- (1.) ANJANI Kumar, J. The facts in this writ petition under Article 226 of the Constitution of India filed by the petitioner challenging the reservation of the ear-marked to the extent of 20 per cent of the vacancy for which the recruitment is being advertised in the Subordinate Court of Hamirpur Judgeship for the women are not in dispute. Pursuant to the advertisement dated 16th July, 1999, 27 vacant posts in the clerical cadre of Class-III employee in the Judgeship of Hamirpur was advertised for recruitment. The advertisement, inter alia, specifies for reservation in the recruitment to all such classes shall be as provided for by the State Government. It is also not in dispute that the petitioner successfully appeared in the competition and was declared successful and was placed at serial No. 16 of the select list. The petitioner's contention is that, which is not disputed by the respondents too, had reservation to women candidates to the extent of 20 per cent in the respective category ear-marked, namely, general candidates, Schedule Caste candidates and Scheduled Tribes candidate and the category of O. B. C. not being provided, the petitioner would have been eligible for the appointment. Due to this reservation to the extent of 20 per cent for woman which has been called in question by this writ petition by the petitioner under Article 226 of the Constitution of India.
(2.) LEARNED counsel for the petitioner has relied upon a decision of learned Single Judge of this Court passed in Civil Misc. Writ Petition No. 11753 of 2001, Kumari Archana Mehta v. Hon'ble The Chief Justice, High Court of Judicature at Allahabad and another, wherein the writ petition was filed claiming 20 per cent reservation for woman candidates. This claim has been repelled by the learned Single Judge after considering the relevant rules and the decision of this Court and the apex Court. The decision of the learned Single Judge has been affirmed by the Division Bench in Special Appeal No. 801 of 2001, Kumari Archana Mehta v. Hon'ble The Chief Justice, High Court of Judicature at Allahabad and another, wherein the notification issued by the State Government on 26th February, 1999 has been quashed in service claiming reservation to the extent of 20 per cent, which has been considered by this Court that in view of the provisions of Article 229 (1) of the Constitution of India the appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or Officer of the Court as he may direct. Sub-clause (2) of the same Article provides that subject to provisions of any law made by the legislature of the State, the conditions of service of officers and servants of a Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or some other Judge or Officer of the Court authorised by the Chief Justice to make rules for the purpose. This Article clearly shows that the appointment of officers and servants of the High Court shall be made by the Chief Justice or his nominee. The condition of service of officers and servants of the High Court shall be such as may be prescribed by the Rules made by the Chief Justice or by some other Judge or officer authorised by him to make rules for the purpose. The post of Routine Grade Clerks in the establishment of the High Court, therefore, cannot be said to be a "post or public service" under the State. The proviso to Article 309 of the Constitution lays down that it shall be competent for the Government of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State to make rules regulating the recruitment and the conditions of services of persons appointed to such services and until provision in that behalf if made by or under an Act of the appropriate legislature under this Article any rule so made shall have effect subject to the provisions of any such Act. Article 229, therefore, shows that the officers and servants of a High Court are a distinct class and the Governor is not empowered to make rules regulating the recruitment and conditions of service of such class of persons. Therefore, the order issued by the State Government on 26th February, 1999 which specifically deals with "recruitment on posts and public services under the State" can have no application to a recruitment being made in accordance with the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976. We are fortified by the following observations in the State of U. P. and another v. C. L. Agarwal, AIR 1997 SC 1431, in paragraph 12 of the Reports, which is quoted herein below: " (12) Article 229 does not state that posts in the High Court are to be created by the Governor, it does not even deal with the creation of posts. Clause (1) thereof empowers the Chief Justice to make the appointments of officers and servants of a High Court. Clause (2) empowers the Chief Justice to make rules prescribing the conditions of service of officers and servants of a High Court with the proviso that so far as these rules relate to salaries, allowances, leave or pensions, they require the Governor's approval. Clause (3) requires the administrative expenses of the High Court to be charged upon the Consolidated Fund of the State. " Part VII of the Rules deals with the reservation and qualifications and Rule 23 therein specifically provides for reservation in favour of Scheduled Castes, Scheduled Tribes, disabled military personnel and dependants of freedom fighter. Rule 23-A provides reservation in favour of the skilled players and sportsmen. The Rules do not provide for reservation of posts in favour of women candidates. The advertisement issued wherein it was mentioned that the reservation will be "as per Government Orders the category or categories of candidates" only means that the percentage of reservation for the categories of persons mentioned in Rules 23 and 23-A shall be made in accordance with the Government Orders. The advertisement issued for making recruitment for the post of Routine Grade Clerk in the establishment of the High Court has to be read consistent with the Rules and if any part thereof is inconsistent with the Rules, the same cannot be given effect to and will be inoperative. Since the Rules do not provide for reservation for woman, it is not possible to enlarge the meaning of the expression "as per Government Orders the category/categories of candidates" so as to include even those for whom the Rules do not contemplate any reservation. Rule 23, like Article 16 (4) of the Constitution, is an enabling provision giving discretion to Hon'ble Chief Justice to provide for reservations. It is for the Hon'ble Chief Justice to make or not to make reservations under Rule 23. Reservation is a matter, which has to be decided on the basis of several factors, such as, nature of the job, requirement of maintenance of efficiency, and inadequacy of representation of backward class of citizens in the service. Reservation cannot be claimed and granted as a matter of course. The powers of the Hon'ble Chief Justice, being purely discretionary, no mandamus can be issued, directing his Lordship to pass an order making reservation in favour of any caste or class of persons. The learned Single Judge was, therefore, not justified requiring the Hon'ble Chief Justice to make order under Rule 23 for reservation in the matter of appointments to Class I and Class II posts in establishment of the High Court.
(3.) THUS, the Rules being silent about reservation in favour of women the claim made by the appellant that 20 per cent of the posts be reserved for women in the selection made for the appointment on the post of Routine Grade Clerks in the establishment of the High Court has no basis and cannot be accepted. Learned counsel appearing for the respondents submitted that the case of Kumari Archana Mehta will not apply to the facts of the present case in as much as it deals with the recruitment to the posts of Routine Grade Clerk in the High Court and does not deal with the recruitment in the Subordinate Court.;