Patna High Court
K.P. Verma vs State Of Bihar And Ors. on 10 April, 1989
Equivalent citations: AIR1989PAT276, AIR 1989 PATNA 276
Author: Satya Brata Sinha
Bench: Satya Brata Sinha
JUDGMENT S. Shamsulhasan, J.
1. The failure of the Governor thus the State Government and the High Court, on the administrative side, to observe the constitutional mandate, spelt out in Article 233 of the Constitution, has prompted the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution on its judicial side.
2. Under the Constitution, a specified number of persons are to be appointed to the cadre of Additional District Judges/District Judges in a State, The strength of the cadre in Bihar has been fixed by the Bihar Superior Judicial Service Rules, 1946 (hereinafter referred to as 'the Rules') enacted by Notification No. 20-1-5/50-A-7309 dated the 31st July, 1951, with retrospective commencement from the 21st of October. 1946. According to Rule 6 of the Rules, of the post in the cadre of the service, two-third shall be filled up by promotion and one-third by direct recruitment from amongst the Advocates being an Advocate for not less than seven years. The justifiability of this rule will be adverted to later on.
3. The situation that provoked the filing of this application was "that since 1979, when the last appointments were made from amongst the Advocates, the posts of Additional District Judges have been filled up only by promotion. Further, the ratio quoted above in the Rules was not only given a go bye while filling up specified number of vacancies but the number of vacancies that should have been kept reserved for appointment from amongst the Advocates was filled up by promotion from amongst those already in service, This has created a piquant situation. In spite of the ratio fixed, there are only eight such persons who are all holding the position of District Judges who were recruited from amongst the Advocates and as matter stands today, there are 30 vacancies on the basis of the analysis of the cadre the total strength of which is 38. The anomaly of the situation thus is that all those, who will be appointed on the basis of the present vacancy hereafter from amongst the Advocates, will rank junior to those who have already been appointed by promotion even though a good part of these vacancies had occurred much earlier than those filled up by promotion. This has, therefore, resulted in blighting the career of many a promising Advocate and even of those who will hereafter be gallant enough to seek the appointment and be ultimately appointed and all this because of the thoughtless indifference to this important aspect of our judicial system. It has now fallen upon us to resurrect whatever we can to preserve an integral part of the constitutional provision relating to superior judicial service in the State.
4. The relevant provisions of the Constitution relating to the instant subject, are contained in Articles 233, 234 and 235. It is relevant to set out these Articles which are as follows : --
"233. (1) Appointments of persons to be, and the posting and the promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
233A. xx xx x
234. 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.
235. 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. "
(Expression 'District Judge' includes the Additional District Judges and Sessions Judges and others -- vide Article 236 of the Constitution of India) As I read Article 233 of the Constitution, it endows the Governor with the power to appoint the District Judges and to promote and post them. A clog of consulting the High Court has been introduced in the exercise of this power. This Article is broadly the same as Article 217 of the Constitution in regard to the appointment of the High Court Judges, only difference being that the authorities, who have to be consulted, are different. In this Article, two avenues of recruitment of the District Judges have been created -- one by direct appointment and the other by promotion of those officers who are already in service. Thereafter, for the purposes of recruitment to the post of District Judge from amongst the Advocates, an eligibility clause of not less than seven years of practice has been introduced.
5. The next Article is Article 235 which has been quoted above. This Article endows the High Court with complete jurisdiction untrammelled by any executive interference except beyond the rights made available under any rule regulating the service condition of officers or authorising t he High Court to deal with an officer otherwise than in accordance with the condition of his service in a manner not provided for in the Rules relating to his condition of service. In other words, rules could be framed regulating condition of service without interfering with the High Court's power of supervision and control over the District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service and holding any post inferior to the post of District Judge. Further the power of the High Court to be consulted by the Governor as envisaged in Article 233 is also apparently entirely untrammelled and will not countenance any situation which would amount to executive interference with the power.
6. Article 234, however, endows the Governor with the power to make appointments to the Judicial Service other than District Judges by framing rules and while doing so consulting the Public Service Commission and the High Court. It is significant to note that while specifically the Governor is constitutionally empowered to frame rules under Article 234, in relation to the situation spelt out in that Article, no such specific power or authority has been endowed on the Governor in relation to the appointment of District Judges under Article 233 or exercise of supervision and control as envisaged under Article 235 except to the extent for regulating the condition of service. Comparatively, therefore, power to make rules under Article 234 is more extensive than under Article 235.
7. In this application, we are only concerned with the recruitment to be made under Article 233 of the Constitution The procedure that is now prevailing is in accordance with the Rules enacted in 1950 and hitherto all the appointments have been made on the basis of the Rules and whatever procedure evolved by the High Court as and when it was consulted.
8. Rule 2 contains definitions of 'cadre', 'direct recruit' and 'promoted officer'. Rule 3 envisages the strength of the cadre which is detailed in the schedule and is subject to amendments by the Governor in consultation with the High Court. Rule 4 makes eligible certain classes of people who are entitled to fill up the post of District Judges. Clause relevant for the matter in issue is Rule 4(ii). Rule 5 virtually reiterates Article 233 of the Constitution except to the extent that it introduces a rider that ordinarily initial appointment should be made to the post of Additional District Judges and further spells out the two channels of recruitment. Rule 6 states the ratio of the posts to be filled up by promotion and by direct recruitment which is alterable in consultation with the High Court and which has to be adhered to while making appointments and promotions from the two channels spelt out above. Rules 7 to 15 set out the conditions of service, particularly, in regard to salary and other emoluments payable to the officers of the superior judicial service. Rule 16 provides the method to be followed for fixing the inter se seniority. As I read these Rules, to describe them as being in conflict with Article 233 of the Constitution or in violation of it is entirely unjustified. Except Rule 5 of the Rules, which is a repetition of Article 233, no other rule deals with the method of recruitment except Rule 6 which merely fixes ratio to be maintained between those who are appointed directly from amongst the Advocates and those who are promoted from within the service itself. I repeat, the aforesaid provisions do not lay down anything that comes in conflict with the provisions of the Constitution, particularly. Article 233 and do not interfere with the High Court's power of consultancy nor do they make any encroachment on the power of the High Court to evolve its own method of responding to the consultation made by the Governor. It may be stated that these Rules have been the basis of recruitment to superior judicial service since the commencement of the Constitution unaffected by any dilution to its rules beyond the alteration of the schedule always at the initiative and in all event with the concurrence of the. High Court. In course of hearing of this application, the Governor's power to make rules in relation to the recruitment to the superior judicial service under Article 233 of the Constitution was seriously assailed and it was even suggested that these rules have no constitutional justifiability because the power to make rule has not been specifically spelt out in Article 233 of the Constitution. It was also suggested that they erode the authority of the High Court to evolve its own method when it is consulted by the Government. In response to the aforesaid contention of the petitioner, the learned Advocate General relying on Article 309 of the Constitution defended the right of the Governor to frame Rules and even submitted that these rules do not lay down anything that is contrary to the Constitution inasmuch as they do not affect the constitutional power of the High Court in this regard in any manner or lay down anything that is prohibited by any constitutional provision. In fact, by a counter-affidavit and during his submission, he stated that the Government would have no objection to the appointment being made to the superior judicial service in accordance with the procedure followed till now.
9. Digressing a little, I would like to explain the circumstances under which it became necessary for the learned Advocate General to give the aforesaid undertaking during his submission and the counter-affidavit thereafter filed on 31-8-1988. The Government in the year 1979 had suggested certain amendments to these Rules by which a change in the method of recruitment as well as consultancy was suggested. All the suggestions are not required to be set out here. Suffice it to say that the High Court refused to accept and rightly so the suggestions. This impasse remained unresolved till this application was filed thus causing unwarranted delay in filling up the vacancies that had been advertised in the year 1985 and the whole issue continued to languish in the archives of the Secretariat.
The present attitude of the State, asset out in paragraph 2 of the counter-affidavit filed on 31-8-1988 is as follows :--
"....... that existing practice with regard to manner of appointment to the post Bihar Superior Judicial Service is to be continued. .... that the State Government shall issue advertisement as per existing practise inviting application for appointment to the post and such applications, as are received, shall be forwarded to the High Court for making recommendation and thereafter recruitment shall be made from amongst persons, qualified and recommended by the High Court for appointment to the post.
In this counter-affidavit, however, the State in paragraph 3 has made certain suggestions which are in line with the suggestive amendment to the rules. They are as follows ; --
"........ in the year 1979 State Govt. consulted the High Court on the question of amendment of Rules. High Court in the year 1986 suggested certain changes in the recruitment rules. The matter is under consideration before the State Government. So long Rules are not amended in consultation with the High Court, old procedure of appointment to Bihar Superior Judicial Service shall be followed and the appointment shall be made by the Governor in consultation with the High Court. It is submitted that the Appointing Authority is of the opinion that the High Court while making selection and recommendation of the candidates to the post may hold written examination fixing qualifying marks for the oral interview and High Court may keep 15% of the total marks for oral examination. The selection should be made in order of merit on the basis of the total marks obtained by such candidates.
At present, therefore, as far as this application is concerned, the State had removed all obstacles in the way of filling up of the vacancies meant for recruitment from amongst the Advocates. The attitude of the High Court has been spelt out in its counter-affidavit.
10. I would first like to dispose of the question of the constitutional validity of these rules. Article 309 of the Constitution reads thus:--
"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. "
(Portions relevant for the purpose of this application have been underlined).
The salient features of this Article are that the appropriate legislature may enact laws regulating recruitment and conditions of service of such persons who are appointed to public service and posts in connection with the affairs of the State and in absence of such enactment by the appropriate legislature by its proviso, the President or the Governor of the State, as the case may be, has been empowered to frame rules for the same purpose which will be subject to any Act of the legislature passed thereafter the only restraint being that such an act or rule must be subject to the provisions of the other Articles of the Constitution, It is not disputed that these Judicial Officers come within the category of persons who are connected with the affairs of the State. The exercise of the aforesaid power, however, is controlled by the expression 'subject to the provisions of this Constitution. As I read this expression, in my view, it only prohibits the enactment of any statute or rule that is contrary to any of the provisions of the Constitution. The rules which I have referred to at some length earlier were assailed at the Bar as being contrary to the rule making powers of the Governor, primarily, on the ground that since Article 233 does not expressly endow the appropriate authority with the power to make rules : the formulation of these rules is without constitutional authority. It was also stated that since Articles 234 and 235 expressly provide for the creation of appropriate Act or Rules, there being no such authority under Article 233, the Constitution-makers in their wisdom did not desire that any rule or Act should be brought into existence for the purposes of exercise of power under Article 233 and when the first line of Article 309 makes the power subject to the provision of the Constitution, such power could not be exercised by the Governor under Article 233 of the Constitution. I am afraid, I cannot accept as valid the submission made on behalf of the petitioner. Firstly, I am not prepared to hold that by the absence of any specific-provision empowering the enactment of an Act or rule under Article 233, the Constitution-makers envisaged a prohibition in exercise of the power under Article 309 of the Constitution. If this was accepted to be the intention then the situation will go absolutely haywire and the discretion exercised by the appropriate authority may tend to become absolutely arbitrary and untrammelled. No act or rule can be made in conflict with any expressed mandate of the Constitution but the absence of any expressed power will not act as a prohibition if there are provisions endowing specifically such powers in the Constitution. That apart, this aspect has to be harmonised with the power of the appropriate legislature and the appropriate authority to make statutory provisions or create statute or rule, as the case may be for the regulation of the condition of service or recruitment to the post that comes within the category of recruitment of persons connected with the affairs of the State. The power, therefore, under Article 309 of the Constitution is uninhibited and is not obstructed by the provisions of Article 233 of the Constitution and, therefore, the rules cannot be said to be unconstitutional and beyond the rule-making powers of the Governor, particularly, when the rules do not in any way come into conflict or are contrary to the relevant provisions of the Constitution, particularly, Article 233. It is therefore, clear that the Governor was not precluded from framing these rules and they cannot be assailed because they are not in conflict with any of the provisions of the Constitution.
11. It is now necessary to consider at least two decisions relied upon by the parties which appear to be contradicting each other on the shallow submissions made by the learned counsel for the parities but on a deeper analysis they are entirely coherent and state the law in unison. Learned counsel for the petitioner Mr. Basu Deva Prasad, appearing amicus curiac brought to our notice the decision reported in AIR 1966 SC 1987 (Chandra Mohan v. State of U. P. ) and presented an interpretation which, in my view, does not flow from the pronouncement of the Supreme Court. His submission was that this decision prohibits the Governor from formulating rules under proviso to Article 309 of the Constitution for the purposes of Article 233. As I read this decision, no such interpretation is warranted. What this decision really stresses is that (i) a power of consultation granted to the High Court under the Constitution cannot be interfered with or obstructed by or diluted in any manner under Article 309 of the Constitution or for that matter any other Article of the Constitution and (ii) it struck down the recruitment rules described as U. P. Higher Judicial Service Rules because in that Rule the power of the High Court in regard to consultation was invaded upon by a committee created under that rule and the qualifying eligibility was contrary to the constitutional provision. In other words, both Clauses (1) and (2) of Article 233 were contravened. There is nothing in this decision that would lend support to the submission of Mr. Basu Deva Prasad that the power to frame rules under Article 309 is prohibited in relation to any matter covered by Article 233. The rule with which we are concerned here, that is, the Bihar Superior Judicial Service Rules, 1946, contains no such infringement. It is true that on the lines of the U. P. Higher Judicial Service Rules, suggestions were made by the State Government to the High Court but that appears to have been withdrawn by the Government because of objection of the High Court.
12. Another decision, reported in AIR 1981 SC 561 : (1981 Lab IC 104) (B. S. Yadav v. State of Punjab) was relied upon on the basis of which the learned Advocate General invited us to hold that the Governor has power under Article 309 to make rules in regard to matters under Article 233 of the Constitution. Learned Advocate General conceded justifia by that any rule in violation of the constitutional provision cannot be sustained. In paragraph 46 of this report it was held as follows : --
"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. . . . .Ex facie, therefore, reading these two decisions viz. AIR 1966 SC 1987 (supra) and AIR 1981 SC 561 : (1981 Lab IC 104) (supra), the situation is one of extreme harmony and there is no conflict that the Governor has complete power to frame rules under Article 309 provided they do not come in conflict with any constitutional provision.
The Constitution provides two authorities which have to act in their own spheres in order to recruit the members of the Superior Judicial Service of the State. That confers on the Governor of the State the right to make appointments and the High Court of the State to be consulted before the Governor makes any appointment. There is no manner of doubt that Article 233 is a repository of power of both the authorities who operate on the strength of that Article in their designated field without any mutual invasion by any one in the functioning of the other. This apart, primacy of the opinion of the High Court on consultation has been accepted by the Supreme Court for reasons stated in AIR 1968 SC 1987 (supra). Paragraph 7 of this decision, which is relevant for the purpose, reads thus : --
"...., We are assuming for the purpose of these appeals that the "Governor under Article 233 shall act on the advice of the Ministers".
So, the expression "Governor" used in the judgment means Governor acting on the advice of the Ministers. 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 High Court. Thereafter 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. That this constitutional mandate has both a negative and positive significance is made clear by the other provisions of the Constitution. Wherever the Constitution intended to provide more than one consultant, it has said so (see Articles 124(2) and 217(1)). Wherever the Constitution provided for consultation of a single body or individual, it said so (see Article 222). Article 124(2) goes further and makes a distinction between persons who shall be consulted and persons who may be consulted. These provisions indicate that the duly 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 state it differently, if A is empowered to appoint B in consultation with C, he will not be exercising the power in the manner prescribed if he appoints B in consultation with C and D. In AIR 1987 SC 331 : (1987 Lab IC 447) (State of Kerala v. Smt. A. Lakshmikutty) which was brought to our notice by the learned Advocate General, the Supreme Court has interfered with the encroachment made by the High Court on the powers of the appointing authority by issuing a writ directing the Governor to accept the result of the consultation sent by the High Court. This cannot be understood to mean that the Governor, in exercise of his power flowing to him can pass any rule that may impinge upon the right of the High Court to be consulted by a method resorted to by the High Court itself, AIR 1966 SC 1987 (supra) gives the other side of the picture. The Supreme Court struck down the action of the State Government on the ground that there is no constitutional validity of the U. P. Higher Judicial Service Rules because they were contrary to the constitutional provisions contained under Article 233 of the Constitution by which it was intended to encroach upon the power of the High Court in regard to its being consulted by the Governor.
Considering both the judgments together, I have no hesitation in holding that the Governor can make rules under Article 233 by exercise of power under Article 309 proviso but those rules should not interfere with the right of the High Court in any manner.
13. The learned Advocate General relied on paragraph 46 of the decision of the Supreme Court reported in AIR 1981 SC 561 : (1981 Lab IC 104) (supra) to argue that these expressions are in the general context and set out the powers of the Governor and its application to Article 235 is not restricted but will extend to Article 233 also since they relate to the appointment of officers appointed to public services and posts in connection with the affairs of the State. Paragraph 46 of this report, an extract of which has already been quoted above, reads thus : --
"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 in 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.
In view of what I have said above, any academic post mortem of this decision is not required to test whether these Acts and rules brought about under Article 309 of the Constitution are confined only for a situation arising under Article 235 or spells out general powers of the Governor in all its aspect embracing Article 233 also. Suffice it to say, that it cannot really be argued that the Governor has no power under Article 309 for the purpose of Article 233 of the Constitution.
14. Learned Advocate General relied on a decision reported in AIR 1987 SC 331 :
(1987 Lab IC 1447) (Supra) in order to highlight the infallibility of the power of the Governor and to submit that he Could not ignore the recommendation of the High Court. As I read this judgment, it only lays down that the advice given by the council of ministers to the Governor is not justiciable and a writ cannot be issued enforcing the recommendation of the Governor. We are not faced with this situation at present. I, however, quote the observations made in this report to interpret it in the light of the decision reported in AIR 1966 SC 1987 (supra) :-
"31. We find it difficult to sustain the judgment of the High Court or the reasons upon which it is based. The High Court, if we may say so without meaning any disrespect, fell into an error in characterising the reasons given on the basis of which the Council of Ministers reached a decision on February 28, 1985 to review their earlier decision taken on January 30, 1985 and decided not to appoint anybody as a District Judge from the panel of names forwarded by the High Court which were 'arbitrary, illegal and improper'. Apparently, the High Court was not right in its view that the rejection of the panel for the reason disclosed by the Chief Minister in his letter dated March 4, 1985 viz. due to non-representation of candidates belonging to Latin-Catholics and Anglo-Indians. Other Backward Classes and Scheduled Castes and Scheduled Tribes, 8th, 10th and 18th turns in the cycle of rotation was "no reason at all". We are satisfied that the High Court could not have upon this basis issued a writ of mandamus directing the State Government i. e. , the Governor to appoint respondents 1 and 3-6 as District Judges under Article 233(1) of the Constitution. The High Court has virtually tendered an advice to the Governor to act on the recommendation of the High Court i. e. contrary to the advice of the Council of Ministers and thereby entered into the process of decision-making which was constitutionally impermissible.
32. The Governor has to act on the advice of the Council of Ministers under Article 163(1) in the matter of appointment of District Judges under Article 233(1) and not on the advice of the High Court ; Shamsher Singh v. State of Punjab (AIR 1974 SC 2192 : 1974LabIC1380). Appointment of persons to be, and posting and promotion of, District Judges by the Governor under Article 233(1), is purely an executive function. The High Court therefore had no authority or jurisdiction to issue any writ of mandamus of the kind complained of. It was certainly not open to the High Court to embark upon an inquiry as to the reasons which impelled the Council of Ministers at the meeting held on February 28, 1985 to review the decision taken on January 30, 1985 and decide not to appoint anyone as a District Judge under Article 233(1) from the panel of names drawn up by the High Court. It was also not justified in observing that the reasons as disclosed by the Chief Minister in his letter dated March 4. 1985, on the basis of which the Council of Ministers on February 28, 1985, decided not to appoint respondents 1 and 3-6 as District Judges on the recommendation of the High Court viz. due to non-representation of certain important communities or groups of communities were no reasons at all and in any event, the reasons given were bad in law. There is no basis, in our opinion, for the finding reached by the High Court. Learned Counsel for the State Government rightly questioned the authority and jurisdiction of the High Court to have issued a writ of mandamus commanding the State Government to make certain appointment of persons to be district Judges when the Council of Ministers had taken a decision to the contrary. According to him, this was not a proper exercise of power by the High Court under An. 226 of the Constitution and in any view of the matter, the issuance of a writ of mandamus in the circumstances was wholly impermissible. In our opinion the contention must prevail.
15. I have already quoted from the decision reported in AIR 1966 SC 1987 (supra) in other context but the following passage must now be read in the light of the decision reported in AIR 1987 SC 331 : (1987 Lab IC 447) :--
"........... 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 if 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. . . . . " (Paragraph 7) It was really not necessary to cite this decision at the Bar at this stage. The forbidding, however, is ominous and it is fraught with great danger to the right of the High Court. At this stage, when this matter is not in issue. I would not like to express any view on the observations in these two decisions. However, these decisions have already been harmonised by me keeping in mind the independence of judiciary vis-a-vis the administration, the protection of which must be our continuous endeavour.
16. In this connection, it is interesting to refer to the submissions made in regard to paragraph 3 of the counter-affidavit filed on behalf of the State which has been quoted in paragraph 9 above. Both these suggestions clearly impinge upon the power of the High Court to lay down its own procedure while answering the consultation by the Governor, Undoubtedly, if an inroad is made into the powers of the High Court, in violation of the constitutional mandate, the suggestions of the Government and the provision will stand invalidated as done in AIR 1966 SC 1987 (supra).
17. In conclusion, I repeat that the contents of the rules which have been set out above were also examined by me in depth. I am unable to find any provision which can be said to be repugnant to any of the Articles of the Constitution or Article 233 in particular. Article 233 lays down an eligibility clause, that is, that no less than seven year practice at the Bar for a direct recruit. The rule does not impinge upon the proviso. The powers of the High Court to be consulted has not been interfered with. Had that been done, undoubtedly, these rules could have been invalidated But there is nothing to indicate in the rules that the power of the High Court in matters of consultation has been invaded upon or interfered with. I have, therefore, no hesitation in holding that these Rules are entirely endowed with the constitutional validity and will remain so until something is introduced that affects the right of the High Court. Another aspect of the matter which cannot be forgotten is that the High Court and all those concerned including the prospective candidates from the Bar have been adhering to these Rules for the last 38 years. I see no reason now to upset a crystallized situation which has always been accepted as a constitutionally valid mode of recruitment and for the purpose of regulating other conditions of Service. What is good should always be preserved. I feel that the attack on the rule-making authority of the Governor arises from the suspicion created by the recent action of the State Government when they tried to encroach upon the authority of the High Court by suggesting certain changes in the procedure to be followed when consultations are made by the Governor and which caused delay in making the recruitment at the appropriate time. Blissfully, the High Court did not buckle under the crushing pressures and stuck to its right to chose its own method for the exercise of its power under Article 233 which has also ended on the submissions of the Advocate General and the follow up affidavit in which the State has agreed to follow the procedure hitherto accepted in regard to the appointment of the District Judges from amongst the Advocates as direct recruits. The State, however, has made certain suggestions in the affidavit to the effect that the High Court while making selection and recommendation of the candidates to the post may hold written examination fixing qualifying marks for the oral interview and it may keep 15% of the total marks for oral examination. The selection should be made in order of merit on the basis of the final marks obtained by such candidates. These suggestions are however, for the High Court to consider and decide, I do not propose to give my own view beyond what I have said above at this stage on either of the two matters except to say that in terms of AIR 1966 SC 1987 (supra) that would stand invalidated. Needless to say, however, that for the present, the procedure that are hitherto accepted as good and valid must be continued with the greatest of expedition.
18. At the outset, the learned Advocate General, as I have said above, submitted that the Government has no objection to the procedure sanctified by time to be followed in regard to the appointment of Additional District Judges. This has been, as I have said above, followed up by an affidavit reiterating the same. Therefore, having held that the rules are constitutionally valid and there being no disagreement on the procedure to be adopted, only thing now remains for the respective authorities is to rise up to the occasion and discharge their respective function in accordance with Article 233 of the Constitution with the greatest of expedition in order to remove a serious constitutional lapse that has affected the careers of many a promising advocates at the Bar and has not only dampened the exuberant spirit of rising lawyers who are fired with the ambition of adorning the Benches of the judicial hierarchy but has also deprived them of judicial service of those efficient incumbents who could have added lustre by their competency. We cannot undo what has already been done but it is our duty to see that such a situation never recurs in future. For this purpose, I would like to give specific directions : --
(i) The 30 vacancies that are now being filled up were available earlier and they would ordinarily have been treated to be the vacancy of the year 1985. This cannot be done now but it is now to be ensured that the vacancies meant for direct recruits are filled up in due time. Though, those who are appointed directly will rank junior to those who are promoted in the vacancy of the same year but the direct appointees will rank senior to those who are promoted after the appointment of direct recruits, i. e. after the direct appointees of the earlier year though the Direct recruits might have been actually appointed later due to official delay. The candidates appointed against the vacancy of a particular year will in future be treated as appointees of that particular year. Further, the vacancies meant for recruitment from amongst the Advocates should never be filled up by promotees even on the ground that the posts are lying vacant due to the delay caused by the appointment procedure. If any post out of the 30 lying vacant from the quota of direct recruits has been filled up or is filled up by promotion, such promotee will revert immediately to his original position in the service from which he has been promoted and on being promoted in the future will rank below those who fill up the 30 vacancies by direct recruitment.
(ii) The filling up of the vacancies for which the posts have already been advertised and applications were already received will be disposed of in the following manner. I am proceeding on the basis that for the present 26 vacancies have to be filled up straightway and four more will have to follow after advertisement. The reason for separating the two is that I feel that some vacancies must be kept reserved for those who have now become eligible after 1985. These four vacancies will be treated to be of the year in which they became vacant with the aforesaid consequences.
I direct (i) the State Government to send all the applications received by it after following the procedure it is required to do within a month from today to the High Court, (ii) the High Court, it is expected, will then complete its procedure of consultation within the next 4 -- 6 months thereafter. I hereby must earnestly entreat the High Court to endow this matter with its urgent attention so that the responsibility of delay does not lie upon this august body, and (iii), after the result of the High Court's decision is transmitted to the Government, it must complete all that is required to do in order to submit the proposal to the Governor for approval within four months, definitely and positively. This I have fixed as the outer limit which I hope will not be exceeded Preferably, the whole exercise should be finished within six months from the date of delivery of this judgment. I wish to offer my apology to the Governor and the High Court for imposing a time schedule in the manner done but the exigency of the situation has emboldened me to do so.
19. I must here commend the efforts of Sri K. P. Verma who invoked the writ jurisdiction of this Court under Article 226 of the Constitution by which the issue that has been virtually consigned to the limbo has been resurrected. I must also commend the amicus curiae assistance given to the Court by the members of the Bar on behalf of both the parties. I feel that Sri Verma deserved to be paid a cost of Rupees 1000/- in appreciation of this efforts for public cause. This cost is not by way of any penalty on the state but in appreciation of the assistance rendered by Mr. Verma. For this I rely on the decision reported in the case of Mossamat Khurshaidi Begum v. Secretary of State, (1926) ILR 5 Pat 539 : (AIR 1926 Patna 321)
20. In the result, this application is allowed as above.
P. S. Mishra, J.
21. I agree with the judgment of Hon'ble S. S. Hasan, J. but would like to add my reasons also.
22. The petitioner herein, who is a lawyer by profession and is enrolled as an advocate, has filed the application, for a writ in the nature of mandamus to implement notification No. VII/A-1-309/79 P-1396 dated 24-1-1985 of the respondent-State and accordingly make appointments in the Superior Judicial Service of the State.
23. Chap. V of the Constitution has created as in other parts of the Constitution, a Supreme Court of India, a parliament and Legislature of the State have been created, a High Court for each State as a Court of record, consisting of a Chief Justice and such other Judges as the President may from time to lime deem it necessary to appoint. Its judicial power and superintendence over all courts and tribunals throughout the territories, in relation to which it exercises jurisdiction, are engrafted in Articles 226 and 227 of the Constitution besides its power to transfer certain cases to itself, as enshrined in Article 228 of the Constitution. Article 225 which states with regard to the existing High Courts to exercise jurisdiction subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature and the law administered in and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and the members thereof sitting alone or in Division Courts is one applicable in relation to this Court's powers and under it such provision which govern functioning of this Court immediately before the commencement of the Constitution continue to apply. Chap. VI of the Constitution recognises subordinate courts headed by District Judges, which expression includes Judge of a city civil court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a small cause court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge and defines a 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.
Article 233 therein is a provision dealing with the appointment of District Judges and runs thus -
"(1) 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 in consultation with the High Court exercising jurisdiction in relation to such State;
(2) A person not already in the service of the union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Article 234 deals with the appointment of persons other than District Judges to the judicial service of the State made by the Governor of the State 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 is a provision vesting control over district courts and courts subordinate thereto and states -
"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 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".
24. Article 235, thus, has given the administrative 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 posts of District Judge to the High Court, subject to the law regulating the conditions of service. Words, "but nothing in this article shall be construed as taking away from any person" mean with respect to any person belonging to the judicial service, nothing in Article 235 shall be construed to have taken away. What cannot be taken away in the garb of the 'control' is stated in the words, 'any right of appeal which he may have under the law regulating the conditions of his service'. Further words in the said Article, 'as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law' clarify that the 'control over subordinate courts' will be exercised by the High Court, subject to such law which may regulate the conditions of service of a person belonging to the service.
25. Who, however, may prescribe the conditions of service or in other words how such conditions of service be prescribed is clearly spelled out in Article 234 with respect to appointments of persons other than District Judges to the judicial service of a State. Appointments have to be made by the Governor of the State who may frame the rules in that behalf. He has, however, to consult the State Public Service Commission and the High Court, both in the matter of appointment as also framing of the rules of appointment of persons other than District Judges. Words in Article 234 of the Constitution, thus, have to be read in Article 309 of the Constitution which in its proviso give to the President or the Governor, as the case may be, power to frame rules of recruitment and conditions of service of persons serving the Union or a State. Governor's rule making legislative competency laying down the rules of recruitment and conditions of service is recognised in Article 234, but his power is put to a condition that he shall have to consult the State Public Service Commission and the High Court before rules of recruitment to Judicial Service other than District Judges are framed.
26. It is indeed necessary to notice the 'consultation with the High Court and the Public Service Commission' by the Governor before making any rule of recruitment and conditions of service of the subordinate judicial officers other than District Judges, otherwise a conflict may arise in the exercise of the administrative control of the High Court upon the subordinate judiciary with the executive power of the State Government in Article 162 of the Constitution.
27. Article 162 of the Constitution states -
"Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws" :
Governor's rule-making legislative power in Article 309 of the Constitution is also made, subject to the provisions of the Constitution and the Acts of the appropriate Legislature which 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. In effect, rules or recruitment and service conditions of Judicial Officers have been taken out of the legislative competence of the State to the extent 'consultation with the High Court and the Public Service Commission' is needed by the provisions in. Article 234 of the Constitution. This being the scheme of the Constitution with respect to the subordinate judicial service, coming to the recruitment of persons other than the District Judges to judicial service, one may take notice of the absence of any word like 'in accordance with the rules made by him in Article 234 or in accordance with the conditions of his service prescribed under the law regulating the conditions of service in Article 235.
28. Article 233 of the Constitution has recognised the power of the Governor of the State to make appointments of persons to be District Judges or the posting and promotion of District Judges. Clause (2) of Article 233 of the Constitution is more or less a provision laying down as to who besides those in the judicial service recruited in accordance with Article 234 of the Constitution, may be eligible for appointment as a District Judge. It lays down that a person not already in the service of the Union or of a State shall only be eligible if he has been for not less than seven years as an advocate or a pleader and is recommended by the High Court for appointment. Words 'in the service of the Union or a State' must in relation to appointment of District Judges mean 'a judicial service controlled exclusively by the High Court subject to the 'conditions of service rules' as mentioned in Article 235 of the Constitution. Conclusion, therefore, that a person already recruited to a judicial service and ranking at the appropriate position in accordance with such service condition rules as are recognised in Article 235 may be posted and promoted as District Judges by the Governor of the State in consultation with the High Court and if a person who is not in the judicial service from before has to be appointed, the Governor has to ensure that he has been not less than for seven years an advocate and that his name is recommended by the High Court for appointment as a district judge.
29. I have ventured to state how and who may be appointed as a district judge knowing full well that ever since the judicial services have been put under the administrative control of the High Courts, disputes of one or the other sort have been created at regular intervals and the High Courts and the Supreme Court exercising their respective judicial powers have been made to reiterate, clarify and remind both the High Courts and the Governments to recognise their limitations as to their administrative control upon the recruitment and service conditions of the judicial officers.
30. In one of the latest pronouncements of the Supreme Court in State of Kerala v. A. Lakshmikutty, AIR 1987 SC 331 : (1987 Lab IC 447) a controversy as to the scope of Article 233 of the Constitution has been considered. The State of Kerala had issued a notification inviting applications from eligible members of the Bar to fill up the vacancies of District Judges by recruitment from the Bar. The notification stated that the number of candidates proposed to be selected were three subject to variation according to the exigency. Later the number of vacancies was increased to five. The High Court after interviewing the candidates sent panel of fourteen names for appointment as District Judges from the Bar, stating that the appointments be made according to the cycle of rotation governing reservation of posts as laid down in Rule 14(c) of the Kerala State and Subordinate Services Rules, 1958, as required by Rule 2(b) of the Kerala State Higher Judicial Service Rules, 1961. Accordingly, the appointments had to start with the first vacancy going to a candidate belonging to the Latin-Catholics and Anglo-Indians' community, 8th turn in the cycle of rotation. As there was no candidate belonging to the Latin-Catholics and Anglo-Indians', other Backward Classes and Scheduled Castes and Scheduled Tribes, 8th, 10th and 12th in the cycle of rotation were to take the first vacancy by reason of Rule 15(a) of the Rules by a suitable candidate belonging to the community group of communities immediately next to the passed over community or group, arid in this process other vacancies were required to be filled in. A candidate belonging to the Latin-Catholics community moved the High Court seeking mandamus directing the State Government to forbear from filling up any of the five vacancies in the post of District Judges without inclusion of her name in the panel and for directing the High Court for forwarding her name for appointment as a District Judge, Details of facts thereafter leading to the order passed by the Kerala High Court are not necessary.
31. It appears, however, that when the Kerala High Court took the view that the State Government was obliged to follow the panel of names recommended by the High Court, the State Government moved the Supreme Court. The Supreme Court has observed (AIR 1987 SC 331 : 1987 Lab IC 447, Para 21) :
"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".
Speaking on the scheme of the law enshrined in Article 233 of the Constitution, the Supreme Court has said that the power to make appointment of a person as a District Judge conferred upon the Governor, meaning the State Government, under Article 233(1) in consultation with the High Court is an executive function, that the power of the State Government is not absolute and unfettered and that exercise of power under Article 233(1) in the matter of appointment of District Judge is conditioned by the consultation with the High Court and that the power can only be exercised in consultation with the High Court, Speaking further, the Supreme Court has said (Para 23) :
"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.....".
The Supreme Court has once again reiterated the law stated in Chandra Mohan v. State of U.P., AIR 1966 SC 1987. Chandra Mohan's case dealt with the rules of recruitment known as U.P. Higher Judicial Service Rules. Rule 5 thereof recognised two sources of recruitment and Rules 9 to 12 prescribed the qualification for the candidates for appointment to the Higher Judicial Service of the State. Rule 13 thereof spoke of recruitment by promotion, Clause (c) whereof said :
"the selection shall be made by a Committee consisting of two Judges of the High Court and the Judicial Secretary to Government"
and Rule 14 spoke of the direct recruitment and the procedure thereof Subba Rao, C.J. speaking for the Supreme Court has said (Paras 10 and 11) :
".....While the constitutional provisions say that the Governor can appoint District Judges from the service in consultation with the High Court, these rules say that the Governor can appoint in consultation with the Selection Committee subject to a kind of veto by the High Court which can be accepted or ignored by the Governor";
and that :
''the position in the case of District Judges recruited directly from the Bar is worse. Under Article 233(2) of the Constitution, the Governor can only appoint advocates recommended by the High Court to the said service. But under the Rules the High Court can either endorse the recommendations of the Committee or create a deadlock. The relevant rules, therefore, clearly contravene the constitutional mandates of Article 233(1) and (2) of the Constitution and are therefore illegal".
Speaking directly on the scheme of the provisions in" Chap. VI of Part VI of the Constitution, the Supreme Court has said (Para 15):
"The gist of the said provisions may be stated thus : 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".
32. The view which I have taken, thus, is in conformity with the law laid down by the Supreme Court in Chandra Mohan's case (AIR 1966 SC 1987) (supra). A service condition rules of recruitment may be framed in consultation with the High Court and the Public Service Commission for the judicial service other than district Judges, but in so far as appointment to the post of district Judges is concerned the provisions in Article 233 of the Constitution make the two sources of recruitment, (i) subject to consultation with the High Court, and (ii) on the recommendation of the High Court, binding upon the Governor.
33. In the said State of Kerala's case (AIR 1987 SC 331 : 1987 Lab IC 447) (supra) unanimous opinion of the Supreme Court is qouted from Chandra Mohan's case (Para 24) :
"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.
XX XX X These provisions indicate that the duty to consult is so intergrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein",
34. A number of cases thereafter have travelled to the Supreme Court and on the facts of each case, the Supreme Court has taken one or the other course to settle the dispute. But in every case the law stated above has been reiterated. Besides Chandra Mohan's case (AIR 1966 SC 1987) (supra) other cases taking similar view are Chandramouleshwar Prasad v. Patna High Court, AIR 1970 SC 370; High Court of Punjab and Harvana v. State of Haryana, AIR 1975 SC 613 : (1975 Lab IC 375); A. Pandurangam Rao v. State of Andh. Pra., AIR 1975 SC 1922 : (1975 Lab IC 1452) and M.M. Gupta v. State of J. & K. AIR 1982 SC 1579 : (1982 Lab IC 1970). In M. M. Gupta's case a Bench of the Supreme. Court has viewed with concern the recent trend of interference in the matter of judicial appointments by the executive and expressed the view that healthy conventions 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.
35. I have taken the above stated view without ever entertaining any idea that no regulation whatsoever can be applied to appointment, posting or promotion to the post of a district Judge. Service condition rules may still be framed by the High Court for making its selection of candidates either for appointment or promotion to the post of district Judges predictable. Rules framed by the High Court, however, shall not have the same force as the rules framed under Article 309 of the Constitution by the Governor of the State or any rule of recruitment framed by the Legislature as one of its Acts. Such rule may take care of the special needs of socially and educationally backward classes and Scheduled Castes and Scheduled Tribes and women. The Legislature may also enact a law for 'the judicial service' including the superior judicial service comprising of the district Judges. The Governor may also exercise his legislative power under the proviso to Article 309 of the Constitution for the said purpose. Such rules, however, cannot touch the core, namely, the two sources of recruitment as noticed above, one from the judicial service and the other from the Bar and in the former case, consultation with the High Court and in the latter case, on the recommendation of the High Court.
36. Having stated, as above, coming to what has stricken the superior judicial service of the State, one cannot resist lamenting how the administration of the State Government has chosen to thrust upon the High Court a rule similar to one which has been held ultra vires by(sic) Court in the case of Chandra Mohan's case (AIR 1966 SC 1987) (supra) and the High Court helplessly waited for the Government to give its clearance to make direct recruitment to the service. Appointment to the superior judicial service of the State continued to be in accordance with the Bihar Superior Judicial Service Rules which fixed a quota of 1/3rd of the vacancies to be filled in by direct recruitment from the bar and 2/3rd by promotion from amongst the members of the judicial service. This continued until 1979-80. Since 1981, while posting and promotions to the posts of district Judges have continued, no direct recruitment has been made.
37. The High Court in its affidavit has said that in the year 1979 the State Government in the department of Personnel and Administrative Reforms requested the High Court to apprise them of the views of the Court as to whether the procedure for making recommendation for direct recruitment to the post of Additional District and Sessions Judge from the Bar should be laid down in the State of Bihar also as framed in the State of Uttar Pradesh; the High Court then called for the concerned rules from all the High Courts in India; and on receipt of the rules constituted a sub-committee comprising of three Judges of this Court for framing the rules; the report of the said sub-committee was sent for approval before the Standing Committee of the Court, and on its concurrence the same was sent to the Full Court which after suggesting certain amendments to the Bihar Superior Judicial Service Rules 1951, on 16-4-1986 recommended to the State Government for making changes in the recruitment rules. Thereafter reminder after reminder, the last being on 17-9-1987, have been sent but no reply has been received from the Government. The affidavit on behalf of the High Court also contains information that prior to the aforesaid recommendations, the Court had on 15-9-79 requested the State Government to advertise nine vacant posts of Additional District and Sessions Judge for direct recruitment from the Bar, in reply to which the State Government made certain queries regarding the age of the applicants.
The same was replied to by the Court on 6-11-1980. The State Government again sought information on maximum age limit for such appointments. This also was replied to on 25-2-1983. Nothing thereafter has happened.
The State Government, it appears, had at one stage resolved to invite applications for direct recruitment from the Bar, but everything remained in abeyance for the reasons of the Government of the State insisting for such information's which were hardly relevant for the recruitments in question.
38. In a supplementary affidavit filed on behalf of the High Court a break-up has been given how the number of vacancies since 1979 in the quota of the direct recruits has gone multiplying, the intervener --- the Bihar Yuva Adhiwakta Kalyan Samitee has alleged that the High Court have never consented to deviate from the quota, yet the respondents have been filling in each year's vacancies by posting and promoting judicial officers and, thus, denying to the members of the Bar who qualify for appointment, their legitimate claim for consideration for appointment as district Judges.
39. The respondent-State Government has also filed its return saying that the existing practice and the manner of appointment to the post borne in the Bihar Superior Judicial Service shall be continued and that the State Government shall issue advertisements as per the existing practice inviting applications, shall forward to the High Court for its recommendations and after receiving the recommendations shall take steps to appoint in the vacancies available for the members of the Bar. It has, however, also been stated in the said return that in the year 1979 the State Government consulted the High Court on the question of amendment of the rules and that the High Court in the year 1986 suggested certain changes in t he recruitment rules which are under consideration before the State Government and, 'so long rules are not amended in consultation within the High Court, old procedure of appointment to the Bihar Superior Judicial Service shall be followed and the appointment shall be made by the Governor in consultation within the High Courts". It has also added that the appointing authority is of the opinion that the High Court while making selection and recommendation of the candidates to the post, may hold written examination fixing qualifying marks of the oral interview and the High Court may keep 15% of the total marks for oral interview. The selection should be made in order of merit on the basis of the total marks obtained by such candidates,
40. It is indeed a matter of concern how easily the State Government can pass over almost a decade by saying that it is ready to continue the procedure of appointment as in the past and shall issue advertisement accordingly etc. If it had the knowledge of its limitations in the matter of constitution of the Superior Judicial Service of the State, it had to abide by the rules until any change was introduced in accordance with law. The State Government has not disputed the fact that since 1979, although promotions have been made from the judicial service to the post of the district Judges, appointments have not been made from the Bar. The High Court also can have no justification to fill in the posts falling in the quota of t he direct recruits by promotion.
41. Superior Judicial Service Rules are not under challenge. They do fix a quota of 2/3rd and 1/3rd of the the vacancies going to the promotee, and the direct recruits respectively. Ever since 1979 the executive Government of the State has been trying to impress upon the Court to introduces rule of selection to be made by a Committee with an executive member therein. This Court on its administrative side was expected to bluntly tell the Executive Government that any creation of a Committee to make selection would go against the constitutional mandate. The respondent never realised that the Constitution in Article 233 has recognised selection of candidates by the High Court which as pointed out by the Supreme Court alone has the competency to know and assess the merit of the candidates who may be selected for appointment as district Judges. Any law introducing any examination or SELECTION BY A PROCEDURE (SIC) MAY PUT IN fetters to the discretion of the High Court in making such selections may be hit by Article 233 of the Constitution. The respondents have since 1979 acted so unreasonably and shown such callous indifference to the interests of the Bar of the State that Articles 14 and 16 of the Constitution have been violated They shall be continuing the said violation by not immediately proceeding to make appointments in accordance with law.
42. We are informed at the Bar that there has been an advertisement issued in the year 1985 inviting application from the eligible members of the Bar. Nothing, however, was done although a large number of candidates responded to the said advertisement. Candidates who have already applied are still waiting for selection. Many years' delay has made some of them over-age, some of them have lost interest, but some are still interested. It is not possible, however, to redress any loss caused on account of no action taken to consider their applications. Still this Court may firmly keep the posts meant for direct recruitment each year separate from the posts falling to the quota of the promotees and proceed forthwith to fill in all the vacancies in the quota for the direct recruits, so that parity of 2/3rd and l/3rd in the service between the promotee and direct recruits is restored. This Court has, on many occasions, directed the State Government to adhere to the quota in a manner that in any year of recruitment, if any direct recruit or promotee has been found in excess of his quota, adjustments be made to maintain the parity.
43. In the instant case, since we have a break-up given by the High Court in its counter-affidavit and which may be available in the records of the Court otherwise also, the Court may proceed to consider candidates who may apply for direct recruitment with reference to their eligibility in the particular year of recruitment and take him with due seniority in the service reckoned with the particular year of allotment. This method, if adopted, may to some extent remove the grievance of the members of the Bar.
44. I have avoided considering the validity or otherwise of the Superior Judicial Service rules or any purticular rule thereof, a though learned counsel appearing for the parties have addressed at that at length and taken us through various rules. Since a rule under Article 235 or a rule under Article 234 has no bearing to the rule in Article 233 itself which specifies the two sources of recruitment and consultation/recommendation and any in depth examination of the extent of Article 309 of the Constitution in this behalf is not necessary for the disposal of this application, yet for the purposes of this case, it is indeed necessary to emphasise that a rule as to the recruitment may in a given case be a part of the service condition rules and yet in another may be separated from the same. Article 233 has in a sense created such a separation.
45. On the consideration of the facts and the law aforementioned, I have no hesitation in holding that the respondents have failed to act in accordance with law. They are, accordingly, directed to fill in the vacancies by scrutinising the applications already made in response to the vacancies up to the year 1985 already advertised and inviting further applications from the candidates who have required the eligibility in the subsequent years in accordance with the rules, so that all existing vacancies are filled up within six months from the date of the delivery of the judgment. In no case, however, the respondent-State or the High Court shall fill up the vacancies meant for direct recruits by promotion or vice versa and continue the parity until altered by due process of law.
46. Before I part with my judgment, let me record my appreciation to the efforts of the petitioner and the interveners who have given valuable assistance to the Court, including those who have assisted the Court amicus curiae. While recording my deep sense of appreciation to their assistance, I feel inclined to direct that the petitioners Shri Verma is entitled to costs of this proceeding and accordingly, I allow a sum of Rs. 1,000/-(one thousand) as a consolidated cost payable by the respondent-State Government of Bihar.
S. B. Sinha, J.
47. In view of the importance of the questions involved I would like to record my own reasons in this Case. However as far as possible I shall try to void repetitions of the reasonings of my learned brother.
48. A public interest litigation has been filed by a practising advocate of this Court praying therein that the State be directed by this Court to refer all the applications received from the eligible candidates for appointment of Additional District and Sessions Judge to respondent 2 by a notification dated 24-1-1985.
49. It is admitted that the Governor in exercise of his power conferred upon him under the proviso to Article 309 of the Constitution had framed the rules known as 'Bihar Superior Judicial Service Rules, 1951'.
50. The High Court in its counter-affidavit categorically stated that a number of posts are lying vacant and despite several reminders sent to the State Government, the State had not taken steps to fill up the posts of Additional District and Sessions Judges for a long time.
51. It further stands admitted that after on and from 1979 no direct recruitment in the posts of Additional District and Sessions Judge from the Bar has been made.
The High Court in its counter affidavit has further asserted that during the period 1985-1987, 113 vacancies have been filled up by promoting the officers from Subordinate Judiciary to the rank of Additional District and Sessions Judges. It has further been asserted that the applications which have been received pursuant to the aforementioned notification dated 24-1-J983 have not been forwarded to the High Court by the State. From the said counter-affidavit it further appears that a proposal was made by the State Government to this Court for laying down the procedure for making recommendations for direct recruitment to the post of Additional District and Sessions Judge from Bar, pursuant whereof a Sub-Committee of three Hon'ble Judges of this Court was constituted which recommended certain amendments in Rule 16 of the Bihar Superior Judicial Service Rules, 1951. This Court on or about 16-4-1986 made certain ecommendations to the State Government suggesting various changes in the Recruitment Rules and requesting it to issue necessary notification and where for several reminders had also been sent but in vain.
52. The State in its counter-affidavit has taken the stand that so long rules are not amended, old procedure of appointment to Bihar Superior Judicial Service shall be followed and the appointment shall be made by the Governor in consultation with the High Court. In the said counter-affidavit it has further been stated as follows:
"It is submitted that the Appointing Authority is of the opinion that the High Court while making selection and recommendation of the candidates to the post may hold written examination fixing qualifying marks for the oral interview and High Court may keep 15% of the total marks for oral examination. The selection should be made in order of merit on the basis of the total marks obtained by such candidates."
53. In a supplementary counter-affidavit it has been accepted that since 1981 the total number of vacancies for the direct recruitment is 30, the break up of which is as follows :
Years Vacancies
1. 1981 20
2. 1982 22
3. 1983 23
4. 1984 24
5. 1985 26
6. 1986 27
7. 1987 29
8. 1988 30
54. It has further been asserted that 20 temporary posts of Additional District and Sessions Judges had been made permanent resulting in creation of seven more posts for the direct recruits which allegedly had been counted in the year 1981.
55. According to the State Government since 1981-82 to 1986, 154 officers have been promoted
56. In this case an application for intervention has been filed by Bihar Yuva Adhivakta Kalyan Samiti. In the said application inter alia it was alleged as follows :
"8. That the Intervenor-applicant has come to know that the Hon'ble High Court Patna has never consented to deviate the "quota" from the Bar to the promotees and thus it is arbitrary and unconstitutional to not fill up the vacancies in 'the Service' since long by way of direct recruitment.
9. That it is needful to state here by that at the first instance intervenor applicant with their genuine demands including the subject matter, gave the representation to the different authorities (including the respondents) but all these representations went unheeded and did not bear fruit. Ultimately thousands of advocates of the State were compelled to take the path of peaceful agitation and in that very context a good number of lawyers had courted arrest and went to jail and some of them even resorted to relay fast and subsequently to hunger strike in different jails of the State of Bihar. Thus the intervenor applicant is necessary party to be heard in support of this writ application.
10. That in order to maintain the independent nature of judiciary and for quick disposal of backlog of cases pending in different superior courts below, the long standing vacancies to the superior judicial services in question should be filled up by way of direct recruitment from the Bar."
57. At this juncture it is relevant to note that in terms of Rule 6 of the Bihar Superior Judicial Service Rules out of the posts in cadre of service, two-third thereof is to be filled up by promotion and one-third by direct recruitment.
57A. It was seriously contended on behalf of the petitioner as also on behalf of the Intervenor that the State Government has no jurisdiction to frame a rule for the purpose of recruitment of the Additional District and Sessions Judges and Sessions Judges in the Bihar Superior Judicial Service to be recruited from the Bar. It was further strenuously contended that as Article 233 of the Constitution does not impose any, restriction as to the number of persons who are to be appointed from the members of the Bar the purported quota fixed by reason of Rule 6 of the Bihar Superior Judicial Service Rules, 1951 is ultra vires the Constitution.
58. It has further been contended that reading the provisions of Articles 233, 234 and 235 together, it would appear that only the High Court has jurisdiction to frame the rule in respect of the Bihar Superior Judicial Service.
59. Mr. Basudeo Prasad, the learned counsel appearing on behalf of the petitioner at one stage, while raising the aforementioned contentions placed strong reliance on Chandra Mohan v. State of U.P., reported in AIR 1966 SC 1987.
60. The petitioner and the other learned Advocates who appeared as Amicus Curiae as also on behalf of the Intervenor also contended that it has become absolutely necessary to fill up the exisiting vacancies not only in view of pendency of large number of sessions cases in the State of Bihar but also in view of the fact that various statutes which had come into force require the appointment of persons from the Bihar Superior Judicial Service e.g. (1) The Juvenile Justice Act, 1986(2) Family Court Acts, 1984 and (3) The Consumer Protection Act, 1986.
61. The learned Advocate General appearing on behalf of the State, on the other hand, submitted that the power to lay down service conditions of the members of Bihar Superior Judicial Service lies with the State Legislature or alternatively in the Governor. It was further submitted that in terms of Article 233 of the Constitution, the Governor may agree with the recommendations of the High Court or may not. It was also submitted that the Rule 6 is not unconstitutional. The learned Advocate General, however, conceded that so long the rules are not amended, the State is bound to follow the existing practice for recruitment to the posts of Additional District and Sessions Judges.
62. In view of the rival contentions, as noticed hereinbefore, the questions which arise for consideration are as follows :
(a) Whether the State has any power to make rules with regard to the appointment of District Judges by direct recruitment or alternatively whether the Governor has power to make rule under proviso to Article 309 of the Constitution?
(b) Whether any criteria for direct recruitment can be laid in the Rules so made and whether quota, qualification etc. can be provided in the sale Rules?
(c) What would be the true interpretation of Article 233 relating to the power of the Governor so far as the acceptance of the recommendations of the High Court is concerned?
(d) Whether any direction can be issued by this Court upon the State of Bihar implementing the notification dated 24-1-1985?
63. Before proceeding to deal with the rival contentions of the parties it is necessary to state that the power of the High Court as envisaged under Articles 233 to 235 of the Constitution as also the power of the State to make a suitable legislation are no longer res Integra.
There is also no dispute that in the fact a large number of posts of District and Sessions Judges are lying vacant. It was the constitutional duty of the State as also of the High Court to take appropriate steps so as to fill up the vacancies as early as possible but they failed to do so as a result whereof large number of posts are lying vacant for a long time.
64. In view of vacancies in large number of posts in the Superior Judicial Service, no doubt has resulted in accumulation of large number of case.
65. From the facts, as noticed hereinbefore, it is evident that owing to the acts of omission and commission on the part of the State and/or the High Court there has been enormous delay in filling up the posts of Additional District and Sessions Judges.
66. Re. question Nos. (a) and (b) There is absolutely no doubt that the control of the High Court over the subordinate judiciary is untransmelled. The power of superintendence of the High Court be it judicial or administrative, over the subordinate judiciary is absolutely wide and in this field no outside agency including the executive can have any say, subject, of course, to the provisions contained in Article 311 of the Constitution.
66A. There is no doubt that the State Public Service includes Judicial Service and in this view of the matter there cannot be any doubt that the legislative competence to lay down the conditions of service will be that of the State Legislature.
67. There is thus no lack of legislative competence of the State in this regard for the purpose of appointment to the superior judicial service whether by promotion or by direct recruitment. The right to make a legislation is evidently of the State. Consequently the Governor can also exercise his rule making power in terms of the proviso to Article 309 of the Constitution.
68. True it is, that the word 'Control' is capable of being incorporated differently in different contexts. In the Bank of New South Wales v. Commonwealth reported in 76 CLR 1 Dixon, J. observed that the word' control' is an unfortunate word of such wide and ambiguous impost that it has been taken to mean something weaker than 'restraint', something equivalent to 'regulation'.
69. There, however, cannot be any doubt whatsoever that while exercising control over the subordinate judiciary, the power of the High Court is wide and covers an extensive field. The administrative power vested in a body or a person, for effective exercise of such power may include framing of rules in relation thereto. This power, although not explicit in Article 235 of the Constitution but such an implied power can be culled out so as to enable the High Court to make the exercise of the control feasible, convenient and effective.
70. In State of U.P. v. Batak Deo Pati Tripathi, reported in (1978) 2 SCC 102 : (1978 Lab IC839 at PP. 844-45) it has been held as follows :
"9. A question was mooted as regards the power of the High Court to frame rules under Article 225 of the Constitution authorising a Judge or a Committee of Judges of the High Court to act on behalf of the whole Court. Article 225 provides in so far as material that the jurisdiction of any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court; including any power to make rules of Court, shall be the same as immediately before the commencement of the Constitution. It is urged that Article 225 merely saves the pre-Constitution powers of High Courts in certain matters and since under the Letters Patent of the High Court of Judicature at Allahabad the Government of India Acts of 1919 and 1935 and the UP. High Court Amalgamation Order, 1948, the High Court of Allahabad did not possess the power to frame rules authorising either a Judge or an Administrative Committee of Judges to act on behalf of the whole Court, the Rules of Court framed by the High Court in 1951 are beyond its competence in so far as they authorise the Administrative Judge or the Administrative Committee to act on behalf of the Court.
10. Article 225, it is true, preserves inter alia the pre-Constitution powers of existing High Courts to frame rules and it may be assumed for purposes of argument, an assumption which is largely borne out by provisions of the laws mentioned in the preceding paragraph, that the High Court of Allahabad did not, prior to the enactment of the Constitution, possess the power to frame rules authorising a Judge or a Committee of Judges of the High Court to act on behalf of the Court. But Article 225 is not the sole depository of the High Courts' power to frame rules. The relevant part of Article 235 of the Constitution provides that the control over District Courts and courts subordinate thereto shall be vested in the High Court. Since Article 216 provides that every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint Article 235 has to be construed to mean that the control over District Courts and courts subordinate thereto is vested in the entire body of Judges who together constitute the High Court and not in the Chief Justice as representing the High Court or an Administrative Judge or a smaller body of Judges acting as an Administrative Committee. But though the control over subordinate courts is vested institutionally in the High Courts by Article 235, it does not follow that the High Courts have no power to prescribe the manner in which that control may in practice be exercised In fact, the very circumstance that the power of control, which comprehends matters of a wide-ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make the exercise of control feasible, convenient and effective. The seeds of the jurisdiction to frame rules regulating the manner in which the control over subordinate courts is to be exercised are thus to be found in the very nature of the power and in the fact that the power vests in the entire body of Judges. The High Court has, therefore, the power under Article 235 itself to frame rules for regulating the manner in which the control vested in it may be exercised. The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power. It is undoubtedly true that the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory in character. The reason is that under the guise of framing rules, the essence of the power cannot be permitted to be diluted But that is a separate matter which we will consider later. The limited object of the present discussion is to show that High Court possess the power under Article 235 to prescribe the manner in which the control over subordinate courts vested in them by that Article may be exercised. That explains why the Allahabad High Court framed Rules of 1952 not only in the exercise of power possessed by it under Article 225 but in the exercise of all other powers enabling it in that behalf. One of such powers is to be found in Article 235 itself and therefore the abstract power of the High Court to frame the impugned rules cannot be doubted and must be conceded.
11. We callsuch a power 'abstract' in order to prepare the ground for consideration of the main point involved in the appeal. The High Court may possess the power to frame rules under Article 235 and yet the rules framed by it may be bad because they are derogatory to the terms of that Article. In other words, if by Article 235 the control over subordinate courts is vested in the High Court as a whole, is it permissible to the High Court to provide by framing a rule that a matter falling within the area of control may be decided, not by the whole court, but by a Judge or a Committee of Judges acting on behalf of the Court? That is the first question which the Full Bench of the High Court formulated for its consideration."
71. The rules framed by the High Court have also been referred to in Joginder Nath v. Union of India, reported in AIR 1975 SC 551 : (1975 Lab IC 347) and in D. K. Agrawal v. High Court of Judicature at Allahabad, reported in AIR 1988 SC 1403 : (1988 Lab IC 1658). However, a rule framed under Article 235 of the Constitution cannot have any statutory force.
72. In B. S. Yaday v. State of Haryana, reported in AIR 1981 SC 561 : (1981 Lab IC 104), it has clearly been held by the apex Court that the power to make a law relating to conditions of service of the subordinate judiciary is in the State. It has also categorically been held by the Supreme Court in the aforementioned decision that the Governor while framing a rule under proviso to Article 309 of the Constitution exercises the same power as that of Legislature as the same is in the nature of legislative power.
73. In Chandra Mohan v. State of U.P., reported in AIR 1966 SC 1987, the Supreme Court has not held as was purported to be contended by Mr. Basudeo Prasad that the State has no power to make rules in relation to the recruitment of the District Judges from the Bar. In State of West Bengal v. Nripendra Nath Bagchi, reported in AIR 1966 SC 447, it was clearly held that power of the Governor to make appointment and posting and order of dismissal and removal are not taken away.
In the said judgment it was held as follows (Para 18) :--
"In our judgment the control which is vested in the High Court is a complete control, subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. Within the exercise of the control vested in the High Court the High Court can hold enquiries, impose punishments other than dismissal or removal, subject however, to the conditions of service and a right to appeal if granted by the conditions of service and to the giving of an opportunity of showing cause as required by Clause (2) of Article 311 unless such opportunity is dispensed with by the governor acting under the provisos (b) and (c) to that clause."
74. This aspect of the matter -has also been considered in Chief Justice of Andhra Pradesh v. L.V.A. Dikshitulu, reported in AIR 1979 SC 193; Corporation of Nagpur v. Ramchandra G. Modak, reported in AIR 1984 SC 626 : (1984 Lab IC 179), AIR 1980 SC 1426 : (1980 Lab IC 825), AIR 1973 SC 2216 : (1973 Lab IC 1212) and AIR 1987 SC 331: (1987 Lab IC 447).
75. This aspect of the matter has also been considered by the Supreme Court of India in the Registrar of Madras High Court v. R. Rajiah, reported in AIR 1988 SC 1388 : (1988 Lab IC 1643). In the said case the Supreme Court was considering an order of compulsory retirement passed by the high Court but there is no formal order in relation thereto was passed by the Governor. It was held by the Supreme Court that although in terms of Article 235 of the Constitution, the High Court had the power to hold an enquiry and make a recommendation in that regard to the State Governor, but, however, formal may be, an order of compulsory retirement, will take effect only after an order is passed by the Governor. In that case Rule 56(d) of the Fundamental Rules was challenged as impinging upon the power of control of the High Court as vested in it under Article 235 of the Constitution but such a contention was rejected.
76. There, therefore, cannot be any doubt whatsoever that the power to make any legislation with regard to the conditions of service in respect at the Superior Judicial Service is in the State and consequently the Governor in exercise of his power under proviso to Article 309 of the Constitution may also frame appropriate rules.
77. It is, however, necessary to mention that from a perusal of the Constitution it is evident that where ever any other authority has been empowered to frame a rule, the same has specifically been conferred under the Constitution. For example, reference may be made to Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) (2), 148(5), 166(3), 176(2), 187(3), 208, 255, 227(2) (3), 229(1) (2), 234, 237 and 238(1) (2).
78. Out of the aforementioned provisions wherever an authority is conferred upon the High Court or the Chief Justice as the case may be, to make rules for the purpose, the same has specifically been provided for as is evident from Articles 225, 227(2) (3) and 229(1) (2) of the Constitution.
79. Thus if the intention of the framers of the Constitution was to confer any rule-making, power relating to the recruitment of District Judges in terms of Article 233 of the Constitution, such a provision could have been made as in the case of the subordinate judiciary, as is evident from Article 234 of the Constitution.
80. Once it is held that the Legislature of State and consequently the Governor has the power of framing a rule in terms of proviso under Article 309 of the Constitution, in my opinion, it has also consequently to be held that such service condition may be laid down with regards to quota, qualification etc. However, it is necessary to state that Legislature while laying down the conditions of service or the Governor while framing a rule in terms of proviso to Article 309 of the Constitution cannot do anything which would impair or interfere with the ultimate administrative control of the High Court over the members of the judicial service.
81. It is needless to repeat that, quota rules in other services have been held intra vires. Reference in this connection may be made to S. C. Jaisinghani v. Union of India, reported in AIR 1967 SC 1427, H. C. Sharma v. Municipal Corporation of Delhi, reported in AIR 1983 SC 881 and O. P. Gupta v. Union of India reported in AIR 1987 SC 2157 : (1987 Lab IC 1904).
82. Rule 6 of the Bihar Superior Judicial Service provides that of the posts in cadre of the service, two-third (2/3) shall be filled by promotion and one-third (1/3) by direct recruitment. Such a rule on the face of it is not ultra vires. It has also been suggested that the said rule is arbitrary. Unless and until a rule is hit by Article 14 or 16 of the Constitution or is against the mandatory provisions contained in any other provision of the Constitution, the question of such a rule being unconstitutional does not arise. In AIR 1984 SC 1594 (Para 24), the Supreme Court held as follows : --
"This Court has taken the view in many cases that whenever the rules provide for recruitment to a service from different sources there is no inherent infirmity in prescribing a quota for appointment of persons drawn from those sources and in working out the rule of quota by rotating the vacancies as between them in a stated proportion."
83. The learned Advocate-General placed strong reliance upon Prem Nath v. Stateof Rajasthan, reported in AIR 1966 Raj 26. In that case a Division Bench of the Rajasthan High Court upheld the validity of appointment of Civil and Sessions Judges in the Rajasthan Superior Judicial Service fixed a quota for appointment. However, it may be mentioned herein that the said decision was reversed on another point in Prem Nath v. State of Rajasthan, reported in AIR 1967 SC 1599. The Supreme Court in Prem Nath's case followed the Chandra Mohan's case, reported in AIR 1966 SC 1987, wherein the Supreme Court held as follows (Para 7) :--
"It is obvious that under the Rajasthan Higher Judicial Service Rules the entire work of scrutinising the applications, interviewing the applicants, selection of eligible candidates from both the sources and preparation of the two lists is done by the Selection Committee and not by the High Court. The only function entrusted under the Rules to the High Court is that of transmitting to the Governor the two lists prepared by the Committee. The Rules, therefore, do not provide for consultation of the High Court and, therefore, contravene Article 233 which envisages consultation with the High Court and not with any other body such as the Selection Committee which cannot substitute the High Court even though the members thereof happen to be three Judges of the High Court. The learned Solicitor-General who appeared for the State frankly conceded that it was not possible for him to distinguish these Rules from the U. P. Higher Judicial Service Rules and, therefore, the decision in Chandra Mohan's case, AIR 1966 SC 1987 (supra) would apply to the present Rules, consequently, the said Rules cannot be sustained and have to be declared invalid. The proceedings taken by the Selection Committee and following them the action taken/must also be held to be invalid"
84. It is, therefore, clear that the conditions of service laid down by the State or the Rules framed by the Governor under proviso to Article 309 of the Constitution should not be such so as to destroy the spirit engrafted in Article 233 of the Constitution. Such rules must protect the ultimate supervisory control over the judiciary under the High Court and normally the choice of the High Court in the matter of promotion or recruitment should be upheld.
85. Reference in this connection may also be made in AIR 1973 SC 2216 : (1973 Lab IC 1212). In the aforementioned case the quota for reservation as envisaged under Articles 15 and 16 of the Constitution was upheld
86. In Hari Datt Kainthla v. State of Himachal Pradesh, reported in AIR 1980 SC 1426 : (1980 Lab IC825), the Supreme Court observed as follows (Para 27) :--
"If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit; seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under Article 309 or adopt to itself such a rule and conform to it."
the Governor intends to differ with the recommendations of the High Court he must set out its own reasons therefor. This matter has clearly been laid down in State of Kerala's case (supra), reported in AIR 1987 SC 331 : (1987 Lab IC 447).
In view of the aforementioned authoritative pronouncement of the Supreme Court in the aforementioned case, in my opinion, no further discussion on the aforementioned question is necessary.
However in terms of the provisions of the Constitution the power of appointment is to be exercised by the Governor. The Governor may exercise his power upon the advice of the Council of the Ministers. This aspect of the matter has been dealt with in various decisions of the Supreme Court namely, AIR 1966 SC 1987, AIR 1980 SC 1426 : (1980 Lab IC 825) (para 12), AIR 1982 SC 1579 : (1982 Lab IC 1970) (paras 26A and 29) and AIR 1987 SC 331 (paras 31 and 32).
From the aforementioned decisions it is also clear that the process of selection and appointment being an important one, the State has no power to make appointment of District Judges whose names have not been recommended by the High Court.
88. Re. question No. (d) As noticed hereinbefore, there are 30 vacancies existing in respect of the persons to be appointed from the Bar, the State in its counter-affidavit have categorically accepted the position that it is agreeable to follow the existing procedure.
89. It is now a well-settled principle of law that a person gets seniority only from the date he enters into the service. Although, as noticed hereinbefore, the career of many persons who could have been appointed from the Bar had been affected as no direct recruitment was made after 1979, so as to fill up the existing vacancies.
90. In Sonal Sihimappa v. State of Karnataka, reported in AIR 1987 SC 2359 : (1988 Lab IC 397), it has been held by the Supreme Court that quota can be carried forward even beyond three years. In this case the concerned authorities, namely, the State Government and the High Court should see to it that the quota rule is not violated and recruitment be made from amongst the members of the Bar in terms of Clause (2) of Article 233 of the Constitution with utmost expedition and not beyond a period of six months from t6day.
91. In this case, however, candidates are not the petitioners. Further in view of lapse of time fresh vacancies have occurred In this situation, in my opinion, the High Court on its administrative side, is the best Judge to consider as to how the matter should be dealt with and in this view of the matter no judicial mandate is required to be issued.
92. However, the necessity of early completion of all formalities for appointment need not be over-emphasised and I hope and trust that all steps would be taken by the High Court as also by the State of Bihar for completing the necessary formalities with utmost expedition.
93. The State is hereby directed to send the names of the applicants who had applied for the post pursuant to the notification dated 24-1-1985 after completing the necessary formalities at an early date. It is also hereby directed to notify the remaining vacancies with utmost expedition.
94. In this view of the matter this writ petition is allowed to the aforementioned extent. However, on the facts and in the circumstances of the case the State is hereby directed to pay a sum of Rs. 1,000/- (One thousand) to the petitioner by way of costs of this writ petition.