Bal Mukund Sah And Another v. The State Of Bihar & Ors.

S.N Jha, J.:— This Writ petition involves questions relating to interpretation of Article 233 of the Constitution of India. The precise questions for consideration are (i) Whether it is open to the Governor i.e the State Government to reserve posts in making direct recruitments of Additional District Judges contrary to the advice of the High Court and (ii) Whether the provisions of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 (Bihar Act 3 of 1992) (hereinafter referred to as ‘the Reservation Act’) are applicable to the Judicial Service in the State of Bihar?

2. The petitioners, who are advocates practising in the Civil Courts at Jamui in the State of Bihar, have filed this writ petition in their personal capacity as also purporting to represent the interest of similarly situate advocates of the State seeking appropriate writ for quashing the advertisement dated June 16, 1994 inviting applications for recruitment of Additional District and Sessions Judges from Bar to the extent it purports to reserve posts for the Scheduled castes, Scheduled tribes, Backward classes etc. and to fix the upper age limit at 45 years. They have also prayed for declaration that the provisions of the Reservation Act are void and inoperative in so far as they relate to the Bihar Superior Judicial Service. Article 233 of the Constitution provides that the appointment, posting and promotion of District Judges in any State shall be made by the Governor of the State in consultation with the High Court. On November 16, 1993 the Additional Secretary, Personnel and Administrative Reforms Department, Government of Bihar, informed the Registrar, Patna High Court, that in the light of the directions of the Supreme Court in Civil Appeal Nos. 4561-4562 of 1993 (Judgment reported in AIR 1993 Supreme Court), fresh advertisement is to be issued for appointment of Additional District and Sessions Judges from the Bar. The Registrar was requested to send information regarding category-wise vacancies as per the roster in the light of the provisions of the Reservation Act. The Registrar informed the State Government vide his letter dated December 10, 1993 about the decision of the High Court to invite applications for appointments of Additional District and Sessions Judges direct from Bar in respect of present and expected vacancies against both permanent and temporary posts under Rules 5(a) and 6 of the Bihar Superior Judicial Service Rules, 1951. The High Court suggested the terms and conditions to be incorporated in the advertisement. As regards the age limits, it was said that “the candidates who have not completed the age of 35 years or who have completed the age of 50 years on the last date of receipt of the application, as specified in the advertisement, shall not be eligible for consideration for such appointment”. As regards reservation of posts, the letter stated that the provisions of the Reservation Act “shall have no application and it shall not be followed in the matter of such direct recruitment from the Bar”. The State Government by its letter dated January 4, 1994 told the High Court that the provisions of the Reservation Act shall apply to appointments to the posts in the State Judiciary. The High Court was again requested to send the categorised vacancy position as per the roster. The High Court by letter dated April 5, 1994 informed the Government that as per the resolution adopted by the Court, in the matter of appointment of Additional District and Sessions Judge direct from the Bar merit would be the sole criteria and that without accepting the applicability of the provisions of the Reservation Act the Court are always prepared to give preference to a candidate belonging to Scheduled caste or Scheduled tribe provided he is found to be of equal merit with other candidates. The impugned advertisement dated June 16, 1994 was thereafter published in the newspapers on July 16, 1994.

3. The writ petition filed on August 8, 1994 came up for preliminary hearing on October 4, 1994, the writ petition was admitted to hearing. An interim order was passed directing the State Government to issue a corrigendum advertisement suitably modifying the clause of the advertisement by which upper age limit had been fixed, in consonance with the advice of the High Court to fix the upper age limit at below 50 years with reference to last date of receipt of the application, and to accept the applications of the petitioners and other similarly situate persons who by reason of the impugned term of the advertisement were overage provisionally subject to the result of the writ petition.

4. Counter affidavit sworn by Sri Vijay Kumar Shrivastava, Additional Secretary, Department of Personnel and Administrative Reforms has been filed on behalf of the State. According to the said counter affidavit the posts in the Bihar Superior Judicial Service have not been exempted from implementation of the Reservation Policy as contained in the Reservation Act. The State Government had already informed about the Government decision to reserve posts in the different category in the Superior Judicial Service also and it cannot be said that there was no consultation on the point with the High Court. Fixing of upper age limit of 45 years has been defended on the ground that as per the Bihar Pension Rules a Government servant is entitled to pension after putting in a minimum of ten years of service. Besides, the Government has also considered the desirability of the officers in the Superior Judicial Service getting at least two promotions before their retirement. With the above end in view the upper age limit has been fixed at 45 years and ‘not below 50 years’ as suggested by the High Court. The High Court in its affidavit sworn by the Registrar General I/C has reiterated its stand indicated in the aforementioned two letters dated December 10, 1993 and April 5, 1994. By way of supplementary affidavit it has taken the stand, inter alia, that the provisions of the Reservation Act “bringing the judicial service of the State within its scope of reservation of posts for different categories mentioned in section 4 of the Act it is unconstitutional and void that having been not communicated after consultation of the High Court. The High Court was never even made aware about the provisions for reservation in respect of Judicial Service also as contained in the abovementioned Act.”

5. Counsel for the parties made detailed submissions on the lines indicated in their respective petitions/affidavits. The learned counsel for the petitioners emphasised that there was no proper and effective consultation between the Governor and the High Court as required in terms of Article 233 of the Constitution. He also submitted that the provisions of the Reservation Act are ultra vires. It was pointed out that this Court has already held the provisions as ultra vires as regards the Subordinate Judicial Service of the State in the case of Deepak Kumar Singh v. State of Bihar (1993 (2) PLJR 385). Learned Advocate General submitted that the posts had been reserved as per the mandate of the Reservation Act and there was due consultation with the High Court on the point of reservation of posts. He urged that the reservation is a matter of Public Policy and the Court should not go into matters of public policy. On the question of fixing age limit, however, learned Advocate General fairly conceded that there was no consultation with the High Court but according to him, the same having been done for good reasons as mentioned in the counter affidavit of the State, the Court should not interfere with the same. Learned counsel appearing for the High Court has, in substance, supported the stand of the petitioners.

6. I shall first take up the question of applicability of the Reservation Act. If the Act is applicable, that perhaps, may be the end of the matter notwithstanding the argument advanced on behalf of the High Court that at the stage of enactment of the said Act the High Court should have been consulted, an argument in which I do not find any substance.

7. The Reservation Act has been enacted to provide for adequate representation of Scheduled Castes, Scheduled Tribes and other Backward Classes in posts and services under the State Government. Section 4 of the Act contains the charging or substantive provision, in regard to reservation in direct recruitment. The section so far as relevant runs as follows:

“All appointments to service and posts in an establishment, which are to be filled by direct recruitment shall be regulated in the following manner, namely:

(1) Available vacancy shall be filled up:

(a) From open merit category … 50%

(b) From Reserved Category … 50%

(2) XXXXX”

8. The term ‘establishment’ has been defined under section 2(c) of the Act to mean “any office or department of the State concerned with the appointments to public service and posts in connection with the affairs of the State and includes…” The term ‘State’ has been defined under section 2(n) to include “the Government, the Legislature and the Judiciary of the State of Bihar…” According to learned Advocate General, section 4 read with section 2(c) and 2(n) covers posts in the Judicial service of the State. The argument goes like this. Section 4 provides for reservation in an establishment. The establishment means any office or Department of the State. The State includes the Judiciary of the State of Bihar, and therefore, reservation is permissible in Judiciary.

9. What is the place of Judicial Service in the constitutional set up of our country? Is it like any other office or department of the State or has some special status? While dealing with the features of the Judicial Service in the country in the case of All India Judges' Association v. Union of India ((1993) 4 SCC 288 : AIR 1993 Supreme Court 2493), the Apex Court observed (at page 2501):

“We cannot, however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of ‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State-power are the Ministers, the Legislatures (legislators and the judges), and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the Secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the legislators are different from the judicial staff. The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A, the members of some State Judiciaries are elected as such as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.”

10. On the strength of the above observations learned counsel for both the petitioners and the High Court submitted that judicial service has been assigned a special status or place in contradistinction to other services within the constitutional framework and it would not be correct to treat the service as an ordinary establishment and bring it within the purview of the Reservation Act.

11. The Supreme Court has made a clear distinction between the Council of Ministers, Members of the Legislatures and the Judiciary on the one hand and the Secretarial staff, the Legislative staff, and the Judicial staff on the other. If, as stated by the Apex Court, there is distinction between the Judges and the Judicial staff, just as there is distinction between the Council of Ministers and the Secretarial staff or the Legislators and the Legislative staff and the provisions of Reservation Act are not applicable to the Council of Ministers or the Legislators, how can the Judges be brought within the ambit of the Reservation Act? If as members of the Judiciary they are supposed to exercise sovereign judicial power, just as the council of ministers and the members of the Legislatures do in their own realms, they cannot be relegated to and treated at par with their staff. If the Ministers or the Legislators cannot be equated with the Secretarial staff or the Legislative staff, the Judges also cannot be equated with the Judicial staff. It should be kept in mind that the provisions relating to appointment in the Subordinate Judiciary occur in continuation with and immediately after the provisions relating to Governor, Council of Ministers, the State Legislatures and the High Courts in Part XIV. That shows where the Judicial Service stands out in the Constitution.

12. We have seen the definition of the term ‘establishment’ under section 2(c) of the Act to mean “any office or department” of the State. The term ‘State’ under section 2(n) includes judiciary. The correct construction of section 4, in the context, read with sections 2(c) and 2(n), would be something like this:

All appointments to service and posts in any office or department (i.e establishment) of the judiciary by direct recruitment shall be regulated in the following manner.

13. In my opinion, the words, “Office or Department” occurring in the definition of the term “establishment” under section 2 (c) of the Act refers to the office or department of the Court and not the Court itself. The Court, no doubt, functions through its office and the staff attached to it. Nevertheless they have separate entity. Both in the High Courts as also in the subordinate (Civil) Courts there are offices and departments. Their main job is to facilitate the working of the Court for the administration of justice. But surely, the staff working in the office or the department cannot be equated or bracketed with the Courts as such. It appears to me, therefore, that what section 4 of the Reservation Act contemplates by providing for reservation in direct recruitment to posts and services is reservation in posts in the ‘office or Department’ of the Courts or the Judiciary and not the Judiciary itself.

14. It is well settled that if the language used in the statute is capable of more than one construction, in selecting the true meaning, regard must be had to the consequence resulting from adopting the alternative constructions. A construction that results in, inter alia, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference given to that construction which avoids such results. As Willes, J., observed in Christopherson v. Lotinga [(1864) 33 LLCP 121], “Absurdity should be understood in the same sense as repugnant”. In Madhavrao Jivajirao Scindia v. Union of India ((1971) 1 SCC 85 : AIR 1971 Supreme Court 530). It has been said (at p. 576). “The Court will interpret a statute, as far as possible, agreeable to justice and reason and that in case of two or more interpretations, one which is more reasonable and just will be adopted, for there is always a presumption against the law makers intending injustice and un-reason”. In N.T Veluswami Thevar v. Raja Nainar (AIR 1959 Supreme Court 422 at pages 427-428), Justice Venkatrama Aiyar observed. “It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to alter and amend the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not. It is our duty to adopt the latter and not the former seeking consolation in the thought that the law bristles with anomation”. Similar view was expressed by Chief Justice Ray, in Sri Nasiruddin v. State Transport Appellate Tribunal. (AIR 1978 Supreme Court 331 at page 338). “If the precise words used are plain and unambiguous, they are bound to be construed in their ordinary sense. The mere fact that the results of a statute may be unjust does not entitle a court to refuse to give it effect. If there are two different interpretations of the words in an Act, the Court will adopt that which is just, reasonable and sensible rather than that which is none of these things. If the inconvenience is an absurd inconvenience, by reading an enactment in its ordinary sense, whereas if it is read in a manner in which it is capable, though not in an ordinary sense, there would not be any inconvenience at all there would be reason why one should not read it according to its ordinary grammatical meaning. Where the words are plain the Court would not make any alteration.”

15. If two interpretations of section 4 read with section 2(c) and 2(n) are possible, one of which would results in anomaly and lead to absurdity or inconsistency and friction in the system while the other would make it reasonable, cohesive and in tune with the constitutional scheme, surely, the former interpretation has to be avoided. The interpretation put forward by the Advocate General, if accepted, would amount to relegating the judicial service at par with not only the Secretarial staff or the administrative executive of the Council of Ministers and the Legislators but also their own office staff, that would be contrary to law laid down by the apex court in the All India Judges' Association case (supra). On the other hand, the construction which I have given above makes the statute sensible and workable. It is, therefore, difficult to accept the construction put forward by the learned Advocate General regarding interpretation of section 4 of the Reservation Act. The provisions of the Reservation Act have been held to be ultra vires, although for different reasons, as regards the Bihar Subordinate Judicial Service i.e as regards recruitment of Judicial Officers other than the District Judges in the Case of Deepak Kumar Singh v. The State of Bihar (supra). We were informed during course of hearing by the learned Advocate General that the judgment is under challenge in the Supreme Court and the matter has been referred to a Constitution Bench. In my opinion, on the true construction of section 4 of the Reservation Act, as indicated above, it is not necessary to go into the question of vires of the Act. The object of the Court should be not to find fault with the law but to save it as far as possible.

16. Learned Advocate General, made exhaustive reference to the judgment in Nandal's case i.e Indra Sawhney v. Union of India (1992 Supp (3) SCC 217 : AIR 1993 Supreme Court, 477) and submitted that the question of reservation is a matter of public policy, which lies beyond the pale of the jurisdiction of the Courts. In view of what I have stated above, the above submission is wholly irrelevant. What is in issue is not the correctness of the reservation policy but the question of the applicability of the Reservation Act to the judicial service. For the reasons stated above, I am clearly of the view that the Act is not applicable to the Judicial service or the posts in the Bihar Judicial Service including Bihar Superior Judicial Service.

17. I shall now consider the question as to whether reservation of posts in the Judicial Services dehors the Reservation Act is permissible or not. It is, no doubt, permissible to the State to make reservation in posts and services by framing rules under proviso to Article 309 of the Constitution or even by issuing executive orders, within the meaning of Article 13(3) [See Auditor General v. Mohanlal Mehrotra ((1992) 1 SCC 20 : AIR 1991 Supreme Court, 2288 at page 2293) and Indra Sawhney v. Union of India (1992 Supp (3) SCC 217 : AIR 1993 Supreme Court, 477 at Pages 539, 669)]. In the recruitment rules with respect to appointment of District Judges/Additional District Judges, entitled. The Bihar Superior Judicial Service Rules, 1946 as amended, framed under proviso to Article 309 read with Article 233 of the Constitution there is no provision for reservation. No executive order or circular has been brought to our notice making reservation of posts in the Bihar Superior Judicial Service. Nevertheless, I think it proper to consider the question in the light of the letters exchanged between the State Government and the High Court and the consequential advertisement.

18. This takes us to the scope and interpretation of Article 233 of the Constitution. The said Article provides:

“(1) Appointment of persons to be, and the posting and promotion of, district judges in any State shall be made by the manner of the State in consultation with the High Court exercising jurisdiction in relation to such State,

(2) A person not already in service of the Union or of the State shall only be eligible to be appointed as 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.”

19. Learned counsel for the petitioners relied on authorities in support of his contention that ‘consultation’ within the meaning of Article 233 means effective and meaningful consultation and not an empty formality. [Chandra Mohan v. State of Uttar Pradesh: AIR 1966 Supreme Court 1987; Chandra Mouleshwar Prasad v. Patna High Court: (1969) 3 SCC 56 : AIR 1970 Supreme Court 370; Chief Justice of Andhra Pradesh v. L.V.A Dikshitulu, (1979) 2 SCC 34 : AIR 1979 Supreme Court 193 and M.M Gupta v. State of Jammu & Kashmir: (1982) 3 SCC 412 : AIR 1982 Supreme Court 1579], Learned Advocate General, on the other hand, placed reliance on Mani Subrat Jain v. State of Haryana ((1977) 1 SCC 486 : AIR 1977 Supreme Court 276) and State Of Kerala v. A. Lakshmikutty (Smt) ((1986) 4 SCC 632 : AIR 1987 Supreme Court 331) to substantiate the plea that the recommendation of the High Court is not binding on the Governor i.e the Executive. He also referred to passages in Indra Sawhney v. Union of India (1992 Supp (3) SCC 217 : AIR 1993 Supreme Court, 477) to highlight that the reservation is a matter of public policy and the court should, therefore, not go into the efficacy of the decision to make reservation in the Judicial Service. Learned counsel for the High Court placed reliance on Hari Datt Kainthala v. State of Himachal Pradesh ((1980) 3 SCC 189 : AIR 1980 Supreme Court 1426) in support of the proposition that in the absence of rules it is for the High Court to decide which criteria should be followed in the matter of appointment of District Judges/Additional District Judges. He also referred to the judgment in the case of Supreme Court Advocates-on-record Association v. Union of India ((1993) 4 SCC 441 : AIR 1994 Supreme Court 268) to buttress the plea that in the matter of appointment of Judges the Judiciary has the primal role to play.

20. There is no dispute that in the matter of appointment of Judges of the Superior Service under Article 233 consultation with the High Court is a must. The only dispute is as regards the role of the Executive vis-a-vis the High Court or the vice versa and in the case of conflict between the two whose view shall prevail.

21. I do not propose to examine the cases cited at the Bar, as noticed above individually, for, in my opinion, the decision of the nine Judges' Bench in the ‘Judges case, (1993) 4 SCC 441 : AIR 1994 Supreme Court 268, provides complete answer to the point. But before I refer to the said decision I would like to refer to the Constitution Bench decision in the case of State of West Bengal v. Nripendra Nath Bagchi (AIR 1966 Supreme Court 447). Justice Hidayatullah therein traced the history of appointment of district judges in the country. The post of District Judge was earlier reserved for the Europeans. The disability regarding Indians was removed as a result of the Queens' Proclamation in 1870 and the rules were framed for the first time in 1873. Although in 1875 one-fifth quota was allotted to the Indians, there was no fixed principle on which Indians were to be appointed. The Islington's Commission was constituted in 1918 to consider the demand for recruitment from Bar to the superior judicial service and separation of judiciary from the executive. The Commission in its report noted, “Opinion in India is much exercised on the separation of the executive and the judicial function of the officers” and suggested that “to bring this about, legislation would be required”. However, the recommendation of the Islington's Commission remained a dead letter. The Montague Chelmsford Reforms also did not make much headway. The position more or less continued till the Government of India Act, 1935 was passed. The said Act contained special provisions (sections 254 to 256) relating to district judges and subordinate judiciary. Although no attempt was made to put the subordinate criminal magistracy under the High Courts, the posting and promotion etc. of persons belonging to the subordinate judiciary services of a province was put in the hands of the High Courts with a right of appeal to the authorities prescribed in the rules. As regards District Judges the posting and promotion was to be made by the Governor of a province exercising his individual judgment and the High Court was to be consulted before any recommendation to the making of such an appointment was submitted to the Governor. In this manner the independence of the subordinate judiciary and of the district judges was assured to certain extent. At the time of framing of the Constitution after independence, the said special provisions as contained in 1935 Act were initially lost sight of. However, by amendment the provisions were not only incorporated but given a place of pride by including them in a separate chapter just after the chapter dealing with the High Courts in Part VI and not in Part XIV which deals with the services in general. The learned Judge, thereafter, considered the nature and scope of the provisions of Articles 233 to 235 and held (at page 454). “These Articles go to show that by vesting “control” in the High Court the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935 but it was given effect to fully by the drafters of the present Constitution”.

22. In the Judges' case, (1993) 4 SCC 441 : AIR 1994 Supreme Court 268, after referring to the meaning of the term ‘consultation’ in various dictionaries and Law Lexicons and also after noticing the various judicial pronouncements on the point the Apex Court observed (at Page 334) that if the construction of the term is made only in a literal or Lexical meaning, then there is every possibility of missing the real intent of the provisions, and held (Page 336 of the report):

“In the light of the above view expressed in Sankal Chand (AIR 1977 S.C 2323) and some of Judges in Gupta's case (1981 Supp SCC 87 : AIR 1982 S.C 149), it can be simply held that consultation with the CJI under the first proviso to Art. 124(2) as well under Article 217 is a mandatory condition, the violation of which would be contrary to the Constitutional mandate.”

23. The consensus view expressed in S.P Gupta's case that the consultation does not mean concurrence and that the CJI being one of the three constitutional functionaries stands on the same pedestal with the other Constitutional functionaries was not approved. It was stated (at Pages 341, 342 of the report):

“The above answer, in our view, ignores or overlooks the very fact that the judicial service is not the service in the sense of employment and is distinct from other services and that the members of the other services, cannot be placed on par with the members of the judiciary, either constitutionally or functionally” (See-All India Judges Association and others case 1993 (4) J.T S.C 618. There are inumerable impelling factors which motivate, mobilise and impart momentum to the concept that the opinion of the CJI given in the process of ‘consultation’ is entitled to have primacy.

The foregoing considerable deliberation leads to an inexonerable conclusion that the opinion of the Chief Justice of India in the process of constitutional consultation in the matter of selection and appointment of Judges to the Supreme Court and the High Courts as well as transfer of Judges from one High Court to another High Court is entitled to have the right of primacy.”

24. The above observation, no doubt, have been made in context of appointment to the superior judiciary i.e the High Courts and the Supreme Court. The similarity of the provisions as contained in Articles 124(2), 217 and 233 may, however, be noticed. Section 124(2) provides that every judge of the Supreme Court shall be appointed by the President after consultation with such of the Judges of the Supreme Court and the High Court as the President may deem necessary. Article 217 provides that every judge of a High Court shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the State and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Article 233 provides that the appointment of persons to be, and posting and 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. I would venture to say that the word ‘consultation’ in Article 233 cannot have a different meaning. A sound subordinate judiciary is the foundation of sound and strong superior judiciary. The observation as contained in the Judges' case ((1993) 4 SCC 441 : AIR 1994 S.C 268) noticed hereinabove should, therefore, be read mutatis mutandis as applicable to the appointment of the district judges as well. In other words, the opinion of High Court in the matter of appointment of District Judges/Additional District Judges must be held to have primacy.

25. In this connection it would be useful to also notice the following observations made by the Apex Court in the Judges' case (supra) in relation to the appointment of the District Judges under Article 233 (page 375 of the report):

“From the foregoing discussion it becomes evident that in India judiciary plays a more active role in selecting judges at all levels than in other countries. The appointments to the subordinate judiciary must be made by the Governor in consultation with or on the recommendation of the High Court as provided by Article 233 of the Constitution. Article 233 is a self-contained provision for appointment as District Judge and is in two parts; the first clause provides for the appointment of a person who is already in the service of the Union or the State in consultation with the High Court while the second clause provides for the appointment of a person who has been for not less than seven years as an advocate or a pleader on the recommendation of the High Court. The requirement of consultation with or recommendation by the High Court is a must and the decision has to be taken by the entire body of Judges constituting the High Court. In the case of appointment of persons to the Judicial service other than as a District Judge, Article 234 requires that their appointments shall be made in accordance with rules made by the Governor in that behalf in consultation with the State Public Service Commission and with the High Court. Therefore, even though the ultimate appointment of a person to be a District Judge rests with the Governor, he cannot make the appointment unless there has been an effective and meaningful consultation with the High Court or the High Court has, as the case may be, recommended the appointment. Consultation would not be complete, meaningful and effective unless there has been an exchange of views and in the event of disagreement the executive has indicated the reasons for its disagreement to the High Court and has disclosed the material on which the disagreement is based. Therefore, the obligation to consult the High Court is so integrated with the exercise of power by the Governor that the power must be exercised in the manner provided by Article 233(1) or not at all.”

(underlined by me)

26. After noticing certain decisions on the point, the Court proceeded to say:

“It is, therefore, obvious that in the matter of selection of District Judges, it is the High Court which plays a dominant role for the reason that lot of weight is attached to the views of the entire body of Judges constituting the High Court. It is, therefore, natural that departure from the opinion of this informed body, which the Constitution requires to be consulted, can be a rare event and that too for very strong, cogent and compelling reasons. Even in such an eventuality there must be an effective, purposive and meaningful dialogue with the High Court before a final decision is taken by the executive. It is necessary to realise that the framers of the Constitution have deliberately provided for consultation with the entire body of Judges constituting the High Court and it is their collective wisdom which adds weight to the opinion transmitted to the executive and hence it is not surprising that except in rare cases where they may have gone wrong for want of some material that the executive may take a different approach and invite the High Court to revise its opinion in the light of that material e.g, I.B Report or the like.”

27. I am conscious of the fact that the observations quoted hereinabove have been made in the context of individual recommendation and their binding nature. In that sense, in the instant case, the position is somewhat different. The recommendations are still to be made.

28. The question, therefore, would be whether the primacy of the judiciary/High Court is to be extended to fixing the criteria of selection as well. As noticed above, as per the stand of the High Court, the Court is prepared to give preference to the candidate belonging to Scheduled castes and Scheduled tribes provided he is found to be of equal merit with other candidates but merit should be the sole criterion of selection. Counsel for the High Court submitted that excellence in service is the essence of independence of judiciary and independent judiciary is the concomitant of a sound democratic system without which democracy shall be in jeopardy. It would, therefore, not be a sound policy to make any compromise on merit.

29. The observations of the Apex Court in the Judges' case, (1993) 4 SCC 441 : AIR 1994 Supreme Court 268 (at page 348) shed some light on the point and may, therefore, be usefully noticed:

“it is essential and vital for the establishment of real participatory democracy that all sections and classes of people, be they backward classes or scheduled castes or scheduled tribes or minorities or women, should be afforded equal opportunity so that the judicial administration is also participated in by the outstanding and meritorious candidates belonging to all sections of the society and not by any selective or insular group.”

30. The learned Judge, however, hastened to add:

“I would like to emphatically declare that the above view of mine should not be construed as a plea for reservation or quota system, of any kind, but it is expressed only with the sole object of attracting the best in judicial talent from all sections of society on equal footing and bringing them within the zone of consideration by the concerned Chief Justice.”

31. The stand of the High Court that the merit being equal with other candidates, preference will be given to the candidates of the scheduled castes and scheduled tribes, in my view, completely fits in the scheme envisaged by his Lordship and I have no hesitation in upholding the same as being just, proper and reasonable. I would merely add that similar preference be extended to other backward classes as well.

32. It is true that letters were exchanged between the State Government and the High Court in regard to modalities of appointment of the Additional District Judges. Fifty per cent posts have been declared reserved for different categories in the advertisement contrary to the opinion of the High Court, in view of the provisions of the Reservation Act. No other independent reason or ground appears to have weighed with the State Government or at least communicated to the High Court or even to us to justify the decision to reserve posts de hors the Act. The Act having been held as not applicable to the judicial service and no other material or reason having been cited in support of the decision, the reservation of posts in the impugned advertisement has to be held to be illegal and arbitrary.

33. So far as the question of fixing an upper age limit different from the one suggested by the High Court is concerned, the reasons cited in the counter affidavit do not appear to be weighty, cogent and convincing. It is true that under the Bihar Pension Rules, without putting in a minimum of ten years of service, the government servant is not entitled to pension. However, the superannuation age of subordinate judicial officers having been raised to 60 years (although the benefit of extended age is not to be given automatically an is subject to evaluation of his potential for continued service by the High Courts), by fixing the upper age limit below 50 years, it cannot be said that the appointment of persons above 45 years of age, but below 50 years as suggested by the High Court, would disentitle the judicial officer to pension. The decision to fix the upper age limit at 45 years, therefore, appears to be arbitrary. In fact, as stated above, the Advocate General, during course of submissions conceded that there had been no consultation with the High Court on the point. The impugned clause of advertisement, therefore, is to be struck down on both the grounds.

34. To conclude, the impugned terms of the advertisement as contained in clause 2 and Note (2) to clause 11, in regard to fixing upper age limit at 45 years and reserving 27 out of 54 posts for different categories as mentioned therein, respectively, are held to be illegal and ultra vires and struck down. The State Government is directed to finally accept the applications which have been received pursuant to the corrigendum notification issued in the light of the interim order dated October 4, 1994 by candidates below 50 years and to treat all 54 notified posts as general and to proceed in the matter accordingly. The recruitment process shall be expedited. In the result, the writ application is allowed. There will be no order as to cost.

35. S.J Mukhopadhaya, J.:—I agree.