STATE OF BIHAR AND ANR. v. BAL MUKUND SAH AND ORS

Citation: [2000] 2 S.C.R. 299

Court: Supreme Court of India

Bench: S.B. MAJMUDAR, G.B. PATTANAIK, V.N. KHARE, U.C. BANERJEE, R.P. SETHI

Judgment text

STATE OF BIHAR AND ANR. v. I BAL MUKUND SAH AND ORS. MARCH 14, 2000 [S. B. MAJMUDAR, G. B. PATTANAIK, V. N. KHARE, RP. SETHI AND UMESH C. BANERJEE, JJ. ] Constitution of India, Articles 233, 234, 235 and 309-Bihar Reservation of Vacancies in Posts and Services (for Schedule Castes Scheduled Tribes and Other Backward Classes) Act, /99I, s. 4-Actproviding for reservation for direct recruitment to posts of District and subordinate Judges in Bihar- Validity of-Held s. 4 of Act in its application to subordinate judiciary was ultra vires Articles 233 and 234 of the Constitution of India and could not be sustained-Bihar Judicial Service (Recruitment) Rules, 1955. Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes (Act 1991, ss. 2(c), (n) and 4-Held, even though the Act as framed applied to judicial service, the reservation provided by s. 4 would not apply to direct recruitment to cadre of ,P.

istrict and Subordinate judges; the question of. filling up reserved posts in cadre of subordi1iate judges would remain germane to the extent of 24% for SC and STcandidates as prescribed as per the Bihar Judicial Service (Recruitment) Rules, 1955-Constitution of India, Articles I4, 16(4) and (4-A). Constitution of India Articles 235 and 309 proviso read with Entry 41 List 11 and Entry I I A List Ill-Legislative power ofstate in relation to judicial officers-Held, second part ofArticle 235 only permits legislation concerning conditions ofservice and not in relation to process ofor providing reservation for recruitment of judicial officers. Constitution of India, Articles 234 and 320-Consultation-With the High Court a sine qua non. for direct recruitment ofjudicial officers at grassroot level; stood on an entirely different footing as compared to consultation with the Public Service Commission. Words and phrases-"Separation o. fpowers between the legislature.

the executive and the judiciary"-"lndependent Judiciary"-Held, both concepts were now elevated to the level of basic structure o. f the Constitution and formed the vet)' heart ofthe constitutional scheme-Interpretation ofStatutes. The Bihar Superior Judicial Service Rules, 1951 ['the 1951 Rules'], framed by the Governor of Bihar under the proviso to Article 309 and in consultation with the High Court of Patna, did not provide for any reservation for recruitment to the cadre of district judges. The Bihar Judicial Service (Recruitment) Rules, 1955 ['the 1955 Rules'] framed by the Governor of Bihar in consultation with the High Court and the Public Service Commission provided for reservation to the extent of 14% for SC and 10% for ST candidates in the lower judiciary at the grass-roots level.

Since the High Court had not agreed to the suggestion of the State authorities for providing reservation in the posts of district and subordinate judges, the Governor of Bihar issued an Ordinance which was replaced by >, the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 ('Act') under which SO% of the posts to be filled up by direct recruitment were to be reserved for SCs, STs and Other Backward Classes (OBCs). Reiterating its stand that the recruitment to the posts of district judges could be made only in accordance with the 1951 Rules, the High court informed the State that while making appointments from the Bar for direct recruitment, preference may be given to SC and ST candidates of equal merit with general category candidates.

The State Government nevertheless issued an advertisement on June 16, 1994 by which 27 of the 54 vacancies in the posts of district judges were to be filled up from reserved category of candidates. Allowing the writ petitions challenging the advertisement as well as the Act, a Division Bench of the High Court struck down the terms of the advertisement as being ultra vires Article 233. The Act as far as it applied reservation to recruitment of persons other than district judges, was struck down as ultra vires Article 234. The State then appealed to this Court. The appellant contended that the State's power to enact legislation to provide for reservation in posts in the judicial service was not excluded by Articles ZJ3 to 235. Its legislative power flowed from a collective reading of ~ Articles 16(4) and 309 read with Entry 41 of List II and entry 11-A of List III of the Seventh Schedule. Article 234 fettered only.

the rule-making power of the Governor but not the legislative power of the State. Further, the ·establishment of cadres and creation of posts was a stage prior to ' . recruitment and was in the exclusive domain of the state. On behalf of the "\ 1 High Court it was contended that Article 309 and the state's legislative power ,the'reunder had no application t~ the subordinate judiciary. It was STATE v. BAL MUKUND SAH 301 excluded by Articles 233 to 235 which represented a complete code by themselves. The second part of Article 235 permitted State legislation only to govern the conditions of service of already recruit~d judicial officers. Dismissing the appeals by majority, the Court HELD : Per Mqjmudar, J. : 1. 1. S. 4 of the Bihar Reservation of vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Backward Classes Act, 1991 is ultra vires and in direct conflict with the scheme of Articles 233 and 234 of the Constitution. [370-G] 1. 2.

Articles 233 and 234 covered the entire field regarding recruitment and appointment of district judges and judges of the subordinate judiciary at base level. The legislative power of the State in this field was excluded by the constitutional scheme itSelf. Both Articles 309 and 245 would have to be read subject to Articles 233 and 234. [337-D] 1. 3. No recruitment to the post of a district judge could be made by the Governor without recommendation from the High Court. Similarly, appointments to subordinate judiciary at grass-root level also could not be made by the Governor save and except according to the rules framed by him in consultation with the High Court and the Public Service Commission. Any statutory provision by-passing consultation with the High Court and laying down a statutory fiat as was tried to be done by enactment of s. 4 of the Act was in direct conflict with the complete code regarding recruitment and appointment to the posts of district and subordinate judiciary.

[337-BC] 1. 4. Providing of reservations was not a stage anterior to the stage of recruitment and appointment. [344-A-B] p 2. 1. The Act covered judicial service of the State. S. 4 of the impugned Act would not apply for regulating the recruitment and appointments to the cadre of district judges as well as to the cadre of judiciary subordinate to the district judges. Such appointments would be strictly governed by the Bihar Superior Judicial Service Rules, 1951 and the Bihar Judicial Service (Recruitmenti Rules, 1955 respectively. For governing direct recruitment at the grass-root level 14% reservation for SC and 10% reservation for ST candidates shall be followed as lJrovided by the 1955 Rules until any other scheme of reservation was promulgated by amending the relevant rules by the Governor after effective consultation with the High Court as envisaged by Article 234 read with Article 309. [373-A-B] 2. 2.

Article 335 had to be given full play while enacting a scheme of reservation envisaged by Article 16(1) and (4). Therefore, the High Court, entrusted with the full control of subordinate judiciary under Article 235, had to be consulted and could not be treated to be a stranger to the exercise as envisaged by the impugned statutory provision. [340-D-E] 2. 3. D~recting the High Court without its consent and consultation and merely by the thrust of legislative provision that 50% of the available vacancies in the cadre of district judges or judges of the subordinate "t judiciary must be filled in from reserved candidates only would ex-facie cut across the power of the High Court which alone could recommend the filling up of all such vacancies in the district cadre as per Article 233 and equally the power of the High Court to render effective consultation to the Governor under Article 234 when he framed rules for recruitment to the subordinate judiciary as per Article 234. (341-E-F] 2. 4.

If at all any reservation policy under Article 16(4) had to be pursued, it had to be exercised in consonance with the scheme of Articles 233 and 234 and not dehors it. It was only the High Court which could give green signal regarding the extentofreservations at entry points as candidates entering on reserved posts in judicial service of the district judiciary both at the apex level and at the grass-root level had to act under its control. In the absence of such a green signal by the High Court there would be no occasion to invoke Article 16(4) read with Article 335. [352-B-H] ..... 2. 5. Neither at the base level i. e. at the grass-root level of controlling entry point to subordinate judiciary nor at the entry point at the apex level of the pyramid for appointing district judges, any State Legislature's interference was contemplated or countenanced. On the contrary, it was ~ contra-indicated by necessary implication. [350-G] Indra Sawhney v. Union of India, [1992] Suppl.

3 SCC 217; Indra Sawhney v. Union ofIndia, [2000] 1 SCC 168; Durgacharan Misra v. State of Orissa, [1987) 4 SCC 646; Dr. Preeti Srivastava v. State ofM. P. , [1999] 7 SCC 120; Samsher Singh v. State of Pw~jab, AIR (1974) SC 2192; M. M. Gupta v. State ofJammu & Kashmit; (1982) 3 SSC 412; All India Judges Association v. Union of India, AIR (1993) SC 2493; Supreme Court Advocates-on-Record Association v. Union ofIndia, AIR (1994) SC 268 and The Belsund Sugar Co. Ltd. v. The State of Bihar. JT (1999) 5 SC 422, referred to. STATE v. BAL MUKUND SAH 303 K. N. Chandra Sekhara v. State ofMysore, AIR (1963) Mysore 292; M. l. Nadafv. The State ofMysore, AIR (1967) Mysore 77; Manoj Kumar Panda v. State of Orissa, {1982) Lab. I. C. 1826 and Farzand v~ Mohan Singh, AIR (1968) All 67, approved. 3. 1. To the extent to which conditions of service could be regulated by law as laid down by Article 235 second part, a limited field was kept open for legislative play.

But this did not pertain to recruitment or appointments at all. [350-E] 3. 2. What was permitted by Article 235 could not be considered as a blanket power entrusted to the Legislature or to the Governor under Article 309 by the constitutional makers dehors the complete net of constitutional scheme controlling recruitment and appointment to district and the subordinate judiciary under Articles 233 and 234. [348-A, B] B. S. Ycidav v. State ofHaryana, [1981] 1 SCR 1024, explained. 4. 1. Consultation with the High Court was sine qua non for direct recruitment of judicial officers at grass-root level i. e. Munsiffs and Magistrates and whose recruitment was governed by the 1955 Rules framed under Article 234. [344-D] 4. 2.

Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stood on an entirely different footing as compared to the consultation with the Public Service Commission which had to discharge its functions of entirely different type as envisaged by Article 320 of the Constitution. [354-E] 4. 3. There was no express fetter regarding consultation with the High Court excluding Article 16(4) as in Article 320(4). Policy decision as per Article 16(4) had to be taken by the Governor in consultation with the High Court while framing appropriate rules governing the recruitment and appointments to the judicial service both at the apex level and at the grassroot level. [354-G-H, 355-A] 4. 4. The Legislature could not, by an indirect method, circumvent the schedule of recruitment and appointment to district judiciary as envisaged by the makers M. M. Gupta v. State qfJ & K, AIR (1982) SC 1579 and Indra Sawhney v. Union ofIndia, [1992] Supp.

3 SCC 217, referred to. 6. The seniority of the members of the judicial service would be determined in accordance with the Service Rules applicable and the provisions of the Act by adjusting the candidates selected on reservation to fill in the reserved slots keeping in view the quota and rota rule. [437-G-H] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9072 of 1996. From the Judgment and Order dated 13. 12. 94 of the Patna High Court in C. W. J. C. No. 6756 of 1994. V. A. Bobde, F. S. Nariman, Dr. Rajeev Dhavan, Rakesh Dwivedi, K. Sukumaran, D. D. Thakur, B. L. Yadav, B. D. Agarwal, Saket Singh, Kumar Rajesh Singh, B. B. Singh, Uman Nath Singh, Lakshmi Raman Singh, Amitesh Kumar, Apurb Lal, Prakash Kumar, S. K. Verma, Ms. Kirti Sinha, Akhilesh Kumar Pandey, R. P. Goyal, Guiab Chandra, D. K Garg, Ms. Renu George, K. K. Misra, Vishwajit Singh, N. S. Gahlot, Anish Dayal, R. K. Singh, S. D. Mishra, Tripurari Rai, Prashant Kumar, S. K. Sinha, R. S.

Singh, Anil Kumar Jha, Irshad Ahmed, C. N. Shree Kumar, Balbir Singh Gupta, Manoj Prasad, A. N. Bardiyar, B. B. Singh, P. H. Parekh and Amit Dhingra, for appearing parties. The following Judgments/Order of the Court were delivered : S. B. MAJMUDAR, J. Leave granted in Special Leave Petition No. 16476 of 1993. Both these appeals, on granr of special leave under Article 136 of the Constitution of India, are moved by the State of Bihar, which is common appellant no. l 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'), insofar 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 al 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 dire. ct 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 insofar 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 Hon'ble 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 Appedl No. 9072 of 1996: This Court, by its order dated 13th October, 1993 in Civil Appeal Nos. 4561-62 of 1992 in State ofBihar v. 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 SO% 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 judgmept 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 resel"ved 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 insofar 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 the 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 Legislature's 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. (I) '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 ther~in 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.

Tha_t 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 districtcadre 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 itwill be ruled out. Dr. Dhavan then invited our attention to the decisions in M. M. Gupta & Ors. etc. v. State of Jammu & Kashmir & . Ors. , [1982] 3 SCC 412 paras 28 to32 as well as in State of Kerala v. Smt. A. Lakshniikutty & Ors. , [1986] 4 sec 632 at page 647 in para 22 to highlight the scope of the term 'consultation' which should be effective consu1*ation.

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 p 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 A1ticle 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 STATE v. BALMUKUND SAH [S. B. MAJMUDAR, J. ] 313 ... legislative power confelTed 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. Ylzdav & 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. v. 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 ? Y 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 l lA 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 coritempla. ted; that these Rules are made by the Governor in consultation with the High Court and the Public \ Service Commission.

l Shri Dwivedi next contended that, in any case, the High Court in the impugned judgment 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, I ~ :.. :,r 11 ' I ' • ;. • ~I ) -H t >. ,,' • j the High Court. • ,f ,· • .. _,,. ,;;r ··r·. . J '' · The mairi reply to the contentions of learned coi. insel for the'appellaiits emanated from learned senior counsel Shri·Thakur appeating lfor the High Court of Patna. He submitted, in the first instance, that the impugned Act is not'. ~ide e'nough to apply to Judiciary. He tried to ·suppdrt ·tii"is'bont~ntion on r '. i1 • '. ,I . . '' . .

' •L' LL I contentlon, he ,contended as under : ... '" , · . :1. r . •i:;i·1· r-1r11_· .. ·_ · - · I: Article 309 has no application· to Subordinate JutliCicH:'y. ' ~lrlgets -fp excluded by the triology of Articles 233 to 235 whiCh represent' acbmplete ·Code amongst themselves. ' •• 'I 1 ,, !. ;11 _,r: J,'':. t-' ,[ u~ I . fL ·"' . 2. Once Article 309 is exch,ided, legislative p()w~~.. _und~r. ~ti~le ~,99 .. fir~t part also gets excluded qua the field covered qy . the afor,esaici tr,io. Jpgy' pf the, Article§.. r, _. ,. ,, r;_ ,L ~ ,,: • , " I'G ~. ·-·,,t ,_11. ~·- . •i ,. ),,'. ~i-l"'.. t.. tr 3. These three Articles themselves are the only source of power to make !. J. l. ,· lJI l . ' . I , ' . · . ' ~- ftI ~ . , , ' r. · rules_ or law as seen from second pal1 of Article 235 as well' as Articles-233 ~ '1( .. '""I 11 ~· , i,· '- "• ' i i · ' ' •JJ · , , and 234'. · " - ·'' '' .... · ' · I 'l ,( -. • t'' r,,·"i J,""' ::\ •! ti~ I ! Li Jl . 4.

'Roles· made Linder Article 234 by the ·Govern ,( '. 1 ,... I 1,-~'1·lt ', . i! I '' 'su'bjktt t6 'the'provis'ions of this"Con'stituHon', Acts' of tH~ appropn~te'" 1 / ' . :-d 'Legisl~fo'iihriay regulate the' recri. litment, aria' cbridhi6iis%fserviCe J of persons appointed, to public services and post~ i. n ·donriictibn·vJitH' the affairs of the Union or of any State: )·, ) •• ,. ·, 11 \1• 1l\ J'' •. i.. ; llVI Pr~? V_i. cJ. ed. tha,t it.. ~p~ll. be comp~t~;it ,for the such 1 1 fr~~~4~~v~r: Ff person as he may direct in the case of ser,yi,~~s1 ~P. ~J·~? ~~s. , it? -it connection with the affairs of the Union, and for the Governor of , t, , ,, a"State1or sucp person as he may direct. in. ·\he case of. services and posts in connection with the affairs oLthe. iState, to 1make, rules regulating the recruitment, and the conditions of'service of persons . , ,.

appointeci,Hfo' ·such services and posts until 'provision ih~ thkt behalf '· · is:made by odinder'ari ·Act of the appropriate Legislature imder this' I . . article,. and, arty rules SO ' made shall . have effectI'subject '. to the . Provisions of ~y such Act. '' '' · i 1. · · -· , ; [J; lA'mere look at this Article! shows that it is expressly:·made subject to HI otheritptovisions . Of the· Constiuniort and subject to that; an appropriate· ' ''STATE v. BALMUKUND SAH [S. B. MAJMUDAR,J. ] 319 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 die Staie eonceined.

Proviso to that Articl~ permits the GOvern0r of the State'to'fillup:the·gap; ifrthere is no such statutory provision goverfiing the aforesaid topics: Fbr that purpose, the Governor may make rules regufatiilg tne recfoitffi'ent ~nd the conditions'of service of perfons·appointea to such'servkes If 1 antl::posfs:until 'provision'in 'tha. t- behalfis made by or under ·im . Ket' 'of the dfoipetent Legislature ·which may intervene and enact approprikt'e ~st~tutory provisions for the same. The maimer of recruitment to the services contemplated· by Article 309 is provided by Chapter II dealing with the Public Service Coril. iriissions. Article 320 deals with Functions ofPublic Service Comnif~sions enjoihingthem to c'onduct examinations for appointment to the services of1he Union artd the servkes of the State respectively. That naturally has a direct linkage with 'the types 'of Services contemplated by' Article 309. • • l. J,f~· ' jJ ' J '' ' Special. Scheme.

for Judic,ial Services in Part VI (Chapters V & VI): j j 'J • ~ ' "' , ,1 ' ' ' ,• fi . ' . , . It i! ' pertinent to note that independently of general provisions of Article t . ~ i ~ ~. • • . i' .. • ' , ( ' ' 399,_ ,the ~onstitution has made special provisions for certain Services. Even if they i:nay be part of public services, still separate Constitutional schemes are ! JI I It• . , . '. , ,,.. i.. • ' . -~ envisaged for regulating recrmtment and conditions of services of officers ' ~,J1 I / J• I 1 , , _.. r _ . • governed by such Services. Let us have a glance at such specially dealt with 1 Ser~ices. ' · ' • ' .. ~ ' l 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: SubordinateCourts 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 lOpic of 'Interpretation' and amongst others, defines by sub-article (b) the expression ·~udicial service" to mean "a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior t~ the post of District Judge. " It becomes, therefore, obvious that the frarriers 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) thereof lays down the rule making power of the Chief 1ustice 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 ofthe 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 Legislatur1 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 IA .. ,. 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 ;md 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 servi~es. of diverse types governed by the relevant differeP' Constitutional provisions as indicated hereinabove.

The other Article to which reference is to be made is Article 16 subarticle (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. v. 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 A'\ thr~-~udg~JJench. of;t. his ackward·:classes· in1:Services,';if ~t is considered by; the ,appropriatef1 all. thPri. tY1 that :sucbIreservation'. tWilltadversely affect the efficiency, of'. ,theiJ adrninistratiol11·ibe11 exercise . under,Article)o(4) is not permissible. This:is the1; C()nstitutional:JintitatioR' on,the. exer:ciserof the enablingJpower of reservation·, un vi l;1o:y,c tl' . -evenrin11tM'1ih1rd· 1year·:a1soPtheTvatlcitltie;~ stialPl5e filled by 1 ~r;lub'. Jrl J?. ' . - ·,11i;ekdhange1>eiw'eeri1the·cafldia~teNro'm tHerex'. tfeni. ely'Backward . ·anttimftcJ(wardroasses·An / ~·~? {gWJ~·,9t~~~S,· Jp~! J~R~. _fll6;S;~11_,qjflat~~l! 2PJ the Scheduled TriOes, then by the candidates from extremely backward class, ,p. wlJ ni i; 1 11 1 . RH5'A! ,~P. rQY. ::tJ!

~L 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 avaiTable 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 Qf non-availability of suitable candidates for the vacancies reserved for the economically backward women the vacancies shall be filled first by the candidates from the Scheduled Castes, then by the candidates from the Scheduled Tribes, then by the candidates from extremely backward class and then by the candidates from backward class. The vacancies so filled in the transaction shall be· treated as reserved for the candidates of that particular community who are actually appointed. (d) If in any recruitment year, the number of candidates of Scheduled Castes/Scheduled Tribes, extremely Backward and Backward Classes are less than the number of vacancies reserved for them even after exchange formula the remaining backlog vacancies may be filled by general candidates after deserving them but the vacancies so deserved shall be carried forward for three recruitment years.

(e) If the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes are not available for filling up the reserved vacancies, fresh advertisement may be made only for the candidates belonging to the members of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes, as the case may be, to fill the backlog vacancies only. " The plain and grammatical meaning of the words used in Section 4 STATE v. BAL MUKUND SAH [PATTANAIK, J. ] 381 quoted above unequivocally indicates, that it is a law relating to recruitment/ appointment and as such once, it is held that the power of recruitment in respect of Judicial Services . is provided for in Article 234, the State Legislature in the garb of making law in consonance with Article 16(4) cannot encroach upon Article 234.

In course of hearing an elaborate argument had been advanced that reservation is intended to fulfil the Right of Equality under Article 16(1) read with 16(4) and the question whether there has been adequate representation of a particular backward class of citizens has been left to the satisfaction of the State Government in Article 16(4) and, therefore, the State Legislature cannot be denuded of its right to make such law to fulfil the aforesaid Constitutional mandate. We really fail to understand as to why the legislature would feel that the Governor, when frames rules in consultation · with the High Court and the Public Service Commission under Article 234 will not take into consideration the constitutional mandate under Article 16(1) or Article 16(4).

In fact in the case in hand in the Bihar Judicial Service Recruitment Rules, 1955, reservations have been provided for Scheduled Caste and Scheduled Tribe candidates and the Full Court of Patna High Court have also adopted the percentage of reservation for these candidates as per the notification of the State Government. So far as the Superior Judicial Service is concerned, it is of course true that there has been no provision for reservation. But such provision could always be made by the Governor in consultation with the High Court, also bearing in mind the mandate of Article 335, namely "Maintenance of Efficiency of Administration". It is indeed painful to notice, some times law makers unnecessarily feel that the High Court or the Judges constituting the High Court are totally oblivious to the Constitutional mandate underlying Article 16 and more particularly, Article 16(4).

It is also not appropriate to think that the High Court will not take into consideration the provisions of Article 16(1) and 16(4) while considering the case of recruitment to the judicial services of the State. The Judiciary is one of the three limbs of the Constitution and those who are entrusted with the affairs of administration of justice must be presumed to have greater expertise in understanding the Constitutional requirements. In this view of the matter the contention of Mr. Dwivedi, appearing for the State of Bihar is unfounded. In the aforesaid premises, in my considered opinion, the provisions of Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 has no application to the recruitment of judicial officers in the State o(Bihar. BANERJEE, J.

I have had the privilege of going through the judgments of Brother Majmudar and Brother Sethi expressing however, two different and divergent views in regard to the issues raised in the Appeals before us. I have also the privilege of going through the judgment of Brother Pattanaik, recording his concurrence with Brother Majmudar and differing from the views expressed by Brother Sethi. I also record my concurrence with the views expressed by Brother Majmudar but I wish to add a few lines without dilating on to the points delved into both by Brother Majmudar and Brother Pattanaik in expression of my opinion in the matter in issue. The Bihar Reservation of Vaca~cies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 as amended by Bihar Act 11 of 1993, in particular Section 4 thereof is the issue in controversy.

The exact language of Section 4 has already been noticed by both Brother Majmudar and Brother Pattanaik in their judgments and as such to avoid the length of the judgment again. I refrain myself from quoting the same excepting, recording however, that Section 4 of the Act of 1991 covers the field of reservation for direct recruitment·to the extent of 50% from the open merit category and 50% from the reserved category and the effort on the part of the State legislature to include the judiciary within the ambit of Section 4 stands negated by the High Court and hence the Appeal before this Court.

The core question that needs to be answered is whether Judicial Service comes within the ambit of Article 309 so as to clothe the State legislature with the power of legislation and it is in this context that heading of Article 309 lends some assistance in the matter which reads; "Recruitment and conditions of Service of persons serving the Union or a State" Article 309 thus, is restrictive to recruitment and conditions of service of persons. In any event the founding fathers of our Constitution with due care and caution introduced this Article subject however, to the other provisions in the Constitution.

The opening words of the Article is to be noticed since any rule in terms of the rule making power as conferred by the proviso to the Article if contravenes any of the provisions of the Constitution, the rule cannot but be ascribed to be void the reason being express words used by the makers of Constitution 'subject to the provisions' and by reason of existence of a specific provision in regard thereto. It is an authorisation for the legislature to legislate relating to recruitment and conditions of service provided there is existing no specific provision in regard thereto. Needless to record here STATE v. BAL MUKUND SAH [BANERJEE, J. ] . 383 that Article 309 falls under Part XIV of the Constitution under the head "Services under the Union and States" and relying thereon Dr. Dhawan appearing in support of the Appeal contended that since judiciary is an organ of the State question of taking it out of the ambit of Article 309 would not arise.

The constitutional scheme however, runs in direct conflict with the submission of Dr. Dhawan. Articles 233 to 237 falls under Chapter VI of constitution with a heading - 'Subordinate Courts' . The headings of Articles 233, 233A, 234, 235 in this context are of some effect and consequence and as such, the same are noted hereinbelow: "233. Appointment of District Judges". "233A. Validation of appointment of, and judgments etc. , delivered by, certain District Judges. "234. Recruitment of persons other than District Judges to the Judicial Service". "235. Control over subordinate courts". Be it noted that whereas Chapter V of the Constitution deals with the High Court in the State, Chapter VI as noticed above deals with Subordinate Courts; the scheme of the Constitution thus, is categorical enough to depict the judiciary as a specific class by itself being an independent third wing of democratic polity.

The appointment of district judges though conferred in terms of Article 233 of the Constitution on the Governor of the State but the "Consultation with the High Court exercising jurisdiction in relation to such a State" has been inserted in order to obviate any controversy as to the efficiency of the officers who are to be promoted to the rank of district judge in the Higher Judicial Service from the post of subordinate Judge. The incorporation of sub-Article 2 as regards a direct recruit district judge on the basis of the recommendations of the High Court for appointment has as matter of fact cemented the controversy, in the event however, there being any, as regards the method of consultation in the matter of appointment of district judges. The further incorporation of Articles 234 and 235 and on a plain reading thereof would leave no manner ofdoubt as to the separate categorization ofjudicial officers exclusive to themselves and their appointment independently of Articles 309.

The inclusion of Chapter VI in the Constitution as a matter of fact records a distinct intention of the framers of the Constitution as regards the supremacy and separateness of the judiciary from the legislature and the executive. If Article 309 is subject to be a general provision, Articles 233 to 235 ought to be treated as specific provisions for appointment of judicial officers and by reason therefor, the specific field of legislation thus stands completed and obviously the framers of the Constitution having provided Articles 233 to 235, introduced in Article 309, the words "subject to the provisions of this Constitution". As a matter of fact the submission in support of the· Appeal does not stand to further scrutiny by reason of the fact that in the event of there being al! y contra intention of the framers, the same would ·have found an expression ~n Article 234 itself.

The appointment of district judges, in my view, without any hesitation rests with two constitutional functionaries namely, the Governor and the High Court and thus withdrawing the same from the purview Of the general power as conferred under Article 309. On the wake of the aforesaid, judicial service thus, cannot be termed to be covered under Article 309 as regards the <appointment thereto though however, other conditions of service specifically left open and thus the authorisation to legislate under Article 309 is available in regard to conditions of service and other incidentals thereto subsequent to the appointment. It may also be noted that General Legislative powers of the Parliament as well as the State Legislature under Article 245 is expressly made subject to other provisions of. ,the Constitution which would obviously include Articles 233 to ( 235. The other aspect of the matter is in regard to Article 16 (4) which Mr. Dwivedi appearing in support of the Appeal in Appeal No.

9072/96 contended that reservation is outside the purview of Chapter VI and since Article 16 (4) can be termed to be a basic feature of the Constitution, appointments in the posts of district judges ought also to be governed thereunder and not de hors the same. This aspect of the matter however, has been dealt with elaborately by both my·learned Brother Majmudar and Brother Pattanaik and as such I do not wish to record any further reasons therefor but adopt the same and hereby record my concurrence therewith. In that view of the matter I would dismiss both Appeals without however, any order as to costs. SETID, J. (For himself 8? - Khare, J. ) We have minute1y perused the well prepared, lucid and knowle<lgeable STATE v. BAL MUKUND SAR [SETHI, J. ] 385 judgment of Brother Majmudar, J. but find it difficult to agree with him on main issues involved in the case, which undoubtedly are of far reaching consequences on the future of the Indian polity.

As the interpretation of the various provisions of the Constitution in relation to the independence of judiciary and the sovereign rights of the legislature to make laws with respect to the 'Judicial Service' is likely to affect the constitutional scheme adopted in a Parliamentary democracy, We have opted to write a separate judgment Leave granted in SLP 16476 of 1993. Concededly India is a Parliamentary democracy having an elaborate written Constitution adopted by the people of the country for their governance. The Constitution declares to secure to all citizens of the country, justice-, social, economic and political; liberty of thought, expression, belief, faith and worship and equality of status and opportunity. The Parliamentary form of democracy introduced in this country is referable to the West-minister experience of Great Britain.

All the basic principles of Parliamentary system practised and followed in United Kingdom were adopted by the founders of the Constitution in our country. The constitutional scheme generally envisages separation of powers which is not synonymous to the "checks and balances" as prevalent in the United States Constitutional system. In implementation of the scheme, with respect to separation of powers amongst the main win~ of the 'State', there is overlapping sometimes, even without encroachment as the Constitution is found to contain interactive provisions. The constitutional scheme makes the Executive responsible to the Legislature. The paramount consideration and dominant goal of the Constituent Assembly has been to bring popular people into the Government and make the 9ovemment answerable to the representatives of the people.

The Indian Parliamentary system adopted and practised for over half a century has, by and large, kept pace with the changing circumstances by embodying innovations and practices to meet the requirements of the changing role of the Parliament. Various provisions made in the Constitution reflect the desire of the nation to have a practicable socio-political-economic system to meet the aspirations G , of the common man. The system is intended to deliver the goods and services to the satisfaction of the common masses. The constitutional framework envisaging Parliamentary system of governance ensures the establishment of a sovereign, socialist, secular, democratic Republic in the country. It gnarantees fundamental rights and mandates the Directive Principles of the State policy. Besides providing a quasi federal system in the country and envisaging the scheme for distribution of legislative powers between the State and the Centre, it emphasizes the establishment of the rule of law.

The form of Government envisaged under a Parliamentary system of democracy is a representative democracy in which the people of the country are entitled to exercise their sovereignty through the legislature which is fo be elected on the basis of adult franchise and to which the Executive, namely, the Council of Ministers is responsible. The legislature has been acknowledged to be a nerve centre of the State activities. It is through Parliament that elected representatives of the people ventilate peoples grievances. The Constitution devises the ways and means in its various parts by which each of the three branches of the Government, namely, legislative, executive and judiciary can function without interference of the other by invading others assigned sphere. The doctJ. ine of separation of powers though not strictly accepted yet provides for independent judiciary in the States. This Court in Chandra Mohan v. State of Uttar Pradesh & Ors.

, AIR (1966) SC 1987 held: "The Indian Constitution, though it does not accept the stJ. ict doctrine of separation of powers, provides for an independent judiciary in the States: it constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that 'it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of the superior Judges.

' Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch. VI of Part VI under the heading "Subordinate Courts". But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation based upop the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control. " The hallmark of the constitutional scheme in the country is the role ofjudicial review assigned to the courts.

Unlike United States our Constitution explicitly empowers the Supreme court and the High Courts to check the actions of the Executive and the Legislature in case of such actions being incompatible with the Constitution. To ensure the existence of an independent, effective and vibrant judiciary provision is made in the Constitution in Part V, Chapter IV dealing with the Union Judiciary, Part VI, Chapter V dealing with the High Courts in the States and Chapter VI dealing with Subordinate Courts. This Court, in various decisions, has highlighted the importance of insulating the judiciary from executive interference to make it effectively independent. In S. P. Gupta v. Union of India, [1982] 2 SCR 365 , Bhagwati, J. , as His Lordships then was declared that the principle of independence of judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values.

The Indian judiciary was described as document ofsocial revolution which casts an obligation on every instrumentality including the judiciary which is a separate but equal branch of the State to transform the status quo ante into a new human order in which justice, social, economic and political will inform all institutions of national life and there will be equality of status and opportunity for all. The British concept of justicing was found to be satisfactory for a stable and static society but not for a society pulsating with urges of gender justice, worker justice, minorities justice, dalit justice and equal justice between chronic unequals. In the words of Glanville Austin, the judiciary has to become an arm of the socio-economic revolution and perform an active role calculated to bring social justice within the reach of the common man.

In the instant case the controversy relates to the alleged invasion on the independence of subordinate judiciary defined as 'judicial service' in Article 236 of the Constitution. It is contended that the provisions of Part VI, Chapter . VI of the Constitution are to be construed independently ignoring the other constitutional guarantees and provisions made to deal with the public services of the Union and the States as contemplated under Article 309 of the Constitution. On the one haJ! d it is submitted that the said Chapter VI is a selfcontained provision with which no interference can be had by any other organ of the State, namely, the executi~e and the legislature.

On the other hand it is contended that conceding that the provisions made in the said Chapter are mandatory, the executive or the legislature is not debarred from supplementing those provisions without transgressing the limit imposed by law or making such provision which may not amount to interference with the judiciary endangering its independence. Divergent views are expressed regarding the nature of service contemplated under Part VI, Chpater VI and the service referred to in Part XIV Chapter I. The impugned Act being Bihar Act No. 3 of 1992 is referable to the provisions of Article 309 legislated by the State Legislature in exercise of its powers conferred upon it under Part XI Chpater I read with Schedule VII Entry 41 List II and Entry IIA List III. Section 4 of the impugned Act deals with and provides reservation iri all service~ including the judicial service.

The High Court of Patna has held the aforesaid section to be inapplicable to the judicial service with the result that the appointments to the judicial service have been made without any reservation. Without repeating the facts as narrated in the judgment of Majmudar, J. , it is noticed that when the High Court . of Patna administratively declined to concede reservation in the judicial services, the State Legislature enacted the impugnecl Act. Article 233 of the Constitution provides that appointment of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relatioh to such State. Direct appointment of a person to the post of District Judge can be made only if he has been an Advocate/Pleader for seven years and is recommended by the High Court for appointment. The appointment contemplated under this Article is the initial appointment from direct recruits or initial promotion from the service.

The exercise of power of appointment b)'. the Governor is conditioned by his consultation with the High Court which· means that he can appoint only such person to the post of District Judge who has been recommended by the High Court. The object of consultation was considered by this Court in Chandra Mohan's case (Supra) wherein it was held: -- "The Constitutional mandate is clear. The exercise of power of appointment by the Governor is conditioned by his consultation with the High Court that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service' or to the Bar, to be appointed as a district judge.

Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly does so, for his mind may be influenced by other persons not entitled to advice him. " 1 This Court in State ofAssam & Am: v. Kuseswar Saikia & Others, AIR (1970) SC 1616 held that the separate judicial service was provided to make the office of a Distri'ct Judge completely free of executive control. In Chandramouleshwar Mohan Prasad v. 11ie Patna High Court & Ors. , AIR (1970) SC 370 this Court held that the underlying idea of Article 233 is that the Governor should make up his mind after there has been a deliberation with the High Court.

The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows the merits as also their demerits and that the consultation with the High Court under Article 233 is not an empty formality. p It is not disputed in this case that the State Legislature had the plenary power to enact the impugned Act under Part XI Chapter I read with 7th Schedule Entry 41 of List II and Entry IIA of List III. It is also not disputed that the said Act has been enacted to give effect to the fundamental rights, the Directive Principles of State Policy and the obligation of the State under Article 335 of the Constitution. The controversy rests upon the interpretation of Articles 233, 234, 235 and 309 of the Constitution. The High Court held that the judicial service was not a service in the sense of employment and was distinct from other services.

Referring to various provisions of the impugned Act and the definitions of the terms "any office or department" in an "establishment" and "State", the High Court concluded that the provisions of Section 4 of the said Act were not applicable to the judicial service and that no reservation in terms thereof could be made in the matter of appointment to the post of District Judges and other judicial officers subordinate to the District Judge. The High Court extensively referred to the observations of this Court in the case of All India Judges Association & Ors. v. Union ofIndia & Ors. , AIR (1993) SC 2493 to conclude that the judicial service having been assigned a special status and place in the Constitution was in contradistinction to other services within the constitutional framework. It was held that the definition of "office or department" and of "establishment" under the Act was referable to the office or departmen,t of the Court and not the Court itself.

Part XIV Chapter I of the Constitution relates to "services under the Union and the State". Article 309 authorises the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, however, subject to other provisions of the Constitution. Proviso to Article 309 authorises the executive to make rules regulating the recruitment and conditions of service of persons appointed to such services or posts until ·powers in that behalf are exercised by the appropriate Legislature under Article 309 of the Constitution. "Public Service" means anything done for the service of the public in any part of the country in relation to the affairs of the Union or the State. It was opposite of private service. Persons connected with the discharge of public duties relating to any of the organs of the State i. e.

executive, judiciary and legislature including the Armed Forces, would be termed as "public servants" engaged in the service of the Public.

Public services and posts in connection with the affairs of the Union or of any State would refer to all services and posts under the Union and the State and include every commissioned officer in the Military, Naval or Air Force, every Judge, every officer of court of justice, a member of Panchayat, every arbitrator or other person to whom any cause or matter has been referred for decision or report by any court of justice, every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; every officer of the Government whose duty it is as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety or convenience; every officer whose duty it is, as such officer, to talce, receive, keep or expend any property on behalf of the Government, or to make any survey assessment or contract on behalf of the Government; every officer who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election; every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; or such person in the pay of a local authority, a corporation established by or under a Central or State Act, and the like.

Section 21 of the Indian Penal Code may be an indicator to refer to the public services and posts intended to be covered or contemplated under Article 309 of the Constitution. Judicial service, therefore, cannot be termed not to be a service within the meaning of Article 309. Accordingly, the appointment of District Judge under Article 233 is an appointment to the public service within the meaning of Article 309 of the Constitution. It is true that the constitutional scheme envisages an independent judiciary not being under the Executive but such an independent judiciary cannot be termed to be a creation of a distinct service in the State being not subject to law making sovereign powers of the Legislature. Article 309, as noticed earlier, is itself subject to other provisions of the Constitution which guarantee the independence of judiciary. The power of appointment of District Judges is vested in the Governor subject to the conditions imposed under Article 233 of the Constitution.

It follows, therefore, that subject to the other provisions of the Constitution, the appropriate Legislature can regulate the recruitment and condition of service of all persons appointed to public services including the judicial services and posts in connection with the affairs of the Union or of the State. Similarly with restraint of the provisions of Article 309 the Governor of the State can malce rules regulating the recruitment and condition of service of such persons. The scheme of the Constitution, ensuring independence of judiciary clearly and unambiguously provides that no power is conferred upon executive to exercise disciplinary authority and jurisdiction in respect of judicial service. Express provision has been made under the Constitution, vesting in the High Court "the control over District Courts and Courts subordinate thereto". Such a provision did not exist in the Government of India Act, 1935. In State of West Bengal & Am: v.

Nripendra Nath Bagchi, AIR (1966) SC 447 this Court after referring to Articles 233, 234 and 235 of the Constitution held that the aforesaid Articles were intended to make special provision for the judicial service of the State. To understand why a special chapter was provided when there existed Part· XIV dealing ~Ith the service. under the Union and the State it was found necessary to go into the history of the aforesaid constitutional provision. It was held: "Before we set down briefly how this Chapter came to be enacted· outside the Part dealing with Services and also why the articles were worded, as they are, we may set down the corresponding provisions . of the Government of India Act, 1935. There too a special provision was made in respect of judicial officers but it was included as a part of Chapter 2 of Part X which dealt with the Civil Services under the Crown in India. The cognate sections were Ss. 254 to 256 and they may be reproduced here: "254. District Judges, etc.

~ (1) Appointments of persons to be, and the posting and promotion of District Judges in the Province shall be made by the Governor of the Province, exercising his individual judgment, and the High Court shall be consulted before a recommendation as to the making of any such appointment is submitted to the Governor. '[J, (2) A person not already in the service of His Majesty shall only be eligible to be appointed a District Judge if he has been for not less than five years a Barrister, a member of the Faculty of Advocates in Scotland, or a Pleader and is recommended by the High Court for appointment. (3) In this and the next succeeding section the expression 'District Judge' includes Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge, and Assistant Sessions Judge. 255. Subordinate Civil Judicial Service.

(1) The Governor of each Province shall, after consultation with the Provincial Public Service Commission and with the High Court, make rules defining the standard of qualifications to be attained by persons desirous of entering the subordinate civil judicial service of a Province. In this section, the expression "subordinate civil judicial service" means a service consisting exclusively of persons intended to fill civil judicial posts inferior to the post of District Judge. (2) The Provincial Public Service Commissionfor each Province, after holding such examinations, if any, as the Governor may think necessary, shall from time to time out of the candidates for appointment to.

the subordinate civil judicial service of the Province make a list or lists of the persons whom they consider fit for appointment to that service, and appointment to that service shall be made by the Governor from the persons included in the list or lists in accordance with such regulations as may from time to time be made by him as to the number of persons in the said service who are to belong to the different communities in the Province. (3) The posting and promotion of, and the grant of leave to, persons belonging to the subordinate civil judicial service of Province and holding any post inferior to the post of District Judge, shall be in the hands of the High Court, but nothing in this section shall be construed