STATE OF BIHAR Vs. BAL MUKUND SAH

JUDGEMENT

(1.) Leave granted in Special Leave Petition No. 16476 of 1993.

(2.) Both these appeals, on grant of special leave under Article 136 of the Constitution of India, are moved by the State of Bihar, which is common appellant no. 1 in both these appeals. In Civil Appeal No. 9072 of 1996 the Secretary, Department of Personnel and Administrative Reforms, Government of Bihar is appellant no. 2, while in the companion appeal arising from the Special Leave Petition No. 16476 of 1993, the other contesting appellant is the Special Executive Officer- cum-Deputy Secretary, Bihar Public Service Commission, Patna. In both these appeals, a common question of law arises for consideration, namely, whether the Legislature of the appellant 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 (hereinafter referred to as 'the Act') , 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, being the posts of District Judges as well as the posts in the lower judiciary at the grass-root level, governed by the provisions of the Bihar Judicial Service (Recruitment) Rules, 1955. Civil Appeal No. 9072 of 1996 deals with the question of reservation in the posts in District Judiciary while the companion appeal deals with the posts in Subordinate Judiciary at grass-root level under the District Courts concerned. By the impugned judgment in Civil Appeal No. 9072 of 1996, a Division Bench of the High Court has struck down the terms of the advertisement, reserving amongst others, 27 out of 54 posts of District Judges to be filled in by direct recruitment, being ultra vires the relevant provisions of Article 233 of the Constitution of India. It has also struck down the provisions made in the impugned advertisement fixing up the upper age limit at 45 years for eligibility for appointment by way of direct recruitment to these posts. That part of the controversy no longer survives between the parties in the present proceedings and, therefore, we need not dilate on the same. So far as the companion appeal is concerned, the main judgment was rendered by the Division Bench of the High Court holding that the aforesaid Act as well as the earlier Ordinance which preceded the same in so far as they sought to apply the scheme of reservation of posts for governing recruitment of persons other than the District Judges to the Judicial Service of the State were ultra vires Article 234 of the Constitution. As the controversies involved in these appeals have to be resolved in the light of the relevant Constitutional scheme, by an earlier Order dated 13th May, 1994 of this Court, they were directed to be listed before a Constitution Bench. Subsequently in view of the statement made by learned counsel that the matter could be disposed of by a Bench of three Judges, the matters were directed to be placed before a three-Judge Bench by an order dated 12th May, 1995. Thereafter a three- Judge Bench of this Court by its order dated 6th November, 1997 felt that the matters raised questions regarding interpretation of provisions of Articles 233, 234 and 309 of the Constitution and hence it would be appropriate that they are heard by the Constitution Bench. That is how these matters have been placed before this Constitution Bench under the directions of Hon'ble the Chief Justice of India.

(3.) Before we proceed to deal with the rival contentions of learned counsel for the respective parties in support of their cases, it becomes necessary to note a few introductory facts. Facts leading to Civil Appeal No. 9072 of 1996: