Bapna, J.:— This is a petition under Art. 226 of the Constitution of India.

2. The petitioner was a District and Sessions Judge in the former Bikaner State for some years prior to the formation of the United State of Rajasthan by the Covenant, date 30th March, 1949, entered into by the various rulers including the Maharaja of Bikaner Sometime after the formation of Rajasthan provisional postings were made on an Ad Hoc basis by Government Order No. F-1(12) Int. B/50, dated 25th May, 1950 and the petitioner was provisionally posted as Civil and Additional Sessions Judges of Jhunjhunu. The Government notification of the said postings mentioned in paragraph 6 that all the appointments were provisional, and that the emoluments of none of the officers appointed were being affected, and they would continue to draw their existing salaries until further orders. It was declared that all the appointments were without prejudice to the certain of a Judicial Service in Rajasthan to be formed in accordance with the rules which may be made therefore.

3. The rules and instruction for selection of Government Servants and fixation of seniority with respect to Rajasthan Judicial Service were published in the Rajasthan Rajpatra of 23rd August, 1950, under the signature of Mr. V. Narayanan. Additional Chief Secretary to the Government of Rajasthan. The said Rules purported to constitute a Selection committee for purposes of selecting officers from among those then in service for permanent appointment in the Rajasthan Judicial Service and arranging them in order of seniority. It considered of;

1. The Hon'ble Chief Justice.

2. The Chairman, Public Service Commission;

3. A Judge of the High Court nominated by the Hon'ble the Chief Justice. The strength of the Rajasthan Judicial Service was notified to be:

(a) Senior Posts, viz.— (i) District and Sessions Judges and

Additional District and Sessions Judges, Registrar, High Court, and Legal Remembrance cum Law Secretary 19 (ii) Civil and Additional Sessions Judges 15 (b) Junior Posts viz— Civil Judges, Munsiffs and Deputy Registrars 106 (c) Reserve for deputation 6 (d) Leave and training Reserves 14 160

Rules 4, 5, 6 and 7 declared who were and who were not eligible for selection and appointment to the Rajasthan Judicial Service. Candidates were directed by rule 8 to apply in prescribed form to the Secretary, Integration Department, by September 20, 1950, at the latest.

4. The Committee met, interviewed the candidates and made certain recommendations, and on 23rd April, 1951, the Government of Rajasthan issued Notification No. F. 1(357) Appts. (A)/51, as follows:—

“In exercise of the powers vested in him under Arts. 233 and 234 of the Constitution, his Highness the Raj Pramukh is pleased to make the following substantive appointments to the Rajasthan Judicial Service in the light of the recommendations made by the Selection Committee appointed for the selection of officers and endorsed by the Public Service Commission and the Hon'ble High Court of Judicature, Rajasthan. The names are arranged in order of seniority in each Group, effective from the date of this order.

5. Then followed Groups A, B, and C. Group A related to District and Sessions Judges, Group B to Civil and Additional Sessions Judges, and Groups C to Civil Judges and Munsiffs. The petitioner was appointed as a Civil Judge and placed at No. 18 in Group C. The petitioner made representation to the Government against what he considered to be his reduction in rank on 18th June, 1951, but, it is alleged, the Government did not give any reply to his representation.

6. The petitioner filed the present petition on 3rd April, 1949, and it is contended on his behalf that under Art. 309 of the Constitution the power to make rules regulating the recruitment and conditions of service of appointment to public services and posts in connection with the affairs of the State was vested in the Rajpramukh as no provision in that behalf had been made by or under an Act of the appropriate Legislature; and that under Art. 320 clause (3) it was obligatory to consult the State Public Service Commission:—

(a) on all matters relating to methods of recruitment to Civil Services and for Civil Posts,

(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability or candidates for such appointments, pro notions or transfers,

but these provisions were not complied with.

7. It was contended that the Rules notified on 23rd August, 1950, in pursuance whereof the Selection Committee was constituted do not appear on their face to have been framed by the Rajpramukh, and, therefore, the proceedings of the Committee and the action taken on the recommendations of the Committee were invalid being in contravention of the provisions of the Constitution. It was further contended that though under Article 233 read with Article 238 the power to appoint persons as District Judges in the State and their postings and promotion is to be made by the Rajpramukh of the State in consultation with the High Court, that power is exercisable only in accordance with the rules and principles referred to in Articles 309 and 320 of the Constitution. It was urged that under Article 234 read with Articles 238 the appointment of persons other than District Judges to the Judicial Service of the State is directed to be made by the Rajpramukh in accordance with the rules made by him in that behalf, after consultation with the State Public Service Commission and the High Court exercising jurisdiction in the State. It was contended that the appointment notified on 23rd April, 1951, were not in accordance with the provisions of Article 234 inasmuch as the rules referred to in the Article were not framed as required by the Article. The petitioner in certain paragraph of his petition urged his competence for appointment as District Judge, the dis-qualifications of certain other officers appointed in Groups A and B and finally urged that he had been reduced in rank without being given an opportunity of showing cause against his reduction. He laid stress on Article XVI of the Covenant, which guaranteed that the conditions of service of the former employees of the covenanting State in Rajasthan shall not be on less advantageous terms than those on which they had been serving in the previous State. It was, therefore, prayed that the selections and appointments made by order, dated 23rd April, 1951, be declared to be null and void.

8. On behalf of the Rajasthan State a reply was submitted that with a view to carry on the judicial administration in the State appointments were made on an Ad Hoc basis, and thereafter the Rajasthan Judicial Service was newly constituted and appointments were made under a valid procedure. It was urged that the Selection Committee referred to in the Notification, dated 23rd April, 1951, was the Committee notified in the Rules and instructions for selection of Government servants and fixation of seniority to Rajasthan Judicial Service published in the Rajasthan Rajpatra of 23rd August, 1952, although no specific reference was made to it. It was urged that the non mention of the name of his Highness the Rajparmukh in the said rules of 23rd August, 1953 did not affect their validity as they had been validity made and duly authenticated by the signatures of Mr. V. Narayan, who was a Secretary to the Government. It was urged that the power of appointment of persons as District Judges vested solely in the Rajpramukh, and its exercise could not be questioned in any manner. Similarly the High Court and Public Service Commission having been duly consulted before the appointment of persons to the Rajasthan Judicial Service, the requirements of Articles 234 and 320 had been properly fulfiled. It was urged that the suitability of the petitioner had been gone into by the Committee constituted on 23rd August, 1950, and the petitioner could have no grievance if he was not selected to a post higher than that to which he was selected. It was urged that the petitioner had no legal right to be appointed as a District and Sessions Judge, and the petition had, therefore, no force.

9. It is obvious that under Article 233 the power of appointment of any person as a District Judge vests in the Rajpramukh and the petitioner or anybody else can have no rights to such appointment. The petitioner's claim, however, is that the selection to posts of Rajasthan Judicial Service had been made in contravention of the provisions of the Constitution, and, therefore, the present selection and appointment should be declared to be null and void, and that if and when a proper recruitment is made he can again stand his chance for recruitment to post higher than that to which had been selected. This brings us to the question whether any invalidity attaches to the selections and appointments notified on 23rd April, 1951.

10. It is not disputed that after the enforcement of the Constitution it is only the Rajpramukh who was invested under Article 309 with the power to make rules regulating the recruitment and the conditions of service of persons appointed to public services and posts in connection with the affairs of the State until provision is made in that behalf by an Act of the Legislature. It is also not disputed that after the enforcement of the Constitution the State Public Service Commission had to be consulted under Article 320 on all matters relating to the methods of recruitment to civil services and for civil posts. The civil services and civil posts are used in Article 320 in contradistinction with military posts. It was also necessary to consult the State Public Service Commission on the principles to be followed for making appointments in civil services and posts and on the suitability of candidates for such appointments. There are, however, general Articles relating to recruitment and condition of service of all civil services. There are, however, two special Articles relating to recruitment of persons to judicial service. These are Articles 233 and 234 read with Art. 236. In respect of District Judges the power of appointment is vested in the Rajpramukh in consultation with the High Court under Article 233 of the Constitution. In respect of appointments to judicial service other than District Judges, Art. 234, while giving the power of appointment to the Rajpramukh prescribes that power has to be exercised in accordance with the rules made by the Rajpramukh after consultation with the State Public Service Commission and the High Court. Judicial service is defined in Art. 236(b) as meaning a service consisting exclusively of persons intended to fill the posts of District Judge and other civil posts inferior to the post of District Judge.

11. Thus Article 233 while authorising the Rajpramukh to make an appointment of any person as District Judge restricts the field of choice either to the existing members of the judicial service recruited in accordance with Article 234 (or to an Advocate or Pleader of a certain standing if recommended by the High Court, which matter is not in dispute here) whatever may have been the powers of the Maharajas of the former covenanting States in the matter, it is absolutely clear that the appointment of persons in the judicial service (other than District Judges) has to be made in accordance with the provisions of Article 234, and from among such members of the judicial service the appointment of District Judges can be made (an exception having been made in the case of Advocate and Pleaders as stated above).

12. Art. 309 is stated to be subject to the other provisions of the Constitution. It is thus subject to Arts. 234 and 233 of the Constitution, Arts. 234 and 233 do not make any mention of the conditions of judicial service, though make provision for the manner of appointment (which includes the recruitment) of judicial service. It is, therefore, clear that, while conditions of judicial service can be prescribed by the Rajpramukh or the Legislature, as the case may be, under Art. 309 the recruitment for the service (other than District Judges) has to be made in accordance with the rules referred to in Art. 234 and from amongst the members of judicial service so recruited the appointment of District Judges can be made under Art. 233 of the Constitution.

13. The Notification of 25th May, 1950, declared the intention of the Government to create the Rajasthan Judicial Service. As stated earlier, the Rules of 23rd August, 1950 notified not only the creation of the Rajasthan Judicial Service, but also fixed the number of senior and junior posts in the service. As stated above, the provisions of Art. 234 were directly applicable to the recruitment for the junior posts and were indirectly applicable to the recruitment of senior posts. The recruitment in Rajasthan having been made in accordance with the Rules published on 23rd August, 1950, their validity now remains to be examined.

14. It was contended by the learned Advocate-General that the rules having been authenticated by the Secretary to the Government according to Business Rules framed under Art. 166 by the Rajpramukh, their validity could not be questioned. The authentication by a Secretary to the Government, however, does not do away with the necessity of promulgating the rules in the name of the Government or in the name of the Rajpramukh, as the case may be. The rules as published in the Rajasthan Gazette of 23rd August, 1950, do no show that they had been framed by the Government. All that appears on the face is that Mr. Narayan, Additional Chief Secretary to the Government of Rajasthan, had framed and promulgated the rules. He was certainly not authorised to frame the rules himself. He could certainly authenticate the rules purporting to have been framed by the Rajprmukh or the Government as the case may be. The learned Advocate-General made a statement that an error had crept in the mode of publication but that the rules bad, as a matter of fact, been framed by the Rajpramukh. In the course of arguments he produced a copy of the proceedings of the Secretariat originating in a general note by Mr. B.N Jha, dated 19-7-50, relating to the recruitment to various services in Rajasthan with a statement that the subsequent proceedings relating to the Rules notified on 23rd August, 1950, in respect of judicial service, were not traceable in the Government record. The document produced is a copy of a note by Mr. B.N Jha, Advisor to the Government of Rajasthan, for the approval of the Hon'ble Chief Minister. It was approved by the Chief Minister, and the Chief Secretary thereafter noted thereon thaf “H.H Rajpramukh has to see (this document) as this relates to an important matter regarding the services. “The Secretary to the Rajpramukh submitted it to his Highness the Rajpramukh “for gracious perusal” and the Rajpramukh noted having “seen” the document. This document does not directly relate to the rules as notified on 23rd August, 1950, and in the affidavit of Mr. Mohan Mukerjee, Additional Secretary to the Government, it is stated that the original paper relating to the rules for selection, and fixation of seniority of Government servants to the Rajasthan Judicial Service indicating the sanction of the Government and the competent authority, meaning thereby the Rajpramukh, were not traceable in spite of all efforts for the last 12 months. Curiously enough the present document said to be the forerunner of the document containing the rules for selection and fixation of seniority of Government servants in the Rajasthan Judicial Service also does not have the authority and sanction of the Rajpramukh behind it. The learned and experienced officers through whose hands this document passed could be presumed to know the difference between ‘approval’ and perusal. While the scheme was submitted to the Chief Minister ‘for approval’ it was only submitted to the Rajpramukh ‘for perusal’. Even this forerunner to the scheme did not thus comply with the provisions of Art. 309 of the Constitution, which were relied on in the present case by the learned Advocate General, as stated earlier, the rules on their face do not show that they had been made by the Rajpramukh, and the burden of proof, therefore, lay on the State to prove that fact. In this they have failed, not only because the original rules which were the sheet-anchor for the recruitment for Rajasthan Judicial Service have been stated to be untraceable but also because even the preliminary rules affecting all services, including the judicial, have been found not to have been framed or approved by the Rajpramukh. The Rajpramukh was only asked to see them and he did so without expressing in sown approval or disapproval of the same. It has also not been approved that the State Public Service Commission was consulted on this method of recruitment and on the principles to be followed in making appointments as required by Art. 320 of the Constitution. But what is more important in the present case, which relates to the recruitment of judicial service, is that there is no averment, much less proof-that the rules noticed on 23rd August, 1950, were framed by the Rajpramukh in consultation with the State Public Service Commission and the High Court, which was a pre-requisite to the appointment of persons to the judicial service, which included the junior as well as the senior posts as discussed above.

15. An argument was raised by the learned Advocate General that even if the rules were not framed as required under Art. 234, the appointment of District Judges by the Rajpramukh could be validly made in exercise of the power conferred under Art. 233 of the Constitution. It has already been observed above that the power conferred upon the Rajpramukh under Art. 233 is not an unfettered one, and the choice is limited to persons recruited under Art. 234(except in the case of advocates and pleaders in certain circumstances).

16. The appointments of District Judges, Senior Civil and Additional Sessions Judges, and Civil Judges and Munsiffs notified by Notification of April, 23, 1951, being contrary to the provisions of Arts. 234 and 233 read with Art. 236 of the Constitution, cannot be upheld. They will only deemed to be on upheld. They will only be deemed to be on an ad hoc basis machinery is created by the Government for recruitment and appointment according to the provisions of the Constitution.

17. The invalidity of their recruitment to the Rajasthan Judicial Service, however, does not affect the jurisdiction exercised by them. It may be pointed out that in order to carry out the judicial administration till such time as the creation of the Rajasthan Judicial Service the appointments were made on an ad hoc basis by Notification of 25th May, 1950, and the subsequent recruitment and appointments as notified on 23rd April, 1951, can only be deemed to be on a similar basis.

18. An ingenious argument was advanced by the learned Advocate General at one stage that this was not at all a case of recruitment but was a case of integration of the judicial service of the various covenanting States. The contention has no force in view of the clear declaration of the creation of a Judicial Service in Rajasthan a new, and further the existing officers were not to be taken into the judicial service as a manner of course. The various categories of persons, who were declared to be qualified, were asked to apply for appointment to Judicial Service, and were to be selected. This was thus a first recruitment to the service, and the provisions of the Constitution regarding recruitment and appointment should have been fulfilled.

19. It is not necessary to give any opinion on the other questions raised by the petitioner can have no right to be selected to any particular post, and his selection and appointment would depend upon the rules which may be framed according to the provisions of the Constitution it may also mentioned that Art. XVI of the Covenant does not guarantee either the retention of any public officer or his continuance on a particular post. All that it says is that if retained in service his conditions will not be less advantageous than these on which he may be serving on the 1st of November, 1948. In the affidavit filed by the Government it has been stated that the amounts of the petitioner fixed by the former Bikaner State have not been affected in spite of his selection as a Civil Judge. It cannot be said that a person holding a particular designated post in a covenanting State should have the same designated post in Rajasthan it would be ridiculous if this were so. Each of the covenanting States must have had its own I.C.P, and if each one of such officers could claim to be the I.C.P of Rajasthan under the provisions of Art. XVI of the Covenant the post of I.C.P would lose all its attributes. What an officer of a former covenanting State can legitimately claim is that if kept in service, his emoluments will not be reduced, and if retired, he will receive compensation or proportionate pension.

20. As a result the petition is allowed, the postings made by Notification, dated 23rd April, 1951 including that the petitioner as Civil Judge, are declared to be on an ad hoc basis and a direction is made to the Government to provide machinery according to the provisions of the Constitution for the first recruitments of this Rajasthan Judicial Service it is unfortunate that the labours of a high powered Committee, which undertook the task of recruitment, should go waste, because of the lack of foresight in the administrative machinery of the Government to follow the provisions of the Constitution in so important a matter as recruitment to the Judical Service of the State.

21. The applicant will get his costs from the State of Rajasthan, counsel's fee being assessed at Rs. 200/-.