State of
Bihar & ANR Vs. Bal Mukund Sah &
Ors [2000] INSC 131 (14
March 2000)
S.B.Majumdar,
G.B.Pattanaik, V.N.Khare, U.C.Banerjee,R.P.Sethi
S.B.Majmudar,
J.
Leave
granted in Special Leave Petition No.16476 of 1993.
Both
these appeals, on grant of special leave under Article 136 of the Constitution
of India, are moved by the State of Bihar, which is common appellant no.1 in both these appeals. In Civil Appeal
No.9072 of 1996 the Secretary, Department of Personnel and Administrative
Reforms, Government of Bihar is appellant no.2, while in the companion appeal
arising from the Special Leave Petition No.
16476
of 1993, the other contesting appellant is the Special Executive
Officer-cum-Deputy Secretary, Bihar Public Service Commission, Patna. In both
these appeals, a common question of law arises for consideration, namely,
whether the Legislature of the appellant State of Bihar was competent to enact
the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes,
Scheduled Tribes and Other Backward Classes) Act, 1991 (hereinafter referred to
as the Act), in so far as Section 4 thereof sought to impose reservation for
direct recruitment to the posts in the Judiciary of the State, subordinate to
the High Court of Patna, being the posts of District Judges as well as the
posts in the lower judiciary at the grass-root level, governed by the
provisions of the Bihar Judicial Service (Recruitment) Rules, 1955. Civil
Appeal No.9072 of 1996 deals with the question of reservation in the posts in
District Judiciary while the companion appeal deals with the posts in
Subordinate Judiciary at grass-root level under the District Courts concerned.
By the impugned judgment in Civil Appeal No.9072 of 1996, a Division Bench of
the High Court has struck down the terms of the advertisement, reserving
amongst others, 27 out of 54 posts of District Judges to be filled in by direct
recruitment, being ultra vires the relevant provisions of Article 233 of the
Constitution of India. It has also struck down the provisions made in the
impugned advertisement fixing up the upper age limit at 45 years for
eligibility for appointment by way of direct recruitment to these posts. That
part of the controversy no longer survives between the parties in the present
proceedings and, therefore, we need not dilate on the same. So far as the
companion appeal is concerned, the main judgment was rendered by the Division
Bench of the High Court holding that the aforesaid Act as well as the earlier
Ordinance which preceded the same in so far as they sought to apply the scheme
of reservation of posts for governing recruitment of persons other than the
District Judges to the Judicial Service of the State were ultra vires Article
234 of the Constitution. As the controversies involved in these appeals have to
be resolved in the light of the relevant Constitutional scheme, by an earlier
Order dated 13th May,
1994 of this Court,
they were directed to be listed before a Constitution Bench. Subsequently in
view of the statement made by learned counsel that the matter could be disposed
of by a Bench of three Judges, the matters were directed to be placed before a
three-Judge Bench by an order dated 12th May, 1995. Thereafter a three-Judge Bench of
this Court by its order dated 6th November, 1997 felt that the matters raised
questions regarding interpretation of provisions of Articles 233, 234 and 309
of the Constitution and hence it would be appropriate that they are heard by
the Constitution Bench. That is how these matters have been placed before this
Constitution Bench under the directions of Honble the Chief Justice of India.
Before we proceed to deal with the rival contentions of learned counsel for the
respective parties in support of their cases, it becomes necessary to note a
few introductory facts. Facts leading to Civil Appeal No.9072 of 1996: This
Court, by its order dated 13th October, 1993 in Civil Appeal Nos. 4561-62 of
1992 in State of Bihar vs. Madan Mohan Singh & Ors., had quashed the
earlier advertisement for filling up the vacancies of Additional District
Judges in the District Judicial Service of Bihar and directed the appellant
State to fill up the same through a fresh advertisement. In the mean time, it
appears that as the High Court had not agreed to the suggestion of the State
authorities to have reservation in the posts of District Judges for reserved
category of candidates and had insisted on proceeding with the recruitment as
per the 1951 Rules, styled as the Bihar Superior Judicial Service Rules, 1951,
which were framed by the Governor of Bihar in exercise of the powers conferred
by the proviso to Article 309 read with Article 233 of the Constitution of
India and which Rules did not provide for any such reservation, the Governor of
Bihar issued the impugned Ordinance which subsequently became the impugned Act
by which the scheme of 50% reservations for reserved category of candidates was
directed to be applied while effecting direct recruitment to the posts
concerned. On 16th
November, 1993, the
appellant State requested the High Court to effect recruitment to the vacancies
in the cadre of District Judges on the basis of the reservation provided by the
Ordinance which subsequently was followed by the Act.
By its
communication dated 16th
December, 1993, the
High Court of Patna insisted that recruitment to District Judiciary can be made
on the basis of 1951 Rules only. By a communication dated 5th April, 1994, the
High Court informed the authorities concerned that no reservation of posts in
the district cadre could be implemented and while making appointments from the
members of the Bar for direct recruitment, preference may be given to the
Scheduled Caste (for short SC) and Scheduled Tribe (for short ST) candidates
who are of equal merit with general category candidates. On 7th April, 1994, the High Court intimated that
there are 54 vacancies in the district cadre which had to be filled up. The
State Government, however, issued the impugned advertisement of 16th June, 1994 by which 50% of the available
vacancies of District Judges were sought to be filled in from reserved category
of candidates and the remaining 50% posts thereof, i.e. 27, were to be filled
in by the open category candidates. It is this advertisement which was
challenged by the writ petitioners before the High Court. The High Court, by
the impugned judgment as noted earlier, has allowed the writ petition and
quashed the condition of reservation sought to be imposed by the impugned
advertisement.
Facts
leading to Civil Appeal arising out of S.L.P.(C) No.16476 of 1993: By a proposal
dated 30th January,
1991, the
appellant-State consulted the Bihar Public Service Commission regarding making
provision for reservation of posts in the Subordinate Judicial Service for
reserved category of candidates. The said proposal of the appellant-State was
also placed for consideration of the High Court but it was not accepted by the
High Court by its communication dated 16th April, 1991, and that resulted in the impugned
Ordinances, being 33 and 34 of 1991, which were followed by the impugned Act. The
original writ petitioners, who had already appeared at the competitive
examination in April, 1991 moved the High Court challenging the Ordinances and
the latter Act in so far as the scheme of 50% reservation of posts for direct
recruitment at grass root level of the State Judiciary was concerned. As noted
earlier, the aforesaid writ petition was allowed and relief was granted against
the appellants. Rival contentions:
Dr.Dhavan,
learned senior counsel appearing for the appellant-State in Civil Appeal No.9072
of 1996, at the outset, contended that the impugned Act, especially Section 4
thereof, is wrongly held by the High Court to be not applicable to Judicial
Services of the State. He contended that Judicial Services especially, the
Subordinate Judiciary comprising of district cadre and the cadre of Judges
below the same were part and parcel of the Public Services of the State and,
therefore, on the express terminology of the Act, Section 4 thereof, became
directly applicable to the recruitment of judicial officers both at the
district level as well as at the level of Subordinate Judiciary below it.
Alternatively,
it was submitted that even assuming that the Act did not apply on its own
language, even then, it has to be held that the State Legislature was perfectly
competent to enact provisions regarding reservation of posts in Judicial
Services of the State in the light of Article 16(4) of the Constitution of
India read with the relevant entry 41 in list II of Seventh Schedule to
Constitution. He also posed the moot question whether the State Legislature has
independent power to enact any provisions regarding reservation in connection
with appointment in Judiciary when such reservation, after consultation with
the High Court, could not get reflected in the relevant Rules framed by the
Governor under Article 309 read with Articles 233 and 234 of the Constitution
of India. In support of these contentions, relevant Constitutional scheme was
pressed in service. It was submitted that on a correct interpretation of
Article 309 the State Legislature as well as the Governor had ample
jurisdiction to make provision for reservation in connection with Judicial
Service. Under the said Article, paramount power in this connection has been
vested in the State Legislature. He then referred to Articles 233 and 234 in
connection with Subordinate Judiciary and placed emphasis on Article 236 (b)
defining the expression Judicial Service as a service consisting exclusively of
persons intended to fill the post of District Judge and other civil judicial
posts inferior to the post of District Judge. He submitted that all that the
opening part of Article 309 provides is to the effect that, while making
appointments to the cadre of District Judges or Subordinate Judges of lower
judiciary, as per Articles 233 and 234, consultation of the Governor with the
High Court is necessary. That apart, from these latter two Articles there is no
fetter on the power of the State Legislature to enact appropriate legislation
in this connection under Article 309. He invited our attention to List II entry
41 of the Seventh Schedule for submitting that the State Legislature is
competent to make enactment in connection with appointments to Public Services
and Judicial Service is also a Public Service of the State.
He
further submitted that the first part of Article 309 does not attract Article
234 so far as State Legislatures paramount powers are concerned.
Dr.Dhavan,
relying upon the second part of Article 235, stated that despite the full
control of District Judiciary being vested in the High Court, the right of
appeal and other conditions of service of Members of Subordinate Judiciary as
laid down by any competent law which would include legislative enactment as
well as statutory rules are clearly saved pro tanto at least at the second
level, after appointments are made at the grass-root level in the Judiciary and
when the further question arises as to how the conditions of service of such
appointees are to be governed and controlled. Dr.Dhavan, therefore, submitted
that it is not as if the power of State Legislature to enact appropriate
provisions is totally excluded because of the enactment of Articles 233 to 235.
Dr.Dhavan
tried to highlight his submission by contending that if the power of State
Legislature to enact appropriate provisions regarding appointments of Members
of Subordinate Judiciary is held totally excluded by Article 234, and to that
extent Article 309 be held out of picture, then the following anomalies may
arise in the working of these provisions.
1)
Judicial Service as defined by Article 236(b) will get truncated in its
operation.
2) The
second anomaly pointed out by Dr.Dhavan was that power to legislate, which must
be given full effect, would get excluded without there being any express exclusion.
3) The
third anomaly pointed out by Dr.Dhavan was that though under the Constitution,
the scheme of separation of power is devised to separate the Executive from the
Judiciary, this scheme does not extend to oust the legislative power. If it is
held that Article 234 ousts the legislative power for making suitable
enactments on the topic covered therein then, to that extent, an anomalous
position would arise not contemplated by the Constitutional scheme.
Dr.Dhavan
next contended that on the express language of Article 234, only the rule
making power of the Governor is fettered but not the legislative power of the
State.
Dr.Dhavan
next submitted that if legislative interference in the process of selection and
appointment of direct recruits to Subordinate Judiciary as per Article 234 is
completely ruled out that being the first level or the grass-root level of the
Subordinate Judiciary then another patently anomalous situation would arise.
That under Article 235 second part such statutory provisions to be enacted by
competent Legislature are clearly contemplated so far as conditions of service
of judicial officers are concerned and then when we turn to the apex level,
namely, of the district cadre manned by District Judges there is no express
ouster of legislative interference under Article 233. Thus the plenary power of
the Legislature would be operative qua the highest posts in the hierarchy of
District Judiciary while for the grass-root level it will be ruled out.
Dr.Dhavan then invited our attention to the decisions in M.M.Gupta & Ors.
etc. vs. State of Jammu & Kashmir & Ors., (1982) 3 SCC 412 paras 28 to
32 as well as in State of Kerala vs.
Smt.A.Lakshmikutty & Ors., (1986) 4 SCC 632 at page 647 in para 22 to
highlight the scope of the term consultation which should be effective
consultation. He then invited our attention to the impugned Act especially
Sections 2 (c), 4 and 16 having overriding effect over all other rules in force
and submitted that such establishments under the State would include even
Judiciary as laid down by the definition of Section 2(n). He, however, fairly
conceded that neither in the Rules of 1951 regarding appointments to district
cadre as per Article 233 nor under the Rules of 1955 for recruitment to cadre
of Subordinate Judiciary as laid down by Article 234, there is any provision
for 50% reservation of posts and, therefore, he submitted that this entire case
depends upon competence of the impugned Act which had to be enacted because
there was a stalemate on this subject as the High Court did not agree with the
suggestion of the Governor for suitable amendment to these Rules under Articles
233 and 234. He ultimately submitted, that the reasoning of the High Court that
the Act does not cover Judicial Service is patently erroneous and that this Act
is not bound by any fetters of Articles 233 or 234 and is an exercise of
paramount legislative power conferred on the State authorities under Article
309 first part read with entry 41 List II of Seventh Schedule of the
Constitution. He, therefore, submitted that the Act must be permitted to have
full play.
In
support of his contentions Dr.Dhavan placed strong reliance on the decision of
a Constitution Bench of this Court in the case of B.S.Yadav & Ors. v. State
of Haryana & Ors. etc. (1981) 1 SCR 1024.
Dr.Dhavan, therefore, submitted that the impugned judgment of the High Court,
being contrary to the Constitutional scheme, requires to be set aside.
Shri
Dwivedi, learned senior counsel appearing for the appellant-State in the
companion Civil Appeal submitted that though the High Court in para 9 at page
11 has referred to a three-Judge Bench judgment of this Court in All India
Judges Association & Ors. etc. vs. Union
of India & Ors.
etc.,
AIR 1993 SC 2493, giving special status to judicial officers, the said
observations cannot whittle down the power of reservation available to the
State authorities under Article 16 (4) and that question was not examined in
the said case as it did not fall for consideration. He submitted that a
conjoint reading of Sections 2(c) and 2(n) clearly shows that the Act is meant
to apply also to Judicial Service of the Bihar State. He next contended that question of
reservation of posts in a cadre which is already established by the State
authorities in exercise of their powers under Article 309 is not covered by
Articles 233 to 235. That question is covered by Article 16 sub-article (4) and
none of the aforesaid provisions curtail that enabling power available to the
State authorities. In this connection, he also invited our attention to entry
11A of List III of Seventh Schedule to the Constitution dealing with
constitution and organisation of all courts, except the Supreme Court and the
High Courts, and submitted that scheme of reservation of posts would remain sustained
under these provisions and also as per the Legislature enacted under entry 41
of List II. He submitted that once the court is constituted, it would comprise
of all cadres of judicial officers to man the courts and the formation of
cadres and constitution of the courts also permitted provisions for creation of
reserved posts to comprise in such cadres. This exercise has nothing to do with
the question of appointment on available vacancies in posts borne on
established cadres in Judicial Service. According to Shri Dwivedi, the
establishment of cadres and creation of posts in the cadres is a stage prior to
the one contemplated by Articles 233 to 235 dealing with the subsequent
question as to how actual appointments of deserving candidates are to be effected
to fill up vacancies in already created posts in the concerned cadres. In
short, the submission of Shri Dwivedi was that question of creation of posts to
be filled up by reserved candidates or open category candidates was in the
domain of the State authorities especially, the Legislature which can enact
appropriate statutory provisions in discharge of constitutional obligation
under Article 16(4) read with entry 41 of List II of Seventh Schedule as well
as entry 11 A of List III and once the general category posts as well as the
reserved category posts are made available to the High Court for being filled
in, thereafter, it will be for the High Court to proceed according to Articles
233 and 234 of the Constitution of India and in that exercise the State Legislature
will have no say. He, therefore, contended that the High Court in the impugned
judgment was patently in error in taking the view that statutory provision of
reservation of posts for reserved category candidates in the Subordinate
Judiciary under its control was in any way ultra vires or illegal. Shri
Dwivedi, in support of his contentions, gave written submissions whereby,
amongst others, he invited our attention to Article 320 sub-article (4) which
excludes reservation expressly from the powers and functions of the Public
Service Commission. He submitted that Article 234 requires the Governor for
framing rules to consult the High Court as well as the Public Service
Commission and when it cannot make any provision regarding reservation under
Article 16 sub-article (4), by analogy, consultation of the High Court also
under the very same Article 234 would not permit the High Court to deal with
Article 16 sub- article (4). In other words, question of reservation is outside
the ken of Article 234. Shri Dwivedi, also in support of his contentions,
placed reliance on various decisions of this Court to which we will make a
reference at an appropriate stage. Shri Dwivedi next contended that even under
the Bihar Judicial Service (Recruitment) Rules, 1955 (hereinafter referred to
as the 1955 Rules) especially, Rules 19 & 20 reservation of posts in lower
judiciary is contemplated; that these Rules are made by the Governor in
consultation with the High Court and the Public Service Commission.
Shri
Dwivedi next contended that, in any case, the High Court in the impugned
judgement was not called upon to consider the further question whether there
cannot be any reservation to the posts in district cadre and the stand of the
High Court that if candidates of equal merit are there, then preference can be
given to SC and ST candidates, was correct or not. That the only question
before the High Court was whether the impugned Act could validly apply to
provision of reservation of posts in the District Judiciary.
He,
therefore, submitted that the observations in para 24 of the impugned judgment,
in any case, are required to be set aside as redundant and uncalled for. It was
accordingly submitted by Shri Dwivedi that the appeal deserves to be allowed.
Learned
counsel appearing for the Intervenors in I.A.No.20, on the other hand, tried to
support the case of reservation for SC and ST candidates relying on Rule 20 of
1955 Rules so far as the recruitment to Subordinate Judiciary was concerned.
Learned counsel for the intervenors in I.A.No.10 representing Other Backward
Class (for short OBC) candidates adopted the arguments of Dr.Dhavan and Shri
Dwivedi in support of the impugned Act and the scheme of reservation
thereunder. Learned counsel appearing for the Intervenors as per I.A.No.11
tried to support reservation for SC and ST candidates under the Act and even
dehors it. While intervenor in I.A.Nos. 4 and 9 representing general category
candidates supported the decision of the High Court. The main reply to the
contentions of learned counsel for the appellants emanated from learned senior
counsel Shri Thakur appearing for the High Court of Patna. He submitted, in the
first instance, that the impugned Act is not wide enough to apply to Judiciary.
He tried to support this contention on the basis of reasoning which appealed to
the High Court in the impugned judgment. He alternatively contended that
Section 4 of the impugned Act, if applied to judicial officers, will ex facie
become invalid being repugnant to the composite scheme of Articles 233 to 235.
To highlight this alternative contention, he contended as under : 1. Article
309 has no application to Subordinate Judiciary. It gets excluded by the
triology of Articles 233 to 235 which represent a complete Code amongst
themselves. 2. Once Article 309 is excluded, legislative power under Article
309 first part also gets excluded qua the field covered by the aforesaid
triology of the Articles. 3. These three Articles themselves are the only
source of power to make rules or law as seen from second part of Article 235 as
well as Articles 233 and 234. 4. Rules made under Article 234 by the Governor
after following the procedure laid down thereunder would relate to service also
as contemplated by Article 233. 5. Second part of Article 235 only can permit
suitable legislation by the State authorities governing the conditions of
service of already recruited judicial officers whether at the grass-root level
or even at the apex level of the District Judiciary in exercise of its
legislative power under Article 309 read with entry 41 of List II of the
Seventh Schedule. In order to support his contention that Article 309 does not
apply to recruitment to the Judicial Service, he invited our attention to
Article 187 dealing with Secretarial Staff of Legislature, Article 148 dealing
with Service regulations of the Comptroller & Auditor- General of India,
Article 146 dealing with Service under the Supreme Court, Article 229(2)
dealing with Services under the High Court and Article 324(5) dealing with Service
regulations of Election Commission and submitted that in all these Articles,
special provisions are made for enacting appropriate rules and even statutes
covering the topics mentioned therein. But so far as Article 234 is concerned,
it is not subject to the law of Legislature as found in the aforesaid other
Articles. To a pointed query by us Shri Thakur, learned senior counsel for the
High Court of Patna, after taking appropriate instructions, submitted that in
principle the High Court of Patna has already accepted reservation of 14% posts
for SC and 10% for ST candidates for being recruited at the lowest level of the
District Judiciary. Shri Thakur also placed reliance on decisions of the
various High Courts and of this Court to which we will make a reference at an
appropriate stage. Shri Thakur, further submitted that Section 4 of the
impugned Act, in express terms, seeks to regulate appointments to the existing
posts in the cadre of District Judiciary as well as in the Subordinate
Judiciary. To that extent it directly impinges upon the provisions of Articles
233 and 234, which amongst them, represent a complete Code in connection with
appointment to Subordinate Judiciary. He further submitted that it is
fallacious to contend that reserving posts for a given class of candidates
would be at a stage prior to the question of recruitment and appointment as
contemplated by Articles 233 and 234 of the Constitution. That once posts are
already created for being filled up in a given cadre the authority of the State
in this connection would come to an end. For creation of such cadres and
sanction of posts appropriate legislation can be enacted or even the Governor,
in exercise of his independent power under Article 309, can promulgate Rules.
But once posts are already created in a Judicial Cadre and when the question of
filling up vacancies in the existing sanctioned posts in district cadre or
subordinate cadre arises, direct recruitment has to be done on the
recommendation of the High Court as laid down by Article 233 (2) and
recruitment in the vacancies in the cadre of Subordinate Judiciary has to be
done as per the 1955 Rules framed by the Governor in consultation with the High
Court under Article 234 and in no other manner. That for regulating this
process there is no question of any legislative interference by exercise of any
paramount power.
He,
therefore, contended that the view of the High Court in the impugned judgment
is well sustained on the Constitutional scheme and calls for no interference.
He, however, fairly submitted that so far as the 1955 Rules are concerned, by
the consent of the High Court the rule making power has been exercised by the
Governor permitting the reservation for SC and ST candidates in recruitment
governed by the said Rules and which recruitment has to be resorted to for
filling up vacancies in posts of Subordinate Judges and the Munsiffs. He also
fairly stated that the High Court is consistently following the provision of
reservation for direct recruitment in these categories of posts to the extent
of 14% being reserved for SC and 10% being reserved for ST candidates but
nothing more. So far as the impugned Act is concerned, it goes far beyond this
permitted scheme of reservation under the relevant Rules of 1955 and seeks to
impose a blanket reservation of 50% for SC, ST and OBC candidates. That such a
statutory provision flies in the face of Articles 233 and 234 of the
Constitution of India and cannot be sustained and accordingly rightly been
voided by the High Court. Points for determination: In the light of the
aforesaid rival contentions, the following points arise for our determination:
1. Whether the impugned Act of 1991 on its express language covers Judicial
Service of the Bihar State; 2. If the answer to point no.1 is in the affirmative,
whether the provisions of the impugned Act, especially, Section 4 thereof in
its application to Subordinate Judiciary would be ultra vires Articles 233 and
234 of the Constitution of India and hence cannot be sustained; 3. In the
alternative, whether the aforesaid provisions of the Act are required to be
read down by holding that Section 4 of the Act will not apply to direct
recruitment to the posts comprised in the Bihar Superior Judicial Service as
specified in the Schedule to the Bihar Superior Judicial Service Rules, 1951 as
well as to Bihar Judicial Service governed by the Bihar Judicial Service
(Recruitment) Rules, 1955, comprising of the posts of Subordinate Judges and
Munsiffs under the District Judiciary; and 4. What final order? Before we deal
with the aforesaid points for determination, it will be necessary to keep in
view the relevant provisions of the Constitution which have a direct impact on
the resolution of the controversy projected by these points. Constitutional
Scheme: Part XIV deals with Services under the Union and the States. Chapter I comprising of Articles 308 to 313
deals with Services, while Chapter II covering Articles 315 to 323 deals with
Public Service Commissions. Article 308 defines the expression State, which shall not include the State of Jammu & Kashmir.
However, the relevant Article for our present purpose is Article 309 which
reads as under : 309.
Recruitment
and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution,
Acts of the appropriate Legislature may regulate the recruitment, and
conditions of service of persons appointed, to public services and posts in
connection with the affairs of the Union
or of any State:
Provided
that it shall be competent for the President or such person as he may direct in
the case of services and posts in connection with the affairs of the Union, and
for the Governor of a State or such person as he may direct in the case of
services and posts in connection with the affairs of the State, to make rules
regulating the recruitment, and the conditions of service of persons appointed,
to such services and posts until provision in that behalf is made by or under
an Act of the appropriate Legislature under this article, and any rules so made
shall have effect subject to the Provisions of any such Act.
A mere
look at this Article shows that it is expressly made subject to other
provisions of the Constitution and subject to that, an appropriate Legislature
or Governor can regulate the recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the
State concerned. Proviso to that Article permits the Governor of the State to
fill up the gap, if there is no such statutory provision governing the
aforesaid topics. For that purpose, the Governor may make rules regulating the
recruitment and the conditions of service of persons appointed to such services
and posts until provision in that behalf is made by or under an Act of the
competent Legislature which may intervene and enact appropriate statutory
provisions for the same. The manner of recruitment to the services contemplated
by Article 309 is provided by Chapter II dealing with the Public Service
Commissions. Article 320 deals with Functions of Public Service Commissions
enjoining them to conduct examinations for appointment to the services of the Union and the services of the State respectively. That
naturally has a direct linkage with the types of Services contemplated by
Article 309. Special Scheme for Judicial Services in Part VI (Chapters V &
VI):
It is
pertinent to note that independently of general provisions of Article 309, the
Constitution has made special provisions for certain Services. Even if they may
be part of public services, still separate Constitutional schemes are envisaged
for regulating recruitment and conditions of services of officers governed by
such Services. Let us have a glance at such specially dealt with Services. Part
VI of the Constitution dealing with the States, separately deals with the
executive in Chapter II, the State Legislature under Chapter III and thereafter
Chapter IV dealing with the Legislative Powers of the Governor and then follows
Chapter V dealing with the High Courts in the States and Chapter VI dealing
with the Subordinate Courts. It is in Chapter VI dealing with the Subordinate
Courts that we find the provision made for appointment of District Judges under
Article 233, recruitment of persons other than the District Judges to the
Judicial Services under Article 234 and also Control of the High Court over the
Subordinate Courts as laid down by Article 235. Article 236 deals with the
topic of Interpretation and amongst others, defines by sub- article (b) the
expression judicial service to mean a service consisting exclusively of persons
intended to fill the post of District Judge and other civil judicial posts
inferior to the post of District Judge. It becomes, therefore, obvious that the
framers of the Constitution separately dealt with Judicial Services of the
State and made exclusive provisions regarding recruitment to the posts of
District Judges and other civil judicial posts inferior to the posts of the
District Judge. Thus these provisions found entirely in a different part of the
Constitution stand on their own and quite independent of part XIV dealing with
Services in general under the State. Therefore, Article 309, which, on its
express terms, is made subject to other provisions of the Constitution, does
get circumscribed to the extent to which from its general field of operation is
carved out a separate and exclusive field for operation by the relevant
provisions of Articles dealing with Subordinate Judiciary as found in Chapter
VI of Part VI of the Constitution to which we will make further reference at an
appropriate stage in the later part of this judgment. We may also refer at this
stage to Article 146 dealing with Services under the Supreme Court which lays
down the procedure for appointment of officers and servants of the Supreme Court
and provides under sub-article (2) thereof that subject to the provisions of
any law made by Parliament, the conditions of service of officers and servants
of the Supreme Court shall be such as may be prescribed by rules made by the
Chief Justice of India or by some other Judge or officer of the court
authorised by the Chief Justice of India to make rules for the purpose.
Similar
provision is found in Article 229 dealing with recruitment of officers and
servants and the expenses of the High Courts. Sub-article (2) there of lays
down the rule making power of the Chief Justice of the Court concerned or by
some other Judge or officer of the Court authorised by the Chief Justice to
make rules for the purpose subject to the provisions of any law made by any Legislature
of the State. Article 148 deals with Comptroller and Auditor-General of India. Sub-article (5) thereof deals with
rule making power of the President regarding the conditions of service of
persons serving in the Indian Audit and Accounts Department and the
administrative powers of the Comptroller and Auditor-General subject to any
provisions of the Constitution or any law made by the Parliament in this
connection. Article 98 deals with Secretariat of Parliament. Sub- article (3)
thereof provides Until provision is made by Parliament under clause (2), the
President may, after consultation with the Speaker of the House of the People
or the Chairman of the Council of States, as the case may be, make rules
regulating the recruitment, and the conditions of service of persons appointed,
to the secretarial staff of the House of the People or the Council of States,
and any rules so made shall have effect subject to the provisions of any law
made under the said clause. Similarly, for Secretariat of State Legislature, we
find Article 187 which deals with separate secretariat staff for the House or
each House of the Legislature of a State. Sub-article (3) thereof runs parallel
to sub-article (3) of Article 98 and provides that until provision is made by
the Legislature of the State under clause (2), the Governor may, after
consultation with the Speaker of the Legislative Assembly or the Chairman of
the Legislative Council, as the case may be, make rules regulating the
recruitment, and the conditions of service of persons appointed, to the
secretarial staff of the Assembly or the Council and any rules so made shall
have effect subject to the provisions of any law made under the said clause.
Article 324 is found in Part XV which deals with Superintendence, direction and
control of elections to be vested in an Election Commission. Sub-article (5)
thereof provides that subject to the provisions of any law made by Parliament,
the conditions of service and tenure of office of the Election Commissioners
and the Regional Commissioners shall be such as the President may by rule
determine. The aforesaid Constitutional provisions clearly indicate that
independently of general provisions regarding Services as mentioned in Part
XIV, different types of Services contemplated by the Constitution in other
parts have their own procedural schemes for recruitment and regulation of
conditions of these Services and therefore, Article 309 found in Part XIV
necessarily will have to be read subject to these special provisions regarding
recruitment and conditions of services of diverse types governed by the
relevant different Constitutional provisions as indicated herein above. The
other Article to which reference is to be made is Article 16 sub-article (4) of
the Constitution which enables the State to make provision for reservation of
appointments or posts in favour of any backward class of citizens which, in its
opinion, is not adequately represented in the services under the State. This
provision has to be read with Article 335 which deals with Claims of Scheduled
Castes and Scheduled Tribes to services and posts and lays down that the claims
of the members of the Scheduled Castes and the Scheduled Tribes shall be taken
into consideration, consistently with the maintenance of efficiency of administration,
in the making of appointments to services and posts in connection with the
affairs of the Union or of a State. Though on the express language of Article
335, the Other Backward Classes are not included, it is now well settled by a
decision of the nine-member Constitution Bench of this Court in the case of
Indra Sawhney & Ors. vs. Union of India
& Ors., [1992 Suppl.
(3)
SCC 217] that even the Other Backward Classes are also covered by the thrust of
Article 335 of the Constitution of India and that view is reaffirmed and is
followed by a recent decision of the three-Judge Bench of this Court in IAs.
Nos.35-36 in WP (C) No.930 of 1990 etc. in Indra Sawhney vs. Union of India & Ors. reported in (2000) 1 SCC 168,
wherein Jagannadha Rao, J., speaking on behalf of the three-Judge Bench
highlighted this very position. Thus, even if under Article 16(4) the State
proposes to provide reservation on the ground of inadequate representation of
certain backward classes in Services, if it is considered by the appropriate
authority that such reservation will adversely affect the efficiency of the
administration, then exercise under Article 16(4) is not permissible. This is
the Constitutional limitation on the exercise of the enabling power of
reservation under Article 16(4). As we shall presently show, question whether
in the Subordinate Judiciary covered by Articles 233 and 234 if reservation is
provided, then the efficiency of the judicial administration will be affected,
is a matter within the exclusive purview of the High Court which shall have to
be consulted. Such consultation is a Constitutional obligation before any Rules
are made for reservation. Before parting with the resume of relevant
Constitutional provisions, we may also refer to Article 50 which lays down the
Directive Principles of State Policy that the State shall take steps to
separate the judiciary from the executive in the public services of the State.
Legislative
powers under Articles 245, 246 are subject to other provisions, including
Articles 233, 234 and 235:
We may
also refer to Part XI of the constitution, especially Chapter I dealing with
Legislative Relations laying down the Distribution of Legislative Powers.
Article 245 deals with Extent of Laws made by Parliament and by the
Legislatures of States. Sub-article (1) thereof provides that Subject to the
provisions of this Constitution, Parliament may make laws for the whole or any
part of the territory of India, and the Legislature of a State may make laws
for the whole or any part of the State. Thus, the legislative powers of
Parliament and the Legislature of the State are expressly made subject to other
provisions of the Constitution.
Similarly,
Article 246 laying down the category of subject-matter of laws made by
Parliament and by the Legislatures of States enumerated in Lists I, II and III
of the Seventh Schedule will also have to be read subject to Article 245.
Meaning thereby, if other provisions of the Constitution cut down or exclude
the Legislative powers of Parliament or State Legislature qua given topics,
then those other provisions have to be given their full play and effect.
Articles
233, 234 and 235: So far as recruitment to District and Subordinate Judiciary
is concerned, we have therefore, to turn to the twin Articles found in Chapter
VI of Part VI dealing with Subordinate Courts. The relevant two articles read
as under : 233. Appointment of Judges:
(1)
Appointment of persons to be, and the posting and promotion of, district judges
in any State shall be made by the Governor of the State in consultation with
the High Court exercising jurisdiction in relation to such State.
(2) A
person not already in the service of the Union or of the State shall only be
eligible to be appointed a district judge if he has been for not less than seven
years an advocate or a pleader and is recommended by the High Court for
appointment.
234.
Recruitment of persons other than district judges to the judicial service:
Appointments of persons other than district judges to the judicial service of a
State shall be made by the Governor of the State in accordance with rules made
by him in that behalf after consultation with the State Public Service
Commission and with the High Court exercising jurisdiction in relation to such
State. (Emphasis supplied) Article 233 dealing with appointment of District
Judges, on its own express terminology projects a complete scheme regarding the
appointment of persons to District Judiciary as District Judges. In the present
appeals, we are concerned with direct recruitment to the cadre of District
Judges and hence sub-article (2) of Articles 233 becomes relevant. Apart from
laying down the eligibility criterion for candidates to be appointed from the
Bar as direct District Judges the said provision is further hedged by the condition
that only those recommended by the High Court for such appointment could be
appointed by the Governor of the State. Similarly, for recruitment of judicial
officers other than District Judges to the Judicial Service at lower level,
complete scheme is provided by Article 234 wherein the Governor of the State
can make such appointments in accordance with the rules framed by him after
consulting with the State Public Service Commission and with the High Court
exercising jurisdiction in relation to such State. So far as the Public Service
Commission is concerned, as seen from Article 320, the procedure for
recruitment to the advertised posts to be followed by it is earmarked therein.
But the role of the Public Service Commission springs into action after the
posts in a cadre are required to be filled in by direct recruitment and for
that purpose due intimation is given to the Commission by the State
authorities. They have obviously to act in consultation with the High Court so
far as recruitment to posts in Subordinate Judiciary is concerned. Of course,
it will be for the High Court to decide how many vacancies in the cadre of
District Judges and Subordinate Judges are required to be filled in by direct
recruitment so far as the District Judiciary is concerned and necessarily only
by direct recruitment so far as Subordinate Judiciary is concerned. This prime
role of the High Court becomes clearly discernible from Article 235 which deals
with the control of the High Court over the Subordinate Judiciary and also of
Subordinate Courts. The said Article provides as under: 235. Control over
subordinate courts. The control over district courts and courts subordinate
thereto including the posting and promotion of, and the grant of leave to,
persons belonging to the judicial service of a State and holding any post
inferior to the post of district judge shall be vested in the High Court, but
nothing in this article shall be construed as taking away from any such person
any right of appeal which he may have under the law regulating the conditions
of his service or as authorising the High Court to deal with him otherwise than
in accordance with the conditions of his service prescribed under such law.
It is
in the light of the aforesaid relevant scheme of the Constitution that we now
proceed to tackle the main controversy posed for our consideration. Point No.1:
So far as this point is concerned, it is strictly not necessary for us to go
into the reason or the cause which led the appellant-State to resort to the
exercise of legislative power for enacting the impugned Act. The question is
whether the Act, as enacted, by its express language, can apply to judicial
service of the State or not. When we turn to this Act, we find that it is
enacted to provide for adequate representation of SC, ST and OBC candidates in
Posts and Services under the State. The State is defined by Section 2(n) to
include the Government, the Legislature and the Judiciary of the State of Bihar
and all local or other authorities within the State or under the control of the
State Government. Consequently, it cannot be said that the Act, as framed, did
not seek to cover the Judiciary of the State of Bihar. The main provision of
the Act, which is on the anvil of controversy, is Section 4 which reads as
under : 4. Reservation for direct recruitment All appointments to services and
posts in an establishment which are to be filled by direct recruitment shall be
regulated in the following manner, namely :- (1) The available vacancies shall
be filled up (a) from open merit category .. ..
50%
(b) from reserved category .. .. 50% (2) The vacancies from different
categories of reserved candidates from amongst the 50% reserved category shall,
subject to other provisions of this Act, be as follows :- (a) Scheduled Castes
.. .. 14% (b) Scheduled Tribes .. .. 10% (c) Extremely Backward Class .. .. 12%
(d) Backward Class ..
.. 8%
(e) Economically Backward Woman .. 3% (f) Economically Backward .. .. 3% -----
Total .. 50% ---- Provided that the State Government may, by notification in
the official Gazette, fix different percentage for different districts in
accordance with the percentage of population of Scheduled Castes/Scheduled
Tribes and Other backward classes in such districts: Provided further that in
case of promotion, reservation shall be made only for Scheduled
Castes/Scheduled Tribes in the same proportion as provided in this section. (3)
A reserved category candidate who is selected on the basis of his merit shall
be counted against 50% vacancies of open merit category and not against the
reserved category vacancies. (4) Notwithstanding anything contained to the
contrary in this Act or in any other law or rules for the time being in force,
or in any judgement or decree of the Court, the provision of sub-section (3)
shall apply to all such cases in which all formalities of selection have been
completed before the 1st November 1990, but the appointment letters have not
been issued. (5) The vacancies reserved for the Scheduled Castes/Scheduled
Tribes and other Backward Classes shall not be filled up by candidates not
belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes
except as otherwise provided in this Act. (6) (a) In case of non-availability
of suitable candidates from the Scheduled Castes and Scheduled Tribes for
appointment and promotion in vacancies reserved for them, the vacancies shall
continue to be reserved for three recruitment years and if suitable candidates
are not available even in the third year, the vacancies shall be exchanged
between the Scheduled Castes and Scheduled Tribes and the vacancies so filled
by exchange shall be treated as reserved for the candidates for that particular
community who are actually appointed. (b) In case of non-availability of
suitable candidates from the Extremely Backward Classes and Backward Classes
the vacancies so reserved shall continue to be reserved for them for three
recruitment years and if suitable candidates are not available even in the
third year also, the vacancies shall be filled by exchange between the
candidates from the extremely Backward and Backward Classes and the vacancies
so filled by Exchange shall be treated as reserved for the candidates of that
particular community who are actually appointed. (c) In case of
non-availability of suitable candidates for the vacancies reserved for the
economically backward women the vacancies shall be filled first by the
candidates from the Scheduled Castes, then by the candidates from the Scheduled
Tribes, then by the candidates from extremely backward class, and then by the
candidates from backward class. The vacancies so filled in the transaction
shall be treated as reserved for the candidates of that particular community
who are actually appointed. (d) If in any recruitment year, the number of
candidates of Scheduled Castes/Scheduled Tribes, extremely Backward and
Backward Classes are less than the number of vacancies reserved for them even
after exchange formula the remaining backlog vacancies may be filled by general
candidates after dereserving them but the vacancies so dereserved shall be
carried forward for three recruitment years.
(e) If
the required number of candidates of Scheduled Castes, Scheduled Tribes and
Extremely Backward and Backward Classes are not available for filling up the
reserved vacancies, fresh advertisement may be made only for the candidates
belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely
Backward and Backward Classes, as the case may be, to fill the backlog
vacancies only.
A bare
reading of the said provision shows that all appointments to services and posts
in any establishment by way of direct recruitment require to be subjected to
reservation so that all available vacancies have to be filled in from open
category candidates only up to 50% and from reserved category up to remaining
50%. It cannot be disputed that posts of District Judges and Judges subordinate
to the District Judiciary are also posts in Judicial Service. Question is
whether the phrase posts in any establishment governs such judicial posts. We
have, therefore, to turn to the definition of the term establishment as found
in Section 2(c) of the Act. The relevant provision thereof lays down that
establishment means any Office or department of the State concerned with the
appointments to public services and posts in connection with the affairs of the
State. On a conjoint reading of the definition of State under Section 2(n) and
the definition establishment under Section 2(c), the following statutory scheme
emerges. Any office or establishment of the Judiciary of the State of Bihar
concerned with the appointments to public services and posts in connection with
affairs of the Judiciary of the State of Bihar would fall within the sweep of
the term establishment. Once that conclusion emerges from the scheme of the
Act, it becomes obvious that all appointments to services and posts in any
office or department of the Judiciary of the State of Bihar would be covered by
the sweep of Section 4. On the aforesaid scheme of the Act, the High Court in
the impugned judgment, has taken the view that the operation of Section 4 for
offices or departments of the Judiciary of the State of Bihar would cover only
the ministerial staff of the District Courts and courts subordinate thereto and
would not include Presiding Officers and therefore, Section 4 will not govern
the direct recruitment to the posts of Presiding Officers of the District
Judiciary as well as of Subordinate Judiciary.
It is
difficult to appreciate this line of reasoning on the express language of the
relevant provisions of Section 4 read with the definition provisions. It
becomes obvious that the term any office of the Judiciary of the State of Bihar
would naturally include not only ministerial staff but also officers, including
Presiding Officers of courts comprised in the Judiciary of the State. Once that
conclusion is reached on the express language of the relevant provisions of the
Act, it cannot be held that the thrust of Section 4 would not apply to govern
reservation for direct recruitment to the posts of Presiding Officers in the
District Courts as well as courts subordinate thereto, as all of them will form
part and parcel of the Judiciary of the State of Bihar and will have to be
treated as holders of offices in the State Judiciary. Consequently, it is not
possible to agree with the contention of learned senior counsel Shri Thakur for
the High Court that on the express provisions of the Act, Section 4 cannot
apply to govern recruitment to posts in Subordinate Judiciary. The first point
for determination, therefore, has to be answered in the affirmative in favour
of the appellants and against the respondents.
Point
No.2: Since it is held that Section 4 of the impugned Act, on its express
terms, covers direct recruitment to posts in the cadre of District Judiciary as
well as to Subordinate Judiciary in the State of Bihar, moot question arises as
to whether Section 4 can be sustained on the touchstone of the relevant
Constitutional scheme governing the recruitment and appointments to these
posts.
For
coming to the grip of this problem, we have to keep in view the salient
features of the Constitution emanating from the Directive Principles of State
Policy as laid down by Article 50 which underscores the felt need of separation
of the Judiciary from the Executive. For achieving that purpose, the
Constitution has made separate provisions regarding the recruitment and
appointment to the cadre of District Judges as well as the Subordinate
Judiciary as found in Chapter VI of Part VI of the Constitution and, as seen
earlier, these provisions are conspicuously not included in part XIV dealing in
general with Services under the Union and the States. Article 309 itself, which
is of general nature, dealing with regulation of Recruitment and conditions of
Service of persons serving in the Union or a State is expressly made subject to
other provisions of the Constitution. The first part of Article 235 itself lays
down that it is for the High Court to control the District Courts and Courts
subordinate thereto and in exercise of that control vesting in the High Court,
regulation of posting and promotions and granting of leave to persons belonging
to the Judicial Services has to be done by the High Court. It is, of course,
true that in the second part of Article 235 judicial officers already appointed
to the Service have their statutory right of appeal and the right to be dealt
with regarding other service conditions as laid down by any other law for the
time being in force, expressly protected. But these provisions of the second
part only enable the Governor under Article 309, in the absence of any
statutory enactment made by the competent Legislature for regulating the
conditions of service of judicial officers who are already recruited and have
entered and become part and parcel of the State service, to promulgate
appropriate rules on the subject. But so far as the entry points are concerned,
namely, recruitment and appointment to the posts of Presiding Officers of the
courts subordinate to the High Courts, only Articles 233 and 234 would govern
the field.
Article
234 lays down the procedure and the method of recruiting judicial officers at
grass-root level being Subordinate Judges and Munsiffs as laid down by the 1955
Rules. These Rules are also framed by the Governor of Bihar in exercise of his
powers under Article 234 obviously after the consultation of the High Court and
the Public Service Commission. Rules regarding the procedure of selection to be
followed by the State Public Service Commission as found in Rules 4 to 17 deal
with the method to be adopted by the Public Service Commission while selecting
candidates who offer their candidature for the posts advertised to be filled
in. These Rules obviously require consultation with the Commission on the
procedural aspect of selection process. But so far as the High Court is
concerned, its consultation becomes pivotal and relevant by the thrust of
Article 233 itself as it is the High Court which has to control the candidates,
who ultimately on getting selected, have to act as Judges at the lowest level
of the Judiciary and whose posting, promotion and grant of leave and other
judicial control would vest only in the High Court, as per Article 235 first
part, once they enter the judicial service at grass-root level. Thus consultation
of the Governor with the High Court under Article 234 is entirely of a
different type as compared to his consultation with the Public Service
Commission about procedural aspect of selection. So far as direct recruitment
to the posts of District Judges is concerned, Article 233 sub-article (2)
leaves no room for doubt that unless the candidate is recommended by the High
Court, the Governor cannot appoint him as a District Judge.
Thus
Articles 233 and 234, amongst them, represent a well-knit and complete scheme
regulating the appointments at the apex level of District Judiciary, namely,
District Judges on the one hand and Subordinate Judges at the grass-root level
of Judiciary subordinate to the district court. Thus Subordinate Judiciary
represents a pyramidical structure. At base level i.e. grass- root level are
the Munsiffs and Magistrates whose recruitment is governed by Article 234. That
is the first level of the Judiciary. The second level represents already
recruited judicial officers at grass-root level, whose working is controlled by
the High Court under Article 235 first part. At the top of this pyramid are the
posts of District Judges. Their recruitment to these posts is governed by
Article 233. It is the third and the apex level of Subordinate Judiciary. It
has also to be kept in view that neither Article 233 nor Article 234 contains
any provision of being subject to any enactment by appropriate Legislature as
we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter Articles
contain provisions regarding the rule making power of the concerned authorities
subject to the provisions of the law made by the Parliament or Legislature.
Such a provision is conspicuously absent in Articles 233 and 234 of the
Constitution of India. Therefore, it is not possible to agree with the
contention of learned counsel for the appellant-State that these Articles only
deal with the rule making power of the Governor, but do not touch the
legislative power of the competent Legislature. It has to be kept in view that
once the Constitution provides a complete Code for regulating recruitment and
appointment to District Judiciary and to Subordinate Judiciary, it gets
insulated from the interference of any other outside agency.
We
have to keep in view the scheme of the Constitution and its basic framework
that the Executive has to be separated from the Judiciary. Hence, the general
sweep of Article 309 has to be read subject to this complete Code regarding
appointment of District Judges and Judges in the Subordinate Judiciary. In this
connection, we have also to keep in view Article 245 which, in its express
terms, is made subject to other provisions of the Constitution which would
OBinclude Articles 233 and 234. Consequently, as these twin Articles cover the entire
field regarding recruitment and appointment of District Judges and Judges of
the Subordinate Judiciary at base level pro tanto the otherwise paramount
legislative power of the State Legislature to operate on this field clearly
gets excluded by the Constitutional scheme itself.
Thus
both Articles 309 and 245 will have to be read subject to Articles 233 and 234
as provided in the former Articles themselves. It is true, as submitted by
learned senior counsel Shri Dwivedi for the appellant-State that under Article
16(4) the State is enabled to provide for reservations in Services. But so far
as Judicial Service is concerned, such reservation can be made by the Governor,
in exercise of his rule making power only after consultation with the High
Court. The enactment of any statutory provision dehors consultation with the
High Court for regulating the recruitment to District Judiciary and to
Subordinate Judiciary will clearly fly in the face of the complete scheme of
recruitment and appointment to Subordinate Judiciary and the exclusive field
earmarked in connection with such appointments by Articles 233 and 234.
It is
not as if that the High Courts being constitutional functionaries may be
oblivious of the need for a scheme of reservation if necessary in appropriate
cases by resorting to the enabling provision under Article 16(4). The High
Courts can get consulted by the Governor for framing appropriate rules
regarding reservation for governing recruitment under Articles 233 and 234. But
so long as it is not done, the Legislature cannot, by an indirect method,
completely bypassing the High Court and exercising its legislative power,
circumvent and cut across the very scheme of recruitment and appointment to
District Judiciary as envisaged by the makers of the Constitution. Such an
exercise, apart from being totally forbidden by the Constitutional scheme, will
also fall foul on the concept relating to separation of powers between the
legislature, the executive and the judiciary as well as the fundamental concept
of an independent judiciary. Both these concepts are now elevated to the level
of basic structure of the Constitution and are the very heart of the
Constitutional scheme. In the case of His Holiness Kesavananda Bharati
Sripadagalvaru vs. State of Kerala & Anr. etc.etc., (1973) 4 SCC 225, a
twelve-member Constitution Bench of this Court had occasion to consider this
question regarding the basic structure of the Constitution which, according to
the Court, could not be tinkered with by the Parliament in exercise of its
amending power under Article 368 of the Constitution.
Sikri,
CJ., in para 247 of the Report referred with approval the decision of the
Judicial Committee in Liyanges case, (1967) 1 AC 259 for culling out the
implied limitations on the amending power of the competent Legislature like the
Parliament of Ceylon with which that case was concerned.
The
relevant observations are found in paras 253 to 255 of the Report at pages 357
and 358, which read as under :
253.
The case, however, furnishes another instance where implied limitations were
inferred. After referring to the provisions dealing with judicature and the
Judges, the Board observed:
These
provisions manifest an intention to secure in the judiciary a freedom from
political, legislative and executive control. They are wholly appropriate in a
Constitution which intends that judicial power shall be vested only in the
judicature. They would be inappropriate in a Constitution by which it was
intended that judicial power should be shared by the executive or the
legislature.
The
Constitutions silence as to the vesting of judicial power is consistent with
its remaining, where it had lain for more than a century, in the hands of the
judicature. It is not consistent with any intention that henceforth it should
pass to or be shared by, the executive or the legislature.
254.
The Judicial Committee was of the view that there exists a separate power in
the judicature which under the Constitution as it stands cannot be usurped or
infringed by the executive or the legislature. The Judicial Committee cut down
the plain words of Section 29(1) thus:
Section
29(1) of the Constitution says.- Subject to the provisions of this Order
Parliament shall have power to make laws for the peace, order and good
government of the Island. These words have habitually been
construed in their fullest scope. Section 29(4) provides that Parliament may
amend the Constitution on a two-thirds majority with a certificate of the
Speaker. Their Lordships however cannot read the words of Section 29(1) as
entitling Parliament to pass legislation which usurps the judicial power of the
Judicature-e.g., by passing an Act of attainder against some person or
instructing a judge to bring in a verdict of guilty against someone who is
being tried-if in law such usurpation would otherwise be contrary to the
Constitution.
(p.289)
255. In conclusion the Judicial Committee held that there was interference with
the functions of the judiciary and it was not only the likely but the intended
effect of the impugned enactments, and that was fatal to their validity.
The
ultimate conclusion to which Chief Justice Sikri reached are found in paras 292
to 294 at page 366 of the Report which read as under : 292. The learned
Attorney-General said that every provision of the Constitution is essential;
otherwise it would not have been put in the Constitution. This is true. But
this does not place every provision of the Constitution in the same position.
The true position is that every provision of the Constitution can be amended
provided in the result the basic foundation and structure of the constitution
remains the same. The basic structure may be said to consist of the following
features:
(1)
Supremacy of the Constitution; (2) Republican and Democratic form of
Government; (3) Secular character of the Constitution; (4) Separation of powers
between the legislature, the executive and the judiciary; (5) Federal character
of the Constitution.
293.
The above structure is built on the basic foundation, i.e., the dignity and
freedom of the individual.
This
is of supreme importance. This cannot by any form of amendment be destroyed.
294.
The above foundation and the above basic features are easily discernible not
only from the preamble but the whole scheme of the Constitution, which I have
already discussed.
The
other learned Judges constituting the Constitution Bench had nothing
inconsistent to say in this connection.
Thus
separation of powers between the legislature, the executive and the judiciary
is the basic feature of the Constitution. It has also to be kept in view that
judicial independence is the very essence and basic structure of the
Constitution. We may also usefully refer to the latest decision of the
Constitution Bench of this Court in Registrar (Admn.), High Court of Orissa,
Cuttack etc. vs.
Sisir
Kanta Satapathy (Dead) by LRs & Anr. etc., (1999) 7 SCC page 725, wherein
K.Venkataswami, J., speaking for the Constitution Bench, made the following
pertinent observations in the very first two paras regarding Articles 233 to
235 of the Constitution of India : An independent judiciary is one of the basic
features of the Constitution of the Republic. Indian Constitution has zealously
guarded independence of judiciary. Independence of judiciary is doubtless a
basic structure of the Constitution but the said concept of independence has to
be confined within the four corners of the Constitution and cannot go beyond
the Constitution.
The
Constitution Bench in the aforesaid decision also relied upon the observations
of this Court in All India Judges Association & Ors.etc. (supra), wherein
on the topic of regulating the service conditions of Judiciary as permitted by
Article 235 read with Article 309, it had been observed as under : .the mere
fact that Article 309 gives power to the executive and the legislature to
prescribe the service conditions of the judiciary does not mean that the
judiciary should have no say in the matter. It would be against the spirit of
the Constitution to deny any role to the judiciary in that behalf, for theoretically
it would not be impossible for the executive or the legislature to turn and
twist the tail of the judiciary by using the said power.
Such a
consequence would be against one of the seminal mandates of the Constitution,
namely, to maintain the independence of the judiciary.
In
view of this settled legal position, therefore, even while operating in the
permissible field of regulating other conditions of service of already
recruited judicial officers by exercising power under Article 309, the
concerned authorities have to keep in view the opinion of the High Court of the
concerned State and the same cannot be whisked away. In order to fructify this
Constitutional intention of preserving the independence of Judiciary and for
fructifying this basic requirement, the process of recruitment and appointment
to the District Judiciary with which we are concerned in the present case, is
insulated from outside legislative interference by the Constitutional makers by
enacting a complete Code for that purpose, as laid down by Articles 233 and
234. Consultation with the High Court is, therefore, an inevitable essential
feature of the exercise contemplated under these two Articles. If any outside
independent interference was envisaged by them, nothing prevented the founding
fathers from making Articles 233 and 234 subject to the law enacted by the
Legislature of States or Parliament as was done in the case of other Articles,
as seen earlier. In the case of State of Kerala vs. Smt.A.Lakshmikutty &
Ors., (1986) 4 SCC 632, a two member Bench of this Court, speaking through
Sen,J., placing reliance on the Constitution Bench judgment of this Court in
Chandra Mohan vs. State of U.P., (1967) 1 SCR 77, made the following pertinent
observations in paras 22 to 25 at pages 647-648, which read as under : 22. The
heart of the matter is that consultation between the State Government and the
High Court in the matter of appointment of District Judges under Article 233(1)
of the Constitution must be real, full and effective. To make the consultation
effective, there has to be an interchange of views between the High Court and
the State Government, so that any departure from the advice of the High Court
would be explained to the High Court by the State Government. If the State
Government were simply to give lip service to the principle of consultation and
depart from the advice of the High Court in making judicial appointments
without referring back to the High Court the difficulties which prevent the
government from accepting its advice, the consultation would not be effective
and any appointment of a person as a District Judge by direct recruitment from
the bar or by promotion from the judicial services under Article 233(1) would
be invalid. Unless the State Government were to convey to the High Court the
difficulties which prevent the government from accepting its advice by
referring back the matter the consultation would not be effective.
23.
Indubitably, the power of appointment of persons to be District Judges
conferred on the Governor, meaning the State Government, under Article 233(1)
in consultation with the High Court is an executive function. It has been
settled by a long line of decisions of this Court starting from Chandra Mohan
v. State of U.P. to M.M.Gupta v. State of J & K that the power of the State
Government is not absolute and unfettered but is hedged in with conditions.
The
exercise of the power of the Governor under Article 233(1) in the matter of
appointment of District Judges is conditioned by consultation with the exercise
of the power that the power can only be exercised in consultation with the High
Court.
24.
Appointment of persons to be, and the posting and promotion of, District Judges
in any State, shall be made by the Governor of the State under Article 233(1)
in consultation with the High Court exercising jurisdiction in relation to such
State. Sub-Article (2) thereof provides that a person not already in the
service of the Union or of the State shall only be eligible to be appointed as
a District Judge if he has been for not less than seven years an advocate or a
pleader and is recommended by the High Court for appointment. It is therefore
obvious that eligibility of appointment of persons to be District Judges by
direct recruitment from amongst the members of the bar depends entirely on the
recommendation of the High Court.
The
State Government has no power to appoint any person as a District Judge except
from the panel of names forwarded by the High Court. As stated, the decisions
starting from Chandra Mohan v. State of U.P. have established the principle as
a rule of law, that consultation between the Governor and the High Court in the
matter of appointment of District Judges under Article 233(1) must not be empty
formality but real, full and effective.
25. In
Chandra Mohan v. State of U.P. Subba Rao, C.J. speaking for a unanimous court
observed : The exercise of the power of appointment by the Governor is
conditioned by his consultation with the High Court, that is to say, he can
only appoint a person to the post of District Judge in consultation with the
High Court. The object of consultation is apparent. The High Court is expected
to know better than the Governor in regard to the suitability or otherwise of a
person, belonging either to the Judicial Service or to the bar, to be appointed
as a District Judge.
Therefore,
a duty is enjoined on the Governor to make the appointment in consultation with
a body which is the appropriate authority to give advice to him.These
provisions indicate that the duty to consult is so integrated with the exercise
of the power that the power can be exercised only in consultation with the
person or persons designated therein.
To the
same effect are the decisions in Chandramouleshwar Prasad v. Patna High Court,
(1969) 3 SCC 56, High Court of P & H v. State of Haryana, (1975) 1 SCC 843,
A.Panduranga Rao v. State of A.P., (1975) 4 SCC 709, and M.M. Gupta v. State of
J & K, (1982) 3 SCC 412.
It
becomes, therefore, obvious that no recruitment to the post of a District Judge
can be made by the Governor without recommendation from the High Court.
Similarly, appointments to Subordinate Judiciary at grass-root level also
cannot be made by the Governor save and except according to the rules framed by
him in consultation with the High Court and the Public Service Commission. Any
statutory provision bypassing consultation with the High Court and laying down
a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar
Legislature has got to be held to be in direct conflict with the complete Code
regarding recruitment and appointment to the posts of District Judiciary and
Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the
Constitution.
Impugned
Section 4, therefore, cannot operate in the clearly earmarked and forbidden
field for the State Legislature so far as the topic of recruitment to District
Judiciary and Subordinate Judiciary is concerned. That field is carved out and
taken out from the operation of the general sweep of Article 309. It is, of
course, true as laid down by a catena of decisions of this Court, that topics
of constitution of courts and services, laying down of rules regarding the
conditions of service other than those expressly placed within the jurisdiction
of the High Court by Articles 233 and 235, providing for age of superannuation
or other retirement benefits to judicial officers, fixing pay scales,
diversification of cadres may form part of general recruitment and conditions
of services falling within the spheres of Governors rule making power under
Article 309 read with second part of Article 235 or may even be made subject
matter of legislation by competent Legislature in exercise of its legislative
powers under entry 41 of List II or for that matter entry 11A of List III of
the Seventh Schedule. But save and except this permitted field, the State
Legislature cannot enter upon the forbidden field expressly reserved for
consultation with the High Court by the thrust of Articles 233 and 234 so far
as the initial entry point of recruitment to judicial service at grass root
level or at the apex level of the District Judiciary is concerned. A
three-Judge Bench of this Court in the case of A.Panduranga Rao vs. State of
Andhra Pradesh & Ors., AIR 1975 SC 1922, speaking through Untwalia, J., considered
the question whether any one can be appointed by the Governor as a District
Judge without being recommended by the High Court. Relying on the Constitution
Bench decision of this Court in Chandra Mohans case (supra) in para 7 of the
Report, observations were made as under :
There
are two sources of recruitment, namely, (i) service of the Union or the State,
and (ii) members of the Bar. The said Judges from the first source are
appointed in consultation with the High Court and those from the second source
are appointed on the recommendation of the High Court.
And
thereafter following pertinent observations were made in para 8, which read as
under : A candidate for direct recruitment from the Bar does not become
eligible for appointment without the recommendation of the High Court.
He
becomes eligible only on such recommendation under clause (2) of Article 233.
The High Court in the judgment under appeal felt some difficulty in
appreciating the meaning of the word recommended. But the literal meaning given
in the Concise Oxford Dictionary is quite simple and apposite.
It
means suggest as fit for employment. In case of appointment from the Bar it is
not open to the Government to choose a candidate for appointment until and
unless his name is recommended by the High Court.
It is,
therefore, obvious that the State Legislature has no role to play while
controlling appointments of District Judges under Article 233 or appointment of
Civil Judges to Subordinate Judiciary at grass-root level under the District
Judiciary and it is only the Governor who is entrusted with the said task which
he has to undertake after consultation with the High Court and by framing
appropriate rules for recruitment to Judiciary at grass-root level as enjoined
by Article 234 and can only act on recommendation by the High Court for direct
recruitment from the Bar for being appointed as District Judges as laid down by
Article 233 sub-article (2). There is no third method or third authority which
can intervene in the process or can have its say, whether legislative authority
or executive authority, as the case may be, independently of the complete
scheme of such recruitment as envisaged by the aforesaid two Articles.
It is,
therefore, difficult to appreciate the contention of learned senior counsel for
the appellant-State that paramount legislative power of the State Legislature
stands untouched by the scheme of the aforesaid two Articles of the
Constitution. Shri Dwivedi, learned senior counsel for the appellant-State was
right when he contended that Article 16(4) is an enabling provision permitting
the State to lay down a scheme of reservation in State Services. It may also be
true that Judicial Service can also be considered to be a part of such Service
as laid down by this Court in the case of B.S.Yadav & Ors.etc. (supra).
However, so far as the question of exercising that enabling power under Article
16(4) for laying down an appropriate scheme of reservation goes, as seen
earlier, we cannot be oblivious of the fact that the High Court, being the high
Constitutional functionary, would also be alive to its social obligations and
the Constitutional guideline for having scheme of reservation to ameliorate the
lot of deprived reserved categories like the SC, ST and Other Backward Classes.
But for that purpose, the Governor can, in consultation with the High Court,
make appropriate rules and provide for a scheme of reservation for appointments
at grass-root level or even at the highest level of the District Judiciary, but
so long as this is not done, the State Legislature cannot, by upsetting the
entire apple-cart and totally bypassing the Constitutional mandate of Articles
233 and 234 and without being required to consult the High Court, lay down a
statutory scheme of reservation as a road roller straight jacket formula
uniformly governing all State Services, including Judiciary. It is easy to
visualise that the High Court may, on being properly and effectively consulted,
endorse the Governors view to enact provision of reservation and lay down the percentage
of reservation in Judicial Service, for which it will be the appropriate
authority to suggest appropriate measures and required percentage of
reservation, keeping in view the thrust of Article 335 which requires the
consideration of the claim of members of SC, ST and OBC for reservation in
Services to be consistent with the maintenance of efficiency of administration.
It is obvious that maintenance of efficiency of judicial administration is
entirely within the control and jurisdiction of the High Court as laid down by
Article 235. The State Legislature, on its own, would obviously lack the
expertise and the knowledge based on experience of judicial administration
which is possessed by the High Court. Consequently, bypassing the High Court,
it cannot, in exercise of its supposed paramount legislative power enact any
rule of thumb and provide fixed percentage of reservation for SC, ST and Other
Backward Classes in Judicial Services and also lay down detailed procedure to
be followed as laid down by sub-sections (3) to (6) of Section 4 for effecting
such statutorily fixed 50% reservation. It is easy to visualise that if the
High Court is not consulted and obviously cannot be consulted while enacting
any law by the State Legislature and en bloc 50% reservation is provided in the
Judicial Service as is sought to be done by Section 4 of the Act and which
would automatically operate and would present the High Court with a fait
accompli, it would be deprived of the right to suggest during the
Constitutionally guaranteed consultative process, by way of its own expertise
that for maintenance of efficiency of administration in Judicial Service
controlled by it, 50% reservation may not be required, and/or even lesser
percentage may be required or even may not be required at all. Even that
opportunity will not be available to the High Court if it is held that the
State Legislature can enact the law of reservation and make it automatically
applicable to Judicial Service bypassing the High Court completely. Such an exercise
vehemently canvassed for our approval by learned senior counsel for the appellant- State cannot be countenanced on the express scheme of the
Constitution, as discussed by us earlier. Even proceeding on the basis that the
scheme of Article 16(1) read with Article 16(4) may be treated to be forming a
part of the basic feature of the Constitution, it has to be appreciated that
for fructifying such a Constitutional scheme Article 335 has to be kept in view
by the authority concerned before such a scheme of reservation can be
promulgated. Once Article 335 has to be given its full play while enacting such
a scheme of reservation, the High Court, entrusted with the full control of
Subordinate Judiciary as per Article 235 by the Constitution, has got to be consulted
and cannot be treated to be a stranger to the said exercise as envisaged by the
impugned statutory provision.
We may
now refer to one submission of learned senior counsel Shri Dwivedi for the
appellant-State. He contended that there cannot be any dispute reOBgarding
appointments to available vacancies in the cadre of District Judiciary and that
they can be filled in only on the recommendation of the High Court and equally
there cannot be any dispute regarding filling up of all vacancies in the Subordinate
Judiciary as per Article 234. They can be filled in by the Governor as per
rules framed in consultation with the High Court and the Public Service
Commission. But so far as reservation of vacancies to be filled in by reserved
category of candidates is concerned, it is an exercise which is resorted to by
the State authorities in discharge of their enabling powers under Article
16(4). That is a stage anterior to the question of recruitment or appointment
on available vacancies in the cadre of District Judiciary or in the cadre of
Subordinate Judiciary. Consequently, such an exercise invoked by any
administrative order or, even by legislation, cannot be said to be conflicting
in any manner with the procedure of recruitment and appointment to District Judiciary
and Subordinate Judiciary as per Articles 233 and 234 of the Constitution. This
argument, as submitted, looks attractive but on closer scrutiny falls through,
as we shall see presently. It is not in dispute and cannot be disputed that
creation of cadres and creation of posts in a cadre comprised in Judicial
Service of the State can be resorted to by the Governor in exercise of his rule
making power under Article 309 or for that matter by any appropriate
Legislation by the State authorities under the very same Article. But once
cadre of District Judges and Subordinate Judiciary are constituted by the
aforesaid authorities and posts backed up by suitable budgetary provisions are
created and are accordingly made available to be filled in in the concerned
cadres, process of creation of posts comes to an end. Thereafter when in the
created posts borne on any judicial cadre, whether at the District Court level
or at the Subordinate
Court level, any
vacancies arise by retirement or otherwise non-availability of the incumbents
due to any other reason, question of filling up of those available vacancies
would arise. Such available vacancies of sanctioned posts have to be filled in
only after following the procedure laid down by Articles 233 and 234 of the
Constitution of India and cannot be subjected to any other procedure. At that
stage, directing the High Court without its consent and consultation and merely
by the thrust of legislative provision that 50% of the available vacancies in
the cadre of District Judges or Judges of the Subordinate Judiciary must be
filled in from reserved candidates only would ex-facie cut across the power of
the High Court which alone can recommend the filling up of all such vacancies
in the district cadre as per Article 233 and equally the power of the High
Court to render effective consultation to the Governor under Article 234 when
he frames rules for recruitment of candidates for filling up of all available
vacancies in the Subordinate Judiciary under the district court as per Article
234. It is difficult to appreciate how filling up of vacancies in the already
sanctioned posts in these cadres will remain an exercise anterior to the
procedure laid down by the Constitution for filling up of these vacancies as
per Articles 233 and 234, as the case may be. In any case, impugned Section 4
of the Act, by its express wordings, does not contemplate any such stage
anterior to filling up of vacancies in the existing posts. On the contrary, it
provides that all appointments to Services and Posts in an establishment which
are to be filled in by direct recruitment shall be regulated in the manner laid
down therein. Meaning thereby, 50% of the appointments to such available posts
have to be done from reserved category candidates as per percentage provided
for each of such classes. That necessarily means that 50% of the existing
vacancies in the available posts in the Services have to be filled in from
reserved category candidates only. This mandate of Section 4, therefore, gets
directly hit by the scheme of the complete Code for such direct recruitment to
the Judicial Services in the district cadre or subordinate cadre, as envisaged
by Articles 233 and 234 of the Constitution of India.
We may
take an example to highlight this position.
Supposing
there are 10 vacancies of District Judges at a given point of time in the
State, which are available to be filled in by direct recruitment keeping in
view the ratio of such direct recruitment permissible under the relevant rules.
Once these 10 vacancies of District Judges are required to be filled in by
direct recruitment on the recommendation of the High Court from the members of
the Bar subject to the minimum eligibility laid down under Article 233
sub-article (2), the High Court obviously has to undertake the exercise of
selection of eligible candidates on its own. The Governor, in such a case,
shall have only to pass consequential orders of appointment from the panel as
recommended by the High Court. If no such recommendations are forthcoming, the
Governor will have no jurisdiction or power to make any such appointment as
clearly mandated by Article 233 sub-article (2). Once the High Court undertakes
such an exercise and prepares a panel of eligible and suitable direct recruits
from the Bar after holding appropriate tests whether written or oral as the
relevant procedural rules may provide, it will, in the serial order of inter se
merit prepare a panel of 10 candidates and recommend them for appointment and
the panel may be sent for passing appropriate orders. If that is so, all the 10
vacancies have to be filled in in the light of the panel prepared by the High
Court, keeping in view the names of candidates listed in the panel as per the
rankings made by the High Court in the order of their respective merits.
Therefore, the High Court will prepare a panel of 10 recommendees for
appointment to first 10 vacancies in the serial order of their ranking as per
merit and suitability.
This
is the Constitutional mandate of that Article. Now if it is visualised that the
State Legislature, by an independent enactment, as in the present case,
requires the High Court to treat only the first five vacancies to be filled in
by direct recruitment from general category in the order of merit and the
remaining five vacancies are required to be filled in from reserved category of
candidates only and even if those reserved five vacancies can be filled in by
appointing reserved category of candidates as per the order of their inter se
merit, even then the thrust of Section 4, to that extent, will certainly cut
across or restrict the power and authority of the High Court to recommend
appointments to all the ten vacancies of suitable meritorious candidates as
found by it. The result would be that first five vacancies may go to the first
five candidates recommended in the panel according to merit but so far as the
vacancy nos.6 to 10 are concerned even though the 6th direct recruit
recommended by the High Court is obviously more meritorious than the candidate
listed in the panel at serial no.7, he may have to be bypassed if the candidate
at serial no.6 in the panel belongs to general category while candidate no.7
belongs to SC category namely, reserved category. The net result would be that
though the High Court, in exercise of its Constitutional obligation and
authority, recommends the 6th vacancy in the District Judge cadre to be filled
up by candidate no.6 listed in the panel, by thrust of impugned Section 4 of
the Act, the 6th vacancy can be filled in by the Governor by appointing candidate
no.7 who is less meritorious as compared to candidate no.6 and who is not
recommended by the High Court for being appointed in vacancy no.6. Thus, he
will be bypassed by candidate no.7 who may belong to the SC category and who
may be standing higher in so far as inter se merit between the SC candidates
only are concerned. Supposing at serial no.9 there is another SC candidate then
vis-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 category who is less meritorious and this
exercise would satisfy the requirement of Article 233 sub-article (2) only
gives lip service to that Article. The reason is obvious. The High Courts power
and in fact Constitutional obligation to recommend meritorious candidates found
suitable by it for filling up of all vacant posts will obviously get truncated
and restricted and the High Court though not recommending candidate No.7 as
suitable candidate for filling up vacancy no.6, will be helpless by not being
permitted appointment of candidate no.6 who belongs to general category to
occupy that post and will have willy-nilly to suffer against its own decision
regarding appointment of candidate no.7 who belongs to SC category for filling
up vacancy no.6 and this exercise will be thrust upon the High Court without
being consulted in this connection by the State Legislature by enacting the
impugned Section 4 of the Act. This appointment obviously will be null and void
and violative of Article 233 (2). This type of bypassing the High Court will
clearly be an act of interference with independence of judiciary which is the
hallmark and bedrock of the Constitutional scheme. Section 4, therefore, has
got to be held not to be operative on the forbidden field occupied by Articles
233 and 234 of the Constitution of India. This is obviously a type of
reservation which is thrust upon the High Court by Section 4. It cannot be
treated to be referable to a stage anterior to the process of recruitment and
appointment. In fact, as seen above, Section 4 itself deals with the
reservation for direct recruitment on available posts. Therefore, in the field
of recruitment itself Section 4 seeks to have its independent sway. Both
Article 233 and Article 234 also deal with the very same question of
recruitment and appointment to District Judiciary. It is this very field wholly
reserved for operation of Articles 233 and 234 that is encroached upon by
Section 4, by its express language, if made applicable to judicial
appointments. As seen earlier, consultation with the High Court is a sine qua
non in connection with direct recruitment of judicial officers at grass-root
level i.e.
Munsiffs
and Magistrates and whose recruitment is governed by the rules framed under
Article 234 being the 1955 Rules.
Similarly,
recruitment at district level judiciary is governed by 1951 Rules framed under
Article 233 read with Article 309 of the Constitution of India. However, direct
recruitment as District Judges has to be solely based on appropriate
recommendations of suitable candidates by the High Court. In fact Rule 3
thereof, provides that the strength of the Service and the number and character
of the posts shall be as specified in the schedule to these rules, and once we
turn to the Schedule to the 1951 Rules, we find listed five cadres of superior
judiciary at the district level and the total posts sanctioned being 26.
Obviously, this rule has a direct nexus with Article 309 read with Article 233.
But beyond that when the question of filling up of vacancies in the cadres of
higher District Judiciary on the already sanctioned posts crops up, the field
is fully occupied by Article 233 sub-articles (1) and (2) and there is no other
power with any other Constitutional authority to effect such recruitment on
available vacancies. It is not possible to visualise that, while providing for
direct recruitment to District Judiciary as per Article 233 sub-article (2),
even though the minimum eligibility qualification laid down under the said
provision is that the candidate should have been practising for not less than
seven years as an advocate or a pleader, any further eligibility as belonging
to a reserved category is envisaged for a given post. Consequently, it is not
possible to agree with the contention of learned counsel Shri Dwivedi for the
appellant-State that question of recruitment to the cadre of District Judges by
directing the High Court to recommend eligible candidates for appointment
keeping in view only 50% of the available vacancies to be filled in by general
category and by treating the remaining 50% of the vacancies as reserved would
be a stage anterior to the stage of recruitment or appointment to such
available vacancies on the already sanctioned posts in the cadre of District
Judiciary. At this stage we may also refer to the decision of a Constitution
Bench of this Court in B.S.Yadavs case (supra) wherein Chandrachud, CJ had an
occasion to interpret Article 235 read with Article 309 proviso. The question
which arose for consideration in that case was whether the rule of seniority of
existing members of Superior Judicial Services as framed by the Governor in
exercise of his powers under Article 309 proviso could validly operate to
regulate the seniority of such already recruited and appointed judicial
officers in Subordinate Judiciary. In order to avoid the operation of the said
rule which was having a direct nexus with conditions of service of already
appointed judicial officers, a contention was raised that under Article 235
even this subject matter was part and parcel of the control of Subordinate
Judiciary vesting in the High Court under that article. While negativing this
contention, the Constitution Bench, speaking through Chandrachud, CJ, placed
reliance on the second part of Article 235 and observed as under : The power of
control vested in the High Court by Art.235 is expressly made subject to the
law which the State Legislature may pass for regulating the recruitment and
service conditions of judicial officers of the State. The framers of the
Constitution did not regard the power of the State Legislature to pass laws
regulating the recruitment and conditions of service of judicial officers as an
infringement of the independence of the judiciary. The mere powers to pass such
a law is not violative of the control vested in the High Court over the State
judiciary.
Placing
strong reliance on the aforesaid observations it was contended by learned
senior counsel for the appellant-State that it has been authoritatively ruled
by the Constitution Bench of this Court that the framers of the Constitution
did not regard the power of the State Legislature to pass laws regulating the
recruitment and conditions of service of judicial officers as an infringement
of the independence of the judiciary. Now it must be kept in view that these
observations are made in the light of second part of Article 235 which
expressly saves laws regulating the conditions of service of already recruited
judicial officers and who are functioning under the control of the High Court
under Article 235. Once the very same Article permits the limited field for
operation of law-makers or rule-makers under Article 309 for regulating the
conditions of services of such already appointed judicial officers by way of
enacting any appropriate statutory provision either by exercise of rule making
power of the Governor under Article 309 proviso or by appropriate legislation
under the said Article, it cannot be said that these observations have laid
down even impliedly, that while recruiting judicial officers either at
grass-root level under Article 234 or at district level under Article 233 any
legislation can be enacted by the Legislature or that the Governor by
independent exercise of his rule making power can make such a provision. This
question of controlling recruitment and appointment at the entry point either
at grass-root level i.e. level no.1 or at the apex level being level no.3 in
the pyramid of District Judiciary never arose for consideration of the Constitution
bench and hence the aforesaid observations cannot be considered to be the
decision rendered by the Court on this moot point. It is also easy to visualise
that while considering the scope of play of Article 309 vis-à-vis second part
of Article 235 which carves out a permissible field by the very same Article
for law to be made for regulating other permissible conditions of service the
term recruitment has been employed almost by way of mere reference to the
language of Article 309 and nothing more. If it is held that even impliedly the
aforesaid decision of the Constitution Bench has taken the view that the
appropriate authority, i.e. the Governor, in exercise of his delegated
legislative powers under the Proviso to Article 309 or any State Legislature in
exercise of its paramount power under Article 309 first part, can control the
recruitment of judicial officers at district level or at the level of
Subordinate Judiciary bypassing the High Court, then such an implied thrust of
the said observations must be held to be totally obiter and uncalled for.
Consequently, the aforesaid decision in B.S.Yadavs case (supra) must be
confined to the facts of that case laying down the limited ratio that for
deciding the rule of seniority of already appointed judicial officers in
District Judiciary or Subordinate Judiciary, appropriate law or rules can be
framed under Article 309 by the concerned authority as permissible under second
part of Article 235. That is the only ratio of that decision and it cannot
travel any further. However, leaving aside that question, it can easily be
visualised that the aforesaid observations in the Constitution Bench judgment
in B.S.Yadavs case (supra) may, in general sense, refer to the concept of
recruitment as laid down by proviso under Article 309 in view of the settled
legal position that, in exercise of their powers under the said Article, the
concerned authorities can form cadres of service in Subordinate Judiciary and
can also create sanctioned posts in these cadres. The said exercise of creation
of posts may also get covered by the concept of recruitment. It is only in this
broad sense that the term recruitment can be said to have been mentioned by the
Constitution Bench in the aforesaid observations but they can certainly not go
any further nor can be treated to have ruled anything contrary to the express
scheme of Articles 233 and 234. This is the additional reason why the aforesaid
general observations have to be confined to the limited scope and ambit of
Article 309, as indicated therein. For all these reasons, therefore, the
decision in B.S.Yadavs case (supra) cannot be of any real assistance to learned
counsel for the appellant-State. We may now briefly deal with the main
contentions canvassed by learned senior counsel for the appellant-State in
support of their appeals. We shall first deal with the contentions canvassed by
Dr.Dhavan for the appellant-State. The interpretation sought to be put on
Article 309 by Dr.Dhavan, as we have already seen earlier, is not capable of
having wider coverage so as to engulf recruitment to judicial offices on
district cadre as well as on those below the district cadre. The Constitutional
scheme examined and seen earlier contra-indicates this contention. So far as
Dr.Dhavans submission that second part of Article 235, despite the full control
of District Judiciary being vested in the High Court permits enactment of
suitable provisions under Article 309 also, cannot be of any real assistance.
As we have already seen above, the second part of Article 235 deals with the
topic of other conditions of service including the right of appeal which might
be guaranteed to judicial officers by appropriate legislation enacted by the
authorities acting under Article 309 but that is an operation on the limited
field permitted by the second part of Article 235 at second level of the
pyramid of Subordinate Judiciary and nothing more.
Dr.Dhavan
was right when he contended that on the scheme of Articles 233 to 235 it is not
as if other legislation is a total taboo. However, the said submission ignores
the fact that it is the limited field earmarked by second part of Article 235
regarding permissible regulation of conditions of service that is reserved for
operation of Article 309 through its appropriate authorities. But, save and
except this limited aspect which is permitted, the rest of the control totally
vests in the High Court under Article 235 first part. What is permitted by
Article 235 cannot be considered as a blanket power entrusted to the
Legislature or to the Governor under Article 309 by the Constitutional makers
dehors the complete net of Constitutional scheme controlling recruitment and
appointment to District Judiciary and the Subordinate Judiciary under Articles
233 and 234 of the Constitution of India. These twin Articles conspicuously do
not envisage even the limited independent field for operation of Article 309 as
is permitted by Article 235 second part. That shows the clear intention of the
Constitutional makers that so far as question of recruitment and appointment to
available vacancies in the cadre of District Judges and Judges of the
Subordinate Judiciary is concerned, neither the Legislature nor the Governor,
dehors any consultation with the High Court, can have any independent say. We
may now deal with the supposed anomalies that may result if the interpretation
canvassed by the respondent High Court is accepted. Dr.Dhavan contended that,
if power of the State Legislature to enact appropriate provisions for
appointment of members of Subordinate Judiciary is excluded by Article 234, and
to that extent Article 309 is also to be out of picture, then various anomalous
situations may arise. He firstly, submitted that judicial service as defined by
Article 236(b) will get truncated in its operation. It is not possible to agree
with this contention for the simple reason that the definition of judicial
service only earmarks the Members of that Service. How their appointment is to
be made has to be gathered from Articles 233 and 234. If they exclude any
statutory interference by the State Legislature such interference would remain
excluded by the sweep of these two Articles themselves. The second anomaly
pointed out by Dr.Dhavan is that power to legislate must be given full effect
unless there is express exclusion. Even this cannot be said to be an anomaly
for the simple reason that Article 309 itself is subject to the opening part of
the clause and has to give way if other Articles of the Constitution cover the
field. The complete Code projected by Articles 233 and 234 would itself be an
exclusion of the legislative power and equally the Governors independent power
under Article 309 qua that field. Even that apart, Article 245 dealing with the
legislative powers of Parliament and the State Legislatures in terms makes the
said provisions subject to other provisions of the Constitution. Therefore, on
the same analogy by which Article 309 cannot independently operate qua the
exclusive field carved out by Articles 233 and 234, the legislative powers of
Parliament as well as the State Legislature would also get excluded. The next
anomaly pointed out by Dr.Dhavan was that under the Constitution, the scheme of
separation of powers is devised to separate the Executive from the Judiciary
and that this scheme does not extend to oust the legislative power. If it is
held that Article 234 ousts the legislative power for making suitable enactment
on the topic covered by it, then to that extent, it is contended, an anomalous
situation would arise not contemplated by the Constitutional scheme. It is
difficult to appreciate this contention. As per Article 50 of the Constitution
of India, judicial functioning has to be treated to be separate from that of
the executive and to fructify the said Constitutional scheme, Article 309 is
made subject to other relevant Articles of the Constitution including Articles
233 and 234. Thus Articles 233 and 234 have their full sway not being inhibited
by any outside independent interference to be made by the Governor under
proviso to Article 309 or by the State Legislature in that connection.
Dr.Dhavan next contended that on the express language of Article 233, only the
rule making power of the Governor is fettered but not the legislative power of
the State. This submission is mis-conceived as the legislative power is
co-terminus with the Governors rule making power.
For
regulating the conditions of Service of Members of public service as found in
Article 309, as the proviso to Article 309 itself shows, what the legislature
can enact in connection with the topic mentioned therein can be done by the
Governor in exercise of his rule making power as a stop-gap arrangement till
the very same field is covered by the statutory enactment. Thus the earmarked
field is the same, namely, conditions of Service of employees of State Public
Service. Employees of a Public Service are a genus of which Members of Judicial
Service are a species. So far as the appointment to Judicial Service is
concerned, the said topic is carved out from the general sweep of Article 309
on account of the words in its opening part, read with Articles 233 and 234.
The Governors rule making power in this connection is separately dealt with
under Article 234 and it is the procedure laid down therein which will govern
the said rule making power of the Governor and cannot draw any sustenance
independently from Article 309 which gets excluded in its own terms so far as
Members of Judicial Service are concerned. A limited play available to the
Legislature to deal with unexcepted and open categories of conditions of
Service of judicial officers as found in Second Part of Article 235, therefore,
cannot be read backwards to govern even by implication the method of
appointment of Members of Subordinate Judiciary even at the grass-root level.
For that purpose, Article 234 is the only repository of the power available to
the concerned Constitutional authority which has to follow the gamut of the
procedure laid down therein. Dr.Dhavan tried to salvage the situation by
submitting that if this view is taken, the greatest anomaly that would arise is
that there would be total ouster of legislative interference as per Article
234.
There
will be definite permissible interference of legislative power on topics
mentioned in second part of Article 235. While so far as appointments of
District Judges under Article 233 are concerned, there is no express ouster of
legislative interference at all. He, therefore, submitted that a totally
anomalous situation would emerge, as at the grass-root level i.e. lowest rung
of regulating the recruitment and appointment of Judiciary, there will be total
exclusion of legislative interference while at the apex level i.e. at the
district level there will be no ouster of legislative interference. Even this
argument of despair cannot be countenanced for the simple reason that on the
topic of appointment of direct recruits to the District Judiciary at the
district court level or even at the grass-root level of Munsiffs and Civil
Judges-junior division or senior division, as the case may be, both under
Article 234 as well as under Article 233 interference by the State Legislature
is totally excluded. If appointments at the grass-root level in Subordinate
Judiciary is taken as base level no.1 in the pyramid of Subordinate Judiciary,
as indicated earlier, then the express language of Article 234 lays down a
complete procedure which cannot be tinkered with by any outside agency like the
legislature. For regulating the service conditions of already appointed
judicial officers which will be treated as level no.2, to the extent to which
the conditions of service can be regulated by law as laid down by second part
of Articles 235 a limited field is kept open for legislative play. It is only
because of the permissible field indicated by the very same Article that the
Governor under Article 309 or even the State Legislature can be permitted to
operate in that field.
While
at the apex level of the pyramid of Subordinate Judiciary, which is level no.3,
for recruiting District Judges a complete Code is furnished by Article 233
excluding outside interference, as indicated earlier. Thus neither at the base
level i.e. at the grass-root level of controlling entry point to Subordinate
Judiciary nor at the entry point at the apex level of the pyramid for
appointing District Judges any State Legislatures interference is contemplated
or countenanced. On the contrary, it is contra-indicated by necessary
implication. Thus, neither at the first level nor at the third level, both
dealing with entry points to Subordinate Judiciary, the State Legislature has
any say and at the second level it has a limited say to the extent permitted by
the very same Article 235 second part and which does not pertain to recruitment
or appointments at all.
Thus,
it cannot mean that because of this limited independent play at the joint is
available to the authorities functioning under Article 309 at the second level
to frame rules or legislation for permissively regulating the conditions of
service of the members of the judiciary who have already entered the Judicial
Service at the grass-root level, or even at the district level, any anomalous
situation emerges. Dr.Dhavan then invited our attention to the observations of
a nine-Judge Constitution Bench judgment of this Court in Indra Sawhney &
Ors. case (supra), para 694 at page 662, para 738 at page 689 and para 788 at
page 720, for submitting that Article 16 sub-article (4) enables the State
authorities to direct reservation in Services under the State. This
Constitutional power, once exercised, cannot be sought to be circOBumscribed or
curtailed by non-compliance with the procedure of Article 234 or for that
matter Article 233. This argument of his cannot be countenanced. It is obvious
that for utilising the enabling power under Article 16(4), the State
Legislature cannot enter the forbidden field and conflict with substantive
provisions of Article 233 or first part of Article 235. Meaning thereby,
neither can it lay down new criterion of eligibility contrary to sub-article
(2) of Article 233 for appointment to the District Judiciary nor can it affect
the control of the High Court in connection with District Judiciary as vested
in the High Court under first part of Article 235. If at all any reservation
policy under Article 16(4) is to be pursued, it has to be exercised in
consonance with the scheme of Articles 233 and 234 and not dehors it. Dr.Dhavan
fairly conceded that neither in the Rules of 1951 regarding appointments to
district cadre as per Article 233 nor under the Rules of 1955 for appointments
in the cadre of Subordinate Judiciary as laid down by Article 234, there is any
provision for 50% reservation of posts. As already noted earlier, Article 16(4)
is an enabling provision and it enables the competent authority which is
entrusted with the task of recruitment and appointment to any service including
the Judicial Service to exercise this enabling power and provide for
appropriate reservation. In fact there is no dispute between the parties in
these proceedings that with the consent of the High Court of Patna, 14%
reservation for SC and 10% reservation for STs is already accepted as
permissible reservation for direct recruitment at the grass-root level and Rule
20 of the Rules of 1955 clearly points to such reservation, percentage of which
has already been agreed to between the High Court on the one hand and the
Government on the other. That would be perfectly a permissible exercise under
Article 16(4) read with Article 234. But beyond that unless the rules are
properly amended by following the procedure of Articles 233 and 234 read with
Article 309 after consulting the High Court, the Governor on his own cannot
provide for any more reservation. Nor can, by a legislative Act, an independent
provision under Article 16(4) totally bypassing the High Court be resorted to.
As already seen earlier, Article 16(4) has to be read with Article 335 and
maintenance of efficiency of administration in the making of appointments to
Services and posts would be a sine qua non before considering the claim for reservation
of SC and STs which would also include the OBCs as laid down by a Constitution
Bench judgment of this Court in Indra Sawhneys case (supra), (2000) 1 SCC 168 =
JT 1999 (9) SC 557. If Article 16(4) has to be read with Article 335 as already
ruled by the Constitution Bench judgment of this Court, the same authority
which can have the pulse and full control of administration pertaining to
concerned services having sufficient expertise can avail of the aforesaid
Article 16(4) keeping in view the mandate of Article 335.
In
case of Subordinate Judicial Services comprising of district courts and courts
subordinate thereto, the full control vests in the High Court under Article 235
which can control the promotions and postings of such members of the Judiciary.
It is the High Court which will have full knowledge and expertise for deciding
the question of adequacy of representation by way of reservation in Judicial
Service. Therefore, it is the High Court only which can give green signal
regarding the extent of such reservations at entry points as candidates
entering on reserved posts in Judicial Service of the District Judiciary both
at the apex level and at the grass-root level have to act under its control. In
the absence of such a green signal by the High Court there would be no occasion
to invoke Article 16(4) read with Article 335. We fail to appreciate how the
State Legislature by enacting Section 4 of the Act, can decide for itself that
50% reservation is required to be made in appointments to District and Subordinate
Judiciary consistent with the maintenance of efficiency of judicial
administration which is under full control of the High Court as per Article
235. As it cannot of its own be alive to this vital aspect lacking requisite
knowledge and expertise, any scheme of reservation framed by the legislature
under Article 16(4) dehors Article 335 so far as judicial appointments are
concerned, must necessarily fall through.
The
authority giving green signal as per Article 16(4) read with Article 335 can be
only the High Court. It will be totally out of picture so far as enactment of
such straight jacket reservation provisions dehors the High Courts consultation
goes. In this view of the matter, the broad submission of Dr.Dhavan that
reservation in fulfillment of right to equality of opportunity under Article
16(1) read with Article 16(4) can be resorted to without reference to the High
Court and therefore, the impugned Act cannot be found fault with, cannot be
accepted. Reliance placed by Dr.Dhavan to the decision of this Court in
Durgacharan Misra vs. State of Orissa & Ors., (1987) 4 SCC 646, wherein at
para 15 a two Judge Bench observed that Rules under Article 234 are framed by
the Governor, in exercise of his rule making power under Article 309, cannot be
of any assistance to him. Even if the rules contemplated by Article 234 are
framed by the Governor under Article 309 proviso, that power is clearly
fettered and regulated by Article 234 as well as Article 233 wherein
consultation of the High Court in one case and total clearance by the High
Court by way of recommendation of the appointees in the other case, cannot be
given a go by. Turning to the contentions canvassed by Shri Dwivedi in support
of the companion appeal, it may be stated that he adopted the arguments of
Dr.Dhavan but he further contended that under Article 234, the rule making
power of the Governor is hedged in by consultation with the High Court and the
Public Service Commission. So far as the Public Service Commission is
concerned, as per Article 320 sub-article (4), it is not required to be
consulted in respect of the manner in which any provision referred to in clause
(4) of Article 16 may be made or as respects the manner in which effect may be
given to the provisions of Article 335. Shri Dwivedi, therefore, submitted that
consultation with the Public Service Commission cannot be in connection with
Article 16(4) and if that is so, by necessary implication, consultation with
the High Court under Article 234 can also be treated to be standing at par and
consequently the decision on any policy of reservation as per Article 16(4)
need not get covered by any consultation with the High Court. It is difficult
to appreciate this contention. The Public Service Commission is merely an
examining body which examines the candidates for seeking appointments to the
advertised posts. It has, therefore, nothing to do with the policy decision of
laying down of reservation in appointments to the posts. That policy has to be
resorted to under Article 16(4) by the authority calling upon the Public
Service Commission to proceed with the procedure of selection of suitable
candidates for filling up advertised posts subject to the conditions laid down
in the advertisement. That type of consultation naturally would not stand at
par with the consultation with the High Court as laid down by Article 234 of
the Constitution. As seen earlier, consultation with the High Court as
envisaged by Article 234 is for fructifying the Constitutional mandate of
preserving the independence of Judiciary, which is its basic structure. The
Public Service Commission has no such Constitutional imperative to be
fulfilled. The scope of examining bodys consultation can never be equated with
that of consultation with the appointing body whose agent is the former. It is
also pertinent to note that the essence of consultation is the communication of
a genuine invitation to give advice and a genuine consideration of that advice
which in turn depends on sufficient information and time being given to the
party concerned to enable it to tender useful advice. It is difficult to
appreciate how the Governor while consulting the Public Service Commission
before promulgating the Rules of Recruitment under Article 234 has to solicit
similar type of advice as he would solicit from the High Court on due
consultation. The advice which in the process of consultation can be tendered
by the Public Service Commission will confine itself to the Constitutional
requirements of Article 320. They are entirely different from the nature of
consultation and advice to be solicited from the High Court which is having
full control over Subordinate Judiciary under Article 235 of the Constitution
and is directly concerned with the drafting of efficient judicial appointments
so that appropriate material will be available to it through the process of
selection both at the grass-root level and at the apex level of the District
Judiciary. Consultation, keeping in view the role of the High Court under
Article 234 read with Article 235, stands on an entirely different footing as
compared to the consultation with the Public Service Commission which has to
discharge its functions of entirely different type as envisaged by Article 320
of the Constitution. Naturally, therefore, consultation with the High Court
will have a direct linkage with the policy decision as to how many posts should
be advertised, what are the felt needs of District Judiciary and whether there
can be any reservation which can be permitted to be engrafted in the Rules framed
by the Governor consistent with the maintenance of efficiency of judicial
administration in the State. It is also pertinent to note that there is no
express fetter regarding consultation with the High Court excluding Article
16(4) as we find in Article 320 (4) in connection with the Public Service
Commissions consultation. This very departure and absence of such exclusion of
the High Courts consultation indicate the intention of the Constitutional
makers that policy decision as per Article 16(4) has to be taken by the
Governor in consultation with the High Court while framing appropriate rules
governing the recruitment and appointments to the Judicial Service both at the
apex level and at the grass-root level. Submission of Shri Dwivedi that
legislative power stands independently and dehors Articles 235 and 234 cannot
be countenanced for the detailed reasons given by us while rejecting the
contentions of Dr.Dhavan.
Shri
Dwivedis effort to draw sustenance for his argument from the observations of
the learned Judges of the Constitution Bench in Indra Sawhneys case (supra)
namely, Justice Pandians observations at para 243, Justice Sawant at para 555
and Justice Kuldip Singh in para 383, also cannot be of any avail to him. The
question of reservation of posts in a cadre cannot be equated with the question
of creation of posts in a cadre. After the posts in a cadre are created how
many thereof can be filled in from general category and how many from reserved
category candidates, will remain a policy decision which has to be undertaken
under Article 16(4) read with Article 335 and only by the competent authority
namely, the High Court in dialogue with the Governor so far as Judicial Service
is concerned, as we have seen earlier. The observations of learned Judges in
the aforesaid Indra Sawhneys case (supra) therefore, regarding the scope and
ambit of Article 16(4) in general in connection with those services wherein
such reservation would be effected by the competent authorities themselves
without consultation with other agencies like the High Court, cannot be of any
avail to Shri Dwivedi for culling out the competence of the authority concerned
to impose such reservation in connection with Judicial Services without
consulting the High Court. Reliance placed by learned counsel for the
appellant-State on various rules framed by Governors of other States in
consultation with High Courts like the Uttar Pradesh Governor also cannot be of
any avail as those rules are framed by the Governors in consultation with the
High Courts after following the procedure of Articles 234 or for that matter
Article 233. Decisions of this Court relied on by Shri Dwivedi for showing that
the Governor can create cadres and also can lay down provisions for regulating
the conditions of Service as provided under Article 235 second part also are
besides the point. The effort made by learned counsel for the appellant-State
to show that Judicial Service also represents a part of State Service and it is
the State within the meaning of Article 12 amenable to writ jurisdiction under
Article 226 so far as the administrative decisions taken by the courts are
concerned also cannot solve the problem which is posed for our consideration.
The High Court may be an authority within the meaning of Article 12, its administrative
decisions may be subject to its writ jurisdiction on judicial side but that
does not mean that for recruiting judicial officers for manning Judicial
Services, the say of the High Court can be totally bypassed by enacting
provisions like the impugned Act by the State Legislature which, while enacting
this statute, was not expected to consult any one else including the High
Court. Of course, Shri Dwivedi was right when he contended that in Civil Appeal
No.9072 of 1996 there was no occasion for the High Court to treat the policy
reflected by the stand of the High Court regarding giving preference in
appointments to SC and ST candidates if they are of equal merit with general
category candidates as the only reasonable one. It is true that this exercise
was not required to be undertaken by the High Court which was concerned with
the short question as to whether the impugned Act, especially Section 4
thereof, can be permitted to operate of its own so far as the recruitment to
District Judiciary was concerned. To that extent, the aforesaid reasoning of
the High Court in the impugned judgment cannot be sustained as being redundant
and uncalled for. We may now briefly refer to the written submissions on behalf
of the appellant-State submitted by Shri Dwivedi on 20th January, 2000. As we have already discussed earlier, it is not possible
for us to agree with the contention that reservation of posts does not truncate
the High Courts power of making appointments on available vacancies. In cases
where reservations are made after consultation with the High Court, the
situation stands entirely on a different footing as the High Court itself
agrees with the rule making authority under Article 234 or for that matter
under Article 233 to recommend reserved category candidates on earmarked
vacancies in the already created posts in a cadre. But the question is as to
whether bypassing the High Court such an exercise can be undertaken by the
State Legislature or by the Governor under Article 309. As seen earlier, such an
exercise is not countenanced by the relevant Constitutional scheme. It is also
not possible to agree with the contention that in the absence of express
exclusion of any law made by the Legislature, the legislative power remains
untouched by Articles 233 and 234. On the contrary, as seen earlier, because of
the opening words of Article 309 as well as Article 245 what is provided by
Articles 233 and 234 is a complete Code, which cannot be touched independently
of the High Courts consultation either by the Legislature or by the rule making
authority. Reliance placed on the observations in paras 16 & 17 in the case
of M.M.Gupta & Ors. etc. vs. State of Jammu & Kashmir & Ors.,
(supra) to the effect that appointing authority is the Governor also cannot
advance the case of Shri Dwivedi for the simple reason that under the scheme of
Articles 234 and 233 once effective consultation is made with the High Court
and rules are framed as per Article 234 and selections are made as per these
rules or when the High Court recommends appointments under Article 233, the
selection process is over, only the ministerial work of issuing actual
appointment orders may be carried out by the Governor. But that would not, in
any case, interfere with the independence of Judiciary and the power of the
High Court. The Governor, acting as per Article 234 while framing rules in
consultation with the High Court and the Public Service Commission and also
while acting on the recommendation of the High Court under Article 233, only
performs the ultimate act of issuing actual appointment orders to the selectees
but these selectees have undergone the process of filtering by the High Court
as per Article 233(2) or in cases governed by Article 234, as per the procedure
laid down in the rules framed under that Article, after consultation with the
High Court. It is not as if the Council of Ministers or the Legislature has
anything independently to say to the Governor in this connection bypassing the
High Court. Reference to the case in Samsher Singh etc. vs. State of Punjab
& Anr. etc., AIR 1974 SC 2192, about Cabinets responsibility to Legislature
is totally besides the point while considering the moot question with which we
are concerned. It is difficult to appreciate on the scheme of Articles 233 to
235 the contention of Shri Dwivedi that recruitment procedure could be laid
down either by the Legislative enactment or rules under Article 309 without
having consultation with the High Court. Further contention of Shri Dwivedi
that Parliamentary system of governance is also a basic feature of the
Constitution also cannot advance his case for the simple reason that Article
235 itself read with Article 309 furnishes restraints on the legislative power
so far as topics of recruitment and appointment to District Judiciary and
Subordinate Judiciary are concerned being covered by the complete code of
Articles 233 and 235, as seen earlier. The dichotomy sought to be suggested
between the process of selection for recruitment to advertised posts on the one
hand and reservation of posts in a cadre on the other by Shri Dwivedi is not a
real one. As already seen earlier, recruitment and appointments have to be done
to already created posts in the cadre and once the procedure of creation of
posts is over, the further question as to how these posts are to be filled in
and from which source or category of candidates, will entirely depend upon the
rules framed by the Governor in consultation with the High Court, so far as
Article 234 is concerned and will wholly be subject to the recommendations of
the High Court under Article 233. The submission of Shri Dwivedi that cadre
formation is in the exclusive domain of the government and forms part of
constitution of State Judicial Service, cannot have any impact on the moot
question as to how created posts in a given cadre can be filled in and from
which category of candidates. That remains essentially in the domain of
recruitment and appointment to already existing, created and sanctioned posts
in a given cadre. Reliance placed on Articles 37, 38 and 46 read with Article
16(4) cannot have any impact on the decision of the question posed for our
consideration. Reliance placed by Shri Dwivedi on the decisions of this Court
in Indra Sawhneys case (supra), Dr.Preeti Srivastava & Anr. etc. vs. State
of M.P. & Ors.etc., (1999) 7 SCC 120 and in Durgacharan Misra vs.
State
of Orissa & Ors. (supra) also cannot be of any effective help for resolving
the question with which we are concerned. The general scheme of reservation and
to what extent it can be applied to a given service directly under the control
of the State without any reference to Judicial Service, as discussed in the
first two cases, can be of no avail to Shri Dwivedi. So far as the case of
Smt.A.Lakshmikutty (supra) is concerned, the relevant observations in the
concerned paragraphs do not support the submissions put forward by Shri Dwivedi
for the appellant-State. Even if Judicial Service is also a State Public
Service and hence a Service under the State as laid down therein so as to
attract Articles 12 and 226 of the Constitution, the question which remains for
consideration is as to whether the scheme of recruitment and appointment to the
Subordinate Judiciary as laid down by the Constitution itself can be encroached
upon, whittled down or cut across by any enactment or rule dehors the said
Constitutional scheme. Smt.A.Lakshmikuttys judgment (supra) had not to consider
that question. Even though judicial officer in the Judicial Service of the
State would be an officer under the State and according to which principle, to
a limited extent, the conditions of service of said judicial officer can be
laid down by the State or the Governor under Article 309 independently of the
High Court as per the second part of Article 235, so far as Articles 233 and
234 are concerned as already seen earlier, they stand entirely on a different
footing and do not countenance any independent encroachment on the field
covered by the said provisions bypassing the High Court. There cannot be any
dispute that laying down of pay-scales as one of the conditions of Service
under the second part of Article 235 is not within the expression of control
which is vested in the High Court as laid down in Smt.Lakshmikuttys case
(supra). But it is difficult to appreciate how reservation can be treated on
par with laying down of pay scales.
Making
available pay-scales to the members of the Judicial Service will have a direct
impact on the State exchequer and Consolidated Fund of State in case of
District Judiciary but that does not mean that the recruitment to such judicial
posts also can be controlled by the State, dehors the requirements of Articles
233 and 234. The next written submission of Shri Dwivedi placing reliance on a
judgment of this Court in the Belsund Sugar Co. Ltd. vs. The State of Bihar
& Ors.etc., JT 1999 (5) SC 422, that reservations are a special topic and,
therefore, the general expression of appointments would not embrace, the same
cannot be accepted for the simple reason that once posts are created and sanctioned
in a cadre, to the extent to which any independent order or direction under
Article 309 or Article 16(4) encroaches upon the field of recruitment and
appointment to such posts, specially carved out by the Constitutional makers
for operation by the Governor in consultation with the High Court or with the
concurrence or recommendation of the High Court, as the case may be, the said
encroachment would remain totally ultra vires and cannot be saved by provisions
of reservation envisaged by Article 16(4). Reliance placed by Shri Dwivedi on a
decision of this Court in Chandra Mohans case (supra) to show that there is no
complete separation of powers has to be appreciated in the light of the
observations made therein in connection with the nature of permissible field
for operation of state authorities under Article 235(2). These observations
have nothing to do with the complete separation of powers between the Judiciary
and the Executive so far as initial recruitment at entry points in Subordinate
Judiciary up to district level is concerned. Even if rules under Article 234
can be said to have been framed by the Governor of the concerned State, on a
conjoint reading of Articles 234 and 309 the fact remains that these rules, in
order to be effective, have to satisfy the Constitutional requirement of the
procedure laid down therein for their promulgation.
The
alternative contention that when the State sends a proposal to the High Court
for introducing reservations, the High Court is bound to carry out the mandate
of Articles 15(4), 16(4), 38 and 46 of the Constitution, and should respond
with such duty-consciousness, cannot be of any avail on the facts of the
present case as we are not concerned with such a situation. The rules framed
under Articles 233 and 234 by the Bihar Government in consultation with the
High Court are not on the anvil of scrutiny. The only short question with which
we are concerned is whether in the absence of appropriate provision being made
in these rules, the State Legislature can intervene on its own bypassing the
High Court and lay down a rule of thumb by way of fixed quota of reservation in
all the posts in the Subordinate Judiciary. The Mandal Commission Report has
nothing to do with the question with which we are concerned. Even if adequate
representations of reserved category of candidates for appointment to Judiciary
may be a laudable object, it has to be kept in view that whatever is right has
to be done in a right manner or not at all. Even in the present case 24%
reservation for SC and ST candidates at grass-root level in Judiciary has
already been agreed to by the High Court and the appointments are accordingly
being made since years.
The
only question is whether by Section 4 of the impugned Act that percentage of
reservation can be increased to 50% by bringing other reserved categories like
the Other Backward Classes, completely bypassing the High Court and without
there being any need to consult it. Such a legislative Act cannot be
countenanced on the touchstone of relevant Articles of the Constitution. This
question cannot be answered in the light of the supposed Constitutional
philosophy underlying the scheme of reservation for weaker sections of the
community in general terms. It is now time for us to refer to the judgments of this
Court and other High Courts on which reliance was placed by learned counsel for
the contesting parties in support of their respective cases. A three-Judge
Bench of this Court in the case of M.M.Guptas case (supra), speaking through
Shri R.S.Pathak, J (as he then was), while considering the question of
independence of judiciary, has clearly ruled that any scheme of appointment to
judicial posts by the executive at the State and the Central level, without
consulting the High Court, would clearly affect the independence of judiciary.
Pertinent
observations in this connection are found in paras 33 and 34. The relevant
portions thereof read as under:
.Independence
of the judiciary is one of the basic tenets and a fundamental requirement of
our Constitution.
Various
Articles in our Constitution contain the relevant provisions for safeguarding
the independence of the Judiciary. Article 50 of the Constitution which lays
down that the State shall take steps to separate the judiciary from the
executive in the public services of the State, postulates separation of the
judiciary from the executive.
Unfortunately,
for some time past there appears to be an unhappy trend of interference in the
matter of judicial appointments by the executive both at the State and the Central
level..Article 235 of the Constitution vests the control of judicial
administration completely in the High Court excepting in the matter of initial
appointment and posting of District Judges and the dismissal, removal or
termination of services of these officers. Even in these matters the
requirement of the Constitution is that the Governor must act in consultation
with the High Court. If in the matter of appointment, the High Court is sought
to be ignored and the executive authority chooses to make the appointment,
independence of the judiciary will be affected.
In the
light of the aforesaid settled legal position, therefore, there cannot be any
escape from the conclusion that if the process of appointment to Subordinate
Judiciary at district level or grass-root level is tried to be circumscribed or
truncated by any direction as to reservation of available vacancies for a given
category of candidates it would certainly impinge upon the power of the High
Court in suggesting appointment of suitable candidates to fill up the posts of
judicial officers with a view to fructify the goal of furnishing effective
mechanism of judicial administration and making the Judiciary fully vibrant,
effective and result-oriented. Such an independent Judiciary is the heart of
the Constitutional scheme, as already discussed earlier. In the case of All
India Judges Association & Ors. (supra), the special features of Judicial
Services have been clearly earmarked in the light of Articles 233, 234, 236 and
309. A three-Judge Bench of this Court, speaking through Sawant, J., while
disposing of the Review Petitions by the Union of India and Officers of the
States, has made the following apposite observations in paras 4 & 5 :
The
judicial service is not service in the sense of employment. The judges are not
employees. As members of the judiciary, they exercise the sovereign judicial
power of the State. They are holders of public offices in the same way as the
members of the council of ministers and the members of the legislature. When it
is said that in a democracy such as ours, the executive, the legislature and
the judiciary constitute the three pillars of the State, what is intended to be
conveyed is that the three essential functions of the State are entrusted to
the three organs of the State and each one of them in turn represents the
authority of the State. However, those who exercise the State-power are the
ministers, the legislators and the judges, and not the members of their staff
who implement or assist in implementing their decisions. The council of
ministers or the political executive is different from the secretarial staff or
the administrative executive which carries out the decisions of the political
executive.
Similarly,
the legislators are different from the legislative staff. So also the Judges
from the judicial staff. The parity is between the political executive, the
legislators and the Judges and not between the Judges and administrative
executive. This distinction between the Judges and the members of the other services
has to be constantly kept in mind for yet another important reason.
Judicial
independence cannot be secured by making mere solemn proclamations about it. It
has to be secured both in substance and in practice. It is trite to say that
those who are in want cannot be free. Self-reliance is the foundation of
independence. The society has a stake in ensuring the independence of the
judiciary, and no price is too heavy to secure it. To keep the judges in want
of the essential accoutrements and thus to impede them in the proper discharge
of their duties is to impair and whittle away justice itself. (para 4) It is
high time that all concerned appreciated that there cannot be any link between
the service conditions of the judges and those of the members of the other
services.
It is
true that under Art.309 of the Constitution, the recruitment and conditions of
service of the members of the subordinate judiciary are to be regulated by the
Acts of the appropriate legislature and pending such legislation, the President
and the Governor or their nominees, as the case may be, are empowered to make
rules regulating their recruitment and the conditions of service. It is also
true that after the Council of States makes the necessary declaration under
Art.312, it is the Parliament which is empowered to create an All India
Judicial Service which will include posts not inferior to the post of District
Judge as defined under Art.236. However, this does not mean that while
determining the service conditions of the members of the Judiciary, a
distinction should not be made between them and the members of the other
Services or that the service conditions of the members of all the Services
should be the same. As it is, even among the other Services, a distinction is
drawn in the matter of their service conditions. The linkage between the
service conditions of the judiciary and that of the administrative executive
was an historical accident. The erstwhile rulers constituted, only one service.
Viz., the Indian Civil Service for recruiting candidates for the Judicial as
well as the Administrative Service and it is from among the successful
candidates in the examination held for such recruitment, that some were sent to
the administrative side while others to the judicial side. Initially, there was
also no clear demarcation between the judicial and executive services and the
same officers used to perform judicial and executive functions. Since the then
government had failed to make the distinction between the two services right
from the stage of the recruitment, its logical consequences in terms of the
service conditions could not be avoided. With the inauguration of the
Constitution and the separation of the State power distributed among the three
branches, the continuation of the linkage has become anachronistic and is
inconsistent with the constitutional provisions. The parity in status is no
longer between the Judiciary and the administrative executive but between the
judiciary and the political executive. Under the Constitution, the judiciary is
above the administrative executive and any attempt to place it on par with the
administrative executive has to be discouraged. The failure to grasp this
simple truth is responsible for the contention that the service conditions of
the judiciary must be comparable to those of the administrative executive and
any amelioration in the service conditions of the former must necessarily lead
to the comparable improvement in the service conditions of the latter. (para 5)
In our view, the aforesaid decision of the three Judge Bench on the relevant
scheme of the Constitution, especially, Articles 234 to 236 and 309 remains
well sustained and clearly indicates how Judicial Service, though being a part
of the general Service of the State, stands of its own and cannot countenance
any encroachment on it as it is based on the principle of independence of
Judiciary from the executive and/or legislative save and except to the limited
extent permitted by second part of Article 235 of the Constitution. Otherwise
the basic feature of independence of Judiciary will get eroded. The submission
of Shri Dwivedi in this connection that, even Tribunals have got trappings of
judicial power and decide lis between the parties also is besides the point
while considering the question as to how appointments to the lower Judiciary in
the strict sense of the term is to be effected. Once on this aspect the
Constitutional scheme is clear, it has got to be given its full effect. We may
now refer to Judgments of some of the High Courts to which our attention was
invited by learned senior counsel Shri Thakur for the respondent High Court. In
the case of K.N.Chandra Sekhara & Ors. vs. State of Mysore & Ors., AIR
1963 Mysore 292 (V 50 C 68), a Division Bench of the High Court of Mysore was
concerned with the question whether contrary to the statutory rules framed by
the Governor under Article 234 read with Article 309 of the Constitution of
India, laying down the criteria for recruitment to the cadre of Munsiffs in
Judicial Service of the State, the Public Service Commission of its own can fix
different criteria of passing marks for candidates belonging to SC and ST as
compared to higher passing marks for general category of candidates.
Answering
this question in the negative, Somnath Iyer, J., speaking for the Division
Bench observed that : Article 234 excepts out of the operation of Art.309,
appointments to Judicial Service and constitutes the Governor in a sense a
select legislative organ for enactment of rules for that purpose.
The
aforesaid observations will, of course, have to be read down in the light of
the Constitution Bench decision of this Court in B.S.Yadavs case (supra). The
next Judgment placed for our consideration by Shri Thakur is another Division
Bench judgment in M.I.Nadaf vs. The State of Mysore & Anr., AIR 1967 Mysore
77 (V 54 C 21). In that case another Division Bench of the Mysore High Court,
speaking through K.S.Hegde, J. (as he then was), had to consider the question
whether once rules are framed under Article 234 read with Article 309 of the
Constitution of India for governing the recruitment of Munsiffs any other
independent rule pertaining to general conditions of Service and laying down a
different eligibility criterion for a candidate to be considered for such
recruitment could be countenanced. In that case, the general rules framed under
Article 309 applicable to all State Services permitted clubbing of temporary
Service of candidates under the Government or holding a post under local
authority with the Service on regular basis for deciding about the requisite
experience of the concerned candidate for such posts. Though the General Rules
provided to the aforesaid effect, the rules framed under Articles 234 and 309
did not do so. Question was whether the General Rules could cut across the
rules framed under Article 234, the former not having been made in consultation
with the High Court. Negativing the contention that these General Rules which
were framed under Article 309 without reference to the High Court could operate
in connection with appointment of judicial officers at grass-root level as
governed by the rules under Article 234, Hegde, J., made relevant observations
in this connection at pages 78 and 79 in paras 9 and 10 of the Report as under
:
Article
309 of the Constitution empowers the Governor to make rules regulating the
recruitment and the conditions of services of persons appointed to the Civil
Services of the State. But that Article, as its opening words themselves
indicate, is subject to the other provisions of the Constitution. Article 234
is one such provision. The power of the Governor to make rules under Article
309 of the Constitution is not only subject to the other provisions of the
Constitution, but it is also subject to any Act of the appropriate Legislature.
But the rules to be made by him under Article 234 are not subject to any Act
that may be enacted by the appropriate Legislature. But they can be made only
after consultation with the State Public Service Commission and the High Court.
The consultation with the High Court is not something nominal. It is the very
essence of the matter. It must be borne in mind that our Constitution
visualises the separation of the judiciary from the executive. It is no doubt
true that the judicial service is also one of the States services. But it has
got its own individualistic character. Unlike the other services of the State,
the judicial service is expected to be independent of the executive. Often
times, it has to pronounce on the correctness or the legality of the action
taken by the other services of the State. There are occasions when it is
required to pronounce on the legality of an action taken by the Government or
even the Governor.
Such
being the case, it would not be proper to consider the judicial branch as being
just one of the branches of the State. It is for that reason, the Constitution
makers thought it proper to make separate provisions for the appointment of
judicial Officers.
..Our
view that appointments to judicial services of the State other than that of the
District Judges should be made only in accordance with the rules made by the
Governor under Article 234 of the Constitution after consultation with the
State Public Service Commission and the High Court exercising jurisdiction in
relation to such State and not under rules framed by him under Article 309 of
the Constitution is also supported by the decision of the Madras High Court in
N. Devasahayam v. State of Madras, AIR 1958 Mad 53 and that of the Rajasthan
High Court in Rajvi Amar Singh v. State of Rajasthan, AIR 1956 Raj 104.
In our
view, the aforesaid decision of the Mysore High Court is well sustained in the
light of the Constitutional scheme as culled out by a series of decisions of
this Court to which we have made reference earlier.
A Division
Bench of the Orissa High Court in the case of Manoj Kumar Panda vs. State of
Orissa & Ors., 1982 Lab.I.C. 1826, speaking through R.N.Misra, CJ. (as he
then was) had to consider an identical question which is posed for our
consideration in the present proceedings. The Orissa Judicial Service Rules
framed under Article 234 read with Article 309 provided a scheme of reservation
for SC and ST candidates. The said scheme was tried to be cut across by the
Orissa Legislature by enacting the Orissa Act 38 of 1975. Question was whether
such a legislative exercise dehors Article 234 and in exercise of powers under
Articles 245 and 246 was permissible. Even though parties had settled their
dispute, the High Court examined this vital question of great public importance
which may ex-facie be treated to be a obiter decision but which, in our view,
is fully sustained by the Constitutional scheme examined by us in the present
case in the light of decided cases of this Court. It was observed, in this
connection, by Misra, CJ, in para 5 of the Report as under : The Orissa Rules
of 1964 are specially made for recruitment to judicial service.
And
since in some Articles of the Constitution rules have been made subject to
legislation while in other Articles like Art.234, the rules have not been made
subject to legislation, a distinction must be maintained between the two sets
of rules. Where the Constitution specifically vests power in the Governor to
make rules and does not make his rules subject to legislation, it must follow
that the Constitution has intended those rules to be final on the subject
specified.
Thus,
in view of the specific provision in Art.234 authorising the Governor to make
rules for the purpose of appointment and in the instant case such rules having
been made viz. Orissa Rules of 1961, it must follow that the power given to the
State Legislature under Arts.234, 245, and 246 (3) of the Constitution would be
subject to the provisions of Art.234, in view of a non obstante clause
appearing at the beginning of Art.245(1). And in the result Orissa Act 38 of
1975 is not to apply to judicial service covered by Art.234 of the Constitution
so far as appointment is concerned.
A
similar view is also taken by the Allahabad High Court in the case of Farzand
vs. Mohan Singh & Ors., AIR 1968 All. 67 (V 55 C 18). In para 31 of the
Report at page 74 it was observed as under : The intention behind taking out
the provisions relating to subordinate courts from Part XIV of the Constitution
and putting them in Part VI, seems to be to make the consultation with the High
Court in the matter of framing of the rules, really effective and thus to
secure the independence of the subordinate Judiciary from executive (See AIR
1966 SC 1987 (Para 14)). Under the proviso to Art.309 the Governor is competent
to frame rules relating to recruitment as well as condition of service.
The
rules made by the Governor operate only until a provision in that behalf is
made by an Act of the Legislature. The legislature while making an Act under
Art.309 is not required even by Art.234, to consult any one.
The
provision for consultation with the High Court would become nugatory as soon as
the legislature acted to enact.
To
avoid this and to keep the rules governing recruitment to the judicial service
outside the purview of the State legislature, Article 234 was taken out of Part
XIV which includes Article 309. Article 309 is subject to the other provisions
of the Constitution, which means and includes Article 234. Article 234, on the
other hand, is not subject to any other provision of the Constitution. The
rules, made under Art. 234, will hence not be subject to any Act of legislature
made under Art.309. Then again, if the Governor alone was to frame the rules
for recruitment to the judicial service, there was no point in making this
invidious distinction between the rules for the judicial and the other
services. This distinction became necessary because the rules for the Judicial
Service were to be framed in consultation with the High Court. All these aspects
of the matter lead to the inevitable view that Article 234 requires
consultation with the High Court only in the matter of the making of the rules.
It is
now time for us to take stock of the situation.
In the
light of the Constitutional scheme guaranteeing independence of Judiciary and
separation of powers between the executive and the judiciary, the
Constitutional makers have taken care to see by enacting relevant provisions
for the recruitment of eligible persons to discharge judicial functions from
grass-root level of the Judiciary up to the apex level of the District
Judiciary, that rules made by the Governor in consultation with the High Court
in case of recruitment at grass-root level and the recommendation of the High
Court for appointments at the apex level of the District Judiciary under
Article 233, remain the sole repository of power to effect such recruitments
and appointments. It is easy to visualise that if suitable and competent
candidates are not recruited at both these levels, the out turn of the judicial
product would not be of that high level which is expected of judicial officers
so as to meet the expectations of suffering humanity representing class of
litigants who come for redressal of their legal grievances at the hands of
competent, impartial and objective Judiciary. The Presiding Officer of the
Court if not being fully equipped with legal grounding may not be able to
deliver goods which the litigating public expects him to deliver. Thus, to
ensure the recruitment of the best available talent both at grass-root level as
well as at apex level of District Judiciary, Articles 233 and 234 have
permitted full interaction between the High Court which is the expert body
controlling the District Judiciary and the Governor who is the appointing authority
and who almost carries out the ministerial function of appointing recommended
candidates both by the Public Service Commission and the High Court at the
grass-root level and also has to appoint only those candidates who are
recommended by the High Court for appointment at the apex level of District
Judiciary. Any independent outside inroad on this exercise by legislative
enactment by the State Legislature which would not require consultation with an
expert agency like the High Court would necessarily fall foul on the touchstone
of the Constitutional scheme envisaging insulation of judicial appointments
from interference by outside agencies, bypassing the High Court, whether being
the Governor or for that matter Council of Ministers advising him or the
Legislature. For judicial appointments the real and efficacious advice
contemplated to be given to the Governor while framing rules under Article 234
or for making appointments on the recommendations of the High Court under
Article 233 emanates only from the High Court which forms the bed- rock and
very soul of these exercises. It is axiomatic that the High Court, which is the
real expert body in the field in which vests the control over Subordinate
Judiciary, has a pivotal role to play in the recruitments of judicial officers
whose working has to be thereafter controlled by it under Article 235 once they
join the Judicial Service after undergoing filtering process at the relevant
entry points. It is easy to visualise that when control over District Judiciary
under Article 235 is solely vested in the High Court, then the High Court must
have a say as to what type of material should be made available to it both at
the grass-root level of District Judiciary as well as apex level thereof so as
to effectively ensure the dispensation of justice through such agencies with
ultimate object of securing efficient administration of justice for the
suffering litigating humanity. Under these circumstances, it is impossible to
countenance bypassing of the High Court either at the level of appointment at
grass- root level or at the apex level of the District Judiciary.
The
rules framed by the Governor as per Article 234 after following due procedure
and the appointments to be made by him under Article 233 by way of direct recruitment
to the District Judiciary solely on the basis of the recommendation of the High
Court clearly project a complete and insulated scheme of recruitment to the
Subordinate Judiciary. This completely insulated scheme as envisaged by the
founders of the Constitution cannot be tinkered with by any outside agency
dehors the permissible exercise envisaged by the twin Articles 233 and 234. It
is a misnomer to suggest that any imposition of scheme of reservation for
filling up vacancies in already existing or created sanctioned posts in any
cadre of district judges or Subordinate Judiciary will have nothing to do with
the concept of recruitment and appointment for filling up such vacancies. Any
scheme of reservation foisted on the High Court without consultation with it
directly results in truncating the High Courts power of playing a vital role in
the recruitment of eligible candidates to fill up these vacancies and hence
such appointments on reserved posts would remain totally ultra vires the scheme
of the Constitution enacted for that purpose by the founding fathers. It is
also to be noted that the concept of social justice underlying the scheme of
reservation under Article 16(4) read with Article 335 cannot be said to be one
which the High Court would necessarily ignore being a responsible
Constitutional functionary. In fact what is required is that the right decision
should be arrived at in the right manner. In the facts of the present case, it
is an admitted position that the High Court of Patna has already consented to
have 14% reservation for SC candidates and 10% reservation for ST candidates in
recruitment of Munsiffs and Magistrates at grass-root level of Subordinate
Judiciary and rules framed under Article 234 by the Governor of Bihar in
consultation with the High Court have permitted such reservation. Thus, it is
not as if the purpose of reservation cannot be achieved without reference to
the High Court. But as the saying goes you can take a horse to the water but
cannot make it drink by force .
Thus
what is expected of the executive and the Governor is to have an effective
dialogue with the High Court so that appropriate reservation scheme can be
adopted by way of rules under Article 234 and even by prescribing quota of
reservations of posts for direct recruits to District Judiciary under Article
233 if found necessary and feasible.
That
is the Constitutional scheme which is required to be followed both by the High
Court and by the executive represented through the Governor. But this thrust of
the Constitutional scheme cannot be given a go-bye nor can the entire
apple-cart be turned topsy-turvey by the legislature standing aloof in
exercising its supposed independent Legislative power dehors the High Courts
consultation.
Leaving
aside this question even on the express language of the impugned Section 4 of
the Act, argument of learned senior counsel for the appellant- State would fall
through as the said Section does not envisage creation of separate category of
posts for reserved category of candidates in the existing cadres of District
Judges and Subordinate Judges. On the contrary, that Section postulates
available vacancies in the already existing posts in the cadres and tries to
control appointments to such existing posts in the vacancies falling due from
time to time by adopting the rule of thumb and a road-roller provision of 50%
vacancies to be reserved for reserved category candidates, meaning thereby, the
Section mandates the High Court and that too without consulting it, that it
shall not fill up 50% of available vacancies by selected candidates standing in
the order of merit representing general category candidates and must go in
search of less meritorious candidates for filling up these vacancies supposedly
reserved for them. Such a scheme can be envisaged only under relevant rules
framed under Articles 233 and 234 after consultation with the High Court and
cannot be made the subject matter of any legislative fiat which the High Court
is expected to carry out willy-nilly and dehors the Constitutional scheme
regarding full and effective consultation with the High Court in this
connection. It must, therefore, be held that the impugned Section 4, as
existing on the statute book if allowed to operate as it is for controlling
recruitment to the posts of district judges as well as to the posts in
Judiciary subordinate thereto to the district courts, would directly conflict
with the Constitutional scheme of Articles 233 and 234 constituting a complete
Code and has to be treated as ultra vires the said Constitutional scheme.
Before parting with the discussion on this point, we may mention that in the
impugned judgment of the High Court in CWJC No.6756 of 1994 the learned Judges
have considered the question of reservation of posts in Judicial Service dehors
the Reservation Act in paragraphs 16 to 21 of the judgment.
Placing
reliance on a decision of the Constitution bench Judgment of this Court in
Supreme Court Advocates-on-Record Association & Anr. vs. Union of India,
AIR 1994 SC 268, it has been observed that whenever such a question arises and
any scheme of reservation is sought to be introduced by the Governor in
consultation with the High Court, the opinion of the High Court shall have
primacy. We may mention that this question strictly does not arise for our
consideration in the present proceedings for the simple reason that legality of
rules of reservation, if any, framed by the Governor under Article 309 read
with Articles 233 and 234 introducing a scheme of reservation contrary to the
consent of the High Court has not arisen for decision. In the present
proceedings, we are concerned with the short question whether totally bypassing
the High Court, the State Legislature can enact a statutory provision
introducing a scheme of reservation in Judicial Service comprised of District
Judges cadre as well as cadre of Judges subordinate thereto. Hence, the
aforesaid observations of the High Court, in our view, were not called for in
the present case and we express no opinion thereon.
Point
no.2, therefore, will have to be answered in the affirmative against the
appellant-State and in favour of the respondent.
Point
No.3: In the light of our answer to point no.2, the question survives for
consideration as to what appropriate orders can be passed in connection with
the impugned Section 4 of the Act. Now it must be kept in view that Section 4,
as enacted in the Act, can have general operation and efficacy regarding other
Services of the State not forming part of Judicial Service of the State. Qua
such other services Section 4 can operate on its own and in that connection
consultation with the High Court is not at all required. However, in so far as
it tries to encroach upon the field of the recruitment and appointment to
Subordinate Judicial Service of the State as envisaged by Articles 233 and 234
it can certainly be read down by holding that Section 4 of the impugned Act
shall not apply for regulating the recruitment and appointments to the cadre of
District Judges as well as to the cadre of Judiciary subordinate to the
District Judges and such appointments will be strictly governed by the Bihar
Superior Judicial Service Rules, 1951 as well as by the Bihar Judicial Service
(Recruitment) Rules, 1955. In other words, Section 4 will not have any impact
on these rules and will stand read down to that extent. Once that is done,
question of striking down the said rule from the statute book would not survive
and would not be required. We, accordingly, read it down as aforesaid. Point
no.3 is answered accordingly in favour of the respondent and against the
appellant-State. Point No.4:
Now
the stage is reached for passing appropriate final orders in the light of our
answers to the aforesaid points.
The
impugned judgments of the High Court in both these appeals allowing the writ
petitions are sustained subject to the following modifications and directions :
1. Even though the impugned Act, as framed, is held to be applicable even to
Judicial Service, Section 4 thereof in particular laying down scheme of
reservation, will not apply for governing the recruitment to the cadre of
District Judiciary as well as to the cadres of Judiciary Subordinate to the
District Judges. 2. The observation of the High Court in the impugned judgement
in Civil Appeal No.9072 of 1996 to the effect that if two candidates, one
belonging to general category and another to reserved category are found to be
equally meritorious, preference can be given to reserved category candidate is
the only rational scheme envisaged by the Constitution, being an unnecessary
one will be treated to be of no legal effect. 3. Despite the aforesaid
observations, the stand of the respondent High Court that for recommending
direct recruitment of advocates as District Judges the suggested preference to
be given to reserved category candidate of equal merit with general category
candidate has to be followed by the High Court as agreed to in the present
proceedings till appropriate scheme of reservation for reserved category
candidates if any is promulgated by the Governor by framing appropriate rules
in consultation with the High Court and the same procedure will have to be
followed by the High Court till then. Once such a scheme after proper dialogue
with the High Court is promulgated by amending the relevant rules then
obviously the High Court even while recommending recruitment to the posts of
District Judges from members of the Bar as per Article 233(2) will be bound by
such a scheme of reservation. 4. For governing direct recruitment at grass-root
level as per the Bihar Judicial Service (Recruitment) Rules, 1955, 14%
reservation for SC and 10% reservation for ST candidates shall be followed by
all concerned acting under the said rules and appointments at the grass-root
level of Judiciary shall be made following the said scheme of reservation until
any other scheme of reservation is promulgated by amending the relevant rules
by the Governor after effective consultation with the High Court as envisaged
by Article 234 read with Article 309. 5.
By an
interim order dated 16.11.1995 in the Civil Appeal arising out of SLP(C)
No.16476 of 1993 it was directed as under : Having heard counsel representing
different interests we modify the order dated 13.5.94 whereby it was stated
that while the process of selection may go on but actual appointment orders
should not be issued. If the selection process is over the selectees may be
appointed subject to the result of this petition and further subject to the
seniority that may be required to be adjusted if reservation is upheld and
candidates to fill in the reserved slots are selected at any time hereafter and
become entitled to appointments. However, question of filling up the reserved
posts will not arise and they shall remain in abeyance but if after this Court
decides the issue on reservation in the instant case and selections are made
even thereafter and appointments are made, they will be entitled to their
respective seniorities at the slots available as on the date of appointment of
General Category candidates.
In
this appeal, the appointments of candidates as per 1955 Rules to the posts of
Subordinate Judges and Munsiffs are on the anvil of consideration. The writ
petition filed by the original writ petitioners before the High Court will
stand partly allowed by holding that Section 4 of the impugned Act does not
apply to these recruitments and the scheme of reservation of 14% for SCs and
10% for STs only will apply to such recruitment. As a result, the question of
filling up of reserved posts in this case will remain germane to the aforesaid
extent of permissible reservation of 24% for SC and ST candidates. The
concerned authorities will work out the rights of the selected candidates for
being appointed to these posts governed by the Bihar Judicial Service
(Recruitment) Rules, 1955 accordingly, keeping in view the directions contained
in the interim order of this Court dated 16.11.1995. 6. Both these appeals are
accordingly dismissed subject to the aforesaid modifications and directions.
There will be no order as to costs in both these appeals.
.J. [S.B.
MAJMUDAR] New Delhi, March 14, 2000 IN THE SUPREME COURT OF INDIA CIVIL
APPELLATE JURISDICTION CIVIL APPEAL NO.9072 OF 1996 State of Bihar & Anr.
....Appellant Versus Bal Mukund Sah & Ors. ....Respondents (With CA
No....../2000 @ SLP (C) No.16476/93) J U D G M E N 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, economic
and political; liberty of thought, expression, belief, faith and worship and
equality of status and opportunity. The Parliamentary form of democracy
introduced in this country is referable to the West-minister experience of
Great Britain. All the basic principles of Parliamentary system practised and
followed in United Kingdom were adopted by the founders of the Constitution in
our country. The constitutional scheme generally envisages separation of powers
which is not synonymous to the "checks and balances" as prevalent in
the United States Constitutional system. In implementation of the scheme, with
respect to separation of powers amongst the main wings of the State, there is
overlapping sometimes, even without encroachment as the Constitution is found
to contain interactive provisions.
The
constitutional scheme makes the Executive responsible to the Legislature. The
paramount consideration and dominant goal of the Constituent Assembly has been
to bring popular people into the Government and make the Government answerable
to the representatives of the people. The Indian Parliamentary system adopted and
practised for over half a century has, by and large, kept pace with the
changing circumstances by embodying innovations and practices to meet the
requirements of the changing role of the Parliament.
Various
provisions made in the Constitution reflect the desire of the nation to have a
practicable socio-political-economic system to meet the aspirations of the
common man. The system is intended to deliver the goods and services to the
satisfaction of the common masses. The constitutional framework envisaging
Parliamentary system of governance ensures the establishment of a sovereign,
socialist, secular, democratic Republic in the country. It guarantees
fundamental rights and mandates the Directive Principles of the State policy.
Besides providing a quasi federal system in the country and envisaging the
scheme for distribution of legislative powers between the State and the Centre,
it emphasizes the establishment of the rule of law.
The
form of Government envisaged under a Parliamentary system of democracy is a
representative democracy in which the people of the country are entitled to
exercise their sovereignty through the legislature which is to be elected on
the basis of adult franchise and to which the Executive, namely, the Council of
Ministers is responsible. The legislature has been acknowledged to be a nerve
centre of the State activities. It is through Parliament that elected
representatives of the people ventilate peoples grievances.
The
Constitution devises the ways and means in its various parts by which each of
the three branches of the Government, namely, legislative, executive and
judiciary can function without interference of the other by invading others
assigned sphere. The doctrine of separation of powers though not strictly
accepted yet provides for independent judiciary in the States. This Court in
Chandra Mohan vs.
State
of Uttar Pradesh & Ors. [AIR 1966 SC 1987] held:
"The
Indian Constitution, though it does not accept the strict doctrine of
separation of powers, provides for an independent judiciary in the States: it
constitutes a High Court for each State, prescribes the institutional
conditions of service of the Judges thereof, confers extensive jurisdiction on
it to issue writs to keep all tribunals, including in appropriate cases the Governments,
within bounds and gives to it the power of superintendence over all courts and
tribunals in the territory over which it has jurisdiction. But the makers of
the Constitution also realised that it is the Subordinate Judiciary in India
who are brought most closely into contact with the people, and it is no less
important, perhaps indeed even more important, that their independence should
be placed beyond question in the case of the superior Judges. Presumably to
secure the independence of the judiciary from the executive, the Constitution
introduced a group of articles in Ch.VI of Part VI under the heading
"Subordinate Courts". But at the time the Constitution was made, in
most of the States the magistracy was under the direct control of the executive.
Indeed
it is common knowledge that in pre-independence India there was a strong
agitation was based upon the assumption that unless they were separated, the
independence of the judiciary at the lower levels would be a mockery. So
article 50 of the Directive Principles of Policy states that the State shall
take steps to separate the judiciary from the executive in the public services
of the States. Simply stated, it means that there shall be a separate judicial
service free from the executive control." The hallmark of the
constitutional scheme in the country is the role of judicial review assigned to
the courts. Unlike United States our Constitution explicitly empowers the
Supreme court and the High Courts to check the actions of the Executive and the
Legislature in case of such actions being incompatible with the Constitution.
To ensure the existence of an independent, effective and vibrant judiciary
provision is made in the Constitution in Part V, Chapter IV dealing with the
Union Judiciary, Part VI, Chapter V dealing with the High Courts in the States
and Chapter VI dealing with Subordinate Courts. This Court, in various
decisions, has highlighted the importance of insulating the judiciary from
executive interference to make it effectively independent. In S.P. Gupta vs.
Union of India[1982 (2) SCR 365] , Bhagwati, J., as His Lordships then was
declared that the principle of independence of judiciary is not an abstract
conception but it is a living faith which must derive its inspiration from the
constitutional charter and its nourishment and sustenance from the
constitutional values. The Indian judiciary was described as a document of
social revolution which casts an obligation on every instrumentality including
the judiciary which is a separate but equal branch of the State to transform
the status quo ante into a new human order in which justice, social, economic
and political will inform all institutions of national life and there will be
equality of status and opportunity for all. The British concept of justicing
was found to be satisfactory for a stable and static society but not for a
society pulsating with urges of gender justice, worker justice, minorities
justice, dalit justice and equal justice between chronic unequals. In the words
of Glanville Austin, the judiciary has to become an arm of the socio-economic
revolution and perform an active role calculated to bring social justice within
the reach of the common man. In the instant case the controversy relates to the
alleged invasion on the independence of subordinate judiciary defined as
judicial service in Article 236 of the Constitution. It is contended that the
provisions of Part VI, Chapter VI of the Constitution are to be construed
independently ignoring the other constitutional guarantees and provisions made
to deal with the public services of the Union and the States as contemplated
under Article 309 of the Constitution. On the one hand it is submitted that the
said Chapter VI is a self-contained provision with which no interference can be
had by any other organ of the State, namely, the executive and the legislature.
On the other hand it is contended that conceding that the provisions made in
the said Chapter are mandatory, the executive or the legislature is not
debarred from supplementing those provisions without transgressing the limit
imposed by law or making such provision which may not amount to interference
with the judiciary endangering its independence. Divergent views are expressed
regarding the nature of service contemplated under Part VI, Chpater VI and the
service referred to in Part XIV Chapter I. The impugned Act being Bihar Act
No.3 of 1992 is referable to the provisions of Article 309 legislated by the
State Legislature in exercise of its powers conferred upon it under Part XI Chpater
I read with Schedule VII Entry 41 List II and Entry IIA List III.
Section
4 of of the impugned Act deals with and provides reservation in all services
including the judicial service.
The
High Court of Patna has held the aforesaid section to be inapplicable to the
judicial service with the result that the appointments to the judicial service
have been made without any reservation. Without repeating the facts as narrated
in the judgment of Majmudar, J., it is noticed that when the High Court of
Patna administratively declined to concede reservation in the judicial
services, the State Legislature enacted the impugned Act. Article 233 of the
Constitution provides that appointment of District Judges shall be made by the
Governor of the State in consultation with the High Court exercising
jurisdiction in relation to such State. Direct appointment of a person to the
post of District Judge can be made only if he has been an Advocate/Pleader for
seven years and is recommended by the High Court for appointment. The appointment
contemplated under this Article is the initial appointment from direct recruits
or initial promotion from the service. The exercise of power of appointment by
the Governor is conditioned by his consultation with the High Court which means
that he can appoint only such person to the post of District Judge who has been
recommended by the High Court.
The
object of consultation was considered by this Court in Chandra Mohan's case
(Supra) wherein it was held: "The Constitutional mandate is clear. The
exercise of power of appointment by the Governor is conditioned by his
consultation with the High Court that is to say, he can only appoint a person
to the post of District Judge in consultation with the High Court. The object
of consultation is apparent. The High Court is expected to know better than the
Governor in regard to the suitability or otherwise of a person, belonging
either to the judicial service or to the Bar, to be appointed as a district
judge.
Therefore,
a duty is enjoined on the Governor to make the appointment in consultation with
a body which is the appropriate authority to give advice to him. This mandate
can be disobeyed by the Governor in two ways, namely, (i) by not consulting the
High Court at all, and (ii) by consulting the High Court and also other
persons. In one case he directly infringes the mandate of the Constitution and
in the other he indirectly does so, for his mind may be influenced by other
persons not entitled to advice him." This Court in State of Assam &
Anr. vs. Kuseswar Saikia & others [AIR 1970 SC 1616] held that the separate
judicial service was provided to make the office of a District Judge completely
free of executive control. In Chandramouleshwar Mohan Prasad vs. The Patna High
Court & Ors. [AIR 1970 SC 370] this Court held that the underlying idea of
Article 233 is that the Governor should make up his mind after there has been a
deliberation with the High Court. The High Court is the body which is
intimately familiar with the efficiency and quality of officers who are fit to
be promoted as District Judges. The High Court alone knows the merits as also
their demerits and that the consultation with the High Court under Article 233
is not an empty formality. It is not disputed in this case that the State
Legislature had the plenary power to enact the impugned Act under Part XI
Chapter I read with 7th Schedule Entry 41 of List II and Entry IIA of List III.
It is also not disputed that the said Act has been enacted to give effect to
the fundamental rights, the Directive Principles of State Policy and the
obligation of the State under Article 335 of the Constitution. The controversy
rests upon the interpretation of Articles 233, 234, 235 and 309 of the
Constitution. The High Court held that the judicial service was not a service
in the sense of employment and was distinct from other services. Referring to
various provisions of the impugned Act and the definitions of the terms
"any office or department" in an "establishment" and
State", the High Court concluded that the provisions of Section 4 of the
said Act were not applicable to the judicial service and that no reservation in
terms thereof could be made in the matter of appointment to the post of
District Judges and other judicial officers subordinate to the District Judge.
The High Court extensively referred to the observations of this Court in the
case of All India Judges Association & Ors. vs. Union of India & Ors.
[AIR 1993 SC 2493] to conclude that the judicial service having been assigned a
special status and place in the Constitution was in contradistinction to other
services within the constitutional framework. It was held that the definition
of "office or department" and of "establishment" under the
Act was referable to the office or department of the Court and not the Court
itself. Part XIV Chapter I of the Constitution relates to "services under
the Union and the State". Article 309 authorises the appropriate
Legislature to regulate the recruitment and conditions of service of persons
appointed to public services and posts in connection with the affairs of the
Union or of any State, however, subject to other provisions of the
Constitution. Proviso to Article 309 authorises the executive to make rules
regulating the recruitment and conditions of service of persons appointed to
such services or posts until powers in that behalf are exercised by the
appropriate Legislature under Article 309 of the Constitution. "Public
Service" means anything done for the service of the public in any part of
the country in relation to the affairs of the Union or the State. It was
opposite of private service. Persons connected with the discharge of public
duties relating to any of the organs of the State i.e. executive, judiciary and
legislature including the Armed Forces, would be termed as "public
servants" engaged in the service of the Public.
Public
services and posts in connection with the affairs of the Union or of any State
would refer to all services and posts under the Union and the State and include
every commissioned officer in the Military, Naval or Air Force, every Judge,
every officer of court of justice, a member of Panchayat, every arbitrator or
other person to whom any cause or matter has been referred for decision or
report by any court of justice, every person who holds any office by virtue of
which he is empowered to place or keep any person in confinement; every officer
of the Government whose duty it is as such officer, to prevent offences, to
give information of offences, to bring offenders to justice or to protect the
public health, safety or convenience; every officer whose duty it is, as such
officer, to take, receive, keep or expend any property on behalf of the
Government, or to make any survey assessment or contract on behalf of the
Government; every officer who holds any office in virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or to
conduct an election or part of an election; every person in the service or pay
of the Government or remunerated by fees or commission for the performance of
any public duty by the Government; or such person in the pay of a local
authority, a corporation established by or under a Central or State Act, and
the like. Section 21 of the Indian Penal Code may be an indicator to refer to
the public services and posts intended to be covered or contemplated under
Article 309 of the Constitution. Judicial service, therefore, cannot be termed
not to be a service within the meaning of Article 309.
Accordingly,
the appointment of District Judge under Article 233 is an appointment to the
public service within the meaning of Article 309 of the Constitution. It is
true that the constitutional scheme envisages an independent judiciary not
being under the Executive but such an independent judiciary cannot be termed to
be a creation of a distinct service in the State being not subject to law
making sovereign powers of the Legislature. Article 309, as noticed earlier, is
itself subject to other provisions of the Constitution which guarantee the
independence of judiciary. The power of appointment of District Judges is
vested in the Governor subject to the conditions imposed under Article 233 of
the Constitution. It follows, therefore, that subject to the other provisions
of the Constitution, the appropriate Legislature can regulate the recruitment
and condition of service of all persons appointed to public services including
the judicial services and posts in connection with the affairs of the Union or
of the State. Similarly with restraint of the provisions of Article 309 the
Governor of the State can make rules regulating the recruitment and condition
of service of such persons. The scheme of the Constitution, ensuring
independence of judiciary clearly and unambiguously provides that no power is
conferred upon executive to exercise disciplinary authority and jurisdiction in
respect of judicial service. Express provision has been made under the
Constitution, vesting in the High Court "the control over District Courts
and Courts subordinate thereto". Such a provision did not exist in the
Government of India Act, 1935. In State of West Bengal & Anr. vs. Nripendra
Nath Bagchi [AIR 1966 SC 447] this Court after referring to Articles 233, 234
and 235 of the Constitution held that the aforesaid Articles were intended to make
special provision for the judicial service of the State. To understand why a
special chapter was provided when there existed Part XIV dealing with the
service under the Union and the State it was found necessary to go into the
history of the aforesaid constitutional provision. It was held: "Before we
set down briefly how this Chapter came to be enacted outside the Part dealing
with Services and also why the articles were worded, as they are, we may set
down the corresponding provisions of the Government of India Act, 1935. There
too a special provision was made in respect of judicial officers but it was
included as a part of Chapter 2 of Part X which dealt with the Civil Services
under the Crown in India. The cognate sections were Ss.254 to 256 and they may
be reproduced here:
"254.
District Judges, etc.
(1)
Appointments of persons to be, and the posting and promotion of District Judges
in the Province shall be made by the Governor of any province shall be made by
the Governor of the Province, exercising his individual judgment, and the High
Court shall be consulted before a recommendation as to the making of any such
appointment is submitted to the Governor.
(2) A
person not already in the service of His Majesty shall only be eligible to be
appointed a District Judge if he has been for not less than five years a
Barrister, a member of the Faculty of Advocates in Scotland, or a Pleader and
is recommended by the High Court for appointment.
(3) In
this and the next succeeding section the expression District Judge includes
Additional District Judge, Joint District Judge, Assistant District Judge,
Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Sessions
Judge, Additional Sessions Judge, and Assistant Sessions Judge.
255.
Subordinate Civil Judicial Service.
(1)
The Governor of each Province shall, after consultation with the Provincial
Public Service Commission and with the High Court, make rules defining the
standard of qualifications to be attained by persons desirous of entering the
subordinate civil judicial service of a Province.
In
this section, the expression "subordinate civil judicial service"
means a service consisting exclusively of persons intended to fill civil
judicial posts inferior to the post of District Judge.
(2)
The Provincial Public Service Commission for each Province, after holding such
examinations, if any, as the Governor may think necessary, shall from time to
time out of the candidates for appointment to the subordinate civil judicial
service of the Province make a list or lists of the persons whom they consider
fit for appointment to that service, and appointment to that service shall be
made by the Governor from the persons included in the list or lists in
accordance with such regulations as may from time to time be made by him as to
the number of persons in the said service who are to belong to the different
communities in the Province.
(3)
The posting and promotion of, and the grant of leave to, persons belonging to
the subordinate civil judicial service of a Province and holding any post
inferior to the post of District Judge, shall be in the hands of the High
Court, but nothing in this section shall be construed as taking away from any
such person the right of appeal required to be given to him by the foregoing
provisions of this chapter, or as authorising the High Court to deal with any
such person otherwise than in accordance with the conditions of his service
prescribed thereunder.
256
Subordinate criminal magistracy.
No
recommendation shall be made for the grant of magisterial powers or of enhanced
magisterial powers to, or the withdrawal of any magisterial powers from, any
person save after consultation with the District Magistrate or the district in
which he is working, or with the Chief Presidency Magistrate, as the case may
be.
It may
be pointed out at once that in the present Constitution these provisions have
been lifted from the Chapter dealing with Services in India and placed
separately after the provisions relating to the High Courts of the States.
(8) As
far back as 1912 the Islingtons Commission stated that the witnesses before the
Commission demanded two things (1) recruitment from the Bar to the superior
judicial service, namely, the District judgeship; and (2) the separation of the
judiciary from the executive. The Commission stated in the report: Opinion in
India is much exercised on the question of the separation of the executive and
the judicial functions of the officers'...and observed that to bring this about
legislation would be required.
The
Commission made its report on August 14, 1915, a few days after the Government
of India Act, 1915 (5 and 6 Geo.
V.
c.61) was enacted. The Act did not, therefore, contain any special provision
about the judicial services in India.
The
World War I was also going on. In 1919, Part VII-A consisting of Ss.96-B to
96-E was added in the Government of India Act, 1915 S.96-B provided that every
person in the Civil Service of the Crown in India held office during His
Majestys pleasure but no person in that service might be dismissed by any
authority subordinate to that by which he was appointed. The only section that
concerns us in S.96-B.
Sub-s.(2)
of that section reads as follows:
"(2)
The Secretary of State in Council may make rules for regulating the
classification of the civil services in India, the methods of their
recruitment, their conditions of service, pay and allowances, and discipline
and conduct.
Such
rules may, to such extent and in respect of such matters as may be prescribed,
delegate the power of making rules to the Governor-General in Council or to
Local Governments, or authorise the Indian legislature or local legislatures to
make laws regulating the public services:" The Fundamental Rules and the
Civil Services (Classification, Control and Appeal) Rules were made by the
Secretary of State in Council under the above rule- making power. These rules
governed the judicial services except the High Court. Part IX of the Government
of India Act dealt with the Indian High Courts, their constitution and
jurisdiction. Section 107 gave to the High Courts superintendence over all
Courts for the time being subject to its appellate jurisdiction and enumerated
the things the High Court could do. They did not include the appointment,
promotion, transfer or control of the District Judges. High Court could only
exercise such control as came within their superintendence over the Courts
subordinate to their appellate jurisdiction. In the Devolution Rules, Item 17
in Part II dealing with the Provincial subjects read as follows:- "Administration
of justice, including constitution, powers, maintenance and organisation of
civil Court and criminal jurisdiction within the Province; subject to
legislation by the Indian legislature as regards High Courts, Chief Courts, and
Court of Judicial Commissioners and any Courts of criminal jurisdiction."
It would thus appear that the problem about the independence of judicial
officers, which was exercising the minds of the people did not receive full
attention and to all intents and purposes the Executive Government and
Legislatures controlled them. The recommendations of the Islington Commission
remained a dead letter. When the Montague-Chemlsford enquiry took place the
object was to find out how much share in the legislative and executive fields
could be given to Indians. The post of the District Judge was previously
reserved for Europeans. The disability regarding Indians was removed as a
result of the Queens Proclamation in 1870 and rules were framed first in 1873.
In
1875 Lord Northbrooks Government framed rules allowing Indians to be appointed
and Lord Lyttons Government framed Rules fixing 1/5th quota for the Indians.
There was no fixed principle on which Indians were appointed and the report of
the Public Service Commission presided over by Sir Charles Aitchison in 1886
contains the system followed in different Provinces. This continued down to
1919. The Government of India Act had introduced Dyarchy in India and the
question of control of services in the transferred field was closely examined
when the Government of India Act, 1935 was enacted. It was apprehended that if
transference of power enabled the Ministers to control the services, the flow
of Europeans to the civil services would become low.
Government
appointed several committees, chief among them the MacDonnel Committee
considered the position of the Europeans vis-à-vis the services. There was more
concern about Europeans than about the independence of the judiciary.
(9)
The Indian Statutory Commission did not deal with the subject of judicial
services but the Joint Committee dealt with it in detail. It is interesting to
know that the Secretary of State made a preliminary statement on the subject of
subordinate civil judiciary and his suggestion was to leave to the Provincial
Legislatures the general power but to introduce in the Constitution a provision
which would in one respect override those powers, namely, power to select the
individuals for appointment to the Civil Judicial Services, to lay down their
qualifications, and to exercise over the members of the service the necessary
administrative control.' He said that 'the powers of the local Government
should be 'to fix the strength and pay of the services to which the High Court
would recruit' and to lay down, if they so thought fit, any general
requirement...'. During the debates Marquis of Salisbury asked a question with
regard to the general powers of the High Courts and the control over the
subordinate courts. It was:
"As
I understood the Secretary of State in his statement, the control of the High
Court the subordinate judges in civil matters has to be as complete as possible
and maintained. Is that so?. The answer was, yes.
(No.7937)".
(10)
The recommendations of the Joint Committee also followed the same objective. In
the report (paragraph 337 p.201) the following observations were made:
"337.
Necessity for securing independence of subordinate judiciary. The Federal and
High Court Judges will be appointed by the Crown and their independence is
secure; but appointments to the Subordinate Judiciary must necessarily be made
by authorities in India who will also exercise a certain measure to control
over the Judges after appointment, especially in the matter of promotion and
posting. We have been greatly impressed by the mischiefs which have resulted
elsewhere from a system under which promotion from grade to grade in a judicial
hierarchy is in the hands of a Minister exposed to pressure from members of a
popularly elected Legislature. Nothing is more likely to sap the independence
of a magistrate than the knowledge that his career depends upon the favour of a
Minister; and recent examples (not in India) have shown very clearly the
pressure which may be exerted upon a magistracy thus situated by men who are
known, or believed, to have the means of bringing influence to bear upon a
Minister. It is the Subordinate Judiciary in India who are brought most closely
into contact with the people, and it is no less important, perhaps indeed even
more important, that their independence should be placed beyond question than
in the case of the superior Judges...".
As a
result, when the Government of India Act, 1935 was passed it contained special
provisions (Sections 254-256 already quoted) with regard to District Judges and
the subordinate judiciary. It will be noticed that there was no immediate
attempt to put the subordinate criminal magistracy under the High Courts but
the posting and promotion and grant of leave of persons belonging to the
subordinate judicial service of a Province was put in the hands of High Court
though there was right of appeal to any authority named in the rules and the
High Courts were asked not to act except in accordance with the conditions of
the service prescribed by the Rules. As regards the District Judges the posting
and promotions of a District Judge was to be made by the Governor of the
Province exercising his individual judgment and the High Court was to be
consulted before a recommendation to the making of such an appointment was
submitted to the Governor. Since S.240 of the Government of India Act, 1935
provided that a civil servant was not to be dismissed by an authority
subordinate to that which appointed him, the Governor was also the dismissing
authority. The Government of India Act, 1935 was silent about the control over
the District Judge and the subordinate judicial services. The administrative
control of the High Court under S.224 over the courts subordinate to it
extended only to the enumerated topics and to superintendence over them. The
independence of the subordinate judiciary and to the District Judges was thus
assured to a certain extent, but not quite.
(11)
When the Constitution was being drafted the advance made by the 1935 Act was
unfortunately lost sight of. The draft Constitution made no mention of the special
provisions, not even similar to those made by the Government of India Act,
1935, in respect of the subordinate judiciary.
If
that had remained, the judicial services would have come under Part XIV dealing
with the services in India. An amendment, fortunately, was accepted and led to
the inclusion of Arts.233 to 237. These articles were not placed in the Chapter
on services but immediately after the provisions in regard to the High Courts.
The articles went a little further than the corresponding sections of the
Government of India Act." It was further held that Articles 233 and 235
made mention to two distinct powers. The first relates to power of appointment
of persons, their posting and promotion and the second is the power to control.
This Court did not accept the contention that the word "District
Court" denoted only the court but not the Presiding Judge. The latter part
of Article 235 has been held to refer to the man who holds the office. The
Articles vest "control in the High Court".
The
purpose of the aforesaid Articles was held to be in regard with the Directive
Principles in Article 50 of the Constitution which mandates the States to take
steps to separate the judiciary from the executive in the public services of
the State. Reference to Article 50 in connection with Articles 233, 234 and
235, clearly and unambiguously shows that this Court has held that the judicial
service was a public service within the meaning of Article 309 regarding which
law could be made, however, subject to other provisions of the Constitution
providing and guaranteeing the independence of judiciary. In B.S.
Yadav
& Ors, etc.v. State of Haryana & Ors., etc. [1981 (1) SCR 1024] this
Court considered the scope and extent of Articles 235 and 309 of the
Constitution and held that the power to frame rules regarding the judicial
officers vested in the Governor and not in the High Court. The first part of
Article 235 vests the control over District Courts and courts subordinate
thereto in the High Court and the second part of that Article mandates that
nothing in the Articles shall be construed as taking away from any person
belonging to the judicial service any right of appeal which he may have under
law regulating the conditions of service or authorising the High Court to deal
with him otherwise than in accordance with the conditions of his service
prescribed under such law. Outer limits of the High Court's powers of control
over the subordinate judiciary have thus been defined providing that it is not
open to the High Court to deny to a member of the subordinate judicial service
of the State the right of appeal given to him by law which regulates the
conditions of his service. Even the High Court, in exercise of its power of
control, cannot deal with such person otherwise than in accordance with the
conditions of his service which are prescribed by law. This court then put a
question to itself as to who had the power to pass such a law and answered it:
"Obviously not the High Court because, there is no power in the High Court
to pass a law, though rules made by the High Court in the exercise of power
conferred upon it in that behalf may have the force of law.
There
is a distinction between the power to pass a low and the power to make rules,
which by law, have the force of law. Besides, law which the second part of
Art.235 speaks of, is law made by the legislature because, if it were not so,
there was no purpose in saying that the High Courts power of control will not
be construed as taking away certain rights of certain persons under a law
regulating their conditions of service. It could not have been possibly
intended to be provided that the High Courts power of control will be subject
to the conditions of service prescribed by it. The clear meaning, therefore, of
the second part of Article 235 is that the power of control vested in the High
Court by the first part will not deprive a judicial officer or the rights
conferred upon him by a law made by the legislation regulating him conditions
of service.
Article
235 does not confer upon the High Court the power to make rules relating to
conditions of service of judicial officers attached to district courts and the
courts subordinate thereto. Whenever, it was intended to confer on any
authority the power to make any special provisions or rules, including rules
relating to conditions of service, the Constitution has stated so in express
terms. See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1),
146(1), and 2(148)(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1)
and (2), 234, 237 and 283(1) and (2).
Out of
this fasciculus of Articles, the provisions contained in Articles 225, 227(2)
and (3) and 229(1) and (2) bear relevance on the question, because these
Articles confer power on the High Court to frame rules for certain specific
purpose. Article 229(2) which is directly in point provides in express terms
that subject to the provisions of any law made by the legislature of the State,
the conditions of service of officers and servants of a High Court shall be such
as may be prescribed by the rules made by the Chief Justice or by some other
Judge or officer of the Court authorised by the Chief Justice to make rules for
the purposes. With this particular provision before them, the framers of the
Constitution would not have failed to incorporate a similar provision in
Article 235 if it was intended that the High Courts shall have the power to
make rules regulating the conditions of service of judicial officers attached
to district courts and courts subordinate thereto.
Having
seen that the Constitution does not confer upon the High Court the power to
make rules regulating the conditions of service of judicial officers of the
district courts and the courts subordinate thereto, we must proceed to
consider: who, then, possesses that power? Article 309 furnishes the answer. It
provides that Acts of the appropriate legislature may regulate the recruitment
and conditions of service of persons appointed to posts in connection with the
affairs of the Union or of any State.
Article
248(3), read with Entry 41 in List II of the Seventh Schedule, confers upon the
State legislatures the power to pass laws with respect to "State public
services" which must include the judicial services of the State. The power
to control vested in the High Court by Art.235 is thus expressly, by the terms
of that Article itself, made subject to the law which the State legislature may
pass for regulating the recruitment and service conditions of judicial officers
of the State. The power to pass such a law was evidently not considered by the
Constitution makers as an encroachment on the 'control jurisdiction' of the
High Courts under the first part of Article 235. The control over the district
courts and subordinate courts is vested in the High Court in order to safeguard
the independence of judiciary. It is the High Court, not the executive, which
possesses control over the State judiciary. But, what is important to bear in
mind is that the Constitution which has taken the greatest care to preserve the
independence of the judiciary did not regard the power of the State legislature
to pass laws regulating the recruitment and conditions of service of judicial
officers as an infringement of that independence. The mere power to pass such a
law is not violative of the control vested in the High Court over the State
Judiciary.
It is
in this context that the proviso to Art.309 assumes relevance and importance.
The State legislature has the power to pass laws regulating the recruitment and
conditions of service of judicial officers of the State.
But it
was necessary to make a suitable provision enabling the exercise of that power
until the passing of the law by the legislature on that subject. The
Constitution furnishes by its provisions ample evidence that it abhors a vacuum.
It has
therefore made provisions to deal with situations which arise on account of the
ultimate repository of a power not exercising that power. The proviso to
Art.309 provides, in so far as material, that until the State Legislature
passes a law on the particular subject, it shall be competent to the Governor
of the State to make rules regulating the recruitment and the conditions of
service of the judicial officers of the State. The Governor thus steps in when
the legislature does not act. The power exercised by the Governor under the
proviso is thus a power which the legislature is competent to exercise but has
in fact not yet exercised. It partakes of the characteristics of the
legislative, not executive, power. It is legislative power.
That
the Governor possesses legislative power under our Constitution is
incontrovertible and, therefore, there is nothing unique about the Governors
power under the proviso to Article 309 being in the nature of a legislative
power. By Article 168, the Governor of a State is a part of the legislature of
the State. And the most obvious exercise of legislative power by the Governor
is the power given to him by Art.213 to promulgate ordinances when the
legislature is not in session. Under that Article, he exercises a power of the
same kind which the legislature normally exercises:
the
power to make laws. The heading of Chapter IV of Part VI of the Constitution,
in which Art.213 occurs, is significant: "Legislative Power of the
Governor". The power of the Governor under the proviso to Article 309 to
make appropriate rules is of the same kind. It is legislative power. Under
Article 213, he substitutes for the legislature because the legislature is in
recess. Under the proviso to Article 309, he substitutes for the legislature
because the legislature has not yet exercised its power to pass an appropriate
law on the subject.
It is
true that the power conferred by Article 309 is "subject to" the
provisions of the Constitution. But it is fallacious for that reason to contend
that the Governor cannot frame rules regulating the recruitment and conditions
of service of the judicial officers of the State. In the first place, the power
of control conferred upon High Courts by the first part of Article 235 is
expressly made subject, by the second part of that Article, to laws regulating
conditions of service of its judicial officers. The first part of Article 235
is, as it were, subject to a proviso which carves out an exception from the
area covered by it.
Secondly,
the Governor, in terms equally express, is given the power by the proviso to
Article 309 to frame rules on the subject. A combined reading of Articles 235
and 309 will yield the result that though the control over Subordinate Courts
is vested in the High Court, the appropriate legislature, and until that
legislature acts, the Governor of the State, has the power to make rules
regulating the recruitment and the conditions of service of judicial officers
of the State. The power of the legislature or of the Governor thus to legislate
is subject to all other provisions of the Constitution like, for example,
Articles 14 and 16. The question raised before us is primarily one of the
location of the power, not of its extent. The second part of Article 235
recognises the legislative power to provide for recruitment and the conditions
of service of the judicial officers of the State.
The
substantive provision of Article 309, including its proviso, fixes the location
of the power. The opening words of Article 309 limit the amplitude of that
power." It was further declared that the mere power to pass a law or to
make rules having the force of law regulating the service conditions did not
impinge upon the control vested in the High Court over the district courts and
the courts subordinate thereto by Article 235. Such laws or the rules, as the
case may be, can provide for general or abstract rules (of seniority in that
case) leaving it to the High Court to apply them to each individual case as and
when the occasion arises. The opening words of Article 309, "subject to
provisions of this Constitution" do not exclude the provision contained in
the first part of Article 235. It is thus clear that though the legislature or
the Governor has the power to regulate seniority of judicial officers by laying
down rules of general application, yet that power cannot be exercised in a
manner which will lead to interference with the control vested in the High
Court by the first part of Article 235. In The High Court of Punjab &
Haryana, etc. etc. vs. State of Haryana & Ors., etc.
etc.
[AIR 1975 SC 613] it was held that the power of appointment of persons to be
District Judges is vested in the Governor of the State under Article 233. The
words "posting and promotion of district judge" in Article 233 mean
initial appointment by direct recruitment of persons to be district judges and
the posting mentioned therein the initial posting. Promotion of district judges
has been explained to mean promotion of persons to be district judges. In All
India Judges Association case(supra) this Court no doubt held: "The
judicial service is not service in the sense of 'employment'. The judges are
not employees.
As
members of the judiciary, they exercise the sovereign judicial power of the
State. They are holders of public offices in the same way as the members of the
council of ministers and the members of the legislature. When it is said that
in a democracy such as ours, the executive, the legislature and the judiciary
constitute the three pillars of the State, what is intended to be conveyed is
that the three essential functions of the State are entrusted to the three
organs of the State and each one of them in turn represents the authority of
the State. However, those who exercise the State power are the ministers, the
legislatures and the judges, and not the members of their staff who implement
or assist in implementing their decisions. The council of ministers or the
political executive is different from the secretarial staff or the
administrative executive which carries out the decisions of the political
executive.
Similarly,
the legislators are different from the legislative staff. So also the Judges
from the judicial staff. The parity is between the political executive, the
legislators and the Judges and not between the Judges and the administrative
executive. In some democracies like the U.S.A., members of some State
judiciaries are elected as much as the members of the legislature and the heads
of the State. The Judges, at whatever level they may be, represent the State
and its authority unlike the administrative executive or the members of the
other services. The members of the other services, therefore, cannot be placed
on par with the members of the judiciary, either constitutionally or
functionally.
This
distinction between the Judges and the members of the other services has to be
constantly kept in mind for yet another important reason. Judicial independence
cannot be secured by making mere solemn proclamations about it. It has to be
secured both in substance and in practice. It is trite to say that those who
are in want cannot be free.
Self-reliance
is the foundation of independence. The society has a stake in ensuring the
independence of the judiciary, and no price is too heavy to secure it. To keep
the judges in want of the essential accoutrements and thus to impede them in
the proper discharge of their duties is to impair and whittle away justice
itself." But it has to be kept in mind that in the same judgment this
Court considered the powers under Article 309 of the Constitution authorising
the executive and the legislative to prescribe the service conditions of the
judiciary, however, rejecting the contention that in that regard judiciary did
not have any say in the matter. It was held: "In view of the separation of
the powers under the Constitution, and the need to maintain the independence of
the judiciary to protect and promote democracy and the rule of law, it would
have been ideal if the most dominant power of the executive and the legislative
over the judiciary, viz., that of determining its service conditions had been
subjected to some desirable checks and balances. This is so even if ultimately,
the service conditions of the judiciary have to be incorporated in and declared
by the legislative enactments. But the mere fact that Art.309 gives power to
the executive and the legislature to prescribe the service conditions of the
judiciary does not mean that the judiciary should have no say in the matter. It
would be against the spirit of the Constitution to deny any rule to the
judiciary in that behalf, for theoretically it would not be impossible for the
executive or the legislature to turn and twist the tail of the judiciary by
using the said power. Such a consequence would be against one of the seminal
mandates of the Constitution, namely, to maintain the independence of the
judiciary." It may be noticed that the All India Judges Association had
filed Writ Petition (C) No.1022/89 in this Court praying therein: "1.
Uniformirty in the Judicial cadres in the different States and Union
Territories;
2. An
appropriate enhanced uniform age of retirement for the Judicial Officers
throughout the country;
3.
Uniform pay scales as far as possible to be fixed;
4.
Residential accommodation to be provided to every Judicial Officer.
5.
Transport facility to be made available and conveyance allowance provided.
6.
Adequate perks by way of Library Allowance, Residential Office Allowance, and
Sumptuary Allowance to be provided.
7.
Provision for inservice training to be made." Upon consideration of
various aspects including the reports of the Law Commission, this Court
recommended and directed that: "(i) An all India Judicial Service should
be set up and the Union of India should take appropriate steps in this regard.
(ii)
Steps should be taken to bring about uniformity in designation of officers both
in civil and criminal side by 31.3.1993.
(iii)
Retirement age of judicial officers be raised to 60 years and appropriate steps
are to be taken by 31.12.1992.
(iv)
As and when the Pay Commissions/Committees are set up in the States and Union
Territories, the question of appropriate pay scales of judicial officers be
specifically referred and considered.
(v) A
working library at the residence of every judicial officer has to be provided
by 30.6.1992. Provision for sumptuary allowance as stated has to be made.
(vi)
Residential accommodation to every judicial officer has to be provided and
until State accommodation is available, Government should provide requisitioned
accommodation for them in the manner indicated by 31.12.1992. In providing
residential accommodation, availability of an office room should be kept in
view.
(vii)
Every District Judge and Chief Judicial Magistrate should have a State vehicle.
Judicial officers in sets of 5 should have a pool vehicle and others would be
entitled to suitable loans to acquire two wheeler automobiles within different
time limits as specified.
(viii)
Inservice Institute should be set up within one year at the Central and State
or Union Territory level." It may be remembered that the recommendations
and directions were issued by the Court in a writ petition in which no
objection was raised regarding the competence of the State to enact laws and
make rules under Article 309 of the Constitution. In exercise of its powers
under Article 32 of the Constitution this Court was clothed with the authority
and powers vesting in it under Articles 141 and 142 of the Constitution. The
judgment in All India Judges Association case decided that the issuance of
directions by the Court did not have the effect of encroaching upon the powers
of the executive and the legislature under Article 309 of the Constitution. The
Court referred to the recommendations of the Law Commission made in the year
1958 and observed that the said recommendations had been made to improve the
system of justice and thereby to improve the content and quality of justice
administered by the Courts.
It was
noted that "instead of improving, they have deteriorated making it
necessary to update and better them to meet the needs of the present
times". It was specifically held: "By giving directions in question,
this Court has only called upon the executive and the legislature to implement
their imperative duties. The Court do issue directions to the authorities to perform
their obligatory duties whenever there is a failure on their part to discharge
them. The power to issue such mandates in proper cases belongs to the Courts.
As has been pointed out in the judgment under review, this Court was impelled
to issue the said directions firstly because the executive and the legislature
had failed in their obligations in that behalf.
Secondly,
the judiciary in this country is a unified institution judicially though not
administratively. Hence uniform designations and hierarchy, with uniform
service conditions are unavoidable necessary consequences. The further
directions given, therefore, should not be looked upon as an encroachment on
the powers of the executive and the legislature to determine the service
conditions of the judiciary. They are directions to perform the long overdue
obligatory duties.
The
contention that the directions of this Court supplant and bypass the
constitutionally permissible modes for change in the law, we think, wears thin
if the true nature and character of the directions are realised. The directions
are essentially for the evolvement of an appropriate national policy by the
Government in regard to the judiciarys condition. The directions issued are
mere aids and incidental to and supplemental of the main direction and as a
transitional measure till a comprehensive national policy is evolved. These
directions, to the extent they go, are both reasonable and necessary." In
Hari Datt Dainthla & Anr. vs. State of Himachal Pradesh & Ors. [AIR
1980 SC 1426] this Court held:
"Article
233 confers power on the Governor of the State to appoint persons either by
direct recruitment or by promotion from amongst those in the judicial service
as District Judges but this power is hedged in with the condition that it can
be exercised by the Governor in consultation with the High Court. In order to
make this consultation meaningful and purposive the Governor has to consult
High Court in respect of appointment of each person as District Judge which
includes an Additional District Judge and the opinion expressed by the High
Court must be given full weight.
Article
235 invests control over subordinate courts including the officers manning
subordinate courts as well as the ministerial staff attached to such courts in
the High Court. Therefore, when promotion is to be given to the post of
District Judge from amongst those belonging to subordinate judicial service,
the High Court unquestionably will be competent to decide whether a person is
fit for promotion and consistent with its decision to recommend or not to
recommend such person. The Governor who would be acting on the advice of the
Minister would hardly be in a position to have intimate knowledge about the
quality and qualification of such person for promotion. Similarly when a person
is to be directly recruited as a District Judge from the Bar the reasons for
attaching full weight to the opinion of the High Court for its recommendation
in case of subordinate judicial service would mutatis mutandis apply because
the performance of a member of the Bar is better known to the High Court than
the Minister or the Governor.
In
Chandra Mohan v. State of Uttar Pradesh (1967) 1 SCR 77 at p.83 (AIR 1966 SC
1987), a Constitution Bench of this Court observed as under:
"The
constitutional mandate is clear. The exercise of the power of appointment by
the Governor is conditioned by his consultation with the High Court, that is to
say, he can only appoint a person to the post of District Judge in consultation
with the High Court. The object of consultation is apparent. The High Court is
expected to know better than the Governor in regard to the suitability or
otherwise of a person, belonging either to the 'judicial service' or to the
Bar, to be appointed as a District Judge.
Therefore,
a duty is enjoined on the Governor to make the appointment in consultation with
a body which is the appropriate authority to give advice to him." This
view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court (1970) 2
SCR 666: (AIR 1970 SC 270), observing:
"The
High Court is the body which is intimately familiar with the efficiency and
quality of officers who are fit to be promoted as District Judges. The High
Court alone knows their merits as also demerits." It was further held that
in the absence of statutory rules regulating the promotions from one post in
subordinate judicial service to higher post in the same service, the High Court
would be the sole authority to decide the question in exercise of its control
under Article 235 which empowers the High Court with complete control over the
subordinate courts. The existence of this control comprehends the power to
decide eligibility for promotion from one post in the subordinate judicial
service to higher post in the same service except where one reaches the stage
of giving promotion when Article 233 would be attracted and the power to give
promotion would be in Governor hedged in with the condition that the Governor
can act after consultation with the High Court which has been understood to
mean on the recommendation of the High Court. If the High Court felt that the
post of District Judge being a very responsible post should be filled up by
promotion only on merits, it is incumbent upon it to propose necessary rules
and get them enacted under Article 309. In Chandra Mohan vs. State of Uttar
Pradesh & Ors. [1967 (1) SCR 77] this Court held that the Constitution
contemplates an independent judiciary in the States and in order to place the
independence of the subordinate judiciary beyond question, provides, in Article
50 of the Directive Principles for the separation of the judiciary from the
executive and secures such independence by enacting Articles 233 to 237 in
Chapter VI of the Constitution. Under these Articles the appointment of the
District Judges in any State are to be made by the Governor of the State, from
the two sources, namely, : (i) service of the Union or of the State and (ii)
members of the Bar. The words "service of the Union or of the State"
do not mean any other service of the Union or the State except the judicial
service as defined in Article 236(b) of the Constitution. This Court
specifically held:
"Appointments
of persons to be, and the posting and promotion of, district judges in any
state shall be made by the Governor of the State. There are two sources of
recruitment, namely, (i) service of the Union or of the State, and (ii) members
of the Bar. The said judges from the first source are appointed in consultation
with the High Court and those from the second source are appointed on the
recommendation of the High Court. But in the case of appointments of persons to
the judicial service other than as district judges, they will be made by the
Governor of the State in accordance with rules framed by him in consultation
with the High Court and the Public Service Commission. But the High Court has
control over all the district courts and courts subordinate thereto, subject to
certain prescribed limitations.
So far
there is no dispute. But the real conflict rests on the question whether the Governor
can appoint as district judges persons from services other than the judicial
service; that is to say, can he appoint a person who is in the police, excise,
revenue or such other service as a district judge? The acceptance of this
position would take us back to the pre-independence days and that too to the
conditions prevailing in the Princely States. In the Princely States one used
to come across appointments to the judicial service from police and other
departments. This would also cut across the well-knit scheme of the
Constitution and the principle underlying it, namely, the judiciary shall be an
independent service. Doubtless, if Art.233(1) stood alone, it may be argued
that the Governor may appoint any person as a district judge, whether legally
qualified or not, if he belongs to any service under the State. But Art.233(1)
is nothing more than a declaration of the general power of the Governor in the
matter of appointment of district judges. It does not lay down the
qualifications of the candidates to be appointed or denote the sources from
which the recruitment has to be made. But the sources of recruitment are
indicated in cl.(2) thereof.
Under
cl.(2) of Art.233 two sources are given, namely, (i) persons in the service of
the Union or of the State, and (ii) advocate or pleader. Can it be said that in
the context of Ch.VI of Part VI of the Constitution, 'the service of the Union
or of the State' means any service of the Union or of the State or does it mean
the judicial service of the Union or of the State? The setting, viz., the
chapter dealing with subordinate courts, in which the expression the service
appears indicates that the service mentioned therein is the service pertaining
to courts. That apart, Art.236(b) defines the expression judicial service to
mean a service consisting exclusively of persons intended to fill the post of
district judge and other civil judicial posts inferior to the post of district
judge. If this definition, instead of appearing in Art.236, is placed as a
clause before Art.233(2), there cannot be any dispute that 'the service' in
Art.233(2) can only mean the judicial service. The circumstances that the
definition of 'judicial service' finds a place in a subsequent Article does not
necessarily lead to a contrary conclusion. The fact that in Art.233(2) the
expression 'the service' is used whereas in Art.234 and 235 the expression
'judicial service' is found is not decisive of the question whether the
expression 'the service' in Art.233(2) must be something other than the judicial
service, for, the entire chapter is dealing with the judicial service. The
definition is exhaustive of the service. Two expressions in the definition
bring out the idea that the judicial service consists of hierarchy of judicial
officers starting from the lowest and ending with district judges. The
expressions 'exclusively' and 'intended' emphasise the fact that the judicial
service consists only of persons intended to fill up the posts of district
judges and other civil judicial posts and that is the exclusive service of
judicial officers. Having defined 'judicial service' in exclusive terms, having
provided for appointments to that service and having entrusted the control of
the said service to the care of the High Court, the makers of the world Constitution
not have conferred a blanket power on the Governor to appoint any person from
any service as a district judge.
Reliance
is placed upon the decision of this court in Rameshwar Dayal v. State of Punjab
(1961) 2 SCR 874 in support of the contention that the service in Art.233(2)
means any service under the State. The question in that case was, whether a
person whose name was on the roll of advocates of the East Punjab High Court
could be appointed as a district judge. In the course of the judgment S.K.
Das,
J., speaking for the Court, observed:
"Article
233 is a self contained provision regarding the appointment of District Judges.
As to a person who is already in the service of the Union or of the State, no
special qualifications are laid down and under cl.(1) the Governor can appoint
such a person as a district judge in consultation with the relevant High Court.
As to a person not already in service, a qualification is laid down in cl.(2)
and all that is required is that he should be an advocate or pleader of seven
years standing." This passage is nothing more than a summary of the
relevant provisions. The question whether the service in Art.233(2) is any
service of the Union or of the State did not arise for consideration in that
case nor did the Court express any opinion thereon.
We,
therefore, construe the expression the service in cl.(2) of Art.233 as the
judicial service." There is no dispute that the power under Article 309
conferred upon the legislature and the executive is subject to the opening
words of the Article. The legislature and the executive cannot enact any law or
make any rule which is in violation of any other provision of the Constitution.
If any law or rule is made contravening any other provision of the Constitution
including Articles 14, 15, 16, 19, 124, 217, 233, 234, and 235, such law or
rule shall be void.
This
Article, however, does not debar the legislature or the executive to make
provision with respect to the matters which are not in the covered field of
other provisions of the Constitution. Various provisions of the Constitution
including Part III Chapter VI, Part XIV Chapter I and Part XI Chapter I read
with Seventh Schedule are to be read conjointly and interpreted harmoniously to
make the various organs of the State function in their respective fields
subject to limitations imposed by the Constitution itself including the power
of the courts of judicial review. It cannot, therefore, be accepted that the
judicial service is such an independent service which deprives the State
Legislature and the executive to enact laws and make rules with respect to
matters mentioned in Article 309 but not covered under Articles 233 to 236 of
the Constitution. The provisions of Part III Chapter VI and Part XIV Chapter I
have to be understood as complementary and supplementary to each other.
Exercise of power under Article 309 is further curtailed by the constitutional
mandate that no law be enacted and rule made which in any way affects the
working of independent judiciary in the country. Such principles shall,
however, be not applicable in the case of higher judiciary constituted and
established under Part V Chapter IV and Part VI Chapter V. The Supreme Court of
India and the High Courts in the country are the creation of the Constitution and
the judges presiding over such courts, constitutional functionaries. The higher
judiciary, therefore, cannot be equated with the "public services"
contemplated under Part XIV Chapter I of the Constitution.
The
conditions of eligibility for appointment to the Supreme Court are such
conditions as are prescribed under Article 124 of the Constitution and for the
High Court as prescribed under Article 217 of the Constitution. These
conditions, if allowed to be amended, modified or substituted by way of legislation
in terms of Article 309 of the Constitution, would render the Union and the
State judiciary defunct which, may amount to clipping its wings resulting in
the destruction of independence of the higher judiciary as contemplated by the
Constitution framers. The conditions for appointment of judges to the Supreme
Court and the High Courts may not be amendable even by a constitutional
amendment as the same is likely to tamper with the Indian judiciary and thereby
adversely affect the basic features of the Constitution. The Constitution
envisages a single judiciary, uniformity in Fundamental laws, civil and
criminal, and a common All India Service to man important posts. Speaking on
the nature of the constitutional scheme Dr.Ambedkar in his speech delivered on
November 4, 1948 in the Constituent Assembly had said: "A dual judiciary,
a duality of legal codes and a duality of civil services, as I said, are the
logical consequences of a dual polity which is inherent in a federation. In the
USA, the Federal Judiciary and the State Judiciary are separate and independent
of each other. The Indian Federation though a Dual Policy has no Dual Judiciary
at all. The High Courts and the Supreme Court form one single integrated
Judiciary having jurisdiction and providing remedies in all cases arising under
the constitutional law, the civil law or the criminal law. (Constitutent
Assembly Debates. Vol.7 (1948-49) at pp.34,36-37)." This Court in S.P.
Gupta's case (Supra) held that:
"An
analysis of the various provisions of the Constitution and other laws having a
bearing on the question shows that every High Court in India is an integral
part of a single Indian judiciary and judges who hold the posts of judges of
High Courts belong to a single family even though there may be a slight
variation in two of the authorities who are required to be consulted at the
time of the appointment.
The
provisions dealing with the High Courts are found in Chapter V in Part VI of
the Constitution containing provisions governing the States and the salaries of
the judges of a High Court are paid out of the funds of the State or States
over which it exercises jurisdiction. Yet it is difficult to say that each High
Court is independent of the other High Courts. A perusal of the other
provisions in that Chapter shows that the State Legislatures and the State
Governments have very little to do so far as the organisation of the High
Courts is concerned." Judges of the High Court do not constitute a single
All India Cadre or a 'judicial service' which could be subjected to the
Legislature in terms of Article 309 of the Constitution. While dealing with the
High Court Judges Transfer case, Bhagwati, J. (as His Lordship then was) held
that: "....the judiciary should be in a country like India which is marching
along the road to social justice with the banner of democracy and the rule of
law, for the principle of independence of the judiciary is not an abstract
conception but it is a living faith which must derive its inspiration from the
constitutional charter and its nourishment and sustenance from the
constitutional values.
It is
necessary for every Judge to remember constantly and continually that our
Constitution is not a non-aligned rational charter. It is a document of social
revolution which casts an obligation on every instrumentality including the
judiciary, which is a separate but equal branch of the State, to transform the
status quo ante into a new human order in which justice, social, economic and
political will inform all institutions of national life and there will be
equality of status and opportunity for all. The judiciary has, therefore, a
socio- economic destination and a creative function. It has to use the words of
Glanville Austin, to become an arm of the socio-economic revolution and perform
an active role calculated to bring social justice within the reach of the
common man. It cannot remain content to act merely as an umpire but it must be
functionally involved in the goal of socio-economic justice". In these
appeals, even the learned counsel appearing on behalf of the appellants has not
tried to compare or equate the subordinate judiciary with the distinct and
independent higher judiciary comprising of the judges of Supreme Court and the
High Courts. The apprehension expressed on behalf of the respondents that if
allowed to enact laws like the impugned Bihar Act, the Union Legislature may by
law or amendment of the Constitution provide reservations in the higher
judiciary with the object of controlling it and thereby demolishing the independence
of judicary, is thus apparently misconceived besides being far-fetched. In the
present appeals, it is conceded before us by all the parties concerned that
appointments to the posts of District Judges are governed by the Bihar Superior
Judicial Service Rules, 1951 (hereinafter referred to as "1951
Rules") which have, admittedly, been made by the Governor of Bihar in
exercise of powers conferred upon him by the proviso to Article 309 read with
Article 233 of the Constitution. Reference to Article 233 of the Constitution
only indicates that before making the rules the High Court had been consulted.
Article 233 of the Constitution itself does not envisage the making of rules
either by the Governor or by the High Court. Rule 5 of the 1951 Rules provides
that appointment to the Bihar Superior Judicial Service shall, in the first
instance, ordinarily be to the post of Additional District & Sessions Judge
and shall be made by the Governor in consultation with the High Court:
"(a) by direct recruitment from among persons qualified and recommended by
the High Court for appointment under clause (2) of Article 233 of the
Constitution; or (b) by promotion, from among members of the Bihar Judicial
Service." Of the Posts in the cadre of the service, 2/3rd are to be filled
by promotion and 1/3rd by direct recruitment. The State Government may, in
consultation with the High Court, deviate from the said proportion in either
direction. Rule 3 read with Schedule provides the sanctioned strength of the
service whereas other provisions relate to promotion, pay, allowances and
seniority. There is no dispute that these rules have been and are being acted
upon till date i.e. for about half a century. The High Court was, therefore,
not justified in holding that the law made under Article 309 would not apply to
the judicial service. If the rules made by the executive under Article 309 have
been applied and acted upon, no objection could be taken to the sovereign
powers of the legislature to enact and make laws with respect to the judicial
service in exercise of its power under first part of Article 309 of the
Constitution. It is also admitted that for appointments to the posts in the
judicial service other than the District Judges, the State Governor, in
exercise of his powers conferred upon him under Article 234 of the
Constitution, after consultation with the High Court of Judicature at Patna and
the Bihar Public Service Commission has made the rules called as "Bihar
Judicial Service (Recruitment) Rules, 1955" (hereinafter referred to as
"1955 Rules"). Rule 2 of the said Rules provides that the recruitment
to the post of munsiff shall be made in accordance with the rules and
recruitment to the post of subordinate judge shall be made by the High Court by
promotion of munsiffs confirmed under Rule 24 and appointed under Rule 26. Rule
3 authorises the Governor to decide in each year the number of vacancies in the
post of munsiff to be filled by appointments to be made on a substantive basis
or on a temporary basis or both. The Bihar Public Service Commission is obliged
to announce in each year in such manner as they think fit the number of
vacancies to be filled in that year by direct recruitment on the basis of a
competitive examination for which applications are required to be invited from
candidates eligible for appointments under the rules. The Commission has the
power to fix the limit in any particular year as to the eligibility of the
candidates to be admitted to the written examination and if the number of
candidates exceeds to the limit fixed, the Commission may make a preliminary
selection of candidates to be admitted to the written examination, on the basis
of their academic records. No candidate of the Scheduled Castes or the
Scheduled Tribes who is otherwise eligible under the Rules can be excluded from
appearing at the written examination. Rules 6 provides: "6. A candidate
may be of either sex, and must - (a) be under 31 years and over 22 years of age
on the 1st day of August preceding the year in which the examination is held:
Provided
that a candidate belonging to a Scheduled Caste or a Scheduled Tribe must be
under 36 years and over 22 years of age on the said date:
Provided
further that no candidate who does not belong to a Scheduled Caste or a
Scheduled Tribe shall be allowed to take more than five chances at the
examination;
(b) be
a graduate in Law of a University recognised by the Governor or a
Barrister-at-Law or a member of the faculty of advocates in Scotland, or an
Attorney on the rolls of a High Court, or possess other educational
qualifications which the Governor may, after consultation with the High Court
and the Commissions, decide to be equivalent to those prescribed above; and (c)
be a practitioner at the Bar of at least one years continuous standing on the
date of the advertisement." Rule 6A provides that no person who has more
than one wife living shall be eligible for appointment to the service. Rule 7
provides that a candidate must be of sound health, good physique and active
habits and free from any physical defect likely to interfere with the efficient
performance of the duties of a member of the Service. With his application a
candidate is required to submit the required documents as detailed in Rule 9.
The examination is to be held according to syllabus specified in Appendix C to
the Rules which are liable to alteration from time to time by the Government
after consultation with the High Court and the Commission. The Commission has
the discretion to fix the qualifying marks in any or all subjects at the written
examination in consultation with the Patna High Court. The minimum qualifying
marks for candidates belonging to Scheduled Castes and Scheduled Tribes shall
not be higher than 35 per cent unless the number of such persons at the written
examination according to the standards applied for other candidates is
considerably in excess of the number of candidates required to fill the
vacancies reserved for the Scheduled Casts and the Scheduled Tribes.
the
Commission is obliged to consult the Chief Justice of the High Court in the
matter of selection of examiners for the Law papers prescribed for the written
examination.
Viva-voce
test of the candidates is to be held under Rule
17.
The Chief Justice is authorised to appoint an officer to represent the High
Court at the viva-voce test. Rule 20 provides that Commission shall, while
submitting the recommendations, consider the claims of qualified candidates
belonging to the Scheduled Castes and the Scheduled Tribes.
If the
list of nominees submitted under Rule 19 does not contain an adequate number of
candidates belonging to the Scheduled Castes and the Scheduled Tribes, the
Commission shall submit a supplementary list nominating a sufficient number of
such candidates as in their opinion attain the required standard of qualifications
and are in all respect suitable for appointment to the service. It has been
conceded before us that to give effect to Rule 20 of the Rules, the Commission
and the High Court have been acting upon the Government orders issued from time
to time making reservations to the extent of 24% in favour of the Scheduled
Castes and the Scheduled Tribes. It is undisputed that the 1955 Rules were made
strictly in accordance with the requirement of Article 234 of the Constitution
after proper consultation with the High Court and the Public Service
Commission. It appears that the controversy arose only when the State
Government insisted to make reservations in the Superior Judicial Service which
was vehemently resisted by the High Court. The facts disclosed in the appeal
entitled State of Bihar vs. Deepak Singh & Ors. indicate that on 30.1.1991
the State Government consented the High Court and Bihar Public Service
Commission regarding making reservations in the judicial service. The Public
Service Commission vide its letter No. 112 dated 30.1.1991 communicated its
consent regarding the proposed amendment in the Bihar Judicial Service
(Recruitment) Rules, 1955.
However,
the High Court vide Memo No.5999 dated 16.4.1991 informed the Government that
"the court, in the interests of judiciary, is unable to agree to the
proposal of the State Government". The aforesaid letters exchanged between
the State Government, High Court and Public Service Commission obviously
indicate that the State Government had intended to amend the rules already
framed in exercise of the powers vesting in the Governor under Article 234 of
the Constitution. In view of the resistance of the High Court, being one of the
consultees in terms of Article 234, the State of Bihar opted to promulgate an
Ordinance called "The Bihar Reservation of Vacancies in Posts and Services
(for Scheduled Castes and Scheduled Tribes and Other Backward Classes)
Ordinance,1991" under Article 213 of the Constitution. The aforesaid
Ordinance was thereafter substituted by the Bihar Act No.3 of 1992 which was
enforced with immediate effect except Section 4 which was declared to have come
into force with effect from 1st November, 1994.
The
Reservation Ordinance was challenged in C.W.J.C.
No.7619/91.
The validity of letter dated 1.10.1990 whereby directions were issued to the
effect that the vacancies of 24th Judicial Competitive Examination shall be
filled in accordance with the said Ordinance were also challenged.
During
the pendency of the aforesaid writ petition, the Ordinance was replaced by an
Act No.3 of 1992. The High Court allowed the writ petition vide the order
impugned in this appeal holding that the impugned Ordinance/Act as also the
letter dated 1.10.1990. In so far as its applicability to the State is
concerned, it was ultra vires and contrary to the mandate of Article 234 of the
Constitution.
Similarly
the facts revealed in Civil Appeal No.9072/96 indicate that when on 13.10.1993
the State Government decided to fill up the vacancies of Additional District
Judges through fresh advertisement as per directions, the State Government on
16.11.1993 requested the High Court to send the vacancies categorywise in
accordance with the provisions of Act of 1991. On 16.12.1993 the High Court
informed the State Government that fresh advertisement be issued under Rule
5(a) and 6 of the 1951 Rules. It was further recommended that for eligibility
the minimum age of the applicants be 35 years and maximum 50 year. The
Government was further informed by the High Court that the 1991 Act will
neither be applicable nor followed in the matter of direct recruitment from the
Bar. No preference be given to any person on the basis of caste, religion and
sex.
On
4.1.1994 the High Court was informed by the Government that the provisions of
the Act of 1991 will also be applicable to the appointments in the Superior
Judicial Service in the State of Bihar. The High Court was requested to send
the vacancies reservation- wise. On 25.2.1994, the High Level Meeting under the
Chairmanship of the Chief Secretary to the Government of Bihar was held in
which the Secretary (Law) and Registrar of the High Court also participated. In
this meeting a request was made to the High Court to send upto date vacancies
in accordance with the Reservation Act as the non compliance was apprehended to
lead to an offence under the Act. The High Court on 5th April, 1994 reiterated
its position and vide it letter addressed to the Additional Secretary to the
Government of Bihar intimated: "With reference to your above mentioned letter
on the subject noted above, I am directed to say that the State Government has
already been informed about the resolution adopted by the Court that in the
matter of appointment of Additional District and Sessions Judge direct from the
Bar, merit would be the sole criteria and no preference will be given to any
candidate on the basis of caste, religion or sex. The resolution adopted by the
Court does further state that without accepting the provision of the Bihar
Reservation of Vacancy in Posts and Services (for Scheduled Castes/Scheduled
Tribes and other Backward Classes) Act, 1991, the Court are always prepared to
give preference to a candidate belonging to the Scheduled Caste or Scheduled
Tribe, provided that he is found to be of equal merit with other candidates.
It
needs to be appreciated that the post of Additional District and Sessions
Judge, in the Superior Judicial Service, carries with it a greater
responsibility in the matter of administration of justice. The post demands
that the holder of the post should be a person of appreciable merit and
requisite calibre to perform the functions of a Senior Judicial Officer."
On 1.9.1994, the High Court again intimated to the State Government of its
position. It is to be noticed that before this date the State Government had
issued advertisement on 16.6.1994 inviting applications for recruitment of
Additional District and Sessions Judge from the Bar reserving post for the
Scheduled Castes and Scheduled Tribes, backward classes, etc. to the extent of
the limits prescribed under the Reservation Act. Aggrieved by the
advertisement/notification respondents Advocates filed the writ petition
seeking a declaration that the provisions of the Reservation Act were void and
inoperative insofar as they relate to the Bihar Superior Judicial Service. The
aforesaid writ petition was disposed of vide the judgment impugned in this
appeal. It is thus evident that having failed to get the consent of the High
Court in framing the Rules either under Article 234 or Article 309 read with
Article 233 of the Constitution, resort was had to the issuance of Ordinance
and thereafter enacting the impugned Act. This unfortunate position arose on
account of the antagonistic and belligerent approaches adopted by the State
Government and the High Court. Had the aforesaid two wings of the State acted
fairly realising their obligations under the Constitution, the confrontation
could have been avoided. Such a recourse was depricated by this Court in B.S.
Yadavs case (supra) observing "this unfortunate position has arisen
largely because of the failure of the State Governments to take the High Court
into confidence while amending the Rules of Service. We must express our
concern at the manner in which the Rules of the Superior Judicial Service have
been amended by the Governor of Punjab and particularly by the Governor of
Haryana". In that case the Rules had been amended despite the opposition
of the High Court and amendment in Haryana was made in order to spite a single
judicial officer who was a direct recruit.
Both
the State Government and the Patna High Court failed to realise their
constitutional obligations in the matter of public service. The insistence of
the State Government could have been substituted by persuations and antagonism
by the High Court could have been avoided by adopting rational approach
realising the responsibility of the State of the constitutional obligations
mandating them to make reservations in favour of the weaker sections of the
society. It cannot be denied that the Reservation Policy has been accepted to
be a part of the Indian Parliamentary Democracy as a safeguarding measure to
protect the interests of the Scheduled Castes and Scheduled Tribes.
Reservations have been made in the Constitution to safeguard the interests of
Scheduled Castes and Scheduled Tribes keeping in mind the proportions of their
population. It cannot be denied that such weaker sections of the society have
been subjected to decades of exploitation, persecution and discrimination by
the hostile dominating classes, having been kept outside the sphere of the
mainstream for centuries and deprived of their due share in the polity of the
State.
They
were acknowledged to be given a special treatment under the Constitution. The
reservation on the basis of the caste has a long history in our country. Good
or bad the reservation being the part of the Constitution, the High Court
should not have adopted an adamant attitude of totally refusing to concede to
the request of the State Government for making reservations for the weaker
sections of the society. The hostility between two wings of the State have not,
in any way, strengthened the democratic set up nor has it benefitted any
section of the Society or institution. It is to be noticed that the
reservations made by the impugned Act were not challenged on the ground of
being either violative of Fundamental Rights or contrary to the other
provisions of the Constitution, except to the extent noticed hereinabove.
Relying upon judgment in K.N. Chandra Sekhara & Ors.v. State of Mysore (AIR
1963 Mysore 292) and M.I.
Nadaf
vs. The State of Mysore (AIR 1967 Mysore 77) the High Court vide the order
impugned in Deepak Kumars case held:
"Article
234 directs the appointment of persons to certain cadres of the judicial
service of the State only in accordance with the Rules made under that Article
and which appoints the Governor of the State, the authority to make these rules
after consultation with the High Court and the Public Service Commission. It is
manifest from Article 234 of the Constitution that the constitutional intent
was that appointments to the judicial services in a State, unlike other State
services, should be regulated only by rules made under that Article and not by
a law made by the Legislature of the State, which was conferred power by
Article 309 to make laws for recruitment to other services. The judicial
service was selected for special treatment and appointments to it were excepted
out of the operation of Article 309, and out of the orbit of ordinary Legislative
Control. Article 234 incorporates a command of the Constitution on the subject
of appointments to the cadres of the judicial service referred to in it and
constitutes the Governor in a sense a select Legislative organ for the
enactment of rules for the accomplishment of the Constitutional purpose. The
status of the rules so enacted is as high as that of a law made by the
Legislature under Article 309 and of the rules made under the proviso to it.
The attributes of a Governor to enact rules under Article 234 therefore
resemble those of a Legislature enacting legislation in its own legislative
field. The similitude between the power of the Legislature and the power of the
Governor being so obvious, it is clear that the bounds of permissible
delegation in each case should also be similar." It cannot be disputed
that the judicial service has been given a special treatment under the
Constitution and the appointments to the judicial service can be made only in
accordance with the rules made by the Governor under Article 234 after
consultation with the State Public Service Commission and the High Court
exercising jurisdiction in relation to such State. It follows, therefore, that
the Governor or the executive have no right, power or authority to make rules
with respect to the recruitment of persons other than the District Judges to
the judicial service of the State under Article 309 of the Constitution. Rules
governing the service conditions of such persons in the judicial service can be
made by the Governor only in the manner as prescribed under Article 234 of the
Constitution.
It is,
however, difficult to accept the finding of the High Court that the status of
the Rules enacted under Article 234 of the Constitution is as high as that of
law made by the legislature under Article 309. It cannot be accepted that the
attributes of a Governor to enact Rules under Article 234 resemble those of a
legislature enacting legislation in its own legislative field and have
overriding effect. The power of the legislature to make law regulating the
recruitment and conditions of service for persons appointed to public services
and posts in connection with the affairs of Union or of any State under Article
309 of the Constitution is only subject to the other provisions of Constitution
which have been noticed hereinbefore. Rules made under the delegated
legislation cannot be termed to be such other provisions of the Constitution.
It is not only Article 234 which confers power upon the Governor to make Rules
in the manner prescribed but various other provisions including Article 309
which authorise him to make rules for the purposes envisaged and the
restrictions and restraints imposed by the Constitution itself. It is settled
position of law that the Legislature cannot part with its essential legislative
function. A surrender of such essential function would amount to abdication of
legislative powers in the eyes of law. No rule or law made by virtue of
delegated legislation can supersede or override the powers exercised or the law
made by the delegator of power, the sovereign legislative, in exercise of its
constitutional right with respect to a matter or subject over which it has
otherwise plenary power of legislation. In Re: Article 143, Constitution of
India and Delhi Laws Act (1912) etc. [AIR 1951 SC 332], Kania, CJ, after
dealing with various cases of foreign courts found that the Indian Legislature
had plenary powers to legislate on the subjects falling within its powers under
the Constitution. He further observed, "every power given to a delegate
can be normally called back.
There
can hardly be a case where this cannot be done because the legislative body
which confers powers on the delegate has always the power to revoke that
authority and it appears difficult to visualise a situation in which such power
can be irrevocably lost". Referring to the constitutional scheme in this
country, Kania, CJ held: "Under the new Constitution of 1950, the British
Parliament, i.e. an outside authority, has no more control over the Indian
Legislature. That Legislatures powers are defined and controlled and the
limitations thereon prescribed only by the Constitution of India. But the scope
of its legislative power has not become enlarged by the provisions found in the
Constitution of India. While the Constitution creates the Parliament and
although it does not in terms expressly vest the legislative powers in the
Parliament exclusively, the whole scheme of the Constitution is based on the
concept that the legislative functions of the Union will be discharged by the
Parliament and by no other body. The essential of the legislative functions,
viz., the determination of the legislative policy and its formulation as a rule
of conduct, are still in the Parliament or the State Legislature, as the case
may be and nowhere else. I take that view because of the provisions of Article
357 and Article 22(4) of the Constitution of India. Article 356 provides
against the contingency of the failure of the constitutional machinery in the
States. On a proclamation to that effect being issued, it is provided in
Article 357(a) that the power of the legislature of the State shall be
exercisable by or under the authority of the Parliament, and it shall be
competent for the Parliament to confer on the President the power of the
legislature of the State to make laws "and to authorise the President to
delegate, subject to such conditions as he may think fit to impose, the powers
so conferred to any other authority to be specified by him in that
behalf." Sub-clause (2) runs as follows:
"For
Parliament or for the President or other authority in whom such authority to
make law conferring powers and imposing duties, or authorising the conferring
of powers and the imposition of duties, upon the Union or officers and
authorities thereof." It was contended that on the breakdown of such
machinery authority had to be given to the Parliament or the President,
firstly, to make laws in respect of subjects on which the State Legislature
alone could otherwise make laws and, secondly, to empower the Parliament or the
President to make the executive officers of the State Government to act in
accordance with the laws which the Parliament or the President may pass in such
emergency. It was argued that for this purpose the word 'to delegate' is used.
I do not think this argument is sound. Sub-clause (2) relates to the power of
the President to use the State executive offices.
But
under clause (a) Parliament is given power to confer on the President the power
of the 'legislature' of the State 'to make laws'. Article 357(1)(a) thus
expressly gives power to the Parliament to authorise the President 'to delegate
his legislative powers'. If powers of legislation include the power of
delegation to any authority there was no occasion to make this additional provisions
in the Article at all. The wording of this clause therefore supports the
contention that normally a power of legislation does not include the power of
delegation." Fazal Ali, J. on the point relating to the functions of the
Legislature and its authority to delegate held: "The legislature must
normally discharge its primary legislative function itself and not through
others (2) Once it is established that it has sovereign powers within a certain
sphere, it must follow as a corollary that it is free to legislate within that
sphere in any way which appears to it to be the best way to give effect to its
intention and policy in making a particular law, and that it may utilize any
outside agency to any extent it finds necessary for doing things which it is
unable to do itself or finds it inconvenient to do. In other words, it can do
everything which is ancillary to and necessary for the full and effective
exercise of its power of legislation. (3) It cannot abdicate its legislative
functions, and therefore, while entrusting power to an outside agency, it must
see that such agency acts as a subordinate authority and does not become a
parallel legislature. (4) The doctrine of separation of powers and the judicial
interpretation it has received in America ever since the American Constitution
was framed, enables the American courts to check undue and excessive delegation
but the Courts of this country are not committed to that doctrine and cannot
apply it in the same way as it has been applied in America. Therefore, there
are only two main checks in this country on the power of the legislature to
delegate, these being its good sense and the principle that it should not cross
the line beyond which delegation amounts to abdication and
self-effacement'." Mahajan, J. was of the view that the Parliament being
omnipotent despot, apart from being a legislature simpliciter, it can, in
exercise of its sovereign power delegate its legislative functions or even
create new bodies conferring on them power to make laws. Whether it exercises
its power of delegation of legislative power in its capacity as a mere
legislature or in its capacity as omnipotent despot, its actions were not
subject to judicial scrutiny.
In the
same case Mukherjea, J. held that the legislature cannot part with its
essential legislative function. A surrender of this essential function would
amount to abdication of its power in the eyes of law. In Hotel Balaji &
Ors., etc. etc. vs. State of Andhra Pradesh & Ors., etc. etc. [AIR 1993 SC
1048] this Court held that legislative competence of a legislature to enact a
particular provision in the Act cannot be made to depend upon the rule or
rules, as the case may be, at a given point of time. Conferment of power upon
the Governor to make rules in the manner prescribed under Article 234 of the
Constitution cannot be interpreted to mean that the constitutional makers had
intended to take away the power of the legislature, admittedly, conferred upon
it under Part XI Chapter I read with Seventh Schedule of the Constitution.
Such
an interpretation, if accepted, would be contrary to the settled principles
relating to interpretation of Statutes. Whereas it is true that the Governor of
a State cannot make rules with respect to subjects covered by Article 234 in
any other manner, (Article 309) it cannot, however, be accepted that such power
of the Governor can be equated with the sovereign power of the legislature to
make laws with respect to the assigned field. Law making power of the
legislature with respect to judicial service without encroaching upon the
subjects covered by Article 233 to 236 has impliedly been acknowledged by this
Court in B.S.
Yadavs
Case (supra). The High Court of Mysore in K.N.
Chandra
Sekhars case (supra) while referring to Articles 233 and 309 had made certain
observations which have been relied upon by Patna High Court in the impugned
judgment.
In
that case the High Court of Mysore in fact was not called upon to decide the
issue of the finality of the rules made under Article 234 of the Constitution in
relation to a law made under Article 309. In the case before Mysore High Court,
the dispute had arisen with respect to the appointments to the posts of
munsiffs in judicial service of the State of Mysore. The Public Service
Commission of the State conducted a competitive examination under the rules
made for the purposes by the Governor of the State under Article 234 and
proviso to Article 309 of the Constitution.
The
candidates who took the examination but did not succeed challenged the
notification of the Public Service Commission on the ground of its being
without lawful authority. The notification of the Public Service Commission was
impeached on the ground that since the rules did not prescribe the criterion by
which the success of candidates should be determined, there was no criterion by
which the Commission could have determined whether a candidate has succeeded or
failed and it was not upon the Commission to prescribe for itself a criterion
not found in the rules. The Commission had applied a formula for ascertaining
the names of the successful candidates by fixing 45% as qualifying marks for
the candidates belonging to Scheduled Caste and Scheduled Tribes and 55% for
others. It was further claimed that power of the Governor to fix the qualifying
marks was impliedly delegated to the Commission. In that context the High Court
examined Article 234 of the Constitution and observed: "It is reasonably
clear that the purpose of Article 234 is that the collective wisdom of the
Governor, the High Court and the Public Service Commission should regulate
appointments referred to in that article, and it is plain that no rule made
without the required consultation can have any effect or potency. It is obvious
that within the range of the many matters requiring such collective
deliberation would fall a multitude of subjects such as the determination of
the question whether the appointments should be made on the basis of an
examination, and if so, of what pattern, the selection of the subjects in which
the candidates should be examined, the determination of the qualifying and
maximum marks, the appointment of the authority to conduct the examination, the
qualifications and disqualifications of the candidates and the like." It
further held:
"If,
on its true construction, Art.234 does not require that standard to be
specified or formulated by a rule, then alone, could it be said that the
Governor could delegate that function to another. That article is a special
constitutional provision removing from the provisions of Art.309 certain
appointments to the judiciary and enjoining the Governor to make them in
accordance with rules enacted in consultation with the High Court and the
Public Service Commission. What are the matters about which the Governor is
required to consult the High Court and the Public Service Commission. The
Public Service Commission, it is obvious, was required to be consulted in
regard to matters in which it had special competence to offer advice.
The
High Court was required to be consulted so that its advice may be obtained as
to how and in what manner the appointments to a service under its control may
be satisfactorily made." It was conceded that there was no rule
prescribing the qualifying marks. Nor was the power to determine those
qualifying marks expressly delegated to any legislative authority. In that case
the State had prayed for placing the construction on Article 320(3) to the
effect that the clause did not require the Governor or the legislature
functioning under Article 309 of the Constitution to consult the Public Service
Commission for determination of the qualifying marks and that it was open to
the legislature or the Governor, as the case may, to determine and fix those
qualifying marks without such consultation. The court found that the provisions
of Article 320(3) were so comprehensive which did not admit the interpretation
sought for. The determination of qualifying marks was held to be an integral
part of scheme for an examination because the examination was the method
applied for recruitment for testing the suitability of candidates to the
judicial service. The Court observed that "the construction suggested by
Mr.Advocate General which makes it possible for the legislature or the Governor
to decline to consult Public Service Commission on the determination of the
qualifying marks and to that extent diminishes the utility of the construction
and makes it futile and illusory, cannot merit acceptance". Consultation
required under Article 234 was held to extend to everyone of the matters on
which Article 320(3) enjoined consultation. The qualifying marks secured in a
competitive examination prescribed by rules made under Article 234 shall form
the subject matter of consultation by the governor with the High Court and the
Public Service Commission. While striking down the selection, the Court held
that it shall be open to the Governor to make appropriate rule determining the
qualifying marks and to the Public Service Commission to conduct another
viva-voce examination in accordance with those Rules. No Act of legislature
made on the subject was in issue warranting observations made in para 23 of the
judgment. Otherwise also while dealing with Chandra Shekar's case(supra)
Brother Majmudar,J. has rightly concluded: "Somnath Iyer, J., speaking for
the Division Bench observed that: 'Article 234 excepts out of the operation of
Art.309, appointments to judicial service and constitutes the Governor in a
sense a select legislative organ for enactment of rules for the purpose'. The
aforesaid observation will of course have to be read down in the light of the
Constitution Bench decision of this Court in B.S. Yadav's case (supra)."
In M.I. Nadafs case(supra) relying on K.N. Chandra Sekhars case the High Court
of Mysore held that the Rules framed by the Governor under Article 309 of the
Constitution could not override the Rules made by him under Article 234 of the
Constitution. The petitioner in that case had relied upon the Rules framed
under proviso to Article 309 of the Constitution dealing with recruitment
generally for the Mysore State Civil Services whereas specific Rules pertaining
to the judicial service had earlier been framed under Article 234 of the
Constitution. After referring to K.N. Chandra Sekhars case the Court held:
"From a reading of that decision, it is clear that no rule relating to the
appointment of the persons mentioned in Article 234 of the Constitution can be
validly made by the Governor without consulting either the High Court or the
Public Service Commission. As seen earlier, the Mysore Munsiffs (Recruitment)
Rules, 1958 prescribed the age limits for the appointments of the Munsiffs.
Rules therein were made by the Governor under Article 234 of the Constitution
in consultation with the High Court and the Public Service Commission. Any variation
of that rule can only be made under Article 234 and that in accordance with the
requirements of that Article. As seen earlier "Rules" do not comply
with the requirements of Article 234. That being so, we are unable to accept
the contention of Mr.Javali, the learned counsel for the petitioner that the
age qualification prescribed under the Munsiffs (Recruitment) Rules stood
modified by rule 6(4)(b) of the "Rules". Our view that appointments
to judicial services of the State other than that of the District Judges should
be made only in accordance with the rules made by the Governor under Article
234 of the Constitution after consultation with the State Public Service
Commission and the High Court exercising jurisdiction in relation to such State
and not under rules framed by him under Article 309 of the Constitution is also
supported by the decision of the Madras High Court in N.Devasahayam v. State of
Madras AIR 1958 Mad 53 and that of the Rajasthan High Court in Rajvi Amar Singh
v. State of Rajasthan AIR 1956 Raj. 104." It is true that if there is a
conflict between the Rules framed under Article 234 of the Constitution and the
Rules made under Article 309, the latter Rules, in so far as they relate to
Subordinate Judiciary shall be ineffective and not applicable. However, main
Article 309 cannot be made subject to the provisions of Article 234 except to
the extent indicated in Chapter VI. In other words, the appropriate legislature
would be competent to make laws if authorised under Chapter XI read with
Seventh Schedule of the Constitution. In case of conflict between the Rules
made under Article 234 and the laws made by the appropriate legislature, the
Rules would give way to the laws made by the sovereign legislature. Such law
made, however, may be declared invalid or inapplicable to the judicial service
if it in any way undermines the independence of judiciary or otherwise
encroaches upon the constitutional guarantees under aforesaid Chapter VI or is
violative of the Fundamental Rights. Giving any other interpretation would
amount to usurping the power of the sovereign legislature.
Such
an approach would be nugatory to the concept of Parliamentary Democracy adopted
by the people of India for their governance. There cannot be two opinions that
the Parliamentary Democracy is one of the basic features of the Constitution
which nobody can alter, modify or substitute even in exercise of the
constitutional powers conferred upon the Parliament under Article 368 of the
Constitution. The High Court of Patna, therefore, fell in error in holding that
the law made by the sovereign legislature in exercise of the powers vesting in
it under Article 309 or Part XI read with Seventh Scheduled of the Constitution
was not applicable to the judicial service of the State of Bihar.
From
the scheme of the Constitution with particular reference to Part VI, Chapter
VI, Part XIV Chapter I, Part XI Chapter I and Seventh Schedule of the
Constitution what emerges is that: (i) The constitutional-makers had given a
special status and treatment to the judicial service; (ii) That the
independence of judiciary is ensured which cannot be interfered with either by
an executive action or by an act of legislature; (iii) That the conditions of
service spelt out in Chapter VI of the Constitution cannot be altered, modified
or substituted either by rule making power or by legislation made in exercise
of the powers under Article 309 of the Constitution; (iv) Rules made under
Article 234 have primacy in the matter of appointment/recruitment, discipline
and control of the judicial service and even such rules cannot take away from
persons belonging to the judicial service any right of appeal which they may
have under the law regulating the conditions of their service or as authorising
the High Court to deal with them otherwise than in accordance with the
conditions of their service prescribed under such law; (v) The provisions of
Chapter VI of Part VI and the powers conferred upon the appropriate legislature
and the Governor under Article 309 are complementary and supplementary to each
other subject to the conditions of ensuring the independence of judiciary; (vi)
That in case of conflict between the rules made under Chapter VI and under
Article 309, the rules specifically framed under Article 234 of the
Constitution would prevail and the rules made under Article 309, to that
extent, shall give in their way; (vii) That the Parliament or the State
Legislature can legislate upon any matter including the matters relating to the
judicial service provided the legislation is permitted under Part XI, Chapter I
read with Seventh Schedule and is not in conflict with other provisions of the
Constitution and rights guaranteed in favour of the judicial service by the
Constitution itself under Part VI Chapter VI; (viii) Even if any law made by
the appropriate legislature is held to be made with plenary power of
legislation and not in conflict with Part VI Chapter VI, being subject to
Judicial Review, it can be challenged if it violates the Fundamental Rights or
any other provision of the Constitution; ix) As in the case of Rules made under
Article 234 of the Constitution, it is expected that if any rules are intended
to be made by the executive under Article 309 with respect to the judicial
service, the High Court shall be consulted and its views given due weight while
making such rules. It is needless to say that in the process of consultation,
the concerned High Court shall keep in mind the constitutional obligations of
the State under Part III, Part IV or any other provision of the Constitution.
x) The conclusions enumerated hereinabove are, however, not applicable to the
higher judiciary constituted and established under Part V Chapter IV and Part
VI Chapter V of the Constitution. In view of the position of law as enunciated
hereinabove, the findings of the High Court in the impugned judgment in so far
as it holds that the impugned Act is not applicable to the judicial service
cannot be sustained and is liable to be set aside.
Admittedly,
the impugned Act has not been challenged on any other ground. It is not the
case of the respondent that the Act is violative of any of the Fundamental
Rights or in violation of any constitutional provision or it tampers with the
independence of judiciary. The impugned Act does not in any way usurp the power
of the High Court to make recommendations for appointment of District Judges
and direct promotions or appointment of persons other than District Judges to
the judicial service. After enacting the law in accordance with the constitutional
provisions, the selection for appointment of the persons to the judicial
service has been left to the wisdom and at the discretion of the High Court.
The High Court has not in any way been deprived of making the selection of the
best available candidates if they otherwise fulfil the eligibility criteria and
come within the parameters prescribed by law. Despite the impugned Act, making
reservations, the power of the High Court in the matter of appointments has not
been curtailed as apprehended. Appointments on the basis of reservation can be
made of only such persons who are found eligible and recommended by the High
Court. The Governor or the executive cannot appoint any person of their own
from the reserved categories. Once reservations are made, the High Court is
absolutely within its powers to fix the category and suitability to make
selection for recommendation. The independence of judiciary has not, in any
way, been taken away by the exercise of legitimate powers by the legislature.
By exercise of its power the legislature does not appear to have interfered
with the overall control of the High Court over the subordinate judiciary. Even
though the appropriate authority to make the appointments is the Governor, yet
the power of the High Court or the independence of judiciary is not undermined
because the power to make the appointment conferred upon the Governor has to be
exercised by him in consultation with the High Court. This Court in M.M. Gupta
& Ors.v. State of J & K & Ors. [AIR 1982 SC 1579], after referring
to a catena of authorities, concluded: "We are of the opinion that healthy
convention and proper norms should be evolved in the matter of these
appointments for safeguarding the independence of the judiciary in conformity
with the requirements of the Constitution. We are of the opinion that normally,
as a matter of rule, recommendations made by High Court for the appointment of
a District Judge should be accepted by the State Government and the Governor
should act on the same.
If in
any particular case, the State Government for good and weighty reasons find it
difficult to accept the recommendations of the High Court, the State Government
should communicate its views to the High Court and the State Government must
have complete and effective consultation with the High Court in the matter.
There can be no doubt that if the High Court is convinced that there are good
reasons for the objections on the part of the State Government, the High Court
will undoubtedly reconsider the matter and the recommendations made by the High
Court.
Efficient
and proper judicial administration being the main object of these appointments,
there should be no difficulty in arriving at a consensus as both the High Court
and the State Government must necessarily approach the question in a detached
manner for achieving the true objective of getting proper District Judges for
due administration of justice." This Court in Indra Sawhney & Ors. vs.
Union of India & Ors. [1992 Supp. (3) SCC 217] has held that reservation is
a remedy for historical discrimination and its continuing ill-effects. Poverty
demands affirmative action. Its eradication is a constitutional mandate. The
purpose of Article 16(4) is to give adequate representation in the services of
the State to that class which has no representation. This Articles carves out a
particular class of people and not individuals from the weaker sections and the
class it carves out is the one which does not have adequate representation in
the services of the State.
Pandian
J., in his concurring but separate judgment had observed: "Though 'equal
protection' clause prohibits the State from making unreasonable discrimination
in providing preferences and facilities for any section of its people,
nonetheless it requires the State to afford substantially equal opportunities
to those, placed unequally.
The
basic policy of reservation is to off-set the inequality and remove the
manifest imbalance, the victims of which for bygone generations lag far behind
and demand equality by special preferences and their strategies.
Therefore,
a comprehensive methodological approach encompassing jurisprudential,
comparative, historical and anthropological conditions is necessary. Such
considerations raise controversial issues transcending the routine legal exercise
because certain social groups who are inherently unequal and who have fallen
victims of discrimination require compensatory treatment. Needless to emphasise
that equality in fact or substantive equality involves the necessity of
beneficial treatment in order to attain the result which establishes an
equilibrium between two sections placed unequally." The majority judgment
further held that power of "State" to make any provision under
Article 16(4) does not necessarily mean that such provision be made only by
Parliament or any State Legislature. Government can also introduce reservation
by executive orders as appears to have been practised in Bihar also so far as
subordinate judicial service is concerned. As the impugned Act making
reservation in the services including the judicial service has not been
challenged on the grounds of being violative of Fundamental Rights or in
contravention of any constitutional provision there is no necessity of testing
its constitutional validity on the aforesaid touchstones. In view of this
position of law it has to be now ascertained as to whether the impugned Act had
really made any provision of reservation in the judicial service as well or
not. The High Court on perusal of its various provisions has held that the Act
did not relate to the judicial service and the insistence of the Government of
Bihar to issue notifications in accordance with the said Act by making
provision for reservation was uncalled for. While interpreting the words
"office or department" occurring in the definition of term
"establishment" under Section 2(c) of the Act, the Court held that
the aforesaid words referred to the office or department of the Court and not
the Court itself. It further held that reservation of posts in the judicial
service de hors of the Reservation Act was not permissible.
Intepreting
Section 4, the High Court observed: "The correct construction of Section
4, in the context, read with Section 2(c) and 2(n), would be something like
this-- All appointments to service and posts in any office or department (i.e.
establishment) of the judiciary by direct recruitment shall be regulated in the
following manner." The findings of the High Court cannot be upheld in view
of the clear provisions made in Bihar Act No.3 of 1992.
The
Preamble of the Act states that it has been enacted to provide for adequate
representation of Scheduled Castes, Scheduled Tribes and other Backward Classes
in posts and services under the State. Section 2(a) defines "Appointing
authority" in relation to a Service or post in an establishment to mean
the authority empowered to make appointment to such services or posts; Section
2(c) defines "Establishment" as "any office or department of the
State concerned with the appointments to public services and posts in connection
with the affairs of the State and includes (i) local or statutory authority
constituted under any State Act for the time being in force, or (ii) a
co-operative institution registered under the Bihar Co-operative Societies Act,
1935 (Act 6 of 1935) in which share is held by the State Government or which
receives aid from the State Government in terms of loan, grant, subsidy, etc.
and (iii) Universities and Colleges affiliated to the Universities, Primary,
Secondary and High Schools and also other educational institutions which are
owned or aided by the State Governments and (iv) an establishment in public
sector"; Section 2(f) defines "Reservation" to mean, reservation
of vacancies in posts and services for Scheduled Castes/Scheduled Tribes and
Other Backward Classes; Section 2(n) defines "State" to include the
Government, the Legislature and the Judiciary of the State of Bihar and all
local or other authorities within the State or under the control of the State
Government. Section 3 refers to the "Services" to which the Act has
not been made applicable.
Section
4 mandates that all appointments to the Services and Posts in an establishment
which are to be filled by direct recruitment shall be regulated in the manner
prescribed therein. 50% of the available vacancies are to be filled up from
open merit category and 50% from reserved category.
The
vacancies from different categories of reserved candidates from amongst the 50%
the reserved categories shall, subject to other provisions of the Act, be as
follows: (a) Scheduled Castes 14% (b) Scheduled Tribes 10% (c) Extremely
Backward Class 12% (d) Backward Class 8% (e) Economically Backward Woman 3% (f)
Economically Backward 3% ------ Total 50% Section 5 of the Act provides:
"Review of Reservation Policy.--(1) It shall be the duty of the State
Government to strive to achieve the representation of the Scheduled
Castes/Scheduled Tribes and other Backward Classes in the various services of
posts of all the establishments of the State as defined in clauses (c) and (d)
of Section 2 in the proportion fixed for various reserved categories under
Section 4.
(2)
The State Government shall review its reservation policy after every ten years:
Provided
that every order made under sub-section (2) shall be laid as soon as may be
after it is made, before the State Legislature while it is in session for a
total period of fourteen days which may be comprised in one or in two
successive sessions." The aforesaid Act was amended by Act No.XI of 1993
by which amongst others Sub- section (2) of Section 4 was substituted
prescribing the extent of percentage of reservations. Similarly clause (c) of
sub-section (6) of Section 4 was substituted prescribing the manner of filling
the vacancies in case of non-availability of suitable candidates in the
reserved categories. Clause (e) of sub-section (6) of Section 4 was substituted
providing:
"(e)
If required number of candidates of Scheduled Castes, Scheduled Tribes and
Extremely Backward Classes and Backward Classes and Women of Backward Classes
are not available for filling up the reserved vacancies, fresh advertisement
may be made only for the candidates belonging to the members of Scheduled
Castes, Scheduled Tribes and Extremely Backward and Bacward Classes and Women
of Backward Classes, as the case may be, to fill the backlog vacancies
only." A combined reading of the various provisions of the Act leave no
doubt that it is also applicable to the establishment of judicial service and
"not only to the office or department of the Court, excluding the Court
itself", as has been held in the impugned judgment. No other
interpretation is possible in view of the definitions of
"establishment" and "State" in Sections 2(c) and 2(n) of
the Act. It was not correct for the High Court to say that the aforesaid
language of the statute was capable of more than one interpretation and for
that such interpretation which is not absurd or inconsistent should be
followed. The Court is required to interpret statute as far as possible
agreeable to justice and reason. While interpreting a statute the courts have
to keep in mind the underlying policy of the statute itself and the object
sought to be achieved by it. This Court in Nasiruddin vs. State Transport
Appellate Tribunal [AIR 1976 SC 331] held: "If the precise words used are
plain and unambiguous, they are bound to be construed in their ordinary sense.
The mere fact that the results of a statute may be unjust does not entitle a
court to refuse to give it effect. If there are two different interpretations
of the words in an Act, the Court will adopt that which is just, reasonable and
sensible rather than that which is none of those things. If the inconvenience
is an absurd inconvenience, by reading an enactment in its ordinary sense,
whereas if it is read in a manner in which it is capable, though not in an
ordinary sense there would not be an inconvenience at all; there would be
reason why one should not read it according to its ordinary grammatical
meaning. Where the words are plan the court would not make any alteration."
It is not correct as held by the High Court in the impugned judgment that
interpreting the statute in favour of the appellant State, as desired,
"would amount to relegating the judicial service at par with not only the
secretarial staff or the administrative, executive or council of ministers and
legislature but also their own staff. That would be contrary to law laid down
by the Apex Court in All India Judges Case (supra)". It appears that to
arrive at such a conclusion the High Court was also persuaded and impressed on
account of the statement before it that the provisions of the Reservation Act
had been declared to be ultra vires, as regards the Bihar Subordinate Judicial
Service i.e., as regards recruitment of judicial officers other than that of
the District Judges in the case of Deepak Kumar Singh & Others.
Interpretation of Section 4 as put in by the High Court, if accepted, would not
only frustrate the purpose and object of the Bihar Act No.3 of 1992 but also be
contrary to the mandate of the Constitution as enshrined in its Part III and
further declared in Part IV, Article 56 and Article 335 of the Constitution.
The High Court is thus held to have fell in error of law in declaring the Act
as ultra vires in so far as its applicability to the judicial service is
concerned, and also in the matter of interpretation of its various provisions.
The appeals are accordingly allowed by setting aside the judgments impugned
therein with a direction to the respondents to fill up the vacancies in accordance
with the Rules applicable and the provisions of the impugned Act without
disturbing the appointments made till date on the basis of this Courts order.
The seniority of the members of the judicial service shall be determined in
accordance with the Service Rules applicable and the provisions of the Act by
adjusting the candidates selected on reservation to fill in the reserved slots
keeping in view the quota and rota rule as specifically pointed out by this
Court in its order dated 16.11.1995. No costs.
PATTANAIK,
J.
I have
gone through the two learned judgments, one of Brother Majmudar, J. and the
other of Brother Sethi, J.
expressing
divergent views on the question at issue, and I entirely agree with the
conclusions arrived at by Brother Majmudar,J. and respectfully differ from the
views expressed by Brother Sethi,J. But in view of the importance of the
question I would like to add few paragraphs of my own.
The
question for consideration is whether the State Legislature could enact a law
in exercise of their powers under article 309 of the Constitution in relation
to the recruitment and laying down the conditions of service of the officers
belonging to the Judicial Services of the State? It is in this context the
further question that arises for consideration is whether the provisions of the
Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes,
Scheduled Tribes and other Backward Classes) Act, 1991 (hereinafter referred to
as the Act) (Bihar Act 3 of 1992) as amended by Bihar Act 11 of 1993, providing
reservation to the extent mentioned in Section 4 would apply to the Judicial
Services of the State in view of the definition of State in Section 2(m) of the
Act. The answer to these questions depend upon an analysis of the
Constitutional Scheme and how the founding fathers intended to have separate
provisions for the judicial wing of the State. In fact when the question of
appointment of persons to the post of District Judges and post subordinate
thereto were being considered and had been engrafted in the Draft Constitution
under article 209-A to 209-F, Dr. B.R.
Ambedkar
in his Speech in the Constituent Assembly had categorically stated, the object
of these provisions is two- fold: first of all, to make provision for the
appointment of district judges and subordinate judges and their qualifications.
The second object is to place the whole of the civil judiciary under the
control of the High Court. The only thing which has been excepted from the
general provisions contained in article 209-A, 209-B and 209-C is with regard
to the magistracy, which is dealt with in article 209-E. The Drafting Committee
would have been very happy if it was in a position to recommend to the House
that immediately on the commencement of the Constitution, provisions with
regard to the appointment and control of the Civil Judiciary by the High Court
were made applicable to the magistracy. But it has been realised, and it must
be realised that the magistracy is intimately connected with the general system
of administration. We hope that the proposals which are now being entertained
by some of the provinces to separate the judiciary from the Executive will be
accepted by the other provinces so that the provisions of article 209-E would
be made applicable to the magistrates in the same way as we proposed to make
them applicable to the civil judiciary. It has been felt that the best thing is
to leave this matter to the Governor to do by public notification as soon as
the appropriate changes for the separation of the judiciary and the executive
are carried through in any of the province. Thus it is apparent how anxious the
founding fathers of the Constitution were to insulate the judicial wing of the
State from the other wings. When Pt.Hirday Nath Kunzru moved some amendments to
article 209-A, as it stood in the Draft Constitution, he had indicated that the
very object of amendments is for the purpose that though the Governor will
appoint District Judges in consultation with the High Court but once such
appointment is made by the Governor the District Judge would remain under the
control of the High Court. It is not necessary to delve into the reaction of
other Members of the Constituent Assembly at that point of time in as much as
almost all the Members had felt the necessity of making separate provisions for
the judicial wing of the State as far as practicable and to vest the entire
control with the High Court of the State. In fact Dr. Ambedkar himself had
indicated that there is nothing revolutionary in the provisions of the Constitution
relating to the sub-ordinate courts of the States and in fact those provisions
were there in the Government of India Act, 1935. With this background in mind
if we look at the Constitutional Scheme we find Part XIV consisting of articles
308 to 323 deal with the services under the Union and the States whereas
Chapter VI containing articles 233 to 237 deal with the Subordinate Courts.
Under article 233, the power of appointment, posting and promotion of district
judges in any State has been conferred on the Governor of the State in
consultation with the High Court exercising jurisdiction in relation to such
State. It obviously deals with those officers who are to be promoted to the
rank of district judge in the superior judicial service from the post of
subordinate judge. Sub-article (2) of article 233 of the Constitution makes
provision for appointment of a person as a district judge direct on the
recommendation of the High Court concerned. Article 234 of the Constitution
provides for recruitment of persons other than district judges to the judicial
service of the State and the same has to be made by the Governor in accordance
with the Rules made by him in that behalf after consultation with the State
Public Service Commission and with the High Court exercising jurisdiction in
relation to such State.
Article
235 deals with control over the subordinate courts and there is not an iota of
doubt that the control over district courts and courts subordinate thereto vest
with the High Court and such control must be one which is real and effective
and there cannot be any dilution in that respect.
It is
to be borne in mind that in the Constitutional Scheme in Chapter VI the
Founding Fathers have dealt with the question of recruitment and not other
conditions of service, such as the age of superannuation, the pay, the pension
and allowances, so on and so forth. While Article 309 deals with recruitment
and conditions of service of persons serving the Union or the State, a
particular category of post forming the judicial wing has been carved out in
Chapter VI in Articles 233 to 235 so far as the question of recruitment is
concerned. When Article 309 itself uses the expression subject to the
provisions of this constitution it necessarily means that if in the constitution
there is any other provision specifically dealing with the topics mentioned in
said Article 309, then Article 309 will be subject to those provisions of the
Constitution. In other words, so far as recruitment to the judicial services of
the State is concerned, the same being provided for specifically in Chapter VI
under Articles 233 to 237, it is those provisions of the Constitution which
would override any law made by the appropriate legislature in exercise of power
under Article 309 of the Constitution. The State legislature undoubtedly can
make law for regulating the conditions of services of the officers belonging to
the judicial wing but cannot make law dealing with recruitment to the judicial
services since the field of recruitment to the judicial service is carved out
in the Constitution itself in Chapter VI under Articles 233 to 236 of the
Constitution.
It
would be appropriate to notice at this stage while in Articles 145(1), 148(5),
187(3), 229(2), 283(1) and (2), the Constitution itself make the provision
subject to the provisions of law made by the Parliament but Article 234 is not
subject to any legislation to be made by the appropriate legislature, which
indicates that so far as recruitment to the Judicial Service is concerned which
is engrafted in Article 234, the same is paramount and the power of legislature
to make law under Article 309 will not extend to make a law in relation to
recruitment, though in relation to other conditions of service of such judicial
officers, the appropriate legislature can make a law. In fact in B.S.
Yadavs
case 1981(1)SCR 1024, on which Dr. Dhawan, appearing for the State of Bihar,
heavily relied upon Chief Justice Chandrachud, had noticed to the effect-
Whenever, it was intended to confer on any authority the power to make any
special provisions or rules, including rules relating to conditions of service,
the Constitution has stated so in express terms. See, for example Articles
15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3),
176(2), 187(3), 208, 225, 227(2) and (3) and 229(1) and (2), 234, 237 and
283(1) and (2). The observation has been made in the context of the question
whether Article 235 confers any power on the High Court to make Rules relating
to the Conditions of Judicial Officers attached to the District Courts and the
Courts subordinate thereto. The very fact that the framers of the Constitution
in enacting Article 234 have made the provision, not subject to any acts of the
appropriate legislature is the clearest indication of the Constitution makers
that so far as the recruitment to the Judicial Service of the State is
concerned, the State Legislature do not possess the necessary power to make
law.
At the
cost of repetition, it may be stated that the expression recruitment and the
expression other conditions of service are two distinct connotations in the
service jurisprudence and the framers of the Constitution have also born that
in mind while engrafting Articles 234 and 309 of the Constitution. It is true
that Article 233 dealing with appointment of District Judges does not indicate
conferment of power to make Rules for appointment.
But
the language of article 233 indicates that the entire matter of recruitment to
the post of District Judge, either by way of direct recruitment or by promotion
is left to the High Court and it is the Governor of the State who is required
to make such appointment in consultation with the High Court. So far as direct
recruitment is concerned, the Constitution itself lays down certain criteria
for making a person eligible for being appointed/recruited as a District Judge.
The entire field of recruitment is left to the two Constitutional consultees
and obviously, the opinion of the High Court in such matter must be of binding
effect. For direct recruitment to the post of District Judges in sub-Article
(2) of Article 233, the Constitution itself has indicated the eligibility
criteria and the source of recruitment, leaving the manner of final selection
with the High Court itself. The argument of Dr. Rajiv Dhawan, in this context
that it would be anomalous that whereas for subordinate judiciary, the
legislature has no power to make law to deal with the recruitment, whereas for
District Judges, the legislature has such power, is devoid of substance
inasmuch as under Article 233, both under Clause (1) as well as Clause (2)
though the appointment has to be made by the Governor but it is the High Court,
who has to decide as to who would be appointed and this also fits in with the
underlying principles under Article 235 of the Constitution. With reference to
second part of Article 235, Dr. Dhawan had also raised the contention that it
pre- supposes that the legislature does possess the power to make law,
conferring a right to appeal to an officer of the judiciary of the State,
though, control over District Courts and Courts sub-ordinate thereto vests with
the High Court.
But
this contention does not take into account the distinction between the two
connotations namely recruitment and conditions of service. The second part of
Article 235 protecting a right of appeal which an officer may have under any
law made by the legislature or Governor relates to regulating the conditions of
service and not in relation to recruitment of the said officer. An ingenious
argument had been advanced by Dr. Dhawan to the effect that Article 234
expressly uses the expression that the appointment has to be made in accordance
with the Rules to be made by the Governor in consultation with the State Public
Service Commission and with the High Court, thereby is referable to proviso to
Article 309 and, therefore, the plenary power of the legislature under main
Article 309 is not whittled down in any manner. But this argument over- looks
the fact that the law made by the legislature under the main part of Article
309 and the law made by the Governor under the proviso stands on the same
footing. At this stage, it would be appropriate to notice the argument advanced
by Mr. Dwivedi, the learned counsel appearing for the State of Bihar in one of
these appeals to the effect that the appropriate act of the State Legislature
providing for reservation in the services of the State is a stage prior to the
recruitment or appointment and, therefore the power of recruitment in Article
234 is not in any way infringed. This contention would not stand a moment
scrutiny in view of the language of Section 4 of the Act itself.
4.Reservation
for direct recruitment - All appointments to services and posts in an
establishment which are to be filled by direct recruitment shall be regulated
in the following manner, namely:- (1) The available vacancies shall be filled
up- (a) from open merit category .. 50% (b) from reserved category .. 50% (2)
The vacancies from different categories of reserved candidates from amongst the
50% reserved category shall, subject to other provisions of this Act, be as
follows:- (a) Scheduled Castes .. 14% (b) Scheduled Tribes ..
10%
(c) Extremely Backward Class .. 12% (d) Backward Class .. 8% (e) Economically
Backward Woman .. 3% (f) Economically Backward .. 3% ---------------- Total ..
50%.
Provided
that the State Government may, by notification in the official Gazette, fix
different percentage for different districts in accordance with the percentage
of population of Scheduled Castes/Scheduled Tribes and other backward classes
in such districts:
Provided
further that in case of promotion, reservation shall be made only for Scheduled
Castes/Scheduled Tribes in the same proportion as provided in this section.
(3). A
reserved category candidate who is selected on the basis of his merit shall be
counted against 50% vacancies of open merit category and not against the
reserved category vacancies.
(4)
Notwithstanding anything contained to the contrary in this Act or in any other
law or rules for the time being in force, or in any judgment or decree of the
Court, the provision of sub-section (3) shall apply to all such cases in which
all formalities of selection have been completed before the 1st November, 1990,
but the appointment letters have not been issued.
(5)
The vacancies reserved for the Scheduled Castes/Scheduled Tribes and other
Backward Classes shall not be filled up by candidates not belonging to
Scheduled Castes/Scheduled Tribes and other Backward Classes except as
otherwise provided in this Act. (6) (a) In case of non-availability of suitable
candidates from the Scheduled Castes and Scheduled Tribes for appointment and
promotion in vacancies reserved for them, the vacancies shall continue to be
reserved for three recruitment years and if suitable candidates are not
available even in the third year, the vacancies shall be exchanged between the
Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange
shall be treated as reserved for the candidates for that particular community
who are actually appointed.
(b) In
case of non-availability of suitable candidates from the Extremely Backward
Classes and Backward Classes the vacancies so reserved shall continue to be
reserved for them for three recruitment years and if suitable candidates are
not available even in the third year also, the vacancies shall be filled by
exchange between the candidates from the extremely Backward and Backward
Classes and the vacancies so filled by Exchange shall be treated as reserved
for the candidates of that particular community who are actually appointed.
(c) In
case of non-availability of suitable candidates for the vacancies reserved for
the economically backward women the vacancies shall be filled first by the
candidates from the Scheduled Castes, then by the candidates from the Scheduled
Tribes, then by the candidates from extremely backward class and then by the
candidates from backward class. The vacancies so filled in the transaction
shall be treated as reserved for the candidates of that particular community
who are actually appointed.
(d) If
in any recruitment year, the number of candidates of Scheduled Castes/Scheduled
Tribes, extremely Backward and Backward Classes are less than the number of
vacancies reserved for them even after exchange formula the remaining backlog
vacancies may be filled by general candidates after deserving them but the
vacancies so deserved shall be carried forward for three recruitment years. (e)
If the required number of candidates of Scheduled Castes, Scheduled Tribes and
Extremely Backward and Backward Classes are not available for filling up the
reserved vacancies, fresh advertisement may be made only for the candidates
belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely
Backward and Backward Classes, as the case may be, to fill the backlog
vacancies only.
The
plain and grammatical meaning of the words used in Section 4 quoted above
unequivocally indicates, that it is a law relating to recruitment/appointment
and as such once, it is held that the power of recruitment in respect of
Judicial Services is provided for in Article 234, the State Legislature in the
garb of making law in consonance with Article 16(4) cannot encroach upon
Article 234. In course of hearing an elaborate argument had been advanced that
reservation is intended to fulfil the Right of Equality under Article 16(1)
read with 16(4) and the question whether there has been adequate representation
of a particular backward class of citizens has been left to the satisfaction of
the State Government in Article 16(4) and, therefore, the State Legislature
cannot be denuded of its right to make such law to fulfil the aforesaid
Constitutional mandate. We really fail to understand as to why the legislature
would feel that the Governor, when frames rules in consultation with the High
Court and the Public Service Commission under Article 234 will not take into
consideration the constitutional mandate under Article 16(1) or Article 16(4).
In
fact in the case in hand in the Bihar Judicial Service Recruitment Rules, 1955,
reservations have been provided for Scheduled Caste and Scheduled Tribe
candidates and the Full Court of Patna High Court have also adopted the
percentage of reservation for these candidates as per the notification of the
State Government. So far as the Superior Judicial Service is concerned, it is
of course true that there has been no provision for reservation. But such
provision could always be made by the Governor in consultation with the High
Court, also bearing in mind the mandate of Article 335, namely Maintenance of
Efficiency of Administration. It is indeed painful to notice, some times law
makers unnecessarily feel that the High Court or the Judges constituting the
High Court are totally oblivious to the Constitutional mandate underlying
Article 16 and more particularly, Article 16(4). It is also not appropriate to
think that the High Court will not take into consideration the provisions of
Article 16(1) and 16(4) while considering the case of recruitment to the
judicial services of the State. The Judiciary is one of the three limbs of the
Constitution and those who are entrusted with the affairs of administration of
justice must be presumed to have greater expertise in understanding the
Constitutional requirements.
In
this view of the matter the contention of Mr. Dwivedi, appearing for the State
of Bihar is unfounded.
In the
aforesaid premises, in my considered opinion, the provisions of Bihar
Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled
Tribes and other Backward Classes) Act, 1991 has no application to the
recruitment of judicial officers in the State of Bihar.
BANERJEE.
J.
I have
had the privilege of going through the judgments of Brother Majmudar and
Brother Sethi expressing however, two different and divergent views in regard
to the issues raised in the Appeals before us. I have also the privilege of
going through the judgment of Brother Pattanaik, recording his concurrence with
Brother Majmudar and differing from the views expressed by Brother Sethi. I
also record my concurrence with the views expressed by Brother Majmudar but I
wish to add a few lines without dilating on to the points delved into both by
Brother Majmudar and Brother Pattanaik in expression of my opinion in the
matter in issue.
The
Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes,
Scheduled Tribed and Other Backward Classes) Act, 1991 as amended by Bihar Act
11 of 1993, in particular Section 4 thereof is the issue in controversy. The
exact language of Section 4 has already been noticed by both Brother Majmudar
and Brother Pattanaik in their judgments and as such to avoid the length of the
judgment again. I retrain myself from quoting the same excepting, recording
however, that Section 4 of the Act of 1991 covers the filed of reservation for
direct recruitment to the extent of 50% from the open merit category and 50%
from the reserved category and the effort on the part of the State legislature
to include the judiciary within the ambit of Section 4 stands negated by the
High Court and hence the Appeal before this Court. The core question that needs
to be answered is whether Judicial Service comes within the ambit of Acticle
309 so as to clothe the State legislature with the power of legislation and it is
in this context that heading of Acticle 309 lends some assistance in the matter
which reads; "Recruitment and conditions of Service of persons serving the
Union or a State" Article 309 thus, is restrictive to recruitment and
conditions of service of persons. In any event the founding fathers of out
Constitution with due care and caution introduced this Article subject however,
to the other provisions in the Constitution. The opening words of the Article
is to be noticed since any rule in terms of the rule making power as conferred
by the proviso to the Article if contravenes any of the provision of the
Constitutioin, the rule cannot but be ascribed to be viod the reason being
express words used by the makers of Constitution subject to the provisions and
by reason of existence of a specific provision in regard thereto. It is an
authorisation for the legislature to legislate relating to recruitment and
conditions of service provided there is existing no specific provision in
regard thereto. Needless to record here that Article 309 falls under Part XIV
of the Constitution under the lead "Services under the Union and
States" and relying theron Dr. Dhawan appearing in support of the Appeal
contended that since judiciary is an organ of the State question of taking it
out of the ambit of Article 309 would not arise. The constitutional scheme
however, runs in direct conflict with the submission of Dr. Dhawan. Articles
233 to 237 falls under Chapter VI of Constitutioin with a heading -
'Subordinate Court' . The headings of Articles 233, 233A, 234, 235 in this
context are of some effect and consequence and as such, the same are noted
hereinbelow:
"233.
Appointment of District Judges".
"233A.
Validation of appointment of and judgments etc., delivered by, certain District
Judges.
"234.
Recruitment of persons other than District Judges to the Judicial
Service".
"235.
Control over subordinate courts".
Be it
noted that whereas Chapter V of the Constitution deals with the High Court in
the State, Chapter VI as noticed above deals with Subordinate Courts; the
scheme of the Constitution thus, is categorical enough to depict the judiciary
as a specific class by itself being an independent third wing of democratic
polity. The appointment of district judges though conferred in terms of
Articles 233 of the Constitution on to the Governor of the State but the
"Consultation with the High Court exercising jurisdiction in relation to
such a State" has been inserted in order to obviate any controversy as to
the efficiency of the officers who are to be promoted to the rank of district
judge in the Higher Judicial Service from the post of subordinate Judge.
The
incorporation of sub-Article 2 as regards a direct recruit district judge on
the basis of the recommendations of the High Court for appointment has as a
matter of fact cemented the controversy, in the event however, there being any,
as regards the method of consultation in matter of appointment of district
judges. The further incorporation of Articles 234 and 235 and on a plain reading
thereof would leave no manner of doubt as to the separate categorization of
judicial officers exclusive to themselves and their appointment independently
of Articles 309.
The
inclusion of Chapter Vi in the Constitution as a matter of fact records a
distinct intention of the framers of the Constitution as regards the supremacy
and separateness of the judiciary from the legislature and the executive. If
Article 309 is subject to be a general provision, Articles 233 to 235 ought to
be treated as specific provisions for appointment of judicial officers and by
reason therefor, the specific field of legislation thus stands completed and
obviously the framers of the Constitution having provided Articles 233 to 235,
introduced in Article 309, the words "subject to the provisions of this
Constitution". As a matter of fact the submission in support of the Appeal
does not stand to further scrutiny by reason of the fact that in the event of
there being any contra intention of the framers, the same would have found an
expression in Article 234 itself. The appointment of district judges, in my
view, without any hesitation rests with two constitutional functionaries
namely, the Governor and the High Court and thus withdrawing the same from the
purview of the general power as conferred under Article 309.
On the
wake of the aforesaid, judicial service thus, cannot be termed to be covered
under Article 309 as regards the appointment thereto though however, other
conditions of service specifically left open and thus the authorisation to
legislate under Article 309 is available in regard to conditions of service and
other incidentals thereto subsequent to the appointment. It may also be noted
that General Legislative powers of thee Parliament as well as the State
Legislature under Article 245 is expressly made subject to other provisions of
the Constitution which would obviously include Articles 233 to 235.
The
other aspect of the matter is in regard to Article 16 (4) which Mr. Dwivedi
appearing in support of the Appeal in Appeal No.9072/96 contended that
reservation is outside the purview of Chapter VI and since Article 16 (4) can
be termed to be a basic feature of the Constitution appointments in the posts
of district judges ought also to be governed thereunder and not de hors the
same. This aspect of the matter however, has been dealt with elaborately by
both my learned Brother Majmudar and Brother Pattanaik and as such I do not
wish to record any further reasons therefore but adopt the same and hereby
record my concurrence therewith. In that view of the matter I would dismiss
both Appeals without however, any orderr as to costs.
ORDER
Leave granted.
The
Civil Appeals stand dismissed as per the majority view subject to the
modification and directions contained in thee main judgment.
There
will be no order as to costs.
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