ORDER :- This petition under Art. 226 of the Constitution seeks an information in the nature of quo warranto requiring Sri Mohan Singh Munsif, Banda, the first respondent to show cause by what authority he is holding the office of Munsif.

2. The petitioner is one of the defendants to a suit for specific performance of a contract of sale instituted by respondent Nos. 2 and 3 against the petitioner who is alleged to be a subsequent purchaser and respondent No. 4, the vendor. The suit was filed on 6th of August, 1966, and is pending before Sri Mohan Singh Munsif, the first respondent Sri Mohan Singh was appointed as a temporary Munsif on 1-3-1961 under the U.P. Civil Service (Judicial Branch) Rules 1951. The petitioner challenges the constitutional validity of these rules. It is urged that the rules being in violation of the mandatory provisions of the Constitution are void and of no legal effect and appointments made thereunder to the Judicial Service of the State are illegal. The validity of the rules was challenged on the following grounds :

(1) That the rules had not been framed after consultation with the High Court as required by Article 234 of the Constitution.

(2) That the rules with respect to appointments to the Judicial Service can only be made under Article 234 of the Constitution and the impugned rules having been expressed to have been made under Article 309 of the Constitution are invalid.

(3) That consultation to be valid ought to have been done after Article 234 came into existence, any prior consultation is of no legal efficacy.

(4) That the Public Service Commission was not consulted prior to the framing of the rules.

(5) That on a true interpretation. Article 234 requires consultation with the High Court for each appointment and not for making the rules, and the respondents' appointment violated this condition.

3. The State of Uttar Pradesh has in its counter-affidavit repelled the statements of facts in the petition in relation to these contentions. It was stated that the rules were framed after due consultation with the High Court and the Public Service Commission. It was also urged that the rules were valid notwithstanding that they did not mention that they have been framed under Article 234 of the Constitution.

4. Before dealing with the various submissions on their merits it may be observed that the learned counsel for the petitioner was not right in arguing the case on the basis that the entire burden to establish the validity of his appointment lay on the shoulders of the respondents. The true legal position is that in a quo warranto proceeding the petitioner has to establish the claimed invalidity and then alone can the respondents be required to answer the grounds made by the petitioner.

5. In Halsbury's Laws of England 3rd Edition, Vol. II, page 152, Paragraph 289, it is stated that it is not enough to state in the affidavit supporting the application that the respondent is not entitled to the office ...... for the objections to the respondent's title are not thereby specified. The applicant (the incumbent) cannot be called upon to show generally the validity of his election, for the onus is upon the applicant to show a disqualification in the respondent. In Rex v. Jefferson (1833) 5 B and Ad 855 it was alleged that a large proportion of the votes cast were bad, but it was not shown for whom the bad votes were given. In this state of affairs the relief was refused. It is, therefore, evident that the petitioner has to establish the disqualification or the invalidity in the occupation of the office by the respondent before the respondent can be called upon.

6. The first submission of the learned counsel was that the U.P. Civil Service (Judicial Branch) Rules, 1951, violate the mandatory directives of Art. 234 of the Constitution. Learned counsel urged that the rules can be framed only after consultation with the High Court, which means consultation with all the Judges of the High Court; In fact all the Judges w

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