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Reportable  IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).  9921-9923 OF 2016 (Arising out of SLP (Civil) No(s).10163-10165 of 2015)

GOVT. OF BIHAR AND ORS. ETC. ETC.  …          Appellant(s)

                               VERSUS

DAYANAND SINGH ETC. ETC.                  …     Respondent(s)

WITH CIVIL APPEAL NO.  9924  OF 2016

(Arising out of SLP (Civil) No.11365 of 2015)

SLP (Civil) No(s).11363-11364 of 2015

SLP (Civil) No(s).14625-14626 of 2015

SLP (Civil) No(s).22190 of 2015

O R D E R

SLP(C) Nos. 10163-10165/2015 AND SLP(C) No. 11365/2015

1. Leave granted.

2. These appeals are preferred aggrieved by a common judgment

dated 10.11.2014 passed in a batch of writ petitions by the High

Court of Judicature at Patna.  Civil Appeals arising out of SLP (C)

Nos. 10163-10165/2015 are filed by the State of Bihar.  Other Civil

Appeals  arising  out  of  SLP(C)  No.11365/2015  etc.  are  filed  by

various  parties  to  the  above-mentioned  batch  of  petitions,  i.e.

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petitioners and other respondents therein.

3. The  controversy  in  these  appeals  is  with  respect  to  the

authority of the State of Bihar to provide for reservation in favour of

persons  belonging  to  various  backward  classes  of  citizens

contemplated  under  Article  16(4)  of  the  Constitution  such  as

SC/ST/OBC etc. in the superior and subordinate judicial services

of the State of Bihar (hereafter collectively referred to as JUDICIAL

SERVICES).

4. We are informed that prior to 1991 under the relevant service

rules  applicable  to  JUDICIAL  SERVICES,  certain  posts  were

reserved  in  favour  of  citizens  belonging  only  to  SC  and  ST

categories,  the  details  of  which  may  not  be  necessary  at  this

juncture.  In the year 1991, the State of Bihar made an enactment

called  Bihar  Reservation of  Vacancies  in  Posts  and Services  (for

scheduled  castes,  scheduled  tribes  and  other  backward  classes)

Act,  1991.   The  said  Act  provided  for  reservation  of  certain

percentage of posts in favour of various specified classes of citizens

in various services under the State.  Question arose whether the

said Act would apply and the benefit of reservation provided therein

would extend to the JUDICIAL SERVICES.  Eventually, the question

was examined by this Court in State of Bihar & Another v.  Bal

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Mukund Sah & Others, (2000) 4 SCC 640. This Court, on a literal

construction  of  the  Act,  opined  that  the  application  of  the  Act

extended even to the JUDICIAL SERVICES.   

“27.  …………  It is difficult to appreciate this line of reasoning on the express language of the relevant provisions of Section 4 read with the definition provisions.  It  becomes obvious that the term any office of the Judiciary of the State of Bihar would naturally include  not  only  ministerial  staff  but  also  officers,  including Presiding Officers of courts comprised in the Judiciary of the State. Once that conclusion is reached on the express language of the relevant provisions of the Act, it cannot be held that the thrust of Section  4  would  not  apply  to  govern  reservation  for  direct recruitment to the posts of Presiding Officers in the District Courts as well as courts subordinate thereto, as all of them will form part and parcel of the Judiciary of the State of Bihar and will have to be treated as holders of offices in the State Judiciary.”

However, this Court further held that such a construction of the Act

would  render  the  Act  unconstitutional.   The  reason  for  such  a

conclusion is that having regard to the scheme of the Constitution

of India dealing with the JUDICIAL SERVICES, the State Legislature

would  be  incompetent  to  make  any  law  dealing  with  the

appointment of judicial officers.  Appointment of judicial officers is

to be made only in accordance with the prescription contained in

Article 233 and 234.

“36. It  becomes,  therefore,  obvious  that  no  recruitment  to  the post  of  a  District  Judge can be  made by  the  Governor  without recommendation from the High Court. Similarly, appointments to Subordinate Judiciary at grass-root level also cannot 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. Any statutory provision bypassing consultation with the High Court and laying down a statutory fiat as is tried to be done by enactment of Section 4 by the Bihar Legislature has got to be held to be in direct conflict with the complete Code regarding recruitment and appointment to the posts of District Judiciary and

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Subordinate Judiciary as permitted and envisaged by Articles 233 and 234 of the Constitution. Impugned Section 4, therefore, cannot operate in the clearly earmarked and forbidden field for the State Legislature so far as the topic of recruitment to District Judiciary and Subordinate Judiciary is concerned. That field is carved out and taken out from the operation of the general sweep of Article 309.”

5. This Court further held that it is open to the Governor of Bihar

to make appropriate rules providing for reservation of persons in

JUDICIAL SERVICES in accordance with law and in consultation

with the High Court.

“37. …………… it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court  and by framing appropriate rules for  recruitment to Judiciary at grass-root level  as enjoined by Article 234 and can only  act  on  recommendation  by  the  High  Court  for  direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233 sub-article (2).”

It  goes  without  saying  that  the  Governor  while  making  such

provision for reservation is bound by the various principles of law

regulating the exercise of such power.  The relevant principles are

enunciated in Indra Sawhney case1 etc.

6.  On 25th June,  2009, the State of  Bihar amended the Rules

framed under the proviso to Article 309 known as (i) Bihar Superior

Judicial  Service  Rules,  1951,  (ii)  Bihar  Civil  Services  (Judicial

Branch) (Recruitment) Rules, 1965 by introducing Rule 4A and Rule

3A  respectively  providing  for  reservation  of  posts  in  favour  of

1    Indra Sawhney v. Union of India & Others, (2000) 1 SCC 168 4

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various backward classes of citizens.   Both the newly introduced

Rules are substantially similar2.

7. The above mentioned two Rules came to be challenged in a

batch of writ petitions in which the judgment under appeal came to

be  rendered.   By  the  judgment  under  appeal,  the  High  Court

quashed the two notifications3 of the State of Bihar by which the

impugned Rules were made.   The decision rested mainly  on the

finding  that  the  amendments  were  not  preceded  by  appropriate

consultation with the High Court contemplated under Articles 233

and 234.

“In  my  view,  the  correspondence  relied  upon  by  the  State Government can hardly be said to be consultation in the real sense of the word.  Writing letters and displaying the earnestness of the Government for providing desired reservation in Judicial Services cannot  be  said  to  be  consultation.   The State  Government  was required to pay attention to the opinion of the High Court keeping in  view the  general  representation of  different  classes,  the  total strength of the judicial officers and the maintenance of the high standards in respect of dispensation of justice.”

8. Apart  from  that,  the  High  Court  made  various  other

observations in the judgment regarding the manner in which the

2. “4A – the Bihar Reservation of Vacancies in Post and Services (for Scheduled Castes, Scheduled

Tribes and Other Backward Classes) Act 1991, (as amended from time to time shall also apply to direct recruitment to the post Additional District and Sessions Judge.”

“3A – The Bihar Reservation of Vacancies in Post and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act 1991, (as amended from time to time) shall also apply to direct recruitment to the post Civil Judge (Junior Division).”

3 . “The impugned Notification No.6067 dated  25th June 2009 issued in  respect  of  the  Bihar  Civil Services (Judicial Branch) (Recruitment) Rules, 1955, and the Notification No.6069 dated 25 th June 2009 issued in respect of the Bihar Superior Judicial Service Rules, 1951 are quashed and set aside.  Legal consequences shall follow.”

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amendments were made and the desirability of such amendments.

Such observations, in our opinion, are not warranted in the context

of the issue before Court.   The High Court ought to have kept in

mind that it was the legislative decision of the State which was the

subject  matter  of  dispute  before  it,  while  the  High  Court

undoubtedly has the jurisdiction to determine the constitutionality

of  the  ‘law’  the  motives  behind  the  law  and  the  wisdom of  the

legislative body are not amenable to the judicial review.

9. We have heard learned Additional Solicitor General appearing

for the State of Bihar, learned senior counsel appearing for the High

Court  and  the  learned  counsel  appearing  for  various  contesting

parties  in  detail.  We have  also  perused the  correspondence that

took place between the State Government and the decisions taken

by the High Court on administrative side and the material  relied

upon by the High Court for such decisions.   

10. We agree with the conclusion recorded by the High Court that

the  consultation  which  preceded  the  amendments  certainly  fell

short of  the requisite standards of  consultation necessary in the

context.  We do not see any reason to interfere with the conclusion

of the High Court that the two impugned Rules are required to be

declared illegal and unconstitutional.  We accordingly confirm the

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conclusion.  

11. However, 25 years passed by in the process of this prolonged

litigation. The first round commenced sometime in the year 1991

with writ  petitions  which eventually  culminated in  Bal Mukund

case.   The  second  round  with  the  amendment  to  the  Rules

governing the  JUDICIAL SERVICES in the year  2009.   However,

during the said quarter century, steps were taken from time to time

to fill up vacancies that arose in the JUDICIAL SERVICES of the

State of Bihar.  For the present, we are only concerned with the

steps taken in the years 2009 and 2012.  

12. In the year 2009, the State of Bihar initiated proceedings for

filling up 217 posts and in the year 2012, for filling up of another

118 posts of the subordinate judicial service.

13. Insofar as the recruitment process initiated in the year 2009

for  filling up 217 posts  is  concerned,  it  is  agreed (on all  hands)

before us that the process is complete and the posts are filled up.

Insofar as 2012 recruitment for 118 posts is concerned, though the

selection process is complete, only 88 successful candidates have

been appointed (because of various orders, whether interim or final

of  the  High  Court  and  this  Court).   We  are  also  informed  that

appointment  orders  in  favour  of  92  successful  candidates  were

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issued but only 88 have in fact joined and other 4 did not join the

service.

14. We  are  informed  that,  in  the  interregnum,  on  13.1.2016,

another  advertisement  calling  for  applications  from  eligible

candidates for filling up of 206 posts of Junior Civil Judges came to

be issued by the State of Bihar.  We are informed that preliminary

examination for shortlisting the candidates eligible for taking the

final  examination  for  the  recruitment  process  has  already  been

conducted.  But in view of the pendency of the present litigation,

the process is put on hold.  We are also informed that subsequent

to  the  above-mentioned  notification,  some  more  vacancies  arose

either by creation of new posts or otherwise. In all, as on today, 406

posts of junior civil judges are lying vacant and appropriate steps

are required to be taken to fill up such posts.  In substance, a large

number of posts in the JUDICIAL SERVICE are vacant.

15. From the  submissions made before  us,  it  is  clear  from the

stand of the Government of Bihar that as a matter of policy there is

a  need  for  providing  appropriate  reservations  in  favour  of  the

various  backward  classes  of  citizens  even  in  the  JUDICIAL

SERVICES of the State of Bihar. However, under the scheme of the

Constitution, the Executive is not the only authority to formulate

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such  policy  or  to  give  effect  to.    The  Executive  is  under  a

constitutional obligation to consult the High Court both for framing

and  giving  effect  to  such  policy  of  providing  reservations  in  the

JUDICIAL SERVICES.   The legal position in this regard is made

clear on more than one occasion by this Court.  In the context of

the State of Bihar, the law is declared in Bal Mukund case (supra).

16. This Court observed in Bal Mukund case that a constitutional

body like the High Court cannot be believed to be oblivious to “the

need for a scheme of reservation”.  

“32. …….. It is not as if that the High Courts being constitutional functionaries  may  be  oblivious  of  the  need  for  a  scheme  of reservation if  necessary  in  appropriate  cases  by  resorting to  the enabling provision under Article 16(4).”

The  assessment  of  the  existence  of  the  need  for  providing

reservation  and  matters  incidental  thereto  is  essentially  the

function of the Legislature or the Executive, as the case may be,

and in the realm of policy choice.   But the power to frame the

policy  is  structured  by  certain  constitutional  imperatives  and

limitations.    They  are  (i)  the  identification  of  the  existence  of

backward classes in the State, (ii) the formation of the opinion that

such  classes  are  not  adequately  represented  in  the  JUDICIAL

SERVICES of the State, (iii) the determination of the question as to

what would be the appropriate percentage of reservation required to

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be made with reference to the JUDICIAL SERVICE consistent with

the  obligation   to  maintain  the  efficiency  of  the  JUDICIAL

SERVICES.  Such assessments are required to be made on objective

and  rational  considerations  consistent  with  the  constitutional

obligations  of  both  the  Executive  and  Judicial  branches  of  the

State.  

17. We, therefore, hold that the State of Bihar is entitled to initiate

the process of consultation by furnishing necessary information on

its  own assessment regarding the  need to  provide reservation in

favour of specified backward classes in the JUDICIAL SERVICE of

the State of Bihar.  The existence of backward classes in the State

of Bihar and their identity is not in dispute.  The State should also

furnish  its  own  assessment  regarding  the  inadequacy  of

representation of the backward classes in the JUDICIAL SERVICES

of  the  State  and  the  desirable  percentage  of  reservation  in  the

JUDICIAL  SERVICES  and  the  relevant  material  on  the  basis  of

which the assessment is made.  The High Court should thereupon

consider the material furnished by the State, make an appropriate

assessment of the correctness of the proposal made by the State

and convey  its  opinion and the reasons for  such opinion to  the

State.  If there is a consensus of opinion between the State and the

High Court, the State would be at liberty to make the appropriate 10

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rules providing for reservation.  In the event of  any difference of

opinion,  the Government must record reasons for  its  inability  to

accept  the  conclusions  communicated  by  the  High  Court  and

proceed to amend the Rules in accordance with law keeping in mind

the various constitutional principles governing  the exercise of such

power.  Such an  exercise  is  required  to  be  undertaken  “...  not  to

determine who between them is entitled to greater importance or is to take the

winners  prize  at  the  end  of  the  debate.   The  task  (before  us)  has  to  be

performed with this perception”4.   

18. In view of the existence of huge number of vacancies in the

JUDICIAL SERVICES, it is desirable that the whole exercise must

be completed expeditiously preferably by the 1st of January, 2017.

Thereafter, the process for filling up of the vacancies in the judicial

service  shall  be  taken  up  expeditiously  by  all  concerned  and

completed by 30th June, 2017.

19. We are left with a delicate problem.  Some of the candidates5

belonging to certain backward classes would have been entitled to

get  appointed  pursuant  to  the  2012 notification,  if  the  Rule  3A

(referred to supra) were to be valid.  In view of the fact that the rule

itself is declared to be illegal, they are not entitled as of right to be

appointed against any reserved quota.  Having regard to the facts

4   Supreme Court Advocates-on-Record Association & Others v. Union of India, (1993) 4 SCC 441, para 438 5   Their exact number is not very certain - it is something between 20 or 23.

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that  (i)  a  large  number  of  vacancies  exist  in  the  JUDICIAL

SERVICE, (ii) the question of reservation is lingering for a quarter

century,  (iii)   the  remoteness  of  the  possibility  of  the  State

completely failing to establish the need to provide for reservations in

JUDICIAL SERVICES, we deem it appropriate to direct that these

candidates be appointed to the service against the vacancies which

arose subsequent to the 2012 notification (seeking to fill  up 118

vacancies).   Their  appointment  shall  be  appropriately  adjusted

against the vacancies which are the subject matter of recruitment

under the notification dated 13.01.2016 (referred to supra) and the

vacancies  which  arose  thereafter.   The  candidates  appointed

pursuant to the above directions would take their place after the

118 candidates (some of whom are already appointed and other to

be appointed without reference to Rule 3A) for all purposes.  The

appeals are accordingly disposed of.

SLP (C) Nos.11363-11364/2015 AND SLP (C) Nos. 14625-14626/2015

20. It  is  agreed that  in view of  the above order passed in Civil

Appeals  arising  out  of  SLP(C)  No.10163-10165  of  2015,  nothing

survives  in  these  special  leave  petitions.   These  petitions  are

disposed of accordingly.

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SLP (C) No. 22190/2015

Delay condoned.

21. The petitioner (an Advocate) appeared in person before us. In

the judgment under appeal, certain adverse observations are made

against the petitioner.  The petitioner, we are informed, appeared

before  the  High  Court  in  one  of  the  matters  and  made  certain

submissions before the High Court.   

22. Having  regard  to  the  fact  that  the  observations  are  made

regarding the conduct of the petitioner in the High Court, we deem

it appropriate not to examine the matter but leave it open to the

petitioner  to  approach  the  High  Court  with  an  appropriate

application praying that the observations be expunged.  It is open to

the High Court to consider such application in accordance with law.

The special leave petition stands disposed of accordingly.

…..…..................................J.                                              (J. CHELAMESWAR)

……....................................J.    (ABHAY MANOHAR SAPRE)

NEW DELHI SEPTEMBER 29, 2016.

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