2000 Supreme(SC) 565

2000(2) Supreme 409
Supreme Court of India
(Constitution Bench)
(From Patna High Court)
S.B. Majmudar, G.B. Pattanaik, V.N. Khare, U.C. Banerjee and R.P. Sethi, JJ.
State of Bihar & Anr. —Appellants
versus
Bal Mukund Sah & Ors. —Respondents
Civil Appeal No. 9072 of 1996
With
C.A. No. 2083 of 2000
(@ SLP (C) No. 16476 of 1993)
Decided on 14-3-2000
Counsel for the Parties :
For the Appearing Parties : V.A. Bobde, F.S. Nariman, Dr. Rajeev Dhavan, Rakesh Dwivedi, K. Sukumaran, D.D. Thakur, B.L. Yadav, B.D. Agarwal, Sr. Advocates, Saket Singh, Kumar Rajesh Singh, B.B. Singh, Uman Nath Singh, Lakshmi Raman Singh, Amitesh Kumar, Apurb Lal, Prakash Kumar, S.K. Verma, Ms. Kirti Sinha, Akhilesh Kumar Pandey, R.P. Goyal, Gulab Chandra, D.K. Garg, Ms. Renu George, K.K. Misra, Vishwajit Singh, N.S. Gahlot, Anish Dayal, R.K. Singh, S.D. Mishra, Tripurari Rai, Prashant Kumar, S.K. Sinha, R.S. Singh, Anil Kumar Jha, Irshad Ahmed, C.N. Shree Kumar, Balbir Singh Gupta, Manoj Prasad, A.N. Bardiyar, B.B. Singh, P.H. Parekh, Amit Dhingra, Advocates

Very Important Points
1. Articles 233 and 234 of the Constitution of India represent a well knit and complete scheme regulating the appointments and recruitment to the cadre of District Judges as well as the Subordinate Judiciary, therefore, both Articles 309 and 245 of the Constitution will have to be read subject to Articles 233 and 234 and the concerned authorities have to keep in view the opinion of the High Court of the concerned State.
2. No recruitment to the post of a District Judge can be made by the Governor without recommendation from the High Court.
3. Appointments to Subordinate Judiciary at grass root level cannot be made by the Governor save and except according to the rules framed by the Governor in consultation with the High Court.
4. Even though the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991, is held to be applicable even to Judicial Service, Section 4 thereof in particular laying down scheme of reservation, will not apply for governing the recruitment to the cadre of District Judiciary as well as to the cadres of Judiciary Subordinate to the District Judges.

Headnote:(i) Constitution of India—Arts. 233 to 235, 309—Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991—Section 4—Reservation for direct recruitment to posts in Judiciary of the State, subordinate to High Court of Patna—Advertisement reserving 27 out of 54 posts of District Judges to be filled in by direct recruitment—Legality of—Scheme of 50 reservation of posts for direct recruitment in posts of District Judiciary challenged—Whether impugned Act of 1991, on its express language covers ‘Judicial Service’ of the Bihar State—Held, Yes—Whether Section 4 of the Act in its application to Subordinate Judiciary would be ultra vires Arts. 233 and 234 of the Constitution—Held, Yes—Section 4 will not apply to direct recruitment to the posts comprised in Bihar Superior Judicial Service as well as to Bihar Judicial Service comprising of posts of Subordinate Judges and Munsiffs under the District Judiciary.

       Held :

       Per S.B. Majmudar, J.—(G.B. Pattanaik and V.C. Banerjee, JJ. concurring) (Majority opinion) :

       The Act is enacted to provide for adequate representation of SC, ST and OBC candidates in Posts and Services under the State. The ‘State’ is defined by Section 2(n) to include "the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the State or under the control of the State Government." Consequently, it cannot be said that the Act, as framed, did not seek to cover the Judiciary of the State of Bihar. (Para 25)

       Question is whether the phrase ‘posts in any establishment’ governs such judicial posts. We have, therefore, to turn to the definition of the term ‘establishment’ as found in Section 2(c) of the Act. The relevant provision thereof lays down that "establishment" means "any Office or department of the State concerned with the appointments to public services and posts in connection with the affairs of the State". On a conjoint reading of the definition of "State" under Section 2(n) and the definition "establishment" under Section 2(c), the following statutory scheme emerges. Any office or establishment of the Judiciary of the State of Bihar concerned with the appointments to public services and posts in connection with affairs of the Judiciary of the State of Bihar would fall within the sweep of the term ‘establishment’. Once that conclusion emerges from the scheme of the Act, it becomes obvious that all appointments to services and posts in any office or department of the Judiciary of the State of Bihar would be covered by the sweep of Section 4. On the aforesaid scheme of the Act, the High Court in the impugned judgment, has taken the view that the operation of Section 4 for offices or departments of the Judiciary of the State of Bihar would cover only the ministerial staff of the District Courts and courts subordinate thereto and would not include Presiding Officers and therefore, Section 4 will not govern the direct recruitment to the posts of Presiding Officers of the District Judiciary as well as of Subordinate Judiciary. It is difficult to appreciate this line of reasoning on the express language of the relevant provisions of Section 4 read with the definition provisions. It becomes obvious that the term ‘any office’ of the Judiciary of the State of Bihar would naturally include not only ministerial staff but also officers, including Presiding Officers of courts comprised in the Judiciary of the State. Once that conclusion is reached on the express language of the relevant provisions of the Act, it cannot be held that the thrust of Section 4 would not apply to govern reservation for direct recruitment to the posts of Presiding Officers in the District Courts as well as courts subordinate thereto, as all of them will form part and parcel of the Judiciary of the State of Bihar and will have to be treated as holders of offices in the State Judiciary. Consequently, it is not possible to agree with the contention of learned senior counsel Shri Thakur for the High Court that on the express provisions of the Act, Section 4 cannot apply to govern recruitment to posts in Subordinate Judiciary. The first point for determination, therefore, has to be answered in the affirmative in favour of the appellants and against the respondents. (Para 25)

       Section 4 postulates available vacancies in the already existing posts in the cadres and tries to control appointments to such existing posts in the vacancies falling due from time to time by adopting the rule of thumb and a road-roller provision of 50 vacancies to be reserved for reserved category candidates, meaning thereby, the Section mandates the High Court and that too without consulting it, that it shall not fill up 50 of available vacancies by selected candidates standing in the order of merit representing general category candidates and must go in search of less meritorious candidates for filling up these vacancies supposedly reserved for them. Such a scheme can be envisaged only under relevant rules framed under Articles 233 and 234 after consultation with the High Court and cannot be made the subject matter of any legislative fiat which the High Court is expected to carry out willy-nilly and dehors the Constitutional scheme regarding full and effective consultation with the High Court in this connection. It must, therefore, be held that the impugned Section 4, as existing on the statute book if allowed to operate as it is for controlling recruitment to the posts of District Judges as well as to the posts in Judiciary subordinate thereto to the District Courts, would directly conflict with the Constitutional scheme of Articles 233 and 234 constituting a complete Code and has to be treated as ultra vires the said Constitutional scheme. (Para 56)

       Section 4, as enacted in the Act, can have general operation and efficacy regarding other Services of the State not forming part of Judicial Service of the State. Qua such other services Section 4 can operate on its own and in that connection consultation with the High Court is not at all required. However, in so far as it tries to encroach upon the field of the recruitment and appointment to Subordinate Judicial Service of the State as envisaged by Articles 233 and 234 it can certainly be read down by holding that Section 4 of the impugned Act shall not apply for regulating the recruitment and appointments to the cadre of District Judges as well as to the cadre of Judiciary subordinate to the District Judges and such appointments will be strictly governed by the Bihar Superior Judicial Service Rules, 1951 as well as by the Bihar Judicial Service (Recruitment) Rules, 1955. In other words, Section 4 will not have any impact on these rules and will stand read down to that extent. Once that is done, question of striking down the said rule from the statute book would not survive and would not be required. We, accordingly, read it down as aforesaid. (Para 59)

       Per Sethi, J.—(For himself and Khare, J.) (Minority opinion) :

       Held : A combined reading of the various provisions of the Act leave no doubt that it is also applicable to the establishment of judicial service and "not only to the office or department of the Court, excluding the Court itself", as has been held in the impugned judgment. No other interpretation is possible in view of the definitions of "establishment" and "State" in Sections 2(c) and 2(n) of the Act. It was not correct for the High Court to say that the aforesaid language of the statute was capable of more than one interpretation and for that such interpretation which is not absurb or inconsistent should be followed. The Court is required to interpret statute as far as possible agreeable to justice and reason. While interpreting a statute the courts have to keep in mind the underlying policy of the statute itself and the object sought to be achieved by it. (Para 113)

       It is not correct as held by the High Court in the impugned judgment that interpretation the statute in favour of the appellant State, as desired, "would amount to relegating the judicial service at par with not only the secretarial staff or the administrative, executive or council of ministers and legislature but also their own staff. That would be contrary to law laid down by the Apex Court in All India Judges Association & Ors. etc. v. Union of India & Ors. etc., AIR 1993 SC 2493". It appears that to arrive at such a conclusion the High Court was also persuaded and impressed on account of the statement before it that the provisions of the Reservation Act had been declared to be ultra vires, as regards the Bihar Subordinate Judicial Service i.e., as regards recruitment of judicial officers other than that of the District Judges in the case of Deepak Kumar Singh & Others. Interpretation of Section 4 as put in by the High Court, if accepted, would not only frustrate the purpose and object of the Bihar Act No. 3 of 1992 but also be contrary to the mandate of the Constitution as enshrined in its Part III and further declared in Part IV, Article 56 and Article 335 of the Constitution. (Para 113)

       The High Court is thus held to have fell in error of law in declaring the Act as ultra vires in so far as its applicability to the judicial service is concerned, and also in the matter of interpretation of its various provisions. The appeals are accordingly allowed by setting aside the judgments impugned therein with a direction to the respondents to fill up the vacancies in accordance with the Rules applicable and the provisions of the impugned Act without disturbing the appointments made till date on the basis of this Court’s order. The seniority of the members of the judicial service shall be determined in accordance with the Service Rules applicable and the provisions of the Act by adjusting the candidates selected on reservation to fill in the reserved slots keeping in view the quota and rota rule as specifically pointed out by this Court in its order dated 16.11.1995. (Para 114)

       (ii) Constitution of India—Articles 233 to 235, 245, 309—Judicial Service—Subordinate Courts—Recruitment and conditions of services of officers governed by such service—Control of High Court—Articles 233 and 234, amongst them, represent a well knit and complete scheme regulating appointments at apex level of District Judiciary and Subordinate Judges at grass root level—General sweep of Article 309 has to be read subject to this complete code regarding appointment of District Judges in Subordinate Judiciary—Both Articles 309 and 245 will have to be read subject to Articles 233 and 234—Constitution with the High Court is an inevitable essential feature in process of recruitment and appointment to District Judiciary —State Legislature has no role to play while controlling appointments of District Judges or Civil Judges to Subordinate Judiciary —However, conditions of service may fall within the sphere of Governor’s rule making power under Article 309 r/w second part of Article 235—It may even be made subject matter of legislation by competent legislature in exercise of its legislative powers under entry 41 of list II or entry 11A of List III of Seventh Schedule.

       Held :

       Per S.B. Majmudar, J.—(Majority opinion) :

       The Directive Principles of State Policy as laid down by Article 50 which underscores the felt need of separation of the Judiciary from the Executive. For achieving that purpose, the Constitution has made separate provisions regarding the recruitment and appointment to the cadre of District Judges as well as the Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution and, as seen earlier, these provisions are conspicuously not included in part XIV dealing in general with Services under the Union and the States. Article 309 itself, which is of general nature, dealing with regulation of Recruitment and conditions of Service of persons serving in the Union or a State is expressly made subject to other provisions of the Constitution. (Para 26)

       Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of Judiciary subordinate to the district court. Thus Subordinate Judiciary represents a pyramidical structure. At base level i.e. grass-root level are the Munsiffs and Magistrates who recruitment is governed by Article 234. That is the first level of the Judiciary. The second level represents already recruited judicial officers at grass-root level, whose working is controlled by the High Court under Article 235 first part. At the top of this pyramid are the posts of District Judges. Their recruitment to these posts is governed by Article 233. It is the third and the apex level of Subordinate Judiciary. (Para 27)

       Neither Article 233 nor Article 234 contains any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter Articles contain provisions regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant-State that these Articles only deal with the rule making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete Code for regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete Code regarding appointment of District Judges and Judges in the Subordinate Judiciary. (Para 28)

       Article 245 which, in its express terms, is made subject to other provisions of the Constitution which would include Articles 233 and 234. Consequently, as these twin Articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate on this field clearly gets excluded by the Constitutional scheme itself. Thus both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former Articles themselves. (Para 29)

       In order to fructify this Constitutional intention of preserving the independence of Judiciary and for fructifying this basic requirement, the process of recruitment and appointment to the District Judiciary with which we are concerned in the present case, is insulated from outside legislative interference by the Constitutional makers by enacting a complete Code for that purpose, as laid down by Articles 233 and 234. Consultation with the High Court is, therefore, an inevitable essential feature of the exercise contemplated under these two Articles. If any outside independent interference was envisaged by them, nothing prevented the founding fathers from making Articles 233 and 234 subject to the law enacted by the Legislature of States or Parliament as was done in the case of other Articles. (Para 33)

       No recruitment to the post of a District Judge can be made by the Governor without recommendation from the High Court. Similarly, appointments to Subordinate Judiciary at grass-root level also cannot be made by the Governor save and except according to the rules framed by him in consultation with the High Court and the Public Service Commission. Any statutory provision bypassing cosultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct conflict with the complete Code regarding recruitment and appointment to the posts of District Judiciary and Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution. Impugned Section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to District Judiciary and Subordinate Judiciary is concerned. That field is carved out and taken out from the operation of the general sweep of Article 309. (Para 34)

       Topics of constitution of courts and services, laying down of rules regarding the conditions of service other than those expressly placed within the jurisdiction of the High Court by Articles 233 and 235, providing for age of superannuation or other retirement benefits to judicial officers, fixing pay scales, diversification of cadres may form part of general recruitment and conditions of services falling within the spheres of Governor’s rule making power under Article 309 read with second part of Article 235 or may even be made subject matter of legislation by competent Legislature in exercise of its legislative powers under entry 41 of List II or for that matter entry 11A of List III of the Seventh Schedule. But save and except this permitted field, the State Legislature cannot enter upon the forbidden field expressly reserved for consultation with the High Court by the thrust of Articles 233 and 234 so far as the initial entry point of recruitment to judicial at grass root level or at the apex level of the District Judiciary is concerned. (Para 35)

       Per G.B. Pattanaik, J.—(Concurring opinion) :

       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. (Para 62)

       Per U.C. Banerjee, J.—(Concurring):

       Judicial service thus, cannot be termed to be covered under Article 309 as regards the appointment thereto though however, other conditions of service specifically left open and thus the authorisation to legislate under Article 309 is available in regard to conditions of service and other incidentals thereto subsequent to the appointment. It may also be noted that the General Legislative powers of the Parliament as well as the State Legislature under Article 245 is expressly made subject to other provisions of the Constitution which would obviously include Articles 233 to 235. (Para 70)

       Per Sethi, J.—(For himself and Khare, J.) (Minority opinion) :

       (i) The constitutional-makers had given a special status and treatment to the judicial service;

       (ii) That the independence of judiciary is ensured which cannot be interfered with either by an executive action or by an act of legislature;

       (iii) That the conditions of service spelt out in Chapter VI of the Constitution cannot be altered, modified or substituted either by rule making power or by legislation made in exercise of the powers under Article 309 of the Constitution.

       (iv) Rules made under Article 234 have primacy in the matter of appointment/recruitment, discipline and control of the judicial service and even such rules cannot take away from persons belonging to the judicial service any right of appeal which they may have under the law regulating the conditions of their service or as authorising the High Court to deal with them otherwise than in accordance with the conditions of their service prescribed under such law;

       (v) The provisions of Chapter VI of Part VI and the powers conferred upon the appropriate legislature and the Governor under Article 309 are complementary and supplementary to each other subject to the conditions of ensuring the independence of judiciary;

       (vi) That in case of conflict between the rules made under Chapter VI and under Article 309, the rules specifically framed under Article 234 of the Constitution would prevail and the rules made under Article 309, to that extent, shall give in their way;

       (vii) That the Parliament or the State Legislature can legislate upon any matter including the matters relating to the judicial service provided the legislation is permitted under Part XI, Chapter I read with Seventh Schedule and is not in conflict with other provisions of the Constitution and rights guaranteed in favour of the judicial service by the Constitution itself under Part VI Chapter VI;

       (viii) Even if any law made by the appropriate legislature is held to be made with plenary power of legislation and not in conflict with Part VI Chapter VI, being subject to Judicial Review, it can be challenged if it violates the Fundamental Rights or any other provision of the Constitution :

       (ix) As in the case of Rules made under Article 234 of the Constitution, it is expected that if any rules are intended to be made by the executive under Article 309 with respect to the judicial service, the High Court shall be consulted and its views given due weight while making such rules. It is needless to say that in the process of consultation, the concerned High Court shall keep in mind the constitutional obligations of the State under Part III, Part IV or any other provision of the Constitution.

       (x) The conclusions enumerated hereinabove are, however, not applicable to the higher judiciary constituted and established under Part V Chapter IV and Part VI Chapter V of the Constitution.

       (Para 109)

       (iii) Constitution of India—Articles 16(4) 233 to 235, 309—Reservation—Judicial Service—Subordinate Courts—Recruitment and conditions of services of officers—Control and powers of High Courts—Constitutional mandate of Articles 233 and 234—Applicability of enabling power under Article 16(4) for laying down an appropriate scheme of reservation—High Court entrusted with full control of Subordinate Judiciary has got to be consulted—The Governor can, in consultation with the High Court, make appropriate rules and provide for a scheme of reservation for appointments at grass root level or even at highest level of District Judiciary—State Legislature cannot by passing constitutional mandate of Articles 233 and 234 and without being required to consult the High Court, lay down a statutory scheme of reservation governing all State Services, including Judiciary—For utilising enabling power under Article 16(4), the State Legislature cannot enter the forbidden field and conflict with substantive provisions of Article 233 or first part of Article 235.

       Held :

       Per S.B. Majmudar, J.—

       So far as the question of exercising that enabling power under Article 16(4) for laying down an appropriate scheme of reservation goes, as seen earlier, we cannot be oblivious of the fact that the High Court, being the high Constitutional functionary, would also be alive to its social obligations and the Constitutional guideline for having scheme of reservation to ameliorate the lot of deprived reserved categories like the SC, ST and Other Backward Classes. But for that purpose, the Governor can, in consultation with the High Court, make appropriate rules and provide for a scheme of reservation for appointments at grass-root level or even at the highest level of the District Judiciary but so long as this is not done, the State Legislature cannot, by upsetting the entire-cart and totally bypassing the Constitutional mandate of Articles 233 and 234 and without being required to consult the High Court, lay down a statutory scheme of reservation as a road roller straight jacket formula uniformly governing all State Services, including Judiciary. It is easy to visualise that the High Court may, on being properly and effectively consulted, endorse the Governor’s view to enact provision of reservation and lay down the percentage of reservation in Judicial Service, for which it will be the appropriate authority to suggest appropriate measures and required percentage of reservation, keeping in view the thrust of Article 335 which requires the consideration of the claim of members of SC, ST and OBC for reservation in Services to be consistent with the maintenance of efficiency of administration. It is obvious that maintenance of efficiency of judicial administration is entirely within the control and jurisdiction of the High Court as laid down by Article 235. The State Legislature, on its own, would obviously lack the expertise and the knowledge based on experience of judicial administration which is possessed by the High Court. Consequently, bypassing the High Court, it cannot, in exercise of its supposed paramount legislative power enact any rule the thumb and provide fixed percentage of reservation for SC, ST and Other Backward Classes in Judicial Services and also lay down detailed procedure to be followed as laid down by sub-sections (3) to (6) of Section 4 for effecting such statutorily fixed 50 reservation. It is easy to visualise that if the High Court is not consulted and obviously cannot be consulted while enacting any law by the State Legislature and en bloc 50 reservation is provided in the Judicial Service as is sought to be done by Section 4 of the Act and which would automatically operate and would present the High Court with a fait accompli, it would be deprived of the right to suggest during the Constitutionally guaranteed consultative process, by way of its own expertise that for maintenance of efficiency of administration in Judicial Service controlled by it, 50 reservation may not be required, and/or even lesser percentage may be required or even may not be required at all. Even that opportunity will not be available to the High Court if it is held that the State Legislature can enact the law of reservation and make it automatically applicable to Judical Service bypassing the High Court completely. Such an exercise vehemently canvassed for our approval by learned senior counsel for the appellant State cannot be countenaced on the express scheme of the Constitution, as discussed by us earlier. Even proceeding on the basis that the scheme of Article 16(1) read with Article 16(4) may be treated to be forming a part of the basic feature of the Constitution, it has to be appreciated that for fructifying such a Constitutional scheme Article 335 has to be kept in view by the authority concerned before such a scheme of reservation can be promulgated. Once Article 335 has to be given its full play while enacting such a scheme of reservation, the High Court, entrusted with the full control of Subordinate Judiciary as per Article 235 by the Constitution, has got to be consulted and cannot be treated to be a stranger to the said exercise as envisaged by the impugned statutory provision. (Para 36)

       It is not in dispute and cannot be disputed that creation of cadre and creation of posts in a cadre comprised in Judicial Service of the State can be resorted to by the Governor in exercise of his rule making power under Article 309 or for that matter by any appropriate Legislation by the State authorities under the very same Article. But once cadre of District Judges and Subordinate Judiciary are constituted by the aforesaid authorities and posts backed up by suitable budgetary provisions are created and are accordingly made available to be filled in the concerned cadres, process of creation of posts comes to an end. Thereafter when in the created posts born on any judicial cadre, whether at the District Court level or at the Subordinate Court level, any vacancies arise by retirement or otherwise non-availability of the incumbents due to any other reason, question of filling up of those available vacancies would arise. Such available vacancies of sanctioned posts have to be filled in only after following the procedure laid down by Articles 233 and 234 of the Constitution of India and cannot be suggested to any other procedure. At that stage, directing the High Court without its consent and consultation and merely by the thrust of legislative provision that 50 of the available vacancies in the cadre of District Judges or Judges of the Subordinate Judiciary must be filled in from reversed candidates only would ex-facie cut across the power of the High Court which alone can recommend the filling up of all such vacancies in the district cadre as per Article 233 and equally the power of the High Court to render effective consultation to the Governor under Article 234 when he frames rules for recruitment of candidates for filling up of all available vacancies in the Subordinate Judiciary under the district court as per Article 234. It is difficult to appreciate how filling up of vacancies in the already sanctioned posts in these cadres will remain an exercise anterior to the procedure laid down by the Constitution for filling up of these vacancies as per Articles 233 and 234, as the case may be. In any case, impugned Section 4 of the Act, by its express wordings, does not contemplate any such stage anterior to filling up of vacancies in the existing posts. On the contrary, it provides that all appointments to Services and Posts in an establishment which are to be filled in by direct recruitment shall be regulated in the manner laid down therein. Meaning thereby, 50 of the appointments to such available posts have to be done from reserved category candidates as per percentage provided for each of such classes. That necessarily means that 50 of the existing vacancies in the available posts in the Services have to be filled in from reserved category candidates only. This mandate of Section 4, therefore, gets directly hit by the scheme of the complete Code for such direct recruitment to the Judicial Services in the district cadre or subordinate cadre, as envisaged by Articles 233 and 234 of the Constitution of India. (Para 38)

       This type of bypassing the High Court will clearly be an act of interference with independence of judiciary which is the hallmark and bedrock of the Constitutional scheme. Section 4, therefore, has got to be held not to be operative on the forbidden field occupied by Articles 233 zand 234 of the Constitution of India. This is obviously a type of reservation which is thrust upon the High Court by Section 4. It cannot be treated to be referable to a stage anterior to the process of recruitment and appointment. In fact, as seen above, Section 4 itself deals with reservation for direct recruitment on available posts. Thereofre, in the field of recruitment itself Section 4 seeks to have its independent sway. Both Article 233 and Article 234 also deal with the very same question of recruitment and appointment to District Judiciary. It is this very field wholly reserved for operation of Articles 233 and 234 that is encroached upon by Section 4, by its express language, if made applicable to judicial appointments. (Para 39)

       Per G.B. Pattanaik, J.—(Concurring opinion)

       We really fail to understand as to why the legislature would feel that the Governor, when frames rules in consultation with the High Court and the Public Service Commission under Article 234 will not take into consideration the constitutional mandate under Article 16(1) or Article 16(4). In fact in the case in hand in the Bihar Judicial Service Recruitment Rules, 1955, reservations have been provided for Scheduled Caste and Scheduled Tribe candidates and the Full Court of Patna High Court have also adopted the percentage of reservation for these candidates as per the notification of the State Government. So far as the Superior Judicial Service is concerned, it is of course true that there has been no provision for reservation. But such provision could always be made by the Governor in consultation with the High Court, also bearing in mind the mandate of Article 335, namely "Maintenance of Efficiency of Administration". It is indeed painful to notice, some times law makers unnecessarily feel that the High Court or the Judges constituting the High Court are totally oblivious to the Constitutional mandate underlying Article 16 and more particularly, Article 16(4). It is also not appropriate to think that the High Court will not take into consideration the provisions of Article 16(1) and 16(4) while considering the case of recruitment to the judicial services of the State. The Judiciary is one of the three limbs of the Constitution and those who are entrusted with the affairs of administration of justice must be presumed to have greater expertise in understanding the Constitutional requirements. (Para 64)

       (iv) Constitution of India—Articles 16(4), 233 to 235, 309, 335—Reservations—Independence of Judiciary—Constitutional mandate for preserving independence of Judiciary, basic structure of the Constitution—Judicial Service—Subordinate Courts—Recruitment and appointment of officers of—Control of High Courts under Article 234 r/w Article 235—Policy decision as per Article 16(4) to be taken by the Governor in consultation with the High Court while framing appropriate rules governing recruitment and appointment to the Judicial Service both at apex level and at grass root level—Question of reservation of posts in a cadre cannot be equated with question of creation of posts in a cadre—After posts in a cadre are created how many thereof can be filled in from general category and how many from reserved category candidates, being a policy decision—It has to be undertaken under Article 16(4) r/w Article 335, only by the High Court in dialogue with the Governor—Concept of social justice underlying scheme of reservation under Article 16(4) r/w Article 335 cannot be held to be one which the High Court would necessarily ignore being a responsible Constitutional functionary. (Paras 48 to 50, 55)

       (v) Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991—Section 4—Validity of—Scheme of 50 reservation of posts for direct recruitment in posts of District Judiciary—Legality of—Advertisement reserving 27 out of 54 posts of District Judges to be filled in by direct recruitment—Challenged as violative of provisions of Article 233 and 234—High Court quashed condition of reservation sought to be imposed by impugned advertisement—High Court rightly held that recruitment to District Judiciary can be made on basis of Bihar Superior Judicial Service Rules, 1951 only—However, observations made by the High Court to the effect that if two candidates, one belonging to general category and another to reserved category are found to be equally meritorious, preference can be given to reserved category candidate is the only rational scheme envisaged by the Constitution, being an unnecessary one to be treated to be of no legal effect. (Paras 3 & 60)

       (vi) Bihar Superior Judicial Service Rules, 1951—Bihar Judicial Service—District Judges—Recruitment to—Procedure for—Reservations—High Court’s observation that for recommending direct recruitment of advocates as District Judges the suggested preference is to be given to reserved category candidate of equal merit with general category candidate—It has to be followed till appropriate scheme of reservation of reserved category candidate if any is promulgated by the Governor in consultation with the High Court. (Para 60(3))

       (vii) Bihar Judicial Service (Recruitment) Rules, 1955—Bihar Judicial Service—Direct recruitment at grass root level—14 reservation for SC and 10 reservation for ST candidates shall be followed by all concerned—Appointments at the grass root level of Judiciary shall be made following this scheme of reservation until any other scheme of reservation is promulgated by amending Rules as envisaged by Article 234 r/w Article 309 of the Constitution. (Para 60(4))