KULDIP SINGII - (1.) THE President of India by a warrant dated 15/10/1991 under his hand and seal appointed K.N. Srivastava as a Judge of Gauhati High court. He has not as yet made and subscribed an oath/affirmation as required under Article 219 of the Constitution of India and as such has not entered upon his office. THE question for our consideration is whether the appointment of Srivastava as High court Judge is infraction of Articles 217(2 and 217(1 of the Constitution of India. Is he qualified for appointment as a Judge -if so has the mandatory process of consultation under the Constitution been followed.
(2.) SHRI Lal Thanhawla, Chief Minister Mizoram by his letter dated 29/09/1989 addressed to chief justice Gauhati High court recommended the name of Srivastava for appointment as a Judge of Gauhati High court. Capt. W.A. Sangma, governor of Mizoram reiterated the recommendation by his letter dated 4/10/1989. The 433 chief justice Gaubati High court by his separate letters dated 25/10/1989 addressed to governor of Mizoram and Chief Minister, Mizoram acknowledged the receipt of the recommendations and stated that he would take necessary action immediately after formation of a permanent bench at Aizawl. Mr Swaraj Kaushal who succeeded Capt. W.A. Sangma as governor Mizoram addressed a detailed letter dated 5/05/1990 recommending Srivastava for appointment as a Judge. Along with the recommendation he enclosed bio-data of Srivastava which is as under: "BIO-DATA OF SHRI K.N. SRIVASTAVA, M.J.S. LEGAL REMEMBRANCER AND secretary LAW and JUDICIAL ETC. government OF MIZORAM JUDGEMENT_428_2_1992Html1.htm Chief Justice Gauhati High court by his letter dated 6/08/1990 addressed to Minister of Law and Justice, government of India forwarded the recommendations, including that of Srivastava, for appointment of Judges to the Gauhati High court. The recommendation included the above quoted bio-data of Srivastava. Minister of Law and Justice addressed a letter dated 10/09/1990 to the governor of Assam bringing to his notice the names proposed by the chief justice of the Gauhati High court and called for his recommendations and those of 436 the governors and Chief Ministers of the North Eastern States. Shri D.D. Thakur governor of Assam by letter dated 20/10/1990 conveyed his views and those of other governors and Chief Ministers of North Eastern States. He recommended Srivastava's name and also sent his bio-data (reproduced above) along with his recommendation. The Intelligence Bureau Ministry of Home Affairs government of India informed the Law Ministry on 8/10/1990 that Srivastava was considered to be professionally competent and nothing adverse regarding character, integrity and political affiliation had come to notice. The original file regarding appointment of Judges in the Gauhati High court with all the proposals was sent to the chief justice of India. The file containing all the recommendations including that of Srivastava along with his bio-data was considered by the chief justice of India on 7/11/1990. Regarding Srivastava he recorded as under: "Shri K.N. Srivastava is a judicial officer, there is nothing adverse against him but his C.R. is not available .... After the CRs of Sri K.N. Srivastava and Shri N.G. Das are obtained the file may be sent to me ...." The file was again sent to the chief justice of India along with CRs of Srivastava. The chief justice cleared the name of Srivastava in the following words: "So far as Srivastava is concerned he is a Judicial Officer and there is no objection. His name is, therefore, cleared."
(3.) THE Minister of Law and Justice approved Srivastava's appointment as a Permanent Judge of Gauhati High court on 14/08/1991. THEreafter a summary was prepared by the Department of Justice for the consideration of the Prime Minister and the President of India. In the said summary Srivastava was presented as under: "Shri K.N. Srivastava B.A" LL.B. was born on 30/01/1938. He joined government of Assam in Law Department in 1956. He was appointed as an Under secretary, Law and Judiciary in 1972 and as Registrar of Firms and Societies, government of Mizoram, from 23/03/197 2/12/1979. He was appointed the Legal Remembrancer and secretary, Law and Judiciary in 1985." The Prime Minister approved the appointment on 24/09/1991 and the President of India on 30/09/1991. The Warrant of Appointment was signed by the President on 15/10/1991 and notification appointing Srivastava as a Judge, Gauhati High court was issued on 25/10/1991.;