The Subordinate Judiciary

Article 233A. Inserted by the Constitution (Twentieth Amendment) Act, 1966, it validates appointments, postings, promotions and transfers of district judges made before that Amendment otherwise than in accordance with articles 233 or 235, and the judgments and proceedings of the judges so appointed. It is a cure for a past defect and adds nothing to the scheme.

Article 234, everyone below a district judge. 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". So the recruitment of civil judges and magistrates runs through three bodies: the Governor makes the rules and the appointments, the Public Service Commission and the High Court are both consulted.

Article 235, control. "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."

Article 236, the definitions, which are wider than they look. "District judge" includes the judge of a city civil court, an additional district judge, a joint district judge, an assistant district judge, the chief judge of a small cause court, a chief presidency magistrate, an additional chief presidency magistrate, a sessions judge, an additional sessions judge and an assistant sessions judge. "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." The word exclusively is doing work: a service that mixes judicial officers with executive officers is not a judicial service for this Chapter.

Article 237. The Governor may, by public notification, direct that this Chapter and the rules under it apply to any class of magistrates in the State, subject to such exceptions and modifications as the notification specifies.

Reading article 235 clause by clause

1. What is controlled: district courts and the courts subordinate to them. The institution, not only its officers.
2. Who is controlled: persons in the judicial service holding "any post inferior to the post of district judge". Note the words. A district judge's own posting and promotion are dealt with by article 233(1) and remain the Governor's, in consultation with the High Court.
3. What "control" expressly includes: posting, promotion, and the grant of leave. The word "including" means the list is illustrative and not exhaustive, so disciplinary control over the working of the courts falls inside it.
4. First saving: nothing takes away a right of appeal the officer has under the law regulating his service conditions.
5. Second saving: the High Court may not deal with him "otherwise than in accordance with the conditions of his service prescribed under such law." Those conditions are made under article 309, and the protections in article 311 against dismissal, removal or reduction in rank continue to apply.

So article 235 vests control in the judiciary but does not make the judiciary an unreviewable employer. The two savings are the reason.

Who does what

What it does NOT mean

Article 235 does not give the High Court the power to appoint. Appointment is the Governor's under articles 233 and 234 in every case. Control begins after appointment, and the two are deliberately kept apart.

Article 235 does not cover district judges' postings. Its words are confined to persons "holding any post inferior to the post of district judge". The posting and promotion of district judges are governed by article 233(1), where the Governor acts in consultation with the High Court.

Consultation is not concurrence. Article 233(1) and article 234 both say "consultation". Article 233(2) says "recommended by the High Court", which is stronger. A question about the direct recruit is answered by clause (2), not by clause (1).

Independence here is not the same as the independence of a High Court judge. A subordinate judge has no constitutional tenure to sixty-two, no removal by address of Parliament and no salary charged on the Consolidated Fund. What he has is article 235, and that is exactly why the article matters so much.

A worked example

Sunita, an advocate of eight years' standing, applies for direct appointment as a district judge in a State. Ravi is a civil judge already in the State judicial service. Both run into difficulties.

Step one, is Sunita eligible? Article 233(2) applies, because she is not already in the service of the Union or of the State. She must have been an advocate or pleader for not less than seven years, which she has, and she must be recommended by the High Court. Without the recommendation the Governor cannot appoint her, and consultation under clause (1) will not do instead.

Step two, Ravi is transferred to a remote station by an order of the State Government. That order is bad. Ravi holds a post inferior to that of district judge, so his posting is within the control vested in the High Court by article 235. The executive has exercised a power the Constitution has taken away from it.

Step three, suppose the High Court itself transfers him. Then the order is within article 235, and the complaint that it is punitive is a complaint about how the power was used, not about who used it.

Step four, suppose the High Court dismisses him from service. Now the savings bite. The High Court may not deal with him otherwise than in accordance with the conditions of his service prescribed under the law made under article 309, and article 311 requires an inquiry in which he is informed of the charges and given a reasonable opportunity of being heard.

Step five, suppose Ravi is by then a district judge. Article 235 no longer governs his posting, because it reaches only posts inferior to that of district judge. His posting and promotion return to article 233(1), the Governor in consultation with the High Court.

Step six, and if the officer concerned were a magistrate? Article 237 lets the Governor apply this Chapter to a class of magistrates by public notification. Until that is done, the Chapter does not reach them.

Quick revision

• Article 50 directs the State to separate the judiciary from the executive; it is a directive principle and not enforceable.
• Article 233(1): district judges are appointed, posted and promoted by the Governor in consultation with the High Court.
• Article 233(2): a candidate not already in service needs seven years as an advocate or pleader and the High Court's recommendation.
• Article 234: everyone below a district judge is appointed by the Governor under rules made after consulting the State Public Service Commission and the High Court.
• Article 235: control over district courts and courts subordinate to them, including posting, promotion and leave of officers below the rank of district judge, is vested in the High Court.
• Article 235 saves two things: the officer's right of appeal under his service law, and his service conditions, so the High Court cannot deal with him outside them.
• Article 236 defines "district judge" widely, including sessions judges and chief judges of small cause courts, and defines "judicial service" as one consisting exclusively of judicial posts.
• Article 237: the Governor may extend the Chapter to a class of magistrates by public notification.
• The separation-of-powers point in a sentence: appointment is shared with the executive, control is not.

Test yourself

1. Distinguish articles 233(1) and 233(2). Who does each apply to, and what is required in each?

2. Set out article 235 and identify the four persons or things it covers and the two things it saves.

3. A State Government transfers a civil judge. Is the order valid? Give the article.

4. Why is the word "exclusively" in the definition of "judicial service" in article 236 significant?

5. "Article 235 is the separation of powers reduced to a question about who signs a transfer order." Explain and evaluate.