BHARGAVA, J. - (1.) THE petitioners who are all members of the Rajasthan Judicial Service have submitted this application under Article 226 of the Constitution of India against the State of Rajasthan (Respondent No. l), the Hon'ble Chief Justice Shri D. S. Dave Hon'ble Justice I. N. Mondi, Judge High Court Rajasthan and Administrative Judge, High Court Rajasthan, Hon'ble Justice D. M. Bhandari, Judge Rajasthan High Court (Respondents Nos. 2 to 4) and the Rajasthan Public Service Commission through its Chairman praying for a writ of prohibition against the respondents Nos. 2 to 4 from holding interview or selecting or recommending the appointment of candidates for direct judicial appointments to the post of Civil and Additional Sessions Judges, or any other such judicial post to the Governor or declaring the result thereof and further for declaration that the Rajasthan Higher Judicial Service Rules, 1955 (hereinafter called the Rules) are void and illegal. In the alternative it is prayed that the proceedings of the Recruitment Committee for selection of candidates be held to be illegal and be quashed because of non-compliance with the provisions of Rule 10 of the Rules and further the Selection Board be prohibited from filling vacancies in the Higher Judicial Service exceeding one fourth of the vacancies which have fallen vacant during the current year and the result should not be declared till selection from Judicial Service takes place as required by Rule 13 of the Rules and for any other appropriate writ or order.
(2.) ON 9th May, 1955, His Highness the Raj Pramukh of the then (Part-B) State of Rajasthan in exercise of the powers conferred by the proviso to Article 309 of the Constitution, made rules regulating recruitment to posts in, and the condition of service of the persons appointed to the Rajasthan Higher Judicial Service. These rules were first published in Rajasthan Gazette Extra-ordinary Part IV (G) dated 12th May, 1955 in Appointment Department Notification No. F. 21 (3) Apptts. (c)/55. Some of the relevant rules are as under: - Part-I - General R. 1 - Short title and commencement - (1) These rules may be called the Rajasthan Higher Judicial Service Rules, 1935. (2) They shall come into force at once and shall apply to the members of service consisting of District and Sessions Judges and Civil and Additional Sessions Judges. R. 3 - Status of the Service - The Rajasthan Higher Judicial Service is a State Service. R. 4 - Definitions - In these rules unless there is anything repugnant in the subject or context - (b) "court" means the High Court of Judicature for the New State of Rajasthan. (c) "direct recruitment" means recruitment in the manner prescribed by cl. (ii) of sub-rule (1) of R. 7. (e) "member of Service" means a person appointed in a substantive capacity to a post in the cadre of the service under the provisions of these rules or of orders superseded by R. 2; (g) "service" means the Rajasthan Higher Judicial Service. Part II - Cadre R. 6 - Strength of the Service - (1) The strength of the Service and of each class of posts therein shall be determined by the Governor from time to time in consultation with the Court. (2) The permanent strength of the Service and of each class of posts therein shall, until orders varying the same have been passed under sub-rule (1), be as specified in Schdl. I. (3) The Governor may, from time to time and in consultation with the Court, leave unfilled or hold in abeyance any post in the Service without thereby entitling any person to compensation, or create such 'additional temporary or permanent posts in the Service as may be found necessary. Part III - Recruitment R. 7 - Sources of Recruitment - (1) Subject to the other provisions of these rules, recruitment to the Service shall be made to the posts of Civil and Additional Sessions Judges: - (i) by promotion from among the members of the Rajasthan Judical Service; or (ii) by direct recruitment in consultation with the court. (2) Persons eligible for direct recruitment under cl. (ii) of sub-rule (1) of this shall be Advocates or Pleaders of more than seven years; standing. R. 8 - Appointments to the Grade of District and Sessions Judges - All appointments to the grade of District and Sessions Judges shall be made by the Governor in consultation with the Court with due regard to seniority and fitness for such appointment, provided that in making appointments against the posts of (i) Legal Remembran-cer-cum-Law and Judicial Secretary to Government, (ii) Registrar, High Court and (iii) Joint Legal Remembrancer to Government in a temporary capacity, as may be necessary from time to time, the sole criterion shall be the fitness of an officer for such appointment. R. 8-A - Appointments to the Selection Grade posts of District and Sessions Judges - The appointments to the selections grade posts of the District and Sessions Judges shall be made by the Governor, in consultation with the Court, by promotion from amongst officers holding substantively the posts of District and Sessions Judges, on the basis of seniority-cum-merit. (2) The first appointment made in pursuance of sub-rule (1) shall take effect from the 1st day of January, 1961. R. 10 - Number of Appointments to be made - (1) Subject to the provisions of these rules, the number of persons to be recruited at each recruitment from each of the two sources specified in R. 7 and the period (not exceeding three years) for which such recruitment is to be made shall be determined by the Governor. Provided that the number of persons appointed to the Service by direct recruitment shall at no time exceed one-fourth of the total strength of the Service and the number of persons so appointed during any one period of recruitment shall not exceed one-fourth of the total number of vacancies occurring during that period: Amendment vide Notification No. F. 21 (3) Apptts (C)/55 dated 8-10-61. Provided further that if vacancies occurring during any period of recruitment is less than four, the proportion of direct recruits during that period of recruitment may be increased by the Governor so as not to exceed one-half of the total number of such vacancies subject to the condition that the total number of persons appointed to the Service by direct recruitment does not at any time exceed one-fourth of the total sanctioned strength of the Service. (2) If at any recruitment the number of selected direct recruits available for appointment is less than the number of recruits decided by the Governor to be taken from that source, the Governor may increase correspondingly the number of recruits to be taken by promotion from the Rajasthan Judicial Service. Part IV - Procedure for Recruitment by Promotion R. 11 - Experience - No member of the Rajasthan Judicial Service shall be eligible for promotion to the Service unless he has completed seven years of service in that service: Provided that if prior to the constitution of the Rajasthan Judicial Service, he has served as a Judicial Officer or on a post, corresponding to any of the posts encadred in that service, in a Covenanting State or in Rajasthan, the period of such service shall count as service as a member of the Rajasthan Judicial Service. R. 12 - Criteria for Selection - (1) For the purpose of recruitment to the Service by promotion under Cl. (i) of sub-rule (1) of R. 7, the selection shall be made on the basis of merit from among the members of the Rajasthan Judicial Service eligible for such promotion. (2) In selecting candidates for promotion, regard shall be had to the record of every eligible officer as regards the quality of his work and his trustworthiness and fitness for appointment to the Service. No one shall be considered fit unless he is clearly an officer of more than average ability and his integrity is certified. R. 13 - Procedure for Selection - (1) After a decision is taken under R. 10 as to the number of persons to be recruited by promotion, the selection shall be made by a. Selection Committee consisting of the Chief Justice, the Administrative Judge and Judge of the Court nominated by the Chief Justice, from among the eligible members of the Rajasthan Judicial Service. (2) The Selection Committee shall select from among the eligible officers those whom they consider suitable for appointment to the Service. A list of the Officers selected shall then be made in the order of their inter se seniority in the Rajasthan Judicial Service. At the time when a fresh list has to be drawn up, the cases of all eligible officers will again be considered by the Selection Committee on merits. Part-V - Procedure for direct recruitment R. 14 - Age - A candidate for direct recruitment to the Service must have attained the age of 35 years and must not have attained the age of 45 years on the first day of January following the date of selection. R. 16 - Character and Physical fitness - (1) The character of a candidate for direct recruitment must be such as to render him suitable in the opinion of Governor in all respects for appointment to the Service. He must produce a certificate of good character from the District Judge of the District in which he has been practising as lawyer and two such certificates, written not more than six months prior to the date of submission of application to the Court, from two responsible persons not connected with his school, college or university and not related to him. Note - Persons dismissed by the Union Government or by a State Government shall be ineligible for appointment. (2) No person shall be appointed as member of the Service by direct recruitment unless he is in good mental and bodily health and free from any physical defect likely to interfere with the efficient performance of his duties as a member of the Service. Before a candidate is finally approved for appointment by direct recruitment, he shall be required to appear before a Medical Board who will examine him and certify him as fit or unfit for appointment to the Service ; provided that a candidate selected from among Judicial officers, who has already been examined and declared fit by a Medical Board in connection with his appointment as a judicial officer shall not be required to appear before a Medical Board again under this sub-rule prescribed by the Governor for the purpose. R. 17 - Notice of Recruitment - Applications for direct recruitment to the Service shall be invited by the Court by publishing a notice to that effect in the Rajasthan Gazette and in such other manner as it may deem fit. R. 21 - Scrutiny of applications and Interviews - (1) The Selection Committee appointed under R. 13 shall scrutinise the applications received by the Court in accordance with the provisions of R. 19 and require such of the eligible candidates as seem best qualified for appointment to the Service under these rules to appear before the Committee for interview at their own cost. (2) In assessing the merits of a candidate, the Selection Committee shall have due regard for his professional ability, knowledge of Hindi written in Devnagri script character, personality, physique and general suitability for appointment to the Service as indicated by his record and interview. R. 22 - Selection - The Selection Committee shall prepare a list of candidates whom they consider suitable for appointment to the Service, in order of merit. Part-VI - Appointments, probation and confirmation R. 23 - Submission of lists to the Governor - The Court shall submit to the Governor two copies each of the two lists of candidates considered suitable for appointment to the Service from the two sources of recruitment as prepared in accordance with RR. 13 and 22. R. 24 - -Appointments - - (1) Subject to the provisions of sub-rule (2) all appointments to posts in the Service shall be made by the Governor on the occurrence of substantive vacancies by taking candidates from the lists prepared under RR. 13 and 22 in the order in which they stand in the respective lists, provided the Governor is satisfied that such candidates are duly qualified for appointment to the service in all respects. The first three vacancies shall be filled from the list prepared under R. 13 and the fourth vacancy shall be filled from the list prepared under R. 22 and so on; Provided that if the number of vacancies to be filled is less than four, the vacancy or vacancies to be filled from the list prepared under R. 13 shall be filled first and the remaining vacancy shall be filled from the list of direct recruits. (2) The Governor may make appointments to fill temporary or officiating vacancies from among persons who are eligible for appointment to the Service by promotion under R. 7 (1) (i) of these rules; provided that, as far as may be, such appointments shall be made from the list prepared under R. 13, and that other members of the Rajasthan Judicial Service shall be considered tor such appointments only after the aforesaid list has been exhausted. R. 25 - Seniority - Subject to the other provisions of these rules, seniority in the date of the order of appointment in a substantive vacancy. Provided the seniority of candidates appointed to the Service shall, in the case of appointment of more persons than one to the Service by an order of the same date, follow the order in which their names have been placed in the list prepared under R. 13 or R. 22, as the case may be, excepting, in the case of appointment by direct recruitment under R. 7 (1), (ii), persons who do not join the Service when a vacancy is offered to them. R. 26 - Probation - All persons appointed to the Service by direct recruitment u/r. 7 (l) (ii) shall be placed on probation for a period of two years. R. 27 - Extension of probation period or removal - (1) If it appears at any time during or at the end of the period of probation that an officer has not made sufficient use of his opportunities or if he has otherwise failed to give satisfaction, the Governor may dispense with his service; Provided that the Governor may, in special cases, extend the period of probation of such officer by a specified period not exceeding one year. (2) An Officer whose services are dispensed with during or at the end of the original or extended period of his probation under subrule (1) shall not be entitled to any compensation. R. 28 - Confirmation - (1) A probationer shall be confirmed in his appointment at the end of the original or extended period of his probation, if the Governor, after consultation with the Court, is satisfied that he is fit for confirmation, (2) All confirmations under this rule shall be notified in the Rajasthan Gazette. That by a notice dated 20th November, 1963, Est/rjs/178, the Rajasthan High Court, Jodhpur invited applications for direct recruitment to the Higher Judicial Service and in paragraph 2 it was mentioned that the number of vacancies to be filled by direct recruitment was four. Applications were received from a number of candidates in response to the above notice and after their scrutiny interview of eligible candidates by the Selection Committee appointed under R. 13 had started and at that stage the present application was moved praying for the reliefs mentioned above. By the time this application came for admission the Selection Committee consisting of respondents Nos. 2-4 had finished its task of interviewing the candidates. However, appointments to the posts have not so far been made. The main points raised on behalf of the petitioners can thus be summarised: (i) that under the Constitution appointments of the District Judges can be made according to the provisions of Art. 233 while appointments of persons other than District Judges can only be made in accordance with rules made under Art. 234. But the present rules having been made by the Raj Pramukh under Art. 309 of the Constitution which is subject to other provisions of the Constitution, are wholly illegal and void. (ii) that the rules relating to recruitment to the service are void because they contravene the provisions of Art. 233 and 234 and put an embargo upon the powers of the Governor and the High Court. (iii) that the post of Civil and Additional Sessions Judge to which recruitment is made under the rules is not included within the expression 'district Judge' as defined under Art. 236 of the Constitution. (iv) that the determination of number of persons to be recruited at each recruitment and the period for which recruitment is to be made by the Governor is a pre-requisite as per rule 10 of the rules and that having not been done, the Selection Committee was not competent to interview the candidates and no appointments can be made on the basis of such selection. (v) that the 'period' envisaged under R. 10 is a prospective one and not retrospective and as such the number of vacancies determined by the Governor at 18 (as is the case of respondents Nos. l to 4) is not correct and as such the notice inviting applications for four vacancies was clearly wrong and prejudicial to the interests of the petitioners. (vi) that in any event nine vacancies had been filled up before the period was determined by the Governor and in that case too, not more than two vacancies could be filled by direct recruitment. (vii) that the Judicial Officers who are working in officiating capacity as Civil and Additional Sessions Judges should be deemed to be holding these posts in substantive capacity because no officiating appointments are envisaged under the rules and as such their seniority should not be affected by appointments made by direct recruitment. Respondents Nos. 2 to 4 and respondent No. 1 have filed similar though separate replies to the petition. Notice of the petition was also given to the Advocate General and he has also filed of statement of the case. The respondents in their replies have supported the validity of rules framed by the Raj Pramukh in exercise of the powers under proviso to Art. 309 and have urged that they in no way abridge or limit the powers of the Governor or of the High Court under Art. 233. Further it is urged that these rules were in fact made by Raj Pramukh in consultation with the State High Court and as such they should be deemed to have been made under proviso to Art. 309 read with Art. 233 of the Constitution of India even though the notification under which they were published makes no mention of Art. 233. It is urged that the post of a Civil and Additional Sessions Judge is included in the expression 'district Judge' as defined in Art. 236 and as such appointment of Civil and Additional Sessions Judge is governed by Art. 233 of the Constitution and Art. 234 has no application. It is denied that R. 10 was not complied with and it is submitted that the Governor had determined the number of vacancies as well as the period for which the recruitment was to be made. It is urged that petitioners who are holding the post of Civil and Additional Sessions Judges in officiating capacity cannot claim any right to that post unless they are substantively appointed to the post in accordance with the rules and until such appointments are made the posts shall be deemed to be vacant. It is urged that there is nothing in R. 10 which prohibits the Governor in determining the 'period' both past and future upto a maximum of three years in which the vacancies are likely to occur. It is also urged that appointments to the post of Civil and Additional Sessions Judge shall be made from both the sources i. e. , by promotion from the members of the Rajasthan Judicial Service and also by direct recruitment simultaneously. Provisions relating to the recruitment and control of subordinate judiciary are contained in Chapter VI of the Constitution of India in Arts. 233 to 237. Art. 233 provides that the appointments of persons to be, 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 jurisdiction in relation to such State. A person not already in the service of the State who has been for not less than seven years an Advocate or pleader on being recommended by the High Court shall be appointed as a District Judge by the Governor. Art. 234 provides that appointments of persons other than district judges to the Judicial Service are to be made by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and the High Court. Art. 235 relates to the control of the High Court over the subordinate courts. Art. 236 defines the expression 'district Judge' and 'judicial service'. Art. 237 provides for the application of Chapter VI and rules made thereunder to any class or classes of magistrates.
(3.) IT is in the background of the above constitutional provisions that the objections raised on behalf of the petitioners and validity of the impugned rules is to be determined. It is admitted on behalf of the respondents that the impugned rules were not framed under Art. 234 and the petitioners also conceded that rules so far as they relate to conditions of service of members of the judicial service are not challengeable. The real controversy between the parties is in regard to the rules contained in parts III, IV, V and VI of the rules relating to recruitment to the Higher Judicial Service. The contention is that the Governor has no jurisdiction under Art. 309 to frame rules with regard to the recruitment to the judicial service whether it be of District Judges or other than District Judges because under the Constitution such rules can be made only in accordance with the provisions of Articles 233 and 234 of the Constitution. It is contended that independence of the judiciary would be seriously impaired if power to frame rules in regard to recruitment to the judicial service in the State is held to vest in the State Legislature or the Governor under Art. 309 which is expressly made subject to the other provisions of the Constitution. It is pointed out that Arts. 233 and 234 are special articles dealing with the appointment of District Judges and of persons other than the District Judges and all appointments to the judicial service should be strictly made in compliance with the aforesaid provisions. Reliance is placed on N. Devasahayam vs. State of Madras (l) and Rajvi Amar Singh vs. State of Rajasthan (2 ). We agree that Arts. 233 and 234 Govern the appointments of the District Judges and other officers falling within that category as defined under Art. 236 of the Constitution and of persons other than District Judges and the power conferred upon the State Legislature and the Governor under Art. 309 and its proviso is subject to the provisions of the Constitution as its opening words show and therefore the rules framed in that behalf must satisfy the requirements of the said Articles of the Constitution. Since in the present case the rules do not relate to the appointments of persons other than District Judges as defined under Art. 236 of the Constitution as we shall presently discuss, it is unnecessary to determine their validity in the light of the provisions of Art. 234 of the Constitution but has to be judged in the light of Art. 233 only. Art. 309 in our view, contains a general provision empowering the Governor of a State to make rules regulating to Recruitment and the conditions of service of persons appointed, to public services and posts in connection with the affairs of any State until the appropriate legislature makes any enactment in that behalf. These general provisions are however subject to the other provisions of the Constitution. Therefore, Article 309 will have to be read as subject to the provisions of Article 233 of the Constitution. That means that if any rules are framed by the Governor under proviso to Art. 309 relating to the appointment of District Judges they must be in conformity with the provisions of Art. 233 of the Constitution. If that requirement is satisfied, we do not see any valid reason to reject those rules simply because they purport to have been made under Art, 309. Supposing the rules framed by the Governor under proviso to Art. 309 contain provisions for consultation with the High Court as regards the selection of candidates and their appointments to the post of District Judges; we do not see why such rules should be regarded as violative of Art. 233 of the Constitution. No doubt Art. 309 is subject to Art. 233 of the Constitution but if the rules framed under Art. 309 do not violate the provisions of Art. 233 such rules cannot be said to be unconstitutional, or without jurisdiction. We are unable therefore, to agree with the broad contention urged by the learned counsel for the petitioners that the rules should be struck down on the ground that they were framed by the then Raj Pramukh under the proviso to Art. 309. In the Madras case relied upon by the learned counsel the controversy was with regard to the correct interpretation of Art. 234 as to whether the 'consultation' referred to in the Article is with reference to the 'appointments' with which the Article opens or to the framing of the rules in pursuance of which the appointments should be made and it was held that: - "art. 234 confers an independent rule making power subject to the specific condition that it should be framed in consultation with the Public Service Commission and the High Court. The absence of a comma or other punctuation mark in the Article which could serve to specify "the appointment" as the event which requires the consultation, the expression 'foregoing provisions, of this Chapter and any rules made thereunder' in Art. 237 and the terms of sec. 255 of the Government of India Act, 1935, support this view. " In Rajvi Amar Singh's case (2) also the court was concerned with Art. 234 of the Constitution and it was held "that the appointment of persons in the judicial services (other than District Judges) has to be made in accordance with the provisions of Art. 234 and from among such members of the judicial service the appointment of District Judges can be made (an exception having been made in the case of advocates and pleaders ). " In our view these cases are of no help to the petitioners. Article 233 makes a provision for the appointments of persons to be, and the posting and promotion of, District Judges by the Governor in consultation with the State High Court. In the case of persons not already in the service of the State appointments are to be made by the Governor on the recommendation of the High Court provided the candidate has been for not less than seven years an advocate or a pleader. Consultation can be made with the High Court as and when occasion for appointment, posting and promotion to the post of a District Judge might arise. Similarly, the High Court can make recommendation for the appointment of a person who is not already in the service of the State as and when such occasion might arise. If instead of making consultation with the High Court on every occasion for each individual case the Governor in consultation with the High Court makes rules regulating the recruitment of persons to such service, in our view it would not be violative of any constitutional provision. We may at this stage point out that during the course of arguments an affidavit of Shri Sukhdeo Mirdha, Registrar, Rajasthan High Court who had been also appointed officer in charge in this case, was filed before us on behalf of the respondents. In paragraph 2 of the affidavit it is stated that: - "the draft of the Rajasthan Higher Judicial Service Rules was received in the High Court for examination and approval and that the High Court after examining the said draft communicated its approval for framing of the Rules as contained in the letter dated 20. 12. 1964. Further on 1. 4. 55 when the then Chief Justice was at Jodhpur, a conference of Law Minister and Hon'ble Chief Justice took place and in the said conference this question was further discussed and then finally the Rajasthan Higher Judicial Service Rules were made by the Raj Pramukh with the consultation of the High Court and a notification in this connection was issued on 9. 5. 1955. " On behalf of the petitioners no affidavit to controvert the above statement was submitted even though we gave them opportunity to do so. We do not therefore see any reason to doubt the correctness of the statement made by Shri Mirdha in this affidavit. We, therefore, believe that the rules were framed by the then Raj Pramukh in consultation with the High Court of Rajasthan. An objection was taken on behalf of the petitioners that the affidavit of Mr. Mirdha was inadmissible and cannot be used to supply a patent defect in the rules in as much as the notification issuing the rules specifically says that they were framed under Art. 309 of the Constitution. Therefore, evidence cannot be given to show that they were made in consultation with the High Court. Reliance was placed on Rai Brijnandan Prashad and others vs. Mahabir Prasad and others (3), (Bhagat) Gobind Das and others vs. Rup Kishore and others, (4), K. V. Subremania and others vs. Shanmugan Chettiar and others (5) and Keshavlal Lallubhai Patel vs. Lalbhai Mills Ltd. (5a ). We do not see how these cases have any application on this question. There is no ambiguity in the notification so as to attract the application of sec. 93 of the Evidence Act and we do not see why evidence cannot be given to show that the rules were in fact framed in consultation with the High Court. We, therefore over-rule this objection. ;