{"id":47216,"date":"2000-03-14T00:00:00","date_gmt":"2000-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000"},"modified":"2018-07-28T21:52:56","modified_gmt":"2018-07-28T16:22:56","slug":"state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","title":{"rendered":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000<\/div>\n
Author: S.B.Majmudar<\/div>\n
Bench: S.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee, R.P.Sethi<\/div>\n
           PETITIONER:\nSTATE OF BIHAR & ANR.\n\n\tVs.\n\nRESPONDENT:\nBAL MUKUND SAH & ORS.\n\nDATE OF JUDGMENT:\t14\/03\/2000\n\nBENCH:\nS.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee,R.P.Sethi\n\n\n\n\nJUDGMENT:\n<\/pre>\n
S.B.Majmudar, J.\n<\/p>\n
      Leave  granted  in Special Leave Petition No.16476  of
\n1993.\n<\/p>\n
      Both  these  appeals, on grant of special leave  under
\nArticle\t 136 of the Constitution of India, are moved by\t the
\nState of Bihar, which is common appellant no.1 in both these
\nappeals.   In  Civil Appeal No.9072 of 1996  the  Secretary,
\nDepartment   of\t  Personnel   and  Administrative   Reforms,
\nGovernment  of\tBihar  is  appellant   no.2,  while  in\t the
\ncompanion appeal arising from the Special Leave Petition No.
\n16476 of 1993, the other contesting appellant is the Special
\nExecutive Officer-cum-Deputy Secretary, Bihar Public Service
\nCommission, Patna.  In both these appeals, a common question
\nof  law\t arises\t for   consideration,  namely,\twhether\t the
\nLegislature of the appellant State of Bihar was competent to
\nenact  the  Bihar  Reservation\tof Vacancies  in  Posts\t and
\nServices  (for Scheduled Castes, Scheduled Tribes and  Other
\nBackward Classes) Act, 1991 (hereinafter referred to as the
\nAct),  in  so  far as Section 4 thereof\t sought\t to  impose
\nreservation  for  direct  recruitment to the  posts  in\t the
\nJudiciary  of  the State, subordinate to the High  Court  of
\nPatna,\tbeing  the posts of District Judges as well  as\t the
\nposts  in  the\tlower  judiciary at  the  grass-root  level,
\ngoverned  by  the provisions of the Bihar  Judicial  Service
\n(Recruitment)  Rules,  1955.  Civil Appeal No.9072  of\t1996
\ndeals  with  the  question of reservation in  the  posts  in
\nDistrict Judiciary while the companion appeal deals with the
\nposts in Subordinate Judiciary at grass-root level under the
\nDistrict  Courts  concerned.   By the impugned\tjudgment  in
\nCivil  Appeal No.9072 of 1996, a Division Bench of the\tHigh
\nCourt  has  struck  down  the terms  of\t the  advertisement,
\nreserving  amongst  others, 27 out of 54 posts\tof  District
\nJudges\tto  be filled in by direct recruitment, being  ultra
\nvires  the  relevant  provisions  of   Article\t233  of\t the
\nConstitution  of  India.   It  has   also  struck  down\t the
\nprovisions  made in the impugned advertisement fixing up the
\nupper  age limit at 45 years for eligibility for appointment
\nby  way of direct recruitment to these posts.  That part  of
\nthe  controversy  no longer survives between the parties  in
\nthe  present proceedings and, therefore, we need not  dilate
\non  the same.  So far as the companion appeal is  concerned,
\nthe  main judgment was rendered by the Division Bench of the
\nHigh  Court  holding that the aforesaid Act as well  as\t the
\nearlier\t Ordinance which preceded the same in so far as they
\nsought\tto  apply  the scheme of reservation  of  posts\t for
\ngoverning  recruitment\tof persons other than  the  District
\nJudges to the Judicial Service of the State were ultra vires
\nArticle\t 234  of  the Constitution.   As  the  controversies
\ninvolved  in these appeals have to be resolved in the  light
\nof  the relevant Constitutional scheme, by an earlier  Order
\ndated 13th May, 1994 of this Court, they were directed to be
\nlisted before a Constitution Bench.  Subsequently in view of
\nthe  statement made by learned counsel that the matter could
\nbe  disposed of by a Bench of three Judges, the matters were
\ndirected to be placed before a three-Judge Bench by an order
\ndated  12th  May, 1995.\t Thereafter a three-Judge  Bench  of
\nthis  Court by its order dated 6th November, 1997 felt\tthat
\nthe  matters  raised questions regarding  interpretation  of
\nprovisions  of Articles 233, 234 and 309 of the Constitution
\nand hence it would be appropriate that they are heard by the
\nConstitution  Bench.   That is how these matters  have\tbeen
\nplaced\tbefore this Constitution Bench under the  directions
\nof Honble the Chief Justice of India.  Before we proceed to
\ndeal  with the rival contentions of learned counsel for\t the
\nrespective  parties  in support of their cases,\t it  becomes
\nnecessary  to note a few introductory facts.  Facts  leading
\nto  Civil Appeal No.9072 of 1996:  This Court, by its  order
\ndated  13th  October, 1993 in Civil Appeal Nos.\t 4561-62  of
\n1992  in  State of Bihar vs.  Madan Mohan Singh & Ors.,<\/a>\t had
\nquashed\t the  earlier  advertisement   for  filling  up\t the
\nvacancies  of  Additional  District Judges in  the  District
\nJudicial  Service of Bihar and directed the appellant  State
\nto  fill up the same through a fresh advertisement.  In\t the
\nmean  time, it appears that as the High Court had not agreed
\nto  the\t suggestion  of\t the   State  authorities  to\thave
\nreservation  in\t the posts of District Judges  for  reserved
\ncategory  of candidates and had insisted on proceeding\twith
\nthe  recruitment as per the 1951 Rules, styled as the  Bihar
\nSuperior  Judicial Service Rules, 1951, which were framed by
\nthe Governor of Bihar in exercise of the powers conferred by
\nthe  proviso  to  Article 309 read with Article 233  of\t the
\nConstitution  of  India and which Rules did not provide\t for
\nany  such  reservation,\t the Governor of  Bihar\t issued\t the
\nimpugned  Ordinance  which subsequently became the  impugned
\nAct  by\t which the scheme of 50% reservations  for  reserved
\ncategory  of  candidates  was directed to be  applied  while
\neffecting  direct  recruitment to the posts  concerned.\t  On
\n16th  November, 1993, the appellant State requested the High
\nCourt to effect recruitment to the vacancies in the cadre of
\nDistrict  Judges on the basis of the reservation provided by
\nthe  Ordinance\twhich subsequently was followed by the\tAct.
\nBy  its\t communication dated 16th December, 1993,  the\tHigh
\nCourt  of  Patna  insisted   that  recruitment\tto  District
\nJudiciary can be made on the basis of 1951 Rules only.\tBy a
\ncommunication dated 5th April, 1994, the High Court informed
\nthe  authorities  concerned that no reservation of posts  in
\nthe  district  cadre could be implemented and  while  making
\nappointments  from  the\t members  of   the  Bar\t for  direct
\nrecruitment,  preference may be given to the Scheduled Caste
\n(for  short  SC)  and  Scheduled Tribe\t(for  short  ST)
\ncandidates  who\t are  of equal merit with  general  category
\ncandidates.   On  7th April, 1994, the High Court  intimated
\nthat  there are 54 vacancies in the district cadre which had
\nto  be filled up.  The State Government, however, issued the
\nimpugned  advertisement\t of 16th June, 1994 by which 50%  of
\nthe available vacancies of District Judges were sought to be
\nfilled\tin  from  reserved category of\tcandidates  and\t the
\nremaining  50% posts thereof, i.e.  27, were to be filled in
\nby  the open category candidates.  It is this  advertisement
\nwhich was challenged by the writ petitioners before the High
\nCourt.\t The  High Court, by the impugned judgment as  noted
\nearlier,  has  allowed\tthe writ petition  and\tquashed\t the
\ncondition  of  reservation  sought  to\tbe  imposed  by\t the
\nimpugned advertisement.\n<\/p>\n
      Facts leading to Civil Appeal arising out of S.L.P.(C)
\nNo.16476  of 1993:  By a proposal dated 30th January,  1991,
\nthe  appellant-State  consulted\t the  Bihar  Public  Service
\nCommission  regarding  making provision for  reservation  of
\nposts  in  the\tSubordinate Judicial  Service  for  reserved
\ncategory   of\tcandidates.   The   said  proposal  of\t the
\nappellant-State\t was  also placed for consideration  of\t the
\nHigh  Court but it was not accepted by the High Court by its
\ncommunication  dated 16th April, 1991, and that resulted  in
\nthe impugned Ordinances, being 33 and 34 of 1991, which were
\nfollowed   by\tthe  impugned\tAct.   The   original\twrit
\npetitioners,  who  had already appeared at  the\t competitive
\nexamination  in April, 1991 moved the High Court challenging
\nthe Ordinances and the latter Act in so far as the scheme of
\n50%  reservation  of posts for direct recruitment  at  grass
\nroot  level of the State Judiciary was concerned.  As  noted
\nearlier,  the aforesaid writ petition was allowed and relief
\nwas  granted  against  the appellants.\t Rival\tcontentions:
\nDr.Dhavan,   learned  senior  counsel\tappearing  for\t the
\nappellant-State\t in  Civil  Appeal No.9072 of 1996,  at\t the
\noutset,\t contended that the impugned Act, especially Section
\n4  thereof,  is\t wrongly held by the High Court\t to  be\t not
\napplicable  to Judicial Services of the State.\tHe contended
\nthat Judicial Services especially, the Subordinate Judiciary
\ncomprising  of district cadre and the cadre of Judges  below
\nthe  same were part and parcel of the Public Services of the
\nState and, therefore, on the express terminology of the Act,
\nSection\t 4  thereof,  became   directly\t applicable  to\t the
\nrecruitment  of judicial officers both at the district level
\nas  well as at the level of Subordinate Judiciary below\t it.
\nAlternatively,\tit was submitted that even assuming that the
\nAct  did not apply on its own language, even then, it has to
\nbe  held that the State Legislature was perfectly  competent
\nto  enact  provisions  regarding  reservation  of  posts  in
\nJudicial Services of the State in the light of Article 16(4)
\nof the Constitution of India read with the relevant entry 41
\nin  list  II of Seventh Schedule to Constitution.   He\talso
\nposed  the  moot question whether the State Legislature\t has
\nindependent   power  to\t enact\t any  provisions   regarding
\nreservation in connection with appointment in Judiciary when
\nsuch  reservation,  after consultation with the High  Court,
\ncould  not get reflected in the relevant Rules framed by the
\nGovernor under Article 309 read with Articles 233 and 234 of
\nthe Constitution of India.  In support of these contentions,
\nrelevant  Constitutional scheme was pressed in service.\t  It
\nwas  submitted\tthat on a correct interpretation of  Article
\n309  the State Legislature as well as the Governor had ample
\njurisdiction to make provision for reservation in connection
\nwith  Judicial\tService.  Under the said Article,  paramount
\npower  in  this\t connection  has been vested  in  the  State
\nLegislature.   He  then referred to Articles 233 and 234  in
\nconnection with Subordinate Judiciary and placed emphasis on
\nArticle\t 236 (b) defining the expression Judicial  Service
\nas  a service consisting exclusively of persons intended  to
\nfill  the  post of District Judge and other  civil  judicial
\nposts  inferior to the post of District Judge.\tHe submitted
\nthat all that the opening part of Article 309 provides is to
\nthe  effect that, while making appointments to the cadre  of
\nDistrict Judges or Subordinate Judges of lower judiciary, as
\nper  Articles 233 and 234, consultation of the Governor with
\nthe  High Court is necessary.  That apart, from these latter
\ntwo  Articles  there is no fetter on the power of the  State
\nLegislature  to\t enact\tappropriate   legislation  in\tthis
\nconnection  under Article 309.\tHe invited our attention  to
\nList II entry 41 of the Seventh Schedule for submitting that
\nthe  State  Legislature\t is competent to make  enactment  in
\nconnection   with  appointments\t to   Public  Services\t and
\nJudicial  Service  is also a Public Service of the  State.
\nHe further submitted that the first part of Article 309 does
\nnot  attract  Article  234  so far  as\tState  Legislatures
\nparamount powers are concerned.\n<\/p>\n
      Dr.Dhavan,  relying  upon the second part\t of  Article
\n235,  stated  that  despite  the full  control\tof  District
\nJudiciary  being  vested  in the High Court,  the  right  of
\nappeal\tand  other  conditions\tof  service  of\t Members  of
\nSubordinate  Judiciary\tas  laid down by any  competent\t law
\nwhich  would  include  legislative   enactment\tas  well  as
\nstatutory  rules are clearly saved pro tanto at least at the
\nsecond\tlevel, after appointments are made at the grass-root
\nlevel  in the Judiciary and when the further question arises
\nas  to how the conditions of service of such appointees\t are
\nto  be\tgoverned  and\tcontrolled.   Dr.Dhavan,  therefore,
\nsubmitted  that\t it  is\t not  as   if  the  power  of  State
\nLegislature  to\t enact\tappropriate  provisions\t is  totally
\nexcluded  because  of the enactment of Articles 233 to\t235.
\nDr.Dhavan  tried  to highlight his submission by  contending
\nthat  if the power of State Legislature to enact appropriate
\nprovisions  regarding appointments of Members of Subordinate
\nJudiciary  is  held totally excluded by Article 234, and  to
\nthat  extent  Article 309 be held out of picture,  then\t the
\nfollowing  anomalies  may  arise  in the  working  of  these
\nprovisions.\n<\/p>\n
      1)  Judicial  Service as defined by  Article  236(b)
\nwill get truncated in its operation.\n<\/p>\n
      2)  The  second anomaly pointed out by  Dr.Dhavan\t was
\nthat  power  to legislate, which must be given full  effect,
\nwould\tget  excluded  without\t there\tbeing  any   express
\nexclusion.\n<\/p>\n
      3) The third anomaly pointed out by Dr.Dhavan was that
\nthough\tunder the Constitution, the scheme of separation  of
\npower  is  devised  to\tseparate   the\tExecutive  from\t the
\nJudiciary,  this  scheme  does\tnot   extend  to  oust\t the
\nlegislative power.  If it is held that Article 234 ousts the
\nlegislative  power  for\t making suitable enactments  on\t the
\ntopic  covered\ttherein then, to that extent,  an  anomalous
\nposition  would arise not contemplated by the Constitutional
\nscheme.\n<\/p>\n
      Dr.Dhavan\t next contended that on the express language
\nof  Article 234, only the rule making power of the  Governor
\nis fettered but not the legislative power of the State.\n<\/p>\n
      Dr.Dhavan\t  next\t submitted   that   if\t legislative
\ninterference  in the process of selection and appointment of
\ndirect\trecruits to Subordinate Judiciary as per Article 234
\nis  completely\truled out that being the first level or\t the
\ngrass-root  level of the Subordinate Judiciary then  another
\npatently  anomalous  situation\twould\tarise.\t That  under
\nArticle\t 235  second  part such statutory provisions  to  be
\nenacted by competent Legislature are clearly contemplated so
\nfar  as\t conditions  of\t service of  judicial  officers\t are
\nconcerned  and then when we turn to the apex level,  namely,
\nof  the district cadre manned by District Judges there is no
\nexpress\t ouster\t of legislative interference  under  Article\n<\/p>\n
233.   Thus  the plenary power of the Legislature  would  be
\noperative qua the highest posts in the hierarchy of District
\nJudiciary  while  for the grass-root level it will be  ruled
\nout.   Dr.Dhavan then invited our attention to the decisions
\nin  M.M.Gupta & Ors.  etc.  vs.\t State of Jammu & Kashmir  &
\nOrs., (1982) 3 SCC 412 paras 28 to 32 as well as in State of
\nKerala\tvs.  Smt.A.Lakshmikutty & Ors.,<\/a> (1986) 4 SCC 632  at
\npage  647  in  para 22 to highlight the scope  of  the\tterm
\nconsultation  which should be effective consultation.\tHe
\nthen  invited  our attention to the impugned Act  especially
\nSections  2 (c), 4 and 16 having overriding effect over\t all
\nother  rules in force and submitted that such establishments
\nunder  the State would include even Judiciary as laid down
\nby  the\t definition  of Section 2(n).  He,  however,  fairly
\nconceded  that\tneither\t in  the  Rules\t of  1951  regarding
\nappointments  to district cadre as per Article 233 nor under
\nthe  Rules  of 1955 for recruitment to cadre of\t Subordinate
\nJudiciary  as  laid  down  by  Article\t234,  there  is\t any
\nprovision  for\t50% reservation of posts and, therefore,  he
\nsubmitted  that this entire case depends upon competence  of
\nthe impugned Act which had to be enacted because there was a
\nstalemate  on  this subject as the High Court did not  agree
\nwith  the suggestion of the Governor for suitable  amendment
\nto  these  Rules under Articles 233 and 234.  He  ultimately
\nsubmitted, that the reasoning of the High Court that the Act
\ndoes  not cover Judicial Service is patently erroneous and
\nthat this Act is not bound by any fetters of Articles 233 or
\n234  and  is  an  exercise of  paramount  legislative  power
\nconferred  on the State authorities under Article 309  first
\npart  read with entry 41 List II of Seventh Schedule of\t the
\nConstitution.  He, therefore, submitted that the Act must be
\npermitted to have full play.\n<\/p>\n
      In  support of his contentions Dr.Dhavan placed strong
\nreliance  on  the decision of a Constitution Bench  of\tthis
\nCourt  in the case of B.S.Yadav & Ors.\tv.  State of Haryana
\n&  Ors.\t  etc.\t (1981) 1 SCR 1024.   Dr.Dhavan,  therefore,
\nsubmitted  that\t the  impugned judgment of the\tHigh  Court,
\nbeing  contrary to the Constitutional scheme, requires to be
\nset aside.\n<\/p>\n
      Shri Dwivedi, learned senior counsel appearing for the
\nappellant-State in the companion Civil Appeal submitted that
\nthough the High Court in para 9 at page 11 has referred to a
\nthree-Judge  Bench  judgment  of  this Court  in  All  India
\nJudges Association & Ors.  etc.\t vs.  Union of India & Ors.
\netc.,  AIR  1993 SC 2493, giving special status to  judicial
\nofficers,  the\tsaid  observations cannot whittle  down\t the
\npower  of  reservation\tavailable to the  State\t authorities
\nunder  Article 16 (4) and that question was not examined  in
\nthe  said  case\t as it did not fall for\t consideration.\t  He
\nsubmitted  that a conjoint reading of Sections 2(c) and 2(n)
\nclearly\t shows\tthat  the  Act is meant\t to  apply  also  to
\nJudicial  Service  of the Bihar State.\tHe next\t contended
\nthat  question\tof reservation of posts in a cadre which  is
\nalready\t established by the State authorities in exercise of
\ntheir  powers  under Article 309 is not covered by  Articles
\n233  to\t 235.\tThat  question\tis  covered  by\t Article  16
\nsub-article (4) and none of the aforesaid provisions curtail
\nthat  enabling power available to the State authorities.  In
\nthis  connection, he also invited our attention to entry 11A
\nof  List III of Seventh Schedule to the Constitution dealing
\nwith constitution and organisation of all courts, except the
\nSupreme Court and the High Courts, and submitted that scheme
\nof  reservation of posts would remain sustained under  these
\nprovisions  and\t also as per the Legislature  enacted  under
\nentry  41  of List II.\tHe submitted that once the court  is
\nconstituted,  it  would comprise of all cadres\tof  judicial
\nofficers  to man the courts and the formation of cadres\t and
\nconstitution  of  the courts also permitted  provisions\t for
\ncreation of reserved posts to comprise in such cadres.\tThis
\nexercise  has nothing to do with the question of appointment
\non  available vacancies in posts borne on established cadres
\nin  Judicial  Service.\t According  to\tShri  Dwivedi,\t the
\nestablishment  of cadres and creation of posts in the cadres
\nis  a stage prior to the one contemplated by Articles 233 to
\n235  dealing  with the subsequent question as to how  actual
\nappointments  of deserving candidates are to be effected  to
\nfill  up vacancies in already created posts in the concerned
\ncadres.\t  In short, the submission of Shri Dwivedi was\tthat
\nquestion  of  creation of posts to be filled up by  reserved
\ncandidates  or open category candidates was in the domain of
\nthe  State authorities especially, the Legislature which can
\nenact  appropriate  statutory  provisions  in  discharge  of
\nconstitutional\tobligation  under  Article 16(4)  read\twith
\nentry  41 of List II of Seventh Schedule as well as entry 11
\nA of List III and once the general category posts as well as
\nthe  reserved category posts are made available to the\tHigh
\nCourt  for  being filled in, thereafter, it will be for\t the
\nHigh  Court to proceed according to Articles 233 and 234  of
\nthe  Constitution  of India and in that exercise  the  State
\nLegislature will have no say.  He, therefore, contended that
\nthe  High  Court  in the impugned judgment was\tpatently  in
\nerror  in  taking  the\tview  that  statutory  provision  of
\nreservation of posts for reserved category candidates in the
\nSubordinate Judiciary under its control was in any way ultra
\nvires  or  illegal.   Shri  Dwivedi,   in  support  of\t his
\ncontentions,  gave  written   submissions  whereby,  amongst
\nothers,\t he invited our attention to Article 320 sub-article
\n(4) which excludes reservation expressly from the powers and
\nfunctions  of  the Public Service Commission.  He  submitted
\nthat  Article 234 requires the Governor for framing rules to
\nconsult\t the  High  Court  as well  as\tthe  Public  Service
\nCommission  and when it cannot make any provision  regarding
\nreservation  under  Article 16 sub-article (4), by  analogy,
\nconsultation  of  the  High Court also under the  very\tsame
\nArticle\t 234  would not permit the High Court to  deal\twith
\nArticle\t 16  sub- article (4).\tIn other words, question  of
\nreservation  is\t outside  the  ken  of\tArticle\t 234.\tShri
\nDwivedi, also in support of his contentions, placed reliance
\non  various decisions of this Court to which we will make  a
\nreference  at  an  appropriate\tstage.\t Shri  Dwivedi\tnext
\ncontended  that\t even  under   the  Bihar  Judicial  Service
\n(Recruitment)  Rules,  1955 (hereinafter referred to as\t the
\n1955 Rules) especially, Rules 19 & 20 reservation of posts
\nin  lower  judiciary is contemplated;  that these Rules\t are
\nmade by the Governor in consultation with the High Court and
\nthe Public Service Commission.\n<\/p>\n
      Shri  Dwivedi  next contended that, in any  case,\t the
\nHigh  Court in the impugned judgement was not called upon to
\nconsider  the  further question whether there cannot be\t any
\nreservation  to the posts in district cadre and the stand of
\nthe  High Court that if candidates of equal merit are there,
\nthen  preference  can be given to SC and ST candidates,\t was
\ncorrect\t or  not.   That the only question before  the\tHigh
\nCourt  was  whether the impugned Act could validly apply  to
\nprovision of reservation of posts in the District Judiciary.
\nHe, therefore, submitted that the observations in para 24 of
\nthe  impugned judgment, in any case, are required to be\t set
\naside  as  redundant and uncalled for.\tIt  was\t accordingly
\nsubmitted  by  Shri Dwivedi that the appeal deserves  to  be
\nallowed.\n<\/p>\n
      Learned  counsel\tappearing  for\tthe  Intervenors  in
\nI.A.No.20,  on the other hand, tried to support the case  of
\nreservation  for SC and ST candidates relying on Rule 20  of
\n1955  Rules  so\t far  as   the\trecruitment  to\t Subordinate
\nJudiciary   was\t  concerned.   Learned\t counsel   for\t the
\nintervenors  in I.A.No.10 representing Other Backward  Class
\n(for  short  OBC)  candidates  adopted\tthe  arguments\tof
\nDr.Dhavan  and\tShri Dwivedi in support of the impugned\t Act
\nand  the scheme of reservation thereunder.  Learned  counsel
\nappearing  for\tthe  Intervenors as per I.A.No.11  tried  to
\nsupport\t reservation for SC and ST candidates under the\t Act
\nand  even dehors it.  While intervenor in I.A.Nos.  4 and  9
\nrepresenting  general  category\t  candidates  supported\t the
\ndecision  of  the  High\t Court.\t   The\tmain  reply  to\t the
\ncontentions  of learned counsel for the appellants  emanated
\nfrom  learned  senior counsel Shri Thakur appearing for\t the
\nHigh  Court of Patna.  He submitted, in the first  instance,
\nthat  the  impugned  Act  is not wide  enough  to  apply  to
\nJudiciary.  He tried to support this contention on the basis
\nof  reasoning  which  appealed\tto the\tHigh  Court  in\t the
\nimpugned  judgment.  He alternatively contended that Section
\n4 of the impugned Act, if applied to judicial officers, will
\nex  facie  become invalid being repugnant to  the  composite
\nscheme\t of  Articles  233  to\t 235.\tTo  highlight\tthis
\nalternative contention, he contended as under :\t 1.  Article
\n309  has  no application to Subordinate Judiciary.  It\tgets
\nexcluded  by  the  triology  of Articles 233  to  235  which
\nrepresent  a  complete\tCode amongst themselves.   2.\tOnce
\nArticle 309 is excluded, legislative power under Article 309
\nfirst  part also gets excluded qua the field covered by\t the
\naforesaid  triology  of\t the   Articles.   3.\tThese  three
\nArticles  themselves  are the only source of power  to\tmake
\nrules or law as seen from second part of Article 235 as well
\nas  Articles 233 and 234.  4.  Rules made under Article\t 234
\nby  the\t Governor  after following the procedure  laid\tdown
\nthereunder would relate to service also as contemplated by
\nArticle 233.  5.  Second part of Article 235 only can permit
\nsuitable  legislation by the State authorities governing the
\nconditions of service of already recruited judicial officers
\nwhether at the grass-root level or even at the apex level of
\nthe  District Judiciary in exercise of its legislative power
\nunder  Article\t309  read with entry 41 of List\t II  of\t the
\nSeventh\t Schedule.  In order to support his contention\tthat
\nArticle\t 309  does not apply to recruitment to the  Judicial
\nService,  he  invited our attention to Article\t187  dealing
\nwith  Secretarial Staff of Legislature, Article 148  dealing
\nwith  Service  regulations  of the  Comptroller\t &  Auditor-
\nGeneral of India, Article 146 dealing with Service under the
\nSupreme\t Court,\t Article 229(2) dealing with Services  under
\nthe  High  Court  and Article 324(5)  dealing  with  Service
\nregulations of Election Commission and submitted that in all
\nthese  Articles,  special provisions are made  for  enacting
\nappropriate  rules  and\t even statutes covering\t the  topics
\nmentioned  therein.  But so far as Article 234 is concerned,
\nit  is not subject to the law of Legislature as found in the
\naforesaid  other  Articles.  To a pointed query by  us\tShri
\nThakur,\t learned senior counsel for the High Court of Patna,
\nafter  taking  appropriate instructions, submitted  that  in
\nprinciple  the\tHigh  Court of Patna  has  already  accepted
\nreservation  of\t 14% posts for SC and 10% for ST  candidates
\nfor  being  recruited  at the lowest level of  the  District
\nJudiciary.  Shri Thakur also placed reliance on decisions of
\nthe  various High Courts and of this Court to which we\twill
\nmake  a\t reference  at an appropriate stage.   Shri  Thakur,
\nfurther\t submitted  that Section 4 of the impugned  Act,  in
\nexpress\t terms,\t seeks\tto   regulate  appointments  to\t the
\nexisting posts in the cadre of District Judiciary as well as
\nin  the\t Subordinate Judiciary.\t To that extent it  directly
\nimpinges  upon the provisions of Articles 233 and 234, which
\namongst\t them, represent a complete Code in connection\twith
\nappointment  to Subordinate Judiciary.\tHe further submitted
\nthat  it is fallacious to contend that reserving posts for a
\ngiven  class of candidates would be at a stage prior to\t the
\nquestion  of recruitment and appointment as contemplated  by
\nArticles  233 and 234 of the Constitution.  That once  posts
\nare already created for being filled up in a given cadre the
\nauthority  of the State in this connection would come to  an
\nend.   For  creation  of such cadres and sanction  of  posts
\nappropriate legislation can be enacted or even the Governor,
\nin  exercise of his independent power under Article 309, can
\npromulgate  Rules.  But once posts are already created in  a
\nJudicial Cadre and when the question of filling up vacancies
\nin  the\t existing  sanctioned  posts in\t district  cadre  or
\nsubordinate  cadre arises, direct recruitment has to be done
\non  the\t recommendation\t of the High Court as laid  down  by
\nArticle\t 233  (2)  and recruitment in the vacancies  in\t the
\ncadre  of  Subordinate Judiciary has to be done as  per\t the
\n1955  Rules framed by the Governor in consultation with\t the
\nHigh  Court under Article 234 and in no other manner.\tThat
\nfor  regulating\t this  process there is no question  of\t any
\nlegislative interference by exercise of any paramount power.
\nHe,  therefore, contended that the view of the High Court in
\nthe   impugned\t judgment   is\t well\tsustained   on\t the
\nConstitutional\tscheme\tand calls for no interference.\t He,
\nhowever,  fairly submitted that so far as the 1955 Rules are
\nconcerned,  by the consent of the High Court the rule making
\npower  has  been  exercised by the Governor  permitting\t the
\nreservation for SC and ST candidates in recruitment governed
\nby  the said Rules and which recruitment has to be  resorted
\nto  for filling up vacancies in posts of Subordinate  Judges
\nand the Munsiffs.  He also fairly stated that the High Court
\nis  consistently following the provision of reservation\t for
\ndirect\trecruitment  in\t these categories of  posts  to\t the
\nextent\tof 14% being reserved for SC and 10% being  reserved
\nfor  ST candidates but nothing more.  So far as the impugned
\nAct  is concerned, it goes far beyond this permitted  scheme
\nof reservation under the relevant Rules of 1955 and seeks to
\nimpose\ta  blanket  reservation of 50% for SC,\tST  and\t OBC
\ncandidates.   That  such a statutory provision flies in\t the
\nface  of  Articles 233 and 234 of the Constitution of  India
\nand  cannot be sustained and accordingly rightly been voided
\nby  the High Court.  Points for determination:\tIn the light
\nof  the\t aforesaid rival contentions, the  following  points
\narise  for our determination:  1.  Whether the impugned\t Act
\nof 1991 on its express language covers Judicial Service of
\nthe  Bihar State;  2.  If the answer to point no.1 is in the
\naffirmative,  whether  the provisions of the  impugned\tAct,
\nespecially,   Section  4  thereof  in  its  application\t  to
\nSubordinate  Judiciary would be ultra vires Articles 233 and
\n234  of\t the  Constitution  of India  and  hence  cannot  be
\nsustained;   3.\t  In the alternative, whether the  aforesaid
\nprovisions  of\tthe  Act  are required to be  read  down  by
\nholding\t that Section 4 of the Act will not apply to  direct
\nrecruitment  to\t the posts comprised in the  Bihar  Superior
\nJudicial  Service as specified in the Schedule to the  Bihar
\nSuperior  Judicial  Service Rules, 1951 as well as to  Bihar
\nJudicial  Service  governed  by the Bihar  Judicial  Service
\n(Recruitment)  Rules,  1955,  comprising  of  the  posts  of
\nSubordinate   Judges  and  Munsiffs   under   the   District
\nJudiciary;  and 4.  What final order?\n<\/p>\n
      Before   we  deal\t with\tthe  aforesaid\tpoints\t for
\ndetermination,\tit  will  be necessary to keep in  view\t the
\nrelevant  provisions of the Constitution which have a direct
\nimpact\ton  the resolution of the controversy  projected  by
\nthese  points.\tConstitutional Scheme:\tPart XIV deals\twith
\nServices  under\t the  Union  and   the\tStates.\t  Chapter  I
\ncomprising of Articles 308 to 313 deals with Services, while
\nChapter\t II  covering Articles 315 to 323 deals with  Public
\nService\t Commissions.\tArticle 308 defines  the  expression
\nState,\twhich  shall  not  include the State  of  Jammu\t &
\nKashmir.   However,  the  relevant Article for\tour  present
\npurpose\t is  Article  309  which reads\tas  under  :   309.
\nRecruitment and conditions of service of persons serving the
\nUnion  or  a  State  Subject  to  the  provisions  of\tthis
\nConstitution,  Acts  of\t the   appropriate  Legislature\t may
\nregulate  the  recruitment,  and conditions  of\t service  of
\npersons\t  appointed,  to  public   services  and  posts\t  in
\nconnection with the affairs of the Union or of any State:\n<\/p>\n
      Provided\tthat it shall be competent for the President
\nor  such person as he may direct in the case of services and
\nposts  in connection with the affairs of the Union, and\t for
\nthe  Governor of a State or such person as he may direct  in
\nthe  case  of  services\t and posts in  connection  with\t the
\naffairs\t of  the  State,  to   make  rules  regulating\t the
\nrecruitment,  and  the\tconditions  of\tservice\t of  persons
\nappointed,  to\tsuch services and posts until  provision  in
\nthat  behalf  is made by or under an Act of the\t appropriate
\nLegislature  under this article, and any rules so made shall
\nhave effect subject to the Provisions of any such Act.\n<\/p>\n
      A mere look at this Article shows that it is expressly
\nmade  subject  to other provisions of the  Constitution\t and
\nsubject\t to that, an appropriate Legislature or Governor can
\nregulate  the  recruitment  and\t conditions  of\t service  of
\npersons appointed to public services and posts in connection
\nwith  the  affairs of the State concerned.  Proviso to\tthat
\nArticle\t permits  the Governor of the State to fill  up\t the
\ngap,  if there is no such statutory provision governing\t the
\naforesaid  topics.  For that purpose, the Governor may\tmake
\nrules  regulating  the\trecruitment and\t the  conditions  of
\nservice\t of  persons  appointed to such services  and  posts
\nuntil provision in that behalf is made by or under an Act of
\nthe  competent\tLegislature  which may intervene  and  enact
\nappropriate  statutory provisions for the same.\t The  manner
\nof  recruitment to the services contemplated by Article\t 309
\nis  provided  by Chapter II dealing with the Public  Service
\nCommissions.   Article\t320 deals with Functions  of  Public
\nService\t Commissions enjoining them to conduct\texaminations
\nfor  appointment  to  the  services of\tthe  Union  and\t the
\nservices  of  the State respectively.  That naturally has  a
\ndirect\tlinkage\t with the types of Services contemplated  by
\nArticle\t 309.  Special Scheme for Judicial Services in\tPart
\nVI (Chapters V & VI):\n<\/p>\n
      It  is pertinent to note that independently of general
\nprovisions of Article 309, the Constitution has made special
\nprovisions  for certain Services.  Even if they may be\tpart
\nof  public  services, still separate Constitutional  schemes
\nare  envisaged for regulating recruitment and conditions  of
\nservices of officers governed by such Services.\t Let us have
\na  glance at such specially dealt with Services.  Part VI of
\nthe  Constitution dealing with the States, separately  deals
\nwith  the  executive  in Chapter II, the  State\t Legislature
\nunder Chapter III and thereafter Chapter IV dealing with the
\nLegislative  Powers of the Governor and then follows Chapter
\nV  dealing with the High Courts in the States and Chapter VI
\ndealing\t with  the Subordinate Courts.\tIt is in Chapter  VI
\ndealing\t with  the  Subordinate\t Courts\t that  we  find\t the
\nprovision  made\t for  appointment of District  Judges  under
\nArticle\t 233, recruitment of persons other than the District
\nJudges\tto the Judicial Services under Article 234 and\talso
\nControl\t of  the High Court over the Subordinate  Courts  as
\nlaid  down by Article 235.  Article 236 deals with the topic
\nof  Interpretation  and\t amongst others, defines  by  sub-
\narticle\t (b)  the expression judicial service to  mean\ta
\nservice\t consisting exclusively of persons intended to\tfill
\nthe  post  of District Judge and other civil judicial  posts
\ninferior  to  the  post\t of  District  Judge.  It  becomes,
\ntherefore,  obvious  that  the framers of  the\tConstitution
\nseparately  dealt with Judicial Services of the State  and
\nmade exclusive provisions regarding recruitment to the posts
\nof  District Judges and other civil judicial posts  inferior
\nto  the posts of the District Judge.  Thus these  provisions
\nfound entirely in a different part of the Constitution stand
\non  their own and quite independent of part XIV dealing with
\nServices  in general under the State.  Therefore,  Article
\n309,  which, on its express terms, is made subject to  other
\nprovisions  of\tthe Constitution, does get circumscribed  to
\nthe  extent to which from its general field of operation  is
\ncarved\tout a separate and exclusive field for operation  by
\nthe relevant provisions of Articles dealing with Subordinate
\nJudiciary  as  found  in  Chapter  VI  of  Part\t VI  of\t the
\nConstitution  to which we will make further reference at  an
\nappropriate  stage  in the later part of this judgment.\t  We
\nmay  also  refer at this stage to Article 146  dealing\twith
\nServices  under\t the  Supreme  Court  which  lays  down\t the
\nprocedure  for\tappointment of officers and servants of\t the
\nSupreme\t Court\tand provides under sub-article\t(2)  thereof
\nthat  subject  to  the\tprovisions  of\tany  law  made\t by
\nParliament,  the  conditions  of  service  of  officers\t and
\nservants  of  the  Supreme  Court shall be such\t as  may  be
\nprescribed by rules made by the Chief Justice of India or by
\nsome  other Judge or officer of the court authorised by\t the
\nChief  Justice\tof  India to make rules\t for  the  purpose.
\nSimilar\t provision  is\tfound in Article  229  dealing\twith
\nrecruitment of officers and servants and the expenses of the
\nHigh  Courts.\tSub-article (2) there of lays down the\trule
\nmaking\tpower of the Chief Justice of the Court concerned or
\nby  some  other Judge or officer of the Court authorised  by
\nthe  Chief Justice to make rules for the purpose subject  to
\nthe  provisions\t of any law made by any Legislature  of\t the
\nState.\t  Article   148\t   deals    with   Comptroller\t and
\nAuditor-General\t of  India.  Sub-article (5)  thereof  deals
\nwith  rule  making  power  of the  President  regarding\t the
\nconditions of service of persons serving in the Indian Audit
\nand Accounts Department and the administrative powers of the
\nComptroller and Auditor-General subject to any provisions of
\nthe  Constitution or any law made by the Parliament in\tthis
\nconnection.    Article\t 98  deals   with   Secretariat\t  of
\nParliament.   Sub-  article  (3)   thereof  provides  Until
\nprovision  is  made  by\t Parliament under  clause  (2),\t the
\nPresident  may,\t after consultation with the Speaker of\t the
\nHouse  of  the\tPeople\tor the Chairman of  the\t Council  of
\nStates,\t as  the  case\tmay be, make  rules  regulating\t the
\nrecruitment,  and  the\tconditions  of\tservice\t of  persons
\nappointed,  to\tthe  secretarial staff of the House  of\t the
\nPeople or the Council of States, and any rules so made shall
\nhave  effect subject to the provisions of any law made under
\nthe  said  clause.  Similarly,\tfor  Secretariat  of  State
\nLegislature,  we find Article 187 which deals with  separate
\nsecretariat  staff  for\t the  House or\teach  House  of\t the
\nLegislature  of\t a  State.   Sub-article  (3)  thereof\truns
\nparallel  to sub-article (3) of Article 98 and provides that
\nuntil  provision  is made by the Legislature of\t the  State
\nunder  clause (2), the Governor may, after consultation with
\nthe  Speaker of the Legislative Assembly or the Chairman  of
\nthe  Legislative  Council,  as the case may be,\t make  rules
\nregulating the recruitment, and the conditions of service of
\npersons\t appointed, to the secretarial staff of the Assembly
\nor  the\t Council  and any rules so made\t shall\thave  effect
\nsubject\t to  the provisions of any law made under  the\tsaid
\nclause.\t Article  324 is found in Part XV which deals  with
\nSuperintendence,  direction  and control of elections to  be
\nvested\tin an Election Commission.  Sub-article (5)  thereof
\nprovides  that subject to the provisions of any law made by
\nParliament,  the conditions of service and tenure of  office
\nof the Election Commissioners and the Regional Commissioners
\nshall  be such as the President may by rule determine.\tThe
\naforesaid  Constitutional  provisions clearly indicate\tthat
\nindependently  of  general provisions regarding Services  as
\nmentioned   in\tPart  XIV,   different\ttypes  of   Services
\ncontemplated  by the Constitution in other parts have  their
\nown  procedural\t schemes for recruitment and  regulation  of
\nconditions  of\tthese  Services and therefore,\tArticle\t 309
\nfound  in Part XIV necessarily will have to be read  subject
\nto  these  special  provisions\t regarding  recruitment\t and
\nconditions  of\tservices  of diverse types governed  by\t the
\nrelevant  different  Constitutional provisions as  indicated
\nherein above.  The other Article to which reference is to be
\nmade is Article 16 sub-article (4) of the Constitution which
\nenables\t the  State  to make provision\tfor  reservation  of
\nappointments  or  posts in favour of any backward  class  of
\ncitizens   which,   in\tits   opinion,\tis  not\t  adequately
\nrepresented in the services under the State.  This provision
\nhas  to be read with Article 335 which deals with Claims  of
\nScheduled  Castes and Scheduled Tribes to services and posts
\nand  lays  down\t that  the claims of  the  members  of\tthe
\nScheduled  Castes  and the Scheduled Tribes shall  be  taken
\ninto  consideration,  consistently with the  maintenance  of
\nefficiency  of administration, in the making of appointments
\nto  services and posts in connection with the affairs of the
\nUnion  or  of  a State. Though on the express  language\t of
\nArticle 335, the Other Backward Classes are not included, it
\nis  now\t well  settled\tby a  decision\tof  the\t nine-member
\nConstitution  Bench  of\t this  Court in the  case  of  Indra
\nSawhney\t &  Ors.  vs.  Union of India & Ors.,<\/a>  [1992  Suppl.
\n(3)  SCC 217] that even the Other Backward Classes are\talso
\ncovered\t by the thrust of Article 335 of the Constitution of
\nIndia  and  that  view is reaffirmed and is  followed  by  a
\nrecent\tdecision  of the three-Judge Bench of this Court  in
\nIAs.   Nos.35-36  in  WP (C) No.930 of 1990 etc.   in  Indra
\nSawhney vs.  Union of India & Ors.<\/a>  reported in (2000) 1 SCC
\n168,  wherein Jagannadha Rao, J., speaking on behalf of\t the
\nthree-Judge  Bench  highlighted this very  position.   Thus,
\neven  if  under Article 16(4) the State proposes to  provide
\nreservation  on\t the ground of inadequate representation  of
\ncertain backward classes in Services, if it is considered by
\nthe  appropriate  authority  that   such  reservation\twill
\nadversely  affect the efficiency of the administration, then
\nexercise  under\t Article 16(4) is not permissible.  This  is
\nthe  Constitutional  limitation\t on   the  exercise  of\t the
\nenabling  power\t of reservation under Article 16(4).  As  we
\nshall  presently  show, question whether in the\t Subordinate
\nJudiciary  covered by Articles 233 and 234 if reservation is
\nprovided, then the efficiency of the judicial administration
\nwill  be affected, is a matter within the exclusive  purview
\nof  the\t High Court which shall have to be consulted.\tSuch
\nconsultation is a Constitutional obligation before any Rules
\nare made for reservation.  Before parting with the resume of
\nrelevant  Constitutional  provisions, we may also  refer  to
\nArticle 50 which lays down the Directive Principles of State
\nPolicy\tthat  the  State shall take steps  to  separate\t the
\njudiciary  from the executive in the public services of\t the
\nState.\n<\/p>\n
      Legislative powers under Articles 245, 246 are subject
\nto  other  provisions, including Articles 233, 234 and\t235:
\nWe may also refer to Part XI of the constitution, especially
\nChapter I dealing with Legislative Relations laying down the
\nDistribution  of Legislative Powers.  Article 245 deals with
\nExtent\tof Laws made by Parliament and by the  Legislatures
\nof  States.  Sub-article (1) thereof provides that Subject
\nto  the provisions of this Constitution, Parliament may make
\nlaws  for  the whole or any part of the territory of  India,
\nand  the Legislature of a State may make laws for the  whole
\nor  any part of the State. Thus, the legislative powers\t of
\nParliament  and\t the Legislature of the State are  expressly
\nmade  subject  to  other  provisions  of  the  Constitution.
\nSimilarly,   Article  246  laying   down  the  category\t  of
\nsubject-matter\tof  laws  made\tby  Parliament\tand  by\t the
\nLegislatures  of States enumerated in Lists I, II and III of
\nthe  Seventh  Schedule will also have to be read subject  to
\nArticle\t 245.\tMeaning thereby, if other provisions of\t the
\nConstitution  cut down or exclude the Legislative powers  of
\nParliament or State Legislature qua given topics, then those
\nother  provisions  have\t to  be given their  full  play\t and
\neffect.\n<\/p>\n
      Articles\t233, 234 and 235:  So far as recruitment  to
\nDistrict  and  Subordinate Judiciary is concerned,  we\thave
\ntherefore,  to turn to the twin Articles found in Chapter VI
\nof  Part VI dealing with Subordinate Courts.  The relevant
\ntwo  articles read as under :  233.  Appointment of Judges:
\n(1)  Appointment  of  persons  to be, and  the\tposting\t and
\npromotion  of, district judges in any State shall be made by
\nthe  Governor  of  the State in consultation with  the\tHigh
\nCourt exercising jurisdiction in relation to such State.\n<\/p>\n
      (2)  A person not already in the service of the  Union
\nor  of\tthe State shall only be eligible to be\tappointed  a
\ndistrict  judge if he has been for not less than seven years
\nan  advocate  or  a pleader and is recommended by  the\tHigh
\nCourt for appointment.\n<\/p>\n
      234.   Recruitment  of  persons  other  than  district
\njudges\tto  the judicial service:  Appointments\t of  persons
\nother  than  district  judges to the judicial service  of  a
\nState  shall  be  made\tby  the Governor  of  the  State  in
\naccordance  with  rules\t made by him in\t that  behalf  after
\nconsultation  with  the State Public Service Commission\t and
\nwith  the High Court exercising jurisdiction in relation  to
\nsuch State. (Emphasis supplied)<\/p>\n
      Article  233  dealing  with  appointment\tof  District
\nJudges,\t on its own express terminology projects a  complete
\nscheme\tregarding  the\tappointment of persons\tto  District
\nJudiciary  as  District Judges.\t In the present appeals,  we
\nare  concerned\twith  direct  recruitment to  the  cadre  of
\nDistrict  Judges  and hence sub-article (2) of Articles\t 233
\nbecomes\t relevant.   Apart from laying down the\t eligibility
\ncriterion  for\tcandidates to be appointed from the  Bar  as
\ndirect\tDistrict Judges the said provision is further hedged
\nby  the\t condition that only those recommended by  the\tHigh
\nCourt  for  such  appointment  could  be  appointed  by\t the
\nGovernor  of  the  State.   Similarly,\tfor  recruitment  of
\njudicial officers other than District Judges to the Judicial
\nService\t at  lower  level, complete scheme  is\tprovided  by
\nArticle\t 234 wherein the Governor of the State can make such
\nappointments  in  accordance  with the rules framed  by\t him
\nafter  consulting  with the State Public Service  Commission
\nand  with the High Court exercising jurisdiction in relation
\nto  such State.\t So far as the Public Service Commission  is
\nconcerned,  as\tseen  from Article 320,\t the  procedure\t for
\nrecruitment  to the advertised posts to be followed by it is
\nearmarked  therein.   But  the role of\tthe  Public  Service
\nCommission  springs  into action after the posts in a  cadre
\nare  required to be filled in by direct recruitment and\t for
\nthat  purpose  due intimation is given to the Commission  by
\nthe  State  authorities.   They\t have obviously\t to  act  in
\nconsultation  with  the High Court so far as recruitment  to
\nposts  in Subordinate Judiciary is concerned.  Of course, it
\nwill  be for the High Court to decide how many vacancies  in
\nthe  cadre  of\tDistrict Judges and Subordinate\t Judges\t are
\nrequired to be filled in by direct recruitment so far as the
\nDistrict  Judiciary  is\t concerned and necessarily  only  by
\ndirect\trecruitment  so\t far  as  Subordinate  Judiciary  is
\nconcerned.   This  prime  role\tof the\tHigh  Court  becomes
\nclearly\t discernible  from Article 235 which deals with\t the
\ncontrol of the High Court over the Subordinate Judiciary and
\nalso  of  Subordinate Courts.  The said Article provides  as
\nunder:\t235.  Control over subordinate courts.\tThe control
\nover   district\t courts\t and   courts  subordinate   thereto
\nincluding  the\tposting and promotion of, and the  grant  of
\nleave  to,  persons belonging to the judicial service  of  a
\nState  and holding any post inferior to the post of district
\njudge shall be vested in the High Court, but nothing in this
\narticle\t shall\tbe  construed as taking away from  any\tsuch
\nperson\tany right of appeal which he may have under the\t law
\nregulating  the conditions of his service or as\t authorising
\nthe High Court to deal with him otherwise than in accordance
\nwith  the  conditions of his service prescribed\t under\tsuch
\nlaw.\n<\/p>\n
      It is in the light of the aforesaid relevant scheme of
\nthe  Constitution  that\t we now proceed to tackle  the\tmain
\ncontroversy  posed  for our consideration.  Point No.1:\t  So
\nfar as this point is concerned, it is strictly not necessary
\nfor  us\t to  go into the reason or the cause which  led\t the
\nappellant-State\t to  resort to the exercise  of\t legislative
\npower  for  enacting  the  impugned Act.   The\tquestion  is
\nwhether\t the  Act, as enacted, by its express language,\t can
\napply  to  judicial service of the State or not.  When\twe
\nturn  to this Act, we find that it is enacted to provide for
\nadequate  representation  of  SC, ST and OBC  candidates  in
\nPosts  and Services under the State.  The State is defined
\nby  Section 2(n) to include the Government, the Legislature
\nand  the  Judiciary of the State of Bihar and all  local  or
\nother  authorities within the State or under the control  of
\nthe  State Government. Consequently, it cannot be said that
\nthe  Act, as framed, did not seek to cover the Judiciary  of
\nthe State of Bihar.  The main provision of the Act, which is
\non  the\t anvil of controversy, is Section 4 which  reads  as
\nunder  :   4.\tReservation for direct\trecruitment    All
\nappointments to services and posts in an establishment which
\nare to be filled by direct recruitment shall be regulated in
\nthe  following manner, namely :- (1) The available vacancies
\nshall  be  filled up  (a) from open merit category  ..\t ..
\n50% (b) from reserved category ..  ..  50% (2) The vacancies
\nfrom  different\t categories  of\t  reserved  candidates\tfrom
\namongst\t the  50% reserved category shall, subject to  other
\nprovisions  of\tthis  Act, be as follows  :-  (a)  Scheduled
\nCastes\t..   ..\t  14% (b) Scheduled Tribes ..  ..   10%\t (c)
\nExtremely  Backward Class ..  ..  12% (d) Backward Class  ..
\n..    8%  (e)  Economically  Backward\tWoman  ..   3%\t (f)
\nEconomically  Backward\t..  ..\t3% —– Total ..  50%\t—-
\nProvided  that the State Government may, by notification  in
\nthe official Gazette, fix different percentage for different
\ndistricts in accordance with the percentage of population of
\nScheduled Castes\/Scheduled Tribes and Other backward classes
\nin  such  districts:   Provided\t further  that\tin  case  of
\npromotion,  reservation\t shall\tbe made only  for  Scheduled
\nCastes\/Scheduled  Tribes in the same proportion as  provided
\nin  this section.  (3) A reserved category candidate who  is
\nselected  on the basis of his merit shall be counted against
\n50%  vacancies\tof open merit category and not\tagainst\t the
\nreserved  category vacancies.  (4) Notwithstanding  anything
\ncontained to the contrary in this Act or in any other law or
\nrules  for  the time being in force, or in any judgement  or
\ndecree\tof the Court, the provision of sub-section (3) shall
\napply  to  all\tsuch  cases  in\t which\tall  formalities  of
\nselection  have been completed before the 1st November 1990,
\nbut  the appointment letters have not been issued.  (5)\t The
\nvacancies reserved for the Scheduled Castes\/Scheduled Tribes
\nand  other  Backward  Classes  shall not  be  filled  up  by
\ncandidates  not\t belonging  to\tScheduled   Castes\/Scheduled
\nTribes\tand  Other  Backward  Classes  except  as  otherwise
\nprovided  in this Act.\t(6) (a) In case of  non-availability
\nof  suitable  candidates  from\t the  Scheduled\t Castes\t and
\nScheduled  Tribes for appointment and promotion in vacancies
\nreserved  for  them,  the  vacancies shall  continue  to  be
\nreserved  for  three  recruitment   years  and\tif  suitable
\ncandidates  are\t not available even in the third  year,\t the
\nvacancies  shall  be exchanged between the Scheduled  Castes
\nand Scheduled Tribes and the vacancies so filled by exchange
\nshall  be  treated as reserved for the candidates  for\tthat
\nparticular  community  who are actually appointed.   (b)  In
\ncase  of  non-availability of suitable candidates  from\t the
\nExtremely   Backward  Classes  and   Backward  Classes\t the
\nvacancies so reserved shall continue to be reserved for them
\nfor  three recruitment years and if suitable candidates\t are
\nnot  available\teven in the third year also,  the  vacancies
\nshall  be filled by exchange between the candidates from the
\nextremely Backward and Backward Classes and the vacancies so
\nfilled\tby  Exchange  shall be treated as reserved  for\t the
\ncandidates  of\tthat particular community who  are  actually
\nappointed.   (c)  In  case of non-availability\tof  suitable
\ncandidates  for the vacancies reserved for the\teconomically
\nbackward  women\t the vacancies shall be filled first by\t the
\ncandidates from the Scheduled Castes, then by the candidates
\nfrom  the  Scheduled  Tribes, then by  the  candidates\tfrom
\nextremely  backward  class, and then by the candidates\tfrom
\nbackward  class.  The vacancies so filled in the transaction
\nshall  be  treated  as reserved for the candidates  of\tthat
\nparticular  community who are actually appointed.  (d) If in
\nany  recruitment year, the number of candidates of Scheduled
\nCastes\/Scheduled  Tribes,  extremely Backward  and  Backward
\nClasses\t are less than the number of vacancies reserved\t for
\nthem  even  after  exchange formula  the  remaining  backlog
\nvacancies   may\t be  filled  by\t general  candidates   after
\ndereserving  them  but the vacancies so dereserved shall  be
\ncarried forward for three recruitment years.\n<\/p>\n
      (e)  If the required number of candidates of Scheduled
\nCastes, Scheduled Tribes and Extremely Backward and Backward
\nClasses\t are  not  available  for filling  up  the  reserved
\nvacancies,  fresh  advertisement  may be made only  for\t the
\ncandidates  belonging  to the members of  Scheduled  Castes,
\nScheduled  Tribes  and\tExtremely   Backward  and   Backward
\nClasses,  as the case may be, to fill the backlog  vacancies
\nonly.\n<\/p>\n
      A\t bare  reading of the said provision shows that\t all
\nappointments  to services and posts in any establishment  by
\nway  of\t direct\t recruitment  require  to  be  subjected  to
\nreservation  so\t that  all available vacancies\thave  to  be
\nfilled\tin from open category candidates only up to 50%\t and
\nfrom  reserved\tcategory up to remaining 50%.  It cannot  be
\ndisputed   that\t  posts\t of   District\tJudges\tand   Judges
\nsubordinate  to\t the  District Judiciary are also  posts  in
\nJudicial  Service.  Question is whether the phrase posts in
\nany  establishment  governs such judicial posts.  We  have,
\ntherefore,   to\t turn  to  the\t definition  of\t  the\tterm
\nestablishment  as  found in Section 2(c) of the Act.   The
\nrelevant  provision  thereof lays down that  establishment
\nmeans  any Office or department of the State concerned with
\nthe  appointments to public services and posts in connection
\nwith  the  affairs of the State.  On a conjoint reading\t of
\nthe  definition\t of  State  under  Section  2(n)  and  the
\ndefinition establishment under Section 2(c), the following
\nstatutory  scheme  emerges.  Any office or establishment  of
\nthe  Judiciary\tof  the State of Bihar\tconcerned  with\t the
\nappointments to public services and posts in connection with
\naffairs\t of  the Judiciary of the State of Bihar would\tfall
\nwithin\tthe  sweep of the term establishment.\tOnce  that
\nconclusion  emerges  from the scheme of the Act, it  becomes
\nobvious\t that all appointments to services and posts in\t any
\noffice\tor department of the Judiciary of the State of Bihar
\nwould  be  covered  by\tthe  sweep of  Section\t4.   On\t the
\naforesaid  scheme of the Act, the High Court in the impugned
\njudgment, has taken the view that the operation of Section 4
\nfor  offices or departments of the Judiciary of the State of
\nBihar would cover only the ministerial staff of the District
\nCourts\tand courts subordinate thereto and would not include
\nPresiding  Officers and therefore, Section 4 will not govern
\nthe direct recruitment to the posts of Presiding Officers of
\nthe  District Judiciary as well as of Subordinate Judiciary.
\nIt  is difficult to appreciate this line of reasoning on the
\nexpress\t language  of the relevant provisions of  Section  4
\nread  with  the definition provisions.\tIt  becomes  obvious
\nthat  the term any office of the Judiciary of the State of
\nBihar would naturally include not only ministerial staff but
\nalso  officers,\t including  Presiding\tOfficers  of  courts
\ncomprised  in  the  Judiciary  of   the\t State.\t  Once\tthat
\nconclusion  is\treached\t on  the  express  language  of\t the
\nrelevant  provisions of the Act, it cannot be held that\t the
\nthrust\tof  Section 4 would not apply to govern\t reservation
\nfor direct recruitment to the posts of Presiding Officers in
\nthe  District Courts as well as courts subordinate  thereto,
\nas all of them will form part and parcel of the Judiciary of
\nthe State of Bihar and will have to be treated as holders of
\noffices\t in  the State Judiciary.  Consequently, it  is\t not
\npossible  to  agree  with the contention of  learned  senior
\ncounsel\t Shri Thakur for the High Court that on the  express
\nprovisions  of\tthe  Act, Section 4 cannot apply  to  govern
\nrecruitment  to\t posts in Subordinate Judiciary.  The  first
\npoint  for  determination, therefore, has to be answered  in
\nthe  affirmative in favour of the appellants and against the
\nrespondents.\n<\/p>\n
      Point  No.2:   Since it is held that Section 4 of\t the
\nimpugned   Act,\t  on  its   express  terms,  covers   direct
\nrecruitment  to posts in the cadre of District Judiciary  as
\nwell as to Subordinate Judiciary in the State of Bihar, moot
\nquestion  arises as to whether Section 4 can be sustained on
\nthe  touchstone\t of  the   relevant  Constitutional   scheme
\ngoverning  the recruitment and appointments to these  posts.
\nFor  coming to the grip of this problem, we have to keep  in
\nview the salient features of the Constitution emanating from
\nthe  Directive\tPrinciples of State Policy as laid  down  by
\nArticle\t 50 which underscores the felt need of separation of
\nthe  Judiciary\tfrom  the  Executive.\tFor  achieving\tthat
\npurpose,  the  Constitution  has  made\tseparate  provisions
\nregarding  the\trecruitment and appointment to the cadre  of
\nDistrict  Judges  as  well as the Subordinate  Judiciary  as
\nfound  in Chapter VI of Part VI of the Constitution and,  as
\nseen  earlier,\tthese  provisions   are\t conspicuously\t not
\nincluded  in part XIV dealing in general with Services under
\nthe  Union and the States.  Article 309 itself, which is  of
\ngeneral\t nature, dealing with regulation of Recruitment\t and
\nconditions  of Service of persons serving in the Union or  a
\nState  is expressly made subject to other provisions of\t the
\nConstitution.\tThe  first part of Article 235\titself\tlays
\ndown  that it is for the High Court to control the  District
\nCourts\tand  Courts subordinate thereto and in\texercise  of
\nthat  control  vesting\tin  the High  Court,  regulation  of
\nposting\t and  promotions  and granting of leave\t to  persons
\nbelonging  to  the Judicial Services has to be done  by\t the
\nHigh  Court.  It is, of course, true that in the second part
\nof  Article  235 judicial officers already appointed to\t the
\nService\t have their statutory right of appeal and the  right
\nto  be dealt with regarding other service conditions as laid
\ndown by any other law for the time being in force, expressly
\nprotected.   But  these provisions of the second  part\tonly
\nenable the Governor under Article 309, in the absence of any
\nstatutory  enactment  made by the competent Legislature\t for
\nregulating  the\t conditions of service of judicial  officers
\nwho  are already recruited and have entered and become\tpart
\nand  parcel of the State service, to promulgate\t appropriate
\nrules  on  the subject.\t But so far as the entry points\t are
\nconcerned,  namely, recruitment and appointment to the posts
\nof  Presiding Officers of the courts subordinate to the High
\nCourts,\t only  Articles 233 and 234 would govern the  field.
\nArticle\t 234  lays  down  the procedure and  the  method  of
\nrecruiting  judicial  officers\tat  grass-root\tlevel  being
\nSubordinate  Judges  and Munsiffs as laid down by  the\t1955
\nRules.\tThese Rules are also framed by the Governor of Bihar
\nin  exercise of his powers under Article 234 obviously after
\nthe  consultation  of the High Court and the Public  Service
\nCommission.   Rules regarding the procedure of selection  to
\nbe  followed by the State Public Service Commission as found
\nin  Rules 4 to 17 deal with the method to be adopted by\t the
\nPublic\tService\t Commission while selecting  candidates\t who
\noffer  their  candidature  for the posts  advertised  to  be
\nfilled\tin.  These Rules obviously require consultation with
\nthe  Commission\t on  the   procedural  aspect  of  selection
\nprocess.   But\tso far as the High Court is  concerned,\t its
\nconsultation  becomes pivotal and relevant by the thrust  of
\nArticle\t 233  itself  as it is the High Court which  has  to
\ncontrol\t the candidates, who ultimately on getting selected,
\nhave  to act as Judges at the lowest level of the  Judiciary
\nand  whose  posting, promotion and grant of leave and  other
\njudicial  control would vest only in the High Court, as\t per
\nArticle 235 first part, once they enter the judicial service
\nat grass-root level.  Thus consultation of the Governor with
\nthe  High Court under Article 234 is entirely of a different
\ntype as compared to his consultation with the Public Service
\nCommission  about procedural aspect of selection.  So far as
\ndirect\trecruitment  to\t the  posts of\tDistrict  Judges  is
\nconcerned,  Article  233 sub-article (2) leaves no room\t for
\ndoubt  that unless the candidate is recommended by the\tHigh
\nCourt,\tthe Governor cannot appoint him as a District Judge.
\nThus  Articles\t233  and  234,\tamongst\t them,\trepresent  a
\nwell-knit and complete scheme regulating the appointments at
\nthe  apex  level  of District  Judiciary,  namely,  District
\nJudges\ton  the\t one  hand and\tSubordinate  Judges  at\t the
\ngrass-root  level  of Judiciary subordinate to the  district
\ncourt.\t Thus Subordinate Judiciary represents a pyramidical
\nstructure.   At\t base level i.e.  grass- root level are\t the
\nMunsiffs  and  Magistrates whose recruitment is governed  by
\nArticle 234.  That is the first level of the Judiciary.\t The
\nsecond\tlevel represents already recruited judicial officers
\nat grass-root level, whose working is controlled by the High
\nCourt  under  Article  235 first part.\tAt the top  of\tthis
\npyramid are the posts of District Judges.  Their recruitment
\nto  these posts is governed by Article 233.  It is the third
\nand the apex level of Subordinate Judiciary.  It has also to
\nbe  kept  in view that neither Article 233 nor\tArticle\t 234
\ncontains  any provision of being subject to any enactment by
\nappropriate Legislature as we find in Articles 98, 146, 148,
\n187,  229(2)  and  324(5).  These  latter  Articles  contain
\nprovisions  regarding the rule making power of the concerned
\nauthorities subject to the provisions of the law made by the
\nParliament   or\t  Legislature.\t  Such\t  a   provision\t  is
\nconspicuously  absent  in  Articles  233   and\t234  of\t the
\nConstitution  of  India.  Therefore, it is not\tpossible  to
\nagree  with  the  contention  of  learned  counsel  for\t the
\nappellant-State\t that these Articles only deal with the rule
\nmaking\tpower  of  the\tGovernor,   but\t do  not  touch\t the
\nlegislative  power of the competent Legislature.  It has  to
\nbe  kept  in  view  that once the  Constitution\t provides  a
\ncomplete  Code for regulating recruitment and appointment to
\nDistrict  Judiciary  and to Subordinate Judiciary,  it\tgets
\ninsulated from the interference of any other outside agency.
\nWe  have to keep in view the scheme of the Constitution\t and
\nits  basic framework that the Executive has to be  separated
\nfrom the Judiciary.  Hence, the general sweep of Article 309
\nhas  to\t be  read subject to this  complete  Code  regarding
\nappointment of District Judges and Judges in the Subordinate
\nJudiciary.  In this connection, we have also to keep in view
\nArticle\t 245 which, in its express terms, is made subject to
\nother  provisions of the Constitution which would  OBinclude
\nArticles  233 and 234.\tConsequently, as these twin Articles
\ncover the entire field regarding recruitment and appointment
\nof  District Judges and Judges of the Subordinate  Judiciary
\nat  base level pro tanto the otherwise paramount legislative
\npower  of  the\tState Legislature to operate on\t this  field
\nclearly\t gets excluded by the Constitutional scheme  itself.
\nThus  both Articles 309 and 245 will have to be read subject
\nto  Articles 233 and 234 as provided in the former  Articles
\nthemselves.   It  is  true, as submitted by  learned  senior
\ncounsel\t Shri  Dwivedi\tfor the appellant-State\t that  under
\nArticle\t  16(4)\t the  State  is\t  enabled  to  provide\t for
\nreservations  in Services.  But so far as Judicial Service
\nis  concerned, such reservation can be made by the Governor,
\nin exercise of his rule making power only after consultation
\nwith  the  High\t Court.\t  The  enactment  of  any  statutory
\nprovision  dehors  consultation\t with  the  High  Court\t for
\nregulating  the\t recruitment  to District Judiciary  and  to
\nSubordinate  Judiciary\twill clearly fly in the face of\t the
\ncomplete   scheme   of\trecruitment   and   appointment\t  to
\nSubordinate  Judiciary and the exclusive field earmarked  in
\nconnection  with such appointments by Articles 233 and\t234.
\nIt  is\tnot as if that the High Courts being  constitutional
\nfunctionaries  may be oblivious of the need for a scheme  of
\nreservation  if necessary in appropriate cases by  resorting
\nto  the\t enabling provision under Article 16(4).   The\tHigh
\nCourts\tcan  get  consulted  by\t the  Governor\tfor  framing
\nappropriate   rules  regarding\t reservation  for  governing
\nrecruitment  under Articles 233 and 234.  But so long as  it
\nis  not done, the Legislature cannot, by an indirect method,
\ncompletely  bypassing  the  High Court\tand  exercising\t its
\nlegislative power, circumvent and cut across the very scheme
\nof  recruitment\t and  appointment to District  Judiciary  as
\nenvisaged  by  the  makers  of the  Constitution.   Such  an
\nexercise,   apart  from\t being\t totally  forbidden  by\t the
\nConstitutional\tscheme,\t will also fall foul on the  concept
\nrelating  to separation of powers between the  legislature,
\nthe  executive and the judiciary as well as the fundamental
\nconcept\t of an independent judiciary.  Both these concepts
\nare  now  elevated  to the level of basic structure  of\t the
\nConstitution  and  are the very heart of the  Constitutional
\nscheme.\t  In  the case of His Holiness\tKesavananda  Bharati
\nSripadagalvaru vs.  State of Kerala & Anr.<\/a>  etc.etc., (1973)
\n4  SCC 225, a twelve-member Constitution Bench of this Court
\nhad  occasion to consider this question regarding the  basic
\nstructure of the Constitution which, according to the Court,
\ncould  not be tinkered with by the Parliament in exercise of
\nits  amending  power under Article 368 of the  Constitution.
\nSikri, CJ., in para 247 of the Report referred with approval
\nthe  decision  of the Judicial Committee in Liyanges  case,
\n(1967)\t1 AC 259 for culling out the implied limitations  on
\nthe  amending  power of the competent Legislature  like\t the
\nParliament  of\tCeylon with which that case  was  concerned.
\nThe  relevant observations are found in paras 253 to 255  of
\nthe  Report  at\t pages 357 and 358, which read\tas  under  :\n<\/p>\n
253.   The case, however, furnishes another instance  where
\nimplied\t limitations were inferred.  After referring to\t the
\nprovisions  dealing  with judicature and the  Judges,  the
\nBoard observed:\n<\/p>\n
      These  provisions manifest an intention to secure\t in
\nthe  judiciary\ta  freedom from political,  legislative\t and
\nexecutive  control.   They  are\t  wholly  appropriate  in  a
\nConstitution  which  intends  that judicial power  shall  be
\nvested\tonly in the judicature.\t They would be inappropriate
\nin  a  Constitution by which it was intended  that  judicial
\npower  should be shared by the executive or the legislature.
\nThe  Constitutions  silence as to the vesting  of  judicial
\npower  is  consistent with its remaining, where it had\tlain
\nfor more than a century, in the hands of the judicature.  It
\nis  not\t consistent  with any intention that  henceforth  it
\nshould\tpass  to  or  be shared by,  the  executive  or\t the
\nlegislature.\n<\/p>\n
      254.   The  Judicial  Committee was of the  view\tthat
\nthere exists a separate power in the judicature which under
\nthe Constitution as it stands cannot be usurped or infringed
\nby   the  executive  or\t  the  legislature.   The  Judicial
\nCommittee cut down the plain words of Section 29(1) thus:\n<\/p>\n
      Section  29(1) of the Constitution says.- Subject to
\nthe  provisions of this Order Parliament shall have power to
\nmake  laws  for the peace, order and good government of\t the
\nIsland. These words have habitually been construed in their
\nfullest\t scope.\t Section 29(4) provides that Parliament\t may
\namend  the  Constitution  on a two-thirds  majority  with  a
\ncertificate  of the Speaker.  Their Lordships however cannot
\nread  the words of Section 29(1) as entitling Parliament  to
\npass  legislation  which  usurps the judicial power  of\t the
\nJudicature-e.g., by passing an Act of attainder against some
\nperson\tor  instructing\t a judge to bring in  a\t verdict  of
\nguilty\tagainst\t someone who is being tried-if in  law\tsuch
\nusurpation would otherwise be contrary to the Constitution.
\n(p.289)<\/p>\n
      255.   In conclusion the Judicial Committee held\tthat
\nthere  was interference with the functions of the  judiciary
\nand  it\t was not only the likely but the intended effect  of
\nthe  impugned  enactments,  and\t that  was  fatal  to  their
\nvalidity.\n<\/p>\n
      The  ultimate conclusion to which Chief Justice  Sikri
\nreached\t are  found in paras 292 to 294 at page 366  of\t the
\nReport\t which\tread  as  under\t  :   292.    The   learned
\nAttorney-General   said\t  that\tevery\tprovision   of\t the
\nConstitution is essential;  otherwise it would not have been
\nput  in the Constitution.  This is true.  But this does\t not
\nplace  every  provision\t of  the Constitution  in  the\tsame
\nposition.   The true position is that every provision of the
\nConstitution can be amended provided in the result the basic
\nfoundation  and\t structure of the constitution\tremains\t the
\nsame.\tThe  basic structure may be said to consist  of\t the
\nfollowing features:\n<\/p>\n
      (1) Supremacy of the Constitution;  (2) Republican and
\nDemocratic form of Government;\t(3) Secular character of the
\nConstitution;\t (4)  Separation  of   powers  between\t the
\nlegislature,  the executive and the judiciary;\t(5)  Federal
\ncharacter of the Constitution.\n<\/p>\n
      293.   The  above\t structure  is built  on  the  basic
\nfoundation, i.e., the dignity and freedom of the individual.
\nThis  is of supreme importance.\t This cannot by any form  of
\namendment be destroyed.\n<\/p>\n
      294.   The  above\t foundation   and  the\tabove  basic
\nfeatures  are easily discernible not only from the  preamble
\nbut  the  whole\t scheme of the Constitution,  which  I\thave
\nalready discussed.\n<\/p>\n
      The other learned Judges constituting the Constitution
\nBench  had  nothing inconsistent to say in this\t connection.
\nThus  separation  of  powers between  the  legislature,\t the
\nexecutive  and\tthe  judiciary is the basic feature  of\t the
\nConstitution.\tIt has also to be kept in view that judicial
\nindependence  is the very essence and basic structure of the
\nConstitution.\tWe  may\t also usefully refer to\t the  latest
\ndecision  of  the  Constitution\t Bench\t of  this  Court  in
\nRegistrar  (Admn.), High Court of Orissa, Cuttack etc.\t vs.
\nSisir  Kanta Satapathy (Dead) by LRs & Anr.  etc., (1999)  7
\nSCC  page 725, wherein K.Venkataswami, J., speaking for\t the
\nConstitution   Bench,\tmade\t the   following   pertinent
\nobservations  in the very first two paras regarding Articles
\n233  to 235 of the Constitution of India :  An\tindependent
\njudiciary  is one of the basic features of the\tConstitution
\nof  the Republic.  Indian Constitution has zealously guarded
\nindependence  of  judiciary.  Independence of  judiciary  is
\ndoubtless a basic structure of the Constitution but the said
\nconcept\t of independence has to be confined within the\tfour
\ncorners\t of  the  Constitution\tand  cannot  go\t beyond\t the
\nConstitution.\n<\/p>\n
      The  Constitution Bench in the aforesaid decision also
\nrelied\tupon  the  observations of this Court in  All  India
\nJudges\tAssociation  &\tOrs.etc.  (supra), wherein  on\tthe
\ntopic  of regulating the service conditions of Judiciary  as
\npermitted  by Article 235 read with Article 309, it had been
\nobserved as under :  .the mere fact that Article 309 gives
\npower  to the executive and the legislature to prescribe the
\nservice\t conditions of the judiciary does not mean that\t the
\njudiciary  should  have no say in the matter.  It  would  be
\nagainst\t the spirit of the Constitution to deny any role  to
\nthe judiciary in that behalf, for theoretically it would not
\nbe  impossible for the executive or the legislature to\tturn
\nand twist the tail of the judiciary by using the said power.
\nSuch  a\t consequence  would be against one  of\tthe  seminal
\nmandates  of  the  Constitution,  namely,  to  maintain\t the
\nindependence of the judiciary.\n<\/p>\n
      In  view\tof this settled legal  position,  therefore,
\neven  while operating in the permissible field of regulating
\nother  conditions  of service of already recruited  judicial
\nofficers   by  exercising  power   under  Article  309,\t the
\nconcerned  authorities\thave to keep in view the opinion  of
\nthe High Court of the concerned State and the same cannot be
\nwhisked\t away.\t In  order to fructify\tthis  Constitutional
\nintention  of  preserving the independence of Judiciary\t and
\nfor  fructifying  this\tbasic requirement,  the\t process  of
\nrecruitment  and appointment to the District Judiciary\twith
\nwhich  we  are concerned in the present case,  is  insulated
\nfrom  outside legislative interference by the Constitutional
\nmakers by enacting a complete Code for that purpose, as laid
\ndown  by  Articles 233 and 234.\t Consultation with the\tHigh
\nCourt  is, therefore, an inevitable essential feature of the
\nexercise  contemplated\tunder  these two Articles.   If\t any
\noutside\t independent  interference  was envisaged  by  them,
\nnothing\t prevented the founding fathers from making Articles
\n233 and 234 subject to the law enacted by the Legislature of
\nStates\tor  Parliament\tas  was done in the  case  of  other
\nArticles,  as seen earlier.  In the case of State of  Kerala
\nvs.   Smt.A.Lakshmikutty  &  Ors.,<\/a> (1986) 4 SCC 632,  a\t two
\nmember Bench of this Court, speaking through Sen,J., placing
\nreliance on the Constitution Bench judgment of this Court in
\nChandra\t Mohan vs.  State of U.P., (1967) 1 SCR 77, made the
\nfollowing  pertinent observations in paras 22 to 25 at pages
\n647-648,  which\t read  as under :  22.\tThe  heart  of\tthe
\nmatter\tis that consultation between the State\tGovernment
\nand  the High Court in the matter of appointment of District
\nJudges\tunder  Article\t233(1) of the Constitution  must  be
\nreal,\tfull  and  effective.\tTo  make  the\tconsultation
\neffective,  there has to be an interchange of views  between
\nthe  High  Court  and  the State  Government,  so  that\t any
\ndeparture  from\t the  advice  of the  High  Court  would  be
\nexplained to the High Court by the State Government.  If the
\nState  Government  were\t simply to give lip service  to\t the
\nprinciple  of consultation and depart from the advice of the
\nHigh Court in making judicial appointments without referring
\nback  to  the High Court the difficulties which prevent\t the
\ngovernment from accepting its advice, the consultation would
\nnot  be\t effective  and\t any appointment of a  person  as  a
\nDistrict  Judge\t by  direct recruitment from the bar  or  by
\npromotion  from\t the judicial services under Article  233(1)
\nwould  be  invalid.   Unless the State\tGovernment  were  to
\nconvey\tto the High Court the difficulties which prevent the
\ngovernment  from accepting its advice by referring back\t the
\nmatter the consultation would not be effective.\n<\/p>\n
      23.   Indubitably, the power of appointment of persons
\nto be District Judges conferred on the Governor, meaning the
\nState  Government, under Article 233(1) in consultation with
\nthe  High  Court  is  an executive function.   It  has\tbeen
\nsettled\t by a long line of decisions of this Court  starting
\nfrom Chandra Mohan v.  State of U.P.  to M.M.Gupta v.  State
\nof  J  &  K<\/a> that the power of the State\t Government  is\t not
\nabsolute  and  unfettered but is hedged in with\t conditions.
\nThe  exercise  of  the power of the Governor  under  Article
\n233(1)\tin  the matter of appointment of District Judges  is
\nconditioned  by consultation with the exercise of the  power
\nthat  the  power can only be exercised in consultation\twith
\nthe High Court.\n<\/p>\n
      24.  Appointment of persons to be, and the posting and
\npromotion of, District Judges in any State, shall be made by
\nthe   Governor\tof  the\t State\t under\tArticle\t 233(1)\t  in
\nconsultation  with the High Court exercising jurisdiction in
\nrelation  to  such State.  Sub-Article (2) thereof  provides
\nthat  a person not already in the service of the Union or of
\nthe  State  shall  only\t be eligible to be  appointed  as  a
\nDistrict  Judge if he has been for not less than seven years
\nan  advocate  or  a pleader and is recommended by  the\tHigh
\nCourt  for  appointment.   It  is  therefore  obvious\tthat
\neligibility  of appointment of persons to be District Judges
\nby  direct  recruitment from amongst the members of the\t bar
\ndepends\t entirely  on the recommendation of the High  Court.
\nThe State Government has no power to appoint any person as a
\nDistrict  Judge except from the panel of names forwarded  by
\nthe  High  Court.   As stated, the decisions  starting\tfrom
\nChandra\t Mohan\tv.   State  of U.P.   have  established\t the
\nprinciple  as  a rule of law, that consultation between\t the
\nGovernor  and the High Court in the matter of appointment of
\nDistrict  Judges  under\t Article 233(1) must  not  be  empty
\nformality but real, full and effective.\n<\/p>\n
      25.   In\tChandra Mohan v.  State of U.P.\t Subba\tRao,
\nC.J.   speaking\t for  a\t unanimous  court  observed  :\t The
\nexercise  of  the  power of appointment by the\tGovernor  is
\nconditioned by his consultation with the High Court, that is
\nto say, he can only appoint a person to the post of District
\nJudge  in  consultation with the High Court.  The object  of
\nconsultation  is  apparent.  The High Court is\texpected  to
\nknow  better than the Governor in regard to the\t suitability
\nor  otherwise of a person, belonging either to the Judicial
\nService or to the bar, to be appointed as a District Judge.
\nTherefore,  a  duty is enjoined on the Governor to make\t the
\nappointment  in\t consultation  with  a\tbody  which  is\t the
\nappropriate   authority\t to  give   advice   to\t  him.These
\nprovisions  indicate  that  the\t duty\tto  consult  is\t  so
\nintegrated with the exercise of the power that the power can
\nbe exercised only in consultation with the person or persons
\ndesignated therein.\n<\/p>\n
      To   the\t same\teffect\t  are\tthe   decisions\t  in
\nChandramouleshwar  Prasad v.  Patna High Court,<\/a> (1969) 3 SCC
\n56,  High Court of P & H v.  State of Haryana, (1975) 1\t SCC
\n843,  A.Panduranga Rao v.  State of A.P., (1975) 4 SCC\t709,
\nand M.M.  Gupta v.  State of J & K,<\/a> (1982) 3 SCC 412.\n<\/p>\n
      It  becomes, therefore, obvious that no recruitment to
\nthe  post  of a District Judge can be made by  the  Governor
\nwithout\t recommendation\t from  the High\t Court.\t  Similarly,
\nappointments  to  Subordinate Judiciary at grass-root  level
\nalso  cannot  be  made\tby  the\t Governor  save\t and  except
\naccording  to  the rules framed by him in consultation\twith
\nthe  High  Court  and the Public  Service  Commission.\t Any
\nstatutory  provision  bypassing consultation with  the\tHigh
\nCourt  and  laying down a statutory fiat as is tried  to  be
\ndone  by enactment of Section 4 by the Bihar Legislature has
\ngot  to\t be held to be in direct conflict with the  complete
\nCode  regarding recruitment and appointment to the posts  of
\nDistrict  Judiciary  and Subordinate Judiciary as  permitted
\nand  envisaged by Articles 233 and 234 of the  Constitution.
\nImpugned Section 4, therefore, cannot operate in the clearly
\nearmarked  and forbidden field for the State Legislature  so
\nfar  as\t the topic of recruitment to District Judiciary\t and
\nSubordinate  Judiciary\tis concerned.  That field is  carved
\nout and taken out from the operation of the general sweep of
\nArticle\t 309.\tIt  is, of course, true as laid\t down  by  a
\ncatena\t of  decisions\tof  this   Court,  that\t topics\t  of
\nconstitution  of  courts and services, laying down of  rules
\nregarding  the\tconditions  of\t service  other\t than  those
\nexpressly  placed within the jurisdiction of the High  Court
\nby Articles 233 and 235, providing for age of superannuation
\nor  other  retirement benefits to judicial officers,  fixing
\npay  scales,  diversification  of cadres may  form  part  of
\ngeneral\t recruitment  and  conditions  of  services  falling
\nwithin\tthe  spheres of Governors rule making  power  under
\nArticle 309 read with second part of Article 235 or may even
\nbe   made  subject  matter  of\tlegislation   by   competent
\nLegislature  in\t exercise  of its legislative  powers  under
\nentry 41 of List II or for that matter entry 11A of List III
\nof the Seventh Schedule.  But save and except this permitted
\nfield, the State Legislature cannot enter upon the forbidden
\nfield  expressly  reserved  for consultation with  the\tHigh
\nCourt  by  the thrust of Articles 233 and 234 so far as\t the
\ninitial\t entry\tpoint of recruitment to judicial service  at
\ngrass  root  level  or\tat the apex level  of  the  District
\nJudiciary  is concerned.  A three-Judge Bench of this  Court
\nin the case of A.Panduranga Rao vs.  State of Andhra Pradesh
\n&  Ors.,  AIR<\/a> 1975 SC 1922, speaking through  Untwalia,\t J.,
\nconsidered  the question whether any one can be appointed by
\nthe  Governor as a District Judge without being\t recommended
\nby  the\t High  Court.\tRelying on  the\t Constitution  Bench
\ndecision  of  this Court in Chandra Mohans case (supra)\t in
\npara  7\t of  the Report, observations were made as  under  :
\nThere  are two sources of recruitment, namely, (i)  service
\nof the Union or the State, and (ii) members of the Bar.\t The
\nsaid  Judges  from  the\t first\t source\t are  appointed\t  in
\nconsultation  with the High Court and those from the  second
\nsource\tare  appointed\ton the recommendation  of  the\tHigh
\nCourt.\n<\/p>\n
      And  thereafter following pertinent observations\twere
\nmade  in  para\t8, which read as under :  A  candidate\tfor
\ndirect recruitment from the Bar does not become eligible for
\nappointment  without  the recommendation of the High  Court.
\nHe becomes eligible only on such recommendation under clause
\n(2)  of\t Article 233.  The High Court in the judgment  under
\nappeal\tfelt some difficulty in appreciating the meaning  of
\nthe  word  recommended.\t But the literal meaning given\tin
\nthe  Concise Oxford Dictionary is quite simple and apposite.
\nIt  means  suggest  as\tfit for employment.   In  case\tof
\nappointment from the Bar it is not open to the Government to
\nchoose a candidate for appointment until and unless his name
\nis recommended by the High Court.\n<\/p>\n
      It  is, therefore, obvious that the State\t Legislature
\nhas  no\t role  to  play while  controlling  appointments  of
\nDistrict  Judges  under Article 233 or appointment of  Civil
\nJudges\tto  Subordinate Judiciary at grass-root level  under
\nthe  District  Judiciary and it is only the Governor who  is
\nentrusted with the said task which he has to undertake after
\nconsultation  with the High Court and by framing appropriate
\nrules  for  recruitment to Judiciary at grass-root level  as
\nenjoined  by Article 234 and can only act on  recommendation
\nby  the\t High Court for direct recruitment from the Bar\t for
\nbeing  appointed as District Judges as laid down by  Article
\n233  sub-article  (2).\t There is no third method  or  third
\nauthority which can intervene in the process or can have its
\nsay,  whether legislative authority or executive  authority,
\nas  the case may be, independently of the complete scheme of
\nsuch recruitment as envisaged by the aforesaid two Articles.
\nIt  is, therefore, difficult to appreciate the contention of
\nlearned\t  senior  counsel  for\t the  appellant-State\tthat
\nparamount  legislative power of the State Legislature stands
\nuntouched by the scheme of the aforesaid two Articles of the
\nConstitution.\tShri Dwivedi, learned senior counsel for the
\nappellant-State\t was  right when he contended  that  Article
\n16(4)  is an enabling provision permitting the State to\t lay
\ndown a scheme of reservation in State Services.\t It may also
\nbe true that Judicial Service can also be considered to be a
\npart  of such Service as laid down by this Court in the case
\nof  B.S.Yadav  & Ors.etc.  (supra).  However, so far as\t the
\nquestion  of  exercising that enabling power  under  Article
\n16(4)  for laying down an appropriate scheme of\t reservation
\ngoes,  as  seen earlier, we cannot be oblivious of the\tfact
\nthat   the  High  Court,   being  the  high   Constitutional
\nfunctionary,  would also be alive to its social\t obligations
\nand  the  Constitutional  guideline  for  having  scheme  of
\nreservation  to\t ameliorate  the lot  of  deprived  reserved
\ncategories  like the SC, ST and Other Backward Classes.\t But
\nfor that purpose, the Governor can, in consultation with the
\nHigh  Court, make appropriate rules and provide for a scheme
\nof  reservation for appointments at grass-root level or even
\nat  the highest level of the District Judiciary, but so long
\nas  this  is  not  done, the State  Legislature\t cannot,  by
\nupsetting  the\tentire apple-cart and totally bypassing\t the
\nConstitutional\tmandate of Articles 233 and 234 and  without
\nbeing  required\t to  consult  the High\tCourt,\tlay  down  a
\nstatutory  scheme  of reservation as a road roller  straight
\njacket\tformula\t uniformly  governing  all  State  Services,
\nincluding  Judiciary.  It is easy to visualise that the High
\nCourt  may,  on\t being properly and  effectively  consulted,
\nendorse\t  the\tGovernors  view\t to  enact   provision\t of
\nreservation  and  lay down the percentage of reservation  in
\nJudicial  Service,  for\t which it will\tbe  the\t appropriate
\nauthority  to  suggest\tappropriate  measures  and  required
\npercentage  of\treservation, keeping in view the  thrust  of
\nArticle 335 which requires the consideration of the claim of
\nmembers\t of SC, ST and OBC for reservation in Services to be
\nconsistent   with   the\t maintenance\tof   efficiency\t  of
\nadministration.\t   It  is  obvious   that   maintenance\t  of
\nefficiency of judicial administration is entirely within the
\ncontrol\t and jurisdiction of the High Court as laid down  by
\nArticle\t 235.\tThe  State Legislature, on  its\t own,  would
\nobviously  lack\t the  expertise and the knowledge  based  on
\nexperience  of judicial administration which is possessed by
\nthe  High Court.  Consequently, bypassing the High Court, it
\ncannot,\t in  exercise of its supposed paramount\t legislative
\npower  enact any rule of thumb and provide fixed  percentage
\nof  reservation\t for  SC, ST and Other Backward\t Classes  in
\nJudicial Services and also lay down detailed procedure to be
\nfollowed  as laid down by sub-sections (3) to (6) of Section
\n4  for effecting such statutorily fixed 50% reservation.  It
\nis easy to visualise that if the High Court is not consulted
\nand  obviously cannot be consulted while enacting any law by
\nthe  State  Legislature\t and  en  bloc\t50%  reservation  is
\nprovided  in the Judicial Service as is sought to be done by
\nSection\t 4 of the Act and which would automatically  operate
\nand  would  present the High Court with a fait accompli,  it
\nwould  be  deprived  of\t the right  to\tsuggest\t during\t the
\nConstitutionally  guaranteed consultative process, by way of
\nits  own  expertise  that for maintenance of  efficiency  of
\nadministration\tin  Judicial Service controlled by  it,\t 50%
\nreservation   may  not\tbe   required,\tand\/or\teven  lesser
\npercentage  may\t be required or even may not be required  at
\nall.   Even  that opportunity will not be available  to\t the
\nHigh  Court  if\t it is held that the State  Legislature\t can
\nenact  the  law\t of reservation and  make  it  automatically
\napplicable  to\tJudicial  Service bypassing the\t High  Court
\ncompletely.   Such an exercise vehemently canvassed for\t our
\napproval  by learned senior counsel for the appellant- State
\ncannot\tbe  countenanced  on  the   express  scheme  of\t the
\nConstitution,  as discussed by us earlier.  Even  proceeding
\non  the\t basis\tthat the scheme of Article 16(1)  read\twith
\nArticle\t 16(4)\tmay be treated to be forming a part  of\t the
\nbasic  feature of the Constitution, it has to be appreciated
\nthat  for  fructifying such a Constitutional scheme  Article
\n335 has to be kept in view by the authority concerned before
\nsuch  a\t scheme\t of reservation can  be\t promulgated.\tOnce
\nArticle\t 335  has to be given its full play  while  enacting
\nsuch a scheme of reservation, the High Court, entrusted with
\nthe full control of Subordinate Judiciary as per Article 235
\nby  the Constitution, has got to be consulted and cannot  be
\ntreated\t to be a stranger to the said exercise as  envisaged
\nby the impugned statutory provision.\n<\/p>\n
      We  may now refer to one submission of learned  senior
\ncounsel\t Shri Dwivedi for the appellant-State.\tHe contended
\nthat there cannot be any dispute reOBgarding appointments to
\navailable  vacancies in the cadre of District Judiciary\t and
\nthat they can be filled in only on the recommendation of the
\nHigh Court and equally there cannot be any dispute regarding
\nfilling\t up of all vacancies in the Subordinate Judiciary as
\nper  Article 234.  They can be filled in by the Governor  as
\nper rules framed in consultation with the High Court and the
\nPublic\tService\t Commission.  But so far as  reservation  of
\nvacancies to be filled in by reserved category of candidates
\nis  concerned, it is an exercise which is resorted to by the
\nState  authorities  in\tdischarge of their  enabling  powers
\nunder  Article\t16(4).\t That  is a stage  anterior  to\t the
\nquestion   of  recruitment  or\t appointment  on   available
\nvacancies in the cadre of District Judiciary or in the cadre
\nof  Subordinate\t Judiciary.  Consequently, such an  exercise
\ninvoked by any administrative order or, even by legislation,
\ncannot\tbe  said  to be conflicting in any manner  with\t the
\nprocedure  of  recruitment  and\t  appointment  to   District
\nJudiciary  and Subordinate Judiciary as per Articles 233 and
\n234 of the Constitution.  This argument, as submitted, looks
\nattractive but on closer scrutiny falls through, as we shall
\nsee  presently.\t It is not in dispute and cannot be disputed
\nthat  creation\tof cadres and creation of posts in  a  cadre
\ncomprised  in Judicial Service of the State can be  resorted
\nto  by\tthe  Governor in exercise of his rule  making  power
\nunder  Article\t309  or for that matter by  any\t appropriate
\nLegislation  by\t the State authorities under the  very\tsame
\nArticle.   But once cadre of District Judges and Subordinate
\nJudiciary  are constituted by the aforesaid authorities\t and
\nposts backed up by suitable budgetary provisions are created
\nand  are  accordingly made available to be filled in in\t the
\nconcerned  cadres, process of creation of posts comes to  an
\nend.   Thereafter  when\t in the created posts borne  on\t any
\njudicial  cadre,  whether at the District Court level or  at
\nthe   Subordinate  Court  level,   any\tvacancies  arise  by
\nretirement  or otherwise non-availability of the  incumbents
\ndue  to\t any other reason, question of filling up  of  those
\navailable  vacancies would arise.  Such available  vacancies
\nof  sanctioned\tposts  have  to\t be  filled  in\t only  after
\nfollowing the procedure laid down by Articles 233 and 234 of
\nthe  Constitution  of India and cannot be subjected  to\t any
\nother  procedure.   At that stage, directing the High  Court
\nwithout\t its  consent  and consultation and  merely  by\t the
\nthrust\tof  legislative provision that 50% of the  available
\nvacancies  in the cadre of District Judges or Judges of\t the
\nSubordinate  Judiciary\tmust  be  filled  in  from  reserved
\ncandidates  only would ex-facie cut across the power of\t the
\nHigh  Court which alone can recommend the filling up of\t all
\nsuch  vacancies in the district cadre as per Article 233 and
\nequally\t the  power  of the High Court to  render  effective
\nconsultation  to  the  Governor under Article  234  when  he
\nframes rules for recruitment of candidates for filling up of
\nall  available vacancies in the Subordinate Judiciary  under
\nthe  district court as per Article 234.\t It is difficult  to
\nappreciate  how\t filling  up  of vacancies  in\tthe  already
\nsanctioned  posts  in these cadres will remain\tan  exercise
\nanterior  to the procedure laid down by the Constitution for
\nfilling\t up of these vacancies as per Articles 233 and\t234,
\nas  the case may be.  In any case, impugned Section 4 of the
\nAct,  by its express wordings, does not contemplate any such
\nstage  anterior\t to filling up of vacancies in the  existing
\nposts.\t On the contrary, it provides that all\tappointments
\nto  Services  and Posts in an establishment which are to  be
\nfilled\tin  by direct recruitment shall be regulated in\t the
\nmanner\tlaid  down  therein.  Meaning thereby,\t50%  of\t the
\nappointments  to  such available posts have to be done\tfrom
\nreserved  category candidates as per percentage provided for
\neach  of  such classes.\t That necessarily means that 50%  of
\nthe  existing  vacancies  in  the  available  posts  in\t the
\nServices  have\tto  be\tfilled\tin  from  reserved  category
\ncandidates only.  This mandate of Section 4, therefore, gets
\ndirectly  hit  by the scheme of the complete Code  for\tsuch
\ndirect\trecruitment to the Judicial Services in the district
\ncadre or subordinate cadre, as envisaged by Articles 233 and
\n234 of the Constitution of India.\n<\/p>\n
      We  may  take an example to highlight  this  position.
\nSupposing  there  are 10 vacancies of District Judges  at  a
\ngiven  point of time in the State, which are available to be
\nfilled in by direct recruitment keeping in view the ratio of
\nsuch  direct  recruitment  permissible\tunder  the  relevant
\nrules.\t Once  these  10 vacancies of  District\t Judges\t are
\nrequired  to  be  filled  in by direct\trecruitment  on\t the
\nrecommendation of the High Court from the members of the Bar
\nsubject\t to the minimum eligibility laid down under  Article
\n233  sub-article  (2),\tthe  High  Court  obviously  has  to
\nundertake  the exercise of selection of eligible  candidates
\non  its own.  The Governor, in such a case, shall have\tonly
\nto  pass consequential orders of appointment from the  panel
\nas   recommended   by\tthe  High   Court.    If   no\tsuch
\nrecommendations\t are forthcoming, the Governor will have  no
\njurisdiction  or  power\t to  make any  such  appointment  as
\nclearly\t mandated by Article 233 sub-article (2).  Once\t the
\nHigh  Court undertakes such an exercise and prepares a panel
\nof  eligible and suitable direct recruits from the Bar after
\nholding\t appropriate  tests whether written or oral  as\t the
\nrelevant  procedural  rules  may provide, it  will,  in\t the
\nserial\torder  of  inter  se merit prepare  a  panel  of  10
\ncandidates  and recommend them for appointment and the panel
\nmay  be sent for passing appropriate orders.  If that is so,
\nall  the  10 vacancies have to be filled in in the light  of
\nthe  panel  prepared by the High Court, keeping in view\t the
\nnames  of candidates listed in the panel as per the rankings
\nmade  by  the  High Court in the order of  their  respective
\nmerits.\t  Therefore, the High Court will prepare a panel  of
\n10 recommendees for appointment to first 10 vacancies in the
\nserial\torder of their ranking as per merit and suitability.
\nThis  is the Constitutional mandate of that Article.  Now if
\nit  is\tvisualised  that  the\tState  Legislature,  by\t  an
\nindependent  enactment, as in the present case, requires the
\nHigh  Court  to\t treat only the first five vacancies  to  be
\nfilled in by direct recruitment from general category in the
\norder of merit and the remaining five vacancies are required
\nto  be\tfilled in from reserved category of candidates\tonly
\nand  even if those reserved five vacancies can be filled  in
\nby  appointing\treserved category of candidates as  per\t the
\norder  of  their  inter se merit, even then  the  thrust  of
\nSection\t 4,  to\t that extent, will certainly cut  across  or
\nrestrict  the  power  and  authority of the  High  Court  to
\nrecommend  appointments to all the ten vacancies of suitable
\nmeritorious  candidates as found by it.\t The result would be
\nthat  first  five  vacancies  may  go  to  the\tfirst\tfive
\ncandidates  recommended in the panel according to merit\t but
\nso  far as the vacancy nos.6 to 10 are concerned even though
\nthe  6th  direct  recruit recommended by the High  Court  is
\nobviously  more meritorious than the candidate listed in the
\npanel  at  serial  no.7, he may have to be bypassed  if\t the
\ncandidate  at  serial no.6 in the panel belongs\t to  general
\ncategory while candidate no.7 belongs to SC category namely,
\nreserved  category.  The net result would be that though the
\nHigh Court, in exercise of its Constitutional obligation and
\nauthority,  recommends the 6th vacancy in the District Judge
\ncadre to be filled up by candidate no.6 listed in the panel,
\nby  thrust of impugned Section 4 of the Act, the 6th vacancy
\ncan  be\t filled in by the Governor by  appointing  candidate
\nno.7  who is less meritorious as compared to candidate\tno.6
\nand  who  is  not recommended by the High  Court  for  being
\nappointed  in  vacancy no.6.  Thus, he will be\tbypassed  by
\ncandidate no.7 who may belong to the SC category and who may
\nbe  standing higher in so far as inter se merit between\t the
\nSC  candidates only are concerned.  Supposing at serial no.9
\nthere is another SC candidate then vis-\u00e0-vis candidate nos.7
\nand  9,\t who both belong to SC category, this  6th  vacancy,
\nbecause\t of  the  thrust of Section 4 can be  filled  up  by
\ncandidate no.7.\t The submission of Shri Dwivedi that between
\ntwo  SC\t candidates  or\t candidates belonging  to  the\tsame
\nreserved  category  it\twill be open to the  High  Court  to
\nrecommend  appointment of more meritorious reserved category
\ncandidate  as compared to the candidate of the same category
\nwho  is less meritorious and this exercise would satisfy the
\nrequirement  of\t Article 233 sub-article (2) only gives\t lip
\nservice\t to that Article.  The reason is obvious.  The\tHigh
\nCourts\tpower  and  in fact  Constitutional  obligation\t to
\nrecommend  meritorious\tcandidates found suitable by it\t for
\nfilling\t up of all vacant posts will obviously get truncated
\nand  restricted\t and the High Court though not\trecommending
\ncandidate  No.7 as suitable candidate for filling up vacancy
\nno.6, will be helpless by not being permitted appointment of
\ncandidate  no.6\t who belongs to general category  to  occupy
\nthat  post  and will have willy-nilly to suffer against\t its
\nown  decision  regarding appointment of candidate  no.7\t who
\nbelongs\t to SC category for filling up vacancy no.6 and this
\nexercise  will\tbe thrust upon the High Court without  being
\nconsulted  in  this connection by the State  Legislature  by
\nenacting   the\t impugned  Section  4  of  the\tAct.\tThis
\nappointment obviously will be null and void and violative of
\nArticle 233 (2).  This type of bypassing the High Court will
\nclearly\t be  an\t act of interference  with  independence  of
\njudiciary  which  is  the  hallmark   and  bedrock  of\t the
\nConstitutional\tscheme.\t Section 4, therefore, has got to be
\nheld  not to be operative on the forbidden field occupied by
\nArticles  233 and 234 of the Constitution of India.  This is
\nobviously  a  type of reservation which is thrust  upon\t the
\nHigh  Court  by\t Section  4.  It cannot\t be  treated  to  be
\nreferable  to a stage anterior to the process of recruitment
\nand  appointment.  In fact, as seen above, Section 4  itself
\ndeals  with  the  reservation\tfor  direct  recruitment  on
\navailable  posts.   Therefore, in the field  of\t recruitment
\nitself\tSection 4 seeks to have its independent sway.\tBoth
\nArticle\t 233  and Article 234 also deal with the  very\tsame
\nquestion   of  recruitment  and\t  appointment  to   District
\nJudiciary.   It\t is  this  very field  wholly  reserved\t for
\noperation of Articles 233 and 234 that is encroached upon by
\nSection\t 4,  by its express language, if made applicable  to
\njudicial  appointments.\t As seen earlier, consultation\twith
\nthe  High Court is a sine qua non in connection with  direct
\nrecruitment  of\t judicial officers at grass-root level\ti.e.
\nMunsiffs  and Magistrates and whose recruitment is  governed
\nby  the rules framed under Article 234 being the 1955 Rules.
\nSimilarly,  recruitment\t at  district\tlevel  judiciary  is
\ngoverned  by  1951 Rules framed under Article 233 read\twith
\nArticle\t 309 of the Constitution of India.  However,  direct
\nrecruitment  as\t District Judges has to be solely  based  on
\nappropriate  recommendations  of suitable candidates by\t the
\nHigh  Court.   In  fact Rule 3 thereof,\t provides  that\t the
\nstrength of the Service and the number and character of the
\nposts shall be as specified in the schedule to these rules,
\nand  once we turn to the Schedule to the 1951 Rules, we find
\nlisted\tfive  cadres of superior judiciary at  the  district
\nlevel  and the total posts sanctioned being 26.\t  Obviously,
\nthis  rule  has\t a direct nexus with Article 309  read\twith
\nArticle\t 233.  But beyond that when the question of  filling
\nup  of vacancies in the cadres of higher District  Judiciary
\non the already sanctioned posts crops up, the field is fully
\noccupied  by Article 233 sub-articles (1) and (2) and  there
\nis no other power with any other Constitutional authority to
\neffect\tsuch recruitment on available vacancies.  It is\t not
\npossible  to  visualise\t that, while  providing\t for  direct
\nrecruitment  to\t District  Judiciary  as  per  Article\t 233
\nsub-article  (2),  even\t though\t  the  minimum\t eligibility
\nqualification laid down under the said provision is that the
\ncandidate  should  have\t been practising for not  less\tthan
\nseven  years  as  an  advocate or  a  pleader,\tany  further
\neligibility as belonging to a reserved category is envisaged
\nfor a given post.  Consequently, it is not possible to agree
\nwith  the contention of learned counsel Shri Dwivedi for the
\nappellant-State that question of recruitment to the cadre of
\nDistrict  Judges  by directing the High Court  to  recommend
\neligible candidates for appointment keeping in view only 50%
\nof  the\t available  vacancies  to be filled  in\t by  general
\ncategory  and by treating the remaining 50% of the vacancies
\nas  reserved  would  be\t a stage anterior to  the  stage  of
\nrecruitment  or\t appointment to such available vacancies  on
\nthe  already  sanctioned  posts\t in the\t cadre\tof  District
\nJudiciary.   At this stage we may also refer to the decision
\nof  a  Constitution Bench of this Court in B.S.Yadavs  case
\n(supra) wherein Chandrachud, CJ had an occasion to interpret
\nArticle\t 235  read with Article 309 proviso.   The  question
\nwhich  arose for consideration in that case was whether\t the
\nrule  of seniority of existing members of Superior  Judicial
\nServices as framed by the Governor in exercise of his powers
\nunder  Article 309 proviso could validly operate to regulate
\nthe  seniority\tof  such  already  recruited  and  appointed
\njudicial  officers  in Subordinate Judiciary.  In  order  to
\navoid  the  operation  of the said rule which was  having  a
\ndirect nexus with conditions of service of already appointed
\njudicial  officers,  a\tcontention  was\t raised\t that  under
\nArticle\t 235 even this subject matter was part and parcel of
\nthe  control  of Subordinate Judiciary vesting in  the\tHigh
\nCourt under that article.  While negativing this contention,
\nthe  Constitution  Bench, speaking through Chandrachud,\t CJ,
\nplaced\treliance  on  the  second part of  Article  235\t and
\nobserved  as  under :  The power of control vested  in\tthe
\nHigh  Court by Art.235 is expressly made subject to the\t law
\nwhich  the  State  Legislature may pass for  regulating\t the
\nrecruitment  and service conditions of judicial officers  of
\nthe  State.  The framers of the Constitution did not  regard
\nthe  power of the State Legislature to pass laws  regulating
\nthe  recruitment  and  conditions  of  service\tof  judicial
\nofficers  as  an  infringement of the  independence  of\t the
\njudiciary.   The  mere\tpowers\tto pass such a\tlaw  is\t not
\nviolative  of the control vested in the High Court over\t the
\nState judiciary.\n<\/p>\n
      Placing  strong reliance on the aforesaid observations
\nit  was\t contended  by\tlearned\t  senior  counsel  for\t the
\nappellant-State\t that  it has been authoritatively ruled  by
\nthe Constitution Bench of this Court that the framers of the
\nConstitution  did  not\tregard\tthe   power  of\t the   State
\nLegislature  to\t pass  laws regulating the  recruitment\t and
\nconditions   of\t  service  of\tjudicial  officers   as\t  an
\ninfringement  of the independence of the judiciary.  Now  it
\nmust be kept in view that these observations are made in the
\nlight  of  second part of Article 235 which expressly  saves
\nlaws  regulating  the  conditions  of  service\tof   already
\nrecruited  judicial  officers and who are functioning  under
\nthe  control of the High Court under Article 235.  Once\t the
\nvery same Article permits the limited field for operation of
\nlaw-makers  or rule-makers under Article 309 for  regulating
\nthe  conditions\t of  services  of  such\t already   appointed
\njudicial  officers  by\tway  of\t enacting  any\t appropriate
\nstatutory  provision either by exercise of rule making power
\nof  the Governor under Article 309 proviso or by appropriate
\nlegislation  under the said Article, it cannot be said\tthat
\nthese observations have laid down even impliedly, that while
\nrecruiting  judicial  officers\teither at  grass-root  level
\nunder Article 234 or at district level under Article 233 any
\nlegislation  can  be enacted by the Legislature or that\t the
\nGovernor  by  independent exercise of his rule making  power
\ncan  make  such a provision.  This question  of\t controlling
\nrecruitment  and  appointment at the entry point  either  at
\ngrass-root level i.e.  level no.1 or at the apex level being
\nlevel  no.3 in the pyramid of District Judiciary never arose
\nfor  consideration  of the Constitution bench and hence\t the
\naforesaid  observations\t cannot\t be  considered\t to  be\t the
\ndecision  rendered  by the Court on this moot point.  It  is
\nalso  easy to visualise that while considering the scope  of
\nplay  of  Article 309 vis-\u00e0-vis second part of\tArticle\t 235
\nwhich  carves  out  a  permissible field by  the  very\tsame
\nArticle\t for law to be made for regulating other permissible
\nconditions  of\tservice\t the  term  recruitment\t has  been
\nemployed  almost by way of mere reference to the language of
\nArticle\t 309  and  nothing more.  If it is  held  that\teven
\nimpliedly  the aforesaid decision of the Constitution  Bench
\nhas taken the view that the appropriate authority, i.e.\t the
\nGovernor,  in  exercise of his delegated legislative  powers
\nunder the Proviso to Article 309 or any State Legislature in
\nexercise  of  its  paramount power under Article  309  first
\npart,  can  control the recruitment of judicial officers  at
\ndistrict  level\t or  at the level of  Subordinate  Judiciary
\nbypassing the High Court, then such an implied thrust of the
\nsaid  observations  must  be held to be totally\t obiter\t and
\nuncalled  for.\t Consequently,\tthe  aforesaid\tdecision  in
\nB.S.Yadavs  case  (supra) must be confined to the facts\t of
\nthat  case  laying down the limited ratio that for  deciding
\nthe rule of seniority of already appointed judicial officers
\nin  District Judiciary or Subordinate Judiciary, appropriate
\nlaw  or\t rules\tcan  be\t framed under  Article\t309  by\t the
\nconcerned  authority  as  permissible under second  part  of
\nArticle 235.  That is the only ratio of that decision and it
\ncannot\ttravel\tany  further.  However, leaving\t aside\tthat
\nquestion,  it  can easily be visualised that  the  aforesaid
\nobservations   in  the\tConstitution   Bench   judgment\t  in
\nB.S.Yadavs case (supra) may, in general sense, refer to the
\nconcept\t of  recruitment  as laid down\tby  proviso  under
\nArticle\t 309 in view of the settled legal position that,  in
\nexercise  of  their  powers  under  the\t said  Article,\t the
\nconcerned   authorities\t can  form   cadres  of\t service  in
\nSubordinate  Judiciary and can also create sanctioned  posts
\nin these cadres.  The said exercise of creation of posts may
\nalso  get  covered by the concept of recruitment.   It\tis
\nonly  in this broad sense that the term recruitment can be
\nsaid to have been mentioned by the Constitution Bench in the
\naforesaid  observations\t but they can certainly not  go\t any
\nfurther\t nor can be treated to have ruled anything  contrary
\nto  the express scheme of Articles 233 and 234.\t This is the
\nadditional  reason  why the aforesaid  general\tobservations
\nhave  to  be  confined\tto the limited scope  and  ambit  of
\nArticle\t 309, as indicated therein.  For all these  reasons,
\ntherefore,  the decision in B.S.Yadavs case (supra)  cannot
\nbe  of\tany  real  assistance to  learned  counsel  for\t the
\nappellant-State.   We  may  now briefly deal with  the\tmain
\ncontentions  canvassed\tby  learned senior counsel  for\t the
\nappellant-State in support of their appeals.  We shall first
\ndeal  with  the contentions canvassed by Dr.Dhavan  for\t the
\nappellant-State.   The\tinterpretation sought to be  put  on
\nArticle\t 309 by Dr.Dhavan, as we have already seen  earlier,
\nis  not\t capable  of having wider coverage so as  to  engulf
\nrecruitment to judicial offices on district cadre as well as
\non  those  below  the district\tcadre.\t The  Constitutional
\nscheme\texamined  and  seen  earlier  contra-indicates\tthis
\ncontention.   So  far as Dr.Dhavans submission that  second
\npart  of  Article 235, despite the full control of  District
\nJudiciary  being vested in the High Court permits  enactment
\nof  suitable provisions under Article 309 also, cannot be of
\nany  real  assistance.\tAs we have already seen\t above,\t the
\nsecond\tpart  of Article 235 deals with the topic  of  other
\nconditions  of\tservice including the right of appeal  which
\nmight  be  guaranteed  to judicial officers  by\t appropriate
\nlegislation  enacted by the authorities acting under Article
\n309  but that is an operation on the limited field permitted
\nby  the\t second part of Article 235 at second level  of\t the
\npyramid\t  of  Subordinate  Judiciary   and   nothing   more.
\nDr.Dhavan  was right when he contended that on the scheme of
\nArticles  233 to 235 it is not as if other legislation is  a
\ntotal  taboo.  However, the said submission ignores the fact
\nthat  it  is the limited field earmarked by second  part  of
\nArticle\t 235 regarding permissible regulation of  conditions
\nof  service  that is reserved for operation of\tArticle\t 309
\nthrough\t its appropriate authorities.  But, save and  except
\nthis  limited  aspect  which is permitted, the rest  of\t the
\ncontrol\t totally  vests in the High Court under Article\t 235
\nfirst  part.   What  is permitted by Article 235  cannot  be
\nconsidered  as a blanket power entrusted to the\t Legislature
\nor  to the Governor under Article 309 by the  Constitutional
\nmakers\tdehors\tthe  complete net of  Constitutional  scheme
\ncontrolling   recruitment   and\t  appointment  to   District
\nJudiciary  and the Subordinate Judiciary under Articles\t 233
\nand  234 of the Constitution of India.\tThese twin  Articles
\nconspicuously  do not envisage even the limited\t independent
\nfield  for  operation  of  Article 309 as  is  permitted  by
\nArticle\t 235 second part.  That shows the clear intention of
\nthe  Constitutional  makers  that  so  far  as\tquestion  of
\nrecruitment  and  appointment to available vacancies in\t the
\ncadre  of  District  Judges and Judges\tof  the\t Subordinate
\nJudiciary  is  concerned,  neither the Legislature  nor\t the
\nGovernor,  dehors any consultation with the High Court,\t can
\nhave any independent say.  We may now deal with the supposed
\nanomalies that may result if the interpretation canvassed by
\nthe  respondent High Court is accepted.\t Dr.Dhavan contended
\nthat, if power of the State Legislature to enact appropriate
\nprovisions  for\t appointment  of   members  of\t Subordinate
\nJudiciary  is  excluded by Article 234, and to\tthat  extent
\nArticle\t 309  is  also to be out of  picture,  then  various
\nanomalous  situations may arise.  He firstly, submitted that
\njudicial  service  as defined by Article 236(b)\t will  get
\ntruncated  in  its operation.  It is not possible  to  agree
\nwith  this  contention\tfor  the   simple  reason  that\t the
\ndefinition  of judicial service only earmarks the  Members
\nof that Service.  How their appointment is to be made has to
\nbe  gathered from Articles 233 and 234.\t If they exclude any
\nstatutory  interference\t by  the   State  Legislature\tsuch
\ninterference would remain excluded by the sweep of these two
\nArticles  themselves.\tThe  second anomaly pointed  out  by
\nDr.Dhavan  is  that  power to legislate must be\t given\tfull
\neffect\tunless there is express exclusion.  Even this cannot
\nbe  said to be an anomaly for the simple reason that Article
\n309  itself is subject to the opening part of the clause and
\nhas  to give way if other Articles of the Constitution cover
\nthe  field.  The complete Code projected by Articles 233 and
\n234  would  itself be an exclusion of the legislative  power
\nand  equally the Governors independent power under  Article
\n309  qua  that field.  Even that apart, Article 245  dealing
\nwith  the  legislative\tpowers of Parliament and  the  State
\nLegislatures  in terms makes the said provisions subject  to
\nother  provisions  of the Constitution.\t Therefore,  on\t the
\nsame  analogy  by  which Article  309  cannot  independently
\noperate\t qua the exclusive field carved out by Articles\t 233
\nand 234, the legislative powers of Parliament as well as the
\nState Legislature would also get excluded.  The next anomaly
\npointed\t out  by Dr.Dhavan was that under the  Constitution,
\nthe  scheme  of separation of powers is devised to  separate
\nthe  Executive from the Judiciary and that this scheme\tdoes
\nnot  extend  to oust the legislative power.  If it  is\theld
\nthat  Article  234  ousts the legislative power\t for  making
\nsuitable  enactment on the topic covered by it, then to that
\nextent,\t it is contended, an anomalous situation would arise
\nnot  contemplated  by  the  Constitutional  scheme.   It  is
\ndifficult  to appreciate this contention.  As per Article 50
\nof the Constitution of India, judicial functioning has to be
\ntreated\t to  be separate from that of the executive  and  to
\nfructify the said Constitutional scheme, Article 309 is made
\nsubject\t to  other  relevant Articles  of  the\tConstitution
\nincluding  Articles 233 and 234.  Thus Articles 233 and\t 234
\nhave  their  full  sway not being inhibited by\tany  outside
\nindependent  interference  to be made by the Governor  under
\nproviso\t to Article 309 or by the State Legislature in\tthat
\nconnection.   Dr.Dhavan\t next contended that on the  express
\nlanguage  of Article 233, only the rule making power of\t the
\nGovernor  is  fettered but not the legislative power of\t the
\nState.\t This submission is mis-conceived as the legislative
\npower  is co-terminus with the Governors rule making power.
\nFor  regulating\t the  conditions of Service  of\t Members  of
\npublic\tservice\t as found in Article 309, as the proviso  to
\nArticle\t 309 itself shows, what the legislature can enact in
\nconnection  with the topic mentioned therein can be done  by
\nthe  Governor  in  exercise of his rule making\tpower  as  a
\nstop-gap  arrangement till the very same field is covered by
\nthe  statutory\tenactment.  Thus the earmarked field is\t the
\nsame,  namely,\tconditions of Service of employees of  State
\nPublic\tService.  Employees of a Public Service are a  genus
\nof  which Members of Judicial Service are a species.  So far
\nas  the\t appointment to Judicial Service is  concerned,\t the
\nsaid  topic is carved out from the general sweep of  Article
\n309  on account of the words in its opening part, read\twith
\nArticles  233 and 234.\tThe Governors rule making power\t in
\nthis  connection is separately dealt with under Article\t 234
\nand  it is the procedure laid down therein which will govern
\nthe  said rule making power of the Governor and cannot\tdraw
\nany  sustenance\t independently from Article 309\t which\tgets
\nexcluded  in  its  own terms so far as Members\tof  Judicial
\nService\t are  concerned.   A limited play available  to\t the
\nLegislature  to deal with unexcepted and open categories  of
\nconditions  of\tService\t of judicial officers  as  found  in
\nSecond\tPart  of  Article  235, therefore,  cannot  be\tread
\nbackwards  to  govern  even  by implication  the  method  of
\nappointment  of Members of Subordinate Judiciary even at the
\ngrass-root level.  For that purpose, Article 234 is the only
\nrepository   of\t the  power   available\t to  the   concerned
\nConstitutional\tauthority  which has to follow the gamut  of
\nthe procedure laid down therein.  Dr.Dhavan tried to salvage
\nthe  situation by submitting that if this view is taken, the
\ngreatest  anomaly  that would arise is that there  would  be
\ntotal ouster of legislative interference as per Article 234.
\nThere\twill  be  definite   permissible   interference\t  of
\nlegislative  power  on\ttopics mentioned in second  part  of
\nArticle\t 235.\tWhile  so far as  appointments\tof  District
\nJudges\tunder Article 233 are concerned, there is no express
\nouster\tof legislative interference at all.  He,  therefore,
\nsubmitted  that a totally anomalous situation would  emerge,
\nas  at the grass-root level i.e.  lowest rung of  regulating
\nthe  recruitment and appointment of Judiciary, there will be
\ntotal  exclusion  of legislative interference while  at\t the
\napex  level  i.e.   at the district level there will  be  no
\nouster\tof legislative interference.  Even this argument  of
\ndespair cannot be countenanced for the simple reason that on
\nthe  topic of appointment of direct recruits to the District
\nJudiciary  at  the  district  court level  or  even  at\t the
\ngrass-root  level  of  Munsiffs\t  and  Civil   Judges-junior
\ndivision  or senior division, as the case may be, both under
\nArticle 234 as well as under Article 233 interference by the
\nState  Legislature is totally excluded.\t If appointments  at
\nthe  grass-root\t level in Subordinate Judiciary is taken  as
\nbase  level no.1 in the pyramid of Subordinate Judiciary, as
\nindicated  earlier, then the express language of Article 234
\nlays down a complete procedure which cannot be tinkered with
\nby  any outside agency like the legislature.  For regulating
\nthe  service  conditions  of   already\tappointed   judicial
\nofficers  which will be treated as level no.2, to the extent
\nto  which the conditions of service can be regulated by\t law
\nas  laid down by second part of Articles 235 a limited field
\nis  kept  open for legislative play.  It is only because  of
\nthe  permissible  field indicated by the very  same  Article
\nthat  the  Governor  under  Article 309 or  even  the  State
\nLegislature  can  be  permitted to operate  in\tthat  field.
\nWhile  at  the\tapex  level of the  pyramid  of\t Subordinate
\nJudiciary,  which  is  level no.3, for\trecruiting  District
\nJudges a complete Code is furnished by Article 233 excluding
\noutside interference, as indicated earlier.  Thus neither at
\nthe  base level i.e.  at the grass-root level of controlling
\nentry  point to Subordinate Judiciary nor at the entry point
\nat  the\t apex level of the pyramid for\tappointing  District
\nJudges\tany State Legislatures interference is contemplated
\nor countenanced.  On the contrary, it is contra-indicated by
\nnecessary implication.\tThus, neither at the first level nor
\nat  the\t third\tlevel,\tboth dealing with  entry  points  to
\nSubordinate Judiciary, the State Legislature has any say and
\nat  the\t second\t level it has a limited say  to\t the  extent
\npermitted by the very same Article 235 second part and which
\ndoes  not  pertain  to recruitment or appointments  at\tall.
\nThus,\tit  cannot  mean  that\t because  of  this   limited
\nindependent   play  at\tthe  joint   is\t available  to\t the
\nauthorities  functioning  under\t Article 309 at\t the  second
\nlevel  to  frame  rules\t or  legislation  for\tpermissively
\nregulating  the conditions of service of the members of\t the
\njudiciary  who have already entered the Judicial Service  at
\nthe  grass-root\t level, or even at the district\t level,\t any
\nanomalous  situation  emerges.\tDr.Dhavan then\tinvited\t our
\nattention  to the observations of a nine-Judge\tConstitution
\nBench  judgment of this Court in Indra Sawhney & Ors.\tcase
\n(supra), para 694 at page 662, para 738 at page 689 and para
\n788  at page 720, for submitting that Article 16 sub-article
\n(4)  enables the State authorities to direct reservation  in
\nServices  under the State.  This Constitutional power,\tonce
\nexercised,  cannot  be\tsought\tto  be\tcircOBumscribed\t  or
\ncurtailed  by  non-compliance with the procedure of  Article
\n234  or\t for that matter Article 233.  This argument of\t his
\ncannot\tbe  countenanced.  It is obvious that for  utilising
\nthe   enabling\t power\tunder\tArticle\t 16(4),\t the   State
\nLegislature  cannot  enter the forbidden field and  conflict
\nwith  substantive provisions of Article 233 or first part of
\nArticle\t 235.  Meaning thereby, neither can it lay down\t new
\ncriterion  of  eligibility  contrary to sub-article  (2)  of
\nArticle\t 233  for appointment to the District Judiciary\t nor
\ncan  it\t affect the control of the High Court in  connection
\nwith  District\tJudiciary as vested in the High Court  under
\nfirst part of Article 235.  If at all any reservation policy
\nunder Article 16(4) is to be pursued, it has to be exercised
\nin  consonance\twith the scheme of Articles 233 and 234\t and
\nnot  dehors  it.  Dr.Dhavan fairly conceded that neither  in
\nthe  Rules of 1951 regarding appointments to district  cadre
\nas  per\t Article  233  nor  under  the\tRules  of  1955\t for
\nappointments  in the cadre of Subordinate Judiciary as\tlaid
\ndown  by  Article  234,\t there\tis  any\t provision  for\t 50%
\nreservation  of\t posts.\t As already noted  earlier,  Article
\n16(4)  is an enabling provision and it enables the competent
\nauthority  which  is entrusted with the task of\t recruitment
\nand  appointment  to  any  service  including  the  Judicial
\nService\t to  exercise  this enabling power and\tprovide\t for
\nappropriate  reservation.   In\tfact  there  is\t no  dispute
\nbetween\t the  parties  in these proceedings  that  with\t the
\nconsent\t of the High Court of Patna, 14% reservation for  SC
\nand  10%  reservation  for  STs\t  is  already  accepted\t  as
\npermissible  reservation  for  direct\trecruitment  at\t the
\ngrass-root  level  and Rule 20 of the Rules of 1955  clearly
\npoints\tto such reservation, percentage of which has already
\nbeen  agreed  to between the High Court on the one hand\t and
\nthe  Government\t on  the other.\t That would be\tperfectly  a
\npermissible  exercise under Article 16(4) read with  Article\n<\/p>\n
234.   But beyond that unless the rules are properly amended
\nby following the procedure of Articles 233 and 234 read with
\nArticle 309 after consulting the High Court, the Governor on
\nhis  own cannot provide for any more reservation.  Nor\tcan,
\nby a legislative Act, an independent provision under Article
\n16(4)  totally bypassing the High Court be resorted to.\t  As
\nalready\t seen  earlier,\t Article 16(4) has to be  read\twith
\nArticle\t 335 and maintenance of efficiency of administration
\nin the making of appointments to Services and posts would be
\na  sine qua non before considering the claim for reservation
\nof SC and STs which would also include the OBCs as laid down
\nby  a  Constitution  Bench judgment of this Court  in  Indra
\nSawhneys  case\t(supra), (2000) 1 SCC 168 = JT 1999 (9)\t SC\n<\/p>\n
557.   If  Article 16(4) has to be read with Article 335  as
\nalready\t ruled\tby the Constitution Bench judgment  of\tthis
\nCourt,\tthe same authority which can have the pulse and full
\ncontrol\t of administration pertaining to concerned  services
\nhaving\tsufficient  expertise  can avail  of  the  aforesaid
\nArticle\t 16(4)\tkeeping in view the mandate of Article\t335.
\nIn  case  of  Subordinate Judicial  Services  comprising  of
\ndistrict  courts  and courts subordinate thereto,  the\tfull
\ncontrol\t vests in the High Court under Article 235 which can
\ncontrol\t the promotions and postings of such members of\t the
\nJudiciary.   It\t is  the  High Court which  will  have\tfull
\nknowledge  and\texpertise  for\t deciding  the\tquestion  of
\nadequacy of representation by way of reservation in Judicial
\nService.   Therefore,  it is the High Court only  which\t can
\ngive  green signal regarding the extent of such reservations
\nat  entry points as candidates entering on reserved posts in
\nJudicial  Service of the District Judiciary both at the apex
\nlevel  and  at\tthe grass-root level have to act  under\t its
\ncontrol.   In the absence of such a green signal by the High
\nCourt  there  would be no occasion to invoke  Article  16(4)
\nread  with Article 335.\t We fail to appreciate how the State
\nLegislature by enacting Section 4 of the Act, can decide for
\nitself\tthat  50%  reservation\tis required to\tbe  made  in
\nappointments   to   District   and   Subordinate   Judiciary
\nconsistent  with  the maintenance of efficiency of  judicial
\nadministration which is under full control of the High Court
\nas  per\t Article 235.  As it cannot of its own be  alive  to
\nthis vital aspect lacking requisite knowledge and expertise,
\nany  scheme  of reservation framed by the legislature  under
\nArticle\t 16(4)\tdehors\tArticle\t 335   so  far\tas  judicial
\nappointments  are concerned, must necessarily fall  through.
\nThe  authority giving green signal as per Article 16(4) read
\nwith  Article  335 can be only the High Court.\tIt  will  be
\ntotally\t out of picture so far as enactment of such straight
\njacket\treservation  provisions\t dehors\t  the  High  Courts
\nconsultation  goes.   In this view of the matter, the  broad
\nsubmission  of Dr.Dhavan that reservation in fulfillment  of
\nright  to  equality of opportunity under Article 16(1)\tread
\nwith  Article 16(4) can be resorted to without reference  to
\nthe  High  Court and therefore, the impugned Act  cannot  be
\nfound  fault  with, cannot be accepted.\t Reliance placed  by
\nDr.Dhavan to the decision of this Court in Durgacharan Misra
\nvs.   State  of Orissa & Ors.,<\/a> (1987) 4 SCC 646, wherein  at
\npara  15 a two Judge Bench observed that Rules under Article
\n234  are  framed  by the Governor, in exercise of  his\trule
\nmaking\tpower under Article 309, cannot be of any assistance
\nto  him.  Even if the rules contemplated by Article 234\t are
\nframed by the Governor under Article 309 proviso, that power
\nis  clearly fettered and regulated by Article 234 as well as
\nArticle\t 233  wherein consultation of the High Court in\t one
\ncase  and  total  clearance  by the High  Court\t by  way  of
\nrecommendation\tof the appointees in the other case,  cannot
\nbe  given a go by.  Turning to the contentions canvassed  by
\nShri  Dwivedi in support of the companion appeal, it may  be
\nstated\tthat  he adopted the arguments of Dr.Dhavan  but  he
\nfurther\t contended  that under Article 234, the rule  making
\npower  of the Governor is hedged in by consultation with the
\nHigh Court and the Public Service Commission.  So far as the
\nPublic\tService Commission is concerned, as per Article\t 320
\nsub-article  (4),  it  is not required to  be  consulted  in
\nrespect\t of the manner in which any provision referred to in
\nclause\t(4)  of\t Article 16 may be made or as  respects\t the
\nmanner\tin  which effect may be given to the  provisions  of
\nArticle\t 335.\tShri  Dwivedi,\t therefore,  submitted\tthat
\nconsultation with the Public Service Commission cannot be in
\nconnection  with  Article  16(4)  and  if  that\t is  so,  by
\nnecessary  implication,\t consultation  with the\t High  Court
\nunder  Article 234 can also be treated to be standing at par
\nand  consequently the decision on any policy of\t reservation
\nas   per  Article  16(4)  need\t not  get  covered  by\t any
\nconsultation  with  the\t High  Court.  It  is  difficult  to
\nappreciate  this contention.  The Public Service  Commission
\nis  merely  an examining body which examines the  candidates
\nfor  seeking appointments to the advertised posts.  It\thas,
\ntherefore,  nothing to do with the policy decision of laying
\ndown  of  reservation  in appointments to the  posts.\tThat
\npolicy\thas  to\t be resorted to under Article 16(4)  by\t the
\nauthority  calling  upon  the Public Service  Commission  to
\nproceed\t  with\tthe  procedure\tof  selection  of   suitable
\ncandidates  for\t filling up advertised posts subject to\t the
\nconditions  laid  down in the advertisement.  That  type  of
\nconsultation  naturally\t would\tnot stand at  par  with\t the
\nconsultation with the High Court as laid down by Article 234
\nof the Constitution.  As seen earlier, consultation with the
\nHigh  Court  as envisaged by Article 234 is for\t fructifying
\nthe Constitutional mandate of preserving the independence of
\nJudiciary, which is its basic structure.  The Public Service
\nCommission  has\t no  such Constitutional  imperative  to  be
\nfulfilled.   The scope of examining bodys consultation\tcan
\nnever  be  equated  with  that\t of  consultation  with\t the
\nappointing  body  whose\t agent is the former.\tIt  is\talso
\npertinent  to  note that the essence of consultation is\t the
\ncommunication  of a genuine invitation to give advice and  a
\ngenuine\t consideration of that advice which in turn  depends
\non  sufficient information and time being given to the party
\nconcerned  to  enable  it to tender useful  advice.   It  is
\ndifficult  to  appreciate how the Governor while  consulting
\nthe  Public Service Commission before promulgating the Rules
\nof Recruitment under Article 234 has to solicit similar type
\nof  advice  as he would solicit from the High Court  on\t due
\nconsultation.\t The   advice  which  in  the\tprocess\t  of
\nconsultation   can  be\ttendered  by  the   Public   Service
\nCommission  will  confine  itself   to\tthe   Constitutional
\nrequirements  of  Article 320.\tThey are entirely  different
\nfrom  the nature of consultation and advice to be  solicited
\nfrom  the  High\t Court\twhich is having\t full  control\tover
\nSubordinate  Judiciary under Article 235 of the Constitution
\nand  is\t directly concerned with the drafting  of  efficient
\njudicial  appointments so that appropriate material will  be
\navailable to it through the process of selection both at the
\ngrass-root  level  and\tat the apex level  of  the  District
\nJudiciary.   Consultation,  keeping in view the role of\t the
\nHigh  Court under Article 234 read with Article 235,  stands
\non  an\tentirely  different  footing   as  compared  to\t the
\nconsultation with the Public Service Commission which has to
\ndischarge  its\tfunctions  of  entirely\t different  type  as
\nenvisaged  by  Article 320 of the Constitution.\t  Naturally,
\ntherefore,  consultation  with\tthe High Court will  have  a
\ndirect linkage with the policy decision as to how many posts
\nshould\tbe  advertised, what are the felt needs of  District
\nJudiciary and whether there can be any reservation which can
\nbe  permitted  to  be engrafted in the Rules framed  by\t the
\nGovernor  consistent  with the maintenance of efficiency  of
\njudicial  administration in the State.\tIt is also pertinent
\nto   note  that\t there\tis   no\t express  fetter   regarding
\nconsultation  with the High Court excluding Article 16(4) as
\nwe  find  in Article 320 (4) in connection with\t the  Public
\nService\t Commissions consultation.  This very departure and
\nabsence\t of such exclusion of the High Courts  consultation
\nindicate  the  intention of the Constitutional\tmakers\tthat
\npolicy\tdecision as per Article 16(4) has to be taken by the
\nGovernor  in consultation with the High Court while  framing
\nappropriate rules governing the recruitment and appointments
\nto  the\t Judicial Service both at the apex level and at\t the
\ngrass-root   level.   Submission  of   Shri   Dwivedi\tthat
\nlegislative  power stands independently and dehors  Articles
\n235  and 234 cannot be countenanced for the detailed reasons
\ngiven  by  us while rejecting the contentions of  Dr.Dhavan.
\nShri  Dwivedis\teffort to draw sustenance for his  argument
\nfrom  the  observations\t of  the   learned  Judges  of\t the
\nConstitution  Bench in Indra Sawhneys case (supra)  namely,
\nJustice\t Pandians observations at para 243, Justice  Sawant
\nat  para  555  and Justice Kuldip Singh in  para  383,\talso
\ncannot\tbe of any avail to him.\t The question of reservation
\nof  posts in a cadre cannot be equated with the question  of
\ncreation  of  posts in a cadre.\t After the posts in a  cadre
\nare  created how many thereof can be filled in from  general
\ncategory  and  how many from reserved  category\t candidates,
\nwill  remain  a policy decision which has to  be  undertaken
\nunder  Article\t16(4) read with Article 335 and only by\t the
\ncompetent  authority namely, the High Court in dialogue with
\nthe  Governor so far as Judicial Service is concerned, as we
\nhave  seen  earlier.  The observations of learned Judges  in
\nthe  aforesaid\tIndra  Sawhneys\t  case\t(supra)\t therefore,
\nregarding the scope and ambit of Article 16(4) in general in
\nconnection  with  those\t services wherein  such\t reservation
\nwould  be  effected by the competent authorities  themselves
\nwithout\t consultation  with  other agencies  like  the\tHigh
\nCourt,\tcannot\tbe of any avail to Shri Dwivedi for  culling
\nout the competence of the authority concerned to impose such
\nreservation  in\t connection with Judicial  Services  without
\nconsulting  the\t High  Court.  Reliance\t placed\t by  learned
\ncounsel\t for the appellant-State on various rules framed  by
\nGovernors  of other States in consultation with High  Courts
\nlike  the Uttar Pradesh Governor also cannot be of any avail
\nas  those rules are framed by the Governors in\tconsultation
\nwith  the  High\t Courts\t after following  the  procedure  of
\nArticles  234 or for that matter Article 233.  Decisions  of
\nthis  Court  relied on by Shri Dwivedi for showing that\t the
\nGovernor  can create cadres and also can lay down provisions
\nfor  regulating the conditions of Service as provided  under
\nArticle\t 235  second part also are besides the\tpoint.\t The
\neffort\tmade  by learned counsel for the appellant-State  to
\nshow  that Judicial Service also represents a part of  State
\nService\t and it is the State within the meaning of Article
\n12 amenable to writ jurisdiction under Article 226 so far as
\nthe  administrative  decisions\ttaken  by  the\tcourts\t are
\nconcerned  also cannot solve the problem which is posed\t for
\nour  consideration.   The High Court may be  an\t authority
\nwithin\tthe  meaning  of   Article  12,\t its  administrative
\ndecisions  may\tbe  subject  to\t its  writ  jurisdiction  on
\njudicial  side\tbut that does not mean that  for  recruiting
\njudicial  officers for manning Judicial Services, the say of
\nthe  High  Court  can  be   totally  bypassed  by   enacting
\nprovisions  like  the impugned Act by the State\t Legislature
\nwhich,\twhile  enacting\t this statute, was not\texpected  to
\nconsult\t any one else including the High Court.\t Of  course,
\nShri  Dwivedi  was  right when he contended  that  in  Civil
\nAppeal\tNo.9072\t of 1996 there was no occasion for the\tHigh
\nCourt to treat the policy reflected by the stand of the High
\nCourt  regarding giving preference in appointments to SC and
\nST  candidates\tif  they  are of equal\tmerit  with  general
\ncategory  candidates as the only reasonable one.  It is true
\nthat  this exercise was not required to be undertaken by the
\nHigh Court which was concerned with the short question as to
\nwhether\t the impugned Act, especially Section 4 thereof, can
\nbe permitted to operate of its own so far as the recruitment
\nto  District  Judiciary was concerned.\tTo that extent,\t the
\naforesaid  reasoning  of  the  High Court  in  the  impugned
\njudgment cannot be sustained as being redundant and uncalled
\nfor.  We may now briefly refer to the written submissions on
\nbehalf\tof the appellant-State submitted by Shri Dwivedi  on
\n20th  January, 2000.  As we have already discussed  earlier,
\nit  is not possible for us to agree with the contention that
\nreservation  of\t posts\tdoes not truncate the  High  Courts
\npower  of  making appointments on available  vacancies.\t  In
\ncases  where  reservations are made after consultation\twith
\nthe High Court, the situation stands entirely on a different
\nfooting as the High Court itself agrees with the rule making
\nauthority under Article 234 or for that matter under Article
\n233  to recommend reserved category candidates on  earmarked
\nvacancies  in the already created posts in a cadre.  But the
\nquestion  is as to whether bypassing the High Court such  an
\nexercise  can  be undertaken by the State Legislature or  by
\nthe  Governor  under Article 309.  As seen earlier, such  an
\nexercise  is not countenanced by the relevant Constitutional
\nscheme.\t  It  is  also\tnot   possible\tto  agree  with\t the
\ncontention  that in the absence of express exclusion of\t any
\nlaw  made by the Legislature, the legislative power  remains
\nuntouched by Articles 233 and 234.  On the contrary, as seen
\nearlier, because of the opening words of Article 309 as well
\nas Article 245 what is provided by Articles 233 and 234 is a
\ncomplete  Code, which cannot be touched independently of the
\nHigh  Courts  consultation either by the Legislature or\t by
\nthe   rule  making  authority.\t  Reliance  placed  on\t the
\nobservations  in  paras 16 & 17 in the case of\tM.M.Gupta  &
\nOrs.  etc.  vs.\t State of Jammu & Kashmir & Ors., (supra) to
\nthe  effect  that appointing authority is the Governor\talso
\ncannot\tadvance\t the  case of Shri Dwivedi  for\t the  simple
\nreason\tthat  under the scheme of Articles 234 and 233\tonce
\neffective consultation is made with the High Court and rules
\nare framed as per Article 234 and selections are made as per
\nthese  rules or when the High Court recommends\tappointments
\nunder  Article 233, the selection process is over, only\t the
\nministerial work of issuing actual appointment orders may be
\ncarried\t out  by the Governor.\tBut that would not,  in\t any
\ncase,  interfere with the independence of Judiciary and\t the
\npower  of  the\tHigh  Court.  The Governor,  acting  as\t per
\nArticle\t 234  while framing rules in consultation  with\t the
\nHigh  Court and the Public Service Commission and also while
\nacting on the recommendation of the High Court under Article
\n233,  only  performs  the  ultimate act\t of  issuing  actual
\nappointment orders to the selectees but these selectees have
\nundergone  the process of filtering by the High Court as per
\nArticle\t 233(2) or in cases governed by Article 234, as\t per
\nthe  procedure\tlaid  down in the rules\t framed\t under\tthat
\nArticle,  after consultation with the High Court.  It is not
\nas  if\tthe  Council  of Ministers or  the  Legislature\t has
\nanything  independently\t to  say  to the  Governor  in\tthis
\nconnection  bypassing the High Court.  Reference to the case
\nin  Samsher  Singh etc.\t vs.  State of Punjab & Anr.   etc.,
\nAIR   1974  SC\t2192,\tabout  Cabinets\t responsibility\t to
\nLegislature  is totally besides the point while\t considering
\nthe  moot  question  with  which we are\t concerned.   It  is
\ndifficult to appreciate on the scheme of Articles 233 to 235
\nthe  contention\t of Shri Dwivedi that recruitment  procedure
\ncould  be  laid down either by the Legislative enactment  or
\nrules under Article 309 without having consultation with the
\nHigh  Court.   Further\tcontention  of\tShri  Dwivedi\tthat
\nParliamentary  system of governance is also a basic  feature
\nof  the\t Constitution also cannot advance his case  for\t the
\nsimple\treason that Article 235 itself read with Article 309
\nfurnishes  restraints  on  the legislative power so  far  as
\ntopics\tof recruitment and appointment to District Judiciary
\nand Subordinate Judiciary are concerned being covered by the
\ncomplete code of Articles 233 and 235, as seen earlier.\t The
\ndichotomy  sought  to  be suggested between the\t process  of
\nselection  for\trecruitment to advertised posts on  the\t one
\nhand  and  reservation of posts in a cadre on the  other  by
\nShri  Dwivedi  is not a real one.  As already seen  earlier,
\nrecruitment  and  appointments\thave to be done\t to  already
\ncreated\t posts\tin  the\t cadre and  once  the  procedure  of
\ncreation  of  posts is over, the further question as to\t how
\nthese  posts  are to be filled in and from which  source  or
\ncategory  of candidates, will entirely depend upon the rules
\nframed\tby the Governor in consultation with the High Court,
\nso  far\t as  Article  234 is concerned and  will  wholly  be
\nsubject\t to  the  recommendations of the  High\tCourt  under
\nArticle\t 233.\tThe  submission of Shri Dwivedi\t that  cadre
\nformation  is in the exclusive domain of the government\t and
\nforms part of constitution of State Judicial Service, cannot
\nhave any impact on the moot question as to how created posts
\nin a given cadre can be filled in and from which category of
\ncandidates.   That  remains  essentially in  the  domain  of
\nrecruitment and appointment to already existing, created and
\nsanctioned  posts  in  a given cadre.\tReliance  placed  on
\nArticles  37, 38 and 46 read with Article 16(4) cannot\thave
\nany  impact  on the decision of the question posed  for\t our
\nconsideration.\t Reliance  placed  by Shri  Dwivedi  on\t the
\ndecisions  of  this Court in Indra Sawhneys  case  (supra),
\nDr.Preeti  Srivastava  & Anr.  etc.  vs.  State of  M.P.   &
\nOrs.etc.,  (1999)  7  SCC 120 and in Durgacharan  Misra\t vs.
\nState  of  Orissa  &  Ors.<\/a>  (supra) also cannot\t be  of\t any
\neffective  help for resolving the question with which we are
\nconcerned.   The  general scheme of reservation and to\twhat
\nextent\tit can be applied to a given service directly  under
\nthe  control of the State without any reference to  Judicial
\nService,  as discussed in the first two cases, can be of  no
\navail\tto   Shri   Dwivedi.   So   far\t as  the   case\t  of
\nSmt.A.Lakshmikutty   (supra)  is   concerned,  the  relevant
\nobservations  in the concerned paragraphs do not support the
\nsubmissions   put   forward   by   Shri\t Dwivedi   for\t the
\nappellant-State.   Even if Judicial Service is also a  State
\nPublic Service and hence a Service under the State as laid
\ndown  therein  so as to attract Articles 12 and 226  of\t the
\nConstitution,  the question which remains for  consideration
\nis  as to whether the scheme of recruitment and\t appointment
\nto   the  Subordinate  Judiciary  as   laid  down   by\t the
\nConstitution itself can be encroached upon, whittled down or
\ncut  across  by\t any  enactment\t or  rule  dehors  the\tsaid
\nConstitutional\t scheme.     Smt.A.Lakshmikuttys   judgment
\n(supra)\t had  not  to consider that question.\tEven  though
\njudicial  officer in the Judicial Service of the State would
\nbe  an\tofficer\t under\tthe State  and\taccording  to  which
\nprinciple, to a limited extent, the conditions of service of
\nsaid  judicial officer can be laid down by the State or\t the
\nGovernor  under Article 309 independently of the High  Court
\nas  per\t the second part of Article 235, so far as  Articles
\n233  and  234  are concerned as already seen  earlier,\tthey
\nstand entirely on a different footing and do not countenance
\nany  independent  encroachment on the field covered  by\t the
\nsaid  provisions bypassing the High Court.  There cannot  be
\nany  dispute  that laying down of pay-scales as one  of\t the
\nconditions  of Service under the second part of Article\t 235
\nis not within the expression of control which is vested in
\nthe  High  Court  as laid down\tin  Smt.Lakshmikuttys  case
\n(supra).   But it is difficult to appreciate how reservation
\ncan  be\t treated  on  par with laying down  of\tpay  scales.
\nMaking\tavailable pay-scales to the members of the  Judicial
\nService will have a direct impact on the State exchequer and
\nConsolidated Fund of State in case of District Judiciary but
\nthat  does  not mean that the recruitment to  such  judicial
\nposts  also  can  be  controlled by the\t State,\t dehors\t the
\nrequirements  of  Articles  233 and 234.  The  next  written
\nsubmission of Shri Dwivedi placing reliance on a judgment of
\nthis Court in the Belsund Sugar Co.  Ltd.  vs.\tThe State of
\nBihar  & Ors.etc., JT<\/a> 1999 (5) SC 422, that reservations are
\na  special  topic and, therefore, the general expression  of
\nappointments  would  not  embrace,   the  same\tcannot\tbe
\naccepted  for the simple reason that once posts are  created
\nand  sanctioned\t in  a\tcadre, to the extent  to  which\t any
\nindependent  order or direction under Article 309 or Article
\n16(4)\tencroaches  upon  the\tfield  of  recruitment\t and
\nappointment  to\t such  posts, specially carved\tout  by\t the
\nConstitutional\tmakers\tfor  operation by  the\tGovernor  in
\nconsultation  with the High Court or with the concurrence or
\nrecommendation\tof  the High Court, as the case may be,\t the
\nsaid  encroachment  would  remain totally  ultra  vires\t and
\ncannot\tbe  saved by provisions of reservation envisaged  by
\nArticle\t 16(4).\t  Reliance  placed  by\tShri  Dwivedi  on  a
\ndecision  of  this Court in Chandra Mohans case (supra)\t to
\nshow  that there is no complete separation of powers has  to
\nbe appreciated in the light of the observations made therein
\nin  connection\twith  the nature of  permissible  field\t for
\noperation  of state authorities under Article 235(2).  These
\nobservations have nothing to do with the complete separation
\nof  powers between the Judiciary and the Executive so far as
\ninitial recruitment at entry points in Subordinate Judiciary
\nup  to\tdistrict  level is concerned.  Even if\trules  under
\nArticle\t 234 can be said to have been framed by the Governor
\nof  the\t concerned State, on a conjoint reading of  Articles
\n234  and 309 the fact remains that these rules, in order  to
\nbe effective, have to satisfy the Constitutional requirement
\nof  the procedure laid down therein for their  promulgation.
\nThe  alternative  contention  that when the  State  sends  a
\nproposal to the High Court for introducing reservations, the
\nHigh  Court  is bound to carry out the mandate\tof  Articles
\n15(4),\t16(4),\t38  and 46 of the Constitution,\t and  should
\nrespond with such duty-consciousness, cannot be of any avail
\non  the\t facts of the present case as we are  not  concerned
\nwith  such a situation.\t The rules framed under Articles 233
\nand  234  by the Bihar Government in consultation  with\t the
\nHigh Court are not on the anvil of scrutiny.  The only short
\nquestion  with\twhich  we are concerned is  whether  in\t the
\nabsence\t of appropriate provision being made in these rules,
\nthe State Legislature can intervene on its own bypassing the
\nHigh  Court  and  lay down a rule of thumb by way  of  fixed
\nquota  of  reservation in all the posts in  the\t Subordinate
\nJudiciary.   The Mandal Commission Report has nothing to  do
\nwith  the  question  with which we are concerned.   Even  if
\nadequate  representations of reserved category of candidates
\nfor  appointment  to Judiciary may be a laudable object,  it
\nhas to be kept in view that whatever is right has to be done
\nin  a right manner or not at all.  Even in the present\tcase
\n24% reservation for SC and ST candidates at grass-root level
\nin  Judiciary  has already been agreed to by the High  Court
\nand the appointments are accordingly being made since years.
\nThe  only  question is whether by Section 4 of the  impugned
\nAct  that percentage of reservation can be increased to\t 50%
\nby  bringing  other  reserved\tcategories  like  the  Other
\nBackward  Classes,  completely bypassing the High Court\t and
\nwithout\t there\tbeing  any  need  to  consult  it.   Such  a
\nlegislative  Act cannot be countenanced on the touchstone of
\nrelevant Articles of the Constitution.\tThis question cannot
\nbe  answered  in  the light of the  supposed  Constitutional
\nphilosophy  underlying the scheme of reservation for  weaker
\nsections  of the community in general terms.  It is now time
\nfor  us\t to refer to the judgments of this Court  and  other
\nHigh  Courts on which reliance was placed by learned counsel
\nfor  the  contesting parties in support of their  respective
\ncases.\t A  three-Judge Bench of this Court in the  case  of
\nM.M.Guptas  case (supra), speaking through Shri R.S.Pathak,
\nJ  (as\the  then  was), while considering  the\tquestion  of
\nindependence of judiciary, has clearly ruled that any scheme
\nof  appointment\t to judicial posts by the executive  at\t the
\nState  and  the Central level, without consulting  the\tHigh
\nCourt,\twould clearly affect the independence of  judiciary.
\nPertinent observations in this connection are found in paras
\n33 and 34.  The relevant portions thereof read as under:\n<\/p>\n
      .Independence  of the judiciary is one of the  basic
\ntenets\tand  a fundamental requirement of our  Constitution.
\nVarious\t Articles  in our Constitution contain the  relevant
\nprovisions   for  safeguarding\tthe   independence  of\t the
\nJudiciary.   Article 50 of the Constitution which lays\tdown
\nthat  the State shall take steps to separate the  judiciary
\nfrom  the  executive in the public services of\tthe  State,
\npostulates separation of the judiciary from the executive.\n<\/p>\n
      Unfortunately,  for some time past there appears to be
\nan  unhappy trend of interference in the matter of  judicial
\nappointments  by  the  executive both at the State  and\t the
\nCentral\t level..Article\t 235 of the Constitution vests\tthe
\ncontrol\t of  judicial administration completely in the\tHigh
\nCourt  excepting  in the matter of initial  appointment\t and
\nposting\t of  District Judges and the dismissal,\t removal  or
\ntermination  of\t services of these officers.  Even in  these
\nmatters\t the  requirement  of the Constitution is  that\t the
\nGovernor  must act in consultation with the High Court.\t  If
\nin the matter of appointment, the High Court is sought to be
\nignored\t and  the  executive authority chooses to  make\t the
\nappointment,   independence  of\t the   judiciary   will\t  be
\naffected.\n<\/p>\n
      In  the light of the aforesaid settled legal position,
\ntherefore,  there  cannot be any escape from the  conclusion
\nthat  if the process of appointment to Subordinate Judiciary
\nat  district  level  or\t grass-root level  is  tried  to  be
\ncircumscribed\tor   truncated\tby   any  direction  as\t  to
\nreservation  of available vacancies for a given category  of
\ncandidates  it would certainly impinge upon the power of the
\nHigh  Court in suggesting appointment of suitable candidates
\nto  fill  up the posts of judicial officers with a  view  to
\nfructify  the  goal  of furnishing  effective  mechanism  of
\njudicial  administration  and  making  the  Judiciary  fully
\nvibrant, effective and result-oriented.\t Such an independent
\nJudiciary  is  the  heart of the Constitutional\t scheme,  as
\nalready discussed earlier.  In the case of All India Judges
\nAssociation  &\tOrs.   (supra),\t  the  special\tfeatures  of
\nJudicial  Services have been clearly earmarked in the  light
\nof  Articles 233, 234, 236 and 309.  A three-Judge Bench  of
\nthis  Court, speaking through Sawant, J., while disposing of
\nthe  Review Petitions by the Union of India and Officers  of
\nthe  States, has made the following apposite observations in
\nparas 4 & 5 :\n<\/p>\n
      The  judicial service is not service in the sense\t of
\nemployment.   The judges are not employees.  As members of
\nthe judiciary, they exercise the sovereign judicial power of
\nthe  State.  They are holders of public offices in the\tsame
\nway  as\t the  members of the council of\t ministers  and\t the
\nmembers\t of  the  legislature.\tWhen it is said\t that  in  a
\ndemocracy  such as ours, the executive, the legislature\t and
\nthe  judiciary\tconstitute the three pillars of\t the  State,
\nwhat  is intended to be conveyed is that the three essential
\nfunctions  of the State are entrusted to the three organs of
\nthe  State  and\t each  one of them in  turn  represents\t the
\nauthority  of  the State.  However, those who  exercise\t the
\nState-power  are  the  ministers, the  legislators  and\t the
\njudges,\t and not the members of their staff who implement or
\nassist\tin  implementing  their decisions.  The\t council  of
\nministers  or the political executive is different from\t the
\nsecretarial  staff  or\tthe administrative  executive  which
\ncarries\t out  the  decisions  of  the  political  executive.
\nSimilarly,   the   legislators\tare   different\t  from\t the
\nlegislative  staff.   So also the Judges from  the  judicial
\nstaff.\t The parity is between the political executive,\t the
\nlegislators  and  the Judges and not between the Judges\t and
\nadministrative\texecutive.   This  distinction\tbetween\t the
\nJudges\tand  the  members of the other services\t has  to  be
\nconstantly  kept  in mind for yet another important  reason.
\nJudicial  independence\tcannot\tbe secured  by\tmaking\tmere
\nsolemn proclamations about it.\tIt has to be secured both in
\nsubstance  and\tin practice.  It is trite to say that  those
\nwho  are  in  want  cannot be free.   Self-reliance  is\t the
\nfoundation  of\tindependence.\tThe society has a  stake  in
\nensuring  the independence of the judiciary, and no price is
\ntoo  heavy to secure it.  To keep the judges in want of\t the
\nessential  accoutrements  and  thus to impede  them  in\t the
\nproper\tdischarge  of their duties is to impair and  whittle
\naway justice itself.  (para 4)<\/p>\n
      It  is  high time that all concerned appreciated\tthat
\nthere  cannot be any link between the service conditions  of
\nthe  judges and those of the members of the other  services.
\nIt  is\ttrue  that under Art.309 of  the  Constitution,\t the
\nrecruitment  and conditions of service of the members of the
\nsubordinate judiciary are to be regulated by the Acts of the
\nappropriate  legislature  and pending such legislation,\t the
\nPresident  and\tthe Governor or their nominees, as the\tcase
\nmay  be,  are  empowered  to  make  rules  regulating  their
\nrecruitment  and the conditions of service.  It is also true
\nthat  after  the  Council  of  States  makes  the  necessary
\ndeclaration  under  Art.312, it is the Parliament  which  is
\nempowered to create an All India Judicial Service which will
\ninclude\t posts not inferior to the post of District Judge as
\ndefined\t under\tArt.236.  However, this does not  mean\tthat
\nwhile  determining the service conditions of the members  of
\nthe Judiciary, a distinction should not be made between them
\nand  the  members of the other Services or that the  service
\nconditions  of the members of all the Services should be the
\nsame.\t As  it\t is,  even   among  the\t other\tServices,  a
\ndistinction  is\t drawn\tin  the\t  matter  of  their  service
\nconditions.   The linkage between the service conditions  of
\nthe  judiciary and that of the administrative executive\t was
\nan  historical accident.  The erstwhile rulers\tconstituted,
\nonly  one  service.   Viz.,  the Indian\t Civil\tService\t for
\nrecruiting  candidates\tfor  the  Judicial as  well  as\t the
\nAdministrative\tService and it is from among the  successful
\ncandidates  in\tthe examination held for  such\trecruitment,
\nthat  some were sent to the administrative side while others
\nto  the\t judicial side.\t Initially, there was also no  clear
\ndemarcation  between the judicial and executive services and
\nthe  same  officers used to perform judicial  and  executive
\nfunctions.  Since the then government had failed to make the
\ndistinction between the two services right from the stage of
\nthe  recruitment,  its logical consequences in terms of\t the
\nservice\t  conditions  could  not  be  avoided.\t  With\t the
\ninauguration  of the Constitution and the separation of\t the
\nState  power  distributed  among  the  three  branches,\t the
\ncontinuation  of the linkage has become anachronistic and is
\ninconsistent with the constitutional provisions.  The parity
\nin  status  is\tno  longer between  the\t Judiciary  and\t the
\nadministrative\texecutive but between the judiciary and\t the
\npolitical  executive.  Under the Constitution, the judiciary
\nis  above  the administrative executive and any\t attempt  to
\nplace  it on par with the administrative executive has to be
\ndiscouraged.   The  failure  to grasp this simple  truth  is
\nresponsible  for the contention that the service  conditions
\nof  the\t judiciary  must  be  comparable  to  those  of\t the
\nadministrative executive and any amelioration in the service
\nconditions  of\tthe  former  must necessarily  lead  to\t the
\ncomparable  improvement\t in  the service conditions  of\t the
\nlatter. (para 5)<\/p>\n
      In our view, the aforesaid decision of the three Judge
\nBench\ton   the  relevant   scheme  of\t the   Constitution,
\nespecially,  Articles  234  to\t236  and  309  remains\twell
\nsustained and clearly indicates how Judicial Service, though
\nbeing  a part of the general Service of the State, stands of
\nits  own and cannot countenance any encroachment on it as it
\nis  based on the principle of independence of Judiciary from
\nthe  executive\tand\/or\tlegislative save and except  to\t the
\nlimited\t extent\t permitted by second part of Article 235  of
\nthe   Constitution.    Otherwise  the\tbasic\tfeature\t  of
\nindependence  of Judiciary will get eroded.  The  submission
\nof Shri Dwivedi in this connection that, even Tribunals have
\ngot  trappings of judicial power and decide lis between\t the
\nparties\t also  is  besides the point while  considering\t the
\nquestion  as  to how appointments to the lower Judiciary  in
\nthe  strict  sense of the term is to be effected.   Once  on
\nthis  aspect the Constitutional scheme is clear, it has\t got
\nto  be given its full effect.  We may now refer to Judgments
\nof  some  of  the  High Courts to which\t our  attention\t was
\ninvited\t by  learned  senior  counsel Shri  Thakur  for\t the
\nrespondent High Court.\tIn the case of K.N.Chandra Sekhara &
\nOrs.  vs.  State of Mysore & Ors., AIR 1963 Mysore 292 (V 50
\nC  68),\t a  Division Bench of the High Court of\t Mysore\t was
\nconcerned   with  the  question\t  whether  contrary  to\t the
\nstatutory  rules  framed by the Governor under\tArticle\t 234
\nread  with Article 309 of the Constitution of India,  laying
\ndown  the criteria for recruitment to the cadre of  Munsiffs
\nin  Judicial  Service  of  the\tState,\tthe  Public  Service
\nCommission  of its own can fix different criteria of passing
\nmarks  for candidates belonging to SC and ST as compared  to
\nhigher\tpassing\t marks for general category  of\t candidates.
\nAnswering  this question in the negative, Somnath Iyer,\t J.,
\nspeaking  for  the Division Bench observed that :   Article
\n234 excepts out of the operation of Art.309, appointments to
\nJudicial  Service and constitutes the Governor in a sense  a
\nselect\tlegislative  organ for enactment of rules  for\tthat
\npurpose.\n<\/p>\n
      The aforesaid observations will, of course, have to be
\nread down in the light of the Constitution Bench decision of
\nthis  Court in B.S.Yadavs case (supra).\t The next  Judgment
\nplaced\tfor  our  consideration by Shri\t Thakur\t is  another
\nDivision  Bench\t judgment  in M.I.Nadaf vs.   The  State  of
\nMysore & Anr., AIR 1967 Mysore 77 (V 54 C 21).\tIn that case
\nanother\t Division  Bench of the Mysore High Court,  speaking
\nthrough K.S.Hegde, J.  (as he then was), had to consider the
\nquestion  whether  once rules are framed under\tArticle\t 234
\nread  with  Article  309 of the Constitution  of  India\t for
\ngoverning  the recruitment of Munsiffs any other independent
\nrule  pertaining to general conditions of Service and laying
\ndown a different eligibility criterion for a candidate to be
\nconsidered  for such recruitment could be countenanced.\t  In
\nthat  case,  the  general  rules framed\t under\tArticle\t 309
\napplicable  to\tall  State Services  permitted\tclubbing  of
\ntemporary  Service  of\tcandidates under the  Government  or
\nholding\t a  post under local authority with the\t Service  on
\nregular basis for deciding about the requisite experience of
\nthe  concerned candidate for such posts.  Though the General
\nRules  provided\t to the aforesaid effect, the  rules  framed
\nunder  Articles\t 234  and 309 did not do so.   Question\t was
\nwhether\t the General Rules could cut across the rules framed
\nunder  Article\t234,  the  former not having  been  made  in
\nconsultation with the High Court.  Negativing the contention
\nthat these General Rules which were framed under Article 309
\nwithout\t reference  to\tthe  High  Court  could\t operate  in
\nconnection   with  appointment\tof   judicial  officers\t  at
\ngrass-root level as governed by the rules under Article 234,
\nHegde,\tJ., made relevant observations in this connection at
\npages  78 and 79 in paras 9 and 10 of the Report as under  :
\nArticle\t 309  of the Constitution empowers the Governor\t to
\nmake  rules regulating the recruitment and the conditions of
\nservices  of persons appointed to the Civil Services of\t the
\nState.\t But  that Article, as its opening words  themselves
\nindicate,  is  subject\tto  the\t  other\t provisions  of\t the
\nConstitution.  Article 234 is one such provision.  The power
\nof  the\t Governor  to make rules under Article\t309  of\t the
\nConstitution  is not only subject to the other provisions of
\nthe  Constitution, but it is also subject to any Act of\t the
\nappropriate  Legislature.   But the rules to be made by\t him
\nunder  Article\t234 are not subject to any Act that  may  be
\nenacted\t by  the appropriate Legislature.  But they  can  be
\nmade  only after consultation with the State Public  Service
\nCommission  and\t the High Court.  The consultation with\t the
\nHigh Court is not something nominal.  It is the very essence
\nof  the\t matter.   It  must  be\t  borne\t in  mind  that\t our
\nConstitution visualises the separation of the judiciary from
\nthe  executive.\t  It  is  no doubt true\t that  the  judicial
\nservice\t is also one of the States services.  But it has got
\nits  own  individualistic  character.\t Unlike\t the   other
\nservices  of the State, the judicial service is expected  to
\nbe  independent\t of the executive.  Often times, it  has  to
\npronounce  on the correctness or the legality of the  action
\ntaken  by  the\tother  services of  the\t State.\t  There\t are
\noccasions  when it is required to pronounce on the  legality
\nof  an action taken by the Government or even the  Governor.
\nSuch  being the case, it would not be proper to consider the
\njudicial  branch  as being just one of the branches  of\t the
\nState.\t It  is\t for that reason,  the\tConstitution  makers
\nthought\t it  proper  to\t make separate\tprovisions  for\t the
\nappointment of judicial Officers.\n<\/p>\n
      ..Our  view that appointments to judicial services of
\nthe  State other than that of the District Judges should  be
\nmade  only in accordance with the rules made by the Governor
\nunder  Article\t234 of the Constitution\t after\tconsultation
\nwith  the State Public Service Commission and the High Court
\nexercising  jurisdiction  in relation to such State and\t not
\nunder  rules  framed  by  him\tunder  Article\t309  of\t the
\nConstitution is also supported by the decision of the Madras
\nHigh  Court in N.  Devasahayam v.  State of Madras, AIR 1958
\nMad  53\t and that of the Rajasthan High Court in Rajvi\tAmar
\nSingh v.  State of Rajasthan, AIR<\/a> 1956 Raj 104.\n<\/p>\n
      In our view, the aforesaid decision of the Mysore High
\nCourt  is well sustained in the light of the  Constitutional
\nscheme\tas culled out by a series of decisions of this Court
\nto which we have made reference earlier.\n<\/p>\n
      A\t Division Bench of the Orissa High Court in the case
\nof  Manoj  Kumar  Panda vs.  State of Orissa  &\t Ors.,<\/a>\t1982
\nLab.I.C.  1826, speaking through R.N.Misra, CJ.\t (as he then
\nwas)  had  to consider an identical question which is  posed
\nfor  our  consideration\t in the\t present  proceedings.\t The
\nOrissa\tJudicial Service Rules framed under Article 234 read
\nwith Article 309 provided a scheme of reservation for SC and
\nST  candidates.\t The said scheme was tried to be cut  across
\nby  the Orissa Legislature by enacting the Orissa Act 38  of
\n1975.\tQuestion  was  whether such a  legislative  exercise
\ndehors\tArticle 234 and in exercise of powers under Articles
\n245  and  246  was  permissible.  Even\tthough\tparties\t had
\nsettled\t their\tdispute, the High Court examined this  vital
\nquestion  of  great public importance which may ex-facie  be
\ntreated\t to be a obiter decision but which, in our view,  is
\nfully  sustained by the Constitutional scheme examined by us
\nin  the\t present case in the light of decided cases of\tthis
\nCourt.\t It was observed, in this connection, by Misra,\t CJ,
\nin  para  5 of the Report as under :  The Orissa  Rules\t of
\n1964 are specially made for recruitment to judicial service.
\nAnd  since  in some Articles of the Constitution rules\thave
\nbeen  made  subject to legislation while in  other  Articles
\nlike  Art.234,\tthe  rules  have not been  made\t subject  to
\nlegislation,  a\t distinction must be maintained between\t the
\ntwo  sets  of  rules.  Where the  Constitution\tspecifically
\nvests  power in the Governor to make rules and does not make
\nhis  rules  subject to legislation, it must follow that\t the
\nConstitution  has  intended those rules to be final  on\t the
\nsubject specified.\n<\/p>\n
      Thus,  in\t view of the specific provision\t in  Art.234
\nauthorising  the  Governor to make rules for the purpose  of
\nappointment  and in the instant case such rules having\tbeen
\nmade  viz.   Orissa Rules of 1961, it must follow  that\t the
\npower  given  to the State Legislature under Arts.234,\t245,
\nand  246  (3)  of the Constitution would be subject  to\t the
\nprovisions  of\tArt.234,  in view of a non  obstante  clause
\nappearing at the beginning of Art.245(1).  And in the result
\nOrissa\tAct  38 of 1975 is not to apply to judicial  service
\ncovered by Art.234 of the Constitution so far as appointment
\nis concerned.\n<\/p>\n
      A\t similar  view is also taken by the  Allahabad\tHigh
\nCourt  in  the case of Farzand vs.  Mohan Singh & Ors.,\t AIR
\n1968 All.  67 (V 55 C 18).  In para 31 of the Report at page
\n74  it was observed as under :\tThe intention behind taking
\nout  the provisions relating to subordinate courts from Part
\nXIV  of the Constitution and putting them in Part VI,  seems
\nto  be\tto make the consultation with the High Court in\t the
\nmatter of framing of the rules, really effective and thus to
\nsecure\tthe  independence of the subordinate Judiciary\tfrom
\nexecutive  (See\t AIR  1966 SC 1987 (Para  14)).\t  Under\t the
\nproviso\t to Art.309 the Governor is competent to frame rules
\nrelating  to  recruitment as well as condition\tof  service.
\nThe  rules  made  by  the  Governor  operate  only  until  a
\nprovision  in  that  behalf  is\t made\tby  an\tAct  of\t the
\nLegislature.   The  legislature\t while making an  Act  under
\nArt.309 is not required even by Art.234, to consult any one.
\nThe  provision\tfor consultation with the High\tCourt  would
\nbecome\tnugatory as soon as the legislature acted to  enact.
\nTo avoid this and to keep the rules governing recruitment to
\nthe  judicial  service\toutside\t the purview  of  the  State
\nlegislature,  Article  234 was taken out of Part  XIV  which
\nincludes  Article 309.\tArticle 309 is subject to the other
\nprovisions  of\tthe Constitution, which means and  includes
\nArticle 234.  Article 234, on the other hand, is not subject
\nto any other provision of the Constitution.  The rules, made
\nunder  Art.   234, will hence not be subject to any  Act  of
\nlegislature made under Art.309.\t Then again, if the Governor
\nalone was to frame the rules for recruitment to the judicial
\nservice,  there\t was  no  point\t in  making  this  invidious
\ndistinction between the rules for the judicial and the other
\nservices.   This  distinction became necessary\tbecause\t the
\nrules  for  the\t Judicial  Service  were  to  be  framed  in
\nconsultation  with the High Court.  All these aspects of the
\nmatter lead to the inevitable view that Article 234 requires
\nconsultation  with the High Court only in the matter of\t the
\nmaking of the rules.\n<\/p>\n
      It  is now time for us to take stock of the situation.
\nIn  the\t light\tof the\tConstitutional\tscheme\tguaranteeing
\nindependence  of Judiciary and separation of powers  between
\nthe  executive and the judiciary, the Constitutional  makers
\nhave  taken care to see by enacting relevant provisions\t for
\nthe  recruitment  of eligible persons to discharge  judicial
\nfunctions  from grass-root level of the Judiciary up to\t the
\napex level of the District Judiciary, that rules made by the
\nGovernor  in  consultation  with the High Court in  case  of
\nrecruitment  at\t grass-root level and the recommendation  of
\nthe  High  Court for appointments at the apex level  of\t the
\nDistrict  Judiciary  under  Article  233,  remain  the\tsole
\nrepository   of\t power\tto   effect  such  recruitments\t and
\nappointments.\tIt is easy to visualise that if suitable and
\ncompetent candidates are not recruited at both these levels,
\nthe  out  turn of the judicial product would not be of\tthat
\nhigh  level which is expected of judicial officers so as  to
\nmeet  the  expectations of suffering  humanity\trepresenting
\nclass  of  litigants who come for redressal of\ttheir  legal
\ngrievances   at\t the  hands  of\t competent,  impartial\t and
\nobjective  Judiciary.  The Presiding Officer of the Court if
\nnot  being  fully equipped with legal grounding may  not  be
\nable  to  deliver goods which the litigating public  expects
\nhim to deliver.\t Thus, to ensure the recruitment of the best
\navailable talent both at grass-root level as well as at apex
\nlevel  of  District  Judiciary, Articles 233  and  234\thave
\npermitted  full interaction between the High Court which  is
\nthe  expert body controlling the District Judiciary and\t the
\nGovernor  who  is  the appointing authority and\t who  almost
\ncarries\t  out  the  ministerial\t  function   of\t  appointing
\nrecommended candidates both by the Public Service Commission
\nand  the High Court at the grass-root level and also has  to
\nappoint\t only  those candidates who are recommended  by\t the
\nHigh  Court  for appointment at the apex level\tof  District
\nJudiciary.   Any independent outside inroad on this exercise
\nby  legislative\t enactment  by the State  Legislature  which
\nwould  not  require consultation with an expert agency\tlike
\nthe High Court would necessarily fall foul on the touchstone
\nof  the\t Constitutional\t scheme\t  envisaging  insulation  of
\njudicial appointments from interference by outside agencies,
\nbypassing  the High Court, whether being the Governor or for
\nthat  matter  Council  of  Ministers  advising\thim  or\t the
\nLegislature.   For  judicial  appointments   the  real\t and
\nefficacious  advice contemplated to be given to the Governor
\nwhile  framing\trules  under  Article\t234  or\t for  making
\nappointments  on the recommendations of the High Court under
\nArticle\t 233  emanates only from the High Court which  forms
\nthe  bed-  rock\t and very soul of these\t exercises.   It  is
\naxiomatic that the High Court, which is the real expert body
\nin  the\t field in which vests the control  over\t Subordinate
\nJudiciary, has a pivotal role to play in the recruitments of
\njudicial  officers  whose  working   has  to  be  thereafter
\ncontrolled  by\tit  under  Article 235 once  they  join\t the
\nJudicial  Service after undergoing filtering process at\t the
\nrelevant  entry\t points.  It is easy to visualise that\twhen
\ncontrol\t over District Judiciary under Article 235 is solely
\nvested\tin  the High Court, then the High Court must have  a
\nsay  as to what type of material should be made available to
\nit  both  at the grass-root level of District  Judiciary  as
\nwell  as apex level thereof so as to effectively ensure\t the
\ndispensation  of justice through such agencies with ultimate
\nobject\tof securing efficient administration of justice\t for
\nthe    suffering   litigating\t  humanity.    Under   these
\ncircumstances,\tit is impossible to countenance bypassing of
\nthe  High Court either at the level of appointment at grass-
\nroot  level or at the apex level of the District  Judiciary.
\nThe  rules  framed by the Governor as per Article 234  after
\nfollowing  due procedure and the appointments to be made  by
\nhim  under  Article 233 by way of direct recruitment to\t the
\nDistrict Judiciary solely on the basis of the recommendation
\nof  the High Court clearly project a complete and  insulated
\nscheme\tof  recruitment to the Subordinate Judiciary.\tThis
\ncompletely  insulated scheme as envisaged by the founders of
\nthe  Constitution  cannot  be tinkered with by\tany  outside
\nagency dehors the permissible exercise envisaged by the twin
\nArticles  233 and 234.\tIt is a misnomer to suggest that any
\nimposition of scheme of reservation for filling up vacancies
\nin already existing or created sanctioned posts in any cadre
\nof  district  judges  or  Subordinate  Judiciary  will\thave
\nnothing\t  to  do  with\tthe   concept  of  recruitment\t and
\nappointment  for  filling up such vacancies.  Any scheme  of
\nreservation  foisted on the High Court without\tconsultation
\nwith  it  directly  results in truncating the  High  Courts
\npower of playing a vital role in the recruitment of eligible
\ncandidates  to\tfill  up  these\t vacancies  and\t hence\tsuch
\nappointments  on  reserved posts would remain totally  ultra
\nvires  the  scheme  of\tthe Constitution  enacted  for\tthat
\npurpose\t by  the founding fathers.  It is also to  be  noted
\nthat  the concept of social justice underlying the scheme of
\nreservation under Article 16(4) read with Article 335 cannot
\nbe  said  to be one which the High Court  would\t necessarily
\nignore\tbeing a responsible Constitutional functionary.\t  In
\nfact  what is required is that the right decision should  be
\narrived at in the right manner.\t In the facts of the present
\ncase,  it  is  an admitted position that the High  Court  of
\nPatna  has already consented to have 14% reservation for  SC
\ncandidates   and  10%  reservation   for  ST  candidates  in
\nrecruitment  of Munsiffs and Magistrates at grass-root level
\nof  Subordinate Judiciary and rules framed under Article 234
\nby the Governor of Bihar in consultation with the High Court
\nhave  permitted such reservation.  Thus, it is not as if the
\npurpose\t of reservation cannot be achieved without reference
\nto  the High Court.  But as the saying goes you can take  a
\nhorse  to  the\twater but cannot make it drink by  force  .
\nThus  what is expected of the executive and the Governor  is
\nto  have  an effective dialogue with the High Court so\tthat
\nappropriate  reservation  scheme  can be adopted by  way  of
\nrules  under  Article 234 and even by prescribing  quota  of
\nreservations  of  posts\t for  direct  recruits\tto  District
\nJudiciary under Article 233 if found necessary and feasible.
\nThat  is  the Constitutional scheme which is required to  be
\nfollowed  both\tby  the\t High Court  and  by  the  executive
\nrepresented  through  the Governor.  But this thrust of\t the
\nConstitutional\tscheme cannot be given a go-bye nor can\t the
\nentire\tapple-cart be turned topsy-turvey by the legislature
\nstanding  aloof\t in  exercising\t  its  supposed\t independent
\nLegislative power dehors the High Courts consultation.\n<\/p>\n
      Leaving  aside  this  question  even  on\tthe  express
\nlanguage  of the impugned Section 4 of the Act, argument  of
\nlearned\t senior counsel for the appellant- State would\tfall
\nthrough\t as  the said Section does not envisage creation  of
\nseparate   category  of\t posts\t for  reserved\tcategory  of
\ncandidates  in\tthe existing cadres of District\t Judges\t and
\nSubordinate   Judges.\tOn  the\t  contrary,   that   Section
\npostulates available vacancies in the already existing posts
\nin  the\t cadres\t and tries to control appointments  to\tsuch
\nexisting  posts\t in the vacancies falling due from  time  to
\ntime  by  adopting  the\t rule of  thumb\t and  a\t road-roller
\nprovision  of  50%  vacancies to be  reserved  for  reserved
\ncategory  candidates, meaning thereby, the Section  mandates
\nthe  High Court and that too without consulting it, that  it
\nshall  not  fill up 50% of available vacancies\tby  selected
\ncandidates  standing  in  the order  of\t merit\trepresenting
\ngeneral\t category  candidates and must go in search of\tless
\nmeritorious  candidates\t for  filling\tup  these  vacancies
\nsupposedly  reserved  for  them.   Such\t  a  scheme  can  be
\nenvisaged  only\t under relevant rules framed under  Articles
\n233  and  234  after consultation with the  High  Court\t and
\ncannot\tbe  made the subject matter of any legislative\tfiat
\nwhich  the  High Court is expected to carry out\t willy-nilly
\nand  dehors  the  Constitutional scheme regarding  full\t and
\neffective   consultation  with\tthe   High  Court  in\tthis
\nconnection.   It must, therefore, be held that the  impugned
\nSection\t 4,  as existing on the statute book if\t allowed  to
\noperate as it is for controlling recruitment to the posts of
\ndistrict  judges  as  well  as to  the\tposts  in  Judiciary
\nsubordinate  thereto to the district courts, would  directly
\nconflict  with the Constitutional scheme of Articles 233 and
\n234  constituting  a complete Code and has to be treated  as
\nultra  vires the said Constitutional scheme.  Before parting
\nwith  the  discussion on this point, we may mention that  in
\nthe  impugned judgment of the High Court in CWJC No.6756  of
\n1994  the  learned  Judges have considered the\tquestion  of
\nreservation   of  posts\t in   Judicial\tService\t dehors\t the
\nReservation  Act  in  paragraphs 16 to 21 of  the  judgment.
\nPlacing\t reliance  on a decision of the\t Constitution  bench
\nJudgment  of this Court in Supreme Court Advocates-on-Record
\nAssociation & Anr.  vs.\t Union of India, AIR<\/a> 1994 SC 268, it
\nhas  been observed that whenever such a question arises\t and
\nany  scheme of reservation is sought to be introduced by the
\nGovernor in consultation with the High Court, the opinion of
\nthe High Court shall have primacy.  We may mention that this
\nquestion  strictly  does not arise for our consideration  in
\nthe  present proceedings for the simple reason that legality
\nof  rules  of  reservation, if any, framed by  the  Governor
\nunder Article 309 read with Articles 233 and 234 introducing
\na  scheme of reservation contrary to the consent of the High
\nCourt  has  not\t arisen\t for   decision.   In  the   present
\nproceedings,  we  are  concerned  with\tthe  short  question
\nwhether\t  totally  bypassing  the   High  Court,  the  State
\nLegislature  can  enact a statutory provision introducing  a
\nscheme\tof  reservation\t in Judicial  Service  comprised  of
\nDistrict Judges cadre as well as cadre of Judges subordinate
\nthereto.   Hence,  the\taforesaid observations of  the\tHigh
\nCourt,\tin our view, were not called for in the present case
\nand we express no opinion thereon.\n<\/p>\n
      Point no.2, therefore, will have to be answered in the
\naffirmative against the appellant-State and in favour of the
\nrespondent.\n<\/p>\n
      Point No.3:  In the light of our answer to point no.2,
\nthe   question\tsurvives  for\tconsideration  as  to\twhat
\nappropriate  orders  can  be passed in connection  with\t the
\nimpugned  Section 4 of the Act.\t Now it must be kept in view
\nthat  Section  4,  as enacted in the Act, can  have  general
\noperation and efficacy regarding other Services of the State
\nnot forming part of Judicial Service of the State.  Qua such
\nother  services Section 4 can operate on its own and in that
\nconnection  consultation  with the High Court is not at\t all
\nrequired.   However, in so far as it tries to encroach\tupon
\nthe  field of the recruitment and appointment to Subordinate
\nJudicial  Service of the State as envisaged by Articles\t 233
\nand  234  it  can  certainly be read down  by  holding\tthat
\nSection 4 of the impugned Act shall not apply for regulating
\nthe  recruitment  and appointments to the cadre of  District
\nJudges\tas well as to the cadre of Judiciary subordinate  to
\nthe  District Judges and such appointments will be  strictly
\ngoverned  by the Bihar Superior Judicial Service Rules, 1951
\nas  well  as  by the Bihar  Judicial  Service  (Recruitment)
\nRules,\t1955.\tIn other words, Section 4 will not have\t any
\nimpact\ton  these  rules and will stand read  down  to\tthat
\nextent.\t  Once\tthat is done, question of striking down\t the
\nsaid  rule from the statute book would not survive and would
\nnot  be\t required.   We,  accordingly,\t read  it  down\t  as
\naforesaid.   Point no.3 is answered accordingly in favour of
\nthe respondent and against the appellant-State.\t Point No.4:
\nNow  the  stage\t is reached for\t passing  appropriate  final
\norders\tin the light of our answers to the aforesaid points.
\nThe  impugned  judgments  of the High Court  in\t both  these
\nappeals allowing the writ petitions are sustained subject to
\nthe  following\tmodifications  and directions  :   1.\tEven
\nthough the impugned Act, as framed, is held to be applicable
\neven  to  Judicial Service, Section 4 thereof in  particular
\nlaying\tdown  scheme  of  reservation, will  not  apply\t for
\ngoverning the recruitment to the cadre of District Judiciary
\nas  well  as to the cadres of Judiciary Subordinate  to\t the
\nDistrict  Judges.  2.  The observation of the High Court  in
\nthe  impugned  judgement in Civil Appeal No.9072 of 1996  to
\nthe  effect that if two candidates, one belonging to general
\ncategory  and  another to reserved category are found to  be
\nequally\t meritorious,  preference can be given\tto  reserved
\ncategory  candidate is the only rational scheme envisaged by
\nthe  Constitution, being an unnecessary one will be  treated
\nto  be\tof  no\tlegal effect.\t3.   Despite  the  aforesaid
\nobservations,  the  stand of the respondent High Court\tthat
\nfor recommending direct recruitment of advocates as District
\nJudges\tthe  suggested\tpreference to be given\tto  reserved
\ncategory  candidate  of\t equal merit with  general  category
\ncandidate  has to be followed by the High Court as agreed to
\nin  the\t present  proceedings  till  appropriate  scheme  of
\nreservation  for  reserved  category candidates\t if  any  is
\npromulgated  by the Governor by framing appropriate rules in
\nconsultation with the High Court and the same procedure will
\nhave  to be followed by the High Court till then.  Once such
\na  scheme  after  proper  dialogue with the  High  Court  is
\npromulgated  by\t amending the relevant rules then  obviously
\nthe  High  Court even while recommending recruitment to\t the
\nposts  of  District  Judges from members of the Bar  as\t per
\nArticle\t  233(2)  will\tbe  bound  by  such  a\t scheme\t  of
\nreservation.   4.   For\t governing   direct  recruitment  at
\ngrass-root   level  as\tper   the  Bihar  Judicial   Service
\n(Recruitment)  Rules,  1955, 14% reservation for SC and\t 10%
\nreservation  for  ST  candidates shall be  followed  by\t all
\nconcerned  acting  under the said rules and appointments  at
\nthe  grass-root\t level of Judiciary shall be made  following
\nthe  said  scheme of reservation until any other  scheme  of
\nreservation is promulgated by amending the relevant rules by
\nthe  Governor  after  effective consultation with  the\tHigh
\nCourt as envisaged by Article 234 read with Article 309.  5.
\nBy  an\tinterim order dated 16.11.1995 in the  Civil  Appeal
\narising\t out  of SLP(C) No.16476 of 1993 it was directed  as
\nunder  :   Having  heard   counsel  representing  different
\ninterests  we modify the order dated 13.5.94 whereby it\t was
\nstated\tthat  while the process of selection may go  on\t but
\nactual\tappointment  orders  should not be issued.   If\t the
\nselection  process  is over the selectees may  be  appointed
\nsubject\t to the result of this petition and further  subject
\nto  the\t seniority  that may be required to be\tadjusted  if
\nreservation is upheld and candidates to fill in the reserved
\nslots are selected at any time hereafter and become entitled
\nto  appointments.   However,  question\tof  filling  up\t the
\nreserved  posts\t will  not arise and they  shall  remain  in
\nabeyance  but  if  after  this Court decides  the  issue  on
\nreservation in the instant case and selections are made even
\nthereafter  and appointments are made, they will be entitled
\nto their respective seniorities at the slots available as on
\nthe date of appointment of General Category candidates.\n<\/p>\n
      In  this appeal, the appointments of candidates as per
\n1955  Rules to the posts of Subordinate Judges and  Munsiffs
\nare  on the anvil of consideration.  The writ petition filed
\nby  the original writ petitioners before the High Court will
\nstand  partly  allowed\tby  holding that Section  4  of\t the
\nimpugned  Act  does not apply to these recruitments and\t the
\nscheme\tof  reservation of 14% for SCs and 10% for STs\tonly
\nwill  apply to such recruitment.  As a result, the  question
\nof  filling  up of reserved posts in this case\twill  remain
\ngermane\t to the aforesaid extent of permissible\t reservation
\nof  24% for SC and ST candidates.  The concerned authorities
\nwill  work  out\t the rights of the selected  candidates\t for
\nbeing  appointed  to  these  posts  governed  by  the  Bihar
\nJudicial  Service  (Recruitment)  Rules,  1955\taccordingly,
\nkeeping\t in  view  the directions contained in\tthe  interim
\norder  of  this\t Court\tdated 16.11.1995.   6.\t Both  these
\nappeals\t are accordingly dismissed subject to the  aforesaid
\nmodifications  and directions.\tThere will be no order as to
\ncosts in both these appeals.\n<\/p>\n
      .J.  [S.B.  MAJMUDAR]<\/p>\n
      New  Delhi,  March  14, 2000 IN THE SUPREME  COURT  OF
\nINDIA  CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9072  OF
\n1996  State of Bihar & Anr.  ….Appellant Versus Bal Mukund
\nSah & Ors.  ….Respondents (With CA No……\/2000 @ SLP (C)
\nNo.16476\/93)<\/p>\n
      J\t U D G M E N T SETHI, J.  (For himself & Khare,\t J.)
\nWe  have  minutely  perused  the well  prepared,  lucid\t and
\nknowledgeable  judgment of Brother Majmudar, J.\t but find it
\ndifficult  to agree with him on main issues involved in\t the
\ncase,  which undoubtedly are of far reaching consequences on
\nthe  future of the Indian polity.  As the interpretation  of
\nthe  various  provisions of the Constitution in relation  to
\nthe  independence  of judiciary and the sovereign rights  of
\nthe  legislature to make laws with respect to the  Judicial
\nService\t is  likely  to affect\tthe  constitutional  scheme
\nadopted in a Parliamentary democracy, We have opted to write
\na separate judgment.\n<\/p>\n
      Leave granted in SLP 16476 of 1993.\n<\/p>\n
      Concededly  India is a Parliamentary democracy  having
\nan  elaborate written Constitution adopted by the people  of
\nthe country for their governance.  The Constitution declares
\nto  secure to all citizens of the country, justice,  social,
\neconomic  and  political;  liberty of  thought,\t expression,
\nbelief,\t faith\tand  worship  and  equality  of\t status\t and
\nopportunity.  The Parliamentary form of democracy introduced
\nin this country is referable to the West-minister experience
\nof Great Britain.  All the basic principles of Parliamentary
\nsystem practised and followed in United Kingdom were adopted
\nby  the\t founders of the Constitution in our  country.\t The
\nconstitutional\tscheme\tgenerally  envisages  separation  of
\npowers\twhich is not synonymous to the “checks and balances”
\nas prevalent in the United States Constitutional system.  In
\nimplementation\tof the scheme, with respect to separation of
\npowers\tamongst\t the  main wings of the\t State,\t there\tis
\noverlapping  sometimes,\t even  without encroachment  as\t the
\nConstitution  is  found to contain  interactive\t provisions.
\nThe constitutional scheme makes the Executive responsible to
\nthe  Legislature.  The paramount consideration and  dominant
\ngoal  of the Constituent Assembly has been to bring  popular
\npeople\t into  the  Government\t and  make  the\t  Government
\nanswerable to the representatives of the people.  The Indian
\nParliamentary  system adopted and practised for over half  a
\ncentury\t has,  by  and large, kept pace\t with  the  changing
\ncircumstances by embodying innovations and practices to meet
\nthe  requirements  of the changing role of  the\t Parliament.
\nVarious\t provisions  made  in the Constitution\treflect\t the
\ndesire\t  of   the   nation    to   have    a\t practicable
\nsocio-political-economic  system to meet the aspirations  of
\nthe common man.\t The system is intended to deliver the goods
\nand  services to the satisfaction of the common masses.\t The
\nconstitutional\tframework envisaging Parliamentary system of
\ngovernance  ensures  the  establishment\t  of  a\t  sovereign,
\nsocialist,  secular, democratic Republic in the country.  It
\nguarantees  fundamental\t rights and mandates  the  Directive
\nPrinciples  of the State policy.  Besides providing a  quasi
\nfederal\t system in the country and envisaging the scheme for
\ndistribution of legislative powers between the State and the
\nCentre,\t it emphasizes the establishment of the rule of law.
\nThe  form  of  Government envisaged  under  a  Parliamentary
\nsystem\tof democracy is a representative democracy in  which
\nthe  people  of the country are entitled to  exercise  their
\nsovereignty  through the legislature which is to be  elected
\non  the basis of adult franchise and to which the Executive,
\nnamely,\t the  Council  of  Ministers  is  responsible.\t The
\nlegislature  has  been acknowledged to be a nerve centre  of
\nthe State activities.  It is through Parliament that elected
\nrepresentatives\t of the people ventilate peoples grievances.
\nThe  Constitution devises the ways and means in its  various
\nparts by which each of the three branches of the Government,
\nnamely,\t legislative,  executive and judiciary can  function
\nwithout\t interference  of  the\t other\tby  invading  others
\nassigned  sphere.   The\t doctrine of  separation  of  powers
\nthough\tnot  strictly accepted yet provides for\t independent
\njudiciary  in  the States.  This Court in Chandra Mohan\t vs.
\nState  of  Uttar  Pradesh & Ors.<\/a>  [AIR 1966 SC\t1987]  held:
\n“The  Indian  Constitution,  though it does not\t accept\t the
\nstrict\tdoctrine  of separation of powers, provides  for  an
\nindependent  judiciary in the States:  it constitutes a High
\nCourt\tfor  each  State,   prescribes\t the   institutional
\nconditions  of\tservice\t of   the  Judges  thereof,  confers
\nextensive  jurisdiction\t on  it to issue writs to  keep\t all
\ntribunals,  including in appropriate cases the\tGovernments,
\nwithin\tbounds and gives to it the power of  superintendence
\nover all courts and tribunals in the territory over which it
\nhas  jurisdiction.  But the makers of the Constitution\talso
\nrealised  that it is the Subordinate Judiciary in India who
\nare  brought most closely into contact with the people,\t and
\nit is no less important, perhaps indeed even more important,
\nthat  their independence should be placed beyond question in
\nthe  case of the superior Judges. Presumably to secure\tthe
\nindependence  of  the  judiciary  from\tthe  executive,\t the
\nConstitution introduced a group of articles in Ch.VI of Part
\nVI  under the heading “Subordinate Courts”.  But at the time
\nthe  Constitution  was\tmade,  in most\tof  the\t States\t the
\nmagistracy  was\t under the direct control of the  executive.
\nIndeed it is common knowledge that in pre-independence India
\nthere  was a strong agitation was based upon the  assumption
\nthat  unless  they were separated, the independence  of\t the
\njudiciary  at  the  lower  levels would be  a  mockery.\t  So
\narticle 50 of the Directive Principles of Policy states that
\nthe  State  shall take steps to separate the judiciary\tfrom
\nthe  executive in the public services of the States.  Simply
\nstated,\t it  means that there shall be a  separate  judicial
\nservice free from the executive control.”\n<\/p>\n
      The  hallmark  of\t the constitutional  scheme  in\t the
\ncountry\t is  the  role of judicial review  assigned  to\t the
\ncourts.\t  Unlike  United States our Constitution  explicitly
\nempowers  the Supreme court and the High Courts to check the
\nactions of the Executive and the Legislature in case of such
\nactions being incompatible with the Constitution.  To ensure
\nthe  existence\tof  an independent,  effective\tand  vibrant
\njudiciary  provision is made in the Constitution in Part  V,
\nChapter\t IV  dealing  with  the Union  Judiciary,  Part\t VI,
\nChapter\t V  dealing with the High Courts in the\t States\t and
\nChapter\t VI dealing with Subordinate Courts.  This Court, in
\nvarious\t decisions,  has  highlighted\tthe  importance\t  of
\ninsulating the judiciary from executive interference to make
\nit  effectively\t independent.  In S.P.\tGupta vs.  Union  of
\nIndia[1982  (2)\t SCR 365] , Bhagwati, J., as  His  Lordships
\nthen  was  declared  that the principle of  independence  of
\njudiciary  is not an abstract conception but it is a  living
\nfaith\twhich\tmust  derive   its  inspiration\t  from\t the
\nconstitutional\tcharter\t and its nourishment and  sustenance
\nfrom  the  constitutional values.  The Indian judiciary\t was
\ndescribed  as a document of social revolution which casts an
\nobligation  on every instrumentality including the judiciary
\nwhich  is  a  separate\tbut equal branch  of  the  State  to
\ntransform  the\tstatus\tquo ante into a new human  order  in
\nwhich  justice,\t social, economic and political will  inform
\nall institutions of national life and there will be equality
\nof  status and opportunity for all.  The British concept  of
\njusticing  was\tfound  to be satisfactory for a\t stable\t and
\nstatic society but not for a society pulsating with urges of
\ngender\tjustice,  worker justice, minorities justice,  dalit
\njustice\t and equal justice between chronic unequals.  In the
\nwords  of  Glanville Austin, the judiciary has to become  an
\narm  of the socio-economic revolution and perform an  active
\nrole  calculated to bring social justice within the reach of
\nthe common man.\t In the instant case the controversy relates
\nto  the alleged invasion on the independence of\t subordinate
\njudiciary  defined  as judicial service in Article 236\tof
\nthe  Constitution.   It is contended that the provisions  of
\nPart  VI, Chapter VI of the Constitution are to be construed
\nindependently  ignoring the other constitutional  guarantees
\nand  provisions made to deal with the public services of the
\nUnion  and  the States as contemplated under Article 309  of
\nthe  Constitution.  On the one hand it is submitted that the
\nsaid  Chapter VI is a self-contained provision with which no
\ninterference  can  be had by any other organ of\t the  State,
\nnamely,\t the  executive and the legislature.  On  the  other
\nhand it is contended that conceding that the provisions made
\nin  the\t said  Chapter are mandatory, the executive  or\t the
\nlegislature  is\t not  debarred\t from  supplementing   those
\nprovisions without transgressing the limit imposed by law or
\nmaking\tsuch provision which may not amount to\tinterference
\nwith  the judiciary endangering its independence.  Divergent
\nviews\tare  expressed\tregarding   the\t nature\t of  service
\ncontemplated  under  Part  VI, Chpater VI  and\tthe  service
\nreferred  to in Part XIV Chapter I.  The impugned Act  being
\nBihar  Act  No.3 of 1992 is referable to the  provisions  of
\nArticle\t 309 legislated by the State Legislature in exercise
\nof its powers conferred upon it under Part XI Chpater I read
\nwith  Schedule VII Entry 41 List II and Entry IIA List\tIII.
\nSection\t 4  of of the impugned Act deals with  and  provides
\nreservation  in all services including the judicial service.
\nThe High Court of Patna has held the aforesaid section to be
\ninapplicable  to  the judicial service with the result\tthat
\nthe  appointments  to  the judicial service have  been\tmade
\nwithout\t any  reservation.  Without repeating the  facts  as
\nnarrated in the judgment of Majmudar, J., it is noticed that
\nwhen  the  High Court of Patna administratively declined  to
\nconcede\t reservation  in  the judicial services,  the  State
\nLegislature  enacted  the impugned Act.\t Article 233 of\t the
\nConstitution  provides\tthat appointment of District  Judges
\nshall  be made by the Governor of the State in\tconsultation
\nwith  the High Court exercising jurisdiction in relation  to
\nsuch  State.  Direct appointment of a person to the post  of
\nDistrict  Judge\t can  be  made\tonly   if  he  has  been  an
\nAdvocate\/Pleader  for seven years and is recommended by\t the
\nHigh  Court  for appointment.  The appointment\tcontemplated
\nunder  this  Article is the initial appointment from  direct
\nrecruits  or  initial  promotion   from\t the  service.\t The
\nexercise  of  power  of\t appointment   by  the\tGovernor  is
\nconditioned  by\t his consultation with the High Court  which
\nmeans  that  he can appoint only such person to the post  of
\nDistrict  Judge who has been recommended by the High  Court.
\nThe  object of consultation was considered by this Court  in
\nChandra\t Mohan’s  case (Supra) wherein it was  held:   “The
\nConstitutional\tmandate is clear.  The exercise of power  of
\nappointment   by   the\tGovernor  is  conditioned   by\t his
\nconsultation with the High Court that is to say, he can only
\nappoint\t  a  person  to\t the   post  of\t District  Judge  in
\nconsultation   with   the  High\t  Court.   The\t object\t  of
\nconsultation  is  apparent.  The High Court is\texpected  to
\nknow  better than the Governor in regard to the\t suitability
\nor  otherwise of a person, belonging either to the judicial
\nservice or to the Bar, to be appointed as a district judge.
\nTherefore,  a  duty is enjoined on the Governor to make\t the
\nappointment  in\t consultation  with  a\tbody  which  is\t the
\nappropriate  authority to give advice to him.  This  mandate
\ncan be disobeyed by the Governor in two ways, namely, (i) by
\nnot consulting the High Court at all, and (ii) by consulting
\nthe  High  Court  and also other persons.  In  one  case  he
\ndirectly  infringes  the mandate of the Constitution and  in
\nthe  other  he\tindirectly  does so, for  his  mind  may  be
\ninfluenced by other persons not entitled to advice him.”\n<\/p>\n
      This  Court  in State of Assam & Anr.   vs.   Kuseswar
\nSaikia\t&  others<\/a> [AIR 1970 SC 1616] held that the  separate
\njudicial  service  was\tprovided  to make the  office  of  a
\nDistrict  Judge\t completely free of executive  control.\t  In
\nChandramouleshwar  Mohan Prasad vs.  The Patna High Court  &
\nOrs.<\/a>   [AIR 1970 SC 370] this Court held that the underlying
\nidea  of Article 233 is that the Governor should make up his
\nmind  after  there  has been a deliberation  with  the\tHigh
\nCourt.\t The  High  Court is the body  which  is  intimately
\nfamiliar with the efficiency and quality of officers who are
\nfit to be promoted as District Judges.\tThe High Court alone
\nknows  the  merits  as\talso their  demerits  and  that\t the
\nconsultation with the High Court under Article 233 is not an
\nempty  formality.  It is not disputed in this case that\t the
\nState  Legislature  had\t the  plenary  power  to  enact\t the
\nimpugned  Act under Part XI Chapter I read with 7th Schedule
\nEntry  41 of List II and Entry IIA of List III.\t It is\talso
\nnot  disputed  that  the said Act has been enacted  to\tgive
\neffect\tto the fundamental rights, the Directive  Principles
\nof  State  Policy  and\tthe obligation of  the\tState  under
\nArticle 335 of the Constitution.  The controversy rests upon
\nthe  interpretation of Articles 233, 234, 235 and 309 of the
\nConstitution.  The High Court held that the judicial service
\nwas  not  a  service  in the sense  of\temployment  and\t was
\ndistinct   from\t other\tservices.    Referring\tto   various
\nprovisions  of\tthe impugned Act and the definitions of\t the
\nterms  “any office or department” in an “establishment”\t and
\nState”,\t the  High  Court concluded that the  provisions  of
\nSection\t 4  of\tthe  said Act were  not\t applicable  to\t the
\njudicial  service  and that no reservation in terms  thereof
\ncould  be  made in the matter of appointment to the post  of
\nDistrict  Judges and other judicial officers subordinate  to
\nthe  District Judge.  The High Court extensively referred to
\nthe  observations  of  this Court in the case of  All  India
\nJudges\tAssociation & Ors.  vs.\t Union of India & Ors.<\/a>\t[AIR
\n1993  SC 2493] to conclude that the judicial service  having
\nbeen assigned a special status and place in the Constitution
\nwas  in\t contradistinction  to\tother  services\t within\t the
\nconstitutional\tframework.  It was held that the  definition
\nof  “office or department” and of “establishment” under\t the
\nAct  was referable to the office or department of the  Court
\nand  not  the  Court  itself.  Part XIV\t Chapter  I  of\t the
\nConstitution  relates  to “services under the Union and\t the
\nState”.\t  Article 309 authorises the appropriate Legislature
\nto  regulate  the recruitment and conditions of\t service  of
\npersons appointed to public services and posts in connection
\nwith  the  affairs  of the Union or of any  State,  however,
\nsubject to other provisions of the Constitution.  Proviso to
\nArticle\t  309  authorises  the\t executive  to\tmake   rules
\nregulating  the\t recruitment  and conditions of\t service  of
\npersons\t appointed to such services or posts until powers in
\nthat  behalf  are exercised by the  appropriate\t Legislature
\nunder  Article\t309 of the Constitution.   “Public  Service”
\nmeans  anything\t done for the service of the public  in\t any
\npart  of the country in relation to the affairs of the Union
\nor  the State.\tIt was opposite of private service.  Persons
\nconnected  with\t the discharge of public duties relating  to
\nany  of\t the organs of the State i.e.  executive,  judiciary
\nand  legislature including the Armed Forces, would be termed
\nas  “public servants” engaged in the service of the  Public.
\nPublic\tservices and posts in connection with the affairs of
\nthe  Union  or of any State would refer to all services\t and
\nposts  under  the  Union  and the State\t and  include  every
\ncommissioned  officer  in the Military, Naval or Air  Force,
\nevery  Judge, every officer of court of justice, a member of
\nPanchayat,  every  arbitrator  or other person to  whom\t any
\ncause  or matter has been referred for decision or report by
\nany  court of justice, every person who holds any office  by
\nvirtue\tof which he is empowered to place or keep any person
\nin  confinement;  every officer of the Government whose duty
\nit  is\tas  such  officer,  to\tprevent\t offences,  to\tgive
\ninformation of offences, to bring offenders to justice or to
\nprotect\t the  public health, safety or\tconvenience;   every
\nofficer whose duty it is, as such officer, to take, receive,
\nkeep  or expend any property on behalf of the Government, or
\nto  make any survey assessment or contract on behalf of\t the
\nGovernment;  every officer who holds any office in virtue of
\nwhich  he  is  empowered to prepare,  publish,\tmaintain  or
\nrevise\tan electoral roll or to conduct an election or\tpart
\nof  an election;  every person in the service or pay of\t the
\nGovernment  or\tremunerated  by fees or commission  for\t the
\nperformance  of any public duty by the Government;  or\tsuch
\nperson\tin  the\t pay  of a local  authority,  a\t corporation
\nestablished  by\t or  under a Central or State Act,  and\t the
\nlike.\tSection\t 21  of\t the Indian Penal  Code\t may  be  an
\nindicator to refer to the public services and posts intended
\nto  be\tcovered\t or contemplated under Article\t309  of\t the
\nConstitution.  Judicial service, therefore, cannot be termed
\nnot  to\t be  a service within the meaning  of  Article\t309.
\nAccordingly, the appointment of District Judge under Article
\n233  is\t an  appointment to the public\tservice\t within\t the
\nmeaning of Article 309 of the Constitution.  It is true that
\nthe constitutional scheme envisages an independent judiciary
\nnot  being  under  the\tExecutive but  such  an\t independent
\njudiciary  cannot  be termed to be a creation of a  distinct
\nservice\t in  the  State\t being not  subject  to\t law  making
\nsovereign  powers  of  the  Legislature.   Article  309,  as
\nnoticed\t earlier,  is itself subject to other provisions  of
\nthe  Constitution  which  guarantee   the  independence\t  of
\njudiciary.   The power of appointment of District Judges  is
\nvested\tin  the Governor subject to the\t conditions  imposed
\nunder\tArticle\t 233  of   the\tConstitution.\tIt  follows,
\ntherefore,  that  subject  to the other\t provisions  of\t the
\nConstitution,  the appropriate Legislature can regulate\t the
\nrecruitment   and  condition  of   service  of\tall  persons
\nappointed to public services including the judicial services
\nand  posts in connection with the affairs of the Union or of
\nthe  State.   Similarly with restraint of the provisions  of
\nArticle\t 309  the  Governor  of the  State  can\t make  rules
\nregulating  the recruitment and condition of service of such
\npersons.    The\t scheme\t of   the   Constitution,   ensuring
\nindependence of judiciary clearly and unambiguously provides
\nthat  no  power\t is  conferred upon  executive\tto  exercise
\ndisciplinary  authority\t and  jurisdiction   in\t respect  of
\njudicial service.  Express provision has been made under the
\nConstitution,  vesting\tin the High Court “the control\tover
\nDistrict  Courts  and Courts subordinate thereto”.   Such  a
\nprovision  did\tnot  exist in the Government of\t India\tAct,
\n1935.\tIn State of West Bengal & Anr.\tvs.  Nripendra\tNath
\nBagchi<\/a>\t[AIR  1966  SC 447] this Court\tafter  referring  to
\nArticles  233, 234 and 235 of the Constitution held that the
\naforesaid  Articles were intended to make special  provision
\nfor  the judicial service of the State.\t To understand why a
\nspecial\t chapter  was provided when there existed  Part\t XIV
\ndealing\t with  the service under the Union and the State  it
\nwas  found necessary to go into the history of the aforesaid
\nconstitutional provision.  It was held:\t “Before we set down
\nbriefly how this Chapter came to be enacted outside the Part
\ndealing with Services and also why the articles were worded,
\nas they are, we may set down the corresponding provisions of
\nthe  Government\t of  India Act, 1935.  There too  a  special
\nprovision  was\tmade in respect of judicial officers but  it
\nwas  included  as a part of Chapter 2 of Part X which  dealt
\nwith  the  Civil  Services under the Crown  in\tIndia.\t The
\ncognate\t sections  were\t Ss.254\t to  256  and  they  may  be
\nreproduced here:\n<\/p>\n
      “254.  District Judges, etc.<\/p>\n
      (1) Appointments of persons to be, and the posting and
\npromotion  of District Judges in the Province shall be\tmade
\nby  the\t Governor  of  any province shall  be  made  by\t the
\nGovernor   of  the  Province,\texercising  his\t  individual
\njudgment,  and\tthe High Court shall be consulted  before  a
\nrecommendation\tas to the making of any such appointment  is
\nsubmitted to the Governor.\n<\/p>\n
      (2) A person not already in the service of His Majesty
\nshall  only be eligible to be appointed a District Judge  if
\nhe  has\t been  for not less than five years a  Barrister,  a
\nmember of the Faculty of Advocates in Scotland, or a Pleader
\nand is recommended by the High Court for appointment.\n<\/p>\n
      (3)  In  this  and  the next  succeeding\tsection\t the
\nexpression  District  Judge includes  Additional  District
\nJudge, Joint District Judge, Assistant District Judge, Chief
\nJudge  of a Small Cause Court, Chief Presidency\t Magistrate,
\nSessions  Judge,  Additional Sessions Judge,  and  Assistant
\nSessions Judge.\n<\/p>\n
      255.  Subordinate Civil Judicial Service.\n<\/p>\n
      (1)  The\tGovernor  of   each  Province  shall,  after
\nconsultation  with the Provincial Public Service  Commission
\nand with the High Court, make rules defining the standard of
\nqualifications\tto  be\tattained  by  persons  desirous\t  of
\nentering  the  subordinate  civil   judicial  service  of  a
\nProvince.\n<\/p>\n
      In  this\tsection, the expression\t “subordinate  civil
\njudicial  service” means a service consisting exclusively of
\npersons\t intended  to fill civil judicial posts inferior  to
\nthe post of District Judge.\n<\/p>\n
      (2)  The Provincial Public Service Commission for each
\nProvince,  after  holding such examinations, if any, as\t the
\nGovernor may think necessary, shall from time to time out of
\nthe  candidates\t for  appointment to the  subordinate  civil
\njudicial service of the Province make a list or lists of the
\npersons\t whom  they  consider fit for  appointment  to\tthat
\nservice,  and  appointment to that service shall be made  by
\nthe  Governor from the persons included in the list or lists
\nin accordance with such regulations as may from time to time
\nbe  made  by  him as to the number of persons  in  the\tsaid
\nservice\t who  are to belong to the different communities  in
\nthe Province.\n<\/p>\n
      (3)  The\tposting and promotion of, and the  grant  of
\nleave  to,  persons  belonging\tto  the\t subordinate   civil
\njudicial service of a Province and holding any post inferior
\nto  the post of District Judge, shall be in the hands of the
\nHigh  Court, but nothing in this section shall be  construed
\nas  taking  away  from any such person the right  of  appeal
\nrequired  to be given to him by the foregoing provisions  of
\nthis  chapter, or as authorising the High Court to deal with
\nany  such  person  otherwise  than in  accordance  with\t the
\nconditions of his service prescribed thereunder.\n<\/p>\n
      256 Subordinate criminal magistracy.\n<\/p>\n
      No  recommendation  shall\t be made for  the  grant  of
\nmagisterial  powers or of enhanced magisterial powers to, or
\nthe  withdrawal\t of any magisterial powers from, any  person
\nsave  after consultation with the District Magistrate or the
\ndistrict  in  which  he\t is   working,\tor  with  the  Chief
\nPresidency Magistrate, as the case may be.\n<\/p>\n
      It  may  be  pointed out at once that in\tthe  present
\nConstitution  these  provisions\t have been lifted  from\t the
\nChapter dealing with Services in India and placed separately
\nafter  the  provisions\trelating to the High Courts  of\t the
\nStates.\n<\/p>\n
      (8)  As  far back as 1912 the  Islingtons\t Commission
\nstated that the witnesses before the Commission demanded two
\nthings (1) recruitment from the Bar to the superior judicial
\nservice,  namely,  the\tDistrict  judgeship;   and  (2)\t the
\nseparation  of\tthe  judiciary\t from  the  executive.\t The
\nCommission  stated in the report:  Opinion in India is much
\nexercised on the question of the separation of the executive
\nand  the judicial functions of the officers’…and  observed
\nthat  to  bring this about legislation would be\t required.
\nThe  Commission\t made its report on August 14, 1915,  a\t few
\ndays  after the Government of India Act, 1915 (5 and 6\tGeo.
\nV.   c.61) was enacted.\t The Act did not, therefore, contain
\nany  special provision about the judicial services in India.
\nThe  World  War\t I was also going on.  In 1919,\t Part  VII-A
\nconsisting of Ss.96-B to 96-E was added in the Government of
\nIndia  Act,  1915 S.96-B provided that every person  in\t the
\nCivil  Service of the Crown in India held office during\t His
\nMajestys  pleasure  but no person in that service might\t be
\ndismissed  by any authority subordinate to that by which  he
\nwas appointed.\tThe only section that concerns us in S.96-B.
\nSub-s.(2) of that section reads as follows:\n<\/p>\n
      “(2)  The Secretary of State in Council may make rules
\nfor  regulating the classification of the civil services  in
\nIndia, the methods of their recruitment, their conditions of
\nservice,  pay  and allowances, and discipline  and  conduct.
\nSuch  rules  may,  to  such extent and in  respect  of\tsuch
\nmatters\t as may be prescribed, delegate the power of  making
\nrules  to  the\tGovernor-General  in  Council  or  to  Local
\nGovernments,  or  authorise the Indian legislature or  local
\nlegislatures to make laws regulating the public services:”\n<\/p>\n
      The   Fundamental\t Rules\tand   the   Civil   Services
\n(Classification,  Control and Appeal) Rules were made by the
\nSecretary  of State in Council under the above rule-  making
\npower.\t These\trules governed the judicial services  except
\nthe  High  Court.   Part IX of the Government of  India\t Act
\ndealt  with  the Indian High Courts, their constitution\t and
\njurisdiction.\t Section  107  gave  to\t the   High   Courts
\nsuperintendence\t over all Courts for the time being  subject
\nto  its appellate jurisdiction and enumerated the things the
\nHigh  Court could do.  They did not include the appointment,
\npromotion, transfer or control of the District Judges.\tHigh
\nCourt  could only exercise such control as came within their
\nsuperintendence\t over  the  Courts   subordinate  to   their
\nappellate jurisdiction.\t In the Devolution Rules, Item 17 in
\nPart  II  dealing  with\t the  Provincial  subjects  read  as
\nfollows:-\n<\/p>\n
      “Administration  of  justice, including  constitution,
\npowers,\t maintenance  and  organisation of civil  Court\t and
\ncriminal  jurisdiction\twithin\tthe  Province;\t subject  to
\nlegislation  by\t the  Indian  legislature  as  regards\tHigh
\nCourts,\t Chief\tCourts, and Court of Judicial  Commissioners
\nand any Courts of criminal jurisdiction.”\n<\/p>\n
      It  would\t thus  appear  that the\t problem  about\t the
\nindependence  of judicial officers, which was exercising the
\nminds  of  the people did not receive full attention and  to
\nall  intents  and  purposes  the  Executive  Government\t and
\nLegislatures  controlled  them.\t The recommendations of\t the
\nIslington  Commission  remained\t a dead\t letter.   When\t the
\nMontague-Chemlsford  enquiry  took place the object  was  to
\nfind  out  how much share in the legislative  and  executive
\nfields\tcould be given to Indians.  The post of the District
\nJudge was previously reserved for Europeans.  The disability
\nregarding  Indians  was removed as a result of\tthe  Queens
\nProclamation  in  1870 and rules were framed first in  1873.
\nIn  1875 Lord Northbrooks Government framed rules  allowing
\nIndians\t to be appointed and Lord Lyttons Government framed
\nRules  fixing  1\/5th  quota for the Indians.  There  was  no
\nfixed  principle  on  which Indians were appointed  and\t the
\nreport of the Public Service Commission presided over by Sir
\nCharles\t Aitchison  in 1886 contains the system followed  in
\ndifferent  Provinces.\tThis  continued down to\t 1919.\t The
\nGovernment  of India Act had introduced Dyarchy in India and
\nthe question of control of services in the transferred field
\nwas  closely examined when the Government of India Act, 1935
\nwas  enacted.\tIt was apprehended that if  transference  of
\npower  enabled\tthe Ministers to control the  services,\t the
\nflow  of  Europeans to the civil services would become\tlow.
\nGovernment  appointed  several committees, chief among\tthem
\nthe  MacDonnel\tCommittee  considered the  position  of\t the
\nEuropeans  vis-\u00e0-vis  the services.  There was more  concern
\nabout\tEuropeans  than\t about\t the  independence  of\t the
\njudiciary.\n<\/p>\n
      (9)  The Indian Statutory Commission did not deal with
\nthe  subject  of judicial services but the  Joint  Committee
\ndealt with it in detail.  It is interesting to know that the
\nSecretary  of  State  made a preliminary  statement  on\t the
\nsubject\t of  subordinate civil judiciary and his  suggestion
\nwas  to\t leave to the Provincial Legislatures  the  general
\npower  but  to introduce in the Constitution  a\t provision
\nwhich  would  in one respect override those powers,  namely,
\npower to select the individuals for appointment to the Civil
\nJudicial  Services, to lay down their qualifications, and to
\nexercise  over\tthe  members of the  service  the  necessary
\nadministrative\tcontrol.’  He said that ‘the powers  of\t the
\nlocal  Government should be ‘to fix the strength and pay  of
\nthe  services to which the High Court would recruit’ and  to
\nlay   down,   if   they\t so   thought\tfit,   any   general
\nrequirement…’.   During  the debates Marquis of  Salisbury
\nasked  a  question with regard to the general powers of\t the
\nHigh Courts and the control over the subordinate courts.  It
\nwas:\n<\/p>\n
      “As  I  understood  the  Secretary  of  State  in\t his
\nstatement,  the\t control of the High Court  the\t subordinate
\njudges\tin  civil matters has to be as complete as  possible
\nand  maintained.   Is  that  so?.  The\tanswer\twas,  yes.
\n(No.7937)”.\n<\/p>\n
      (10)  The recommendations of the Joint Committee\talso
\nfollowed  the same objective.  In the report (paragraph\t 337
\np.201) the following observations were made:\n<\/p>\n
      “337.    Necessity   for\t securing  independence\t  of
\nsubordinate  judiciary.\t  The Federal and High Court  Judges
\nwill  be  appointed by the Crown and their  independence  is
\nsecure;\t  but appointments to the Subordinate Judiciary must
\nnecessarily  be\t made by authorities in India who will\talso
\nexercise  a certain measure to control over the Judges after
\nappointment,  especially  in  the matter  of  promotion\t and
\nposting.   We  have been greatly impressed by the  mischiefs
\nwhich  have  resulted  elsewhere from a system\tunder  which
\npromotion  from grade to grade in a judicial hierarchy is in
\nthe  hands of a Minister exposed to pressure from members of
\na  popularly elected Legislature.  Nothing is more likely to
\nsap the independence of a magistrate than the knowledge that
\nhis  career  depends  upon the favour of  a  Minister;\t and
\nrecent\texamples (not in India) have shown very clearly\t the
\npressure  which\t may  be  exerted  upon\t a  magistracy\tthus
\nsituated  by  men  who are known, or believed, to  have\t the
\nmeans  of bringing influence to bear upon a Minister.  It is
\nthe  Subordinate  Judiciary  in India who are  brought\tmost
\nclosely\t into  contact\twith the people, and it is  no\tless
\nimportant,  perhaps  indeed even more important, that  their
\nindependence  should  be placed beyond question than in\t the
\ncase of the superior Judges…”.\n<\/p>\n
      As  a  result, when the Government of India Act,\t1935
\nwas passed it contained special provisions (Sections 254-256
\nalready\t quoted)  with\tregard to District  Judges  and\t the
\nsubordinate judiciary.\tIt will be noticed that there was no
\nimmediate attempt to put the subordinate criminal magistracy
\nunder  the  High  Courts but the posting and  promotion\t and
\ngrant  of  leave  of persons belonging\tto  the\t subordinate
\njudicial  service of a Province was put in the hands of High
\nCourt  though  there  was right of appeal to  any  authority
\nnamed in the rules and the High Courts were asked not to act
\nexcept\tin  accordance\twith the conditions of\tthe  service
\nprescribed by the Rules.  As regards the District Judges the
\nposting and promotions of a District Judge was to be made by
\nthe  Governor  of  the Province\t exercising  his  individual
\njudgment  and  the High Court was to be consulted  before  a
\nrecommendation\tto  the\t making of such an  appointment\t was
\nsubmitted to the Governor.  Since S.240 of the Government of
\nIndia  Act, 1935 provided that a civil servant was not to be
\ndismissed   by\tan  authority\tsubordinate  to\t that  which
\nappointed   him,  the  Governor\t  was  also  the  dismissing
\nauthority.   The  Government of India Act, 1935\t was  silent
\nabout\tthe  control  over  the\t  District  Judge  and\t the
\nsubordinate  judicial services.\t The administrative  control
\nof the High Court under S.224 over the courts subordinate to
\nit   extended  only  to\t the   enumerated  topics   and\t  to
\nsuperintendence\t  over\tthem.\tThe   independence  of\t the
\nsubordinate  judiciary\tand to the District Judges was\tthus
\nassured to a certain extent, but not quite.\n<\/p>\n
      (11)  When  the  Constitution was\t being\tdrafted\t the
\nadvance\t made  by the 1935 Act was unfortunately lost  sight
\nof.   The draft Constitution made no mention of the  special
\nprovisions, not even similar to those made by the Government
\nof India Act, 1935, in respect of the subordinate judiciary.
\nIf  that had remained, the judicial services would have come
\nunder  Part  XIV  dealing with the services  in\t India.\t  An
\namendment,   fortunately,  was\taccepted   and\tled  to\t the
\ninclusion  of  Arts.233\t to 237.  These\t articles  were\t not
\nplaced\tin the Chapter on services but immediately after the
\nprovisions  in regard to the High Courts.  The articles went
\na  little  further  than the corresponding sections  of\t the
\nGovernment of India Act.”\n<\/p>\n
      It  was  further held that Articles 233 and  235\tmade
\nmention\t to two distinct powers.  The first relates to power
\nof  appointment of persons, their posting and promotion\t and
\nthe  second  is\t the power to control.\tThis Court  did\t not
\naccept the contention that the word “District Court” denoted
\nonly the court but not the Presiding Judge.  The latter part
\nof  Article 235 has been held to refer to the man who  holds
\nthe  office.  The Articles vest “control in the High Court”.
\nThe  purpose  of  the aforesaid Articles was held to  be  in
\nregard\twith  the Directive Principles in Article 50 of\t the
\nConstitution  which  mandates  the States to take  steps  to
\nseparate  the  judiciary  from the executive in\t the  public
\nservices  of  the  State.   Reference\tto  Article  50\t  in
\nconnection  with  Articles  233, 234 and  235,\tclearly\t and
\nunambiguously  shows  that  this  Court has  held  that\t the
\njudicial  service was a public service within the meaning of
\nArticle\t 309  regarding\t which law could be  made,  however,
\nsubject\t to  other provisions of the Constitution  providing
\nand  guaranteeing  the independence of judiciary.   In\tB.S.
\nYadav  &  Ors, etc.v.  State of Haryana & Ors., etc.   [1981
\n(1)  SCR 1024] this Court considered the scope and extent of
\nArticles  235 and 309 of the Constitution and held that\t the
\npower  to frame rules regarding the judicial officers vested
\nin  the Governor and not in the High Court.  The first\tpart
\nof  Article  235 vests the control over District Courts\t and
\ncourts\tsubordinate thereto in the High Court and the second
\npart  of that Article mandates that nothing in the  Articles
\nshall  be construed as taking away from any person belonging
\nto  the\t judicial service any right of appeal which  he\t may
\nhave  under  law  regulating the conditions  of\t service  or
\nauthorising  the High Court to deal with him otherwise\tthan
\nin  accordance with the conditions of his service prescribed
\nunder  such law.  Outer limits of the High Court’s powers of
\ncontrol\t over  the  subordinate\t judiciary  have  thus\tbeen
\ndefined\t providing that it is not open to the High Court  to
\ndeny  to a member of the subordinate judicial service of the
\nState  the  right  of  appeal  given to\t him  by  law  which
\nregulates  the\tconditions  of his service.  Even  the\tHigh
\nCourt, in exercise of its power of control, cannot deal with
\nsuch person otherwise than in accordance with the conditions
\nof his service which are prescribed by law.  This court then
\nput  a\tquestion to itself as to who had the power  to\tpass
\nsuch  a law and answered it:  “Obviously not the High  Court
\nbecause,  there is no power in the High Court to pass a law,
\nthough rules made by the High Court in the exercise of power
\nconferred  upon it in that behalf may have the force of law.
\nThere  is a distinction between the power to pass a low\t and
\nthe  power  to make rules, which by law, have the  force  of
\nlaw.  Besides, law which the second part of Art.235 speaks
\nof,  is law made by the legislature because, if it were\t not
\nso,  there  was no purpose in saying that the  High  Courts
\npower  of  control  will  not be construed  as\ttaking\taway
\ncertain\t rights\t of certain persons under a  law  regulating
\ntheir  conditions  of  service.\t  It  could  not  have\tbeen
\npossibly intended to be provided that the High Courts power
\nof  control  will  be subject to the conditions\t of  service
\nprescribed  by\tit.   The clear meaning, therefore,  of\t the
\nsecond\tpart  of  Article 235 is that the power\t of  control
\nvested\tin the High Court by the first part will not deprive
\na judicial officer or the rights conferred upon him by a law
\nmade  by  the  legislation   regulating\t him  conditions  of
\nservice.\n<\/p>\n
      Article  235  does not confer upon the High Court\t the
\npower  to  make rules relating to conditions of\t service  of
\njudicial officers attached to district courts and the courts
\nsubordinate thereto.  Whenever, it was intended to confer on
\nany  authority\tthe power to make any special provisions  or
\nrules,\tincluding  rules relating to conditions of  service,
\nthe  Constitution has stated so in express terms.  See,\t for
\nexample\t Articles  15(4), 16(4), 77(3), 87(2), 118,  145(1),
\n146(1),\t and  2(148)(5), 166(3), 176(2), 187(3),  208,\t225,
\n227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).
\nOut of this fasciculus of Articles, the provisions contained
\nin  Articles  225,  227(2) and (3) and 229(1) and  (2)\tbear
\nrelevance  on  the question, because these  Articles  confer
\npower  on the High Court to frame rules for certain specific
\npurpose.  Article 229(2) which is directly in point provides
\nin  express terms that subject to the provisions of any\t law
\nmade  by  the  legislature of the State, the  conditions  of
\nservice\t of  officers and servants of a High Court shall  be
\nsuch  as  may be prescribed by the rules made by  the  Chief
\nJustice\t or  by\t some other Judge or officer  of  the  Court
\nauthorised  by\tthe  Chief  Justice to make  rules  for\t the
\npurposes.   With this particular provision before them,\t the
\nframers\t of  the  Constitution\twould  not  have  failed  to
\nincorporate  a\tsimilar provision in Article 235 if  it\t was
\nintended  that the High Courts shall have the power to\tmake
\nrules  regulating  the\tconditions of  service\tof  judicial
\nofficers  attached to district courts and courts subordinate
\nthereto.\n<\/p>\n
      Having seen that the Constitution does not confer upon
\nthe  High  Court  the  power to make  rules  regulating\t the
\nconditions  of service of judicial officers of the  district
\ncourts\tand the courts subordinate thereto, we must  proceed
\nto  consider:  who, then, possesses that power?\t Article 309
\nfurnishes  the\tanswer.\t  It  provides\t that  Acts  of\t the
\nappropriate  legislature  may regulate the  recruitment\t and
\nconditions  of\tservice\t of persons appointed  to  posts  in
\nconnection  with  the affairs of the Union or of any  State.
\nArticle 248(3), read with Entry 41 in List II of the Seventh
\nSchedule,  confers upon the State legislatures the power  to
\npass laws with respect to “State public services” which must
\ninclude\t the  judicial services of the State.  The power  to
\ncontrol\t vested\t in  the  High\tCourt  by  Art.235  is\tthus
\nexpressly, by the terms of that Article itself, made subject
\nto  the\t law  which  the  State\t legislature  may  pass\t for
\nregulating  the\t recruitment  and   service  conditions\t  of
\njudicial  officers  of the State.  The power to pass such  a
\nlaw  was evidently not considered by the Constitution makers
\nas an encroachment on the ‘control jurisdiction’ of the High
\nCourts\tunder  the first part of Article 235.\tThe  control
\nover the district courts and subordinate courts is vested in
\nthe  High  Court in order to safeguard the  independence  of
\njudiciary.   It is the High Court, not the executive,  which
\npossesses  control  over the State judiciary.  But, what  is
\nimportant to bear in mind is that the Constitution which has
\ntaken  the greatest care to preserve the independence of the
\njudiciary  did not regard the power of the State legislature
\nto  pass  laws regulating the recruitment and conditions  of
\nservice\t of  judicial  officers as an infringement  of\tthat
\nindependence.\tThe  mere  power to pass such a law  is\t not
\nviolative  of the control vested in the High Court over\t the
\nState Judiciary.\n<\/p>\n
      It  is  in  this context that the proviso\t to  Art.309
\nassumes relevance and importance.  The State legislature has
\nthe  power  to\tpass  laws regulating  the  recruitment\t and
\nconditions  of\tservice of judicial officers of\t the  State.
\nBut  it was necessary to make a suitable provision  enabling
\nthe  exercise of that power until the passing of the law  by
\nthe legislature on that subject.  The Constitution furnishes
\nby  its\t provisions ample evidence that it abhors a  vacuum.
\nIt  has\t therefore made provisions to deal  with  situations
\nwhich arise on account of the ultimate repository of a power
\nnot exercising that power.  The proviso to Art.309 provides,
\nin  so\tfar  as material, that until the  State\t Legislature
\npasses\ta  law\ton  the\t particular  subject,  it  shall  be
\ncompetent  to  the  Governor  of the  State  to\t make  rules
\nregulating  the recruitment and the conditions of service of
\nthe judicial officers of the State.  The Governor thus steps
\nin  when the legislature does not act.\tThe power  exercised
\nby  the Governor under the proviso is thus a power which the
\nlegislature is competent to exercise but has in fact not yet
\nexercised.   It\t partakes  of  the  characteristics  of\t the
\nlegislative, not executive, power.  It is legislative power.\n<\/p>\n
      That  the\t Governor possesses legislative power  under
\nour  Constitution is incontrovertible and, therefore,  there
\nis  nothing  unique  about the Governors  power\t under\tthe
\nproviso\t to Article 309 being in the nature of a legislative
\npower.\tBy Article 168, the Governor of a State is a part of
\nthe legislature of the State.  And the most obvious exercise
\nof  legislative power by the Governor is the power given  to
\nhim by Art.213 to promulgate ordinances when the legislature
\nis not in session.  Under that Article, he exercises a power
\nof  the same kind which the legislature normally  exercises:
\nthe  power to make laws.  The heading of Chapter IV of\tPart
\nVI  of\tthe  Constitution,  in\t which\tArt.213\t occurs,  is
\nsignificant:   “Legislative  Power  of the  Governor”.\t The
\npower  of  the Governor under the proviso to Article 309  to
\nmake  appropriate  rules  is  of   the\tsame  kind.   It  is
\nlegislative  power.   Under Article 213, he substitutes\t for
\nthe legislature because the legislature is in recess.  Under
\nthe  proviso  to  Article  309,\t  he  substitutes  for\t the
\nlegislature  because  the legislature has not yet  exercised
\nits power to pass an appropriate law on the subject.\n<\/p>\n
      It  is true that the power conferred by Article 309 is
\n“subject  to” the provisions of the Constitution.  But it is
\nfallacious  for\t that  reason to contend that  the  Governor
\ncannot frame rules regulating the recruitment and conditions
\nof  service  of the judicial officers of the State.  In\t the
\nfirst place, the power of control conferred upon High Courts
\nby  the first part of Article 235 is expressly made subject,
\nby  the\t second\t part of that Article,\tto  laws  regulating
\nconditions  of service of its judicial officers.  The  first
\npart  of  Article 235 is, as it were, subject to  a  proviso
\nwhich  carves out an exception from the area covered by\t it.
\nSecondly,  the Governor, in terms equally express, is  given
\nthe  power  by the proviso to Article 309 to frame rules  on
\nthe  subject.\tA combined reading of Articles 235  and\t 309
\nwill  yield  the  result  that\t though\t the  control\tover
\nSubordinate  Courts  is\t vested\t in   the  High\t Court,\t the
\nappropriate  legislature,  and until that legislature  acts,
\nthe  Governor  of  the State, has the power  to\t make  rules
\nregulating  the recruitment and the conditions of service of
\njudicial   officers  of\t the  State.\tThe  power  of\t the
\nlegislature  or of the Governor thus to legislate is subject
\nto  all\t other\tprovisions  of the  Constitution  like,\t for
\nexample,  Articles 14 and 16.  The question raised before us
\nis  primarily  one of the location of the power, not of\t its
\nextent.\t  The  second  part of Article\t235  recognises\t the
\nlegislative  power  to\tprovide\t  for  recruitment  and\t the
\nconditions of service of the judicial officers of the State.
\nThe  substantive  provision  of Article 309,  including\t its
\nproviso, fixes the location of the power.  The opening words
\nof Article 309 limit the amplitude of that power.”\n<\/p>\n
      It  was further declared that the mere power to pass a
\nlaw  or to make rules having the force of law regulating the
\nservice\t conditions did not impinge upon the control  vested
\nin  the\t High Court over the district courts and the  courts
\nsubordinate thereto by Article 235.  Such laws or the rules,
\nas  the\t case  may be, can provide for general\tor  abstract
\nrules  (of  seniority in that case) leaving it to  the\tHigh
\nCourt  to apply them to each individual case as and when the
\noccasion arises.  The opening words of Article 309, “subject
\nto  provisions\tof  this Constitution” do  not\texclude\t the
\nprovision contained in the first part of Article 235.  It is
\nthus  clear that though the legislature or the Governor\t has
\nthe  power  to\tregulate seniority of judicial\tofficers  by
\nlaying\tdown  rules of general application, yet\t that  power
\ncannot\tbe  exercised  in  a   manner  which  will  lead  to
\ninterference  with  the control vested in the High Court  by
\nthe  first part of Article 235.\t In The High Court of Punjab
\n&  Haryana,  etc.  etc.\t vs.  State of Haryana & Ors.,\tetc.
\netc.   [AIR  1975  SC  613] it was held that  the  power  of
\nappointment  of\t persons to be District Judges is vested  in
\nthe  Governor  of  the State under Article 233.\t  The  words
\n“posting  and  promotion of district judge” in\tArticle\t 233
\nmean initial appointment by direct recruitment of persons to
\nbe  district  judges and the posting mentioned\ttherein\t the
\ninitial\t posting.   Promotion  of district judges  has\tbeen
\nexplained  to  mean  promotion\tof persons  to\tbe  district
\njudges.\t  In  All India Judges Association case(supra)\tthis
\nCourt  no doubt held:  “The judicial service is not  service
\nin the sense of ’employment’.  The judges are not employees.
\nAs  members  of the judiciary, they exercise  the  sovereign
\njudicial  power\t of the State.\tThey are holders  of  public
\noffices\t in  the same way as the members of the\t council  of
\nministers  and\tthe members of the legislature.\t When it  is
\nsaid  that  in a democracy such as ours, the executive,\t the
\nlegislature  and the judiciary constitute the three  pillars
\nof  the\t State, what is intended to be conveyed is that\t the
\nthree  essential functions of the State are entrusted to the
\nthree  organs  of  the State and each one of  them  in\tturn
\nrepresents  the authority of the State.\t However, those\t who
\nexercise the State power are the ministers, the legislatures
\nand  the  judges,  and not the members of  their  staff\t who
\nimplement  or  assist in implementing their decisions.\t The
\ncouncil of ministers or the political executive is different
\nfrom  the secretarial staff or the administrative  executive
\nwhich  carries out the decisions of the political executive.
\nSimilarly,   the   legislators\tare   different\t  from\t the
\nlegislative  staff.   So also the Judges from  the  judicial
\nstaff.\t The parity is between the political executive,\t the
\nlegislators  and  the Judges and not between the Judges\t and
\nthe  administrative executive.\tIn some democracies like the
\nU.S.A.,\t members  of some State judiciaries are\t elected  as
\nmuch  as the members of the legislature and the heads of the
\nState.\tThe Judges, at whatever level they may be, represent
\nthe  State  and\t its  authority\t unlike\t the  administrative
\nexecutive or the members of the other services.\t The members
\nof  the\t other services, therefore, cannot be placed on\t par
\nwith  the members of the judiciary, either  constitutionally
\nor functionally.\n<\/p>\n
      This distinction between the Judges and the members of
\nthe other services has to be constantly kept in mind for yet
\nanother\t important reason.  Judicial independence cannot  be
\nsecured\t by  making mere solemn proclamations about it.\t  It
\nhas  to be secured both in substance and in practice.  It is
\ntrite  to  say\tthat those who are in want cannot  be  free.
\nSelf-reliance  is  the\tfoundation   of\t independence.\t The
\nsociety\t has  a\t stake in ensuring the independence  of\t the
\njudiciary,  and no price is too heavy to secure it.  To keep
\nthe  judges in want of the essential accoutrements and\tthus
\nto impede them in the proper discharge of their duties is to
\nimpair and whittle away justice itself.”\n<\/p>\n
      But  it  has  to\tbe kept in mind\t that  in  the\tsame
\njudgment  this Court considered the powers under Article 309
\nof  the\t Constitution  authorising  the\t executive  and\t the
\nlegislative  to\t prescribe  the service\t conditions  of\t the
\njudiciary,  however,  rejecting the contention that in\tthat
\nregard judiciary did not have any say in the matter.  It was
\nheld:\t“In  view of the separation of the powers under\t the
\nConstitution,  and the need to maintain the independence  of
\nthe  judiciary to protect and promote democracy and the rule
\nof  law, it would have been ideal if the most dominant power
\nof  the\t executive and the legislative over  the  judiciary,
\nviz.,  that  of determining its service conditions had\tbeen
\nsubjected to some desirable checks and balances.  This is so
\neven  if ultimately, the service conditions of the judiciary
\nhave  to be incorporated in and declared by the\t legislative
\nenactments.   But the mere fact that Art.309 gives power  to
\nthe  executive and the legislature to prescribe the  service
\nconditions of the judiciary does not mean that the judiciary
\nshould\thave no say in the matter.  It would be against\t the
\nspirit of the Constitution to deny any rule to the judiciary
\nin that behalf, for theoretically it would not be impossible
\nfor  the executive or the legislature to turn and twist\t the
\ntail  of  the  judiciary by using the said  power.   Such  a
\nconsequence  would be against one of the seminal mandates of
\nthe  Constitution,  namely, to maintain the independence  of
\nthe judiciary.”\n<\/p>\n
      It   may\tbe  noticed  that   the\t All  India   Judges
\nAssociation  had filed Writ Petition (C) No.1022\/89 in\tthis
\nCourt  praying\ttherein:  “1.  Uniformirty in  the  Judicial
\ncadres in the different States and Union Territories;\n<\/p>\n
      2.   An appropriate enhanced uniform age of retirement
\nfor the Judicial Officers throughout the country;\n<\/p>\n
      3.  Uniform pay scales as far as possible to be fixed;\n<\/p>\n
      4.   Residential accommodation to be provided to every
\nJudicial Officer.\n<\/p>\n
      5.   Transport  facility\tto  be\tmade  available\t and
\nconveyance allowance provided.\n<\/p>\n
      6.   Adequate  perks  by\tway  of\t Library  Allowance,
\nResidential  Office Allowance, and Sumptuary Allowance to be
\nprovided.\n<\/p>\n
      7.  Provision for inservice training to be made.”\n<\/p>\n
      Upon  consideration  of various aspects including\t the
\nreports\t of  the Law Commission, this Court recommended\t and
\ndirected that:\t“(i) An all India Judicial Service should be
\nset  up and the Union of India should take appropriate steps
\nin this regard.\n<\/p>\n
      (ii)  Steps should be taken to bring about  uniformity
\nin  designation of officers both in civil and criminal\tside
\nby 31.3.1993.\n<\/p>\n
      (iii) Retirement age of judicial officers be raised to
\n60   years  and\t appropriate  steps   are  to  be  taken  by
\n31.12.1992.\n<\/p>\n
      (iv)  As\tand when the Pay Commissions\/Committees\t are
\nset  up in the States and Union Territories, the question of
\nappropriate  pay scales of judicial officers be specifically
\nreferred and considered.\n<\/p>\n
      (v)  A  working  library\tat the\tresidence  of  every
\njudicial officer has to be provided by 30.6.1992.  Provision
\nfor sumptuary allowance as stated has to be made.\n<\/p>\n
      (vi)  Residential\t accommodation\tto  every   judicial
\nofficer\t has to be provided and until State accommodation is
\navailable,   Government\t   should    provide   requisitioned
\naccommodation\tfor   them  in\t the  manner  indicated\t  by
\n31.12.1992.    In  providing\tresidential   accommodation,
\navailability of an office room should be kept in view.\n<\/p>\n
      (vii)   Every  District  Judge   and  Chief   Judicial
\nMagistrate  should have a State vehicle.  Judicial  officers
\nin  sets of 5 should have a pool vehicle and others would be
\nentitled   to\tsuitable  loans\t to  acquire   two   wheeler
\nautomobiles within different time limits as specified.\n<\/p>\n
      (viii) Inservice Institute should be set up within one
\nyear at the Central and State or Union Territory level.”\n<\/p>\n
      It  may  be  remembered that the\trecommendations\t and
\ndirections  were  issued by the Court in a writ petition  in
\nwhich  no  objection was raised regarding the competence  of
\nthe  State to enact laws and make rules under Article 309 of
\nthe  Constitution.  In exercise of its powers under  Article
\n32  of\tthe  Constitution this Court was  clothed  with\t the
\nauthority  and\tpowers vesting in it under Articles 141\t and
\n142  of the Constitution.  The judgment in All India  Judges
\nAssociation  case decided that the issuance of directions by
\nthe  Court  did not have the effect of encroaching upon\t the
\npowers\tof  the executive and the legislature under  Article
\n309  of\t the  Constitution.   The   Court  referred  to\t the
\nrecommendations\t of the Law Commission made in the year 1958
\nand  observed that the said recommendations had been made to
\nimprove\t the  system of justice and thereby to\timprove\t the
\ncontent\t and quality of justice administered by the  Courts.
\nIt  was\t noted\tthat  “instead\t of  improving,\t they\thave
\ndeteriorated  making it necessary to update and better\tthem
\nto   meet  the\tneeds  of   the\t present  times”.   It\t was
\nspecifically  held:  “By giving directions in question, this
\nCourt has only called upon the executive and the legislature
\nto  implement  their imperative duties.\t The Court do  issue
\ndirections  to\tthe authorities to perform their  obligatory
\nduties\twhenever  there\t is  a\tfailure\t on  their  part  to
\ndischarge  them.  The power to issue such mandates in proper
\ncases belongs to the Courts.  As has been pointed out in the
\njudgment  under review, this Court was impelled to issue the
\nsaid  directions  firstly  because  the\t executive  and\t the
\nlegislature  had failed in their obligations in that behalf.
\nSecondly,  the\tjudiciary  in  this  country  is  a  unified
\ninstitution  judicially though not administratively.   Hence
\nuniform\t designations  and hierarchy, with  uniform  service
\nconditions  are\t unavoidable  necessary\t consequences.\t The
\nfurther\t directions  given, therefore, should not be  looked
\nupon  as an encroachment on the powers of the executive\t and
\nthe  legislature to determine the service conditions of\t the
\njudiciary.   They are directions to perform the long overdue
\nobligatory duties.\n<\/p>\n
      The  contention  that  the directions  of\t this  Court
\nsupplant  and bypass the constitutionally permissible  modes
\nfor  change  in\t the law, we think, wears thin if  the\ttrue
\nnature\tand  character of the directions are realised.\t The
\ndirections   are  essentially  for   the  evolvement  of  an
\nappropriate  national policy by the Government in regard  to
\nthe  judiciarys condition.  The directions issued are  mere
\naids  and  incidental  to  and\t supplemental  of  the\tmain
\ndirection and as a transitional measure till a comprehensive
\nnational policy is evolved.  These directions, to the extent
\nthey go, are both reasonable and necessary.”\n<\/p>\n
      In  Hari Datt Dainthla & Anr.  vs.  State of  Himachal
\nPradesh\t &  Ors.<\/a>   [AIR\t 1980  SC  1426]  this\tCourt  held:
\n“Article  233 confers power on the Governor of the State  to
\nappoint persons either by direct recruitment or by promotion
\nfrom  amongst  those  in the judicial  service\tas  District
\nJudges\tbut this power is hedged in with the condition\tthat
\nit can be exercised by the Governor in consultation with the
\nHigh  Court.  In order to make this consultation  meaningful
\nand  purposive\tthe  Governor has to consult High  Court  in
\nrespect\t of  appointment  of each person as  District  Judge
\nwhich  includes an Additional District Judge and the opinion
\nexpressed  by  the  High Court must be\tgiven  full  weight.
\nArticle\t  235  invests\tcontrol\t  over\tsubordinate   courts
\nincluding the officers manning subordinate courts as well as
\nthe  ministerial  staff attached to such courts in the\tHigh
\nCourt.\tTherefore, when promotion is to be given to the post
\nof   District\tJudge  from   amongst  those  belonging\t  to
\nsubordinate  judicial service, the High Court unquestionably
\nwill  be  competent  to decide whether a person is  fit\t for
\npromotion  and consistent with its decision to recommend  or
\nnot  to\t recommend such person.\t The Governor who  would  be
\nacting\ton  the advice of the Minister would hardly be in  a
\nposition  to  have intimate knowledge about the quality\t and
\nqualification  of such person for promotion.  Similarly when
\na  person  is to be directly recruited as a  District  Judge
\nfrom  the  Bar the reasons for attaching full weight to\t the
\nopinion\t of the High Court for its recommendation in case of
\nsubordinate  judicial  service would mutatis mutandis  apply
\nbecause\t the  performance of a member of the Bar  is  better
\nknown  to the High Court than the Minister or the  Governor.
\nIn  Chandra Mohan v.  State of Uttar Pradesh<\/a> (1967) 1 SCR 77
\nat  p.83  (AIR 1966 SC 1987), a Constitution Bench  of\tthis
\nCourt observed as under:\n<\/p>\n
      “The constitutional mandate is clear.  The exercise of
\nthe  power of appointment by the Governor is conditioned  by
\nhis consultation with the High Court, that is to say, he can
\nonly  appoint  a  person to the post of\t District  Judge  in
\nconsultation   with   the  High\t  Court.   The\t object\t  of
\nconsultation  is  apparent.  The High Court is\texpected  to
\nknow  better than the Governor in regard to the\t suitability
\nor  otherwise of a person, belonging either to the ‘judicial
\nservice’ or to the Bar, to be appointed as a District Judge.
\nTherefore,  a  duty is enjoined on the Governor to make\t the
\nappointment  in\t consultation  with  a\tbody  which  is\t the
\nappropriate authority to give advice to him.”\n<\/p>\n
      This  view was reaffirmed in Chandramouleshwar  Prasad
\nv.   Patna High Court<\/a> (1970) 2 SCR 666:\t (AIR 1970 SC  270),
\nobserving:\n<\/p>\n
      “The  High  Court\t is  the body  which  is  intimately
\nfamiliar with the efficiency and quality of officers who are
\nfit to be promoted as District Judges.\tThe High Court alone
\nknows their merits as also demerits.”\n<\/p>\n
      It  was further held that in the absence of  statutory
\nrules regulating the promotions from one post in subordinate
\njudicial  service  to higher post in the same  service,\t the
\nHigh  Court  would  be\tthe sole  authority  to\t decide\t the
\nquestion  in exercise of its control under Article 235 which
\nempowers  the  High  Court with complete  control  over\t the
\nsubordinate   courts.\tThe  existence\t of   this   control
\ncomprehends  the  power to decide eligibility for  promotion
\nfrom  one post in the subordinate judicial service to higher
\npost  in the same service except where one reaches the stage
\nof  giving promotion when Article 233 would be attracted and
\nthe  power to give promotion would be in Governor hedged  in
\nwith  the  condition  that  the\t  Governor  can\t act   after
\nconsultation  with the High Court which has been  understood
\nto  mean  on the recommendation of the High Court.   If\t the
\nHigh Court felt that the post of District Judge being a very
\nresponsible  post  should be filled up by promotion only  on
\nmerits,\t it is incumbent upon it to propose necessary  rules
\nand  get  them enacted under Article 309.  In Chandra  Mohan
\nvs.   State of Uttar Pradesh & Ors.<\/a>  [1967 (1) SCR 77]\tthis
\nCourt held that the Constitution contemplates an independent
\njudiciary   in\tthe  States  and  in  order  to\t place\t the
\nindependence  of the subordinate judiciary beyond  question,
\nprovides,  in Article 50 of the Directive Principles for the
\nseparation  of the judiciary from the executive and  secures
\nsuch independence by enacting Articles 233 to 237 in Chapter
\nVI   of\t  the  Constitution.\tUnder  these  Articles\t the
\nappointment  of\t the District Judges in any State are to  be
\nmade  by  the Governor of the State, from the  two  sources,
\nnamely, :  (i) service of the Union or of the State and (ii)
\nmembers\t of the Bar.  The words “service of the Union or  of
\nthe State” do not mean any other service of the Union or the
\nState  except  the  judicial service as defined\t in  Article
\n236(b)\tof the Constitution.  This Court specifically  held:
\n“Appointments  of  persons  to\tbe,   and  the\tposting\t and
\npromotion  of, district judges in any state shall be made by
\nthe  Governor  of  the\tState.\tThere  are  two\t sources  of
\nrecruitment,  namely,  (i)  service of the Union or  of\t the
\nState,\tand  (ii) members of the Bar.  The said judges\tfrom
\nthe first source are appointed in consultation with the High
\nCourt  and those from the second source are appointed on the
\nrecommendation\tof  the\t High  Court.  But in  the  case  of
\nappointments  of persons to the judicial service other\tthan
\nas district judges, they will be made by the Governor of the
\nState in accordance with rules framed by him in consultation
\nwith  the High Court and the Public Service Commission.\t But
\nthe  High Court has control over all the district courts and
\ncourts\tsubordinate  thereto, subject to certain  prescribed
\nlimitations.\n<\/p>\n
      So  far  there is no dispute.  But the  real  conflict
\nrests  on  the question whether the Governor can appoint  as
\ndistrict  judges  persons  from\t  services  other  than\t the
\njudicial  service;  that is to say, can he appoint a  person
\nwho  is in the police, excise, revenue or such other service
\nas  a district judge?  The acceptance of this position would
\ntake  us  back to the pre-independence days and that too  to
\nthe  conditions\t prevailing in the Princely States.  In\t the
\nPrincely  States one used to come across appointments to the
\njudicial  service  from police and other departments.\tThis
\nwould\talso  cut  across  the\t well-knit  scheme  of\t the
\nConstitution  and  the principle underlying it, namely,\t the
\njudiciary  shall  be an independent service.  Doubtless,  if
\nArt.233(1)  stood alone, it may be argued that the  Governor
\nmay  appoint any person as a district judge, whether legally
\nqualified  or  not, if he belongs to any service  under\t the
\nState.\tBut Art.233(1) is nothing more than a declaration of
\nthe  general  power  of\t the   Governor\t in  the  matter  of
\nappointment  of\t district judges.  It does not lay down\t the
\nqualifications\tof the candidates to be appointed or  denote
\nthe  sources from which the recruitment has to be made.\t But
\nthe  sources of recruitment are indicated in cl.(2) thereof.
\nUnder  cl.(2) of Art.233 two sources are given, namely,\t (i)
\npersons\t in  the service of the Union or of the\t State,\t and\n<\/p>\n
(ii)  advocate\tor  pleader.   Can it be said  that  in\t the
\ncontext\t of  Ch.VI  of\tPart VI of  the\t Constitution,\t‘the
\nservice\t of the Union or of the State’ means any service  of
\nthe  Union  or\tof the State or does it\t mean  the  judicial
\nservice\t of  the Union or of the State?\t The setting,  viz.,
\nthe  chapter  dealing with subordinate courts, in which\t the
\nexpression  the service appears indicates that the service
\nmentioned therein is the service pertaining to courts.\tThat
\napart,\tArt.236(b) defines the expression judicial service
\nto mean a service consisting exclusively of persons intended
\nto  fill the post of district judge and other civil judicial
\nposts  inferior\t to  the post of district  judge.   If\tthis
\ndefinition,  instead of appearing in Art.236, is placed as a
\nclause\tbefore Art.233(2), there cannot be any dispute\tthat
\n‘the  service’\tin  Art.233(2) can only\t mean  the  judicial
\nservice.  The circumstances that the definition of ‘judicial
\nservice’  finds\t a  place in a subsequent Article  does\t not
\nnecessarily lead to a contrary conclusion.  The fact that in
\nArt.233(2)  the expression ‘the service’ is used whereas  in
\nArt.234\t and 235 the expression ‘judicial service’ is  found
\nis  not decisive of the question whether the expression ‘the
\nservice’  in  Art.233(2)  must be something other  than\t the
\njudicial  service,  for, the entire chapter is dealing\twith
\nthe  judicial service.\tThe definition is exhaustive of\t the
\nservice.   Two\texpressions in the definition bring out\t the
\nidea  that  the\t judicial service consists of  hierarchy  of
\njudicial  officers starting from the lowest and ending\twith
\ndistrict   judges.    The   expressions\t ‘exclusively’\t and
\n‘intended’  emphasise  the  fact that the  judicial  service
\nconsists  only\tof persons intended to fill up the posts  of
\ndistrict  judges and other civil judicial posts and that  is
\nthe  exclusive service of judicial officers.  Having defined
\n‘judicial  service’ in exclusive terms, having provided\t for
\nappointments  to  that\tservice\t and  having  entrusted\t the
\ncontrol\t of the said service to the care of the High  Court,
\nthe  makers  of the world Constitution not have conferred  a
\nblanket power on the Governor to appoint any person from any
\nservice as a district judge.\n<\/p>\n
      Reliance\tis placed upon the decision of this court in
\nRameshwar  Dayal  v.   State of Punjab<\/a> (1961) 2 SCR  874  in
\nsupport\t of  the contention that the service in\t Art.233(2)
\nmeans  any  service under the State.  The question  in\tthat
\ncase  was,  whether a person whose name was on the  roll  of
\nadvocates  of the East Punjab High Court could be  appointed
\nas  a  district judge.\tIn the course of the  judgment\tS.K.
\nDas, J., speaking for the Court, observed:\n<\/p>\n
      “Article\t233 is a self contained provision  regarding
\nthe  appointment of District Judges.  As to a person who  is
\nalready\t in  the  service of the Union or of the  State,  no
\nspecial\t qualifications\t are laid down and under cl.(1)\t the
\nGovernor  can  appoint such a person as a district judge  in
\nconsultation  with the relevant High Court.  As to a  person
\nnot  already  in  service, a qualification is laid  down  in
\ncl.(2)\tand  all  that is required is that he should  be  an
\nadvocate or pleader of seven years standing.”\n<\/p>\n
      This  passage  is nothing more than a summary  of\t the
\nrelevant  provisions.  The question whether the service in
\nArt.233(2)  is any service of the Union or of the State\t did
\nnot  arise for consideration in that case nor did the  Court
\nexpress any opinion thereon.\n<\/p>\n
      We,  therefore, construe the expression the  service
\nin cl.(2) of Art.233 as the judicial service.”\n<\/p>\n
      There  is no dispute that the power under Article\t 309
\nconferred  upon the legislature and the executive is subject
\nto  the\t opening words of the Article.\tThe legislature\t and
\nthe executive cannot enact any law or make any rule which is
\nin violation of any other provision of the Constitution.  If
\nany  law or rule is made contravening any other provision of
\nthe  Constitution  including Articles 14, 15, 16,  19,\t124,
\n217,  233,  234,  and 235, such law or rule shall  be  void.
\nThis Article, however, does not debar the legislature or the
\nexecutive  to  make  provision with respect to\tthe  matters
\nwhich  are  not in the covered field of other provisions  of
\nthe  Constitution.   Various provisions of the\tConstitution
\nincluding  Part III Chapter VI, Part XIV Chapter I and\tPart
\nXI  Chapter  I\tread with Seventh Schedule are\tto  be\tread
\nconjointly  and interpreted harmoniously to make the various
\norgans\tof  the\t State function in their  respective  fields
\nsubject\t to  limitations imposed by the Constitution  itself
\nincluding  the\tpower of the courts of judicial review.\t  It
\ncannot,\t therefore, be accepted that the judicial service is
\nsuch  an  independent  service\t which\tdeprives  the  State
\nLegislature  and the executive to enact laws and make  rules
\nwith  respect  to matters mentioned in Article 309  but\t not
\ncovered\t under Articles 233 to 236 of the Constitution.\t The
\nprovisions  of\tPart III Chapter VI and Part XIV  Chapter  I
\nhave  to be understood as complementary and supplementary to
\neach  other.  Exercise of power under Article 309 is further
\ncurtailed  by  the  constitutional mandate that\t no  law  be
\nenacted\t and rule made which in any way affects the  working
\nof  independent\t judiciary in the country.  Such  principles
\nshall,\thowever,  be  not applicable in the case  of  higher
\njudiciary  constituted and established under Part V  Chapter
\nIV  and\t Part VI Chapter V.  The Supreme Court of India\t and
\nthe  High  Courts  in the country are the  creation  of\t the
\nConstitution  and  the\tjudges presiding over  such  courts,
\nconstitutional\t functionaries.\t  The\t higher\t  judiciary,
\ntherefore,  cannot  be\tequated with the  “public  services”
\ncontemplated  under Part XIV Chapter I of the  Constitution.
\nThe conditions of eligibility for appointment to the Supreme
\nCourt  are  such conditions as are prescribed under  Article
\n124 of the Constitution and for the High Court as prescribed
\nunder Article 217 of the Constitution.\tThese conditions, if
\nallowed\t to  be amended, modified or substituted by  way  of
\nlegislation  in\t terms of Article 309 of  the  Constitution,
\nwould  render  the  Union and the  State  judiciary  defunct
\nwhich,\tmay  amount to clipping its wings resulting  in\t the
\ndestruction  of\t independence  of the  higher  judiciary  as
\ncontemplated  by  the Constitution framers.  The  conditions
\nfor  appointment of judges to the Supreme Court and the High
\nCourts\tmay  not  be  amendable\t even  by  a  constitutional
\namendment  as  the same is likely to tamper with the  Indian
\njudiciary and thereby adversely affect the basic features of
\nthe  Constitution.   The  Constitution\tenvisages  a  single
\njudiciary,  uniformity\tin  Fundamental\t  laws,\t civil\t and
\ncriminal,  and\ta common All India Service to man  important
\nposts.\t Speaking on the nature of the constitutional scheme
\nDr.Ambedkar  in his speech delivered on November 4, 1948  in
\nthe  Constituent  Assembly had said:  “A dual  judiciary,  a
\nduality of legal codes and a duality of civil services, as I
\nsaid, are the logical consequences of a dual polity which is
\ninherent in a federation.  In the USA, the Federal Judiciary
\nand the State Judiciary are separate and independent of each
\nother.\t The  Indian Federation though a Dual Policy has  no
\nDual  Judiciary\t at  all.  The High Courts and\tthe  Supreme
\nCourt\tform   one  single   integrated\t  Judiciary   having
\njurisdiction  and  providing remedies in all  cases  arising
\nunder  the constitutional law, the civil law or the criminal
\nlaw.   (Constitutent  Assembly Debates.\t Vol.7 (1948-49)  at
\npp.34,36-37).”\n<\/p>\n
      This  Court  in S.P.  Gupta’s case (Supra) held  that:
\n“An  analysis of the various provisions of the\tConstitution
\nand  other laws having a bearing on the question shows\tthat
\nevery  High  Court in India is an integral part of a  single
\nIndian\tjudiciary and judges who hold the posts of judges of
\nHigh  Courts belong to a single family even though there may
\nbe  a  slight  variation in two of the authorities  who\t are
\nrequired  to  be consulted at the time of  the\tappointment.
\nThe  provisions\t dealing with the High Courts are  found  in
\nChapter\t V  in\tPart  VI   of  the  Constitution  containing
\nprovisions  governing  the  States and the salaries  of\t the
\njudges\tof  a  High Court are paid out of the funds  of\t the
\nState  or States over which it exercises jurisdiction.\t Yet
\nit  is difficult to say that each High Court is\t independent
\nof the other High Courts.  A perusal of the other provisions
\nin  that  Chapter shows that the State Legislatures and\t the
\nState  Governments  have  very little to do so\tfar  as\t the
\norganisation of the High Courts is concerned.”\n<\/p>\n
      Judges  of  the High Court do not constitute a  single
\nAll  India  Cadre  or a ‘judicial service’  which  could  be
\nsubjected  to the Legislature in terms of Article 309 of the
\nConstitution.\tWhile  dealing\twith the High  Court  Judges
\nTransfer case, Bhagwati, J.  (as His Lordship then was) held
\nthat:\t“….the judiciary should be in a country like India
\nwhich  is marching along the road to social justice with the
\nbanner\tof democracy and the rule of law, for the  principle
\nof  independence  of  the  judiciary   is  not\tan  abstract
\nconception  but\t it is a living faith which must derive\t its
\ninspiration   from  the\t constitutional\t  charter  and\t its
\nnourishment  and sustenance from the constitutional  values.
\nIt  is necessary for every Judge to remember constantly\t and
\ncontinually  that  our\tConstitution is\t not  a\t non-aligned
\nrational  charter.   It is a document of  social  revolution
\nwhich casts an obligation on every instrumentality including
\nthe  judiciary, which is a separate but equal branch of\t the
\nState,\tto  transform the status quo ante into a  new  human
\norder  in which justice, social, economic and political will
\ninform\tall institutions of national life and there will  be
\nequality  of status and opportunity for all.  The  judiciary
\nhas, therefore, a socio- economic destination and a creative
\nfunction.   It has to use the words of Glanville Austin,  to
\nbecome\tan arm of the socio-economic revolution and  perform
\nan active role calculated to bring social justice within the
\nreach  of  the common man.  It cannot remain content to\t act
\nmerely\tas an umpire but it must be functionally involved in
\nthe goal of socio-economic justice”.  In these appeals, even
\nthe  learned  counsel appearing on behalf of the  appellants
\nhas not tried to compare or equate the subordinate judiciary
\nwith   the  distinct  and   independent\t  higher   judiciary
\ncomprising  of\tthe  judges of Supreme Court  and  the\tHigh
\nCourts.\t  The  apprehension  expressed\ton  behalf  of\t the
\nrespondents  that if allowed to enact laws like the impugned
\nBihar  Act, the Union Legislature may by law or amendment of
\nthe   Constitution  provide  reservations   in\tthe   higher
\njudiciary  with\t the  object of controlling it\tand  thereby
\ndemolishing the independence of judicary, is thus apparently
\nmisconceived  besides  being  far-fetched.  In\tthe  present
\nappeals,  it  is  conceded  before us  by  all\tthe  parties
\nconcerned  that appointments to the posts of District Judges
\nare  governed by the Bihar Superior Judicial Service  Rules,
\n1951  (hereinafter referred to as “1951 Rules”) which  have,
\nadmittedly,  been made by the Governor of Bihar in  exercise
\nof  powers conferred upon him by the proviso to Article\t 309
\nread  with  Article 233 of the Constitution.   Reference  to
\nArticle\t 233 of the Constitution only indicates that  before
\nmaking the rules the High Court had been consulted.  Article
\n233  of the Constitution itself does not envisage the making
\nof  rules either by the Governor or by the High Court.\tRule
\n5  of the 1951 Rules provides that appointment to the  Bihar
\nSuperior  Judicial  Service  shall, in the  first  instance,
\nordinarily  be to the post of Additional District & Sessions
\nJudge and shall be made by the Governor in consultation with
\nthe  High  Court:   “(a) by direct  recruitment\t from  among
\npersons\t qualified  and\t recommended by the High  Court\t for
\nappointment  under  clause  (2)\t of   Article  233  of\t the
\nConstitution;  or<\/p>\n
      (b)  by  promotion,  from among members of  the  Bihar
\nJudicial Service.”\n<\/p>\n
      Of the Posts in the cadre of the service, 2\/3rd are to
\nbe filled by promotion and 1\/3rd by direct recruitment.\t The
\nState  Government may, in consultation with the High  Court,
\ndeviate\t from the said proportion in either direction.\tRule
\n3 read with Schedule provides the sanctioned strength of the
\nservice\t whereas other provisions relate to promotion,\tpay,
\nallowances  and\t seniority.  There is no dispute that  these
\nrules have been and are being acted upon till date i.e.\t for
\nabout  half  a century.\t The High Court was, therefore,\t not
\njustified  in  holding that the law made under\tArticle\t 309
\nwould  not apply to the judicial service.  If the rules made
\nby  the\t executive under Article 309 have been\tapplied\t and
\nacted  upon,  no objection could be taken to  the  sovereign
\npowers\tof  the\t legislature  to enact and  make  laws\twith
\nrespect\t to  the judicial service in exercise of  its  power
\nunder  first part of Article 309 of the Constitution.  It is
\nalso  admitted\tthat  for appointments to the posts  in\t the
\njudicial  service other than the District Judges, the  State
\nGovernor, in exercise of his powers conferred upon him under
\nArticle 234 of the Constitution, after consultation with the
\nHigh  Court  of\t Judicature at Patna and  the  Bihar  Public
\nService\t Commission  has  made the rules  called  as  “Bihar
\nJudicial  Service  (Recruitment) Rules,\t 1955”\t(hereinafter
\nreferred  to  as  “1955 Rules”).  Rule 2 of the\t said  Rules
\nprovides  that the recruitment to the post of munsiff  shall
\nbe  made in accordance with the rules and recruitment to the
\npost of subordinate judge shall be made by the High Court by
\npromotion  of munsiffs confirmed under Rule 24 and appointed
\nunder  Rule 26.\t Rule 3 authorises the Governor to decide in
\neach  year the number of vacancies in the post of munsiff to
\nbe  filled by appointments to be made on a substantive basis
\nor  on a temporary basis or both.  The Bihar Public  Service
\nCommission  is\tobliged\t to announce in each  year  in\tsuch
\nmanner\tas  they  think fit the number of  vacancies  to  be
\nfilled\tin that year by direct recruitment on the basis of a
\ncompetitive  examination for which applications are required
\nto  be\tinvited\t from candidates eligible  for\tappointments
\nunder  the  rules.  The Commission has the power to fix\t the
\nlimit  in  any particular year as to the eligibility of\t the
\ncandidates  to be admitted to the written examination and if
\nthe  number  of candidates exceeds to the limit\t fixed,\t the
\nCommission may make a preliminary selection of candidates to
\nbe  admitted  to  the written examination, on the  basis  of
\ntheir  academic\t records.   No candidate  of  the  Scheduled
\nCastes\tor  the Scheduled Tribes who is\t otherwise  eligible
\nunder  the  Rules  can\tbe excluded from  appearing  at\t the
\nwritten\t examination.\tRules 6 provides:  “6.\tA  candidate
\nmay  be of either sex, and must – (a) be under 31 years\t and
\nover  22 years of age on the 1st day of August preceding the
\nyear in which the examination is held:\n<\/p>\n
      Provided\tthat  a candidate belonging to\ta  Scheduled
\nCaste  or a Scheduled Tribe must be under 36 years and\tover
\n22 years of age on the said date:\n<\/p>\n
      Provided further that no candidate who does not belong
\nto  a Scheduled Caste or a Scheduled Tribe shall be  allowed
\nto take more than five chances at the examination;\n<\/p>\n
      (b) be a graduate in Law of a University recognised by
\nthe  Governor  or  a  Barrister-at-Law or a  member  of\t the
\nfaculty\t of  advocates\tin Scotland, or an Attorney  on\t the
\nrolls  of  a  High  Court,   or\t possess  other\t educational
\nqualifications\twhich  the Governor may, after\tconsultation
\nwith  the  High\t Court\tand the Commissions,  decide  to  be
\nequivalent to those prescribed above;  and<\/p>\n
      (c)  be  a  practitioner at the Bar of  at  least\t one
\nyears\tcontinuous   standing\ton    the   date   of\tthe
\nadvertisement.”\n<\/p>\n
      Rule  6A provides that no person who has more than one
\nwife  living  shall  be\t eligible  for\tappointment  to\t the
\nservice.   Rule 7 provides that a candidate must be of sound
\nhealth,\t good  physique and active habits and free from\t any
\nphysical  defect  likely  to interfere\twith  the  efficient
\nperformance  of the duties of a member of the Service.\tWith
\nhis  application  a  candidate\tis required  to\t submit\t the
\nrequired  documents as detailed in Rule 9.  The\t examination
\nis  to be held according to syllabus specified in Appendix C
\nto  the\t Rules which are liable to alteration from  time  to
\ntime  by  the  Government after consultation with  the\tHigh
\nCourt and the Commission.  The Commission has the discretion
\nto  fix\t the qualifying marks in any or all subjects at\t the
\nwritten\t examination  in  consultation with the\t Patna\tHigh
\nCourt.\t  The  minimum\tqualifying   marks  for\t  candidates
\nbelonging to Scheduled Castes and Scheduled Tribes shall not
\nbe higher than 35 per cent unless the number of such persons
\nat  the\t written  examination  according  to  the  standards
\napplied\t for  other candidates is considerably in excess  of
\nthe  number  of\t candidates required to fill  the  vacancies
\nreserved  for the Scheduled Casts and the Scheduled  Tribes.
\nthe  Commission\t is obliged to consult the Chief Justice  of
\nthe  High Court in the matter of selection of examiners\t for
\nthe  Law  papers  prescribed for  the  written\texamination.
\nViva-voce  test\t of the candidates is to be held under\tRule\n<\/p>\n
17.   The Chief Justice is authorised to appoint an  officer
\nto  represent the High Court at the viva-voce test.  Rule 20
\nprovides  that\tCommission  shall,   while  submitting\t the
\nrecommendations, consider the claims of qualified candidates
\nbelonging  to the Scheduled Castes and the Scheduled Tribes.
\nIf  the\t list of nominees submitted under Rule 19  does\t not
\ncontain\t an  adequate number of candidates belonging to\t the
\nScheduled  Castes  and the Scheduled Tribes, the  Commission
\nshall  submit  a supplementary list nominating a  sufficient
\nnumber\tof  such candidates as in their opinion\t attain\t the
\nrequired  standard of qualifications and are in all  respect
\nsuitable  for  appointment  to\tthe service.   It  has\tbeen
\nconceded  before  us that to give effect to Rule 20  of\t the
\nRules,\tthe  Commission and the High Court have been  acting
\nupon  the Government orders issued from time to time  making
\nreservations to the extent of 24% in favour of the Scheduled
\nCastes\tand the Scheduled Tribes.  It is undisputed that the
\n1955  Rules  were  made\t strictly  in  accordance  with\t the
\nrequirement  of Article 234 of the Constitution after proper
\nconsultation  with  the\t High Court and the  Public  Service
\nCommission.  It appears that the controversy arose only when
\nthe  State  Government insisted to make reservations in\t the
\nSuperior  Judicial Service which was vehemently resisted  by
\nthe  High Court.  The facts disclosed in the appeal entitled
\nState  of  Bihar vs.  Deepak Singh & Ors.<\/a>  indicate that  on
\n30.1.1991  the State Government consented the High Court and
\nBihar\tPublic\t Service     Commission\t  regarding   making
\nreservations  in  the judicial service.\t The Public  Service
\nCommission   vide  its\tletter\t No.   112  dated  30.1.1991
\ncommunicated its consent regarding the proposed amendment in
\nthe  Bihar  Judicial  Service\t(Recruitment)  Rules,  1955.
\nHowever,  the  High Court vide Memo No.5999 dated  16.4.1991
\ninformed the Government that “the court, in the interests of
\njudiciary,  is unable to agree to the proposal of the  State
\nGovernment”.   The  aforesaid letters exchanged between\t the
\nState  Government, High Court and Public Service  Commission
\nobviously indicate that the State Government had intended to
\namend  the  rules already framed in exercise of\t the  powers
\nvesting\t  in  the  Governor  under   Article  234   of\t the
\nConstitution.\tIn view of the resistance of the High Court,
\nbeing  one  of the consultees in terms of Article  234,\t the
\nState  of Bihar opted to promulgate an Ordinance called “The
\nBihar  Reservation  of Vacancies in Posts and Services\t(for
\nScheduled  Castes  and Scheduled Tribes and  Other  Backward
\nClasses)   Ordinance,1991”   under  Article   213   of\t the
\nConstitution.\t The  aforesaid\t  Ordinance  was  thereafter
\nsubstituted by the Bihar Act No.3 of 1992 which was enforced
\nwith immediate effect except Section 4 which was declared to
\nhave  come  into force with effect from 1st November,  1994.
\nThe  Reservation  Ordinance  was   challenged  in   C.W.J.C.
\nNo.7619\/91.   The validity of letter dated 1.10.1990 whereby
\ndirections  were issued to the effect that the vacancies  of
\n24th  Judicial\tCompetitive Examination shall be  filled  in
\naccordance  with  the said Ordinance were  also\t challenged.
\nDuring\tthe  pendency  of the aforesaid writ  petition,\t the
\nOrdinance  was\treplaced by an Act No.3 of 1992.   The\tHigh
\nCourt  allowed the writ petition vide the order impugned  in
\nthis  appeal holding that the impugned Ordinance\/Act as also
\nthe  letter dated 1.10.1990.  In so far as its applicability
\nto  the State is concerned, it was ultra vires and  contrary
\nto  the\t mandate  of  Article\t234  of\t the   Constitution.
\nSimilarly  the\tfacts  revealed in Civil  Appeal  No.9072\/96
\nindicate  that\twhen  on  13.10.1993  the  State  Government
\ndecided\t to  fill  up the vacancies of\tAdditional  District
\nJudges\tthrough\t fresh advertisement as per directions,\t the
\nState  Government on 16.11.1993 requested the High Court  to
\nsend  the  vacancies  categorywise in  accordance  with\t the
\nprovisions  of\tAct of 1991.  On 16.12.1993 the\t High  Court
\ninformed  the  State Government that fresh advertisement  be
\nissued\tunder  Rule  5(a) and 6 of the 1951 Rules.   It\t was
\nfurther\t recommended that for eligibility the minimum age of
\nthe  applicants\t be  35\t years and  maximum  50\t year.\t The
\nGovernment  was further informed by the High Court that\t the
\n1991  Act  will\t neither be applicable nor followed  in\t the
\nmatter of direct recruitment from the Bar.  No preference be
\ngiven to any person on the basis of caste, religion and sex.
\nOn  4.1.1994  the High Court was informed by the  Government
\nthat  the  provisions  of  the\tAct of\t1991  will  also  be
\napplicable  to\tthe  appointments in the  Superior  Judicial
\nService in the State of Bihar.\tThe High Court was requested
\nto  send the vacancies reservation- wise.  On 25.2.1994, the
\nHigh  Level  Meeting  under the Chairmanship  of  the  Chief
\nSecretary  to the Government of Bihar was held in which\t the
\nSecretary  (Law)  and  Registrar  of  the  High\t Court\talso
\nparticipated.\tIn  this meeting a request was made  to\t the
\nHigh  Court  to send upto date vacancies in accordance\twith
\nthe Reservation Act as the non compliance was apprehended to
\nlead  to  an offence under the Act.  The High Court  on\t 5th
\nApril,\t1994  reiterated  its position and  vide  it  letter
\naddressed  to the Additional Secretary to the Government  of
\nBihar  intimated:   “With reference to your above  mentioned
\nletter on the subject noted above, I am directed to say that
\nthe  State  Government has already been informed  about\t the
\nresolution  adopted  by\t the  Court that in  the  matter  of
\nappointment of Additional District and Sessions Judge direct
\nfrom  the  Bar,\t merit\twould be the sole  criteria  and  no
\npreference  will  be given to any candidate on the basis  of
\ncaste, religion or sex.\t The resolution adopted by the Court
\ndoes  further state that without accepting the provision  of
\nthe  Bihar Reservation of Vacancy in Posts and Services (for
\nScheduled   Castes\/Scheduled  Tribes   and  other   Backward
\nClasses)  Act,\t1991, the Court are always prepared to\tgive
\npreference  to a candidate belonging to the Scheduled  Caste
\nor Scheduled Tribe, provided that he is found to be of equal
\nmerit with other candidates.\n<\/p>\n
      It needs to be appreciated that the post of Additional
\nDistrict  and  Sessions\t Judge,\t in  the  Superior  Judicial
\nService,  carries  with it a greater responsibility  in\t the
\nmatter\tof administration of justice.  The post demands that
\nthe  holder  of the post should be a person  of\t appreciable
\nmerit  and  requisite calibre to perform the functions of  a
\nSenior Judicial Officer.”\n<\/p>\n
      On  1.9.1994,  the High Court again intimated  to\t the
\nState  Government of its position.  It is to be noticed that
\nbefore\t this\tdate  the   State  Government\thad   issued
\nadvertisement\ton  16.6.1994\tinviting  applications\t for
\nrecruitment  of Additional District and Sessions Judge\tfrom
\nthe  Bar  reserving  post  for\t the  Scheduled\t Castes\t and
\nScheduled  Tribes, backward classes, etc.  to the extent  of
\nthe  limits prescribed under the Reservation Act.  Aggrieved
\nby  the\t advertisement\/notification  respondents  Advocates
\nfiled  the  writ  petition seeking a  declaration  that\t the
\nprovisions  of the Reservation Act were void and inoperative
\ninsofar\t as  they  relate  to the  Bihar  Superior  Judicial
\nService.   The aforesaid writ petition was disposed of\tvide
\nthe  judgment  impugned in this appeal.\t It is thus  evident
\nthat  having failed to get the consent of the High Court  in
\nframing\t the  Rules either under Article 234 or Article\t 309
\nread with Article 233 of the Constitution, resort was had to
\nthe  issuance  of  Ordinance  and  thereafter  enacting\t the
\nimpugned Act.  This unfortunate position arose on account of
\nthe  antagonistic and belligerent approaches adopted by\t the
\nState  Government and the High Court.  Had the aforesaid two
\nwings  of the State acted fairly realising their obligations
\nunder  the  Constitution, the confrontation could have\tbeen
\navoided.   Such\t a recourse was depricated by this Court  in
\nB.S.   Yadavs  case  (supra)  observing\t “this\tunfortunate
\nposition  has  arisen largely because of the failure of\t the
\nState  Governments  to take the High Court  into  confidence
\nwhile  amending\t the Rules of Service.\tWe must express\t our
\nconcern\t at  the manner in which the Rules of  the  Superior
\nJudicial Service have been amended by the Governor of Punjab
\nand  particularly by the Governor of Haryana”.\tIn that case
\nthe  Rules  had been amended despite the opposition  of\t the
\nHigh  Court  and amendment in Haryana was made in  order  to
\nspite  a  single judicial officer who was a direct  recruit.
\nBoth the State Government and the Patna High Court failed to
\nrealise\t their\tconstitutional obligations in the matter  of
\npublic\tservice.   The\tinsistence of the  State  Government
\ncould have been substituted by persuations and antagonism by
\nthe  High Court could have been avoided by adopting rational
\napproach  realising  the responsibility of the State of\t the
\nconstitutional\t obligations   mandating    them   to\tmake
\nreservations  in  favour  of  the  weaker  sections  of\t the
\nsociety.   It  cannot be denied that the Reservation  Policy
\nhas  been accepted to be a part of the Indian  Parliamentary
\nDemocracy as a safeguarding measure to protect the interests
\nof  the Scheduled Castes and Scheduled Tribes.\tReservations
\nhave  been  made  in  the   Constitution  to  safeguard\t the
\ninterests  of Scheduled Castes and Scheduled Tribes  keeping
\nin  mind the proportions of their population.  It cannot  be
\ndenied\tthat  such weaker sections of the society have\tbeen
\nsubjected  to  decades\tof   exploitation,  persecution\t and
\ndiscrimination\tby  the hostile dominating  classes,  having
\nbeen kept outside the sphere of the mainstream for centuries
\nand  deprived of their due share in the polity of the State.
\nThey were acknowledged to be given a special treatment under
\nthe Constitution.  The reservation on the basis of the caste
\nhas  a\tlong  history  in  our country.\t  Good\tor  bad\t the
\nreservation  being  the part of the Constitution,  the\tHigh
\nCourt should not have adopted an adamant attitude of totally
\nrefusing  to concede to the request of the State  Government
\nfor  making  reservations  for the weaker  sections  of\t the
\nsociety.   The hostility between two wings of the State have
\nnot,  in any way, strengthened the democratic set up nor has
\nit benefitted any section of the Society or institution.  It
\nis  to be noticed that the reservations made by the impugned
\nAct  were  not\tchallenged  on the ground  of  being  either
\nviolative  of  Fundamental Rights or contrary to  the  other
\nprovisions of the Constitution, except to the extent noticed
\nhereinabove.  Relying upon judgment in K.N.  Chandra Sekhara
\n&  Ors.v.   State of Mysore (AIR 1963 Mysore 292)  and\tM.I.
\nNadaf vs.  The State of Mysore (AIR 1967 Mysore 77) the High
\nCourt  vide the order impugned in Deepak Kumars case  held:
\n“Article  234 directs the appointment of persons to  certain
\ncadres\tof  the\t judicial  service  of\tthe  State  only  in
\naccordance  with the Rules made under that Article and which
\nappoints  the  Governor of the State, the authority to\tmake
\nthese  rules after consultation with the High Court and\t the
\nPublic\tService Commission.  It is manifest from Article 234
\nof  the Constitution that the constitutional intent was that
\nappointments  to  the judicial services in a  State,  unlike
\nother State services, should be regulated only by rules made
\nunder  that Article and not by a law made by the Legislature
\nof  the\t State, which was conferred power by Article 309  to
\nmake  laws for recruitment to other services.  The  judicial
\nservice\t was selected for special treatment and appointments
\nto it were excepted out of the operation of Article 309, and
\nout  of the orbit of ordinary Legislative Control.   Article
\n234  incorporates  a  command  of the  Constitution  on\t the
\nsubject\t of  appointments  to  the cadres  of  the  judicial
\nservice\t referred to in it and constitutes the Governor in a
\nsense  a select Legislative organ for the enactment of rules
\nfor  the accomplishment of the Constitutional purpose.\t The
\nstatus\tof the rules so enacted is as high as that of a\t law
\nmade  by the Legislature under Article 309 and of the  rules
\nmade  under the proviso to it.\tThe attributes of a Governor
\nto enact rules under Article 234 therefore resemble those of
\na  Legislature\tenacting legislation in its own\t legislative
\nfield.\t The similitude between the power of the Legislature
\nand  the power of the Governor being so obvious, it is clear
\nthat  the  bounds  of permissible delegation  in  each\tcase
\nshould also be similar.”\n<\/p>\n
      It  cannot  be disputed that the judicial service\t has
\nbeen  given  a special treatment under the Constitution\t and
\nthe appointments to the judicial service can be made only in
\naccordance with the rules made by the Governor under Article
\n234  after  consultation  with\t the  State  Public  Service
\nCommission  and\t the High Court exercising  jurisdiction  in
\nrelation  to  such State.  It follows, therefore,  that\t the
\nGovernor  or the executive have no right, power or authority
\nto  make  rules with respect to the recruitment\t of  persons
\nother  than  the District Judges to the judicial service  of
\nthe  State  under  Article 309 of the  Constitution.   Rules
\ngoverning  the\tservice\t conditions of such persons  in\t the
\njudicial  service  can be made by the Governor only  in\t the
\nmanner\tas prescribed under Article 234 of the Constitution.
\nIt  is, however, difficult to accept the finding of the High
\nCourt that the status of the Rules enacted under Article 234
\nof  the\t Constitution is as high as that of law made by\t the
\nlegislature  under Article 309.\t It cannot be accepted\tthat
\nthe  attributes\t of a Governor to enact Rules under  Article
\n234  resemble those of a legislature enacting legislation in
\nits  own legislative field and have overriding effect.\t The
\npower  of  the\tlegislature  to\t  make\tlaw  regulating\t the
\nrecruitment  and conditions of service for persons appointed
\nto  public services and posts in connection with the affairs
\nof  Union  or  of  any\tState\tunder  Article\t309  of\t the
\nConstitution  is  only\tsubject to the other  provisions  of
\nConstitution  which  have been noticed hereinbefore.   Rules
\nmade  under the delegated legislation cannot be termed to be
\nsuch  other provisions of the Constitution.  It is not\tonly
\nArticle\t 234  which confers power upon the Governor to\tmake
\nRules  in the manner prescribed but various other provisions
\nincluding  Article 309 which authorise him to make rules for
\nthe  purposes envisaged and the restrictions and  restraints
\nimposed\t by the Constitution itself.  It is settled position
\nof  law that the Legislature cannot part with its  essential
\nlegislative  function.\t A  surrender\tof  such   essential
\nfunction would amount to abdication of legislative powers in
\nthe eyes of law.  No rule or law made by virtue of delegated
\nlegislation  can supersede or override the powers  exercised
\nor  the\t law made by the delegator of power,  the  sovereign
\nlegislative,  in  exercise of its constitutional right\twith
\nrespect\t to a matter or subject over which it has  otherwise
\nplenary\t  power\t of  legislation.   In\tRe:   Article\t143,
\nConstitution  of India and Delhi Laws Act (1912) etc.\t[AIR
\n1951 SC 332], Kania, CJ, after dealing with various cases of
\nforeign courts found that the Indian Legislature had plenary
\npowers\tto  legislate  on the subjects\tfalling\t within\t its
\npowers\tunder the Constitution.\t He further observed, “every
\npower  given  to  a delegate can be  normally  called  back.
\nThere can hardly be a case where this cannot be done because
\nthe  legislative  body which confers powers on the  delegate
\nhas always the power to revoke that authority and it appears
\ndifficult  to visualise a situation in which such power\t can
\nbe  irrevocably\t lost”.\t  Referring  to\t the  constitutional
\nscheme\tin  this  country, Kania, CJ held:  “Under  the\t new
\nConstitution  of  1950,\t the British  Parliament,  i.e.\t  an
\noutside\t authority,  has  no more control  over\t the  Indian
\nLegislature.   That  Legislatures  powers are  defined\tand
\ncontrolled  and\t the limitations thereon prescribed only  by
\nthe Constitution of India.  But the scope of its legislative
\npower has not become enlarged by the provisions found in the
\nConstitution  of India.\t While the Constitution creates\t the
\nParliament  and although it does not in terms expressly vest
\nthe  legislative  powers in the Parliament exclusively,\t the
\nwhole  scheme  of the Constitution is based on\tthe  concept
\nthat  the  legislative\tfunctions  of\tthe  Union  will  be
\ndischarged  by\tthe  Parliament and by no other\t body.\t The
\nessential   of\t the  legislative   functions,\t viz.,\t the
\ndetermination  of the legislative policy and its formulation
\nas  a  rule of conduct, are still in the Parliament  or\t the
\nState  Legislature, as the case may be and nowhere else.   I
\ntake  that view because of the provisions of Article 357 and
\nArticle\t 22(4)\tof the Constitution of India.\tArticle\t 356
\nprovides  against  the\tcontingency of the  failure  of\t the
\nconstitutional\tmachinery in the States.  On a\tproclamation
\nto  that  effect  being issued, it is  provided\t in  Article
\n357(a)\tthat the power of the legislature of the State shall
\nbe  exercisable by or under the authority of the Parliament,
\nand  it\t shall be competent for the Parliament to confer  on
\nthe  President the power of the legislature of the State  to
\nmake  laws  “and  to authorise the  President  to  delegate,
\nsubject\t to  such conditions as he may think fit to  impose,
\nthe  powers  so\t conferred  to any  other  authority  to  be
\nspecified  by  him in that behalf.” Sub-clause (2)  runs  as
\nfollows:\n<\/p>\n
      “For   Parliament\t or  for   the\tPresident  or  other
\nauthority  in  whom  such authority to make  law  conferring
\npowers and imposing duties, or authorising the conferring of
\npowers\tand  the  imposition of duties, upon  the  Union  or
\nofficers and authorities thereof.”\n<\/p>\n
      It  was  contended  that\ton  the\t breakdown  of\tsuch
\nmachinery authority had to be given to the Parliament or the
\nPresident,  firstly, to make laws in respect of subjects  on
\nwhich  the State Legislature alone could otherwise make laws
\nand, secondly, to empower the Parliament or the President to
\nmake  the executive officers of the State Government to\t act
\nin  accordance\twith  the laws which the Parliament  or\t the
\nPresident  may\tpass in such emergency.\t It was argued\tthat
\nfor  this purpose the word ‘to delegate’ is used.  I do\t not
\nthink this argument is sound.  Sub-clause (2) relates to the
\npower  of the President to use the State executive  offices.
\nBut  under clause (a) Parliament is given power to confer on
\nthe  President\tthe power of the ‘legislature’ of the  State
\n‘to  make  laws’.   Article 357(1)(a) thus  expressly  gives
\npower  to  the\tParliament to authorise\t the  President\t ‘to
\ndelegate  his legislative powers’.  If powers of legislation
\ninclude\t the power of delegation to any authority there\t was
\nno  occasion  to  make\tthis additional\t provisions  in\t the
\nArticle\t at  all.   The\t wording of  this  clause  therefore
\nsupports the contention that normally a power of legislation
\ndoes not include the power of delegation.”\n<\/p>\n
      Fazal  Ali, J.  on the point relating to the functions
\nof the Legislature and its authority to delegate held:\t“The
\nlegislature  must normally discharge its primary legislative
\nfunction  itself  and  not  through others (2)\tOnce  it  is
\nestablished  that  it has sovereign powers within a  certain
\nsphere,\t it  must follow as a corollary that it is  free  to
\nlegislate  within that sphere in any way which appears to it
\nto  be\tthe  best way to give effect to\t its  intention\t and
\npolicy\tin making a particular law, and that it may  utilize
\nany  outside  agency  to any extent it finds  necessary\t for
\ndoing  things  which it is unable to do itself or  finds  it
\ninconvenient  to  do.  In other words, it can do  everything
\nwhich  is  ancillary  to  and necessary\t for  the  full\t and
\neffective  exercise  of\t its power of legislation.   (3)  It
\ncannot\tabdicate  its legislative functions, and  therefore,
\nwhile  entrusting  power to an outside agency, it  must\t see
\nthat  such  agency acts as a subordinate authority and\tdoes
\nnot  become  a\tparallel legislature.  (4) The\tdoctrine  of
\nseparation  of powers and the judicial interpretation it has
\nreceived in America ever since the American Constitution was
\nframed,\t enables  the  American courts to  check  undue\t and
\nexcessive  delegation but the Courts of this country are not
\ncommitted  to that doctrine and cannot apply it in the\tsame
\nway as it has been applied in America.\tTherefore, there are
\nonly  two  main checks in this country on the power  of\t the
\nlegislature  to delegate, these being its good sense and the
\nprinciple  that\t it should not cross the line  beyond  which
\ndelegation amounts to abdication and self-effacement’.”\n<\/p>\n
      Mahajan, J.  was of the view that the Parliament being
\nomnipotent   despot,   apart  from   being   a\t legislature
\nsimpliciter,  it  can,\tin exercise of its  sovereign  power
\ndelegate its legislative functions or even create new bodies
\nconferring on them power to make laws.\tWhether it exercises
\nits power of delegation of legislative power in its capacity
\nas  a  mere  legislature or in its  capacity  as  omnipotent
\ndespot,\t its actions were not subject to judicial  scrutiny.
\nIn  the\t same case Mukherjea, J.  held that the\t legislature
\ncannot\tpart  with  its essential legislative  function.   A
\nsurrender  of  this  essential\t function  would  amount  to
\nabdication of its power in the eyes of law.  In Hotel Balaji
\n&  Ors.,  etc.\tetc.  vs.  State of Andhra Pradesh  &  Ors.,
\netc.   etc.   [AIR  1993  SC  1048]  this  Court  held\tthat
\nlegislative   competence  of  a\t  legislature  to  enact   a
\nparticular  provision  in the Act cannot be made  to  depend
\nupon the rule or rules, as the case may be, at a given point
\nof  time.   Conferment\tof power upon the Governor  to\tmake
\nrules  in  the\tmanner prescribed under Article 234  of\t the
\nConstitution   cannot  be  interpreted\tto  mean  that\t the
\nconstitutional makers had intended to take away the power of
\nthe legislature, admittedly, conferred upon it under Part XI
\nChapter\t I  read with Seventh Schedule of the  Constitution.
\nSuch  an  interpretation, if accepted, would be contrary  to
\nthe  settled  principles  relating   to\t interpretation\t  of
\nStatutes.   Whereas it is true that the Governor of a  State
\ncannot\tmake  rules  with  respect to  subjects\t covered  by
\nArticle\t 234  in any other manner, (Article 309) it  cannot,
\nhowever,  be accepted that such power of the Governor can be
\nequated\t with the sovereign power of the legislature to make
\nlaws  with respect to the assigned field.  Law making  power
\nof  the legislature with respect to judicial service without
\nencroaching  upon the subjects covered by Article 233 to 236
\nhas  impliedly\tbeen  acknowledged  by this  Court  in\tB.S.
\nYadavs\tCase  (supra).\t The High Court of Mysore  in  K.N.
\nChandra\t Sekhars  case (supra) while referring to  Articles
\n233  and  309 had made certain observations which have\tbeen
\nrelied\tupon  by Patna High Court in the impugned  judgment.
\nIn that case the High Court of Mysore in fact was not called
\nupon  to decide the issue of the finality of the rules\tmade
\nunder  Article 234 of the Constitution in relation to a\t law
\nmade  under  Article  309.  In the case before\tMysore\tHigh
\nCourt,\t the  dispute  had  arisen   with  respect  to\t the
\nappointments to the posts of munsiffs in judicial service of
\nthe  State of Mysore.  The Public Service Commission of\t the
\nState  conducted  a competitive examination under the  rules
\nmade  for  the purposes by the Governor of the\tState  under
\nArticle\t 234 and proviso to Article 309 of the Constitution.
\nThe  candidates who took the examination but did not succeed
\nchallenged the notification of the Public Service Commission
\non  the\t ground of its being without lawful authority.\t The
\nnotification  of the Public Service Commission was impeached
\non  the\t ground that since the rules did not  prescribe\t the
\ncriterion  by  which  the success of  candidates  should  be
\ndetermined,  there was no criterion by which the  Commission
\ncould  have determined whether a candidate has succeeded  or
\nfailed\tand it was not upon the Commission to prescribe\t for
\nitself\ta criterion not found in the rules.  The  Commission
\nhad  applied  a\t formula for ascertaining the names  of\t the
\nsuccessful  candidates by fixing 45% as qualifying marks for
\nthe  candidates\t belonging to Scheduled Caste and  Scheduled
\nTribes\tand  55%  for others.  It was further  claimed\tthat
\npower  of  the\tGovernor  to fix the  qualifying  marks\t was
\nimpliedly  delegated to the Commission.\t In that context the
\nHigh  Court  examined  Article 234 of the  Constitution\t and
\nobserved:   “It\t is  reasonably clear that  the\t purpose  of
\nArticle\t 234 is that the collective wisdom of the  Governor,
\nthe  High  Court  and the Public Service  Commission  should
\nregulate appointments referred to in that article, and it is
\nplain  that  no rule made without the required\tconsultation
\ncan  have any effect or potency.  It is obvious that  within
\nthe  range  of\tthe many matters requiring  such  collective
\ndeliberation  would fall a multitude of subjects such as the
\ndetermination  of  the\tquestion  whether  the\tappointments
\nshould be made on the basis of an examination, and if so, of
\nwhat  pattern,\tthe selection of the subjects in  which\t the
\ncandidates  should  be\texamined, the determination  of\t the
\nqualifying  and\t maximum  marks,   the\tappointment  of\t the
\nauthority to conduct the examination, the qualifications and
\ndisqualifications of the candidates and the like.”\n<\/p>\n
      It further held:\n<\/p>\n
      “If,  on\tits  true  construction,  Art.234  does\t not
\nrequire\t that  standard to be specified or formulated  by  a
\nrule,  then alone, could it be said that the Governor  could
\ndelegate  that\tfunction  to  another.\tThat  article  is  a
\nspecial\t  constitutional   provision   removing\t  from\t the
\nprovisions  of Art.309 certain appointments to the judiciary
\nand  enjoining the Governor to make them in accordance\twith
\nrules  enacted\tin consultation with the High Court and\t the
\nPublic Service Commission.  What are the matters about which
\nthe  Governor is required to consult the High Court and\t the
\nPublic\tService Commission.  The Public Service\t Commission,
\nit  is\tobvious, was required to be consulted in  regard  to
\nmatters\t in which it had special competence to offer advice.
\nThe  High  Court  was required to be consulted so  that\t its
\nadvice\tmay  be\t obtained as to how and in what\t manner\t the
\nappointments  to  a  service  under   its  control  may\t  be
\nsatisfactorily made.”\n<\/p>\n
      It was conceded that there was no rule prescribing the
\nqualifying  marks.   Nor  was the power to  determine  those
\nqualifying  marks  expressly  delegated to  any\t legislative
\nauthority.   In\t that case the State had prayed for  placing
\nthe  construction  on Article 320(3) to the effect that\t the
\nclause\tdid  not  require the Governor\tor  the\t legislature
\nfunctioning under Article 309 of the Constitution to consult
\nthe  Public  Service  Commission for  determination  of\t the
\nqualifying  marks and that it was open to the legislature or
\nthe  Governor,\tas the case may, to determine and fix  those
\nqualifying marks without such consultation.  The court found
\nthat  the provisions of Article 320(3) were so comprehensive
\nwhich  did  not\t admit the interpretation sought  for.\t The
\ndetermination of qualifying marks was held to be an integral
\npart  of  scheme for an examination because the\t examination
\nwas  the  method  applied for recruitment  for\ttesting\t the
\nsuitability  of\t candidates  to the judicial  service.\t The
\nCourt\tobserved  that\t“the   construction   suggested\t  by
\nMr.Advocate   General  which  makes  it\t possible  for\t the
\nlegislature  or\t the Governor to decline to  consult  Public
\nService\t Commission  on the determination of the  qualifying
\nmarks  and  to\tthat extent diminishes the  utility  of\t the
\nconstruction  and makes it futile and illusory, cannot merit
\nacceptance”.   Consultation  required under Article 234\t was
\nheld  to extend to everyone of the matters on which  Article
\n320(3)\tenjoined consultation.\tThe qualifying marks secured
\nin  a competitive examination prescribed by rules made under
\nArticle 234 shall form the subject matter of consultation by
\nthe  governor  with  the High Court and the  Public  Service
\nCommission.   While  striking down the selection, the  Court
\nheld  that  it\tshall  be  open\t to  the  Governor  to\tmake
\nappropriate rule determining the qualifying marks and to the
\nPublic\tService\t Commission  to\t conduct  another  viva-voce
\nexamination  in\t accordance  with those Rules.\t No  Act  of
\nlegislature  made  on  the subject was in  issue  warranting
\nobservations  made  in para 23 of the  judgment.   Otherwise
\nalso while dealing with Chandra Shekar’s case(supra) Brother
\nMajmudar,J.   has  rightly  concluded:\t“Somnath  Iyer,\t J.,
\nspeaking for the Division Bench observed that:\t‘Article 234
\nexcepts\t out  of the operation of Art.309,  appointments  to
\njudicial  service and constitutes the Governor in a sense  a
\nselect\tlegislative  organ  for enactment of rules  for\t the
\npurpose’.   The aforesaid observation will of course have to
\nbe read down in the light of the Constitution Bench decision
\nof this Court in B.S.  Yadav’s case (supra).”\n<\/p>\n
      In  M.I.\tNadafs case(supra) relying on K.N.  Chandra
\nSekhars\t case the High Court of Mysore held that the  Rules
\nframed by the Governor under Article 309 of the Constitution
\ncould  not override the Rules made by him under Article\t 234
\nof the Constitution.  The petitioner in that case had relied
\nupon  the  Rules framed under proviso to Article 309 of\t the
\nConstitution  dealing  with  recruitment generally  for\t the
\nMysore\t State\tCivil  Services\t  whereas   specific   Rules
\npertaining  to the judicial service had earlier been  framed
\nunder  Article 234 of the Constitution.\t After referring  to
\nK.N.  Chandra Sekhars case the Court held:  “From a reading
\nof  that decision, it is clear that no rule relating to\t the
\nappointment  of the persons mentioned in Article 234 of\t the
\nConstitution  can  be validly made by the  Governor  without
\nconsulting  either  the\t High Court or\tthe  Public  Service
\nCommission.    As  seen\t earlier,   the\t  Mysore   Munsiffs
\n(Recruitment)  Rules, 1958 prescribed the age limits for the
\nappointments  of  the Munsiffs.\t Rules therein were made  by
\nthe  Governor  under  Article  234 of  the  Constitution  in
\nconsultation  with  the\t High Court and the  Public  Service
\nCommission.   Any  variation of that rule can only  be\tmade
\nunder\tArticle\t 234  and  that\t  in  accordance  with\t the
\nrequirements  of  that Article.\t As seen earlier “Rules”  do
\nnot comply with the requirements of Article 234.  That being
\nso, we are unable to accept the contention of Mr.Javali, the
\nlearned\t  counsel   for\t  the\tpetitioner  that   the\t age
\nqualification  prescribed under the Munsiffs  (Recruitment)
\nRules  stood  modified by rule 6(4)(b) of the “Rules”.\t Our
\nview  that  appointments to judicial services of  the  State
\nother  than that of the District Judges should be made\tonly
\nin  accordance\twith  the rules made by the  Governor  under
\nArticle\t 234 of the Constitution after consultation with the
\nState\tPublic\tService\t Commission   and  the\tHigh   Court
\nexercising  jurisdiction  in relation to such State and\t not
\nunder  rules  framed  by  him\tunder  Article\t309  of\t the
\nConstitution is also supported by the decision of the Madras
\nHigh Court in N.Devasahayam v.\tState of Madras AIR 1958 Mad
\n53  and that of the Rajasthan High Court in Rajvi Amar Singh
\nv.  State of Rajasthan AIR<\/a> 1956 Raj.  104.”\n<\/p>\n
      It  is  true that if there is a conflict\tbetween\t the
\nRules  framed under Article 234 of the Constitution and\t the
\nRules made under Article 309, the latter Rules, in so far as
\nthey  relate  to Subordinate Judiciary shall be\t ineffective
\nand  not  applicable.  However, main Article 309  cannot  be
\nmade  subject to the provisions of Article 234 except to the
\nextent\tindicated  in  Chapter\tVI.   In  other\t words,\t the
\nappropriate  legislature would be competent to make laws  if
\nauthorised  under  Chapter XI read with Seventh Schedule  of
\nthe  Constitution.   In case of conflict between  the  Rules
\nmade  under Article 234 and the laws made by the appropriate
\nlegislature,  the  Rules would give way to the laws made  by
\nthe  sovereign legislature.  Such law made, however, may  be
\ndeclared  invalid or inapplicable to the judicial service if
\nit  in\tany way undermines the independence of judiciary  or
\notherwise  encroaches  upon  the  constitutional  guarantees
\nunder\taforesaid  Chapter  VI\tor   is\t violative  of\t the
\nFundamental  Rights.  Giving any other interpretation  would
\namount\tto usurping the power of the sovereign\tlegislature.
\nSuch  an  approach  would  be nugatory\tto  the\t concept  of
\nParliamentary  Democracy adopted by the people of India\t for
\ntheir  governance.   There cannot be two opinions  that\t the
\nParliamentary  Democracy is one of the basic features of the
\nConstitution  which  nobody can alter, modify or  substitute
\neven in exercise of the constitutional powers conferred upon
\nthe  Parliament under Article 368 of the Constitution.\t The
\nHigh  Court  of Patna, therefore, fell in error\t in  holding
\nthat  the law made by the sovereign legislature in  exercise
\nof  the\t powers vesting in it under Article 309 or  Part  XI
\nread  with  Seventh  Scheduled of the Constitution  was\t not
\napplicable  to\tthe judicial service of the State of  Bihar.
\nFrom   the  scheme  of\t the  Constitution  with  particular
\nreference  to Part VI, Chapter VI, Part XIV Chapter I,\tPart
\nXI  Chapter I and Seventh Schedule of the Constitution\twhat
\nemerges\t is that:  (i) The constitutional-makers had given a
\nspecial\t status and treatment to the judicial service;\t(ii)
\nThat  the independence of judiciary is ensured which  cannot
\nbe  interfered\twith either by an executive action or by  an
\nact  of\t legislature;  (iii) That the conditions of  service
\nspelt  out  in\tChapter\t VI of the  Constitution  cannot  be
\naltered, modified or substituted either by rule making power
\nor  by\tlegislation  made in exercise of  the  powers  under
\nArticle\t 309  of  the Constitution;  (iv) Rules\t made  under
\nArticle\t   234\t  have\t primacy    in\t the\tmatter\t  of
\nappointment\/recruitment,  discipline  and   control  of\t the
\njudicial  service and even such rules cannot take away\tfrom
\npersons\t belonging  to\tthe judicial service  any  right  of
\nappeal\twhich  they  may have under the law  regulating\t the
\nconditions of their service or as authorising the High Court
\nto  deal  with\tthem otherwise than in accordance  with\t the
\nconditions  of their service prescribed under such law;\t (v)
\nThe  provisions\t of  Chapter VI of Part VI  and\t the  powers
\nconferred  upon the appropriate legislature and the Governor
\nunder  Article\t309 are complementary and  supplementary  to
\neach  other  subject  to  the  conditions  of  ensuring\t the
\nindependence  of  judiciary;  (vi) That in case of  conflict
\nbetween\t the  rules made under Chapter VI and under  Article
\n309,  the rules specifically framed under Article 234 of the
\nConstitution  would prevail and the rules made under Article
\n309,  to  that extent, shall give in their way;\t (vii)\tThat
\nthe  Parliament or the State Legislature can legislate\tupon
\nany  matter  including the matters relating to the  judicial
\nservice provided the legislation is permitted under Part XI,
\nChapter\t I read with Seventh Schedule and is not in conflict
\nwith  other  provisions\t of   the  Constitution\t and  rights
\nguaranteed  in\tfavour\tof  the\t  judicial  service  by\t the
\nConstitution  itself under Part VI Chapter VI;\t(viii)\tEven
\nif any law made by the appropriate legislature is held to be
\nmade  with plenary power of legislation and not in  conflict
\nwith  Part VI Chapter VI, being subject to Judicial  Review,
\nit  can be challenged if it violates the Fundamental  Rights
\nor  any other provision of the Constitution;  ix) As in\t the
\ncase of Rules made under Article 234 of the Constitution, it
\nis expected that if any rules are intended to be made by the
\nexecutive  under  Article 309 with respect to  the  judicial
\nservice,  the  High Court shall be consulted and  its  views
\ngiven due weight while making such rules.  It is needless to
\nsay  that in the process of consultation, the concerned High
\nCourt  shall keep in mind the constitutional obligations  of
\nthe  State under Part III, Part IV or any other provision of
\nthe Constitution.  x) The conclusions enumerated hereinabove
\nare,  however,\tnot  applicable\t to  the  higher   judiciary
\nconstituted and established under Part V Chapter IV and Part
\nVI  Chapter V of the Constitution.  In view of the  position
\nof  law as enunciated hereinabove, the findings of the\tHigh
\nCourt  in  the impugned judgment in so far as it holds\tthat
\nthe  impugned Act is not applicable to the judicial  service
\ncannot\tbe  sustained  and  is\t liable\t to  be\t set  aside.
\nAdmittedly,  the impugned Act has not been challenged on any
\nother ground.  It is not the case of the respondent that the
\nAct  is\t violative  of any of the Fundamental Rights  or  in
\nviolation of any constitutional provision or it tampers with
\nthe independence of judiciary.\tThe impugned Act does not in
\nany  way  usurp\t the  power  of\t  the  High  Court  to\tmake
\nrecommendations\t for  appointment  of  District\t Judges\t and
\ndirect\tpromotions  or\tappointment of\tpersons\t other\tthan
\nDistrict Judges to the judicial service.  After enacting the
\nlaw  in\t accordance with the constitutional provisions,\t the
\nselection  for\tappointment of the persons to  the  judicial
\nservice has been left to the wisdom and at the discretion of
\nthe  High  Court.   The High Court has not in any  way\tbeen
\ndeprived  of  making  the selection of\tthe  best  available
\ncandidates if they otherwise fulfil the eligibility criteria
\nand  come within the parameters prescribed by law.   Despite
\nthe impugned Act, making reservations, the power of the High
\nCourt  in the matter of appointments has not been  curtailed
\nas  apprehended.   Appointments on the basis of\t reservation
\ncan  be made of only such persons who are found eligible and
\nrecommended  by\t the  High  Court.    The  Governor  or\t the
\nexecutive  cannot  appoint any person of their own from\t the
\nreserved  categories.  Once reservations are made, the\tHigh
\nCourt  is  absolutely within its powers to fix the  category
\nand  suitability to make selection for recommendation.\t The
\nindependence  of  judiciary has not, in any way, been  taken
\naway   by  the\texercise  of   legitimate  powers   by\t the
\nlegislature.   By exercise of its power the legislature does
\nnot  appear  to have interfered with the overall control  of
\nthe  High Court over the subordinate judiciary.\t Even though
\nthe  appropriate  authority to make the appointments is\t the
\nGovernor,   yet\t the  power  of\t  the  High  Court  or\t the
\nindependence  of  judiciary  is not undermined\tbecause\t the
\npower  to  make the appointment conferred upon the  Governor
\nhas  to\t be exercised by him in consultation with  the\tHigh
\nCourt.\tThis Court in M.M.  Gupta & Ors.v.  State of J & K &
\nOrs.   [AIR  1982 SC 1579], after referring to a  catena  of
\nauthorities, concluded:\t “We are of the opinion that healthy
\nconvention  and proper norms should be evolved in the matter
\nof  these appointments for safeguarding the independence  of
\nthe  judiciary\tin conformity with the requirements  of\t the
\nConstitution.\tWe  are of the opinion that normally,  as  a
\nmatter\tof rule, recommendations made by High Court for\t the
\nappointment  of\t a District Judge should be accepted by\t the
\nState  Government  and the Governor should act on the  same.
\nIf in any particular case, the State Government for good and
\nweighty\t  reasons   find   it\tdifficult  to\taccept\t the
\nrecommendations\t of  the  High Court, the  State  Government
\nshould communicate its views to the High Court and the State
\nGovernment  must  have complete and  effective\tconsultation
\nwith  the  High Court in the matter.  There can be no  doubt
\nthat  if  the  High Court is convinced that there  are\tgood
\nreasons\t for  the  objections  on  the\tpart  of  the  State
\nGovernment,  the High Court will undoubtedly reconsider\t the
\nmatter\tand  the  recommendations made by  the\tHigh  Court.
\nEfficient  and proper judicial administration being the main
\nobject\tof these appointments, there should be no difficulty
\nin  arriving  at a consensus as both the High Court and\t the
\nState Government must necessarily approach the question in a
\ndetached  manner for achieving the true objective of getting
\nproper District Judges for due administration of justice.”\n<\/p>\n
      This  Court  in  Indra Sawhney & Ors.  vs.   Union  of
\nIndia  &  Ors.<\/a>\t [1992\tSupp.  (3) SCC 217]  has  held\tthat
\nreservation  is\t a remedy for historical discrimination\t and
\nits  continuing\t ill-effects.  Poverty\tdemands\t affirmative
\naction.\t  Its eradication is a constitutional mandate.\t The
\npurpose\t of Article 16(4) is to give adequate representation
\nin  the\t services  of the State to that class which  has  no
\nrepresentation.\t This Articles carves out a particular class
\nof  people and not individuals from the weaker sections\t and
\nthe  class  it\tcarves out is the one which  does  not\thave
\nadequate  representation  in  the  services  of\t the  State.
\nPandian\t J.,  in  his concurring but separate  judgment\t had
\nobserved:   “Though ‘equal protection’ clause prohibits\t the
\nState  from making unreasonable discrimination in  providing
\npreferences  and  facilities for any section of its  people,
\nnonetheless  it\t requires the State to afford  substantially
\nequal opportunities to those, placed unequally.\n<\/p>\n
      The  basic  policy  of reservation is to\toff-set\t the
\ninequality and remove the manifest imbalance, the victims of
\nwhich  for  bygone  generations lag far\t behind\t and  demand
\nequality  by  special  preferences   and  their\t strategies.
\nTherefore,   a\t  comprehensive\t   methodological   approach
\nencompassing  jurisprudential,\tcomparative, historical\t and
\nanthropological\t   conditions\t is\tnecessary.\tSuch
\nconsiderations\traise controversial issues transcending\t the
\nroutine legal exercise because certain social groups who are
\ninherently   unequal   and  who\t  have\tfallen\tvictims\t  of
\ndiscrimination\trequire compensatory treatment.\t Needless to
\nemphasise  that\t equality  in fact or  substantive  equality
\ninvolves  the necessity of beneficial treatment in order  to
\nattain\tthe result which establishes an equilibrium  between
\ntwo sections placed unequally.”\n<\/p>\n
      The  majority  judgment  further held  that  power  of
\n“State”\t to make any provision under Article 16(4) does\t not
\nnecessarily  mean  that\t such  provision  be  made  only  by
\nParliament  or\tany State Legislature.\tGovernment can\talso
\nintroduce reservation by executive orders as appears to have
\nbeen  practised in Bihar also so far as subordinate judicial
\nservice\t  is   concerned.   As\t the  impugned\tAct   making
\nreservation  in the services including the judicial  service
\nhas not been challenged on the grounds of being violative of
\nFundamental Rights or in contravention of any constitutional
\nprovision   there   is\t no   necessity\t  of   testing\t its
\nconstitutional\tvalidity  on the aforesaid touchstones.\t  In
\nview of this position of law it has to be now ascertained as
\nto whether the impugned Act had really made any provision of
\nreservation  in\t the judicial service as well or  not.\t The
\nHigh  Court  on perusal of its various provisions  has\theld
\nthat  the Act did not relate to the judicial service and the
\ninsistence of the Government of Bihar to issue notifications
\nin  accordance\twith  the said Act by making  provision\t for
\nreservation  was uncalled for.\tWhile interpreting the words
\n“office\t or department” occurring in the definition of\tterm
\n“establishment”\t under\tSection 2(c) of the Act,  the  Court
\nheld  that  the\t aforesaid words referred to the  office  or
\ndepartment  of\tthe  Court  and not the\t Court\titself.\t  It
\nfurther\t held  that  reservation of posts  in  the  judicial
\nservice\t de hors of the Reservation Act was not permissible.
\nIntepreting  Section  4,  the  High  Court  observed:\t“The
\ncorrect construction of Section 4, in the context, read with
\nSection 2(c) and 2(n), would be something like this–\n<\/p>\n
      All appointments to service and posts in any office or
\ndepartment  (i.e.  establishment) of the judiciary by direct
\nrecruitment shall be regulated in the following manner.”\n<\/p>\n
      The  findings  of the High Court cannot be  upheld  in
\nview of the clear provisions made in Bihar Act No.3 of 1992.
\nThe  Preamble of the Act states that it has been enacted  to
\nprovide\t for  adequate representation of  Scheduled  Castes,
\nScheduled  Tribes  and other Backward Classes in  posts\t and
\nservices  under the State.  Section 2(a) defines “Appointing
\nauthority”   in\t relation  to  a   Service  or\tpost  in  an
\nestablishment  to  mean\t the  authority\t empowered  to\tmake
\nappointment to such services or posts;\tSection 2(c) defines
\n“Establishment”\t as  “any office or department of the  State
\nconcerned with the appointments to public services and posts
\nin connection with the affairs of the State and includes (i)
\nlocal or statutory authority constituted under any State Act
\nfor  the  time\tbeing  in  force,  or  (ii)  a\tco-operative
\ninstitution   registered   under   the\tBihar\tCo-operative
\nSocieties  Act, 1935 (Act 6 of 1935) in which share is\theld
\nby the State Government or which receives aid from the State
\nGovernment in terms of loan, grant, subsidy, etc.  and (iii)
\nUniversities  and  Colleges affiliated to the  Universities,
\nPrimary,   Secondary  and  High\t  Schools  and\talso   other
\neducational  institutions  which are owned or aided  by\t the
\nState  Governments  and\t (iv)  an  establishment  in  public
\nsector”;   Section  2(f)  defines   “Reservation”  to  mean,
\nreservation of vacancies in posts and services for Scheduled
\nCastes\/Scheduled Tribes and Other Backward Classes;  Section
\n2(n)   defines\t“State”\t to   include  the  Government,\t the
\nLegislature  and the Judiciary of the State of Bihar and all
\nlocal  or  other authorities within the State or  under\t the
\ncontrol\t of  the State Government.  Section 3 refers to\t the
\n“Services”  to\twhich the Act has not been made\t applicable.
\nSection 4 mandates that all appointments to the Services and
\nPosts  in an establishment which are to be filled by  direct
\nrecruitment  shall  be\tregulated in the  manner  prescribed
\ntherein.  50% of the available vacancies are to be filled up
\nfrom  open  merit category and 50% from\t reserved  category.
\nThe   vacancies\t from  different   categories  of   reserved
\ncandidates  from  amongst  the 50% the\treserved  categories
\nshall,\tsubject\t to  other  provisions of  the\tAct,  be  as
\nfollows:   (a) Scheduled Castes 14% (b) Scheduled Tribes 10%\n<\/p>\n
(c)  Extremely Backward Class 12% (d) Backward Class 8%\t (e)
\nEconomically  Backward Woman 3% (f) Economically Backward 3%\n<\/p>\n
—— Total 50%<\/p>\n
      Section 5 of the Act provides:  “Review of Reservation
\nPolicy.–(1) It shall be the duty of the State Government to
\nstrive\tto  achieve  the  representation  of  the  Scheduled
\nCastes\/Scheduled  Tribes  and other Backward Classes in\t the
\nvarious\t services of posts of all the establishments of\t the
\nState  as defined in clauses (c) and (d) of Section 2 in the
\nproportion  fixed  for\tvarious\t reserved  categories  under
\nSection 4.\n<\/p>\n
      (2)  The State Government shall review its reservation
\npolicy after every ten years:\n<\/p>\n
      Provided\tthat every order made under sub-section\t (2)
\nshall be laid as soon as may be after it is made, before the
\nState  Legislature while it is in session for a total period
\nof  fourteen  days which may be comprised in one or  in\t two
\nsuccessive sessions.”\n<\/p>\n
      The  aforesaid Act was amended by Act No.XI of 1993 by
\nwhich  amongst\tothers\tSub- section (2) of  Section  4\t was
\nsubstituted   prescribing  the\textent\t of  percentage\t  of
\nreservations.\tSimilarly  clause (c) of sub-section (6)  of
\nSection\t 4 was substituted prescribing the manner of filling
\nthe  vacancies\tin  case  of  non-availability\tof  suitable
\ncandidates  in\tthe  reserved  categories.   Clause  (e)  of
\nsub-section  (6)  of  Section 4 was  substituted  providing:
\n“(e)  If required number of candidates of Scheduled  Castes,
\nScheduled Tribes and Extremely Backward Classes and Backward
\nClasses\t and Women of Backward Classes are not available for
\nfilling\t up the reserved vacancies, fresh advertisement\t may
\nbe  made only for the candidates belonging to the members of
\nScheduled  Castes,  Scheduled Tribes and Extremely  Backward
\nand  Bacward  Classes and Women of Backward Classes, as\t the
\ncase may be, to fill the backlog vacancies only.”\n<\/p>\n
      A\t combined  reading of the various provisions of\t the
\nAct  leave  no\tdoubt  that it is  also\t applicable  to\t the
\nestablishment  of  judicial  service and “not  only  to\t the
\noffice\tor  department\tof the Court,  excluding  the  Court
\nitself”,  as  has  been held in the impugned  judgment.\t  No
\nother  interpretation is possible in view of the definitions
\nof  “establishment” and “State” in Sections 2(c) and 2(n) of
\nthe  Act.  It was not correct for the High Court to say that
\nthe  aforesaid\tlanguage of the statute was capable of\tmore
\nthan  one  interpretation and for that\tsuch  interpretation
\nwhich is not absurd or inconsistent should be followed.\t The
\nCourt  is  required to interpret statute as far as  possible
\nagreeable  to  justice\tand reason.   While  interpreting  a
\nstatute\t the  courts  have to keep in  mind  the  underlying
\npolicy\tof  the statute itself and the object sought  to  be
\nachieved  by  it.   This  Court\t in  Nasiruddin\t vs.   State
\nTransport  Appellate  Tribunal<\/a> [AIR 1976 SC 331] held:\t “If
\nthe  precise words used are plain and unambiguous, they\t are
\nbound  to  be construed in their ordinary sense.   The\tmere
\nfact  that  the results of a statute may be unjust does\t not
\nentitle\t a court to refuse to give it effect.  If there\t are
\ntwo  different\tinterpretations of the words in an Act,\t the
\nCourt will adopt that which is just, reasonable and sensible
\nrather\tthan  that  which is none of those things.   If\t the
\ninconvenience  is  an  absurd inconvenience, by\t reading  an
\nenactment  in its ordinary sense, whereas if it is read in a
\nmanner\tin  which it is capable, though not in\tan  ordinary
\nsense  there  would not be an inconvenience at\tall;   there
\nwould  be reason why one should not read it according to its
\nordinary  grammatical meaning.\tWhere the words are plan the
\ncourt would not make any alteration.”\n<\/p>\n
      It  is  not correct as held by the High Court  in\t the
\nimpugned judgment that interpreting the statute in favour of
\nthe appellant State, as desired, “would amount to relegating
\nthe  judicial  service at par with not only the\t secretarial
\nstaff  or  the\tadministrative,\t  executive  or\t council  of
\nministers  and\tlegislature but also their own staff.\tThat
\nwould  be contrary to law laid down by the Apex Court in All
\nIndia  Judges  Case (supra)”.  It appears that to arrive  at
\nsuch  a\t conclusion  the High Court was also  persuaded\t and
\nimpressed  on  account of the statement before it  that\t the
\nprovisions  of\tthe Reservation Act had been declared to  be
\nultra  vires,  as  regards the\tBihar  Subordinate  Judicial
\nService\t i.e.,\tas regards recruitment of judicial  officers
\nother than that of the District Judges in the case of Deepak
\nKumar Singh & Others.  Interpretation of Section 4 as put in
\nby the High Court, if accepted, would not only frustrate the
\npurpose and object of the Bihar Act No.3 of 1992 but also be
\ncontrary  to the mandate of the Constitution as enshrined in
\nits Part III and further declared in Part IV, Article 56 and
\nArticle\t 335  of the Constitution.  The High Court  is\tthus
\nheld  to  have fell in error of law in declaring the Act  as
\nultra  vires in so far as its applicability to the  judicial
\nservice\t  is   concerned,  and\talso   in  the\t matter\t  of
\ninterpretation\tof its various provisions.  The appeals\t are
\naccordingly  allowed by setting aside the judgments impugned
\ntherein\t with a direction to the respondents to fill up\t the
\nvacancies  in  accordance with the Rules applicable and\t the
\nprovisions  of\tthe  impugned  Act  without  disturbing\t the
\nappointments  made  till date on the basis of  this  Courts
\norder.\tThe seniority of the members of the judicial service
\nshall  be  determined in accordance with the  Service  Rules
\napplicable  and\t the provisions of the Act by adjusting\t the
\ncandidates  selected on reservation to fill in the  reserved
\nslots\tkeeping\t in  view  the\t quota\tand  rota  rule\t  as
\nspecifically  pointed  out by this Court in its order  dated
\n16.11.1995.  No costs.\n<\/p>\n
      PATTANAIK, J.\n<\/p>\n
      I\t have gone through the two learned judgments, one of
\nBrother\t Majmudar,  J.\tand the other of Brother  Sethi,  J.
\nexpressing  divergent views on the question at issue, and  I
\nentirely  agree\t with the conclusions arrived at by  Brother
\nMajmudar,J.    and  respectfully  differ   from\t the   views
\nexpressed by Brother Sethi,J.  But in view of the importance
\nof  the\t question I would like to add few paragraphs  of  my
\nown.\n<\/p>\n
      The  question  for consideration is whether the  State
\nLegislature  could  enact a law in exercise of their  powers
\nunder  article\t309 of the Constitution in relation  to\t the
\nrecruitment and laying down the conditions of service of the
\nofficers  belonging  to the Judicial Services of the  State?
\nIt  is in this context the further question that arises\t for
\nconsideration  is  whether  the\t  provisions  of  the  Bihar
\nReservation   of  Vacancies  in\t  Posts\t and  Services\t(for
\nScheduled  Castes,  Scheduled  Tribes\tand  other  Backward
\nClasses)  Act,\t1991 (hereinafter referred to as the  Act)
\n(Bihar\tAct  3 of 1992) as amended by Bihar Act 11 of  1993,
\nproviding  reservation to the extent mentioned in Section  4
\nwould apply to the Judicial Services of the State in view of
\nthe  definition of State in Section 2(m) of the Act.   The
\nanswer\tto  these questions depend upon an analysis  of\t the
\nConstitutional\tScheme and how the founding fathers intended
\nto  have  separate provisions for the judicial wing  of\t the
\nState.\t In fact when the question of appointment of persons
\nto  the post of District Judges and post subordinate thereto
\nwere  being  considered and had been engrafted in the  Draft
\nConstitution  under  article  209-A  to\t 209-F,\t Dr.\tB.R.
\nAmbedkar  in  his  Speech in the  Constituent  Assembly\t had
\ncategorically  stated,\tthe object of these  provisions\t is
\ntwo-  fold:   first  of\t all,  to  make\t provision  for\t the
\nappointment  of\t district judges and subordinate judges\t and
\ntheir  qualifications.\t The second object is to  place\t the
\nwhole  of the civil judiciary under the control of the\tHigh
\nCourt.\t The  only  thing which has been excepted  from\t the
\ngeneral\t provisions  contained in article 209-A,  209-B\t and
\n209-C  is with regard to the magistracy, which is dealt with
\nin  article  209-E.  The Drafting Committee would have\tbeen
\nvery happy if it was in a position to recommend to the House
\nthat  immediately  on the commencement of the  Constitution,
\nprovisions with regard to the appointment and control of the
\nCivil  Judiciary  by the High Court were made applicable  to
\nthe  magistracy.   But it has been realised, and it must  be
\nrealised  that\tthe magistracy is intimately connected\twith
\nthe  general  system  of administration.  We hope  that\t the
\nproposals  which  are now being entertained by some  of\t the
\nprovinces  to separate the judiciary from the Executive will
\nbe accepted by the other provinces so that the provisions of
\narticle 209-E would be made applicable to the magistrates in
\nthe  same way as we proposed to make them applicable to\t the
\ncivil judiciary.  It has been felt that the best thing is to
\nleave\tthis  matter  to  the\tGovernor  to  do  by  public
\nnotification  as  soon\tas the appropriate changes  for\t the
\nseparation  of\tthe judiciary and the executive are  carried
\nthrough\t in  any of the province. Thus it is  apparent\thow
\nanxious\t the  founding fathers of the Constitution  were  to
\ninsulate  the  judicial\t wing of the State  from  the  other
\nwings.\t When Pt.Hirday Nath Kunzru moved some amendments to
\narticle 209-A, as it stood in the Draft Constitution, he had
\nindicated  that\t the  very object of amendments is  for\t the
\npurpose\t that  though  the Governor  will  appoint  District
\nJudges\tin  consultation with the High Court but  once\tsuch
\nappointment is made by the Governor the District Judge would
\nremain\tunder  the  control of the High Court.\t It  is\t not
\nnecessary to delve into the reaction of other Members of the
\nConstituent  Assembly  at that point of time in as  much  as
\nalmost\tall  the  Members had felt the necessity  of  making
\nseparate  provisions  for the judicial wing of the State  as
\nfar  as practicable and to vest the entire control with\t the
\nHigh  Court of the State.  In fact Dr.\tAmbedkar himself had
\nindicated  that\t there\tis   nothing  revolutionary  in\t the
\nprovisions  of the Constitution relating to the sub-ordinate
\ncourts of the States and in fact those provisions were there
\nin  the Government of India Act, 1935.\tWith this background
\nin mind if we look at the Constitutional Scheme we find Part
\nXIV consisting of articles 308 to 323 deal with the services
\nunder the Union and the States whereas Chapter VI containing
\narticles 233 to 237 deal with the Subordinate Courts.  Under
\narticle 233, the power of appointment, posting and promotion
\nof  district  judges in any State has been conferred on\t the
\nGovernor  of  the State in consultation with the High  Court
\nexercising  jurisdiction  in  relation to  such\t State.\t  It
\nobviously  deals with those officers who are to be  promoted
\nto  the\t rank  of district judge in  the  superior  judicial
\nservice from the post of subordinate judge.  Sub-article (2)
\nof  article  233  of the Constitution  makes  provision\t for
\nappointment  of\t a person as a district judge direct on\t the
\nrecommendation\tof the High Court concerned.  Article 234 of
\nthe  Constitution provides for recruitment of persons  other
\nthan  district\tjudges to the judicial service of the  State
\nand  the  same has to be made by the Governor in  accordance
\nwith the Rules made by him in that behalf after consultation
\nwith  the State Public Service Commission and with the\tHigh
\nCourt  exercising  jurisdiction in relation to\tsuch  State.
\nArticle\t 235 deals with control over the subordinate  courts
\nand  there  is\tnot an iota of doubt that the  control\tover
\ndistrict courts and courts subordinate thereto vest with the
\nHigh  Court  and such control must be one which is real\t and
\neffective  and there cannot be any dilution in that respect.
\nIt  is to be borne in mind that in the Constitutional Scheme
\nin  Chapter  VI\t the Founding Fathers have  dealt  with\t the
\nquestion of recruitment and not other conditions of service,
\nsuch  as the age of superannuation, the pay, the pension and
\nallowances,  so\t on and so forth.  While Article  309  deals
\nwith  recruitment  and\tconditions  of\tservice\t of  persons
\nserving\t the  Union or the State, a particular\tcategory  of
\npost  forming  the  judicial  wing has been  carved  out  in
\nChapter\t VI in Articles 233 to 235 so far as the question of
\nrecruitment  is concerned.  When Article 309 itself uses the
\nexpression  subject to the provisions of this constitution
\nit  necessarily\t means that if in the constitution there  is
\nany  other  provision specifically dealing with\t the  topics
\nmentioned  in  said  Article 309, then Article 309  will  be
\nsubject\t to those provisions of the Constitution.  In  other
\nwords, so far as recruitment to the judicial services of the
\nState is concerned, the same being provided for specifically
\nin  Chapter  VI\t under\tArticles 233 to\t 237,  it  is  those
\nprovisions  of the Constitution which would override any law
\nmade  by  the appropriate legislature in exercise  of  power
\nunder\tArticle\t  309  of   the\t Constitution.\t The   State
\nlegislature  undoubtedly  can  make law for  regulating\t the
\nconditions  of\tservices  of the officers belonging  to\t the
\njudicial  wing but cannot make law dealing with\t recruitment
\nto  the judicial services since the field of recruitment  to
\nthe  judicial  service\tis carved out  in  the\tConstitution
\nitself\tin  Chapter  VI\t under Articles 233 to\t236  of\t the
\nConstitution.\n<\/p>\n
      It  would be appropriate to notice at this stage while
\nin  Articles 145(1), 148(5), 187(3), 229(2), 283(1) and (2),
\nthe  Constitution  itself make the provision subject to\t the
\nprovisions  of law made by the Parliament but Article 234 is
\nnot subject to any legislation to be made by the appropriate
\nlegislature,  which indicates that so far as recruitment  to
\nthe  Judicial  Service\tis concerned which is  engrafted  in
\nArticle\t 234,  the  same  is  paramount\t and  the  power  of
\nlegislature to make law under Article 309 will not extend to
\nmake a law in relation to recruitment, though in relation to
\nother  conditions of service of such judicial officers,\t the
\nappropriate  legislature  can make a law.  In fact  in\tB.S.
\nYadavs\t case  1981(1)SCR  1024,  on  which  Dr.    Dhawan,
\nappearing  for the State of Bihar, heavily relied upon Chief
\nJustice\t Chandrachud, had noticed to the effect-  Whenever,
\nit was intended to confer on any authority the power to make
\nany special provisions or rules, including rules relating to
\nconditions  of\tservice, the Constitution has stated  so  in
\nexpress\t terms.\t  See,\tfor example Articles  15(4),  16(4),
\n77(3),\t87(2), 118, 145(1), 146(1) and (2), 148(5),  166(3),
\n176(2), 187(3), 208, 225, 227(2) and (3) and 229(1) and (2),
\n234,  237 and 283(1) and (2). The observation has been made
\nin  the context of the question whether Article 235  confers
\nany  power  on the High Court to make Rules relating to\t the
\nConditions  of\tJudicial Officers attached to  the  District
\nCourts\tand  the Courts subordinate thereto.  The very\tfact
\nthat the framers of the Constitution in enacting Article 234
\nhave  made  the\t provision, not subject to any acts  of\t the
\nappropriate  legislature  is the clearest indication of\t the
\nConstitution  makers  that so far as the recruitment to\t the
\nJudicial  Service  of  the  State is  concerned,  the  State
\nLegislature  do not possess the necessary power to make law.
\nAt  the\t cost  of  repetition, it may  be  stated  that\t the
\nexpression   recruitment   and\t the   expression   other
\nconditions  of service are two distinct connotations in the
\nservice\t jurisprudence\tand the framers of the\tConstitution
\nhave  also  born that in mind while engrafting Articles\t 234
\nand  309  of the Constitution.\tIt is true that Article\t 233
\ndealing\t with  appointment  of\t District  Judges  does\t not
\nindicate  conferment of power to make Rules for appointment.
\nBut  the  language of article 233 indicates that the  entire
\nmatter\tof recruitment to the post of District Judge, either
\nby  way of direct recruitment or by promotion is left to the
\nHigh  Court  and  it  is the Governor of the  State  who  is
\nrequired  to make such appointment in consultation with\t the
\nHigh  Court.  So far as direct recruitment is concerned, the
\nConstitution  itself lays down certain criteria for making a
\nperson\teligible for being appointed\/recruited as a District
\nJudge.\t The entire field of recruitment is left to the\t two
\nConstitutional\tconsultees and obviously, the opinion of the
\nHigh  Court  in such matter must be of binding effect.\t For
\ndirect\trecruitment  to\t the  post  of\tDistrict  Judges  in
\nsub-Article  (2) of Article 233, the Constitution itself has
\nindicated  the\teligibility  criteria\tand  the  source  of
\nrecruitment,  leaving the manner of final selection with the
\nHigh  Court  itself.  The argument of Dr.  Rajiv Dhawan,  in
\nthis  context  that it would be anomalous that\twhereas\t for
\nsubordinate  judiciary, the legislature has no power to make
\nlaw  to\t deal  with the recruitment,  whereas  for  District
\nJudges,\t the  legislature  has\tsuch  power,  is  devoid  of
\nsubstance  inasmuch as under Article 233, both under  Clause
\n(1)  as well as Clause (2) though the appointment has to  be
\nmade  by  the Governor but it is the High Court, who has  to
\ndecide\tas  to who would be appointed and this also fits  in
\nwith  the  underlying  principles under Article 235  of\t the
\nConstitution.  With reference to second part of Article 235,
\nDr.   Dhawan  had  also raised the contention that  it\tpre-
\nsupposes that the legislature does possess the power to make
\nlaw,  conferring  a  right to appeal to an  officer  of\t the
\njudiciary of the State, though, control over District Courts
\nand  Courts sub-ordinate thereto vests with the High  Court.
\nBut  this  contention  does  not   take\t into  account\t the
\ndistinction    between\t the\t two   connotations   namely
\nrecruitment  and conditions of service.\t The second part
\nof Article 235 protecting a right of appeal which an officer
\nmay  have under any law made by the legislature or  Governor
\nrelates\t to regulating the conditions of service and not  in
\nrelation  to recruitment of the said officer.  An  ingenious
\nargument had been advanced by Dr.  Dhawan to the effect that
\nArticle\t  234  expressly  uses\t the  expression  that\tthe
\nappointment  has to be made in accordance with the Rules  to
\nbe  made  by  the Governor in consultation  with  the  State
\nPublic\tService Commission and with the High Court,  thereby
\nis  referable to proviso to Article 309 and, therefore,\t the
\nplenary\t power of the legislature under main Article 309  is
\nnot  whittled  down in any manner.  But this argument  over-
\nlooks  the  fact that the law made by the legislature  under
\nthe  main  part\t of  Article 309 and the  law  made  by\t the
\nGovernor  under the proviso stands on the same footing.\t  At
\nthis  stage, it would be appropriate to notice the  argument
\nadvanced  by Mr.  Dwivedi, the learned counsel appearing for
\nthe  State  of Bihar in one of these appeals to\t the  effect
\nthat  the appropriate act of the State Legislature providing
\nfor  reservation  in  the services of the State is  a  stage
\nprior  to the recruitment or appointment and, therefore\t the
\npower  of  recruitment\tin  Article 234 is not\tin  any\t way
\ninfringed.   This  contention  would   not  stand  a  moment
\nscrutiny  in  view of the language of Section 4 of  the\t Act
\nitself.\n<\/p>\n
      4.Reservation   for   direct     recruitment   –\t All
\nappointments to services and posts in an establishment which
\nare to be filled by direct recruitment shall be regulated in
\nthe following manner, namely:-\n<\/p>\n
      (1)  The\tavailable vacancies shall be filled up-\t (a)
\nfrom  open merit category ..  50% (b) from reserved category
\n..  50%<\/p>\n
      (2)  The\tvacancies  from\t  different  categories\t  of
\nreserved  candidates from amongst the 50% reserved  category
\nshall,\tsubject\t to  other  provisions of this\tAct,  be  as
\nfollows:-\n<\/p>\n
      (a)  Scheduled Castes ..\t14% (b) Scheduled Tribes  ..
\n10%  (c) Extremely Backward Class ..  12% (d) Backward Class
\n..    8%  (e)  Economically  Backward\tWoman  ..   3%\t (f)
\nEconomically Backward ..  3% —————- Total ..\t50%.\n<\/p>\n
      Provided\t that\tthe  State    Government   may,\t  by
\nnotification   in  the\tofficial   Gazette,  fix   different
\npercentage  for\t different districts in accordance with\t the
\npercentage  of\tpopulation  of\tScheduled   Castes\/Scheduled
\nTribes and other backward classes in such districts:\n<\/p>\n
      Provided\t further   that\t in   case   of\t  promotion,
\nreservation    shall   be    made    only   for\t   Scheduled
\nCastes\/Scheduled  Tribes in the same proportion as  provided
\nin this section.\n<\/p>\n
      (3).  A reserved category candidate who is selected on
\nthe  basis  of\this  merit  shall  be  counted\tagainst\t 50%
\nvacancies  of  open  merit  category  and  not\tagainst\t the
\nreserved category vacancies.\n<\/p>\n
      (4) Notwithstanding anything contained to the contrary
\nin  this Act or in any other law or rules for the time being
\nin  force,  or in any judgment or decree of the\t Court,\t the
\nprovision  of sub-section (3) shall apply to all such  cases
\nin  which  all formalities of selection have been  completed
\nbefore\tthe 1st November, 1990, but the appointment  letters
\nhave not been issued.\n<\/p>\n
      (5)   The\t vacancies  reserved   for   the   Scheduled
\nCastes\/Scheduled Tribes and other Backward Classes shall not
\nbe  filled  up\tby  candidates not  belonging  to  Scheduled
\nCastes\/Scheduled Tribes and other Backward Classes except as
\notherwise  provided  in\t this  Act.   (6)  (a)\tIn  case  of
\nnon-availability  of suitable candidates from the  Scheduled
\nCastes and Scheduled Tribes for appointment and promotion in
\nvacancies reserved for them, the vacancies shall continue to
\nbe  reserved  for  three recruitment years and\tif  suitable
\ncandidates  are\t not available even in the third  year,\t the
\nvacancies  shall  be exchanged between the Scheduled  Castes
\nand Scheduled Tribes and the vacancies so filled by exchange
\nshall  be  treated as reserved for the candidates  for\tthat
\nparticular community who are actually appointed.\n<\/p>\n
      (b) In case of non-availability of suitable candidates
\nfrom the Extremely Backward Classes and Backward Classes the
\nvacancies so reserved shall continue to be reserved for them
\nfor  three recruitment years and if suitable candidates\t are
\nnot  available\teven in the third year also,  the  vacancies
\nshall  be filled by exchange between the candidates from the
\nextremely Backward and Backward Classes and the vacancies so
\nfilled\tby  Exchange  shall be treated as reserved  for\t the
\ncandidates  of\tthat particular community who  are  actually
\nappointed.\n<\/p>\n
      (c) In case of non-availability of suitable candidates
\nfor  the  vacancies reserved for the  economically  backward
\nwomen  the vacancies shall be filled first by the candidates
\nfrom  the Scheduled Castes, then by the candidates from\t the
\nScheduled  Tribes,  then  by the candidates  from  extremely
\nbackward  class\t and  then by the candidates  from  backward
\nclass.\t The vacancies so filled in the transaction shall be
\ntreated\t as  reserved for the candidates of that  particular
\ncommunity who are actually appointed.\n<\/p>\n
      (d)  If  in  any\trecruitment   year,  the  number  of
\ncandidates  of Scheduled Castes\/Scheduled Tribes,  extremely
\nBackward  and  Backward Classes are less than the number  of
\nvacancies  reserved for them even after exchange formula the
\nremaining  backlog  vacancies  may  be\tfilled\tby   general
\ncandidates  after  deserving  them   but  the  vacancies  so
\ndeserved  shall\t be  carried forward for  three\t recruitment
\nyears.\t (e)  If  the  required\t  number  of  candidates  of
\nScheduled  Castes,  Scheduled Tribes and Extremely  Backward
\nand  Backward  Classes are not available for filling up\t the
\nreserved vacancies, fresh advertisement may be made only for
\nthe candidates belonging to the members of Scheduled Castes,
\nScheduled  Tribes  and\tExtremely   Backward  and   Backward
\nClasses,  as the case may be, to fill the backlog  vacancies
\nonly.\n<\/p>\n
      The plain and grammatical meaning of the words used in
\nSection 4 quoted above unequivocally indicates, that it is a
\nlaw relating to recruitment\/appointment and as such once, it
\nis held that the power of recruitment in respect of Judicial
\nServices  is  provided\tfor  in\t  Article  234,\t the   State
\nLegislature  in\t the garb of making law in  consonance\twith
\nArticle\t 16(4) cannot encroach upon Article 234.  In  course
\nof  hearing  an\t elaborate argument had been  advanced\tthat
\nreservation  is\t intended  to fulfil the Right\tof  Equality
\nunder Article 16(1) read with 16(4) and the question whether
\nthere  has  been  adequate representation  of  a  particular
\nbackward class of citizens has been left to the satisfaction
\nof the State Government in Article 16(4) and, therefore, the
\nState  Legislature  cannot be denuded of its right  to\tmake
\nsuch law to fulfil the aforesaid Constitutional mandate.  We
\nreally\tfail  to understand as to why the legislature  would
\nfeel  that  the Governor, when frames rules in\tconsultation
\nwith  the High Court and the Public Service Commission under
\nArticle\t  234\twill  not   take  into\t consideration\t the
\nconstitutional mandate under Article 16(1) or Article 16(4).
\nIn  fact  in the case in hand in the Bihar Judicial  Service
\nRecruitment Rules, 1955, reservations have been provided for
\nScheduled  Caste and Scheduled Tribe candidates and the Full
\nCourt  of Patna High Court have also adopted the  percentage
\nof  reservation for these candidates as per the notification
\nof  the\t State Government.  So far as the Superior  Judicial
\nService\t is  concerned, it is of course true that there\t has
\nbeen no provision for reservation.  But such provision could
\nalways be made by the Governor in consultation with the High
\nCourt,\talso  bearing  in mind the mandate of  Article\t335,
\nnamely Maintenance of Efficiency of Administration.  It is
\nindeed\t painful   to\tnotice,\t  some\ttimes\tlaw   makers
\nunnecessarily  feel  that  the\tHigh  Court  or\t the  Judges
\nconstituting  the  High Court are totally oblivious  to\t the
\nConstitutional\tmandate\t underlying  Article   16  and\tmore
\nparticularly,  Article 16(4).  It is also not appropriate to
\nthink  that the High Court will not take into  consideration
\nthe  provisions of Article 16(1) and 16(4) while considering
\nthe  case  of  recruitment to the judicial services  of\t the
\nState.\t The  Judiciary\t is one of the three  limbs  of\t the
\nConstitution and those who are entrusted with the affairs of
\nadministration\tof justice must be presumed to have  greater
\nexpertise  in understanding the Constitutional requirements.
\nIn  this view of the matter the contention of Mr.   Dwivedi,
\nappearing for the State of Bihar is unfounded.\n<\/p>\n
      In  the aforesaid premises, in my considered  opinion,
\nthe  provisions\t of Bihar Reservation of Vacancies in  Posts
\nand  Services  (for Scheduled Castes, Scheduled\t Tribes\t and
\nother  Backward Classes) Act, 1991 has no application to the
\nrecruitment of judicial officers in the State of Bihar.\n<\/p>\n
      BANERJEE.\t J.\n<\/p>\n
      I\t have  had  the\t privilege   of\t going\tthrough\t the
\njudgments  of Brother Majmudar and Brother Sethi  expressing
\nhowever,  two different and divergent views in regard to the
\nissues\traised\tin the Appeals before us.  I have  also\t the
\nprivilege   of\tgoing  through\t the  judgment\tof   Brother
\nPattanaik,  recording his concurrence with Brother  Majmudar
\nand  differing from the views expressed by Brother Sethi.  I
\nalso  record  my  concurrence with the\tviews  expressed  by
\nBrother\t Majmudar  but\tI wish to add a\t few  lines  without
\ndilating  on  to  the  points delved into  both\t by  Brother
\nMajmudar  and Brother Pattanaik in expression of my  opinion
\nin the matter in issue.\n<\/p>\n
      The  Bihar  Reservation  of  Vacancies  in  Posts\t and
\nServices  (for Scheduled Castes, Scheduled Tribed and  Other
\nBackward  Classes)  Act, 1991 as amended by Bihar Act 11  of
\n1993,  in  particular  Section\t4 thereof is  the  issue  in
\ncontroversy.   The  exact language of Section 4 has  already
\nbeen  noticed by both Brother Majmudar and Brother Pattanaik
\nin  their  judgments and as such to avoid the length of\t the
\njudgment  again.   I  retrain myself from quoting  the\tsame
\nexcepting,  recording however, that Section 4 of the Act  of
\n1991  covers the filed of reservation for direct recruitment
\nto  the\t extent of 50% from the open merit category and\t 50%
\nfrom the reserved category and the effort on the part of the
\nState  legislature to include the judiciary within the ambit
\nof  Section 4 stands negated by the High Court and hence the
\nAppeal\tbefore this Court.  The core question that needs  to
\nbe  answered  is whether Judicial Service comes\t within\t the
\nambit  of Acticle 309 so as to clothe the State\t legislature
\nwith the power of legislation and it is in this context that
\nheading\t of Acticle 309 lends some assistance in the  matter
\nwhich  reads;\t“Recruitment  and conditions of\t Service  of
\npersons\t serving the Union or a State” Article 309 thus,  is
\nrestrictive  to\t recruitment  and conditions of\t service  of
\npersons.   In  any  event  the\t founding  fathers  of\t out
\nConstitution  with  due\t care and  caution  introduced\tthis
\nArticle\t subject  however,  to the other provisions  in\t the
\nConstitution.\tThe  opening words of the Article is  to  be
\nnoticed\t since any rule in terms of the rule making power as
\nconferred  by the proviso to the Article if contravenes\t any
\nof  the provision of the Constitutioin, the rule cannot\t but
\nbe  ascribed to be viod the reason being express words\tused
\nby  the makers of Constitution subject to the provisions and
\nby  reason  of existence of a specific provision  in  regard
\nthereto.   It  is  an authorisation for the  legislature  to
\nlegislate  relating to recruitment and conditions of service
\nprovided  there is existing no specific provision in  regard
\nthereto.   Needless  to record here that Article  309  falls
\nunder  Part XIV of the Constitution under the lead “Services
\nunder  the Union and States” and relying theron Dr.   Dhawan
\nappearing  in  support\tof the Appeal contended\t that  since
\njudiciary is an organ of the State question of taking it out
\nof   the  ambit\t of  Article   309  would  not\tarise.\t The
\nconstitutional\tscheme however, runs in direct conflict with
\nthe  submission\t of Dr.\t Dhawan.  Articles 233 to 237  falls
\nunder  Chapter\tVI  of\tConstitutioin\twith  a\t heading   –
\n‘Subordinate  Court’ .\tThe headings of Articles 233,  233A,
\n234,  235 in this context are of some effect and consequence
\nand as such, the same are noted hereinbelow:\n<\/p>\n
      “233.  Appointment of District Judges”.\n<\/p>\n
      “233A.   Validation  of appointment of  and  judgments
\netc., delivered by, certain District Judges.\n<\/p>\n
      “234.   Recruitment  of  persons other  than  District
\nJudges to the Judicial Service”.\n<\/p>\n
      “235.  Control over subordinate courts”.\n<\/p>\n
      Be it noted that whereas Chapter V of the Constitution
\ndeals  with  the  High\tCourt in the State,  Chapter  VI  as
\nnoticed\t above deals with Subordinate Courts;  the scheme of
\nthe  Constitution thus, is categorical enough to depict\t the
\njudiciary as a specific class by itself being an independent
\nthird  wing  of\t democratic   polity.\tThe  appointment  of
\ndistrict judges though conferred in terms of Articles 233 of
\nthe  Constitution  on to the Governor of the State  but\t the
\n“Consultation with the High Court exercising jurisdiction in
\nrelation  to  such  a State” has been inserted in  order  to
\nobviate any controversy as to the efficiency of the officers
\nwho  are to be promoted to the rank of district judge in the
\nHigher\tJudicial Service from the post of subordinate Judge.
\nThe  incorporation  of\tsub-Article 2 as  regards  a  direct
\nrecruit\t district judge on the basis of the  recommendations
\nof  the\t High Court for appointment has as a matter of\tfact
\ncemented  the controversy, in the event however, there being
\nany,  as  regards  the method of consultation in  matter  of
\nappointment  of district judges.  The further  incorporation
\nof Articles 234 and 235 and on a plain reading thereof would
\nleave  no manner of doubt as to the separate  categorization
\nof  judicial  officers\texclusive to  themselves  and  their
\nappointment independently of Articles 309.\n<\/p>\n
      The  inclusion of Chapter Vi in the Constitution as  a
\nmatter\tof fact records a distinct intention of the  framers
\nof   the   Constitution\t as   regards  the   supremacy\t and
\nseparateness  of the judiciary from the legislature and\t the
\nexecutive.   If\t Article  309  is subject to  be  a  general
\nprovision,  Articles  233  to  235 ought to  be\t treated  as
\nspecific provisions for appointment of judicial officers and
\nby  reason therefor, the specific field of legislation\tthus
\nstands\t completed   and  obviously   the  framers  of\t the
\nConstitution having provided Articles 233 to 235, introduced
\nin Article 309, the words “subject to the provisions of this
\nConstitution”.\t As  a\tmatter\tof fact\t the  submission  in
\nsupport\t of the Appeal does not stand to further scrutiny by
\nreason\tof  the\t fact that in the event of there  being\t any
\ncontra\tintention of the framers, the same would have  found
\nan  expression\tin Article 234 itself.\tThe  appointment  of
\ndistrict  judges,  in my view, without any hesitation  rests
\nwith  two constitutional functionaries namely, the  Governor
\nand  the  High Court and thus withdrawing the same from\t the
\npurview of the general power as conferred under Article 309.\n<\/p>\n
      On  the wake of the aforesaid, judicial service  thus,
\ncannot\tbe termed to be covered under Article 309 as regards
\nthe  appointment thereto though however, other conditions of
\nservice specifically left open and thus the authorisation to
\nlegislate  under  Article  309\tis available  in  regard  to
\nconditions   of\t service  and\tother  incidentals   thereto
\nsubsequent  to\tthe appointment.  It may also be noted\tthat
\nGeneral Legislative powers of thee Parliament as well as the
\nState  Legislature  under  Article  245\t is  expressly\tmade
\nsubject\t to other provisions of the Constitution which would
\nobviously include Articles 233 to 235.\n<\/p>\n
      The other aspect of the matter is in regard to Article
\n16 (4) which Mr.  Dwivedi appearing in support of the Appeal
\nin  Appeal No.9072\/96 contended that reservation is  outside
\nthe  purview  of Chapter VI and since Article 16 (4) can  be
\ntermed\t to  be\t a  basic   feature  of\t  the\tConstitution
\nappointments  in the posts of district judges ought also  to
\nbe  governed  thereunder  and not de hors  the\tsame.\tThis
\naspect\t of  the  matter  however,   has  been\tdealt\twith
\nelaborately  by both my learned Brother Majmudar and Brother
\nPattanaik  and\tas such I do not wish to record any  further
\nreasons\t therefore  but adopt the same and hereby record  my
\nconcurrence  therewith.\t In that view of the matter I  would
\ndismiss\t both  Appeals\twithout however, any  orderr  as  to
\ncosts.\n<\/p>\n
      ORDER<\/p>\n
      Leave granted.\n<\/p>\n
      The  Civil Appeals stand dismissed as per the majority
\nview subject to the modification and directions contained in
\nthee main judgment.\n<\/p>\n
      There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 Author: S.B.Majmudar Bench: S.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee, R.P.Sethi PETITIONER: STATE OF BIHAR & ANR. Vs. RESPONDENT: BAL MUKUND SAH & ORS. DATE OF JUDGMENT: 14\/03\/2000 BENCH: S.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee,R.P.Sethi JUDGMENT: S.B.Majmudar, J. Leave granted in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-47216","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2000-03-13T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-07-28T16:22:56+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"267 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000\",\"datePublished\":\"2000-03-13T18:30:00+00:00\",\"dateModified\":\"2018-07-28T16:22:56+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\"},\"wordCount\":53435,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"Supreme Court of India\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\",\"name\":\"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\"},\"datePublished\":\"2000-03-13T18:30:00+00:00\",\"dateModified\":\"2018-07-28T16:22:56+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.legalindia.com\/judgments\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg\",\"contentUrl\":\"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/\"},\"sameAs\":[\"https:\/\/www.facebook.com\/LegalindiaCom\/\",\"https:\/\/x.com\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\/\/www.legalindia.com\",\"https:\/\/x.com\/legaliadmin\"],\"url\":\"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","og_locale":"en_US","og_type":"article","og_title":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2000-03-13T18:30:00+00:00","article_modified_time":"2018-07-28T16:22:56+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"267 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000","datePublished":"2000-03-13T18:30:00+00:00","dateModified":"2018-07-28T16:22:56+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000"},"wordCount":53435,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Supreme Court of India"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","url":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000","name":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2000-03-13T18:30:00+00:00","dateModified":"2018-07-28T16:22:56+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/state-of-bihar-anr-vs-bal-mukund-sah-ors-on-14-march-2000#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"State Of Bihar & Anr vs Bal Mukund Sah & Ors on 14 March, 2000"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/image\/","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/47216","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=47216"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/47216\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=47216"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=47216"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=47216"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}