The power of appointment of persons to be District Judges conferred on the Governor, meaning the State Government, under Article 233(1) in consultation with the High Court is an executive function. It has been settled by a long line of decisions of Supreme Court starting from Chandra Mohan v. State of U.P. (AIR 1966 Supreme Court 1987) to M.M. Gupta v. State of Jammu and Kashmir that, the power of the State Government is not absolute and unfettered but is hedged in with conditions. The exercise of the power of the Governor under Article 233(1) in the matter of appointment of District Judges is conditioned by consultation with the exercise of the power that the power can only be exercised in consultation with the High Court (sic).
Appointment of persons to be, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State under Article 233(1) in consultation with the High Court exercising jurisdiction in relation to such State. sub-article (2) thereof provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed as 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 is, therefore, obvious that eligibility of appointment of persons to be District Judges by direct recruitment from amongst the members of the bar depends entirely on the recommendation of the High Court . The State Government has no power to appoint any person as a District Judge except from the panel of names forwarded by the High Court . As stated, the decisions starting from Chandra Mohan v. State of U.P. (supra) has established the principle as a rule of law, that consultation between the Governor and the High Court in the matter of appointment of District Judges under Article 233(1) must not be empty formality but real, full and effective.
In Chandra Mohan v. State of U.P. (supra) Subba Rao, C.J., speaking for a unanimous court observed :
“The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court , that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court . The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the “Judicial service” or to the Bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him.
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These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised olny in consultation with the person or persons designated therein.”
To the same effect are the decisions in Chandramouleshwar Prasad v. Patna High Court , (1970) 2 SCR 666 High Court of Punjab and Haryana v. State of Haryana (1975) 3 SCR 365 , A. Panduranga Rao v. State of Andhra Pradesh (AIR 1975 Supreme Court 1922) and M.M. Gupta v. State of Jammu and Kashmir, (supra).
25. In A. Panduranga Rao v. State of Andhra Pradesh, (supra), it was observed :
“Government was not bound to accept all the recommendations but could tell the High Court its reasons for not accepting the High Court’s recommendations in regard to certain persons. If the High Court agreed with the reasons in case of a particular person the recommendation in his case stood withdrawn and there was no question of appointing him. Even if the High Court did not agree the final authority was the Government in the matter of appointment and for good reasons it could reject the High Court’s recommendations. In either event it could ask the High Court to make more recommendations in place of those who have been rejected.”
In M.M. Gupta v. State of Jammu and Kashmir Amarendra Nath Sen, J. speaking for himself and Bhagwati and Pathak, JJ., while dealing with the appointment of persons to be District Judges by the Governor under Article 233(1), viewed with concern the recent trend of interference in the matter of judicial appointments by the Executive both at the Centre and the State levels and expressed the view that healthy conventions and proper norms should be evolved in the matter of these appointments for safeguarding the independence of the judiciary in conformity with the requirements of the Constitution. We fully endorse the principle deduced by him from the various authorities of Supreme Court in these words :
“Normally, as a matter of rule, the recommendations made by the High Court for the appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If in any particular case, the State Government for good and weighty reasons finds it difficult to accept the recommendations of the High Court , the State Government should communicate its views to the High Court and the State Government must have complete and effective consultation with the High Court in the matter. There can be no doubt that if the High Court is convinced that there are good and weighty reasons for the objections on the part of the State Government, the High Court will undoubtedly reconsider the matter and the recommendations made by the High Court .” (Emphasis supplied)
The Constitution of India provides in Articles 124(2), 217(1) and 233(1) dealing with appointment of Judges from the Supreme Court downwards and Article 222(1) dealing with transfer of a Judge from one High Court to another for a very delicate process of consultation between the executive and the judiciary. The word ‘consultation’ in Article 233(1) must bear the same meaning as in these other provisions.
The plain meaning of the word ‘consult’ as given in Shorter Oxford English Dictionary, Volume 1 at P. 409 is : ‘to take counsel together, deliberate, confer, and the word ‘consultation’ means: ‘the action of consulting or taking counsel together; deliberation, conference. The word consultation therefore implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. In the words of Subba Rao, C.J.
“In order that the two minds may be able to confer and produce a mutual impact, it is essential that each must have for its consideration full and identical facts, which can at once constitute both the source and foundation of the final decision.”
The concept of consultation in Article 222(1) has been delineated by Chandrachud, J. in Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193 in his own illuminating language:
“It casts an absolute obligation on the President to consult the Chief Justice of India before transferring a Judge from one High Court to another. The word ‘may’ in Article 222(1) qualifies the last clause which refers to the transfer of a Judge and not the intervening clause which refers to consultation with the Chief Justice of India . The President may or may not transfer a Judge from one High Court to another. He is not compelled to do so. But if he proposes to transfer a Judge, he must consult the Chief Justice of India before transferring the Judge. That is in the nature of a condition precedent to the actual transfer of the Judge. In other words, the transfer of a High Court Judge to another High Court cannot become effective unless the Chief Justice of India is consulted by the President in behalf of the proposed transfer. Indeed, it is euphemistic to talk in terms of effectiveness, because the transfer of a High Court Judge to another High Court is unconstitutional unless, before transferring the Judge, the President consults the Chief Justice of India .
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“There can be no purposeful consideration of a matter, in the absence of facts and circumstances on the basis of which along the nature of the problem involved can be appreciated and the right decision taken. It must, therefore, follow that while consulting the Chief Justice, the President must make the relevant data available to him on the basis of which he can offer to the President the benefit of his considered opinion. If the facts necessary to arrive at a proper conclusion are not made available to the Chief Justice, he must ask for them because, in casting on the President the obligation to consult the Chief Justice, the Constitution at the same time must be taken to have imposed a duty, on the Chief justice to express his opinion on nothing less than a full consideration of the matter on which he is entitled to be consulted.
The fulfilment by the the President of his constitutional obligation to place full facts before the Chief Justice and the performance by the latter of the duty to elicit facts which are necessary to arrive at a proper conclusion are parts of the same process and are complementary to each other. The faithful observance of these may well earn a handsome dividend useful to the administration of justice. Consultation within the meaning of Article 222(1), therefore, means full and effective, not formal or unproductive consultation.
………Thus, deliberation is the quintessence of consultation.”
Reference
State of Kerala v. A. Lakxmikutty and Others (1986)