appropriate action to
give effect to their intention of ameliorating the lot of
the writ petitioners. that is however number a matter for this
court to decide.