- (1.) THE question for consideration in this reference is whether Judicial Magistrates are eligible for appointment to Uttar Pradesh Higher Judicial Service. The reference arises out of three connected writ petitions, in which the proposed appointment of certain persons to Uttar Pradesh Higher Judicial Service is being challenged by the petitioners. It will be sufficient to refer to the facts of one of these three cases.
(2.) SRI Chandra Mohan is the petitioner in Civil Miscellaneous Writ No. 526 of 1065. He Is temporary Civil and Sessions Judge at Kan pur. The State of Uttar Pradesh la respondent 1. The Registrar of this Court Invited applications for recruitment to the Uttar Pradesh Higher Judicial Service, A selection committee interviewed and examined a number of candidates. The selection committee was of the opinion that six persons, who are respondents 2 to 7 in the writ petition, are suitable for appointment to this service. The petitioner apprehends that respondent 1 is likely to appoint respondents 2 to 7 to the Uttar Pradesh Higher Judicial Service. According to the petitioner, respondents 2 to 7 cannot be appointed to the Uttar Pradesh Higher Judicial Service for various reasons.
(3.) THESE writ petitions were heard by a Division Bench of this Court. On moat points the learned Judges of the Division Bench agreed. But there was disagreement on one point. Respondents 5, 6 and 7 are Judicial Officers or Judicial Magistrates. It has been urged for the petitioners that Judicial Magistrates cannot be appointed to Uttar Pradesh Higher Judicial Service. This contention was accepted by Justice Sri Takru. He was of the opinion that, in the absence of a notification under Article 237 of the Constitution, Judicial Magistrates cannot be appointed to Uttar Pradesh Higher Judicial Service. Justice Sri Mathur was of the opinion that Judicial Magistrates are eligible for appointment to Uttar Pradesh Higher Judicial Service, even if no notification under Article 237 of the Constitution was issued. In view of this difference, the following two questions of law have been referred to me: (1) Does Article 233 (1) of the Constitution of India authorize the Governor to appoint, in consultation with the High Court, a person already in the service of the Union or of the State, but not in the Judicial Service, as District Judge, that is, to the Uttar Pradesh Higher Judicial Service ? (2) Can a Magistrate already in the service of the Union or of the State be appointed a District Judge under Article 233 (1) of the Constitution of India, even though no notification under Article 237 has been published by the Governor with regard to the class of Magistrates to which that Magistrate belongs ?;