GOVT. OF BIHAR AND ORS. ETC. ETC. versus DAYANAND SINGH ETC. ETC.
[2016] 8 S.C.R. 803, Supreme Court of India, 2016
Outcome: Disposed off
Segment: Ratio
[2016] 8 S.C.R. 803 
GOVT. OF BIHAR AND ORS. ETC. ETC. 
v. 
DAYANAND SINGH ETC. ETC. 
(Civi!AppealNos. 9921-9923 of2016) 
SEPTEMBER 29, 2016 
[J, CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.] 
Judicial Service: Reservation - Service rules amended by 
appellant-State government providing for reservati0'!1 of posts in 
iudicial services in favour of backward classes - High Court, by 
impugned order, quashed the impugned Rules mainly on the ground 
that the amendments were not preceded by appropriate consultation 
with the High Court as contemplated u/Arts. 233 and 234 - On 
appeal, held: The consultation which preceded the amendments 
certainly fell short of the requisite standards of consultation 
necessary in the context - Impugned Rules declared illegal and 
unconstitutional - There is a huge number of vacancies in the 
iudicial services in the appellant-State, however, in view of pendency 
of the present litigation, the process for filling up of vacancies with 
respect to recruitment process which had started in the interregnum 
but was put on hold, be taken up expeditiously - Bihar Superior 
Judicial Service Rules, 1951 - r.4A - Bihar Civil Services (Judicial 
Branch) (Recruitment) Rules, 1965 - r.3A - Constitution of India -
Arts. 233 and 234. 
Reservation - In Judicial Service - Role/power of Executive 
vis-a-vis Judiciary - Constitutional imperatives and limitations -
Discussed - Held: Under the scheme of the Constitution, Executive 
is not the only authority to formulate
a policy for reservation - It is 
under a constitutional obligation to consult the High Court, both 
for framing and giving effect to such policy. 
Disposing of the appeals, the Court 
HELD: 1. In 2009, the State of Bihar amended the Rules 
framed under the proviso to Article 309 known as (i) Bihar 
Superior Judicial Service Rules, 1951, (ii) Bihar Civil Services 
(Judicial Branch) (Recruitment) Rules, 1965 by introducing Rule 
4A and Rule 3A respectively providing for reservation of posts 
803 
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B 
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804 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
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in favour of various backward classes of citizens.[Para 6](809-B-
C] 
2.1 The High Court quashed the two notifications of the 
State of Bihar by which the impugned Rules were made. The 
decision rested mainly on the finding that the amendments were 
B 
not preceded by appropriate consultation with the High Court 
contemplated under Articles 233 and 234. [Para 7][809-C-D] 
2.2 The High Court was right in holding that the consultation 
which preceded the amendments certainly fell short of the 
requisite standards of consultation necessary in the context and 
c that the two impugned Rules are required to be declared illegal 
and unconstitutional. [Para 10][810-E-F] 
3.1 It is clear from the stand of the Government of Bihar 
that as a matter of policy there is a need for providing appropriate 
reservations in favour of the various backward classes of citizens 
D even in the JUDICIAL SERVICES of the State of Bihar. 
However, under the scheme of the Constitution, the Executive 
is not the only authority to formulate such policy or to give effect 
to. The Executive is under a constitutional obligation to consult 
the High Court both for framing and giving effect to such policy 
E 
of providing reservations in the JUDICIAL SERVICES. 
[Para 
15][811-F-G) 
State of Bihar & Another v. Bal Mukund Sah & Others 
(2000) 4 SCC 640 : 2000 (2) SCR 299 - relied on. 
3.2 The assessment of the existence of the need for 
providing reservation and
matters incidental thereto is essentially 
F 
the function of the Legislature or the Executive, as the case may 
be, and in the realm of policy choice. But the power to frame the 
policy is structured by certain constitutional imperatives and 
limitations, viz. (i) the identification of the existence of backward 
classes in the State, (ii) the formation of the opinion that such 
G classes are not adequately represented in the JUDICIAL 
SERVICES of the State (iii) the determination of the question as 
to what would be the appropriate percentage of reservation 
required to be made with reference to the JUDICIAL SERVICE 
consistent with the obligation to maintain the efficiency of the 
JUDICIAL SERVICES. Such assessments are required to be 
H 
made on objective and rational considerations consistent with
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 
805 
SINGH ETC. ETC. 
the constitutional obligations of both the Executive and Judicial A 
branches of the State. It is held that the State of Bihar is entitled 
B-
to initiate the process of c01,1sultation by furnishing necessary 
information on its own assessment regarding the need to provide 
reservation in favour of specified backward classes in the 
JUDICIAL SERVICE of the State of Bihar. The State should 
also furnish its own assessment regarding the inadequacy of 
representation of the backward classes in the JUDICIAL 
SERVICES of the State and the desirable percentage of 
reservation in the JUDICIAL SERVICES and the relevant 
material on the basis of which the assessment is made. The High 
Court should thereupon consider the material furnished by the C 
State, make an appropriate assessment of the correctness of the 
proposal made by the State and convey its opinion and the reasons 
for such opinion to the State. If there is a consensus of opinion 
between the State and the High Court, the State would be at 
liberty to make the appropriate rules providing for reservation. D 
In the event of any difference of opinion, the Government must 
record reasons for its inability to accept the conclusions 
communicated by the High Court and proceed to amend the Rules 
in accordance with law keeping in mind the various constitutional 
principles governing the exercise of such power. (Paras 16, 
17][812-B-H; 813-A] 
E 
Supreme Court
Advocates-on-Recod Association & 
Qthers v. Union of India (1993) 4 SCC 441 : 1993 (2) 
Suppl. SCR 659 - referred to. 
3.3 In view of the existence of huge number of vacancies 
in the JUDICIAL SERVICES, the whole exercise must be 
completed expeditiously preferably by the 1" of January, 2017. 
Thereafter, the process for filling up of the vacancies in the judicial 
service shall be taken up expeditiously by all concerned and 
completed by 30'h June, 2017. [Para 18][813-B] 
Indra Smvhney v. Union of India and Others (2000) 1 
SCC 168 : 1999 (5) Suppl. SCR 229 ..:.. referred to. 
Case Law Reference 
1999 (5) Suppl. SCR 229 
referred to Para 5 
F 
G 
2000 (2) SCR 299 
relied on 
Paras 15 and 16 
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806 
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SUPREME COURT REPORTS 
(2016] 8 S.C.R. 
1993 (2) Suppl. SCR 659 
referred to 
Para 17 
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9921-
9923 of2016. 
From the Judgment and Order dated 10.11.2014 of the High Court 
ofJudicature at Patna in C. W. J.C. Nos. 14677/2009, I 0226/2010 and 
B 
7508/2011. 
c 
WITH 
C. A. No. 9924 of 2016. 
SLP(C) Nos. 11363-11364, 14625-14626, 22190 of2015 
P.S. Patwalia, ASG, Ajit Kumar Sinha, Sr. Adv., Samir Ali Khan, 
Maurya Vijay Chandra, Sriyan Sinha, Shashank Singh, Prem Prakash, 
Shashank Kr. Saurav, D. K. Devesh, Gautam Singh, Saket Singh, S.K. 
Roshan, Ritesh Khatri, Nitin Kr. Thakur, Ad vs. for the Appellants. 
D 
Amrendra Sharan, Pravin H. Parekh, Guru Krishna Kumar, Sr. 
Advs., Kshatrshal Raj, Vishal Prasad, Ms. Aparajita Mukherji, Mis. 
Parekh & Co, Navin Prakash, Sanjay Kumar Dubey, Rakesh Kumar 
Tiwari, Ms. Shuchi Singh, Devendra Kr. Shukla, Anil K. Mishra, 
Chakrapani, Anurag Singh, Yadav Narender Singh, Krishna Kant Dubey, 
Upendra N. Mishra, Satyendra Srivastava, Vivek Vardhan, Raj iv Nandan 
E Dwivedi, Chakrapani, Anurag Singh, Anil Kumar Mishra, Advs. for the 
Respondent. 
F 
Rake3h Kumar, Petitioner in person 
The following Order of the Court was delivered 
ORDER 
SLP(C) Nos. I 0163-10165/2015 AND SLP(C) No. I 1365/2015 
I. Leave granted. 
:: These appeals are preferred aggrieved by a common judgment 
G dated 10.11.2014 passed in a batch of writ petitions by the High Court of 
Judicature at Patna. Civil Appeals
arising out ofSLP (C) Nos. 10163-
10165/2015 are filed by the State of Bihar. Other Civil Appeals arising 
out of SLP(C) No.11365/2015 etc. are filed by various parties to the 
above-mentioned batch of petitions, i.e. petitioners and other respondents 
therein. 
H
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 
807 
SINGH ETC. ETC. 
3. The controversy in these appeals is with respect to the authority A 
of the State of Bihar to provide for reservation in favour of persons 
belonging to various backward classes of citizens contemplated under 
Article 16(4) of the Constitution such as SC/ST/OBC etc. in the superior 
and subordinate judicial services of the State of Bihar (hereafter 
collectively referred to as JUDICIAL SERVICES). 
B 
4. We are informed that prior to 1991 under the relevant service 
rules applicable to JUDICIAL SERVICES, certain posts were reserved 
in favour of citizens belonging only to SC and ST categories, the details 
of which may not be necessary at this juncture. In the year 1991, the 
State ofBihar made an enactment called Bihar Reservation ofVacancies 
in Posts and Services (for scheduled castes, scheduled tribes and other C 
backward classes) Act, 1991. The said Act provided for reservation of 
certain percentage of posts in favour of various specified classes of 
citizens in various services under the State. Question arose whether the 
said Act would apply and the benefit of reservation provided therein 
would extend to the JUDICIAL SERVICES. Eventually, the question 
D 
was examined by this Court in State of Bihar & A11other v. Bal Muku11d 
Sah & Others, (2000) 4 SCC 640. This Court, on a literal construction 
of the Act, opined that the application of the Act extended even to the 
JUDICIAL SERVICES. 
"27.
...... .. .. .. It is difficult to appreciate this line of 
reasoning on the express language of the relevant provisions 
of Section 4 read with the definition provisions. It becomes 
obvious that the term any office of the Judiciary of the State 
ofBihar would naturally include not only ministerial staff 
but also officers, including Presiding Officers of courts 
comprised in the Judiciary of the State. Once that conclusion 
is reached on the express language of the relevant provisions 
of the Act, it cannot be held that the thrust of Section 4 
would not apply to govern reservation for direct recruitment 
to the posts of Presiding Officers in the District Courts as 
well as courts subordinate thereto, as all of them will form 
part and parcel of the Judiciary of the State ofBihar and 
will have to be treated as holders of offices in the State 
Judiciary." 
However, this Court further held that such a construction of the 
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Act would render the Act unconstitutional. The reason for such a H
808 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
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conclusion is that having regard to the scheme of the Constitution of 
India dealing with the JUDICIAL SERVICES, the State Legislature 
would be incompetent to make any law dealing with the appointment of 
judicial officers. Appointment of judicial officers is to be made only in 
accordance with the prescription contained in Article 233 and 234. 
B 
c 
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"36. It becomes, therefore, obvious that no recruitment to 
the post of a District Judge can be made by the Governor 
without recommendation from the High Court. Similarly, 
appointments to Subordinate Judiciary at grass-root level 
also cannot be made by the Governor save and except 
according to the rules framed by him in consultation with 
the High Court and the Public Service Commission. Any 
statutory provision bypassing consultation with the High 
Court and laying down a statutory fiat as is tried to be done 
by enactment of Section 4 by the Bihar Legislature has got 
to be held to be in direct conflict with the complete Code 
regarding recruitment and appointment to the posts of 
District Judiciary and Subordinate Judiciary as permitted 
and envisaged by Articles 233 and 234 of the Constituti,on. 
Impugned Section 4, therefore, cannot operate in the clearly 
earmarked and forbidden field for the State Legislature so 
far as the topic of recruitment to District Judiciary and 
Subordinate Judiciary is concerned. That field is carved out 
and taken out from the
operation of the general sweep of 
Article 309." 
5. This Court further held that it is open to the GovernorofBihar 
to make appropriate rules providing for reservation of persons in 
JUDICIAL SERVICES in accordance with law and in consultation with 
the High Court. 
"37 ................ it is only the Governor who is entrusted 
with the said task which he has to undertake after 
consultation with the High Court and by framing appropriate 
rules for recruitment to Judiciary at grass-root level as 
enjoined by Article 234 and can only act on recommendation 
by the High Court for direct recruitment from the Bar for 
being appointed as District Judges as laid down by Article 
233 sub-article (2)."
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 
SINGH ETC. ETC. 
It goes without saying that the Governor while making such 
provision for reservation is bound by the various principles of law 
regulating the exercise of such power. The relevant principles are 
enunciated in Indra Saw/mey case1 etc. 
6. On 2S1h June, 2009, the State ofBihar amended the Rules framed 
under the proviso to Article 309 known as (i) Bihar Superior Judicial 
Service Rules, 1951, (ii) Bihar Civil Services (Judicial Branch) 
(Recruitment) Rules, 1965 by introducing Rule 4A and Rule 3A 
respectively providing for reservation of posts in favour of various 
backward classes of citizens. 
Both the newly introduced Rules are 
substantially similar2. 
7. The above mentioned two Rules came to be challenged in a 
batch of writ petitions in which the judgment under appeal came to be 
rendered. By the judgment under appeal, the High Court quashed the 
two notifications3 of the State of Bihar by which the impugned Rules 
were made. The decision rested mainly on the finding that the 
amendments were not preceded by appropriate consultation with the 
High Court contemplated under Articles 233 and 234. 
"In my view, the correspondence relied upon by the State 
Government can hardly be said to be consultation in the 
real sense of the word. Writing letters and displaying the 
earnestness of the Government for providing desired 
1 Indra Sawhney v. Cnion of India & Others, (2000) I SCC 168 
" '"4A - the Bihar
Reservation of Vacancies in Post and Services (for Scheduled 
Castes, Scheduled Tribes and Other Backward Classes) Act 199 L (as amended 
from time to time shall also apply to direct recruitment to the post Additional 
District and Sessions Judge." 
'"3A-The Bihar Reservation of Vacancies in Post and Services (for Scheduled 
Castes, Scheduled Tribes and Other Backward Classes) Act 1991, (as amended 
from time to time) shall also apply to direct recruitment to the post Civil 
Judge (Junior Division)." 
•·The impugned Notification No.6067 dated 25'h June 2009 issued in respect 
of the Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955, 
and the Notification No.6069 dated 25'h June 2009 issued in respect of the 
Bihar Superior Judicial Servke Rules, 1951 are quashed and set aside. 
Legal consequences shall follow." 
809 
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SUPREME COURT REPORTS 
[2016) 8 S.C.R. 
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reservation in Judicial Services cannot be said to be 
consultation. The State Government was required to pay 
attention to the opinion of the High Court keeping in view 
the general representation of different classes, the total 
strength of the judicial officers and the maintenance of the 
B 
high standards in respect of dispensation of justice." 
8. Apart from that, the High Court made various other observations 
in the judgment regarding the manner in which the amendments were 
made and the desirability of such amendments. Such observations, in 
our opinion, are not warranted in the context of the issue before Court. 
The High Court ought to have kept in mind that it was the legislative 
C decision of the State which was the subject matter of dispute before it, 
while the High Court undoubtedly has the jurisdiction to determine the 
constitutionality of the 'law' the motives behind the law and the wisdom 
of the legislative body are not amenable to the judicial review. 
9. We have heard learned Additional Solicitor General appearing 
D for the State of Bihar, learned senior counsel appearing for the High 
Court and the learned counsel appearing for various contesting parties 
in detail. We have also perused the correspondence that took place 
between the State .Government and the decisions taken by the High 
E 
Court on administrative side and the material relied upon by the High 
Court for such decisions. 
10. We agree
with the conclusion recorded by the High Court 
that the consultation which preceded the amendments certainly fell short 
of the requisite standards of consultation necessary in the context. We 
do not see any reason to interfere with the conclusion of the High Court 
F that the two impugned Rules are required to be declared illegal and 
unconstitutional. We accordingly confirm the conclusion. 
11. However, 25 years passed by in the process of this prolonged 
litigation. The first round commenced sometime in the year 1991 with 
writ petitions which eventually culminated in Bal Mukund case. The 
G second round with the amendment to the Rules governing the JUDICIAL 
SERVICES in the year 2009. However, during the said quarter century, 
steps were taken from time to time to fill up vacancies that arose in the 
JUDICIAL SERVICES of the State ofBihar. For the present, we are 
only concerned with the steps taken in the years 2009 and 2012. 
H 
12. In the year 2009, the State ofBihar initiated proceedings for
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DA YAN AND 
811 
SINGH ETC. ETC. 
filling up 217 posts and in the year 2012, for filling up of another 118 
A 
posts of the subordinate judicial service. 
13. Insofar as the recruitment process initiated in the year 2009 
for filling up 217 posts is concerned, it is agreed (on all hands) before us 
that the process is complete and the posts are filled up. Insofar as 2012 
recruitment for 118 posts is concerned, though the selection process is 
B 
complete, only 88 successful candidates have been appointed (because 
of various orders, whether interim or final of the High Court and this 
Court). We are also informed that appointment orders in favour of 92 
successful candidates were issued but only 88 have in fact joined and 
other 4 did not join the service. 
14. We are informed that, in the interregnum, on 13.1.2016, another 
advertisement calling for applications from eligible candidates for filling 
c 
up of206 posts of Junior Civil Judges came to be issued by the State of 
Bihar. We are informed that preliminary examination for shortlisting the 
candidates eligible for taking the final examination for the recruitment 
process has already been conducted. But in view of the pendency of D 
the present litigation, the process is put on hold. We are also informed 
that subsequent to the above-mentioned notification, some more 
vacancies arose either by creation of new posts or otherwise. In all, as 
on today, 406 posts of junior civil
judges are lying vacant and appropriate 
steps are required to be taken to fill up such posts. Jn substance, a large 
E 
number of posts in the JUDICIAL SERVICE are vacant. 
IS. From the submissions made before us, it is clear from the 
stand of the Government of Bihar that as a matter of policy there is a 
need for providing appropriate reservations in favour of the various 
backward classes of citizens even in the JUDICIAL SERVICES of the 
F 
State of Bihar. However, under the scheme of the Constitution, the 
Executive is not the only authority to formulate such policy or to give 
effect to. The Executive is under a constitutional obligation to consult 
the High Court both for framing and giving effect to such policy of 
providing reservations in the JUDICIAL SERVICES. The legal position 
in this regard is made clear on more than one occasion by this Court. In 
G 
the context of the State of Bihar, the law is declared in B"I Mukund 
case (supra). 
16. This Court observed in B"I Mukund c"se that a constitutional 
body like the High Court cannot be believed to be oblivious to "the need 
H
812 
SUPREME COURT REPORTS 
[2016] 8 S.C.R. 
A 
for a scheme of reservation". 
B 
c 
"32 ......... It is not as if that the High Courts being 
constitutional functionaries may be oblivious of the need 
for a scheme of reservation ifnecessary in appropriate cases 
by resorting to the enabling provision under Article 16( 4 ). " 
The assessment of the existence of the need for providing 
reservation and matters incidental thereto is essentially the function of 
the Legislature or the Executive, as the case may be, and in the realm of 
policy choice. But the power to frame the policy is structured by certain 
constitutional imperatives and limitations. They are (i) the identification 
of the existence of backward classes in the State, (ii) the formation of 
the opinion that such classes are not adequately represented in the 
JUDICIAL SERVICES of the State, (iii) the determination of the question 
as to what would be the appropriate percentage of reservation required 
to be made with reference to the JUDICIAL SERVICE consistent with 
the obligation to maintain the efficiency of the JUDICIAL_SERVICES. 
D 
Such assessments are required to 5e made on objective and rational 
considerations consistent with the constitutional obligations of both the 
Executive and Judicial branches of the State. 
E 
F 
G 
H 
17. We, therefore, hold that the State ofBihar is entitled to initiate 
the process of consultation by furnishing necessary information on its 
own assessment regarding the need to
provide reservation in favour of 
specified backward classes in the JUDICIAL SERVICE of the State of 
Bihar. The existence of backward classes in the State of Bihar and 
their identity is not in dispute. The State should also furnish its own 
assessment regarding the inadequacy of representation of the backward 
classes in the JUDICIAL SERVICES of the State and the desirable 
percentage of reservation in the JUDICIAL SERVICES and the relevant 
material on the basis of which the assessment is made. The High Court 
should thereupon consider the material furnished by the State, make an 
appropriate assessment of the correctness of the proposal made by the 
State and convey its opinion and the reasons for such opinion to the 
State. If there is a consensus of opinion between the State and the High 
Court, the State would be at liberty to make the appropriate rules providing 
for reservation. In the event of any difference of opinion, the Government 
must record reasons for its inability to accept the conclusions 
communicated by the High Court and proceed to amend the Rules in 
accordance with law keeping in mind the various constitutional principles
GOVT. OF BIHAR AND ORS. ETC. ETC. v. DAYANAND 
813 
SINGH ETC. ETC. 
governing the exercise of such power. Such an exercise is required to 
A 
be undertaken " ... not to detem1ine who between them is entitled to 
greater importance or is to take the winners prize at the end of the 
debate. The task (before us) has to be performed with this perception"". 
18. In view of the existence of huge number of vacancies in the 
JUDICIAL SERVICES, it is desirable that the whole exercise must be 
B 
completed expeditiously preferably by the I" of January, 2017. Thereafter, 
the process for filling up of the vacancies in the judicial service shall be 
taken up expeditiously by all concerned and completed by 30•h June, 
2017. 
19. We are left with a delicate problem. Some of the candidates5 
belonging to certain backward classes would have been entitled to get 
appointed pursuant to the 2012 notification, ifthe Rule 3A (referred to 
supra) were to be valid. In view of the fact that the rule itself is declared 
c 
to be illegal, they are not entitled as of right to be appointed against any 
reserved quota. Having regard to the facts that (i) a large number of 
vacancies exist in the JUDICIAL SERVICE, (ii) the question of D 
reservation is lingering for a quarter century, (iii) the remoteness of the 
possibility of the State completely failing to establish the need to provide 
for reservations in JUDICIAL SERVICES, we deem it appropriate to 
direct that these candidates be appointed to the
service against the 
vacancies which arose subsequent to the 2012 notification (seeking to 
fill up 118 vacancies). Their appointment shall be appropriately adjusted 
against the vacancies which are the subject matter ofrecruitment under 
the notification dated 13.01.2016 (referred to supra) and the vacancies 
which arose thereafter. The candidates appointed pursuant to the above 
directions would take their place after the 118 candidates (some of whom 
are already appointed and other to be appointed without reference to 
Rule 3A) for all purposes. The appeals are accordingly disposed of. 
SLP(C) Nos.11363-11364/2015AND SLP(C) Nos. 14625-14626/2015 
E 
F 
20. It is agreed that in view of the above order passed in Civil 
Appeals arising out ofSLP(C) No.10163-10165of2015, nothing survives 
G 
in these special leave petitions. These petitions are disposed of 
accordingly. 
'Supreme Court Advocates-on-Record Association & Others v. Union of India. (I 993) 
. 4 sec 441, para 438 
' Their exact number is not very certain - it is something between 20 or 23. 
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SUPREME COURT REPORTS 
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SLP(C)No.22190/2015 
Delay condoned. 
[2016] 8 S.C.R. 
21. The petitioner (an Advocate) appeared in person before us. 
In the judgment under appeal, certain adverse observations are made 
against the petitioner. The petitioner, we are informed, appeared before 
B the High Court in one of the matters and made certain submissions before 
the High Court. 
22. Having regard to the fact that the observations are made 
regarding the conduct ofthe petitioner in the High Court, we deem it 
appropriate not to examine the matter but leave it open to the petitioner 
C to approach the High Court with an appropriate application praying that 
the observations be expunged. It is open to the High Court to consider 
such application in accordance with law. 
23. The special leave petition stands disposed of accordingly. 
D 
Divya Pandey 
Matters disposed of.