Holding

Amendments to the Bihar judicial service rules providing reservation without the constitutionally required consultation with the High Court are illegal and void.

Summary

The State of Bihar amended its judicial service rules in 2009 to introduce reservation for various backward classes, but the High Court quashed the amendments on the ground that the State had not undertaken the constitutionally mandated consultation with the High Court under Articles 233 and 234. The Supreme Court affirmed that the consultation was inadequate, declaring the amended rules illegal and unconstitutional. It reiterated that while the State may formulate reservation policy, it must do so only after meaningful consultation with the High Court, furnishing its assessment of backward class representation and desired reservation percentages. The Court directed that the pending recruitment process be completed expeditiously, with specific instructions for appointing candidates affected by the litigation. The appeals were disposed of, and the special leave petitions were dismissed.

Issues considered

The constitutionality of amending judicial service rules to provide reservation without proper consultation with the High Court as required by Articles 233 and 234 of the Constitution
Whether the consultation undertaken by the State satisfied the standards prescribed by the Constitution
Whether reservation for backward classes can be incorporated in the judicial services of a State
The procedure to be followed for filling the large number of judicial vacancies pending the litigation

Legislation cited

Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991s. Section 4

Subjects

reservationjudicial serviceArticles 233Articles 234consultationbackward classesconstitutional lawservice rulesvacancy filling

Judgment

[2016] 8 S.C.R. 803

GOVT. OF BIHAR AND ORS. ETC. ETC. A
v.
DAYANAND SINGH ETC. ETC.
(Civi!AppealNos. 9921-9923 of2016)
SEPTEMBER 29, 2016 B
[J, CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.]
Judicial Service: Reservation - Service rules amended by
appellant-State government providing for reservati0'!1 of posts in
iudicial services in favour of backward classes - High Court, by
impugned order, quashed the impugned Rules mainly on the ground
c
that the amendments were not preceded by appropriate consultation
with the High Court as contemplated u/Arts. 233 and 234 - On
appeal, held: The consultation which preceded the amendments
certainly fell short of the requisite standards of consultation
necessary in the context - Impugned Rules declared illegal and D
unconstitutional - There is a huge number of vacancies in the
iudicial services in the appellant-State, however, in view ofpendency
of the present litigation, the process for filling up of vacancies with
respect to recruitment process which had started in the interregnum
but was put on hold, be taken up expeditiously - Bihar Superior
E
Judicial Service Rules, 1951 - r.4A - Bihar Civil Services (Judicial
Branch) (Recruitment) Rules, 1965 - r.3A - Constitution of India -
Arts. 233 and 234.
Reservation - In Judicial Service - Role/power of Executive
vis-a-vis Judiciary - Constitutional imperatives and limitations -
F
Discussed - Held: Under the scheme of the Constitution, Executive
is not the only authority to formulate a policy for reservation - It is
under a constitutional obligation to consult the High Court, both
for framing and giving effect to such policy.
Disposing of the appeals, the Court
G
HELD: 1. In 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
H
803
804 SUPREME COURT REPORTS [2016] 8 S.C.R.

A in favour of various backward classes of citizens.[Para 6](809-B-
C]
2.1 The High Court quashed the two notifications of the
State of Bihar by which the impugned Rules were made. The
decision rested mainly on the finding that the amendments were
B not preceded by appropriate consultation with the High Court
contemplated under Articles 233 and 234. [Para 7][809-C-D]
2.2 The High Court was right in holding that the consultation
which preceded the amendments certainly fell short of the
requisite standards of consultation necessary in the context and
c that the two impugned Rules are required to be declared illegal
and unconstitutional. [Para 10][810-E-F]
3.1 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
D 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 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. [Para
E 15][811-F-G)
State of Bihar & Another v. Bal Mukund Sah & Others
(2000) 4 SCC 640 : 2000 (2) SCR 299 - relied on.
3.2 The assessment of the existence of the need for
providing reservation and matters incidental thereto is essentially
F 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, viz. (i) the identification of the existence of backward
classes in the State, (ii) the formation of the opinion that such
G 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 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
H made on objective and rational considerations consistent with
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 805
SINGH ETC. ETC.

the constitutional obligations of both the Executive and Judicial A
branches of the State. It is held that the State of Bihar is entitled
to initiate the process of c01,1sultation 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 State should
B-
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 C
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 rules providing for reservation. D
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. (Paras 16,
17][812-B-H; 813-A] E
Supreme Court Advocates-on-Recod Association &
Qthers v. Union of India (1993) 4 SCC 441 : 1993 (2)
Suppl. SCR 659 - referred to.
3.3 In view of the existence of huge number of vacancies
in the JUDICIAL SERVICES, the whole exercise must be F
completed expeditiously preferably by the 1" 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 30'h June, 2017. [Para 18][813-B]
Indra Smvhney v. Union of India and Others (2000) 1 G
SCC 168 : 1999 (5) Suppl. SCR 229 ..:.. referred to.
Case Law Reference
1999 (5) Suppl. SCR 229 referred to Para 5
2000 (2) SCR 299 relied on Paras 15 and 16 H
806 SUPREME COURT REPORTS (2016] 8 S.C.R.

A 1993 (2) Suppl. SCR 659 referred to Para 17
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9921-
9923 of2016.
From the Judgment and Order dated 10.11.2014 of the High Court
ofJudicature at Patna in C. W. J.C. Nos. 14677/2009, I 0226/2010 and
B 7508/2011.
WITH
C. A. No. 9924 of 2016.
SLP(C) Nos. 11363-11364, 14625-14626, 22190 of2015
c P.S. Patwalia, ASG, Ajit Kumar Sinha, Sr. Adv., Samir Ali Khan,
Maurya Vijay Chandra, Sriyan Sinha, Shashank Singh, Prem Prakash,
Shashank Kr. Saurav, D. K. Devesh, Gautam Singh, Saket Singh, S.K.
Roshan, Ritesh Khatri, Nitin Kr. Thakur, Ad vs. for the Appellants.
D Amrendra Sharan, Pravin H. Parekh, Guru Krishna Kumar, Sr.
Advs., Kshatrshal Raj, Vishal Prasad, Ms. Aparajita Mukherji, Mis.
Parekh & Co, Navin Prakash, Sanjay Kumar Dubey, Rakesh Kumar
Tiwari, Ms. Shuchi Singh, Devendra Kr. Shukla, Anil K. Mishra,
Chakrapani, Anurag Singh, Yadav Narender Singh, Krishna Kant Dubey,
Upendra N. Mishra, Satyendra Srivastava, Vivek Vardhan, Raj iv Nandan
E Dwivedi, Chakrapani, Anurag Singh, Anil Kumar Mishra, Advs. for the
Respondent.
Rake3h Kumar, Petitioner in person
The following Order of the Court was delivered
F ORDER
SLP(C) Nos. I 0163-10165/2015 AND SLP(C) No. I 1365/2015
I. Leave granted.
:: These appeals are preferred aggrieved by a common judgment
G dated 10.11.2014 passed in a batch of writ petitions by the High Court of
Judicature at Patna. Civil Appeals arising out ofSLP (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. petitioners and other respondents
therein.
H
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 807
SINGH ETC. ETC.

3. The controversy in these appeals is with respect to the authority A
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).
B
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 ofBihar made an enactment called Bihar Reservation ofVacancies
in Posts and Services (for scheduled castes, scheduled tribes and other C
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 D
was examined by this Court in State ofBihar & A11other v. Bal Muku11d
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 E
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
ofBihar 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 F
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 G
part and parcel of the Judiciary of the State ofBihar 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 H
808 SUPREME COURT REPORTS [2016] 8 S.C.R.

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.
B "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
c 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
D regarding recruitment and appointment to the posts of
District Judiciary and Subordinate Judiciary as permitted
and envisaged by Articles 233 and 234 of the Constituti,on.
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
E 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 GovernorofBihar
to make appropriate rules providing for reservation of persons in
F 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
G 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)."
H
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 809
SINGH ETC. ETC.

It goes without saying that the Governor while making such A
provision for reservation is bound by the various principles of law
regulating the exercise of such power. The relevant principles are
enunciated in Indra Saw/mey case1 etc.
6. On 2S 1h June, 2009, the State ofBihar amended the Rules framed
under the proviso to Article 309 known as (i) Bihar Superior Judicial B
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 various
backward classes of citizens. Both the newly introduced Rules are
substantially similar2.
c
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 notifications 3 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 D
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 E

1
Indra Sawhney v. Cnion of India & Others, (2000) I SCC 168

" '"4A - the Bihar Reservation of Vacancies in Post and Services (for Scheduled
Castes, Scheduled Tribes and Other Backward Classes) Act 199 L (as amended F
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)."
G

•·The impugned Notification No.6067 dated 25'h June 2009 issued in respect
of the Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955,
and the Notification No.6069 dated 25'h June 2009 issued in respect of the
Bihar Superior Judicial Servke Rules, 1951 are quashed and set aside.
Legal consequences shall follow." H
810 SUPREME COURT REPORTS [2016) 8 S.C.R.

A 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 ofjustice."
B
8. Apart from that, the High Court made various other observations
in the judgment regarding the manner in which the 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
C 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
D 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
E 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
F that the two impugned Rules are required to be declared illegal and
unconstitutional. We accordingly confirm the 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
G 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 ofBihar. For the present, we are
only concerned with the steps taken in the years 2009 and 2012.
12. In the year 2009, the State ofBihar initiated proceedings for
H
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYAN AND 811
SINGH ETC. ETC.

filling up 217 posts and in the year 2012, for filling up of another 118 A
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 B
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 issued but only 88 have in fact joined and
other 4 did not join the service.
c
14. We are informed that, in the interregnum, on 13.1.2016, another
advertisement calling for applications from eligible candidates for filling
up of206 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 D
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 ofjunior civil judges are lying vacant and appropriate
steps are required to be taken to fill up such posts. Jn substance, a large E
number of posts in the JUDICIAL SERVICE are vacant.
IS. 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 F
State of Bihar. However, under the scheme of the Constitution, the
Executive is not the only authority to formulate 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 G
the context of the State of Bihar, the law is declared in B"I Mukund
case (supra).
16. This Court observed in B"I Mukund c"se that a constitutional
body like the High Court cannot be believed to be oblivious to "the need
H
812 SUPREME COURT REPORTS [2016] 8 S.C.R.

A 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 ifnecessary in appropriate cases
by resorting to the enabling provision under Article 16(4 ). "
B 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
c 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 be made with reference to the JUDICIAL SERVICE consistent with
the obligation to maintain the efficiency of the JUDICIAL_SERVICES.
D Such assessments are required to 5e 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 ofBihar is entitled to initiate
the process of consultation by furnishing necessary information on its
E 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
F 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
G 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 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
H
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 813
SINGH ETC. ETC.

governing the exercise of such power. Such an exercise is required to A
be undertaken " ... not to detem1ine 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"".
18. In view of the existence of huge number of vacancies in the
JUDICIAL SERVICES, it is desirable that the whole exercise must be B
completed expeditiously preferably by the I" 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 30•h June,
2017.
19. We are left with a delicate problem. Some of the candidates 5 c
belonging to certain backward classes would have been entitled to get
appointed pursuant to the 2012 notification, ifthe 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 that (i) a large number of
vacancies exist in the JUDICIAL SERVICE, (ii) the question of D
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 E
fill up 118 vacancies). Their appointment shall be appropriately adjusted
against the vacancies which are the subject matter ofrecruitment 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 F
Rule 3A) for all purposes. The appeals are accordingly disposed of.
SLP(C) Nos.11363-11364/2015AND SLP(C) Nos. 14625-14626/2015
20. It is agreed that in view of the above order passed in Civil
Appeals arising out ofSLP(C) No.10163-10165of2015, nothing survives G
in these special leave petitions. These petitions are disposed of
accordingly.

'Supreme Court Advocates-on-Record Association & Others v. Union of India. (I 993)
. 4 sec 441, para 438
' Their exact number is not very certain - it is something between 20 or 23. H
814 SUPREME COURT REPORTS [2016] 8 S.C.R.

A 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
B 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 ofthe petitioner in the High Court, we deem it
appropriate not to examine the matter but leave it open to the petitioner
C 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.
23. The special leave petition stands disposed of accordingly.

D
Divya Pandey Matters disposed of.