Document Fragment View

Matching Fragments

8. Per contra, Mr. Lalit Kishore, learned Additional Advocate General-III has submitted that the Additional District Judges, even if they are ad hoc, can function as Tribunals within the parameter of Section 165 of the Act as they are de facto Additional District Judges for all purposes.

9. The Apex Court in the case of Brij Mohan Lal v. Union of India & Ors., (2002) 5 SCC 1, while dealing with the jurisdiction of the Fast Track Court, has held thus:

"9. One of the pleas taken by the parties questioning constitutional validity of the Fast Track Courts Scheme is that the Constitution does not envisage establishment of Fast Track Courts. This plea is clearly without any substance. As observed by a nine-Judge Bench of this Court in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, appointment of a person to be a District Judge rests with the Governor, but he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has recommended the appointment. In order that the requirement of consultation does not end up as an empty formality, in the event of difference of opinion, there must be an effective interchange of viewpoints. In cases governed by Article 233(2), as a matter of rule, the High Court's recommendation must be accepted. Departure from the opinion of the High Court should be a rare event. The Constitution relies on the collective wisdom of the High Court as a body and not that of any single individual.

Though the Fast Track Courts Scheme is envisaged by the Central Government on the basis of the views indicated by the Finance Commission, yet appointments to the Fast Track Courts are to be made by the High Court keeping in view the modalities set out. Therefore, merely because the suggestion has stemmed from the Central Government, it cannot be said that there has been any violation of any constitutional mandate. It is to be noted that Chapter VI of the Constitution deals with subordinate courts. While Article 233 relates to the recruitment of the District Judges, Article 234 relates to the recruitment of members of the judicial service of the State other than District Judges. The power of appointment under Article 234 does not include the power to confirm the promotion of judicial officers other than judicial officers which is vested exclusively in the High Court by Article 234 (sic 235). Any rule which provides that the authority belongs to the Governor in consultation with the High Court, shall be void, as observed by this Court in State of Assam v. S.N. Sen, (1971) 2 SCC 889. While the promotion of District Judges shall be in the hands of the Governor acting in consultation with the High Court in terms of Article 235, the posting and promotion etc. of officers of the State Judicial Services other than the District Judges lie exclusively in the hands of the High Court. The word "control" referred to in Article 235 is used in a comprehensive sense to include general superintendence of the working of the subordinate courts. In others words the control vested in the High Court under this article is complete control, subject only to the power of the Governor in the matter of appointment and promotion of District Judges. The provision under this article is to ensure independence of the judiciary. The above being the position there is nothing constitutionally improper in the Scheme. It is the High Court which has to play a pivotal role in the implementation of the Scheme for its effective implementation and achievement of the above objectives, of course, complying with the constitutional requirements embodied in the relevant provisions of Chapter VI of the Constitution."