Project Report Of Constitutional Law

STATE JUDICIARY

Session: (2016-2017)

Submitted to:- Submitted by:-

Dr. Shruti Bedi Keshav Bansal
Roll no.: 143/15
B.Comm.LL.b.(H)
Section C

1
 INDEX

1. Acknowledgement
2. Table of Cases
3. The State Judiciary
(a) High Court For States ( Article 214 )
(b) Constitution Of High Courts ( Article 216 )
(c) Appointment and the Conditions of the office of the High Court ( Article
217 )
(d) Application of certain provisions relating to Supreme Court to High Courts
( Article 218)
(e) Oath or Affirmation ( Article 219 )
(f) Bar on Practice ( Article 220 )
(g) Salaries and Allowances ( Article 221 )
(h) Transfer of a Judge from one High Court to another ( Article 222 )
(i) Acting Chief Justice (Article 223 )
(j) Additional and Acting Judges (Article 224 )
4. Jurisdiction of High Courts
(a) As a Court of Record (Article 215 )
(b) Pre-constitution Jurisdiction (Article 225 )
(c) Writ jurisdiction (Article 226 )
(d) Supervisory Jurisdiction (Articles 227,228&235)
I. High Court, power of Supritendence (Article 227)
II. Transfer of certain cases to High Court (Article 228)
III. Control over subordinate Courts (Article 235)
5. Subordinate Judiciary
(a) Appointment of District judges (Article 233)
(b) Recruitment of persons other than District Judges (Article 234)
(c) Application of chapter VI to certain clesses of magistrate (Article 237)
6. Bibliography

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 Acknowledgement

Any work requires the effort of many people and this is no different. First of all I would like
to express my sincere thanks to the Director of University Institute of Legal studies, Dr.
Sangita Bhalla for giving me an opportunity to study in such a great institution. Then I thank
my teacher Dr. Shruti Bedi for firstly making me understand the contents of my topic and
then giving me a wonderful opportunity to present this topic in the form of an assignment.
His support and teaching helped me a lot to complete the assignment.

I would also like to thank my friends who were always there to help me and also helped me
collect data for my project through various sources. They also provided me with material I
needed and make my work as easy as possible.

Regardless to everything I want to express my gratitude to those who may have contributed
to this assignment, even though anonymously.

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 Table of Cases

I. Ashok Tanwar v. State of H.P. 8

II. Deepak Khosla v. Union of India 13
III. G.D. Karkare v. T.L. Shavde 13
IV. L.P. Misra v. State of U.P. 10
V. M.M. Thomas v. State of Kerala 10
VI. Puran Ram v. Bhaguram 15
VII. Sasidhar Reddy Sura v. State of A.P. 16
VIII. S.C. Advocates-on-record Assocn. V. Union of India 6,8
IX. State of Maharashtra v. Labour law practitioners Assocn. 7
X. Sunil Batra v. Delhi Administration 12

4
 THE STATE JUDICIARY
( Articles 214 to 237 )
THE HIGH COURTS

214. High Courts for States.- There shall be a High Court for each State.

However clause (1) of Article 231 enables parliament to establish by law, a common High
Court for two or more states and a Union Territory.

216. Constitution of High Courts- Every High Court shall consist of a Chief Justice and
such other Judges as the President may from time to time deem it necessary to appoint.

The Constitution thus does not prescribe any minimum number of Judges, which a High
Court can consist of. It is the President who shall determine the minimum number of Judges
to be appointed in a High Court from time to time. It has however, been held that the
President is under a constitutional obligation to review in a pragmatic way, the strength of
each High Court with the arrears of cases pending therein. 1

217. Appointment and conditions of the office of a Judge of a High Court.- (1) Every
Judge of a High Court shall be appointed by the President by warrant under his hand and seal
after consultation with the Chief Justice of India, the Governor of the State, and, in the case
of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court,
and one shall hold office, in the case of an additional or acting Judge, as provided in article
224, and in any other case, until he attains the age of sixty two years:

Provided that

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause
(4) of article 124 for the removal of a Judge of the Supreme Court;

(c) the office of a Judge shall be vacated by his being appointed by the President to be a
Judge of the Supreme Court or by his being transferred by the President to any other High
Court within the territory of India.

(2) A person shall not be qualified for appointment as a Judge of a High Court 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

1
Dr. Narendra Kumar Constitutional Law of India at p.752

5
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts
in succession;

Explanation.For the purposes of this clause

(a) in computing 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 Court or has held the office of a member of a
tribunal or any post, under the Union or a State, requiring special knowledge of law;

(aa) in computing the period during which a person has been an advocate of a High Court,
there shall be included any period during which the person has held judicial office or the
office of a member of a tribunal or any post, under the Union or a State, requiring special
knowledge of law after he became an advocate;

(b) in computing the period during which a person has held judicial office in the territory of
India or been an advocate of a High Court, there shall be included any period before the
commencement of this Constitution during which he has held judicial office in any area
which was comprised before the fifteenth day of August, 1947, within India as defined by the
Government of India act, 1935 or has been an advocate of any High Court in any such area,
as the case may be.

(3) If any question arises as to the age of a Judge of a High Court, the question shall be
decided by the President after consultation with the Chief Justice of India and the decision of
the President shall be final.

Appointment of Judges[Article 217(1)]

Every Judge of a High Court shall be appointed by the President by warrant under his hand
and seal after consultation with the Chief Justice of India, the Governor of the State, and, in
the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High
Court

In S.C. Advocates-on-record Assocn. V. Union of India2, the Supreme Court, by a majority

of 7 to 2 laid down principles and prescribed procedural norms to be followed in appointing
the Judges of the High Courts. In this regard the court ruled that the process of appointment
must be initiated by the Chief Justice of concerned High Court. In this matter the greatest
significance should be attached to the views of the Chief Justice of India formed after taking
into account the views of his colleagues in the Supreme Court who were found to be
conversant with the affairs of the concerned High Court, as also the views of one or more
senior judges of that High Court whose opinion according to the CJI, was found to be
significant in the formation of his opinion.

Qualifications for appointment as a Judge[Article 217(2)]

The expression Judicial office for the purpose of article 217(2) means the office, the holder
of which exercise only judicial functions and render decision in in a judicial capacity free

2
AIR 1994 SC 268

6
from executive control. He must be disciplined to uphold the dignity, integrity and
independence of the judiciary.

Explaining the expression the Supreme Court, in State of Maharashtra v. Labour law
practitioners Assocn.3, held that the Labour Court Judges and the Judges of the Industrial
Courts could be held to belong to Judicial services. The holders of the offices under the
Executive would not be deemed to hold the Judicial Office within the meaning of Article
217(2)(a).

218. Application of certain provisions relating to Supreme Court to High Courts.- The
provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they
apply in relation to the Supreme Court with the substitution of references to the High Court
for references to the Supreme Court.

219. Oath or affirmation by Judges of High Courts .- Every person appointed to be a

Judge of a High Court shall, before he enters upon his office, make and subscribe before the
Governor of the State, or some person appointed in that behalf by him, an oath or affirmation
according to the form set out for the purpose in the Third Schedule.

220. Restriction on practice after being a permanent Judge.- No person who, after the
commencement of this Constitution, has held office as a permanent Judge of a High Court
shall plead or act in any court or before any authority in India except the Supreme Court and
the other High Courts.

Explanation.In this article, the expression High Court does not include a High Court for
a State specified in Part B of the First Schedule as it existed before the commencement3 of
the Constitution (Seventh Amendment) Act, 1956.

It may be noted that the bar against practice, applies only to a permanent Judge of a High
Court. It does not say of Additional Judges, who can practise in any court including the High
Court to which they belonged. Same would be the case of an acting Judge.4

221. Salaries, etc., of Judges.- (1) There shall be paid to the Judges of each High Court such
salaries as may be determined by Parliament by law and, until provision in that behalf is so
made, such salaries as are specified in the Second Schedule.

The High Court and The Supreme Court Judges Amendment Act,2009, has raised the salary
of Chief Justice of High Court to Rs. 90,000/- p.m. and that of the Judge of the High Court to
Rs. 80,000/- p.m.

(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of
absence and pension as may from time to time be determined by or under law made by
Parliament and, until so determined, to such allowances and rights as are specified in the

3
AIR 1998 SC 1233
4
supra note 1 at p.762

7
Second Schedule:

Provided that neither the allowances of a Judge nor his rights in respect of leave of absence
or pension shall be varied to his disadvantage after his appointment.

222. Transfer of a Judge from one High Court to another.- (1) The President may, after
consultation with the Chief Justice of India, transfer a Judge from one High Court to any
other High Court.

In S.C. Advocates-on-record Assocn. V. Union of India, the question, inter alia related to
the interpretation of the expression consultation with the Chief Justice of India in Article
222. The matter was examined by a nine judge bench of the Apex Court. The Court, by
majority, ruled that the power to transfer Judges could be exercised only to subserve a public
purpose and to promote public interest. The court said that the initiation of the proposal for
the transfer of a Judge should be by the Chief Justice of India alone. The opinion of the CJI
in the matter, would not only have primacy, but would be determinative in nature.

(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the
commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the
other High Court, be entitled to receive in addition to his salary such compensatory
allowance as may be determined by Parliament by law and, until so determined, such
compensatory allowance as the President may by order fix.5

223. Appointment of acting Chief Justice.- When the office of Chief Justice of a High
Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable
to perform the duties of his office, the duties of the office shall be performed by such one of
the other Judges of the Court as the President may appoint for the purpose.

Normally the senior most Judge is appointed as Acting Chief Justice. A constitutional bench
of the Supreme Court in Ashok Tanwar v. State of H.P., observed that a plain reading of
Article 223 shows, that no restriction or limitation in performance of duties of the Acting
Chief Justice can be read into the said Article. It does not indicate as to which duties are to
be performed . It is observed that a rule of prudence requires that the Acting Chief Justice
may not take major decisions which could have been taken by the Chief Justice. He is
expected to act appropriately in discharging the duties of the office of the Chief Justice.

224. Appointment of additional and acting Judges.- (1) If by reason of any temporary
increase in the business of a High Court or by reason of arrears of work therein, it appears to
the President that the number of the Judges of that Court should be for the time being
increased, the President may appoint duly qualified persons to be additional Judges of the
Court for such period not exceeding two years as he may specify.

Though, an additional judge has no right to be appointed for the another term or to a
permanent post, he does acquire a right to be considered for another term as well as
permanent post so long as the business and the arrears of work do not decline. It has been
held that an additional Judge discharges functions of the same character as a permanent

5
Ibid at p.757

8
Judge.

Acting Judges [Article 224(2)]

(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or
for any other reason unable to perform the duties of his office or is appointed to act
temporarily as Chief Justice, the President may appoint a duly qualified person to act as a
Judge of that Court until the permanent Judge has resumed his duties.

(3) No person appointed as an additional or acting Judge of a High Court shall hold office
after attaining the age of sixty-two years.

224A. Appointment of retired Judges at sittings of High Courts.- Notwithstanding

anything in this Chapter, the Chief Justice of a High Court for any State may at any time,
with the previous consent of the President, request any person who has held the office of a
Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for
that State, and every such person so requested shall, while so sitting and acting, be entitled to
such allowances as the President may by order determine and have all the jurisdiction,
powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High
Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid
to sit and act as a Judge of that High Court unless he consents so to do.6

6
Ibid at p.756

9
 JURISDICTION OF THE HIGH COURTS
215. High Courts to be courts of record- Every High Court shall be a court of record and
shall have all the powers of such a court including the power to punish for contempt of
itself.

Firstly, the Court of Record is that Court, the records of which are admitted to be of
evidentiary value and cannot be questioned when they are produced before a Court.
Secondly, the Court of Record has inherent power, being such a Court, to punish for
contempt of itself.

Contempt of court, often referred to simply as "contempt." is the offense of

being disobedient to or disrespectful towards a court of law and its officers in the form of
behaviour that opposes or defies the authority, justice, and dignity of the court. It manifests
itself in wilful disregard of or disrespect for the authority of a court of law, which is often
behaviour that is illegal because it does not obey or respect the rules of a law court.7

Both of these terms are explained under Article 129 and would have the same meaning and
scope under Article 215.

However, in L.P. Misra v. State of U.P.8 the Supreme Court has ruled that jurisdiction of
High Court under Article 215 has to be exercised in accordance with the procedure
prescribed by Law.

In the instant case the appellant along with his associates enter into the court room raising
slogans and asking the court presided by the 2 Judges of Allahabad High Court, to rise and
stop functioning. Thereafter the appellant created a threatening situation forcing the Judges
to retire to their chambers. After sometime the Court reassembled and taking a serious note
on conduct on the part of the appellants, sentenced them Article 215

The High Court as a Court of record must have inherent powers to correct the records. The
Supreme Court in M.M. Thomas v. State of Kerala, 9observed that being a court of record,
the High Court has a duty to itself to correct its records and in accordance of law.

225. Jurisdiction of existing High Courts.- Subject to the provisions of this Constitution
and to the provisions of any law of the appropriate Legislature made by virtue of powers
conferred on that Legislature by this Constitution, the jurisdiction of, and the law
administered in, any existing High Court, and the respective powers of the Judges thereof in
relation to the administration of justice in the Court, including any power to make rules of

7
Ibid at p.634
8
AIR 1998 SC 3337
9
AIR 2000 SC 541

10
Court and to regulate the sittings of the Court and of members thereof sitting alone or in
Division Courts, shall be the same as immediately before the commencement of this
Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High
Courts with respect to any matter concerning the revenue or concerning any act ordered or
done in the collection thereof was subject immediately before the commencement of this
Constitution shall no longer apply to the exercise of such jurisdiction.

For example, under section 226 of the Government of India Act, 1935, no High Court had
any original jurisdiction in any matter concerning revenue. The restriction on the jurisdiction
of the High Courts is removed by the proviso to Article 225.

226. Power of High Courts to issue certain writs.- (1) Notwithstanding anything in article
32 every High Court shall have power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or
in any other manner, is made on, or in any proceedings relating to, a petition under clause
(1), without

(a) furnishing to such party copies of such petition and all documents in support of the plea
for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court
for the vacation of such order and furnishes a copy of such application to the party in whose
favour such order has been made or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the date on which it is received or from
the date on which the copy of such application is so furnished, whichever is later, or where
the High Court is closed on the last day of that period, before the expiry of the next day
afterwards on which the High Court is open; and if the application is not so disposed of, the
interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said
next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of article 32.10

10
Supra note at p.765

11
 WRITS

A writ means an order. In law, a writ is a formal written order issued by an authority.

In India, the Supreme Court under Article 32 is empowered to issue writs of different types
to enforce the Fundamental Rights under Part III of the Indian Constitution and under
Articles 139 for enforcement of rights other than Fundamental Rights. Thus, to make
available Right to Constitutional Remedies to every citizen, provisions has been made in
Indian Constitution to issue writs.

Thus, Supreme Court under Article 32(2) and High Courts under Article 226 are empowered
to issue writs for the enforcement of Fundamental Rights.

(1) HABEAS CORPUS

It literally means 'a demand to produce the body' or 'you may have the body' (whether dead
or alive). The issuance of the writ means an order to the detaining authority or person to
physically present before the court the detained person and show the cause of detention so
that the court can determine its legality or otherwise (however, the production of the body of
the person alleged to be unlawfully detained is not essential). If the detention is found to be
illegal, the detained person is set free forthwith. Its purpose is not to punish the wrongdoer
but merely to secure the release of the person illegally detained.

Since now, Article. 21 cannot be suspended even during the proclamation of emergency, this
becomes a very valuable writ for safeguarding the personal liberty of the individual. While
the supreme court can issue the writ of habeas corpus only against the state in cases of
violation of fundamental rights, the high court can issue it also against private individuals
illegally or arbitrarily detaining any other person.

Writ of Habeas Corpus can be filed by any person on behalf of the person detained or by the
detained person himself. In Sunil Batra v. Delhi Administration,11 a letter written by a
convict to one of the judges of the supreme court was treated as a writ petition. The court
employed this writ for the neglect of state penal facilities. The writ was also issued when a
ban was imposed on the law students to conduct interviews with prison mates for affording
them legal relief.

(2) MANDAMUS

It is a command to act lawfully and to desist from perpetrating an unlawful act. Where A has
a legal right which casts certain legal obligations on B, A can seek a writ of mandamus
directing B to perform its legal duty. Mandamus may lie against any authority, officers,
government or even judicial bodies that fail to or refuse to perform a public duty and
11
AIR 1980 SC 1579

12
discharge a legal obligation.

Mandamus is a judicial remedy in the form of "'an order' to do or to forbear from doing
some specific act" which that agency is obliged to do or to refrain from doing under the law
and which is in the nature of a public duty or a statutory duty. It is considered as a residuary
remedy of the public law. It is a general remedy whenever justice has been denied to any
person. It may be issued not only to compel the authority to do something but also to restrain
it from doing something. therefore, it is both negative and positive and hence can do the
work of all other writs. It can be issued on all those counts on which certiorari and
prohibition can be issued.

In Deepak Khosla v. Union of India,12 the Delhi High Court held that in the absence of
there being any rule in regard to audio/video recording, the petitioner had no legal right to
claim a writ of mandamus for audio/video recording of the court proceedings.

(3) QUO WARRANTO

The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view
to restraining a person from acting in a public office to which he is not entitled. Quo
Warranto writ is issued against the person of public who occupies the public seat without
any qualification for the appointment. It is issued to restrain the authority or candidate from
discharging the functions of public office. For example, a person of 65 years has been
appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate
High Court has a right to issue a Writ of quo-warranto against the person and declare the
office vacant.

The writ of quo-warranto to issue when:

a) The office is public and of substantive nature;

b) The office is created by the State or by the Constitution itself; and

c) The respondent must have asserted his claim to the office.

Quo-Warranto case in India example

In G.D. Karkare v. T.L. Shavde,13 the Court issued the writ of quo warranto against the
Advocate general of the state, who was found not qualified to hold that office. The writ will
not lie if the office in question is of private character. It is a trite that the writ of quo
warranto lies when the appointment is made contrary to the statutory provisions.

(4) PROHIBITION

A writ of prohibition is a writ directing a subordinate to stop doing something that they may
not do, according to law, but are doing. This writ is normally issued by a superior court to
the lower court asking it not to proceed with a case which does not fall under its jurisdiction.
The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally

12
AIR 2011 Del. 199
13
AIR 1952 Nag 330

13
issued before the trial of the case or during the pendency of the proceeding but before the
order is made.

The writ of prohibition means that the Supreme Court and High Courts may prohibit the
lower courts such as special tribunals, magistrates, commissions, and other judiciary officers
who are doing something which exceeds to their jurisdiction or acting contrary to the rule of
natural justice. For example if a judicial officer has personal interest in a case, it may
hamper the decision and the course of natural justice.

(5) CERTIORARI

Certiorari means to certify. Its a writ that orders to move a suit from an inferior court to
superior court. It is issued by a higher court to a lower court or tribunal either to transfer a
case pending with that to itself or squash its order. This is generally done because superior
court believes that either the inferior court had no jurisdiction or committed an error of law.
Thus, certiorari is a kind of curative writ.

If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the
effected party can move this writ to a higher court like Supreme Court or High Court. The
writ of certiorari issued to subordinate judicial or quasi- judicial body when they act:

a) Without or in excess of jurisdiction;

b) In violation of the prescribed procedure;

c) In contravention of principles of natural justice;

d) Resulting in an error of law apparent on the face of record.

The writs of prohibition and certiorari are of the same nature, the only difference being that
the writ of prohibition is issued at an earlier stage, before the order is made and the writ of
certiorari is available on a later stage i.e. after the order has been passed. 14

226A. [Repealed.].- [Constitutional validity of Central laws not to be considered in

proceedings under article 226.] Rep. by the Constitution (Forty-third Amendment) Act,
1977, s. 8 (w.e.f. 13-4-1978).

227. Power of superintendence over all courts by the High Court.- (1) Every High Court
shall have superintendence over all courts and tribunals throughout the territories in relation
to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and

14
www.gktoday.in/types-of-writs-in-the-constitution-of-india

14
proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any
such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks
and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause
(3) shall not be inconsistent with the provision of any law for the time being in force, and
shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of
superintendence over any court or tribunal constituted by or under any law relating to the
Armed Forces.

The power however can be exercised even in those cases in which no appeal lies to the High
Court.

In Puran Ram v. Bhaguram, 15there was a mutual mistake as regards the description of a
part of the suit property. The application for amendment of the complaint was allowed by
the Second Additional District Judge. The High Court in the exercise of its powers under
Article 227 reversed the order, rejecting the application for the amendment. The Apex Court
set aside the order of the High Court and restored the order of S.A.D. judge. The Court ruled
that the High Court ought not to have inferred with the order of the trial court when it was
passed on sound consideration of law and facts.

228. Transfer of certain cases to High Court.- If the High Court is satisfied that a case
pending in a court subordinate to it involves a substantial question of law as to the
interpretation of this Constitution the determination of which is necessary for the disposal of
the case, it shall withdraw the case and may

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case
has been so withdrawn together with a copy of its judgment on such question, and the said
court shall on receipt thereof proceed to dispose of the case in conformity with such
judgment.

The expression substantial question of law as to the interpretation of the constitution

means the same mentioned under Article 132. The words denote a question regarding which
there is a difference in opinion among the different High Courts.

228A. [Repealed.].- [Special provisions as to disposal of questions relating to constitutional

validity of State laws.] Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 10
(w.e.f. 13-4-1978).

15
AIR 2008 SC 1960

15
 SUBORDINATE JUDICIARY

233. 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 Governor of the State
in consultation with the High Court exercising jurisdiction in relation to such State.

(2) A person not already in the service of the Union or of the State shall only be eligible to
be appointed a district judge if he has been for not less than seven years an advocate or a
pleader and is recommended by the High Court for appointment.

It thus followed that the appointment, posting and promotion of district judges are to be
made by the Governor in consultation with the High Court.

233 A. Validation of appointments of, and judgments, etc., delivered by, certain
district judges.- Notwithstanding any judgment, decree or order of any court,

(a) (i) no appointment of any person already in the judicial service of a State or of any
person who has been for not less than seven years an advocate or a pleader, to be a district
judge in that State, and

(ii) no posting, promotion or transfer of any such person as a district judge, made at any
time before the commencement of the Constitution (Twentieth Amendment) Act, 1966,
otherwise than in accordance with the provisions of article 233 or article 235 shall be
deemed to be illegal or void or ever to have become illegal or void by reason only of the
fact that such appointment, posting, promotion or transfer was not made in accordance
with the said provisions;

(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and
no other act or proceeding done or taken, before the commencement of the Constitution
(Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted
or transferred as a district judge in any State otherwise than in accordance with the
provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to
have become illegal or invalid by reason only of the fact that such appointment, posting,
promotion or transfer was not made in accordance with the said provisions.

As regards the eligibility, when no minimum age is specified in Article 233 nor in the
rules, recommendation of the State Public Service Commission, specifying minimum age
cannot be implemented. So said, the Apex Court in Sasidhar Reddy Sura v. State of

16
A.P.,16 held that the appellant otherwise found eligible, could not be denied appointment,
merely for the reason that she did not attain minimum age so prescribed by PSC.

234. Recruitment of persons other than district judges to the judicial Service.-
Appointments of persons other than district judges to the judicial service of a State shall
be made by the Governor of the State in accordance with rules made by him in that behalf
after consultation with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such State.

235. Control over subordinate courts.- The control over district courts and courts
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 Court, but nothing in this article shall be
construed as taking away from any such person any right of appeal which he may have
under the law regulating the conditions of his service or as authorising the High Court to
deal with him otherwise than in accordance with the conditions of his service prescribed
under such law.

236. Interpretation.- In this Chapter

(a) the expression "district judge" includes judge of a city civil court, additional district
judge, joint district judge, assistant district judge, chief judge of a small cause court, chief
presidency magistrate, additional chief presidency magistrate, sessions judge, additional
sessions judge and assistant sessions Judge;

(b) the expression judicial service means a service consisting exclusively of persons
intended to fill the post of district judge and other civil judicial posts inferior to the post of
district judge.

237. Application of the provisions of this Chapter to certain class or classes of

magistrates.- The Governor may by public notification direct that the foregoing provisions
of this Chapter and any rules made there under 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 notification.17

16
AIR 2014 SC 444
17
Supra note at p. 809

17
 Bibliography

Kumar, Narendra, Constitutional Law Of India, Ninth Edition, Allahabad

Law Agency.
www.gktoday.in/types-of-writs-in-the-indian-constitution.html
www.wikipedia.com/judiciary-of-india.html
http://news.yahoo.com/judges-collegium-system.html

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