# [2000] 2 S.C.R. 299

- **Citation:** [2000] 2 S.C.R. 299
- **Court:** Supreme Court of India
- **Decided:** 2000-03-14
- **Case number:** Civil Appeal No. 9072 of 1996
- **Bench:** S.B. Majmudar, G.B. Pattanaik, V.N. Khare, Rp. Sethi B, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2000-2-s-c-r-299-17299
- **Pages:** 140

## Headnote

Constitution of India, Articles 233, 234, 235 and 309-Bihar Reservation of Vacancies in Posts and Services (for Schedule Castes Scheduled Tribes
and Other Backward Classes) Act, /99I, s.4-Actproviding for reservation
C
for direct recruitment to posts of District and subordinate Judges in BiharValidity of-Held s.4 of Act in its application to subordinate judiciary was
ultra vi res Articles 233 and 234 of the Constitution of India and could not be
sustained-Bihar Judicial Service (Recruitment) Rules, 1955.
Bihar Reservation of Vacancies in Posts and Services (for Scheduled
D
Castes, Scheduled Tribes and Other Backward Classes (Act 1991, ss. 2(c), (n)
and 4-Held, even though the Act as framed applied to judicial service, the
reservation provided by s.4 would not apply to direct recruitment to cadre of
,P.istrict and Subordinate judges; the question of .filling up reserved posts in
cadre of subordi1iate judges would remain germane to the extent of 24% for
SC and ST candidates as prescribed as per the Bihar Judicial Service (Recruitment) Rules, 1955-Constitution of India, Articles I 4, 16( 4) and ( 4-A).
Constitution of India Articles 235 and 309 proviso read with Entry 41
List 11 and Entry I I A List Ill-Legislative power of state in relation to judicial
officers-Held, second part of Article 235 only permits legislation concerning
conditions of service and not in relation to process of or providing reservation
for recruitment of judicial officers.
Constitution of India, Articles 234 and 320-Consultation-With the
E
F
High Court a sine qua non.for direct recruitment of judicial officers at grassroot
level; stood on an entirely different footing as compared to consultation with the
G
Public Service Commission.
Words and phrases-"Separation o.f powers between the legislature. the
executive and the judiciary"-"lndependent Judiciary"-Held, both concepts
were now elevated to the level of basic structure o.f the Constitution and
formed the vet)' heart of the constitutional scheme-Interpretation of Statutes.
H
299
A
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300
SUPREME COURT REPORTS
(2000] 2 S.C.R.
The Bihar Superior Judicial Service Rules, 1951 ['the 1951 Rules'],
framed by the Governor of Bihar under the proviso to Article 309 and in
consultation with the High Court of Patna, did not provide for any
reservation for recruitment to the cadre of district judges. The Bihar
Judicial Service (Recruitment) Rules, 1955 ['the 1955 Rules'] framed by
the Governor of Bihar in consultation with the High Court and the Public
Service Commission provided for reservation to the extent of 14 % for SC
and 10 % for ST candidates in the lower judiciary at the grass-roots level.
Since the High Court had not agreed to the suggestion of the State
authorities for providing reservation in the posts of district and subordinate
judges, the Governor of Bihar issued an Ordinance which was replaced by
the Bihar Reservation of Vacancies in Posts and Services (for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 ('Act')
under which SO% of the posts to be filled up by direct recruitment were to
be reserved for SCs, STs and Other Backward Classes (OBCs). Reiterating
its stand that the recruitment to the posts of district judges could be made
only in accordance with the 1951 Rules, the High court informed the State
that while making appointments from the Bar for direct recruitment,
preference may be given to SC and ST candidates of equal merit with
general category candidates. The State Government nevertheless issued an
advertisement on June 16, 1994 by which 27 of the 54 vacancies in the posts
of district judges were to be filled up from reserved category of candidates.
Allowing the writ petitions challenging the advertisement as well as
the Act, a Division Bench of the High Court struck down the terms of the
advertisement as being ultra vires Article 233. The Act as far as it applied
reservation to recruitment of persons other than district judges, was struck
down as ultra

## Text

_Characters 0–39,660 of 362,478. This is a partial read: ask again with offset=39660 for what follows._

STATE OF BIHAR AND ANR.
A
v.
I
BAL MUKUND SAH AND ORS.
MARCH 14, 2000
[S.B. MAJMUDAR, G.B. PATTANAIK, V.N. KHARE, RP. SETHI
B
AND UMESH C. BANERJEE, JJ.]
Constitution of India, Articles 233, 234, 235 and 309-Bihar Reservation of Vacancies in Posts and Services (for Schedule Castes Scheduled Tribes
and Other Backward Classes) Act, /99I, s.4-Actproviding for reservation
C
for direct recruitment to posts of District and subordinate Judges in BiharValidity of-Held s.4 of Act in its application to subordinate judiciary was
ultra vi res Articles 233 and 234 of the Constitution of India and could not be
sustained-Bihar Judicial Service (Recruitment) Rules, 1955.
Bihar Reservation of Vacancies in Posts and Services (for Scheduled
D
Castes, Scheduled Tribes and Other Backward Classes (Act 1991, ss. 2(c), (n)
and 4-Held, even though the Act as framed applied to judicial service, the
reservation provided by s.4 would not apply to direct recruitment to cadre of
,P.istrict and Subordinate judges; the question of .filling up reserved posts in
cadre of subordi1iate judges would remain germane to the extent of 24% for
SC and ST candidates as prescribed as per the Bihar Judicial Service (Recruitment) Rules, 1955-Constitution of India, Articles I 4, 16( 4) and ( 4-A).
Constitution of India Articles 235 and 309 proviso read with Entry 41
List 11 and Entry I I A List Ill-Legislative power of state in relation to judicial
officers-Held, second part of Article 235 only permits legislation concerning
conditions of service and not in relation to process of or providing reservation
for recruitment of judicial officers.
Constitution of India, Articles 234 and 320-Consultation-With the
E
F
High Court a sine qua non.for direct recruitment of judicial officers at grassroot
level; stood on an entirely different footing as compared to consultation with the
G
Public Service Commission.
Words and phrases-"Separation o.f powers between the legislature. the
executive and the judiciary"-"lndependent Judiciary"-Held, both concepts
were now elevated to the level of basic structure o.f the Constitution and
formed the vet)' heart of the constitutional scheme-Interpretation of Statutes.
H
299
A
B
c
D
E
F
G
H
300
SUPREME COURT REPORTS
(2000] 2 S.C.R.
The Bihar Superior Judicial Service Rules, 1951 ['the 1951 Rules'],
framed by the Governor of Bihar under the proviso to Article 309 and in
consultation with the High Court of Patna, did not provide for any
reservation for recruitment to the cadre of district judges. The Bihar
Judicial Service (Recruitment) Rules, 1955 ['the 1955 Rules'] framed by
the Governor of Bihar in consultation with the High Court and the Public
Service Commission provided for reservation to the extent of 14 % for SC
and 10 % for ST candidates in the lower judiciary at the grass-roots level.
Since the High Court had not agreed to the suggestion of the State
authorities for providing reservation in the posts of district and subordinate
judges, the Governor of Bihar issued an Ordinance which was replaced by
the Bihar Reservation of Vacancies in Posts and Services (for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 ('Act')
under which SO% of the posts to be filled up by direct recruitment were to
be reserved for SCs, STs and Other Backward Classes (OBCs). Reiterating
its stand that the recruitment to the posts of district judges could be made
only in accordance with the 1951 Rules, the High court informed the State
that while making appointments from the Bar for direct recruitment,
preference may be given to SC and ST candidates of equal merit with
general category candidates. The State Government nevertheless issued an
advertisement on June 16, 1994 by which 27 of the 54 vacancies in the posts
of district judges were to be filled up from reserved category of candidates.
Allowing the writ petitions challenging the advertisement as well as
the Act, a Division Bench of the High Court struck down the terms of the
advertisement as being ultra vires Article 233. The Act as far as it applied
reservation to recruitment of persons other than district judges, was struck
down as ultra vires Article 234. The State then appealed to this Court.
The appellant contended that the State's power to enact legislation to
provide for reservation in posts in the judicial service was not excluded by
Articles ZJ3 to 235. Its legislative power flowed from a collective reading of
Articles 16(4) and 309 read with Entry 41 of List II and entry 11-A of List
III of the Seventh Schedule. Article 234 fettered only. the rule-making
power of the Governor but not the legislative power of the State. Further,
the ·establishment of cadres and creation of posts was a stage prior to
' .
recruitment and was in the exclusive domain of the state. On behalf of the
High Court it was contended that Article 309 and the state's legislative
power ,the'reunder had no application t~ the subordinate judiciary. It was
>,
~
"\ 1
STATE v. BAL MUKUND SAH
301
excluded by Articles 233 to 235 which represented a complete code by
A
themselves. The second part of Article 235 permitted State legislation only
to govern the conditions of service of already recruit~d judicial officers.
Dismissing the appeals by majority, the Court
HELD : Per Mqjmudar, J. : 1.1. S. 4 of the Bihar Reservation of
B
vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes
and Backward Classes Act, 1991 is ultra vires and in direct conflict with the
scheme of Articles 233 and 234 of the Constitution. [370-G]
1.2. Articles 233 and 234 covered the entire field regarding recruitment
and appointment of district judges and judges of the subordinate judiciary
C
at base level. The legislative power of the State in this field was excluded by
the constitutional scheme itSelf. Both Articles 309 and 245 would have to be
read subject to Articles 233 and 234. [337-D]
1.3. No recruitment to the post of a district judge could be made by
the Governor without recommendation from the High Court. Similarly,
appointments to subordinate judiciary at grass-root level also could not 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.
D
Any statutory provision by-passing consultation with the High Court and
laying down a statutory fiat as was tried to be done by enactment of s.4 of
E
the Act was in direct conflict with the complete code regarding recruitment
and appointment to the posts of district and subordinate judiciary.
[337-BC]
1.4. Providing of reservations was not a stage anterior to the stage of
recruitment and appointment. [344-A-B]
p
2.1. The Act covered judicial service of the State. S.4 of the impugned
Act would not apply for regulating the recruitment and appointments to
the cadre of district judges as well as to the cadre of judiciary subordinate
to the district judges. Such appointments would be strictly governed by the
Bihar Superior Judicial Service Rules, 1951 and the Bihar Judicial Service
G
(Recruitmenti Rules, 1955 respectively. For governing direct recruitment
at the grass-root level 14% reservation for SC and 10% reservation for ST
candidates shall be followed as lJrovided by the 1955 Rules until any other
scheme of reservation was promulgated by amending the relevant rules by
the Governor after effective consultation with the High Court as envisaged
by Article 234 read with Article 309. [373-A-B]
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SUPREME COURT REPORTS
[2000] 2 S.C.R.
A
2.2. Article 335 had to be given full play while enacting a scheme of
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reservation envisaged by Article 16(1) and (4). Therefore, the High Court,
entrusted with the full control of subordinate judiciary under Article 235,
had to be consulted and could not be treated to be a stranger to the exercise
as envisaged by the impugned statutory provision. [340-D-E]
2.3. D~recting the High Court without its consent and consultation
and merely by the thrust of legislative provision that 50 % of the available
vacancies in the cadre of district judges or judges of the subordinate
judiciary must be filled in from reserved candidates only would ex-facie cut
across the power of the High Court which alone could recommend the
filling up of all such vacancies in the district cadre as per Article 233 and
equally the power of the High Court to render effective consultation to the
Governor under Article 234 when he framed rules for recruitment to the
subordinate judiciary as per Article 234. (341-E-F]
2.4. If at all any reservation policy under Article 16(4) had to be
pursued, it had to be exercised in consonance with the scheme of Articles
233 and 234 and not dehors it. It was only the High Court which could give
green signal regarding the extent of reservations at entry points as candidates
entering on reserved posts in judicial service of the district judiciary both
at the apex level and at the grass-root level had to act under its control. In
the absence of such a green signal by the High Court there would be no
occasion to invoke Article 16(4) read with Article 335. [352-B-H]
2.5. Neither at the base level i.e. at the grass-root level of controlling
entry point to subordinate judiciary nor at the entry point at the apex level
of the pyramid for appointing district judges, any State Legislature's
interference was contemplated or countenanced. On the contrary, it was
contra-indicated by necessary implication. [350-G]
Indra Sawhney v. Union of India, [1992] Suppl. 3 SCC 217; Indra
Sawhney v. Union of India, [2000] 1 SCC 168; Durgacharan Misra v. State of
G
Orissa, [1987) 4 SCC 646; Dr. Pree ti Srivastava v. State of M.P., [1999] 7 SCC
120; Samsher Singh v. State of Pw~jab, AIR (1974) SC 2192; M.M. Gupta v.
State of Jammu & Kashmit; (1982) 3 SSC 412; All India Judges Association v.
Union of India, AIR (1993) SC 2493; Supreme Court Advocates-on-Record
Association v. Union of India, AIR (1994) SC 268 and The Belsund Sugar Co.
H
Ltd. v. The State of Bihar. JT (1999) 5 SC 422, referred to.
"t
.....
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STATE v. BAL MUKUND SAH
303
K.N. Chandra Sekhara v. State of Mysore, AIR (1963) Mysore 292; M.l.
A
Nadafv. The State of Mysore, AIR (1967) Mysore 77; Manoj Kumar Panda v.
State of Orissa, {1982) Lab. I.C. 1826 and Farzand v~ Mohan Singh, AIR
(1968) All 67, approved.
3.1. To the extent to which conditions of service could be regulated by
law as laid down by Article 235 second part, a limited field was kept open
for legislative play. But this did not pertain to recruitment or appointments
at all. [350-E]
3.2. What was permitted by Article 235 could not be considered as a
blanket power entrusted to the Legislature or to the Governor under
Article 309 by the constitutional makers dehors the complete net of
constitutional scheme controlling recruitment and appointment to district
and the subordinate judiciary under Articles 233 and 234. [348-A, B]
B.S. Ycidav v. State of Haryana, [1981] 1 SCR 1024, explained.
4.1. Consultation with the High Court was sine qua non for direct
recruitment of judicial officers at grass-root level i.e. Munsiffs and
Magistrates and whose recruitment was governed by the 1955 Rules framed
under Article 234. [344-D]
4.2. Consultation, keeping in view the role of the High Court under
Article 234 read with Article 235, stood on an entirely different footing as
compared to the consultation with the Public Service Commission which
had to discharge its functions of entirely different type as envisaged by
Article 320 of the Constitution. [354-E]
4.3. There was no express fetter regarding consultation with the High
Court excluding Article 16(4) as in Article 320(4). Policy decision as per
Article 16(4) had to be taken by the Governor in consultation with the High
Court while framing appropriate rules governing the recruitment and
appointments to the judicial service both at the apex level and at the grassroot level. [354-G-H, 355-A]
4.4. The Legislature could not, by an indirect method, circumvent the
schedule of recruitment and appointment to district judiciary as envisaged
by the makers <f_ the Constitution. Such an exercise, apart from being
totally forbidden by the constitutional scheme, would also fall foul of the
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concepts relating to "separation of powers between the legislature, the
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304
SUPREME COURT REPORTS
(2000] 2 S.C.R.
A
executive and the judiciary" and an "independent judiciary". Both theSe
concepts were now elevated to the level of basic structure of the Constitution
and were the very heart of the constitutional scheme. [331-E, F]
B
M.M. Gupta v. State of Jammu & Kashmi1; (1982) 3 SSC 412; State of
Kerczla v. Smt. A. Lakshmikutty, [1986) 4 SCC 632; His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kera/a, [1973) 4 SCC 255; Registrar
(Admn.), High Court of Orissa, Cuttack v. Sisir Kanta Satapathy (Dead) by Lrs.,
[1999) 7 SCC 725; All India Judges, Association v. Union of India, AIR (1993)
SC 2493; Chandra Mohan v. State of U.P., (1967) 1 SCR 77;
Chandramouleshwar Prasad v. Patna High Court, [1969) 3 SCC 56; High
C
Court of P & H v. State of Haryana, [1975) 1 SCC and A. Paiuluranga Rao v.
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E
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State of A.P., [1975] 4 SCC 709, referred to.
Per Pattanaik, J. (concurring)
1. The Act had no application to the recruitment of judicial officers in
the State ofBihar. [381-H & 382-A]
2. The State Legislature in the garb of making law in consonance with
Article 16(4) could not encroach upon Article 234. (381-A-B]
3. The entire matter of recruitment to the post of district judge, either
by way of direct recruitment or by promotion, was left to the High Court
and it was the Governor who was required to make such appointment in
consultation with the High Court. The entire field of recruitment was left to
the two constitutional consultees and the opinion of the High Court in such
matter had to be of binding effect. [377.-D-F]
B.S. Yadav v: State of Haryana, (1981] 1 SCR 1024, referred to.
4.1. The second part of Article 235 protecting a right of appeal which
an officer may have under any law made by the legislature or the Governor
related to regulating the conditions of service and not to recruitment of
district or subordinate judges. [378-B-C]
4.2. The expression 'recruitment' and the expression 'other conditions
of service' were two distinct connotations in service jurisprudence and this
this and been borne in mind while engrafting Articles 234 and 309.
[377-C-D]
'
}
\
\
STATE v. BAL MUKUND SAH
305
Per Banerjee, J. (concurring)
1.1. The plain reading of Articles 234 and 235 left no manner of doubt
as to the separate categorisation of judicial officers exclusive to themselves
and their appointment independently of Article 309. (383-GJ
A
1.2. The appointment of district judges rested with two constitutional
B
functionaries namely, the Governor and the High Court thus withdrawing
the same from the purview of the general power as conferred by Article
309. [384-CJ
Per Sethi, J. (for himse{f and Khare, J.) (dissenting) :
C
1.1. The Act was applicable to the establishment of judicial service.
The High Court was in error in declaring the Act ultra vires in~ofar_as its
applicability to judicial service was concerned and also in the matter of
interpretation of its various provisions. [436-E-F,437-F]
Nasiruddin v. State Transport Appellate Tribunal, AIR (1976) SC 331,
referred to.
1.2. Judicial service was a service within the meaning of Article 309.
Accordingly, the appointment of district judge under Article 233 was an
appointment to the public service within the meaning of Article 309 of the
Constitution. [391-C]
2. An independent judiciary could not be termed to be a creation of a
distinct service in the State being not subject to law making sovereign powers
of the Legislature. Article 309 was itself subject to other provisions to the
Constitution which guaranteed the independence of judiciary. [391-D]
Cha11dra Mohan v. State of Uttar Pradesh, AIR (1966) SC 1987; S.P.
Gupta v. Union of India, [1982] 2 SCR 365 and State of Assam v. Kuseswar
Saikia, AIR (1970) SC 1616, referred to.
3. Judicial service was not such an independent service that it could
deprive the State legislature and the executive to enact laws and make rules
with respect to matters mentioned in Article 309 but not covered umler
Articles 233 to 236 of the Constitution. The provisions of part III Chapter
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VI and Part XIV Chapter I had to be understood as complementary and
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306
SUPREME COURT REPORTS
[2000] 2 S.C.R.
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supplementary to each other. If the rules made by the executive under
Article 309 had been applied and acted upon, no objection could be taken to
the sovereign powers of the legislature to make laws with respect to judicial
service under first part of Article 309. The power under Article 309 was
subject to the opening words of the Article. [ 412-B, C]
B
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F
Re : Article 143, Constitution of India and Delhi Laws Act (1912) AIR
(1951) SC 332 and Hotel Balaji v. State of Andhra Pradesh, AIR (1993) SC
1048, referred to.
4. The appropriate legislature would be competent to make laws if
authorised under Chapter XI.read with Seventh Schedule of the Constitution.
In case of conflict between the Rules made under Article 234 and the laws
made by the appropriate legislature, the Rules would give way to the laws
made by the sovereign legislature. Such law made, however, may be declared
invalid or inapplicable to the judicial service if it in any way undermined
the independence of judiciary or otherwise encroached upon the
constitutional guarantees under Chapter VI or was violative of the
fundamental rights. [429-E, G]
Chandranwuleshwar Mohan Prasad v. The Patna High Court, AIR
(1970) SC 370; All India Judges, Association v. Union of India, AIR (1993) SC
2493; State qf West Bengal v. Nripendra Nath Bagchi, AIR (1966) SC 447; B.S.
Yadav v. State of Haryana, [1981] 1 SCR 1024; The High Court of Punjab &
Haryana v. State qf Hmyana, AIR (1975) SC 613; Hari Datt Dainthla v. State
of Hiniachal Pradesh, AIR (1980) SC 1426; K.N. Chandra Sek.hara v. State qf
Mysore, AIR (1963) Mysore 292 and M./. Nadaf v. The State of Mysore, AIR
(1967) Mysore 77, referred to.
5. Reservations being part of the Constitution, the High Court ought
to have conceded to the request of the State Government for making
reservations for the weaker sections of the society. [421-A]
G
M.M. Gupta v. State qf J & K, AIR (1982) SC 1579 and Indra Sawhney
v. Union of India, [1992] Supp. 3 SCC 217, referred to.
6. The seniority of the members of the judicial service would be
determined in accordance with the Service Rules applicable and the
provisions of the Act by adjusting the candidates selected on reservation to
H
fill in the reserved slots keeping in view the quota and rota rule. [437-G-H]
)
>
STATE v. BAL MUKUND SAH [S.B.MAJMUDAR, J.]
307
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9072 of 1996.
A
From the Judgment and Order dated 13.12.94 of the Patna High Court
in C.W.J.C. No. 6756 of 1994.
V.A. Bobde, F.S. Nariman, Dr. Rajeev Dhavan, Rakesh Dwivedi, K.
Sukumaran, D.D. Thakur, B.L. Yadav, B.D. Agarwal, Saket Singh, Kumar
B
Rajesh Singh, B.B. Singh, Uman Nath Singh, Lakshmi Raman Singh, Amitesh
Kumar, Apurb Lal, Prakash Kumar, S.K. Verma, Ms. Kirti Sinha, Akhilesh
Kumar Pandey, R.P. Goyal, Guiab Chandra, D.K Garg, Ms. Renu George,
K.K. Misra, Vishwajit Singh, N.S. Gahlot, Anish Dayal, R.K. Singh, S.D.
Mishra, Tripurari Rai, Prashant Kumar, S.K. Sinha, R.S. Singh, Anil Kumar
C
Jha, Irshad Ahmed, C.N. Shree Kumar, Balbir Singh Gupta, Manoj Prasad,
A.N. Bardiyar, B.B. Singh, P.H. Parekh and Amit Dhingra, for appearing
parties.
The following Judgments/Order of the Court were delivered :
S.B. MAJMUDAR, J. Leave granted in Special Leave Petition No.16476
of 1993.
Both these appeals, on granr of special leave under Article 136 of the
Constitution of India, are moved by the State of Bihar, which is common
appellant no.l 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'), insofar 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
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in Subordinate Judiciary al grass-root level under the District Courts concerned.
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SUPREME COURT REPORTS
(2000] 2 S.C.R.
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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 dire.ct recruitment, being ultra vires the relevant provisions of Article 233
of the Constitution· of India. It has also struck down the provisions made in
B . 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, the main judgment was rendered by the
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Division Bench of the High Court holding that the aforesaid Act as well as
.
.
the earlier Ordinance which preceded the same insofar 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
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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
E
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 Hon'ble the Chief Justice
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of India.
Before we proceed to deal with the rival contentions of learned counsel
for the respective parties in support of their cases, it becomes necessary to note
a few introductory facts.
Facts leading to Civil Appedl No. 9072 of 1996:
This Court, by its order dated 13th October, 1993 in Civil Appeal Nos.
4561-62 of 1992 in State of Bihar v. Madan Mohan Singh & Ors., had quashed
the earlier advertisement for filling up the vacancies of Additional District
Judges in the District Judicial Service of Bihar and directed the appellant State
H
to fill up the same through a fresh advertisement. In the mean time, it appears
-
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STATE v. BAL MUKUND SAH [S.B.MAJMUDAR, J.]
309
that as the High Court had not agreed to the suggestion of the State authorities
to have reservation in the posts of District Judges for reserved category of
candidates and had insisted on proceeding with the recruitment as per the 1951
Rules, styled as the Bihar Superior Judicial Service Rules, 1951, which were
framed by the Governor of Bihar in exercise of the powers conferred by the
proviso to Article 309 read with Article 233 of the Constitution of India and
which Rules did not provide for any such reservation, the Governor of Bihar
issued the impugned Ordinance which subsequently became the impugned Act
by which the scheme of 50% reservations for reserved category of candidates
was directed to be applied while effecting direct recruitment to the posts
concerned. On 16th November, 1993, the appellant State requested the High
Court to effect recruitment to the vacancies in the cadre of District Judges on
the basis of the reservation provided by the Ordinance which subsequently was
followed by the Act. By its communication dated 16th December, 1993, the
High Court of Patna insisted that recruitment to District Judiciary can be made
on the basis of 1951 Rules only. By a communication dated 5th April, 1994,
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· the High Court informed the authorities concerned that no reservation of posts
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in the district cadre could be implemented and while making appointments
from the members of the Bar for direct recruitment, preference may be given
to the Scheduled Caste (for short 'SC') and Scheduled Tribe (for short 'ST')
candidates who are of equal merit with general category candidates. On 7th
April, 1994, the High Court intimated that there are 54 vacancies in the district
cadre which had to be filled up. The State Government, however, issued the
impugned advertisement of 16th June, 1994 by which SO% of the available
vacancies of District Judges were sought to be filled in from reserved category
of candidates and the remaining 50% posts thereof, i.e. 27, were to be filled
in by the open category candidates. It is this advertisement which was
challenged by the writ petitioners before the High Court. The High Court, by
the impugned judgmept as noted earlier, has allowed the writ petition and
quashed the condition of reservation sought to be imposed by the impugned
advertisement.
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Facts leading to Civil Appeal arising out of S.l.P.(C) No.16476 of 1993:
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By a proposal dated 30th January, 1991, the appellant-State consulted
the Bihar Public Service Commission regarding making provision for reservation
of posts in the Subordinate Judicial Service for resel"ved category of candidates.
The said proposal of the appellant-State was also placed for consideration of
the High Court but it was not accepted by the High Court by its communication
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dated 16th April, 1991, and that resulted in the impugned Ordinances, being
33 and 34 of 1991, which were followed by the impugned Act. The original
writ petitioners, who had already appeared at the competitive examination in
April, 1991 moved the High Court challenging the Ordinances and the latter
Act insofar as the scheme of 50% reservation of posts for direct recruitment
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at grass root level of the State Judiciary was concerned. As noted earlier, the
aforesaid writ petition was allowed and relief was granted against the
appellants.
Rival contentions:
Dr. Dhavan, learned senior counsel appearing for the appellant-State in
Civil Appeal No.9072 of 1996, at the outset, contended that the impugned Act,
especially Section 4 thereof, is wrongly held by the High Court to be not
applicable to Judicial Services of the State. He contended that Judicial Services
especially, the Subordinate Judiciary comprising of district cadre and the cadre
.of Judges below the same were part and parcel of the Public Services of the
State and, therefore, on the express terminology of the Act, Section 4 thereof,
became directly applicable to the recruitment of judicial officers both at the
district level as well as at the level of Subordinate Judiciary below it.
Alternatively, it was submitted that even assuming that the Act did not apply
on its own language, even then, it has to be held that the State Legislature was
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perfectly competent to enact provisions regarding reservation of posts in
Judicial Services of the State in the light of Article 16(4) of the Constitution
of India read with the relevant entry 41 in list II of Seventh Schedule to the
Constitution. He also posed the moot question whether the State Legislature
has independent power to enact any provisions _regarding reservation in
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connection with appointment in Judiciary when such reservation, after
consultation with the High Court, could not get reflected in the relevant Rules
framed by the Governor under Article 309 read with Articles 233 and 234 of
the Constitution of India. In support of these contentions, relevant Constitutional
scheme was pressed in service. It was submitted that on a correct interpretation
of Article 309 the State Legislature as well as the Governor had ample
jurisdiction to make provision for reservation in connection with Judicial
Service. Under the said Article, paramount power in this connection has been
vested in the State Legislature. He then referred to Articles 233 and 234 in
connection with Subordinate Judiciary and placed emphasis on Article 236 (b)
defining the expression "Judicial Service" as a service consisting exclusively
of persons intended to fill the post of District Judge and other civil judicial
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STATE v. BAL MUKUND SAH [S.B.MAJMUDAR, J.]
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posts _inferior to the post of District Judge. He submitted that all that the
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opening part of Article 309 provides is to the effect that, while making
appointments to the cadre of District Judges or Subordinate Judges of lower
judiciary, as per Articles 233 and 234, consultation of the Governor with the
High Court is necessary. That apart, from these latter two Articles there is no
fetter on the power of the State Legislature to enact appropriate legislation in
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this connection under Article 309. He invited our attention to List II entry 41
of the Seventh Schedule for submitting that the State Legislature is competent
to make enactment in connection with appointments to Public Services and
'Judicial Service' is also a Public Service of the State. He further submitted
that the first part of Article 309 does not attract Article 234 so far as State
Legislature's paramount powers are concerned.
Dr. Dhavan, relying upon the second part of Article 235, stated that
despite the full control of District Judiciary being vested in the High Court,
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the right of appeal and"other conditions of service of Members of Subordinate
Judiciary as laid down by any competent law which would include legislative
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enactment as well as statutory rules are clearly saved pro tanto at least at the
second level, after appointments are made at the grass-root level in the
Judiciary and when the further question arises as to how the conditions of
service of such appointees are to be governed and controlled. Dr. Dhavan,
therefore, submitted that it is not as if the power of State Legislature to enact
appropriate provisions is totally excluded because of the enactment of Articles
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233 to 235. Dr. Dhavan tried to highlight his submission by contending that
if the power of State Legislature to enact appropriate provisions regarding
appointments of Members of Subordinate Judiciary is held totally excluded by
Article 234, and to that extent Article 309 be held out of picture, then the
following anomalies may arise in the working of these provisions.
(I) 'Judicial Service' as defined by Article 236(b) will get truncated in
its operation.
(2) The second anomaly pointed out by Dr. Dhavan was that power to
legislate, which must be given full effect. would get excluded without there
being any express exclusion.
(3) The third anomaly pointed out by Dr. Dhavan was that though under
the Constitution, the scheme of separation of power is devised to separate the
Executive from the Judiciary, this scheme does not extend to oust the
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legislative power. If it is held that Article 234 ousts the legislative power for
making suitable enactments· on the topic covered ther~in then, to that extent,
an anomalous position would arise not contemplated by the Constitutional
scheme.
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Dr. Dhavan next contended that on the express language of Article 234,
only the rule making power of the Governor is fettered but not the legislative
power of the State.
Dr. Dhavan next submitted that if legislative interference in the process
of selection and appointment of direct recruits to Subordinate Judiciary as per
Article 234 is completely ruled out that being the first level or the grass-root
level of the Subordinate Judiciary then another patently anomalous situation
would arise. Tha_t under Article 235 second part such statutory provisions to
be enacted by competent Legislature are clearly contemplated so far as
conditions of service of judicial officers are .concerned and then when we turn
to the apex level, namely, of the districtcadre manned by District Judges there
is no express ouster of legislative interference under Article 233. Thus the
plenary power of the Legislature would be operative qua the highest posts in
the hierarchy of District Judiciary while for the grass-root level itwill be ruled
out. Dr. Dhavan then invited our attention to the decisions in M.M.Gupta &
Ors. etc. v. State of Jammu & Kashmir & .Ors., [1982] 3 SCC 412 paras 28
to32 as well as in State of Kerala v. Smt. A. Lakshniikutty & Ors., [1986] 4
sec 632 at page 64 7 in para 22 to highlight the scope of the term
'consultation' which should be effective consu1*ation. He then invited our
attention to the impugned Act especially Sections 2 (c), 4 and 16 having
overriding effect over all other rules in force and submitted that such
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establishments under the 'State' would include even Judiciary as laid down by
the definition of Section 2(n). He, however, fairly conceded that neither in the
Rules of 1951 regarding appointments to district cadre as per A1ticle 233 nor
under the Rules of 1955 for recruitment to cadre of Subordinate Judiciary as
laid down by Article 234, there is any provision for 50% reservation of posts
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and, therefore, he submitted that this entire case depends upon competence of
the impugned Act which had to be enacted because there was a stalemate on
this subject as the High Court did not agree with the suggestion of the
Governor for suitable amendment to these Rules under Articles 233 and 234.
He ultimately submitted, that the reasoning of the High Court that the Act does
not cover 'Judicial Service' is patently erroneous and that this Act is not bound
by any fetters of Articles 233 or 234 and is an exercise of paramount
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STATE v. BALMUKUND SAH [S.B.MAJMUDAR, J.]
313
legislative power confelTed on the State authorities under Article 309 first part
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read with entry 41 List II of Seventh Schedule of the Constitution. He,
therefore, submitted that the Act must be permitted to have full play.
In support of his contentions Dr. Dhavan placed strong reliance on the
decision of a Constitution Bench of this Court in the case of B.S. Ylzdav & Ors.
v. State of Haryana & Ors. ·etc., [1981] 1 SCR 1024. Dr. Dhavan, therefore,
submitted that the impugned judgment of the High Court, being contrary to
the Constitutional scheme, requires to be set aside.
Shri Dwivedi, learned senior counsel appearing for the appellant-State
in the companion Civil Appeal submitted that though the High Court in para
9 at page 11 has referred to a three-Judge Bench judgment of this Court in All
India Judges' Association & Ors. etc. v. Union of India & Ors. etc., AIR
(1993) SC 2493, giving special status to judicial officers, the said observations
cannot whittle down the power of reservation available to the State authorities
under Article 16 ( 4) and that question was not examined in the said case as
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it did not fall for consideration. He submitted that a conjoint reading of
Sections 2(c) and 2(n) clearly shows that the Act is meant to apply also to
'Judicial Service' of the Bihar State. He next contended that question of
reservation of posts in a cadre which is already established ?Y the State
authorities in exercise of. their powers under Article 309 is not covered by
Articles 233 to 235. That question is covered by Article 16 sub-article (4) and
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none of the aforesaid provisions curtail that enabling power available to the
State authorities. In this connection, he also invited our attention to entry l lA
of List III of Seventh Schedule to the Constitution dealing with constitution
and organisation of all courts, except the Supreme Court and the High Courts,
and submitted that scheme of reservation of posts would remain sustained
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under these provisions and also as per the Legislature enacted under entry 41
of List II. He submitted that once the court is constituted, it would comprise
of all cadres of judicial officers to man the courts and the formation of cadres
and constitution of the courts also permitted provisions for creation of reserved
posts to comprise in such cadres. This exercise has nothing to do with the
question of appointment on available vacancies in posts borne on established
cadres in Judicial Service. According to Shri Dwivedi, the establishment of
cadres and creation of posts in the cadres is a stage prior to the one
contemplated by Articles 233 to 235 dealing with the subsequent question as
to how actual appointments of deserving candidates are to be effected to fill
up vacancies in already created posts in the concerned cadres.
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In short, the submission of Shri Dwivedi was that question of creation
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of posts to be filled up by reserved candidates or open category candidates
was in the domain of the State authorities especially, the Legislature which
can enact appropriate statutory provisions in discharge of constitutional
obligation under Article 16(4) read with entry 41 of List II of Seventh
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Schedule as well as entry 11 A of List III and once the general category posts
as. well as the reserved category posts are made available to the High Court.
for being filled in, thereafter, it will be for the High Court to proceed
according to Articles 233 and 234 of the Constitution of India and in that
exercise the State Legislature will have no say. He, therefore, contended that
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the High Court in the impugned judgment was patently in error in taking the
view that statutory provision of reservation of posts for reserved category
candidates in the Subordinate Judiciary under its control was in any way ultra
vires or illegal. Shri Dwivedi, in support of his contentions, gave written
submissions whereby, amongst others, he invited our attention to Article 320
sub-article ( 4) which excludes reservation expressly from the powers and
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functions of the Public Service Commission. He submitted that Article 234
requires the Governor for framing rules to consult the High Court as well
as the Public Service Commission and when it cannot make any provision
regarding reservation under Article 16 sub-article (4), by analogy, consultation
of the High Court also under. the very same Article 234 would not permit
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the High Court to deal with Article 16 sub-article (4). In other words, question
of reservation is outside the ken of Article 234. Shri Dwivedi, also in support
of his contentions, placed reliance on various decisions of this Court to which
we will make a reference at an appropriate stage.