Document Fragment View

Matching Fragments

Is he qualified for appointment as a Judge - If so has the mandatory process of consultation under the Constitution been followed.

Shri Lal Thanhawla, Chief Minister Mizoram by his letter dated September 29, 1989 addressed to Chief Justice Gauhati High Court recommended the name of Srivastava for appointment as a Judge of Gauhati High Court Capt. W.A.Sangama, Governor of Mizoram reiterated the recommendation by his letter dated October 4, 1989. The Chief Justice Gauhati High Court by his separate letters dated October 25, 1989 addressed to Governor of Mizoram and chief Minister, Mizoram acknowledged 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 Governor 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:

4. Appointed Under Secretary Law & Judicial Govt. of Mizoram, in 1972 to look after all legal matters, advice, litigation, court cases drafting of State Legislation etc.

5. 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.

6. Appointed as Registrar of Firms & Societies, Government of Mizoram from 23.3.72 to 21.12.1979

thereby giving in an impression that he has had held judicial offices as a member of the judicial service of Mizoram. This is not a correct representation. Mizoram Judicial Service Rules, 1986 came into force with effect from November 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 These Rules were superseded by the Mizoram Judicial Service Rules, 1989 (1989 Rules) framed under Article 309 read with Articles 233 and 234 of the Constitution of India in consultation 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 composition of the Service is an under: 

3)    Special Officer-Cum-Assistant Draftsman
4)    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 Constitution of India, we assume it to be so for the purposes of the present controversy. 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 not 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 not come within the purviews of Article 217(2)(a) of the Constitution. 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 not qualified as the total period counted from February 17,1986 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 course of his career. A bare look into the list shows that none of those offices were/are judicial offices even in the generic sense. The office of D.C.(Judicial) claimed to have been held by Srivastava in the year 1987 is again of no consequence because even if we assume the said office to be judicial office in judicial service the period counted from 1987 would not make the requisite period of ten years under the Constitution. All the other officer listed in the bio-data are neither judicial nor part of any judicial service. All those offices were/are under the employment and control of the Executive. We, therefore, agree with Mr. Anil Diwan and Mr. Ram Jethmalani that assuming every word of Srivastava's bio- data to be correct he is not qualified for appointment as a judge of a High Court.