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PETITIONER: A.C.  THALWAL

       Vs.

RESPONDENT: HIGH COURT OF HIMACHAL PRADESH & ORS.

DATE OF JUDGMENT:       17/08/2000

BENCH: CJI, R.C. Lahoti, J. & K G Balakrishnan, J.

JUDGMENT:

R.C.  Lahoti, J.

L....I..........T.......T.......T.......T.......T.......T..J

    A.C.    Thalwal,  the  appellant   was  born  on   15th September,  1948.   On 11.11.1965 he joined the  Indian  Air Force.   On 1st December, 1980 he was released from the  Air Force.   For  a  short  period between  February,  1981  and January  1984,  the  appellant served as a  cashier  in  the Punjab  National Bank.  The appellant did his graduation  in the  year  1971 and post graduation in 1973.  He passed  the LL.B.  examination in the year 1976.

    In  the  year 1983, the High Court of Himachal  Pradesh invited applications for recruitment to 12 posts in Himachal Judicial  Service,  out of which 2 posts were  reserved  for ex-servicemen.   The  appellant made an application  seeking appointment  in  the said quota of ex- servicemen.   He  was selected.   On  1.2.1984  he  joined  the  Himachal  Pradesh Judicial Service as Sub Judge-cum-Judicial Magistrate.

    Having joined the judicial service the appellant made a representation  to  the  High   Court  submitting  that  the Ex-Servicemen  (Reservation  of  Vacancies in  the  Himachal Pradesh   Judicial   Service)   Rules,   1981,   hereinafter Reservation  Rules 1981 for short, provided for the period spent  in  approved military service, which was 11 years  in the  case  of  the  appellant,  being  counted  towards  the Himachal  Pradesh Judicial Service for the purpose of fixing pay  and  seniority.  By an order dated 31.8.1989  the  High Court fixed the pay of the appellant by giving him credit of 11  years  approved  military service.  All  the  increments which the appellant would have been entitled to, if he would have  spent  the  period  of approved  military  service  in Himachal  Pradesh  Judicial Service, were released  to  him. However,  as  the High Court had not fixed  the  appellants seniority  by giving him the benefit of the period spent  in approved  military service by counting the same  fictionally as  having been spent in Himachal Pradesh Judicial  Service, the  appellant made further representations in the year 1990 claiming  such benefit.  The High Court of Himachal  Pradesh invited objections of all concerned to the claim made by the appellant.   On 1.11.1991, having considered the  objections preferred  and after affording opportunity of hearing to all such  as wished to be heard, the High Court by its  decision

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dated  1.11.1991  allowed  the representations made  by  the appellant.   He was given the benefit of the period spent in approved  military service being counted for the purpose  of seniority  in  Himachal  Pradesh Judicial Service.   He  was placed at the bottom of the 1974 batch of judicial officers. Prior  to  the  abovesaid  decision of the  High  Court  the appellant  was placed at Sl.  No.  43 of the seniority  list issued   in   December,   1990.   As   a   result   of   his representations  having been accepted in terms of the  order dated  1.11.1991  passed  by the High  Court  the  appellant stepped up to Sl.  No.  13 of the said seniority list.

    One  George, who was then a Senior Sub  Judge-cum-Chief Judicial  Magistrate, filed civil writ petition No.  693  of 1991  laying  challenge  to the seniority  assigned  to  the appellant.   The  constitutional  validity   of  the   Rules granting  benefit  of  seniority to  the  judicial  officers recruited  in  the quota of ex-servicemen as also the  legal validity  of the order dated 1.11.1991 were challenged.   It is  pertinent  to  note that the only persons  impleaded  as respondents  in  the  petition  filed by  George  were  A.C. Thalwal  (the  appellant  herein),  the  State  of  Himachal Pradesh  and  the  High Court of  Himachal  Pradesh.   Other judicial  officers  who were above Thalwal and became  below him  as a consequence of the order dated 1.11.1991 passed by the  High Court were not joined as parties to the  petition. It  appears that the respondents therein also did not  raise any  objection  as  to  non-joinder  of  such  parties.   By judgment  dated  10.6.1992  the Division Bench of  the  High Court of Himachal Pradesh dismissed Georges petition.

    A  perusal of the judgment of the High Court shows that the   Division   Bench   was   persuaded   to   accept   the constitutional  validity  of Reservation Rules, 1981 on  the assumption  that the same was no more res integra as  having been  already upheld by the Full Bench of that High Court in Mohinder Kumar Sood Vs.  H.P.  Public Service Commission and others  AIR  1982  HP  78.  The Division  Bench  also  found nothing wrong in the benefit of the period spent in approved military service being given in judicial service of Himachal Pradesh   because  the  same   was  contemplated  by  Rules. Aggrieved  by the judgment of the High Court, George filed a petition  seeking special leave to appeal before this court. On 26.11.1992 the SLP was dismissed by a non-speaking order. The  judgment of the High Court was implemented.   Seniority was  already  assigned  to the appellant.  In  view  of  the appellants  seniority  having  been   stepped  up,  he  was appointed  as Senior Sub-Judge-cum-Chief Judicial Magistrate on 15.12.1992.

    It  appears that the placement of the appellant at  the bottom of 1974 batch of judicial officers under order of the High  Court  dated  1.11.1991 had in effect  resulted  in  a benefit of about 10 years of approved military service being given to the appellant.  He once again made a representation for  giving  him  the benefit of full 11 years  of  approved military  service for the purpose of seniority.  On 6.8.1993 the  representation  was  considered by the Full  Court  and accepted.   Consequent  upon  the  benefit of  11  years  of approved  military  service  having   been  allowed  to  the appellant he was placed at the top of 1974 batch of judicial officers.

    In  August 1993, two writ petitions came to be filed by two  sets  of  judicial officers adversely affected  by  the

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orders  of  the  High Court and the  action  taken  pursuant thereto  resulting  in stepping up of the seniority  of  the appellant  Thalwal.   C.W.P.   1184  of 1993  was  filed  on 19.8.1993 by 14 judicial officers some of whom were District &  Session Judges, some were Additional District Judges  and some  were Chief Judicial Magistrates.  C.W.P.  168 of  1994 was   filed  by  9  judicial   officers,  all   Senior   Sub Judge-cum-Chief  Judicial Magistrates (or holding equivalent posts/offices).   In these two writ petitions, challenge was laid  to  both the orders of the High Court dated  1.11.1991 and  6.8.1993.  Constitutional validity of Reservation Rules 1981  was  also put in issue in these two writ petitions  on the  ground  that  the Rules have been framed by  the  State Government  without  consulting the High Court  of  Himachal Pradesh  as required by Article 234 of the Constitution  and therefore  they  have no validity.  The pleas raised by  the writ  petitioners have been upheld by the Division Bench  of the High Court and the two impugned orders of the High Court and consequent action of stepping up of the seniority of the appellant have been ordered to be struck down.  The Division Bench has however clarified that the benefit of pay fixation allowed  to  the appellant and his appointment  in  reserved quota  of  ex-army  personnel  were  not  being  touched  or disturbed.   The aggrieved appellant has preferred these two appeals by special leave.

    Recruitment  to  judicial  services  in  the  State  of Himachal  Pradesh  is  governed by  H.P.   Judicial  Service Rules,  1973 framed by the Governor in consultation with the High  Court  and  in  exercise of the  powers  conferred  by Article  234  read with Article 309 of the  Constitution  of India.    These  rules  do  not   make  any  provision   for reservation  in favour of scheduled castes, scheduled tribes and  other  backward  classes.   These  rules  also  do  not contemplate   reservation  in  the   category   of   ex-army personnel.   Full Bench of High Court of Himachal Pradesh in Mohinder Kumar Sood Vs.  H.P.  Public Service Commission and others  AIR 1982 HP 78 has held that ex-army personnel is  a category covered by other backward classes.  In the appeal before  us we are not called upon to express any opinion  on this  view  of the law taken by the Full Bench of  the  High Court of Himachal Pradesh.  We will, for the purpose of this appeal,  only assume the permissibility of such reservation. However,  the  fact remains that the H.P.  Judicial  Service Rules  do  not  anywhere  provide for  any  entrant  in  the judicial  service  in any reserved category being given  any extra  benefit  in calculating or fixing  seniority.   These rules  provide  for seniority being assigned by  calculating the length of service from the date of entry in service.  It was  conceded at Bar that in so far as the appellant Thalwal is  concerned, the period spent by him in approved  military service being counted for the purpose of fixing seniority in judicial  service could have been done only by reference  to Reservation  Rules of 1981.  We would, therefore, proceed to examine the validity of these rules.

    The  Demobilised  Indian Armed Forces  (Reservation  of Vacancies in H.P.  Judicial Service) Rules, 1975 were framed by  the  Governor  in consultation with the  High  Court  of Himachal Pradesh.  These rules came into force on 28.4.1975, the  date  of their publication in the  Government  Gazette. The  life  of these rules was five years, expiring in  April 1980.   Sub-Rule  (1) of Rule 4 provided for the  period  of approved  military  service  rendered  after  attaining  the minimum  age  prescribed  for the appointment  to  the  H.P.

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Judicial  Service  by  the   candidates  appointed   against reserved vacancies under Rule 2 (i.e.  the approved military service)  shall count towards fixation of pay and  seniority in that service.

    The life of the 1975 Rules expired in April, 1980.  The State  Government proposed to extend the life of these rules and  for that purpose made a reference to the High Court  on 29th  November,  1980 seeking approval of the High Court  to the  proposed extension of the rules.  The relevant part  of the  letter  stated:- It is proposed to extend these  Rules upto  31st  December,  1982  as per  draft  amendment  (copy enclosed).   It  is requested that the approval of the  High Court/Public  Service Commission may kindly be obtained  and conveyed to this department immediately.

    The  amendment  enclosed  with   the  letter   proposed substitution of Sub- Rule (2) of Rule 1 in the Rules of 1975 so as to read as under:-

    (2)  These  shall come into force on the 28th  day  of April 1975, and shall not remain in force after the 31st day of December, 1982.

    The  matter came up for consideration in the Full Court Meeting  of  the  High Court on 6th March, 1981.   The  Full Court,  having  given  its   serious  consideration  to  the proposal,  placed on record its opinion that it would not be in  the  interest  of  judiciary to  agree  to  any  further reservation.  The opinion of the High Court was communicated to  the  State  Government.   What  happened  thereafter  is something  strange.   On 1st August, 1981 the Government  of Himachal  Pradesh notified in the Government Gazette a fresh set  of  rules entitled the Ex- Servicemen  (Reservation  of Vacancies  in the H.P.  Judicial Service) Rules, 1981.  Rule 5(1)  of  these  Rules provides for the period  of  approved military  service  rendered after attaining the minimum  age prescribed  for appointment to the H.P.  Judicial Service by the  candidates  appointed against reserved vacancies  under Rule  3  (which  includes  the  ex-servicemen)  shall  count towards  fixation of pay and seniority in that service.  The Preamble of the Rules states as under :-

    In exercise of the powers conferred by the provisio to article  309  read with article 234 of the  Constitution  of India  and all other powers enabling him in this behalf, the Governor,  Himachal  Pradesh, in consultation with the  High Court  of  Himachal Pradesh and the Himachal Pradesh  Public Service  Commission,  hereby  makes   the  following   rules regulating  the  reservation  of vacancies in  the  Himachal Pradesh Judicial Service for the Ex- Servicemen, Namely:-

    [emphasis supplied]

    The  publication  of  the Reservation  Rules  1981  was brought to the notice of the High Court.  It was viewed with concern.   On 28.8.1981 the Full Court passed the  following resolution:-  The  Full Court views with grave concern  the fact  that  whereas the Government sought approval  of  the High  Court  to the proposed amendment vide its letter  No. 7-5/70-DP.(Apptt.II)  dated  29th November, 1980 and  though the  Court vide its resolution dated 6th March, 1981 did not

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agree  to  the proposed amendment, still the Government  has enforced the proposed amendment.

    The  Registry  is  directed to convey the same  to  the Government.

    The Government gave no response.  However, it continued to make reservation for ex-servicemen under these Rules.

    The  Division  Bench of the High Court in its  judgment under  appeal has recorded a finding, based on the  material available  as  well  as  on the  records  available  in  the Registry  of  the High Court, that these Reservation  Rules, 1981  were never referred by the Governor to the High  Court and  the  High Court had never had any occasion to  consider the  Rules.   In short, there was no consultation much  less effective   and  meaningful  consultation   by   the   State Government  with  the High Court as contemplated by  Article 234  of the Constitution in so far as the Reservation Rules, 1981  are concerned.  The preamble of the rules is factually incorrect.

    Article  234 of the Constitution of India provides  for appointments to the judicial service of the State (excluding District  Judges) to be made by the Governor of the State in accordance  with the Rules made by him in that bahalf  after consultation  with  the State Public Service Commission  and the High Court of the State.  The consultation is mandatory. The consultation contemplated by Article 234 is not a matter of  mere formality;  it has to be meaningful and  effective. Judicial  services  have  to  be  independent  of  executive influence  and  so  the Constitution has placed  them  on  a pedestal different from other services under the State.  The constitutional  scheme  aims  at   securing  an  independent judiciary  which  is the bulwark of democracy.   The  status which  the  High  Court  as an  institution  enjoys  in  the constitutional  scheme and the expertise and the  experience which  it  possesses  of   judicial  services  command  with justification  a place of primacy being assigned to the High Court  in  the process of consultation.  As observed by  the Constitution  Bench  in  Supreme  Court  Advocates-on-Record Association and Ors.  Vs.  Union of India - (1993) 4 SCC 441 the  High  Court assumes primacy because of its  being  best equipped  to discharge the greater burden in the process  of consultation   contemplated   by   Article    234   of   the Constitution;   it  is  not a question  of  determining  who between  the two constitutional functionaries is entitled to greater  importance or to take the winners prize at the end of  the  debate.  Reference may also be had to the law  laid down  by  this  Court in Chandramouleshwar Prasad  Vs.   The Patna  High Court and Ors.  - AIR 1970 SC 370 and Hari  Datt Kainthla  and Anr.  Vs.  State of Himachal Pradesh and  Ors. -  AIR 1980 SC 1426.  Rules regarding consultation with  the High  Court must at the proposal stage be made available  to the  High Court so that after study, scrutiny and reflection the  High  Court  may  be able to offer its  advice  to  the Governor.

    The  Reservation Rules, 1981 having been framed by  the Governor  without  consultation  with   the  High  Court  of Himachal  Pradesh are ultra vires the constitution and hence ineffective  and unenforceable in view of Article 234 of the Constitution.  All that was done by the State Government was to refer an amendment in the Reservation Rules, 1975 for the

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opinion  of the High Court so as to seek its opinion on  the proposed extension in the life thereof.  The proposal of the State  Government  did  not meet the approval  of  the  High Court.    The   disapproval  was   conveyed  to  the   State Government.   Thereafter there was no correspondence and  no reference  by the State Government to the High Court.   Even the proposed extension of the life of the Reservation Rules, 1975  could  not  be  said to have  satisfied  the  test  of mandatory  consultation with the High Court.  In the  matter of  Reservation  Rules of 1981 even that much formality  was not  done.  The Division Bench of High Court is,  therefore, absolutely right in forming the opinion that these Rules are void and a nullity.

    In  as  much  as the Reservation Rules 1981  are  ultra vires  the Constitution, the orders of the High Court giving benefit  of seniority to the appellant automatically fall to the  ground as the orders are based on the Reservation Rules of 1981.  Shri Gopal Subramaniam, the learned senior counsel for  the  appellant,  submitted   that  the   constitutional validity  of  the  Reservation  Rules 1981 as  well  as  the validity  of  the order dated 1.11.1991 have been upheld  by the  High  Court of Himachal Pradesh in its  judgment  dated 10.6.1992  disposing  of  Georges petition and  that  order having  achieved  a finality, the benefit available  to  the appellant  thereunder  cannot be denied to him.  We are  not impressed.    Georges   petition  was   not  filed   in   a representative  capacity.   The petitioners in the two  writ petitions,  the  judgment passed wherein is under  challenge before  us, were not joined as parties in the petition filed by  George  and  therefore  the judgment  in  Georges  case cannot,   on  any  principle  of   law,  bind  the   private respondents  before us (who were the writ petitioners in the two  writ  petitions filed before the High Court).  The  two writ  petitions were filed in the year 1993 laying challenge to  the seniority list of 1990 as modified in the year 1991. The  writ  petitions are neither belated nor barred  by  the doctrine  of laches.  The decision in Georges case is based on  a fallacy going to the root of the matter.  A perusal of the  judgment  dated  10.6.1992 in Georges case  shows  the Division  Bench having proceeded on an erroneous  assumption that  the constitutional validity of the Reservation  Rules, 1981  was  upheld  by the Full Bench of the  High  Court  of Himachal  Pradesh in Mohinder Kumar Soods case.  A  perusal of  the  Full Bench judgment in Mohinder Kumar  Soods  case shows   that  the  Full  Bench   has  nowhere   upheld   the constitutional  validity of Reservation Rules 1981.   Though the  issue  was raised incidentally, the Full Bench  noticed the  relevant  facts pointing out to the invalidity  of  the Rules for want of mandatory consultation with the High Court as  required  by Article 234 of the Constitution.   However, the  Full  Bench  left  the matter at that as  it  held  the reservation   for   ex-servicemen   in   judicial   services permissible  by  reference to Articles 16(4) and 29  of  the Constitution of India.  The Division Bench of the High Court was therefore not excluded from now going into the merits of the  challenge  laid to the constitutional validity  of  the Reservation  Rules  1981  and  testing   the  same  on   the touchstone  of  Article  234 of the Constitution.   For  the foregoing   reasons  it  is   held  that  the  Ex-Servicemen (Reservation  of Vacancies in the Himachal Pradesh  Judicial Service)  Rules,  1981 are ultra vires the Constitution  and hence  void.  They have been rightly struck down as such  by the  High  Court.  The orders dated 1.11.1991  and  6.8.1993 passed  by the High Court of Himachal Pradesh giving benefit

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of  eleven  years  of  approved   military  service  to  the appellant  have  also been rightly struck down by  the  High Court.   No fault can be found with the judgment of the High Court.   The  appeals  are  held  liable  to  be  dismissed. However,  we would like to make it clear that the High Court in  its  impugned  judgment has not disturbed  that  earlier order  of the High Court which gave the appellant benefit of the  period spent in approved military service being counted for  the purpose of pay fixation and the recruitment of  the appellant  to the service in the quota of ex-army personnel. No  appeal has been filed against that part of the  judgment and  that has achieved a finality.  Obviously the  dismissal of  this  appeal would not prejudice the appellant  in  that regard.   The  learned  senior  counsel  for  the  appellant invited our attention to the fact that the dismissal of this appeal  may  result in reversion of the appellant  from  the post  of Sr.  Sub-Judge-cum-Chief Judicial Magistrate, which the  appellant is holding ever since 15.12.1992 for no fault of  the appellant.  He submitted that the service record  of the  appellant  is  good and he  has  been  satisfactorily discharging his duties as Sr.  Sub-Judge-cum- Chief Judicial Magistrate  which post he may be allowed to retain until the time when he would even otherwise become entitled to hold in spite  of the benefit of seniority being denied to him.   We find  some substance in the submission.  It was pointed  out at  the Bar, during the course of hearing, that shortly  the appellant would be due and eligible for being considered for appointment  on  the post presently held by him even if  the benefit of 11 years seniority is denied to him.  With a view to balance equities and avoid any hardship to the appellant, it  is  directed  that  in  spite  of  these  appeals  being dismissed  and the judgment under appeal being  implemented, the appellant shall continue to hold the post presently held by  him.   He  shall  be considered by the  High  Court  for appointment    by   promotion   on     the   post   of   Sr. Sub-Judge-cum-Chief  Judicial  Magistrate or  an  equivalent post  at  a point of time when he would become eligible  for such  consideration pursuant to the judgment under appeal of the  High Court.  If he is found fit for such promotion,  he shall  be  so promoted and for future his seniority  in  the cadre  of Sr.  Sub-Judge-cum-Chief Judicial Magistrate shall be  reckoned from the date of such promotion.  If he may  be found  not fit for promotion then he may be reverted to  the post of Sub-Judge-cum-Judicial Magistrate.  In any case till such  consideration  he  shall  continue to  hold  the  post presently  held  by him as a special case.  Subject  to  the above  observation, the appeals are dismissed.  The impugned judgment  of the High Court dated 17.11.1994 is  maintained. No order as to the costs.