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TMI Blog2000 (3) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (for short SC) and Scheduled Tribe (for short ST) candidates who are of equal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vel 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 power in this connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 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 provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 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 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 proced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 OBincl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution; (4) Separation of powers between the legislature, the executive and the judiciary; (5) Federal character of the Constitution. 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject 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 governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... animous 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 Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recommend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs 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-à-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 categor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 practis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate Judiciary and can also create sanctioned posts in these cadres. The said exercise of creation of posts may 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, it is not possible for us to agree with the contention that reservation of posts does not truncate the High Courts power of mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 recruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 Mad 53 and that of the Rajasthan High Court in Rajvi Amar Singh v. State of Rajasthan, AIR 1956 Raj 104. In ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppointment 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered 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 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 aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruitment) 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. T 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inisters 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions 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 Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Judge was previously reserved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediately 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". 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 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 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 legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. 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 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 separa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ories, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trictly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Backwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sen 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 dele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions 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 Fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial 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 posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uperior 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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". &q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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