Constitution of India, Articles 233, 234, 235 and 309 - Bihar Reservation of Vacancies in Posts and Services (for Schedule Castes Scheduled Tribes and Other Backward Classes) Act, 1991, s.4 - Act providing for reservation for direct recruitment to posts of District and subordinate Judges in Bihar - Validity of - Held s.4 of Act in its application to subordinate judiciary was ultra vires Articles 233 and 234 of the Constitution of India and could not be sustained - Bihar Judicial Service (Recruitment) Rules, 1955.

Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes (Act 1991, ss. 2(c), (n) and 4 - Held, even though the Act as framed applied to judicial service, the reservation provided by s.4 would not apply to direct recruitment to cadre of District and Subordinate judges; the question of filling up reserved posts in cadre of subordinate judges would remain germane to the extent of 24% for SC and ST candidates as prescribed as per the Bihar Judicial Service (Recruitment) Rules, 1955 - Constitution of India, Articles 14, 16(4) and (4-A).

Constitution of India Articles 235 and 309 proviso read with Entry 41 List II and Entry 11A List Ill - Legislative power of state in relation to judicial officers - Held, second part of Article 235 only permits legislation concerning conditions of service and not in relation to process of or providing reservation for recruitment of judicial officers.

Constitution of India, Articles 234 and 320 - Consultation - With the High Court a sine qua non.for direct recruitment of judicial officers at grassroot level; stood on an entirely different footing as compared to consultation with the Public Service Commission.

Words and phrases - "Separation of powers between the legislature the executive and the judiciary" - "Independent Judiciary" - Held, both concepts were now elevated to the level of basic structure of the Constitution and formed the very heart of the constitutional scheme - Interpretation of Statutes.

The Bihar Superior Judicial Service Rules, 1951 ['the 1951 Rules'], framed by the Governor of Bihar under the proviso to Article 309 and in consultation with the High Court of Patna, did not provide for any reservation for recruitment to the cadre of district judges. The Bihar Judicial Service (Recruitment) Rules, 1955 ['the 1955 Rules'] framed by the Governor of Bihar in consultation with the High Court and the Public Service Commission provided for reservation to the extent of 14% for SC and 10% for ST candidates in the lower judiciary at the grass-roots level.

Since the High Court had not agreed to the suggestion of the State authorities for providing reservation in the posts of district and subordinate judges, the Governor of Bihar issued an Ordinance which was replaced by the Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1991 ('Act') under which 50% of the posts to be filled up by direct recruitment were to be reserved for SCs, STs and Other Backward Classes (OBCs). Reiterating its stand that the recruitment to the posts of district judges could be made only in accordance with the 1951 Rules, the High court informed the State that while making appointments from the Bar for direct recruitment, preference may be given to SC and ST candidates of equal merit with general category candidates. The State Government nevertheless issued an advertisement on June 16, 1994 by which 27 of the 54 vacancies in the posts of district judges were to be filled up from reserved category of candidates.

Allowing the writ petitions challenging the advertisement as well as the Act, a Division Bench of the High Court struck down the terms of the advertisement as being ultra vires Article 233. The Act as far as it applied reservation to recruitment of persons other than district judges, was struck down as ultra vires Article 234. The State then appealed to this Court.

The appellant contended that the State's power to enact legislation to provide for reservation in posts in the judicial service was not excluded by Articles 233 to 235. Its legislative power flowed from a collective reading of Articles 16(4) and 309 read with Entry 41 of List II and entry 11-A of List III of the Seventh Schedule. Article 234 fettered only the rule-making power of the Governor but not the legislative power of the State. Further, the establishment of cadres and creation of posts was a stage prior to recruitment and was in the exclusive domain of the state. On behalf of the High Court it was contended that Article 309 and the state's legislative power there under had no application to the subordinate judiciary. It was excluded by Articles 233 to 235 which represented a complete code by themselves. The second part of Article 235 permitted State legislation only to govern the conditions of service of already recruited judicial officers.