IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5713 of 1991 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- RAMESH M PARMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 5713 of 1991 MR KETAN A DAVE, Advocate for the Petitioner MR.R.C.KODEKAR, ASST. GOVERNMENT PLEADER for the Respondent No. 1 - State of Gujarat MR JB PARDIWALA, Advocate for the Respondent No. 2 - High Court of Gujarat -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 15/07/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court) 1. The petitioner, who is an advocate, has challenged the constitutionality of the provisions of the Gujarat Judicial Service Recruitment Rules, 1961 on the ground that they are violative of Article 16(4) of the Constitution of India as they do not provide for reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes in the judicial services. 1.1 There were other challenges raised in the petition as to the fixing of the minimum income limit for the purpose of considering the candidates, not inviting applications by advertisement and relying upon the recommendations made by the Principal Judicial Officers, including the District Judges, and in respect of the candidate (Shri A.A.Shaikh), who was not included in the select list. But, at the outset, the learned counsel for the petitioner made it clear to us that the petition is being confined only to the challenge against the impugned recruitment rules on the question of reservation in subordinate judicial service as warranted under Article 335 of the Constitution of India read with Article 16(4). 2. Since the petition is now confined only to the question regarding reservation policy in judicial service and the challenge against the validity of the impugned recruitment rules, we will refer to the pleadings relevant to the controversy centering around that issue. 2.1 It has been contended in the petition that, in respect of the direct recruitment which was being made to the post of Small Causes Judges and Civil Judges (Senior Division), the impugned rules did not provide for any reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes. According to the petitioner, in the High Court, there was only 3% representation of the Scheduled Castes and "nil" representation for the Scheduled Tribes. Under Article 16(4) of the Constitution, adequate participation of backward class of citizens in the management of the society was contemplated at all levels and judicial administration was not beyond the purview of that provision. Moreover, the Directive Principle enunciated under Article 46 requires the State to promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes and to protect them from social injustice and all forms of exploitation. It was also contended that the impugned rules violated the provisions contained in Article 335 of the Constitution which directed the state to take into consideration the claims of the members of the Scheduled Castes and the Scheduled Tribes consistently with the maintenance of efficiency of administration in the making of appointments to services and posts in connection with the affairs of the Union or a State. According to the petitioner, the impugned recruitment rules operated to perpetuate inequality inasmuch as they did not provide for any consideration for the representation of the backward classes. It was also contended that no reservation or preference for Scheduled Castes, Scheduled Tribes or Other Backward Class candidates was, in fact, considered by the Selection Committee, which had undertaken the process of appointment by direct recruitment to some posts of Civil Judges (Senior Division) and Judges of Small Causes Court, Ahmedabad. 3. Rule 4(1)(ii), inter alia, provided for method of appointment to a post in the cadre of Civil Judges (Senior Division) by direct selection, which belongs to Class I of the Junior Branch. Rule 4(2)(ii), inter alia, made a provision for the post of Judge of the Small Causes Court, Ahmedabad. Under sub-rule (4) of Rule 4, it was provided that where an appointment to any post is to be made by direct selection, it shall be made from amongst the candidates who are not more than 45 years of age (except that candidates belonging to communities recognized as Backward by Government for purposes of recruitment may not be more than 48 years). Admittedly, there is no provision in the impugned rules having any bearing on reservation of vacancies or posts in judicial services covered by them. 4. The learned counsel appearing for the petitioner submitted that the power under Articles 16(4), 46 and 35 of the Constitution was coupled with duty and the respondent No.2 - High Court was required to strike a balance between the claims of backward classes and the consideration of efficiency in administration. He submitted that the problem of adequate representation of backward class of citizens was required to be fairly and objectively considered under Article 16(4) of the Constitution and considering the benefit of reservation cannot be denied to backward classes merely on the basis that there was likelihood of the efficiency of administration being affected thereby. He further argued that the respondent No.2 was required to undertake an exercise to find out under Article 16(4) whether there were backward classes and whether such classes were adequately represented in service. No such exercise was undertaken by the respondent No.2. He submitted that since the impugned rules did not take care of the reservation aspect, the important provision of Article 16(4) read with Article 335 of the Constitution, which provided for an affirmative action to ameliorate the lot of backward classes, was ignored. He further submitted that there was no separate provision made for reservation in the context of the recruitments under the impugned rules. The respondent No.2 had, therefore, failed in its duty in not considering the aspect of reservation in judicial services and not making any provision for reservation for the SC / ST / OBC candidates in the recruitment rules or other rules or orders in connection with the judicial services covered under the recruitment rules. 4.1 In support of his contentions, the learned counsel for the petitioner placed reliance on the following decisions : [a] Reliance was placed on the observations made in paragraph 51 of the decision of the Supreme Court in Indra Sawhney v. Union of India reported in AIR 2000 SC 498, at page 515, to the effect that the qualifications, standard and talent necessary for Backward Classes cannot be relaxed or reduced to a level which may affect the efficiency of administration, in order to submit that such standards which are fixed would take care of the level of efficiency of administration and therefore, once a backward class candidate has crossed that standard, there would be no question of the efficiency of administration being affected if benefit of the reservation policy is given to such candidate. [b] The decision of the Supreme Court in Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, reported in AIR 1981 SC 298, was cited for the proposition reflected in paragraph 21 of the judgment that, Article 16 which guarantees equal opportunity for all citizens in matters of State Service inherently implies equalization as a process towards equality, but also hastens to harmonize the realistic need to jack up "depressed" classes to overcome initial handicaps and join the national race towards progress on an equal footing and devotes Article 16(4) for this specific purpose. Article 16(4) is not a jarring note but is auxiliary to fair fulfillment of Article 16(1). The prescription of Article 16(1) need, in the living conditions of India, the concrete sanction of Article 16(4) show that those wallowing in the social quagmire are enabled to rise to levels of equality with the rest and march together with their brethren whom history had not so harshly hamstrung. [c] Reliance was placed on the decision of the Supreme Court in Indra Sawhney v. Union of India, reported in 1992 Supp. (3) SCC 217 [AIR 1993 SC 477] for pointing out that, in paragraph 836 of the judgement, it has been pointed out that the mandate of Article 335 is to take the claims of members of Scheduled Castes and Scheduled Tribes into consideration consistent with the maintenance of efficiency of administration, and that, it would be misreading of the Article to say that the mandate is maintenance of efficiency of administration. The learned counsel also pointed out that it was held therein that it cannot be ignored that the very idea of reservation implies selection of a less meritorious person. The Supreme court held: "At the same time, we recognize that this much cost has to be paid, if the constitutional promise of social justice is to be redeemed". 5. The respondent No.2 - High Court has filed an affidavit-in-reply contesting the petition. Since the only issue regarding reservation policy for judicial posts was argued and other questions raised in the petition were expressly given up, we would refer to the averments which have bearing on that issue from the reply to ascertain the stand of the respondent No.2. According to the respondent No.2, the provisions of the impugned rules are just, legal and proper and the criterion adopted by the administrative side of the High Court in recommending the candidates for appointment to the posts of judicial services is also just and proper. It is stated that, for recommending candidates for judicial posts, a Special Committee consisting of Hon'ble Judges of the Gujarat High Court is constituted and such Committee prepares list of suitable candidates considering their merits and then the High Court makes recommendation to the government for appointments to the judicial posts. In paragraph 5 of the reply, it is stated that there is no procedure prescribed with regard to the process of selection in the recruitment rules and therefore, it is open to the respondents authorities to adopt any suitable, just and proper method for selecting candidates having the requisite qualifications as per the Recruitment Rules for appointment to the judicial posts covered under the rules. It is stated that there is no provision with regard to any reservation for Scheduled castes and Scheduled Tribes candidates in the Recruitment Rules and "looking to the duties which are performed by Judicial Officers, it is not thought necessary to have any reservation in the Judicial posts". In paragraph 6 of the reply, it is stated that Article 16(4) of the Constitution of India is to be read alongwith Article 335 which provides that efficiency in the administration should also be maintained while considering the question with regard to reservation for Scheduled Castes and Scheduled Tribes candidates. It is then stated that : "It is further submitted that applying reservation policy might become harmful to judiciary and therefore, policy with regard to reservation for Scheduled Castes and Scheduled Tribes candidates etc. has not been followed, specifically when Article 335 of the Constitution of India requires maintenance of efficiency in administration. It is submitted that there is no constitutional compulsion or obligation with regard to having reservation policy in the appointment to the judicial posts." Again in paragraph 8 of the reply, it is stated that there is no obligation on the part of the High Court to recommend names of candidates belonging to Scheduled Castes and Scheduled Tribes or other persons belonging to backward classes, and that the provision of Article 335 of the Constitution of India is also to be taken into account while deciding whether posts should be reserved for Scheduled Castes and Scheduled Tribes candidates. 5.1 Apart from the clear stand taken in the reply, which was adhered to throughout the hearing, that the High Court was of the view that the policy with regard to reservation for Scheduled Castes and Scheduled Tribes candidates has not been followed, because, applying reservation policy might become harmful to judiciary as the posts in judiciary require high degree of efficiency and responsibility, the learned counsel for the respondent No.2 has placed on record certain documents showing the orders made from time to time which reflected the stand of the High Court on the question of reservation in judicial posts. A copy of the application under which the documents were produced was duly served on the learned counsel for the petitioner alongwith the copies of the documents. 5.1.1 It appears from these documents that a decision was taken by the Chamber Meeting held on 1-2-1977 in respect of the direct recruitment to judicial posts to adopt the following resolution passed on the question at the Chief Justices' Conference held in November 1976 : "Posts should be reserved for Scheduled Castes and Scheduled Tribes in accordance with relevant rules in the State. However, if suitable candidates are not found, one more chance should be given and if even then suitable candidates are not found, the posts may be filled up by other suitable candidates." 5.1.2 As regards the posts to be filled in by promotion, it was decided by the High Court by its decision taken at the Chamber Meeting held on 13th September 1977 to accept the report of the Sub-Committee, dated 8th April 1977, inter alia, stating that : "efficiency being of paramount importance, reservation is likely to impair efficiency and therefore, part of the Government Resolution making reservation of the posts for Scheduled Castes and Scheduled Tribes in the posts to be filled up by promotion in Class I i.e. High Judicial Service in Judicial Department should not be implemented." 5.1.3 It appears from the record that, by letter written by the Hon'ble Chief Justice on 2-1-1977, it was informed to H.E. the Governor that the High Court had no objection for reservation being made in accordance with the aforesaid resolution passed at the Chief Justices' Conference held in 1976. 5.1.4 It appears from the note placed on record by the respondent No.2 - High Court that, on receipt of the Government of India letter dated 18th August 2001 regarding the second report of the Committee on the Welfare of Scheduled Castes and Scheduled Tribes, the full Court meeting held on 25th April 2001 decided as under : "It was decided to re-iterate the earlier stand of the High Court in the matter. The High Court is not in favour of making reservation in Class-I and Class-II of Judicial Service, more so in view of the Supreme Court decision reported in State of Bihar vs. Bal Mukund Sah (2000)4 SCC 640." (emphasis added). 5.1.5 Again the Full Court Meeting had considered the issue on 1-2-2003 and took the following decision : "It was resolved to re-iterate the earlier stand in the matter of Reservation for Scheduled Castes and Scheduled Tribes in Judiciary as decided earlier at various Chamber Meetings to the effect that, there is no scope for reservation at the promotional stage in any cadre of the Judicial Service and also at the Recruitment stage in Class-I posts, except the reservation now available, at the recruitment stage of the Class-II cadre of Civil Judges (Junior Division)." (emphasis supplied). 5.1.6 It is also brought on record that the Selection Committee appointed at the Chamber Meeting held on 2-8-2003 to look after the further process of recruitment to the posts of Civil Judges (Junior Division) subsequent to the written test met on 11th November 2003 to consider the question as to who should be called for Viva Voce Test, and in its decision dated November 12, 2003, the Selection Committee observed : "The Supreme court in its judgement in the matter of State of Bihar v. Bal Mukund Sah reported in (2000)4 SCC 640 has held that it is not necessary to have reservation while making recruitment to the judicial posts. Therefore, the decision of the Examination Committee dated 30-6-2003 laying down that those candidates belonging to SC-ST who obtain 50% or more marks in the Written Test should be considered as eligible for Viva Voce Examination need not be adhered to. ......." (emphasis added). 6. The learned counsel for the respondent No.2 High Court submitted that there was no constitutional obligation under Article 16(4) to provide for reservation. It was submitted that the provision of Article 16(4) was required to be read in the context of Article 335, which clearly provided that the claims of members of the Scheduled Castes and Scheduled Tribes shall be taken into consideration consistently with the maintenance of efficiency of administration in making of appointments to services and posts in connection with the affairs of the Union or of a State. It was argued that Article 16(4) was only an enabling provision and not a fundamental right and therefore, the challenge against the impugned rules on the ground that they violated Article 16(4) was misconceived. He submitted that Article 16(4) only confers discretion on the High Court, with regard to the appointments made by the High Court in exercise of its powers under Articles 233, 234 and 235 of the Constitution. It was submitted that, in making a provision for reservation for the Scheduled Castes, Scheduled Tribes and Other Backward Classes, the maintenance of efficiency of administration is a matter of paramount importance under Article 335. He submitted that the provision regarding efficiency of administration under Article 335 was of a mandatory nature. The learned counsel contended that the High Court, being the authority concerned, with regard to recruitment to judicial services, was in the best position to know whether any representation should be given in judicial services in the context of efficiency of administration. It was submitted that even if the High Court had accepted the policy of reservation for judicial posts, as reflected in the resolution made on 1-2-1977, if, in the final analysis, the High Court found that the effect of reservation cannot be given as that would hamper the efficiency of administration, then the High Court was justified in not making appointments as per the quota reserved. The learned counsel placed reliance on the averments made in the affidavit-in-reply filed on behalf of the High Court and submitted that, as stated therein, the High Court felt that applying reservation policy might become harmful to judiciary and therefore, policy with regard to reservation for Scheduled Castes and Scheduled Tribes candidates has not been followed, specifically when Article 335 of the Constitution of India requires maintenance of efficiency and administration. He submitted that the stand taken in the affidavit-in-reply has been taken after due deliberations by the High Court, and that even though, on record, there has been a Chamber Meeting resolution of 1-2-1977, as per which, the reservation policy under the rules of the State was adopted for judicial posts, in reality, while making appointment to the judicial posts, no such policy has been followed. He, however, submitted that there has been adequate representation of Scheduled Castes candidates in the cadre of Civil Judges (Junior Division) and the backlog was only in the category of Scheduled Tribes. The learned counsel also argued that a Judge, whose sacrosanct duty is to dispense justice, is expected to have a high level of intelligence and some expertise in the field of law and therefore, the High Court was justified in not implementing reservation policy in the judicial posts. It was submitted that the matter whether efficiency would be affected in the judicial administration if reservation is made, was a question within the exclusive domain of the Respondent No.2 - High Court. It was, however, stated that while publishing advertisement for the posts of Civil Judges (Junior Division) in the Gujarat State Judicial Services, Class II, it is always made clear that if no suitable candidates from SC / ST / SEBC are available, the post reserved for them will be filled from general category. 6.1 The learned counsel placed reliance on the following decisions in support of his contentions : [a] Reliance was placed on the decision of the Supreme Court in State of Bihar v. Bal Mukund Sah, reported in (2000)4 SCC 640 : [AIR 2000 SC 1296] in support of the proposition that the maintenance of efficiency of judicial administration was entirely within the control and jurisdiction of the High Court as laid down by Article 235, and that, the High Court would have an expertise to suggest that, for maintenance of efficiency of administration in the judicial services controlled by it, reservation may not be required at all. It was submitted that, from paragraph 38 of the judgement of the Supreme Court, it was clear that there can be instances where the High Court would be of the opinion that reservation was not required at all for the judicial posts under its control. Referring to paragraphs 41, 48, 58, 119 of the said decision, the learned counsel submitted that the High Court alone was in a position to know as to whether, and if so, to what extent the reservation policy should be adopted with regard to the judicial posts. [b] The decision of the Supreme Court in Ajit Singh v. The State of Punjab, reported in AIR 1999 SC 3471, was cited for the proposition that Article 16(4) and 16(4A) do not guarantee any fundamental right to reservation. The language of these Articles was in the nature of an enabling provision and they did not confer any fundamental rights nor do they impose any constitutional duties, but were only in the nature of an enabling provision vesting discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. [c] The decision of the Supreme Court in N.T.R. University of Health Sciences v. Babu Rajendra Prasad, reported in AIR 2003 SC 1947, was cited for the proposition that, how and in what manner the reservations should be made was a matter of policy decision of the State, which would normally not be open to challenge subject to its passing the test of reasonableness, as also the requirements of the Presidential Order made in terms of Article 371-D of the Constitution of India. [d] The decision of the Supreme Court in General Manager, Southern Railway v. Rangachari, reported in AIR 1962 SC 36, was cited for the proposition that the condition precedent for the exercise of the powers conferred by Article 16(4) is that the State ought to be satisfied that any backward class of citizens is not adequately represented in its services. [e] The decision of the Supreme Court in State Bank of India Scheduled Caste / Tribe Employees Welfare Association v. State Bank of India, reported in AIR 1996 SC 1838, was cited for the proposition that Article 16(4) did not confer any right and there is no constitutional duty imposed on the Government to make such a reservation. Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation. (paragraph 12). [f] The decision of the Supreme Court in C.A. Rajendra v. Union of India, reported in AIR 1968 SC 507, was cited for the same proposition that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make a reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion, and that, Article 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of