Appointment of Judicia Service under Article 309:

Dear assumi ji !

In my view : 1. None of these provisions has overriding effect over others. These are to be construed harmoniously. However, when read with Art 50, Art 233 - 235 stand at a higher footing as Art 50 directs the State to take steps to separate the Judiciary from the Executive.

 

2. Answer to the question, “Can such Judicial Officers deemed to be in Judicial service of the State under Articles 233-235 ?” depends on the fact as to whether after appointment, they are Under control of the High Court or the State Government.

 

3.  The answer to the question, “Can the State under Article 245 and 246 make rules for recruitment of Judicial Officers dehors 233-235 of the Constitution?” is in negative. Such a legislation will be unconstitutional being in violation  of Art. 50 as well as Arts 233 – 235 and also being against basic structure of the constition.

Dear Dr.Tripathi, thank you so much for your valuable answers. Please note that in some States Judicial Service Rules are framed under Article 309 dehors the triology articles 233-235 and those judicial Officers administered Justice. The issue is whether such judicial officers can be said to be in Judicial service within the meaning of Articles 233-235.If the answers is yes the matter ends there but if the answer is in the negative how can we bring those judicial officers in judicial service within the meaning of judicial service under Articles 233-235? Having said so the next steps will land up in your answer No.3.

Another issue would arise as to whether those officers (who are not appointed in accordance with Art 233 - 235 and not under control of the High Court)will be eligible for elevation to the High Court ? kindly give examples of such elevation if there is any .