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CASE NO.: Appeal (civil)  9072 of 1996

PETITIONER: STATE OF BIHAR & ANR.

RESPONDENT: BAL MUKUND SAH & ORS.

DATE OF JUDGMENT: 14/03/2000

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

JUDGMENT: JUDGMENT

DELIVERED BY: S.B.MAJMUDAR  G.B.PATTANAIK  U.C.BANERJEE  R.P.SETHI   JJ.

S.B.Majmudar, J.

     Leave  granted  in Special Leave Petition No.16476  of 1993.       Both  these  appeals, on grant of special leave  under Article  136 of the Constitution of India, are moved by  the State of Bihar, which is common appellant no.1 in both these appeals.   In  Civil Appeal No.9072 of 1996  the  Secretary, Department   of   Personnel   and  Administrative   Reforms, Government  of Bihar  is  appellant   no. 2,  while  in  the companion appeal arising from the Special Leave Petition No. 16476 of 1993, the other contesting appellant is the Special Executive Officer-cum-Deputy Secretary, Bihar Public Service Commission, Patna.  In both these appeals, a common question of  law  arises  for   consideration,  namely,  whether  the Legislature of the appellant State of Bihar was competent to enact  the  Bihar  Reservation  of Vacancies  in  Posts  and Services  (for Scheduled Castes, Scheduled Tribes and  Other Backward Classes) Act, 1991 (hereinafter referred to as the Act),  in  so  far as Section 4 thereof  sought  to  impose reservation  for  direct  recruitment to the  posts  in  the Judiciary  of  the State, subordinate to the High  Court  of Patna,  being  the posts of District Judges as well  as  the posts  in  the  lower  judiciary at  the  grass-root  level, governed  by  the provisions of the Bihar  Judicial  Service (Recruitment)  Rules,  1955.  Civil Appeal No.9072  of  1996 deals  with  the  question of reservation in  the  posts  in District Judiciary while the companion appeal deals with the posts in Subordinate Judiciary at grass-root level under the District  Courts  concerned.   By the impugned  judgment  in Civil  Appeal No.9072 of 1996, a Division Bench of the  High Court  has  struck  down  the terms  of  the  advertisement, reserving  amongst  others, 27 out of 54 posts  of  District Judges  to  be filled in by direct recruitment, being  ultra vires  the  relevant  provisions  of   Article  233  of  the

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Constitution  of  India.   It  has   also  struck  down  the provisions  made in the impugned advertisement fixing up the upper  age limit at 45 years for eligibility for appointment by  way of direct recruitment to these posts.  That part  of the  controversy  no longer survives between the parties  in the  present proceedings and, therefore, we need not  dilate on  the same.  So far as the companion appeal is  concerned, the  main judgment was rendered by the Division Bench of the High  Court  holding that the aforesaid Act as well  as  the earlier  Ordinance which preceded the same in so far as they sought  to  apply  the scheme of reservation  of  posts  for governing  recruitment  of persons other than  the  District Judges to the Judicial Service of the State were ultra vires Article  234  of  the Constitution.   As  the  controversies involved  in these appeals have to be resolved in the  light of  the relevant Constitutional scheme, by an earlier  Order dated 13th May, 1994 of this Court, they were directed to be listed before a Constitution Bench.  Subsequently in view of the  statement made by learned counsel that the matter could be  disposed of by a Bench of three Judges, the matters were directed to be placed before a three-Judge Bench by an order dated  12th  May, 1995.  Thereafter a three-Judge  Bench  of this  Court by its order dated 6th November, 1997 felt  that the  matters  raised questions regarding  interpretation  of provisions  of Articles 233, 234 and 309 of the Constitution and hence it would be appropriate that they are heard by the Constitution  Bench.   That is how these matters  have  been placed  before this Constitution Bench under the  directions of Honble the Chief Justice of India.  Before we proceed to deal  with the rival contentions of learned counsel for  the respective  parties  in support of their cases,  it  becomes necessary  to note a few introductory facts.  Facts  leading to  Civil Appeal No.9072 of 1996:  This Court, by its  order dated  13th  October, 1993 in Civil Appeal Nos.  4561-62  of 1992  in  State of Bihar vs.  Madan Mohan Singh & Ors.,  had quashed  the  earlier  advertisement   for  filling  up  the vacancies  of  Additional  District Judges in  the  District Judicial  Service of Bihar and directed the appellant  State to  fill up the same through a fresh advertisement.  In  the mean  time, it appears that as the High Court had not agreed to  the  suggestion  of  the   State  authorities  to   have reservation  in  the posts of District Judges  for  reserved category  of candidates and had insisted on proceeding  with the  recruitment as per the 1951 Rules, styled as the  Bihar Superior  Judicial Service Rules, 1951, which were framed by the Governor of Bihar in exercise of the powers conferred by the  proviso  to  Article 309 read with Article 233  of  the Constitution  of  India and which Rules did not provide  for any  such  reservation,  the Governor of  Bihar  issued  the impugned  Ordinance  which subsequently became the  impugned Act  by  which the scheme of 50% reservations  for  reserved category  of  candidates  was directed to be  applied  while effecting  direct  recruitment to the posts  concerned.   On 16th  November, 1993, the appellant State requested the High Court to effect recruitment to the vacancies in the cadre of District  Judges on the basis of the reservation provided by the  Ordinance  which subsequently was followed by the  Act. By  its  communication dated 16th December, 1993,  the  High Court  of  Patna  insisted   that  recruitment  to  District Judiciary can be made on the basis of 1951 Rules only.  By a communication dated 5th April, 1994, the High Court informed the  authorities  concerned that no reservation of posts  in the  district  cadre could be implemented and  while  making appointments  from  the  members  of   the  Bar  for  direct recruitment,  preference may be given to the Scheduled Caste

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(for  short  SC)  and  Scheduled Tribe  (for  short  ST) candidates  who  are  of equal merit with  general  category candidates.   On  7th April, 1994, the High Court  intimated that  there are 54 vacancies in the district cadre which had to  be filled up.  The State Government, however, issued the impugned  advertisement  of 16th June, 1994 by which 50%  of the available vacancies of District Judges were sought to be filled  in  from  reserved category of  candidates  and  the remaining  50% posts thereof, i.e.  27, were to be filled in by  the open category candidates.  It is this  advertisement which was challenged by the writ petitioners before the High Court.   The  High Court, by the impugned judgment as  noted earlier,  has  allowed  the writ petition  and  quashed  the condition  of  reservation  sought  to  be  imposed  by  the impugned advertisement.

     Facts leading to Civil Appeal arising out of S.L.P.(C) No.16476  of 1993:  By a proposal dated 30th January,  1991, the  appellant-State  consulted  the  Bihar  Public  Service Commission  regarding  making provision for  reservation  of posts  in  the  Subordinate Judicial  Service  for  reserved category   of   candidates.   The   said  proposal  of   the appellant-State  was  also placed for consideration  of  the High  Court but it was not accepted by the High Court by its communication  dated 16th April, 1991, and that resulted  in the impugned Ordinances, being 33 and 34 of 1991, which were followed   by   the  impugned   Act.   The   original   writ petitioners,  who  had already appeared at  the  competitive examination  in April, 1991 moved the High Court challenging the Ordinances and the latter Act in so far as the scheme of 50%  reservation  of posts for direct recruitment  at  grass root  level of the State Judiciary was concerned.  As  noted earlier,  the aforesaid writ petition was allowed and relief was  granted  against  the appellants.   Rival  contentions: Dr.Dhavan,   learned  senior  counsel   appearing  for   the appellant-State  in  Civil  Appeal No.9072 of 1996,  at  the outset,  contended that the impugned Act, especially Section 4  thereof,  is  wrongly held by the High Court  to  be  not applicable  to Judicial Services of the State.  He contended that Judicial Services especially, the Subordinate Judiciary comprising  of district cadre and the cadre of Judges  below the  same were part and parcel of the Public Services of the State and, therefore, on the express terminology of the Act, Section  4  thereof,  became   directly  applicable  to  the recruitment  of judicial officers both at the district level as  well as at the level of Subordinate Judiciary below  it. Alternatively,  it was submitted that even assuming that the Act  did not apply on its own language, even then, it has to be  held that the State Legislature was perfectly  competent to  enact  provisions  regarding  reservation  of  posts  in Judicial Services of the State in the light of Article 16(4) of the Constitution of India read with the relevant entry 41 in  list  II of Seventh Schedule to Constitution.   He  also posed  the  moot question whether the State Legislature  has independent   power  to  enact   any  provisions   regarding reservation in connection with appointment in Judiciary when such  reservation,  after consultation with the High  Court, could  not get reflected in the relevant Rules framed by the Governor under Article 309 read with Articles 233 and 234 of the Constitution of India.  In support of these contentions, relevant  Constitutional scheme was pressed in service.   It was  submitted  that on a correct interpretation of  Article 309  the State Legislature as well as the Governor had ample jurisdiction to make provision for reservation in connection with  Judicial  Service.  Under the said Article,  paramount

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power  in  this  connection  has been vested  in  the  State Legislature.   He  then referred to Articles 233 and 234  in connection with Subordinate Judiciary and placed emphasis on Article  236 (b) defining the expression Judicial  Service as  a service consisting exclusively of persons intended  to fill  the  post of District Judge and other  civil  judicial posts  inferior to the post of District Judge.  He submitted that all that the opening part of Article 309 provides is to the  effect that, while making appointments to the cadre  of District Judges or Subordinate Judges of lower judiciary, as per  Articles 233 and 234, consultation of the Governor with the  High Court is necessary.  That apart, from these latter two  Articles  there is no fetter on the power of the  State Legislature  to  enact  appropriate   legislation  in   this connection  under Article 309.  He invited our attention  to List II entry 41 of the Seventh Schedule for submitting that the  State  Legislature  is competent to make  enactment  in connection   with  appointments  to   Public  Services   and Judicial  Service  is also a Public Service of the  State. He further submitted that the first part of Article 309 does not  attract  Article  234  so far  as  State  Legislatures paramount powers are concerned.

     Dr.Dhavan,  relying  upon the second part  of  Article 235,  stated  that  despite  the full  control  of  District Judiciary  being  vested  in the High Court,  the  right  of appeal  and  other  conditions  of  service  of  Members  of Subordinate  Judiciary  as  laid down by any  competent  law which  would  include  legislative   enactment  as  well  as statutory  rules are clearly saved pro tanto at least at the second  level, after appointments are made at the grass-root level  in the Judiciary and when the further question arises as  to how the conditions of service of such appointees  are to  be  governed  and   controlled.   Dr.Dhavan,  therefore, submitted  that  it  is  not  as   if  the  power  of  State Legislature  to  enact  appropriate  provisions  is  totally excluded  because  of the enactment of Articles 233 to  235. Dr.Dhavan  tried  to highlight his submission by  contending that  if the power of State Legislature to enact appropriate provisions  regarding appointments of Members of Subordinate Judiciary  is  held totally excluded by Article 234, and  to that  extent  Article 309 be held out of picture,  then  the following  anomalies  may  arise  in the  working  of  these provisions.

     1)  Judicial  Service as defined by  Article  236(b) will get truncated in its operation.

     2)  The  second anomaly pointed out by  Dr.Dhavan  was that  power  to legislate, which must be given full  effect, would   get  excluded  without   there  being  any   express exclusion.

     3) The third anomaly pointed out by Dr.Dhavan was that though  under the Constitution, the scheme of separation  of power  is  devised  to  separate   the  Executive  from  the Judiciary,  this  scheme  does  not   extend  to  oust   the legislative power.  If it is held that Article 234 ousts the legislative  power  for  making suitable enactments  on  the topic  covered  therein then, to that extent,  an  anomalous position  would arise not contemplated by the Constitutional scheme.

     Dr.Dhavan  next contended that on the express language of  Article 234, only the rule making power of the  Governor

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is fettered but not the legislative power of the State.

     Dr.Dhavan   next   submitted   that   if   legislative interference  in the process of selection and appointment of direct  recruits to Subordinate Judiciary as per Article 234 is  completely  ruled out that being the first level or  the grass-root  level of the Subordinate Judiciary then  another patently  anomalous  situation  would   arise.   That  under Article  235  second  part such statutory provisions  to  be enacted by competent Legislature are clearly contemplated so far  as  conditions  of  service of  judicial  officers  are concerned  and then when we turn to the apex level,  namely, of  the district cadre manned by District Judges there is no express  ouster  of legislative interference  under  Article 233.   Thus  the plenary power of the Legislature  would  be operative qua the highest posts in the hierarchy of District Judiciary  while  for the grass-root level it will be  ruled out.   Dr.Dhavan then invited our attention to the decisions in  M.M.Gupta & Ors.  etc.  vs.  State of Jammu & Kashmir  & Ors., (1982) 3 SCC 412 paras 28 to 32 as well as in State of Kerala  vs.  Smt.A.Lakshmikutty & Ors., (1986) 4 SCC 632  at page  647  in  para 22 to highlight the scope  of  the  term consultation  which should be effective consultation.   He then  invited  our attention to the impugned Act  especially Sections  2 (c), 4 and 16 having overriding effect over  all other  rules in force and submitted that such establishments under  the State would include even Judiciary as laid down by  the  definition  of Section 2(n).  He,  however,  fairly conceded  that  neither  in  the  Rules  of  1951  regarding appointments  to district cadre as per Article 233 nor under the  Rules  of 1955 for recruitment to cadre of  Subordinate Judiciary  as  laid  down  by  Article  234,  there  is  any provision  for  50% reservation of posts and, therefore,  he submitted  that this entire case depends upon competence  of the impugned Act which had to be enacted because there was a stalemate  on  this subject as the High Court did not  agree with  the suggestion of the Governor for suitable  amendment to  these  Rules under Articles 233 and 234.  He  ultimately submitted, that the reasoning of the High Court that the Act does  not cover Judicial Service is patently erroneous and that this Act is not bound by any fetters of Articles 233 or 234  and  is  an  exercise of  paramount  legislative  power conferred  on the State authorities under Article 309  first part  read with entry 41 List II of Seventh Schedule of  the Constitution.  He, therefore, submitted that the Act must be permitted to have full play.

     In  support of his contentions Dr.Dhavan placed strong reliance  on  the decision of a Constitution Bench  of  this Court  in the case of B.S.Yadav & Ors.  v.  State of Haryana &  Ors.   etc.   (1981) 1 SCR 1024.   Dr.Dhavan,  therefore, submitted  that  the  impugned judgment of the  High  Court, being  contrary to the Constitutional scheme, requires to be set aside.

     Shri Dwivedi, learned senior counsel appearing for the appellant-State in the companion Civil Appeal submitted that though the High Court in para 9 at page 11 has referred to a three-Judge  Bench  judgment  of  this Court  in  All  India Judges Association & Ors.  etc.  vs.  Union of India & Ors. etc.,  AIR  1993 SC 2493, giving special status to  judicial officers,  the  said  observations cannot whittle  down  the power  of  reservation  available to the  State  authorities under  Article 16 (4) and that question was not examined  in the  said  case  as it did not fall for  consideration.   He

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submitted  that a conjoint reading of Sections 2(c) and 2(n) clearly  shows  that  the  Act is meant  to  apply  also  to Judicial  Service  of the Bihar State.  He next  contended that  question  of reservation of posts in a cadre which  is already  established by the State authorities in exercise of their  powers  under Article 309 is not covered by  Articles 233  to  235.   That  question  is  covered  by  Article  16 sub-article (4) and none of the aforesaid provisions curtail that  enabling power available to the State authorities.  In this  connection, he also invited our attention to entry 11A of  List III of Seventh Schedule to the Constitution dealing with constitution and organisation of all courts, except the Supreme Court and the High Courts, and submitted that scheme of  reservation of posts would remain sustained under  these provisions  and  also as per the Legislature  enacted  under entry  41  of List II.  He submitted that once the court  is constituted,  it  would comprise of all cadres  of  judicial officers  to man the courts and the formation of cadres  and constitution  of  the courts also permitted  provisions  for creation of reserved posts to comprise in such cadres.  This exercise  has nothing to do with the question of appointment on  available vacancies in posts borne on established cadres in  Judicial  Service.   According  to  Shri  Dwivedi,   the establishment  of cadres and creation of posts in the cadres is  a stage prior to the one contemplated by Articles 233 to 235  dealing  with the subsequent question as to how  actual appointments  of deserving candidates are to be effected  to fill  up vacancies in already created posts in the concerned cadres.   In short, the submission of Shri Dwivedi was  that question  of  creation of posts to be filled up by  reserved candidates  or open category candidates was in the domain of the  State authorities especially, the Legislature which can enact  appropriate  statutory  provisions  in  discharge  of constitutional  obligation  under  Article 16(4)  read  with entry  41 of List II of Seventh Schedule as well as entry 11 A of List III and once the general category posts as well as the  reserved category posts are made available to the  High Court  for  being filled in, thereafter, it will be for  the High  Court to proceed according to Articles 233 and 234  of the  Constitution  of India and in that exercise  the  State Legislature will have no say.  He, therefore, contended that the  High  Court  in the impugned judgment was  patently  in error  in  taking  the  view  that  statutory  provision  of reservation of posts for reserved category candidates in the Subordinate Judiciary under its control was in any way ultra vires  or  illegal.   Shri  Dwivedi,   in  support  of   his contentions,  gave  written   submissions  whereby,  amongst others,  he invited our attention to Article 320 sub-article (4) which excludes reservation expressly from the powers and functions  of  the Public Service Commission.  He  submitted that  Article 234 requires the Governor for framing rules to consult  the  High  Court  as well  as  the  Public  Service Commission  and when it cannot make any provision  regarding reservation  under  Article 16 sub-article (4), by  analogy, consultation  of  the  High Court also under the  very  same Article  234  would not permit the High Court to  deal  with Article  16  sub- article (4).  In other words, question  of reservation  is  outside  the  ken  of  Article  234.   Shri Dwivedi, also in support of his contentions, placed reliance on  various decisions of this Court to which we will make  a reference  at  an  appropriate  stage.   Shri  Dwivedi  next contended  that  even  under   the  Bihar  Judicial  Service (Recruitment)  Rules,  1955 (hereinafter referred to as  the 1955 Rules) especially, Rules 19 & 20 reservation of posts in  lower  judiciary is contemplated;  that these Rules  are

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made by the Governor in consultation with the High Court and the Public Service Commission.

     Shri  Dwivedi  next contended that, in any  case,  the High  Court in the impugned judgement was not called upon to consider  the  further question whether there cannot be  any reservation  to the posts in district cadre and the stand of the  High Court that if candidates of equal merit are there, then  preference  can be given to SC and ST candidates,  was correct  or  not.   That the only question before  the  High Court  was  whether the impugned Act could validly apply  to provision of reservation of posts in the District Judiciary. He, therefore, submitted that the observations in para 24 of the  impugned judgment, in any case, are required to be  set aside  as  redundant and uncalled for.  It  was  accordingly submitted  by  Shri Dwivedi that the appeal deserves  to  be allowed.

     Learned  counsel  appearing  for  the  Intervenors  in I.A.No.20,  on the other hand, tried to support the case  of reservation  for SC and ST candidates relying on Rule 20  of 1955  Rules  so  far  as   the  recruitment  to  Subordinate Judiciary   was   concerned.   Learned   counsel   for   the intervenors  in I.A.No.10 representing Other Backward  Class (for  short  OBC)  candidates  adopted  the  arguments  of Dr.Dhavan  and  Shri Dwivedi in support of the impugned  Act and  the scheme of reservation thereunder.  Learned  counsel appearing  for  the  Intervenors as per I.A.No.11  tried  to support  reservation for SC and ST candidates under the  Act and  even dehors it.  While intervenor in I.A.Nos.  4 and  9 representing  general  category   candidates  supported  the decision  of  the  High  Court.    The  main  reply  to  the contentions  of learned counsel for the appellants  emanated from  learned  senior counsel Shri Thakur appearing for  the High  Court of Patna.  He submitted, in the first  instance, that  the  impugned  Act  is not wide  enough  to  apply  to Judiciary.  He tried to support this contention on the basis of  reasoning  which  appealed  to the  High  Court  in  the impugned  judgment.  He alternatively contended that Section 4 of the impugned Act, if applied to judicial officers, will ex  facie  become invalid being repugnant to  the  composite scheme   of  Articles  233  to   235.   To  highlight   this alternative contention, he contended as under :  1.  Article 309  has  no application to Subordinate Judiciary.  It  gets excluded  by  the  triology  of Articles 233  to  235  which represent  a  complete  Code amongst themselves.   2.   Once Article 309 is excluded, legislative power under Article 309 first  part also gets excluded qua the field covered by  the aforesaid  triology  of  the   Articles.   3.   These  three Articles  themselves  are the only source of power  to  make rules or law as seen from second part of Article 235 as well as  Articles 233 and 234.  4.  Rules made under Article  234 by  the  Governor  after following the procedure  laid  down thereunder would relate to service also as contemplated by Article 233.  5.  Second part of Article 235 only can permit suitable  legislation by the State authorities governing the conditions of service of already recruited judicial officers whether at the grass-root level or even at the apex level of the  District Judiciary in exercise of its legislative power under  Article  309  read with entry 41 of List  II  of  the Seventh  Schedule.  In order to support his contention  that Article  309  does not apply to recruitment to the  Judicial Service,  he  invited our attention to Article  187  dealing with  Secretarial Staff of Legislature, Article 148  dealing with  Service  regulations  of the  Comptroller  &  Auditor-

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General of India, Article 146 dealing with Service under the Supreme  Court,  Article 229(2) dealing with Services  under the  High  Court  and Article 324(5)  dealing  with  Service regulations of Election Commission and submitted that in all these  Articles,  special provisions are made  for  enacting appropriate  rules  and  even statutes covering  the  topics mentioned  therein.  But so far as Article 234 is concerned, it  is not subject to the law of Legislature as found in the aforesaid  other  Articles.  To a pointed query by  us  Shri Thakur,  learned senior counsel for the High Court of Patna, after  taking  appropriate instructions, submitted  that  in principle  the  High  Court of Patna  has  already  accepted reservation  of  14% posts for SC and 10% for ST  candidates for  being  recruited  at the lowest level of  the  District Judiciary.  Shri Thakur also placed reliance on decisions of the  various High Courts and of this Court to which we  will make  a  reference  at an appropriate stage.   Shri  Thakur, further  submitted  that Section 4 of the impugned  Act,  in express  terms,  seeks  to   regulate  appointments  to  the existing posts in the cadre of District Judiciary as well as in  the  Subordinate Judiciary.  To that extent it  directly impinges  upon the provisions of Articles 233 and 234, which amongst  them, represent a complete Code in connection  with appointment  to Subordinate Judiciary.  He further submitted that  it is fallacious to contend that reserving posts for a given  class of candidates would be at a stage prior to  the question  of recruitment and appointment as contemplated  by Articles  233 and 234 of the Constitution.  That once  posts are already created for being filled up in a given cadre the authority  of the State in this connection would come to  an end.   For  creation  of such cadres and sanction  of  posts appropriate legislation can be enacted or even the Governor, in  exercise of his independent power under Article 309, can promulgate  Rules.  But once posts are already created in  a Judicial Cadre and when the question of filling up vacancies in  the  existing  sanctioned  posts in  district  cadre  or subordinate  cadre arises, direct recruitment has to be done on  the  recommendation  of the High Court as laid  down  by Article  233  (2)  and recruitment in the vacancies  in  the cadre  of  Subordinate Judiciary has to be done as  per  the 1955  Rules framed by the Governor in consultation with  the High  Court under Article 234 and in no other manner.   That for  regulating  this  process there is no question  of  any legislative interference by exercise of any paramount power. He,  therefore, contended that the view of the High Court in the   impugned   judgment   is   well   sustained   on   the Constitutional  scheme  and calls for no interference.   He, however,  fairly submitted that so far as the 1955 Rules are concerned,  by the consent of the High Court the rule making power  has  been  exercised by the Governor  permitting  the reservation for SC and ST candidates in recruitment governed by  the said Rules and which recruitment has to be  resorted to  for filling up vacancies in posts of Subordinate  Judges and the Munsiffs.  He also fairly stated that the High Court is  consistently following the provision of reservation  for direct  recruitment  in  these categories of  posts  to  the extent  of 14% being reserved for SC and 10% being  reserved for  ST candidates but nothing more.  So far as the impugned Act  is concerned, it goes far beyond this permitted  scheme of reservation under the relevant Rules of 1955 and seeks to impose  a  blanket  reservation of 50% for SC,  ST  and  OBC candidates.   That  such a statutory provision flies in  the face  of  Articles 233 and 234 of the Constitution of  India and  cannot be sustained and accordingly rightly been voided by  the High Court.  Points for determination:  In the light

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of  the  aforesaid rival contentions, the  following  points arise  for our determination:  1.  Whether the impugned  Act of 1991 on its express language covers Judicial Service of the  Bihar State;  2.  If the answer to point no.1 is in the affirmative,  whether  the provisions of the  impugned  Act, especially,   Section  4  thereof  in  its  application   to Subordinate  Judiciary would be ultra vires Articles 233 and 234  of  the  Constitution  of India  and  hence  cannot  be sustained;   3.   In the alternative, whether the  aforesaid provisions  of  the  Act  are required to be  read  down  by holding  that Section 4 of the Act will not apply to  direct recruitment  to  the posts comprised in the  Bihar  Superior Judicial  Service as specified in the Schedule to the  Bihar Superior  Judicial  Service Rules, 1951 as well as to  Bihar Judicial  Service  governed  by the Bihar  Judicial  Service (Recruitment)  Rules,  1955,  comprising  of  the  posts  of Subordinate   Judges  and  Munsiffs   under   the   District Judiciary;  and 4.  What final order?

     Before   we  deal  with   the  aforesaid  points   for determination,  it  will  be necessary to keep in  view  the relevant  provisions of the Constitution which have a direct impact  on  the resolution of the controversy  projected  by these  points.  Constitutional Scheme:  Part XIV deals  with Services  under  the  Union  and   the  States.   Chapter  I comprising of Articles 308 to 313 deals with Services, while Chapter  II  covering Articles 315 to 323 deals with  Public Service  Commissions.   Article 308 defines  the  expression State,  which  shall  not  include the State  of  Jammu  & Kashmir.   However,  the  relevant Article for  our  present purpose  is  Article  309  which reads  as  under  :   309. Recruitment and conditions of service of persons serving the Union  or  a  State  Subject  to  the  provisions  of   this Constitution,  Acts  of  the   appropriate  Legislature  may regulate  the  recruitment,  and conditions  of  service  of persons   appointed,  to  public   services  and  posts   in connection with the affairs of the Union or of any State:

     Provided  that it shall be competent for the President or  such person as he may direct in the case of services and posts  in connection with the affairs of the Union, and  for the  Governor of a State or such person as he may direct  in the  case  of  services  and posts in  connection  with  the affairs  of  the  State,  to   make  rules  regulating   the recruitment,  and  the  conditions  of  service  of  persons appointed,  to  such services and posts until  provision  in that  behalf  is made by or under an Act of the  appropriate Legislature  under this article, and any rules so made shall have effect subject to the Provisions of any such Act.

     A mere look at this Article shows that it is expressly made  subject  to other provisions of the  Constitution  and subject  to that, an appropriate Legislature or Governor can regulate  the  recruitment  and  conditions  of  service  of persons appointed to public services and posts in connection with  the  affairs of the State concerned.  Proviso to  that Article  permits  the Governor of the State to fill  up  the gap,  if there is no such statutory provision governing  the aforesaid  topics.  For that purpose, the Governor may  make rules  regulating  the  recruitment and  the  conditions  of service  of  persons  appointed to such services  and  posts until provision in that behalf is made by or under an Act of the  competent  Legislature  which may intervene  and  enact appropriate  statutory provisions for the same.  The  manner of  recruitment to the services contemplated by Article  309

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is  provided  by Chapter II dealing with the Public  Service Commissions.   Article  320 deals with Functions  of  Public Service  Commissions enjoining them to conduct  examinations for  appointment  to  the  services of  the  Union  and  the services  of  the State respectively.  That naturally has  a direct  linkage  with the types of Services contemplated  by Article  309.  Special Scheme for Judicial Services in  Part VI (Chapters V & VI):

     It  is pertinent to note that independently of general provisions of Article 309, the Constitution has made special provisions  for certain Services.  Even if they may be  part of  public  services, still separate Constitutional  schemes are  envisaged for regulating recruitment and conditions  of services of officers governed by such Services.  Let us have a  glance at such specially dealt with Services.  Part VI of the  Constitution dealing with the States, separately  deals with  the  executive  in Chapter II, the  State  Legislature under Chapter III and thereafter Chapter IV dealing with the Legislative  Powers of the Governor and then follows Chapter V  dealing with the High Courts in the States and Chapter VI dealing  with  the Subordinate Courts.  It is in Chapter  VI dealing  with  the  Subordinate  Courts  that  we  find  the provision  made  for  appointment of District  Judges  under Article  233, recruitment of persons other than the District Judges  to the Judicial Services under Article 234 and  also Control  of  the High Court over the Subordinate  Courts  as laid  down by Article 235.  Article 236 deals with the topic of  Interpretation  and  amongst others, defines  by  sub- article  (b)  the expression judicial service to  mean  a service  consisting exclusively of persons intended to  fill the  post  of District Judge and other civil judicial  posts inferior  to  the  post  of  District  Judge.  It  becomes, therefore,  obvious  that  the framers of  the  Constitution separately  dealt with Judicial Services of the State  and made exclusive provisions regarding recruitment to the posts of  District Judges and other civil judicial posts  inferior to  the posts of the District Judge.  Thus these  provisions found entirely in a different part of the Constitution stand on  their own and quite independent of part XIV dealing with Services  in general under the State.  Therefore,  Article 309,  which, on its express terms, is made subject to  other provisions  of  the Constitution, does get circumscribed  to the  extent to which from its general field of operation  is carved  out a separate and exclusive field for operation  by the relevant provisions of Articles dealing with Subordinate Judiciary  as  found  in  Chapter  VI  of  Part  VI  of  the Constitution  to which we will make further reference at  an appropriate  stage  in the later part of this judgment.   We may  also  refer at this stage to Article 146  dealing  with Services  under  the  Supreme  Court  which  lays  down  the procedure  for  appointment of officers and servants of  the Supreme  Court  and provides under sub-article  (2)  thereof that  subject  to  the  provisions  of  any  law  made   by Parliament,  the  conditions  of  service  of  officers  and servants  of  the  Supreme  Court shall be such  as  may  be prescribed by rules made by the Chief Justice of India or by some  other Judge or officer of the court authorised by  the Chief  Justice  of  India to make rules  for  the  purpose. Similar  provision  is  found in Article  229  dealing  with recruitment of officers and servants and the expenses of the High  Courts.   Sub-article (2) there of lays down the  rule making  power of the Chief Justice of the Court concerned or by  some  other Judge or officer of the Court authorised  by the  Chief Justice to make rules for the purpose subject  to

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the  provisions  of any law made by any Legislature  of  the State.    Article   148    deals    with   Comptroller   and Auditor-General  of  India.  Sub-article (5)  thereof  deals with  rule  making  power  of the  President  regarding  the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General subject to any provisions of the  Constitution or any law made by the Parliament in  this connection.    Article   98  deals   with   Secretariat   of Parliament.   Sub-  article  (3)   thereof  provides  Until provision  is  made  by  Parliament under  clause  (2),  the President  may,  after consultation with the Speaker of  the House  of  the  People  or the Chairman of  the  Council  of States,  as  the  case  may be, make  rules  regulating  the recruitment,  and  the  conditions  of  service  of  persons appointed,  to  the  secretarial staff of the House  of  the People or the Council of States, and any rules so made shall have  effect subject to the provisions of any law made under the  said  clause.  Similarly,  for  Secretariat  of  State Legislature,  we find Article 187 which deals with  separate secretariat  staff  for  the  House or  each  House  of  the Legislature  of  a  State.   Sub-article  (3)  thereof  runs parallel  to sub-article (3) of Article 98 and provides that until  provision  is made by the Legislature of  the  State under  clause (2), the Governor may, after consultation with the  Speaker of the Legislative Assembly or the Chairman  of the  Legislative  Council,  as the case may be,  make  rules regulating the recruitment, and the conditions of service of persons  appointed, to the secretarial staff of the Assembly or  the  Council  and any rules so made  shall  have  effect subject  to  the provisions of any law made under  the  said clause.  Article  324 is found in Part XV which deals  with Superintendence,  direction  and control of elections to  be vested  in an Election Commission.  Sub-article (5)  thereof provides  that subject to the provisions of any law made by Parliament,  the conditions of service and tenure of  office of the Election Commissioners and the Regional Commissioners shall  be such as the President may by rule determine.  The aforesaid  Constitutional  provisions clearly indicate  that independently  of  general provisions regarding Services  as mentioned   in  Part  XIV,   different  types  of   Services contemplated  by the Constitution in other parts have  their own  procedural  schemes for recruitment and  regulation  of conditions  of  these  Services and therefore,  Article  309 found  in Part XIV necessarily will have to be read  subject to  these  special  provisions   regarding  recruitment  and conditions  of  services  of diverse types governed  by  the relevant  different  Constitutional provisions as  indicated herein above.  The other Article to which reference is to be made is Article 16 sub-article (4) of the Constitution which enables  the  State  to make provision  for  reservation  of appointments  or  posts in favour of any backward  class  of citizens   which,   in  its   opinion,  is  not   adequately represented in the services under the State.  This provision has  to be read with Article 335 which deals with Claims  of Scheduled  Castes and Scheduled Tribes to services and posts and  lays  down  that  the claims of  the  members  of  the Scheduled  Castes  and the Scheduled Tribes shall  be  taken into  consideration,  consistently with the  maintenance  of efficiency  of administration, in the making of appointments to  services and posts in connection with the affairs of the Union  or  of  a State. Though on the express  language  of Article 335, the Other Backward Classes are not included, it is  now  well  settled  by a  decision  of  the  nine-member Constitution  Bench  of  this  Court in the  case  of  Indra

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Sawhney  &  Ors.  vs.  Union of India & Ors.,  [1992  Suppl. (3)  SCC 217] that even the Other Backward Classes are  also covered  by the thrust of Article 335 of the Constitution of India  and  that  view is reaffirmed and is  followed  by  a recent  decision  of the three-Judge Bench of this Court  in IAs.   Nos.35-36  in  WP (C) No.930 of 1990 etc.   in  Indra Sawhney vs.  Union of India & Ors.  reported in (2000) 1 SCC 168,  wherein Jagannadha Rao, J., speaking on behalf of  the three-Judge  Bench  highlighted this very  position.   Thus, even  if  under Article 16(4) the State proposes to  provide reservation  on  the ground of inadequate representation  of certain backward classes in Services, if it is considered by the  appropriate  authority  that   such  reservation   will adversely  affect the efficiency of the administration, then exercise  under  Article 16(4) is not permissible.  This  is the  Constitutional  limitation  on   the  exercise  of  the enabling  power  of reservation under Article 16(4).  As  we shall  presently  show, question whether in the  Subordinate Judiciary  covered by Articles 233 and 234 if reservation is provided, then the efficiency of the judicial administration will  be affected, is a matter within the exclusive  purview of  the  High Court which shall have to be consulted.   Such consultation is a Constitutional obligation before any Rules are made for reservation.  Before parting with the resume of relevant  Constitutional  provisions, we may also  refer  to Article 50 which lays down the Directive Principles of State Policy  that  the  State shall take steps  to  separate  the judiciary  from the executive in the public services of  the State.

     Legislative powers under Articles 245, 246 are subject to  other  provisions, including Articles 233, 234 and  235: We may also refer to Part XI of the constitution, especially Chapter I dealing with Legislative Relations laying down the Distribution  of Legislative Powers.  Article 245 deals with Extent  of Laws made by Parliament and by the  Legislatures of  States.  Sub-article (1) thereof provides that Subject to  the provisions of this Constitution, Parliament may make laws  for  the whole or any part of the territory of  India, and  the Legislature of a State may make laws for the  whole or  any part of the State. Thus, the legislative powers  of Parliament  and  the Legislature of the State are  expressly made  subject  to  other  provisions  of  the  Constitution. Similarly,   Article  246  laying   down  the  category   of subject-matter  of  laws  made  by  Parliament  and  by  the Legislatures  of States enumerated in Lists I, II and III of the  Seventh  Schedule will also have to be read subject  to Article  245.   Meaning thereby, if other provisions of  the Constitution  cut down or exclude the Legislative powers  of Parliament or State Legislature qua given topics, then those other  provisions  have  to  be given their  full  play  and effect.

     Articles  233, 234 and 235:  So far as recruitment  to District  and  Subordinate Judiciary is concerned,  we  have therefore,  to turn to the twin Articles found in Chapter VI of  Part VI dealing with Subordinate Courts.  The relevant two  articles read as under :  233.  Appointment of Judges: (1)  Appointment  of  persons  to be, and  the  posting  and promotion  of, district judges in any State shall be made by the  Governor  of  the State in consultation with  the  High Court exercising jurisdiction in relation to such State.

     (2)  A person not already in the service of the  Union or  of  the State shall only be eligible to be  appointed  a

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district  judge if he has been for not less than seven years an  advocate  or  a pleader and is recommended by  the  High Court for appointment.

     234.   Recruitment  of  persons  other  than  district judges  to  the judicial service:  Appointments  of  persons other  than  district  judges to the judicial service  of  a State  shall  be  made  by  the Governor  of  the  State  in accordance  with  rules  made by him in  that  behalf  after consultation  with  the State Public Service Commission  and with  the High Court exercising jurisdiction in relation  to such State. (Emphasis supplied)

     Article  233  dealing  with  appointment  of  District Judges,  on its own express terminology projects a  complete scheme  regarding  the  appointment of persons  to  District Judiciary  as  District Judges.  In the present appeals,  we are  concerned  with  direct  recruitment to  the  cadre  of District  Judges  and hence sub-article (2) of Articles  233 becomes  relevant.   Apart from laying down the  eligibility criterion  for  candidates to be appointed from the  Bar  as direct  District Judges the said provision is further hedged by  the  condition that only those recommended by  the  High Court  for  such  appointment  could  be  appointed  by  the Governor  of  the  State.   Similarly,  for  recruitment  of judicial officers other than District Judges to the Judicial Service  at  lower  level, complete scheme  is  provided  by Article  234 wherein the Governor of the State can make such appointments  in  accordance  with the rules framed  by  him after  consulting  with the State Public Service  Commission and  with the High Court exercising jurisdiction in relation to  such State.  So far as the Public Service Commission  is concerned,  as  seen  from Article 320,  the  procedure  for recruitment  to the advertised posts to be followed by it is earmarked  therein.   But  the role of  the  Public  Service Commission  springs  into action after the posts in a  cadre are  required to be filled in by direct recruitment and  for that  purpose  due intimation is given to the Commission  by the  State  authorities.   They  have obviously  to  act  in consultation  with  the High Court so far as recruitment  to posts  in Subordinate Judiciary is concerned.  Of course, it will  be for the High Court to decide how many vacancies  in the  cadre  of  District Judges and Subordinate  Judges  are required to be filled in by direct recruitment so far as the District  Judiciary  is  concerned and necessarily  only  by direct  recruitment  so  far  as  Subordinate  Judiciary  is concerned.   This  prime  role  of the  High  Court  becomes clearly  discernible  from Article 235 which deals with  the control of the High Court over the Subordinate Judiciary and also  of  Subordinate Courts.  The said Article provides  as under:  235.  Control over subordinate courts.  The control over   district  courts  and   courts  subordinate   thereto including  the  posting and promotion of, and the  grant  of leave  to,  persons belonging to the judicial service  of  a State  and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article  shall  be  construed as taking away from  any  such person  any right of appeal which he may have under the  law regulating  the conditions of his service or as  authorising the High Court to deal with him otherwise than in accordance with  the  conditions of his service prescribed  under  such law.

     It is in the light of the aforesaid relevant scheme of

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the  Constitution  that  we now proceed to tackle  the  main controversy  posed  for our consideration.  Point No.1:   So far as this point is concerned, it is strictly not necessary for  us  to  go into the reason or the cause which  led  the appellant-State  to  resort to the exercise  of  legislative power  for  enacting  the  impugned Act.   The  question  is whether  the  Act, as enacted, by its express language,  can apply  to  judicial service of the State or not.  When  we turn  to this Act, we find that it is enacted to provide for adequate  representation  of  SC, ST and OBC  candidates  in Posts  and Services under the State.  The State is defined by  Section 2(n) to include the Government, the Legislature and  the  Judiciary of the State of Bihar and all  local  or other  authorities within the State or under the control  of the  State Government. Consequently, it cannot be said that the  Act, as framed, did not seek to cover the Judiciary  of the State of Bihar.  The main provision of the Act, which is on  the  anvil of controversy, is Section 4 which  reads  as under  :   4.   Reservation for direct  recruitment    All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the  following manner, namely :- (1) The available vacancies shall  be  filled up  (a) from open merit category  ..   .. 50% (b) from reserved category ..  ..  50% (2) The vacancies from  different  categories  of   reserved  candidates  from amongst  the  50% reserved category shall, subject to  other provisions  of  this  Act, be as follows  :-  (a)  Scheduled Castes  ..   ..   14% (b) Scheduled Tribes ..  ..   10%  (c) Extremely  Backward Class ..  ..  12% (d) Backward Class  .. ..    8%  (e)  Economically  Backward   Woman  ..   3%   (f) Economically  Backward  ..  ..  3% ----- Total ..  50%  ---- Provided  that the State Government may, by notification  in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/Scheduled Tribes and Other backward classes in  such  districts:   Provided  further  that  in  case  of promotion,  reservation  shall  be made only  for  Scheduled Castes/Scheduled  Tribes in the same proportion as  provided in  this section.  (3) A reserved category candidate who  is selected  on the basis of his merit shall be counted against 50%  vacancies  of open merit category and not  against  the reserved  category vacancies.  (4) Notwithstanding  anything contained to the contrary in this Act or in any other law or rules  for  the time being in force, or in any judgement  or decree  of the Court, the provision of sub-section (3) shall apply  to  all  such  cases  in  which  all  formalities  of selection  have been completed before the 1st November 1990, but  the appointment letters have not been issued.  (5)  The vacancies reserved for the Scheduled Castes/Scheduled Tribes and  other  Backward  Classes  shall not  be  filled  up  by candidates  not  belonging  to  Scheduled   Castes/Scheduled Tribes  and  Other  Backward  Classes  except  as  otherwise provided  in this Act.  (6) (a) In case of  non-availability of  suitable  candidates  from   the  Scheduled  Castes  and Scheduled  Tribes for appointment and promotion in vacancies reserved  for  them,  the  vacancies shall  continue  to  be reserved  for  three  recruitment   years  and  if  suitable candidates  are  not available even in the third  year,  the vacancies  shall  be exchanged between the Scheduled  Castes and Scheduled Tribes and the vacancies so filled by exchange shall  be  treated as reserved for the candidates  for  that particular  community  who are actually appointed.   (b)  In case  of  non-availability of suitable candidates  from  the Extremely   Backward  Classes  and   Backward  Classes   the vacancies so reserved shall continue to be reserved for them

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for  three recruitment years and if suitable candidates  are not  available  even in the third year also,  the  vacancies shall  be filled by exchange between the candidates from the extremely Backward and Backward Classes and the vacancies so filled  by  Exchange  shall be treated as reserved  for  the candidates  of  that particular community who  are  actually appointed.   (c)  In  case of non-availability  of  suitable candidates  for the vacancies reserved for the  economically backward  women  the vacancies shall be filled first by  the candidates from the Scheduled Castes, then by the candidates from  the  Scheduled  Tribes, then by  the  candidates  from extremely  backward  class, and then by the candidates  from backward  class.  The vacancies so filled in the transaction shall  be  treated  as reserved for the candidates  of  that particular  community who are actually appointed.  (d) If in any  recruitment year, the number of candidates of Scheduled Castes/Scheduled  Tribes,  extremely Backward  and  Backward Classes  are less than the number of vacancies reserved  for them  even  after  exchange formula  the  remaining  backlog vacancies   may  be  filled  by  general  candidates   after dereserving  them  but the vacancies so dereserved shall  be carried forward for three recruitment years.

     (e)  If the required number of candidates of Scheduled Castes, Scheduled Tribes and Extremely Backward and Backward Classes  are  not  available  for filling  up  the  reserved vacancies,  fresh  advertisement  may be made only  for  the candidates  belonging  to the members of  Scheduled  Castes, Scheduled  Tribes  and  Extremely   Backward  and   Backward Classes,  as the case may be, to fill the backlog  vacancies only.

     A  bare  reading of the said provision shows that  all appointments  to services and posts in any establishment  by way  of  direct  recruitment  require  to  be  subjected  to reservation  so  that  all available vacancies  have  to  be filled  in from open category candidates only up to 50%  and from  reserved  category up to remaining 50%.  It cannot  be disputed   that   posts  of   District  Judges  and   Judges subordinate  to  the  District Judiciary are also  posts  in Judicial  Service.  Question is whether the phrase posts in any  establishment  governs such judicial posts.  We  have, therefore,   to  turn  to  the   definition  of   the   term establishment  as  found in Section 2(c) of the Act.   The relevant  provision  thereof lays down that  establishment means  any Office or department of the State concerned with the  appointments to public services and posts in connection with  the  affairs of the State.  On a conjoint reading  of the  definition  of  State  under  Section  2(n)  and  the definition establishment under Section 2(c), the following statutory  scheme  emerges.  Any office or establishment  of the  Judiciary  of  the State of Bihar  concerned  with  the appointments to public services and posts in connection with affairs  of  the Judiciary of the State of Bihar would  fall within  the  sweep of the term establishment.   Once  that conclusion  emerges  from the scheme of the Act, it  becomes obvious  that all appointments to services and posts in  any office  or department of the Judiciary of the State of Bihar would  be  covered  by  the  sweep of  Section  4.   On  the aforesaid  scheme of the Act, the High Court in the impugned judgment, has taken the view that the operation of Section 4 for  offices or departments of the Judiciary of the State of

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Bihar would cover only the ministerial staff of the District Courts  and courts subordinate thereto and would not include Presiding  Officers and therefore, Section 4 will not govern the direct recruitment to the posts of Presiding Officers of the  District Judiciary as well as of Subordinate Judiciary. It  is difficult to appreciate this line of reasoning on the express  language  of the relevant provisions of  Section  4 read  with  the definition provisions.  It  becomes  obvious that  the term any office of the Judiciary of the State of Bihar would naturally include not only ministerial staff but also  officers,  including  Presiding   Officers  of  courts comprised  in  the  Judiciary  of   the  State.   Once  that conclusion  is  reached  on  the  express  language  of  the relevant  provisions of the Act, it cannot be held that  the thrust  of  Section 4 would not apply to govern  reservation for direct recruitment to the posts of Presiding Officers in the  District Courts as well as courts subordinate  thereto, as all of them will form part and parcel of the Judiciary of the State of Bihar and will have to be treated as holders of offices  in  the State Judiciary.  Consequently, it  is  not possible  to  agree  with the contention of  learned  senior counsel  Shri Thakur for the High Court that on the  express provisions  of  the  Act, Section 4 cannot apply  to  govern recruitment  to  posts in Subordinate Judiciary.  The  first point  for  determination, therefore, has to be answered  in the  affirmative in favour of the appellants and against the respondents.

     Point  No.2:   Since it is held that Section 4 of  the impugned   Act,   on  its   express  terms,  covers   direct recruitment  to posts in the cadre of District Judiciary  as well as to Subordinate Judiciary in the State of Bihar, moot question  arises as to whether Section 4 can be sustained on the  touchstone  of  the   relevant  Constitutional   scheme governing  the recruitment and appointments to these  posts. For  coming to the grip of this problem, we have to keep  in view the salient features of the Constitution emanating from the  Directive  Principles of State Policy as laid  down  by Article  50 which underscores the felt need of separation of the  Judiciary  from  the  Executive.   For  achieving  that purpose,  the  Constitution  has  made  separate  provisions regarding  the  recruitment and appointment to the cadre  of District  Judges  as  well as the Subordinate  Judiciary  as found  in Chapter VI of Part VI of the Constitution and,  as seen  earlier,  these  provisions   are  conspicuously   not included  in part XIV dealing in general with Services under the  Union and the States.  Article 309 itself, which is  of general  nature, dealing with regulation of Recruitment  and conditions  of Service of persons serving in the Union or  a State  is expressly made subject to other provisions of  the Constitution.   The  first part of Article 235  itself  lays down  that it is for the High Court to control the  District Courts  and  Courts subordinate thereto and in  exercise  of that  control  vesting  in  the High  Court,  regulation  of posting  and  promotions  and granting of leave  to  persons belonging  to  the Judicial Services has to be done  by  the High  Court.  It is, of course, true that in the second part of  Article  235 judicial officers already appointed to  the Service  have their statutory right of appeal and the  right to  be dealt with regarding other service conditions as laid down by any other law for the time being in force, expressly protected.   But  these provisions of the second  part  only enable the Governor under Article 309, in the absence of any statutory  enactment  made by the competent Legislature  for

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regulating  the  conditions of service of judicial  officers who  are already recruited and have entered and become  part and  parcel of the State service, to promulgate  appropriate rules  on  the subject.  But so far as the entry points  are concerned,  namely, recruitment and appointment to the posts of  Presiding Officers of the courts subordinate to the High Courts,  only  Articles 233 and 234 would govern the  field. Article  234  lays  down  the procedure and  the  method  of recruiting  judicial  officers  at  grass-root  level  being Subordinate  Judges  and Munsiffs as laid down by  the  1955 Rules.  These Rules are also framed by the Governor of Bihar in  exercise of his powers under Article 234 obviously after the  consultation  of the High Court and the Public  Service Commission.   Rules regarding the procedure of selection  to be  followed by the State Public Service Commission as found in  Rules 4 to 17 deal with the method to be adopted by  the Public  Service  Commission while selecting  candidates  who offer  their  candidature  for the posts  advertised  to  be filled  in.  These Rules obviously require consultation with the  Commission  on  the   procedural  aspect  of  selection process.   But  so far as the High Court is  concerned,  its consultation  becomes pivotal and relevant by the thrust  of Article  233  itself  as it is the High Court which  has  to control  the candidates, who ultimately on getting selected, have  to act as Judges at the lowest level of the  Judiciary and  whose  posting, promotion and grant of leave and  other judicial  control would vest only in the High Court, as  per Article 235 first part, once they enter the judicial service at grass-root level.  Thus consultation of the Governor with the  High Court under Article 234 is entirely of a different type as compared to his consultation with the Public Service Commission  about procedural aspect of selection.  So far as direct  recruitment  to  the  posts of  District  Judges  is concerned,  Article  233 sub-article (2) leaves no room  for doubt  that unless the candidate is recommended by the  High Court,  the Governor cannot appoint him as a District Judge. Thus  Articles  233  and  234,  amongst  them,  represent  a well-knit and complete scheme regulating the appointments at the  apex  level  of District  Judiciary,  namely,  District Judges  on  the  one  hand and  Subordinate  Judges  at  the grass-root  level  of Judiciary subordinate to the  district court.   Thus Subordinate Judiciary represents a pyramidical structure.   At  base level i.e.  grass- root level are  the Munsiffs  and  Magistrates whose recruitment is governed  by Article 234.  That is the first level of the Judiciary.  The second  level represents already recruited judicial officers at grass-root level, whose working is controlled by the High Court  under  Article  235 first part.  At the top  of  this pyramid are the posts of District Judges.  Their recruitment to  these posts is governed by Article 233.  It is the third and the apex level of Subordinate Judiciary.  It has also to be  kept  in view that neither Article 233 nor  Article  234 contains  any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187,  229(2)  and  324(5).  These  latter  Articles  contain provisions  regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament   or   Legislature.    Such    a   provision   is conspicuously  absent  in  Articles  233   and  234  of  the Constitution  of  India.  Therefore, it is not  possible  to agree  with  the  contention  of  learned  counsel  for  the appellant-State  that these Articles only deal with the rule making  power  of  the  Governor,   but  do  not  touch  the legislative  power of the competent Legislature.  It has  to be  kept  in  view  that once the  Constitution  provides  a

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complete  Code for regulating recruitment and appointment to District  Judiciary  and to Subordinate Judiciary,  it  gets insulated from the interference of any other outside agency. We  have to keep in view the scheme of the Constitution  and its  basic framework that the Executive has to be  separated from the Judiciary.  Hence, the general sweep of Article 309 has  to  be  read subject to this  complete  Code  regarding appointment of District Judges and Judges in the Subordinate Judiciary.  In this connection, we have also to keep in view Article  245 which, in its express terms, is made subject to other  provisions of the Constitution which would  OBinclude Articles  233 and 234.  Consequently, as these twin Articles cover the entire field regarding recruitment and appointment of  District Judges and Judges of the Subordinate  Judiciary at  base level pro tanto the otherwise paramount legislative power  of  the  State Legislature to operate on  this  field clearly  gets excluded by the Constitutional scheme  itself. Thus  both Articles 309 and 245 will have to be read subject to  Articles 233 and 234 as provided in the former  Articles themselves.   It  is  true, as submitted by  learned  senior counsel  Shri  Dwivedi  for the appellant-State  that  under Article   16(4)  the  State  is   enabled  to  provide   for reservations  in Services.  But so far as Judicial Service is  concerned, such reservation can be made by the Governor, in exercise of his rule making power only after consultation with  the  High  Court.   The  enactment  of  any  statutory provision  dehors  consultation  with  the  High  Court  for regulating  the  recruitment  to District Judiciary  and  to Subordinate  Judiciary  will clearly fly in the face of  the complete   scheme   of  recruitment   and   appointment   to Subordinate  Judiciary and the exclusive field earmarked  in connection  with such appointments by Articles 233 and  234. It  is  not as if that the High Courts being  constitutional functionaries  may be oblivious of the need for a scheme  of reservation  if necessary in appropriate cases by  resorting to  the  enabling provision under Article 16(4).   The  High Courts  can  get  consulted  by  the  Governor  for  framing appropriate   rules  regarding   reservation  for  governing recruitment  under Articles 233 and 234.  But so long as  it is  not done, the Legislature cannot, by an indirect method, completely  bypassing  the  High Court  and  exercising  its legislative power, circumvent and cut across the very scheme of  recruitment  and  appointment to District  Judiciary  as envisaged  by  the  makers  of the  Constitution.   Such  an exercise,   apart  from  being   totally  forbidden  by  the Constitutional  scheme,  will also fall foul on the  concept relating  to separation of powers between the  legislature, the  executive and the judiciary as well as the fundamental concept  of an independent judiciary.  Both these concepts are  now  elevated  to the level of basic structure  of  the Constitution  and  are the very heart of the  Constitutional scheme.   In  the case of His Holiness  Kesavananda  Bharati Sripadagalvaru vs.  State of Kerala & Anr.  etc.etc., (1973) 4  SCC 225, a twelve-member Constitution Bench of this Court had  occasion to consider this question regarding the  basic structure of the Constitution which, according to the Court, could  not be tinkered with by the Parliament in exercise of its  amending  power under Article 368 of the  Constitution. Sikri, CJ., in para 247 of the Report referred with approval the  decision  of the Judicial Committee in Liyanges  case, (1967)  1 AC 259 for culling out the implied limitations  on the  amending  power of the competent Legislature  like  the Parliament  of  Ceylon with which that case  was  concerned. The  relevant observations are found in paras 253 to 255  of the  Report  at  pages 357 and 358, which read  as  under  :

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253.   The case, however, furnishes another instance  where implied  limitations were inferred.  After referring to  the provisions  dealing  with judicature and the  Judges,  the Board observed:

     These  provisions manifest an intention to secure  in the  judiciary  a  freedom from political,  legislative  and executive  control.   They  are   wholly  appropriate  in  a Constitution  which  intends  that judicial power  shall  be vested  only in the judicature.  They would be inappropriate in  a  Constitution by which it was intended  that  judicial power  should be shared by the executive or the legislature. The  Constitutions  silence as to the vesting  of  judicial power  is  consistent with its remaining, where it had  lain for more than a century, in the hands of the judicature.  It is  not  consistent  with any intention that  henceforth  it should  pass  to  or  be shared by,  the  executive  or  the legislature.

     254.   The  Judicial  Committee was of the  view  that there exists a separate power in the judicature which under the Constitution as it stands cannot be usurped or infringed by   the  executive  or   the  legislature.   The  Judicial Committee cut down the plain words of Section 29(1) thus:

     Section  29(1) of the Constitution says.- Subject to the  provisions of this Order Parliament shall have power to make  laws  for the peace, order and good government of  the Island. These words have habitually been construed in their fullest  scope.  Section 29(4) provides that Parliament  may amend  the  Constitution  on a two-thirds  majority  with  a certificate  of the Speaker.  Their Lordships however cannot read  the words of Section 29(1) as entitling Parliament  to pass  legislation  which  usurps the judicial power  of  the Judicature-e.g., by passing an Act of attainder against some person  or  instructing  a judge to bring in  a  verdict  of guilty  against  someone who is being tried-if in  law  such usurpation would otherwise be contrary to the Constitution. (p.289)

     255.   In conclusion the Judicial Committee held  that there  was interference with the functions of the  judiciary and  it  was not only the likely but the intended effect  of the  impugned  enactments,  and  that  was  fatal  to  their validity.

     The  ultimate conclusion to which Chief Justice  Sikri reached  are  found in paras 292 to 294 at page 366  of  the Report   which  read  as  under   :   292.    The   learned Attorney-General   said   that  every   provision   of   the Constitution is essential;  otherwise it would not have been put  in the Constitution.  This is true.  But this does  not place  every  provision  of  the Constitution  in  the  same position.   The true position is that every provision of the Constitution can be amended provided in the result the basic foundation  and  structure of the constitution  remains  the same.   The  basic structure may be said to consist  of  the following features:

     (1) Supremacy of the Constitution;  (2) Republican and Democratic form of Government;  (3) Secular character of the Constitution;    (4)  Separation  of   powers  between   the legislature,  the executive and the judiciary;  (5)  Federal character of the Constitution.

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     293.   The  above  structure  is built  on  the  basic foundation, i.e., the dignity and freedom of the individual. This  is of supreme importance.  This cannot by any form  of amendment be destroyed.

     294.   The  above  foundation   and  the  above  basic features  are easily discernible not only from the  preamble but  the  whole  scheme of the Constitution,  which  I  have already discussed.

     The other learned Judges constituting the Constitution Bench  had  nothing inconsistent to say in this  connection. Thus  separation  of  powers between  the  legislature,  the executive  and  the  judiciary is the basic feature  of  the Constitution.   It has also to be kept in view that judicial independence  is the very essence and basic structure of the Constitution.   We  may  also usefully refer to  the  latest decision  of  the  Constitution  Bench   of  this  Court  in Registrar  (Admn.), High Court of Orissa, Cuttack etc.   vs. Sisir  Kanta Satapathy (Dead) by LRs & Anr.  etc., (1999)  7 SCC  page 725, wherein K.Venkataswami, J., speaking for  the Constitution   Bench,   made     the   following   pertinent observations  in the very first two paras regarding Articles 233  to 235 of the Constitution of India :  An  independent judiciary  is one of the basic features of the  Constitution of  the Republic.  Indian Constitution has zealously guarded independence  of  judiciary.  Independence of  judiciary  is doubtless a basic structure of the Constitution but the said concept  of independence has to be confined within the  four corners  of  the  Constitution  and  cannot  go  beyond  the Constitution.

     The  Constitution Bench in the aforesaid decision also relied  upon  the  observations of this Court in  All  India Judges  Association  &  Ors.etc.  (supra), wherein  on  the topic  of regulating the service conditions of Judiciary  as permitted  by Article 235 read with Article 309, it had been observed as under :  .the mere fact that Article 309 gives power  to the executive and the legislature to prescribe the service  conditions of the judiciary does not mean that  the judiciary  should  have no say in the matter.  It  would  be against  the spirit of the Constitution to deny any role  to the judiciary in that behalf, for theoretically it would not be  impossible for the executive or the legislature to  turn and twist the tail of the judiciary by using the said power. Such  a  consequence  would be against one  of  the  seminal mandates  of  the  Constitution,  namely,  to  maintain  the independence of the judiciary.

     In  view  of this settled legal  position,  therefore, even  while operating in the permissible field of regulating other  conditions  of service of already recruited  judicial officers   by  exercising  power   under  Article  309,  the concerned  authorities  have to keep in view the opinion  of the High Court of the concerned State and the same cannot be whisked  away.   In  order to fructify  this  Constitutional intention  of  preserving the independence of Judiciary  and for  fructifying  this  basic requirement,  the  process  of recruitment  and appointment to the District Judiciary  with which  we  are concerned in the present case,  is  insulated from  outside legislative interference by the Constitutional makers by enacting a complete Code for that purpose, as laid down  by  Articles 233 and 234.  Consultation with the  High Court  is, therefore, an inevitable essential feature of the

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exercise  contemplated  under  these two Articles.   If  any outside  independent  interference  was envisaged  by  them, nothing  prevented the founding fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States  or  Parliament  as  was done in the  case  of  other Articles,  as seen earlier.  In the case of State of  Kerala vs.   Smt.A.Lakshmikutty  &  Ors., (1986) 4 SCC 632,  a  two member Bench of this Court, speaking through Sen,J., placing reliance on the Constitution Bench judgment of this Court in Chandra  Mohan vs.  State of U.P., (1967) 1 SCR 77, made the following  pertinent observations in paras 22 to 25 at pages 647-648,  which  read  as under :  22.  The  heart  of  the matter  is that consultation between the State  Government and  the High Court in the matter of appointment of District Judges  under  Article  233(1) of the Constitution  must  be real,   full  and  effective.   To  make  the   consultation effective,  there has to be an interchange of views  between the  High  Court  and  the State  Government,  so  that  any departure  from  the  advice  of the  High  Court  would  be explained to the High Court by the State Government.  If the State  Government  were  simply to give lip service  to  the principle  of consultation and depart from the advice of the High Court in making judicial appointments without referring back  to  the High Court the difficulties which prevent  the government from accepting its advice, the consultation would not  be  effective  and  any appointment of a  person  as  a District  Judge  by  direct recruitment from the bar  or  by promotion  from  the judicial services under Article  233(1) would  be  invalid.   Unless the State  Government  were  to convey  to the High Court the difficulties which prevent the government  from accepting its advice by referring back  the matter the consultation would not be effective.

     23.   Indubitably, the power of appointment of persons to be District Judges conferred on the Governor, meaning the State  Government, under Article 233(1) in consultation with the  High  Court  is  an executive function.   It  has  been settled  by a long line of decisions of this Court  starting from Chandra Mohan v.  State of U.P.  to M.M.Gupta v.  State of  J  &  K that the power of the State  Government  is  not absolute  and  unfettered but is hedged in with  conditions. The  exercise  of  the power of the Governor  under  Article 233(1)  in  the matter of appointment of District Judges  is conditioned  by consultation with the exercise of the  power that  the  power can only be exercised in consultation  with the High Court.

     24.  Appointment of persons to be, and the posting and promotion of, District Judges in any State, shall be made by the   Governor  of  the  State   under  Article  233(1)   in consultation  with the High Court exercising jurisdiction in relation  to  such State.  Sub-Article (2) thereof  provides that  a person not already in the service of the Union or of the  State  shall  only  be eligible to be  appointed  as  a District  Judge if he has been for not less than seven years an  advocate  or  a pleader and is recommended by  the  High Court  for  appointment.   It  is  therefore  obvious   that eligibility  of appointment of persons to be District Judges by  direct  recruitment from amongst the members of the  bar depends  entirely  on the recommendation of the High  Court. The State Government has no power to appoint any person as a District  Judge except from the panel of names forwarded  by the  High  Court.   As stated, the decisions  starting  from Chandra  Mohan  v.   State  of U.P.   have  established  the

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principle  as  a rule of law, that consultation between  the Governor  and the High Court in the matter of appointment of District  Judges  under  Article 233(1) must  not  be  empty formality but real, full and effective.

     25.   In  Chandra Mohan v.  State of U.P.  Subba  Rao, C.J.   speaking  for  a  unanimous  court  observed  :   The exercise  of  the  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.These provisions  indicate  that  the  duty   to  consult  is   so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein.

     To   the   same   effect    are   the   decisions   in Chandramouleshwar  Prasad v.  Patna High Court, (1969) 3 SCC 56,  High Court of P & H v.  State of Haryana, (1975) 1  SCC 843,  A.Panduranga Rao v.  State of A.P., (1975) 4 SCC  709, and M.M.  Gupta v.  State of J & K, (1982) 3 SCC 412.

     It  becomes, therefore, obvious that no recruitment to the  post  of a District Judge can be made by  the  Governor without  recommendation  from  the High  Court.   Similarly, appointments  to  Subordinate Judiciary at grass-root  level also  cannot  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  bypassing consultation with  the  High Court  and  laying down a statutory fiat as is tried  to  be done  by enactment of Section 4 by the Bihar Legislature has got  to  be held to be in direct conflict with the  complete Code  regarding recruitment and appointment to the posts  of District  Judiciary  and Subordinate Judiciary as  permitted and  envisaged by Articles 233 and 234 of the  Constitution. Impugned Section 4, therefore, cannot operate in the clearly earmarked  and forbidden field for the State Legislature  so far  as  the topic of recruitment to District Judiciary  and Subordinate  Judiciary  is concerned.  That field is  carved out and taken out from the operation of the general sweep of Article  309.   It  is, of course, true as laid  down  by  a catena   of  decisions  of  this   Court,  that  topics   of constitution  of  courts and services, laying down of  rules regarding  the  conditions  of   service  other  than  those expressly  placed within the jurisdiction of the High  Court by Articles 233 and 235, providing for age of superannuation or  other  retirement benefits to judicial officers,  fixing pay  scales,  diversification  of cadres may  form  part  of general  recruitment  and  conditions  of  services  falling within  the  spheres of Governors rule making  power  under Article 309 read with second part of Article 235 or may even be   made  subject  matter  of  legislation   by   competent Legislature  in  exercise  of its legislative  powers  under entry 41 of List II or for that matter entry 11A of List III of the Seventh Schedule.  But save and except this permitted field, the State Legislature cannot enter upon the forbidden field  expressly  reserved  for consultation with  the  High

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Court  by  the thrust of Articles 233 and 234 so far as  the initial  entry  point of recruitment to judicial service  at grass  root  level  or  at the apex level  of  the  District Judiciary  is concerned.  A three-Judge Bench of this  Court in the case of A.Panduranga Rao vs.  State of Andhra Pradesh &  Ors.,  AIR 1975 SC 1922, speaking through  Untwalia,  J., considered  the question whether any one can be appointed by the  Governor as a District Judge without being  recommended by  the  High  Court.   Relying on  the  Constitution  Bench decision  of  this Court in Chandra Mohans case (supra)  in para  7  of  the Report, observations were made as  under  : There  are two sources of recruitment, namely, (i)  service of the Union or the State, and (ii) members of the Bar.  The said  Judges  from  the  first   source  are  appointed   in consultation  with the High Court and those from the  second source  are  appointed  on the recommendation  of  the  High Court.

     And  thereafter following pertinent observations  were made  in  para  8, which read as under :  A  candidate  for direct recruitment from the Bar does not become eligible for appointment  without  the recommendation of the High  Court. He becomes eligible only on such recommendation under clause (2)  of  Article 233.  The High Court in the judgment  under appeal  felt some difficulty in appreciating the meaning  of the  word  recommended.  But the literal meaning given  in the  Concise Oxford Dictionary is quite simple and apposite. It  means  suggest  as  fit for employment.   In  case  of appointment from the Bar it is not open to the Government to choose a candidate for appointment until and unless his name is recommended by the High Court.

     It  is, therefore, obvious that the State  Legislature has  no  role  to  play while  controlling  appointments  of District  Judges  under Article 233 or appointment of  Civil Judges  to  Subordinate Judiciary at grass-root level  under the  District  Judiciary and it is only the Governor who  is entrusted with the said task which he has to undertake after consultation  with the High Court and by framing appropriate rules  for  recruitment to Judiciary at grass-root level  as enjoined  by Article 234 and can only act on  recommendation by  the  High Court for direct recruitment from the Bar  for being  appointed as District Judges as laid down by  Article 233  sub-article  (2).   There is no third method  or  third authority which can intervene in the process or can have its say,  whether legislative authority or executive  authority, as  the case may be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two Articles. It  is, therefore, difficult to appreciate the contention of learned   senior  counsel  for   the  appellant-State   that paramount  legislative power of the State Legislature stands untouched by the scheme of the aforesaid two Articles of the Constitution.   Shri Dwivedi, learned senior counsel for the appellant-State  was  right when he contended  that  Article 16(4)  is an enabling provision permitting the State to  lay down a scheme of reservation in State Services.  It may also be true that Judicial Service can also be considered to be a part  of such Service as laid down by this Court in the case of  B.S.Yadav  & Ors.etc.  (supra).  However, so far as  the question  of  exercising that enabling power  under  Article 16(4)  for laying down an appropriate scheme of  reservation goes,  as  seen earlier, we cannot be oblivious of the  fact that   the  High  Court,   being  the  high   Constitutional functionary,  would also be alive to its social  obligations and  the  Constitutional  guideline  for  having  scheme  of

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reservation  to  ameliorate  the lot  of  deprived  reserved categories  like the SC, ST and Other Backward Classes.  But for that purpose, the Governor can, in consultation with the High  Court, make appropriate rules and provide for a scheme of  reservation for appointments at grass-root level or even at  the highest level of the District Judiciary, but so long as  this  is  not  done, the State  Legislature  cannot,  by upsetting  the  entire apple-cart and totally bypassing  the Constitutional  mandate of Articles 233 and 234 and  without being  required  to  consult  the High  Court,  lay  down  a statutory  scheme  of reservation as a road roller  straight jacket  formula  uniformly  governing  all  State  Services, including  Judiciary.  It is easy to visualise that the High Court  may,  on  being properly and  effectively  consulted, endorse   the   Governors  view  to  enact   provision   of reservation  and  lay down the percentage of reservation  in Judicial  Service,  for  which it will  be  the  appropriate authority  to  suggest  appropriate  measures  and  required percentage  of  reservation, keeping in view the  thrust  of Article 335 which requires the consideration of the claim of members  of SC, ST and OBC for reservation in Services to be consistent   with   the  maintenance    of   efficiency   of administration.    It  is  obvious   that   maintenance   of efficiency of judicial administration is entirely within the control  and jurisdiction of the High Court as laid down  by Article  235.   The  State Legislature, on  its  own,  would obviously  lack  the  expertise and the knowledge  based  on experience  of judicial administration which is possessed by the  High Court.  Consequently, bypassing the High Court, it cannot,  in  exercise of its supposed paramount  legislative power  enact any rule of thumb and provide fixed  percentage of  reservation  for  SC, ST and Other Backward  Classes  in Judicial Services and also lay down detailed procedure to be followed  as laid down by sub-sections (3) to (6) of Section 4  for effecting such statutorily fixed 50% reservation.  It is easy to visualise that if the High Court is not consulted and  obviously cannot be consulted while enacting any law by the  State  Legislature  and  en  bloc  50%  reservation  is provided  in the Judicial Service as is sought to be done by Section  4 of the Act and which would automatically  operate and  would  present the High Court with a fait accompli,  it would  be  deprived  of  the right  to  suggest  during  the Constitutionally  guaranteed consultative process, by way of its  own  expertise  that for maintenance of  efficiency  of administration  in  Judicial Service controlled by  it,  50% reservation   may  not  be   required,  and/or  even  lesser percentage  may  be required or even may not be required  at all.   Even  that opportunity will not be available  to  the High  Court  if  it is held that the State  Legislature  can enact  the  law  of reservation and  make  it  automatically applicable  to  Judicial  Service bypassing the  High  Court completely.   Such an exercise vehemently canvassed for  our approval  by learned senior counsel for the appellant- State cannot  be  countenanced  on  the   express  scheme  of  the Constitution,  as discussed by us earlier.  Even  proceeding on  the  basis  that the scheme of Article 16(1)  read  with Article  16(4)  may be treated to be forming a part  of  the basic  feature of the Constitution, it has to be appreciated that  for  fructifying such a Constitutional scheme  Article 335 has to be kept in view by the authority concerned before such  a  scheme  of reservation can  be  promulgated.   Once Article  335  has to be given its full play  while  enacting such a scheme of reservation, the High Court, entrusted with the full control of Subordinate Judiciary as per Article 235 by  the Constitution, has got to be consulted and cannot  be

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treated  to be a stranger to the said exercise as  envisaged by the impugned statutory provision.

     We  may now refer to one submission of learned  senior counsel  Shri Dwivedi for the appellant-State.  He contended that there cannot be any dispute reOBgarding appointments to available  vacancies in the cadre of District Judiciary  and that they can be filled in only on the recommendation of the High Court and equally there cannot be any dispute regarding filling  up of all vacancies in the Subordinate Judiciary as per  Article 234.  They can be filled in by the Governor  as per rules framed in consultation with the High Court and the Public  Service  Commission.  But so far as  reservation  of vacancies to be filled in by reserved category of candidates is  concerned, it is an exercise which is resorted to by the State  authorities  in  discharge of their  enabling  powers under  Article  16(4).   That  is a stage  anterior  to  the question   of  recruitment  or   appointment  on   available vacancies in the cadre of District Judiciary or in the cadre of  Subordinate  Judiciary.  Consequently, such an  exercise invoked by any administrative order or, even by legislation, cannot  be  said  to be conflicting in any manner  with  the procedure  of  recruitment  and   appointment  to   District Judiciary  and Subordinate Judiciary as per Articles 233 and 234 of the Constitution.  This argument, as submitted, looks attractive but on closer scrutiny falls through, as we shall see  presently.  It is not in dispute and cannot be disputed that  creation  of cadres and creation of posts in  a  cadre comprised  in Judicial Service of the State can be  resorted to  by  the  Governor in exercise of his rule  making  power under  Article  309  or for that matter by  any  appropriate Legislation  by  the State authorities under the  very  same Article.   But once cadre of District Judges and Subordinate Judiciary  are constituted by the aforesaid authorities  and posts backed up by suitable budgetary provisions are created and  are  accordingly made available to be filled in in  the concerned  cadres, process of creation of posts comes to  an end.   Thereafter  when  in the created posts borne  on  any judicial  cadre,  whether at the District Court level or  at the   Subordinate  Court  level,   any  vacancies  arise  by retirement  or otherwise non-availability of the  incumbents due  to  any other reason, question of filling up  of  those available  vacancies would arise.  Such available  vacancies of  sanctioned  posts  have  to  be  filled  in  only  after following the procedure laid down by Articles 233 and 234 of the  Constitution  of India and cannot be subjected  to  any other  procedure.   At that stage, directing 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  Judiciary  must  be  filled  in  from  reserved candidates  only would ex-facie cut across the power of  the High  Court which alone can 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 frames rules for recruitment of candidates for filling up of all  available vacancies in the Subordinate Judiciary  under the  district court as per Article 234.  It is difficult  to appreciate  how  filling  up  of vacancies  in  the  already sanctioned  posts  in these cadres will remain  an  exercise anterior  to the procedure laid down by the Constitution for filling  up of these vacancies as per Articles 233 and  234, as  the case may be.  In any case, impugned Section 4 of the Act,  by its express wordings, does not contemplate any such

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stage  anterior  to filling up of vacancies in the  existing posts.   On the contrary, it provides that all  appointments to  Services  and Posts in an establishment which are to  be filled  in  by direct recruitment shall be regulated in  the manner  laid  down  therein.  Meaning thereby,  50%  of  the appointments  to  such available posts have to be done  from reserved  category candidates as per percentage provided for each  of  such classes.  That necessarily means that 50%  of the  existing  vacancies  in  the  available  posts  in  the Services  have  to  be  filled  in  from  reserved  category candidates only.  This mandate of Section 4, therefore, gets directly  hit  by the scheme of the complete Code  for  such direct  recruitment to the Judicial Services in the district cadre or subordinate cadre, as envisaged by Articles 233 and 234 of the Constitution of India.

     We  may  take an example to highlight  this  position. Supposing  there  are 10 vacancies of District Judges  at  a given  point of time in the State, which are available to be filled in by direct recruitment keeping in view the ratio of such  direct  recruitment  permissible  under  the  relevant rules.   Once  these  10 vacancies of  District  Judges  are required  to  be  filled  in by direct  recruitment  on  the recommendation of the High Court from the members of the Bar subject  to the minimum eligibility laid down under  Article 233  sub-article  (2),  the  High  Court  obviously  has  to undertake  the exercise of selection of eligible  candidates on  its own.  The Governor, in such a case, shall have  only to  pass consequential orders of appointment from the  panel as   recommended   by   the  High   Court.    If   no   such recommendations  are forthcoming, the Governor will have  no jurisdiction  or  power  to  make any  such  appointment  as clearly  mandated by Article 233 sub-article (2).  Once  the High  Court undertakes such an exercise and prepares a panel of  eligible and suitable direct recruits from the Bar after holding  appropriate  tests whether written or oral  as  the relevant  procedural  rules  may provide, it  will,  in  the serial  order  of  inter  se merit prepare  a  panel  of  10 candidates  and recommend them for appointment and the panel may  be sent for passing appropriate orders.  If that is so, all  the  10 vacancies have to be filled in in the light  of the  panel  prepared by the High Court, keeping in view  the names  of candidates listed in the panel as per the rankings made  by  the  High Court in the order of  their  respective merits.   Therefore, the High Court will prepare a panel  of 10 recommendees for appointment to first 10 vacancies in the serial  order of their ranking as per merit and suitability. This  is the Constitutional mandate of that Article.  Now if it  is  visualised  that  the   State  Legislature,  by   an independent  enactment, as in the present case, requires the High  Court  to  treat only the first five vacancies  to  be filled in by direct recruitment from general category in the order of merit and the remaining five vacancies are required to  be  filled in from reserved category of candidates  only and  even if those reserved five vacancies can be filled  in by  appointing  reserved category of candidates as  per  the order  of  their  inter se merit, even then  the  thrust  of Section  4,  to  that extent, will certainly cut  across  or restrict  the  power  and  authority of the  High  Court  to recommend  appointments to all the ten vacancies of suitable meritorious  candidates as found by it.  The result would be that  first  five  vacancies  may  go  to  the  first   five candidates  recommended in the panel according to merit  but so  far as the vacancy nos.6 to 10 are concerned even though the  6th  direct  recruit recommended by the High  Court  is

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obviously  more meritorious than the candidate listed in the panel  at  serial  no.7, he may have to be bypassed  if  the candidate  at  serial no.6 in the panel belongs  to  general category while candidate no.7 belongs to SC category namely, reserved  category.  The net result would be that though the High Court, in exercise of its Constitutional obligation and authority,  recommends the 6th vacancy in the District Judge cadre to be filled up by candidate no.6 listed in the panel, by  thrust of impugned Section 4 of the Act, the 6th vacancy can  be  filled in by the Governor by  appointing  candidate no.7  who is less meritorious as compared to candidate  no.6 and  who  is  not recommended by the High  Court  for  being appointed  in  vacancy no.6.  Thus, he will be  bypassed  by candidate no.7 who may belong to the SC category and who may be  standing higher in so far as inter se merit between  the SC  candidates only are concerned.  Supposing at serial no.9 there is another SC candidate then vis-.-vis candidate nos.7 and  9,  who both belong to SC category, this  6th  vacancy, because  of  the  thrust of Section 4 can be  filled  up  by candidate no.7.  The submission of Shri Dwivedi that between two  SC  candidates  or  candidates belonging  to  the  same reserved  category  it  will be open to the  High  Court  to recommend  appointment of more meritorious reserved category candidate  as compared to the candidate of the same category who  is less meritorious and this exercise would satisfy the requirement  of  Article 233 sub-article (2) only gives  lip service  to that Article.  The reason is obvious.  The  High Courts  power  and  in fact  Constitutional  obligation  to recommend  meritorious  candidates found suitable by it  for filling  up of all vacant posts will obviously get truncated and  restricted  and the High Court though not  recommending candidate  No.7 as suitable candidate for filling up vacancy no.6, will be helpless by not being permitted appointment of candidate  no.6  who belongs to general category  to  occupy that  post  and will have willy-nilly to suffer against  its own  decision  regarding appointment of candidate  no.7  who belongs  to SC category for filling up vacancy no.6 and this exercise  will  be thrust upon the High Court without  being consulted  in  this connection by the State  Legislature  by enacting   the   impugned  Section  4  of  the  Act.    This appointment obviously will be null and void and violative of Article 233 (2).  This type of bypassing the High Court will clearly  be  an  act of interference  with  independence  of judiciary  which  is  the  hallmark   and  bedrock  of   the Constitutional  scheme.  Section 4, therefore, has got to be held  not to be operative on the forbidden field occupied by Articles  233 and 234 of the Constitution of India.  This is obviously  a  type of reservation which is thrust  upon  the High  Court  by  Section  4.  It cannot  be  treated  to  be referable  to a stage anterior to the process of recruitment and  appointment.  In fact, as seen above, Section 4  itself deals  with  the  reservation   for  direct  recruitment  on available  posts.   Therefore, in the field  of  recruitment itself  Section 4 seeks to have its independent sway.   Both Article  233  and Article 234 also deal with the  very  same question   of  recruitment  and   appointment  to   District Judiciary.   It  is  this  very field  wholly  reserved  for operation of Articles 233 and 234 that is encroached upon by Section  4,  by its express language, if made applicable  to judicial  appointments.  As seen earlier, consultation  with the  High Court is a sine qua non in connection with  direct recruitment  of  judicial officers at grass-root level  i.e. Munsiffs  and Magistrates and whose recruitment is  governed by  the rules framed under Article 234 being the 1955 Rules. Similarly,  recruitment  at  district   level  judiciary  is

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governed  by  1951 Rules framed under Article 233 read  with Article  309 of the Constitution of India.  However,  direct recruitment  as  District Judges has to be solely  based  on appropriate  recommendations  of suitable candidates by  the High  Court.   In  fact Rule 3 thereof,  provides  that  the strength of the Service and the number and character of the posts shall be as specified in the schedule to these rules, and  once we turn to the Schedule to the 1951 Rules, we find listed  five  cadres of superior judiciary at  the  district level  and the total posts sanctioned being 26.   Obviously, this  rule  has  a direct nexus with Article 309  read  with Article  233.  But beyond that when the question of  filling up  of vacancies in the cadres of higher District  Judiciary on the already sanctioned posts crops up, the field is fully occupied  by Article 233 sub-articles (1) and (2) and  there is no other power with any other Constitutional authority to effect  such recruitment on available vacancies.  It is  not possible  to  visualise  that, while  providing  for  direct recruitment  to  District  Judiciary  as  per  Article   233 sub-article  (2),  even  though   the  minimum   eligibility qualification laid down under the said provision is that the candidate  should  have  been practising for not  less  than seven  years  as  an  advocate or  a  pleader,  any  further eligibility as belonging to a reserved category is envisaged for a given post.  Consequently, it is not possible to agree with  the contention of learned counsel Shri Dwivedi for the appellant-State that question of recruitment to the cadre of District  Judges  by directing the High Court  to  recommend eligible candidates for appointment keeping in view only 50% of  the  available  vacancies  to be filled  in  by  general category  and by treating the remaining 50% of the vacancies as  reserved  would  be  a stage anterior to  the  stage  of recruitment  or  appointment to such available vacancies  on the  already  sanctioned  posts  in the  cadre  of  District Judiciary.   At this stage we may also refer to the decision of  a  Constitution Bench of this Court in B.S.Yadavs  case (supra) wherein Chandrachud, CJ had an occasion to interpret Article  235  read with Article 309 proviso.   The  question which  arose for consideration in that case was whether  the rule  of seniority of existing members of Superior  Judicial Services as framed by the Governor in exercise of his powers under  Article 309 proviso could validly operate to regulate the  seniority  of  such  already  recruited  and  appointed judicial  officers  in Subordinate Judiciary.  In  order  to avoid  the  operation  of the said rule which was  having  a direct nexus with conditions of service of already appointed judicial  officers,  a  contention  was  raised  that  under Article  235 even this subject matter was part and parcel of the  control  of Subordinate Judiciary vesting in  the  High Court under that article.  While negativing this contention, the  Constitution  Bench, speaking through Chandrachud,  CJ, placed  reliance  on  the  second part of  Article  235  and observed  as  under :  The power of control vested  in  the High  Court by Art.235 is expressly made subject to the  law which  the  State  Legislature may pass for  regulating  the recruitment  and service conditions of judicial officers  of the  State.  The framers of the Constitution did not  regard the  power of the State Legislature to pass laws  regulating the  recruitment  and  conditions  of  service  of  judicial officers  as  an  infringement of the  independence  of  the judiciary.   The  mere  powers  to pass such a  law  is  not violative  of the control vested in the High Court over  the State judiciary.

     Placing  strong reliance on the aforesaid observations

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it  was  contended  by  learned   senior  counsel  for   the appellant-State  that  it has been authoritatively ruled  by the Constitution Bench of this Court that the framers of the Constitution  did  not  regard  the   power  of  the   State Legislature  to  pass  laws regulating the  recruitment  and conditions   of   service  of   judicial  officers   as   an infringement  of the independence of the judiciary.  Now  it must be kept in view that these observations are made in the light  of  second part of Article 235 which expressly  saves laws  regulating  the  conditions  of  service  of   already recruited  judicial  officers and who are functioning  under the  control of the High Court under Article 235.  Once  the very same Article permits the limited field for operation of law-makers  or rule-makers under Article 309 for  regulating the  conditions  of  services  of  such  already   appointed judicial  officers  by  way  of  enacting  any   appropriate statutory  provision either by exercise of rule making power of  the Governor under Article 309 proviso or by appropriate legislation  under the said Article, it cannot be said  that these observations have laid down even impliedly, that while recruiting  judicial  officers  either at  grass-root  level under Article 234 or at district level under Article 233 any legislation  can  be enacted by the Legislature or that  the Governor  by  independent exercise of his rule making  power can  make  such a provision.  This question  of  controlling recruitment  and  appointment at the entry point  either  at grass-root level i.e.  level no.1 or at the apex level being level  no.3 in the pyramid of District Judiciary never arose for  consideration  of the Constitution bench and hence  the aforesaid  observations  cannot  be  considered  to  be  the decision  rendered  by the Court on this moot point.  It  is also  easy to visualise that while considering the scope  of play  of  Article 309 vis-.-vis second part of  Article  235 which  carves  out  a  permissible field by  the  very  same Article  for law to be made for regulating other permissible conditions  of  service  the  term  recruitment  has  been employed  almost by way of mere reference to the language of Article  309  and  nothing more.  If it is  held  that  even impliedly  the aforesaid decision of the Constitution  Bench has taken the view that the appropriate authority, i.e.  the Governor,  in  exercise of his delegated legislative  powers under the Proviso to Article 309 or any State Legislature in exercise  of  its  paramount power under Article  309  first part,  can  control the recruitment of judicial officers  at district  level  or  at the level of  Subordinate  Judiciary bypassing the High Court, then such an implied thrust of the said  observations  must  be held to be totally  obiter  and uncalled  for.   Consequently,  the  aforesaid  decision  in B.S.Yadavs  case  (supra) must be confined to the facts  of that  case  laying down the limited ratio that for  deciding the rule of seniority of already appointed judicial officers in  District Judiciary or Subordinate Judiciary, appropriate law  or  rules  can  be  framed under  Article  309  by  the concerned  authority  as  permissible under second  part  of Article 235.  That is the only ratio of that decision and it cannot  travel  any  further.  However, leaving  aside  that question,  it  can easily be visualised that  the  aforesaid observations   in  the  Constitution   Bench   judgment   in B.S.Yadavs case (supra) may, in general sense, refer to the concept  of  recruitment  as laid down  by  proviso  under Article  309 in view of the settled legal position that,  in exercise  of  their  powers  under  the  said  Article,  the concerned   authorities  can  form   cadres  of  service  in Subordinate  Judiciary and can also create sanctioned  posts in these cadres.  The said exercise of creation of posts may

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also  get  covered by the concept of recruitment.   It  is only  in this broad sense that the term recruitment can be said to have been mentioned by the Constitution Bench in the aforesaid  observations  but they can certainly not  go  any further  nor can be treated to have ruled anything  contrary to  the express scheme of Articles 233 and 234.  This is the additional  reason  why the aforesaid  general  observations have  to  be  confined  to the limited scope  and  ambit  of Article  309, as indicated therein.  For all these  reasons, therefore,  the decision in B.S.Yadavs case (supra)  cannot be  of  any  real  assistance to  learned  counsel  for  the appellant-State.   We  may  now briefly deal with  the  main contentions  canvassed  by  learned senior counsel  for  the appellant-State in support of their appeals.  We shall first deal  with  the contentions canvassed by Dr.Dhavan  for  the appellant-State.   The  interpretation sought to be  put  on Article  309 by Dr.Dhavan, as we have already seen  earlier, is  not  capable  of having wider coverage so as  to  engulf recruitment to judicial offices on district cadre as well as on  those  below  the district  cadre.   The  Constitutional scheme  examined  and  seen  earlier  contra-indicates  this contention.   So  far as Dr.Dhavans submission that  second part  of  Article 235, despite the full control of  District Judiciary  being vested in the High Court permits  enactment of  suitable provisions under Article 309 also, cannot be of any  real  assistance.  As we have already seen  above,  the second  part  of Article 235 deals with the topic  of  other conditions  of  service including the right of appeal  which might  be  guaranteed  to judicial officers  by  appropriate legislation  enacted by the authorities acting under Article 309  but that is an operation on the limited field permitted by  the  second part of Article 235 at second level  of  the pyramid   of  Subordinate  Judiciary   and   nothing   more. Dr.Dhavan  was right when he contended that on the scheme of Articles  233 to 235 it is not as if other legislation is  a total  taboo.  However, the said submission ignores the fact that  it  is the limited field earmarked by second  part  of Article  235 regarding permissible regulation of  conditions of  service  that is reserved for operation of  Article  309 through  its appropriate authorities.  But, save and  except this  limited  aspect  which is permitted, the rest  of  the control  totally  vests in the High Court under Article  235 first  part.   What  is permitted by Article 235  cannot  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 Judiciary  and the Subordinate Judiciary under Articles  233 and  234 of the Constitution of India.  These twin  Articles conspicuously  do not envisage even the limited  independent field  for  operation  of  Article 309 as  is  permitted  by Article  235 second part.  That shows the clear intention of the  Constitutional  makers  that  so  far  as  question  of recruitment  and  appointment to available vacancies in  the cadre  of  District  Judges and Judges  of  the  Subordinate Judiciary  is  concerned,  neither the Legislature  nor  the Governor,  dehors any consultation with the High Court,  can have any independent say.  We may now deal with the supposed anomalies that may result if the interpretation canvassed by the  respondent High Court is accepted.  Dr.Dhavan contended that, if power of the State Legislature to enact appropriate provisions  for  appointment  of   members  of   Subordinate Judiciary  is  excluded by Article 234, and to  that  extent Article  309  is  also to be out of  picture,  then  various anomalous  situations may arise.  He firstly, submitted that

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judicial  service  as defined by Article 236(b)  will  get truncated  in  its operation.  It is not possible  to  agree with  this  contention  for  the   simple  reason  that  the definition  of judicial service only earmarks the  Members of that Service.  How their appointment is to be made has to be  gathered from Articles 233 and 234.  If they exclude any statutory  interference  by  the   State  Legislature   such interference would remain excluded by the sweep of these two Articles  themselves.   The  second anomaly pointed  out  by Dr.Dhavan  is  that  power to legislate must be  given  full effect  unless there is express exclusion.  Even this cannot be  said to be an anomaly for the simple reason that Article 309  itself is subject to the opening part of the clause and has  to give way if other Articles of the Constitution cover the  field.  The complete Code projected by Articles 233 and 234  would  itself be an exclusion of the legislative  power and  equally the Governors independent power under  Article 309  qua  that field.  Even that apart, Article 245  dealing with  the  legislative  powers of Parliament and  the  State Legislatures  in terms makes the said provisions subject  to other  provisions  of the Constitution.  Therefore,  on  the same  analogy  by  which Article  309  cannot  independently operate  qua the exclusive field carved out by Articles  233 and 234, the legislative powers of Parliament as well as the State Legislature would also get excluded.  The next anomaly pointed  out  by Dr.Dhavan was that under the  Constitution, the  scheme  of separation of powers is devised to  separate the  Executive from the Judiciary and that this scheme  does not  extend  to oust the legislative power.  If it  is  held that  Article  234  ousts the legislative power  for  making suitable  enactment on the topic covered by it, then to that extent,  it is contended, an anomalous situation would arise not  contemplated  by  the  Constitutional  scheme.   It  is difficult  to appreciate this contention.  As per Article 50 of the Constitution of India, judicial functioning has to be treated  to  be separate from that of the executive  and  to fructify the said Constitutional scheme, Article 309 is made subject  to  other  relevant Articles  of  the  Constitution including  Articles 233 and 234.  Thus Articles 233 and  234 have  their  full  sway not being inhibited by  any  outside independent  interference  to be made by the Governor  under proviso  to Article 309 or by the State Legislature in  that connection.   Dr.Dhavan  next contended that on the  express language  of Article 233, only the rule making power of  the Governor  is  fettered but not the legislative power of  the State.   This submission is mis-conceived as the legislative power  is co-terminus with the Governors rule making power. For  regulating  the  conditions of Service  of  Members  of public  service  as found in Article 309, as the proviso  to Article  309 itself shows, what the legislature can enact in connection  with the topic mentioned therein can be done  by the  Governor  in  exercise of his rule making  power  as  a stop-gap  arrangement till the very same field is covered by the  statutory  enactment.  Thus the earmarked field is  the same,  namely,  conditions of Service of employees of  State Public  Service.  Employees of a Public Service are a  genus of  which Members of Judicial Service are a species.  So far as  the  appointment to Judicial Service is  concerned,  the said  topic is carved out from the general sweep of  Article 309  on account of the words in its opening part, read  with Articles  233 and 234.  The Governors rule making power  in this  connection is separately dealt with under Article  234 and  it is the procedure laid down therein which will govern the  said rule making power of the Governor and cannot  draw any  sustenance  independently from Article 309  which  gets

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excluded  in  its  own terms so far as Members  of  Judicial Service  are  concerned.   A limited play available  to  the Legislature  to deal with unexcepted and open categories  of conditions  of  Service  of judicial officers  as  found  in Second  Part  of  Article  235, therefore,  cannot  be  read backwards  to  govern  even  by implication  the  method  of appointment  of Members of Subordinate Judiciary even at the grass-root level.  For that purpose, Article 234 is the only repository   of  the  power   available  to  the   concerned Constitutional  authority  which has to follow the gamut  of the procedure laid down therein.  Dr.Dhavan tried to salvage the  situation by submitting that if this view is taken, the greatest  anomaly  that would arise is that there  would  be total ouster of legislative interference as per Article 234. There   will  be  definite   permissible   interference   of legislative  power  on  topics mentioned in second  part  of Article  235.   While  so far as  appointments  of  District Judges  under Article 233 are concerned, there is no express ouster  of legislative interference at all.  He,  therefore, submitted  that a totally anomalous situation would  emerge, as  at the grass-root level i.e.  lowest rung of  regulating the  recruitment and appointment of Judiciary, there will be total  exclusion  of legislative interference while  at  the apex  level  i.e.   at the district level there will  be  no ouster  of legislative interference.  Even this argument  of despair cannot be countenanced for the simple reason that on the  topic of appointment of direct recruits to the District Judiciary  at  the  district  court level  or  even  at  the grass-root  level  of  Munsiffs   and  Civil   Judges-junior division  or senior division, as the case may be, both under Article 234 as well as under Article 233 interference by the State  Legislature is totally excluded.  If appointments  at the  grass-root  level in Subordinate Judiciary is taken  as base  level no.1 in the pyramid of Subordinate Judiciary, as indicated  earlier, then the express language of Article 234 lays down a complete procedure which cannot be tinkered with by  any outside agency like the legislature.  For regulating the  service  conditions  of   already  appointed   judicial officers  which will be treated as level no.2, to the extent to  which the conditions of service can be regulated by  law as  laid down by second part of Articles 235 a limited field is  kept  open for legislative play.  It is only because  of the  permissible  field indicated by the very  same  Article that  the  Governor  under  Article 309 or  even  the  State Legislature  can  be  permitted to operate  in  that  field. While  at  the  apex  level of the  pyramid  of  Subordinate Judiciary,  which  is  level no.3, for  recruiting  District Judges a complete Code is furnished by Article 233 excluding outside interference, as indicated earlier.  Thus 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 Legislatures interference is contemplated or countenanced.  On the contrary, it is contra-indicated by necessary implication.  Thus, neither at the first level nor at  the  third  level,  both dealing with  entry  points  to Subordinate Judiciary, the State Legislature has any say and at  the  second  level it has a limited say  to  the  extent permitted by the very same Article 235 second part and which does  not  pertain  to recruitment or appointments  at  all. Thus,   it  cannot  mean  that   because  of  this   limited independent   play  at  the  joint   is  available  to   the authorities  functioning  under  Article 309 at  the  second level  to  frame  rules  or  legislation  for   permissively regulating  the conditions of service of the members of  the

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judiciary  who have already entered the Judicial Service  at the  grass-root  level, or even at the district  level,  any anomalous  situation  emerges.  Dr.Dhavan then  invited  our attention  to the observations of a nine-Judge  Constitution Bench  judgment of this Court in Indra Sawhney & Ors.   case (supra), para 694 at page 662, para 738 at page 689 and para 788  at page 720, for submitting that Article 16 sub-article (4)  enables the State authorities to direct reservation  in Services  under the State.  This Constitutional power,  once exercised,  cannot  be  sought  to  be  circOBumscribed   or curtailed  by  non-compliance with the procedure of  Article 234  or  for that matter Article 233.  This argument of  his cannot  be  countenanced.  It is obvious that for  utilising the   enabling   power  under   Article  16(4),  the   State Legislature  cannot  enter the forbidden field and  conflict with  substantive provisions of Article 233 or first part of Article  235.  Meaning thereby, neither can it lay down  new criterion  of  eligibility  contrary to sub-article  (2)  of Article  233  for appointment to the District Judiciary  nor can  it  affect the control of the High Court in  connection with  District  Judiciary as vested in the High Court  under first part of Article 235.  If at all any reservation policy under Article 16(4) is to be pursued, it has to be exercised in  consonance  with the scheme of Articles 233 and 234  and not  dehors  it.  Dr.Dhavan fairly conceded that neither  in the  Rules of 1951 regarding appointments to district  cadre as  per  Article  233  nor  under  the  Rules  of  1955  for appointments  in the cadre of Subordinate Judiciary as  laid down  by  Article  234,  there  is  any  provision  for  50% reservation  of  posts.  As already noted  earlier,  Article 16(4)  is an enabling provision and it enables the competent authority  which  is entrusted with the task of  recruitment and  appointment  to  any  service  including  the  Judicial Service  to  exercise  this enabling power and  provide  for appropriate  reservation.   In  fact  there  is  no  dispute between  the  parties  in these proceedings  that  with  the consent  of the High Court of Patna, 14% reservation for  SC and  10%  reservation  for  STs   is  already  accepted   as permissible  reservation  for  direct   recruitment  at  the grass-root  level  and Rule 20 of the Rules of 1955  clearly points  to such reservation, percentage of which has already been  agreed  to between the High Court on the one hand  and the  Government  on  the other.  That would be  perfectly  a permissible  exercise under Article 16(4) read with  Article 234.   But beyond that unless the rules are properly amended by following the procedure of Articles 233 and 234 read with Article 309 after consulting the High Court, the Governor on his  own cannot provide for any more reservation.  Nor  can, by a legislative Act, an independent provision under Article 16(4)  totally bypassing the High Court be resorted to.   As already  seen  earlier,  Article 16(4) has to be  read  with Article  335 and maintenance of efficiency of administration in the making of appointments to Services and posts would be a  sine qua non before considering the claim for reservation of SC and STs which would also include the OBCs as laid down by  a  Constitution  Bench judgment of this Court  in  Indra Sawhneys  case  (supra), (2000) 1 SCC 168 = JT 1999 (9)  SC 557.   If  Article 16(4) has to be read with Article 335  as already  ruled  by the Constitution Bench judgment  of  this Court,  the same authority which can have the pulse and full control  of administration pertaining to concerned  services having  sufficient  expertise  can avail  of  the  aforesaid Article  16(4)  keeping in view the mandate of Article  335. In  case  of  Subordinate Judicial  Services  comprising  of district  courts  and courts subordinate thereto,  the  full

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control  vests in the High Court under Article 235 which can control  the promotions and postings of such members of  the Judiciary.   It  is  the  High Court which  will  have  full knowledge  and  expertise  for   deciding  the  question  of adequacy of representation by way of reservation in Judicial Service.   Therefore,  it is the High Court only  which  can give  green signal regarding the extent of such reservations 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 have 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.  We fail to appreciate how the State Legislature by enacting Section 4 of the Act, can decide for itself  that  50%  reservation  is required to  be  made  in appointments   to   District   and   Subordinate   Judiciary consistent  with  the maintenance of efficiency of  judicial administration which is under full control of the High Court as  per  Article 235.  As it cannot of its own be  alive  to this vital aspect lacking requisite knowledge and expertise, any  scheme  of reservation framed by the legislature  under Article  16(4)  dehors  Article  335   so  far  as  judicial appointments  are concerned, must necessarily fall  through. The  authority giving green signal as per Article 16(4) read with  Article  335 can be only the High Court.  It  will  be totally  out of picture so far as enactment of such straight jacket  reservation  provisions  dehors   the  High  Courts consultation  goes.   In this view of the matter, the  broad submission  of Dr.Dhavan that reservation in fulfillment  of right  to  equality of opportunity under Article 16(1)  read with  Article 16(4) can be resorted to without reference  to the  High  Court and therefore, the impugned Act  cannot  be found  fault  with, cannot be accepted.  Reliance placed  by Dr.Dhavan to the decision of this Court in Durgacharan Misra vs.   State  of Orissa & Ors., (1987) 4 SCC 646, wherein  at para  15 a two Judge Bench observed that Rules under Article 234  are  framed  by the Governor, in exercise of  his  rule making  power under Article 309, cannot be of any assistance to  him.  Even if the rules contemplated by Article 234  are framed by the Governor under Article 309 proviso, that power is  clearly fettered and regulated by Article 234 as well as Article  233  wherein consultation of the High Court in  one case  and  total  clearance  by the High  Court  by  way  of recommendation  of the appointees in the other case,  cannot be  given a go by.  Turning to the contentions canvassed  by Shri  Dwivedi in support of the companion appeal, it may  be stated  that  he adopted the arguments of Dr.Dhavan  but  he further  contended  that under Article 234, the rule  making power  of the Governor is hedged in by consultation with the High Court and the Public Service Commission.  So far as the Public  Service Commission is concerned, as per Article  320 sub-article  (4),  it  is not required to  be  consulted  in respect  of the manner in which any provision referred to in clause  (4)  of  Article 16 may be made or as  respects  the manner  in  which effect may be given to the  provisions  of Article  335.   Shri  Dwivedi,   therefore,  submitted  that consultation with the Public Service Commission cannot be in connection  with  Article  16(4)  and  if  that  is  so,  by necessary  implication,  consultation  with the  High  Court under  Article 234 can also be treated to be standing at par and  consequently the decision on any policy of  reservation as   per  Article  16(4)  need   not  get  covered  by   any consultation  with  the  High  Court.  It  is  difficult  to appreciate  this contention.  The Public Service  Commission is  merely  an examining body which examines the  candidates

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for  seeking appointments to the advertised posts.  It  has, therefore,  nothing to do with the policy decision of laying down  of  reservation  in appointments to the  posts.   That policy  has  to  be resorted to under Article 16(4)  by  the authority  calling  upon  the Public Service  Commission  to proceed   with  the  procedure  of  selection  of   suitable candidates  for  filling up advertised posts subject to  the conditions  laid  down in the advertisement.  That  type  of consultation  naturally  would  not stand at  par  with  the consultation with the High Court as laid down by Article 234 of the Constitution.  As seen earlier, consultation with the High  Court  as envisaged by Article 234 is for  fructifying the Constitutional mandate of preserving the independence of Judiciary, which is its basic structure.  The Public Service Commission  has  no  such Constitutional  imperative  to  be fulfilled.   The scope of examining bodys consultation  can never  be  equated  with  that   of  consultation  with  the appointing  body  whose  agent is the former.   It  is  also pertinent  to  note that the essence of consultation is  the communication  of a genuine invitation to give advice and  a genuine  consideration of that advice which in turn  depends on  sufficient information and time being given to the party concerned  to  enable  it to tender useful  advice.   It  is difficult  to  appreciate how the Governor while  consulting the  Public Service Commission before promulgating the Rules of Recruitment under Article 234 has to solicit similar type of  advice  as he would solicit from the High Court  on  due consultation.    The   advice  which  in  the   process   of consultation   can  be  tendered  by  the   Public   Service Commission  will  confine  itself   to  the   Constitutional requirements  of  Article 320.  They are entirely  different from  the nature of consultation and advice to be  solicited from  the  High  Court  which is having  full  control  over Subordinate  Judiciary under Article 235 of the Constitution and  is  directly concerned with the drafting  of  efficient judicial  appointments so that appropriate material will  be available to it through the process of selection both at the grass-root  level  and  at the apex level  of  the  District Judiciary.   Consultation,  keeping in view the role of  the High  Court under Article 234 read with Article 235,  stands on  an  entirely  different  footing   as  compared  to  the consultation with the Public Service Commission which has to discharge  its  functions  of  entirely  different  type  as envisaged  by  Article 320 of the Constitution.   Naturally, therefore,  consultation  with  the High Court will  have  a direct linkage with the policy decision as to how many posts should  be  advertised, what are the felt needs of  District Judiciary and whether there can be any reservation which can be  permitted  to  be engrafted in the Rules framed  by  the Governor  consistent  with the maintenance of efficiency  of judicial  administration in the State.  It is also pertinent to   note  that  there  is   no  express  fetter   regarding consultation  with the High Court excluding Article 16(4) as we  find  in Article 320 (4) in connection with  the  Public Service  Commissions consultation.  This very departure and absence  of such exclusion of the High Courts  consultation indicate  the  intention of the Constitutional  makers  that policy  decision as per Article 16(4) has 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 grass-root   level.   Submission  of   Shri   Dwivedi   that legislative  power stands independently and dehors  Articles 235  and 234 cannot be countenanced for the detailed reasons given  by  us while rejecting the contentions of  Dr.Dhavan.

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Shri  Dwivedis  effort to draw sustenance for his  argument from  the  observations  of  the   learned  Judges  of   the Constitution  Bench in Indra Sawhneys case (supra)  namely, Justice  Pandians observations at para 243, Justice  Sawant at  para  555  and Justice Kuldip Singh in  para  383,  also cannot  be of any avail to him.  The question of reservation of  posts in a cadre cannot be equated with the question  of creation  of  posts in a cadre.  After the posts in a  cadre are  created how many thereof can be filled in from  general category  and  how many from reserved  category  candidates, will  remain  a policy decision which has to  be  undertaken under  Article  16(4) read with Article 335 and only by  the competent  authority namely, the High Court in dialogue with the  Governor so far as Judicial Service is concerned, as we have  seen  earlier.  The observations of learned Judges  in the  aforesaid  Indra  Sawhneys   case  (supra)  therefore, regarding the scope and ambit of Article 16(4) in general in connection  with  those  services wherein  such  reservation would  be  effected by the competent authorities  themselves without  consultation  with  other agencies  like  the  High Court,  cannot  be of any avail to Shri Dwivedi for  culling out the competence of the authority concerned to impose such reservation  in  connection with Judicial  Services  without consulting  the  High  Court.  Reliance  placed  by  learned counsel  for the appellant-State on various rules framed  by Governors  of other States in consultation with High  Courts like  the Uttar Pradesh Governor also cannot be of any avail as  those rules are framed by the Governors in  consultation with  the  High  Courts  after following  the  procedure  of Articles  234 or for that matter Article 233.  Decisions  of this  Court  relied on by Shri Dwivedi for showing that  the Governor  can create cadres and also can lay down provisions for  regulating the conditions of Service as provided  under Article  235  second part also are besides the  point.   The effort  made  by learned counsel for the appellant-State  to show  that Judicial Service also represents a part of  State Service  and it is the State within the meaning of Article 12 amenable to writ jurisdiction under Article 226 so far as the  administrative  decisions  taken  by  the  courts   are concerned  also cannot solve the problem which is posed  for our  consideration.   The High Court may be  an  authority within  the  meaning  of   Article  12,  its  administrative decisions  may  be  subject  to  its  writ  jurisdiction  on judicial  side  but that does not mean that  for  recruiting judicial  officers for manning Judicial Services, the say of the  High  Court  can  be   totally  bypassed  by   enacting provisions  like  the impugned Act by the State  Legislature which,  while  enacting  this statute, was not  expected  to consult  any one else including the High Court.  Of  course, Shri  Dwivedi  was  right when he contended  that  in  Civil Appeal  No.9072  of 1996 there was no occasion for the  High Court to treat the policy reflected by the stand of the High Court  regarding giving preference in appointments to SC and ST  candidates  if  they  are of equal  merit  with  general category  candidates as the only reasonable one.  It is true that  this exercise was not required to be undertaken by the High Court which was concerned with the short question as to whether  the impugned Act, especially Section 4 thereof, can be permitted to operate of its own so far as the recruitment to  District  Judiciary was concerned.  To that extent,  the aforesaid  reasoning  of  the  High Court  in  the  impugned judgment cannot be sustained as being redundant and uncalled for.  We may now briefly refer to the written submissions on behalf  of the appellant-State submitted by Shri Dwivedi  on 20th  January, 2000.  As we have already discussed  earlier,

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it  is not possible for us to agree with the contention that reservation  of  posts  does not truncate the  High  Courts power  of  making appointments on available  vacancies.   In cases  where  reservations are made after consultation  with the High Court, the situation stands entirely on a different footing as the High Court itself agrees with the rule making authority under Article 234 or for that matter under Article 233  to recommend reserved category candidates on  earmarked vacancies  in the already created posts in a cadre.  But the question  is as to whether bypassing the High Court such  an exercise  can  be undertaken by the State Legislature or  by the  Governor  under Article 309.  As seen earlier, such  an exercise  is not countenanced by the relevant Constitutional scheme.   It  is  also  not   possible  to  agree  with  the contention  that in the absence of express exclusion of  any law  made by the Legislature, the legislative power  remains untouched by Articles 233 and 234.  On the contrary, as seen earlier, because of the opening words of Article 309 as well as Article 245 what is provided by Articles 233 and 234 is a complete  Code, which cannot be touched independently of the High  Courts  consultation either by the Legislature or  by the   rule  making  authority.    Reliance  placed  on   the observations  in  paras 16 & 17 in the case of  M.M.Gupta  & Ors.  etc.  vs.  State of Jammu & Kashmir & Ors., (supra) to the  effect  that appointing authority is the Governor  also cannot  advance  the  case of Shri Dwivedi  for  the  simple reason  that  under the scheme of Articles 234 and 233  once effective consultation is made with the High Court and rules are framed as per Article 234 and selections are made as per these  rules or when the High Court recommends  appointments under  Article 233, the selection process is over, only  the ministerial work of issuing actual appointment orders may be carried  out  by the Governor.  But that would not,  in  any case,  interfere with the independence of Judiciary and  the power  of  the  High  Court.  The Governor,  acting  as  per Article  234  while framing rules in consultation  with  the High  Court and the Public Service Commission and also while acting on the recommendation of the High Court under Article 233,  only  performs  the  ultimate act  of  issuing  actual appointment orders to the selectees but these selectees have undergone  the process of filtering by the High Court as per Article  233(2) or in cases governed by Article 234, as  per the  procedure  laid  down in the rules  framed  under  that Article,  after consultation with the High Court.  It is not as  if  the  Council  of Ministers or  the  Legislature  has anything  independently  to  say  to the  Governor  in  this connection  bypassing the High Court.  Reference to the case in  Samsher  Singh etc.  vs.  State of Punjab & Anr.   etc., AIR   1974  SC  2192,   about  Cabinets  responsibility  to Legislature  is totally besides the point while  considering the  moot  question  with  which we are  concerned.   It  is difficult to appreciate on the scheme of Articles 233 to 235 the  contention  of Shri Dwivedi that recruitment  procedure could  be  laid down either by the Legislative enactment  or rules under Article 309 without having consultation with the High  Court.   Further  contention  of  Shri  Dwivedi   that Parliamentary  system of governance is also a basic  feature of  the  Constitution also cannot advance his case  for  the simple  reason that Article 235 itself read with Article 309 furnishes  restraints  on  the legislative power so  far  as topics  of recruitment and appointment to District Judiciary and Subordinate Judiciary are concerned being covered by the complete code of Articles 233 and 235, as seen earlier.  The dichotomy  sought  to  be suggested between the  process  of selection  for  recruitment to advertised posts on  the  one

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hand  and  reservation of posts in a cadre on the  other  by Shri  Dwivedi  is not a real one.  As already seen  earlier, recruitment  and  appointments  have to be done  to  already created  posts  in  the  cadre and  once  the  procedure  of creation  of  posts is over, the further question as to  how these  posts  are to be filled in and from which  source  or category  of candidates, will entirely depend upon the rules framed  by the Governor in consultation with the High Court, so  far  as  Article  234 is concerned and  will  wholly  be subject  to  the  recommendations of the  High  Court  under Article  233.   The  submission of Shri Dwivedi  that  cadre formation  is in the exclusive domain of the government  and forms part of constitution of State Judicial Service, cannot have any impact on the moot question as to how created posts in a given cadre can be filled in and from which category of candidates.   That  remains  essentially in  the  domain  of recruitment and appointment to already existing, created and sanctioned  posts  in  a given cadre.   Reliance  placed  on Articles  37, 38 and 46 read with Article 16(4) cannot  have any  impact  on the decision of the question posed  for  our consideration.   Reliance  placed  by Shri  Dwivedi  on  the decisions  of  this Court in Indra Sawhneys  case  (supra), Dr.Preeti  Srivastava  & Anr.  etc.  vs.  State of  M.P.   & Ors.etc.,  (1999)  7  SCC 120 and in Durgacharan  Misra  vs. State  of  Orissa  &  Ors.  (supra) also cannot  be  of  any effective  help for resolving the question with which we are concerned.   The  general scheme of reservation and to  what extent  it can be applied to a given service directly  under the  control of the State without any reference to  Judicial Service,  as discussed in the first two cases, can be of  no avail   to   Shri   Dwivedi.   So   far  as  the   case   of Smt.A.Lakshmikutty   (supra)  is   concerned,  the  relevant observations  in the concerned paragraphs do not support the submissions   put   forward   by   Shri  Dwivedi   for   the appellant-State.   Even if Judicial Service is also a  State Public Service and hence a Service under the State as laid down  therein  so as to attract Articles 12 and 226  of  the Constitution,  the question which remains for  consideration is  as to whether the scheme of recruitment and  appointment to   the  Subordinate  Judiciary  as   laid  down   by   the Constitution itself can be encroached upon, whittled down or cut  across  by  any  enactment  or  rule  dehors  the  said Constitutional   scheme.     Smt.A.Lakshmikuttys   judgment (supra)  had  not  to consider that question.   Even  though judicial  officer in the Judicial Service of the State would be  an  officer  under  the State  and  according  to  which principle, to a limited extent, the conditions of service of said  judicial officer can be laid down by the State or  the Governor  under Article 309 independently of the High  Court as  per  the second part of Article 235, so far as  Articles 233  and  234  are concerned as already seen  earlier,  they stand entirely on a different footing and do not countenance any  independent  encroachment on the field covered  by  the said  provisions bypassing the High Court.  There cannot  be any  dispute  that laying down of pay-scales as one  of  the conditions  of Service under the second part of Article  235 is not within the expression of control which is vested in the  High  Court  as laid down  in  Smt.Lakshmikuttys  case (supra).   But it is difficult to appreciate how reservation can  be  treated  on  par with laying down  of  pay  scales. Making  available pay-scales to the members of the  Judicial Service will have a direct impact on the State exchequer and Consolidated Fund of State in case of District Judiciary but that  does  not mean that the recruitment to  such  judicial posts  also  can  be  controlled by the  State,  dehors  the

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requirements  of  Articles  233 and 234.  The  next  written submission of Shri Dwivedi placing reliance on a judgment of this Court in the Belsund Sugar Co.  Ltd.  vs.  The State of Bihar  & Ors.etc., JT 1999 (5) SC 422, that reservations are a  special  topic and, therefore, the general expression  of appointments  would  not  embrace,   the  same  cannot  be accepted  for the simple reason that once posts are  created and  sanctioned  in  a  cadre, to the extent  to  which  any independent  order or direction under Article 309 or Article 16(4)   encroaches  upon  the   field  of  recruitment   and appointment  to  such  posts, specially carved  out  by  the Constitutional  makers  for  operation by  the  Governor  in consultation  with the High Court or with the concurrence or recommendation  of  the High Court, as the case may be,  the said  encroachment  would  remain totally  ultra  vires  and cannot  be  saved by provisions of reservation envisaged  by Article  16(4).   Reliance  placed  by  Shri  Dwivedi  on  a decision  of  this Court in Chandra Mohans case (supra)  to show  that there is no complete separation of powers has  to be appreciated in the light of the observations made therein in  connection  with  the nature of  permissible  field  for operation  of state authorities under Article 235(2).  These observations have nothing to do with the complete separation of  powers between the Judiciary and the Executive so far as initial recruitment at entry points in Subordinate Judiciary up  to  district  level is concerned.  Even if  rules  under Article  234 can be said to have been framed by the Governor of  the  concerned State, on a conjoint reading of  Articles 234  and 309 the fact remains that these rules, in order  to be effective, have to satisfy the Constitutional requirement of  the procedure laid down therein for their  promulgation. The  alternative  contention  that when the  State  sends  a proposal to the High Court for introducing reservations, the High  Court  is bound to carry out the mandate  of  Articles 15(4),  16(4),  38  and 46 of the Constitution,  and  should respond with such duty-consciousness, cannot be of any avail on  the  facts of the present case as we are  not  concerned with  such a situation.  The rules framed under Articles 233 and  234  by the Bihar Government in consultation  with  the High Court are not on the anvil of scrutiny.  The only short question  with  which  we are concerned is  whether  in  the absence  of appropriate provision being made in these rules, the State Legislature can intervene on its own bypassing the High  Court  and  lay down a rule of thumb by way  of  fixed quota  of  reservation in all the posts in  the  Subordinate Judiciary.   The Mandal Commission Report has nothing to  do with  the  question  with which we are concerned.   Even  if adequate  representations of reserved category of candidates for  appointment  to Judiciary may be a laudable object,  it has to be kept in view that whatever is right has to be done in  a right manner or not at all.  Even in the present  case 24% reservation for SC and ST candidates at grass-root level in  Judiciary  has already been agreed to by the High  Court and the appointments are accordingly being made since years. The  only  question is whether by Section 4 of the  impugned Act  that percentage of reservation can be increased to  50% by  bringing  other  reserved   categories  like  the  Other Backward  Classes,  completely bypassing the High Court  and without  there  being  any  need  to  consult  it.   Such  a legislative  Act cannot be countenanced on the touchstone of relevant Articles of the Constitution.  This question cannot be  answered  in  the light of the  supposed  Constitutional philosophy  underlying the scheme of reservation for  weaker sections  of the community in general terms.  It is now time for  us  to refer to the judgments of this Court  and  other

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High  Courts on which reliance was placed by learned counsel for  the  contesting parties in support of their  respective cases.   A  three-Judge Bench of this Court in the  case  of M.M.Guptas  case (supra), speaking through Shri R.S.Pathak, J  (as  he  then  was), while considering  the  question  of independence of judiciary, has clearly ruled that any scheme of  appointment  to judicial posts by the executive  at  the State  and  the Central level, without consulting  the  High Court,  would clearly affect the independence of  judiciary. Pertinent observations in this connection are found in paras 33 and 34.  The relevant portions thereof read as under:

     .Independence  of the judiciary is one of the  basic tenets  and  a fundamental requirement of our  Constitution. Various  Articles  in our Constitution contain the  relevant provisions   for  safeguarding  the   independence  of   the Judiciary.   Article 50 of the Constitution which lays  down that  the State shall take steps to separate the  judiciary from  the  executive in the public services of  the  State, postulates separation of the judiciary from the executive.

     Unfortunately,  for some time past there appears to be an  unhappy trend of interference in the matter of  judicial appointments  by  the  executive both at the State  and  the Central  level..Article  235 of the Constitution vests  the control  of  judicial administration completely in the  High Court  excepting  in the matter of initial  appointment  and posting  of  District Judges and the dismissal,  removal  or termination  of  services of these officers.  Even in  these matters  the  requirement  of the Constitution is  that  the Governor  must act in consultation with the High Court.   If in the matter of appointment, the High Court is sought to be ignored  and  the  executive authority chooses to  make  the appointment,   independence  of  the   judiciary   will   be affected.

     In  the light of the aforesaid settled legal position, therefore,  there  cannot be any escape from the  conclusion that  if the process of appointment to Subordinate Judiciary at  district  level  or  grass-root level  is  tried  to  be circumscribed   or   truncated  by   any  direction  as   to reservation  of available vacancies for a given category  of candidates  it would certainly impinge upon the power of the High  Court in suggesting appointment of suitable candidates to  fill  up the posts of judicial officers with a  view  to fructify  the  goal  of furnishing  effective  mechanism  of judicial  administration  and  making  the  Judiciary  fully vibrant, effective and result-oriented.  Such an independent Judiciary  is  the  heart of the Constitutional  scheme,  as already discussed earlier.  In the case of All India Judges Association  &  Ors.   (supra),   the  special  features  of Judicial  Services have been clearly earmarked in the  light of  Articles 233, 234, 236 and 309.  A three-Judge Bench  of this  Court, speaking through Sawant, J., while disposing of the  Review Petitions by the Union of India and Officers  of the  States, has made the following apposite observations in paras 4 & 5 :

     The  judicial service is not service in the sense  of employment.   The judges are not employees.  As members of the judiciary, they exercise the sovereign judicial power of the  State.  They are holders of public offices in the  same way  as  the  members of the council of  ministers  and  the members  of  the  legislature.  When it is said  that  in  a

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democracy  such as ours, the executive, the legislature  and the  judiciary  constitute the three pillars of  the  State, what  is intended to be conveyed is that the three essential functions  of the State are entrusted to the three organs of the  State  and  each  one of them in  turn  represents  the authority  of  the State.  However, those who  exercise  the State-power  are  the  ministers, the  legislators  and  the judges,  and not the members of their staff who implement or assist  in  implementing  their decisions.  The  council  of ministers  or the political executive is different from  the secretarial  staff  or  the administrative  executive  which carries  out  the  decisions  of  the  political  executive. Similarly,   the   legislators  are   different   from   the legislative  staff.   So also the Judges from  the  judicial staff.   The parity is between the political executive,  the legislators  and  the Judges and not between the Judges  and administrative  executive.   This  distinction  between  the Judges  and  the  members of the other services  has  to  be constantly  kept  in mind for yet another important  reason. Judicial  independence  cannot  be secured  by  making  mere solemn proclamations about it.  It has to be secured both in substance  and  in practice.  It is trite to say that  those who  are  in  want  cannot be free.   Self-reliance  is  the foundation  of  independence.   The society has a  stake  in ensuring  the independence of the judiciary, and no price is too  heavy to secure it.  To keep the judges in want of  the essential  accoutrements  and  thus to impede  them  in  the proper  discharge  of their duties is to impair and  whittle away justice itself.  (para 4)

     It  is  high time that all concerned appreciated  that there  cannot be any link between the service conditions  of the  judges and those of the members of the other  services. It  is  true  that under Art.309 of  the  Constitution,  the recruitment  and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate  legislature  and pending such legislation,  the President  and  the Governor or their nominees, as the  case may  be,  are  empowered  to  make  rules  regulating  their recruitment  and the conditions of service.  It is also true that  after  the  Council  of  States  makes  the  necessary declaration  under  Art.312, it is the Parliament  which  is empowered to create an All India Judicial Service which will include  posts not inferior to the post of District Judge as defined  under  Art.236.  However, this does not  mean  that while  determining the service conditions of the members  of the Judiciary, a distinction should not be made between them and  the  members of the other Services or that the  service conditions  of the members of all the Services should be the same.    As  it  is,  even   among  the  other  Services,  a distinction  is  drawn  in  the   matter  of  their  service conditions.   The linkage between the service conditions  of the  judiciary and that of the administrative executive  was an  historical accident.  The erstwhile rulers  constituted, only  one  service.   Viz.,  the Indian  Civil  Service  for recruiting  candidates  for  the  Judicial as  well  as  the Administrative  Service and it is from among the  successful candidates  in  the examination held for  such  recruitment, that  some were sent to the administrative side while others to  the  judicial side.  Initially, there was also no  clear demarcation  between the judicial and executive services and the  same  officers used to perform judicial  and  executive functions.  Since the then government had failed to make the distinction between the two services right from the stage of

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the  recruitment,  its logical consequences in terms of  the service   conditions  could  not  be  avoided.    With   the inauguration  of the Constitution and the separation of  the State  power  distributed  among  the  three  branches,  the continuation  of the linkage has become anachronistic and is inconsistent with the constitutional provisions.  The parity in  status  is  no  longer between  the  Judiciary  and  the administrative  executive but between the judiciary and  the political  executive.  Under the Constitution, the judiciary is  above  the administrative executive and any  attempt  to place  it on par with the administrative executive has to be discouraged.   The  failure  to grasp this simple  truth  is responsible  for the contention that the service  conditions of  the  judiciary  must  be  comparable  to  those  of  the administrative executive and any amelioration in the service conditions  of  the  former  must necessarily  lead  to  the comparable  improvement  in  the service conditions  of  the latter. (para 5)

     In our view, the aforesaid decision of the three Judge Bench   on   the  relevant   scheme  of  the   Constitution, especially,  Articles  234  to  236  and  309  remains  well sustained and clearly indicates how Judicial Service, though being  a part of the general Service of the State, stands of its  own and cannot countenance any encroachment on it as it is  based on the principle of independence of Judiciary from the  executive  and/or  legislative save and except  to  the limited  extent  permitted by second part of Article 235  of the   Constitution.    Otherwise  the   basic   feature   of independence  of Judiciary will get eroded.  The  submission of Shri Dwivedi in this connection that, even Tribunals have got  trappings of judicial power and decide lis between  the parties  also  is  besides the point while  considering  the question  as  to how appointments to the lower Judiciary  in the  strict  sense of the term is to be effected.   Once  on this  aspect the Constitutional scheme is clear, it has  got to  be given its full effect.  We may now refer to Judgments of  some  of  the  High Courts to which  our  attention  was invited  by  learned  senior  counsel Shri  Thakur  for  the respondent High Court.  In the case of K.N.Chandra Sekhara & Ors.  vs.  State of Mysore & Ors., AIR 1963 Mysore 292 (V 50 C  68),  a  Division Bench of the High Court of  Mysore  was concerned   with  the  question   whether  contrary  to  the statutory  rules  framed by the Governor under  Article  234 read  with Article 309 of the Constitution of India,  laying down  the criteria for recruitment to the cadre of  Munsiffs in  Judicial  Service  of  the  State,  the  Public  Service Commission  of its own can fix different criteria of passing marks  for candidates belonging to SC and ST as compared  to higher  passing  marks for general category  of  candidates. Answering  this question in the negative, Somnath Iyer,  J., speaking  for  the Division Bench observed that :   Article 234 excepts out of the operation of Art.309, appointments to Judicial  Service and constitutes the Governor in a sense  a select  legislative  organ for enactment of rules  for  that purpose.

     The aforesaid observations will, of course, have to be read down in the light of the Constitution Bench decision of this  Court in B.S.Yadavs case (supra).  The next  Judgment placed  for  our  consideration by Shri  Thakur  is  another Division  Bench  judgment  in M.I.Nadaf vs.   The  State  of Mysore & Anr., AIR 1967 Mysore 77 (V 54 C 21).  In that case another  Division  Bench of the Mysore High Court,  speaking

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through K.S.Hegde, J.  (as he then was), had to consider the question  whether  once rules are framed under  Article  234 read  with  Article  309 of the Constitution  of  India  for governing  the recruitment of Munsiffs any other independent rule  pertaining to general conditions of Service and laying down a different eligibility criterion for a candidate to be considered  for such recruitment could be countenanced.   In that  case,  the  general  rules framed  under  Article  309 applicable  to  all  State Services  permitted  clubbing  of temporary  Service  of  candidates under the  Government  or holding  a  post under local authority with the  Service  on regular basis for deciding about the requisite experience of the  concerned candidate for such posts.  Though the General Rules  provided  to the aforesaid effect, the  rules  framed under  Articles  234  and 309 did not do so.   Question  was whether  the General Rules could cut across the rules framed under  Article  234,  the  former not having  been  made  in consultation with the High Court.  Negativing the contention that these General Rules which were framed under Article 309 without  reference  to  the  High  Court  could  operate  in connection   with  appointment  of   judicial  officers   at grass-root level as governed by the rules under Article 234, Hegde,  J., made relevant observations in this connection at pages  78 and 79 in paras 9 and 10 of the Report as under  : Article  309  of the Constitution empowers the Governor  to make  rules regulating the recruitment and the conditions of services  of persons appointed to the Civil Services of  the State.   But  that Article, as its opening words  themselves indicate,  is  subject  to  the   other  provisions  of  the Constitution.  Article 234 is one such provision.  The power of  the  Governor  to make rules under Article  309  of  the Constitution  is not only subject to the other provisions of the  Constitution, but it is also subject to any Act of  the appropriate  Legislature.   But the rules to be made by  him under  Article  234 are not subject to any Act that  may  be enacted  by  the appropriate Legislature.  But they  can  be made  only after consultation with the State Public  Service Commission  and  the High Court.  The consultation with  the High Court is not something nominal.  It is the very essence of  the  matter.   It  must  be   borne  in  mind  that  our Constitution visualises the separation of the judiciary from the  executive.   It  is  no doubt true  that  the  judicial service  is also one of the States services.  But it has got its  own  individualistic  character.    Unlike  the   other services  of the State, the judicial service is expected  to be  independent  of the executive.  Often times, it  has  to pronounce  on the correctness or the legality of the  action taken  by  the  other  services of  the  State.   There  are occasions  when it is required to pronounce on the  legality of  an action taken by the Government or even the  Governor. Such  being the case, it would not be proper to consider the judicial  branch  as being just one of the branches  of  the State.   It  is  for that reason,  the  Constitution  makers thought  it  proper  to  make separate  provisions  for  the appointment of judicial Officers.

     ..Our  view that appointments to judicial services of the  State other than that of the District Judges should  be made  only in accordance with the rules made by the Governor under  Article  234 of the Constitution  after  consultation with  the State Public Service Commission and the High Court exercising  jurisdiction  in relation to such State and  not under  rules  framed  by  him   under  Article  309  of  the Constitution is also supported by the decision of the Madras High  Court in N.  Devasahayam v.  State of Madras, AIR 1958

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Mad  53  and that of the Rajasthan High Court in Rajvi  Amar Singh v.  State of Rajasthan, AIR 1956 Raj 104.

     In our view, the aforesaid decision of the Mysore High Court  is well sustained in the light of the  Constitutional scheme  as culled out by a series of decisions of this Court to which we have made reference earlier.

     A  Division Bench of the Orissa High Court in the case of  Manoj  Kumar  Panda vs.  State of Orissa  &  Ors.,  1982 Lab.I.C.  1826, speaking through R.N.Misra, CJ.  (as he then was)  had  to consider an identical question which is  posed for  our  consideration  in the  present  proceedings.   The Orissa  Judicial Service Rules framed under Article 234 read with Article 309 provided a scheme of reservation for SC and ST  candidates.  The said scheme was tried to be cut  across by  the Orissa Legislature by enacting the Orissa Act 38  of 1975.   Question  was  whether such a  legislative  exercise dehors  Article 234 and in exercise of powers under Articles 245  and  246  was  permissible.  Even  though  parties  had settled  their  dispute, the High Court examined this  vital question  of  great public importance which may ex-facie  be treated  to be a obiter decision but which, in our view,  is fully  sustained by the Constitutional scheme examined by us in  the  present case in the light of decided cases of  this Court.   It was observed, in this connection, by Misra,  CJ, in  para  5 of the Report as under :  The Orissa  Rules  of 1964 are specially made for recruitment to judicial service. And  since  in some Articles of the Constitution rules  have been  made  subject to legislation while in  other  Articles like  Art.234,  the  rules  have not been  made  subject  to legislation,  a  distinction must be maintained between  the two  sets  of  rules.  Where the  Constitution  specifically vests  power in the Governor to make rules and does not make his  rules  subject to legislation, it must follow that  the Constitution  has  intended those rules to be final  on  the subject specified.

     Thus,  in  view of the specific provision  in  Art.234 authorising  the  Governor to make rules for the purpose  of appointment  and in the instant case such rules having  been made  viz.   Orissa Rules of 1961, it must follow  that  the power  given  to the State Legislature under Arts.234,  245, and  246  (3)  of the Constitution would be subject  to  the provisions  of  Art.234,  in view of a non  obstante  clause appearing at the beginning of Art.245(1).  And in the result Orissa  Act  38 of 1975 is not to apply to judicial  service covered by Art.234 of the Constitution so far as appointment is concerned.

     A  similar  view is also taken by the  Allahabad  High Court  in  the case of Farzand vs.  Mohan Singh & Ors.,  AIR 1968 All.  67 (V 55 C 18).  In para 31 of the Report at page 74  it was observed as under :  The intention behind taking out  the provisions relating to subordinate courts from Part XIV  of the Constitution and putting them in Part VI,  seems to  be  to make the consultation with the High Court in  the matter of framing of the rules, really effective and thus to secure  the  independence of the subordinate Judiciary  from executive  (See  AIR  1966 SC 1987 (Para  14)).   Under  the proviso  to Art.309 the Governor is competent to frame rules relating  to  recruitment as well as condition  of  service. The  rules  made  by  the  Governor  operate  only  until  a provision  in  that  behalf  is  made   by  an  Act  of  the

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Legislature.   The  legislature  while making an  Act  under Art.309 is not required even by Art.234, to consult any one. The  provision  for consultation with the High  Court  would become  nugatory as soon as the legislature acted to  enact. To avoid this and to keep the rules governing recruitment to the  judicial  service  outside  the purview  of  the  State legislature,  Article  234 was taken out of Part  XIV  which includes  Article 309.  Article 309 is subject to the other provisions  of  the Constitution, which means and  includes Article 234.  Article 234, on the other hand, is not subject to any other provision of the Constitution.  The rules, made under  Art.   234, will hence not be subject to any  Act  of legislature made under Art.309.  Then again, if the Governor alone was to frame the rules for recruitment to the judicial service,  there  was  no  point  in  making  this  invidious distinction between the rules for the judicial and the other services.   This  distinction became necessary  because  the rules  for  the  Judicial  Service  were  to  be  framed  in consultation  with the High Court.  All these aspects of the matter lead to the inevitable view that Article 234 requires consultation  with the High Court only in the matter of  the making of the rules.

     It  is now time for us to take stock of the situation. In  the  light  of the  Constitutional  scheme  guaranteeing independence  of Judiciary and separation of powers  between the  executive and the judiciary, the Constitutional  makers have  taken care to see by enacting relevant provisions  for the  recruitment  of eligible persons to discharge  judicial functions  from grass-root level of the Judiciary up to  the apex level of the District Judiciary, that rules made by the Governor  in  consultation  with the High Court in  case  of recruitment  at  grass-root level and the recommendation  of the  High  Court for appointments at the apex level  of  the District  Judiciary  under  Article  233,  remain  the  sole repository   of  power  to   effect  such  recruitments  and appointments.   It is easy to visualise that if suitable and competent candidates are not recruited at both these levels, the  out  turn of the judicial product would not be of  that high  level which is expected of judicial officers so as  to meet  the  expectations of suffering  humanity  representing class  of  litigants who come for redressal of  their  legal grievances   at  the  hands  of  competent,  impartial   and objective  Judiciary.  The Presiding Officer of the Court if not  being  fully equipped with legal grounding may  not  be able  to  deliver goods which the litigating public  expects him to deliver.  Thus, to ensure the recruitment of the best available talent both at grass-root level as well as at apex level  of  District  Judiciary, Articles 233  and  234  have permitted  full interaction between the High Court which  is the  expert body controlling the District Judiciary and  the Governor  who  is  the appointing authority and  who  almost carries   out  the  ministerial   function   of   appointing recommended candidates both by the Public Service Commission and  the High Court at the grass-root level and also has  to appoint  only  those candidates who are recommended  by  the High  Court  for appointment at the apex level  of  District Judiciary.   Any independent outside inroad on this exercise by  legislative  enactment  by the State  Legislature  which would  not  require consultation with an expert agency  like the High Court would necessarily fall foul on the touchstone of  the  Constitutional  scheme   envisaging  insulation  of judicial appointments from interference by outside agencies, bypassing  the High Court, whether being the Governor or for

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that  matter  Council  of  Ministers  advising  him  or  the Legislature.   For  judicial  appointments   the  real   and efficacious  advice contemplated to be given to the Governor while  framing  rules  under  Article   234  or  for  making appointments  on the recommendations of the High Court under Article  233  emanates only from the High Court which  forms the  bed-  rock  and very soul of these  exercises.   It  is axiomatic that the High Court, which is the real expert body in  the  field in which vests the control  over  Subordinate Judiciary, has a pivotal role to play in the recruitments of judicial  officers  whose  working   has  to  be  thereafter controlled  by  it  under  Article 235 once  they  join  the Judicial  Service after undergoing filtering process at  the relevant  entry  points.  It is easy to visualise that  when control  over District Judiciary under Article 235 is solely vested  in  the High Court, then the High Court must have  a say  as to what type of material should be made available to it  both  at the grass-root level of District  Judiciary  as well  as apex level thereof so as to effectively ensure  the dispensation  of justice through such agencies with ultimate object  of securing efficient administration of justice  for the    suffering   litigating     humanity.    Under   these circumstances,  it is impossible to countenance bypassing of the  High Court either at the level of appointment at grass- root  level or at the apex level of the District  Judiciary. The  rules  framed by the Governor as per Article 234  after following  due procedure and the appointments to be made  by him  under  Article 233 by way of direct recruitment to  the District Judiciary solely on the basis of the recommendation of  the High Court clearly project a complete and  insulated scheme  of  recruitment to the Subordinate Judiciary.   This completely  insulated scheme as envisaged by the founders of the  Constitution  cannot  be tinkered with by  any  outside agency dehors the permissible exercise envisaged by the twin Articles  233 and 234.  It is a misnomer to suggest that any imposition of scheme of reservation for filling up vacancies in already existing or created sanctioned posts in any cadre of  district  judges  or  Subordinate  Judiciary  will  have nothing   to  do  with  the   concept  of  recruitment   and appointment  for  filling up such vacancies.  Any scheme  of reservation  foisted on the High Court without  consultation with  it  directly  results in truncating the  High  Courts power of playing a vital role in the recruitment of eligible candidates  to  fill  up  these  vacancies  and  hence  such appointments  on  reserved posts would remain totally  ultra vires  the  scheme  of  the Constitution  enacted  for  that purpose  by  the founding fathers.  It is also to  be  noted that  the concept of social justice underlying the scheme of reservation under Article 16(4) read with Article 335 cannot be  said  to be one which the High Court  would  necessarily ignore  being a responsible Constitutional functionary.   In fact  what is required is that the right decision should  be arrived at in the right manner.  In the facts of the present case,  it  is  an admitted position that the High  Court  of Patna  has already consented to have 14% reservation for  SC candidates   and  10%  reservation   for  ST  candidates  in recruitment  of Munsiffs and Magistrates at grass-root level of  Subordinate Judiciary and rules framed under Article 234 by the Governor of Bihar in consultation with the High Court have  permitted such reservation.  Thus, it is not as if the purpose  of reservation cannot be achieved without reference to  the High Court.  But as the saying goes you can take  a horse  to  the  water but cannot make it drink by  force  . Thus  what is expected of the executive and the Governor  is to  have  an effective dialogue with the High Court so  that

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appropriate  reservation  scheme  can be adopted by  way  of rules  under  Article 234 and even by prescribing  quota  of reservations  of  posts  for  direct  recruits  to  District Judiciary under Article 233 if found necessary and feasible. That  is  the Constitutional scheme which is required to  be followed  both  by  the  High Court  and  by  the  executive represented  through  the Governor.  But this thrust of  the Constitutional  scheme cannot be given a go-bye nor can  the entire  apple-cart be turned topsy-turvey by the legislature standing  aloof  in  exercising   its  supposed  independent Legislative power dehors the High Courts consultation.

     Leaving  aside  this  question  even  on  the  express language  of the impugned Section 4 of the Act, argument  of learned  senior counsel for the appellant- State would  fall through  as  the said Section does not envisage creation  of separate   category  of  posts   for  reserved  category  of candidates  in  the existing cadres of District  Judges  and Subordinate   Judges.   On  the   contrary,   that   Section postulates available vacancies in the already existing posts in  the  cadres  and tries to control appointments  to  such existing  posts  in the vacancies falling due from  time  to time  by  adopting  the  rule of  thumb  and  a  road-roller provision  of  50%  vacancies to be  reserved  for  reserved category  candidates, meaning thereby, the Section  mandates the  High Court and that too without consulting it, that  it shall  not  fill up 50% of available vacancies  by  selected candidates  standing  in  the order  of  merit  representing general  category  candidates and must go in search of  less meritorious  candidates  for  filling   up  these  vacancies supposedly  reserved  for  them.   Such   a  scheme  can  be envisaged  only  under relevant rules framed under  Articles 233  and  234  after consultation with the  High  Court  and cannot  be  made the subject matter of any legislative  fiat which  the  High Court is expected to carry out  willy-nilly and  dehors  the  Constitutional scheme regarding  full  and effective   consultation  with  the   High  Court  in   this connection.   It must, therefore, be held that the  impugned Section  4,  as existing on the statute book if  allowed  to operate as it is for controlling recruitment to the posts of district  judges  as  well  as to  the  posts  in  Judiciary subordinate  thereto to the district courts, would  directly conflict  with the Constitutional scheme of Articles 233 and 234  constituting  a complete Code and has to be treated  as ultra  vires the said Constitutional scheme.  Before parting with  the  discussion on this point, we may mention that  in the  impugned judgment of the High Court in CWJC No.6756  of 1994  the  learned  Judges have considered the  question  of reservation   of  posts  in   Judicial  Service  dehors  the Reservation  Act  in  paragraphs 16 to 21 of  the  judgment. Placing  reliance  on a decision of the  Constitution  bench Judgment  of this Court in Supreme Court Advocates-on-Record Association & Anr.  vs.  Union of India, AIR 1994 SC 268, it has  been observed that whenever such a question arises  and any  scheme of reservation is sought to be introduced by the Governor in consultation with the High Court, the opinion of the High Court shall have primacy.  We may mention that this question  strictly  does not arise for our consideration  in the  present proceedings for the simple reason that legality of  rules  of  reservation, if any, framed by  the  Governor under Article 309 read with Articles 233 and 234 introducing a  scheme of reservation contrary to the consent of the High Court  has  not  arisen  for   decision.   In  the   present proceedings,  we  are  concerned  with  the  short  question whether   totally  bypassing  the   High  Court,  the  State

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Legislature  can  enact a statutory provision introducing  a scheme  of  reservation  in Judicial  Service  comprised  of District Judges cadre as well as cadre of Judges subordinate thereto.   Hence,  the  aforesaid observations of  the  High Court,  in our view, were not called for in the present case and we express no opinion thereon.

     Point no.2, therefore, will have to be answered in the affirmative against the appellant-State and in favour of the respondent.

     Point No.3:  In the light of our answer to point no.2, the   question  survives  for   consideration  as  to   what appropriate  orders  can  be passed in connection  with  the impugned  Section 4 of the Act.  Now it must be kept in view that  Section  4,  as enacted in the Act, can  have  general operation and efficacy regarding other Services of the State not forming part of Judicial Service of the State.  Qua such other  services Section 4 can operate on its own and in that connection  consultation  with the High Court is not at  all required.   However, in so far as it tries to encroach  upon the  field of the recruitment and appointment to Subordinate Judicial  Service of the State as envisaged by Articles  233 and  234  it  can  certainly be read down  by  holding  that Section 4 of the impugned Act shall 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 and such appointments will be  strictly governed  by the Bihar Superior Judicial Service Rules, 1951 as  well  as  by the Bihar  Judicial  Service  (Recruitment) Rules,  1955.   In other words, Section 4 will not have  any impact  on  these  rules and will stand read  down  to  that extent.   Once  that is done, question of striking down  the said  rule from the statute book would not survive and would not  be  required.   We,  accordingly,   read  it  down   as aforesaid.   Point no.3 is answered accordingly in favour of the respondent and against the appellant-State.  Point No.4: Now  the  stage  is reached for  passing  appropriate  final orders  in the light of our answers to the aforesaid points. The  impugned  judgments  of the High Court  in  both  these appeals allowing the writ petitions are sustained subject to the  following  modifications  and directions  :   1.   Even though the impugned Act, as framed, is held to be applicable even  to  Judicial Service, Section 4 thereof in  particular laying  down  scheme  of  reservation, will  not  apply  for governing the recruitment to the cadre of District Judiciary as  well  as to the cadres of Judiciary Subordinate  to  the District  Judges.  2.  The observation of the High Court  in the  impugned  judgement in Civil Appeal No.9072 of 1996  to the  effect that if two candidates, one belonging to general category  and  another to reserved category are found to  be equally  meritorious,  preference can be given  to  reserved category  candidate is the only rational scheme envisaged by the  Constitution, being an unnecessary one will be  treated to  be  of  no  legal effect.   3.   Despite  the  aforesaid observations,  the  stand of the respondent High Court  that for recommending direct recruitment of advocates as District Judges  the  suggested  preference to be given  to  reserved category  candidate  of  equal merit with  general  category candidate  has to be followed by the High Court as agreed to in  the  present  proceedings  till  appropriate  scheme  of reservation  for  reserved  category candidates  if  any  is promulgated  by the Governor by framing appropriate rules in consultation with the High Court and the same procedure will have  to be followed by the High Court till then.  Once such

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a  scheme  after  proper  dialogue with the  High  Court  is promulgated  by  amending the relevant rules then  obviously the  High  Court even while recommending recruitment to  the posts  of  District  Judges from members of the Bar  as  per Article   233(2)  will  be  bound  by  such  a   scheme   of reservation.   4.   For  governing   direct  recruitment  at grass-root   level  as  per   the  Bihar  Judicial   Service (Recruitment)  Rules,  1955, 14% reservation for SC and  10% reservation  for  ST  candidates shall be  followed  by  all concerned  acting  under the said rules and appointments  at the  grass-root  level of Judiciary shall be made  following the  said  scheme of reservation until any other  scheme  of reservation is 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.  5. By  an  interim order dated 16.11.1995 in the  Civil  Appeal arising  out  of SLP(C) No.16476 of 1993 it was directed  as under  :   Having  heard   counsel  representing  different interests  we modify the order dated 13.5.94 whereby it  was stated  that  while the process of selection may go  on  but actual  appointment  orders  should not be issued.   If  the selection  process  is over the selectees may  be  appointed subject  to the result of this petition and further  subject to  the  seniority  that may be required to be  adjusted  if reservation is upheld and candidates to fill in the reserved slots are selected at any time hereafter and become entitled to  appointments.   However,  question  of  filling  up  the reserved  posts  will  not arise and they  shall  remain  in abeyance  but  if  after  this Court decides  the  issue  on reservation in the instant case and selections are made even thereafter  and appointments are made, they will be entitled to their respective seniorities at the slots available as on the date of appointment of General Category candidates.

     In  this appeal, the appointments of candidates as per 1955  Rules to the posts of Subordinate Judges and  Munsiffs are  on the anvil of consideration.  The writ petition filed by  the original writ petitioners before the High Court will stand  partly  allowed  by  holding that Section  4  of  the impugned  Act  does not apply to these recruitments and  the scheme  of  reservation of 14% for SCs and 10% for STs  only will  apply to such recruitment.  As a result, the  question of  filling  up of reserved posts in this case  will  remain germane  to the aforesaid extent of permissible  reservation of  24% for SC and ST candidates.  The concerned authorities will  work  out  the rights of the selected  candidates  for being  appointed  to  these  posts  governed  by  the  Bihar Judicial  Service  (Recruitment)  Rules,  1955  accordingly, keeping  in  view  the directions contained in  the  interim order  of  this  Court  dated 16.11.1995.   6.   Both  these appeals  are accordingly dismissed subject to the  aforesaid modifications  and directions.  There will be no order as to costs in both these appeals.

       New Delhi, March  14, 2000 IN THE SUPREME  COURT  OF INDIA  CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.9072  OF 1996  State of Bihar & Anr.  ....Appellant Versus Bal Mukund Sah & Ors.  ....Respondents (With CA No....../2000 @ SLP (C) No.16476/93)

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PATTANAIK, J.

     I  have gone through the two learned judgments, one of Brother  Majmudar,  J.  and the other of Brother  Sethi,  J. expressing  divergent views on the question at issue, and  I entirely  agree  with the conclusions arrived at by  Brother Majmudar,J.    and  respectfully  differ   from  the   views expressed by Brother Sethi,J.  But in view of the importance of  the  question I would like to add few paragraphs  of  my own.

     The  question  for consideration is whether the  State Legislature  could  enact a law in exercise of their  powers under  article  309 of the Constitution in relation  to  the recruitment and laying down the conditions of service of the officers  belonging  to the Judicial Services of the  State? It  is in this context the further question that arises  for consideration  is  whether  the   provisions  of  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) (Bihar  Act  3 of 1992) as amended by Bihar Act 11 of  1993, providing  reservation to the extent mentioned in Section  4 would apply to the Judicial Services of the State in view of the  definition of State in Section 2(m) of the Act.   The answer  to  these questions depend upon an analysis  of  the Constitutional  Scheme and how the founding fathers intended to  have  separate provisions for the judicial wing  of  the State.   In fact when the question of appointment of persons to  the post of District Judges and post subordinate thereto were  being  considered and had been engrafted in the  Draft Constitution  under  article  209-A  to  209-F,  Dr.    B.R. Ambedkar  in  his  Speech in the  Constituent  Assembly  had categorically  stated,  the object of these  provisions  is two-  fold:   first  of  all,  to  make  provision  for  the appointment  of  district judges and subordinate judges  and their  qualifications.   The second object is to  place  the whole  of the civil judiciary under the control of the  High Court.   The  only  thing which has been excepted  from  the general  provisions  contained in article 209-A,  209-B  and 209-C  is with regard to the magistracy, which is dealt with in  article  209-E.  The Drafting Committee would have  been very happy if it was in a position to recommend to the House that  immediately  on the commencement of the  Constitution, provisions with regard to the appointment and control of the Civil  Judiciary  by the High Court were made applicable  to the  magistracy.   But it has been realised, and it must  be realised  that  the magistracy is intimately connected  with the  general  system  of administration.  We hope  that  the proposals  which  are now being entertained by some  of  the provinces  to separate the judiciary from the Executive will be accepted by the other provinces so that the provisions of article 209-E would be made applicable to the magistrates in the  same way as we proposed to make them applicable to  the civil judiciary.  It has been felt that the best thing is to leave   this  matter  to  the   Governor  to  do  by  public notification  as  soon  as the appropriate changes  for  the separation  of  the judiciary and the executive are  carried through  in  any of the province. Thus it is  apparent  how anxious  the  founding fathers of the Constitution  were  to insulate  the  judicial  wing of the State  from  the  other wings.   When Pt.Hirday Nath Kunzru moved some amendments to

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article 209-A, as it stood in the Draft Constitution, he had indicated  that  the  very object of amendments is  for  the purpose  that  though  the Governor  will  appoint  District Judges  in  consultation with the High Court but  once  such appointment is made by the Governor the District Judge would remain  under  the  control of the High Court.   It  is  not necessary to delve into the reaction of other Members of the Constituent  Assembly  at that point of time in as  much  as almost  all  the  Members had felt the necessity  of  making separate  provisions  for the judicial wing of the State  as far  as practicable and to vest the entire control with  the High  Court of the State.  In fact Dr.  Ambedkar himself had indicated  that  there  is   nothing  revolutionary  in  the provisions  of the Constitution relating to the sub-ordinate courts of the States and in fact those provisions were there in  the Government of India Act, 1935.  With this background in mind if we look at the Constitutional Scheme we find Part XIV consisting of articles 308 to 323 deal with the services under the Union and the States whereas Chapter VI containing articles 233 to 237 deal with the Subordinate Courts.  Under article 233, the power of appointment, posting and promotion of  district  judges in any State has been conferred on  the Governor  of  the State in consultation with the High  Court exercising  jurisdiction  in  relation to  such  State.   It obviously  deals with those officers who are to be  promoted to  the  rank  of district judge in  the  superior  judicial service from the post of subordinate judge.  Sub-article (2) of  article  233  of the Constitution  makes  provision  for appointment  of  a person as a district judge direct on  the recommendation  of the High Court concerned.  Article 234 of the  Constitution provides for recruitment of persons  other than  district  judges to the judicial service of the  State and  the  same has to be made by the Governor in  accordance with the Rules made by him in that behalf after consultation with  the State Public Service Commission and with the  High Court  exercising  jurisdiction in relation to  such  State. Article  235 deals with control over the subordinate  courts and  there  is  not an iota of doubt that the  control  over district courts and courts subordinate thereto vest with the High  Court  and such control must be one which is real  and effective  and there cannot be any dilution in that respect. It  is to be borne in mind that in the Constitutional Scheme in  Chapter  VI  the Founding Fathers have  dealt  with  the question of recruitment and not other conditions of service, such  as the age of superannuation, the pay, the pension and allowances,  so  on and so forth.  While Article  309  deals with  recruitment  and  conditions  of  service  of  persons serving  the  Union or the State, a particular  category  of post  forming  the  judicial  wing has been  carved  out  in Chapter  VI in Articles 233 to 235 so far as the question of recruitment  is concerned.  When Article 309 itself uses the expression  subject to the provisions of this constitution it  necessarily  means that if in the constitution there  is any  other  provision specifically dealing with  the  topics mentioned  in  said  Article 309, then Article 309  will  be subject  to those provisions of the Constitution.  In  other words, so far as recruitment to the judicial services of the State is concerned, the same being provided for specifically in  Chapter  VI  under  Articles 233 to  237,  it  is  those provisions  of the Constitution which would override any law made  by  the appropriate legislature in exercise  of  power under   Article   309  of   the  Constitution.   The   State legislature  undoubtedly  can  make law for  regulating  the conditions  of  services  of the officers belonging  to  the judicial  wing but cannot make law dealing with  recruitment

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to  the judicial services since the field of recruitment  to the  judicial  service  is carved out  in  the  Constitution itself  in  Chapter  VI  under Articles 233 to  236  of  the Constitution.

     It  would be appropriate to notice at this stage while in  Articles 145(1), 148(5), 187(3), 229(2), 283(1) and (2), the  Constitution  itself make the provision subject to  the provisions  of law made by the Parliament but Article 234 is not subject to any legislation to be made by the appropriate legislature,  which indicates that so far as recruitment  to the  Judicial  Service  is concerned which is  engrafted  in Article  234,  the  same  is  paramount  and  the  power  of legislature to make law under Article 309 will not extend to make a law in relation to recruitment, though in relation to other  conditions of service of such judicial officers,  the appropriate  legislature  can make a law.  In fact  in  B.S. Yadavs   case  1981(1)SCR  1024,  on  which  Dr.    Dhawan, appearing  for the State of Bihar, heavily relied upon Chief Justice  Chandrachud, had noticed to the effect-  Whenever, it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions  of  service, the Constitution has stated  so  in express  terms.   See,  for example Articles  15(4),  16(4), 77(3),  87(2), 118, 145(1), 146(1) and (2), 148(5),  166(3), 176(2), 187(3), 208, 225, 227(2) and (3) and 229(1) and (2), 234,  237 and 283(1) and (2). The observation has been made in  the context of the question whether Article 235  confers any  power  on the High Court to make Rules relating to  the Conditions  of  Judicial Officers attached to  the  District Courts  and  the Courts subordinate thereto.  The very  fact that the framers of the Constitution in enacting Article 234 have  made  the  provision, not subject to any acts  of  the appropriate  legislature  is the clearest indication of  the Constitution  makers  that so far as the recruitment to  the Judicial  Service  of  the  State is  concerned,  the  State Legislature  do not possess the necessary power to make law. At  the  cost  of  repetition, it may  be  stated  that  the expression   recruitment   and   the   expression   other conditions  of service are two distinct connotations in the service  jurisprudence  and the framers of the  Constitution have  also  born that in mind while engrafting Articles  234 and  309  of the Constitution.  It is true that Article  233 dealing  with  appointment  of   District  Judges  does  not indicate  conferment of power to make Rules for appointment. But  the  language of article 233 indicates that the  entire matter  of recruitment to the post of District Judge, either by  way of direct recruitment or by promotion is left to the High  Court  and  it  is the Governor of the  State  who  is required  to make such appointment in consultation with  the High  Court.  So far as direct recruitment is concerned, the Constitution  itself lays down certain criteria for making a person  eligible for being appointed/recruited as a District Judge.   The entire field of recruitment is left to the  two Constitutional  consultees and obviously, the opinion of the High  Court  in such matter must be of binding effect.   For direct  recruitment  to  the  post  of  District  Judges  in sub-Article  (2) of Article 233, the Constitution itself has indicated  the  eligibility  criteria   and  the  source  of recruitment,  leaving the manner of final selection with the High  Court  itself.  The argument of Dr.  Rajiv Dhawan,  in this  context  that it would be anomalous that  whereas  for subordinate  judiciary, the legislature has no power to make law  to  deal  with the recruitment,  whereas  for  District Judges,  the  legislature  has  such  power,  is  devoid  of

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substance  inasmuch as under Article 233, both under  Clause (1)  as well as Clause (2) though the appointment has to  be made  by  the Governor but it is the High Court, who has  to decide  as  to who would be appointed and this also fits  in with  the  underlying  principles under Article 235  of  the Constitution.  With reference to second part of Article 235, Dr.   Dhawan  had  also raised the contention that  it  pre- supposes that the legislature does possess the power to make law,  conferring  a  right to appeal to an  officer  of  the judiciary of the State, though, control over District Courts and  Courts sub-ordinate thereto vests with the High  Court. But  this  contention  does  not   take  into  account   the distinction    between   the     two   connotations   namely recruitment  and conditions of service.  The second part of Article 235 protecting a right of appeal which an officer may  have under any law made by the legislature or  Governor relates  to regulating the conditions of service and not  in relation  to recruitment of the said officer.  An  ingenious argument had been advanced by Dr.  Dhawan to the effect that Article   234  expressly  uses   the  expression  that  the appointment  has to be made in accordance with the Rules  to be  made  by  the Governor in consultation  with  the  State Public  Service Commission and with the High Court,  thereby is  referable to proviso to Article 309 and, therefore,  the plenary  power of the legislature under main Article 309  is not  whittled  down in any manner.  But this argument  over- looks  the  fact that the law made by the legislature  under the  main  part  of  Article 309 and the  law  made  by  the Governor  under the proviso stands on the same footing.   At this  stage, it would be appropriate to notice the  argument advanced  by Mr.  Dwivedi, the learned counsel appearing for the  State  of Bihar in one of these appeals to  the  effect that  the appropriate act of the State Legislature providing for  reservation  in  the services of the State is  a  stage prior  to the recruitment or appointment and, therefore  the power  of  recruitment  in  Article 234 is not  in  any  way infringed.   This  contention  would   not  stand  a  moment scrutiny  in  view of the language of Section 4 of  the  Act itself.

     4.Reservation   for   direct     recruitment   -   All appointments to services and posts in an establishment which are to be filled by direct recruitment shall be regulated in the following manner, namely:-

     (1)  The  available vacancies shall be filled up-  (a) from  open merit category ..  50% (b) from reserved category ..  50%

     (2)  The  vacancies  from   different  categories   of reserved  candidates from amongst the 50% reserved  category shall,  subject  to  other  provisions of this  Act,  be  as follows:-

     (a)  Scheduled Castes ..  14% (b) Scheduled Tribes  .. 10%  (c) Extremely Backward Class ..  12% (d) Backward Class ..    8%  (e)  Economically  Backward   Woman  ..   3%   (f) Economically Backward ..  3% ---------------- Total ..  50%.

     Provided   that   the  State    Government   may,   by notification   in  the  official   Gazette,  fix   different percentage  for  different districts in accordance with  the percentage  of  population  of  Scheduled   Castes/Scheduled Tribes and other backward classes in such districts:

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     Provided   further   that  in   case   of   promotion, reservation    shall   be    made    only   for    Scheduled Castes/Scheduled  Tribes in the same proportion as  provided in this section.

     (3).  A reserved category candidate who is selected on the  basis  of  his  merit  shall  be  counted  against  50% vacancies  of  open  merit  category  and  not  against  the reserved category vacancies.

     (4) Notwithstanding anything contained to the contrary in  this Act or in any other law or rules for the time being in  force,  or in any judgment or decree of the  Court,  the provision  of sub-section (3) shall apply to all such  cases in  which  all formalities of selection have been  completed before  the 1st November, 1990, but the appointment  letters have not been issued.

     (5)   The  vacancies  reserved   for   the   Scheduled Castes/Scheduled Tribes and other Backward Classes shall not be  filled  up  by  candidates not  belonging  to  Scheduled Castes/Scheduled Tribes and other Backward Classes except as otherwise  provided  in  this  Act.   (6)  (a)  In  case  of non-availability  of suitable candidates from the  Scheduled Castes and Scheduled Tribes for appointment and promotion in vacancies reserved for them, the vacancies shall continue to be  reserved  for  three recruitment years and  if  suitable candidates  are  not available even in the third  year,  the vacancies  shall  be exchanged between the Scheduled  Castes and Scheduled Tribes and the vacancies so filled by exchange shall  be  treated as reserved for the candidates  for  that particular community who are actually appointed.

     (b) In case of non-availability of suitable candidates from the Extremely Backward Classes and Backward Classes the vacancies so reserved shall continue to be reserved for them for  three recruitment years and if suitable candidates  are not  available  even in the third year also,  the  vacancies shall  be filled by exchange between the candidates from the extremely Backward and Backward Classes and the vacancies so filled  by  Exchange  shall be treated as reserved  for  the candidates  of  that particular community who  are  actually appointed.

     (c) In case of non-availability of suitable candidates for  the  vacancies reserved for the  economically  backward women  the vacancies shall be filled first by the candidates from  the Scheduled Castes, then by the candidates from  the Scheduled  Tribes,  then  by the candidates  from  extremely backward  class  and  then by the candidates  from  backward class.   The vacancies so filled in the transaction shall be treated  as  reserved for the candidates of that  particular community who are actually appointed.

     (d)  If  in  any  recruitment   year,  the  number  of candidates  of Scheduled Castes/Scheduled Tribes,  extremely Backward  and  Backward Classes are less than the number  of vacancies  reserved for them even after exchange formula the remaining  backlog  vacancies  may  be  filled  by   general candidates  after  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

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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 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 of Bihar.

BANERJEE, J.

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     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  Vacancies  in  Posts  and Services  (for Scheduled Castes, Scheduled Tribed 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  retrain myself from quoting  the  same excepting,  recording however, that Section 4 of the Act  of 1991  covers the filed 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 Acticle 309 so as to clothe the State  legislature with the power of legislation and it is in this context that heading  of Acticle 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   out 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 provision of the Constitutioin, the rule cannot  but be  ascribed to be viod 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 that Article  309  falls under  Part XIV of the Constitution under the lead "Services under  the Union and States" and relying theron 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  Constitutioin   with  a  heading   - ’Subordinate  Court’ .  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".

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     "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 Articles 233 of the  Constitution  on to 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 a matter of  fact cemented  the controversy, in the event however, there being any,  as  regards  the method of consultation in  matter  of appointment  of district judges.  The further  incorporation of Articles 234 and 235 and on a plain reading thereof would leave  no manner of doubt as to the separate  categorization of  judicial  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  any contra  intention of the framers, the same would have  found an  expression  in 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 thee 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.

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     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  therefore  but adopt the same and hereby record  my concurrence  therewith.  In that view of the matter I  would dismiss  both  Appeals  without however, any  orderr  as  to costs.

     ORDER

     Leave granted.

     The  Civil Appeals stand dismissed as per the majority view subject to the modification and directions contained in thee main judgment.

     There will be no order as to costs.

SETHI, J.  (For himself & Khare,J.)                   We  have  minutely  perused  the well  prepared,  lucid  and knowledgeable  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 wings of the  State,  there  is overlapping  sometimes,  even  without encroachment  as  the

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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   Government 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  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 guarantees  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 to 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  doctrine of  separation  of  powers though  not  strictly accepted yet provides for  independent judiciary  in  the States.  This Court in Chandra Mohan  vs. State  of  Uttar  Pradesh & Ors.  [AIR 1966 SC  1987]  held: "The  Indian  Constitution,  though it does not  accept  the strict  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 was based upon 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

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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 of judicial 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 vs.  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 a document of social 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 hand it is submitted that the said  Chapter VI is a self-contained provision with which no interference  can  be had by any other organ of  the  State, namely,  the  executive 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 of the impugned Act deals with  and  provides

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reservation  in all services 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 impugned 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 relation  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   by  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."

     This  Court  in State of Assam & Anr.   vs.   Kuseswar Saikia  &  others [AIR 1970 SC 1616] held that the  separate judicial  service  was  provided  to make the  office  of  a District  Judge  completely free of executive  control.   In Chandramouleshwar  Mohan Prasad vs.  The 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.  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

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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.  vs.  Union of India & 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 department 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 take, 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

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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  make  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 & Anr.  vs.  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  with  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  any 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.

     (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

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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 Commission for 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 a 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 as  taking  away  from any such person the right  of  appeal required  to be given to him by the foregoing provisions  of this  chapter, or as authorising the High Court to deal with any  such  person  otherwise  than in  accordance  with  the conditions of his service prescribed thereunder.

     256 Subordinate criminal magistracy.

     No  recommendation  shall  be made for  the  grant  of magisterial  powers or of enhanced magisterial powers to, or the  withdrawal  of any magisterial powers from, any  person save  after consultation with the District Magistrate or the district  in  which  he  is   working,  or  with  the  Chief Presidency Magistrate, as the case may be.

     It  may  be  pointed out at once that in  the  present Constitution  these  provisions  have been lifted  from  the Chapter dealing with Services in India and placed separately after  the  provisions  relating to the High Courts  of  the States.

     (8)  As  far back as 1912 the  Islingtons  Commission stated that the witnesses before the Commission demanded two

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things (1) recruitment from the Bar to the superior judicial service,  namely,  the  District  judgeship;   and  (2)  the separation  of  the  judiciary   from  the  executive.   The Commission  stated in the report:  Opinion in India is much exercised on the question of the separation of the executive and  the judicial functions of the officers’...and  observed that  to  bring this about legislation would be  required. The  Commission  made its report on August 14, 1915,  a  few days  after the Government of India Act, 1915 (5 and 6  Geo. V.   c.61) was enacted.  The Act did not, therefore, contain any  special provision about the judicial services in India. The  World  War  I was also going on.  In 1919,  Part  VII-A consisting of Ss.96-B to 96-E was added in the Government of India  Act,  1915 S.96-B provided that every person  in  the Civil  Service of the Crown in India held office during  His Majestys  pleasure  but no person in that service might  be dismissed  by any authority subordinate to that by which  he was appointed.  The only section that concerns us in S.96-B. Sub-s.(2) of that section reads as follows:

     "(2)  The Secretary of State in Council may make rules for  regulating the classification of the civil services  in India, the methods of their recruitment, their conditions of service,  pay  and allowances, and discipline  and  conduct. Such  rules  may,  to  such extent and in  respect  of  such matters  as may be prescribed, delegate the power of  making rules  to  the  Governor-General  in  Council  or  to  Local Governments,  or  authorise the Indian legislature or  local legislatures to make laws regulating the public services:"

     The   Fundamental  Rules  and   the   Civil   Services (Classification,  Control and Appeal) Rules were made by the Secretary  of State in Council under the above rule-  making power.   These  rules governed the judicial services  except the  High  Court.   Part IX of the Government of  India  Act dealt  with  the Indian High Courts, their constitution  and jurisdiction.    Section  107  gave  to  the   High   Courts superintendence  over all Courts for the time being  subject to  its appellate jurisdiction and enumerated the things the High  Court could do.  They did not include the appointment, promotion, transfer or control of the District Judges.  High Court  could only exercise such control as came within their superintendence  over  the  Courts   subordinate  to   their appellate jurisdiction.  In the Devolution Rules, Item 17 in Part  II  dealing  with  the  Provincial  subjects  read  as follows:-

     "Administration  of  justice, including  constitution, powers,  maintenance  and  organisation of civil  Court  and criminal  jurisdiction  within  the  Province;   subject  to legislation  by  the  Indian  legislature  as  regards  High Courts,  Chief  Courts, and Court of Judicial  Commissioners and any Courts of criminal jurisdiction."

     It  would  thus  appear  that the  problem  about  the independence  of judicial officers, which was exercising the minds  of  the people did not receive full attention and  to all  intents  and  purposes  the  Executive  Government  and Legislatures  controlled  them.  The recommendations of  the Islington  Commission  remained  a dead  letter.   When  the Montague-Chemlsford  enquiry  took place the object  was  to find  out  how much share in the legislative  and  executive fields  could be given to Indians.  The post of the District

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Judge was previously reserved for Europeans.  The disability regarding  Indians  was removed as a result of  the  Queens Proclamation  in  1870 and rules were framed first in  1873. In  1875 Lord Northbrooks Government framed rules  allowing Indians  to be appointed and Lord Lyttons Government framed Rules  fixing  1/5th  quota for the Indians.  There  was  no fixed  principle  on  which Indians were appointed  and  the report of the Public Service Commission presided over by Sir Charles  Aitchison  in 1886 contains the system followed  in different  Provinces.   This  continued down to  1919.   The Government  of India Act had introduced Dyarchy in India and the question of control of services in the transferred field was  closely examined when the Government of India Act, 1935 was  enacted.   It was apprehended that if  transference  of power  enabled  the Ministers to control the  services,  the flow  of  Europeans to the civil services would become  low. Government  appointed  several committees, chief among  them the  MacDonnel  Committee  considered the  position  of  the Europeans  vis-.-vis  the services.  There was more  concern about   Europeans  than  about   the  independence  of   the judiciary.

     (9)  The Indian Statutory Commission did not deal with the  subject  of judicial services but the  Joint  Committee dealt with it in detail.  It is interesting to know that the Secretary  of  State  made a preliminary  statement  on  the subject  of  subordinate civil judiciary and his  suggestion was  to  leave to the Provincial Legislatures  the  general power  but  to introduce in the Constitution  a  provision which  would  in one respect override those powers,  namely, power to select the individuals for appointment to the Civil Judicial  Services, to lay down their qualifications, and to exercise  over  the  members of the  service  the  necessary administrative  control.’  He said that ’the powers  of  the local  Government should be ’to fix the strength and pay  of the  services to which the High Court would recruit’ and  to lay   down,   if   they  so   thought   fit,   any   general requirement...’.   During  the debates Marquis of  Salisbury asked  a  question with regard to the general powers of  the High Courts and the control over the subordinate courts.  It was:

     "As  I  understood  the  Secretary  of  State  in  his statement,  the  control of the High Court  the  subordinate judges  in  civil matters has to be as complete as  possible and  maintained.   Is  that  so?.  The  answer  was,  yes. (No.7937)".

     (10)  The recommendations of the Joint Committee  also followed  the same objective.  In the report (paragraph  337 p.201) the following observations were made:

     "337.    Necessity   for   securing  independence   of subordinate  judiciary.   The Federal and High Court  Judges will  be  appointed by the Crown and their  independence  is secure;   but appointments to the Subordinate Judiciary must necessarily  be  made by authorities in India who will  also exercise  a certain measure to control over the Judges after appointment,  especially  in  the matter  of  promotion  and posting.   We  have been greatly impressed by the  mischiefs which  have  resulted  elsewhere from a system  under  which promotion  from grade to grade in a judicial hierarchy is in the  hands of a Minister exposed to pressure from members of a  popularly elected Legislature.  Nothing is more likely to

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sap the independence of a magistrate than the knowledge that his  career  depends  upon the favour of  a  Minister;   and recent  examples (not in India) have shown very clearly  the pressure  which  may  be  exerted  upon  a  magistracy  thus situated  by  men  who are known, or believed, to  have  the means  of bringing influence to bear upon a Minister.  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 than in  the case of the superior Judges...".

     As  a  result, when the Government of India Act,  1935 was passed it contained special provisions (Sections 254-256 already  quoted)  with  regard to District  Judges  and  the subordinate judiciary.  It will be noticed that there was no immediate attempt to put the subordinate criminal magistracy under  the  High  Courts but the posting and  promotion  and grant  of  leave  of persons belonging  to  the  subordinate judicial  service of a Province was put in the hands of High Court  though  there  was right of appeal to  any  authority named in the rules and the High Courts were asked not to act except  in  accordance  with the conditions of  the  service prescribed by the Rules.  As regards the District Judges the posting and promotions of a District Judge was to be made by the  Governor  of  the Province  exercising  his  individual judgment  and  the High Court was to be consulted  before  a recommendation  to  the  making of such an  appointment  was submitted to the Governor.  Since S.240 of the Government of India  Act, 1935 provided that a civil servant was not to be dismissed   by  an  authority   subordinate  to  that  which appointed   him,  the  Governor   was  also  the  dismissing authority.   The  Government of India Act, 1935  was  silent about   the  control  over  the   District  Judge  and   the subordinate  judicial services.  The administrative  control of the High Court under S.224 over the courts subordinate to it   extended  only  to  the   enumerated  topics   and   to superintendence   over  them.   The   independence  of   the subordinate  judiciary  and to the District Judges was  thus assured to a certain extent, but not quite.

     (11)  When  the  Constitution was  being  drafted  the advance  made  by the 1935 Act was unfortunately lost  sight of.   The draft Constitution made no mention of the  special provisions, not even similar to those made by the Government of India Act, 1935, in respect of the subordinate judiciary. If  that had remained, the judicial services would have come under  Part  XIV  dealing with the services  in  India.   An amendment,   fortunately,  was  accepted   and  led  to  the inclusion  of  Arts.233  to 237.  These  articles  were  not placed  in the Chapter on services but immediately after the provisions  in regard to the High Courts.  The articles went a  little  further  than the corresponding sections  of  the Government of India Act."

     It  was  further held that Articles 233 and  235  made mention  to two distinct powers.  The first relates to power of  appointment of persons, their posting and promotion  and the  second  is  the power to control.  This Court  did  not accept the contention that the word "District Court" denoted only the court but not the Presiding Judge.  The latter part of  Article 235 has been held to refer to the man who  holds the  office.  The Articles vest "control in the High Court".

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The  purpose  of  the aforesaid Articles was held to  be  in regard  with  the Directive Principles in Article 50 of  the Constitution  which  mandates  the States to take  steps  to separate  the  judiciary  from the executive in  the  public services  of  the  State.   Reference   to  Article  50   in connection  with  Articles  233, 234 and  235,  clearly  and unambiguously  shows  that  this  Court has  held  that  the judicial  service was a public service within the meaning of Article  309  regarding  which law could be  made,  however, subject  to  other provisions of the Constitution  providing and  guaranteeing  the independence of judiciary.   In  B.S. Yadav  &  Ors, etc.v.  State of Haryana & Ors., etc.   [1981 (1)  SCR 1024] this Court considered the scope and extent of Articles  235 and 309 of the Constitution and held that  the power  to frame rules regarding the judicial officers vested in  the Governor and not in the High Court.  The first  part of  Article  235 vests the control over District Courts  and courts  subordinate thereto in the High Court and the second part  of that Article mandates that nothing in the  Articles shall  be construed as taking away from any person belonging to  the  judicial service any right of appeal which  he  may have  under  law  regulating the conditions  of  service  or authorising  the High Court to deal with him otherwise  than in  accordance with the conditions of his service prescribed under  such law.  Outer limits of the High Court’s powers of control  over  the  subordinate  judiciary  have  thus  been defined  providing that it is not open to the High Court  to deny  to a member of the subordinate judicial service of the State  the  right  of  appeal  given to  him  by  law  which regulates  the  conditions  of his service.  Even  the  High Court, in exercise of its power of control, cannot deal with such person otherwise than in accordance with the conditions of his service which are prescribed by law.  This court then put  a  question to itself as to who had the power  to  pass such  a law and answered it:  "Obviously not the High  Court because,  there is no power in the High Court to pass a law, though rules made by the High Court in the exercise of power conferred  upon it in that behalf may have the force of law. There  is a distinction between the power to pass a low  and the  power  to make rules, which by law, have the  force  of law.  Besides, law which the second part of Art.235 speaks of,  is law made by the legislature because, if it were  not so,  there  was no purpose in saying that the  High  Courts power  of  control  will  not be construed  as  taking  away certain  rights  of certain persons under a  law  regulating their  conditions  of  service.   It  could  not  have  been possibly intended to be provided that the High Courts power of  control  will  be subject to the conditions  of  service prescribed  by  it.   The clear meaning, therefore,  of  the second  part  of  Article 235 is that the power  of  control vested  in the High Court by the first part will not deprive a judicial officer or the rights conferred upon him by a law made  by  the  legislation   regulating  him  conditions  of service.

     Article  235  does not confer upon the High Court  the power  to  make rules relating to conditions of  service  of judicial officers attached to district courts and the courts subordinate thereto.  Whenever, it was intended to confer on any  authority  the power to make any special provisions  or rules,  including  rules relating to conditions of  service, the  Constitution has stated so in express terms.  See,  for example  Articles  15(4), 16(4), 77(3), 87(2), 118,  145(1), 146(1),  and  2(148)(5), 166(3), 176(2), 187(3),  208,  225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).

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Out of this fasciculus of Articles, the provisions contained in  Articles  225,  227(2) and (3) and 229(1) and  (2)  bear relevance  on  the question, because these  Articles  confer power  on the High Court to frame rules for certain specific purpose.  Article 229(2) which is directly in point provides in  express terms that subject to the provisions of any  law made  by  the  legislature of the State, the  conditions  of service  of  officers and servants of a High Court shall  be such  as  may be prescribed by the rules made by  the  Chief Justice  or  by  some other Judge or officer  of  the  Court authorised  by  the  Chief  Justice to make  rules  for  the purposes.   With this particular provision before them,  the framers  of  the  Constitution  would  not  have  failed  to incorporate  a  similar provision in Article 235 if  it  was intended  that the High Courts shall have the power to  make rules  regulating  the  conditions of  service  of  judicial officers  attached to district courts and courts subordinate thereto.

     Having seen that the Constitution does not confer upon the  High  Court  the  power to make  rules  regulating  the conditions  of service of judicial officers of the  district courts  and the courts subordinate thereto, we must  proceed to  consider:  who, then, possesses that power?  Article 309 furnishes  the  answer.   It  provides   that  Acts  of  the appropriate  legislature  may regulate the  recruitment  and conditions  of  service  of persons appointed  to  posts  in connection  with  the affairs of the Union or of any  State. Article 248(3), read with Entry 41 in List II of the Seventh Schedule,  confers upon the State legislatures the power  to pass laws with respect to "State public services" which must include  the  judicial services of the State.  The power  to control  vested  in  the  High  Court  by  Art.235  is  thus expressly, by the terms of that Article itself, made subject to  the  law  which  the  State  legislature  may  pass  for regulating  the  recruitment  and   service  conditions   of judicial  officers  of the State.  The power to pass such  a law  was evidently not considered by the Constitution makers as an encroachment on the ’control jurisdiction’ of the High Courts  under  the first part of Article 235.   The  control over the district courts and subordinate courts is vested in the  High  Court in order to safeguard the  independence  of judiciary.   It is the High Court, not the executive,  which possesses  control  over the State judiciary.  But, what  is important to bear in mind is that the Constitution which has taken  the greatest care to preserve the independence of the judiciary  did not regard the power of the State legislature to  pass  laws regulating the recruitment and conditions  of service  of  judicial  officers as an infringement  of  that independence.   The  mere  power to pass such a law  is  not violative  of the control vested in the High Court over  the State Judiciary.

     It  is  in  this context that the proviso  to  Art.309 assumes relevance and importance.  The State legislature has the  power  to  pass  laws regulating  the  recruitment  and conditions  of  service of judicial officers of  the  State. But  it was necessary to make a suitable provision  enabling the  exercise of that power until the passing of the law  by the legislature on that subject.  The Constitution furnishes by  its  provisions ample evidence that it abhors a  vacuum. It  has  therefore made provisions to deal  with  situations which arise on account of the ultimate repository of a power not exercising that power.  The proviso to Art.309 provides, in  so  far  as material, that until the  State  Legislature

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passes  a  law  on  the  particular  subject,  it  shall  be competent  to  the  Governor  of the  State  to  make  rules regulating  the recruitment and the conditions of service of the judicial officers of the State.  The Governor thus steps in  when the legislature does not act.  The power  exercised by  the Governor under the proviso is thus a power which the legislature is competent to exercise but has in fact not yet exercised.   It  partakes  of  the  characteristics  of  the legislative, not executive, power.  It is legislative power.

     That  the  Governor possesses legislative power  under our  Constitution is incontrovertible and, therefore,  there is  nothing  unique  about the Governors  power  under  the proviso  to Article 309 being in the nature of a legislative power.  By Article 168, the Governor of a State is a part of the legislature of the State.  And the most obvious exercise of  legislative power by the Governor is the power given  to him by Art.213 to promulgate ordinances when the legislature is not in session.  Under that Article, he exercises a power of  the same kind which the legislature normally  exercises: the  power to make laws.  The heading of Chapter IV of  Part VI  of  the  Constitution,  in   which  Art.213  occurs,  is significant:   "Legislative  Power  of the  Governor".   The power  of  the Governor under the proviso to Article 309  to make  appropriate  rules  is  of   the  same  kind.   It  is legislative  power.   Under Article 213, he substitutes  for the legislature because the legislature is in recess.  Under the  proviso  to  Article  309,   he  substitutes  for   the legislature  because  the legislature has not yet  exercised its power to pass an appropriate law on the subject.

     It  is true that the power conferred by Article 309 is "subject  to" the provisions of the Constitution.  But it is fallacious  for  that  reason to contend that  the  Governor cannot frame rules regulating the recruitment and conditions of  service  of the judicial officers of the State.  In  the first place, the power of control conferred upon High Courts by  the first part of Article 235 is expressly made subject, by  the  second  part of that Article,  to  laws  regulating conditions  of service of its judicial officers.  The  first part  of  Article 235 is, as it were, subject to  a  proviso which  carves out an exception from the area covered by  it. Secondly,  the Governor, in terms equally express, is  given the  power  by the proviso to Article 309 to frame rules  on the  subject.   A combined reading of Articles 235  and  309 will  yield  the  result  that   though  the  control   over Subordinate  Courts  is  vested  in   the  High  Court,  the appropriate  legislature,  and until that legislature  acts, the  Governor  of  the State, has the power  to  make  rules regulating  the recruitment and the conditions of service of judicial   officers  of  the  State.    The  power  of   the legislature  or of the Governor thus to legislate is subject to  all  other  provisions  of the  Constitution  like,  for example,  Articles 14 and 16.  The question raised before us is  primarily  one of the location of the power, not of  its extent.   The  second  part of Article  235  recognises  the legislative  power  to  provide   for  recruitment  and  the conditions of service of the judicial officers of the State. The  substantive  provision  of Article 309,  including  its proviso, fixes the location of the power.  The opening words of Article 309 limit the amplitude of that power."

     It  was further declared that the mere power to pass a law  or to make rules having the force of law regulating the

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service  conditions did not impinge upon the control  vested in  the  High Court over the district courts and the  courts subordinate thereto by Article 235.  Such laws or the rules, as  the  case  may be, can provide for general  or  abstract rules  (of  seniority in that case) leaving it to  the  High Court  to apply them to each individual case as and when the occasion arises.  The opening words of Article 309, "subject to  provisions  of  this Constitution" do  not  exclude  the provision contained in the first part of Article 235.  It is thus  clear that though the legislature or the Governor  has the  power  to  regulate seniority of judicial  officers  by laying  down  rules of general application, yet  that  power cannot  be  exercised  in  a   manner  which  will  lead  to interference  with  the control vested in the High Court  by the  first part of Article 235.  In The High Court of Punjab &  Haryana,  etc.  etc.  vs.  State of Haryana & Ors.,  etc. etc.   [AIR  1975  SC  613] it was held that  the  power  of appointment  of  persons to be District Judges is vested  in the  Governor  of  the State under Article 233.   The  words "posting  and  promotion of district judge" in  Article  233 mean initial appointment by direct recruitment of persons to be  district  judges and the posting mentioned  therein  the initial  posting.   Promotion  of district judges  has  been explained  to  mean  promotion  of persons  to  be  district judges.   In  All India Judges Association case(supra)  this Court  no doubt held:  "The judicial service is not  service in the sense of ’employment’.  The judges are not employees. As  members  of the judiciary, they exercise  the  sovereign judicial  power  of the State.  They are holders  of  public offices  in  the same way as the members of the  council  of ministers  and  the members of the legislature.  When it  is said  that  in a democracy such as ours, the executive,  the legislature  and the judiciary constitute the three  pillars of  the  State, what is intended to be conveyed is that  the three  essential functions of the State are entrusted to the three  organs  of  the State and each one of  them  in  turn represents  the authority of the State.  However, those  who exercise the State power are the ministers, the legislatures and  the  judges,  and not the members of  their  staff  who implement  or  assist in implementing their decisions.   The council of ministers or the political executive is different from  the secretarial staff or the administrative  executive which  carries out the decisions of the political executive. Similarly,   the   legislators  are   different   from   the legislative  staff.   So also the Judges from  the  judicial staff.   The parity is between the political executive,  the legislators  and  the Judges and not between the Judges  and the  administrative executive.  In some democracies like the U.S.A.,  members  of some State judiciaries are  elected  as much  as the members of the legislature and the heads of the State.  The Judges, at whatever level they may be, represent the  State  and  its  authority  unlike  the  administrative executive or the members of the other services.  The members of  the  other services, therefore, cannot be placed on  par with  the members of the judiciary, either  constitutionally or functionally.

     This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another  important reason.  Judicial independence cannot  be secured  by  making mere solemn proclamations about it.   It has  to be secured both in substance and in practice.  It is trite  to  say  that those who are in want cannot  be  free. Self-reliance  is  the  foundation   of  independence.   The society  has  a  stake in ensuring the independence  of  the

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judiciary,  and no price is too heavy to secure it.  To keep the  judges in want of the essential accoutrements and  thus to impede them in the proper discharge of their duties is to impair and whittle away justice itself."

     But  it  has  to  be kept in mind  that  in  the  same judgment  this Court considered the powers under Article 309 of  the  Constitution  authorising  the  executive  and  the legislative  to  prescribe  the service  conditions  of  the judiciary,  however,  rejecting the contention that in  that regard judiciary did not have any say in the matter.  It was held:   "In  view of the separation of the powers under  the Constitution,  and the need to maintain the independence  of the  judiciary to protect and promote democracy and the rule of  law, it would have been ideal if the most dominant power of  the  executive and the legislative over  the  judiciary, viz.,  that  of determining its service conditions had  been subjected to some desirable checks and balances.  This is so even  if ultimately, the service conditions of the judiciary have  to be incorporated in and declared by the  legislative enactments.   But the mere fact that Art.309 gives power  to the  executive and the legislature to prescribe the  service conditions of the judiciary does not mean that the judiciary should  have no say in the matter.  It would be against  the spirit of the Constitution to deny any rule to the judiciary in that behalf, for theoretically it would not be impossible for  the executive or the legislature to turn and twist  the tail  of  the  judiciary by using the said  power.   Such  a consequence  would be against one of the seminal mandates of the  Constitution,  namely, to maintain the independence  of the judiciary."

     It   may  be  noticed  that   the  All  India   Judges Association  had filed Writ Petition (C) No.1022/89 in  this Court  praying  therein:  "1.  Uniformirty in  the  Judicial cadres in the different States and Union Territories;

     2.   An appropriate enhanced uniform age of retirement for the Judicial Officers throughout the country;

     3.  Uniform pay scales as far as possible to be fixed;

     4.   Residential accommodation to be provided to every Judicial Officer.

     5.   Transport  facility  to  be  made  available  and conveyance allowance provided.

     6.   Adequate  perks  by  way  of  Library  Allowance, Residential  Office Allowance, and Sumptuary Allowance to be provided.

     7.  Provision for inservice training to be made."

     Upon  consideration  of various aspects including  the reports  of  the Law Commission, this Court recommended  and directed that:  "(i) An all India Judicial Service should be set  up and the Union of India should take appropriate steps in this regard.

     (ii)  Steps should be taken to bring about  uniformity in  designation of officers both in civil and criminal  side

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by 31.3.1993.

     (iii) Retirement age of judicial officers be raised to 60   years  and  appropriate  steps   are  to  be  taken  by 31.12.1992.

     (iv)  As  and when the Pay Commissions/Committees  are set  up in the States and Union Territories, the question of appropriate  pay scales of judicial officers be specifically referred and considered.

     (v)  A  working  library  at the  residence  of  every judicial officer has to be provided by 30.6.1992.  Provision for sumptuary allowance as stated has to be made.

     (vi)  Residential  accommodation  to  every   judicial officer  has to be provided and until State accommodation is available,   Government    should    provide   requisitioned accommodation   for   them  in   the  manner  indicated   by 31.12.1992.    In  providing    residential   accommodation, availability of an office room should be kept in view.

     (vii)   Every  District  Judge   and  Chief   Judicial Magistrate  should have a State vehicle.  Judicial  officers in  sets of 5 should have a pool vehicle and others would be entitled   to   suitable  loans  to  acquire   two   wheeler automobiles within different time limits as specified.

     (viii) Inservice Institute should be set up within one year at the Central and State or Union Territory level."

     It  may  be  remembered that the  recommendations  and directions  were  issued by the Court in a writ petition  in which  no  objection was raised regarding the competence  of the  State to enact laws and make rules under Article 309 of the  Constitution.  In exercise of its powers under  Article 32  of  the  Constitution this Court was  clothed  with  the authority  and  powers vesting in it under Articles 141  and 142  of the Constitution.  The judgment in All India  Judges Association  case decided that the issuance of directions by the  Court  did not have the effect of encroaching upon  the powers  of  the executive and the legislature under  Article 309  of  the  Constitution.   The   Court  referred  to  the recommendations  of the Law Commission made in the year 1958 and  observed that the said recommendations had been made to improve  the  system of justice and thereby to  improve  the content  and quality of justice administered by the  Courts. It  was  noted  that  "instead   of  improving,  they   have deteriorated  making it necessary to update and better  them to   meet  the  needs  of   the  present  times".   It   was specifically  held:  "By giving directions in question, this Court has only called upon the executive and the legislature to  implement  their imperative duties.  The Court do  issue directions  to  the authorities to perform their  obligatory duties  whenever  there  is  a  failure  on  their  part  to discharge  them.  The power to issue such mandates in proper cases belongs to the Courts.  As has been pointed out in the judgment  under review, this Court was impelled to issue the said  directions  firstly  because  the  executive  and  the legislature  had failed in their obligations in that behalf. Secondly,  the  judiciary  in  this  country  is  a  unified institution  judicially though not administratively.   Hence uniform  designations  and hierarchy, with  uniform  service conditions  are  unavoidable  necessary  consequences.   The

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further  directions  given, therefore, should not be  looked upon  as an encroachment on the powers of the executive  and the  legislature to determine the service conditions of  the judiciary.   They are directions to perform the long overdue obligatory duties.

     The  contention  that  the directions  of  this  Court supplant  and bypass the constitutionally permissible  modes for  change  in  the law, we think, wears thin if  the  true nature  and  character of the directions are realised.   The directions   are  essentially  for   the  evolvement  of  an appropriate  national policy by the Government in regard  to the  judiciarys condition.  The directions issued are  mere aids  and  incidental  to  and   supplemental  of  the  main direction and as a transitional measure till a comprehensive national policy is evolved.  These directions, to the extent they go, are both reasonable and necessary."

     In  Hari Datt Dainthla & Anr.  vs.  State of  Himachal Pradesh  &  Ors.   [AIR  1980  SC  1426]  this  Court  held: "Article  233 confers power on the Governor of the State  to appoint persons either by direct recruitment or by promotion from  amongst  those  in the judicial  service  as  District Judges  but this power is hedged in with the condition  that it can be exercised by the Governor in consultation with the High  Court.  In order to make this consultation  meaningful and  purposive  the  Governor has to consult High  Court  in respect  of  appointment  of each person as  District  Judge which  includes an Additional District Judge and the opinion expressed  by  the  High Court must be  given  full  weight. Article   235  invests  control   over  subordinate   courts including the officers manning subordinate courts as well as the  ministerial  staff attached to such courts in the  High Court.  Therefore, when promotion is to be given to the post of   District   Judge  from   amongst  those  belonging   to subordinate  judicial service, the High Court unquestionably will  be  competent  to decide whether a person is  fit  for promotion  and consistent with its decision to recommend  or not  to  recommend such person.  The Governor who  would  be acting  on  the advice of the Minister would hardly be in  a position  to  have intimate knowledge about the quality  and qualification  of such person for promotion.  Similarly when a  person  is to be directly recruited as a  District  Judge from  the  Bar the reasons for attaching full weight to  the opinion  of the High Court for its recommendation in case of subordinate  judicial  service would mutatis mutandis  apply because  the  performance of a member of the Bar  is  better known  to the High Court than the Minister or the  Governor. In  Chandra Mohan v.  State of Uttar Pradesh (1967) 1 SCR 77 at  p.83  (AIR 1966 SC 1987), a Constitution Bench  of  this Court observed as under:

     "The constitutional mandate is clear.  The exercise of the  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."

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     This  view was reaffirmed in Chandramouleshwar  Prasad v.   Patna High Court (1970) 2 SCR 666:  (AIR 1970 SC  270), observing:

     "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 their merits as also demerits."

     It  was further held that in the absence of  statutory rules regulating the promotions from one post in subordinate judicial  service  to higher post in the same  service,  the High  Court  would  be  the sole  authority  to  decide  the question  in exercise of its control under Article 235 which empowers  the  High  Court with complete  control  over  the subordinate   courts.   The  existence   of   this   control comprehends  the  power to decide eligibility for  promotion from  one post in the subordinate judicial service to higher post  in the same service except where one reaches the stage of  giving promotion when Article 233 would be attracted and the  power to give promotion would be in Governor hedged  in with  the  condition  that  the   Governor  can  act   after consultation  with the High Court which has been  understood to  mean  on the recommendation of the High Court.   If  the High Court felt that the post of District Judge being a very responsible  post  should be filled up by promotion only  on merits,  it is incumbent upon it to propose necessary  rules and  get  them enacted under Article 309.  In Chandra  Mohan vs.   State of Uttar Pradesh & Ors.  [1967 (1) SCR 77]  this Court held that the Constitution contemplates an independent judiciary   in  the  States  and  in  order  to  place   the independence  of the subordinate judiciary beyond  question, provides,  in Article 50 of the Directive Principles for the separation  of the judiciary from the executive and  secures such independence by enacting Articles 233 to 237 in Chapter VI   of   the  Constitution.    Under  these  Articles   the appointment  of  the District Judges in any State are to  be made  by  the Governor of the State, from the  two  sources, namely, :  (i) service of the Union or of the State and (ii) members  of the Bar.  The words "service of the Union or  of the State" do not mean any other service of the Union or the State  except  the  judicial service as defined  in  Article 236(b)  of the Constitution.  This Court specifically  held: "Appointments  of  persons  to  be,   and  the  posting  and promotion  of, district judges in any state shall be made by the  Governor  of  the  State.  There  are  two  sources  of recruitment,  namely,  (i)  service of the Union or  of  the State,  and  (ii) members of the Bar.  The said judges  from the first source are appointed in consultation with the High Court  and those from the second source are appointed on the recommendation  of  the  High  Court.  But in  the  case  of appointments  of persons to the judicial service other  than as district judges, they will be made by the Governor of the State in accordance with rules framed by him in consultation with  the High Court and the Public Service Commission.  But the  High Court has control over all the district courts and courts  subordinate  thereto, subject to certain  prescribed limitations.

     So  far  there is no dispute.  But the  real  conflict rests  on  the question whether the Governor can appoint  as district  judges  persons  from   services  other  than  the judicial  service;  that is to say, can he appoint a  person

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who  is in the police, excise, revenue or such other service as  a district judge?  The acceptance of this position would take  us  back to the pre-independence days and that too  to the  conditions  prevailing in the Princely States.  In  the Princely  States one used to come across appointments to the judicial  service  from police and other departments.   This would   also  cut  across  the   well-knit  scheme  of   the Constitution  and  the principle underlying it, namely,  the judiciary  shall  be an independent service.  Doubtless,  if Art.233(1)  stood alone, it may be argued that the  Governor may  appoint any person as a district judge, whether legally qualified  or  not, if he belongs to any service  under  the State.  But Art.233(1) is nothing more than a declaration of the  general  power  of  the   Governor  in  the  matter  of appointment  of  district judges.  It does not lay down  the qualifications  of the candidates to be appointed or  denote the  sources from which the recruitment has to be made.  But the  sources of recruitment are indicated in cl.(2) thereof. Under  cl.(2) of Art.233 two sources are given, namely,  (i) persons  in  the service of the Union or of the  State,  and (ii)  advocate  or  pleader.   Can it be said  that  in  the context  of  Ch.VI  of  Part VI of  the  Constitution,  ’the service  of the Union or of the State’ means any service  of the  Union  or  of the State or does it  mean  the  judicial service  of  the Union or of the State?  The setting,  viz., the  chapter  dealing with subordinate courts, in which  the expression  the service appears indicates that the service mentioned therein is the service pertaining to courts.  That apart,  Art.236(b) defines the expression judicial service to mean a service consisting exclusively of persons intended to  fill the post of district judge and other civil judicial posts  inferior  to  the post of district  judge.   If  this definition,  instead of appearing in Art.236, is placed as a clause  before Art.233(2), there cannot be any dispute  that ’the  service’  in  Art.233(2) can only  mean  the  judicial service.  The circumstances that the definition of ’judicial service’  finds  a  place in a subsequent Article  does  not necessarily lead to a contrary conclusion.  The fact that in Art.233(2)  the expression ’the service’ is used whereas  in Art.234  and 235 the expression ’judicial service’ is  found is  not decisive of the question whether the expression ’the service’  in  Art.233(2)  must be something other  than  the judicial  service,  for, the entire chapter is dealing  with the  judicial service.  The definition is exhaustive of  the service.   Two  expressions in the definition bring out  the idea  that  the  judicial service consists of  hierarchy  of judicial  officers starting from the lowest and ending  with district   judges.    The   expressions  ’exclusively’   and ’intended’  emphasise  the  fact that the  judicial  service consists  only  of persons intended to fill up the posts  of district  judges and other civil judicial posts and that  is the  exclusive service of judicial officers.  Having defined ’judicial  service’ in exclusive terms, having provided  for appointments  to  that  service  and  having  entrusted  the control  of the said service to the care of the High  Court, the  makers  of the world Constitution not have conferred  a blanket power on the Governor to appoint any person from any service as a district judge.

     Reliance  is placed upon the decision of this court in Rameshwar  Dayal  v.   State of Punjab (1961) 2 SCR  874  in support  of  the contention that the service in  Art.233(2) means  any  service under the State.  The question  in  that case  was,  whether a person whose name was on the  roll  of advocates  of the East Punjab High Court could be  appointed

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as  a  district judge.  In the course of the  judgment  S.K. Das, J., speaking for the Court, observed:

     "Article  233 is a self contained provision  regarding the  appointment of District Judges.  As to a person who  is already  in  the  service of the Union or of the  State,  no special  qualifications  are laid down and under cl.(1)  the Governor  can  appoint such a person as a district judge  in consultation  with the relevant High Court.  As to a  person not  already  in  service, a qualification is laid  down  in cl.(2)  and  all  that is required is that he should  be  an advocate or pleader of seven years standing."

     This  passage  is nothing more than a summary  of  the relevant  provisions.  The question whether the service in Art.233(2)  is any service of the Union or of the State  did not  arise for consideration in that case nor did the  Court express any opinion thereon.

     We,  therefore, construe the expression the  service in cl.(2) of Art.233 as the judicial service."

     There  is no dispute that the power under Article  309 conferred  upon the legislature and the executive is subject to  the  opening words of the Article.  The legislature  and the executive cannot enact any law or make any rule which is in violation of any other provision of the Constitution.  If any  law or rule is made contravening any other provision of the  Constitution  including Articles 14, 15, 16,  19,  124, 217,  233,  234,  and 235, such law or rule shall  be  void. This Article, however, does not debar the legislature or the executive  to  make  provision with respect to  the  matters which  are  not in the covered field of other provisions  of the  Constitution.   Various provisions of the  Constitution including  Part III Chapter VI, Part XIV Chapter I and  Part XI  Chapter  I  read with Seventh Schedule are  to  be  read conjointly  and interpreted harmoniously to make the various organs  of  the  State function in their  respective  fields subject  to  limitations imposed by the Constitution  itself including  the  power of the courts of judicial review.   It cannot,  therefore, be accepted that the judicial service is such  an  independent  service   which  deprives  the  State Legislature  and the executive to enact laws and make  rules with  respect  to matters mentioned in Article 309  but  not covered  under Articles 233 to 236 of the Constitution.  The provisions  of  Part III Chapter VI and Part XIV  Chapter  I have  to be understood as complementary and supplementary to each  other.  Exercise of power under Article 309 is further curtailed  by  the  constitutional mandate that  no  law  be enacted  and rule made which in any way affects the  working of  independent  judiciary in the country.  Such  principles shall,  however,  be  not applicable in the case  of  higher judiciary  constituted and established under Part V  Chapter IV  and  Part VI Chapter V.  The Supreme Court of India  and the  High  Courts  in the country are the  creation  of  the Constitution  and  the  judges presiding over  such  courts, constitutional   functionaries.   The    higher   judiciary, therefore,  cannot  be  equated with the  "public  services" contemplated  under Part XIV Chapter I of the  Constitution. The conditions of eligibility for appointment to the Supreme Court  are  such conditions as are prescribed under  Article 124 of the Constitution and for the High Court as prescribed under Article 217 of the Constitution.  These conditions, if

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allowed  to  be amended, modified or substituted by  way  of legislation  in  terms of Article 309 of  the  Constitution, would  render  the  Union and the  State  judiciary  defunct which,  may  amount to clipping its wings resulting  in  the destruction  of  independence  of the  higher  judiciary  as contemplated  by  the Constitution framers.  The  conditions for  appointment of judges to the Supreme Court and the High Courts  may  not  be  amendable  even  by  a  constitutional amendment  as  the same is likely to tamper with the  Indian judiciary and thereby adversely affect the basic features of the  Constitution.   The  Constitution  envisages  a  single judiciary,  uniformity  in  Fundamental   laws,  civil   and criminal,  and  a common All India Service to man  important posts.   Speaking on the nature of the constitutional scheme Dr.Ambedkar  in his speech delivered on November 4, 1948  in the  Constituent  Assembly had said:  "A dual  judiciary,  a duality of legal codes and a duality of civil services, as I said, are the logical consequences of a dual polity which is inherent in a federation.  In the USA, the Federal Judiciary and the State Judiciary are separate and independent of each other.   The  Indian Federation though a Dual Policy has  no Dual  Judiciary  at  all.  The High Courts and  the  Supreme Court   form   one  single   integrated   Judiciary   having jurisdiction  and  providing remedies in all  cases  arising under  the constitutional law, the civil law or the criminal law.   (Constitutent  Assembly Debates.  Vol.7 (1948-49)  at pp.34,36-37)."

     This  Court  in S.P.  Gupta’s case (Supra) held  that: "An  analysis of the various provisions of the  Constitution and  other laws having a bearing on the question shows  that every  High  Court in India is an integral part of a  single Indian  judiciary and judges who hold the posts of judges of High  Courts belong to a single family even though there may be  a  slight  variation in two of the authorities  who  are required  to  be consulted at the time of  the  appointment. The  provisions  dealing with the High Courts are  found  in Chapter  V  in  Part  VI   of  the  Constitution  containing provisions  governing  the  States and the salaries  of  the judges  of  a  High Court are paid out of the funds  of  the State  or States over which it exercises jurisdiction.   Yet it  is difficult to say that each High Court is  independent of the other High Courts.  A perusal of the other provisions in  that  Chapter shows that the State Legislatures and  the State  Governments  have  very little to do so  far  as  the organisation of the High Courts is concerned."

     Judges  of  the High Court do not constitute a  single All  India  Cadre  or a ’judicial service’  which  could  be subjected  to the Legislature in terms of Article 309 of the Constitution.   While  dealing  with the High  Court  Judges Transfer case, Bhagwati, J.  (as His Lordship then was) held that:   "....the judiciary should be in a country like India which  is marching along the road to social justice with the banner  of democracy and the rule of law, for the  principle of  independence  of  the  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. It  is necessary for every Judge to remember constantly  and continually  that  our  Constitution is  not  a  non-aligned rational  charter.   It is a document of  social  revolution which casts an obligation on every instrumentality including

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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  judiciary has, therefore, a socio- economic destination and a creative function.   It has to use the words of Glanville Austin,  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.  It cannot remain content to  act merely  as an umpire but it must be functionally involved in the goal of socio-economic justice".  In these appeals, even the  learned  counsel appearing on behalf of the  appellants has not tried to compare or equate the subordinate judiciary with   the  distinct  and   independent   higher   judiciary comprising  of  the  judges of Supreme Court  and  the  High Courts.   The  apprehension  expressed  on  behalf  of   the respondents  that if allowed to enact laws like the impugned Bihar  Act, the Union Legislature may by law or amendment of the   Constitution  provide  reservations   in  the   higher judiciary  with  the  object of controlling it  and  thereby demolishing the independence of judicary, is thus apparently misconceived  besides  being  far-fetched.  In  the  present appeals,  it  is  conceded  before us  by  all  the  parties concerned  that appointments to the posts of District Judges are  governed by the Bihar Superior Judicial Service  Rules, 1951  (hereinafter referred to as "1951 Rules") which  have, admittedly,  been made by the Governor of Bihar in  exercise of  powers conferred upon him by the proviso to Article  309 read  with  Article 233 of the Constitution.   Reference  to Article  233 of the Constitution only indicates that  before making the rules the High Court had been consulted.  Article 233  of the Constitution itself does not envisage the making of  rules either by the Governor or by the High Court.  Rule 5  of the 1951 Rules provides that appointment to the  Bihar Superior  Judicial  Service  shall, in the  first  instance, ordinarily  be to the post of Additional District & Sessions Judge and shall be made by the Governor in consultation with the  High  Court:   "(a) by direct  recruitment  from  among persons  qualified  and  recommended by the High  Court  for appointment  under  clause  (2)  of   Article  233  of   the Constitution;  or

     (b)  by  promotion,  from among members of  the  Bihar Judicial Service."

     Of the Posts in the cadre of the service, 2/3rd are to be filled by promotion and 1/3rd by direct recruitment.  The State  Government may, in consultation with the High  Court, deviate  from the said proportion in either direction.  Rule 3 read with Schedule provides the sanctioned strength of the service  whereas other provisions relate to promotion,  pay, allowances  and  seniority.  There is no dispute that  these rules have been and are being acted upon till date i.e.  for about  half  a century.  The High Court was, therefore,  not justified  in  holding that the law made under  Article  309 would  not apply to the judicial service.  If the rules made by  the  executive under Article 309 have been  applied  and acted  upon,  no objection could be taken to  the  sovereign powers  of  the  legislature  to enact and  make  laws  with respect  to  the judicial service in exercise of  its  power under  first part of Article 309 of the Constitution.  It is also  admitted  that  for appointments to the posts  in  the judicial  service other than the District Judges, the  State

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Governor, in exercise of his powers conferred upon him under Article 234 of the Constitution, after consultation with the High  Court  of  Judicature at Patna and  the  Bihar  Public Service  Commission  has  made the rules  called  as  "Bihar Judicial  Service  (Recruitment) Rules,  1955"  (hereinafter referred  to  as  "1955 Rules").  Rule 2 of the  said  Rules provides  that the recruitment to the post of munsiff  shall be  made in accordance with the rules and recruitment to the post of subordinate judge shall be made by the High Court by promotion  of munsiffs confirmed under Rule 24 and appointed under  Rule 26.  Rule 3 authorises the Governor to decide in each  year the number of vacancies in the post of munsiff to be  filled by appointments to be made on a substantive basis or  on a temporary basis or both.  The Bihar Public  Service Commission  is  obliged  to announce in each  year  in  such manner  as  they  think fit the number of  vacancies  to  be filled  in that year by direct recruitment on the basis of a competitive  examination for which applications are required to  be  invited  from candidates eligible  for  appointments under  the  rules.  The Commission has the power to fix  the limit  in  any particular year as to the eligibility of  the candidates  to be admitted to the written examination and if the  number  of candidates exceeds to the limit  fixed,  the Commission may make a preliminary selection of candidates to be  admitted  to  the written examination, on the  basis  of their  academic  records.   No candidate  of  the  Scheduled Castes  or  the Scheduled Tribes who is  otherwise  eligible under  the  Rules  can  be excluded from  appearing  at  the written  examination.   Rules 6 provides:  "6.  A  candidate may  be of either sex, and must - (a) be under 31 years  and over  22 years of age on the 1st day of August preceding the year in which the examination is held:

     Provided  that  a candidate belonging to  a  Scheduled Caste  or a Scheduled Tribe must be under 36 years and  over 22 years of age on the said date:

     Provided further that no candidate who does not belong to  a Scheduled Caste or a Scheduled Tribe shall be  allowed to take more than five chances at the examination;

     (b) be a graduate in Law of a University recognised by the  Governor  or  a  Barrister-at-Law or a  member  of  the faculty  of  advocates  in Scotland, or an Attorney  on  the rolls  of  a  High  Court,   or  possess  other  educational qualifications  which  the Governor may, after  consultation with  the  High  Court  and the Commissions,  decide  to  be equivalent to those prescribed above;  and

     (c)  be  a  practitioner at the Bar of  at  least  one years   continuous   standing   on    the   date   of   the advertisement."

     Rule  6A provides that no person who has more than one wife  living  shall  be  eligible  for  appointment  to  the service.   Rule 7 provides that a candidate must be of sound health,  good  physique and active habits and free from  any physical  defect  likely  to interfere  with  the  efficient performance  of the duties of a member of the Service.  With his  application  a  candidate  is required  to  submit  the required  documents as detailed in Rule 9.  The  examination is  to be held according to syllabus specified in Appendix C to  the  Rules which are liable to alteration from  time  to time  by  the  Government after consultation with  the  High

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Court and the Commission.  The Commission has the discretion to  fix  the qualifying marks in any or all subjects at  the written  examination  in  consultation with the  Patna  High Court.    The  minimum  qualifying   marks  for   candidates belonging to Scheduled Castes and Scheduled Tribes shall not be higher than 35 per cent unless the number of such persons at  the  written  examination  according  to  the  standards applied  for  other candidates is considerably in excess  of the  number  of  candidates required to fill  the  vacancies reserved  for the Scheduled Casts and the Scheduled  Tribes. the  Commission  is obliged to consult the Chief Justice  of the  High Court in the matter of selection of examiners  for the  Law  papers  prescribed for  the  written  examination. Viva-voce  test  of the candidates is to be held under  Rule 17.   The Chief Justice is authorised to appoint an  officer to  represent the High Court at the viva-voce test.  Rule 20 provides  that  Commission  shall,   while  submitting   the recommendations, consider the claims of qualified candidates belonging  to the Scheduled Castes and the Scheduled Tribes. If  the  list of nominees submitted under Rule 19  does  not contain  an  adequate number of candidates belonging to  the Scheduled  Castes  and the Scheduled Tribes, the  Commission shall  submit  a supplementary list nominating a  sufficient number  of  such candidates as in their opinion  attain  the required  standard of qualifications and are in all  respect suitable  for  appointment  to  the service.   It  has  been conceded  before  us that to give effect to Rule 20  of  the Rules,  the  Commission and the High Court have been  acting upon  the Government orders issued from time to time  making reservations to the extent of 24% in favour of the Scheduled Castes  and the Scheduled Tribes.  It is undisputed that the 1955  Rules  were  made  strictly  in  accordance  with  the requirement  of Article 234 of the Constitution after proper consultation  with  the  High Court and the  Public  Service Commission.  It appears that the controversy arose only when the  State  Government insisted to make reservations in  the Superior  Judicial Service which was vehemently resisted  by the  High Court.  The facts disclosed in the appeal entitled State  of  Bihar vs.  Deepak Singh & Ors.  indicate that  on 30.1.1991  the State Government consented the High Court and Bihar   Public   Service     Commission   regarding   making reservations  in  the judicial service.  The Public  Service Commission   vide  its  letter   No.   112  dated  30.1.1991 communicated its consent regarding the proposed amendment in the  Bihar  Judicial  Service   (Recruitment)  Rules,  1955. However,  the  High Court vide Memo No.5999 dated  16.4.1991 informed the Government that "the court, in the interests of judiciary,  is unable to agree to the proposal of the  State Government".   The  aforesaid letters exchanged between  the State  Government, High Court and Public Service  Commission obviously indicate that the State Government had intended to amend  the  rules already framed in exercise of  the  powers vesting   in  the  Governor  under   Article  234   of   the Constitution.   In view of the resistance of the High Court, being  one  of the consultees in terms of Article  234,  the State  of Bihar opted to promulgate an Ordinance called "The Bihar  Reservation  of Vacancies in Posts and Services  (for Scheduled  Castes  and Scheduled Tribes and  Other  Backward Classes)   Ordinance,1991"   under  Article   213   of   the Constitution.    The  aforesaid   Ordinance  was  thereafter substituted by the Bihar Act No.3 of 1992 which was enforced with immediate effect except Section 4 which was declared to have  come  into force with effect from 1st November,  1994. The  Reservation  Ordinance  was   challenged  in   C.W.J.C. No.7619/91.   The validity of letter dated 1.10.1990 whereby

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directions  were issued to the effect that the vacancies  of 24th  Judicial  Competitive Examination shall be  filled  in accordance  with  the said Ordinance were  also  challenged. During  the  pendency  of the aforesaid writ  petition,  the Ordinance  was  replaced by an Act No.3 of 1992.   The  High Court  allowed the writ petition vide the order impugned  in this  appeal holding that the impugned Ordinance/Act as also the  letter dated 1.10.1990.  In so far as its applicability to  the State is concerned, it was ultra vires and  contrary to  the  mandate  of  Article   234  of  the   Constitution. Similarly  the  facts  revealed in Civil  Appeal  No.9072/96 indicate  that  when  on  13.10.1993  the  State  Government decided  to  fill  up the vacancies of  Additional  District Judges  through  fresh advertisement as per directions,  the State  Government on 16.11.1993 requested the High Court  to send  the  vacancies  categorywise in  accordance  with  the provisions  of  Act of 1991.  On 16.12.1993 the  High  Court informed  the  State Government that fresh advertisement  be issued  under  Rule  5(a) and 6 of the 1951 Rules.   It  was further  recommended that for eligibility the minimum age of the  applicants  be  35  years and  maximum  50  year.   The Government  was further informed by the High Court that  the 1991  Act  will  neither be applicable nor followed  in  the matter of direct recruitment from the Bar.  No preference be given to any person on the basis of caste, religion and sex. On  4.1.1994  the High Court was informed by the  Government that  the  provisions  of  the  Act of  1991  will  also  be applicable  to  the  appointments in the  Superior  Judicial Service in the State of Bihar.  The High Court was requested to  send the vacancies reservation- wise.  On 25.2.1994, the High  Level  Meeting  under the Chairmanship  of  the  Chief Secretary  to the Government of Bihar was held in which  the Secretary  (Law)  and  Registrar  of  the  High  Court  also participated.   In  this meeting a request was made  to  the High  Court  to send upto date vacancies in accordance  with the Reservation Act as the non compliance was apprehended to lead  to  an offence under the Act.  The High Court  on  5th April,  1994  reiterated  its position and  vide  it  letter addressed  to the Additional Secretary to the Government  of Bihar  intimated:   "With reference to your above  mentioned letter on the subject noted above, I am directed to say that the  State  Government has already been informed  about  the resolution  adopted  by  the  Court that in  the  matter  of appointment of Additional District and Sessions Judge direct from  the  Bar,  merit  would be the sole  criteria  and  no preference  will  be given to any candidate on the basis  of caste, religion or sex.  The resolution adopted by the Court does  further state that without accepting the provision  of the  Bihar Reservation of Vacancy in Posts and Services (for Scheduled   Castes/Scheduled  Tribes   and  other   Backward Classes)  Act,  1991, the Court are always prepared to  give preference  to a candidate belonging to the Scheduled  Caste or Scheduled Tribe, provided that he is found to be of equal merit with other candidates.

     It needs to be appreciated that the post of Additional District  and  Sessions  Judge,  in  the  Superior  Judicial Service,  carries  with it a greater responsibility  in  the matter  of administration of justice.  The post demands that the  holder  of the post should be a person  of  appreciable merit  and  requisite calibre to perform the functions of  a Senior Judicial Officer."

     On  1.9.1994,  the High Court again intimated  to  the

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State  Government of its position.  It is to be noticed that before   this   date  the   State  Government   had   issued advertisement   on  16.6.1994   inviting  applications   for recruitment  of Additional District and Sessions Judge  from the  Bar  reserving  post  for   the  Scheduled  Castes  and Scheduled  Tribes, backward classes, etc.  to the extent  of the  limits prescribed under the Reservation Act.  Aggrieved by  the  advertisement/notification  respondents  Advocates filed  the  writ  petition seeking a  declaration  that  the provisions  of the Reservation Act were void and inoperative insofar  as  they  relate  to the  Bihar  Superior  Judicial Service.   The aforesaid writ petition was disposed of  vide the  judgment  impugned in this appeal.  It is thus  evident that  having failed to get the consent of the High Court  in framing  the  Rules either under Article 234 or Article  309 read with Article 233 of the Constitution, resort was had to the  issuance  of  Ordinance  and  thereafter  enacting  the impugned Act.  This unfortunate position arose on account of the  antagonistic and belligerent approaches adopted by  the State  Government and the High Court.  Had the aforesaid two wings  of the State acted fairly realising their obligations under  the  Constitution, the confrontation could have  been avoided.   Such  a recourse was depricated by this Court  in B.S.   Yadavs  case  (supra)  observing  "this  unfortunate position  has  arisen largely because of the failure of  the State  Governments  to take the High Court  into  confidence while  amending  the Rules of Service.  We must express  our concern  at  the manner in which the Rules of  the  Superior Judicial Service have been amended by the Governor of Punjab and  particularly by the Governor of Haryana".  In that case the  Rules  had been amended despite the opposition  of  the High  Court  and amendment in Haryana was made in  order  to spite  a  single judicial officer who was a direct  recruit. Both the State Government and the Patna High Court failed to realise  their  constitutional obligations in the matter  of public  service.   The  insistence of the  State  Government could have been substituted by persuations and antagonism by the  High Court could have been avoided by adopting rational approach  realising  the responsibility of the State of  the constitutional   obligations   mandating    them   to   make reservations  in  favour  of  the  weaker  sections  of  the society.   It  cannot be denied that the Reservation  Policy has  been accepted to be a part of the Indian  Parliamentary Democracy as a safeguarding measure to protect the interests of  the Scheduled Castes and Scheduled Tribes.  Reservations have  been  made  in  the   Constitution  to  safeguard  the interests  of Scheduled Castes and Scheduled Tribes  keeping in  mind the proportions of their population.  It cannot  be denied  that  such weaker sections of the society have  been subjected  to  decades  of   exploitation,  persecution  and discrimination  by  the hostile dominating  classes,  having been kept outside the sphere of the mainstream for centuries and  deprived of their due share in the polity of the State. They were acknowledged to be given a special treatment under the Constitution.  The reservation on the basis of the caste has  a  long  history  in  our country.   Good  or  bad  the reservation  being  the part of the Constitution,  the  High Court should not have adopted an adamant attitude of totally refusing  to concede to the request of the State  Government for  making  reservations  for the weaker  sections  of  the society.   The hostility between two wings of the State have not,  in any way, strengthened the democratic set up nor has it benefitted any section of the Society or institution.  It is  to be noticed that the reservations made by the impugned Act  were  not  challenged  on the ground  of  being  either

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violative  of  Fundamental Rights or contrary to  the  other provisions of the Constitution, except to the extent noticed hereinabove.  Relying upon judgment in K.N.  Chandra Sekhara &  Ors.v.   State of Mysore (AIR 1963 Mysore 292)  and  M.I. Nadaf vs.  The State of Mysore (AIR 1967 Mysore 77) the High Court  vide the order impugned in Deepak Kumars case  held: "Article  234 directs the appointment of persons to  certain cadres  of  the  judicial  service  of  the  State  only  in accordance  with the Rules made under that Article and which appoints  the  Governor of the State, the authority to  make these  rules after consultation with the High Court and  the Public  Service Commission.  It is manifest from Article 234 of  the Constitution that the constitutional intent was that appointments  to  the judicial services in a  State,  unlike other State services, should be regulated only by rules made under  that Article and not by a law made by the Legislature of  the  State, which was conferred power by Article 309  to make  laws for recruitment to other services.  The  judicial service  was selected for special treatment and appointments to it were excepted out of the operation of Article 309, and out  of the orbit of ordinary Legislative Control.   Article 234  incorporates  a  command  of the  Constitution  on  the subject  of  appointments  to  the cadres  of  the  judicial service  referred to in it and constitutes the Governor in a sense  a select Legislative organ for the enactment of rules for  the accomplishment of the Constitutional purpose.   The status  of the rules so enacted is as high as that of a  law made  by the Legislature under Article 309 and of the  rules made  under the proviso to it.  The attributes of a Governor to enact rules under Article 234 therefore resemble those of a  Legislature  enacting legislation in its own  legislative field.   The similitude between the power of the Legislature and  the power of the Governor being so obvious, it is clear that  the  bounds  of permissible delegation  in  each  case should also be similar."

     It  cannot  be disputed that the judicial service  has been  given  a special treatment under the Constitution  and the appointments to the judicial service can be made only in accordance with the rules made by the Governor under Article 234  after  consultation  with   the  State  Public  Service Commission  and  the High Court exercising  jurisdiction  in relation  to  such State.  It follows, therefore,  that  the Governor  or the executive have no right, power or authority to  make  rules with respect to the recruitment  of  persons other  than  the District Judges to the judicial service  of the  State  under  Article 309 of the  Constitution.   Rules governing  the  service  conditions of such persons  in  the judicial  service  can be made by the Governor only  in  the manner  as prescribed under Article 234 of the Constitution. It  is, however, difficult to accept the finding of the High Court that the status of the Rules enacted under Article 234 of  the  Constitution is as high as that of law made by  the legislature  under Article 309.  It cannot be accepted  that the  attributes  of a Governor to enact Rules under  Article 234  resemble those of a legislature enacting legislation in its  own legislative field and have overriding effect.   The power  of  the  legislature  to   make  law  regulating  the recruitment  and conditions of service for persons appointed to  public services and posts in connection with the affairs of  Union  or  of  any  State   under  Article  309  of  the Constitution  is  only  subject to the other  provisions  of Constitution  which  have been noticed hereinbefore.   Rules made  under the delegated legislation cannot be termed to be such  other provisions of the Constitution.  It is not  only

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Article  234  which confers power upon the Governor to  make Rules  in the manner prescribed but various other provisions including  Article 309 which authorise him to make rules for the  purposes envisaged and the restrictions and  restraints imposed  by the Constitution itself.  It is settled position of  law that the Legislature cannot part with its  essential legislative  function.   A  surrender   of  such   essential function would amount to abdication of legislative powers in the eyes of law.  No rule or law made by virtue of delegated legislation  can supersede or override the powers  exercised or  the  law made by the delegator of power,  the  sovereign legislative,  in  exercise of its constitutional right  with respect  to a matter or subject over which it has  otherwise plenary   power  of  legislation.   In  Re:   Article   143, Constitution  of India and Delhi Laws Act (1912) etc.   [AIR 1951 SC 332], Kania, CJ, after dealing with various cases of foreign courts found that the Indian Legislature had plenary powers  to  legislate  on the subjects  falling  within  its powers  under the Constitution.  He further observed, "every power  given  to  a delegate can be  normally  called  back. There can hardly be a case where this cannot be done because the  legislative  body which confers powers on the  delegate has always the power to revoke that authority and it appears difficult  to visualise a situation in which such power  can be  irrevocably  lost".   Referring  to  the  constitutional scheme  in  this  country, Kania, CJ held:  "Under  the  new Constitution  of  1950,  the British  Parliament,  i.e.   an outside  authority,  has  no more control  over  the  Indian Legislature.   That  Legislatures  powers are  defined  and controlled  and  the limitations thereon prescribed only  by the Constitution of India.  But the scope of its legislative power has not become enlarged by the provisions found in the Constitution  of India.  While the Constitution creates  the Parliament  and although it does not in terms expressly vest the  legislative  powers in the Parliament exclusively,  the whole  scheme  of the Constitution is based on  the  concept that  the  legislative  functions  of   the  Union  will  be discharged  by  the  Parliament and by no other  body.   The essential   of   the  legislative   functions,   viz.,   the determination  of the legislative policy and its formulation as  a  rule of conduct, are still in the Parliament  or  the State  Legislature, as the case may be and nowhere else.   I take  that view because of the provisions of Article 357 and Article  22(4)  of the Constitution of India.   Article  356 provides  against  the  contingency of the  failure  of  the constitutional  machinery in the States.  On a  proclamation to  that  effect  being issued, it is  provided  in  Article 357(a)  that the power of the legislature of the State shall be  exercisable by or under the authority of the Parliament, and  it  shall be competent for the Parliament to confer  on the  President the power of the legislature of the State  to make  laws  "and  to authorise the  President  to  delegate, subject  to  such conditions as he may think fit to  impose, the  powers  so  conferred  to any  other  authority  to  be specified  by  him in that behalf." Sub-clause (2)  runs  as follows:

     "For   Parliament  or  for   the  President  or  other authority  in  whom  such authority to make  law  conferring powers and imposing duties, or authorising the conferring of powers  and  the  imposition of duties, upon  the  Union  or officers and authorities thereof."

     It  was  contended  that  on  the  breakdown  of  such machinery authority had to be given to the Parliament or the

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President,  firstly, to make laws in respect of subjects  on which  the State Legislature alone could otherwise make laws and, secondly, to empower the Parliament or the President to make  the executive officers of the State Government to  act in  accordance  with  the laws which the Parliament  or  the President  may  pass in such emergency.  It was argued  that for  this purpose the word ’to delegate’ is used.  I do  not think this argument is sound.  Sub-clause (2) relates to the power  of the President to use the State executive  offices. But  under clause (a) Parliament is given power to confer on the  President  the power of the ’legislature’ of the  State ’to  make  laws’.   Article 357(1)(a) thus  expressly  gives power  to  the  Parliament to authorise  the  President  ’to delegate  his legislative powers’.  If powers of legislation include  the power of delegation to any authority there  was no  occasion  to  make  this additional  provisions  in  the Article  at  all.   The  wording of  this  clause  therefore supports the contention that normally a power of legislation does not include the power of delegation."

     Fazal  Ali, J.  on the point relating to the functions of the Legislature and its authority to delegate held:  "The legislature  must normally discharge its primary legislative function  itself  and  not  through others (2)  Once  it  is established  that  it has sovereign powers within a  certain sphere,  it  must follow as a corollary that it is  free  to legislate  within that sphere in any way which appears to it to  be  the  best way to give effect to  its  intention  and policy  in making a particular law, and that it may  utilize any  outside  agency  to any extent it finds  necessary  for doing  things  which it is unable to do itself or  finds  it inconvenient  to  do.  In other words, it can do  everything which  is  ancillary  to  and necessary  for  the  full  and effective  exercise  of  its power of legislation.   (3)  It cannot  abdicate  its legislative functions, and  therefore, while  entrusting  power to an outside agency, it  must  see that  such  agency acts as a subordinate authority and  does not  become  a  parallel legislature.  (4) The  doctrine  of separation  of powers and the judicial interpretation it has received in America ever since the American Constitution was framed,  enables  the  American courts to  check  undue  and excessive  delegation but the Courts of this country are not committed  to that doctrine and cannot apply it in the  same way as it has been applied in America.  Therefore, there are only  two  main checks in this country on the power  of  the legislature  to delegate, these being its good sense and the principle  that  it should not cross the line  beyond  which delegation amounts to abdication and self-effacement’."

     Mahajan, J.  was of the view that the Parliament being omnipotent   despot,   apart  from   being   a   legislature simpliciter,  it  can,  in exercise of its  sovereign  power delegate its legislative functions or even create new bodies conferring on them power to make laws.  Whether it exercises its power of delegation of legislative power in its capacity as  a  mere  legislature or in its  capacity  as  omnipotent despot,  its actions were not subject to judicial  scrutiny. In  the  same case Mukherjea, J.  held that the  legislature cannot  part  with  its essential legislative  function.   A surrender  of  this  essential   function  would  amount  to abdication of its power in the eyes of law.  In Hotel Balaji &  Ors.,  etc.  etc.  vs.  State of Andhra Pradesh  &  Ors., etc.   etc.   [AIR  1993  SC  1048]  this  Court  held  that

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legislative   competence  of  a   legislature  to  enact   a particular  provision  in the Act cannot be made  to  depend upon the rule or rules, as the case may be, at a given point of  time.   Conferment  of power upon the Governor  to  make rules  in  the  manner prescribed under Article 234  of  the Constitution   cannot  be  interpreted  to  mean  that   the constitutional makers had intended to take away the power of the legislature, admittedly, conferred upon it under Part XI Chapter  I  read with Seventh Schedule of the  Constitution. Such  an  interpretation, if accepted, would be contrary  to the  settled  principles  relating   to  interpretation   of Statutes.   Whereas it is true that the Governor of a  State cannot  make  rules  with  respect to  subjects  covered  by Article  234  in any other manner, (Article 309) it  cannot, however,  be accepted that such power of the Governor can be equated  with the sovereign power of the legislature to make laws  with respect to the assigned field.  Law making  power of  the legislature with respect to judicial service without encroaching  upon the subjects covered by Article 233 to 236 has  impliedly  been  acknowledged  by this  Court  in  B.S. Yadavs  Case  (supra).   The High Court of Mysore  in  K.N. Chandra  Sekhars  case (supra) while referring to  Articles 233  and  309 had made certain observations which have  been relied  upon  by Patna High Court in the impugned  judgment. In that case the High Court of Mysore in fact was not called upon  to decide the issue of the finality of the rules  made under  Article 234 of the Constitution in relation to a  law made  under  Article  309.  In the case before  Mysore  High Court,   the  dispute  had  arisen   with  respect  to   the appointments to the posts of munsiffs in judicial service of the  State of Mysore.  The Public Service Commission of  the State  conducted  a competitive examination under the  rules made  for  the purposes by the Governor of the  State  under Article  234 and proviso to Article 309 of the Constitution. The  candidates who took the examination but did not succeed challenged the notification of the Public Service Commission on  the  ground of its being without lawful authority.   The notification  of the Public Service Commission was impeached on  the  ground that since the rules did not  prescribe  the criterion  by  which  the success of  candidates  should  be determined,  there was no criterion by which the  Commission could  have determined whether a candidate has succeeded  or failed  and it was not upon the Commission to prescribe  for itself  a criterion not found in the rules.  The  Commission had  applied  a  formula for ascertaining the names  of  the successful  candidates by fixing 45% as qualifying marks for the  candidates  belonging to Scheduled Caste and  Scheduled Tribes  and  55%  for others.  It was further  claimed  that power  of  the  Governor  to fix the  qualifying  marks  was impliedly  delegated to the Commission.  In that context the High  Court  examined  Article 234 of the  Constitution  and observed:   "It  is  reasonably clear that  the  purpose  of Article  234 is that the collective wisdom of the  Governor, the  High  Court  and the Public Service  Commission  should regulate appointments referred to in that article, and it is plain  that  no rule made without the required  consultation can  have any effect or potency.  It is obvious that  within the  range  of  the many matters requiring  such  collective deliberation  would fall a multitude of subjects such as the determination  of  the  question  whether  the  appointments should be made on the basis of an examination, and if so, of what  pattern,  the selection of the subjects in  which  the candidates  should  be  examined, the determination  of  the qualifying  and  maximum  marks,   the  appointment  of  the authority to conduct the examination, the qualifications and

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disqualifications of the candidates and the like."

     It further held:

     "If,  on  its  true  construction,  Art.234  does  not require  that  standard to be specified or formulated  by  a rule,  then alone, could it be said that the Governor  could delegate  that  function  to  another.  That  article  is  a special   constitutional   provision   removing   from   the provisions  of Art.309 certain appointments to the judiciary and  enjoining the Governor to make them in accordance  with rules  enacted  in consultation with the High Court and  the Public Service Commission.  What are the matters about which the  Governor is required to consult the High Court and  the Public  Service Commission.  The Public Service  Commission, it  is  obvious, was required to be consulted in  regard  to matters  in which it had special competence to offer advice. The  High  Court  was required to be consulted so  that  its advice  may  be  obtained as to how and in what  manner  the appointments  to  a  service  under   its  control  may   be satisfactorily made."

     It was conceded that there was no rule prescribing the qualifying  marks.   Nor  was the power to  determine  those qualifying  marks  expressly  delegated to  any  legislative authority.   In  that case the State had prayed for  placing the  construction  on Article 320(3) to the effect that  the clause  did  not  require the Governor  or  the  legislature functioning under Article 309 of the Constitution to consult the  Public  Service  Commission for  determination  of  the qualifying  marks and that it was open to the legislature or the  Governor,  as the case may, to determine and fix  those qualifying marks without such consultation.  The court found that  the provisions of Article 320(3) were so comprehensive which  did  not  admit the interpretation sought  for.   The determination of qualifying marks was held to be an integral part  of  scheme for an examination because the  examination was  the  method  applied for recruitment  for  testing  the suitability  of  candidates  to the judicial  service.   The Court   observed  that  "the   construction   suggested   by Mr.Advocate   General  which  makes  it  possible  for   the legislature  or  the Governor to decline to  consult  Public Service  Commission  on the determination of the  qualifying marks  and  to  that extent diminishes the  utility  of  the construction  and makes it futile and illusory, cannot merit acceptance".   Consultation  required under Article 234  was held  to extend to everyone of the matters on which  Article 320(3)  enjoined consultation.  The qualifying marks secured in  a competitive examination prescribed by rules made under Article 234 shall form the subject matter of consultation by the  governor  with  the High Court and the  Public  Service Commission.   While  striking down the selection, the  Court held  that  it  shall  be  open  to  the  Governor  to  make appropriate rule determining the qualifying marks and to the Public  Service  Commission  to  conduct  another  viva-voce examination  in  accordance  with those Rules.   No  Act  of legislature  made  on  the subject was in  issue  warranting observations  made  in para 23 of the  judgment.   Otherwise also while dealing with Chandra Shekar’s case(supra) Brother Majmudar,J.   has  rightly  concluded:  "Somnath  Iyer,  J., speaking for the Division Bench observed that:  ’Article 234 excepts  out  of the operation of Art.309,  appointments  to judicial  service and constitutes the Governor in a sense  a

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select  legislative  organ  for enactment of rules  for  the purpose’.   The aforesaid observation will of course have to be read down in the light of the Constitution Bench decision of this Court in B.S.  Yadav’s case (supra)."

     In  M.I.  Nadafs case(supra) relying on K.N.  Chandra Sekhars  case the High Court of Mysore held that the  Rules framed by the Governor under Article 309 of the Constitution could  not override the Rules made by him under Article  234 of the Constitution.  The petitioner in that case had relied upon  the  Rules framed under proviso to Article 309 of  the Constitution  dealing  with  recruitment generally  for  the Mysore   State  Civil  Services   whereas   specific   Rules pertaining  to the judicial service had earlier been  framed under  Article 234 of the Constitution.  After referring  to K.N.  Chandra Sekhars case the Court held:  "From a reading of  that decision, it is clear that no rule relating to  the appointment  of the persons mentioned in Article 234 of  the Constitution  can  be validly made by the  Governor  without consulting  either  the  High Court or  the  Public  Service Commission.    As  seen  earlier,   the   Mysore   Munsiffs (Recruitment)  Rules, 1958 prescribed the age limits for the appointments  of  the Munsiffs.  Rules therein were made  by the  Governor  under  Article  234 of  the  Constitution  in consultation  with  the  High Court and the  Public  Service Commission.   Any  variation of that rule can only  be  made under   Article  234  and  that   in  accordance  with   the requirements  of  that Article.  As seen earlier "Rules"  do not comply with the requirements of Article 234.  That being so, we are unable to accept the contention of Mr.Javali, the learned   counsel   for   the   petitioner  that   the   age qualification  prescribed under the Munsiffs  (Recruitment) Rules  stood  modified by rule 6(4)(b) of the "Rules".   Our view  that  appointments to judicial services of  the  State other  than that of the District Judges should be made  only in  accordance  with  the rules made by the  Governor  under Article  234 of the Constitution after consultation with the State   Public  Service  Commission   and  the  High   Court exercising  jurisdiction  in relation to such State and  not under  rules  framed  by  him   under  Article  309  of  the Constitution is also supported by the decision of the Madras High Court in N.Devasahayam v.  State of Madras AIR 1958 Mad 53  and that of the Rajasthan High Court in Rajvi Amar Singh v.  State of Rajasthan AIR 1956 Raj.  104."

     It  is  true that if there is a conflict  between  the Rules  framed under Article 234 of the Constitution and  the Rules made under Article 309, the latter Rules, in so far as they  relate  to Subordinate Judiciary shall be  ineffective and  not  applicable.  However, main Article 309  cannot  be made  subject to the provisions of Article 234 except to the extent  indicated  in  Chapter  VI.   In  other  words,  the appropriate  legislature would be competent to make laws  if authorised  under  Chapter XI read with Seventh Schedule  of the  Constitution.   In case of conflict between  the  Rules made  under Article 234 and the laws made by the appropriate legislature,  the  Rules would give way to the laws made  by the  sovereign legislature.  Such law made, however, may  be declared  invalid or inapplicable to the judicial service if it  in  any way undermines the independence of judiciary  or otherwise  encroaches  upon  the  constitutional  guarantees under   aforesaid  Chapter  VI  or   is  violative  of   the Fundamental  Rights.  Giving any other interpretation  would

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amount  to usurping the power of the sovereign  legislature. Such  an  approach  would  be nugatory  to  the  concept  of Parliamentary  Democracy adopted by the people of India  for their  governance.   There cannot be two opinions  that  the Parliamentary  Democracy is one of the basic features of the Constitution  which  nobody can alter, modify or  substitute even in exercise of the constitutional powers conferred upon the  Parliament under Article 368 of the Constitution.   The High  Court  of Patna, therefore, fell in error  in  holding that  the law made by the sovereign legislature in  exercise of  the  powers vesting in it under Article 309 or  Part  XI read  with  Seventh  Scheduled of the Constitution  was  not applicable  to  the judicial service of the State of  Bihar. From   the  scheme  of   the  Constitution  with  particular reference  to Part VI, Chapter VI, Part XIV Chapter I,  Part XI  Chapter I and Seventh Schedule of the Constitution  what emerges  is that:  (i) The constitutional-makers had given a special  status and treatment to the judicial service;  (ii) That  the independence of judiciary is ensured which  cannot be  interfered  with either by an executive action or by  an act  of  legislature;  (iii) That the conditions of  service spelt  out  in  Chapter  VI of the  Constitution  cannot  be altered, modified or substituted either by rule making power or  by  legislation  made in exercise of  the  powers  under Article  309  of  the Constitution;  (iv) Rules  made  under Article    234    have   primacy    in   the    matter    of appointment/recruitment,  discipline  and   control  of  the judicial  service and even such rules cannot take away  from persons  belonging  to  the judicial service  any  right  of appeal  which  they  may have under the law  regulating  the conditions of their service or as authorising the High Court to  deal  with  them otherwise than in accordance  with  the conditions  of their service prescribed under such law;  (v) The  provisions  of  Chapter VI of Part VI  and  the  powers conferred  upon the appropriate legislature and the Governor under  Article  309 are complementary and  supplementary  to each  other  subject  to  the  conditions  of  ensuring  the independence  of  judiciary;  (vi) That in case of  conflict between  the  rules made under Chapter VI and under  Article 309,  the rules specifically framed under Article 234 of the Constitution  would prevail and the rules made under Article 309,  to  that extent, shall give in their way;  (vii)  That the  Parliament or the State Legislature can legislate  upon any  matter  including the matters relating to the  judicial service provided the legislation is permitted under Part XI, Chapter  I read with Seventh Schedule and is not in conflict with  other  provisions  of   the  Constitution  and  rights guaranteed  in  favour  of  the   judicial  service  by  the Constitution  itself under Part VI Chapter VI;  (viii)  Even if any law made by the appropriate legislature is held to be made  with plenary power of legislation and not in  conflict with  Part VI Chapter VI, being subject to Judicial  Review, it  can be challenged if it violates the Fundamental  Rights or  any other provision of the Constitution;  ix) As in  the case of Rules made under Article 234 of the Constitution, it is expected that if any rules are intended to be made by the executive  under  Article 309 with respect to  the  judicial service,  the  High Court shall be consulted and  its  views given due weight while making such rules.  It is needless to say  that in the process of consultation, the concerned High Court  shall keep in mind the constitutional obligations  of the  State under Part III, Part IV or any other provision of the Constitution.  x) The conclusions enumerated hereinabove are,  however,  not  applicable  to  the  higher   judiciary constituted and established under Part V Chapter IV and Part

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VI  Chapter V of the Constitution.  In view of the  position of  law as enunciated hereinabove, the findings of the  High Court  in  the impugned judgment in so far as it holds  that the  impugned Act is not applicable to the judicial  service cannot  be  sustained  and  is   liable  to  be  set  aside. Admittedly,  the impugned Act has not been challenged on any other ground.  It is not the case of the respondent that the Act  is  violative  of any of the Fundamental Rights  or  in violation of any constitutional provision or it tampers with the independence of judiciary.  The impugned Act does not in any  way  usurp  the  power  of   the  High  Court  to  make recommendations  for  appointment  of  District  Judges  and direct  promotions  or  appointment of  persons  other  than District Judges to the judicial service.  After enacting the law  in  accordance with the constitutional provisions,  the selection  for  appointment of the persons to  the  judicial service has been left to the wisdom and at the discretion of the  High  Court.   The High Court has not in any  way  been deprived  of  making  the selection of  the  best  available candidates if they otherwise fulfil the eligibility criteria and  come within the parameters prescribed by law.   Despite the impugned Act, making reservations, the power of the High Court  in the matter of appointments has not been  curtailed as  apprehended.   Appointments on the basis of  reservation can  be made of only such persons who are found eligible and recommended  by  the  High  Court.    The  Governor  or  the executive  cannot  appoint any person of their own from  the reserved  categories.  Once reservations are made, the  High Court  is  absolutely within its powers to fix the  category and  suitability to make selection for recommendation.   The independence  of  judiciary has not, in any way, been  taken away   by  the  exercise  of   legitimate  powers   by   the legislature.   By exercise of its power the legislature does not  appear  to have interfered with the overall control  of the  High Court over the subordinate judiciary.  Even though the  appropriate  authority to make the appointments is  the Governor,   yet  the  power  of   the  High  Court  or   the independence  of  judiciary  is not undermined  because  the power  to  make the appointment conferred upon the  Governor has  to  be exercised by him in consultation with  the  High Court.  This Court in M.M.  Gupta & Ors.v.  State of J & K & Ors.   [AIR  1982 SC 1579], after referring to a  catena  of authorities, concluded:  "We are of the opinion that healthy convention  and proper norms should be evolved in the matter of  these appointments for safeguarding the independence  of the  judiciary  in conformity with the requirements  of  the Constitution.   We  are of the opinion that normally,  as  a matter  of rule, recommendations made by High Court for  the appointment  of  a District Judge should be accepted by  the State  Government  and the Governor should act on the  same. If in any particular case, the State Government for good and weighty   reasons   find   it   difficult  to   accept   the recommendations  of  the  High Court, the  State  Government should communicate its views to the High Court and the State Government  must  have complete and  effective  consultation with  the  High Court in the matter.  There can be no  doubt that  if  the  High Court is convinced that there  are  good reasons  for  the  objections  on  the  part  of  the  State Government,  the High Court will undoubtedly reconsider  the matter  and  the  recommendations made by  the  High  Court. Efficient  and proper judicial administration being the main object  of these appointments, there should be no difficulty in  arriving  at a consensus as both the High Court and  the State Government must necessarily approach the question in a detached  manner for achieving the true objective of getting

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proper District Judges for due administration of justice."

     This  Court  in  Indra Sawhney & Ors.  vs.   Union  of India  &  Ors.   [1992  Supp.  (3) SCC 217]  has  held  that reservation  is  a remedy for historical discrimination  and its  continuing  ill-effects.  Poverty  demands  affirmative action.   Its eradication is a constitutional mandate.   The purpose  of Article 16(4) is to give adequate representation in  the  services  of the State to that class which  has  no representation.  This Articles carves out a particular class of  people and not individuals from the weaker sections  and the  class  it  carves out is the one which  does  not  have adequate  representation  in  the  services  of  the  State. Pandian  J.,  in  his concurring but separate  judgment  had observed:   "Though ’equal protection’ clause prohibits  the State  from making unreasonable discrimination in  providing preferences  and  facilities for any section of its  people, nonetheless  it  requires the State to afford  substantially equal opportunities to those, placed unequally.

     The  basic  policy  of reservation is to  off-set  the inequality and remove the manifest imbalance, the victims of which  for  bygone  generations lag far  behind  and  demand equality  by  special  preferences   and  their  strategies. Therefore,   a    comprehensive    methodological   approach encompassing  jurisprudential,  comparative, historical  and anthropological    conditions    is     necessary.      Such considerations  raise controversial issues transcending  the routine legal exercise because certain social groups who are inherently   unequal   and  who   have  fallen  victims   of discrimination  require compensatory treatment.  Needless to emphasise  that  equality  in fact or  substantive  equality involves  the necessity of beneficial treatment in order  to attain  the result which establishes an equilibrium  between two sections placed unequally."

     The  majority  judgment  further held  that  power  of "State"  to make any provision under Article 16(4) does  not necessarily  mean  that  such  provision  be  made  only  by Parliament  or  any State Legislature.  Government can  also introduce reservation by executive orders as appears to have been  practised in Bihar also so far as subordinate judicial service   is   concerned.   As   the  impugned  Act   making reservation  in the services including the judicial  service has not been challenged on the grounds of being violative of Fundamental Rights or in contravention of any constitutional provision   there   is   no   necessity   of   testing   its constitutional  validity  on the aforesaid touchstones.   In view of this position of law it has to be now ascertained as to whether the impugned Act had really made any provision of reservation  in  the judicial service as well or  not.   The High  Court  on perusal of its various provisions  has  held that  the Act did not relate to the judicial service and the insistence of the Government of Bihar to issue notifications in  accordance  with  the said Act by making  provision  for reservation  was uncalled for.  While interpreting the words "office  or department" occurring in the definition of  term "establishment"  under  Section 2(c) of the Act,  the  Court held  that  the  aforesaid words referred to the  office  or department  of  the  Court  and not the  Court  itself.   It further  held  that  reservation of posts  in  the  judicial service  de hors of the Reservation Act was not permissible. Intepreting  Section  4,  the  High  Court  observed:   "The

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correct construction of Section 4, in the context, read with Section 2(c) and 2(n), would be something like this--

     All appointments to service and posts in any office or department  (i.e.  establishment) of the judiciary by direct recruitment shall be regulated in the following manner."

     The  findings  of the High Court cannot be  upheld  in view of the clear provisions made in Bihar Act No.3 of 1992. The  Preamble of the Act states that it has been enacted  to provide  for  adequate representation of  Scheduled  Castes, Scheduled  Tribes  and other Backward Classes in  posts  and services  under the State.  Section 2(a) defines "Appointing authority"   in  relation  to  a   Service  or  post  in  an establishment  to  mean  the  authority  empowered  to  make appointment to such services or posts;  Section 2(c) defines "Establishment"  as  "any office or department of the  State concerned with the appointments to public services and posts in connection with the affairs of the State and includes (i) local or statutory authority constituted under any State Act for  the  time  being  in  force,  or  (ii)  a  co-operative institution   registered   under   the  Bihar   Co-operative Societies  Act, 1935 (Act 6 of 1935) in which share is  held by the State Government or which receives aid from the State Government in terms of loan, grant, subsidy, etc.  and (iii) Universities  and  Colleges affiliated to the  Universities, Primary,   Secondary  and  High   Schools  and  also   other educational  institutions  which are owned or aided  by  the State  Governments  and  (iv)  an  establishment  in  public sector";   Section  2(f)  defines   "Reservation"  to  mean, reservation of vacancies in posts and services for Scheduled Castes/Scheduled Tribes and Other Backward Classes;  Section 2(n)   defines  "State"  to   include  the  Government,  the Legislature  and the Judiciary of the State of Bihar and all local  or  other authorities within the State or  under  the control  of  the State Government.  Section 3 refers to  the "Services"  to  which the Act has not been made  applicable. Section 4 mandates that all appointments to the Services and Posts  in an establishment which are to be filled by  direct recruitment  shall  be  regulated in the  manner  prescribed therein.  50% of the available vacancies are to be filled up from  open  merit category and 50% from  reserved  category. The   vacancies  from  different   categories  of   reserved candidates  from  amongst  the 50% the  reserved  categories shall,  subject  to  other  provisions of  the  Act,  be  as follows:   (a) Scheduled Castes 14% (b) Scheduled Tribes 10% (c)  Extremely Backward Class 12% (d) Backward Class 8%  (e) Economically  Backward Woman 3% (f) Economically Backward 3% ------ Total 50%

     Section 5 of the Act provides:  "Review of Reservation Policy.--(1) It shall be the duty of the State Government to strive  to  achieve  the  representation  of  the  Scheduled Castes/Scheduled  Tribes  and other Backward Classes in  the various  services of posts of all the establishments of  the State  as defined in clauses (c) and (d) of Section 2 in the proportion  fixed  for  various  reserved  categories  under Section 4.

     (2)  The State Government shall review its reservation policy after every ten years:

     Provided  that every order made under sub-section  (2) shall be laid as soon as may be after it is made, before the

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State  Legislature while it is in session for a total period of  fourteen  days which may be comprised in one or  in  two successive sessions."

     The  aforesaid Act was amended by Act No.XI of 1993 by which  amongst  others  Sub- section (2) of  Section  4  was substituted   prescribing  the  extent   of  percentage   of reservations.   Similarly  clause (c) of sub-section (6)  of Section  4 was substituted prescribing the manner of filling the  vacancies  in  case  of  non-availability  of  suitable candidates  in  the  reserved  categories.   Clause  (e)  of sub-section  (6)  of  Section 4 was  substituted  providing: "(e)  If required number of candidates of Scheduled  Castes, Scheduled Tribes and Extremely Backward Classes and Backward Classes  and Women of 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  Bacward  Classes and Women of Backward Classes, as  the case may be, to fill the backlog vacancies only."

     A  combined  reading of the various provisions of  the Act  leave  no  doubt  that it is  also  applicable  to  the establishment  of  judicial  service and "not  only  to  the office  or  department  of the Court,  excluding  the  Court itself",  as  has  been held in the impugned  judgment.   No other  interpretation is possible in view of the definitions of  "establishment" and "State" in Sections 2(c) and 2(n) of the  Act.  It was not correct for the High Court to say that the  aforesaid  language of the statute was capable of  more than  one  interpretation and for that  such  interpretation which is not absurd or inconsistent should be followed.  The Court  is  required to interpret statute as far as  possible agreeable  to  justice  and reason.   While  interpreting  a statute  the  courts  have to keep in  mind  the  underlying policy  of  the statute itself and the object sought  to  be achieved  by  it.   This  Court  in  Nasiruddin  vs.   State Transport  Appellate  Tribunal [AIR 1976 SC 331] held:   "If the  precise words used are plain and unambiguous, they  are bound  to  be construed in their ordinary sense.   The  mere fact  that  the results of a statute may be unjust does  not entitle  a court to refuse to give it effect.  If there  are two  different  interpretations of the words in an Act,  the Court will adopt that which is just, reasonable and sensible rather  than  that  which is none of those things.   If  the inconvenience  is  an  absurd inconvenience, by  reading  an enactment  in its ordinary sense, whereas if it is read in a manner  in  which it is capable, though not in  an  ordinary sense  there  would not be an inconvenience at  all;   there would  be reason why one should not read it according to its ordinary  grammatical meaning.  Where the words are plan the court would not make any alteration."

     It  is  not correct as held by the High Court  in  the impugned judgment that interpreting the statute in favour of the appellant State, as desired, "would amount to relegating the  judicial  service at par with not only the  secretarial staff  or  the  administrative,   executive  or  council  of ministers  and  legislature but also their own staff.   That would  be contrary to law laid down by the Apex Court in All India  Judges  Case (supra)".  It appears that to arrive  at such  a  conclusion  the High Court was also  persuaded  and

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impressed  on  account of the statement before it  that  the provisions  of  the Reservation Act had been declared to  be ultra  vires,  as  regards the  Bihar  Subordinate  Judicial Service  i.e.,  as regards recruitment of judicial  officers other than that of the District Judges in the case of Deepak Kumar Singh & Others.  Interpretation of Section 4 as put in by the High Court, if accepted, would not only frustrate the purpose and object of the Bihar Act No.3 of 1992 but also be contrary  to the mandate of the Constitution as enshrined in its Part III and further declared in Part IV, Article 56 and Article  335  of the Constitution.  The High Court  is  thus held  to  have fell in error of law in declaring the Act  as ultra  vires in so far as its applicability to the  judicial service   is   concerned,  and  also   in  the   matter   of interpretation  of its various provisions.  The appeals  are accordingly  allowed by setting aside the judgments impugned therein  with a direction to the respondents to fill up  the vacancies  in  accordance with the Rules applicable and  the provisions  of  the  impugned  Act  without  disturbing  the appointments  made  till date on the basis of  this  Courts order.  The seniority of the members of the judicial service shall  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   as specifically  pointed  out by this Court in its order  dated 16.11.1995.  No costs.