LexPREM NATH & ORS. versus STATE OF RAJASTHAN & ORS.
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PREM NATH & ORS. v.· STATE OF RAJASTIIAN & ORS. March 15, 1967 [K, SUBBA R.Ao, C.J., J. C. SHAH, J •. M. SHBLAT, V. BHAROAVA AND 0. K. MITTER, JJ.] Constitmion of India Art. 233-Selection Committe.f consisting of Chief Justice and two other Judges only-List of eligible candidates prepared by th_e Committee transmitted by the High Court-I/ proper consultation. Art. 233A-Appointments of Civil and Additional Sessions Juda• to thR Rajasthan Higher Jw#cial Service if v"lidated. Art. 236-Civil Judge appointed as Additional Sessions Judge rmdor tire Rajasthan Higher Judicial Service Rules, 1955-I/ "District Judge" within tire definition of fhe Article. The Rnjas•han Higher Judicial Service Rules, 1955, provided that recruitment to the Hi~her lud'.cial Service had to be made by the Gover- nor from out of the lists of eli&ible candidates sent up by the Hi1!11 Court but prepared by a Selection Committee of the Hi&h Court cons11ting of the Chief Justice, the Administrative Judae and another Judae of the High Court nominated )>y the Chief Justice. When recruitments to the posts of Civil and Additional Sessions Judge were made in accordance wit'h this procedure they were challen_ged on the JP:OUnd that the Rulea contravened Art. 233 _of the Constitutron. The Hrgh 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 appoint· ments were not validated by Article 233A introduced by the Constitution (Twentieth Amendment) Act, 1966. Held : The Rules contravened Article 233 and therefore the appoint- ments were illegal; but tbe appointments were validated by Article 233A. ( i) Consultation as provided in Art. 233 is consultation with the High Court and n.ot 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 10 the High Court under the Rules is to transmit the lists prepared by the Committee and there is nothing in the Rules empowering the High Court. before submitting the lists to vary those lists if tbe High Court were tr disagree with the Committee. [190 A-CJ Chandra Mohan v. State of Uttar Pradesh, [1967] I 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 appoint- ment 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 appoint- ed as an Additionµ! 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 Judg~ an A B c D E. F G H B c D ·• H PREM NATH v. RAJASTHAN (She/at, J.) 1117 appointment has to be made under s. 9 of the Code of Criminal Proce- dure, as an Additional Sesoions Judge. Such an appointment has to be COii· sidered u an ap,POintment fallina under the deflnltlon of "District Judie" within the meanma of Art. 236, Therefore Article 233 and the RajastD&n Higher Judicial Service Rules 1955 apply to such a post and not Article 234 or the R•jasthan Judicial Service Rules, 1955. [195 E-Hl C1v1L APPELLATE JuR1so1CTION : Civil Appeal No. 93 of 1966. · Appeal from the judgment und order dated November 27, 1964 of the Rajasthan High Court in D. B. Writ :Petition No. 803 <>f 1964. M. B. L. Bhargavu and Naunlt Lal, for the appellant. S. V. Gupte, Solicitor-General, G. C. Ka.r//wal, Jtdvocate-G1111- ral for the State of Ra/asthan and K. Bcildev Mehta, for respon· dents Nos. k~· Sarjoo Prasad, S. N. Prasad, and 0. C. Mathur, for respon- dents Nos. 6 and 7 and Interveners Nos. I and 2. R. K. Garg, S. C. Agarwal and D. P. Singh, for intervener No. 3. Sami Bhushan, Addi. Advocate-General, State of U.P. and 0. P. Rana, for intervener No. 4. The Judgment of the Court was de\lvered by Sbelat, J. This appeal, by certificate, mises two questions : ( l) whether the Rajasthan Higher Judicial Service Rules, 1955 are ultra vircs Art. 2.33 and, therefore, the selections made by the Selection
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