http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

A.C. THALWAL

Vs.

RESPONDENT:

HIGH COURT OF HIMACHAL PRADESH & ORS.

DATE OF JUDGMENT: 17/08/2000

BENCH:

CJI, R.C. Lahoti, J. & K G Balakrishnan, J.

JUDGMENT:

R.C. Lahoti, J.

L....I..........T.......T.......T.......T.......T.......T..J

A.C. Thalwal, the appellant was born on 15th

September, 1948. On 11.11.1965 he joined the Indian Air

Force. On 1st December, 1980 he was released from the Air

Force. For a short period between February, 1981 and

January 1984, the appellant served as a cashier in the

Punjab National Bank. The appellant did his graduation in

the year 1971 and post graduation in 1973. He passed the

LL.B. examination in the year 1976.

In the year 1983, the High Court of Himachal Pradesh

invited applications for recruitment to 12 posts in Himachal

Judicial Service, out of which 2 posts were reserved for

ex-servicemen. The appellant made an application seeking

appointment in the said quota of ex- servicemen. He was

selected. On 1.2.1984 he joined the Himachal Pradesh

Judicial Service as Sub Judge-cum-Judicial Magistrate.

Having joined the judicial service the appellant made a

representation to the High Court submitting that the

Ex-Servicemen (Reservation of Vacancies in the Himachal

Pradesh Judicial Service) Rules, 1981, hereinafter

Reservation Rules 1981 for short, provided for the period

spent in approved military service, which was 11 years in

the case of the appellant, being counted towards the

Himachal Pradesh Judicial Service for the purpose of fixing

pay and seniority. By an order dated 31.8.1989 the High

Court fixed the pay of the appellant by giving him credit of

11 years approved military service. All the increments

which the appellant would have been entitled to, if he would

have spent the period of approved military service in

Himachal Pradesh Judicial Service, were released to him.

However, as the High Court had not fixed the appellants

seniority by giving him the benefit of the period spent in

approved military service by counting the same fictionally

as having been spent in Himachal Pradesh Judicial Service,

the appellant made further representations in the year 1990

claiming such benefit. The High Court of Himachal Pradesh

invited objections of all concerned to the claim made by the

appellant. On 1.11.1991, having considered the objections

preferred and after affording opportunity of hearing to all

such as wished to be heard, the High Court by its decision

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

dated 1.11.1991 allowed the representations made by the

appellant. He was given the benefit of the period spent in

approved military service being counted for the purpose of

seniority in Himachal Pradesh Judicial Service. He was

placed at the bottom of the 1974 batch of judicial officers.

Prior to the abovesaid decision of the High Court the

appellant was placed at Sl. No. 43 of the seniority list

issued in December, 1990. As a result of his

representations having been accepted in terms of the order

dated 1.11.1991 passed by the High Court the appellant

stepped up to Sl. No. 13 of the said seniority list.

One George, who was then a Senior Sub Judge-cum-Chief

Judicial Magistrate, filed civil writ petition No. 693 of

1991 laying challenge to the seniority assigned to the

appellant. The constitutional validity of the Rules

granting benefit of seniority to the judicial officers

recruited in the quota of ex-servicemen as also the legal

validity of the order dated 1.11.1991 were challenged. It

is pertinent to note that the only persons impleaded as

respondents in the petition filed by George were A.C.

Thalwal (the appellant herein), the State of Himachal

Pradesh and the High Court of Himachal Pradesh. Other

judicial officers who were above Thalwal and became below

him as a consequence of the order dated 1.11.1991 passed by

the High Court were not joined as parties to the petition.

It appears that the respondents therein also did not raise

any objection as to non-joinder of such parties. By

judgment dated 10.6.1992 the Division Bench of the High

Court of Himachal Pradesh dismissed Georges petition.

A perusal of the judgment of the High Court shows that

the Division Bench was persuaded to accept the

constitutional validity of Reservation Rules, 1981 on the

assumption that the same was no more res integra as having

been already upheld by the Full Bench of that High Court in

Mohinder Kumar Sood Vs. H.P. Public Service Commission and

others AIR 1982 HP 78. The Division Bench also found

nothing wrong in the benefit of the period spent in approved

military service being given in judicial service of Himachal

Pradesh because the same was contemplated by Rules.

Aggrieved by the judgment of the High Court, George filed a

petition seeking special leave to appeal before this court.

On 26.11.1992 the SLP was dismissed by a non-speaking order.

The judgment of the High Court was implemented. Seniority

was already assigned to the appellant. In view of the

appellants seniority having been stepped up, he was

appointed as Senior Sub-Judge-cum-Chief Judicial Magistrate

on 15.12.1992.

It appears that the placement of the appellant at the

bottom of 1974 batch of judicial officers under order of the

High Court dated 1.11.1991 had in effect resulted in a

benefit of about 10 years of approved military service being

given to the appellant. He once again made a representation

for giving him the benefit of full 11 years of approved

military service for the purpose of seniority. On 6.8.1993

the representation was considered by the Full Court and

accepted. Consequent upon the benefit of 11 years of

approved military service having been allowed to the

appellant he was placed at the top of 1974 batch of judicial

officers.

In August 1993, two writ petitions came to be filed by

two sets of judicial officers adversely affected by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

orders of the High Court and the action taken pursuant

thereto resulting in stepping up of the seniority of the

appellant Thalwal. C.W.P. 1184 of 1993 was filed on

19.8.1993 by 14 judicial officers some of whom were District

& Session Judges, some were Additional District Judges and

some were Chief Judicial Magistrates. C.W.P. 168 of 1994

was filed by 9 judicial officers, all Senior Sub

Judge-cum-Chief Judicial Magistrates (or holding equivalent

posts/offices). In these two writ petitions, challenge was

laid to both the orders of the High Court dated 1.11.1991

and 6.8.1993. Constitutional validity of Reservation Rules

1981 was also put in issue in these two writ petitions on

the ground that the Rules have been framed by the State

Government without consulting the High Court of Himachal

Pradesh as required by Article 234 of the Constitution and

therefore they have no validity. The pleas raised by the

writ petitioners have been upheld by the Division Bench of

the High Court and the two impugned orders of the High Court

and consequent action of stepping up of the seniority of the

appellant have been ordered to be struck down. The Division

Bench has however clarified that the benefit of pay fixation

allowed to the appellant and his appointment in reserved

quota of ex-army personnel were not being touched or

disturbed. The aggrieved appellant has preferred these two

appeals by special leave.

Recruitment to judicial services in the State of

Himachal Pradesh is governed by H.P. Judicial Service

Rules, 1973 framed by the Governor in consultation with the

High Court and in exercise of the powers conferred by

Article 234 read with Article 309 of the Constitution of

India. These rules do not make any provision for

reservation in favour of scheduled castes, scheduled tribes

and other backward classes. These rules also do not

contemplate reservation in the category of ex-army

personnel. Full Bench of High Court of Himachal Pradesh in

Mohinder Kumar Sood Vs. H.P. Public Service Commission and

others AIR 1982 HP 78 has held that ex-army personnel is a

category covered by other backward classes. In the appeal

before us we are not called upon to express any opinion on

this view of the law taken by the Full Bench of the High

Court of Himachal Pradesh. We will, for the purpose of this

appeal, only assume the permissibility of such reservation.

However, the fact remains that the H.P. Judicial Service

Rules do not anywhere provide for any entrant in the

judicial service in any reserved category being given any

extra benefit in calculating or fixing seniority. These

rules provide for seniority being assigned by calculating

the length of service from the date of entry in service. It

was conceded at Bar that in so far as the appellant Thalwal

is concerned, the period spent by him in approved military

service being counted for the purpose of fixing seniority in

judicial service could have been done only by reference to

Reservation Rules of 1981. We would, therefore, proceed to

examine the validity of these rules.

The Demobilised Indian Armed Forces (Reservation of

Vacancies in H.P. Judicial Service) Rules, 1975 were framed

by the Governor in consultation with the High Court of

Himachal Pradesh. These rules came into force on 28.4.1975,

the date of their publication in the Government Gazette.

The life of these rules was five years, expiring in April

1980. Sub-Rule (1) of Rule 4 provided for the period of

approved military service rendered after attaining the

minimum age prescribed for the appointment to the H.P.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

Judicial Service by the candidates appointed against

reserved vacancies under Rule 2 (i.e. the approved military

service) shall count towards fixation of pay and seniority

in that service.

The life of the 1975 Rules expired in April, 1980. The

State Government proposed to extend the life of these rules

and for that purpose made a reference to the High Court on

29th November, 1980 seeking approval of the High Court to

the proposed extension of the rules. The relevant part of

the letter stated:- It is proposed to extend these Rules

upto 31st December, 1982 as per draft amendment (copy

enclosed). It is requested that the approval of the High

Court/Public Service Commission may kindly be obtained and

conveyed to this department immediately.

The amendment enclosed with the letter proposed

substitution of Sub- Rule (2) of Rule 1 in the Rules of 1975

so as to read as under:-

(2) These shall come into force on the 28th day of

April 1975, and shall not remain in force after the 31st day

of December, 1982.

The matter came up for consideration in the Full Court

Meeting of the High Court on 6th March, 1981. The Full

Court, having given its serious consideration to the

proposal, placed on record its opinion that it would not be

in the interest of judiciary to agree to any further

reservation. The opinion of the High Court was communicated

to the State Government. What happened thereafter is

something strange. On 1st August, 1981 the Government of

Himachal Pradesh notified in the Government Gazette a fresh

set of rules entitled the Ex- Servicemen (Reservation of

Vacancies in the H.P. Judicial Service) Rules, 1981. Rule

5(1) of these Rules provides for the period of approved

military service rendered after attaining the minimum age

prescribed for appointment to the H.P. Judicial Service by

the candidates appointed against reserved vacancies under

Rule 3 (which includes the ex-servicemen) shall count

towards fixation of pay and seniority in that service. The

Preamble of the Rules states as under :-

In exercise of the powers conferred by the provisio to

article 309 read with article 234 of the Constitution of

India and all other powers enabling him in this behalf, the

Governor, Himachal Pradesh, in consultation with the High

Court of Himachal Pradesh and the Himachal Pradesh Public

Service Commission, hereby makes the following rules

regulating the reservation of vacancies in the Himachal

Pradesh Judicial Service for the Ex- Servicemen, Namely:-

[emphasis supplied]

The publication of the Reservation Rules 1981 was

brought to the notice of the High Court. It was viewed with

concern. On 28.8.1981 the Full Court passed the following

resolution:- The Full Court views with grave concern the

fact that whereas the Government sought approval of the

High Court to the proposed amendment vide its letter No.

7-5/70-DP.(Apptt.II) dated 29th November, 1980 and though

the Court vide its resolution dated 6th March, 1981 did not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

agree to the proposed amendment, still the Government has

enforced the proposed amendment.

The Registry is directed to convey the same to the

Government.

The Government gave no response. However, it continued

to make reservation for ex-servicemen under these Rules.

The Division Bench of the High Court in its judgment

under appeal has recorded a finding, based on the material

available as well as on the records available in the

Registry of the High Court, that these Reservation Rules,

1981 were never referred by the Governor to the High Court

and the High Court had never had any occasion to consider

the Rules. In short, there was no consultation much less

effective and meaningful consultation by the State

Government with the High Court as contemplated by Article

234 of the Constitution in so far as the Reservation Rules,

1981 are concerned. The preamble of the rules is factually

incorrect.

Article 234 of the Constitution of India provides for

appointments to the judicial service of the State (excluding

District Judges) to be made by the Governor of the State in

accordance with the Rules made by him in that bahalf after

consultation with the State Public Service Commission and

the High Court of the State. The consultation is mandatory.

The consultation contemplated by Article 234 is not a matter

of mere formality; it has to be meaningful and effective.

Judicial services have to be independent of executive

influence and so the Constitution has placed them on a

pedestal different from other services under the State. The

constitutional scheme aims at securing an independent

judiciary which is the bulwark of democracy. The status

which the High Court as an institution enjoys in the

constitutional scheme and the expertise and the experience

which it possesses of judicial services command with

justification a place of primacy being assigned to the High

Court in the process of consultation. As observed by the

Constitution Bench in Supreme Court Advocates-on-Record

Association and Ors. Vs. Union of India - (1993) 4 SCC 441

the High Court assumes primacy because of its being best

equipped to discharge the greater burden in the process of

consultation contemplated by Article 234 of the

Constitution; it is not a question of determining who

between the two constitutional functionaries is entitled to

greater importance or to take the winners prize at the end

of the debate. Reference may also be had to the law laid

down by this Court in Chandramouleshwar Prasad Vs. The

Patna High Court and Ors. - AIR 1970 SC 370 and Hari Datt

Kainthla and Anr. Vs. State of Himachal Pradesh and Ors.

- AIR 1980 SC 1426. Rules regarding consultation with the

High Court must at the proposal stage be made available to

the High Court so that after study, scrutiny and reflection

the High Court may be able to offer its advice to the

Governor.

The Reservation Rules, 1981 having been framed by the

Governor without consultation with the High Court of

Himachal Pradesh are ultra vires the constitution and hence

ineffective and unenforceable in view of Article 234 of the

Constitution. All that was done by the State Government was

to refer an amendment in the Reservation Rules, 1975 for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

opinion of the High Court so as to seek its opinion on the

proposed extension in the life thereof. The proposal of the

State Government did not meet the approval of the High

Court. The disapproval was conveyed to the State

Government. Thereafter there was no correspondence and no

reference by the State Government to the High Court. Even

the proposed extension of the life of the Reservation Rules,

1975 could not be said to have satisfied the test of

mandatory consultation with the High Court. In the matter

of Reservation Rules of 1981 even that much formality was

not done. The Division Bench of High Court is, therefore,

absolutely right in forming the opinion that these Rules are

void and a nullity.

In as much as the Reservation Rules 1981 are ultra

vires the Constitution, the orders of the High Court giving

benefit of seniority to the appellant automatically fall to

the ground as the orders are based on the Reservation Rules

of 1981. Shri Gopal Subramaniam, the learned senior counsel

for the appellant, submitted that the constitutional

validity of the Reservation Rules 1981 as well as the

validity of the order dated 1.11.1991 have been upheld by

the High Court of Himachal Pradesh in its judgment dated

10.6.1992 disposing of Georges petition and that order

having achieved a finality, the benefit available to the

appellant thereunder cannot be denied to him. We are not

impressed. Georges petition was not filed in a

representative capacity. The petitioners in the two writ

petitions, the judgment passed wherein is under challenge

before us, were not joined as parties in the petition filed

by George and therefore the judgment in Georges case

cannot, on any principle of law, bind the private

respondents before us (who were the writ petitioners in the

two writ petitions filed before the High Court). The two

writ petitions were filed in the year 1993 laying challenge

to the seniority list of 1990 as modified in the year 1991.

The writ petitions are neither belated nor barred by the

doctrine of laches. The decision in Georges case is based

on a fallacy going to the root of the matter. A perusal of

the judgment dated 10.6.1992 in Georges case shows the

Division Bench having proceeded on an erroneous assumption

that the constitutional validity of the Reservation Rules,

1981 was upheld by the Full Bench of the High Court of

Himachal Pradesh in Mohinder Kumar Soods case. A perusal

of the Full Bench judgment in Mohinder Kumar Soods case

shows that the Full Bench has nowhere upheld the

constitutional validity of Reservation Rules 1981. Though

the issue was raised incidentally, the Full Bench noticed

the relevant facts pointing out to the invalidity of the

Rules for want of mandatory consultation with the High Court

as required by Article 234 of the Constitution. However,

the Full Bench left the matter at that as it held the

reservation for ex-servicemen in judicial services

permissible by reference to Articles 16(4) and 29 of the

Constitution of India. The Division Bench of the High Court

was therefore not excluded from now going into the merits of

the challenge laid to the constitutional validity of the

Reservation Rules 1981 and testing the same on the

touchstone of Article 234 of the Constitution. For the

foregoing reasons it is held that the Ex-Servicemen

(Reservation of Vacancies in the Himachal Pradesh Judicial

Service) Rules, 1981 are ultra vires the Constitution and

hence void. They have been rightly struck down as such by

the High Court. The orders dated 1.11.1991 and 6.8.1993

passed by the High Court of Himachal Pradesh giving benefit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

of eleven years of approved military service to the

appellant have also been rightly struck down by the High

Court. No fault can be found with the judgment of the High

Court. The appeals are held liable to be dismissed.

However, we would like to make it clear that the High Court

in its impugned judgment has not disturbed that earlier

order of the High Court which gave the appellant benefit of

the period spent in approved military service being counted

for the purpose of pay fixation and the recruitment of the

appellant to the service in the quota of ex-army personnel.

No appeal has been filed against that part of the judgment

and that has achieved a finality. Obviously the dismissal

of this appeal would not prejudice the appellant in that

regard. The learned senior counsel for the appellant

invited our attention to the fact that the dismissal of this

appeal may result in reversion of the appellant from the

post of Sr. Sub-Judge-cum-Chief Judicial Magistrate, which

the appellant is holding ever since 15.12.1992 for no fault

of the appellant. He submitted that the service record of

the appellant is good and he has been satisfactorily

discharging his duties as Sr. Sub-Judge-cum- Chief Judicial

Magistrate which post he may be allowed to retain until the

time when he would even otherwise become entitled to hold in

spite of the benefit of seniority being denied to him. We

find some substance in the submission. It was pointed out

at the Bar, during the course of hearing, that shortly the

appellant would be due and eligible for being considered for

appointment on the post presently held by him even if the

benefit of 11 years seniority is denied to him. With a view

to balance equities and avoid any hardship to the appellant,

it is directed that in spite of these appeals being

dismissed and the judgment under appeal being implemented,

the appellant shall continue to hold the post presently held

by him. He shall be considered by the High Court for

appointment by promotion on the post of Sr.

Sub-Judge-cum-Chief Judicial Magistrate or an equivalent

post at a point of time when he would become eligible for

such consideration pursuant to the judgment under appeal of

the High Court. If he is found fit for such promotion, he

shall be so promoted and for future his seniority in the

cadre of Sr. Sub-Judge-cum-Chief Judicial Magistrate shall

be reckoned from the date of such promotion. If he may be

found not fit for promotion then he may be reverted to the

post of Sub-Judge-cum-Judicial Magistrate. In any case till

such consideration he shall continue to hold the post

presently held by him as a special case. Subject to the

above observation, the appeals are dismissed. The impugned

judgment of the High Court dated 17.11.1994 is maintained.

No order as to the costs.