K. Venkataswami, J. - (1.) An independent judiciary is one of the basic feature of the Constitution of the Republic. In this case, however, we are not concerned with the various provisions of the Constitution guaranteeing independence of judiciary but with a limited issue about the scope and extent of control of the High Court over the subordinate judiciary to the exclusion of the executive for maintenance of its independence. Our Constitution has zealously guarded the independence of judiciary. In S. P. Gupta v. Union of India, (1981) Suppl. SCC 87 , this Court held that independence of judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution. This Court in All India Judges' Association v. Union of India, (1993) 4 SCC 288 held:"In view of the separation of the powers under the Constitution, and the need to maintain the independence of the judiciary to protect and promote democracy and the rule of law, it would have been ideal if the most dominant power of the executive and the legislature over the judiciary, viz., that of determining its service conditions had been subjected to some desirable checks and balances. This is so even if ultimately, the service conditions of the judiciary have to be incorporated in and declared by the legislative enactments. But the mere fact that Article 309 gives power to the executive and the legislature to prescribe the service conditions of the judiciary, does not mean that the judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the judiciary in that behalf, for theoretically it would not be impossible for the executive or the legislature to turn and twist the tail of the judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the judiciary."
(2.) By way of a note of caution we may add that the control vested in the High Court over the subordinate judiciary though absolute and exclusive, it has to be exercise without usurping the power vested in the Executive under the Constitution. This necessarily brings us to the consideration of Articles 233, 234 and 235 of the Constitution of India. Those Articles read thus:- "Article 233. Appointments of district judges.- (1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. (2) A person not already in the service of the Union or of the State shall only be eligible to be appointed 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. Article 234. Recruitment of persons other than district judges to the judicial service - 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 exercising jurisdiction in relation to such State. Article 235. Control over subordinate Courts.- 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 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."
(3.) The backdrop in which the interpretation of the above Articles comes into focus is given below.;