Patna High Court
Dayanand Singh vs The Government Of Bihar & Ors on 10 November, 2014
Author: R.M. Doshit
Bench: Chief Justice, Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.14677 of 2009
With
Interlocutory Application No. 6894 of 2009
and
Interlocutory Application No. 10443 of 2010
and
Interlocutory Application No. 1514 of 2010
and
Interlocutory Application No. 838 of 2010
and
Interlocutory Application No. 3645 of 2013
and
Interlocutory Application No. 2661 of 2013
===========================================================
Dayanand Singh S/O Ayodhya Prasad Singh, Resident of Vill.- Shermari, P.O.-
Pirpainti, P.S.- Pirpainti, Distt.- Bhagalpur
.... .... Petitioner
Versus
1. The Government of Bihar through The Chief Secretary, Government of Bihar,
Patna
2. The Principal Secretary, Department of Personnel and Administrative Reforms,
Government of the State of Bihar, Patna
3. The Secretary Law-Cum-Legal Remembrancer, Government of the State of
Bihar, Patna
4. The Bihar Public Service Commission Through its Secretary, Bailey Road, Patna
5. The Secretary, Bihar Public Service Commission, Bailey Road, Patna
6. The Hon'ble High Court of Judicature at Patna through its Registrar General
Patna
7. Registrar General, Hon'ble High Court of Judicature at Patna
.... .... Respondents
with
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Civil Writ Jurisdiction Case No. 10226 of 2010
===========================================================
Manjeet Kumar S/O Sri Gyan Shankar Singh, R/O At+P.O.Alawalpur,
P.S.Gaurichak, Distt-Patna
.... .... Petitioner
Versus
Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014
2/30
1. The O.S.D. to His Excellency, The Governor of Bihar, Rajbhawan, Patna
2. The Government of State of Bihar, Through The Chief Secretary , Patna
3. The Principal Secretary, Personnel and Administrative Reforms, Department
Government of State of Bihar, Patna
4. The Law Secretary Cum Legal Remembrancer, Government of State of Bihar,
Patna
5. The Hon'ble High Court of Judicature at Patna Through The Registrar General
Patna High Court, Patna
6. The Registrar General , Hon'ble High Court of Judicature at Patna
7. The Bihar Public Service Commission, Through its Secretary, Bailey Road,
Patna
8. The Secretary, Bihar Public Service Commission, Bailey Road, Patna
.... .... Respondents
with
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Civil Writ Jurisdiction Case No. 7508 of 2011
===========================================================
Neeraj Kumar S/O Chhtrapati Shivaji ,Resident of J.P. Lane, East Lohanipur, P.S.
Kadamkuan, Patna.
.... .... Petitioner
Versus
1. The O.S.D. to His Excellency, The Governor of Bihar, Raj Bhawan, Patna.
2. The Government of State of Bihar Through The Chief Secretary Government of
Bihar, Patna.
3. The Principal Secretary, General Administration Department, Government of
The State of Bihar, Patna.
4. The Secretary, Law Cum Legal Remembrancer, Government of the State of
Bihar, Patna.
5. The Hon'ble High Court of Judicature at Patna Through its Registrar General,
Patna.
6. Registrar General, Hon'ble High Court of Judicature at Patna.
.... .... Respondents
===========================================================
Appearance :
(In CWJC No. 14677 of 2009)
Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014
3/30
For the Petitioner : M/s. Chakrapani, Sanjay Kumar Singh,
Dipak Kumar and Madhuresh Singh, Advocates
For the State : Mr. P N Shahi, Addl. Advocate General
Mr. Mrityunjay Kumar, AC to AAG
For the High Court of Patna : Mr. Satyabir Bharti, Advocate
Mr. Bindhyachal Singh, Advocate
For Bihar Public Service Commission: Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
For Intervenor Applicant : M/s. Rakesh Kumar, Indradeo Prasad, Sanjay Kumar
Sunil Kumar Singh and Arun Kumar No.1, Advocates
For Intervenor Respondents: M/s Ramchandra Singh, Lal Babu Singh, Sankar
Kumar, Indradeo Prasaad, Sanjay Kumar and
Akshay Lal Pandit, Advocates
(In CWJC No. 10226 of 2010)
For the Petitioner/s : M/s. Chakrapani, Sanjay Kumar Singh,
Dipak Kumar and Madhuresh Singh, Advocates
For the State : Mr. P N Shahi, Addl. Advocate General
Mr. Mrityunjay Kumar, AC to AAG
For the High Court of Patna : Mr. Bindhyachal Singh, Advocate
For the Bihar Public Service Commission: Mr. Sanjay Pandey, Advocate
(In CWJC No. 7508 of 2011)
For the Petitioner/s : M/s. Chakrapani, Sanjay Kumar Singh,
Dipak Kumar and Madhuresh Singh, Advocates
For the State : Mr. P N Shahi, Addl. Advocate General
Mr. Mrityunjay Kumar, AC to AAG
For Bihar Public Service Commission: Mr. Lalit Kishore, Sr. Advocate
Mr. Sanjay Pandey, Advocate
===========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUTICE) Date: 10-11-2014 Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 4/30 The above CWJC No. 14677 of 2009 has been filed by one Dayanand Singh, a practicing advocate, to challenge the constitutional validity of Rule 3A of the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955. A similar challenge is made in CWJC No. 10226 of 2010. In CWJC No. 7508 of 2011 similar challenge is made in respect of Rule 4A of the Bihar Superior Judicial Service Rules, 1951.
The facts leading to the above Writ Petitions may be recorded in a nutshell. On 9th August 2008, the Bihar Public Service Commission (hereinafter referred to as „the Commission‟) published advertisement no.3 of 2008 for recruitment for 217 posts in Subordinate Judicial Service. Of the said 217 posts advertised, as per the statutory reservation, 35 posts (16%) were reserved for Scheduled Castes and 2 posts (1%) were reserved for Scheduled Tribes. The last date for submitting applications was 7th January 2009. Since the publication of the said advertisement, under the impugned Notification dated 25th June 2009 the State Government has, effective from 1st October 2008, amended the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 to insert Rule 3A in the said Rules. The said Notification reads as under:-
"In exercise of the powers conferred by Article 234 of the Constitution of India read with the proviso to Article 309, the Governor of Bihar is pleased to make the following amendment in Bihar Judicial Service (Recruitment) Rules, 1955, in consultation with High Court, Patna and Bihar Public Service Commission.
Amendments In the Bihar Judicial Service (Recruitment) Rules, 1955, the following new Rule 3A shall be added:-
"3A- The Bihar Reservation of Vacancies in Post and Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 5/30 Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1991, (as amended from time to time) shall also apply to direct recruitment to the post of Civil Judge (Junior Division)."
It shall be deemed to have come into force with effect from the date 01.10.2008."
Pursuant to the above Notification dated 25th June 2009, under letter dated 26th June 2009 the State Government withdrew the requisition made earlier. On 27th June 2009, the State Government made a fresh requisition for 217 posts in Subordinate Judicial Service. This time the State Government reserved 50% of the vacancies; 34 posts for Scheduled Castes, 2 posts for Scheduled Tribes, 39 posts for Extremely Backward Class, 26 posts for Backward Class and 7 posts for women in Backward Class. In consonance with the said requisition made on 27th June 2009, the Commission published a fresh advertisement no. 45 of 2009 on 4th July 2009. It is the said advertisement and the ensuing recruitment process and the Government Notification dated 25th June 2009 which are the subject matter of challenge before us. It would not be out of place to note that pending these Petitions, the recruitment process for the said 217 posts is completed in consonance with the existing Rules as directed by the Hon‟ble Supreme Court under its order dated 23rd September 2008 made in the matter of Malik Mazhar Sultan (Civil Appeal No. 1867 of 2006) pending before the Hon‟ble Court. Appointments have been made and the candidates have completed the induction training of one year in Bihar Judicial Academy.
Recruitment in the Bihar State Judiciary at the lower levels in the cadre of Civil Judge (Junior Division) and of Civil Judge (Senior Division) is governed by the Bihar Civil Service (Judicial Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 6/30 Branch) (Recruitment) Rules, 1955 (hereinafter referred to as "the 1955 Rules"). Recruitment in Superior Judiciary in the State is governed by the Bihar Superior Judicial Service Rules, 1951 (hereinafter referred to as "the 1951 Rules").
The centre of controversy is the reservation in direct recruitment provided for the subordinate and superior judicial service in the State of Bihar. Historically no reservation was made for recruitment to State Judicial Services. However, considering the trend of the State Government and the strong support for reservation, the High Court has allowed reservation for Scheduled Castes and Scheduled Tribes candidates in respect of direct recruitment to the cadre of Civil Judge (Junior Division). The High Court has time and again considered reservation for direct recruitment in the Superior Judicial Service but has opined against such reservation. The High Court has also considered reservation for other backward classes, but has voted against such reservation.
The State Government has, in exercise of its legislative power, enacted the Bihar Reservation of Vacancies in Post and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (Bihar Act 3 of 1992) (hereinafter referred to as "the 1991 Act"). As the title suggests, the 1991 Act is enacted with a view to introducing a uniform pattern of reservation for Scheduled Castes and Scheduled Tribes and Other Backward Classes in services under the State. The word "State" has been defined in clause (n) of Section 2 of the 1991 Act to include "the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the State or under the control of the State Government". Thus by sheer definition Judicial Services under the State is equated with the Civil Services under the State and have been Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 7/30 brought within the purview of the 1991 Act.
Section 3 of the 1991 Act excludes certain services, such as services under the Central Government, in the private sectors, appointments made on compassionate grounds etc. from the applicability of the 1991 Act. Section 4 thereof provides for reservation in the matter of direct recruitment to the extent of 50% of the vacancies. Sub-section (2) thereof provides for various percentages for different categories totaling 50%. It also provides for reservation in the matter of promotion for the Scheduled Castes and Scheduled Tribes. Sub-section (3) thereof provides that reserved category candidate if selected on the basis of merit, he will be counted against 50% vacancies for open merit category and not against the reserved category vacancies. The said section further provides for carry forward of unfilled vacancies and exchange between the Scheduled Castes and Scheduled Tribes etc. Section 16 thereof gives the 1991 Act overriding effect over any other law in force, any judgment or decree of a court, any order, notification, circular etc. The 1991 Act in so far as it was made applicable to the Judicial Services under the State came to be challenged before this Court in the matter of Bal Mukund Sah. This Court set aside the enactment in so far as it was made applicable to the Judicial Services. The decision of this Court came to be challenged before the Hon‟ble Supreme Court in the matter of State of Bihar & Another vs. Bal Mukund Sah (AIR 2000 SC 1296).
A Constitutional Bench of the Supreme Court by majority set aside the enactment in so far as it was made applicable to the Judicial Services. According to the Hon‟ble Supreme Court, appointment to the State Judiciary is governed by the provisions contained in Articles 233 to 235 of the Constitution. The rules made Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 8/30 thereunder cannot be insulted by the State Legislature or by the Governor of the State in exercise of power under Article 309 of the Constitution. Undeterred by the said judgment, the Government of Bihar has entered into a long drawn correspondence with the High Court asking the High Court to introduce the reservation as provided in the 1991 Act and in the same manner for direct recruitment to the State Judicial Services at the subordinate and superior level. The High Court has earnestly protected its independence and has repeatedly turned down the request of the State Government. The State Government has, since then, in exercise of powers conferred by Article 234 read with Article 309 of the Constitution, and in purported consultation with the High Court and in consultation with the Public Service Commission, on 25th June 2009, issued Notification to amend the "Bihar Judicial Service (Recruitment) Rules, 1955". Under the said Notification, the State Government has inserted Rule 3A in the Rules of 1955 to make the Act of 1991 applicable to direct recruitment to the post of Civil Judge (Junior Division). A similar Notification has been issued to insert Rule 4A in the Bihar Superior Judicial Service Rules, 1951 to make the 1991 Act applicable to direct recruitment in Superior Judicial Service.
It is the aforesaid two Notifications which are the subject matter of challenge in this group of Writ Petitions.
Learned advocate Mr. Chakrapani has appeared for the writ petitioners. He has relied upon Articles 162, 163, 234 and 309 of the Constitution. The sum and substance of the long-winding arguments of Mr. Chakrapani is that the State Government has no authority to make rules to govern recruitment to the Judicial Services in the State except with the consultation with the High Court. In the present case, the impugned Notifications have been issued without proper Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 9/30 consultation with the High Court. A mere correspondence expressing the views of the State Government cannot be said to be „consultation‟ within the meaning of Article 234 of the Constitution. In support of his submissions, Mr. Chakrapani has relied upon the aforesaid judgment in the matter of State of Bihar & Another vs. Bal Mukund Sah (AIR 2000 SC 1296) and the judgments in the matters of Chief Justice of Andhra Pradesh & Others vs. L V A Dixitulu & Others [(1979) 2 SCC 34] and of State of U.P. vs Manbodhan Lal Srivastava (AIR 1957 SC 912).
Learned advocate Mr. Satyabir Bharti has appeared for the High Court. He has supported the writ petitions. He has submitted that the impugned Notifications have not been issued after proper consultation with the High Court. Mr. Satyabir Bharti has drawn our attention to the decision of the High Court in the subject matter. In support of his submission, Mr. Satyabir Bharti has relied upon the judgments of the Hon‟ble Supreme Court in the matter of Union of India vs. Sankalchand Himatlal Sheth (AIR 1977 SC 2328) and of Gauhati High Court & Another vs. Kuladhar Phukan & Another [(2002) 4 SCC 524].
Learned Additional Advocate General Mr. P N Shahi has appeared for the State Government. He has supported the impugned Notifications issued by the State Government. Mr. Shahi has taken us through the records, the counter affidavits and also the aforesaid judgment in the matter of Bal Mukund Sah. In the submission of Mr. Shahi, the relevant provisions of the 1991 Act by which it was extended to the State Judicial Services was held to be bad and illegal for want of previous consultation with the High Court. The said infirmity has since been cured by the State Government. The State Government has entered into a long drawn correspondence and Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 10/30 dialogue with the High Court; has met the Hon‟ble Judges of the High Court and has discussed the matter. Thus there has been sufficient consultation with the High Court. After such consultation the State Government has felt the need for providing reservation for direct recruitment in the State Judicial Services in the same terms as in the Civil Services of the State. Thus the State Government has acted in accordance with the constitutional scheme in an effort to bring about social justice. The State Government has acted wholly within its power in issuing the impugned Notifications. The impugned Notifications, therefore, do not call for interference. The High Court is bound to accept the reservation pattern introduced in the Civil Services of the State under the 1991 Act.
Learned advocate Mr. Rakesh Kumar has appeared for the intervenor, Nyaypalika Arakshan Andolan. He has supported the impugned Notifications. He has tried to convince the Court in respect of the necessity for reservation in the Judicial Services with socio- economic angle. He has submitted that the High Court has given evasive reply; that it has no power to veto the decision of the Government. The decision of the State Government is binding to the High Court.
Since the matter relates to reservation of posts for recruitment to the State Judicial Services it would be appropriate to refer to the relevant provisions of the Constitution. Article 14 of the Constitution provides for „equality before law‟, whereas Article 16 of the Constitution provides for "equality of opportunity in matters of public employment". Nevertheless, clause (4) thereof, inter alia, enables the State to make reservation of appointment or posts in favour of any backward class of citizens. Clause (4-A) thereof makes a similar provision for reservation in favour of the Scheduled Castes Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 11/30 and Scheduled Tribes in the matter of promotion. It is this power to make the reservation in public employment which has become the bone of contention and has led to the present set of Writ Petitions.
Part IV of the Constitution comprises "DIRECTIVE PRINCIPLES OF STATE POLICY" contained in Articles 38 to 51. Article 50 provides for "Separation of Judiciary from Executive". It reads "the State shall take steps to separate the judiciary from the executive in the public services of the State". Part VI of the Constitution provides for "THE STATES". Chapter II whereof provides for "THE EXECUTIVE". Chapter III provides for "THE STATE LEGISLATURE". Chapter IV provides for "LEGISLATIVE POWER OF THE GOVERNOR". Chapter V provides for "THE HIGH COURTS". Chapter VI comprises Articles 233 to 237 and provides for "SUBORDINATE COURTS‟. The constitutional scheme for appointment of the District Judges and other judicial officers in a State under this Chapter has constantly been the subject matter of discussion by the Hon‟ble Supreme Court. I, therefore, do not elaborate upon the said provisions at this stage. The same will be considered while referring to the judgments of the Hon‟ble Supreme Court. I shall also refer to Article 335 of the Constitution which provides, "The claims of the members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State".
Before I deal with the rival contentions, I will record the decisions of the Patna High Court in this regard. The matter has come up before the High Court time and again. As recorded earlier, after the judgment of the Hon‟ble Supreme Court in the matter of Bal Mukund Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 12/30 Sah (AIR 2000 SC 1296) the State Government entered into a correspondence with the High Court. After the judgment and the correspondence, on 21st May 2005 the Full Court decided, "The Full Court after having considered the matter and having found that there is reservation for the Scheduled Castes and Scheduled Tribes in the Bihar Judicial Service (Recruitment) Rules, 1955, and the members of the Backward Classes are adequately represented in the Judicial Services, there is no need for further reservation for them in the Judicial Service. Accordingly, this Court does not concur to the amendments proposed by the State Government in the Bihar Judicial Service (Recruitment) Rules, 1955, and the Bihar Superior Judicial Service Rules, 1951." Even after the aforesaid decision of the Full Court, a Committee of Judges constituted by Hon‟ble the Chief Justice, entered into the discussion with the State Government. After such discussion, in its minutes drawn on 25th August 2008, the Committee noted that irrespective of the absence of reservation for Backward and Extremely Backward Classes they had sufficient representation in the Higher Judicial Service, the Fast Track Courts and the Subordinate Judicial Service. In absence of any contradictory material brought by the State Government the Committee opined, "in view of failure of the representatives of the State Government to furnish the details in regard to the inadequate representation of the Most Backward Class and Backward Class, which are fundamental facts necessary for the decision, the Committee is of the opinion that there does not exist any reason to reconsider the decision taken by the Full Court in its meeting held on 21st of May, 2005."
Once again the Full Court in its meeting held on 18th September 2010 discussed the issue and decided, "Keeping in view Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 13/30 the powers and responsibility attached to the Officers for Superior Judicial Service and that 75% posts are filled in by promotion from the Officers of Subordinate Judicial Service, it is resolved not to provide reservation in Bihar Superior Judicial Service. However, preference shall be given to S.C./S.T. and O.B.C. categories in case merit is found equal to others. Considering the figures of representation, it is further resolved that 10% of the vacancies in Bihar Subordinate Judicial Service be reserved for Backward Class I category in addition to 16% of the vacancies reserved for Scheduled Castes and 1% of the vacancies reserved for the Scheduled Tribes. Relaxation in age by 3 years be also granted to S.C./S.T. and O.B.C. category."
It is thus apparent that the issue has been given due attention by the High Court time and again. The High Court has consistently opined against the reservation in Superior Judicial Service. Although on facts it has been found that the candidates in other Backward Classes had adequate representation in the Judicial Services of the State, the High Court has indeed allowed reservation for Backward Class I candidates to the extent of 10% increasing total reservation to 27% of the vacancies.
In answer to the Writ Petitions, the High Court has filed counter affidavits to place the aforesaid decisions of the High Court on the record and has brought the factual position as regards the representation of the Backward Class candidates in the State Judiciary. The High Court has also brought on record the order dated 23rd September 2008 made by the Hon‟ble Supreme Court in the matter of Malik Mazhar Sultan (Civil Appeal No. 1867 of 2006). Under the said order, the Hon‟ble Supreme Court had directed, "in our opinion, it would be appropriate if the process of recruitment Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 14/30 is undertaken immediately by both, namely, the State of Bihar as well as the High Court of Patna as per the existing Rules." The Hon‟ble Court had further directed the State Government and the High Court to expedite the process of recruitment so that the vacant posts could immediately be filled in.
The scope of the 1991 Act in so far as its applicability to the Judicial Services in the State is concerned, has been elaborately discussed by the Hon‟ble Supreme Court in the matter of Bal Mukund Sah (AIR 2000 SC 1296). The Constitutional Bench of the Supreme Court has considered all the earlier judgments in the subject matter. The case before the Hon‟ble Supreme Court also arose on account of the application of the 1991 Act to the recruitment for Judicial Service commenced in 1991. After the process for recruitment had commenced, the Government of Bihar applied reservation under the 1991 Act for recruitment to Judicial Service by promulgating an ordinance which later on became enactment. The enactment was purported to have been enacted in consultation with the Public Service Commission and the High Court. In my view, this judgment is the complete answer to the controversy raised before us. The Hon‟ble Court has considered the constitutional scheme, the legislative power of the State, the legislative power of the Governor under Article 309 of the Constitution and other provisions which have bearing on the matter at issue. Having considered the independent autonomy granted by the Constitution to certain offices such as Parliament, State Legislature, Supreme Court, the High Courts, Election Commission, the office of the Comptroller & Auditor General, the Public Service Commission, the Hon‟ble Court has observed that legislative power of the Central Government or the State Government or, for that matter, of the President of India or the Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 15/30 Governor of the State under Article 309 of the Constitution is not absolute, but is subject to the provisions of the Constitution and the Acts of the appropriate legislature. Whereas the powers of the above referred constitutional functionaries is independent and is not dependent or subject to the enactment or the rules made under Article 309 of the Constitution. In the opinion of the Hon‟ble Court, such rules, therefore, shall prevail over the legislative enactment or the rules made under Article 309 of the Constitution. In paragraph-22 of the judgment the Hon‟ble Court has summarized - "The aforesaid constitutional provisions clearly indicate that independently of general provisions regarding services as mentioned in Part XIV, different types of services contemplated by the Constitution in other parts have their own procedural schemes for recruitment and regulation of conditions of these services and, therefore, Art. 309 found in Part XIV necessarily will have to be read subject to these special provisions regarding recruitment and conditions of services of diverse types governed by the relevant different constitutional provisions as indicated hereinabove." The Hon‟ble Court further held, "Thus, even if under Art. 16(4) the State proposes to provide reservation on the ground of inadequate representation of certain Backward Classes in services, if it is considered by the appropriate authority that such reservation will adversely affect the efficiency of the administration, then exercise under Art. 16(4) is not permissible. This is the constitutional limitation on the exercise of the enabling power of reservation under Art. 16(4). As we shall presently show, question whether in the subordinate judiciary covered by Arts. 233 and 234 if reservation is provided, then the efficiency of the judicial administration will be affected, is a matter within the exclusive Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 16/30 purview of the High Court which shall have to be consulted. Such consultation is a constitutional obligation before any Rules are made for reservation."
In respect of the legislative power of the State, the Hon‟ble Court considering the scheme under Articles 245 and 246 of the Constitution, held, "Meaning thereby, if other provisions of the Constitution cut down or exclude the legislative powers of Parliament or State Legislature qua given topics, then those other provisions have to be given their full play and effect."
Keeping with these basic principles of the Constitution, in context of Articles 233 to 235 it was held that the 1991 Act having regard to the definition of the word "State" would apply to govern reservation for direct recruitment to the posts of Presiding Officers in the district courts as well as courts subordinate thereto. Having held thus the Hon‟ble Court proceeded further to hold that Section 4 of the 1991 Act in its application to the Judicial Services under the State was ultra vires Articles 233 and 235 of the Constitution. In holding thus the Hon‟ble Court resorted to Article 50 of the Constitution which mandates the State to take steps to separate the judiciary from the executive in the public services of the State; that the power of the legislature or the Governor to make enactment or rules under Article 309 of the Constitution is circumscribed by the other provisions of the Constitution; that control of the High Court over the subordinate courts under Article 235 of the Constitution and consultation with the High Court for recruitment of District Judges are absolute and sine qua non. As held by plethora of judgments the authority or power of appointment of a District Judge conferred upon the Governor of the State is subject to the consultation with the High Court and no person can be appointed as a District Judge unless he is recommended by the Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 17/30 High Court for such appointment. In respect of „consultation‟, the Hon‟ble Court held, "thus consultation of the Governor with the High Court under Article 234 is entirely of a different type as compared to his consultation with the Public Service Commission about procedural aspect of selection. So far as direct recruitment to the posts of District Judges is concerned, Article 233, sub- article (2) leaves no room for doubt that unless the candidate is recommended by the High Court, the Governor cannot appoint him as a District Judge. Thus, Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of judiciary subordinate to the District Court."
The Hon‟ble Court further held, "it has also to be kept in view that neither Art. 233 nor Art. 234 contains any provision of being subject to any enactment by appropriate Legislature as we find in Arts. 98, 146, 148, 187, 229(2) and 324(5). These latter articles contain provisions regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is conspicuously absent in Arts. 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant-State that these Articles only deal with the rule making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete Code for regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 18/30 the scheme of the Constitution and its basic framework that the Executive has to be separated from the judiciary. Hence, the general sweep of Art. 309 has to be read subject to this complete Code regarding appointment of District Judges and Judges in the subordinate judiciary."
"In this connection, we have also to keep in view Art. 245 which, in its express terms, is made subject to other provisions of the Constitution which would include Arts. 233 and 234. Consequently, as these twin articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate on this field clearly gets excluded by the constitution scheme itself. Thus both Arts. 309 and 245 will have to be read subject to Arts. 233 and 234 as provided in the former articles themselves."
In respect of reservation in judicial service and the power of the State Government under Article 16(4) of the Constitution, the Hon‟ble Court held, "it is true, as submitted by learned senior counsel Shri Dwivedi for the appellant-State that under art. 16(4) the State is enabled to provide for reservations in service. But so far as „judicial service‟ is concerned, such reservation can be made by the Governor, in exercise of his rule making power only after consultation with the High Court. The enactment of any statutory provision dehors consultation with the High Court for regulating the recruitment to District Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to Subordinate Judiciary and the exclusive field earmarked in connection with such Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 19/30 appointments by Arts. 233 and 234. It is not as if that the High Court being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Art. 16(4). The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Arts. 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative power, circumvent and cut across the very scheme of recruitment and appointment to District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the constitutional scheme, will also fall foul on the concept relating to "separation of powers between the legislature, the executive and the judiciary" as well as the fundamental concept of an „independent judiciary‟. Both these concepts are now elevated to the level of basic structure of the Constitution and are the very heart of the constitutional scheme."
The Hon‟ble Court further held, "any statutory provision bypassing consultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of S.4 by the Bihar Legislature has got to be held to be in direct conflict with the complete Code regarding recruitment and appointment to the posts of District Judiciary and Subordinate Judiciary as permitted and envisaged by Arts. 233 and 234 of the Constitution. Impugned S. 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to District Judiciary and Subordinate Judiciary is concerned. That field is carved out and taken out Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 20/30 from the operation of the general sweep of Art. 309".
It was also held by the Hon‟ble Court that, "but for that purpose, the Governor can, in consultation with the High Court, make appropriate rules and provide for a scheme of reservation for appointment at grass-root level or even at the highest level of the District Judiciary but so long as this is not done, the State Legislature cannot, by upsetting the entire apple-cart and totally bypassing the Constitutional mandate of Articles 233 and 234 and without being required to consult the High Court, lay down a statutory scheme of reservation as a road roller, straight-jacket formula uniformly governing all States Services, including Judiciary."
In above view taken by the Hon‟ble Supreme Court, the Court held and directed, "in the light of our answer to point no. 2, the question survives for consideration as to what appropriate orders can be passed in connection with the impugned Section 4 of the Act. Now it must be kept in view that Section 4, as enacted in the Act, can have general operation and efficacy regarding other Services of the State not forming part of Judicial Service of the State. Qua such other services Section 4 can operate on its own and in that connection consultation with the High Court is not at all required. However, in so far as it tries to encroach upon the field of the recruitment and appointment to Subordinate Judicial Service of the State as envisaged by Articles 233 and 234 it can certainly be read down by holding that Section 4 of the impugned Act shall not apply for regulating the recruitment and appointments to the cadre of District Judges as well as to the cadre of Judiciary subordinate to the District Judges and such appointments will be strictly governed by the Bihar Superior Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 21/30 Judicial Service Rules, 1951 as well as by the Bihar Judicial Service (Recruitment) Rules, 1955. In other words, Section 4 will not have any impact on these rules and will stand read down to that extent. Once that is done, question of striking down the said rule from the statute book would not survive and would not be required. We, accordingly, read it down as aforesaid. Point no. 3 is answered accordingly in favour of the respondent and against the appellant-State."
Hon‟ble Mr. Justice G B Pattanaik, in his separate judgment, did agree with the supremacy of the power of the High Court under Articles 333 to 337 of the Constitution. The Hon‟ble Judge observed, "in other words, so far as recruitment to the judicial services of the State is concerned, the same being provided for specifically in Chapter VI under Articles 233 to 237, it is those provisions of the Constitution which would override any law made by the appropriate legislature in exercise of power under Article 309 of the Constitution. The State Legislature undoubtedly can make law for regulating the conditions of services of the officers belonging to the Judicial Wing but cannot make law dealing with recruitment to the judicial services since the field of recruitment to the judicial service is carved out in the Constitution itself in Chapter VI under Articles 233 to 236 of the Constitution."
However, Hon‟ble Mr. Justice R P Sethi speaking for himself and for Hon‟ble Mr. Justice V N Khare had a different view. According to the said minority view, "it follows, therefore, that subject to the other provisions of the Constitution, the appropriate Legislature can regulate the recruitment and condition of service of all persons appointed to public services Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 22/30 including the judicial services and posts in connection with the affairs of the Union or of the State. Similarly with restraint of the provisions of Article 309 the Governor of the State can make rules regulating the recruitment and condition of service of such persons. The scheme of the Constitution, ensuring independence of judiciary clearly and unambiguously provides that no power is conferred upon executive to exercise disciplinary authority and jurisdiction in respect of judicial service. Express provision has been made under the Constitution, vesting in the High Court "the control over District Courts and Courts subordinate thereto". Such a provision did not exist in the Government of India Act, 1935."
The Hon‟ble Judge further held, "it is thus evident that having failed to get the consent of the High Court in framing the Rules either under Article 234 or Article 309 read with Article 233 of the Constitution, resort was had to the issuance of Ordinance and thereafter enacting the impugned Act. This unfortunate position arose on account of the antagonistic and belligerent approaches adopted by the State Government and the High Court. Had the aforesaid two wings of the State acted fairly realizing their obligations under the Constitution, the confrontation could have been avoided."
The State Government has in its counter affidavit relied upon the above referred correspondence to buttress the contention that the impugned Notifications have been issued after due consultation with the High Court. It was the High Court which had deliberately delayed the matter. The State Government has, without any supporting materials, denied that there is an adequate representation of backward class candidates in the State Judiciary. Instead, it has relied Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 23/30 upon the reservation allowed in the judicial services of various States and the power of the State Government to provide for such reservation. The State Government has also relied upon the above referred direction dated 23rd September 2008 issued by the Hon‟ble Supreme Court to resolve the issue expeditiously. In support of its contentions, the State Government has also relied upon the minority view expressed in the matter of Bal Mukund Sah (supra) without reference to the majority decision.
In the backdrop of the above referred facts and the law decided by the Hon‟ble Supreme Court, let me examine whether the impugned Notifications are validly issued by the State Government in exercise of its power to provide for reservation especially for backward classes in the Judicial Services of the State. There indeed is no question about the power of the State Government to provide reservation in the posts in services under the State but whether the State Government is justified in introducing the reservation in the Judicial Services in the State contrary to the opinion of the High Court.
Let us first be clear that although the State is empowered to provide for reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes, the Constitution does not compel the State to provide for such reservation nor does the Constitution restrict the extent to which such reservation can be provided. Probably, the Constitution makers relied upon the wisdom of the State in making reservation only to the extent it is necessary and maintaining efficiency in the administration. It is known to one and all that the power of providing reservation in public services has largely been politicized. Reservation in public services is more a political manifesto than the necessity; effort is to appease the mass by Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 24/30 including more and more castes and communities in one or the other reserved category without reference to the necessary criteria, such as normal profession of the community concerned or the educational level. The effect of the reservation on the efficiency of the administration is the factor totally overlooked. A time came where the reservation was extended to more than 70% of the posts which called for intervention by the Hon‟ble Supreme Court. The Hon‟ble Supreme Court put its foot down and directed that in no circumstances the reservation shall exceed 50% of the posts. This has now been used as a leverage for providing for 50% reservation of the posts. It has not been examined or not even the case of the State that reservation to the extent of 50% is required or that even after 50% reservation the efficiency of the administration is not adversely affected. The State Government appears to have lost sight of these vital factors.
Further, as held by some of the High Courts and the Hon‟ble Supreme Court, and as provided under the 1991 Act, if the candidates in the reserved categories are able to secure general standard of selection they are accommodated on general category posts and not against the reserved category posts. In other words, those reserved category candidates who are appointed on reserved posts are necessarily the candidates below general standard of selection. In other words, they are necessarily below average or below par or I may call them, though it sounds derogatory, substandard candidates.
The matter requires to be looked from one another angle also. The establishment of the Civil Services of the State is very large and may be it is able to sustain 50% substandard employees. So far as the Judicial Services is concerned, the establishment of the total number of judicial posts sanctioned is not more than 1500 in the State having population of more than 10 crores. It is the consistent Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 25/30 experience that it is difficult to recruit even 1500 suitable candidates to man the judicial posts. The State Government has to suffer constant deficit in the number of judicial officers. If in such a small cadre 50% of the officers are selected on the basis of reservation who are below the general standard of selection, it would certainly impair the dispensation of justice. The casualty will be the State which is one single largest litigant; poor and ignorant litigants who are not well advised; the beneficiaries will be the affluent and capable litigants and those who approach the courts for false or frivolous claims with a view to buying time. As recorded by the High Court in its decision on administrative side, the High Court is satisfied about adequate representation of backward classes at all levels in the State Judiciary and reservation for them is not required.
The State Government although has relied upon some parts of the judgment in the matter of Bal Mukund Sah (supra) and some orders issued by the Hon‟ble Supreme Court in the matter of Malik Mazhar Sultan, has not taken into consideration the primacy of the decisions of the High Court in the matters relating to judicial officers. There is no dearth of the judgments of the Hon‟ble Supreme Court that the opinion of the High Court shall prevail.
In the matter of L V A Dixitulu & Others [(1979) 2 SCC 34], a Constitutional Bench of the Supreme Court has reiterated its concern about independence of Judiciary and primacy of the opinion of the High Court in the matters relating to the Judicial Officers in the State and the ministerial staff of the High Court. The Hon‟ble Court has held, "the officers and servants of the High Court and the members of the Judicial Service, including District Judges, being outside the purview of clause (3), the non obstante provision in clause (10) cannot operate to take away the administrative or Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 26/30 judicial jurisdiction of the Chief Justice or of the High Court, as the case may be, under Articles 229, 235 and 226 of the Constitution in regard to these public servants in matters or disputes falling within the scope of the said Articles."
In the matter of Manbodhan Lal Srivastava (AIR 1957 SC
912), the Hon‟ble Court has emphasized on consultation and the nature of consultation required in the matters under Articles 233 and 234 of the Constitution. Same concern for the independence of Judiciary and primacy of the opinion of the Supreme Court and the High Court are the subject matter of discussion in the matter of Sankalchand Himatlal Sheth (AIR 1977 2328).
Once again in the matter of M M Gupta vs. State of Jammu & Kashmir (AIR 1982 SC 1579), the Hon‟ble Supreme Court recorded "unfortunately, for some time past, there appears to be an unhappy trend of interference in the matter of judicial appointments by the executive both at the State and the Central level." The Hon‟ble Court also recorded, "if in the matter of appointment, the High Court is sought to be ignored and the executive authority chooses to make the appointment, independence of the Judiciary will be affected." The primacy of the opinion of the Chief Justice of India or the Chief Justice of the High Court in the matter of appointment of the Judges of the Supreme Court or the High Court has been reiterated by the Constitutional Bench of the Supreme Court in the matter of Supreme Court Advocates-on- Record Association vs. Union of India (AIR 1994 SC
268). The matter of independence of Judiciary and the consultation envisaged by Article 234 of the Constitution has once again been the subject matter of consideration by the Hon‟ble Supreme Court in the matter of Gauhati High Court vs. Kuladhar Phukan [(2002) 4 SCC Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 27/30 525] and in the matter of Jamaluddin vs. State of Jammu & Kashmir [(2011) 14 SCC 725].
The Hon‟ble Supreme Court has in the above referred judgments also distinguished the nature of consultation with the Public Service Commission and with the High Court and the nature of consultation in respect of the Civil Services of the State and the Judicial Services of the State. In my view, the correspondence relied upon by the State Government can hardly be said to be consultation in the real sense of the word. Writing letters and displaying the earnestness of the Government for providing desired reservation in Judicial Services cannot be said to be consultation. The State Government was required to pay attention to the opinion of the High Court keeping in view the general representation of different classes, the total strength of the judicial officers and the maintenance of the high standards in respect of dispensation of justice. None of these factors appears to be the primary concern or of any concern at all of the State Government. In my opinion, not only the State Government has failed to properly consult the High Court, it has not taken into consideration the vital factors of total strength of the judicial officers and advisability of the reservation, that too to the extent of 50% of vacancies, in judicial services vis-à-vis the maintenance of efficiency and competency. The State Government has, in its zeal to provide for reservation, lost sight that the opinion of the High Court will have primacy over the desire of the State Government.
All these judgments only prove the obduracy of the executive Government to impose reservation in Judicial Services contrary to the opinion of the High Court, without regard to the necessity to maintain certain standard of efficiency and competence of the judicial officers. The independence of the Judiciary and the Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 28/30 primacy of the opinion of the High Court are constantly under attack by the executive Government. The High Court is constantly on the edge, fervently protecting its independence and primacy.
Let me record that action of the State Government lacks bonafide. At first in 2008, the State Government made requisition for 217 posts in the cadre of Civil Judge (Junior Division) indicating the extent of reservation for Scheduled Castes and Scheduled Tribes. The recruitment process was commenced under advertisement no. 3 of 2008 published on 9th August 2008. Although the Hon‟ble Supreme Court had made order on 23rd September 2008 to complete the recruitment process in accordance with the existing Rules, ignoring the said direction, in purported compliance with the direction to complete the process in consultation with the High Court, the State Government entered into some correspondence with the High Court and before the matter could be crystallized in consultation with the High Court, on 25th June 2009 the State Government issued the impugned Notifications in purported exercise of power conferred by Article 234 read with Article 309 of the Constitution and in alleged consultation with the High Court and the Public Service Commission. On the very next day on 26th June 2009, the State Government withdrew its requisition made earlier and the next day on 27th June 2009 made a fresh requisition maintaining reservation in accordance with the 1991 Act. The quick succession of the aforesaid events smacks lack of bonafide on the part of the State Government. Once the recruitment process had commenced; the Hon‟ble Supreme Court had directed to complete the recruitment process in accordance with the existing Rules, the State Government ought not to have meddled with the said recruitment process. Instead, the State Government has surreptitiously introduced the reservation under the 1991 Act to the Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 29/30 posts in Judicial Services; stalled the recruitment which had already commenced, and by circumventing the order of the Hon‟ble Supreme Court, started recruitment process afresh, without the knowledge of the High Court. The action of the State Government is deprecated and is abhorred.
In my opinion, the High Court has, for cogent reasons decided not to make reservation for backward classes or to the extent of 50% of the posts. It is hightime the State Government accepts the opinion of the High Court and forbears itself from interfering with the administrative powers of the High Court in respect of the posts in the State Judiciary.
To understand the implications of the reservation in the Judiciary, I have gathered some information which, in my opinion, should be fruitful to note. Since the recruitment in question commenced in 2009 the State Government has sanctioned some more posts in Judicial Services at all levels. As on today, the sanctioned strength of the Judicial Officers at all levels together is 1670. Out of the said sanctioned posts, 1035 posts are filled in. Recruitment for 118 posts of Judicial Magistrate, [Civil Judge (Junior Division)] commenced in 2012 is now completed and the final merit list is published. In the recruitment just completed, out of the general merit candidates who had qualified for interview, nearly 20% were from the reserved categories. To this if we add 27% reservation approved for the cadre of Civil Judge (Junior Division) total representation of the reserved categories will be around 45% or more, not far from the 50% target adopted by the State Government. These figures also strengthen the decision of the High Court not to make further reservation in the cadre of Civil Judge (Junior Division).
For the aforesaid reasons, all the Writ Petitions are allowed. Patna High Court CWJC No.14677 of 2009 dt. 10-11-2014 30/30 The impugned Notification No. 6067 dated 25th June 2009 issued in respect of the Bihar Civil Services (Judicial Branch)(Recruitment) Rules, 1955, and the Notification No.6069 dated 25th June 2009 issued in respect of the Bihar Superior Judicial Service Rules, 1951 are quashed and set aside. Legal consequences shall follow.
Interlocutory Applications stand disposed of.
Before parting I would like to refer to the Intervention Application No. 838 of 2010 filed by the intervenor-Nyaypalika Arakshan Andolan through its President, Phulen Yadav. We must record that the intervenor has not made out a case that it has a legal existence and has the authority to intervene in the present proceeding. The averments made in the Application and the written arguments filed in the proceeding are highly objectionable and are contemptuous. The submissions made by the learned advocate Mr. Rakesh Kumar on behalf of the intervenor are equally contemptuous, so is the behaviour of Mr. Rakesh Kumar. Although the submission made by Mr. Rakesh Kumar is recorded, I reject the Interlocutory Application No. 838 of 2010 filed by the intervenor- Nyaypalika Arakshan Andolan through its President, Phulen Yadav, and record my displeasure for the manner in which the case has been presented by the intervenor.
(R.M. Doshit, CJ)
Ashwani Kumar Singh, J. I agree.
(Ashwani Kumar Singh, J)
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