Holding

A writ of mandamus cannot be issued to compel the executive to amend subordinate legislation; such direction is impermissible because the rule‑making power under Section 110 of the Jammu & Kashmir Constitution is legislative in nature.

Summary

Employees of the Jammu & Kashmir High Court sought a 25% reservation in the Jammu & Kashmir Civil Service (Judicial) recruitment rules for promotion/transfer from positions such as Assistant Registrars, Readers, Court Officers and Librarians. The High Court, after consulting the Public Service Commission and a Vigilance Commissioner, recommended amending Rule 4 of the 1967 recruitment rules and directed the State Government to implement the amendment within three months. The State Government failed to act, leading to a writ petition which the Single Judge of the High Court entertained, issuing a mandamus directing the Government to consider and effect the amendment. On appeal, the Supreme Court held that the power to frame service rules under Section 110 of the Jammu & Kashmir Constitution is legislative in nature and that a court cannot compel the executive to make a specific amendment through mandamus. Consequently, the direction to the State Government was deemed impermissible, the High Court order was set aside and the writ petition dismissed. The appeal was allowed, allowing the State Government to reconsider the amendment without judicial compulsion.

Issues considered

Whether a writ of mandamus can be issued directing the State Government to amend service rules as recommended by the High Court.
Whether the rule‑making power under Section 110 of the Jammu & Kashmir Constitution is legislative and thus beyond the scope of mandamus.
Whether consultation under Section 110 requires concurrence of the High Court and the Public Service Commission.
Whether reservation of posts in the judicial service is permissible under the recruitment rules.

Legislation cited

Constitution of Indias. Article 226, s. Article 234
Constitution of Jammu & Kashmirs. 109, s. 110, s. 111

Subjects

mandamussubordinate legislationrule‑making powerconsultationjudicial service recruitmentreservationJammu & Kashmir Constitutionservice rules

Judgment

A STAIB OF JAMMU AND KASHMIE.
v.
A. R. ZAKKI AND ORS.

DECEMBER 6, 1991.
•
B [L. M. SHARMA, J. S. VERMA ANDS. C. AGRAWAL, JJ.]

Constitution of Jammu & Kashmir, 1956: ss. 103, 109,110,111 :-

Amendments proposed by High Court to Jammu & Kashmir Civil Service
C (Judicial) Recruitment Rules, 1967:-Whether can be got incorporated by
issuance of a writ.

Constitution of India, 1950: Articles 234, 226: Subordinate Judiciary-
Power of Governor to frame Service Rules-Co11$ultation with High Courl-:-
Purpose and scope of.
D
Service Law :

Jammu & Kashmir Civil Service (Judicial) Recruitment Rules, 1967:
r.4:--State Judiciary-Recruitment through competitive examination-Provi-
E sion for promotion/transfer of employees of High Court-Propriety of.

Promotion-Creation of promotional avenue-Need and purpose oj--
Cl.ubbing of unequal posts of different Services having dissimilar nature of
work-Whether permissible.
F Administrative_ Law :Delegated Legislation-State Judiciary-Power of
Governor to frame Service Rulea--Whether legislative in nature-Writ petilion
to get Service Rules amended-Maintainability.

The respondents, employees of the Jammu & Kashmir High Court,
G in quest of their promotional prospects made a representation to the Chief
Justice or the High Court praying that a quota may be reserved for the em-
ployees or the High Court for recruitment to the Jammu & Kashmir Civil
Service (Judicial). The representation was considered at a full Court
meeting and in pursuance of the resolution pas~ therein a proposal was
sent to the State Government to amend r. 4 of the Jammu & Kashmir Civil
1
,H Service (Judicial) Recruitment Rules, 1967, (which prescribes ~ecruitment

216
STATE OF J & K v. A.R. ZAKKI 217

to the Service on the basis or competitive examination conducted by the A
Public Service Commission) so as to provide for reservation or 25%
vacancies in the Service by way of promotion/transfer or Assistant Regis-
trars, Readers, Court Officers and Librarians of the High Court.

The State Government sent the proposal to the Public Service Com-
mission for its opinion which adverted to certain aspects for consideration. B
The matter was sent back to the High Court which, after obtaining a re-
port from the Vigilance Commissioner (Judicial) on the matter, resolved
at a full Court meeting that "the Court did not agree with the proposal of
the Commission and sticks to the amendments already proposed". The
Government was accordingly informed. Since no action was taken by the
State Government, the respondents filed a writ petition before the High C
Court praying for a writ or mandamus to be issued commanding the Sta!_e _
Government to implement and give effect to the recommendations or the
High Court. ·

The writ petition was allowed by a Single-Judge Bench and the
Letters patent appeal filed by the appellant was summarily dismissed by D
a Division Bench or the High Court. Aggrieved, the appellant tiled the
appeal by special leave to this Court.

It was contended by the appellant that the order or the High Court
was to the effect of requiring the State Government to amend the Rules in E
the manner proposed by the High Court and that such a direction by way
of a writ of mandamus could not be issued in the matter of exercise or the
rule making power under s.110 of the Constitution of Jam mu & Kashmir,
which is legislative in character..

Allowing the appeal, this Court,
F
HELD :1.1 A writ of mandamus cannot be issued to the legislature
to enact a particular legislation. Same is true as regards the executive
when it exercises the power to.make rules, which are in the nature of sub~
_;;;.. - ordinate legislation. (223 AB]
G
1.2 Section 110 or the Constitution of Jammu & Kashmir, which is
on the same lines as Article 234 or the Constitution or India, vests in the
Governor, the power to make rules .tor appointment or persons other than
- the District Judges to the Judicial Service of the State and for framing
such rules, the Governor is requfred to consult the Commission and the
High Court. This power to frame rules is legislative in nature. A writ of H
218 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R. ;'
A mandamus cannot, therefore, be issued directing the State Government to
::
make rules in accordance with the proposal made by the High Court.
[ 223 BC]

State of Andhra Pradesh v. T. Gopa/akrishna Murthi & Ors., [1976] 1
SCR 1008 & Supreme Court Employees Welfare Association v. Union of
B India, [1989) 4 SCC 187, relied on.
1.3 The direction of the High Court that the appellant should con-
sider effectively the amendments proposed by it in the rules and to carry
the process of amending the rules to its logical conclusion can only mean
that the State Government should make the necessary amendments in ac-
C cordance with the proposal made by the High Court. The purport ~f the
direction is that the amendments recommended by the High Court should
be incorporated in the Rules. Such a direction was impermissible and
cannot be upheld. [224 D-HJ
2.1Section110 of the Jammu & Kashmir Constitution has to be read
along with s. 109, which relates to appointments of District Judges, and s.
D 111 relating to control over subordinate courts. The object underlying
these provisions is to secure and maintain the independence of the subor-
dinate judiciary. [225 A]

2.2 Consultation with the High Court, as envisaged by s. 110 of the
Jammu & Kashmir Constitution, is insisted because it is the High Court
E which has been primarily entrusted with the judicial administration in the
State and for efficient and due discharge of its responsibility, the High
Court needs to have proper officers. The High Court would be the best
judge of the requirements for proper and efficient judicial administration.
[225 B]
F
2.3 Though the consultation does not mean "concurrence", it postu-
lates an effective consultation which involves exchange of mutual view
points of each other and examination of the relative merits of the other

G
point of view. Consultation or deliberation is not complete or effective
before the parties thereto make their respective points of view known to
the other or others and discuss and examine the relative merits of their
views. [225 EFJ
-
Chandramouleshwar Prasad v. Patna High Court & Ors., [1970) 2 SCR
666, followed.
MM.Gupta & Ors. etc_. etc. v. Siate ofJammu & Kashmir, [1983) 1 SCR
H 593, relied on.
STATE OF J & K v. A.R. ZAKKI 219

2.4 While considering the recommendations of the High Court the A
State Government would proceed on the basis that in such matters the
opinion of the High Court is entitled to the highest regard. [~26 Fl

3.1 Although normally the recommendations made by the High
\ Court for any amendment in the rules should be accepted by the State
Government, but, if in any particular case, the State Government, for B
good and weighty reason, finds it difficult to accept the recommendations
of the High Court and communicates its views to the High Court, the lat-
ter must undoubtedly reconsider the matter. The High Court as well as the
State Government must approach the question in a detached manner for
achieving the true objective of framing rules which would secure appoint-
ment of proper persons to Judicial Service of the State for proper and ef- C
ficient administration of justice. [226 D-E]

3.2 In the instant case, it does not appear that before intimating its
views on the communication sent by the Commission on the proposed
amendments, the High Court co~sidered, in depth, the various points that
were raised in the said communication. [228 E] D

3.3 It would be appropriate if a Committee of Judges is constituted
which can go in the matter in greater detail and the matter is considered
by the full Court in the light of the report of such a Committee. The
recommendations that are made by the High Court after such consideration
would receive due weight and regard from the State Government and a E"
solution would be devised which would meet the aspirations of the staff
and would also be acceptable to the Government. [229 DE]

3.4 It has also to be considered whether reservation in the judicial
service is the only mode for providing the avenue for promotion for the F
officers of the High Court, or some other mode can be devised which can
provide an avenue for promotion for them on the administrative side in
the Court. [229 C]

4.1 The object of recruitment is to select the most meritorious from
those available amongst eligible candidates. [228 F] G

4.2 Provision of promotional avenues avoids stagnation and also
gives incentive for improvement to those who are holding lower posts
having similar functions. For that reason persons from one service may be
promoted to another if the nature of functions is similar and if they satisfy
the conditions of eligibility. This will ensure that the quality of merit in H
220 SUPREME COURT REPORTS [1991) SUPP. 3 S. C. R.

A recruitment is not diluted while an avenue for better prospects is available
for persons who are suitable to derive the benefit of entering into a better
service with the advantage of some weightage against fresh graduates.
This object would not be fulfilled, if, for the purpose of recruitment to a
service, certain proportion of posts is reserved for persons working in a
different cadre where the nature of the functions of the said cadre and the
B service to which recruitment is made are not similar. It is also necessary
that th.e nature of functions of the posts which are clubbed together and
from which such recruitment is to be made is not dissimilar or unequal.
[228 F-H; 229 AB]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4879of1991. .
c
From the Judgment and Order dated 22.2.1991 of the Jammu & Kashmir
High Court in L.P.A. (SWP) 25 of 1991.

Ashok Mathur for the Appellant
D
D.D. Thakur, L.K. Gupta and R. Sasiprobhu for the Respondents.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. Special leave granted.
E
Heard learned counsel for the parties.
This appeal arises out of the judgment and order dated February 22, 1991
of the High Court of Jammu & Kashmir. It relates to insertion of certain
provisions, by way of amendment, in the Jammu & Kashmir Civil Services
(Judicial) Recruitment Rules, 1967 ( hereinafter referred to as 'the rules').
F
Section 110 of the Constitution of Jammu & Kashmir provides that
appointments of persons other than District Judges to the judicial service of the
State shall be made by the Governor in accordance with the rules made by him
in that behalf after consultation with the Public Service Commission (herein-
a(ter referroo to as 'the Commission') and with the High Court In exercise of
G the aforesaid power, the Governor of Jammu & Kashmir has framed the rules
which make provision for recruitment to the K.C.S. (Judicial) Service (herein-
after referred to as 'the Service'). Under rule 4 of the rules, selection for
appointment to the service is made by direct recruitment on the basis of
competitive examination conducted by 'the commission.

H The readers and librarians employed in the High Court of Jammu &
STATE OF J & K v. A.R. ZAKK.I [AGRAWAL. J.] 221

Kashmir submitted a representation to the Chief Justice of the High Court A
wherein it was submitted that they do not have any prospects of future
promotion in their service and it was prayed that a fixed quota may be reserved
for the employees of the High Court for recruitment to the service. The said
representation was considered by the Judges of the High Court at a full court
meeting and it was resolved that the rules may be amended in a way· as to
provide for reservation of 25% vacancies in the Service by way of promotion/ B
transfer of the following employees of the High Court :

1. Assistant Registrar
2. Reader
3. Court Officer
4. Librarian c
The High Court proposed that rule 4 of the rules may be substituted by
the following provision:

"Rule 4. (1) Notwithstanding anything contained in these rules re-
cruitment to the service shall be made: , ·D

(a) on the basis of the compP,titive examination conducted by the
Commission.

(c) by promotion/transfer of persons holding or who have held for
·about four years and above any of the following posts: · E

(i) Assistant Registrar
Grade : Rs. 1050-1700/-

. (ii) Readers to Hon'ble Judges
F
Grade: Rs. 680-1240/-

(iii) Court Officer
... Grade: Rs. 680-1240/-

(iv) Librarian G
Grade: Rs. 680-1240/-

Provided, however, that candidates of (i) to (iv) above shall be law
graduates.

(2) The percentage for recruitment from each of the above source H
shall be : Source : (a) 75% and Source (b) 25%.
~~-
222 SUPREME COURT REPORTS (1991) SUPP. 3 S. C.R.
--
A In order to give effect to the said proposal, a new Chapter, {Chapter IV- j

A) was also proposed to be inserted in the Second Part of the rules to prescribe
the procedure for recruitment by promotion/transfer.

The aforesaid proposal for amendment of the rules made by the High
Court was sent by the State Government to the Commission for its opinion. The
B views of the commission in the proposed amendments were communicated by
the Deputy Secretary to the Commission, in his letter, dated July 25, 1984,
addressed to the Secre~ to the Government of Jammu & Kashmir, Law
Department. The said letter was forwarded by the State Government to the
High Court and the matter was referred by the High Court to the Vigilance "
Commissioner (JudiCial) for examination. The Vigilance Commissioner (Judi-
c cial) submitted his report which was considered by the High Court at a full ,;

.court meeting held on March 16, 1985 wherein it was resolved as under:

''Considered the proposal of the Public Service Commission and
the Report of the Vigilance Commissioner (Judicial). The Court
did not agree with the proposal of Public Service Commission and
D sticks to ~e amendment already pr?posed. However, the Court has
no objection if independent Part V after the existing Part IV, is
inserted in the Draft Amendment"

The Registrar of the High Court, vide his letter dated March 3, 1985,
informed the Law Secretary to the Government of J ammu & Kashmir about the
E said resolution of the Court. Since no action was taken by the State Govern-
~
ment on the proposal for amendment of the rules, the responqents, who were
employed as Readers and Librarians in the High Court, filed a writ Petition in
the High Court wherein it was prayed that a writ of mandamus be issued
commanding the State Government to implement and give effect to the
recommendations of the High Court and to direct thei:n to reserve quota for the
F
service as recommended by the High Court The said writ petition was allowed
by a learned single Judge of the High Court by his judgment dated December
6, 1990 whereby a direction was issued to the appellant herein to consider
effectively the amendments proposed by the High Court in the rules and to
carry the process of amending the rules to its logical conclusion within a period .
G of three months. A Letters patent appeal was filed by the appellant against the
said judgment of the learned single Judge. It was dismissed summarily by a
division bench of the High Court by order dated February 22, 1991.

The aforesaid direction given by the High Court has been assailed by the
appellant on the ground that it has the effect of requiring the State Government
H to amend the rules in the manner as proposed by the High Court and that such
a direction by way of mandamus, could not be issued under Article 226 of the
STATE OF J & Kv. A.R.ZAKKJ[AGRAWAL, J.J 223

Constitution in the matter of exercise of the rule making power under section A
110 of the Jammu & Kashmir Constitution which is legislative in character.

ln our opinion there is considerable merit in this submission. A writ of
mandamus cannot be issued to the legislature to enact a particular legislation.
Same is tn1e as regards the executive when it exercises the power to make rules,
which are in the nature of subordinate legislation. Section 110 of the J & K B
. Constitution, which is on the same lines as Article 234 of the Constitution of
India, vests in the Governor, the power to make rules for appointments of
persons other than the District Judges to the Judicial Service of the State of J
& K and for framing of such rules, the Governor is required to consult the
Commission and the High Court. This power to frame rules is legislative in
nature. A writ of mandamus cannot, therefore, be issued directing the State C
Government to make the rules in accordance with the proposal made by the
High Court.

In State of Andhra Pradesh v. T. Gopalakrishna Murthi and others
[19761 1 SCR 1008, this Court was construing the provisions of clause (2) of
Article 229 of the Constitution of. India which empowers the Chief Justice of D
the High Court or some other Judge or officer of the Court authorised by the
Chief Justice to make rules for the purpose of prescribing conditions of service
of officers and servants of a High Court and further prescribes that the said
rules shall so far as they relate to salaries, allowances, leaves or pensions
require the approval of the Governor of the State. The question was whether
a writ of mandamus could be issued to the Governor to give his approval to the E
rules made by the Chief Justice. This Court answered the said question in the
negative. After holding that although on the facts and circumstances of the case
and in the background of the conditions which are prevalent in the other States,
the Government could have been well-advised to accord approval to the
suggestion of the Chief Justice as the suggestion was nothing more than to F
equate the pay scales of the High Court staff with those of the equivalent posts
in the Secretariat, this Court observed that merely because the Government is
not right in accepting the Chief Justice's view, and in refusing to accord
approval is no ground for holding that by a writ a mandamus the Government
may be directed to accord the approval.
G
The same view was reiterated in the Supreme Court Employees Welfare
Association v. Union of India, [1989) 4 SCC 187 where in it has been laid
down:

"There can be no doubt ·that no court can direct a legislature to
enact a particular law. Similarly, when an executive authority ex- H
224 SUPREME C_OURT' REPORTS [1991] SUPP. 3 S. C.R.

A ercises a legislative power by way of subordinate legislation
pursuant to the delegated authority of a legislature, such executive.
authority cannot be asked to enact a law which he has been
empowered to do under the delegated legislative authority." (p.
219)

B Shri D.D. Thakur, the learned counsel appearing for the respondents, has,
however, submitted that in the present case, the High Court has not issued a .
writ of mandamus to the State Government to make the amendments in the
rules in accordance with the proposal made by the High Court brit has only
directed the State Government to consider effectively the amendments pro-
posed by the High Court in the rules. We are unable to construe the judgment
C of the High Court in this manner. The learned single Judge in the ultimate
paragraph of the judgment has observed:

"This petition, therefore succeeds and is allowed by issuance of a
direction to the respondents to consider effectively the amend-
ments proposed by the High Court in the J & K Civil Services
D (Judicial) Recruitment Rules of 1967 and to carry the process of
amending the Rules thtis to its logical conclusion within period of
three months from today." ·

The aforesaid direction that the appellant should consider effectively the
amendments proposed by the High Court in the rules and to carry the Process
E of amending the rules to its logical conclusion can only mean that the State
Government should make the necessary amendments in accordance with the
proposal made by the High Court. This is also clear from the earlier paragraph
in the judgment wherein it has been observed:

"~ ...... .It is also a pity that since then, the Government has not
F moved a step further in the direction of framing the Rules based on
the consultation of the High Court and has been sleeping over the
matter. It was the duty of the Government to have acted upon the
recommendations of the High Court with reasonable despatch and
to have incorporated the amendments in the Rules, in accordance
G with the principles gpveming the framing of such rules in the light
of the law laid down in Section 110 of the State Constitution and
in the light of the well established principles on the subject"

The aforesaid observations leav~ no room for doubt that the purport of
the direction that has been given by the High Court is that the amendments that
H have been recommended by the High Court should be incorporated in the rules.
In our opinion, such a direction was impermissible and cannot be upheld.
STATE OF J & K v. A.R. ZAKKI [AGRAWAL, J.] 225

We may at this stage indicate that Section 110 of the J & K Constitution, A
'· has to be read along with Section 109, which relates to appointments of district
judges, and Section 111 relating to control over Subordinate Courts. The object
underlying these provisions is to secure and maintain the independence of the
subordinate judiciary. With the same end in view Section 110 prescribes that
rules relating to appointments of persons other than the District Judges to the
Judicial Service of the state shall be made by the Governor in consultation with B
the High Court Consultation with the High Court is insisted because it is the
High Court which has been primarily entrusted with the judicial administration
in the State and for efficient and due discharge of its responsibility, the High
Court needs to have proper officers; The High Court would be the best judge
of the requirements for proper and efficient judicial administration. Consulta-
tion with the Commission is also required for the reason that the Commission C
is envisaged by the Constitution of Jammu & Kashmir as an expert body to
advise the Government on matters relating to public services. It has been
entrusted with· the task of selecting suitable persons for appointments to the
service of the State, and is required to be consulted on all matters relating to
methods of recruitment to civil services and for civil posts, on the principles
to bC followed in making appointments to civil services and posts as w'en as D
promotion and transfers and on all disciplinary matters (Section 133). In
relation to judicial service, the Commission has a limited role, viz., consulta-
tion at the stage of making of rules under Section 110. Whether and to what
extent the Commission is to be associated with the process of selection of
personnel for appointment would depend on the provisions of the rules so E
made.

While construing the expression "consultation" this Court has laid down
that though consultation does not mean "concurrence", it postulates an effec-
tive consultation which involves exchange of mutual view points of each other
and examination of the relative merits of the other point of view. Consultation F
or deliberation is not complete or effective before the parties thereto make their
respective points of view known to the other or others and discuss and examine
the relative merits of their views. [See: Chandramouleshwar Prasad v. Patna
High Court & Ors., [1970] 2 SCR 666 and MM. Gupta & Ors. etc. etc., v. State
ofJammu & Kashmir & Ors., [1983] 1 SCR 593]. In the context of Article 233
of the Constitution on India which requires that appointments of persons to be, G
and the 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 juris-
diction in relation to such State, this Court in MM. Gupta's case (supra) has
obseryed as under :

"............ normally, as a matter of rule, the recommendations, made H
226 SUPREME COURT REPORTS [1991) 4iUPP. 3 S. C. R.

A by the High Court for the appointment of a District Judge should
be accepted by the State Government and the Governor should act
on the same. If in any particular case, the State Government for
good and weighty reason find it difficult to accept the recommen-
dations of the High Court, the State Government should commu-
nicate its views to the High Court and the State Government must
B have complete and effective consultation with the High Court in
the matter. There can be no doubt that if the High Court is
convinced that there are good reasons for the objections on the part
of the State Government, the High Court will undoubtedly recon-
sider the matter and the recommendations made by the High Court.
Efficient and proper judicial administration being the main object
c of these appointments, there should be no difficulty in arriving at
a consensus as both .the High Court and the State Government must
necessary approach the question in a detached manner for achiev-
ing the true objective of getting proper District Judges for due
administration of justice." (p. 626)

D The above approach indicated by this Court would apply equally in the
matter of making of rules under Article 234 of the Constitution of India and
Section 110 of the J &K Constitution. Although normally the recommendations
made by the High Court for any amendment in the rules should be accepted
by the State Government, but, if in any-particular case, the State Government,
for good and weighty reason, find it difficult to accept the recommendations of
E the High Court and the State Government communicates its views to the High
Court, the High Court must undoubtedly reconsider the matter. The High Court
as well as State Government must approach the question in a detached manner
for achieving the true objective of framing rules which would secure appoint-
ment of proper persons to Judicial Service of the State for proper and efficient
administration of justice. If the matter is thus approached, there should not be
F any difficulty. It need hardly be emphasised that while considermg the recom-
mendations of the High Court the State Government would proceed on the
basis that in such matters the opinion of the High Court is entitled to the highest
regard.

G In the present case, we find that the High Court had recommended
reservation of 25% vacancies in the Service to be filled by way of promotion/
transfer from amongst the following employees of the High Court:

1. Assistant Registrars
2. Readers
H 3. Court Officers
4. Librarians
STATE OF J & K v. A.R. ZAKKI [AGRAWAL, J.] 227

. With that·end in view, ~e High Court has suggested substitution of rule A
4 of µie rules and addition of Chapter IV-A prescribing procedure for recruit-
ment by promotion/transfer in the Second Part of the rules. In the letter of the
Deputy Secretary to the Commission dated July 25, 1984 addressed to the
Secretary to the Government of Jammu & Kashmir, Law Department, the
Commission has adverted to the following aspects:
B
, I. The officers in whose favour 25% reservation is to be made fall in two
categories: (i) Assistant Registrars who were in the scale of Rs. 1050-1710; and
(ii) Readers, Court Officers and Librarians who were in the scale of Rs. 680-
1240. Since recruitment was to be made from two diffe~nt categories in two
different scales of pay, would it-not be desirable to fix the proportion for the
category of Assistant Registrars (Rs. 1050-1710) and other officers in the pay C
scale of Rs. 680-1240?

· 2. It has to be stated whether the three categories of officers.in the scale
of Rs. 680-1240 have a combined or a separate seniority?

: 3. There is another category of posts in the scale of Rs. 680-1240 called D
Public Law Officers which also apparently require to be clubbed with the
aforesaid three categories of posts in the s~e scale. It ha8 to be seen whether
another post called Investigation Officer in the scale of Rs. 825-1240 should
also .not be added on the eligible category provided the incumbents are law
graduates.
E
4. Instead of inserting Chapter IV-A and rule 37A, ·there should be an
independent Part V after the existing Part IV and the subsequent Parts and rules
be renumbered.

5. Whether any similar provisions exist in the Judicial Rules of other F
States so far as they relate to promotions/transfers to the post of Munsiffs?

After receipt of the said communication from the Commission, the High
Court referred the matter to the Vigilance Commissioner (Judicial) for exami-
nation. The Vigilance Commissioner submitted a report to the Registrar of the
High Court wherein he has primarily referred to the lack of promotional G
avenues fpr Assistant Registrars, Readers, Court Officers and Librarians in the
High Court and the necessity of providing promotional avenues for them. He
ha8 also dealt with the suggestion made by the Commission for clubbing Public
Law Officers and Investigation Officers with the category of posts in respect
of which reservation was proposed and has pointed out that such a move would
not be in the interest of the judiciary and furthermore those persons have H
11

I'
228 SUPREME COURT REPORTS [1991] SUPP. 3 S. C.R.

A already got chances of promotion in their respective cadres inasmuch as Public
Law Officers have been promoted as CPOs of the Dy. Superintendent Police
Rank and as Naib Tehsildars or as Prosecuting Officers. The report of the
Vigilance Commissioner does not, however, deal with the other matters raised
by the Commission with regard to fixing of proportion for the two categories :
of officers, viz., Assistant Registrars who were in a higher scale and other
B officers who were in the lower scales and about there being a combined or
separate seniority for the three categories of the officers in the scale of Rs. 680-
1240. There is also no reference in the said report to the question whether any
similar provision exists in the judicial rules of other States.

The resolution passed at the full court meeting held on March 16, 1985
C is cryptic. After referring to the proposal of the Commission- and .the report of
the Vigilance Commissioner all that is stated in the said resolution is that "the
Court did not agree with the proposal of the Commission and sticks to the
amendmentS already proposed. However that the Court has no objection if
independent Part V after the existing Part IV, is inserted in the Draft Amend-
ment". This would indicate that the only matter which was considered by the
D High Court was the suggestion by the Commission to include the posts of
Public Law Officers and Investigation Officers in the eligible category to
which reference was made by the Vigilance Commissioner in his report There
was no consideration by the High Court of the other matters raised in the
communication by the Commission to which no reference has been made in the
E report of the Vigilance Commissioner.

We are of the view that before intimating its views on the communication
sent by the Commission on the proposed amendments, the High Court should
have considered, in depth, the various points that were raised in the said
communication. This does not appear to have been done in the facts of the
F present case. In this context, it may be mentioned that the object of recruitment
is to select the most meritorious from those available amongst eligible candi-
dates. Provision of promotional avenues avoids stagnation and also gives
incentive for improvement to those who are holding lower posts having similar
functions. For that reason persons from one service may be promoted to
another if the nature of functions is similar and if they satisfy the conditions of
G eligibility. On such promotion, their earlier experience in the lower service
may be taken into account for granting benefits such as relaxation in the upper
age limit prescribed for eligibllity or weightage may be given for the past
experience in that service. This will ensure that the quality of merit in
recruiunent is not diluted while an avenue for better prospects is available for
persons who are suitable to derive the benefit of entering into a better service
H with the advantage of Some weightage against fresh graduates. This object
STATE OF J & K v. A.R. ZAKKI [AGRAWAL, J.] 229

would not be fulfilled if, for the purpose of recruitment to a service, certain A
proportion of posts is reserved for persons working in a different cadre where
the nature of the functions of the said cadre and the service to which recruit-
ment is made are not similar. In order that a particular proportion of posts may
be reserved for persons belonging to a different service it is also necessary that
the nature of functions of the posts which are Clubbed together and. froin which
such recruitment is to be made is not dissimilar or une-qrial. These are someOf:.:::.'B
the relevant aspects which have to be taken into consideration before a
recommendation is made for reservation of a particular proportion onx>sts
from amongst the categories of Asst. Registrars, Readers, Court Officers and
Librarians for appointment to the service. It would also be relevant to examine
the practice prevalent in the other High Courts in this regard. It may also be
considered whether reservation in the judicial service is the only mode for C
providing the avenue for promotion for these officers or some other mode can
be devised which can provide an ~venue for promotion for them on theadmin-
istrative side in the Court. In some High Courts, avenues for promotion for
such officers exist on the administrative side i.e. as Deputy Registrar (Admn.),
Additional Registrar (Admn.). Since these are matters which require a more
careful examination, it would be appropriate if a Committee of Judges is D
constituted which can go in the matter in greater detail and the _matter is
considered by the full Court in the light of the report of such a committee. We
hope and trust that the recommendation that are made by the High-Court after
such consideration would receive due weight and regard from the State Gov-
ernment and a solution would be devised which would meet the aspirations of E
the staff and would also ~ acceptable to the Government.

The appeal is, therefore, allowed, the judgtilent and order of the Learned
Single Judge and the order of the Division Bench of the High Court are set
aside and the Writ Petition field by the respondents is dismissed. The High
Court, on its administrative side, may reconsider the matter relating to amend-
ment of the rules in the light of the observations made above. There will be no
orders as to costs.

R.P. Appeal allowed.