Full Judgement
State of Bihar & ANR Vs. Bal Mukund Sah & Ors [2000] INSC 131 (14 March 2000)
S.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee,R.P.Sethi
S.B.Majmudar, J.
Leave granted in Special Leave Petition No.16476 of 1993.
Both these appeals, on grant of special leave under Article 136 of the Constitution of India, are moved by the State of Bihar, which is common appellant no.1 in both these appeals. In Civil Appeal No.9072 of 1996 the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar is appellant no.2, while in the companion appeal arising from the Special Leave Petition No.
16476 of 1993, the other contesting appellant is the Special Executive Officer-cum-Deputy Secretary, Bihar Public Service Commission, Patna. In both these appeals, a common question of law arises for consideration, namely, whether the Legislature of the appellant State of Bihar was competent to enact the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (hereinafter referred to as the Act), in so far as Section 4 thereof sought to impose reservation for direct recruitment to the posts in the Judiciary of the State, subordinate to the High Court of Patna, being the posts of District Judges as well as the posts in the lower judiciary at the grass-root level, governed by the provisions of the Bihar Judicial Service (Recruitment) Rules, 1955. Civil Appeal No.9072 of 1996 deals with the question of reservation in the posts in District Judiciary while the companion appeal deals with the posts in Subordinate Judiciary at grass-root level under the District Courts concerned. By the impugned judgment in Civil Appeal No.9072 of 1996, a Division Bench of the High Court has struck down the terms of the advertisement, reserving amongst others, 27 out of 54 posts of District Judges to be filled in by direct recruitment, being ultra vires the relevant provisions of Article 233 of the Constitution of India. It has also struck down the provisions made in the impugned advertisement fixing up the upper age limit at 45 years for eligibility for appointment by way of direct recruitment to these posts. That part of the controversy no longer survives between the parties in the present proceedings and, therefore, we need not dilate on the same. So far as the companion appeal is concerned, the main judgment was rendered by the Division Bench of the High Court holding that the aforesaid Act as well as the earlier Ordinance which preceded the same in so far as they sought to apply the scheme of reservation of posts for governing recruitment of persons other than the District Judges to the Judicial Service of the State were ultra vires Article 234 of the Constitution. As the controversies involved in these appeals have to be resolved in the light of the relevant Constitutional scheme, by an earlier Order dated 13th May, 1994 of this Court, they were directed to be listed before a Constitution Bench. Subsequently in view of the statement made by learned counsel that the matter could be disposed of by a Bench of three Judges, the matters were directed to be placed before a three-Judge Bench by an order dated 12th May, 1995. Thereafter a three-Judge Bench of this Court by its order dated 6th November, 1997 felt that the matters raised questions regarding interpretation of provisions of Articles 233, 234 and 309 of the Constitution and hence it would be appropriate that they are heard by the Constitution Bench. That is how these matters have been placed before this Constitution Bench under the directions of Honble the Chief Justice of India. Before we proceed to deal with the rival contentions of learned counsel for the respective parties in support of their cases, it becomes necessary to note a few introductory facts. Facts leading to Civil Appeal No.9072 of 1996: This Court, by its order dated 13th October, 1993 in Civil Appeal Nos. 4561-62 of 1992 in State of Bihar vs. Madan Mohan Singh & Ors., had quashed the earlier advertisement for filling up the vacancies of Additional District Judges in the District Judicial Service of Bihar and directed the appellant State to fill up the same through a fresh advertisement. In the mean time, it appears that as the High Court had not agreed to the suggestion of the State authorities to have reservation in the posts of District Judges for reserved category of candidates and had insisted on proceeding with the recruitment as per the 1951 Rules, styled as the Bihar Superior Judicial Service Rules, 1951, which were framed by the Governor of Bihar in exercise of the powers conferred by the proviso to Article 309 read with Article 233 of the Constitution of India and which Rules did not provide for any such reservation, the Governor of Bihar issued the impugned Ordinance which subsequently became the impugned Act by which the scheme of 50% reservations for reserved category of candidates was directed to be applied while effecting direct recruitment to the posts concerned. On 16th November, 1993, the appellant State requested the High Court to effect recruitment to the vacancies in the cadre of District Judges on the basis of the reservation provided by the Ordinance which subsequently was followed by the Act.
By its communication dated 16th December, 1993, the High Court of Patna insisted that recruitment to District Judiciary can be made on the basis of 1951 Rules only. By a communication dated 5th April, 1994, the High Court informed the authorities concerned that no reservation of posts in the district cadre could be implemented and while making appointments from the members of the Bar for direct recruitment, preference may be given to the Scheduled Caste (for short SC) and Scheduled Tribe (for short ST) candidates who are of equal merit with general category candidates. On 7th April, 1994, the High Court intimated that there are 54 vacancies in the district cadre which had to be filled up. The State Government, however, issued the impugned advertisement of 16th June, 1994 by which 50% of the available vacancies of District Judges were sought to be filled in from reserved category of candidates and the remaining 50% posts thereof, i.e. 27, were to be filled in by the open category candidates. It is this advertisement which was challenged by the writ petitioners before the High Court. The High Court, by the impugned judgment as noted earlier, has allowed the writ petition and quashed the condition of reservation sought to be imposed by the impugned advertisement.
Facts leading to Civil Appeal arising out of S.L.P.(C) No.16476 of 1993: By a proposal dated 30th January, 1991, the appellant-State consulted the Bihar Public Service Commission regarding making provision for reservation of posts in the Subordinate Judicial Service for reserved category of candidates. The said proposal of the appellant-State was also placed for consideration of the High Court but it was not accepted by the High Court by its communication dated 16th April, 1991, and that resulted in the impugned Ordinances, being 33 and 34 of 1991, which were followed by the impugned Act. The original writ petitioners, who had already appeared at the competitive examination in April, 1991 moved the High Court challenging the Ordinances and the latter Act in so far as the scheme of 50% reservation of posts for direct recruitment at grass root level of the State Judiciary was concerned. As noted earlier, the aforesaid writ petition was allowed and relief was granted against the appellants. Rival contentions:
Dr.Dhavan, learned senior counsel appearing for the appellant-State in Civil Appeal No.9072 of 1996, at the outset, contended that the impugned Act, especially Section 4 thereof, is wrongly held by the High Court to be not applicable to Judicial Services of the State. He contended that Judicial Services especially, the Subordinate Judiciary comprising of district cadre and the cadre of Judges below the same were part and parcel of the Public Services of the State and, therefore, on the express terminology of the Act, Section 4 thereof, became directly applicable to the recruitment of judicial officers both at the district level as well as at the level of Subordinate Judiciary below it.
Alternatively, it was submitted that even assuming that the Act did not apply on its own language, even then, it has to be held that the State Legislature was perfectly competent to enact provisions regarding reservation of posts in Judicial Services of the State in the light of Article 16(4) of the Constitution of India read with the relevant entry 41 in list II of Seventh Schedule to Constitution. He also posed the moot question whether the State Legislature has independent power to enact any provisions regarding reservation in connection with appointment in Judiciary when such reservation, after consultation with the High Court, could not get reflected in the relevant Rules framed by the Governor under Article 309 read with Articles 233 and 234 of the Constitution of India. In support of these contentions, relevant Constitutional scheme was pressed in service. It was submitted that on a correct interpretation of Article 309 the State Legislature as well as the Governor had ample jurisdiction to make provision for reservation in connection with Judicial Service. Under the said Article, paramount power in this connection has been vested in the State Legislature. He then referred to Articles 233 and 234 in connection with Subordinate Judiciary and placed emphasis on Article 236 (b) defining the expression Judicial Service as a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. He submitted that all that the opening part of Article 309 provides is to the effect that, while making appointments to the cadre of District Judges or Subordinate Judges of lower judiciary, as per Articles 233 and 234, consultation of the Governor with the High Court is necessary. That apart, from these latter two Articles there is no fetter on the power of the State Legislature to enact appropriate legislation in this connection under Article 309. He invited our attention to List II entry 41 of the Seventh Schedule for submitting that the State Legislature is competent to make enactment in connection with appointments to Public Services and Judicial Service is also a Public Service of the State.
He further submitted that the first part of Article 309 does not attract Article 234 so far as State Legislatures paramount powers are concerned.
Dr.Dhavan, relying upon the second part of Article 235, stated that despite the full control of District Judiciary being vested in the High Court, the right of appeal and other conditions of service of Members of Subordinate Judiciary as laid down by any competent law which would include legislative enactment as well as statutory rules are clearly saved pro tanto at least at the second level, after appointments are made at the grass-root level in the Judiciary and when the further question arises as to how the conditions of service of such appointees are to be governed and controlled. Dr.Dhavan, therefore, submitted that it is not as if the power of State Legislature to enact appropriate provisions is totally excluded because of the enactment of Articles 233 to 235.
Dr.Dhavan tried to highlight his submission by contending that if the power of State Legislature to enact appropriate provisions regarding appointments of Members of Subordinate Judiciary is held totally excluded by Article 234, and to that extent Article 309 be held out of picture, then the following anomalies may arise in the working of these provisions.
1) Judicial Service as defined by Article 236(b) will get truncated in its operation.
2) The second anomaly pointed out by Dr.Dhavan was that power to legislate, which must be given full effect, would get excluded without there being any express exclusion.
3) The third anomaly pointed out by Dr.Dhavan was that though under the Constitution, the scheme of separation of power is devised to separate the Executive from the Judiciary, this scheme does not extend to oust the legislative power. If it is held that Article 234 ousts the legislative power for making suitable enactments on the topic covered therein then, to that extent, an anomalous position would arise not contemplated by the Constitutional scheme.
Dr.Dhavan next contended that on the express language of Article 234, only the rule making power of the Governor is fettered but not the legislative power of the State.
Dr.Dhavan next submitted that if legislative interference in the process of selection and appointment of direct recruits to Subordinate Judiciary as per Article 234 is completely ruled out that being the first level or the grass-root level of the Subordinate Judiciary then another patently anomalous situation would arise. That under Article 235 second part such statutory provisions to be enacted by competent Legislature are clearly contemplated so far as conditions of service of judicial officers are concerned and then when we turn to the apex level, namely, of the district cadre manned by District Judges there is no express ouster of legislative interference under Article 233. Thus the plenary power of the Legislature would be operative qua the highest posts in the hierarchy of District Judiciary while for the grass-root level it will be ruled out. Dr.Dhavan then invited our attention to the decisions in M.M.Gupta & Ors. etc. vs. State of Jammu & Kashmir & Ors., (1982) 3 SCC 412 paras 28 to 32 as well as in State of Kerala vs. Smt.A.Lakshmikutty & Ors., (1986) 4 SCC 632 at page 647 in para 22 to highlight the scope of the term consultation which should be effective consultation. He then invited our attention to the impugned Act especially Sections 2 (c), 4 and 16 having overriding effect over all other rules in force and submitted that such establishments under the State would include even Judiciary as laid down by the definition of Section 2(n). He, however, fairly conceded that neither in the Rules of 1951 regarding appointments to district cadre as per Article 233 nor under the Rules of 1955 for recruitment to cadre of Subordinate Judiciary as laid down by Article 234, there is any provision for 50% reservation of posts and, therefore, he submitted that this entire case depends upon competence of the impugned Act which had to be enacted because there was a stalemate on this subject as the High Court did not agree with the suggestion of the Governor for suitable amendment to these Rules under Articles 233 and 234. He ultimately submitted, that the reasoning of the High Court that the Act does not cover Judicial Service is patently erroneous and that this Act is not bound by any fetters of Articles 233 or 234 and is an exercise of paramount legislative power conferred on the State authorities under Article 309 first part read with entry 41 List II of Seventh Schedule of the Constitution. He, therefore, submitted that the Act must be permitted to have full play.
In support of his contentions Dr.Dhavan placed strong reliance on the decision of a Constitution Bench of this Court in the case of B.S.Yadav & Ors. v. State of Haryana & Ors. etc. (1981) 1 SCR 1024. Dr.Dhavan, therefore, submitted that the impugned judgment of the High Court, being contrary to the Constitutional scheme, requires to be set aside.
Shri Dwivedi, learned senior counsel appearing for the appellant-State in the companion Civil Appeal submitted that though the High Court in para 9 at page 11 has referred to a three-Judge Bench judgment of this Court in All India Judges Association & Ors. etc. vs. Union of India & Ors.
etc., AIR 1993 SC 2493, giving special status to judicial officers, the said observations cannot whittle down the power of reservation available to the State authorities under Article 16 (4) and that question was not examined in the said case as it did not fall for consideration. He submitted that a conjoint reading of Sections 2(c) and 2(n) clearly shows that the Act is meant to apply also to Judicial Service of the Bihar State. He next contended that question of reservation of posts in a cadre which is already established by the State authorities in exercise of their powers under Article 309 is not covered by Articles 233 to 235. That question is covered by Article 16 sub-article (4) and none of the aforesaid provisions curtail that enabling power available to the State authorities. In this connection, he also invited our attention to entry 11A of List III of Seventh Schedule to the Constitution dealing with constitution and organisation of all courts, except the Supreme Court and the High Courts, and submitted that scheme of reservation of posts would remain sustained under these provisions and also as per the Legislature enacted under entry 41 of List II. He submitted that once the court is constituted, it would comprise of all cadres of judicial officers to man the courts and the formation of cadres and constitution of the courts also permitted provisions for creation of reserved posts to comprise in such cadres. This exercise has nothing to do with the question of appointment on available vacancies in posts borne on established cadres in Judicial Service. According to Shri Dwivedi, the establishment of cadres and creation of posts in the cadres is a stage prior to the one contemplated by Articles 233 to 235 dealing with the subsequent question as to how actual appointments of deserving candidates are to be effected to fill up vacancies in already created posts in the concerned cadres. In short, the submission of Shri Dwivedi was that question of creation of posts to be filled up by reserved candidates or open category candidates was in the domain of the State authorities especially, the Legislature which can enact appropriate statutory provisions in discharge of constitutional obligation under Article 16(4) read with entry 41 of List II of Seventh Schedule as well as entry 11 A of List III and once the general category posts as well as the reserved category posts are made available to the High Court for being filled in, thereafter, it will be for the High Court to proceed according to Articles 233 and 234 of the Constitution of India and in that exercise the State Legislature will have no say. He, therefore, contended that the High Court in the impugned judgment was patently in error in taking the view that statutory provision of reservation of posts for reserved category candidates in the Subordinate Judiciary under its control was in any way ultra vires or illegal. Shri Dwivedi, in support of his contentions, gave written submissions whereby, amongst others, he invited our attention to Article 320 sub-article (4) which excludes reservation expressly from the powers and functions of the Public Service Commission. He submitted that Article 234 requires the Governor for framing rules to consult the High Court as well as the Public Service Commission and when it cannot make any provision regarding reservation under Article 16 sub-article (4), by analogy, consultation of the High Court also under the very same Article 234 would not permit the High Court to deal with Article 16 sub- article (4). In other words, question of reservation is outside the ken of Article 234. Shri Dwivedi, also in support of his contentions, placed reliance on various decisions of this Court to which we will make a reference at an appropriate stage. Shri Dwivedi next contended that even under the Bihar Judicial Service (Recruitment) Rules, 1955 (hereinafter referred to as the 1955 Rules) especially, Rules 19 & 20 reservation of posts in lower judiciary is contemplated; that these Rules are made by the Governor in consultation with the High Court and the Public Service Commission.
Shri Dwivedi next contended that, in any case, the High Court in the impugned judgement was not called upon to consider the further question whether there cannot be any reservation to the posts in district cadre and the stand of the High Court that if candidates of equal merit are there, then preference can be given to SC and ST candidates, was correct or not. That the only question before the High Court was whether the impugned Act could validly apply to provision of reservation of posts in the District Judiciary.
He, therefore, submitted that the observations in para 24 of the impugned judgment, in any case, are required to be set aside as redundant and uncalled for. It was accordingly submitted by Shri Dwivedi that the appeal deserves to be allowed.
Learned counsel appearing for the Intervenors in I.A.No.20, on the other hand, tried to support the case of reservation for SC and ST candidates relying on Rule 20 of 1955 Rules so far as the recruitment to Subordinate Judiciary was concerned. Learned counsel for the intervenors in I.A.No.10 representing Other Backward Class (for short OBC) candidates adopted the arguments of Dr.Dhavan and Shri Dwivedi in support of the impugned Act and the scheme of reservation thereunder. Learned counsel appearing for the Intervenors as per I.A.No.11 tried to support reservation for SC and ST candidates under the Act and even dehors it. While intervenor in I.A.Nos. 4 and 9 representing general category candidates supported the decision of the High Court. The main reply to the contentions of learned counsel for the appellants emanated from learned senior counsel Shri Thakur appearing for the High Court of Patna. He submitted, in the first instance, that the impugned Act is not wide enough to apply to Judiciary. He tried to support this contention on the basis of reasoning which appealed to the High Court in the impugned judgment. He alternatively contended that Section 4 of the impugned Act, if applied to judicial officers, will ex facie become invalid being repugnant to the composite scheme of Articles 233 to 235. To highlight this alternative contention, he contended as under : 1. Article 309 has no application to Subordinate Judiciary. It gets excluded by the triology of Articles 233 to 235 which represent a complete Code amongst themselves. 2. Once Article 309 is excluded, legislative power under Article 309 first part also gets excluded qua the field covered by the aforesaid triology of the Articles. 3. These three Articles themselves are the only source of power to make rules or law as seen from second part of Article 235 as well as Articles 233 and 234. 4. Rules made under Article 234 by the Governor after following the procedure laid down thereunder would relate to service also as contemplated by Article 233. 5. Second part of Article 235 only can permit suitable legislation by the State authorities governing the conditions of service of already recruited judicial officers whether at the grass-root level or even at the apex level of the District Judiciary in exercise of its legislative power under Article 309 read with entry 41 of List II of the Seventh Schedule. In order to support his contention that Article 309 does not apply to recruitment to the Judicial Service, he invited our attention to Article 187 dealing with Secretarial Staff of Legislature, Article 148 dealing with Service regulations of the Comptroller & Auditor- General of India, Article 146 dealing with Service under the Supreme Court, Article 229(2) dealing with Services under the High Court and Article 324(5) dealing with Service regulations of Election Commission and submitted that in all these Articles, special provisions are made for enacting appropriate rules and even statutes covering the topics mentioned therein. But so far as Article 234 is concerned, it is not subject to the law of Legislature as found in the aforesaid other Articles. To a pointed query by us Shri Thakur, learned senior counsel for the High Court of Patna, after taking appropriate instructions, submitted that in principle the High Court of Patna has already accepted reservation of 14% posts for SC and 10% for ST candidates for being recruited at the lowest level of the District Judiciary. Shri Thakur also placed reliance on decisions of the various High Courts and of this Court to which we will make a reference at an appropriate stage. Shri Thakur, further submitted that Section 4 of the impugned Act, in express terms, seeks to regulate appointments to the existing posts in the cadre of District Judiciary as well as in the Subordinate Judiciary. To that extent it directly impinges upon the provisions of Articles 233 and 234, which amongst them, represent a complete Code in connection with appointment to Subordinate Judiciary. He further submitted that it is fallacious to contend that reserving posts for a given class of candidates would be at a stage prior to the question of recruitment and appointment as contemplated by Articles 233 and 234 of the Constitution. That once posts are already created for being filled up in a given cadre the authority of the State in this connection would come to an end. For creation of such cadres and sanction of posts appropriate legislation can be enacted or even the Governor, in exercise of his independent power under Article 309, can promulgate Rules. But once posts are already created in a Judicial Cadre and when the question of filling up vacancies in the existing sanctioned posts in district cadre or subordinate cadre arises, direct recruitment has to be done on the recommendation of the High Court as laid down by Article 233 (2) and recruitment in the vacancies in the cadre of Subordinate Judiciary has to be done as per the 1955 Rules framed by the Governor in consultation with the High Court under Article 234 and in no other manner. That for regulating this process there is no question of any legislative interference by exercise of any paramount power.
He, therefore, contended that the view of the High Court in the impugned judgment is well sustained on the Constitutional scheme and calls for no interference. He, however, fairly submitted that so far as the 1955 Rules are concerned, by the consent of the High Court the rule making power has been exercised by the Governor permitting the reservation for SC and ST candidates in recruitment governed by the said Rules and which recruitment has to be resorted to for filling up vacancies in posts of Subordinate Judges and the Munsiffs. He also fairly stated that the High Court is consistently following the provision of reservation for direct recruitment in these categories of posts to the extent of 14% being reserved for SC and 10% being reserved for ST candidates but nothing more. So far as the impugned Act is concerned, it goes far beyond this permitted scheme of reservation under the relevant Rules of 1955 and seeks to impose a blanket reservation of 50% for SC, ST and OBC candidates. That such a statutory provision flies in the face of Articles 233 and 234 of the Constitution of India and cannot be sustained and accordingly rightly been voided by the High Court. Points for determination: In the light of the aforesaid rival contentions, the following points arise for our determination: 1. Whether the impugned Act of 1991 on its express language covers Judicial Service of the Bihar State; 2. If the answer to point no.1 is in the affirmative, whether the provisions of the impugned Act, especially, Section 4 thereof in its application to Subordinate Judiciary would be ultra vires Articles 233 and 234 of the Constitution of India and hence cannot be sustained; 3. In the alternative, whether the aforesaid provisions of the Act are required to be read down by holding that Section 4 of the Act will not apply to direct recruitment to the posts comprised in the Bihar Superior Judicial Service as specified in the Schedule to the Bihar Superior Judicial Service Rules, 1951 as well as to Bihar Judicial Service governed by the Bihar Judicial Service (Recruitment) Rules, 1955, comprising of the posts of Subordinate Judges and Munsiffs under the District Judiciary; and 4. What final order? Before we deal with the aforesaid points for determination, it will be necessary to keep in view the relevant provisions of the Constitution which have a direct impact on the resolution of the controversy projected by these points. Constitutional Scheme: Part XIV deals with Services under the Union and the States. Chapter I comprising of Articles 308 to 313 deals with Services, while Chapter II covering Articles 315 to 323 deals with Public Service Commissions. Article 308 defines the expression State, which shall not include the State of Jammu & Kashmir. However, the relevant Article for our present purpose is Article 309 which reads as under : 309.
Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the Provisions of any such Act.
A mere look at this Article shows that it is expressly made subject to other provisions of the Constitution and subject to that, an appropriate Legislature or Governor can regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the State concerned. Proviso to that Article permits the Governor of the State to fill up the gap, if there is no such statutory provision governing the aforesaid topics. For that purpose, the Governor may make rules regulating the recruitment and the conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under an Act of the competent Legislature which may intervene and enact appropriate statutory provisions for the same. The manner of recruitment to the services contemplated by Article 309 is provided by Chapter II dealing with the Public Service Commissions. Article 320 deals with Functions of Public Service Commissions enjoining them to conduct examinations for appointment to the services of the Union and the services of the State respectively. That naturally has a direct linkage with the types of Services contemplated by Article 309. Special Scheme for Judicial Services in Part VI (Chapters V & VI):
It is pertinent to note that independently of general provisions of Article 309, the Constitution has made special provisions for certain Services. Even if they may be part of public services, still separate Constitutional schemes are envisaged for regulating recruitment and conditions of services of officers governed by such Services. Let us have a glance at such specially dealt with Services. Part VI of the Constitution dealing with the States, separately deals with the executive in Chapter II, the State Legislature under Chapter III and thereafter Chapter IV dealing with the Legislative Powers of the Governor and then follows Chapter V dealing with the High Courts in the States and Chapter VI dealing with the Subordinate Courts. It is in Chapter VI dealing with the Subordinate Courts that we find the provision made for appointment of District Judges under Article 233, recruitment of persons other than the District Judges to the Judicial Services under Article 234 and also Control of the High Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the topic of Interpretation and amongst others, defines by sub- article (b) the expression judicial service to mean a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. It becomes, therefore, obvious that the framers of the Constitution separately dealt with Judicial Services of the State and made exclusive provisions regarding recruitment to the posts of District Judges and other civil judicial posts inferior to the posts of the District Judge. Thus these provisions found entirely in a different part of the Constitution stand on their own and quite independent of part XIV dealing with Services in general under the State. Therefore, Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate and exclusive field for operation by the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution to which we will make further reference at an appropriate stage in the later part of this judgment. We may also refer at this stage to Article 146 dealing with Services under the Supreme Court which lays down the procedure for appointment of officers and servants of the Supreme Court and provides under sub-article (2) thereof that subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the court authorised by the Chief Justice of India to make rules for the purpose.
Similar provision is found in Article 229 dealing with recruitment of officers and servants and the expenses of the High Courts. Sub-article (2) there of lays down the rule making power of the Chief Justice of the Court concerned or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose subject to the provisions of any law made by any Legislature of the State. Article 148 deals with Comptroller and Auditor-General of India. Sub-article (5) thereof deals with rule making power of the President regarding the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General subject to any provisions of the Constitution or any law made by the Parliament in this connection. Article 98 deals with Secretariat of Parliament. Sub- article (3) thereof provides Until provision is made by Parliament under clause (2), the President may, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House of the People or the Council of States, and any rules so made shall have effect subject to the provisions of any law made under the said clause. Similarly, for Secretariat of State Legislature, we find Article 187 which deals with separate secretariat staff for the House or each House of the Legislature of a State. Sub-article (3) thereof runs parallel to sub-article (3) of Article 98 and provides that until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council and any rules so made shall have effect subject to the provisions of any law made under the said clause. Article 324 is found in Part XV which deals with Superintendence, direction and control of elections to be vested in an Election Commission. Sub-article (5) thereof provides that subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine. The aforesaid Constitutional provisions clearly indicate that independently of general provisions regarding Services as mentioned in Part XIV, different types of Services contemplated by the Constitution in other parts have their own procedural schemes for recruitment and regulation of conditions of these Services and therefore, Article 309 found in Part XIV necessarily will have to be read subject to these special provisions regarding recruitment and conditions of services of diverse types governed by the relevant different Constitutional provisions as indicated herein above. The other Article to which reference is to be made is Article 16 sub-article (4) of the Constitution which enables the State to make provision for reservation of appointments or posts in favour of any backward class of citizens which, in its opinion, is not adequately represented in the services under the State. This provision has to be read with Article 335 which deals with Claims of Scheduled Castes and Scheduled Tribes to services and posts and lays down that the claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State. Though on the express language of Article 335, the Other Backward Classes are not included, it is now well settled by a decision of the nine-member Constitution Bench of this Court in the case of Indra Sawhney & Ors. vs. Union of India & Ors., [1992 Suppl.
(3) SCC 217] that even the Other Backward Classes are also covered by the thrust of Article 335 of the Constitution of India and that view is reaffirmed and is followed by a recent decision of the three-Judge Bench of this Court in IAs. Nos.35-36 in WP (C) No.930 of 1990 etc. in Indra Sawhney vs. Union of India & Ors. reported in (2000) 1 SCC 168, wherein Jagannadha Rao, J., speaking on behalf of the three-Judge Bench highlighted this very position. Thus, even if under Article 16(4) the State proposes to provide reservation on the ground of inadequate representation of certain backward classes in Services, if it is considered by the appropriate authority that such reservation will adversely affect the efficiency of the administration, then exercise under Article 16(4) is not permissible. This is the Constitutional limitation on the exercise of the enabling power of reservation under Article 16(4). As we shall presently show, question whether in the Subordinate Judiciary covered by Articles 233 and 234 if reservation is provided, then the efficiency of the judicial administration will be affected, is a matter within the exclusive purview of the High Court which shall have to be consulted. Such consultation is a Constitutional obligation before any Rules are made for reservation. Before parting with the resume of relevant Constitutional provisions, we may also refer to Article 50 which lays down the Directive Principles of State Policy that the State shall take steps to separate the judiciary from the executive in the public services of the State.
Legislative powers under Articles 245, 246 are subject to other provisions, including Articles 233, 234 and 235:
We may also refer to Part XI of the constitution, especially Chapter I dealing with Legislative Relations laying down the Distribution of Legislative Powers. Article 245 deals with Extent of Laws made by Parliament and by the Legislatures of States. Sub-article (1) thereof provides that Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. Thus, the legislative powers of Parliament and the Legislature of the State are expressly made subject to other provisions of the Constitution.
Similarly, Article 246 laying down the category of subject-matter of laws made by Parliament and by the Legislatures of States enumerated in Lists I, II and III of the Seventh Schedule will also have to be read subject to Article 245. Meaning thereby, if other provisions of the Constitution cut down or exclude the Legislative powers of Parliament or State Legislature qua given topics, then those other provisions have to be given their full play and effect.
Articles 233, 234 and 235: So far as recruitment to District and Subordinate Judiciary is concerned, we have therefore, to turn to the twin Articles found in Chapter VI of Part VI dealing with Subordinate Courts. The relevant two articles read as under : 233. Appointment of Judges:
(1) Appointment of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
234. Recruitment of persons other than district judges to the judicial service: Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. (Emphasis supplied) Article 233 dealing with appointment of District Judges, on its own express terminology projects a complete scheme regarding the appointment of persons to District Judiciary as District Judges. In the present appeals, we are concerned with direct recruitment to the cadre of District Judges and hence sub-article (2) of Articles 233 becomes relevant. Apart from laying down the eligibility criterion for candidates to be appointed from the Bar as direct District Judges the said provision is further hedged by the condition that only those recommended by the High Court for such appointment could be appointed by the Governor of the State. Similarly, for recruitment of judicial officers other than District Judges to the Judicial Service at lower level, complete scheme is provided by Article 234 wherein the Governor of the State can make such appointments in accordance with the rules framed by him after consulting with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. So far as the Public Service Commission is concerned, as seen from Article 320, the procedure for recruitment to the advertised posts to be followed by it is earmarked therein. But the role of the Public Service Commission springs into action after the posts in a cadre are required to be filled in by direct recruitment and for that purpose due intimation is given to the Commission by the State authorities. They have obviously to act in consultation with the High Court so far as recruitment to posts in Subordinate Judiciary is concerned. Of course, it will be for the High Court to decide how many vacancies in the cadre of District Judges and Subordinate Judges are required to be filled in by direct recruitment so far as the District Judiciary is concerned and necessarily only by direct recruitment so far as Subordinate Judiciary is concerned. This prime role of the High Court becomes clearly discernible from Article 235 which deals with the control of the High Court over the Subordinate Judiciary and also of Subordinate Courts. The said Article provides as under: 235. Control over subordinate courts. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
It is in the light of the aforesaid relevant scheme of the Constitution that we now proceed to tackle the main controversy posed for our consideration. Point No.1: So far as this point is concerned, it is strictly not necessary for us to go into the reason or the cause which led the appellant-State to resort to the exercise of legislative power for enacting the impugned Act. The question is whether the Act, as enacted, by its express language, can apply to judicial service of the State or not. When we turn to this Act, we find that it is enacted to provide for adequate representation of SC, ST and OBC candidates in Posts and Services under the State. The State is defined by Section 2(n) to include the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the State or under the control of the State Government. Consequently, it cannot be said that the Act, as framed, did not seek to cover the Judiciary of the State of Bihar. The main provision of the Act, which is on the anvil of controversy, is Section 4 which reads as under : 4. Reservation for direct recruitment All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the following manner, namely :- (1) The available vacancies shall be filled up (a) from open merit category .. ..
50% (b) from reserved category .. .. 50% (2) The vacancies from different categories of reserved candidates from amongst the 50% reserved category shall, subject to other provisions of this Act, be as follows :- (a) Scheduled Castes .. .. 14% (b) Scheduled Tribes .. .. 10% (c) Extremely Backward Class .. .. 12% (d) Backward Class ..
.. 8% (e) Economically Backward Woman .. 3% (f) Economically Backward .. .. 3% ----- Total .. 50% ---- Provided that the State Government may, by notification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/Scheduled Tribes and Other backward classes in such districts: Provided further that in case of promotion, reservation shall be made only for Scheduled Castes/Scheduled Tribes in the same proportion as provided in this section. (3) A reserved category candidate who is selected on the basis of his merit shall be counted against 50% vacancies of open merit category and not against the reserved category vacancies. (4) Notwithstanding anything contained to the contrary in this Act or in any other law or rules for the time being in force, or in any judgement or decree of the Court, the provision of sub-section (3) shall apply to all such cases in which all formalities of selection have been completed before the 1st November 1990, but the appointment letters have not been issued. (5) The vacancies reserved for the Scheduled Castes/Scheduled Tribes and other Backward Classes shall not be filled up by candidates not belonging to Scheduled Castes/Scheduled Tribes and Other Backward Classes except as otherwise provided in this Act. (6) (a) In case of non-availability of suitable candidates from the Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them, the vacancies shall continue to be reserved for three recruitment years and if suitable candidates are not available even in the third year, the vacancies shall be exchanged between the Scheduled Castes and Scheduled Tribes and the vacancies so filled by exchange shall be treated as reserved for the candidates for that particular community who are actually appointed. (b) In case of non-availability of suitable candidates from the Extremely Backward Classes and Backward Classes the vacancies so reserved shall continue to be reserved for them for three recruitment years and if suitable candidates are not available even in the third year also, the vacancies shall be filled by exchange between the candidates from the extremely Backward and Backward Classes and the vacancies so filled by Exchange shall be treated as reserved for the candidates of that particular community who are actually appointed. (c) In case of non-availability of suitable candidates for the vacancies reserved for the economically backward women the vacancies shall be filled first by the candidates from the Scheduled Castes, then by the candidates from the Scheduled Tribes, then by the candidates from extremely backward class, and then by the candidates from backward class. The vacancies so filled in the transaction shall be treated as reserved for the candidates of that particular community who are actually appointed. (d) If in any recruitment year, the number of candidates of Scheduled Castes/Scheduled Tribes, extremely Backward and Backward Classes are less than the number of vacancies reserved for them even after exchange formula the remaining backlog vacancies may be filled by general candidates after dereserving them but the vacancies so dereserved shall be carried forward for three recruitment years.
(e) If the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes are not available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes, as the case may be, to fill the backlog vacancies only.
A bare reading of the said provision shows that all appointments to services and posts in any establishment by way of direct recruitment require to be subjected to reservation so that all available vacancies have to be filled in from open category candidates only up to 50% and from reserved category up to remaining 50%. It cannot be disputed that posts of District Judges and Judges subordinate to the District Judiciary are also posts in Judicial Service. Question is whether the phrase posts in any establishment governs such judicial posts. We have, therefore, to turn to the definition of the term establishment as found in Section 2(c) of the Act. The relevant provision thereof lays down that establishment means any Office or department of the State concerned with the appointments to public services and posts in connection with the affairs of the State. On a conjoint reading of the definition of State under Section 2(n) and the definition establishment under Section 2(c), the following statutory scheme emerges. Any office or establishment of the Judiciary of the State of Bihar concerned with the appointments to public services and posts in connection with affairs of the Judiciary of the State of Bihar would fall within the sweep of the term establishment. Once that conclusion emerges from the scheme of the Act, it becomes obvious that all appointments to services and posts in any office or department of the Judiciary of the State of Bihar would be covered by the sweep of Section 4. On the aforesaid scheme of the Act, the High Court in the impugned judgment, has taken the view that the operation of Section 4 for offices or departments of the Judiciary of the State of Bihar would cover only the ministerial staff of the District Courts and courts subordinate thereto and would not include Presiding Officers and therefore, Section 4 will not govern the direct recruitment to the posts of Presiding Officers of the District Judiciary as well as of Subordinate Judiciary.
It is difficult to appreciate this line of reasoning on the express language of the relevant provisions of Section 4 read with the definition provisions. It becomes obvious that the term any office of the Judiciary of the State of Bihar would naturally include not only ministerial staff but also officers, including Presiding Officers of courts comprised in the Judiciary of the State. Once that conclusion is reached on the express language of the relevant provisions of the Act, it cannot be held that the thrust of Section 4 would not apply to govern reservation for direct recruitment to the posts of Presiding Officers in the District Courts as well as courts subordinate thereto, as all of them will form part and parcel of the Judiciary of the State of Bihar and will have to be treated as holders of offices in the State Judiciary. Consequently, it is not possible to agree with the contention of learned senior counsel Shri Thakur for the High Court that on the express provisions of the Act, Section 4 cannot apply to govern recruitment to posts in Subordinate Judiciary. The first point for determination, therefore, has to be answered in the affirmative in favour of the appellants and against the respondents.
Point No.2: Since it is held that Section 4 of the impugned Act, on its express terms, covers direct recruitment to posts in the cadre of District Judiciary as well as to Subordinate Judiciary in the State of Bihar, moot question arises as to whether Section 4 can be sustained on the touchstone of the relevant Constitutional scheme governing the recruitment and appointments to these posts.
For coming to the grip of this problem, we have to keep in view the salient features of the Constitution emanating from the Directive Principles of State Policy as laid down by Article 50 which underscores the felt need of separation of the Judiciary from the Executive. For achieving that purpose, the Constitution has made separate provisions regarding the recruitment and appointment to the cadre of District Judges as well as the Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution and, as seen earlier, these provisions are conspicuously not included in part XIV dealing in general with Services under the Union and the States. Article 309 itself, which is of general nature, dealing with regulation of Recruitment and conditions of Service of persons serving in the Union or a State is expressly made subject to other provisions of the Constitution. The first part of Article 235 itself lays down that it is for the High Court to control the District Courts and Courts subordinate thereto and in exercise of that control vesting in the High Court, regulation of posting and promotions and granting of leave to persons belonging to the Judicial Services has to be done by the High Court. It is, of course, true that in the second part of Article 235 judicial officers already appointed to the Service have their statutory right of appeal and the right to be dealt with regarding other service conditions as laid down by any other law for the time being in force, expressly protected. But these provisions of the second part only enable the Governor under Article 309, in the absence of any statutory enactment made by the competent Legislature for regulating the conditions of service of judicial officers who are already recruited and have entered and become part and parcel of the State service, to promulgate appropriate rules on the subject. But so far as the entry points are concerned, namely, recruitment and appointment to the posts of Presiding Officers of the courts subordinate to the High Courts, only Articles 233 and 234 would govern the field.
Article 234 lays down the procedure and the method of recruiting judicial officers at grass-root level being Subordinate Judges and Munsiffs as laid down by the 1955 Rules. These Rules are also framed by the Governor of Bihar in exercise of his powers under Article 234 obviously after the consultation of the High Court and the Public Service Commission. Rules regarding the procedure of selection to be followed by the State Public Service Commission as found in Rules 4 to 17 deal with the method to be adopted by the Public Service Commission while selecting candidates who offer their candidature for the posts advertised to be filled in. These Rules obviously require consultation with the Commission on the procedural aspect of selection process. But so far as the High Court is concerned, its consultation becomes pivotal and relevant by the thrust of Article 233 itself as it is the High Court which has to control the candidates, who ultimately on getting selected, have to act as Judges at the lowest level of the Judiciary and whose posting, promotion and grant of leave and other judicial control would vest only in the High Court, as per Article 235 first part, once they enter the judicial service at grass-root level. Thus consultation of the Governor with the High Court under Article 234 is entirely of a different type as compared to his consultation with the Public Service Commission about procedural aspect of selection. So far as direct recruitment to the posts of District Judges is concerned, Article 233 sub-article (2) leaves no room for doubt that unless the candidate is recommended by the High Court, the Governor cannot appoint him as a District Judge.
Thus Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of Judiciary subordinate to the district court. Thus Subordinate Judiciary represents a pyramidical structure. At base level i.e. grass- root level are the Munsiffs and Magistrates whose recruitment is governed by Article 234. That is the first level of the Judiciary. The second level represents already recruited judicial officers at grass-root level, whose working is controlled by the High Court under Article 235 first part. At the top of this pyramid are the posts of District Judges. Their recruitment to these posts is governed by Article 233. It is the third and the apex level of Subordinate Judiciary. It has also to be kept in view that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter Articles contain provisions regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant-State that these Articles only deal with the rule making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete Code for regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, it gets insulated from the interference of any other outside agency.
We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete Code regarding appointment of District Judges and Judges in the Subordinate Judiciary. In this connection, we have also to keep in view Article 245 which, in its express terms, is made subject to other provisions of the Constitution which would OBinclude Articles 233 and 234. Consequently, as these twin Articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate on this field clearly gets excluded by the Constitutional scheme itself.
Thus both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former Articles themselves. It is true, as submitted by learned senior counsel Shri Dwivedi for the appellant-State that under Article 16(4) the State is enabled to provide for reservations in Services. But so far as Judicial Service is concerned, such reservation can be made by the Governor, in exercise of his rule making power only after consultation with the High Court. The enactment of any statutory provision dehors consultation with the High Court for regulating the recruitment to District Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to Subordinate Judiciary and the exclusive field earmarked in connection with such appointments by Articles 233 and 234.
It is not as if that the High Courts being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16(4). The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the Constitutional scheme, will also fall foul on the concept relating to separation of powers between the legislature, the executive and the judiciary as well as the fundamental concept of an independent judiciary. Both these concepts are now elevated to the level of basic structure of the Constitution and are the very heart of the Constitutional scheme. In the case of His Holiness Kesavananda Bharati Sripadagalvaru vs. State of Kerala & Anr. etc.etc., (1973) 4 SCC 225, a twelve-member Constitution Bench of this Court had occasion to consider this question regarding the basic structure of the Constitution which, according to the Court, could not be tinkered with by the Parliament in exercise of its amending power under Article 368 of the Constitution.
Sikri, CJ., in para 247 of the Report referred with approval the decision of the Judicial Committee in Liyanges case, (1967) 1 AC 259 for culling out the implied limitations on the amending power of the competent Legislature like the Parliament of Ceylon with which that case was concerned.
The relevant observations are found in paras 253 to 255 of the Report at pages 357 and 358, which read as under :
253. The case, however, furnishes another instance where implied limitations were inferred. After referring to the provisions dealing with judicature and the Judges, the Board observed:
These provisions manifest an intention to secure in the judiciary a freedom from political, legislative and executive control. They are wholly appropriate in a Constitution which intends that judicial power shall be vested only in the judicature. They would be inappropriate in a Constitution by which it was intended that judicial power should be shared by the executive or the legislature.
The Constitutions silence as to the vesting of judicial power is consistent with its remaining, where it had lain for more than a century, in the hands of the judicature. It is not consistent with any intention that henceforth it should pass to or be shared by, the executive or the legislature.
254.
