K P VERMA Vs. STATE

JUDGEMENT

(1.) The failure of the Governor thus the State Government and the High Court, on the administrative side, to observe the constitutional mandate, spelt out in Art.233 of the Constitution, has prompted the petitioner to invoke the jurisdiction of this Court under Art.226 of the Constitution on its judicial side.

(2.) Under the Constitution, a specified number of persons are to be appointed to the cadre of Additional District Judges/District Judges in a State. The strength of the cadre in Bihar has been fixed by the Bihar Superior Judicial Service Rules, 1946 (hereinafter referred to as 'the Rules') enacted by Notification No. 20-1-5/50-A-7309 dated the 31st July, 1951, with retrospective commencement from the 21st of October, 1946. Accoridng to R.6 of the Rules, of the post in the cadre of the service, two-third shall be filled up by promotion and one-third by direct recruitment from amongst the Advocates being an Advocate for not less than seven years. The justifiability of this rule will be adverted to later on.

(3.) The situation that provoked the filing of this application was that since 1979, when the last appointments were made from amongst the Advocates, the posts of Additional District Judges have been filled up only by promotion. Further, the ratio quoted above in the Rules was not only given a go bye while filling up specified number of vacancies but the number of vacancies that should have been kept reserved for appointment from amongst the Advocates was filled up by promotion from amongst those already in service. This has created a piquant situation. In spite of the ratio fixed, there are only eight such persons who are all holding the position of District Judges who were recruited from amongst the Advocates and as matter stands today, there are 30 vacancies on the basis of the analysis of the cadre the total strength of which is 38. The anomaly of the situation thus is that all those, who will be appointed on the basis of the present vacancy hereafter from amongst the Advocates, will rank junior to those who have already been appointed by promotion even though a good part of these vacancies had occurred much earlier than those filled up by promotion. This has, therefore, resulted in blighting the career of many a promising Advocate and even of those who will hereafter be gallant enough to seek the appointment and be ultimately appointed and all this because of the thoughtless indifference to this important aspect of our judicial system. It has now fallen upon us to resurrect whatever we can to preserve an integral part of the constitutional provision relating to superior judicial service in the State.