CHANDRA MOHAN Vs. STATE OF U P

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution for a writ of quo warranto calling upon the respondents 2 to 16 to show cause by what authority they are holding the office of the District Judges and to oust them from the offices.

(2.) THE present petition is a concomitant of the Supreme Court decision in an earlier writ petition filed by the petitioner in this Court, Chandra Mohan v. State of U. P., AIR 1966 SC 1987. On 8th August, 1966, the Supreme Court reversed the decision of this Court. It declared that the U. P. Higher Judicial Service Rules (which I shall hereinafter called "the rules') providing for the recruitment of District Judges are constitutionally void, because they infringe Article 233 of the Constitution and therefore the appointments made thereunder were illegal. This decision invalidated practically all appointments made by promotion or direct recruitment. Thereupon, the judgments rendered by the Judges so appointed were challenged as being without jurisdiction. The majority opinion of a Full Bench of this Court in Jai Kumar v. State, 1966 All WR (HC) 705, decided on 17-10-1966, held that the judgments of such Judges could not be collaterally challenged in appeals till the de facto colour under which they functioned in office had been exposed. In view of this decision all judgments rendered by practically the entire strength of the District Judges after the date of decision of the Supreme Court would have been illegal. To remedy this serious situation, Parliament intervened, and, by the 20th Constitution Amendment Act, 1966 (passed on 22nd December, 1966) added the following as Article 233-A to the Constitution:--

(3.) THE Supreme Court upheld the first three points and on these grounds held the U. P. Higher Judicial Services Rules unconstitutional. It did not express any opinion on the last two questions. The fourth point urged before the Supreme Court about discrimination had been negatived by the Division Bench of this Court. The view of the Division Bench not having been set aside by the Supreme Court, still prevails, and is binding on me sitting singly. This point, therefore, has to be negatived. The fifth point, namely, that the "Civil and Sessions Judges" are not "District Judges" as defined by Article 236 of the Constitution was repelled by the Supreme Court in Prem Nath v. State of Rajasthan, AIR 1967 SC 1599. Apart from the validity of the Twentieth Amendment to the Constitution, two other points were urged. It was submitted that Sri Prayag Narain, respondent No. 12, being a Judicial Officer was not qualified to be appointed to the post of District Judge. Further, Rule 8 and the proviso to Rule 19 of the Rules violate Article 16 of the Constitution.