Governor Can Consult Only High Court On District Judges' Appointment: Supreme Court Faults Haryana Govt For Seeking Union's Opinion

The Supreme Court underscored that the Governor of a State can only consult the High Court in the matter of appointments of District Judges in terms of Article 233 of the Constitution.

Holding so, the Court found fault with the Haryana Government for seeking a legal opinion from the Union Government regarding the recommendations made by the Punjab and Haryana High Court for appointments in the District Judiciary.

Referring to Article 233 and various precedents interpreting it, the Supreme Court held in its judgment delivered on February 13 (uploaded recently) that the "State Government was bound to consult only the High Court."

The High Court had slammed the State for seeking the Union's opinion, terming it a "serious assault on the independence of the functioning of the High Court."

Endorsing the High Court's judgment, the Supreme Court said, "We are in agreement with the High Court that the State Government travelled beyond the remit of the consultation with the High Court by referring the matter to the Union Government."

Opinion of High Court not a mere formality

"In matters of appointment of judicial officers, the opinion of the High Court is not a mere formality because the High Court is in the best position to know about the suitability of candidates to the post of District Judge," the Court observed referring to the judgment in Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC 56.

"The Constitution therefore expects the Governor to engage in constructive constitutional dialogue with the High Court before appointing persons to the post of District Judges under Article 233," the Court added.

The Court made these significant observations while upholding the criteria set by the High Court that the candidates must secure at least 50% minimum marks in the viva-voce. The State Government took the stand that such a condition cannot be introduced without amending the service rules and sought the legal opinion of the Ministry of Law and Justice on accepting the High Court's recommendations. The High Court, on its judicial side, directed the State to appoint the selected candidates. Challenging the High Court's direction, the State as well as the unsuccessful candidates approached the Supreme Court.

The Supreme Court held that the High Court was entitled to introduce the minimum cut-off requirement when the rules were silent on that aspect and underlined the importance of interview in assessing the suitability of a candidate. A detailed story on that aspect can be read here.

Scope of consultation under Article 233

While deciding the issue, the bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala and Manoj Misra discussed the need for consultation between the Governor and the High Court in terms of Article 233 while appointing District Judges.

Clause (1) of Article 233 stipulates that the appointment of persons to be District Judges in the State and their posting and promotion shall be made by the Governor in consultation with the High Court exercising jurisdiction in the State.

The judgment authored by the CJI observed that Article 233 has to be construed as being mindful of constitutional safeguards for judicial independence and the separation of powers between the executive and judiciary.  

The object of consultation is that the High Court is expected to know better than the Governor the suitability of a person belonging either to the Judicial Service or to the Bar for appointment as a District Judge, the judgment stated quoting from the judgment in Chandra Mohan v. State of Uttar Pradesh (1967) 1 SCR 77.

"The rules made by the Governor in consultation with the High Court in case of recruitment at grass-root level and the recommendation of the High Court for appointments at the apex level of the District Judiciary under Article 233, remain the sole repository of power to effect such recruitments and appointments," the judgment quoted from he decision in State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640.

Governor cannot consult third parties

The Court also referred to the Constitution Bench judgment in Chandra Mohan v. State of Uttar Pradesh (1967) 1 SCR 77 which held that the mandate of Article 233 would be violated if the Governor consulted any authority other than the High Court.

"The Court held that in case (Chandra Mohan) the Governor consults an authority other than the High Court, it would amount to indirect infringement of the mandate of the Constitution," the Court observed.

State Government should not have consulted the Union

In the light of the discussion on Article 233, which underscored the importance of consultation with the High Court, the Supreme Court faulted the State Government for seeking the Union Government's opinion.

"We are in agreement with the High Court that the State Government travelled beyond the remit of the consultation with the High Court by referring the matter to the Union Government. Any issue between the High Court and the State Government should have been ironed out in the course of the consultative process within the two entities. The State Government was bound to consult only the High Court in the manner elaborated by the abovementioned judgements. Any other exercise de hors such consultation would not be in accordance with the scheme of the Constitution," the judgment stated.