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2000(5) Supreme 636
SUPREME COURT OF INDIA
(From Himachal Pradesh High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti & K.G. Balakrishnan, JJ.
A.C. Thalwal -Appellant
versus
High Court of Himachal Pradesh & Ors. -Respondents
Civil Appeal Nos. 9389-9390 of 1995
Decided on 17-8-2000
Counsel for the Parties :
For the Appearing Parties : Gopal Subramaniam and P.P. Rao, P.K. Goswami, Sr. Advocates, S. Vallinayagam, S. Muralidhar, Sanjay K. Shandilya, Kailash Vasdev, Naresh K. Sharma, Shiv Pujan Singh, Rajiv Mehta, R. Rahim, Ms. Vanita Sahni, Advocates.
Article 234 of the Constitution of India provides for appointments to the judicial service of the State (excluding District Judges) to be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and the High Court of the State. The consultation is mandatory. The consultation contemplated by Article 234 is not a matter of mere formality; it has to be meaningful and effective. Judicial services have to be independent of executive influence and so the Constitution has placed them on a pedestal different from other services under the State. The constitutional scheme aims at securing an independent judiciary which is the bulwark of democracy. The status which the High Court as an institution enjoys in the constitutional scheme and the expertise and the experience which it possesses of judicial services command with justification a place of primacy being assigned to the High Court in the process of consultation. The High Court assumes primacy because of its being best equipped to discharge the greater burden in the process of consultation contemplated by Article 234 of the Constitution; it is not a question of determining who between the two constitutional functionaries is entitled to greater importance or to take the winner s prize at the end of the debate. Rules regarding consultation with the High Court must at the proposal stage be made available to the High Court so that after study, scrutiny and reflection the High Court may be able to offer its advice to the Governor. (Para 14)
The Ex-Servicemen (Reservation of vacancies in Himachal Pradesh Judicial Service) Rules, 1981 having been framed by the Governor without consultation with the High Court of Himachal Pradesh are ultra vires the constitution and hence ineffective and unenforceable in view of Article 234 of the Constitution. (Para 15)
(ii) The Ex-Servicemen (Reservation of Vacancies in the Himachal Pradesh Judicial Service) Rules, 1981-Constitutional validity-Rules framed without consultation with High Court-Ultra vires constitution and hence void in view of Article 234 of Constitution. (Paras 14, 15 & 17)
(iii) Service Law-Himachal Pradesh Judicial Service-Reservation to ex-servicemen-Approved military service rendered by Judicial Officer counted to fix seniority and pay scale on basis of Ex-Servicemen (Reservation of Vacancies in Himachal Pradesh Judicial Service) Rules, 1981-Rules ultra vires constitution and void in view of Article 234 of Constitution as Rules made without consultation with High Court-Benefit of promotion granted to officer falls to ground-Officer holding post of Sr. Sub-Judge-Cum-Chief Judicial Magistrate consequent to benefit of Rules extended to him-With a view to balance equities and avoid hardship officer allowed to continue to hold post until he would be considered for promotion to the post and appointed as such-Further for future promotion seniority in cadre of Sr. Sub-Judge-Cum-Judicial Magistrate shall be reckoned from date of promotion to post of Sr. Sub-Judge. (Paras 15 to 18)
(iv) Res judicata-Application of principles-Writ petition questioning fixation of seniority in favour of one officer-Fixation of seniority affecting several officers-Affected officers not made party-Reservation Rule s validity also challenged-Dismissal of writ petition-Affected officer s subsequent writ petition challenging constitutional validity of Reservation Rules and consequent legality of promotion-Plea that constitutional validity of Rules stood upheld in earlier writ petition of another aggrieved employee-Untenable-Petitioners in Present Petition not joined as parties in earlier writ petition and that petition was not filed in representative capacity-Further decision in earlier writ petition was based on erroneous assumption as to constitutional validity of Rule-Court in present writ petition not precluded from going into merits of challenge laid to constitutional validity of Rule. (Para 16)
JUDGMENT
R.C. Lahoti, J.-A.C. Thalwal, the appellant was born on 15th September, 1948. On 11.11.1965 he joined the Indian Air Force. On 1st December, 1980 he was released from the Air Force. For a short period between February, 1981 and January, 1984, the appellant served as a cashier in the Punjab National Bank. The appellant did his graduation in the year 1971 and post graduation in 1973. He passed the LLB. examination in the year 1976.
2. In the year 1983, the High Court of Himachal Pradesh invited applications for recruitment to 12 posts in Himachal Judicial Service, out of which 2 posts were reserved for ex-servicemen. The appellant made an application seeking appointment in the said quota of ex-servicemen. He was selected. On 1.2.1984 he joined the Himachal Pradesh Judicial Service as Sub Judge-cum-Judicial Magistrate.
3. Having joined the judicial service the appellant made a representation to the High Court submitting that the Ex-Servicemen (Reservation of Vacancies in the Himachal Pradesh Judicial Service) Rules, 1981, hereinafter Reservation Rules 1981 for short, provided for the period spent in approved military service, which was 11 years in the case of the appellant, being counted towards the Himachal Pradesh Judicial Service for the purpose of fixing pay and seniority. By an order dated 31.8.1989 the High Court fixed the pay of the appellant by giving him credit of 11 years approved military service. All the increments which the appellant would have been entitled to, if he would have spent the period of approved military service in Himachal Pradesh Judicial Service, were released to him. However, as the High Court had not fixed the appellant s seniority by giving him the benefit of the period spent in approved military service by counting the same fictionally as having been spent in Himachal Pradesh Judicial Service, the appellant made further representations in the year 1990 claiming such benefit. The High Court of Himachal Pradesh invited objections of all concerned to the claim made by the appellant. On 1.11.1991, having considered the objections preferred and after affording opportunity of hearing to all such as wished to be heard, the High Court by its decision dated 1.11.1991 allowed the representations made by the appellant. He was given the benefit of the period spent in approved military service being counted for the purpose of seniority in Himachal Pradesh Judicial Service. He was placed at the bottom of the 1974 batch of judicial officers. Prior to the abovesaid decision of the High Court the appellant was placed at SI. No. 43 of the seniority list issued in December, 1990. As a result of his representations having been accepted, in terms of the order dated 1.11.1991 passed by the High Court the appellant stepped up to SI. No. 13 of the said seniority list.
4. One George, who was then a Senior Sub Judge-cum-Chief Judicial Magistrate, filed civil writ petition No. 693 of 1991 laying challenge to the seniority assigned to the appellant. The constitutional validity of the Rules granting benefit of seniority to the judicial officers recruited in the quota of ex-servicemen as also the legal validity of the order dated 1.11.1991 were challenged. It is pertinent to note that the only persons impleaded as respondents in the petition filed by George were A.C. Thalwal (the appellant herein), the State of Himachal Pradesh and the High Court of Himachal Pradesh. Other judicial officers who were above Thalwal and became below him as a consequence of the order dated 1.11.1991 passed by the High Court were not joined as parties as to the petition. It appears that the respondents therein also did not raise any objection as to non-joinder of such parties. By judgment dated 10.6.1992 the Division Bench of the High Court of Himachal Pradesh dismissed George s petition.
5. A perusal of the judgment of the High Court shows that the Division Bench was persuaded to accept the constitutional validity of Reservation Rules, 1981
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