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CASE NO.:

Appeal (civil) 9072 of 1996

PETITIONER:

STATE OF BIHAR & ANR.

RESPONDENT:

BAL MUKUND SAH & ORS.

DATE OF JUDGMENT: 14/03/2000

BENCH:

S.B.MAJMUDAR & G.B.PATTANAIK & V.N.KHARE & U.C.BANERJEE & R.P.SETHI

JUDGMENT:

JUDGMENT

DELIVERED BY:

S.B.MAJMUDAR

G.B.PATTANAIK

U.C.BANERJEE

R.P.SETHI JJ.

S.B.Majmudar, J.

Leave granted in Special Leave Petition No.16476 of

1993.

Both these appeals, on grant of special leave under

Article 136 of the Constitution of India, are moved by the

State of Bihar, which is common appellant no.1 in both these

appeals. In Civil Appeal No.9072 of 1996 the Secretary,

Department of Personnel and Administrative Reforms,

Government of Bihar is appellant no. 2, while in the

companion appeal arising from the Special Leave Petition No.

16476 of 1993, the other contesting appellant is the Special

Executive Officer-cum-Deputy Secretary, Bihar Public Service

Commission, Patna. In both these appeals, a common question

of law arises for consideration, namely, whether the

Legislature of the appellant State of Bihar was competent to

enact the Bihar Reservation of Vacancies in Posts and

Services (for Scheduled Castes, Scheduled Tribes and Other

Backward Classes) Act, 1991 (hereinafter referred to as the

Act), in so far as Section 4 thereof sought to impose

reservation for direct recruitment to the posts in the

Judiciary of the State, subordinate to the High Court of

Patna, being the posts of District Judges as well as the

posts in the lower judiciary at the grass-root level,

governed by the provisions of the Bihar Judicial Service

(Recruitment) Rules, 1955. Civil Appeal No.9072 of 1996

deals with the question of reservation in the posts in

District Judiciary while the companion appeal deals with the

posts in Subordinate Judiciary at grass-root level under the

District Courts concerned. By the impugned judgment in

Civil Appeal No.9072 of 1996, a Division Bench of the High

Court has struck down the terms of the advertisement,

reserving amongst others, 27 out of 54 posts of District

Judges to be filled in by direct recruitment, being ultra

vires the relevant provisions of Article 233 of the

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Constitution of India. It has also struck down the

provisions made in the impugned advertisement fixing up the

upper age limit at 45 years for eligibility for appointment

by way of direct recruitment to these posts. That part of

the controversy no longer survives between the parties in

the present proceedings and, therefore, we need not dilate

on the same. So far as the companion appeal is concerned,

the main judgment was rendered by the Division Bench of the

High Court holding that the aforesaid Act as well as the

earlier Ordinance which preceded the same in so far as they

sought to apply the scheme of reservation of posts for

governing recruitment of persons other than the District

Judges to the Judicial Service of the State were ultra vires

Article 234 of the Constitution. As the controversies

involved in these appeals have to be resolved in the light

of the relevant Constitutional scheme, by an earlier Order

dated 13th May, 1994 of this Court, they were directed to be

listed before a Constitution Bench. Subsequently in view of

the statement made by learned counsel that the matter could

be disposed of by a Bench of three Judges, the matters were

directed to be placed before a three-Judge Bench by an order

dated 12th May, 1995. Thereafter a three-Judge Bench of

this Court by its order dated 6th November, 1997 felt that

the matters raised questions regarding interpretation of

provisions of Articles 233, 234 and 309 of the Constitution

and hence it would be appropriate that they are heard by the

Constitution Bench. That is how these matters have been

placed before this Constitution Bench under the directions

of Honble the Chief Justice of India. Before we proceed to

deal with the rival contentions of learned counsel for the

respective parties in support of their cases, it becomes

necessary to note a few introductory facts. Facts leading

to Civil Appeal No.9072 of 1996: This Court, by its order

dated 13th October, 1993 in Civil Appeal Nos. 4561-62 of

1992 in State of Bihar vs. Madan Mohan Singh & Ors., had

quashed the earlier advertisement for filling up the

vacancies of Additional District Judges in the District

Judicial Service of Bihar and directed the appellant State

to fill up the same through a fresh advertisement. In the

mean time, it appears that as the High Court had not agreed

to the suggestion of the State authorities to have

reservation in the posts of District Judges for reserved

category of candidates and had insisted on proceeding with

the recruitment as per the 1951 Rules, styled as the Bihar

Superior Judicial Service Rules, 1951, which were framed by

the Governor of Bihar in exercise of the powers conferred by

the proviso to Article 309 read with Article 233 of the

Constitution of India and which Rules did not provide for

any such reservation, the Governor of Bihar issued the

impugned Ordinance which subsequently became the impugned

Act by which the scheme of 50% reservations for reserved

category of candidates was directed to be applied while

effecting direct recruitment to the posts concerned. On

16th November, 1993, the appellant State requested the High

Court to effect recruitment to the vacancies in the cadre of

District Judges on the basis of the reservation provided by

the Ordinance which subsequently was followed by the Act.

By its communication dated 16th December, 1993, the High

Court of Patna insisted that recruitment to District

Judiciary can be made on the basis of 1951 Rules only. By a

communication dated 5th April, 1994, the High Court informed

the authorities concerned that no reservation of posts in

the district cadre could be implemented and while making

appointments from the members of the Bar for direct

recruitment, preference may be given to the Scheduled Caste

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(for short SC) and Scheduled Tribe (for short ST)

candidates who are of equal merit with general category

candidates. On 7th April, 1994, the High Court intimated

that there are 54 vacancies in the district cadre which had

to be filled up. The State Government, however, issued the

impugned advertisement of 16th June, 1994 by which 50% of

the available vacancies of District Judges were sought to be

filled in from reserved category of candidates and the

remaining 50% posts thereof, i.e. 27, were to be filled in

by the open category candidates. It is this advertisement

which was challenged by the writ petitioners before the High

Court. The High Court, by the impugned judgment as noted

earlier, has allowed the writ petition and quashed the

condition of reservation sought to be imposed by the

impugned advertisement.

Facts leading to Civil Appeal arising out of S.L.P.(C)

No.16476 of 1993: By a proposal dated 30th January, 1991,

the appellant-State consulted the Bihar Public Service

Commission regarding making provision for reservation of

posts in the Subordinate Judicial Service for reserved

category of candidates. The said proposal of the

appellant-State was also placed for consideration of the

High Court but it was not accepted by the High Court by its

communication dated 16th April, 1991, and that resulted in

the impugned Ordinances, being 33 and 34 of 1991, which were

followed by the impugned Act. The original writ

petitioners, who had already appeared at the competitive

examination in April, 1991 moved the High Court challenging

the Ordinances and the latter Act in so far as the scheme of

50% reservation of posts for direct recruitment at grass

root level of the State Judiciary was concerned. As noted

earlier, the aforesaid writ petition was allowed and relief

was granted against the appellants. Rival contentions:

Dr.Dhavan, learned senior counsel appearing for the

appellant-State in Civil Appeal No.9072 of 1996, at the

outset, contended that the impugned Act, especially Section

4 thereof, is wrongly held by the High Court to be not

applicable to Judicial Services of the State. He contended

that Judicial Services especially, the Subordinate Judiciary

comprising of district cadre and the cadre of Judges below

the same were part and parcel of the Public Services of the

State and, therefore, on the express terminology of the Act,

Section 4 thereof, became directly applicable to the

recruitment of judicial officers both at the district level

as well as at the level of Subordinate Judiciary below it.

Alternatively, it was submitted that even assuming that the

Act did not apply on its own language, even then, it has to

be held that the State Legislature was perfectly competent

to enact provisions regarding reservation of posts in

Judicial Services of the State in the light of Article 16(4)

of the Constitution of India read with the relevant entry 41

in list II of Seventh Schedule to Constitution. He also

posed the moot question whether the State Legislature has

independent power to enact any provisions regarding

reservation in connection with appointment in Judiciary when

such reservation, after consultation with the High Court,

could not get reflected in the relevant Rules framed by the

Governor under Article 309 read with Articles 233 and 234 of

the Constitution of India. In support of these contentions,

relevant Constitutional scheme was pressed in service. It

was submitted that on a correct interpretation of Article

309 the State Legislature as well as the Governor had ample

jurisdiction to make provision for reservation in connection

with Judicial Service. Under the said Article, paramount

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power in this connection has been vested in the State

Legislature. He then referred to Articles 233 and 234 in

connection with Subordinate Judiciary and placed emphasis on

Article 236 (b) defining the expression Judicial Service

as a service consisting exclusively of persons intended to

fill the post of District Judge and other civil judicial

posts inferior to the post of District Judge. He submitted

that all that the opening part of Article 309 provides is to

the effect that, while making appointments to the cadre of

District Judges or Subordinate Judges of lower judiciary, as

per Articles 233 and 234, consultation of the Governor with

the High Court is necessary. That apart, from these latter

two Articles there is no fetter on the power of the State

Legislature to enact appropriate legislation in this

connection under Article 309. He invited our attention to

List II entry 41 of the Seventh Schedule for submitting that

the State Legislature is competent to make enactment in

connection with appointments to Public Services and

Judicial Service is also a Public Service of the State.

He further submitted that the first part of Article 309 does

not attract Article 234 so far as State Legislatures

paramount powers are concerned.

Dr.Dhavan, relying upon the second part of Article

235, stated that despite the full control of District

Judiciary being vested in the High Court, the right of

appeal and other conditions of service of Members of

Subordinate Judiciary as laid down by any competent law

which would include legislative enactment as well as

statutory rules are clearly saved pro tanto at least at the

second level, after appointments are made at the grass-root

level in the Judiciary and when the further question arises

as to how the conditions of service of such appointees are

to be governed and controlled. Dr.Dhavan, therefore,

submitted that it is not as if the power of State

Legislature to enact appropriate provisions is totally

excluded because of the enactment of Articles 233 to 235.

Dr.Dhavan tried to highlight his submission by contending

that if the power of State Legislature to enact appropriate

provisions regarding appointments of Members of Subordinate

Judiciary is held totally excluded by Article 234, and to

that extent Article 309 be held out of picture, then the

following anomalies may arise in the working of these

provisions.

1) Judicial Service as defined by Article 236(b)

will get truncated in its operation.

2) The second anomaly pointed out by Dr.Dhavan was

that power to legislate, which must be given full effect,

would get excluded without there being any express

exclusion.

3) The third anomaly pointed out by Dr.Dhavan was that

though under the Constitution, the scheme of separation of

power is devised to separate the Executive from the

Judiciary, this scheme does not extend to oust the

legislative power. If it is held that Article 234 ousts the

legislative power for making suitable enactments on the

topic covered therein then, to that extent, an anomalous

position would arise not contemplated by the Constitutional

scheme.

Dr.Dhavan next contended that on the express language

of Article 234, only the rule making power of the Governor

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is fettered but not the legislative power of the State.

Dr.Dhavan next submitted that if legislative

interference in the process of selection and appointment of

direct recruits to Subordinate Judiciary as per Article 234

is completely ruled out that being the first level or the

grass-root level of the Subordinate Judiciary then another

patently anomalous situation would arise. That under

Article 235 second part such statutory provisions to be

enacted by competent Legislature are clearly contemplated so

far as conditions of service of judicial officers are

concerned and then when we turn to the apex level, namely,

of the district cadre manned by District Judges there is no

express ouster of legislative interference under Article

233. Thus the plenary power of the Legislature would be

operative qua the highest posts in the hierarchy of District

Judiciary while for the grass-root level it will be ruled

out. Dr.Dhavan then invited our attention to the decisions

in M.M.Gupta & Ors. etc. vs. State of Jammu & Kashmir &

Ors., (1982) 3 SCC 412 paras 28 to 32 as well as in State of

Kerala vs. Smt.A.Lakshmikutty & Ors., (1986) 4 SCC 632 at

page 647 in para 22 to highlight the scope of the term

consultation which should be effective consultation. He

then invited our attention to the impugned Act especially

Sections 2 (c), 4 and 16 having overriding effect over all

other rules in force and submitted that such establishments

under the State would include even Judiciary as laid down

by the definition of Section 2(n). He, however, fairly

conceded that neither in the Rules of 1951 regarding

appointments to district cadre as per Article 233 nor under

the Rules of 1955 for recruitment to cadre of Subordinate

Judiciary as laid down by Article 234, there is any

provision for 50% reservation of posts and, therefore, he

submitted that this entire case depends upon competence of

the impugned Act which had to be enacted because there was a

stalemate on this subject as the High Court did not agree

with the suggestion of the Governor for suitable amendment

to these Rules under Articles 233 and 234. He ultimately

submitted, that the reasoning of the High Court that the Act

does not cover Judicial Service is patently erroneous and

that this Act is not bound by any fetters of Articles 233 or

234 and is an exercise of paramount legislative power

conferred on the State authorities under Article 309 first

part read with entry 41 List II of Seventh Schedule of the

Constitution. He, therefore, submitted that the Act must be

permitted to have full play.

In support of his contentions Dr.Dhavan placed strong

reliance on the decision of a Constitution Bench of this

Court in the case of B.S.Yadav & Ors. v. State of Haryana

& Ors. etc. (1981) 1 SCR 1024. Dr.Dhavan, therefore,

submitted that the impugned judgment of the High Court,

being contrary to the Constitutional scheme, requires to be

set aside.

Shri Dwivedi, learned senior counsel appearing for the

appellant-State in the companion Civil Appeal submitted that

though the High Court in para 9 at page 11 has referred to a

three-Judge Bench judgment of this Court in All India

Judges Association & Ors. etc. vs. Union of India & Ors.

etc., AIR 1993 SC 2493, giving special status to judicial

officers, the said observations cannot whittle down the

power of reservation available to the State authorities

under Article 16 (4) and that question was not examined in

the said case as it did not fall for consideration. He

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submitted that a conjoint reading of Sections 2(c) and 2(n)

clearly shows that the Act is meant to apply also to

Judicial Service of the Bihar State. He next contended

that question of reservation of posts in a cadre which is

already established by the State authorities in exercise of

their powers under Article 309 is not covered by Articles

233 to 235. That question is covered by Article 16

sub-article (4) and none of the aforesaid provisions curtail

that enabling power available to the State authorities. In

this connection, he also invited our attention to entry 11A

of List III of Seventh Schedule to the Constitution dealing

with constitution and organisation of all courts, except the

Supreme Court and the High Courts, and submitted that scheme

of reservation of posts would remain sustained under these

provisions and also as per the Legislature enacted under

entry 41 of List II. He submitted that once the court is

constituted, it would comprise of all cadres of judicial

officers to man the courts and the formation of cadres and

constitution of the courts also permitted provisions for

creation of reserved posts to comprise in such cadres. This

exercise has nothing to do with the question of appointment

on available vacancies in posts borne on established cadres

in Judicial Service. According to Shri Dwivedi, the

establishment of cadres and creation of posts in the cadres

is a stage prior to the one contemplated by Articles 233 to

235 dealing with the subsequent question as to how actual

appointments of deserving candidates are to be effected to

fill up vacancies in already created posts in the concerned

cadres. In short, the submission of Shri Dwivedi was that

question of creation of posts to be filled up by reserved

candidates or open category candidates was in the domain of

the State authorities especially, the Legislature which can

enact appropriate statutory provisions in discharge of

constitutional obligation under Article 16(4) read with

entry 41 of List II of Seventh Schedule as well as entry 11

A of List III and once the general category posts as well as

the reserved category posts are made available to the High

Court for being filled in, thereafter, it will be for the

High Court to proceed according to Articles 233 and 234 of

the Constitution of India and in that exercise the State

Legislature will have no say. He, therefore, contended that

the High Court in the impugned judgment was patently in

error in taking the view that statutory provision of

reservation of posts for reserved category candidates in the

Subordinate Judiciary under its control was in any way ultra

vires or illegal. Shri Dwivedi, in support of his

contentions, gave written submissions whereby, amongst

others, he invited our attention to Article 320 sub-article

(4) which excludes reservation expressly from the powers and

functions of the Public Service Commission. He submitted

that Article 234 requires the Governor for framing rules to

consult the High Court as well as the Public Service

Commission and when it cannot make any provision regarding

reservation under Article 16 sub-article (4), by analogy,

consultation of the High Court also under the very same

Article 234 would not permit the High Court to deal with

Article 16 sub- article (4). In other words, question of

reservation is outside the ken of Article 234. Shri

Dwivedi, also in support of his contentions, placed reliance

on various decisions of this Court to which we will make a

reference at an appropriate stage. Shri Dwivedi next

contended that even under the Bihar Judicial Service

(Recruitment) Rules, 1955 (hereinafter referred to as the

1955 Rules) especially, Rules 19 & 20 reservation of posts

in lower judiciary is contemplated; that these Rules are

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made by the Governor in consultation with the High Court and

the Public Service Commission.

Shri Dwivedi next contended that, in any case, the

High Court in the impugned judgement was not called upon to

consider the further question whether there cannot be any

reservation to the posts in district cadre and the stand of

the High Court that if candidates of equal merit are there,

then preference can be given to SC and ST candidates, was

correct or not. That the only question before the High

Court was whether the impugned Act could validly apply to

provision of reservation of posts in the District Judiciary.

He, therefore, submitted that the observations in para 24 of

the impugned judgment, in any case, are required to be set

aside as redundant and uncalled for. It was accordingly

submitted by Shri Dwivedi that the appeal deserves to be

allowed.

Learned counsel appearing for the Intervenors in

I.A.No.20, on the other hand, tried to support the case of

reservation for SC and ST candidates relying on Rule 20 of

1955 Rules so far as the recruitment to Subordinate

Judiciary was concerned. Learned counsel for the

intervenors in I.A.No.10 representing Other Backward Class

(for short OBC) candidates adopted the arguments of

Dr.Dhavan and Shri Dwivedi in support of the impugned Act

and the scheme of reservation thereunder. Learned counsel

appearing for the Intervenors as per I.A.No.11 tried to

support reservation for SC and ST candidates under the Act

and even dehors it. While intervenor in I.A.Nos. 4 and 9

representing general category candidates supported the

decision of the High Court. The main reply to the

contentions of learned counsel for the appellants emanated

from learned senior counsel Shri Thakur appearing for the

High Court of Patna. He submitted, in the first instance,

that the impugned Act is not wide enough to apply to

Judiciary. He tried to support this contention on the basis

of reasoning which appealed to the High Court in the

impugned judgment. He alternatively contended that Section

4 of the impugned Act, if applied to judicial officers, will

ex facie become invalid being repugnant to the composite

scheme of Articles 233 to 235. To highlight this

alternative contention, he contended as under : 1. Article

309 has no application to Subordinate Judiciary. It gets

excluded by the triology of Articles 233 to 235 which

represent a complete Code amongst themselves. 2. Once

Article 309 is excluded, legislative power under Article 309

first part also gets excluded qua the field covered by the

aforesaid triology of the Articles. 3. These three

Articles themselves are the only source of power to make

rules or law as seen from second part of Article 235 as well

as Articles 233 and 234. 4. Rules made under Article 234

by the Governor after following the procedure laid down

thereunder would relate to service also as contemplated by

Article 233. 5. Second part of Article 235 only can permit

suitable legislation by the State authorities governing the

conditions of service of already recruited judicial officers

whether at the grass-root level or even at the apex level of

the District Judiciary in exercise of its legislative power

under Article 309 read with entry 41 of List II of the

Seventh Schedule. In order to support his contention that

Article 309 does not apply to recruitment to the Judicial

Service, he invited our attention to Article 187 dealing

with Secretarial Staff of Legislature, Article 148 dealing

with Service regulations of the Comptroller & Auditor-

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General of India, Article 146 dealing with Service under the

Supreme Court, Article 229(2) dealing with Services under

the High Court and Article 324(5) dealing with Service

regulations of Election Commission and submitted that in all

these Articles, special provisions are made for enacting

appropriate rules and even statutes covering the topics

mentioned therein. But so far as Article 234 is concerned,

it is not subject to the law of Legislature as found in the

aforesaid other Articles. To a pointed query by us Shri

Thakur, learned senior counsel for the High Court of Patna,

after taking appropriate instructions, submitted that in

principle the High Court of Patna has already accepted

reservation of 14% posts for SC and 10% for ST candidates

for being recruited at the lowest level of the District

Judiciary. Shri Thakur also placed reliance on decisions of

the various High Courts and of this Court to which we will

make a reference at an appropriate stage. Shri Thakur,

further submitted that Section 4 of the impugned Act, in

express terms, seeks to regulate appointments to the

existing posts in the cadre of District Judiciary as well as

in the Subordinate Judiciary. To that extent it directly

impinges upon the provisions of Articles 233 and 234, which

amongst them, represent a complete Code in connection with

appointment to Subordinate Judiciary. He further submitted

that it is fallacious to contend that reserving posts for a

given class of candidates would be at a stage prior to the

question of recruitment and appointment as contemplated by

Articles 233 and 234 of the Constitution. That once posts

are already created for being filled up in a given cadre the

authority of the State in this connection would come to an

end. For creation of such cadres and sanction of posts

appropriate legislation can be enacted or even the Governor,

in exercise of his independent power under Article 309, can

promulgate Rules. But once posts are already created in a

Judicial Cadre and when the question of filling up vacancies

in the existing sanctioned posts in district cadre or

subordinate cadre arises, direct recruitment has to be done

on the recommendation of the High Court as laid down by

Article 233 (2) and recruitment in the vacancies in the

cadre of Subordinate Judiciary has to be done as per the

1955 Rules framed by the Governor in consultation with the

High Court under Article 234 and in no other manner. That

for regulating this process there is no question of any

legislative interference by exercise of any paramount power.

He, therefore, contended that the view of the High Court in

the impugned judgment is well sustained on the

Constitutional scheme and calls for no interference. He,

however, fairly submitted that so far as the 1955 Rules are

concerned, by the consent of the High Court the rule making

power has been exercised by the Governor permitting the

reservation for SC and ST candidates in recruitment governed

by the said Rules and which recruitment has to be resorted

to for filling up vacancies in posts of Subordinate Judges

and the Munsiffs. He also fairly stated that the High Court

is consistently following the provision of reservation for

direct recruitment in these categories of posts to the

extent of 14% being reserved for SC and 10% being reserved

for ST candidates but nothing more. So far as the impugned

Act is concerned, it goes far beyond this permitted scheme

of reservation under the relevant Rules of 1955 and seeks to

impose a blanket reservation of 50% for SC, ST and OBC

candidates. That such a statutory provision flies in the

face of Articles 233 and 234 of the Constitution of India

and cannot be sustained and accordingly rightly been voided

by the High Court. Points for determination: In the light

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of the aforesaid rival contentions, the following points

arise for our determination: 1. Whether the impugned Act

of 1991 on its express language covers Judicial Service of

the Bihar State; 2. If the answer to point no.1 is in the

affirmative, whether the provisions of the impugned Act,

especially, Section 4 thereof in its application to

Subordinate Judiciary would be ultra vires Articles 233 and

234 of the Constitution of India and hence cannot be

sustained; 3. In the alternative, whether the aforesaid

provisions of the Act are required to be read down by

holding that Section 4 of the Act will not apply to direct

recruitment to the posts comprised in the Bihar Superior

Judicial Service as specified in the Schedule to the Bihar

Superior Judicial Service Rules, 1951 as well as to Bihar

Judicial Service governed by the Bihar Judicial Service

(Recruitment) Rules, 1955, comprising of the posts of

Subordinate Judges and Munsiffs under the District

Judiciary; and 4. What final order?

Before we deal with the aforesaid points for

determination, it will be necessary to keep in view the

relevant provisions of the Constitution which have a direct

impact on the resolution of the controversy projected by

these points. Constitutional Scheme: Part XIV deals with

Services under the Union and the States. Chapter I

comprising of Articles 308 to 313 deals with Services, while

Chapter II covering Articles 315 to 323 deals with Public

Service Commissions. Article 308 defines the expression

State, which shall not include the State of Jammu &

Kashmir. However, the relevant Article for our present

purpose is Article 309 which reads as under : 309.

Recruitment and conditions of service of persons serving the

Union or a State Subject to the provisions of this

Constitution, Acts of the appropriate Legislature may

regulate the recruitment, and conditions of service of

persons appointed, to public services and posts in

connection with the affairs of the Union or of any State:

Provided that it shall be competent for the President

or such person as he may direct in the case of services and

posts in connection with the affairs of the Union, and for

the Governor of a State or such person as he may direct in

the case of services and posts in connection with the

affairs of the State, to make rules regulating the

recruitment, and the conditions of service of persons

appointed, to such services and posts until provision in

that behalf is made by or under an Act of the appropriate

Legislature under this article, and any rules so made shall

have effect subject to the Provisions of any such Act.

A mere look at this Article shows that it is expressly

made subject to other provisions of the Constitution and

subject to that, an appropriate Legislature or Governor can

regulate the recruitment and conditions of service of

persons appointed to public services and posts in connection

with the affairs of the State concerned. Proviso to that

Article permits the Governor of the State to fill up the

gap, if there is no such statutory provision governing the

aforesaid topics. For that purpose, the Governor may make

rules regulating the recruitment and the conditions of

service of persons appointed to such services and posts

until provision in that behalf is made by or under an Act of

the competent Legislature which may intervene and enact

appropriate statutory provisions for the same. The manner

of recruitment to the services contemplated by Article 309

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is provided by Chapter II dealing with the Public Service

Commissions. Article 320 deals with Functions of Public

Service Commissions enjoining them to conduct examinations

for appointment to the services of the Union and the

services of the State respectively. That naturally has a

direct linkage with the types of Services contemplated by

Article 309. Special Scheme for Judicial Services in Part

VI (Chapters V & VI):

It is pertinent to note that independently of general

provisions of Article 309, the Constitution has made special

provisions for certain Services. Even if they may be part

of public services, still separate Constitutional schemes

are envisaged for regulating recruitment and conditions of

services of officers governed by such Services. Let us have

a glance at such specially dealt with Services. Part VI of

the Constitution dealing with the States, separately deals

with the executive in Chapter II, the State Legislature

under Chapter III and thereafter Chapter IV dealing with the

Legislative Powers of the Governor and then follows Chapter

V dealing with the High Courts in the States and Chapter VI

dealing with the Subordinate Courts. It is in Chapter VI

dealing with the Subordinate Courts that we find the

provision made for appointment of District Judges under

Article 233, recruitment of persons other than the District

Judges to the Judicial Services under Article 234 and also

Control of the High Court over the Subordinate Courts as

laid down by Article 235. Article 236 deals with the topic

of Interpretation and amongst others, defines by sub-

article (b) the expression judicial service to mean a

service consisting exclusively of persons intended to fill

the post of District Judge and other civil judicial posts

inferior to the post of District Judge. It becomes,

therefore, obvious that the framers of the Constitution

separately dealt with Judicial Services of the State and

made exclusive provisions regarding recruitment to the posts

of District Judges and other civil judicial posts inferior

to the posts of the District Judge. Thus these provisions

found entirely in a different part of the Constitution stand

on their own and quite independent of part XIV dealing with

Services in general under the State. Therefore, Article

309, which, on its express terms, is made subject to other

provisions of the Constitution, does get circumscribed to

the extent to which from its general field of operation is

carved out a separate and exclusive field for operation by

the relevant provisions of Articles dealing with Subordinate

Judiciary as found in Chapter VI of Part VI of the

Constitution to which we will make further reference at an

appropriate stage in the later part of this judgment. We

may also refer at this stage to Article 146 dealing with

Services under the Supreme Court which lays down the

procedure for appointment of officers and servants of the

Supreme Court and provides under sub-article (2) thereof

that subject to the provisions of any law made by

Parliament, the conditions of service of officers and

servants of the Supreme Court shall be such as may be

prescribed by rules made by the Chief Justice of India or by

some other Judge or officer of the court authorised by the

Chief Justice of India to make rules for the purpose.

Similar provision is found in Article 229 dealing with

recruitment of officers and servants and the expenses of the

High Courts. Sub-article (2) there of lays down the rule

making power of the Chief Justice of the Court concerned or

by some other Judge or officer of the Court authorised by

the Chief Justice to make rules for the purpose subject to

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the provisions of any law made by any Legislature of the

State. Article 148 deals with Comptroller and

Auditor-General of India. Sub-article (5) thereof deals

with rule making power of the President regarding the

conditions of service of persons serving in the Indian Audit

and Accounts Department and the administrative powers of the

Comptroller and Auditor-General subject to any provisions of

the Constitution or any law made by the Parliament in this

connection. Article 98 deals with Secretariat of

Parliament. Sub- article (3) thereof provides Until

provision is made by Parliament under clause (2), the

President may, after consultation with the Speaker of the

House of the People or the Chairman of the Council of

States, as the case may be, make rules regulating the

recruitment, and the conditions of service of persons

appointed, to the secretarial staff of the House of the

People or the Council of States, and any rules so made shall

have effect subject to the provisions of any law made under

the said clause. Similarly, for Secretariat of State

Legislature, we find Article 187 which deals with separate

secretariat staff for the House or each House of the

Legislature of a State. Sub-article (3) thereof runs

parallel to sub-article (3) of Article 98 and provides that

until provision is made by the Legislature of the State

under clause (2), the Governor may, after consultation with

the Speaker of the Legislative Assembly or the Chairman of

the Legislative Council, as the case may be, make rules

regulating the recruitment, and the conditions of service of

persons appointed, to the secretarial staff of the Assembly

or the Council and any rules so made shall have effect

subject to the provisions of any law made under the said

clause. Article 324 is found in Part XV which deals with

Superintendence, direction and control of elections to be

vested in an Election Commission. Sub-article (5) thereof

provides that subject to the provisions of any law made by

Parliament, the conditions of service and tenure of office

of the Election Commissioners and the Regional Commissioners

shall be such as the President may by rule determine. The

aforesaid Constitutional provisions clearly indicate that

independently of general provisions regarding Services as

mentioned in Part XIV, different types of Services

contemplated by the Constitution in other parts have their

own procedural schemes for recruitment and regulation of

conditions of these Services and therefore, Article 309

found in Part XIV necessarily will have to be read subject

to these special provisions regarding recruitment and

conditions of services of diverse types governed by the

relevant different Constitutional provisions as indicated

herein above. The other Article to which reference is to be

made is Article 16 sub-article (4) of the Constitution which

enables the State to make provision for reservation of

appointments or posts in favour of any backward class of

citizens which, in its opinion, is not adequately

represented in the services under the State. This provision

has to be read with Article 335 which deals with Claims of

Scheduled Castes and Scheduled Tribes to services and posts

and lays down that the claims of the members of the

Scheduled Castes and the Scheduled Tribes shall be taken

into consideration, consistently with the maintenance of

efficiency of administration, in the making of appointments

to services and posts in connection with the affairs of the

Union or of a State. Though on the express language of

Article 335, the Other Backward Classes are not included, it

is now well settled by a decision of the nine-member

Constitution Bench of this Court in the case of Indra

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Sawhney & Ors. vs. Union of India & Ors., [1992 Suppl.

(3) SCC 217] that even the Other Backward Classes are also

covered by the thrust of Article 335 of the Constitution of

India and that view is reaffirmed and is followed by a

recent decision of the three-Judge Bench of this Court in

IAs. Nos.35-36 in WP (C) No.930 of 1990 etc. in Indra

Sawhney vs. Union of India & Ors. reported in (2000) 1 SCC

168, wherein Jagannadha Rao, J., speaking on behalf of the

three-Judge Bench highlighted this very position. Thus,

even if under Article 16(4) the State proposes to provide

reservation on the ground of inadequate representation of

certain backward classes in Services, if it is considered by

the appropriate authority that such reservation will

adversely affect the efficiency of the administration, then

exercise under Article 16(4) is not permissible. This is

the Constitutional limitation on the exercise of the

enabling power of reservation under Article 16(4). As we

shall presently show, question whether in the Subordinate

Judiciary covered by Articles 233 and 234 if reservation is

provided, then the efficiency of the judicial administration

will be affected, is a matter within the exclusive purview

of the High Court which shall have to be consulted. Such

consultation is a Constitutional obligation before any Rules

are made for reservation. Before parting with the resume of

relevant Constitutional provisions, we may also refer to

Article 50 which lays down the Directive Principles of State

Policy that the State shall take steps to separate the

judiciary from the executive in the public services of the

State.

Legislative powers under Articles 245, 246 are subject

to other provisions, including Articles 233, 234 and 235:

We may also refer to Part XI of the constitution, especially

Chapter I dealing with Legislative Relations laying down the

Distribution of Legislative Powers. Article 245 deals with

Extent of Laws made by Parliament and by the Legislatures

of States. Sub-article (1) thereof provides that Subject

to the provisions of this Constitution, Parliament may make

laws for the whole or any part of the territory of India,

and the Legislature of a State may make laws for the whole

or any part of the State. Thus, the legislative powers of

Parliament and the Legislature of the State are expressly

made subject to other provisions of the Constitution.

Similarly, Article 246 laying down the category of

subject-matter of laws made by Parliament and by the

Legislatures of States enumerated in Lists I, II and III of

the Seventh Schedule will also have to be read subject to

Article 245. Meaning thereby, if other provisions of the

Constitution cut down or exclude the Legislative powers of

Parliament or State Legislature qua given topics, then those

other provisions have to be given their full play and

effect.

Articles 233, 234 and 235: So far as recruitment to

District and Subordinate Judiciary is concerned, we have

therefore, to turn to the twin Articles found in Chapter VI

of Part VI dealing with Subordinate Courts. The relevant

two articles read as under : 233. Appointment of Judges:

(1) Appointment 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

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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.

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. (Emphasis supplied)

Article 233 dealing with appointment of District

Judges, on its own express terminology projects a complete

scheme regarding the appointment of persons to District

Judiciary as District Judges. In the present appeals, we

are concerned with direct recruitment to the cadre of

District Judges and hence sub-article (2) of Articles 233

becomes relevant. Apart from laying down the eligibility

criterion for candidates to be appointed from the Bar as

direct District Judges the said provision is further hedged

by the condition that only those recommended by the High

Court for such appointment could be appointed by the

Governor of the State. Similarly, for recruitment of

judicial officers other than District Judges to the Judicial

Service at lower level, complete scheme is provided by

Article 234 wherein the Governor of the State can make such

appointments in accordance with the rules framed by him

after consulting with the State Public Service Commission

and with the High Court exercising jurisdiction in relation

to such State. So far as the Public Service Commission is

concerned, as seen from Article 320, the procedure for

recruitment to the advertised posts to be followed by it is

earmarked therein. But the role of the Public Service

Commission springs into action after the posts in a cadre

are required to be filled in by direct recruitment and for

that purpose due intimation is given to the Commission by

the State authorities. They have obviously to act in

consultation with the High Court so far as recruitment to

posts in Subordinate Judiciary is concerned. Of course, it

will be for the High Court to decide how many vacancies in

the cadre of District Judges and Subordinate Judges are

required to be filled in by direct recruitment so far as the

District Judiciary is concerned and necessarily only by

direct recruitment so far as Subordinate Judiciary is

concerned. This prime role of the High Court becomes

clearly discernible from Article 235 which deals with the

control of the High Court over the Subordinate Judiciary and

also of Subordinate Courts. The said Article provides as

under: 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 have 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.

It is in the light of the aforesaid relevant scheme of

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the Constitution that we now proceed to tackle the main

controversy posed for our consideration. Point No.1: So

far as this point is concerned, it is strictly not necessary

for us to go into the reason or the cause which led the

appellant-State to resort to the exercise of legislative

power for enacting the impugned Act. The question is

whether the Act, as enacted, by its express language, can

apply to judicial service of the State or not. When we

turn to this Act, we find that it is enacted to provide for

adequate representation of SC, ST and OBC candidates in

Posts and Services under the State. The State is defined

by Section 2(n) to include the Government, the Legislature

and the Judiciary of the State of Bihar and all local or

other authorities within the State or under the control of

the State Government. Consequently, it cannot be said that

the Act, as framed, did not seek to cover the Judiciary of

the State of Bihar. The main provision of the Act, which is

on the anvil of controversy, is Section 4 which reads as

under : 4. Reservation for direct recruitment All

appointments to services and posts in an establishment which

are to be filled by direct recruitment shall be regulated in

the following manner, namely :- (1) The available vacancies

shall be filled up (a) from open merit category .. ..

50% (b) from reserved category .. .. 50% (2) The vacancies

from different categories of reserved candidates from

amongst the 50% reserved category shall, subject to other

provisions of this Act, be as follows :- (a) Scheduled

Castes .. .. 14% (b) Scheduled Tribes .. .. 10% (c)

Extremely Backward Class .. .. 12% (d) Backward Class ..

.. 8% (e) Economically Backward Woman .. 3% (f)

Economically Backward .. .. 3% ----- Total .. 50% ----

Provided that the State Government may, by notification in

the official Gazette, fix different percentage for different

districts in accordance with the percentage of population of

Scheduled Castes/Scheduled Tribes and Other backward classes

in such districts: Provided further that in case of

promotion, reservation shall be made only for Scheduled

Castes/Scheduled Tribes in the same proportion as provided

in this section. (3) A reserved category candidate who is

selected on the basis of his merit shall be counted against

50% vacancies of open merit category and not against the

reserved category vacancies. (4) Notwithstanding anything

contained to the contrary in this Act or in any other law or

rules for the time being in force, or in any judgement or

decree of the Court, the provision of sub-section (3) shall

apply to all such cases in which all formalities of

selection have been completed before the 1st November 1990,

but the appointment letters have not been issued. (5) The

vacancies reserved for the Scheduled Castes/Scheduled Tribes

and other Backward Classes shall not be filled up by

candidates not belonging to Scheduled Castes/Scheduled

Tribes and Other Backward Classes except as otherwise

provided in this Act. (6) (a) In case of non-availability

of suitable candidates from the Scheduled Castes and

Scheduled Tribes for appointment and promotion in vacancies

reserved for them, the vacancies shall continue to be

reserved for three recruitment years and if suitable

candidates are not available even in the third year, the

vacancies shall be exchanged between the Scheduled Castes

and Scheduled Tribes and the vacancies so filled by exchange

shall be treated as reserved for the candidates for that

particular community who are actually appointed. (b) In

case of non-availability of suitable candidates from the

Extremely Backward Classes and Backward Classes the

vacancies so reserved shall continue to be reserved for them

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for three recruitment years and if suitable candidates are

not available even in the third year also, the vacancies

shall be filled by exchange between the candidates from the

extremely Backward and Backward Classes and the vacancies so

filled by Exchange shall be treated as reserved for the

candidates of that particular community who are actually

appointed. (c) In case of non-availability of suitable

candidates for the vacancies reserved for the economically

backward women the vacancies shall be filled first by the

candidates from the Scheduled Castes, then by the candidates

from the Scheduled Tribes, then by the candidates from

extremely backward class, and then by the candidates from

backward class. The vacancies so filled in the transaction

shall be treated as reserved for the candidates of that

particular community who are actually appointed. (d) If in

any recruitment year, the number of candidates of Scheduled

Castes/Scheduled Tribes, extremely Backward and Backward

Classes are less than the number of vacancies reserved for

them even after exchange formula the remaining backlog

vacancies may be filled by general candidates after

dereserving them but the vacancies so dereserved shall be

carried forward for three recruitment years.

(e) If the required number of candidates of Scheduled

Castes, Scheduled Tribes and Extremely Backward and Backward

Classes are not available for filling up the reserved

vacancies, fresh advertisement may be made only for the

candidates belonging to the members of Scheduled Castes,

Scheduled Tribes and Extremely Backward and Backward

Classes, as the case may be, to fill the backlog vacancies

only.

A bare reading of the said provision shows that all

appointments to services and posts in any establishment by

way of direct recruitment require to be subjected to

reservation so that all available vacancies have to be

filled in from open category candidates only up to 50% and

from reserved category up to remaining 50%. It cannot be

disputed that posts of District Judges and Judges

subordinate to the District Judiciary are also posts in

Judicial Service. Question is whether the phrase posts in

any establishment governs such judicial posts. We have,

therefore, to turn to the definition of the term

establishment as found in Section 2(c) of the Act. The

relevant provision thereof lays down that establishment

means any Office or department of the State concerned with

the appointments to public services and posts in connection

with the affairs of the State. On a conjoint reading of

the definition of State under Section 2(n) and the

definition establishment under Section 2(c), the following

statutory scheme emerges. Any office or establishment of

the Judiciary of the State of Bihar concerned with the

appointments to public services and posts in connection with

affairs of the Judiciary of the State of Bihar would fall

within the sweep of the term establishment. Once that

conclusion emerges from the scheme of the Act, it becomes

obvious that all appointments to services and posts in any

office or department of the Judiciary of the State of Bihar

would be covered by the sweep of Section 4. On the

aforesaid scheme of the Act, the High Court in the impugned

judgment, has taken the view that the operation of Section 4

for offices or departments of the Judiciary of the State of

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Bihar would cover only the ministerial staff of the District

Courts and courts subordinate thereto and would not include

Presiding Officers and therefore, Section 4 will not govern

the direct recruitment to the posts of Presiding Officers of

the District Judiciary as well as of Subordinate Judiciary.

It is difficult to appreciate this line of reasoning on the

express language of the relevant provisions of Section 4

read with the definition provisions. It becomes obvious

that the term any office of the Judiciary of the State of

Bihar would naturally include not only ministerial staff but

also officers, including Presiding Officers of courts

comprised in the Judiciary of the State. Once that

conclusion is reached on the express language of the

relevant provisions of the Act, it cannot be held that the

thrust of Section 4 would not apply to govern reservation

for direct recruitment to the posts of Presiding Officers in

the District Courts as well as courts subordinate thereto,

as all of them will form part and parcel of the Judiciary of

the State of Bihar and will have to be treated as holders of

offices in the State Judiciary. Consequently, it is not

possible to agree with the contention of learned senior

counsel Shri Thakur for the High Court that on the express

provisions of the Act, Section 4 cannot apply to govern

recruitment to posts in Subordinate Judiciary. The first

point for determination, therefore, has to be answered in

the affirmative in favour of the appellants and against the

respondents.

Point No.2: Since it is held that Section 4 of the

impugned Act, on its express terms, covers direct

recruitment to posts in the cadre of District Judiciary as

well as to Subordinate Judiciary in the State of Bihar, moot

question arises as to whether Section 4 can be sustained on

the touchstone of the relevant Constitutional scheme

governing the recruitment and appointments to these posts.

For coming to the grip of this problem, we have to keep in

view the salient features of the Constitution emanating from

the Directive Principles of State Policy as laid down by

Article 50 which underscores the felt need of separation of

the Judiciary from the Executive. For achieving that

purpose, the Constitution has made separate provisions

regarding the recruitment and appointment to the cadre of

District Judges as well as the Subordinate Judiciary as

found in Chapter VI of Part VI of the Constitution and, as

seen earlier, these provisions are conspicuously not

included in part XIV dealing in general with Services under

the Union and the States. Article 309 itself, which is of

general nature, dealing with regulation of Recruitment and

conditions of Service of persons serving in the Union or a

State is expressly made subject to other provisions of the

Constitution. The first part of Article 235 itself lays

down that it is for the High Court to control the District

Courts and Courts subordinate thereto and in exercise of

that control vesting in the High Court, regulation of

posting and promotions and granting of leave to persons

belonging to the Judicial Services has to be done by the

High Court. It is, of course, true that in the second part

of Article 235 judicial officers already appointed to the

Service have their statutory right of appeal and the right

to be dealt with regarding other service conditions as laid

down by any other law for the time being in force, expressly

protected. But these provisions of the second part only

enable the Governor under Article 309, in the absence of any

statutory enactment made by the competent Legislature for

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regulating the conditions of service of judicial officers

who are already recruited and have entered and become part

and parcel of the State service, to promulgate appropriate

rules on the subject. But so far as the entry points are

concerned, namely, recruitment and appointment to the posts

of Presiding Officers of the courts subordinate to the High

Courts, only Articles 233 and 234 would govern the field.

Article 234 lays down the procedure and the method of

recruiting judicial officers at grass-root level being

Subordinate Judges and Munsiffs as laid down by the 1955

Rules. These Rules are also framed by the Governor of Bihar

in exercise of his powers under Article 234 obviously after

the consultation of the High Court and the Public Service

Commission. Rules regarding the procedure of selection to

be followed by the State Public Service Commission as found

in Rules 4 to 17 deal with the method to be adopted by the

Public Service Commission while selecting candidates who

offer their candidature for the posts advertised to be

filled in. These Rules obviously require consultation with

the Commission on the procedural aspect of selection

process. But so far as the High Court is concerned, its

consultation becomes pivotal and relevant by the thrust of

Article 233 itself as it is the High Court which has to

control the candidates, who ultimately on getting selected,

have to act as Judges at the lowest level of the Judiciary

and whose posting, promotion and grant of leave and other

judicial control would vest only in the High Court, as per

Article 235 first part, once they enter the judicial service

at grass-root level. Thus consultation of the Governor with

the High Court under Article 234 is entirely of a different

type as compared to his consultation with the Public Service

Commission about procedural aspect of selection. So far as

direct recruitment to the posts of District Judges is

concerned, Article 233 sub-article (2) leaves no room for

doubt that unless the candidate is recommended by the High

Court, the Governor cannot appoint him as a District Judge.

Thus Articles 233 and 234, amongst them, represent a

well-knit and complete scheme regulating the appointments at

the apex level of District Judiciary, namely, District

Judges on the one hand and Subordinate Judges at the

grass-root level of Judiciary subordinate to the district

court. Thus Subordinate Judiciary represents a pyramidical

structure. At base level i.e. grass- root level are the

Munsiffs and Magistrates whose recruitment is governed by

Article 234. That is the first level of the Judiciary. The

second level represents already recruited judicial officers

at grass-root level, whose working is controlled by the High

Court under Article 235 first part. At the top of this

pyramid are the posts of District Judges. Their recruitment

to these posts is governed by Article 233. It is the third

and the apex level of Subordinate Judiciary. It has also to

be kept in view that neither Article 233 nor Article 234

contains any provision of being subject to any enactment by

appropriate Legislature as we find in Articles 98, 146, 148,

187, 229(2) and 324(5). These latter Articles contain

provisions regarding the rule making power of the concerned

authorities subject to the provisions of the law made by the

Parliament or Legislature. Such a provision is

conspicuously absent in Articles 233 and 234 of the

Constitution of India. Therefore, it is not possible to

agree with the contention of learned counsel for the

appellant-State that these Articles only deal with the rule

making power of the Governor, but do not touch the

legislative power of the competent Legislature. It has to

be kept in view that once the Constitution provides a

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complete Code for regulating recruitment and appointment to

District Judiciary and to Subordinate Judiciary, it gets

insulated from the interference of any other outside agency.

We have to keep in view the scheme of the Constitution and

its basic framework that the Executive has to be separated

from the Judiciary. Hence, the general sweep of Article 309

has to be read subject to this complete Code regarding

appointment of District Judges and Judges in the Subordinate

Judiciary. In this connection, we have also to keep in view

Article 245 which, in its express terms, is made subject to

other provisions of the Constitution which would OBinclude

Articles 233 and 234. Consequently, as these twin Articles

cover the entire field regarding recruitment and appointment

of District Judges and Judges of the Subordinate Judiciary

at base level pro tanto the otherwise paramount legislative

power of the State Legislature to operate on this field

clearly gets excluded by the Constitutional scheme itself.

Thus both Articles 309 and 245 will have to be read subject

to Articles 233 and 234 as provided in the former Articles

themselves. It is true, as submitted by learned senior

counsel Shri Dwivedi for the appellant-State that under

Article 16(4) the State is enabled to provide for

reservations in Services. But so far as Judicial Service

is concerned, such reservation can be made by the Governor,

in exercise of his rule making power only after consultation

with the High Court. The enactment of any statutory

provision dehors consultation with the High Court for

regulating the recruitment to District Judiciary and to

Subordinate Judiciary will clearly fly in the face of the

complete scheme of recruitment and appointment to

Subordinate Judiciary and the exclusive field earmarked in

connection with such appointments by Articles 233 and 234.

It is not as if that the High Courts being constitutional

functionaries may be oblivious of the need for a scheme of

reservation if necessary in appropriate cases by resorting

to the enabling provision under Article 16(4). The High

Courts can get consulted by the Governor for framing

appropriate rules regarding reservation for governing

recruitment under Articles 233 and 234. But so long as it

is not done, the Legislature cannot, by an indirect method,

completely bypassing the High Court and exercising its

legislative power, circumvent and cut across the very scheme

of recruitment and appointment to District Judiciary as

envisaged by the makers of the Constitution. Such an

exercise, apart from being totally forbidden by the

Constitutional scheme, will also fall foul on the concept

relating to separation of powers between the legislature,

the executive and the judiciary as well as the fundamental

concept of an independent judiciary. Both these concepts

are now elevated to the level of basic structure of the

Constitution and are the very heart of the Constitutional

scheme. In the case of His Holiness Kesavananda Bharati

Sripadagalvaru vs. State of Kerala & Anr. etc.etc., (1973)

4 SCC 225, a twelve-member Constitution Bench of this Court

had occasion to consider this question regarding the basic

structure of the Constitution which, according to the Court,

could not be tinkered with by the Parliament in exercise of

its amending power under Article 368 of the Constitution.

Sikri, CJ., in para 247 of the Report referred with approval

the decision of the Judicial Committee in Liyanges case,

(1967) 1 AC 259 for culling out the implied limitations on

the amending power of the competent Legislature like the

Parliament of Ceylon with which that case was concerned.

The relevant observations are found in paras 253 to 255 of

the Report at pages 357 and 358, which read as under :

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253. The case, however, furnishes another instance where

implied limitations were inferred. After referring to the

provisions dealing with judicature and the Judges, the

Board observed:

These provisions manifest an intention to secure in

the judiciary a freedom from political, legislative and

executive control. They are wholly appropriate in a

Constitution which intends that judicial power shall be

vested only in the judicature. They would be inappropriate

in a Constitution by which it was intended that judicial

power should be shared by the executive or the legislature.

The Constitutions silence as to the vesting of judicial

power is consistent with its remaining, where it had lain

for more than a century, in the hands of the judicature. It

is not consistent with any intention that henceforth it

should pass to or be shared by, the executive or the

legislature.

254. The Judicial Committee was of the view that

there exists a separate power in the judicature which under

the Constitution as it stands cannot be usurped or infringed

by the executive or the legislature. The Judicial

Committee cut down the plain words of Section 29(1) thus:

Section 29(1) of the Constitution says.- Subject to

the provisions of this Order Parliament shall have power to

make laws for the peace, order and good government of the

Island. These words have habitually been construed in their

fullest scope. Section 29(4) provides that Parliament may

amend the Constitution on a two-thirds majority with a

certificate of the Speaker. Their Lordships however cannot

read the words of Section 29(1) as entitling Parliament to

pass legislation which usurps the judicial power of the

Judicature-e.g., by passing an Act of attainder against some

person or instructing a judge to bring in a verdict of

guilty against someone who is being tried-if in law such

usurpation would otherwise be contrary to the Constitution.

(p.289)

255. In conclusion the Judicial Committee held that

there was interference with the functions of the judiciary

and it was not only the likely but the intended effect of

the impugned enactments, and that was fatal to their

validity.

The ultimate conclusion to which Chief Justice Sikri

reached are found in paras 292 to 294 at page 366 of the

Report which read as under : 292. The learned

Attorney-General said that every provision of the

Constitution is essential; otherwise it would not have been

put in the Constitution. This is true. But this does not

place every provision of the Constitution in the same

position. The true position is that every provision of the

Constitution can be amended provided in the result the basic

foundation and structure of the constitution remains the

same. The basic structure may be said to consist of the

following features:

(1) Supremacy of the Constitution; (2) Republican and

Democratic form of Government; (3) Secular character of the

Constitution; (4) Separation of powers between the

legislature, the executive and the judiciary; (5) Federal

character of the Constitution.

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293. The above structure is built on the basic

foundation, i.e., the dignity and freedom of the individual.

This is of supreme importance. This cannot by any form of

amendment be destroyed.

294. The above foundation and the above basic

features are easily discernible not only from the preamble

but the whole scheme of the Constitution, which I have

already discussed.

The other learned Judges constituting the Constitution

Bench had nothing inconsistent to say in this connection.

Thus separation of powers between the legislature, the

executive and the judiciary is the basic feature of the

Constitution. It has also to be kept in view that judicial

independence is the very essence and basic structure of the

Constitution. We may also usefully refer to the latest

decision of the Constitution Bench of this Court in

Registrar (Admn.), High Court of Orissa, Cuttack etc. vs.

Sisir Kanta Satapathy (Dead) by LRs & Anr. etc., (1999) 7

SCC page 725, wherein K.Venkataswami, J., speaking for the

Constitution Bench, made the following pertinent

observations in the very first two paras regarding Articles

233 to 235 of the Constitution of India : An independent

judiciary is one of the basic features of the Constitution

of the Republic. Indian Constitution has zealously guarded

independence of judiciary. 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.

The Constitution Bench in the aforesaid decision also

relied upon the observations of this Court in All India

Judges Association & Ors.etc. (supra), wherein on the

topic of regulating the service conditions of Judiciary as

permitted by Article 235 read with Article 309, it had been

observed as under : .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.

In view of this settled legal position, therefore,

even while operating in the permissible field of regulating

other conditions of service of already recruited judicial

officers by exercising power under Article 309, the

concerned authorities have to keep in view the opinion of

the High Court of the concerned State and the same cannot be

whisked away. In order to fructify this Constitutional

intention of preserving the independence of Judiciary and

for fructifying this basic requirement, the process of

recruitment and appointment to the District Judiciary with

which we are concerned in the present case, is insulated

from outside legislative interference by the Constitutional

makers by enacting a complete Code for that purpose, as laid

down by Articles 233 and 234. Consultation with the High

Court is, therefore, an inevitable essential feature of the

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exercise contemplated under these two Articles. If any

outside independent interference was envisaged by them,

nothing prevented the founding fathers from making Articles

233 and 234 subject to the law enacted by the Legislature of

States or Parliament as was done in the case of other

Articles, as seen earlier. In the case of State of Kerala

vs. Smt.A.Lakshmikutty & Ors., (1986) 4 SCC 632, a two

member Bench of this Court, speaking through Sen,J., placing

reliance on the Constitution Bench judgment of this Court in

Chandra Mohan vs. State of U.P., (1967) 1 SCR 77, made the

following pertinent observations in paras 22 to 25 at pages

647-648, which read as under : 22. The heart of the

matter is that consultation between the State Government

and the High Court in the matter of appointment of District

Judges under Article 233(1) of the Constitution must be

real, full and effective. To make the consultation

effective, there has to be an interchange of views between

the High Court and the State Government, so that any

departure from the advice of the High Court would be

explained to the High Court by the State Government. If the

State Government were simply to give lip service to the

principle of consultation and depart from the advice of the

High Court in making judicial appointments without referring

back to the High Court the difficulties which prevent the

government from accepting its advice, the consultation would

not be effective and any appointment of a person as a

District Judge by direct recruitment from the bar or by

promotion from the judicial services under Article 233(1)

would be invalid. Unless the State Government were to

convey to the High Court the difficulties which prevent the

government from accepting its advice by referring back the

matter the consultation would not be effective.

23. Indubitably, the power of appointment of persons

to be District Judges conferred on the Governor, meaning the

State Government, under Article 233(1) in consultation with

the High Court is an executive function. It has been

settled by a long line of decisions of this Court starting

from Chandra Mohan v. State of U.P. to M.M.Gupta v. State

of J & K that the power of the State Government is not

absolute and unfettered but is hedged in with conditions.

The exercise of the power of the Governor under Article

233(1) in the matter of appointment of District Judges is

conditioned by consultation with the exercise of the power

that the power can only be exercised in consultation with

the High Court.

24. Appointment of persons to be, and the posting and

promotion of, District Judges in any State, shall be made by

the Governor of the State under Article 233(1) in

consultation with the High Court exercising jurisdiction in

relation to such State. Sub-Article (2) thereof provides

that a person not already in the service of the Union or of

the State shall only be eligible to be appointed as 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. It is therefore obvious that

eligibility of appointment of persons to be District Judges

by direct recruitment from amongst the members of the bar

depends entirely on the recommendation of the High Court.

The State Government has no power to appoint any person as a

District Judge except from the panel of names forwarded by

the High Court. As stated, the decisions starting from

Chandra Mohan v. State of U.P. have established the

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principle as a rule of law, that consultation between the

Governor and the High Court in the matter of appointment of

District Judges under Article 233(1) must not be empty

formality but real, full and effective.

25. In Chandra Mohan v. State of U.P. Subba Rao,

C.J. speaking for a unanimous court observed : The

exercise of the power of appointment by the Governor is

conditioned by his consultation with the High Court, that is

to say, he can only appoint a person to the post of District

Judge in consultation with the High Court. The object of

consultation is apparent. The High Court is expected to

know better than the Governor in regard to the suitability

or otherwise of a person, belonging either to the Judicial

Service or to the bar, to be appointed as a District Judge.

Therefore, a duty is enjoined on the Governor to make the

appointment in consultation with a body which is the

appropriate authority to give advice to him.These

provisions indicate that the duty to consult is so

integrated with the exercise of the power that the power can

be exercised only in consultation with the person or persons

designated therein.

To the same effect are the decisions in

Chandramouleshwar Prasad v. Patna High Court, (1969) 3 SCC

56, High Court of P & H v. State of Haryana, (1975) 1 SCC

843, A.Panduranga Rao v. State of A.P., (1975) 4 SCC 709,

and M.M. Gupta v. State of J & K, (1982) 3 SCC 412.

It becomes, therefore, obvious that no recruitment to

the post of a District Judge can be made by the Governor

without recommendation from the High Court. Similarly,

appointments to Subordinate Judiciary at grass-root level

also cannot be made by the Governor save and except

according to the rules framed by him in consultation with

the High Court and the Public Service Commission. Any

statutory provision bypassing consultation with the High

Court and laying down a statutory fiat as is tried to be

done by enactment of Section 4 by the Bihar Legislature has

got to be held to be in direct conflict with the complete

Code regarding recruitment and appointment to the posts of

District Judiciary and Subordinate Judiciary as permitted

and envisaged by Articles 233 and 234 of the Constitution.

Impugned Section 4, therefore, cannot operate in the clearly

earmarked and forbidden field for the State Legislature so

far as the topic of recruitment to District Judiciary and

Subordinate Judiciary is concerned. That field is carved

out and taken out from the operation of the general sweep of

Article 309. It is, of course, true as laid down by a

catena of decisions of this Court, that topics of

constitution of courts and services, laying down of rules

regarding the conditions of service other than those

expressly placed within the jurisdiction of the High Court

by Articles 233 and 235, providing for age of superannuation

or other retirement benefits to judicial officers, fixing

pay scales, diversification of cadres may form part of

general recruitment and conditions of services falling

within the spheres of Governors rule making power under

Article 309 read with second part of Article 235 or may even

be made subject matter of legislation by competent

Legislature in exercise of its legislative powers under

entry 41 of List II or for that matter entry 11A of List III

of the Seventh Schedule. But save and except this permitted

field, the State Legislature cannot enter upon the forbidden

field expressly reserved for consultation with the High

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Court by the thrust of Articles 233 and 234 so far as the

initial entry point of recruitment to judicial service at

grass root level or at the apex level of the District

Judiciary is concerned. A three-Judge Bench of this Court

in the case of A.Panduranga Rao vs. State of Andhra Pradesh

& Ors., AIR 1975 SC 1922, speaking through Untwalia, J.,

considered the question whether any one can be appointed by

the Governor as a District Judge without being recommended

by the High Court. Relying on the Constitution Bench

decision of this Court in Chandra Mohans case (supra) in

para 7 of the Report, observations were made as under :

There are two sources of recruitment, namely, (i) service

of the Union or the State, and (ii) members of the Bar. The

said Judges from the first source are appointed in

consultation with the High Court and those from the second

source are appointed on the recommendation of the High

Court.

And thereafter following pertinent observations were

made in para 8, which read as under : A candidate for

direct recruitment from the Bar does not become eligible for

appointment without the recommendation of the High Court.

He becomes eligible only on such recommendation under clause

(2) of Article 233. The High Court in the judgment under

appeal felt some difficulty in appreciating the meaning of

the word recommended. But the literal meaning given in

the Concise Oxford Dictionary is quite simple and apposite.

It means suggest as fit for employment. In case of

appointment from the Bar it is not open to the Government to

choose a candidate for appointment until and unless his name

is recommended by the High Court.

It is, therefore, obvious that the State Legislature

has no role to play while controlling appointments of

District Judges under Article 233 or appointment of Civil

Judges to Subordinate Judiciary at grass-root level under

the District Judiciary and it is only the Governor who is

entrusted with the said task which he has to undertake after

consultation with the High Court and by framing appropriate

rules for recruitment to Judiciary at grass-root level as

enjoined by Article 234 and can only act on recommendation

by the High Court for direct recruitment from the Bar for

being appointed as District Judges as laid down by Article

233 sub-article (2). There is no third method or third

authority which can intervene in the process or can have its

say, whether legislative authority or executive authority,

as the case may be, independently of the complete scheme of

such recruitment as envisaged by the aforesaid two Articles.

It is, therefore, difficult to appreciate the contention of

learned senior counsel for the appellant-State that

paramount legislative power of the State Legislature stands

untouched by the scheme of the aforesaid two Articles of the

Constitution. Shri Dwivedi, learned senior counsel for the

appellant-State was right when he contended that Article

16(4) is an enabling provision permitting the State to lay

down a scheme of reservation in State Services. It may also

be true that Judicial Service can also be considered to be a

part of such Service as laid down by this Court in the case

of B.S.Yadav & Ors.etc. (supra). However, so far as the

question of exercising that enabling power under Article

16(4) for laying down an appropriate scheme of reservation

goes, as seen earlier, we cannot be oblivious of the fact

that the High Court, being the high Constitutional

functionary, would also be alive to its social obligations

and the Constitutional guideline for having scheme of

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reservation to ameliorate the lot of deprived reserved

categories like the SC, ST and Other Backward Classes. But

for that purpose, the Governor can, in consultation with the

High Court, make appropriate rules and provide for a scheme

of reservation for appointments at grass-root level or even

at the highest level of the District Judiciary, but so long

as this is not done, the State Legislature cannot, by

upsetting the entire apple-cart and totally bypassing the

Constitutional mandate of Articles 233 and 234 and without

being required to consult the High Court, lay down a

statutory scheme of reservation as a road roller straight

jacket formula uniformly governing all State Services,

including Judiciary. It is easy to visualise that the High

Court may, on being properly and effectively consulted,

endorse the Governors view to enact provision of

reservation and lay down the percentage of reservation in

Judicial Service, for which it will be the appropriate

authority to suggest appropriate measures and required

percentage of reservation, keeping in view the thrust of

Article 335 which requires the consideration of the claim of

members of SC, ST and OBC for reservation in Services to be

consistent with the maintenance of efficiency of

administration. It is obvious that maintenance of

efficiency of judicial administration is entirely within the

control and jurisdiction of the High Court as laid down by

Article 235. The State Legislature, on its own, would

obviously lack the expertise and the knowledge based on

experience of judicial administration which is possessed by

the High Court. Consequently, bypassing the High Court, it

cannot, in exercise of its supposed paramount legislative

power enact any rule of thumb and provide fixed percentage

of reservation for SC, ST and Other Backward Classes in

Judicial Services and also lay down detailed procedure to be

followed as laid down by sub-sections (3) to (6) of Section

4 for effecting such statutorily fixed 50% reservation. It

is easy to visualise that if the High Court is not consulted

and obviously cannot be consulted while enacting any law by

the State Legislature and en bloc 50% reservation is

provided in the Judicial Service as is sought to be done by

Section 4 of the Act and which would automatically operate

and would present the High Court with a fait accompli, it

would be deprived of the right to suggest during the

Constitutionally guaranteed consultative process, by way of

its own expertise that for maintenance of efficiency of

administration in Judicial Service controlled by it, 50%

reservation may not be required, and/or even lesser

percentage may be required or even may not be required at

all. Even that opportunity will not be available to the

High Court if it is held that the State Legislature can

enact the law of reservation and make it automatically

applicable to Judicial Service bypassing the High Court

completely. Such an exercise vehemently canvassed for our

approval by learned senior counsel for the appellant- State

cannot be countenanced on the express scheme of the

Constitution, as discussed by us earlier. Even proceeding

on the basis that the scheme of Article 16(1) read with

Article 16(4) may be treated to be forming a part of the

basic feature of the Constitution, it has to be appreciated

that for fructifying such a Constitutional scheme Article

335 has to be kept in view by the authority concerned before

such a scheme of reservation can be promulgated. Once

Article 335 has to be given its full play while enacting

such a scheme of reservation, the High Court, entrusted with

the full control of Subordinate Judiciary as per Article 235

by the Constitution, has got to be consulted and cannot be

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treated to be a stranger to the said exercise as envisaged

by the impugned statutory provision.

We may now refer to one submission of learned senior

counsel Shri Dwivedi for the appellant-State. He contended

that there cannot be any dispute reOBgarding appointments to

available vacancies in the cadre of District Judiciary and

that they can be filled in only on the recommendation of the

High Court and equally there cannot be any dispute regarding

filling up of all vacancies in the Subordinate Judiciary as

per Article 234. They can be filled in by the Governor as

per rules framed in consultation with the High Court and the

Public Service Commission. But so far as reservation of

vacancies to be filled in by reserved category of candidates

is concerned, it is an exercise which is resorted to by the

State authorities in discharge of their enabling powers

under Article 16(4). That is a stage anterior to the

question of recruitment or appointment on available

vacancies in the cadre of District Judiciary or in the cadre

of Subordinate Judiciary. Consequently, such an exercise

invoked by any administrative order or, even by legislation,

cannot be said to be conflicting in any manner with the

procedure of recruitment and appointment to District

Judiciary and Subordinate Judiciary as per Articles 233 and

234 of the Constitution. This argument, as submitted, looks

attractive but on closer scrutiny falls through, as we shall

see presently. It is not in dispute and cannot be disputed

that creation of cadres and creation of posts in a cadre

comprised in Judicial Service of the State can be resorted

to by the Governor in exercise of his rule making power

under Article 309 or for that matter by any appropriate

Legislation by the State authorities under the very same

Article. But once cadre of District Judges and Subordinate

Judiciary are constituted by the aforesaid authorities and

posts backed up by suitable budgetary provisions are created

and are accordingly made available to be filled in in the

concerned cadres, process of creation of posts comes to an

end. Thereafter when in the created posts borne on any

judicial cadre, whether at the District Court level or at

the Subordinate Court level, any vacancies arise by

retirement or otherwise non-availability of the incumbents

due to any other reason, question of filling up of those

available vacancies would arise. Such available vacancies

of sanctioned posts have to be filled in only after

following the procedure laid down by Articles 233 and 234 of

the Constitution of India and cannot be subjected to any

other procedure. At that stage, directing the High Court

without its consent and consultation and merely by the

thrust of legislative provision that 50% of the available

vacancies in the cadre of District Judges or Judges of the

Subordinate Judiciary must be filled in from reserved

candidates only would ex-facie cut across the power of the

High Court which alone can recommend the filling up of all

such vacancies in the district cadre as per Article 233 and

equally the power of the High Court to render effective

consultation to the Governor under Article 234 when he

frames rules for recruitment of candidates for filling up of

all available vacancies in the Subordinate Judiciary under

the district court as per Article 234. It is difficult to

appreciate how filling up of vacancies in the already

sanctioned posts in these cadres will remain an exercise

anterior to the procedure laid down by the Constitution for

filling up of these vacancies as per Articles 233 and 234,

as the case may be. In any case, impugned Section 4 of the

Act, by its express wordings, does not contemplate any such

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stage anterior to filling up of vacancies in the existing

posts. On the contrary, it provides that all appointments

to Services and Posts in an establishment which are to be

filled in by direct recruitment shall be regulated in the

manner laid down therein. Meaning thereby, 50% of the

appointments to such available posts have to be done from

reserved category candidates as per percentage provided for

each of such classes. That necessarily means that 50% of

the existing vacancies in the available posts in the

Services have to be filled in from reserved category

candidates only. This mandate of Section 4, therefore, gets

directly hit by the scheme of the complete Code for such

direct recruitment to the Judicial Services in the district

cadre or subordinate cadre, as envisaged by Articles 233 and

234 of the Constitution of India.

We may take an example to highlight this position.

Supposing there are 10 vacancies of District Judges at a

given point of time in the State, which are available to be

filled in by direct recruitment keeping in view the ratio of

such direct recruitment permissible under the relevant

rules. Once these 10 vacancies of District Judges are

required to be filled in by direct recruitment on the

recommendation of the High Court from the members of the Bar

subject to the minimum eligibility laid down under Article

233 sub-article (2), the High Court obviously has to

undertake the exercise of selection of eligible candidates

on its own. The Governor, in such a case, shall have only

to pass consequential orders of appointment from the panel

as recommended by the High Court. If no such

recommendations are forthcoming, the Governor will have no

jurisdiction or power to make any such appointment as

clearly mandated by Article 233 sub-article (2). Once the

High Court undertakes such an exercise and prepares a panel

of eligible and suitable direct recruits from the Bar after

holding appropriate tests whether written or oral as the

relevant procedural rules may provide, it will, in the

serial order of inter se merit prepare a panel of 10

candidates and recommend them for appointment and the panel

may be sent for passing appropriate orders. If that is so,

all the 10 vacancies have to be filled in in the light of

the panel prepared by the High Court, keeping in view the

names of candidates listed in the panel as per the rankings

made by the High Court in the order of their respective

merits. Therefore, the High Court will prepare a panel of

10 recommendees for appointment to first 10 vacancies in the

serial order of their ranking as per merit and suitability.

This is the Constitutional mandate of that Article. Now if

it is visualised that the State Legislature, by an

independent enactment, as in the present case, requires the

High Court to treat only the first five vacancies to be

filled in by direct recruitment from general category in the

order of merit and the remaining five vacancies are required

to be filled in from reserved category of candidates only

and even if those reserved five vacancies can be filled in

by appointing reserved category of candidates as per the

order of their inter se merit, even then the thrust of

Section 4, to that extent, will certainly cut across or

restrict the power and authority of the High Court to

recommend appointments to all the ten vacancies of suitable

meritorious candidates as found by it. The result would be

that first five vacancies may go to the first five

candidates recommended in the panel according to merit but

so far as the vacancy nos.6 to 10 are concerned even though

the 6th direct recruit recommended by the High Court is

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obviously more meritorious than the candidate listed in the

panel at serial no.7, he may have to be bypassed if the

candidate at serial no.6 in the panel belongs to general

category while candidate no.7 belongs to SC category namely,

reserved category. The net result would be that though the

High Court, in exercise of its Constitutional obligation and

authority, recommends the 6th vacancy in the District Judge

cadre to be filled up by candidate no.6 listed in the panel,

by thrust of impugned Section 4 of the Act, the 6th vacancy

can be filled in by the Governor by appointing candidate

no.7 who is less meritorious as compared to candidate no.6

and who is not recommended by the High Court for being

appointed in vacancy no.6. Thus, he will be bypassed by

candidate no.7 who may belong to the SC category and who may

be standing higher in so far as inter se merit between the

SC candidates only are concerned. Supposing at serial no.9

there is another SC candidate then vis-.-vis candidate nos.7

and 9, who both belong to SC category, this 6th vacancy,

because of the thrust of Section 4 can be filled up by

candidate no.7. The submission of Shri Dwivedi that between

two SC candidates or candidates belonging to the same

reserved category it will be open to the High Court to

recommend appointment of more meritorious reserved category

candidate as compared to the candidate of the same category

who is less meritorious and this exercise would satisfy the

requirement of Article 233 sub-article (2) only gives lip

service to that Article. The reason is obvious. The High

Courts power and in fact Constitutional obligation to

recommend meritorious candidates found suitable by it for

filling up of all vacant posts will obviously get truncated

and restricted and the High Court though not recommending

candidate No.7 as suitable candidate for filling up vacancy

no.6, will be helpless by not being permitted appointment of

candidate no.6 who belongs to general category to occupy

that post and will have willy-nilly to suffer against its

own decision regarding appointment of candidate no.7 who

belongs to SC category for filling up vacancy no.6 and this

exercise will be thrust upon the High Court without being

consulted in this connection by the State Legislature by

enacting the impugned Section 4 of the Act. This

appointment obviously will be null and void and violative of

Article 233 (2). This type of bypassing the High Court will

clearly be an act of interference with independence of

judiciary which is the hallmark and bedrock of the

Constitutional scheme. Section 4, therefore, has got to be

held not to be operative on the forbidden field occupied by

Articles 233 and 234 of the Constitution of India. This is

obviously a type of reservation which is thrust upon the

High Court by Section 4. It cannot be treated to be

referable to a stage anterior to the process of recruitment

and appointment. In fact, as seen above, Section 4 itself

deals with the reservation for direct recruitment on

available posts. Therefore, in the field of recruitment

itself Section 4 seeks to have its independent sway. Both

Article 233 and Article 234 also deal with the very same

question of recruitment and appointment to District

Judiciary. It is this very field wholly reserved for

operation of Articles 233 and 234 that is encroached upon by

Section 4, by its express language, if made applicable to

judicial appointments. As seen earlier, consultation with

the High Court is a sine qua non in connection with direct

recruitment of judicial officers at grass-root level i.e.

Munsiffs and Magistrates and whose recruitment is governed

by the rules framed under Article 234 being the 1955 Rules.

Similarly, recruitment at district level judiciary is

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governed by 1951 Rules framed under Article 233 read with

Article 309 of the Constitution of India. However, direct

recruitment as District Judges has to be solely based on

appropriate recommendations of suitable candidates by the

High Court. In fact Rule 3 thereof, provides that the

strength of the Service and the number and character of the

posts shall be as specified in the schedule to these rules,

and once we turn to the Schedule to the 1951 Rules, we find

listed five cadres of superior judiciary at the district

level and the total posts sanctioned being 26. Obviously,

this rule has a direct nexus with Article 309 read with

Article 233. But beyond that when the question of filling

up of vacancies in the cadres of higher District Judiciary

on the already sanctioned posts crops up, the field is fully

occupied by Article 233 sub-articles (1) and (2) and there

is no other power with any other Constitutional authority to

effect such recruitment on available vacancies. It is not

possible to visualise that, while providing for direct

recruitment to District Judiciary as per Article 233

sub-article (2), even though the minimum eligibility

qualification laid down under the said provision is that the

candidate should have been practising for not less than

seven years as an advocate or a pleader, any further

eligibility as belonging to a reserved category is envisaged

for a given post. Consequently, it is not possible to agree

with the contention of learned counsel Shri Dwivedi for the

appellant-State that question of recruitment to the cadre of

District Judges by directing the High Court to recommend

eligible candidates for appointment keeping in view only 50%

of the available vacancies to be filled in by general

category and by treating the remaining 50% of the vacancies

as reserved would be a stage anterior to the stage of

recruitment or appointment to such available vacancies on

the already sanctioned posts in the cadre of District

Judiciary. At this stage we may also refer to the decision

of a Constitution Bench of this Court in B.S.Yadavs case

(supra) wherein Chandrachud, CJ had an occasion to interpret

Article 235 read with Article 309 proviso. The question

which arose for consideration in that case was whether the

rule of seniority of existing members of Superior Judicial

Services as framed by the Governor in exercise of his powers

under Article 309 proviso could validly operate to regulate

the seniority of such already recruited and appointed

judicial officers in Subordinate Judiciary. In order to

avoid the operation of the said rule which was having a

direct nexus with conditions of service of already appointed

judicial officers, a contention was raised that under

Article 235 even this subject matter was part and parcel of

the control of Subordinate Judiciary vesting in the High

Court under that article. While negativing this contention,

the Constitution Bench, speaking through Chandrachud, CJ,

placed reliance on the second part of Article 235 and

observed as under : The power of control vested in the

High Court by Art.235 is expressly made subject to the law

which the State Legislature may pass for regulating the

recruitment and service conditions of judicial officers of

the State. The framers of the Constitution did not regard

the power of the State Legislature to pass laws regulating

the recruitment and conditions of service of judicial

officers as an infringement of the independence of the

judiciary. The mere powers to pass such a law is not

violative of the control vested in the High Court over the

State judiciary.

Placing strong reliance on the aforesaid observations

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it was contended by learned senior counsel for the

appellant-State that it has been authoritatively ruled by

the Constitution Bench of this Court that the framers of the

Constitution did not regard the power of the State

Legislature to pass laws regulating the recruitment and

conditions of service of judicial officers as an

infringement of the independence of the judiciary. Now it

must be kept in view that these observations are made in the

light of second part of Article 235 which expressly saves

laws regulating the conditions of service of already

recruited judicial officers and who are functioning under

the control of the High Court under Article 235. Once the

very same Article permits the limited field for operation of

law-makers or rule-makers under Article 309 for regulating

the conditions of services of such already appointed

judicial officers by way of enacting any appropriate

statutory provision either by exercise of rule making power

of the Governor under Article 309 proviso or by appropriate

legislation under the said Article, it cannot be said that

these observations have laid down even impliedly, that while

recruiting judicial officers either at grass-root level

under Article 234 or at district level under Article 233 any

legislation can be enacted by the Legislature or that the

Governor by independent exercise of his rule making power

can make such a provision. This question of controlling

recruitment and appointment at the entry point either at

grass-root level i.e. level no.1 or at the apex level being

level no.3 in the pyramid of District Judiciary never arose

for consideration of the Constitution bench and hence the

aforesaid observations cannot be considered to be the

decision rendered by the Court on this moot point. It is

also easy to visualise that while considering the scope of

play of Article 309 vis-.-vis second part of Article 235

which carves out a permissible field by the very same

Article for law to be made for regulating other permissible

conditions of service the term recruitment has been

employed almost by way of mere reference to the language of

Article 309 and nothing more. If it is held that even

impliedly the aforesaid decision of the Constitution Bench

has taken the view that the appropriate authority, i.e. the

Governor, in exercise of his delegated legislative powers

under the Proviso to Article 309 or any State Legislature in

exercise of its paramount power under Article 309 first

part, can control the recruitment of judicial officers at

district level or at the level of Subordinate Judiciary

bypassing the High Court, then such an implied thrust of the

said observations must be held to be totally obiter and

uncalled for. Consequently, the aforesaid decision in

B.S.Yadavs case (supra) must be confined to the facts of

that case laying down the limited ratio that for deciding

the rule of seniority of already appointed judicial officers

in District Judiciary or Subordinate Judiciary, appropriate

law or rules can be framed under Article 309 by the

concerned authority as permissible under second part of

Article 235. That is the only ratio of that decision and it

cannot travel any further. However, leaving aside that

question, it can easily be visualised that the aforesaid

observations in the Constitution Bench judgment in

B.S.Yadavs case (supra) may, in general sense, refer to the

concept of recruitment as laid down by proviso under

Article 309 in view of the settled legal position that, in

exercise of their powers under the said Article, the

concerned authorities can form cadres of service in

Subordinate Judiciary and can also create sanctioned posts

in these cadres. The said exercise of creation of posts may

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also get covered by the concept of recruitment. It is

only in this broad sense that the term recruitment can be

said to have been mentioned by the Constitution Bench in the

aforesaid observations but they can certainly not go any

further nor can be treated to have ruled anything contrary

to the express scheme of Articles 233 and 234. This is the

additional reason why the aforesaid general observations

have to be confined to the limited scope and ambit of

Article 309, as indicated therein. For all these reasons,

therefore, the decision in B.S.Yadavs case (supra) cannot

be of any real assistance to learned counsel for the

appellant-State. We may now briefly deal with the main

contentions canvassed by learned senior counsel for the

appellant-State in support of their appeals. We shall first

deal with the contentions canvassed by Dr.Dhavan for the

appellant-State. The interpretation sought to be put on

Article 309 by Dr.Dhavan, as we have already seen earlier,

is not capable of having wider coverage so as to engulf

recruitment to judicial offices on district cadre as well as

on those below the district cadre. The Constitutional

scheme examined and seen earlier contra-indicates this

contention. So far as Dr.Dhavans submission that second

part of Article 235, despite the full control of District

Judiciary being vested in the High Court permits enactment

of suitable provisions under Article 309 also, cannot be of

any real assistance. As we have already seen above, the

second part of Article 235 deals with the topic of other

conditions of service including the right of appeal which

might be guaranteed to judicial officers by appropriate

legislation enacted by the authorities acting under Article

309 but that is an operation on the limited field permitted

by the second part of Article 235 at second level of the

pyramid of Subordinate Judiciary and nothing more.

Dr.Dhavan was right when he contended that on the scheme of

Articles 233 to 235 it is not as if other legislation is a

total taboo. However, the said submission ignores the fact

that it is the limited field earmarked by second part of

Article 235 regarding permissible regulation of conditions

of service that is reserved for operation of Article 309

through its appropriate authorities. But, save and except

this limited aspect which is permitted, the rest of the

control totally vests in the High Court under Article 235

first part. What is permitted by Article 235 cannot be

considered as a blanket power entrusted to the Legislature

or to the Governor under Article 309 by the Constitutional

makers dehors the complete net of Constitutional scheme

controlling recruitment and appointment to District

Judiciary and the Subordinate Judiciary under Articles 233

and 234 of the Constitution of India. These twin Articles

conspicuously do not envisage even the limited independent

field for operation of Article 309 as is permitted by

Article 235 second part. That shows the clear intention of

the Constitutional makers that so far as question of

recruitment and appointment to available vacancies in the

cadre of District Judges and Judges of the Subordinate

Judiciary is concerned, neither the Legislature nor the

Governor, dehors any consultation with the High Court, can

have any independent say. We may now deal with the supposed

anomalies that may result if the interpretation canvassed by

the respondent High Court is accepted. Dr.Dhavan contended

that, if power of the State Legislature to enact appropriate

provisions for appointment of members of Subordinate

Judiciary is excluded by Article 234, and to that extent

Article 309 is also to be out of picture, then various

anomalous situations may arise. He firstly, submitted that

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judicial service as defined by Article 236(b) will get

truncated in its operation. It is not possible to agree

with this contention for the simple reason that the

definition of judicial service only earmarks the Members

of that Service. How their appointment is to be made has to

be gathered from Articles 233 and 234. If they exclude any

statutory interference by the State Legislature such

interference would remain excluded by the sweep of these two

Articles themselves. The second anomaly pointed out by

Dr.Dhavan is that power to legislate must be given full

effect unless there is express exclusion. Even this cannot

be said to be an anomaly for the simple reason that Article

309 itself is subject to the opening part of the clause and

has to give way if other Articles of the Constitution cover

the field. The complete Code projected by Articles 233 and

234 would itself be an exclusion of the legislative power

and equally the Governors independent power under Article

309 qua that field. Even that apart, Article 245 dealing

with the legislative powers of Parliament and the State

Legislatures in terms makes the said provisions subject to

other provisions of the Constitution. Therefore, on the

same analogy by which Article 309 cannot independently

operate qua the exclusive field carved out by Articles 233

and 234, the legislative powers of Parliament as well as the

State Legislature would also get excluded. The next anomaly

pointed out by Dr.Dhavan was that under the Constitution,

the scheme of separation of powers is devised to separate

the Executive from the Judiciary and that this scheme does

not extend to oust the legislative power. If it is held

that Article 234 ousts the legislative power for making

suitable enactment on the topic covered by it, then to that

extent, it is contended, an anomalous situation would arise

not contemplated by the Constitutional scheme. It is

difficult to appreciate this contention. As per Article 50

of the Constitution of India, judicial functioning has to be

treated to be separate from that of the executive and to

fructify the said Constitutional scheme, Article 309 is made

subject to other relevant Articles of the Constitution

including Articles 233 and 234. Thus Articles 233 and 234

have their full sway not being inhibited by any outside

independent interference to be made by the Governor under

proviso to Article 309 or by the State Legislature in that

connection. Dr.Dhavan next contended that on the express

language of Article 233, only the rule making power of the

Governor is fettered but not the legislative power of the

State. This submission is mis-conceived as the legislative

power is co-terminus with the Governors rule making power.

For regulating the conditions of Service of Members of

public service as found in Article 309, as the proviso to

Article 309 itself shows, what the legislature can enact in

connection with the topic mentioned therein can be done by

the Governor in exercise of his rule making power as a

stop-gap arrangement till the very same field is covered by

the statutory enactment. Thus the earmarked field is the

same, namely, conditions of Service of employees of State

Public Service. Employees of a Public Service are a genus

of which Members of Judicial Service are a species. So far

as the appointment to Judicial Service is concerned, the

said topic is carved out from the general sweep of Article

309 on account of the words in its opening part, read with

Articles 233 and 234. The Governors rule making power in

this connection is separately dealt with under Article 234

and it is the procedure laid down therein which will govern

the said rule making power of the Governor and cannot draw

any sustenance independently from Article 309 which gets

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excluded in its own terms so far as Members of Judicial

Service are concerned. A limited play available to the

Legislature to deal with unexcepted and open categories of

conditions of Service of judicial officers as found in

Second Part of Article 235, therefore, cannot be read

backwards to govern even by implication the method of

appointment of Members of Subordinate Judiciary even at the

grass-root level. For that purpose, Article 234 is the only

repository of the power available to the concerned

Constitutional authority which has to follow the gamut of

the procedure laid down therein. Dr.Dhavan tried to salvage

the situation by submitting that if this view is taken, the

greatest anomaly that would arise is that there would be

total ouster of legislative interference as per Article 234.

There will be definite permissible interference of

legislative power on topics mentioned in second part of

Article 235. While so far as appointments of District

Judges under Article 233 are concerned, there is no express

ouster of legislative interference at all. He, therefore,

submitted that a totally anomalous situation would emerge,

as at the grass-root level i.e. lowest rung of regulating

the recruitment and appointment of Judiciary, there will be

total exclusion of legislative interference while at the

apex level i.e. at the district level there will be no

ouster of legislative interference. Even this argument of

despair cannot be countenanced for the simple reason that on

the topic of appointment of direct recruits to the District

Judiciary at the district court level or even at the

grass-root level of Munsiffs and Civil Judges-junior

division or senior division, as the case may be, both under

Article 234 as well as under Article 233 interference by the

State Legislature is totally excluded. If appointments at

the grass-root level in Subordinate Judiciary is taken as

base level no.1 in the pyramid of Subordinate Judiciary, as

indicated earlier, then the express language of Article 234

lays down a complete procedure which cannot be tinkered with

by any outside agency like the legislature. For regulating

the service conditions of already appointed judicial

officers which will be treated as level no.2, to the extent

to which the conditions of service can be regulated by law

as laid down by second part of Articles 235 a limited field

is kept open for legislative play. It is only because of

the permissible field indicated by the very same Article

that the Governor under Article 309 or even the State

Legislature can be permitted to operate in that field.

While at the apex level of the pyramid of Subordinate

Judiciary, which is level no.3, for recruiting District

Judges a complete Code is furnished by Article 233 excluding

outside interference, as indicated earlier. Thus neither at

the base level i.e. at the grass-root level of controlling

entry point to Subordinate Judiciary nor at the entry point

at the apex level of the pyramid for appointing District

Judges any State Legislatures interference is contemplated

or countenanced. On the contrary, it is contra-indicated by

necessary implication. Thus, neither at the first level nor

at the third level, both dealing with entry points to

Subordinate Judiciary, the State Legislature has any say and

at the second level it has a limited say to the extent

permitted by the very same Article 235 second part and which

does not pertain to recruitment or appointments at all.

Thus, it cannot mean that because of this limited

independent play at the joint is available to the

authorities functioning under Article 309 at the second

level to frame rules or legislation for permissively

regulating the conditions of service of the members of the

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judiciary who have already entered the Judicial Service at

the grass-root level, or even at the district level, any

anomalous situation emerges. Dr.Dhavan then invited our

attention to the observations of a nine-Judge Constitution

Bench judgment of this Court in Indra Sawhney & Ors. case

(supra), para 694 at page 662, para 738 at page 689 and para

788 at page 720, for submitting that Article 16 sub-article

(4) enables the State authorities to direct reservation in

Services under the State. This Constitutional power, once

exercised, cannot be sought to be circOBumscribed or

curtailed by non-compliance with the procedure of Article

234 or for that matter Article 233. This argument of his

cannot be countenanced. It is obvious that for utilising

the enabling power under Article 16(4), the State

Legislature cannot enter the forbidden field and conflict

with substantive provisions of Article 233 or first part of

Article 235. Meaning thereby, neither can it lay down new

criterion of eligibility contrary to sub-article (2) of

Article 233 for appointment to the District Judiciary nor

can it affect the control of the High Court in connection

with District Judiciary as vested in the High Court under

first part of Article 235. If at all any reservation policy

under Article 16(4) is to be pursued, it has to be exercised

in consonance with the scheme of Articles 233 and 234 and

not dehors it. Dr.Dhavan fairly conceded that neither in

the Rules of 1951 regarding appointments to district cadre

as per Article 233 nor under the Rules of 1955 for

appointments in the cadre of Subordinate Judiciary as laid

down by Article 234, there is any provision for 50%

reservation of posts. As already noted earlier, Article

16(4) is an enabling provision and it enables the competent

authority which is entrusted with the task of recruitment

and appointment to any service including the Judicial

Service to exercise this enabling power and provide for

appropriate reservation. In fact there is no dispute

between the parties in these proceedings that with the

consent of the High Court of Patna, 14% reservation for SC

and 10% reservation for STs is already accepted as

permissible reservation for direct recruitment at the

grass-root level and Rule 20 of the Rules of 1955 clearly

points to such reservation, percentage of which has already

been agreed to between the High Court on the one hand and

the Government on the other. That would be perfectly a

permissible exercise under Article 16(4) read with Article

234. But beyond that unless the rules are properly amended

by following the procedure of Articles 233 and 234 read with

Article 309 after consulting the High Court, the Governor on

his own cannot provide for any more reservation. Nor can,

by a legislative Act, an independent provision under Article

16(4) totally bypassing the High Court be resorted to. As

already seen earlier, Article 16(4) has to be read with

Article 335 and maintenance of efficiency of administration

in the making of appointments to Services and posts would be

a sine qua non before considering the claim for reservation

of SC and STs which would also include the OBCs as laid down

by a Constitution Bench judgment of this Court in Indra

Sawhneys case (supra), (2000) 1 SCC 168 = JT 1999 (9) SC

557. If Article 16(4) has to be read with Article 335 as

already ruled by the Constitution Bench judgment of this

Court, the same authority which can have the pulse and full

control of administration pertaining to concerned services

having sufficient expertise can avail of the aforesaid

Article 16(4) keeping in view the mandate of Article 335.

In case of Subordinate Judicial Services comprising of

district courts and courts subordinate thereto, the full

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control vests in the High Court under Article 235 which can

control the promotions and postings of such members of the

Judiciary. It is the High Court which will have full

knowledge and expertise for deciding the question of

adequacy of representation by way of reservation in Judicial

Service. Therefore, it is the High Court only which can

give green signal regarding the extent of such reservations

at entry points as candidates entering on reserved posts in

Judicial Service of the District Judiciary both at the apex

level and at the grass-root level have to act under its

control. In the absence of such a green signal by the High

Court there would be no occasion to invoke Article 16(4)

read with Article 335. We fail to appreciate how the State

Legislature by enacting Section 4 of the Act, can decide for

itself that 50% reservation is required to be made in

appointments to District and Subordinate Judiciary

consistent with the maintenance of efficiency of judicial

administration which is under full control of the High Court

as per Article 235. As it cannot of its own be alive to

this vital aspect lacking requisite knowledge and expertise,

any scheme of reservation framed by the legislature under

Article 16(4) dehors Article 335 so far as judicial

appointments are concerned, must necessarily fall through.

The authority giving green signal as per Article 16(4) read

with Article 335 can be only the High Court. It will be

totally out of picture so far as enactment of such straight

jacket reservation provisions dehors the High Courts

consultation goes. In this view of the matter, the broad

submission of Dr.Dhavan that reservation in fulfillment of

right to equality of opportunity under Article 16(1) read

with Article 16(4) can be resorted to without reference to

the High Court and therefore, the impugned Act cannot be

found fault with, cannot be accepted. Reliance placed by

Dr.Dhavan to the decision of this Court in Durgacharan Misra

vs. State of Orissa & Ors., (1987) 4 SCC 646, wherein at

para 15 a two Judge Bench observed that Rules under Article

234 are framed by the Governor, in exercise of his rule

making power under Article 309, cannot be of any assistance

to him. Even if the rules contemplated by Article 234 are

framed by the Governor under Article 309 proviso, that power

is clearly fettered and regulated by Article 234 as well as

Article 233 wherein consultation of the High Court in one

case and total clearance by the High Court by way of

recommendation of the appointees in the other case, cannot

be given a go by. Turning to the contentions canvassed by

Shri Dwivedi in support of the companion appeal, it may be

stated that he adopted the arguments of Dr.Dhavan but he

further contended that under Article 234, the rule making

power of the Governor is hedged in by consultation with the

High Court and the Public Service Commission. So far as the

Public Service Commission is concerned, as per Article 320

sub-article (4), it is not required to be consulted in

respect of the manner in which any provision referred to in

clause (4) of Article 16 may be made or as respects the

manner in which effect may be given to the provisions of

Article 335. Shri Dwivedi, therefore, submitted that

consultation with the Public Service Commission cannot be in

connection with Article 16(4) and if that is so, by

necessary implication, consultation with the High Court

under Article 234 can also be treated to be standing at par

and consequently the decision on any policy of reservation

as per Article 16(4) need not get covered by any

consultation with the High Court. It is difficult to

appreciate this contention. The Public Service Commission

is merely an examining body which examines the candidates

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for seeking appointments to the advertised posts. It has,

therefore, nothing to do with the policy decision of laying

down of reservation in appointments to the posts. That

policy has to be resorted to under Article 16(4) by the

authority calling upon the Public Service Commission to

proceed with the procedure of selection of suitable

candidates for filling up advertised posts subject to the

conditions laid down in the advertisement. That type of

consultation naturally would not stand at par with the

consultation with the High Court as laid down by Article 234

of the Constitution. As seen earlier, consultation with the

High Court as envisaged by Article 234 is for fructifying

the Constitutional mandate of preserving the independence of

Judiciary, which is its basic structure. The Public Service

Commission has no such Constitutional imperative to be

fulfilled. The scope of examining bodys consultation can

never be equated with that of consultation with the

appointing body whose agent is the former. It is also

pertinent to note that the essence of consultation is the

communication of a genuine invitation to give advice and a

genuine consideration of that advice which in turn depends

on sufficient information and time being given to the party

concerned to enable it to tender useful advice. It is

difficult to appreciate how the Governor while consulting

the Public Service Commission before promulgating the Rules

of Recruitment under Article 234 has to solicit similar type

of advice as he would solicit from the High Court on due

consultation. The advice which in the process of

consultation can be tendered by the Public Service

Commission will confine itself to the Constitutional

requirements of Article 320. They are entirely different

from the nature of consultation and advice to be solicited

from the High Court which is having full control over

Subordinate Judiciary under Article 235 of the Constitution

and is directly concerned with the drafting of efficient

judicial appointments so that appropriate material will be

available to it through the process of selection both at the

grass-root level and at the apex level of the District

Judiciary. Consultation, keeping in view the role of the

High Court under Article 234 read with Article 235, stands

on an entirely different footing as compared to the

consultation with the Public Service Commission which has to

discharge its functions of entirely different type as

envisaged by Article 320 of the Constitution. Naturally,

therefore, consultation with the High Court will have a

direct linkage with the policy decision as to how many posts

should be advertised, what are the felt needs of District

Judiciary and whether there can be any reservation which can

be permitted to be engrafted in the Rules framed by the

Governor consistent with the maintenance of efficiency of

judicial administration in the State. It is also pertinent

to note that there is no express fetter regarding

consultation with the High Court excluding Article 16(4) as

we find in Article 320 (4) in connection with the Public

Service Commissions consultation. This very departure and

absence of such exclusion of the High Courts consultation

indicate the intention of the Constitutional makers that

policy decision as per Article 16(4) has to be taken by the

Governor in consultation with the High Court while framing

appropriate rules governing the recruitment and appointments

to the Judicial Service both at the apex level and at the

grass-root level. Submission of Shri Dwivedi that

legislative power stands independently and dehors Articles

235 and 234 cannot be countenanced for the detailed reasons

given by us while rejecting the contentions of Dr.Dhavan.

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Shri Dwivedis effort to draw sustenance for his argument

from the observations of the learned Judges of the

Constitution Bench in Indra Sawhneys case (supra) namely,

Justice Pandians observations at para 243, Justice Sawant

at para 555 and Justice Kuldip Singh in para 383, also

cannot be of any avail to him. The question of reservation

of posts in a cadre cannot be equated with the question of

creation of posts in a cadre. After the posts in a cadre

are created how many thereof can be filled in from general

category and how many from reserved category candidates,

will remain a policy decision which has to be undertaken

under Article 16(4) read with Article 335 and only by the

competent authority namely, the High Court in dialogue with

the Governor so far as Judicial Service is concerned, as we

have seen earlier. The observations of learned Judges in

the aforesaid Indra Sawhneys case (supra) therefore,

regarding the scope and ambit of Article 16(4) in general in

connection with those services wherein such reservation

would be effected by the competent authorities themselves

without consultation with other agencies like the High

Court, cannot be of any avail to Shri Dwivedi for culling

out the competence of the authority concerned to impose such

reservation in connection with Judicial Services without

consulting the High Court. Reliance placed by learned

counsel for the appellant-State on various rules framed by

Governors of other States in consultation with High Courts

like the Uttar Pradesh Governor also cannot be of any avail

as those rules are framed by the Governors in consultation

with the High Courts after following the procedure of

Articles 234 or for that matter Article 233. Decisions of

this Court relied on by Shri Dwivedi for showing that the

Governor can create cadres and also can lay down provisions

for regulating the conditions of Service as provided under

Article 235 second part also are besides the point. The

effort made by learned counsel for the appellant-State to

show that Judicial Service also represents a part of State

Service and it is the State within the meaning of Article

12 amenable to writ jurisdiction under Article 226 so far as

the administrative decisions taken by the courts are

concerned also cannot solve the problem which is posed for

our consideration. The High Court may be an authority

within the meaning of Article 12, its administrative

decisions may be subject to its writ jurisdiction on

judicial side but that does not mean that for recruiting

judicial officers for manning Judicial Services, the say of

the High Court can be totally bypassed by enacting

provisions like the impugned Act by the State Legislature

which, while enacting this statute, was not expected to

consult any one else including the High Court. Of course,

Shri Dwivedi was right when he contended that in Civil

Appeal No.9072 of 1996 there was no occasion for the High

Court to treat the policy reflected by the stand of the High

Court regarding giving preference in appointments to SC and

ST candidates if they are of equal merit with general

category candidates as the only reasonable one. It is true

that this exercise was not required to be undertaken by the

High Court which was concerned with the short question as to

whether the impugned Act, especially Section 4 thereof, can

be permitted to operate of its own so far as the recruitment

to District Judiciary was concerned. To that extent, the

aforesaid reasoning of the High Court in the impugned

judgment cannot be sustained as being redundant and uncalled

for. We may now briefly refer to the written submissions on

behalf of the appellant-State submitted by Shri Dwivedi on

20th January, 2000. As we have already discussed earlier,

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it is not possible for us to agree with the contention that

reservation of posts does not truncate the High Courts

power of making appointments on available vacancies. In

cases where reservations are made after consultation with

the High Court, the situation stands entirely on a different

footing as the High Court itself agrees with the rule making

authority under Article 234 or for that matter under Article

233 to recommend reserved category candidates on earmarked

vacancies in the already created posts in a cadre. But the

question is as to whether bypassing the High Court such an

exercise can be undertaken by the State Legislature or by

the Governor under Article 309. As seen earlier, such an

exercise is not countenanced by the relevant Constitutional

scheme. It is also not possible to agree with the

contention that in the absence of express exclusion of any

law made by the Legislature, the legislative power remains

untouched by Articles 233 and 234. On the contrary, as seen

earlier, because of the opening words of Article 309 as well

as Article 245 what is provided by Articles 233 and 234 is a

complete Code, which cannot be touched independently of the

High Courts consultation either by the Legislature or by

the rule making authority. Reliance placed on the

observations in paras 16 & 17 in the case of M.M.Gupta &

Ors. etc. vs. State of Jammu & Kashmir & Ors., (supra) to

the effect that appointing authority is the Governor also

cannot advance the case of Shri Dwivedi for the simple

reason that under the scheme of Articles 234 and 233 once

effective consultation is made with the High Court and rules

are framed as per Article 234 and selections are made as per

these rules or when the High Court recommends appointments

under Article 233, the selection process is over, only the

ministerial work of issuing actual appointment orders may be

carried out by the Governor. But that would not, in any

case, interfere with the independence of Judiciary and the

power of the High Court. The Governor, acting as per

Article 234 while framing rules in consultation with the

High Court and the Public Service Commission and also while

acting on the recommendation of the High Court under Article

233, only performs the ultimate act of issuing actual

appointment orders to the selectees but these selectees have

undergone the process of filtering by the High Court as per

Article 233(2) or in cases governed by Article 234, as per

the procedure laid down in the rules framed under that

Article, after consultation with the High Court. It is not

as if the Council of Ministers or the Legislature has

anything independently to say to the Governor in this

connection bypassing the High Court. Reference to the case

in Samsher Singh etc. vs. State of Punjab & Anr. etc.,

AIR 1974 SC 2192, about Cabinets responsibility to

Legislature is totally besides the point while considering

the moot question with which we are concerned. It is

difficult to appreciate on the scheme of Articles 233 to 235

the contention of Shri Dwivedi that recruitment procedure

could be laid down either by the Legislative enactment or

rules under Article 309 without having consultation with the

High Court. Further contention of Shri Dwivedi that

Parliamentary system of governance is also a basic feature

of the Constitution also cannot advance his case for the

simple reason that Article 235 itself read with Article 309

furnishes restraints on the legislative power so far as

topics of recruitment and appointment to District Judiciary

and Subordinate Judiciary are concerned being covered by the

complete code of Articles 233 and 235, as seen earlier. The

dichotomy sought to be suggested between the process of

selection for recruitment to advertised posts on the one

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hand and reservation of posts in a cadre on the other by

Shri Dwivedi is not a real one. As already seen earlier,

recruitment and appointments have to be done to already

created posts in the cadre and once the procedure of

creation of posts is over, the further question as to how

these posts are to be filled in and from which source or

category of candidates, will entirely depend upon the rules

framed by the Governor in consultation with the High Court,

so far as Article 234 is concerned and will wholly be

subject to the recommendations of the High Court under

Article 233. The submission of Shri Dwivedi that cadre

formation is in the exclusive domain of the government and

forms part of constitution of State Judicial Service, cannot

have any impact on the moot question as to how created posts

in a given cadre can be filled in and from which category of

candidates. That remains essentially in the domain of

recruitment and appointment to already existing, created and

sanctioned posts in a given cadre. Reliance placed on

Articles 37, 38 and 46 read with Article 16(4) cannot have

any impact on the decision of the question posed for our

consideration. Reliance placed by Shri Dwivedi on the

decisions of this Court in Indra Sawhneys case (supra),

Dr.Preeti Srivastava & Anr. etc. vs. State of M.P. &

Ors.etc., (1999) 7 SCC 120 and in Durgacharan Misra vs.

State of Orissa & Ors. (supra) also cannot be of any

effective help for resolving the question with which we are

concerned. The general scheme of reservation and to what

extent it can be applied to a given service directly under

the control of the State without any reference to Judicial

Service, as discussed in the first two cases, can be of no

avail to Shri Dwivedi. So far as the case of

Smt.A.Lakshmikutty (supra) is concerned, the relevant

observations in the concerned paragraphs do not support the

submissions put forward by Shri Dwivedi for the

appellant-State. Even if Judicial Service is also a State

Public Service and hence a Service under the State as laid

down therein so as to attract Articles 12 and 226 of the

Constitution, the question which remains for consideration

is as to whether the scheme of recruitment and appointment

to the Subordinate Judiciary as laid down by the

Constitution itself can be encroached upon, whittled down or

cut across by any enactment or rule dehors the said

Constitutional scheme. Smt.A.Lakshmikuttys judgment

(supra) had not to consider that question. Even though

judicial officer in the Judicial Service of the State would

be an officer under the State and according to which

principle, to a limited extent, the conditions of service of

said judicial officer can be laid down by the State or the

Governor under Article 309 independently of the High Court

as per the second part of Article 235, so far as Articles

233 and 234 are concerned as already seen earlier, they

stand entirely on a different footing and do not countenance

any independent encroachment on the field covered by the

said provisions bypassing the High Court. There cannot be

any dispute that laying down of pay-scales as one of the

conditions of Service under the second part of Article 235

is not within the expression of control which is vested in

the High Court as laid down in Smt.Lakshmikuttys case

(supra). But it is difficult to appreciate how reservation

can be treated on par with laying down of pay scales.

Making available pay-scales to the members of the Judicial

Service will have a direct impact on the State exchequer and

Consolidated Fund of State in case of District Judiciary but

that does not mean that the recruitment to such judicial

posts also can be controlled by the State, dehors the

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requirements of Articles 233 and 234. The next written

submission of Shri Dwivedi placing reliance on a judgment of

this Court in the Belsund Sugar Co. Ltd. vs. The State of

Bihar & Ors.etc., JT 1999 (5) SC 422, that reservations are

a special topic and, therefore, the general expression of

appointments would not embrace, the same cannot be

accepted for the simple reason that once posts are created

and sanctioned in a cadre, to the extent to which any

independent order or direction under Article 309 or Article

16(4) encroaches upon the field of recruitment and

appointment to such posts, specially carved out by the

Constitutional makers for operation by the Governor in

consultation with the High Court or with the concurrence or

recommendation of the High Court, as the case may be, the

said encroachment would remain totally ultra vires and

cannot be saved by provisions of reservation envisaged by

Article 16(4). Reliance placed by Shri Dwivedi on a

decision of this Court in Chandra Mohans case (supra) to

show that there is no complete separation of powers has to

be appreciated in the light of the observations made therein

in connection with the nature of permissible field for

operation of state authorities under Article 235(2). These

observations have nothing to do with the complete separation

of powers between the Judiciary and the Executive so far as

initial recruitment at entry points in Subordinate Judiciary

up to district level is concerned. Even if rules under

Article 234 can be said to have been framed by the Governor

of the concerned State, on a conjoint reading of Articles

234 and 309 the fact remains that these rules, in order to

be effective, have to satisfy the Constitutional requirement

of the procedure laid down therein for their promulgation.

The alternative contention that when the State sends a

proposal to the High Court for introducing reservations, the

High Court is bound to carry out the mandate of Articles

15(4), 16(4), 38 and 46 of the Constitution, and should

respond with such duty-consciousness, cannot be of any avail

on the facts of the present case as we are not concerned

with such a situation. The rules framed under Articles 233

and 234 by the Bihar Government in consultation with the

High Court are not on the anvil of scrutiny. The only short

question with which we are concerned is whether in the

absence of appropriate provision being made in these rules,

the State Legislature can intervene on its own bypassing the

High Court and lay down a rule of thumb by way of fixed

quota of reservation in all the posts in the Subordinate

Judiciary. The Mandal Commission Report has nothing to do

with the question with which we are concerned. Even if

adequate representations of reserved category of candidates

for appointment to Judiciary may be a laudable object, it

has to be kept in view that whatever is right has to be done

in a right manner or not at all. Even in the present case

24% reservation for SC and ST candidates at grass-root level

in Judiciary has already been agreed to by the High Court

and the appointments are accordingly being made since years.

The only question is whether by Section 4 of the impugned

Act that percentage of reservation can be increased to 50%

by bringing other reserved categories like the Other

Backward Classes, completely bypassing the High Court and

without there being any need to consult it. Such a

legislative Act cannot be countenanced on the touchstone of

relevant Articles of the Constitution. This question cannot

be answered in the light of the supposed Constitutional

philosophy underlying the scheme of reservation for weaker

sections of the community in general terms. It is now time

for us to refer to the judgments of this Court and other

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High Courts on which reliance was placed by learned counsel

for the contesting parties in support of their respective

cases. A three-Judge Bench of this Court in the case of

M.M.Guptas case (supra), speaking through Shri R.S.Pathak,

J (as he then was), while considering the question of

independence of judiciary, has clearly ruled that any scheme

of appointment to judicial posts by the executive at the

State and the Central level, without consulting the High

Court, would clearly affect the independence of judiciary.

Pertinent observations in this connection are found in paras

33 and 34. The relevant portions thereof read as under:

.Independence of the judiciary is one of the basic

tenets and a fundamental requirement of our Constitution.

Various Articles in our Constitution contain the relevant

provisions for safeguarding the independence of the

Judiciary. Article 50 of the Constitution which lays down

that the State shall take steps to separate the judiciary

from the executive in the public services of the State,

postulates separation of the judiciary from the executive.

Unfortunately, for some time past there appears to be

an unhappy trend of interference in the matter of judicial

appointments by the executive both at the State and the

Central level..Article 235 of the Constitution vests the

control of judicial administration completely in the High

Court excepting in the matter of initial appointment and

posting of District Judges and the dismissal, removal or

termination of services of these officers. Even in these

matters the requirement of the Constitution is that the

Governor must act in consultation with the High Court. If

in the matter of appointment, the High Court is sought to be

ignored and the executive authority chooses to make the

appointment, independence of the judiciary will be

affected.

In the light of the aforesaid settled legal position,

therefore, there cannot be any escape from the conclusion

that if the process of appointment to Subordinate Judiciary

at district level or grass-root level is tried to be

circumscribed or truncated by any direction as to

reservation of available vacancies for a given category of

candidates it would certainly impinge upon the power of the

High Court in suggesting appointment of suitable candidates

to fill up the posts of judicial officers with a view to

fructify the goal of furnishing effective mechanism of

judicial administration and making the Judiciary fully

vibrant, effective and result-oriented. Such an independent

Judiciary is the heart of the Constitutional scheme, as

already discussed earlier. In the case of All India Judges

Association & Ors. (supra), the special features of

Judicial Services have been clearly earmarked in the light

of Articles 233, 234, 236 and 309. A three-Judge Bench of

this Court, speaking through Sawant, J., while disposing of

the Review Petitions by the Union of India and Officers of

the States, has made the following apposite observations in

paras 4 & 5 :

The judicial service is not service in the sense of

employment. The judges are not employees. As members of

the judiciary, they exercise the sovereign judicial power of

the State. They are holders of public offices in the same

way as the members of the council of ministers and the

members of the legislature. When it is said that in a

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democracy such as ours, the executive, the legislature and

the judiciary constitute the three pillars of the State,

what is intended to be conveyed is that the three essential

functions of the State are entrusted to the three organs of

the State and each one of them in turn represents the

authority of the State. However, those who exercise the

State-power are the ministers, the legislators and the

judges, and not the members of their staff who implement or

assist in implementing their decisions. The council of

ministers or the political executive is different from the

secretarial staff or the administrative executive which

carries out the decisions of the political executive.

Similarly, the legislators are different from the

legislative staff. So also the Judges from the judicial

staff. The parity is between the political executive, the

legislators and the Judges and not between the Judges and

administrative executive. This distinction between the

Judges and the members of the other services has to be

constantly kept in mind for yet another important reason.

Judicial independence cannot be secured by making mere

solemn proclamations about it. It has to be secured both in

substance and in practice. It is trite to say that those

who are in want cannot be free. Self-reliance is the

foundation of independence. The society has a stake in

ensuring the independence of the judiciary, and no price is

too heavy to secure it. To keep the judges in want of the

essential accoutrements and thus to impede them in the

proper discharge of their duties is to impair and whittle

away justice itself. (para 4)

It is high time that all concerned appreciated that

there cannot be any link between the service conditions of

the judges and those of the members of the other services.

It is true that under Art.309 of the Constitution, the

recruitment and conditions of service of the members of the

subordinate judiciary are to be regulated by the Acts of the

appropriate legislature and pending such legislation, the

President and the Governor or their nominees, as the case

may be, are empowered to make rules regulating their

recruitment and the conditions of service. It is also true

that after the Council of States makes the necessary

declaration under Art.312, it is the Parliament which is

empowered to create an All India Judicial Service which will

include posts not inferior to the post of District Judge as

defined under Art.236. However, this does not mean that

while determining the service conditions of the members of

the Judiciary, a distinction should not be made between them

and the members of the other Services or that the service

conditions of the members of all the Services should be the

same. As it is, even among the other Services, a

distinction is drawn in the matter of their service

conditions. The linkage between the service conditions of

the judiciary and that of the administrative executive was

an historical accident. The erstwhile rulers constituted,

only one service. Viz., the Indian Civil Service for

recruiting candidates for the Judicial as well as the

Administrative Service and it is from among the successful

candidates in the examination held for such recruitment,

that some were sent to the administrative side while others

to the judicial side. Initially, there was also no clear

demarcation between the judicial and executive services and

the same officers used to perform judicial and executive

functions. Since the then government had failed to make the

distinction between the two services right from the stage of

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the recruitment, its logical consequences in terms of the

service conditions could not be avoided. With the

inauguration of the Constitution and the separation of the

State power distributed among the three branches, the

continuation of the linkage has become anachronistic and is

inconsistent with the constitutional provisions. The parity

in status is no longer between the Judiciary and the

administrative executive but between the judiciary and the

political executive. Under the Constitution, the judiciary

is above the administrative executive and any attempt to

place it on par with the administrative executive has to be

discouraged. The failure to grasp this simple truth is

responsible for the contention that the service conditions

of the judiciary must be comparable to those of the

administrative executive and any amelioration in the service

conditions of the former must necessarily lead to the

comparable improvement in the service conditions of the

latter. (para 5)

In our view, the aforesaid decision of the three Judge

Bench on the relevant scheme of the Constitution,

especially, Articles 234 to 236 and 309 remains well

sustained and clearly indicates how Judicial Service, though

being a part of the general Service of the State, stands of

its own and cannot countenance any encroachment on it as it

is based on the principle of independence of Judiciary from

the executive and/or legislative save and except to the

limited extent permitted by second part of Article 235 of

the Constitution. Otherwise the basic feature of

independence of Judiciary will get eroded. The submission

of Shri Dwivedi in this connection that, even Tribunals have

got trappings of judicial power and decide lis between the

parties also is besides the point while considering the

question as to how appointments to the lower Judiciary in

the strict sense of the term is to be effected. Once on

this aspect the Constitutional scheme is clear, it has got

to be given its full effect. We may now refer to Judgments

of some of the High Courts to which our attention was

invited by learned senior counsel Shri Thakur for the

respondent High Court. In the case of K.N.Chandra Sekhara &

Ors. vs. State of Mysore & Ors., AIR 1963 Mysore 292 (V 50

C 68), a Division Bench of the High Court of Mysore was

concerned with the question whether contrary to the

statutory rules framed by the Governor under Article 234

read with Article 309 of the Constitution of India, laying

down the criteria for recruitment to the cadre of Munsiffs

in Judicial Service of the State, the Public Service

Commission of its own can fix different criteria of passing

marks for candidates belonging to SC and ST as compared to

higher passing marks for general category of candidates.

Answering this question in the negative, Somnath Iyer, J.,

speaking for the Division Bench observed that : Article

234 excepts out of the operation of Art.309, appointments to

Judicial Service and constitutes the Governor in a sense a

select legislative organ for enactment of rules for that

purpose.

The aforesaid observations will, of course, have to be

read down in the light of the Constitution Bench decision of

this Court in B.S.Yadavs case (supra). The next Judgment

placed for our consideration by Shri Thakur is another

Division Bench judgment in M.I.Nadaf vs. The State of

Mysore & Anr., AIR 1967 Mysore 77 (V 54 C 21). In that case

another Division Bench of the Mysore High Court, speaking

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through K.S.Hegde, J. (as he then was), had to consider the

question whether once rules are framed under Article 234

read with Article 309 of the Constitution of India for

governing the recruitment of Munsiffs any other independent

rule pertaining to general conditions of Service and laying

down a different eligibility criterion for a candidate to be

considered for such recruitment could be countenanced. In

that case, the general rules framed under Article 309

applicable to all State Services permitted clubbing of

temporary Service of candidates under the Government or

holding a post under local authority with the Service on

regular basis for deciding about the requisite experience of

the concerned candidate for such posts. Though the General

Rules provided to the aforesaid effect, the rules framed

under Articles 234 and 309 did not do so. Question was

whether the General Rules could cut across the rules framed

under Article 234, the former not having been made in

consultation with the High Court. Negativing the contention

that these General Rules which were framed under Article 309

without reference to the High Court could operate in

connection with appointment of judicial officers at

grass-root level as governed by the rules under Article 234,

Hegde, J., made relevant observations in this connection at

pages 78 and 79 in paras 9 and 10 of the Report as under :

Article 309 of the Constitution empowers the Governor to

make rules regulating the recruitment and the conditions of

services of persons appointed to the Civil Services of the

State. But that Article, as its opening words themselves

indicate, is subject to the other provisions of the

Constitution. Article 234 is one such provision. The power

of the Governor to make rules under Article 309 of the

Constitution is not only subject to the other provisions of

the Constitution, but it is also subject to any Act of the

appropriate Legislature. But the rules to be made by him

under Article 234 are not subject to any Act that may be

enacted by the appropriate Legislature. But they can be

made only after consultation with the State Public Service

Commission and the High Court. The consultation with the

High Court is not something nominal. It is the very essence

of the matter. It must be borne in mind that our

Constitution visualises the separation of the judiciary from

the executive. It is no doubt true that the judicial

service is also one of the States services. But it has got

its own individualistic character. Unlike the other

services of the State, the judicial service is expected to

be independent of the executive. Often times, it has to

pronounce on the correctness or the legality of the action

taken by the other services of the State. There are

occasions when it is required to pronounce on the legality

of an action taken by the Government or even the Governor.

Such being the case, it would not be proper to consider the

judicial branch as being just one of the branches of the

State. It is for that reason, the Constitution makers

thought it proper to make separate provisions for the

appointment of judicial Officers.

..Our view that appointments to judicial services of

the State other than that of the District Judges should be

made only in accordance with the rules made by the Governor

under Article 234 of the Constitution after consultation

with the State Public Service Commission and the High Court

exercising jurisdiction in relation to such State and not

under rules framed by him under Article 309 of the

Constitution is also supported by the decision of the Madras

High Court in N. Devasahayam v. State of Madras, AIR 1958

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Mad 53 and that of the Rajasthan High Court in Rajvi Amar

Singh v. State of Rajasthan, AIR 1956 Raj 104.

In our view, the aforesaid decision of the Mysore High

Court is well sustained in the light of the Constitutional

scheme as culled out by a series of decisions of this Court

to which we have made reference earlier.

A Division Bench of the Orissa High Court in the case

of Manoj Kumar Panda vs. State of Orissa & Ors., 1982

Lab.I.C. 1826, speaking through R.N.Misra, CJ. (as he then

was) had to consider an identical question which is posed

for our consideration in the present proceedings. The

Orissa Judicial Service Rules framed under Article 234 read

with Article 309 provided a scheme of reservation for SC and

ST candidates. The said scheme was tried to be cut across

by the Orissa Legislature by enacting the Orissa Act 38 of

1975. Question was whether such a legislative exercise

dehors Article 234 and in exercise of powers under Articles

245 and 246 was permissible. Even though parties had

settled their dispute, the High Court examined this vital

question of great public importance which may ex-facie be

treated to be a obiter decision but which, in our view, is

fully sustained by the Constitutional scheme examined by us

in the present case in the light of decided cases of this

Court. It was observed, in this connection, by Misra, CJ,

in para 5 of the Report as under : The Orissa Rules of

1964 are specially made for recruitment to judicial service.

And since in some Articles of the Constitution rules have

been made subject to legislation while in other Articles

like Art.234, the rules have not been made subject to

legislation, a distinction must be maintained between the

two sets of rules. Where the Constitution specifically

vests power in the Governor to make rules and does not make

his rules subject to legislation, it must follow that the

Constitution has intended those rules to be final on the

subject specified.

Thus, in view of the specific provision in Art.234

authorising the Governor to make rules for the purpose of

appointment and in the instant case such rules having been

made viz. Orissa Rules of 1961, it must follow that the

power given to the State Legislature under Arts.234, 245,

and 246 (3) of the Constitution would be subject to the

provisions of Art.234, in view of a non obstante clause

appearing at the beginning of Art.245(1). And in the result

Orissa Act 38 of 1975 is not to apply to judicial service

covered by Art.234 of the Constitution so far as appointment

is concerned.

A similar view is also taken by the Allahabad High

Court in the case of Farzand vs. Mohan Singh & Ors., AIR

1968 All. 67 (V 55 C 18). In para 31 of the Report at page

74 it was observed as under : The intention behind taking

out the provisions relating to subordinate courts from Part

XIV of the Constitution and putting them in Part VI, seems

to be to make the consultation with the High Court in the

matter of framing of the rules, really effective and thus to

secure the independence of the subordinate Judiciary from

executive (See AIR 1966 SC 1987 (Para 14)). Under the

proviso to Art.309 the Governor is competent to frame rules

relating to recruitment as well as condition of service.

The rules made by the Governor operate only until a

provision in that behalf is made by an Act of the

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Legislature. The legislature while making an Act under

Art.309 is not required even by Art.234, to consult any one.

The provision for consultation with the High Court would

become nugatory as soon as the legislature acted to enact.

To avoid this and to keep the rules governing recruitment to

the judicial service outside the purview of the State

legislature, Article 234 was taken out of Part XIV which

includes Article 309. Article 309 is subject to the other

provisions of the Constitution, which means and includes

Article 234. Article 234, on the other hand, is not subject

to any other provision of the Constitution. The rules, made

under Art. 234, will hence not be subject to any Act of

legislature made under Art.309. Then again, if the Governor

alone was to frame the rules for recruitment to the judicial

service, there was no point in making this invidious

distinction between the rules for the judicial and the other

services. This distinction became necessary because the

rules for the Judicial Service were to be framed in

consultation with the High Court. All these aspects of the

matter lead to the inevitable view that Article 234 requires

consultation with the High Court only in the matter of the

making of the rules.

It is now time for us to take stock of the situation.

In the light of the Constitutional scheme guaranteeing

independence of Judiciary and separation of powers between

the executive and the judiciary, the Constitutional makers

have taken care to see by enacting relevant provisions for

the recruitment of eligible persons to discharge judicial

functions from grass-root level of the Judiciary up to the

apex level of the District Judiciary, that rules made by the

Governor in consultation with the High Court in case of

recruitment at grass-root level and the recommendation of

the High Court for appointments at the apex level of the

District Judiciary under Article 233, remain the sole

repository of power to effect such recruitments and

appointments. It is easy to visualise that if suitable and

competent candidates are not recruited at both these levels,

the out turn of the judicial product would not be of that

high level which is expected of judicial officers so as to

meet the expectations of suffering humanity representing

class of litigants who come for redressal of their legal

grievances at the hands of competent, impartial and

objective Judiciary. The Presiding Officer of the Court if

not being fully equipped with legal grounding may not be

able to deliver goods which the litigating public expects

him to deliver. Thus, to ensure the recruitment of the best

available talent both at grass-root level as well as at apex

level of District Judiciary, Articles 233 and 234 have

permitted full interaction between the High Court which is

the expert body controlling the District Judiciary and the

Governor who is the appointing authority and who almost

carries out the ministerial function of appointing

recommended candidates both by the Public Service Commission

and the High Court at the grass-root level and also has to

appoint only those candidates who are recommended by the

High Court for appointment at the apex level of District

Judiciary. Any independent outside inroad on this exercise

by legislative enactment by the State Legislature which

would not require consultation with an expert agency like

the High Court would necessarily fall foul on the touchstone

of the Constitutional scheme envisaging insulation of

judicial appointments from interference by outside agencies,

bypassing the High Court, whether being the Governor or for

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that matter Council of Ministers advising him or the

Legislature. For judicial appointments the real and

efficacious advice contemplated to be given to the Governor

while framing rules under Article 234 or for making

appointments on the recommendations of the High Court under

Article 233 emanates only from the High Court which forms

the bed- rock and very soul of these exercises. It is

axiomatic that the High Court, which is the real expert body

in the field in which vests the control over Subordinate

Judiciary, has a pivotal role to play in the recruitments of

judicial officers whose working has to be thereafter

controlled by it under Article 235 once they join the

Judicial Service after undergoing filtering process at the

relevant entry points. It is easy to visualise that when

control over District Judiciary under Article 235 is solely

vested in the High Court, then the High Court must have a

say as to what type of material should be made available to

it both at the grass-root level of District Judiciary as

well as apex level thereof so as to effectively ensure the

dispensation of justice through such agencies with ultimate

object of securing efficient administration of justice for

the suffering litigating humanity. Under these

circumstances, it is impossible to countenance bypassing of

the High Court either at the level of appointment at grass-

root level or at the apex level of the District Judiciary.

The rules framed by the Governor as per Article 234 after

following due procedure and the appointments to be made by

him under Article 233 by way of direct recruitment to the

District Judiciary solely on the basis of the recommendation

of the High Court clearly project a complete and insulated

scheme of recruitment to the Subordinate Judiciary. This

completely insulated scheme as envisaged by the founders of

the Constitution cannot be tinkered with by any outside

agency dehors the permissible exercise envisaged by the twin

Articles 233 and 234. It is a misnomer to suggest that any

imposition of scheme of reservation for filling up vacancies

in already existing or created sanctioned posts in any cadre

of district judges or Subordinate Judiciary will have

nothing to do with the concept of recruitment and

appointment for filling up such vacancies. Any scheme of

reservation foisted on the High Court without consultation

with it directly results in truncating the High Courts

power of playing a vital role in the recruitment of eligible

candidates to fill up these vacancies and hence such

appointments on reserved posts would remain totally ultra

vires the scheme of the Constitution enacted for that

purpose by the founding fathers. It is also to be noted

that the concept of social justice underlying the scheme of

reservation under Article 16(4) read with Article 335 cannot

be said to be one which the High Court would necessarily

ignore being a responsible Constitutional functionary. In

fact what is required is that the right decision should be

arrived at in the right manner. In the facts of the present

case, it is an admitted position that the High Court of

Patna has already consented to have 14% reservation for SC

candidates and 10% reservation for ST candidates in

recruitment of Munsiffs and Magistrates at grass-root level

of Subordinate Judiciary and rules framed under Article 234

by the Governor of Bihar in consultation with the High Court

have permitted such reservation. Thus, it is not as if the

purpose of reservation cannot be achieved without reference

to the High Court. But as the saying goes you can take a

horse to the water but cannot make it drink by force .

Thus what is expected of the executive and the Governor is

to have an effective dialogue with the High Court so that

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appropriate reservation scheme can be adopted by way of

rules under Article 234 and even by prescribing quota of

reservations of posts for direct recruits to District

Judiciary under Article 233 if found necessary and feasible.

That is the Constitutional scheme which is required to be

followed both by the High Court and by the executive

represented through the Governor. But this thrust of the

Constitutional scheme cannot be given a go-bye nor can the

entire apple-cart be turned topsy-turvey by the legislature

standing aloof in exercising its supposed independent

Legislative power dehors the High Courts consultation.

Leaving aside this question even on the express

language of the impugned Section 4 of the Act, argument of

learned senior counsel for the appellant- State would fall

through as the said Section does not envisage creation of

separate category of posts for reserved category of

candidates in the existing cadres of District Judges and

Subordinate Judges. On the contrary, that Section

postulates available vacancies in the already existing posts

in the cadres and tries to control appointments to such

existing posts in the vacancies falling due from time to

time by adopting the rule of thumb and a road-roller

provision of 50% vacancies to be reserved for reserved

category candidates, meaning thereby, the Section mandates

the High Court and that too without consulting it, that it

shall not fill up 50% of available vacancies by selected

candidates standing in the order of merit representing

general category candidates and must go in search of less

meritorious candidates for filling up these vacancies

supposedly reserved for them. Such a scheme can be

envisaged only under relevant rules framed under Articles

233 and 234 after consultation with the High Court and

cannot be made the subject matter of any legislative fiat

which the High Court is expected to carry out willy-nilly

and dehors the Constitutional scheme regarding full and

effective consultation with the High Court in this

connection. It must, therefore, be held that the impugned

Section 4, as existing on the statute book if allowed to

operate as it is for controlling recruitment to the posts of

district judges as well as to the posts in Judiciary

subordinate thereto to the district courts, would directly

conflict with the Constitutional scheme of Articles 233 and

234 constituting a complete Code and has to be treated as

ultra vires the said Constitutional scheme. Before parting

with the discussion on this point, we may mention that in

the impugned judgment of the High Court in CWJC No.6756 of

1994 the learned Judges have considered the question of

reservation of posts in Judicial Service dehors the

Reservation Act in paragraphs 16 to 21 of the judgment.

Placing reliance on a decision of the Constitution bench

Judgment of this Court in Supreme Court Advocates-on-Record

Association & Anr. vs. Union of India, AIR 1994 SC 268, it

has been observed that whenever such a question arises and

any scheme of reservation is sought to be introduced by the

Governor in consultation with the High Court, the opinion of

the High Court shall have primacy. We may mention that this

question strictly does not arise for our consideration in

the present proceedings for the simple reason that legality

of rules of reservation, if any, framed by the Governor

under Article 309 read with Articles 233 and 234 introducing

a scheme of reservation contrary to the consent of the High

Court has not arisen for decision. In the present

proceedings, we are concerned with the short question

whether totally bypassing the High Court, the State

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Legislature can enact a statutory provision introducing a

scheme of reservation in Judicial Service comprised of

District Judges cadre as well as cadre of Judges subordinate

thereto. Hence, the aforesaid observations of the High

Court, in our view, were not called for in the present case

and we express no opinion thereon.

Point no.2, therefore, will have to be answered in the

affirmative against the appellant-State and in favour of the

respondent.

Point No.3: In the light of our answer to point no.2,

the question survives for consideration as to what

appropriate orders can be passed in connection with the

impugned Section 4 of the Act. Now it must be kept in view

that Section 4, as enacted in the Act, can have general

operation and efficacy regarding other Services of the State

not forming part of Judicial Service of the State. Qua such

other services Section 4 can operate on its own and in that

connection consultation with the High Court is not at all

required. However, in so far as it tries to encroach upon

the field of the recruitment and appointment to Subordinate

Judicial Service of the State as envisaged by Articles 233

and 234 it can certainly be read down by holding that

Section 4 of the impugned Act shall not apply for regulating

the recruitment and appointments to the cadre of District

Judges as well as to the cadre of Judiciary subordinate to

the District Judges and such appointments will be strictly

governed by the Bihar Superior Judicial Service Rules, 1951

as well as by the Bihar Judicial Service (Recruitment)

Rules, 1955. In other words, Section 4 will not have any

impact on these rules and will stand read down to that

extent. Once that is done, question of striking down the

said rule from the statute book would not survive and would

not be required. We, accordingly, read it down as

aforesaid. Point no.3 is answered accordingly in favour of

the respondent and against the appellant-State. Point No.4:

Now the stage is reached for passing appropriate final

orders in the light of our answers to the aforesaid points.

The impugned judgments of the High Court in both these

appeals allowing the writ petitions are sustained subject to

the following modifications and directions : 1. Even

though the impugned Act, as framed, is held to be applicable

even to Judicial Service, Section 4 thereof in particular

laying down scheme of reservation, will not apply for

governing the recruitment to the cadre of District Judiciary

as well as to the cadres of Judiciary Subordinate to the

District Judges. 2. The observation of the High Court in

the impugned judgement in Civil Appeal No.9072 of 1996 to

the effect that if two candidates, one belonging to general

category and another to reserved category are found to be

equally meritorious, preference can be given to reserved

category candidate is the only rational scheme envisaged by

the Constitution, being an unnecessary one will be treated

to be of no legal effect. 3. Despite the aforesaid

observations, the stand of the respondent High Court that

for recommending direct recruitment of advocates as District

Judges the suggested preference to be given to reserved

category candidate of equal merit with general category

candidate has to be followed by the High Court as agreed to

in the present proceedings till appropriate scheme of

reservation for reserved category candidates if any is

promulgated by the Governor by framing appropriate rules in

consultation with the High Court and the same procedure will

have to be followed by the High Court till then. Once such

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a scheme after proper dialogue with the High Court is

promulgated by amending the relevant rules then obviously

the High Court even while recommending recruitment to the

posts of District Judges from members of the Bar as per

Article 233(2) will be bound by such a scheme of

reservation. 4. For governing direct recruitment at

grass-root level as per the Bihar Judicial Service

(Recruitment) Rules, 1955, 14% reservation for SC and 10%

reservation for ST candidates shall be followed by all

concerned acting under the said rules and appointments at

the grass-root level of Judiciary shall be made following

the said scheme of reservation until any other scheme of

reservation is promulgated by amending the relevant rules by

the Governor after effective consultation with the High

Court as envisaged by Article 234 read with Article 309. 5.

By an interim order dated 16.11.1995 in the Civil Appeal

arising out of SLP(C) No.16476 of 1993 it was directed as

under : Having heard counsel representing different

interests we modify the order dated 13.5.94 whereby it was

stated that while the process of selection may go on but

actual appointment orders should not be issued. If the

selection process is over the selectees may be appointed

subject to the result of this petition and further subject

to the seniority that may be required to be adjusted if

reservation is upheld and candidates to fill in the reserved

slots are selected at any time hereafter and become entitled

to appointments. However, question of filling up the

reserved posts will not arise and they shall remain in

abeyance but if after this Court decides the issue on

reservation in the instant case and selections are made even

thereafter and appointments are made, they will be entitled

to their respective seniorities at the slots available as on

the date of appointment of General Category candidates.

In this appeal, the appointments of candidates as per

1955 Rules to the posts of Subordinate Judges and Munsiffs

are on the anvil of consideration. The writ petition filed

by the original writ petitioners before the High Court will

stand partly allowed by holding that Section 4 of the

impugned Act does not apply to these recruitments and the

scheme of reservation of 14% for SCs and 10% for STs only

will apply to such recruitment. As a result, the question

of filling up of reserved posts in this case will remain

germane to the aforesaid extent of permissible reservation

of 24% for SC and ST candidates. The concerned authorities

will work out the rights of the selected candidates for

being appointed to these posts governed by the Bihar

Judicial Service (Recruitment) Rules, 1955 accordingly,

keeping in view the directions contained in the interim

order of this Court dated 16.11.1995. 6. Both these

appeals are accordingly dismissed subject to the aforesaid

modifications and directions. There will be no order as to

costs in both these appeals.

New Delhi, March 14, 2000 IN THE SUPREME COURT OF

INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9072 OF

1996 State of Bihar & Anr. ....Appellant Versus Bal Mukund

Sah & Ors. ....Respondents (With CA No....../2000 @ SLP (C)

No.16476/93)

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PATTANAIK, J.

I have gone through the two learned judgments, one of

Brother Majmudar, J. and the other of Brother Sethi, J.

expressing divergent views on the question at issue, and I

entirely agree with the conclusions arrived at by Brother

Majmudar,J. and respectfully differ from the views

expressed by Brother Sethi,J. But in view of the importance

of the question I would like to add few paragraphs of my

own.

The question for consideration is whether the State

Legislature could enact a law in exercise of their powers

under article 309 of the Constitution in relation to the

recruitment and laying down the conditions of service of the

officers belonging to the Judicial Services of the State?

It is in this context the further question that arises for

consideration is whether the provisions of the Bihar

Reservation of Vacancies in Posts and Services (for

Scheduled Castes, Scheduled Tribes and other Backward

Classes) Act, 1991 (hereinafter referred to as the Act)

(Bihar Act 3 of 1992) as amended by Bihar Act 11 of 1993,

providing reservation to the extent mentioned in Section 4

would apply to the Judicial Services of the State in view of

the definition of State in Section 2(m) of the Act. The

answer to these questions depend upon an analysis of the

Constitutional Scheme and how the founding fathers intended

to have separate provisions for the judicial wing of the

State. In fact when the question of appointment of persons

to the post of District Judges and post subordinate thereto

were being considered and had been engrafted in the Draft

Constitution under article 209-A to 209-F, Dr. B.R.

Ambedkar in his Speech in the Constituent Assembly had

categorically stated, the object of these provisions is

two- fold: first of all, to make provision for the

appointment of district judges and subordinate judges and

their qualifications. The second object is to place the

whole of the civil judiciary under the control of the High

Court. The only thing which has been excepted from the

general provisions contained in article 209-A, 209-B and

209-C is with regard to the magistracy, which is dealt with

in article 209-E. The Drafting Committee would have been

very happy if it was in a position to recommend to the House

that immediately on the commencement of the Constitution,

provisions with regard to the appointment and control of the

Civil Judiciary by the High Court were made applicable to

the magistracy. But it has been realised, and it must be

realised that the magistracy is intimately connected with

the general system of administration. We hope that the

proposals which are now being entertained by some of the

provinces to separate the judiciary from the Executive will

be accepted by the other provinces so that the provisions of

article 209-E would be made applicable to the magistrates in

the same way as we proposed to make them applicable to the

civil judiciary. It has been felt that the best thing is to

leave this matter to the Governor to do by public

notification as soon as the appropriate changes for the

separation of the judiciary and the executive are carried

through in any of the province. Thus it is apparent how

anxious the founding fathers of the Constitution were to

insulate the judicial wing of the State from the other

wings. When Pt.Hirday Nath Kunzru moved some amendments to

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article 209-A, as it stood in the Draft Constitution, he had

indicated that the very object of amendments is for the

purpose that though the Governor will appoint District

Judges in consultation with the High Court but once such

appointment is made by the Governor the District Judge would

remain under the control of the High Court. It is not

necessary to delve into the reaction of other Members of the

Constituent Assembly at that point of time in as much as

almost all the Members had felt the necessity of making

separate provisions for the judicial wing of the State as

far as practicable and to vest the entire control with the

High Court of the State. In fact Dr. Ambedkar himself had

indicated that there is nothing revolutionary in the

provisions of the Constitution relating to the sub-ordinate

courts of the States and in fact those provisions were there

in the Government of India Act, 1935. With this background

in mind if we look at the Constitutional Scheme we find Part

XIV consisting of articles 308 to 323 deal with the services

under the Union and the States whereas Chapter VI containing

articles 233 to 237 deal with the Subordinate Courts. Under

article 233, the power of appointment, posting and promotion

of district judges in any State has been conferred on the

Governor of the State in consultation with the High Court

exercising jurisdiction in relation to such State. It

obviously deals with those officers who are to be promoted

to the rank of district judge in the superior judicial

service from the post of subordinate judge. Sub-article (2)

of article 233 of the Constitution makes provision for

appointment of a person as a district judge direct on the

recommendation of the High Court concerned. Article 234 of

the Constitution provides for recruitment of persons other

than district judges to the judicial service of the State

and the same has to be made by the Governor in accordance

with the 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 deals with control over the subordinate courts

and there is not an iota of doubt that the control over

district courts and courts subordinate thereto vest with the

High Court and such control must be one which is real and

effective and there cannot be any dilution in that respect.

It is to be borne in mind that in the Constitutional Scheme

in Chapter VI the Founding Fathers have dealt with the

question of recruitment and not other conditions of service,

such as the age of superannuation, the pay, the pension and

allowances, so on and so forth. While Article 309 deals

with recruitment and conditions of service of persons

serving the Union or the State, a particular category of

post forming the judicial wing has been carved out in

Chapter VI in Articles 233 to 235 so far as the question of

recruitment is concerned. When Article 309 itself uses the

expression subject to the provisions of this constitution

it necessarily means that if in the constitution there is

any other provision specifically dealing with the topics

mentioned in said Article 309, then Article 309 will be

subject to those provisions of the Constitution. In other

words, so far as recruitment to the judicial services of the

State is concerned, the same being provided for specifically

in Chapter VI under Articles 233 to 237, it is those

provisions of the Constitution which would override any law

made by the appropriate legislature in exercise of power

under Article 309 of the Constitution. The State

legislature undoubtedly can make law for regulating the

conditions of services of the officers belonging to the

judicial wing but cannot make law dealing with recruitment

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to the judicial services since the field of recruitment to

the judicial service is carved out in the Constitution

itself in Chapter VI under Articles 233 to 236 of the

Constitution.

It would be appropriate to notice at this stage while

in Articles 145(1), 148(5), 187(3), 229(2), 283(1) and (2),

the Constitution itself make the provision subject to the

provisions of law made by the Parliament but Article 234 is

not subject to any legislation to be made by the appropriate

legislature, which indicates that so far as recruitment to

the Judicial Service is concerned which is engrafted in

Article 234, the same is paramount and the power of

legislature to make law under Article 309 will not extend to

make a law in relation to recruitment, though in relation to

other conditions of service of such judicial officers, the

appropriate legislature can make a law. In fact in B.S.

Yadavs case 1981(1)SCR 1024, on which Dr. Dhawan,

appearing for the State of Bihar, heavily relied upon Chief

Justice Chandrachud, had noticed to the effect- Whenever,

it was intended to confer on any authority the power to make

any special provisions or rules, including rules relating to

conditions of service, the Constitution has stated so in

express terms. See, for example Articles 15(4), 16(4),

77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3),

176(2), 187(3), 208, 225, 227(2) and (3) and 229(1) and (2),

234, 237 and 283(1) and (2). The observation has been made

in the context of the question whether Article 235 confers

any power on the High Court to make Rules relating to the

Conditions of Judicial Officers attached to the District

Courts and the Courts subordinate thereto. The very fact

that the framers of the Constitution in enacting Article 234

have made the provision, not subject to any acts of the

appropriate legislature is the clearest indication of the

Constitution makers that so far as the recruitment to the

Judicial Service of the State is concerned, the State

Legislature do not possess the necessary power to make law.

At the cost of repetition, it may be stated that the

expression recruitment and the expression other

conditions of service are two distinct connotations in the

service jurisprudence and the framers of the Constitution

have also born that in mind while engrafting Articles 234

and 309 of the Constitution. It is true that Article 233

dealing with appointment of District Judges does not

indicate conferment of power to make Rules for appointment.

But the language of article 233 indicates that the entire

matter of recruitment to the post of District Judge, either

by way of direct recruitment or by promotion is left to the

High Court and it is the Governor of the State who is

required to make such appointment in consultation with the

High Court. So far as direct recruitment is concerned, the

Constitution itself lays down certain criteria for making a

person eligible for being appointed/recruited as a District

Judge. The entire field of recruitment is left to the two

Constitutional consultees and obviously, the opinion of the

High Court in such matter must be of binding effect. For

direct recruitment to the post of District Judges in

sub-Article (2) of Article 233, the Constitution itself has

indicated the eligibility criteria and the source of

recruitment, leaving the manner of final selection with the

High Court itself. The argument of Dr. Rajiv Dhawan, in

this context that it would be anomalous that whereas for

subordinate judiciary, the legislature has no power to make

law to deal with the recruitment, whereas for District

Judges, the legislature has such power, is devoid of

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substance inasmuch as under Article 233, both under Clause

(1) as well as Clause (2) though the appointment has to be

made by the Governor but it is the High Court, who has to

decide as to who would be appointed and this also fits in

with the underlying principles under Article 235 of the

Constitution. With reference to second part of Article 235,

Dr. Dhawan had also raised the contention that it pre-

supposes that the legislature does possess the power to make

law, conferring a right to appeal to an officer of the

judiciary of the State, though, control over District Courts

and Courts sub-ordinate thereto vests with the High Court.

But this contention does not take into account the

distinction between the two connotations namely

recruitment and conditions of service. The second part

of Article 235 protecting a right of appeal which an officer

may have under any law made by the legislature or Governor

relates to regulating the conditions of service and not in

relation to recruitment of the said officer. An ingenious

argument had been advanced by Dr. Dhawan to the effect that

Article 234 expressly uses the expression that the

appointment has to be made in accordance with the Rules to

be made by the Governor in consultation with the State

Public Service Commission and with the High Court, thereby

is referable to proviso to Article 309 and, therefore, the

plenary power of the legislature under main Article 309 is

not whittled down in any manner. But this argument over-

looks the fact that the law made by the legislature under

the main part of Article 309 and the law made by the

Governor under the proviso stands on the same footing. At

this stage, it would be appropriate to notice the argument

advanced by Mr. Dwivedi, the learned counsel appearing for

the State of Bihar in one of these appeals to the effect

that the appropriate act of the State Legislature providing

for reservation in the services of the State is a stage

prior to the recruitment or appointment and, therefore the

power of recruitment in Article 234 is not in any way

infringed. This contention would not stand a moment

scrutiny in view of the language of Section 4 of the Act

itself.

4.Reservation for direct recruitment - All

appointments to services and posts in an establishment which

are to be filled by direct recruitment shall be regulated in

the following manner, namely:-

(1) The available vacancies shall be filled up- (a)

from open merit category .. 50% (b) from reserved category

.. 50%

(2) The vacancies from different categories of

reserved candidates from amongst the 50% reserved category

shall, subject to other provisions of this Act, be as

follows:-

(a) Scheduled Castes .. 14% (b) Scheduled Tribes ..

10% (c) Extremely Backward Class .. 12% (d) Backward Class

.. 8% (e) Economically Backward Woman .. 3% (f)

Economically Backward .. 3% ---------------- Total .. 50%.

Provided that the State Government may, by

notification in the official Gazette, fix different

percentage for different districts in accordance with the

percentage of population of Scheduled Castes/Scheduled

Tribes and other backward classes in such districts:

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Provided further that in case of promotion,

reservation shall be made only for Scheduled

Castes/Scheduled Tribes in the same proportion as provided

in this section.

(3). A reserved category candidate who is selected on

the basis of his merit shall be counted against 50%

vacancies of open merit category and not against the

reserved category vacancies.

(4) Notwithstanding anything contained to the contrary

in this Act or in any other law or rules for the time being

in force, or in any judgment or decree of the Court, the

provision of sub-section (3) shall apply to all such cases

in which all formalities of selection have been completed

before the 1st November, 1990, but the appointment letters

have not been issued.

(5) The vacancies reserved for the Scheduled

Castes/Scheduled Tribes and other Backward Classes shall not

be filled up by candidates not belonging to Scheduled

Castes/Scheduled Tribes and other Backward Classes except as

otherwise provided in this Act. (6) (a) In case of

non-availability of suitable candidates from the Scheduled

Castes and Scheduled Tribes for appointment and promotion in

vacancies reserved for them, the vacancies shall continue to

be reserved for three recruitment years and if suitable

candidates are not available even in the third year, the

vacancies shall be exchanged between the Scheduled Castes

and Scheduled Tribes and the vacancies so filled by exchange

shall be treated as reserved for the candidates for that

particular community who are actually appointed.

(b) In case of non-availability of suitable candidates

from the Extremely Backward Classes and Backward Classes the

vacancies so reserved shall continue to be reserved for them

for three recruitment years and if suitable candidates are

not available even in the third year also, the vacancies

shall be filled by exchange between the candidates from the

extremely Backward and Backward Classes and the vacancies so

filled by Exchange shall be treated as reserved for the

candidates of that particular community who are actually

appointed.

(c) In case of non-availability of suitable candidates

for the vacancies reserved for the economically backward

women the vacancies shall be filled first by the candidates

from the Scheduled Castes, then by the candidates from the

Scheduled Tribes, then by the candidates from extremely

backward class and then by the candidates from backward

class. The vacancies so filled in the transaction shall be

treated as reserved for the candidates of that particular

community who are actually appointed.

(d) If in any recruitment year, the number of

candidates of Scheduled Castes/Scheduled Tribes, extremely

Backward and Backward Classes are less than the number of

vacancies reserved for them even after exchange formula the

remaining backlog vacancies may be filled by general

candidates after deserving them but the vacancies so

deserved shall be carried forward for three recruitment

years. (e) If the required number of candidates of

Scheduled Castes, Scheduled Tribes and Extremely Backward

and Backward Classes are not available for filling up the

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reserved vacancies, fresh advertisement may be made only for

the candidates belonging to the members of Scheduled Castes,

Scheduled Tribes and Extremely Backward and Backward

Classes, as the case may be, to fill the backlog vacancies

only.

The plain and grammatical meaning of the words used in

Section 4 quoted above unequivocally indicates, that it is a

law relating to recruitment/appointment and as such once, it

is held that the power of recruitment in respect of Judicial

Services is provided for in Article 234, the State

Legislature in the garb of making law in consonance with

Article 16(4) cannot encroach upon Article 234. In course

of hearing an elaborate argument had been advanced that

reservation is intended to fulfil the Right of Equality

under Article 16(1) read with 16(4) and the question whether

there has been adequate representation of a particular

backward class of citizens has been left to the satisfaction

of the State Government in Article 16(4) and, therefore, the

State Legislature cannot be denuded of its right to make

such law to fulfil the aforesaid Constitutional mandate. We

really fail to understand as to why the legislature would

feel that the Governor, when frames rules in consultation

with the High Court and the Public Service Commission under

Article 234 will not take into consideration the

constitutional mandate under Article 16(1) or Article 16(4).

In fact in the case in hand in the Bihar Judicial Service

Recruitment Rules, 1955, reservations have been provided for

Scheduled Caste and Scheduled Tribe candidates and the Full

Court of Patna High Court have also adopted the percentage

of reservation for these candidates as per the notification

of the State Government. So far as the Superior Judicial

Service is concerned, it is of course true that there has

been no provision for reservation. But such provision could

always be made by the Governor in consultation with the High

Court, also bearing in mind the mandate of Article 335,

namely Maintenance of Efficiency of Administration. It is

indeed painful to notice, some times law makers

unnecessarily feel that the High Court or the Judges

constituting the High Court are totally oblivious to the

Constitutional mandate underlying Article 16 and more

particularly, Article 16(4). It is also not appropriate to

think that the High Court will not take into consideration

the provisions of Article 16(1) and 16(4) while considering

the case of recruitment to the judicial services of the

State. The Judiciary is one of the three limbs of the

Constitution and those who are entrusted with the affairs of

administration of justice must be presumed to have greater

expertise in understanding the Constitutional requirements.

In this view of the matter the contention of Mr. Dwivedi,

appearing for the State of Bihar is unfounded.

In the aforesaid premises, in my considered opinion,

the provisions of Bihar Reservation of Vacancies in Posts

and Services (for Scheduled Castes, Scheduled Tribes and

other Backward Classes) Act, 1991 has no application to the

recruitment of judicial officers in the State of Bihar.

BANERJEE, J.

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I have had the privilege of going through the

judgments of Brother Majmudar and Brother Sethi expressing

however, two different and divergent views in regard to the

issues raised in the Appeals before us. I have also the

privilege of going through the judgment of Brother

Pattanaik, recording his concurrence with Brother Majmudar

and differing from the views expressed by Brother Sethi. I

also record my concurrence with the views expressed by

Brother Majmudar but I wish to add a few lines without

dilating on to the points delved into both by Brother

Majmudar and Brother Pattanaik in expression of my opinion

in the matter in issue.

The Bihar Reservation of Vacancies in Posts and

Services (for Scheduled Castes, Scheduled Tribed and Other

Backward Classes) Act, 1991 as amended by Bihar Act 11 of

1993, in particular Section 4 thereof is the issue in

controversy. The exact language of Section 4 has already

been noticed by both Brother Majmudar and Brother Pattanaik

in their judgments and as such to avoid the length of the

judgment again. I retrain myself from quoting the same

excepting, recording however, that Section 4 of the Act of

1991 covers the filed of reservation for direct recruitment

to the extent of 50% from the open merit category and 50%

from the reserved category and the effort on the part of the

State legislature to include the judiciary within the ambit

of Section 4 stands negated by the High Court and hence the

Appeal before this Court. The core question that needs to

be answered is whether Judicial Service comes within the

ambit of Acticle 309 so as to clothe the State legislature

with the power of legislation and it is in this context that

heading of Acticle 309 lends some assistance in the matter

which reads; "Recruitment and conditions of Service of

persons serving the Union or a State" Article 309 thus, is

restrictive to recruitment and conditions of service of

persons. In any event the founding fathers of out

Constitution with due care and caution introduced this

Article subject however, to the other provisions in the

Constitution. The opening words of the Article is to be

noticed since any rule in terms of the rule making power as

conferred by the proviso to the Article if contravenes any

of the provision of the Constitutioin, the rule cannot but

be ascribed to be viod the reason being express words used

by the makers of Constitution subject to the provisions and

by reason of existence of a specific provision in regard

thereto. It is an authorisation for the legislature to

legislate relating to recruitment and conditions of service

provided there is existing no specific provision in regard

thereto. Needless to record here that Article 309 falls

under Part XIV of the Constitution under the lead "Services

under the Union and States" and relying theron Dr. Dhawan

appearing in support of the Appeal contended that since

judiciary is an organ of the State question of taking it out

of the ambit of Article 309 would not arise. The

constitutional scheme however, runs in direct conflict with

the submission of Dr. Dhawan. Articles 233 to 237 falls

under Chapter VI of Constitutioin with a heading -

'Subordinate Court' . The headings of Articles 233, 233A,

234, 235 in this context are of some effect and consequence

and as such, the same are noted hereinbelow:

"233. Appointment of District Judges".

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"233A. Validation of appointment of and judgments

etc., delivered by, certain District Judges.

"234. Recruitment of persons other than District

Judges to the Judicial Service".

"235. Control over subordinate courts".

Be it noted that whereas Chapter V of the Constitution

deals with the High Court in the State, Chapter VI as

noticed above deals with Subordinate Courts; the scheme of

the Constitution thus, is categorical enough to depict the

judiciary as a specific class by itself being an independent

third wing of democratic polity. The appointment of

district judges though conferred in terms of Articles 233 of

the Constitution on to the Governor of the State but the

"Consultation with the High Court exercising jurisdiction in

relation to such a State" has been inserted in order to

obviate any controversy as to the efficiency of the officers

who are to be promoted to the rank of district judge in the

Higher Judicial Service from the post of subordinate Judge.

The incorporation of sub-Article 2 as regards a direct

recruit district judge on the basis of the recommendations

of the High Court for appointment has as a matter of fact

cemented the controversy, in the event however, there being

any, as regards the method of consultation in matter of

appointment of district judges. The further incorporation

of Articles 234 and 235 and on a plain reading thereof would

leave no manner of doubt as to the separate categorization

of judicial officers exclusive to themselves and their

appointment independently of Articles 309.

The inclusion of Chapter Vi in the Constitution as a

matter of fact records a distinct intention of the framers

of the Constitution as regards the supremacy and

separateness of the judiciary from the legislature and the

executive. If Article 309 is subject to be a general

provision, Articles 233 to 235 ought to be treated as

specific provisions for appointment of judicial officers and

by reason therefor, the specific field of legislation thus

stands completed and obviously the framers of the

Constitution having provided Articles 233 to 235, introduced

in Article 309, the words "subject to the provisions of this

Constitution". As a matter of fact the submission in

support of the Appeal does not stand to further scrutiny by

reason of the fact that in the event of there being any

contra intention of the framers, the same would have found

an expression in Article 234 itself. The appointment of

district judges, in my view, without any hesitation rests

with two constitutional functionaries namely, the Governor

and the High Court and thus withdrawing the same from the

purview of the general power as conferred under Article 309.

On the wake of the aforesaid, judicial service thus,

cannot be termed to be covered under Article 309 as regards

the appointment thereto though however, other conditions of

service specifically left open and thus the authorisation to

legislate under Article 309 is available in regard to

conditions of service and other incidentals thereto

subsequent to the appointment. It may also be noted that

General Legislative powers of thee Parliament as well as the

State Legislature under Article 245 is expressly made

subject to other provisions of the Constitution which would

obviously include Articles 233 to 235.

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The other aspect of the matter is in regard to Article

16 (4) which Mr. Dwivedi appearing in support of the Appeal

in Appeal No.9072/96 contended that reservation is outside

the purview of Chapter VI and since Article 16 (4) can be

termed to be a basic feature of the Constitution

appointments in the posts of district judges ought also to

be governed thereunder and not de hors the same. This

aspect of the matter however, has been dealt with

elaborately by both my learned Brother Majmudar and Brother

Pattanaik and as such I do not wish to record any further

reasons therefore but adopt the same and hereby record my

concurrence therewith. In that view of the matter I would

dismiss both Appeals without however, any orderr as to

costs.

ORDER

Leave granted.

The Civil Appeals stand dismissed as per the majority

view subject to the modification and directions contained in

thee main judgment.

There will be no order as to costs.

SETHI, J. (For himself & Khare,J.)

We have minutely perused the well prepared, lucid and

knowledgeable judgment of Brother Majmudar, J. but find it

difficult to agree with him on main issues involved in the

case, which undoubtedly are of far reaching consequences on

the future of the Indian polity. As the interpretation of

the various provisions of the Constitution in relation to

the independence of judiciary and the sovereign rights of

the legislature to make laws with respect to the Judicial

Service is likely to affect the constitutional scheme

adopted in a Parliamentary democracy, We have opted to write

a separate judgment.

Leave granted in SLP 16476 of 1993.

Concededly India is a Parliamentary democracy having

an elaborate written Constitution adopted by the people of

the country for their governance. The Constitution declares

to secure to all citizens of the country, justice, social,

economic and political; liberty of thought, expression,

belief, faith and worship and equality of status and

opportunity. The Parliamentary form of democracy introduced

in this country is referable to the West-minister experience

of Great Britain. All the basic principles of Parliamentary

system practised and followed in United Kingdom were adopted

by the founders of the Constitution in our country. The

constitutional scheme generally envisages separation of

powers which is not synonymous to the "checks and balances"

as prevalent in the United States Constitutional system. In

implementation of the scheme, with respect to separation of

powers amongst the main wings of the State, there is

overlapping sometimes, even without encroachment as the

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Constitution is found to contain interactive provisions.

The constitutional scheme makes the Executive responsible to

the Legislature. The paramount consideration and dominant

goal of the Constituent Assembly has been to bring popular

people into the Government and make the Government

answerable to the representatives of the people. The Indian

Parliamentary system adopted and practised for over half a

century has, by and large, kept pace with the changing

circumstances by embodying innovations and practices to meet

the requirements of the changing role of the Parliament.

Various provisions made in the Constitution reflect the

desire of the nation to have a practicable

socio-political-economic system to meet the aspirations of

the common man. The system is intended to deliver the goods

and services to the satisfaction of the common masses. The

constitutional framework envisaging Parliamentary system of

governance ensures the establishment of a sovereign,

socialist, secular, democratic Republic in the country. It

guarantees fundamental rights and mandates the Directive

Principles of the State policy. Besides providing a quasi

federal system in the country and envisaging the scheme for

distribution of legislative powers between the State and the

Centre, it emphasizes the establishment of the rule of law.

The form of Government envisaged under a Parliamentary

system of democracy is a representative democracy in which

the people of the country are entitled to exercise their

sovereignty through the legislature which is to be elected

on the basis of adult franchise and to which the Executive,

namely, the Council of Ministers is responsible. The

legislature has been acknowledged to be a nerve centre of

the State activities. It is through Parliament that elected

representatives of the people ventilate peoples grievances.

The Constitution devises the ways and means in its various

parts by which each of the three branches of the Government,

namely, legislative, executive and judiciary can function

without interference of the other by invading others

assigned sphere. The doctrine of separation of powers

though not strictly accepted yet provides for independent

judiciary in the States. This Court in Chandra Mohan vs.

State of Uttar Pradesh & Ors. [AIR 1966 SC 1987] held:

"The Indian Constitution, though it does not accept the

strict doctrine of separation of powers, provides for an

independent judiciary in the States: it constitutes a High

Court for each State, prescribes the institutional

conditions of service of the Judges thereof, confers

extensive jurisdiction on it to issue writs to keep all

tribunals, including in appropriate cases the Governments,

within bounds and gives to it the power of superintendence

over all courts and tribunals in the territory over which it

has jurisdiction. But the makers of the Constitution also

realised that it is the Subordinate Judiciary in India who

are brought most closely into contact with the people, and

it is no less important, perhaps indeed even more important,

that their independence should be placed beyond question in

the case of the superior Judges. Presumably to secure the

independence of the judiciary from the executive, the

Constitution introduced a group of articles in Ch.VI of Part

VI under the heading "Subordinate Courts". But at the time

the Constitution was made, in most of the States the

magistracy was under the direct control of the executive.

Indeed it is common knowledge that in pre-independence India

there was a strong agitation was based upon the assumption

that unless they were separated, the independence of the

judiciary at the lower levels would be a mockery. So

article 50 of the Directive Principles of Policy states that

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the State shall take steps to separate the judiciary from

the executive in the public services of the States. Simply

stated, it means that there shall be a separate judicial

service free from the executive control."

The hallmark of the constitutional scheme in the

country is the role of judicial review assigned to the

courts. Unlike United States our Constitution explicitly

empowers the Supreme court and the High Courts to check the

actions of the Executive and the Legislature in case of such

actions being incompatible with the Constitution. To ensure

the existence of an independent, effective and vibrant

judiciary provision is made in the Constitution in Part V,

Chapter IV dealing with the Union Judiciary, Part VI,

Chapter V dealing with the High Courts in the States and

Chapter VI dealing with Subordinate Courts. This Court, in

various decisions, has highlighted the importance of

insulating the judiciary from executive interference to make

it effectively independent. In S.P. Gupta vs. Union of

India[1982 (2) SCR 365] , Bhagwati, J., as His Lordships

then was declared that the principle of independence of

judiciary is not an abstract conception but it is a living

faith which must derive its inspiration from the

constitutional charter and its nourishment and sustenance

from the constitutional values. The Indian judiciary was

described as a document of social revolution which casts an

obligation on every instrumentality including the judiciary

which is a separate but equal branch of the State to

transform the status quo ante into a new human order in

which justice, social, economic and political will inform

all institutions of national life and there will be equality

of status and opportunity for all. The British concept of

justicing was found to be satisfactory for a stable and

static society but not for a society pulsating with urges of

gender justice, worker justice, minorities justice, dalit

justice and equal justice between chronic unequals. In the

words of Glanville Austin, the judiciary has to become an

arm of the socio-economic revolution and perform an active

role calculated to bring social justice within the reach of

the common man. In the instant case the controversy relates

to the alleged invasion on the independence of subordinate

judiciary defined as judicial service in Article 236 of

the Constitution. It is contended that the provisions of

Part VI, Chapter VI of the Constitution are to be construed

independently ignoring the other constitutional guarantees

and provisions made to deal with the public services of the

Union and the States as contemplated under Article 309 of

the Constitution. On the one hand it is submitted that the

said Chapter VI is a self-contained provision with which no

interference can be had by any other organ of the State,

namely, the executive and the legislature. On the other

hand it is contended that conceding that the provisions made

in the said Chapter are mandatory, the executive or the

legislature is not debarred from supplementing those

provisions without transgressing the limit imposed by law or

making such provision which may not amount to interference

with the judiciary endangering its independence. Divergent

views are expressed regarding the nature of service

contemplated under Part VI, Chpater VI and the service

referred to in Part XIV Chapter I. The impugned Act being

Bihar Act No.3 of 1992 is referable to the provisions of

Article 309 legislated by the State Legislature in exercise

of its powers conferred upon it under Part XI Chpater I read

with Schedule VII Entry 41 List II and Entry IIA List III.

Section 4 of of the impugned Act deals with and provides

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reservation in all services including the judicial service.

The High Court of Patna has held the aforesaid section to be

inapplicable to the judicial service with the result that

the appointments to the judicial service have been made

without any reservation. Without repeating the facts as

narrated in the judgment of Majmudar, J., it is noticed that

when the High Court of Patna administratively declined to

concede reservation in the judicial services, the State

Legislature enacted the impugned Act. Article 233 of the

Constitution provides that appointment of District Judges

shall be made by the Governor of the State in consultation

with the High Court exercising jurisdiction in relation to

such State. Direct appointment of a person to the post of

District Judge can be made only if he has been an

Advocate/Pleader for seven years and is recommended by the

High Court for appointment. The appointment contemplated

under this Article is the initial appointment from direct

recruits or initial promotion from the service. The

exercise of power of appointment by the Governor is

conditioned by his consultation with the High Court which

means that he can appoint only such person to the post of

District Judge who has been recommended by the High Court.

The object of consultation was considered by this Court in

Chandra Mohan's case (Supra) wherein it was held: "The

Constitutional mandate is clear. The exercise of power of

appointment by the Governor is conditioned by his

consultation with the High Court that is to say, he can only

appoint a person to the post of District Judge in

consultation with the High Court. The object of

consultation is apparent. The High Court is expected to

know better than the Governor in regard to the suitability

or otherwise of a person, belonging either to the judicial

service or to the Bar, to be appointed as a district judge.

Therefore, a duty is enjoined on the Governor to make the

appointment in consultation with a body which is the

appropriate authority to give advice to him. This mandate

can be disobeyed by the Governor in two ways, namely, (i) by

not consulting the High Court at all, and (ii) by consulting

the High Court and also other persons. In one case he

directly infringes the mandate of the Constitution and in

the other he indirectly does so, for his mind may be

influenced by other persons not entitled to advice him."

This Court in State of Assam & Anr. vs. Kuseswar

Saikia & others [AIR 1970 SC 1616] held that the separate

judicial service was provided to make the office of a

District Judge completely free of executive control. In

Chandramouleshwar Mohan Prasad vs. The Patna High Court &

Ors. [AIR 1970 SC 370] this Court held that the underlying

idea of Article 233 is that the Governor should make up his

mind after there has been a deliberation with the High

Court. The High Court is the body which is intimately

familiar with the efficiency and quality of officers who are

fit to be promoted as District Judges. The High Court alone

knows the merits as also their demerits and that the

consultation with the High Court under Article 233 is not an

empty formality. It is not disputed in this case that the

State Legislature had the plenary power to enact the

impugned Act under Part XI Chapter I read with 7th Schedule

Entry 41 of List II and Entry IIA of List III. It is also

not disputed that the said Act has been enacted to give

effect to the fundamental rights, the Directive Principles

of State Policy and the obligation of the State under

Article 335 of the Constitution. The controversy rests upon

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the interpretation of Articles 233, 234, 235 and 309 of the

Constitution. The High Court held that the judicial service

was not a service in the sense of employment and was

distinct from other services. Referring to various

provisions of the impugned Act and the definitions of the

terms "any office or department" in an "establishment" and

State", the High Court concluded that the provisions of

Section 4 of the said Act were not applicable to the

judicial service and that no reservation in terms thereof

could be made in the matter of appointment to the post of

District Judges and other judicial officers subordinate to

the District Judge. The High Court extensively referred to

the observations of this Court in the case of All India

Judges Association & Ors. vs. Union of India & Ors. [AIR

1993 SC 2493] to conclude that the judicial service having

been assigned a special status and place in the Constitution

was in contradistinction to other services within the

constitutional framework. It was held that the definition

of "office or department" and of "establishment" under the

Act was referable to the office or department of the Court

and not the Court itself. Part XIV Chapter I of the

Constitution relates to "services under the Union and the

State". Article 309 authorises the appropriate Legislature

to regulate the recruitment and conditions of service of

persons appointed to public services and posts in connection

with the affairs of the Union or of any State, however,

subject to other provisions of the Constitution. Proviso to

Article 309 authorises the executive to make rules

regulating the recruitment and conditions of service of

persons appointed to such services or posts until powers in

that behalf are exercised by the appropriate Legislature

under Article 309 of the Constitution. "Public Service"

means anything done for the service of the public in any

part of the country in relation to the affairs of the Union

or the State. It was opposite of private service. Persons

connected with the discharge of public duties relating to

any of the organs of the State i.e. executive, judiciary

and legislature including the Armed Forces, would be termed

as "public servants" engaged in the service of the Public.

Public services and posts in connection with the affairs of

the Union or of any State would refer to all services and

posts under the Union and the State and include every

commissioned officer in the Military, Naval or Air Force,

every Judge, every officer of court of justice, a member of

Panchayat, every arbitrator or other person to whom any

cause or matter has been referred for decision or report by

any court of justice, every person who holds any office by

virtue of which he is empowered to place or keep any person

in confinement; every officer of the Government whose duty

it is as such officer, to prevent offences, to give

information of offences, to bring offenders to justice or to

protect the public health, safety or convenience; every

officer whose duty it is, as such officer, to take, receive,

keep or expend any property on behalf of the Government, or

to make any survey assessment or contract on behalf of the

Government; every officer who holds any office in virtue of

which he is empowered to prepare, publish, maintain or

revise an electoral roll or to conduct an election or part

of an election; every person in the service or pay of the

Government or remunerated by fees or commission for the

performance of any public duty by the Government; or such

person in the pay of a local authority, a corporation

established by or under a Central or State Act, and the

like. Section 21 of the Indian Penal Code may be an

indicator to refer to the public services and posts intended

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to be covered or contemplated under Article 309 of the

Constitution. Judicial service, therefore, cannot be termed

not to be a service within the meaning of Article 309.

Accordingly, the appointment of District Judge under Article

233 is an appointment to the public service within the

meaning of Article 309 of the Constitution. It is true that

the constitutional scheme envisages an independent judiciary

not being under the Executive but such an independent

judiciary cannot be termed to be a creation of a distinct

service in the State being not subject to law making

sovereign powers of the Legislature. Article 309, as

noticed earlier, is itself subject to other provisions of

the Constitution which guarantee the independence of

judiciary. The power of appointment of District Judges is

vested in the Governor subject to the conditions imposed

under Article 233 of the Constitution. It follows,

therefore, that subject to the other provisions of the

Constitution, the appropriate Legislature can regulate the

recruitment and condition of service of all persons

appointed to public services including the judicial services

and posts in connection with the affairs of the Union or of

the State. Similarly with restraint of the provisions of

Article 309 the Governor of the State can make rules

regulating the recruitment and condition of service of such

persons. The scheme of the Constitution, ensuring

independence of judiciary clearly and unambiguously provides

that no power is conferred upon executive to exercise

disciplinary authority and jurisdiction in respect of

judicial service. Express provision has been made under the

Constitution, vesting in the High Court "the control over

District Courts and Courts subordinate thereto". Such a

provision did not exist in the Government of India Act,

1935. In State of West Bengal & Anr. vs. Nripendra Nath

Bagchi [AIR 1966 SC 447] this Court after referring to

Articles 233, 234 and 235 of the Constitution held that the

aforesaid Articles were intended to make special provision

for the judicial service of the State. To understand why a

special chapter was provided when there existed Part XIV

dealing with the service under the Union and the State it

was found necessary to go into the history of the aforesaid

constitutional provision. It was held: "Before we set down

briefly how this Chapter came to be enacted outside the Part

dealing with Services and also why the articles were worded,

as they are, we may set down the corresponding provisions of

the Government of India Act, 1935. There too a special

provision was made in respect of judicial officers but it

was included as a part of Chapter 2 of Part X which dealt

with the Civil Services under the Crown in India. The

cognate sections were Ss.254 to 256 and they may be

reproduced here:

"254. District Judges, etc.

(1) Appointments of persons to be, and the posting and

promotion of District Judges in the Province shall be made

by the Governor of any province shall be made by the

Governor of the Province, exercising his individual

judgment, and the High Court shall be consulted before a

recommendation as to the making of any such appointment is

submitted to the Governor.

(2) A person not already in the service of His Majesty

shall only be eligible to be appointed a District Judge if

he has been for not less than five years a Barrister, a

member of the Faculty of Advocates in Scotland, or a Pleader

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and is recommended by the High Court for appointment.

(3) In this and the next succeeding section the

expression District Judge includes Additional District

Judge, Joint District Judge, Assistant District Judge, Chief

Judge of a Small Cause Court, Chief Presidency Magistrate,

Sessions Judge, Additional Sessions Judge, and Assistant

Sessions Judge.

255. Subordinate Civil Judicial Service.

(1) The Governor of each Province shall, after

consultation with the Provincial Public Service Commission

and with the High Court, make rules defining the standard of

qualifications to be attained by persons desirous of

entering the subordinate civil judicial service of a

Province.

In this section, the expression "subordinate civil

judicial service" means a service consisting exclusively of

persons intended to fill civil judicial posts inferior to

the post of District Judge.

(2) The Provincial Public Service Commission for each

Province, after holding such examinations, if any, as the

Governor may think necessary, shall from time to time out of

the candidates for appointment to the subordinate civil

judicial service of the Province make a list or lists of the

persons whom they consider fit for appointment to that

service, and appointment to that service shall be made by

the Governor from the persons included in the list or lists

in accordance with such regulations as may from time to time

be made by him as to the number of persons in the said

service who are to belong to the different communities in

the Province.

(3) The posting and promotion of, and the grant of

leave to, persons belonging to the subordinate civil

judicial service of a Province and holding any post inferior

to the post of District Judge, shall be in the hands of the

High Court, but nothing in this section shall be construed

as taking away from any such person the right of appeal

required to be given to him by the foregoing provisions of

this chapter, or as authorising the High Court to deal with

any such person otherwise than in accordance with the

conditions of his service prescribed thereunder.

256 Subordinate criminal magistracy.

No recommendation shall be made for the grant of

magisterial powers or of enhanced magisterial powers to, or

the withdrawal of any magisterial powers from, any person

save after consultation with the District Magistrate or the

district in which he is working, or with the Chief

Presidency Magistrate, as the case may be.

It may be pointed out at once that in the present

Constitution these provisions have been lifted from the

Chapter dealing with Services in India and placed separately

after the provisions relating to the High Courts of the

States.

(8) As far back as 1912 the Islingtons Commission

stated that the witnesses before the Commission demanded two

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things (1) recruitment from the Bar to the superior judicial

service, namely, the District judgeship; and (2) the

separation of the judiciary from the executive. The

Commission stated in the report: Opinion in India is much

exercised on the question of the separation of the executive

and the judicial functions of the officers'...and observed

that to bring this about legislation would be required.

The Commission made its report on August 14, 1915, a few

days after the Government of India Act, 1915 (5 and 6 Geo.

V. c.61) was enacted. The Act did not, therefore, contain

any special provision about the judicial services in India.

The World War I was also going on. In 1919, Part VII-A

consisting of Ss.96-B to 96-E was added in the Government of

India Act, 1915 S.96-B provided that every person in the

Civil Service of the Crown in India held office during His

Majestys pleasure but no person in that service might be

dismissed by any authority subordinate to that by which he

was appointed. The only section that concerns us in S.96-B.

Sub-s.(2) of that section reads as follows:

"(2) The Secretary of State in Council may make rules

for regulating the classification of the civil services in

India, the methods of their recruitment, their conditions of

service, pay and allowances, and discipline and conduct.

Such rules may, to such extent and in respect of such

matters as may be prescribed, delegate the power of making

rules to the Governor-General in Council or to Local

Governments, or authorise the Indian legislature or local

legislatures to make laws regulating the public services:"

The Fundamental Rules and the Civil Services

(Classification, Control and Appeal) Rules were made by the

Secretary of State in Council under the above rule- making

power. These rules governed the judicial services except

the High Court. Part IX of the Government of India Act

dealt with the Indian High Courts, their constitution and

jurisdiction. Section 107 gave to the High Courts

superintendence over all Courts for the time being subject

to its appellate jurisdiction and enumerated the things the

High Court could do. They did not include the appointment,

promotion, transfer or control of the District Judges. High

Court could only exercise such control as came within their

superintendence over the Courts subordinate to their

appellate jurisdiction. In the Devolution Rules, Item 17 in

Part II dealing with the Provincial subjects read as

follows:-

"Administration of justice, including constitution,

powers, maintenance and organisation of civil Court and

criminal jurisdiction within the Province; subject to

legislation by the Indian legislature as regards High

Courts, Chief Courts, and Court of Judicial Commissioners

and any Courts of criminal jurisdiction."

It would thus appear that the problem about the

independence of judicial officers, which was exercising the

minds of the people did not receive full attention and to

all intents and purposes the Executive Government and

Legislatures controlled them. The recommendations of the

Islington Commission remained a dead letter. When the

Montague-Chemlsford enquiry took place the object was to

find out how much share in the legislative and executive

fields could be given to Indians. The post of the District

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Judge was previously reserved for Europeans. The disability

regarding Indians was removed as a result of the Queens

Proclamation in 1870 and rules were framed first in 1873.

In 1875 Lord Northbrooks Government framed rules allowing

Indians to be appointed and Lord Lyttons Government framed

Rules fixing 1/5th quota for the Indians. There was no

fixed principle on which Indians were appointed and the

report of the Public Service Commission presided over by Sir

Charles Aitchison in 1886 contains the system followed in

different Provinces. This continued down to 1919. The

Government of India Act had introduced Dyarchy in India and

the question of control of services in the transferred field

was closely examined when the Government of India Act, 1935

was enacted. It was apprehended that if transference of

power enabled the Ministers to control the services, the

flow of Europeans to the civil services would become low.

Government appointed several committees, chief among them

the MacDonnel Committee considered the position of the

Europeans vis-.-vis the services. There was more concern

about Europeans than about the independence of the

judiciary.

(9) The Indian Statutory Commission did not deal with

the subject of judicial services but the Joint Committee

dealt with it in detail. It is interesting to know that the

Secretary of State made a preliminary statement on the

subject of subordinate civil judiciary and his suggestion

was to leave to the Provincial Legislatures the general

power but to introduce in the Constitution a provision

which would in one respect override those powers, namely,

power to select the individuals for appointment to the Civil

Judicial Services, to lay down their qualifications, and to

exercise over the members of the service the necessary

administrative control.' He said that 'the powers of the

local Government should be 'to fix the strength and pay of

the services to which the High Court would recruit' and to

lay down, if they so thought fit, any general

requirement...'. During the debates Marquis of Salisbury

asked a question with regard to the general powers of the

High Courts and the control over the subordinate courts. It

was:

"As I understood the Secretary of State in his

statement, the control of the High Court the subordinate

judges in civil matters has to be as complete as possible

and maintained. Is that so?. The answer was, yes.

(No.7937)".

(10) The recommendations of the Joint Committee also

followed the same objective. In the report (paragraph 337

p.201) the following observations were made:

"337. Necessity for securing independence of

subordinate judiciary. The Federal and High Court Judges

will be appointed by the Crown and their independence is

secure; but appointments to the Subordinate Judiciary must

necessarily be made by authorities in India who will also

exercise a certain measure to control over the Judges after

appointment, especially in the matter of promotion and

posting. We have been greatly impressed by the mischiefs

which have resulted elsewhere from a system under which

promotion from grade to grade in a judicial hierarchy is in

the hands of a Minister exposed to pressure from members of

a popularly elected Legislature. Nothing is more likely to

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sap the independence of a magistrate than the knowledge that

his career depends upon the favour of a Minister; and

recent examples (not in India) have shown very clearly the

pressure which may be exerted upon a magistracy thus

situated by men who are known, or believed, to have the

means of bringing influence to bear upon a Minister. It is

the Subordinate Judiciary in India who are brought most

closely into contact with the people, and it is no less

important, perhaps indeed even more important, that their

independence should be placed beyond question than in the

case of the superior Judges...".

As a result, when the Government of India Act, 1935

was passed it contained special provisions (Sections 254-256

already quoted) with regard to District Judges and the

subordinate judiciary. It will be noticed that there was no

immediate attempt to put the subordinate criminal magistracy

under the High Courts but the posting and promotion and

grant of leave of persons belonging to the subordinate

judicial service of a Province was put in the hands of High

Court though there was right of appeal to any authority

named in the rules and the High Courts were asked not to act

except in accordance with the conditions of the service

prescribed by the Rules. As regards the District Judges the

posting and promotions of a District Judge was to be made by

the Governor of the Province exercising his individual

judgment and the High Court was to be consulted before a

recommendation to the making of such an appointment was

submitted to the Governor. Since S.240 of the Government of

India Act, 1935 provided that a civil servant was not to be

dismissed by an authority subordinate to that which

appointed him, the Governor was also the dismissing

authority. The Government of India Act, 1935 was silent

about the control over the District Judge and the

subordinate judicial services. The administrative control

of the High Court under S.224 over the courts subordinate to

it extended only to the enumerated topics and to

superintendence over them. The independence of the

subordinate judiciary and to the District Judges was thus

assured to a certain extent, but not quite.

(11) When the Constitution was being drafted the

advance made by the 1935 Act was unfortunately lost sight

of. The draft Constitution made no mention of the special

provisions, not even similar to those made by the Government

of India Act, 1935, in respect of the subordinate judiciary.

If that had remained, the judicial services would have come

under Part XIV dealing with the services in India. An

amendment, fortunately, was accepted and led to the

inclusion of Arts.233 to 237. These articles were not

placed in the Chapter on services but immediately after the

provisions in regard to the High Courts. The articles went

a little further than the corresponding sections of the

Government of India Act."

It was further held that Articles 233 and 235 made

mention to two distinct powers. The first relates to power

of appointment of persons, their posting and promotion and

the second is the power to control. This Court did not

accept the contention that the word "District Court" denoted

only the court but not the Presiding Judge. The latter part

of Article 235 has been held to refer to the man who holds

the office. The Articles vest "control in the High Court".

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The purpose of the aforesaid Articles was held to be in

regard with the Directive Principles in Article 50 of the

Constitution which mandates the States to take steps to

separate the judiciary from the executive in the public

services of the State. Reference to Article 50 in

connection with Articles 233, 234 and 235, clearly and

unambiguously shows that this Court has held that the

judicial service was a public service within the meaning of

Article 309 regarding which law could be made, however,

subject to other provisions of the Constitution providing

and guaranteeing the independence of judiciary. In B.S.

Yadav & Ors, etc.v. State of Haryana & Ors., etc. [1981

(1) SCR 1024] this Court considered the scope and extent of

Articles 235 and 309 of the Constitution and held that the

power to frame rules regarding the judicial officers vested

in the Governor and not in the High Court. The first part

of Article 235 vests the control over District Courts and

courts subordinate thereto in the High Court and the second

part of that Article mandates that nothing in the Articles

shall be construed as taking away from any person belonging

to the judicial service any right of appeal which he may

have under law regulating the conditions of service or

authorising the High Court to deal with him otherwise than

in accordance with the conditions of his service prescribed

under such law. Outer limits of the High Court's powers of

control over the subordinate judiciary have thus been

defined providing that it is not open to the High Court to

deny to a member of the subordinate judicial service of the

State the right of appeal given to him by law which

regulates the conditions of his service. Even the High

Court, in exercise of its power of control, cannot deal with

such person otherwise than in accordance with the conditions

of his service which are prescribed by law. This court then

put a question to itself as to who had the power to pass

such a law and answered it: "Obviously not the High Court

because, there is no power in the High Court to pass a law,

though rules made by the High Court in the exercise of power

conferred upon it in that behalf may have the force of law.

There is a distinction between the power to pass a low and

the power to make rules, which by law, have the force of

law. Besides, law which the second part of Art.235 speaks

of, is law made by the legislature because, if it were not

so, there was no purpose in saying that the High Courts

power of control will not be construed as taking away

certain rights of certain persons under a law regulating

their conditions of service. It could not have been

possibly intended to be provided that the High Courts power

of control will be subject to the conditions of service

prescribed by it. The clear meaning, therefore, of the

second part of Article 235 is that the power of control

vested in the High Court by the first part will not deprive

a judicial officer or the rights conferred upon him by a law

made by the legislation regulating him conditions of

service.

Article 235 does not confer upon the High Court the

power to make rules relating to conditions of service of

judicial officers attached to district courts and the courts

subordinate thereto. Whenever, it was intended to confer on

any authority the power to make any special provisions or

rules, including rules relating to conditions of service,

the Constitution has stated so in express terms. See, for

example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1),

146(1), and 2(148)(5), 166(3), 176(2), 187(3), 208, 225,

227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).

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Out of this fasciculus of Articles, the provisions contained

in Articles 225, 227(2) and (3) and 229(1) and (2) bear

relevance on the question, because these Articles confer

power on the High Court to frame rules for certain specific

purpose. Article 229(2) which is directly in point provides

in express terms that subject to the provisions of any law

made by the legislature of the State, the conditions of

service of officers and servants of a High Court shall be

such as may be prescribed by the rules made by the Chief

Justice or by some other Judge or officer of the Court

authorised by the Chief Justice to make rules for the

purposes. With this particular provision before them, the

framers of the Constitution would not have failed to

incorporate a similar provision in Article 235 if it was

intended that the High Courts shall have the power to make

rules regulating the conditions of service of judicial

officers attached to district courts and courts subordinate

thereto.

Having seen that the Constitution does not confer upon

the High Court the power to make rules regulating the

conditions of service of judicial officers of the district

courts and the courts subordinate thereto, we must proceed

to consider: who, then, possesses that power? Article 309

furnishes the answer. It provides that Acts of the

appropriate legislature may regulate the recruitment and

conditions of service of persons appointed to posts in

connection with the affairs of the Union or of any State.

Article 248(3), read with Entry 41 in List II of the Seventh

Schedule, confers upon the State legislatures the power to

pass laws with respect to "State public services" which must

include the judicial services of the State. The power to

control vested in the High Court by Art.235 is thus

expressly, by the terms of that Article itself, made subject

to the law which the State legislature may pass for

regulating the recruitment and service conditions of

judicial officers of the State. The power to pass such a

law was evidently not considered by the Constitution makers

as an encroachment on the 'control jurisdiction' of the High

Courts under the first part of Article 235. The control

over the district courts and subordinate courts is vested in

the High Court in order to safeguard the independence of

judiciary. It is the High Court, not the executive, which

possesses control over the State judiciary. But, what is

important to bear in mind is that the Constitution which has

taken the greatest care to preserve the independence of the

judiciary did not regard the power of the State legislature

to pass laws regulating the recruitment and conditions of

service of judicial officers as an infringement of that

independence. The mere power to pass such a law is not

violative of the control vested in the High Court over the

State Judiciary.

It is in this context that the proviso to Art.309

assumes relevance and importance. The State legislature has

the power to pass laws regulating the recruitment and

conditions of service of judicial officers of the State.

But it was necessary to make a suitable provision enabling

the exercise of that power until the passing of the law by

the legislature on that subject. The Constitution furnishes

by its provisions ample evidence that it abhors a vacuum.

It has therefore made provisions to deal with situations

which arise on account of the ultimate repository of a power

not exercising that power. The proviso to Art.309 provides,

in so far as material, that until the State Legislature

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passes a law on the particular subject, it shall be

competent to the Governor of the State to make rules

regulating the recruitment and the conditions of service of

the judicial officers of the State. The Governor thus steps

in when the legislature does not act. The power exercised

by the Governor under the proviso is thus a power which the

legislature is competent to exercise but has in fact not yet

exercised. It partakes of the characteristics of the

legislative, not executive, power. It is legislative power.

That the Governor possesses legislative power under

our Constitution is incontrovertible and, therefore, there

is nothing unique about the Governors power under the

proviso to Article 309 being in the nature of a legislative

power. By Article 168, the Governor of a State is a part of

the legislature of the State. And the most obvious exercise

of legislative power by the Governor is the power given to

him by Art.213 to promulgate ordinances when the legislature

is not in session. Under that Article, he exercises a power

of the same kind which the legislature normally exercises:

the power to make laws. The heading of Chapter IV of Part

VI of the Constitution, in which Art.213 occurs, is

significant: "Legislative Power of the Governor". The

power of the Governor under the proviso to Article 309 to

make appropriate rules is of the same kind. It is

legislative power. Under Article 213, he substitutes for

the legislature because the legislature is in recess. Under

the proviso to Article 309, he substitutes for the

legislature because the legislature has not yet exercised

its power to pass an appropriate law on the subject.

It is true that the power conferred by Article 309 is

"subject to" the provisions of the Constitution. But it is

fallacious for that reason to contend that the Governor

cannot frame rules regulating the recruitment and conditions

of service of the judicial officers of the State. In the

first place, the power of control conferred upon High Courts

by the first part of Article 235 is expressly made subject,

by the second part of that Article, to laws regulating

conditions of service of its judicial officers. The first

part of Article 235 is, as it were, subject to a proviso

which carves out an exception from the area covered by it.

Secondly, the Governor, in terms equally express, is given

the power by the proviso to Article 309 to frame rules on

the subject. A combined reading of Articles 235 and 309

will yield the result that though the control over

Subordinate Courts is vested in the High Court, the

appropriate legislature, and until that legislature acts,

the Governor of the State, has the power to make rules

regulating the recruitment and the conditions of service of

judicial officers of the State. The power of the

legislature or of the Governor thus to legislate is subject

to all other provisions of the Constitution like, for

example, Articles 14 and 16. The question raised before us

is primarily one of the location of the power, not of its

extent. The second part of Article 235 recognises the

legislative power to provide for recruitment and the

conditions of service of the judicial officers of the State.

The substantive provision of Article 309, including its

proviso, fixes the location of the power. The opening words

of Article 309 limit the amplitude of that power."

It was further declared that the mere power to pass a

law or to make rules having the force of law regulating the

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service conditions did not impinge upon the control vested

in the High Court over the district courts and the courts

subordinate thereto by Article 235. Such laws or the rules,

as the case may be, can provide for general or abstract

rules (of seniority in that case) leaving it to the High

Court to apply them to each individual case as and when the

occasion arises. The opening words of Article 309, "subject

to provisions of this Constitution" do not exclude the

provision contained in the first part of Article 235. It is

thus clear that though the legislature or the Governor has

the power to regulate seniority of judicial officers by

laying down rules of general application, yet that power

cannot be exercised in a manner which will lead to

interference with the control vested in the High Court by

the first part of Article 235. In The High Court of Punjab

& Haryana, etc. etc. vs. State of Haryana & Ors., etc.

etc. [AIR 1975 SC 613] it was held that the power of

appointment of persons to be District Judges is vested in

the Governor of the State under Article 233. The words

"posting and promotion of district judge" in Article 233

mean initial appointment by direct recruitment of persons to

be district judges and the posting mentioned therein the

initial posting. Promotion of district judges has been

explained to mean promotion of persons to be district

judges. In All India Judges Association case(supra) this

Court no doubt held: "The judicial service is not service

in the sense of 'employment'. The judges are not employees.

As members of the judiciary, they exercise the sovereign

judicial power of the State. They are holders of public

offices in the same way as the members of the council of

ministers and the members of the legislature. When it is

said that in a democracy such as ours, the executive, the

legislature and the judiciary constitute the three pillars

of the State, what is intended to be conveyed is that the

three essential functions of the State are entrusted to the

three organs of the State and each one of them in turn

represents the authority of the State. However, those who

exercise the State power are the ministers, the legislatures

and the judges, and not the members of their staff who

implement or assist in implementing their decisions. The

council of ministers or the political executive is different

from the secretarial staff or the administrative executive

which carries out the decisions of the political executive.

Similarly, the legislators are different from the

legislative staff. So also the Judges from the judicial

staff. The parity is between the political executive, the

legislators and the Judges and not between the Judges and

the administrative executive. In some democracies like the

U.S.A., members of some State judiciaries are elected as

much as the members of the legislature and the heads of the

State. The Judges, at whatever level they may be, represent

the State and its authority unlike the administrative

executive or the members of the other services. The members

of the other services, therefore, cannot be placed on par

with the members of the judiciary, either constitutionally

or functionally.

This distinction between the Judges and the members of

the other services has to be constantly kept in mind for yet

another important reason. Judicial independence cannot be

secured by making mere solemn proclamations about it. It

has to be secured both in substance and in practice. It is

trite to say that those who are in want cannot be free.

Self-reliance is the foundation of independence. The

society has a stake in ensuring the independence of the

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judiciary, and no price is too heavy to secure it. To keep

the judges in want of the essential accoutrements and thus

to impede them in the proper discharge of their duties is to

impair and whittle away justice itself."

But it has to be kept in mind that in the same

judgment this Court considered the powers under Article 309

of the Constitution authorising the executive and the

legislative to prescribe the service conditions of the

judiciary, however, rejecting the contention that in that

regard judiciary did not have any say in the matter. It was

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 legislative 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 Art.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 rule 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."

It may be noticed that the All India Judges

Association had filed Writ Petition (C) No.1022/89 in this

Court praying therein: "1. Uniformirty in the Judicial

cadres in the different States and Union Territories;

2. An appropriate enhanced uniform age of retirement

for the Judicial Officers throughout the country;

3. Uniform pay scales as far as possible to be fixed;

4. Residential accommodation to be provided to every

Judicial Officer.

5. Transport facility to be made available and

conveyance allowance provided.

6. Adequate perks by way of Library Allowance,

Residential Office Allowance, and Sumptuary Allowance to be

provided.

7. Provision for inservice training to be made."

Upon consideration of various aspects including the

reports of the Law Commission, this Court recommended and

directed that: "(i) An all India Judicial Service should be

set up and the Union of India should take appropriate steps

in this regard.

(ii) Steps should be taken to bring about uniformity

in designation of officers both in civil and criminal side

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by 31.3.1993.

(iii) Retirement age of judicial officers be raised to

60 years and appropriate steps are to be taken by

31.12.1992.

(iv) As and when the Pay Commissions/Committees are

set up in the States and Union Territories, the question of

appropriate pay scales of judicial officers be specifically

referred and considered.

(v) A working library at the residence of every

judicial officer has to be provided by 30.6.1992. Provision

for sumptuary allowance as stated has to be made.

(vi) Residential accommodation to every judicial

officer has to be provided and until State accommodation is

available, Government should provide requisitioned

accommodation for them in the manner indicated by

31.12.1992. In providing residential accommodation,

availability of an office room should be kept in view.

(vii) Every District Judge and Chief Judicial

Magistrate should have a State vehicle. Judicial officers

in sets of 5 should have a pool vehicle and others would be

entitled to suitable loans to acquire two wheeler

automobiles within different time limits as specified.

(viii) Inservice Institute should be set up within one

year at the Central and State or Union Territory level."

It may be remembered that the recommendations and

directions were issued by the Court in a writ petition in

which no objection was raised regarding the competence of

the State to enact laws and make rules under Article 309 of

the Constitution. In exercise of its powers under Article

32 of the Constitution this Court was clothed with the

authority and powers vesting in it under Articles 141 and

142 of the Constitution. The judgment in All India Judges

Association case decided that the issuance of directions by

the Court did not have the effect of encroaching upon the

powers of the executive and the legislature under Article

309 of the Constitution. The Court referred to the

recommendations of the Law Commission made in the year 1958

and observed that the said recommendations had been made to

improve the system of justice and thereby to improve the

content and quality of justice administered by the Courts.

It was noted that "instead of improving, they have

deteriorated making it necessary to update and better them

to meet the needs of the present times". It was

specifically held: "By giving directions in question, this

Court has only called upon the executive and the legislature

to implement their imperative duties. The Court do issue

directions to the authorities to perform their obligatory

duties whenever there is a failure on their part to

discharge them. The power to issue such mandates in proper

cases belongs to the Courts. As has been pointed out in the

judgment under review, this Court was impelled to issue the

said directions firstly because the executive and the

legislature had failed in their obligations in that behalf.

Secondly, the judiciary in this country is a unified

institution judicially though not administratively. Hence

uniform designations and hierarchy, with uniform service

conditions are unavoidable necessary consequences. The

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further directions given, therefore, should not be looked

upon as an encroachment on the powers of the executive and

the legislature to determine the service conditions of the

judiciary. They are directions to perform the long overdue

obligatory duties.

The contention that the directions of this Court

supplant and bypass the constitutionally permissible modes

for change in the law, we think, wears thin if the true

nature and character of the directions are realised. The

directions are essentially for the evolvement of an

appropriate national policy by the Government in regard to

the judiciarys condition. The directions issued are mere

aids and incidental to and supplemental of the main

direction and as a transitional measure till a comprehensive

national policy is evolved. These directions, to the extent

they go, are both reasonable and necessary."

In Hari Datt Dainthla & Anr. vs. State of Himachal

Pradesh & Ors. [AIR 1980 SC 1426] this Court held:

"Article 233 confers power on the Governor of the State to

appoint persons either by direct recruitment or by promotion

from amongst those in the judicial service as District

Judges but this power is hedged in with the condition that

it can be exercised by the Governor in consultation with the

High Court. In order to make this consultation meaningful

and purposive the Governor has to consult High Court in

respect of appointment of each person as District Judge

which includes an Additional District Judge and the opinion

expressed by the High Court must be given full weight.

Article 235 invests control over subordinate courts

including the officers manning subordinate courts as well as

the ministerial staff attached to such courts in the High

Court. Therefore, when promotion is to be given to the post

of District Judge from amongst those belonging to

subordinate judicial service, the High Court unquestionably

will be competent to decide whether a person is fit for

promotion and consistent with its decision to recommend or

not to recommend such person. The Governor who would be

acting on the advice of the Minister would hardly be in a

position to have intimate knowledge about the quality and

qualification of such person for promotion. Similarly when

a person is to be directly recruited as a District Judge

from the Bar the reasons for attaching full weight to the

opinion of the High Court for its recommendation in case of

subordinate judicial service would mutatis mutandis apply

because the performance of a member of the Bar is better

known to the High Court than the Minister or the Governor.

In Chandra Mohan v. State of Uttar Pradesh (1967) 1 SCR 77

at p.83 (AIR 1966 SC 1987), a Constitution Bench of this

Court observed as under:

"The constitutional mandate is clear. The exercise of

the power of appointment by the Governor is conditioned by

his consultation with the High Court, that is to say, he can

only appoint a person to the post of District Judge in

consultation with the High Court. The object of

consultation is apparent. The High Court is expected to

know better than the Governor in regard to the suitability

or otherwise of a person, belonging either to the 'judicial

service' or to the Bar, to be appointed as a District Judge.

Therefore, a duty is enjoined on the Governor to make the

appointment in consultation with a body which is the

appropriate authority to give advice to him."

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This view was reaffirmed in Chandramouleshwar Prasad

v. Patna High Court (1970) 2 SCR 666: (AIR 1970 SC 270),

observing:

"The High Court is the body which is intimately

familiar with the efficiency and quality of officers who are

fit to be promoted as District Judges. The High Court alone

knows their merits as also demerits."

It was further held that in the absence of statutory

rules regulating the promotions from one post in subordinate

judicial service to higher post in the same service, the

High Court would be the sole authority to decide the

question in exercise of its control under Article 235 which

empowers the High Court with complete control over the

subordinate courts. The existence of this control

comprehends the power to decide eligibility for promotion

from one post in the subordinate judicial service to higher

post in the same service except where one reaches the stage

of giving promotion when Article 233 would be attracted and

the power to give promotion would be in Governor hedged in

with the condition that the Governor can act after

consultation with the High Court which has been understood

to mean on the recommendation of the High Court. If the

High Court felt that the post of District Judge being a very

responsible post should be filled up by promotion only on

merits, it is incumbent upon it to propose necessary rules

and get them enacted under Article 309. In Chandra Mohan

vs. State of Uttar Pradesh & Ors. [1967 (1) SCR 77] this

Court held that the Constitution contemplates an independent

judiciary in the States and in order to place the

independence of the subordinate judiciary beyond question,

provides, in Article 50 of the Directive Principles for the

separation of the judiciary from the executive and secures

such independence by enacting Articles 233 to 237 in Chapter

VI of the Constitution. Under these Articles the

appointment of the District Judges in any State are to be

made by the Governor of the State, from the two sources,

namely, : (i) service of the Union or of the State and (ii)

members of the Bar. The words "service of the Union or of

the State" do not mean any other service of the Union or the

State except the judicial service as defined in Article

236(b) of the Constitution. This Court specifically held:

"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. There are two sources of

recruitment, namely, (i) service of the Union or of the

State, and (ii) members of the Bar. The said judges from

the first source are appointed in consultation with the High

Court and those from the second source are appointed on the

recommendation of the High Court. But in the case of

appointments of persons to the judicial service other than

as district judges, they will be made by the Governor of the

State in accordance with rules framed by him in consultation

with the High Court and the Public Service Commission. But

the High Court has control over all the district courts and

courts subordinate thereto, subject to certain prescribed

limitations.

So far there is no dispute. But the real conflict

rests on the question whether the Governor can appoint as

district judges persons from services other than the

judicial service; that is to say, can he appoint a person

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who is in the police, excise, revenue or such other service

as a district judge? The acceptance of this position would

take us back to the pre-independence days and that too to

the conditions prevailing in the Princely States. In the

Princely States one used to come across appointments to the

judicial service from police and other departments. This

would also cut across the well-knit scheme of the

Constitution and the principle underlying it, namely, the

judiciary shall be an independent service. Doubtless, if

Art.233(1) stood alone, it may be argued that the Governor

may appoint any person as a district judge, whether legally

qualified or not, if he belongs to any service under the

State. But Art.233(1) is nothing more than a declaration of

the general power of the Governor in the matter of

appointment of district judges. It does not lay down the

qualifications of the candidates to be appointed or denote

the sources from which the recruitment has to be made. But

the sources of recruitment are indicated in cl.(2) thereof.

Under cl.(2) of Art.233 two sources are given, namely, (i)

persons in the service of the Union or of the State, and

(ii) advocate or pleader. Can it be said that in the

context of Ch.VI of Part VI of the Constitution, 'the

service of the Union or of the State' means any service of

the Union or of the State or does it mean the judicial

service of the Union or of the State? The setting, viz.,

the chapter dealing with subordinate courts, in which the

expression the service appears indicates that the service

mentioned therein is the service pertaining to courts. That

apart, Art.236(b) defines the expression judicial service

to mean a service consisting exclusively of persons intended

to fill the post of district judge and other civil judicial

posts inferior to the post of district judge. If this

definition, instead of appearing in Art.236, is placed as a

clause before Art.233(2), there cannot be any dispute that

'the service' in Art.233(2) can only mean the judicial

service. The circumstances that the definition of 'judicial

service' finds a place in a subsequent Article does not

necessarily lead to a contrary conclusion. The fact that in

Art.233(2) the expression 'the service' is used whereas in

Art.234 and 235 the expression 'judicial service' is found

is not decisive of the question whether the expression 'the

service' in Art.233(2) must be something other than the

judicial service, for, the entire chapter is dealing with

the judicial service. The definition is exhaustive of the

service. Two expressions in the definition bring out the

idea that the judicial service consists of hierarchy of

judicial officers starting from the lowest and ending with

district judges. The expressions 'exclusively' and

'intended' emphasise the fact that the judicial service

consists only of persons intended to fill up the posts of

district judges and other civil judicial posts and that is

the exclusive service of judicial officers. Having defined

'judicial service' in exclusive terms, having provided for

appointments to that service and having entrusted the

control of the said service to the care of the High Court,

the makers of the world Constitution not have conferred a

blanket power on the Governor to appoint any person from any

service as a district judge.

Reliance is placed upon the decision of this court in

Rameshwar Dayal v. State of Punjab (1961) 2 SCR 874 in

support of the contention that the service in Art.233(2)

means any service under the State. The question in that

case was, whether a person whose name was on the roll of

advocates of the East Punjab High Court could be appointed

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as a district judge. In the course of the judgment S.K.

Das, J., speaking for the Court, observed:

"Article 233 is a self contained provision regarding

the appointment of District Judges. As to a person who is

already in the service of the Union or of the State, no

special qualifications are laid down and under cl.(1) the

Governor can appoint such a person as a district judge in

consultation with the relevant High Court. As to a person

not already in service, a qualification is laid down in

cl.(2) and all that is required is that he should be an

advocate or pleader of seven years standing."

This passage is nothing more than a summary of the

relevant provisions. The question whether the service in

Art.233(2) is any service of the Union or of the State did

not arise for consideration in that case nor did the Court

express any opinion thereon.

We, therefore, construe the expression the service

in cl.(2) of Art.233 as the judicial service."

There is no dispute that the power under Article 309

conferred upon the legislature and the executive is subject

to the opening words of the Article. The legislature and

the executive cannot enact any law or make any rule which is

in violation of any other provision of the Constitution. If

any law or rule is made contravening any other provision of

the Constitution including Articles 14, 15, 16, 19, 124,

217, 233, 234, and 235, such law or rule shall be void.

This Article, however, does not debar the legislature or the

executive to make provision with respect to the matters

which are not in the covered field of other provisions of

the Constitution. Various provisions of the Constitution

including Part III Chapter VI, Part XIV Chapter I and Part

XI Chapter I read with Seventh Schedule are to be read

conjointly and interpreted harmoniously to make the various

organs of the State function in their respective fields

subject to limitations imposed by the Constitution itself

including the power of the courts of judicial review. It

cannot, therefore, be accepted that the judicial service is

such an independent service which deprives the State

Legislature and the executive to enact laws and make rules

with respect to matters mentioned in Article 309 but not

covered under Articles 233 to 236 of the Constitution. The

provisions of Part III Chapter VI and Part XIV Chapter I

have to be understood as complementary and supplementary to

each other. Exercise of power under Article 309 is further

curtailed by the constitutional mandate that no law be

enacted and rule made which in any way affects the working

of independent judiciary in the country. Such principles

shall, however, be not applicable in the case of higher

judiciary constituted and established under Part V Chapter

IV and Part VI Chapter V. The Supreme Court of India and

the High Courts in the country are the creation of the

Constitution and the judges presiding over such courts,

constitutional functionaries. The higher judiciary,

therefore, cannot be equated with the "public services"

contemplated under Part XIV Chapter I of the Constitution.

The conditions of eligibility for appointment to the Supreme

Court are such conditions as are prescribed under Article

124 of the Constitution and for the High Court as prescribed

under Article 217 of the Constitution. These conditions, if

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allowed to be amended, modified or substituted by way of

legislation in terms of Article 309 of the Constitution,

would render the Union and the State judiciary defunct

which, may amount to clipping its wings resulting in the

destruction of independence of the higher judiciary as

contemplated by the Constitution framers. The conditions

for appointment of judges to the Supreme Court and the High

Courts may not be amendable even by a constitutional

amendment as the same is likely to tamper with the Indian

judiciary and thereby adversely affect the basic features of

the Constitution. The Constitution envisages a single

judiciary, uniformity in Fundamental laws, civil and

criminal, and a common All India Service to man important

posts. Speaking on the nature of the constitutional scheme

Dr.Ambedkar in his speech delivered on November 4, 1948 in

the Constituent Assembly had said: "A dual judiciary, a

duality of legal codes and a duality of civil services, as I

said, are the logical consequences of a dual polity which is

inherent in a federation. In the USA, the Federal Judiciary

and the State Judiciary are separate and independent of each

other. The Indian Federation though a Dual Policy has no

Dual Judiciary at all. The High Courts and the Supreme

Court form one single integrated Judiciary having

jurisdiction and providing remedies in all cases arising

under the constitutional law, the civil law or the criminal

law. (Constitutent Assembly Debates. Vol.7 (1948-49) at

pp.34,36-37)."

This Court in S.P. Gupta's case (Supra) held that:

"An analysis of the various provisions of the Constitution

and other laws having a bearing on the question shows that

every High Court in India is an integral part of a single

Indian judiciary and judges who hold the posts of judges of

High Courts belong to a single family even though there may

be a slight variation in two of the authorities who are

required to be consulted at the time of the appointment.

The provisions dealing with the High Courts are found in

Chapter V in Part VI of the Constitution containing

provisions governing the States and the salaries of the

judges of a High Court are paid out of the funds of the

State or States over which it exercises jurisdiction. Yet

it is difficult to say that each High Court is independent

of the other High Courts. A perusal of the other provisions

in that Chapter shows that the State Legislatures and the

State Governments have very little to do so far as the

organisation of the High Courts is concerned."

Judges of the High Court do not constitute a single

All India Cadre or a 'judicial service' which could be

subjected to the Legislature in terms of Article 309 of the

Constitution. While dealing with the High Court Judges

Transfer case, Bhagwati, J. (as His Lordship then was) held

that: "....the judiciary should be in a country like India

which is marching along the road to social justice with the

banner of democracy and the rule of law, for the principle

of independence of the judiciary is not an abstract

conception but it is a living faith which must derive its

inspiration from the constitutional charter and its

nourishment and sustenance from the constitutional values.

It is necessary for every Judge to remember constantly and

continually that our Constitution is not a non-aligned

rational charter. It is a document of social revolution

which casts an obligation on every instrumentality including

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the judiciary, which is a separate but equal branch of the

State, to transform the status quo ante into a new human

order in which justice, social, economic and political will

inform all institutions of national life and there will be

equality of status and opportunity for all. The judiciary

has, therefore, a socio- economic destination and a creative

function. It has to use the words of Glanville Austin, to

become an arm of the socio-economic revolution and perform

an active role calculated to bring social justice within the

reach of the common man. It cannot remain content to act

merely as an umpire but it must be functionally involved in

the goal of socio-economic justice". In these appeals, even

the learned counsel appearing on behalf of the appellants

has not tried to compare or equate the subordinate judiciary

with the distinct and independent higher judiciary

comprising of the judges of Supreme Court and the High

Courts. The apprehension expressed on behalf of the

respondents that if allowed to enact laws like the impugned

Bihar Act, the Union Legislature may by law or amendment of

the Constitution provide reservations in the higher

judiciary with the object of controlling it and thereby

demolishing the independence of judicary, is thus apparently

misconceived besides being far-fetched. In the present

appeals, it is conceded before us by all the parties

concerned that appointments to the posts of District Judges

are governed by the Bihar Superior Judicial Service Rules,

1951 (hereinafter referred to as "1951 Rules") which have,

admittedly, been made by the Governor of Bihar in exercise

of powers conferred upon him by the proviso to Article 309

read with Article 233 of the Constitution. Reference to

Article 233 of the Constitution only indicates that before

making the rules the High Court had been consulted. Article

233 of the Constitution itself does not envisage the making

of rules either by the Governor or by the High Court. Rule

5 of the 1951 Rules provides that appointment to the Bihar

Superior Judicial Service shall, in the first instance,

ordinarily be to the post of Additional District & Sessions

Judge and shall be made by the Governor in consultation with

the High Court: "(a) by direct recruitment from among

persons qualified and recommended by the High Court for

appointment under clause (2) of Article 233 of the

Constitution; or

(b) by promotion, from among members of the Bihar

Judicial Service."

Of the Posts in the cadre of the service, 2/3rd are to

be filled by promotion and 1/3rd by direct recruitment. The

State Government may, in consultation with the High Court,

deviate from the said proportion in either direction. Rule

3 read with Schedule provides the sanctioned strength of the

service whereas other provisions relate to promotion, pay,

allowances and seniority. There is no dispute that these

rules have been and are being acted upon till date i.e. for

about half a century. The High Court was, therefore, not

justified in holding that the law made under Article 309

would not apply to the judicial service. If the rules made

by the executive under Article 309 have been applied and

acted upon, no objection could be taken to the sovereign

powers of the legislature to enact and make laws with

respect to the judicial service in exercise of its power

under first part of Article 309 of the Constitution. It is

also admitted that for appointments to the posts in the

judicial service other than the District Judges, the State

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Governor, in exercise of his powers conferred upon him under

Article 234 of the Constitution, after consultation with the

High Court of Judicature at Patna and the Bihar Public

Service Commission has made the rules called as "Bihar

Judicial Service (Recruitment) Rules, 1955" (hereinafter

referred to as "1955 Rules"). Rule 2 of the said Rules

provides that the recruitment to the post of munsiff shall

be made in accordance with the rules and recruitment to the

post of subordinate judge shall be made by the High Court by

promotion of munsiffs confirmed under Rule 24 and appointed

under Rule 26. Rule 3 authorises the Governor to decide in

each year the number of vacancies in the post of munsiff to

be filled by appointments to be made on a substantive basis

or on a temporary basis or both. The Bihar Public Service

Commission is obliged to announce in each year in such

manner as they think fit the number of vacancies to be

filled in that year by direct recruitment on the basis of a

competitive examination for which applications are required

to be invited from candidates eligible for appointments

under the rules. The Commission has the power to fix the

limit in any particular year as to the eligibility of the

candidates to be admitted to the written examination and if

the number of candidates exceeds to the limit fixed, the

Commission may make a preliminary selection of candidates to

be admitted to the written examination, on the basis of

their academic records. No candidate of the Scheduled

Castes or the Scheduled Tribes who is otherwise eligible

under the Rules can be excluded from appearing at the

written examination. Rules 6 provides: "6. A candidate

may be of either sex, and must - (a) be under 31 years and

over 22 years of age on the 1st day of August preceding the

year in which the examination is held:

Provided that a candidate belonging to a Scheduled

Caste or a Scheduled Tribe must be under 36 years and over

22 years of age on the said date:

Provided further that no candidate who does not belong

to a Scheduled Caste or a Scheduled Tribe shall be allowed

to take more than five chances at the examination;

(b) be a graduate in Law of a University recognised by

the Governor or a Barrister-at-Law or a member of the

faculty of advocates in Scotland, or an Attorney on the

rolls of a High Court, or possess other educational

qualifications which the Governor may, after consultation

with the High Court and the Commissions, decide to be

equivalent to those prescribed above; and

(c) be a practitioner at the Bar of at least one

years continuous standing on the date of the

advertisement."

Rule 6A provides that no person who has more than one

wife living shall be eligible for appointment to the

service. Rule 7 provides that a candidate must be of sound

health, good physique and active habits and free from any

physical defect likely to interfere with the efficient

performance of the duties of a member of the Service. With

his application a candidate is required to submit the

required documents as detailed in Rule 9. The examination

is to be held according to syllabus specified in Appendix C

to the Rules which are liable to alteration from time to

time by the Government after consultation with the High

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Court and the Commission. The Commission has the discretion

to fix the qualifying marks in any or all subjects at the

written examination in consultation with the Patna High

Court. The minimum qualifying marks for candidates

belonging to Scheduled Castes and Scheduled Tribes shall not

be higher than 35 per cent unless the number of such persons

at the written examination according to the standards

applied for other candidates is considerably in excess of

the number of candidates required to fill the vacancies

reserved for the Scheduled Casts and the Scheduled Tribes.

the Commission is obliged to consult the Chief Justice of

the High Court in the matter of selection of examiners for

the Law papers prescribed for the written examination.

Viva-voce test of the candidates is to be held under Rule

17. The Chief Justice is authorised to appoint an officer

to represent the High Court at the viva-voce test. Rule 20

provides that Commission shall, while submitting the

recommendations, consider the claims of qualified candidates

belonging to the Scheduled Castes and the Scheduled Tribes.

If the list of nominees submitted under Rule 19 does not

contain an adequate number of candidates belonging to the

Scheduled Castes and the Scheduled Tribes, the Commission

shall submit a supplementary list nominating a sufficient

number of such candidates as in their opinion attain the

required standard of qualifications and are in all respect

suitable for appointment to the service. It has been

conceded before us that to give effect to Rule 20 of the

Rules, the Commission and the High Court have been acting

upon the Government orders issued from time to time making

reservations to the extent of 24% in favour of the Scheduled

Castes and the Scheduled Tribes. It is undisputed that the

1955 Rules were made strictly in accordance with the

requirement of Article 234 of the Constitution after proper

consultation with the High Court and the Public Service

Commission. It appears that the controversy arose only when

the State Government insisted to make reservations in the

Superior Judicial Service which was vehemently resisted by

the High Court. The facts disclosed in the appeal entitled

State of Bihar vs. Deepak Singh & Ors. indicate that on

30.1.1991 the State Government consented the High Court and

Bihar Public Service Commission regarding making

reservations in the judicial service. The Public Service

Commission vide its letter No. 112 dated 30.1.1991

communicated its consent regarding the proposed amendment in

the Bihar Judicial Service (Recruitment) Rules, 1955.

However, the High Court vide Memo No.5999 dated 16.4.1991

informed the Government that "the court, in the interests of

judiciary, is unable to agree to the proposal of the State

Government". The aforesaid letters exchanged between the

State Government, High Court and Public Service Commission

obviously indicate that the State Government had intended to

amend the rules already framed in exercise of the powers

vesting in the Governor under Article 234 of the

Constitution. In view of the resistance of the High Court,

being one of the consultees in terms of Article 234, the

State of Bihar opted to promulgate an Ordinance called "The

Bihar Reservation of Vacancies in Posts and Services (for

Scheduled Castes and Scheduled Tribes and Other Backward

Classes) Ordinance,1991" under Article 213 of the

Constitution. The aforesaid Ordinance was thereafter

substituted by the Bihar Act No.3 of 1992 which was enforced

with immediate effect except Section 4 which was declared to

have come into force with effect from 1st November, 1994.

The Reservation Ordinance was challenged in C.W.J.C.

No.7619/91. The validity of letter dated 1.10.1990 whereby

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directions were issued to the effect that the vacancies of

24th Judicial Competitive Examination shall be filled in

accordance with the said Ordinance were also challenged.

During the pendency of the aforesaid writ petition, the

Ordinance was replaced by an Act No.3 of 1992. The High

Court allowed the writ petition vide the order impugned in

this appeal holding that the impugned Ordinance/Act as also

the letter dated 1.10.1990. In so far as its applicability

to the State is concerned, it was ultra vires and contrary

to the mandate of Article 234 of the Constitution.

Similarly the facts revealed in Civil Appeal No.9072/96

indicate that when on 13.10.1993 the State Government

decided to fill up the vacancies of Additional District

Judges through fresh advertisement as per directions, the

State Government on 16.11.1993 requested the High Court to

send the vacancies categorywise in accordance with the

provisions of Act of 1991. On 16.12.1993 the High Court

informed the State Government that fresh advertisement be

issued under Rule 5(a) and 6 of the 1951 Rules. It was

further recommended that for eligibility the minimum age of

the applicants be 35 years and maximum 50 year. The

Government was further informed by the High Court that the

1991 Act will neither be applicable nor followed in the

matter of direct recruitment from the Bar. No preference be

given to any person on the basis of caste, religion and sex.

On 4.1.1994 the High Court was informed by the Government

that the provisions of the Act of 1991 will also be

applicable to the appointments in the Superior Judicial

Service in the State of Bihar. The High Court was requested

to send the vacancies reservation- wise. On 25.2.1994, the

High Level Meeting under the Chairmanship of the Chief

Secretary to the Government of Bihar was held in which the

Secretary (Law) and Registrar of the High Court also

participated. In this meeting a request was made to the

High Court to send upto date vacancies in accordance with

the Reservation Act as the non compliance was apprehended to

lead to an offence under the Act. The High Court on 5th

April, 1994 reiterated its position and vide it letter

addressed to the Additional Secretary to the Government of

Bihar intimated: "With reference to your above mentioned

letter on the subject noted above, I am directed to say that

the State Government has already been informed about the

resolution adopted by the Court that in the matter of

appointment of Additional District and Sessions Judge direct

from the Bar, merit would be the sole criteria and no

preference will be given to any candidate on the basis of

caste, religion or sex. The resolution adopted by the Court

does further state that without accepting the provision of

the Bihar Reservation of Vacancy in Posts and Services (for

Scheduled Castes/Scheduled Tribes and other Backward

Classes) Act, 1991, the Court are always prepared to give

preference to a candidate belonging to the Scheduled Caste

or Scheduled Tribe, provided that he is found to be of equal

merit with other candidates.

It needs to be appreciated that the post of Additional

District and Sessions Judge, in the Superior Judicial

Service, carries with it a greater responsibility in the

matter of administration of justice. The post demands that

the holder of the post should be a person of appreciable

merit and requisite calibre to perform the functions of a

Senior Judicial Officer."

On 1.9.1994, the High Court again intimated to the

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State Government of its position. It is to be noticed that

before this date the State Government had issued

advertisement on 16.6.1994 inviting applications for

recruitment of Additional District and Sessions Judge from

the Bar reserving post for the Scheduled Castes and

Scheduled Tribes, backward classes, etc. to the extent of

the limits prescribed under the Reservation Act. Aggrieved

by the advertisement/notification respondents Advocates

filed the writ petition seeking a declaration that the

provisions of the Reservation Act were void and inoperative

insofar as they relate to the Bihar Superior Judicial

Service. The aforesaid writ petition was disposed of vide

the judgment impugned in this appeal. It is thus evident

that having failed to get the consent of the High Court in

framing the Rules either under Article 234 or Article 309

read with Article 233 of the Constitution, resort was had to

the issuance of Ordinance and thereafter enacting the

impugned Act. This unfortunate position arose on account of

the antagonistic and belligerent approaches adopted by the

State Government and the High Court. Had the aforesaid two

wings of the State acted fairly realising their obligations

under the Constitution, the confrontation could have been

avoided. Such a recourse was depricated by this Court in

B.S. Yadavs case (supra) observing "this unfortunate

position has arisen largely because of the failure of the

State Governments to take the High Court into confidence

while amending the Rules of Service. We must express our

concern at the manner in which the Rules of the Superior

Judicial Service have been amended by the Governor of Punjab

and particularly by the Governor of Haryana". In that case

the Rules had been amended despite the opposition of the

High Court and amendment in Haryana was made in order to

spite a single judicial officer who was a direct recruit.

Both the State Government and the Patna High Court failed to

realise their constitutional obligations in the matter of

public service. The insistence of the State Government

could have been substituted by persuations and antagonism by

the High Court could have been avoided by adopting rational

approach realising the responsibility of the State of the

constitutional obligations mandating them to make

reservations in favour of the weaker sections of the

society. It cannot be denied that the Reservation Policy

has been accepted to be a part of the Indian Parliamentary

Democracy as a safeguarding measure to protect the interests

of the Scheduled Castes and Scheduled Tribes. Reservations

have been made in the Constitution to safeguard the

interests of Scheduled Castes and Scheduled Tribes keeping

in mind the proportions of their population. It cannot be

denied that such weaker sections of the society have been

subjected to decades of exploitation, persecution and

discrimination by the hostile dominating classes, having

been kept outside the sphere of the mainstream for centuries

and deprived of their due share in the polity of the State.

They were acknowledged to be given a special treatment under

the Constitution. The reservation on the basis of the caste

has a long history in our country. Good or bad the

reservation being the part of the Constitution, the High

Court should not have adopted an adamant attitude of totally

refusing to concede to the request of the State Government

for making reservations for the weaker sections of the

society. The hostility between two wings of the State have

not, in any way, strengthened the democratic set up nor has

it benefitted any section of the Society or institution. It

is to be noticed that the reservations made by the impugned

Act were not challenged on the ground of being either

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violative of Fundamental Rights or contrary to the other

provisions of the Constitution, except to the extent noticed

hereinabove. Relying upon judgment in K.N. Chandra Sekhara

& Ors.v. State of Mysore (AIR 1963 Mysore 292) and M.I.

Nadaf vs. The State of Mysore (AIR 1967 Mysore 77) the High

Court vide the order impugned in Deepak Kumars case held:

"Article 234 directs the appointment of persons to certain

cadres of the judicial service of the State only in

accordance with the Rules made under that Article and which

appoints the Governor of the State, the authority to make

these rules after consultation with the High Court and the

Public Service Commission. It is manifest from Article 234

of the Constitution that the constitutional intent was that

appointments to the judicial services in a State, unlike

other State services, should be regulated only by rules made

under that Article and not by a law made by the Legislature

of the State, which was conferred power by Article 309 to

make laws for recruitment to other services. The judicial

service was selected for special treatment and appointments

to it were excepted out of the operation of Article 309, and

out of the orbit of ordinary Legislative Control. Article

234 incorporates a command of the Constitution on the

subject of appointments to the cadres of the judicial

service referred to in it and constitutes the Governor in a

sense a select Legislative organ for the enactment of rules

for the accomplishment of the Constitutional purpose. The

status of the rules so enacted is as high as that of a law

made by the Legislature under Article 309 and of the rules

made under the proviso to it. The attributes of a Governor

to enact rules under Article 234 therefore resemble those of

a Legislature enacting legislation in its own legislative

field. The similitude between the power of the Legislature

and the power of the Governor being so obvious, it is clear

that the bounds of permissible delegation in each case

should also be similar."

It cannot be disputed that the judicial service has

been given a special treatment under the Constitution and

the appointments to the judicial service can be made only in

accordance with the rules made by the Governor under Article

234 after consultation with the State Public Service

Commission and the High Court exercising jurisdiction in

relation to such State. It follows, therefore, that the

Governor or the executive have no right, power or authority

to make rules with respect to the recruitment of persons

other than the District Judges to the judicial service of

the State under Article 309 of the Constitution. Rules

governing the service conditions of such persons in the

judicial service can be made by the Governor only in the

manner as prescribed under Article 234 of the Constitution.

It is, however, difficult to accept the finding of the High

Court that the status of the Rules enacted under Article 234

of the Constitution is as high as that of law made by the

legislature under Article 309. It cannot be accepted that

the attributes of a Governor to enact Rules under Article

234 resemble those of a legislature enacting legislation in

its own legislative field and have overriding effect. The

power of the legislature to make law regulating the

recruitment and conditions of service for persons appointed

to public services and posts in connection with the affairs

of Union or of any State under Article 309 of the

Constitution is only subject to the other provisions of

Constitution which have been noticed hereinbefore. Rules

made under the delegated legislation cannot be termed to be

such other provisions of the Constitution. It is not only

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Article 234 which confers power upon the Governor to make

Rules in the manner prescribed but various other provisions

including Article 309 which authorise him to make rules for

the purposes envisaged and the restrictions and restraints

imposed by the Constitution itself. It is settled position

of law that the Legislature cannot part with its essential

legislative function. A surrender of such essential

function would amount to abdication of legislative powers in

the eyes of law. No rule or law made by virtue of delegated

legislation can supersede or override the powers exercised

or the law made by the delegator of power, the sovereign

legislative, in exercise of its constitutional right with

respect to a matter or subject over which it has otherwise

plenary power of legislation. In Re: Article 143,

Constitution of India and Delhi Laws Act (1912) etc. [AIR

1951 SC 332], Kania, CJ, after dealing with various cases of

foreign courts found that the Indian Legislature had plenary

powers to legislate on the subjects falling within its

powers under the Constitution. He further observed, "every

power given to a delegate can be normally called back.

There can hardly be a case where this cannot be done because

the legislative body which confers powers on the delegate

has always the power to revoke that authority and it appears

difficult to visualise a situation in which such power can

be irrevocably lost". Referring to the constitutional

scheme in this country, Kania, CJ held: "Under the new

Constitution of 1950, the British Parliament, i.e. an

outside authority, has no more control over the Indian

Legislature. That Legislatures powers are defined and

controlled and the limitations thereon prescribed only by

the Constitution of India. But the scope of its legislative

power has not become enlarged by the provisions found in the

Constitution of India. While the Constitution creates the

Parliament and although it does not in terms expressly vest

the legislative powers in the Parliament exclusively, the

whole scheme of the Constitution is based on the concept

that the legislative functions of the Union will be

discharged by the Parliament and by no other body. The

essential of the legislative functions, viz., the

determination of the legislative policy and its formulation

as a rule of conduct, are still in the Parliament or the

State Legislature, as the case may be and nowhere else. I

take that view because of the provisions of Article 357 and

Article 22(4) of the Constitution of India. Article 356

provides against the contingency of the failure of the

constitutional machinery in the States. On a proclamation

to that effect being issued, it is provided in Article

357(a) that the power of the legislature of the State shall

be exercisable by or under the authority of the Parliament,

and it shall be competent for the Parliament to confer on

the President the power of the legislature of the State to

make laws "and to authorise the President to delegate,

subject to such conditions as he may think fit to impose,

the powers so conferred to any other authority to be

specified by him in that behalf." Sub-clause (2) runs as

follows:

"For Parliament or for the President or other

authority in whom such authority to make law conferring

powers and imposing duties, or authorising the conferring of

powers and the imposition of duties, upon the Union or

officers and authorities thereof."

It was contended that on the breakdown of such

machinery authority had to be given to the Parliament or the

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President, firstly, to make laws in respect of subjects on

which the State Legislature alone could otherwise make laws

and, secondly, to empower the Parliament or the President to

make the executive officers of the State Government to act

in accordance with the laws which the Parliament or the

President may pass in such emergency. It was argued that

for this purpose the word 'to delegate' is used. I do not

think this argument is sound. Sub-clause (2) relates to the

power of the President to use the State executive offices.

But under clause (a) Parliament is given power to confer on

the President the power of the 'legislature' of the State

'to make laws'. Article 357(1)(a) thus expressly gives

power to the Parliament to authorise the President 'to

delegate his legislative powers'. If powers of legislation

include the power of delegation to any authority there was

no occasion to make this additional provisions in the

Article at all. The wording of this clause therefore

supports the contention that normally a power of legislation

does not include the power of delegation."

Fazal Ali, J. on the point relating to the functions

of the Legislature and its authority to delegate held: "The

legislature must normally discharge its primary legislative

function itself and not through others (2) Once it is

established that it has sovereign powers within a certain

sphere, it must follow as a corollary that it is free to

legislate within that sphere in any way which appears to it

to be the best way to give effect to its intention and

policy in making a particular law, and that it may utilize

any outside agency to any extent it finds necessary for

doing things which it is unable to do itself or finds it

inconvenient to do. In other words, it can do everything

which is ancillary to and necessary for the full and

effective exercise of its power of legislation. (3) It

cannot abdicate its legislative functions, and therefore,

while entrusting power to an outside agency, it must see

that such agency acts as a subordinate authority and does

not become a parallel legislature. (4) The doctrine of

separation of powers and the judicial interpretation it has

received in America ever since the American Constitution was

framed, enables the American courts to check undue and

excessive delegation but the Courts of this country are not

committed to that doctrine and cannot apply it in the same

way as it has been applied in America. Therefore, there are

only two main checks in this country on the power of the

legislature to delegate, these being its good sense and the

principle that it should not cross the line beyond which

delegation amounts to abdication and self-effacement'."

Mahajan, J. was of the view that the Parliament being

omnipotent despot, apart from being a legislature

simpliciter, it can, in exercise of its sovereign power

delegate its legislative functions or even create new bodies

conferring on them power to make laws. Whether it exercises

its power of delegation of legislative power in its capacity

as a mere legislature or in its capacity as omnipotent

despot, its actions were not subject to judicial scrutiny.

In the same case Mukherjea, J. held that the legislature

cannot part with its essential legislative function. A

surrender of this essential function would amount to

abdication of its power in the eyes of law. In Hotel Balaji

& Ors., etc. etc. vs. State of Andhra Pradesh & Ors.,

etc. etc. [AIR 1993 SC 1048] this Court held that

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legislative competence of a legislature to enact a

particular provision in the Act cannot be made to depend

upon the rule or rules, as the case may be, at a given point

of time. Conferment of power upon the Governor to make

rules in the manner prescribed under Article 234 of the

Constitution cannot be interpreted to mean that the

constitutional makers had intended to take away the power of

the legislature, admittedly, conferred upon it under Part XI

Chapter I read with Seventh Schedule of the Constitution.

Such an interpretation, if accepted, would be contrary to

the settled principles relating to interpretation of

Statutes. Whereas it is true that the Governor of a State

cannot make rules with respect to subjects covered by

Article 234 in any other manner, (Article 309) it cannot,

however, be accepted that such power of the Governor can be

equated with the sovereign power of the legislature to make

laws with respect to the assigned field. Law making power

of the legislature with respect to judicial service without

encroaching upon the subjects covered by Article 233 to 236

has impliedly been acknowledged by this Court in B.S.

Yadavs Case (supra). The High Court of Mysore in K.N.

Chandra Sekhars case (supra) while referring to Articles

233 and 309 had made certain observations which have been

relied upon by Patna High Court in the impugned judgment.

In that case the High Court of Mysore in fact was not called

upon to decide the issue of the finality of the rules made

under Article 234 of the Constitution in relation to a law

made under Article 309. In the case before Mysore High

Court, the dispute had arisen with respect to the

appointments to the posts of munsiffs in judicial service of

the State of Mysore. The Public Service Commission of the

State conducted a competitive examination under the rules

made for the purposes by the Governor of the State under

Article 234 and proviso to Article 309 of the Constitution.

The candidates who took the examination but did not succeed

challenged the notification of the Public Service Commission

on the ground of its being without lawful authority. The

notification of the Public Service Commission was impeached

on the ground that since the rules did not prescribe the

criterion by which the success of candidates should be

determined, there was no criterion by which the Commission

could have determined whether a candidate has succeeded or

failed and it was not upon the Commission to prescribe for

itself a criterion not found in the rules. The Commission

had applied a formula for ascertaining the names of the

successful candidates by fixing 45% as qualifying marks for

the candidates belonging to Scheduled Caste and Scheduled

Tribes and 55% for others. It was further claimed that

power of the Governor to fix the qualifying marks was

impliedly delegated to the Commission. In that context the

High Court examined Article 234 of the Constitution and

observed: "It is reasonably clear that the purpose of

Article 234 is that the collective wisdom of the Governor,

the High Court and the Public Service Commission should

regulate appointments referred to in that article, and it is

plain that no rule made without the required consultation

can have any effect or potency. It is obvious that within

the range of the many matters requiring such collective

deliberation would fall a multitude of subjects such as the

determination of the question whether the appointments

should be made on the basis of an examination, and if so, of

what pattern, the selection of the subjects in which the

candidates should be examined, the determination of the

qualifying and maximum marks, the appointment of the

authority to conduct the examination, the qualifications and

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disqualifications of the candidates and the like."

It further held:

"If, on its true construction, Art.234 does not

require that standard to be specified or formulated by a

rule, then alone, could it be said that the Governor could

delegate that function to another. That article is a

special constitutional provision removing from the

provisions of Art.309 certain appointments to the judiciary

and enjoining the Governor to make them in accordance with

rules enacted in consultation with the High Court and the

Public Service Commission. What are the matters about which

the Governor is required to consult the High Court and the

Public Service Commission. The Public Service Commission,

it is obvious, was required to be consulted in regard to

matters in which it had special competence to offer advice.

The High Court was required to be consulted so that its

advice may be obtained as to how and in what manner the

appointments to a service under its control may be

satisfactorily made."

It was conceded that there was no rule prescribing the

qualifying marks. Nor was the power to determine those

qualifying marks expressly delegated to any legislative

authority. In that case the State had prayed for placing

the construction on Article 320(3) to the effect that the

clause did not require the Governor or the legislature

functioning under Article 309 of the Constitution to consult

the Public Service Commission for determination of the

qualifying marks and that it was open to the legislature or

the Governor, as the case may, to determine and fix those

qualifying marks without such consultation. The court found

that the provisions of Article 320(3) were so comprehensive

which did not admit the interpretation sought for. The

determination of qualifying marks was held to be an integral

part of scheme for an examination because the examination

was the method applied for recruitment for testing the

suitability of candidates to the judicial service. The

Court observed that "the construction suggested by

Mr.Advocate General which makes it possible for the

legislature or the Governor to decline to consult Public

Service Commission on the determination of the qualifying

marks and to that extent diminishes the utility of the

construction and makes it futile and illusory, cannot merit

acceptance". Consultation required under Article 234 was

held to extend to everyone of the matters on which Article

320(3) enjoined consultation. The qualifying marks secured

in a competitive examination prescribed by rules made under

Article 234 shall form the subject matter of consultation by

the governor with the High Court and the Public Service

Commission. While striking down the selection, the Court

held that it shall be open to the Governor to make

appropriate rule determining the qualifying marks and to the

Public Service Commission to conduct another viva-voce

examination in accordance with those Rules. No Act of

legislature made on the subject was in issue warranting

observations made in para 23 of the judgment. Otherwise

also while dealing with Chandra Shekar's case(supra) Brother

Majmudar,J. has rightly concluded: "Somnath Iyer, J.,

speaking for the Division Bench observed that: 'Article 234

excepts out of the operation of Art.309, appointments to

judicial service and constitutes the Governor in a sense a

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select legislative organ for enactment of rules for the

purpose'. The aforesaid observation will of course have to

be read down in the light of the Constitution Bench decision

of this Court in B.S. Yadav's case (supra)."

In M.I. Nadafs case(supra) relying on K.N. Chandra

Sekhars case the High Court of Mysore held that the Rules

framed by the Governor under Article 309 of the Constitution

could not override the Rules made by him under Article 234

of the Constitution. The petitioner in that case had relied

upon the Rules framed under proviso to Article 309 of the

Constitution dealing with recruitment generally for the

Mysore State Civil Services whereas specific Rules

pertaining to the judicial service had earlier been framed

under Article 234 of the Constitution. After referring to

K.N. Chandra Sekhars case the Court held: "From a reading

of that decision, it is clear that no rule relating to the

appointment of the persons mentioned in Article 234 of the

Constitution can be validly made by the Governor without

consulting either the High Court or the Public Service

Commission. As seen earlier, the Mysore Munsiffs

(Recruitment) Rules, 1958 prescribed the age limits for the

appointments of the Munsiffs. Rules therein were made by

the Governor under Article 234 of the Constitution in

consultation with the High Court and the Public Service

Commission. Any variation of that rule can only be made

under Article 234 and that in accordance with the

requirements of that Article. As seen earlier "Rules" do

not comply with the requirements of Article 234. That being

so, we are unable to accept the contention of Mr.Javali, the

learned counsel for the petitioner that the age

qualification prescribed under the Munsiffs (Recruitment)

Rules stood modified by rule 6(4)(b) of the "Rules". Our

view that appointments to judicial services of the State

other than that of the District Judges should be made only

in accordance with the rules made by the Governor under

Article 234 of the Constitution after consultation with the

State Public Service Commission and the High Court

exercising jurisdiction in relation to such State and not

under rules framed by him under Article 309 of the

Constitution is also supported by the decision of the Madras

High Court in N.Devasahayam v. State of Madras AIR 1958 Mad

53 and that of the Rajasthan High Court in Rajvi Amar Singh

v. State of Rajasthan AIR 1956 Raj. 104."

It is true that if there is a conflict between the

Rules framed under Article 234 of the Constitution and the

Rules made under Article 309, the latter Rules, in so far as

they relate to Subordinate Judiciary shall be ineffective

and not applicable. However, main Article 309 cannot be

made subject to the provisions of Article 234 except to the

extent indicated in Chapter VI. In other words, the

appropriate legislature would be competent to make laws if

authorised under Chapter XI read with Seventh Schedule of

the Constitution. In case of conflict between the Rules

made under Article 234 and the laws made by the appropriate

legislature, the Rules would give way to the laws made by

the sovereign legislature. Such law made, however, may be

declared invalid or inapplicable to the judicial service if

it in any way undermines the independence of judiciary or

otherwise encroaches upon the constitutional guarantees

under aforesaid Chapter VI or is violative of the

Fundamental Rights. Giving any other interpretation would

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amount to usurping the power of the sovereign legislature.

Such an approach would be nugatory to the concept of

Parliamentary Democracy adopted by the people of India for

their governance. There cannot be two opinions that the

Parliamentary Democracy is one of the basic features of the

Constitution which nobody can alter, modify or substitute

even in exercise of the constitutional powers conferred upon

the Parliament under Article 368 of the Constitution. The

High Court of Patna, therefore, fell in error in holding

that the law made by the sovereign legislature in exercise

of the powers vesting in it under Article 309 or Part XI

read with Seventh Scheduled of the Constitution was not

applicable to the judicial service of the State of Bihar.

From the scheme of the Constitution with particular

reference to Part VI, Chapter VI, Part XIV Chapter I, Part

XI Chapter I and Seventh Schedule of the Constitution what

emerges is that: (i) The constitutional-makers had given a

special status and treatment to the judicial service; (ii)

That the independence of judiciary is ensured which cannot

be interfered with either by an executive action or by an

act of legislature; (iii) That the conditions of service

spelt out in Chapter VI of the Constitution cannot be

altered, modified or substituted either by rule making power

or by legislation made in exercise of the powers under

Article 309 of the Constitution; (iv) Rules made under

Article 234 have primacy in the matter of

appointment/recruitment, discipline and control of the

judicial service and even such rules cannot take away from

persons belonging to the judicial service any right of

appeal which they may have under the law regulating the

conditions of their service or as authorising the High Court

to deal with them otherwise than in accordance with the

conditions of their service prescribed under such law; (v)

The provisions of Chapter VI of Part VI and the powers

conferred upon the appropriate legislature and the Governor

under Article 309 are complementary and supplementary to

each other subject to the conditions of ensuring the

independence of judiciary; (vi) That in case of conflict

between the rules made under Chapter VI and under Article

309, the rules specifically framed under Article 234 of the

Constitution would prevail and the rules made under Article

309, to that extent, shall give in their way; (vii) That

the Parliament or the State Legislature can legislate upon

any matter including the matters relating to the judicial

service provided the legislation is permitted under Part XI,

Chapter I read with Seventh Schedule and is not in conflict

with other provisions of the Constitution and rights

guaranteed in favour of the judicial service by the

Constitution itself under Part VI Chapter VI; (viii) Even

if any law made by the appropriate legislature is held to be

made with plenary power of legislation and not in conflict

with Part VI Chapter VI, being subject to Judicial Review,

it can be challenged if it violates the Fundamental Rights

or any other provision of the Constitution; ix) As in the

case of Rules made under Article 234 of the Constitution, it

is expected that if any rules are intended to be made by the

executive under Article 309 with respect to the judicial

service, the High Court shall be consulted and its views

given due weight while making such rules. It is needless to

say that in the process of consultation, the concerned High

Court shall keep in mind the constitutional obligations of

the State under Part III, Part IV or any other provision of

the Constitution. x) The conclusions enumerated hereinabove

are, however, not applicable to the higher judiciary

constituted and established under Part V Chapter IV and Part

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VI Chapter V of the Constitution. In view of the position

of law as enunciated hereinabove, the findings of the High

Court in the impugned judgment in so far as it holds that

the impugned Act is not applicable to the judicial service

cannot be sustained and is liable to be set aside.

Admittedly, the impugned Act has not been challenged on any

other ground. It is not the case of the respondent that the

Act is violative of any of the Fundamental Rights or in

violation of any constitutional provision or it tampers with

the independence of judiciary. The impugned Act does not in

any way usurp the power of the High Court to make

recommendations for appointment of District Judges and

direct promotions or appointment of persons other than

District Judges to the judicial service. After enacting the

law in accordance with the constitutional provisions, the

selection for appointment of the persons to the judicial

service has been left to the wisdom and at the discretion of

the High Court. The High Court has not in any way been

deprived of making the selection of the best available

candidates if they otherwise fulfil the eligibility criteria

and come within the parameters prescribed by law. Despite

the impugned Act, making reservations, the power of the High

Court in the matter of appointments has not been curtailed

as apprehended. Appointments on the basis of reservation

can be made of only such persons who are found eligible and

recommended by the High Court. The Governor or the

executive cannot appoint any person of their own from the

reserved categories. Once reservations are made, the High

Court is absolutely within its powers to fix the category

and suitability to make selection for recommendation. The

independence of judiciary has not, in any way, been taken

away by the exercise of legitimate powers by the

legislature. By exercise of its power the legislature does

not appear to have interfered with the overall control of

the High Court over the subordinate judiciary. Even though

the appropriate authority to make the appointments is the

Governor, yet the power of the High Court or the

independence of judiciary is not undermined because the

power to make the appointment conferred upon the Governor

has to be exercised by him in consultation with the High

Court. This Court in M.M. Gupta & Ors.v. State of J & K &

Ors. [AIR 1982 SC 1579], after referring to a catena of

authorities, concluded: "We are of the opinion that healthy

convention and proper norms should be evolved in the matter

of these appointments for safeguarding the independence of

the judiciary in conformity with the requirements of the

Constitution. We are of the opinion that normally, as a

matter of rule, recommendations made by High Court for the

appointment of a District Judge should be accepted by the

State Government and the Governor should act on the same.

If in any particular case, the State Government for good and

weighty reasons find it difficult to accept the

recommendations of the High Court, the State Government

should communicate its views to the High Court and the State

Government must have complete and effective consultation

with the High Court in the matter. There can be no doubt

that if the High Court is convinced that there are good

reasons for the objections on the part of the State

Government, the High Court will undoubtedly reconsider the

matter and the recommendations made by the High Court.

Efficient and proper judicial administration being the main

object of these appointments, there should be no difficulty

in arriving at a consensus as both the High Court and the

State Government must necessarily approach the question in a

detached manner for achieving the true objective of getting

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proper District Judges for due administration of justice."

This Court in Indra Sawhney & Ors. vs. Union of

India & Ors. [1992 Supp. (3) SCC 217] has held that

reservation is a remedy for historical discrimination and

its continuing ill-effects. Poverty demands affirmative

action. Its eradication is a constitutional mandate. The

purpose of Article 16(4) is to give adequate representation

in the services of the State to that class which has no

representation. This Articles carves out a particular class

of people and not individuals from the weaker sections and

the class it carves out is the one which does not have

adequate representation in the services of the State.

Pandian J., in his concurring but separate judgment had

observed: "Though 'equal protection' clause prohibits the

State from making unreasonable discrimination in providing

preferences and facilities for any section of its people,

nonetheless it requires the State to afford substantially

equal opportunities to those, placed unequally.

The basic policy of reservation is to off-set the

inequality and remove the manifest imbalance, the victims of

which for bygone generations lag far behind and demand

equality by special preferences and their strategies.

Therefore, a comprehensive methodological approach

encompassing jurisprudential, comparative, historical and

anthropological conditions is necessary. Such

considerations raise controversial issues transcending the

routine legal exercise because certain social groups who are

inherently unequal and who have fallen victims of

discrimination require compensatory treatment. Needless to

emphasise that equality in fact or substantive equality

involves the necessity of beneficial treatment in order to

attain the result which establishes an equilibrium between

two sections placed unequally."

The majority judgment further held that power of

"State" to make any provision under Article 16(4) does not

necessarily mean that such provision be made only by

Parliament or any State Legislature. Government can also

introduce reservation by executive orders as appears to have

been practised in Bihar also so far as subordinate judicial

service is concerned. As the impugned Act making

reservation in the services including the judicial service

has not been challenged on the grounds of being violative of

Fundamental Rights or in contravention of any constitutional

provision there is no necessity of testing its

constitutional validity on the aforesaid touchstones. In

view of this position of law it has to be now ascertained as

to whether the impugned Act had really made any provision of

reservation in the judicial service as well or not. The

High Court on perusal of its various provisions has held

that the Act did not relate to the judicial service and the

insistence of the Government of Bihar to issue notifications

in accordance with the said Act by making provision for

reservation was uncalled for. While interpreting the words

"office or department" occurring in the definition of term

"establishment" under Section 2(c) of the Act, the Court

held that the aforesaid words referred to the office or

department of the Court and not the Court itself. It

further held that reservation of posts in the judicial

service de hors of the Reservation Act was not permissible.

Intepreting Section 4, the High Court observed: "The

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correct construction of Section 4, in the context, read with

Section 2(c) and 2(n), would be something like this--

All appointments to service and posts in any office or

department (i.e. establishment) of the judiciary by direct

recruitment shall be regulated in the following manner."

The findings of the High Court cannot be upheld in

view of the clear provisions made in Bihar Act No.3 of 1992.

The Preamble of the Act states that it has been enacted to

provide for adequate representation of Scheduled Castes,

Scheduled Tribes and other Backward Classes in posts and

services under the State. Section 2(a) defines "Appointing

authority" in relation to a Service or post in an

establishment to mean the authority empowered to make

appointment to such services or posts; Section 2(c) defines

"Establishment" as "any office or department of the State

concerned with the appointments to public services and posts

in connection with the affairs of the State and includes (i)

local or statutory authority constituted under any State Act

for the time being in force, or (ii) a co-operative

institution registered under the Bihar Co-operative

Societies Act, 1935 (Act 6 of 1935) in which share is held

by the State Government or which receives aid from the State

Government in terms of loan, grant, subsidy, etc. and (iii)

Universities and Colleges affiliated to the Universities,

Primary, Secondary and High Schools and also other

educational institutions which are owned or aided by the

State Governments and (iv) an establishment in public

sector"; Section 2(f) defines "Reservation" to mean,

reservation of vacancies in posts and services for Scheduled

Castes/Scheduled Tribes and Other Backward Classes; Section

2(n) defines "State" to include the Government, the

Legislature and the Judiciary of the State of Bihar and all

local or other authorities within the State or under the

control of the State Government. Section 3 refers to the

"Services" to which the Act has not been made applicable.

Section 4 mandates that all appointments to the Services and

Posts in an establishment which are to be filled by direct

recruitment shall be regulated in the manner prescribed

therein. 50% of the available vacancies are to be filled up

from open merit category and 50% from reserved category.

The vacancies from different categories of reserved

candidates from amongst the 50% the reserved categories

shall, subject to other provisions of the Act, be as

follows: (a) Scheduled Castes 14% (b) Scheduled Tribes 10%

(c) Extremely Backward Class 12% (d) Backward Class 8% (e)

Economically Backward Woman 3% (f) Economically Backward 3%

------ Total 50%

Section 5 of the Act provides: "Review of Reservation

Policy.--(1) It shall be the duty of the State Government to

strive to achieve the representation of the Scheduled

Castes/Scheduled Tribes and other Backward Classes in the

various services of posts of all the establishments of the

State as defined in clauses (c) and (d) of Section 2 in the

proportion fixed for various reserved categories under

Section 4.

(2) The State Government shall review its reservation

policy after every ten years:

Provided that every order made under sub-section (2)

shall be laid as soon as may be after it is made, before the

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State Legislature while it is in session for a total period

of fourteen days which may be comprised in one or in two

successive sessions."

The aforesaid Act was amended by Act No.XI of 1993 by

which amongst others Sub- section (2) of Section 4 was

substituted prescribing the extent of percentage of

reservations. Similarly clause (c) of sub-section (6) of

Section 4 was substituted prescribing the manner of filling

the vacancies in case of non-availability of suitable

candidates in the reserved categories. Clause (e) of

sub-section (6) of Section 4 was substituted providing:

"(e) If required number of candidates of Scheduled Castes,

Scheduled Tribes and Extremely Backward Classes and Backward

Classes and Women of Backward Classes are not available for

filling up the reserved vacancies, fresh advertisement may

be made only for the candidates belonging to the members of

Scheduled Castes, Scheduled Tribes and Extremely Backward

and Bacward Classes and Women of Backward Classes, as the

case may be, to fill the backlog vacancies only."

A combined reading of the various provisions of the

Act leave no doubt that it is also applicable to the

establishment of judicial service and "not only to the

office or department of the Court, excluding the Court

itself", as has been held in the impugned judgment. No

other interpretation is possible in view of the definitions

of "establishment" and "State" in Sections 2(c) and 2(n) of

the Act. It was not correct for the High Court to say that

the aforesaid language of the statute was capable of more

than one interpretation and for that such interpretation

which is not absurd or inconsistent should be followed. The

Court is required to interpret statute as far as possible

agreeable to justice and reason. While interpreting a

statute the courts have to keep in mind the underlying

policy of the statute itself and the object sought to be

achieved by it. This Court in Nasiruddin vs. State

Transport Appellate Tribunal [AIR 1976 SC 331] held: "If

the precise words used are plain and unambiguous, they are

bound to be construed in their ordinary sense. The mere

fact that the results of a statute may be unjust does not

entitle a court to refuse to give it effect. If there are

two different interpretations of the words in an Act, the

Court will adopt that which is just, reasonable and sensible

rather than that which is none of those things. If the

inconvenience is an absurd inconvenience, by reading an

enactment in its ordinary sense, whereas if it is read in a

manner in which it is capable, though not in an ordinary

sense there would not be an inconvenience at all; there

would be reason why one should not read it according to its

ordinary grammatical meaning. Where the words are plan the

court would not make any alteration."

It is not correct as held by the High Court in the

impugned judgment that interpreting the statute in favour of

the appellant State, as desired, "would amount to relegating

the judicial service at par with not only the secretarial

staff or the administrative, executive or council of

ministers and legislature but also their own staff. That

would be contrary to law laid down by the Apex Court in All

India Judges Case (supra)". It appears that to arrive at

such a conclusion the High Court was also persuaded and

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impressed on account of the statement before it that the

provisions of the Reservation Act had been declared to be

ultra vires, as regards the Bihar Subordinate Judicial

Service i.e., as regards recruitment of judicial officers

other than that of the District Judges in the case of Deepak

Kumar Singh & Others. Interpretation of Section 4 as put in

by the High Court, if accepted, would not only frustrate the

purpose and object of the Bihar Act No.3 of 1992 but also be

contrary to the mandate of the Constitution as enshrined in

its Part III and further declared in Part IV, Article 56 and

Article 335 of the Constitution. The High Court is thus

held to have fell in error of law in declaring the Act as

ultra vires in so far as its applicability to the judicial

service is concerned, and also in the matter of

interpretation of its various provisions. The appeals are

accordingly allowed by setting aside the judgments impugned

therein with a direction to the respondents to fill up the

vacancies in accordance with the Rules applicable and the

provisions of the impugned Act without disturbing the

appointments made till date on the basis of this Courts

order. The seniority of the members of the judicial service

shall be determined in accordance with the Service Rules

applicable and the provisions of the Act by adjusting the

candidates selected on reservation to fill in the reserved

slots keeping in view the quota and rota rule as

specifically pointed out by this Court in its order dated

16.11.1995. No costs.