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27. In yet another case, the Supreme Court held that rules purporting to have been made under one provision, were partly sustainable under that provision, but the other part subserved the purpose of another provision which was not mentioned nonetheless the rules would be valid because the two powers will concur to sustain them, E. M. Muthappa Chettiar v. I.-T. Officer, AIR 1961 SC 204. Similar views were expressed by a Division Bench of this Court in State of U. P. v. O. P. Sharma, 1964 All LJ 764. The Governor had power to frame rules relating to recruitment under Article 234 and about conditions of service under the first proviso to Article 309. The impugned rules being in respect of both matters are valid because both powers will concur to sustain them and the mere non-mention of Article 234 in the preamble will not affect their validity. The only effect of non-mention of Article 234 would be that no presumption could be raised that the High Court was consulted The respondents do not rely on any presumption. They have sought to establish the fact by evidence.

28. The third submission of learned counsel was that consultation under Article 234 could only be after 26-1-1950. when the Constitution came into force. The process of consultation commenced in 1949 and was of no legal value as Article 234 was not in existence then. I am unable to endorse this submission. The Government consulted the High Court in 1951 afresh, on the finalized draft set of the rules. That satisfied Article 234. Moreover, the Government of India Act, 1935 by Article 255, also similarly required consultation with the High Court. The consultation in 1949 was hence under valid legal authority. Section 6 of the General Clauses Act read with Article 387 of the Constitution will save the validity of these pre-constitution proceedings.

31. The intention behind taking out the provisions relating to subordinate courts from Part XIV of the Constitution and putting them in Part VI, seems to be to make the consultation with the High Court in the matter of framing of the rules, really effective and thus to secure the independence of the subordinate Judiciary from executive (See AIR 1966 SC 1987 (Para 14)). Under the proviso to Article 309 the Governor is competent to frame rules relating to recruitment as well as condition of service. The rules made by the Governor operate only until a provision in that behalf is made by an Act of the Legislature. The legislature while making an Act under Article 309 is not required even by Article 234, to consult any one. The provision for consultation with the High Court would become nugatory as soon as the legislature acted to enact. To avoid this and to keep the rules governing recruitment to the judicial service outside the purview of the State legislature, Article 234 was taken out of Part XIV which includes Article 309. Article 309 is "subject to the other provisions of the Constitution", which means and includes Article 234. Article 234, on the other hand, is not subject to any other provision of the Constitution. The rules, made under Art 234, will hence not be subject to any Act of legislature made under Art, 309. Then again, if the Governor alone was to frame the rules for recruitment to the judicial service, there was no point in making this invidious distinction between the rules for the judicial and the other services This distinction became necessary because the rules for the Judicial Service were to be framed in consultation with the High Court. All these aspects of the matter lead to the inevitable view that Article 234 requires consultation with the High Court only in the matter of the making of the rules.

His Lordship further drew support from Article 237 of the Constitution. He observed:

"It (Art- 237) refers to the 'foregoing' provisions of this Chapter and any rules made thereunder, and there is no other article in the chapter which refers to any rules made under it except Article 234. The reference to the rules in Article 237 must, therefore, have been to the rules made under Article 234, which necessarily meant (a) that the rules might be made under Article 234, and (b) that these rules required prior consultation of the authorities named before they are made."