IMPORTANT POINT
Rules framed in contravention of Articles 233 and 234 would be invalid.

Headnote:Administration of justice – Judicial propriety – High Court making various observations regarding manner in which the amendments were made and the desirability of such amendments – Not warranted – High Court has jurisdiction to determine constitutionality of the ‘law’ – However, the motives behind the law and the wisdom of the legislative body are not amenable to the judicial review. (Para 8)
       Constitution of India – Articles 233 and 234 – Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955, and the Bihar Superior Judicial Service Rules, 1951 – Framing of Rules not preceded by appropriate consultation with the High Court contemplated under Articles 233 and 234 – High Court rightly quashed the Rules. (Para 10)
       Service law – Recruitment – Judicial service – Reservation for OBC – Vacancies for 2009 filled up – Out of 118 vacancies of 2012, 88 appointments made – Process initiated in 2016 for filling up 206 posts – Process put on hold due to present litigation – As on date 406 posts of junior civil judges lying vacant – State is under constitutional obligation to consult the High Court both for framing and giving effect to such policy of providing reservations in the JUDICIAL SERVICES – State of Bihar held entitled to initiate process of consultation by furnishing necessary information on its own assessment regarding the need to provide reservation in favour of specified backward classes in the JUDICIAL SERVICE of the State of Bihar – On a consensus of opinion between the State and the High Court, the State would be at liberty to make appropriate rules providing for reservation – In case of difference of opinion Government must record reasons for its inability to accept the conclusions communicated by the High Court and proceed to amend the Rules in accordance with law. (Para 16, 17)
       (2000) 4 SCC 640; (1993) 4 SCC 441 – Relied upon
       (2000) 1 SCC 168 – Referred
       Facts of the case:
       The controversy in these appeals is with respect to the authority of the State of Bihar to provide for reservation in favour of persons belonging to various backward classes of citizens contemplated under Article 16(4) of the Constitution such as SC/ST/OBC etc. in the superior and subordinate judicial services of the State of Bihar.
       Prior to 1991 under the relevant service rules applicable to JUDICIAL SERVICES, certain posts were reserved in favour of citizens belonging only to SC and ST categories.
       In the year 1991, the State of Bihar made an enactment called Bihar Reservation of Vacancies in Posts and Services (for scheduled castes, scheduled tribes and other backward classes) Act, 1991. The said Act provided for reservation of certain percentage of posts in favour of various specified classes of citizens in various services under the State. Question arose whether the said Act would apply and the benefit of reservation provided therein would extend to the JUDICIAL SERVICES. Eventually, the Supreme Court opined that the application of the Act extended even to the JUDICIAL SERVICES.
       However, it was held the State Legislature would be incompetent to make any law dealing with the appointment of judicial officers. Appointment of judicial officers is to be made only in accordance with the prescription contained in Article 233 and 234.
       The Court further held that it is open to the Governor of Bihar to make appropriate rules providing for reservation of persons in JUDICIAL SERVICES in accordance with law and in consultation with the High Court.
       On 25th June, 2009, the State of Bihar amended the Rules framed under the proviso to Article 309 known as (i) Bihar Superior Judicial Service Rules, 1951, (ii) Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1965 by introducing Rule 4A and Rule 3A respectively providing for reservation of posts in favour of various backward classes of citizens. Both the newly introduced Rules are substantially similar.
       The above mentioned two Rules came to be challenged in a batch of writ petitions. The High Court quashed the two notifications of the State of Bihar by which the impugned Rules were made. The decision rested mainly on the finding that the amendments were not preceded by appropriate consultation with the High Court contemplated under Articles 233 and 234.
       Finding of the Court:
       High Court rightly quashed the Rules.
       Result : Appeals and SLP disposed of.

ORDER

SLP(C) Nos. 10163-10165/2015 AND SLP(C) No. 11365/2015

1. Leave granted.

2. These appeals are preferred aggrieved by a common judgment dated 10.11.2014 passed in a batch of writ petitions by the High Court of Judicature at Patna. Civil Appeals arising out of SLP (C) Nos. 10163-10165/2015 are filed by the State of Bihar. Other Civil Appeals arising out of SLP(C) No.11365/2015 etc. are filed by various parties to the above-mentioned batch of petitions, i.e. petitioners and other respondents therein.

3. The controversy in these appeals is with respect to the authority of the State of Bihar to provide for reservation in favour of persons belonging to various backward classes of citizens contemplated under Article 16(4) of the Constitution such as SC/ST/OBC etc. in the superior and subordinate judicial services of the State of Bihar (hereafter collectively referred to as JUDICIAL SERVICES).

4. We are informed that prior to 1991 under the relevant service rules applicable to JUDICIAL SERVICES, certain posts were reserved in favour of citizens belonging only to SC and ST categories, the details of which may not be necessary at this juncture. In the year 1991, the State of Bihar made an enactment called Bihar Reservation of Vacancies in Posts and Services (for scheduled castes, scheduled tribes and other backward classes) Act, 1991. The said Act provided for reservation of certain percentage of posts in favour of various specified classes of citizens in various services under the State. Question arose whether the said Act would apply and the benefit of reservation provided therein would extend to the JUDICIAL SERVICES. Eventually, the question was examined by this Court in State of Bihar & Another v. Bal Mukund Sah & Others, (2000) 4 SCC 640. This Court, on a literal construction of the Act, opined that the application of the Act extended even to the JUDICIAL SERVICES.

“27. ………… 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.”

However, this Court further held that such a construction of the Act would render the Act unconstitutional. The reason for such a conclusion is that having regard to the scheme of the Constitution of India dealing with the JUDICIAL SERVICES, the State Legislature would be incompetent to make any law dealing with the appointment of judicial officers. Appointment of judicial officers is to be made only in accordance with the prescription contained in Article 233 and 234.

“36. It becomes, therefore, obvious that 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 consultation 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 an

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2016 Supreme(SC) 814

IMPORTANT POINTRules framed in contravention of Articles 233 and 234 would be invalid.

Cases Referred (3)

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IMPORTANT POINT
Rules framed in contravention of Articles 233 and 234 would be invalid.