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PATNA HIGH COURT
S.Shamsul Hasan, P.S.Mishra and S.B.Sinha JJ.
K.P.Verma
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 4944 of 1987 ;
Decided On : APRIL 10, 1989
The Governor has the power to make rules under Art.309 of the Constitution for the recruitment of District Judges from the Bar, but such rules should not interfere with the right of the High Court in any manner. The Governor can make rules under Art.309 provided they do not come in conflict with any of the provisions of the Constitution. The rules which are contrary to the constitutional provisions cannot be sustained. The Governor, in exercise of his power flowing to him can pass any rule that may impinge upon the right of the High Court in regard to its being consulted by a method resorted to by the High Court itself. The High Court can make rules under Art.235 of the Constitution for regulating the manner in which the control vested in it may be exercised. The power to make any legislation with regard to the conditions of service in respect of the Superior Judicial Service is in the State and consequently the Governor in exercise of his power under proviso to Art.309 of the Constitution may also frame appropriate rules. However, it is necessary to state that Legislature while laying down the conditions of service for the Governor while framing a rule in terms of proviso to Art.309 of the Constitution cannot, do anything which would impair or interfere with the ultimate administrative control of the High Court over the members of the judicial service.
Fact of the Case:
The petitioner, a lawyer by profession, filed the application for a writ in the nature of mandamus to implement notification No. VII/A-1-309/79 P-1396 dated 24-1-1985 of the respondent-State and accordingly make appointments in the Superior Judicial Service of the State. The petitioner contended that the State Government had suggested certain amendments to these Rules by which a change in the method of recruitment as well as consultancy was suggested. All the suggestions are not required to be set out here. Suffice it to say that the High Court refused to accept and rightly so the suggestions. This impasse remained unresolved till this application was filed thus causing unwarranted delay in filling up the vacancies that had been advertised in the year 1985 and the whole issue continued to languish in the archives of the Secretariat. The present attitude of the State, as set out in paragraph 2 of the counter-affidavit filed on 31-8-1988 is as follows :- ". . . .. . that existing practice with regard to manner of appointment to the post Bihar Superior Judicial Service is to be continued. . . .. that the State Government shall issue advertisement as per existing practise inviting application for appointment to the post and such applications, as are received, shall be forwarded to the High Court for making recommendation and thereafter recruitment shall be made from amongst persons, qualified and recommended by the High Court for appointment to the post."
Finding of the Court:
The Governor has the power to make rules under Art.309 of the Constitution for the recruitment of District Judges from the Bar, but such rules should not interfere with the right of the High Court in any manner. The Governor can make rules under Art.309 provided they do not come in conflict with any of the provisions of the Constitution. The rules which are contrary to the constitutional provisions cannot be sustained. The Governor, in exercise of his power flowing to him can pass any rule that may impinge upon the right of the High Court in regard to its being consulted by a method resorted to by the High Court itself. The High Court can make rules under Art.235 of the Constitution for regulating the manner in which the control vested in it may be exercised. The power to make any legislation with regard to the conditions of service in respect of the Superior Judicial Service is in the State and consequently the Governor in exercise of his power under proviso to Art.309 of the Constitution may also frame appropriate rules. However, it is necessary to state that Legislature while laying down the conditions of service for the Governor while framing a rule in terms of proviso to Art.309 of the Constitution cannot, do anything which would impair or interfere with the ultimate administrative control of the High Court over the members of the judicial service.
Issues: 1. Whether the Governor has the power to make rules under Art.309 of the Constitution for the recruitment of District Judges from the Bar? 2. Whether such rules should interfere with the right of the High Court in any manner? 3. Whether the Governor can make rules under Art.309 provided they do not come in conflict with any of the provisions of the Constitution? 4. Whether the rules which are contrary to the constitutional provisions can be sustained? 5. Whether the Governor, in exercise of his power flowing to him can pass any rule that may impinge upon the right of the High Court in regard to its being consulted by a method resorted to by the High Court itself? 6. Whether the High Court can make rules under Art.235 of the Constitution for regulating the manner in which the control vested in it may be exercised? 7. Whether the power to make any legislation with regard to the conditions of service in respect of the Superior Judicial Service is in the State? 8. Whether the Governor in exercise of his power under proviso to Art.309 of the Constitution may also frame appropriate rules? 9. Whether the Legislature while laying down the conditions of service for the Governor while framing a rule in terms of proviso to Art.309 of the Constitution can do anything which would impair or interfere with the ultimate administrative control of the High Court over the members of the judicial service?
Ratio Decidendi: 1. The Governor has the power to make rules under Art.309 of the Constitution for the recruitment of District Judges from the Bar, but such rules should not interfere with the right of the High Court in any manner. 2. The Governor can make rules under Art.309 provided they do not come in conflict with any of the provisions of the Constitution. 3. The rules which are contrary to the constitutional provisions cannot be sustained. 4. The Governor, in exercise of his power flowing to him can pass any rule that may impinge upon the right of the High Court in regard to its being consulted by a method resorted to by the High Court itself. 5. The High Court can make rules under Art.235 of the Constitution for regulating the manner in which the control vested in it may be exercised. 6. The power to make any legislation with regard to the conditions of service in respect of the Superior Judicial Service is in the State and consequently the Governor in exercise of his power under proviso to Art.309 of the Constitution may also frame appropriate rules. 7. However, it is necessary to state that Legislature while laying down the conditions of service for the Governor while framing a rule in terms of proviso to Art.309 of the Constitution cannot, do anything which would impair or interfere with the ultimate administrative control of the High Court over the members of the judicial service.
Final Decision: The writ petition is allowed to the extent that the State is directed to send the names of the applicants who had applied for the post pursuant to the notification dated 24-1-1985 after completing the necessary formalities at an early date. It is also directed to notify the remaining vacancies with utmost expedition. The State is directed to pay a sum of Rs. 1,000.00 (One thousand) to the petitioner by way of costs of this writ petition.
S.SHAMSUL HASAN, J.
1. The failure of the Governor thus the State Government and the High Court, on the administrative side, to observe the constitutional mandate, spelt out in Art.233 of the Constitution, has prompted the petitioner to invoke the jurisdiction of this Court under Art.226 of the Constitution on its judicial side.
2. Under the Constitution, a specified number of persons are to be appointed to the cadre of Additional District Judges/District Judges in a State. The strength of the cadre in Bihar has been fixed by the Bihar Superior Judicial Service Rules, 1946 (hereinafter referred to as the Rules) enacted by Notification No. 20-1-5/50-A-7309 dated the 31st July, 1951, with retrospective commencement from the 21st of October, 1946. Accoridng to R.6 of the Rules, of the post in the cadre of the service, two-third shall be filled up by promotion and one-third by direct recruitment from amongst the Advocates being an Advocate for not less than seven years. The justifiability of this rule will be adverted to later on.
3. The situation that provoked the filing of this application was that since 1979, when the last appointments were made from amongst the Advocates, the posts of Additional District Judges have been filled up only by promotion. Further, the ratio quoted above in the Rules was not only given a go bye while filling up specified number of vacancies but the number of vacancies that should have been kept reserved for appointment from amongst the Advocates was filled up by promotion from amongst those already in service. This has created a piquant situation. In spite of the ratio fixed, there are only eight such persons who are all holding the position of District Judges who were recruited from amongst the Advocates and as matter stands today, there are 30 vacancies on the basis of the analysis of the cadre the total strength of which is 38. The anomaly of the situation thus is that all those, who will be appointed on the basis of the present vacancy hereafter from amongst the Advocates, will rank junior to those who have already been appointed by promotion even though a good part of these vacancies had occurred much earlier than those filled up by promotion. This has, therefore, resulted in blighting the career of many a promising Advocate and even of those who will hereafter be gallant enough to seek the appointment and be ultimately appointed and all this because of the thoughtless indifference to this important aspect of our judicial system. It has now fallen upon us to resurrect whatever we can to preserve an integral part of the constitutional provision relating to superior judicial service in the State.
4. The relevant provisions of the Constitution relating to the instant subject, arc contained in Arts.233, 234 and 235. It is relevant to set out these Articles which are as follows
"233.(1) Appointments of persons to be, and the posting and the promotion of, district Judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
233A. xx xx xx xx xx
234. Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
235. The control over district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this artic
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