Mahesh Chander Verma vs Lt. Governor Of Nct Of Delhi And ...
2002 Latest Caselaw 1312 Del

JUDGMENT

Anil Dev Singh, J.

1. By this Letters Patent Appeal, the appellant questions the order of the learned Single Judge dated 12th September, 2001 whereby the writ petition filed by him seeking the following reliefs was dismissed:-

(a) quashing of the decision of this court on the administrative side declining reservation for other backward classes (OBC) in Delhi Higher Judicial Service and Delhi Judicial Service.

(b) to direct this Court to make provision for reserving 27% posts of Higher Judicial Service for the members of the OBC.

(c) quashing the advertisement dated January 2, 1999 issued by this Court for calling applications for the eleven posts for appointment to the posts in Delhi Higher Judicial Service.

(d) to quash the recommendations for appointment to the post of Delhi Higher Judicial Service in pursuance of the aforesaid advertisement.

2. In order to dispose of the appeal the following facts need to be noticed:-

3. The Registrar of this Court, by an advertisement dated January 2, 1999 invited applications from practicing advocates for filling up 11 vacant posts of Additional District and Sessions Judges in the Delhi Higher Judicial Service. Out of the 11 vacancies, 4 posts were reserved for Scheduled Castes and Scheduled Tribes as per below:-

Scheduled Castes Scheduled Tribes

4. Pursuant to the advertisement the appellant on January 18, 1999 made an application claiming himself to be belonging to the category of other backward classes. Interviews for the aforesaid posts were held from 15th January, 2000 to 31st January, 2000. On February 28, 2000, the appellant made a representation to the Lt. Governor of Delhi with the request to insist upon this Court to make reservation in the Delhi Higher Judicial Service for the members of the other backward classes. Since no reservation was made for persons belonging to other backward classes, the appellant filed a writ petition on 23rd May, 2000, being C.W.P. No. 2839/2000, with the aforesaid prayers. The petition came to be listed on 12th September, 2001 when the same was dismissed by the learned single Judge. The appellant being aggrieved by the order of the learned single Judge preferred a Special Leave Petition, which was dismissed by the Supreme Court on the ground that an appeal from the other of the learned single Judges lies to a Division Bench of this Court. Thereafter on 11th March, 2002, the appellant filed the instant LPA.

5. We have heard learned counsel for the parties. Mr. Mahabir Singh, learned counsel appearing for the appellant points out that by a communication dated 21st December, 1994 the Central Government forwarded copy of its instructions in respect of reservations for other backward classes in service/posts under the Government of India to the Secretary, Law and Judicial Department, Government of National Capital Territory of Delhi. He also points out that same communication was also addressed to the High Court of Delhi. By the aforesaid communication, it was requested that suitable amendments may be carried out in Delhi Higher Judicial Service Rules, 1970 and Delhi Judicial Service Rules, 1970 for providing reservations in respect of persons belonging to other backward classes. Learned counsel submitted that the High Court and the Government of NCT of Delhi were bound to effect the amendments in the Delhi Higher Judicial Service Rules, 1970 and in Delhi Judicial Service Rules, 1970 for providing reservations for other backward classes (OBC) as the request of the Government of India was actually a mandate and was binding on them. It was also contended by Mr. Mahabir Singh that in Rule 22 of the Delhi Higher Judicial Service Rules, reservations have been made for Scheduled Castes and Scheduled Tribes and there was no justification why a similar reservation should not be made for other backward classes. He also contended that Article 16(4) of the Constitution casts a duty and an obligation on the High Court to make reservation for persons belonging to OBC category in Delhi Higher Judicial Service and Delhi Judicial Service. In essence he invoked Article 14 of Constitution for seeking similar benefit for persons belonging to other backward classes. On the other hand, learned counsel for the respondent submitted that Clause (4) of Article 16 is an enabling provision and it does not cast any obligation on the High Court for making provision for reservation in posts in favor of any backward classes of citizens. According to the learned counsel, the aforesaid Article does not confer any right on the petitioner to demand reservation in favor of persons belonging to other backward classes in posts in Higher Judicial Service or Delhi Judicial Service.

6. We have considered the rival submissions of the learned counsel for the parties. Article 16 confers a constitutional right of equality on the citizens of this country in matters relating to employment or appointment to any office under the State. But this does not mean that unequals are to be treated as equals. Goal of Article 16 is confined to ensuring equality among equals and comparables. Due to historical reasons, certain classes suffer from backwardness. In keeping with the interests of such classes, Clause (4) of Article 16, which is an enabling provision, empowers the state to provide for reservations in public services. Such a power can be exercised by the State by enacting an appropriate legislation or by framing Rules under Article 309 of the Constitution or by framing a policy or issuing administrative instructions in this regard.

7. Article 309 empowers the state to frame rules with regard to regulating the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or any state until provision is made by legislative provisions. It is significant to note that Article 309 opens with the words "subject to the provisions of the Constitution" which clearly indicates that the executive is not authorised to frame rules regulating the recruitment and conditions of service which are not in consonance with the provisions of the Constitution. In other words if other provisions of the Constitution occupy the field, Article 309 must step aside and give way. In this context we may refer to Articles 233, 234 and 235 of the Constitution which have been placed in Chapter VI of Part VI of the Constitution.

8. Articles 233 and 234 of Chapter VI deals with the appointments of persons to the District Judiciary. According to Article 233(1) the appointment, posting and promotion of District Judges is to be made by the Government in consultation with the High Court. Article 233(2) makes a provision for direct appointments of advocates and pleaders, having more than seven years experience, as District Judges by the State but this can be done only on the recommendation of the High Court. Similarly Article 234 lays down the procedure and method of recruitment of judicial officers at the entry level. According to Article 234, appointment of persons other than the District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with the Rules made by him in that behalf after consultation with the State public Service Commission and with the High Court exercising jurisdiction in relation to such State.

9. A reading of Articles 233 and 234 of the Constitution leave no manner of doubt that the Governor of a State can make appointments to the posts in the Higher Judicial Service only on the recommendations of the High Court and make Rules for appointment of Judges below the District Judges only in consultation with the High Court. Rules made under Article 309 of the Constitution by the State cannot apply to matters relating to appointments, postings and promotions of persons to the district and subordinate judiciary. What applies to the rules made under Article 309 applies also to the instructions or policies of the State in so far as the field covered by Chapter VI of Part VI of the Constitution is concerned. Even the legislature cannot trench upon the field occupied by Articles 233 and 234.

10. There is also no scope for any doubt regarding the control over the subordinate courts in view of first part of Article 235 of the Constitution which categorically declares that the control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to the persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall vest in the High Court. At this stage we must clarify that the second part of Article 235 of the Constitution permits the State to frame rules dealing with conditions of service of judicial officers including the right to appeal. The State, therefore, can frame rules under Article 309 of the Constitution with regard to the matters not covered by Articles 233 and 234 of the Constitution and first part of Article 235 thereof. To that limited extent, as laid down in B.S. Yadav v. State of Haryana , (1980) Supplement SCC 524, and State of Bihar v. Bal Mukund Saha , , it was held that rules under Article 309 will be applicable to the judicial service.

11. Thus the position which emerges from the aforesaid discussion and the decisions is that the State cannot encroach upon the area reserved by Articles 233, 234 and first part of Article 235 of the Constitution either by legislation or rules or executive instructions. The argument of learned counsel for the petitioner that the letter dated 21st December, 1994 is a mandate which is binding on the High Court and the Governor to make reservation for other backward classes for appointments to the posts of District Judges has no substance at all.

12. Rule 22 of the Higher Judicial Service Rules, 1970 which has been made under Articles 233 and 234 of the Constitution in consultation with the High Court, makes provision for reservations in the posts. Thus Rule 22 reads as under:-

The reservation of posts for the Schedule Castes and Schedule Tribes shall be in accordance with the orders issued by the Central government from time to time.

13. As is clear from the above, reservation in judicial service is allowed, only for Scheduled Castes and Scheduled Tribes candidates. There is no provision for making reservations for candidates belonging to other backward classes. The reservation for other backward classes made by the State cannot ipso facto apply to the posts covered and governed by Articles 233 and 234 of the Constitution. The Supreme Court in State of Bihar v. Bal Mukund Saha , (supra) had an occasion to deal with the question whether the legislature of the 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, in so far 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. The Supreme Court in this regard held as follows:-

67. The plain and grammatical meaning of the words used in Section 4 quoted above unequivocally indicates, that it is a law relating to recruitment/appointment and as such, once it is held that the power of recruitment in respect of Judicial Services is provided for in Article 234, the State Legislature in the garb of making law in consonance with Article 16(4) cannot encroach upon Article 234. In the course of hearing an elaborate argument had been advanced that reservation is intended to fulfill the right of equality under Article 16(1) read with Article 16(4) and the question whether there has been adequate representation of a particular backward class of citizens has been left to the satisfaction of the State Government in Article 16(4) and, therefore, the State Legislature cannot be denuded of its right to make such law to fulfill the aforesaid constitutional mandate. We really fail to understand as to why the Legislature would feel that the Governor, when framing rules in consultation with the High Court and the Public Service Commission under Article 234 will not take into consideration the constitutional mandate under Article 234 will not take into consideration the constitutional mandate under Article 16(1) or Article 16(4). In fact in the case in hand in the Bihar Judicial Service Recruitment Rules, 1955, reservations have been provided for Scheduled Caste and Scheduled Tribe candidates and the Full Court of the Patna High Court has also adopted the percentage of reservation for these candidates as per the notification of the State Government. So far as the Superior Judicial Service is concerned, it is of course true that there has been no provision for reservation. But such provision could always be made by the Governor in consultation with the High Court, also bearing in mind the mandate of Article 335, namely "maintenance of efficiency of administration". It is indeed painful to notice, sometimes law-makers unnecessarily feel that the High Court or the Judges constituting the High Court are totally oblivious to the constitutional mandate underlying Article 16(1) and 16(4) while considering the case of recruitment to the Judicial Services of the State. The Judiciary is one of the three limbs of the Constitution and those who are entrusted with the affairs of administration of justice must be presumed to have greater expertise in understanding the constitutional requirements. In his view of the matter the contention of Mr. Dwivedi, appearing for the State of Bihar is unfounded.

68. In the aforesaid premises, in my considered opinion, the provisions of the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 have no application to the recruitment of judicial officers in the State of Bihar.

14. Learned counsel for the appellant referred to the decision of the Supreme Court in Indra Sahani v. Union of India and Ors. , (1992) Supplement SCC 215, to contend that an executive order making provision under Article 16(4) is enforceable and even a High Court would be bound to give effect to it. We have considered the submission of learned counsel for the appellant. The reliance placed on the judgment in Indra Sahani v. Union of India (supra) is of no avail to the appellant. A reading of the judgment leaves no manner of doubt that such a proposition was not laid down by the Supreme Court.

15. Article 50 provides that there shall be a separate judicial service free from executive control. This Article is part of a constitutional scheme for establishment of an independent judiciary. In this context we may cite with advantage the decision of the Supreme Court in Chandra Mohan v. State of Uttar Pradesh and Ors., , where it was inter-alia held as follows:-

"..... The Indian Constitution, though it does not accept the strict doctrine of separation of powers, provides for an independent judiciary in the States: It constitutes a High Court for each State, prescribes the institutional conditions of service of the Judges thereof, confers extensive jurisdiction on it to issue writs to keep all tribunals, including in appropriate cases the Governments, within bounds and gives to it the power of superintendence over all courts and tribunals in the territory over which it has jurisdiction. But the makers of the Constitution also realised that "it is the Subordinate Judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of the superior Judges." Presumably to secure the independence of the judiciary from the executive, the Constitution introduced a group of articles in Ch. VI of Part VI under the heading "Subordinate Courts". But at the time the Constitution was made, in most of the States the magistracy was under the direct control of the executive. Indeed it is common knowledge that in pre-independence India there was a strong agitation that the judiciary should be separated from the executive and that the agitation was based upon the assumption that unless they were separated, the independence of the judiciary at the lower levels would be a mockery. So article 50 of the Directive Principles of Policy states that the State shall take steps to separate the judiciary from the executive in the public services of the States. Simply stated, it means that there shall be a separate judicial service free from the executive control."

16. In the light of the aforesaid discussion, we hold that it is for the High Court to decide whether any reservation for persons belonging to O.B.C. category ought to be made in the judicial posts. Neither Article 14 comes into play for not providing for reservation for O.B.Cs. in judicial posts even though reservation has been made in Rule 22 of the Delhi Higher Judicial Service Rules, 1970, for persons belonging to SC/ST categories, nor the reservation made by the State automatically applies to the judicial posts. The matter of reservation in judicial service must be left to the decision of the High Court.

17. In view of the foregoing, the appeal is dismissed. No costs.