Judgment

SHELAT, J. : This appeal, by certificate, raises two questions: (1) whether the Rajasthan Higher Judicial Service Rules, 1955 are ultra vires Art. 233 and, therefore, the selections made by the Selection Committee appointed thereunder and appointments made on the basis of such selections are invalid, and (2) if so, whether the appointments are validated by the Constitution (Twentieth Amendment) Act, 1966 which introduces Art. 233-A in the Constitution.

2. On May 9, 1955, the Rajpramukh of the then (Part B) State of Rajasthan, in exercise of the powers conferred by the proviso to Art. 309 of the Constitution, promulgated the Rajasthan Higher Judicial Service Rules, 1955. In pursuance of the said Rules, the High Court of Rajasthan published a notice dated November 20, 1963 inviting application for direct recruitment to four posts of Civil and Additional Sessions Judge. A number of applications were received by the High Court and after scrutiny thereof and interviews granted to the applicants, the Selection Committee, appointed under the said Rules and consisting of the Chief Justice, the Administrative Judge and another Judge of the High Court nominated by the Chief Justice, selected four candidates. Besides there four posts, there were fourteen posts to be filled up from amongst the members of the Rajasthan Judicial Service by promotion. The said Committee selected eligible candidates from amongst those members and prepared another list. The High Court submitted the two lists prepared by the Committee to the Governor for appointments.

3. The appellants who are members of the Rajasthan Judicial Service filed a writ petition in the High Court of Rajasthan challenging the validity of the selection Committee and the appointments made on the basis of those lists on the ground that they were done in contravention of Article 233. The High Court dismissed the writ petition holding that the said Rules were valid, and, therefore, the proceedings of the said Committee, the lists prepared by it and submitted to the Governor by the High Court and the appointments made were all valid. Hence this appeal.

4. Rule 1(2) of the Rajasthan Higher Judicial Service Rules provides that the said Rules shall apply to the members of the service consisting of District and Sessions Judge and Civil and Additional Sessions Judges Rule 6 provides that the strength of the Service and of each class of posts therein shall be determined by the Governor from time to time in consultation with the High Court and the permanent strength of the Service and of each class of posts therein shall be as specified in Schedule I Sub-rule (3) of the Rule 6 empowers the Governor, from time to time and in consultation with the High Court, to leave unfilled or hold in abeyance any post in the Service or create such additional temporary or permanent posts in the Service as may be found necessary. Schedule provides the strength of District and Sessions Judges at 18, i e., 15 judgeships, one post of Legal Remembrancer, one post of Registrar of the High Court, and one post of a Joint Legal Remembrancer and that of the Civil and Additional District Judges at 20 Rule 7 provides sources of recruitment, viz., by promotion from among the members of the Rajasthan Judicial Service and by the direct recruitment in consultation with the High Court. The Persons eligible for direct recruitment are Advocates or Pleaders of more than seven years standing Rule 10 reads as under-

"(1) Subject to the provisions of these rules, the number of persons to be recruited at each recruitment from each of the two sources specified in Rule 7 and the period (not exceeding three years) for which such recruitment is to be made shall be determined by the Governor.

Provided that the number of persons appointed to the Service by direct recruitment shall at no time exceed one-fourth of the total strength of the Service and the number of persons so appointed during any one period of recruitment shall not exceed o