ORDER
1. The State of Jharkhand came into existence on 15th November, 2000 and after the creation of State of Jharkhand, cadre of Judicial Officers of the
State of Bihar was provisionally bifurcated which led to acute shortage of Judicial Officers in the State of Jharkhand. Since there was dire urgent need of filling up the vacancies of the Jharkhand Judicial Service, the Governor of Jharkhand in consultation with the High Court of Jharkhand framed provisional/temporary rule namely, Jharkhand Judicial Service (Recruitment) Rules, 2001 so as to select/recruit and appoint members of Jharkhand Judicial Services. Under the said rule the process of recruitment of Judicial Officers was undertaken by the High Court. Accordingly selection process was set in motion and list of the selected candidates was sent to the Government for issuing appointment letters. The Government of Jharkhand instead of issuing notification/appointment letters raised certain objections with regard to the reservation and sat tight over the matter. This led to filing of the instant public interest litigation seeking a direction upon the Government of Jharkhand to forthwith fill up to the post of Munsifs and Judicial Magistrates.
2. This Court in terms of order dated 19.4.2000 directed the State of Jharkhand to immediately appoint the selected candidates so recommended by the High Court which shall be subject to the result of the writ petition. The Government being dissatisfied with the order, moved the Supreme Court in special leave petition being SLP No. 1003 of 2002. It is only after the SLP was dismissed by the Supreme Court with a direction to make appointment expeditiously some of the posts of Munsifs were filled up.
3. The Jharkhand Public Service Commission was constituted by the Government about one and half years after the creation of the State. Since the provisional/ temporary rule so framed by the Governor of Jharkhand in consultation with the High Court of Jharkhand ceased to have effect after the constitution of the Jharkhand Public Service Commission, the draft rule was placed before the Government for its final approval. It is worth to mention here that in the said draft rule as per the temporary rule provision was made that recruitment process shall be undertaken by the High Court. When the draft rule was not
being finalized by the Government, the petitioner moved the instant interlocutory application on 7.10.2002 for a direction to the Government to immediately approve the said draft Rule.
4. The Court took up the interlocutory application on 10.10.2002 and taking notice of the fact that large number of vacancies in the Jharkhand Judicial Service are lying vacant which has direct impact on the functioning of the judicial system, directed the Government to take immediate steps in the matter of finalization of Recruitment Rules.
5. It appears that in compliance of the aforesaid direction the Secretary, Personnel and Administrative Reforms, after consultation with the Commission in terms of the provisions of Article 234 of the Constitution, made certain queries. The queries made by the respondents were regarding fixation of qualifying marks in viva-voce test and on the reservation policy including carry forward vacancies of the reserved categories. It is worth to mention here that no objection was raised to the provision made in the draft rules whereby the power of recruitment was given to the High Court. In the affidavit filed by the Government it was stated that no sooner the reply of the High Court on those queries is received, the Rule shall be finalized by the Government. The High Court, thereafter, in their affidavit, stated that the High Court communicated its view to the Government that the High Court has no objection with regard to introducing a provision for special recruitment of scheduled caste and scheduled tribes and inclusion of other backward classes in the definition clause. Taking into consideration the affidavit filed by the Government and the High Court and also the submissions made by the learned Advocate General that the Rule shall be finalized within the shortest possible time, this Court by order dated 14.11.2002 directed the Chief Secretary to the Government of Jharkhand to look into the matter personally and see that the Government should notify the Rules within a period of four weeks.
6. Curiously enough instead of notifying the Rules the Chief Secretary filed an affidavit on 16.12.2002 stating, inter alia,
that the draft rule was placed before the Chief Minister, Jharkhand for his approval and the Chief Minister ordered for placing the matter before the Council of Ministers. The Council of Ministers took up the mater on 11.12.2002 but deferred the same for further consideration. Finally, as stated above, the Council of Ministers approved the Rule but with the modification and condition that the entire selection process shall be undertaken by the Commission.
7. At this stage we would like to refer some of the nothings available in the record which has been called for and produced by the Chief Secretary. The Secretary, Personnel Department, in his noting dated 28.10.2002 has mentioned the suggestions received from the Governor’s Secretariat. It is mentioned there that in the event the recruitment process is done by the High Court it should be by a Committee consisting of three Judges and it will be finally sent to the Governor for final approval. Some queries were also made regarding the syllabus and the process of viva-voce test. It is also referred in the note sheet that in Karnataka appointment of the Judicial Officers is made by a Committee consisting of five Judges. It is also worth to mention here that the High Court in their affidavit very clearly referred the resolution taken in the conference of the Hon’ble Chief Justice of the High Courts presided over by Hon’ble Chief Justice of India. In the said conference it was decided that the recruitment process and conduct of examinations of the Munsifs should be undertaken only by the High Court and the prevalent practice of the same being done by the Commission be stopped. This resolution was also placed before the Council of Ministers but the Council of Ministers, ignoring the said resolution and disagreeing with the view of the High Court, decided to modify the draft Rule by giving power of recruitment to the Commission.
8. We have heard the learned counsel appearing for the parties including the learned Advocate General.
9. Chapter VI of the Constitution lays down the provisions relating to appointment of Judicial Officers of subordinate Courts. Article 233 of the Constitution
provides that appointment, posting and promotion of the District Judges in any State shall be made by the Government of the State in consultation of the High Court exercising jurisdiction in relation to such State. Article 234 of the Constitution provides for appointment of judicial officers of the State (excluding the District Judges) to be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and the High Court of the State.
10. As regards the procedure adopted for recruiting the Judicial Officers at the lowest rung in some States, like Andhra Pradesh, Karnataka and Kerala the recruitment is done by the High Court whereas in other States, it is done by the Public Service Commission of the concerned State. Learned Advocate General, in course of his argument, put reliance in the decision of All India Judge’s Association v. Union of India, 1993 (4) SCC 288. Learned Counsel submitted that there should not be any difficulty if the recruitment is done by the Commission because there is a provision that a sitting Judge of the High Court will sit in the committee to interview the candidates and such a procedure has been approved by the Supreme Court.
11. When selection for Judicial Service of the State is made it is necessary to exercise utmost care to see that competent and eligible person possessing high degree of rectitude and integrity are selected; because if we do not have good, competent and honest Judges, the democratic policy of the State itself will be in serious peril. In that context the apex Court in the case of Ashok Kumar Yadav v. State of Haryana, 1985 (4) SCC 417 observed that when selection to the Judicial Service is made a sitting Judge of the High Court should be invited to participate in the interview as an expert because he knows the quality and character of the candidates appearing for the interview.
12. In All India Judges Association's case (supra) the Supreme Court observed as under :-- 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 ministry 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 councils 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 USA, members of some States 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 a par with the members of the judiciary, either constitutionally or functionally.
13. Their Lordships further observed that 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 rules of law, it would have been ideal if the most dominant power of the executive and the legislature over the judiciary is subject to desirable checks and balance. Mere fact that Article 309 of the Constitution gives power to the executive and the legislatures
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.
14. Learned Advocate General also relied upon the decision in the case of Supreme Court Advocates on record Association v. Union of India, AIR 1994 SC 268. In that case also the Apex Court held that the recommendations of the High Court under Article 232(2) and consultation with the High Court under Article 234 are sine qua non for direct recruitment of the District Judges at the Apex Level and other Judicial Officers at the base level respectively. In that State Judicial Service High Court’s order under Article 233 and 234 is pivotal and meaningful and not merely formal;
15. In the case of State of Bihar v. Bal Mukund Sah, 2000 (4) SCC 640, the Apex Court while considering a similar question held that while Article 309 deals with the recruitment and conditions of service of persons serving the Union or the State, a particular category of posts forming the judicial wing has been carved out in Chapter VI in Article 223 to 235 so far as the question of recruitment is concerned. The State Legislature undoubtedly can make law for regulating the condition of services of the officers belonging to the judicial wing but can not 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 223 to 236 of the Constitution. Their lordships further observed as under :
“It would be appropriate to notice at this stage that while in Articles 145(1), 148(5), 187(3), 229(2), 283 (1) and (2), the Constitution itself makes the provision subject to the provisions of law make by Parliament but Articles 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 the 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. Jadav’s case, on which Dr. Dhavan appearing for the State of Bihar, heavily relied, Chief Justice Chandrachud had noticed to the effect : (SCC P. 545, para 42).
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).”
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 service 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 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.”
16. In the case of A.C. Thalwal v. High Court of H.P., (2000) 7 SCC 1, the Apex Court again interpreted the provision of Article 234 of the Constitution and observed as under :
“Article 234 of the Constitution of India provides for appointments to the judicial service of the state (excluding District Judges) to be made by the
Governor of the State in accordance
with the rules made by him in that be
half after consultation with the State
Public Service Commission and the
High Court of the State. The consult
ation is mandatory. The consultation
contemplated by Article 234 is not a
matter of mere formality; it has to be
meaningful and effective. Judicial Ser
vice has to be independent of executive
influence and so the Constitution has
placed them in a pedestal different from
other services under the State. The Conditional Scheme aims at securing an in
dependent judiciary which is bulwark of
democracy. The status which the High
Court as an institution enjoys in the
Constitutional scheme and the expertise
and the experience which it possess of
judicial services command with justification a place of primacy being as
signed to the High Court in the process
of consultation. As observed by the Constitution Bench in Supreme Court
Advocate’s on-record Assn. v. Union
of India, the High Court assumes
primacy because of its being best
equipped to discharge the greater bur
den in the process of consultation contemplated by Article 234 of Constitution; it is not a question of determining who between the two constitutional
functionaries is entitled to greater importance or to take the winner’s prize at
the end of the debate. Reference may
also be had to the Law laid down by this
Court in Chandramouleshwar Prasad
v. Patna High Court and Hari Datt
Kainthla v. State of H.P. Rules regarding consultation with the High Court
must at the proposal stage be made
available to the High Court so that after
study, scrutiny and reflection the High
Court may be able to offer its advice to
the Governor.”
17. As noticed above, in the Chief Justices’ conference presided over by the Chief Justice of India, a resolution has been taken that recruitment process shall be undertaken by the High Court and the requirement of recruitment through State Public Service Commission be dispensed with. The resolution reads as under :
Extract of Resolution No. 11 of the Chief
Justices’ Conference – 2002
“CHIEF JUSTICES’ CONFERENCE – 2002
(SEPTEMBER 13, 14 & 15, 2002)
RESOLUTIONS
XXX XXX XXX
11. Step to be taken for filling up of vacancies in the High Courts and the Subordinate Courts.
RESOLVED
That, as regards subordinate Courts, the requirement of recruitment through the State Public Service Commission be dispensed with. Such examinations shall be held, at least, once in a year on a fixed date by the High Court.
RESOLVED XXX XXX XXX
18. In the light of the law laid down and observation made by the Supreme Court, we are of the considered opinion that in the matter of recruitment in judicial services. High Court assumes primacy and, therefore, while finalizing the rule, the suggestions and the view given by the High Court ought to have been regarded and accepted by the Government. The Government also ought to have given due weightage to the resolution taken in the Chief Justices’ Conference presided over by the Chief Justice of India. The matter therefore, in our opinion, needs reconsideration by the Government of Jharkhand.
19. We, therefore, dispose of the interlocutory application with a direction to the Government to reconsider the matter and take fresh decision with regard to the provisions made in the draft rule whereby recruitment process is to be done by the High Court. The Government shall take decision and finalize the Rule within two weeks from today.