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PETITIONER:

STATE OF BIHAR & ANR.

Vs.

RESPONDENT:

BAL MUKUND SAH & ORS.

DATE OF JUDGMENT: 14/03/2000

BENCH:

S.B.Majumdar, G.B.Pattanaik, V.N.Khare, U.C.Banerjee,R.P.Sethi

JUDGMENT:

S.B.Majmudar, J.

Leave granted in Special Leave Petition No.16476 of

1993.

Both these appeals, on grant of special leave under

Article 136 of the Constitution of India, are moved by the

State of Bihar, which is common appellant no.1 in both these

appeals. In Civil Appeal No.9072 of 1996 the Secretary,

Department of Personnel and Administrative Reforms,

Government of Bihar is appellant no.2, while in the

companion appeal arising from the Special Leave Petition No.

16476 of 1993, the other contesting appellant is the Special

Executive Officer-cum-Deputy Secretary, Bihar Public Service

Commission, Patna. In both these appeals, a common question

of law arises for consideration, namely, whether the

Legislature of the appellant State of Bihar was competent to

enact the Bihar Reservation of Vacancies in Posts and

Services (for Scheduled Castes, Scheduled Tribes and Other

Backward Classes) Act, 1991 (hereinafter referred to as the

Act), in so far as Section 4 thereof sought to impose

reservation for direct recruitment to the posts in the

Judiciary of the State, subordinate to the High Court of

Patna, being the posts of District Judges as well as the

posts in the lower judiciary at the grass-root level,

governed by the provisions of the Bihar Judicial Service

(Recruitment) Rules, 1955. Civil Appeal No.9072 of 1996

deals with the question of reservation in the posts in

District Judiciary while the companion appeal deals with the

posts in Subordinate Judiciary at grass-root level under the

District Courts concerned. By the impugned judgment in

Civil Appeal No.9072 of 1996, a Division Bench of the High

Court has struck down the terms of the advertisement,

reserving amongst others, 27 out of 54 posts of District

Judges to be filled in by direct recruitment, being ultra

vires the relevant provisions of Article 233 of the

Constitution of India. It has also struck down the

provisions made in the impugned advertisement fixing up the

upper age limit at 45 years for eligibility for appointment

by way of direct recruitment to these posts. That part of

the controversy no longer survives between the parties in

the present proceedings and, therefore, we need not dilate

on the same. So far as the companion appeal is concerned,

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the main judgment was rendered by the Division Bench of the

High Court holding that the aforesaid Act as well as the

earlier Ordinance which preceded the same in so far as they

sought to apply the scheme of reservation of posts for

governing recruitment of persons other than the District

Judges to the Judicial Service of the State were ultra vires

Article 234 of the Constitution. As the controversies

involved in these appeals have to be resolved in the light

of the relevant Constitutional scheme, by an earlier Order

dated 13th May, 1994 of this Court, they were directed to be

listed before a Constitution Bench. Subsequently in view of

the statement made by learned counsel that the matter could

be disposed of by a Bench of three Judges, the matters were

directed to be placed before a three-Judge Bench by an order

dated 12th May, 1995. Thereafter a three-Judge Bench of

this Court by its order dated 6th November, 1997 felt that

the matters raised questions regarding interpretation of

provisions of Articles 233, 234 and 309 of the Constitution

and hence it would be appropriate that they are heard by the

Constitution Bench. That is how these matters have been

placed before this Constitution Bench under the directions

of Ho