ORDER
Gopala Gowda, J.
1. The Petitioners in these Writ Petitions are members of Karnataka Judicial Service. They belong to the cadre of Civil Judges (Sr. Dn. ) at the time of filing these petitions. In W.P. No. 28245/93 they have prayed to quash the notifications at Annexure- B, H and U. In Annexure – B dated 22.12.1992 the 52 posts of District Judges is sanctioned out of which it consists 10 Supertime Scale posts, 40 District Judges, 2 Leave Reserve and 33 Deputation Reserves. In Annexure-H dated 12.11.1990 recommendation is made for recruitment of 12 posts of District Judges from the Bar. In Annexure-U dated 25.1.1993 respondents 4 to 15 have been appointed as District Judges under direct recruitment quota pursuant to Annexure-H. Their appointments are challenged by the petitioners in these petitions on the ground that the same is excessive to direct recruitment quota urging various legal grounds.
2. In W.P. No. 21736/97 the petitioners have sought for quashing the notifications Annexures-B, L and M. Annexure – B is the same notification dated 22.12.1992 sanctioning the posts of District Judges cadre. In Annexure-L dated 5.9.1995 recommendation is made by the High Court for fillingup 11 posts of District Judges from the Bar under the Direct Recruitment Quota. Similarly, in Annexure-M dated 19.12.1996 recommendation is made for filling-up 10 posts of District Judges from the Bar by direct recruitment. According to the petitioners, the posts sought to be filled-up in the above said cadre are in excess of the limit permitted under the Karnataka Judicial Services Recruitment Rules of 1983 (in short hereinafter called as Recruitment Rules).
3. The statement of objections is filed by the respondents in both the Writ Petitions justifying the impugned notifications and appointment of respondents 4-15 as District Judges and prayed for dismissal of the Writ Petitions urging various relevant facts placing reliance upon the Full Court Resolutions and Recruitment Rules.
4. Heard the learned Counsel for the parties at length and perused the documents, the relevant original files pertaining to these cases. The learned Counsel on both sides relied upon several decisions in support of their legal contentions urged both for granting the reliefs and justifying the legality of the impugned notifications, selection, appointment of respondents as District Judges. The same will be referred to in this order only to the extent required for consideration and answer the contentious points that have arisen in these cases.
5. On the basis of rival contentions urged, the first point that arise for consideration for this Court is, whether the Karnataka State Civil Services Act, 1978 (hereinafter referred to as ‘KSCS Act’) is applicable to judicial service? My answer to this point is in the negative for the reasons mentioned hereunder.
6. In the case of STATE OF BIHAR v. BALMUKUND SAH the Constitutional Bench of the Apex Court, upon which the learned Counsel on behalf of the respondents have rightly placed reliance on this point, in which case it has elaborately considered the phrases “Judicial Service”: has been considered and interpreted the same at paragraph 56, reference is also made to the observations of the Three Judge Bench of the Apex Court in the case of ALL INDIA JUDGES’ ASSOCIATION v. UNION OF INDIA the special features of Judicial Services have been clearly earmarked in the light of Articles 233, 234, 236 and 309. The said bench while disposing of the Review Petition by the Union of India and Officers of the States has made the following opposite observations in paras 4 and 5 (AIR Head Note).
“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 the Ministers and the Members of Legislature. When it is said that in a democracy such as ours, the Executive, the Legislature and the Judiciary constitute the three pillars of 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 Legislature Staff. So also the Judges form 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.
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 Article 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 Article 312, it is 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 Article 236. However, this does not mean that while determining the service conditions of the Members of the Judiciary, a distinction would not be made between them and the Members of the other Services or that the service conditions of 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 a 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.”
After quoting the above observations, the Constitutional Bench has endorsed the same and laid down the law at paragraph 56 as under-
“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 the 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 the Judiciary from the Executive and/or Legislature save and except to the limited extent permitted by the second part of Article 235 of the Constitution. Otherwise the basic feature of independence of the Judiciary will get eroded….”
Again, at paragraph 66 after referred to Articles 145(1), 148(5), 187(3), 229(2), 253(1), and (2), it is held that the Constitution itself makes the provision subject to the law made by Parliament but Article 234 is not subject to any legislation to be made by the appropriate legislature. The Judicial Service is covered in Article 234 of the Constitution. After referring to the case of B.S. YADAV v. STATE OF HARYANA 1980 SCC (SUPP) 524 it has been held as under:-
“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 Legislatures 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 service jurisprudence and the framers of the Constitution have also borne 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 matters 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….”
In paragraph 67 the Apex Court has unequivocally held as under:-
“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 the 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 Article 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 framing 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 the Patna High Court has 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 sometimes lawmakers 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 of 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.”
At paragraph 107 it has been clearly laid down as under:-
“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 the 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 the 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 authorize 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 Legislation cannot part with its essential legislation function. A surrender of such essential function would amount to abdication of legislative powers in the eye 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 Legislature, in exercise of its constitutional right with respect to a matter or subject over which it has otherwise plenary power of legislation.”
In view of the clear pronouncement of law by the Constitutional Bench of the Apex Court, it has to be held that the KSCS Act has no application to the Judicial Service. On the other hand, the Karnataka Judicial Service (Recruitment) Rules, 1983 (hereinafter referred to as “KJSR Rules”) are applicable.
7. “Judicial Service” is distinct from “Civil Service”. KJSR Rules being comprehensive and KSCS Act being general in nature, the comprehensive Rules will have to be applied to the Judicial Service. At the same time, two statutes cannot be made applicable to single service, viz., Judicial Service. Hence, the first point is answered in the negative.
8. The next point for consideration is, whether the KJSR Rules provides for any quota for Direct Recruitment in the cadre of District Judges from the Bar? The method of recruitment to the post of District Judges in Schedule to Rule 2 of KJSR Rules is as under: –
1. xx xx xx 2. DISTRICT JUDGES By promotion on the basis of seniority - cum-merit from the cadre of Civil Judges; Provided that such number of posts as may be determined by the High Court from time to time, but not exceeding in the aggregate 33 1/3% of the posts in the cadre of District Judges may be filled by Direct recruitment).
The Rule provides for filling-up the post of District Judges by promotion by selection, not exceeding 33 1/3rd of the posts in the aggregate could be filled-up by Direct Recruitment. For that purpose, the High Court has to determine from time to time the number of posts in the cadre of District Judges. In other words, out of the total number of posts to be determined by this Court as per the Schedule to the Rule referred to supra, direct recruitment could be adopted upto a maximum of 33 1/3rd posts or 1/3rd of the total number of posts. Thus, there is no fixed quota for direct recruitees while maximum limit is prescribed.
9. The Full Court by its Resolution dated 11.3.1987 has resolved to fill-up 33-1/3rd posts in the cadre of District Judges by direct recruitment henceforth. By virtue of this resolution, fixed quota of 33-1/3rd posts of District Judges are reserved for being filled-up by direct recruitment. This 33-1/3rd posts for direct recruitment shall be out of the total number of posts determined by the Full Court of this Court from time to time. Such determination is a pre-condition to apply quota rule for direct recruitment to the posts in the cadre. In the absence of such determination of posts by the Full Court of this Court, reservation of 33-1/3rd posts for direct recruitment cannot be given effect to.
10. The other point that is required to be considered by this Court is, whether there was determination of District Judge cadre posts by the High Court. “Cadre” is defined in Rule 8(7) of the Karnataka Civil Services Rules to mean strength of a service or part of a service, sanctioned as a separate unit. In other words, it is a sanctioned strength. “Permanent Post” is defined under Rule 8(34) to mean a post carrying a definite rate of pay sanctioned without limit of time. Under Rule 8(40) “Quasi-Permanent Service” means a temporary post sanctioned initially for a period of not less than three years. “Temporary Post” is defined under Rule 8(46) of the above Rules to mean a post carrying a definite rate of pay sanctioned for a limited time. The learned Counsel Mr. Ravivarma Kumar who has appeared on behalf of some of the respondents who have been appointed as District Judges has rightly placed reliance upon the above said Rules to justify the determination of cadre strength of District Judges and number of posts to be filled up as determined by the Full Court of this Court by its resolutions to justify the correctness of the Selection Process and appointment of respondents District Judges.
11. The original files maintained by the High Court pertaining to the recruitments in question upon determination of number of posts are perused. The Constitutional Bench of the Apex Court in the cases of B.S. GUPTA v. UNION OF INDIA has laid down law at para 18 as hereunder:
18. It is feebly contended on behalf of the direct recruits that the quota rule should relate to only vacancies in permanent posts and not temporary posts. This contention is not accepted either by the promotees or the department. There is nothing in the Rules of 1954 or the quota rule of 1951 which says that the vacancies must be vacancies in permanent posts. Indeed the vacancies must be permanent vacancies that is to say vacancies which are not for a few days or for a few months or are otherwise adventitious. The whole cadre has consisted of permanent and temporary posts for years. Permanent vacancies are, therefore likely to take place both in the permanent posts and in the temporary posts. In fact Mr. Dutt, in his affidavit filed in Jaisinghani’s case, had clearly alleged in paras 25 and 26 of the affidavit that all the direct recruits from 1948 onwards were initially appointed against temporary posts and even at the time of the filing of the affidavit i.e. on 31st January, 1967 direct recruits were being appointed against temporary posts. We, therefore, find no sufficient warrant for the contention that the vacancies referred to in the quota rule are vacancies only in the permanent posts.”
The above said position of law is further reiterated in the judgments of the Apex Court reported in AIR 1981 SC 411 paras 21, 22, 24, 26 and 32, O.P. SINGHAL v. UNION OF INDIA AIR 1981 SC 411 paras 18 and 19 , GONAL BHIMAPPA v. STATE OF KARNATKA AND ORS. , P.S. MAHAL v. UNION OF INDIA AIR 1987 SC 2329 paras 11 and 17.
12. In respect of the 12 posts of District Judges sought to be filled-up by direct recruitment in 1990, steps had been taken in the year 1989 itself to fix the cadre strength of District Judges at 50 permanent + 2 leave Reserve, 6 temporary and 34 deputation reserve posts. Based on that, the recommendation made to the Government for appointment of 12 posts of District Judges had been rejected by the Government on the ground that there was no enough cadre strength to accommodate the 12 direct recruitees. This is clear from the letter dated 10.11.1992 of the Under Secretary to Government, DPAR, addressed to the Registrar of the High Court. But, in the letter dated 24.9.1991 the Registrar has clearly pointed-out that as on 1.10.1990 there were 84 posts of District Judges and 17 posts were held by the direct recruitees. Hence, the Government was requested to review its earlier decision. The Government having satisfied with the clarification made by the High Court, issued the impugned notification at Annexure-U dated 25.1.1993 appointing 12 District Judges recommended by the High Court, Hence, the prayers made in W.P. No. 2824/93 to quash Annexures – H and U are wholly untenable in law for the reason that the Full Court of this Court has determined the number of vacant posts of District Judges. Out of such determined posts 33-1/3 posts had been filled up by direct recruitment as provided under the Schedule to the Rule.
13. From the above it is clear that out of 84 posts of District Judges as on 1.10.1990, 33-1/3rd or 1/3rd posts would be 28 posts. What was sought to be filled-up and in fact filled-up by direct recruitment was only 12 posts. At the most only one post migght have exceeded the direct requirement quota and nothing more, as 27 posts had been held by the direct recruitees (17+12=29). Except this mistake, there is no other illegality in so far as recruitment of District Judges made in the year 1993.
14. It is quite un-understandable as to why the petitioners have sought to quash the Notification at Annexure-B dated 22.12.1992 relating to the cadre strength of District Judges when the Notification at Annexure-H by which recommendation was made for filling-up 12 posts in the year 1990 and the posts had been filled-up under Annexure-U dated 25.1.1993. The 1992 notification at Annexure-B has nothing to do with the said recruitment.
15. For the aforesaid reasons, W.P.No. 2824/93 must fail and the same is liable to be dismissed.
16. In so far as W.P. No. 21736/97 is concerned the prayer of the petitioners to quash the notification at Annexure-B dated 22.12.1992 fixing the cadre strength of District Judges, has to be straight away rejected by this Court as it has nothing to do with the filling-up of 11+10 posts under Annexures-L and M dated 5.9.1995 and 19.12.1996 respectively. In the statement of objections filed to this Writ Petition on behalf of respondents 1 to 3, no attempt is made to justify the impugned action by correct facts and figures. All that has been traversed pertains to the issues raised in W.P. No. 2824/93 and nothing more. So, the statement of objections filed did not help in any way to consider the case on merits. But, the Court has looked perused the original files of the High Court.
17. A perusal of the original file indicates that there were 113+2 leave reserve posts, in all 115 posts. Out of them, 20 posts were held by the direct recruitees. If the same is excluded then the available posts are 95 (115-20=95). 1/3rd or 33-1/3rd of the said strength would be 32 for direct recruitees. Hence the notification at Annexure-L dated 5.9.1995 was issued to fill-up those posts. In respect of Annexure-M pertaining 10 posts, the sanctioned strength was 119 less 20 Super Time Scale Posts = 99 posts. 1/3rd of the same comes to 33. The direct recruitees held 23 posts. For the balance 10 posts the notification was issued on the basis of the Resolution passed by the Full Court of this Court. Hence, the petitioners cannot have any grievance in this regard.
18. The selections had been completed long ago and District Judges were appointed and they have been functioning as such by discharging their duties. Therefore even if petitioners have got merit in their case, interference at this juncture cannot be done. The selected District Judges are settled in their career and lives. On this ground also these petitions are liable to be rejected.
18. The submission made by the learned Counsel Mr. K. Gopal Hegde on behalf of the petitioner with reference to the earlier W.P.No. 9793/88 and 25080-89/1990 challenging the notification dated 12.11.1990, W.A.No. 1537/89 DD 7.6.1989 on the basis of Memo are all wholly untenable in law for the reason that this Court has recorded its reasons on the basis of the Government Orders and resolutions of this Court regarding determination of cadre strength of District Judges and number of posts to be filled up in that cadre on the basis of relevant aspects of the cadre strength of District Judges and this Court is fully satisfied with the same on perusal of the original records produced in these petitions.
19. For the aforesaid reasons the Writ Petitions are dismissed.