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K. John Mathew, J.—Whether Rule 8 of the Kerala High Court Service Rules, 1970 as substituted by notification dated 20th December 1985 is ultra vires the powers of the 1st Respondent (Chief Justice, High Court of Kerala)? This common question arises in all these Original Petitions and the Writ Appeal. For the sake of convenience we are referring to the exhibit in O.P. No. 4626/1986.
The Petitioners in these Original Petitions except 0.P. Nos. 6210/86 and 4803/93 were applicants for the post of Assistant Grade II in the Kerala High Court Service. In O.P. No. 4803/93 the Petitioner is an Advocate and social worker who has filed that O.P. as a public interest litigation. In O.P. No. 6210/86 the Petitioner was an applicant for the post of Typist-Copyist Grade II in the Kerala High Court Service. The Petitioners belong to Backward Communities as defined in Kerala State and Subordinate Services Rules, 1958 (K.S. and S.S.R.). The Kerala High Court Service Rules, 1959 (1959 Rules) which came into force on 15th March 1960 were made by the then Hon''ble Chief Justice in exercise of the powers conferred on him by Article 229 of the Constitution of India. The State Government has not made any rule in exercise of the powers conferred by the proviso to Article 229(1) of the Constitution. The rules as framed in 1959 did not contain any provision for reservation of appointments in favour of any category of applicants. The 1959 Rules were replaced by the Kerala High Court Service Rules, 1970 (1970 Rules) which came into force on 19th January 1971. Rule 8 of the 1970 Rules read as follow:
Reservation of Appointments for Scheduled Castes and Scheduled Tribes.-Subject to suitable candidates being available, the rules for the time being in force in the general rules in Part II of the Kerala State and Subordinate Services Rules, 1958, regarding reservation of appointments for Scheduled Castes and Scheduled Tribes shall apply to direct appointments to the service: Provided that the cycle and the order of rotation shall be as prescribed by the Chief Justice from time to time and that if suitable candidates from Scheduled Castes and Scheduled Tribes are not available for appointment in the turns allotted to them, the vacancies will be otherwise filled up, the reservation being given effect to as early and as far as possible in the same cycle but not being carried forward to the next cycle.
This rule continued without any change for more than 13 years when by Ext. P-2 notification the rule was amended. Ext. P-2 notification is as follows:
THE HIGH COURT OF KERALA
No. A1-19644/84, C.S. No. 65
Cochin-682 031, dated 28th June 1984
NOTIFICATION
In exercise of the powers conferred by Article 229 of the Constitution of India, the Acting Chief Justice hereby makes the following amendment to the Kerala High Court Service Rules, 1970, namely:
Amendment (No. C.S. 65)
In the said rules, the following shall be substituted for the existing Rule 8.
Reservation of appointments for Scheduled Castes, Scheduled Tribes and Other Backward Classes.-Subject to suitable candidates being available, the rules for the time being in force in the general rules in Part II of the Kerala State and Subordinate Services Rules, 1958 regarding the reservation of appointments for Scheduled Castes, Scheduled Tribes and Other Backward Classes shall apply to direct appointments to the Service.
(By order), (Sd.) M.C. MADHAVAN, Registrar.
On 20th December 1985 the 1st Respondent issued Ext. P-3 notification substituting Rule 8. Ext. P-3 is as follows:
"HIGH COURT OF KERALA
No. R. 12/85 (S.S.)
Cochin-682 031, dated 20th December 1985.
NOTIFICATION
In exercise of the powers conferred by Article 229 of the Constitution of India, the Chief Justice hereby makes the following amendment to the Kerala High Court Service Rules, 1970, namely:
Amendment (C.S. No. 68)
In the said rules, the following shall be substituted for the existing Rule 8:
Reservation of Appointments for Scheduled Castes and Scheduled Tribes.-Subject to suitable candidates being available, the rules for the time being in force in the general rules in Part II of the Kerala State and Subordinate Services Rules, 1958, regarding reservation of appointments for Scheduled Castes and Scheduled Tribes shall apply to direct appointments to the service: Provided that the cycle and the order of rotation shall be as prescribed by the Chief Justice from time to time and that if suitable candidates from Scheduled Castes and Scheduled Tribes are not available for appointment in the turns allotted to them, the vacancies will be otherwise filled up, the reservation being given effect to as early and as far as possible in the same cycle not being carried forward to the next cycle.
The amendment shall come into force with effect from the 1st January, 1986.
(By order) (Sd.) M.C. MADHAVAN, Registrar.
According to the Petitioners, Ext. P-3 notification substituting Rule 8 of the High Court Service Rules violates Article 16(4) of the Constitution of India and is ultra vires the powers of the 1st Respondent. Therefore, the prayer is to direct the 1st Respondent to ignore the substituted rule as per Ext. P-3 and to apply the Rule 8 as amended under Ext. P-2.
The facts of the petition O.P. No. 4626/86 are as follows:-The Petitioner is a first class Science graduate. Pursuant to a notification issued by the 2nd Respondent inviting applications for appointment to the post of Assistant Grade II in the High Court Service, she also applied for a post. A written test was conducted followed by an interview by the 2nd Respondent and a rank list was prepared on the basis of the performance in the examination and interview. The Petitioner secured rank No. 161. The list came into force with effect from 19th October 1984. True extract of the ranked list is produced as Ext. P-1. In Ext. P-1 it was stated that subject to availability of vacancies appointment orders will be issued to the candidates following the rule of communal rotation. The Petitioner belongs to Ezhava community which is a backward community. She legitimately expected that she will be appointed before the expiry of the list particularly in view of the communal rotation principle made applicable to the appointments. However, on enquiry she came to understand that Rule 8 was amended by Ext. P-3 taking away the application of the principle of communal rotation in respect of backward classes with effect from 1st January 1986 and that appointments were being made on the basis of ranking. According to the Petitioner, she is entitled to be appointed applying the rule as substituted by Ext. P-2 ignoring Ext. P-3 notification. The general facts, grounds and reliefs prayed for in the other petitions are similar. Therefore, we are not referring to the facts in the other cases.
The Respondents have filed counter-affidavits. Some of the Petitioners have filed reply affidavits. The Kerala State Muslim Educational Society represented by its Secretary filed C.M.P. No. 9179/89 to implead the Petitioner in O.P. No. 6210/86. On that petition we ordered that the Petitioner will also be heard in the O.P. Accordingly learned Counsel for the Petitioner was also heard. The General Secretary of the Kerala Latin Catholic Association has filed C.M.P. No. 28434/86 to implead the Petitioner in O.P. No. 4626/86. We heard the learned Counsel for the Petitioner also. The President of the Viswakarma Service Society has filed C.M.P. No. 25063/86 to implead the Petitioner in O.P. No. 4626/86. We heard learned Counsel for that Petitioner also. The Kerala Muslim Jama-ath Council represented by its President filed C.M.P. No. 4794/93 to implead the Petitioner in O.P. No. 6210/86. On that petition we ordered that the Petitioner will also be heard in the O.P. Accordingly learned Counsel for the Petitioner was also heard. The Kerala Muslim Educational Association represented by its General Secretary filed C.M.P. No. 27893/86 to implead the Petitioner in O.P. No. 5959/86. We heard the learned Counsel for the Petitioner also. The Sree Narayana Dharma Paripalana Yogam, represented by its Secretary filed C.M.P. No. 27646/86 to implead the Petitioner in O.P. No. 4626/86. We heard the learned Counsel for the Petitioner also.
The point that arises for consideration is the following. Is Ext. P-3 liable to be judicially reviewed? If so, to what extent and in what manner?
Under Article 229 of the Constitution, appointments of officers and servants of 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. By this Article exclusive power to appoint officers and servants of a High Court is conferred on the Chief Justice or his nominee. As to the appointment of officers and servants, neither the legislature nor the executive could interfere with the Chief Justice''s exclusive power. No doubt, this power is subject to any law made by the State Legislature. But that is only in respect of the conditions of service of officers and servants of the High Court. The powers conferred on the Chief Justice under Clause (1) of Article 229 cannot be abridged or modified in the matter of appointment. The approval of the rules made by the Chief Justice by the Governor is confined only so far as they relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require the approval of the Governor see M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, and Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, The power under Article 229 is not subject to the other provisions of the Constitution, but is subject only to the fundamental rights in Part III of the Constitution. This position brings out the important part which the Constitution makers wanted the Chief Justice to play in the matter of appointment of officers and servants of a High Court. What Article 229 of the Constitution confers on the Chief Justice is a legislative power. The Kerala High Court Service Rules ate framed in exercise of the powers under Article 229(1) and (2) of the Constitution. To the extent to which the rules regulate the appointment of officers and servants of the High Court, they fall under Article 229(1). To the extent to which the rules deal with the conditions of service of officers and servants, they fall under Article 229(2).
It is well settled that the grounds on which a legislation can be reviewed is lack of legislative competence and violation of any of the Constitutional provisions see Atiabari Tea Co., Ltd. Vs. The State of Assam and Others, . In K. Nagaraj and Others Vs. State of Andhra Pradesh and Another, the Supreme Court held as follows:
It is impossible to accept the submission that the Ordinance can be invalidated on the ground of non-application of mind...Therefore, though an ordinance can be invalidated for contravention of the constitutional limitations which exist upon the power of the State legislature to pass laws it cannot be declared invalid for the reason of non-application of mind, any more than any other law can be. An executive act is liable to be struck down on the ground of non-application of mind. Not the act of a Legislature.
In T. Venkata Reddy and Others Vs. State of Andhra Pradesh, this position was reiterated as follows:
14...It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned. Dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the Courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the legislature in passing a statute is beyond the scrutiny of Courts. Nor can the Courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts.
It is not disputed that Ext. P-3 was issued under the legislative powers of the Chief Justice. Therefore, as far as Ext. P-3 is concerned, the Petitioners can successfully challenge the same only by establishing that it transgresses constitutional limits or infringes any of the fundamental rights. Even in case the opinion formed by the legislative authority is wrong; to what extent it can be reviewed by Courts came up for consideration in A.K. Roy and Others Vs. Union of India (UOI) and Others, . In that case the Supreme Court held that the power of the President or Governor to issue an Ordinance was a legislative power and such legislation is subject only to the same limitations as Parliamentary legislation. The heads of grounds on which administrative action is subject to control by judicial review viz. illegality, irregularity and procedural impropriety are not available where a legislation is to be reviewed. Even in the case of review of administrative action it is not within the purview of a Court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one. We are afraid that what the Petitioners are suggesting is to substitute the Court''s view in the place of the decision of the legislative authority. Such a request cannot be acceded to.
Whether Ext. P-3 violates Article 16(4) of the Constitution?
Equality of opportunity in matters of public employment-1 There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) and
(3) omitted.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
(5) omitted.
A wide range of minority rights are covered by the provisions relating to the fundamental rights. Articles 14, 15, 16, 25, 26 and 29(2) seek to protect them from hostile and discriminatory State action. A number of provisions have been incorporated in the Constitution for safeguarding the social, economic and educational interests of minority groups. The policy of the Constitution is to do away with caste and to strive to create a casteless society. There is no safeguard to any one based on caste except to the scheduled Castes to some extent. So also the Constitution does not recognise any religion or any kind of favoured treatment on the basis of religion but treats all religions alike, at the same time protecting the cultural or religious practises of all people from State interference. Under Article 15(4) the State is empowered to make any special provision for the advancement of any socially and educationally backward class besides the Scheduled Castes and the Scheduled Tribes. Under Article 16(4) there can be reservation of posts for backward classes. Article 340(1) empowers the President to appoint a Commission to investigate the conditions of socially and educationally backward classes in India and the difficulties under which they labour. The report of the Commission together with a memorandum setting out the action taken thereon by the Government is to be laid before each House of Parliament.
The Central Government appointed a Backward class Commission under Article 340 of the Constitution in 1953 popularly known as Kaka Kalelkar Commission. The Commission submitted its report in 1955. No meaningful action was taken after 1956 since the Government was apparently not satisfied with the approach adopted by the Commission in determining the criteria for identifying the backward classes under Article 15(4). In 1979 a Backward Class Commission was appointed under Article 340 of the Constitution commonly known as the Mandal Commission. The Commission submitted its report on 31st December 1980. This report came up for consideration before the Supreme Court in Indra Sawhney v. Union of India 1992 Supp. (3) S.C.C. 217. A special bench of nine Judges of the Supreme Court was constituted to finally settle the legal position relating to reservations in view of the several earlier judgments of the Supreme Court which were not uniform.
Before referring to the judgment in Indra Sawhney v. Union of India we may briefly refer to some earlier judgments. Certain orders issued by the State of Madras commonly known as ''Communal G.O.'' came up for consideration before the Supreme Court in The State of Madras Vs. Srimathi Champakam Dorairajan, and B. Venkataramana Vs. The State of Madras and Another, . In The State of Madras Vs. Srimathi Champakam Dorairajan, a Special Bench of seven Judges came to the conclusion that the allocation of seats on the basis of caste or community was violative of Articles 15(1) and 29(2) of the Constitution. In the matter of appointment to public services also a similar communal G.O. was issued in the State of Madras. That G.O. came up for consideration before the Supreme Court in B. Venkataramana Vs. The State of Madras and Another, The Court held that the communal G.O. infringed the fundamental rights guaranteed under Article 16(1) and (2). Accordingly the order was declared void and illegal. It was after the said decisions that Clause (4) was added to Article 15. Subsequent to this amendment the Court considered M.R. Balaji and Others Vs. State of Mysore, . In that judgment the Supreme Court struck down the order declaring all communities excepting Brahmin community as socially and educationally backward and reserving a total of 75 per cent seats in educational institutions in favour of such communities.
Thereafter the validity of the ''carry-forward'' rule obtaining in Central Secretariat Service came up for consideration before the Supreme Court in T. Devadasan Vs. The Union of India (UOI) and Another, . Under that rule, if a sufficient number of candidates are not available from the communities for whom reservations are made in a particular year, the unfilled vacancies should be treated as unreserved and filled by the best available candidates. The number of reserved vacancies thus treated as unreserved will be added as an additional quota to the number that would be reserved in the following year in the normal course. This rule was declared unconstitutional by the Constitution Bench holding that the carry-forward rule which resulted in more than 50 per cent of the vacancies being reserved in a particular year, was bad. The principle enunciated in M.R. Balaji and Others Vs. State of Mysore, ) regarding 50 per cent reservation was followed in T. Devadasan Vs. The Union of India (UOI) and Another, ). R. Chitralekha and Another Vs. State of Mysore and Others, was another case which came up before the Supreme Court where it was held that the order of the Government defining backward classes on the basis of occupation and income, unrelated to caste, was not bad and did not offend Article 15(4). In Minor P. Rajendran Vs. State of Madras and Others, the Supreme Court had to consider the validity of identification of backward classes with reference to castes. It was held that caste is also a class of citizens and if a caste as a whole is Socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a Socially and Educationally Backward Class of citizens within the meaning of Article 15(4). The Supreme Court also held that Article 16(4) is an enabling provision and confers a discretionary power on the State to make reservation in favour of backward classes of citizens which is not adequately represented.
In State of Kerala and Another Vs. N.M. Thomas and Others, the Supreme Court held that Rule 13-AA of K.S. and S.S.R. granting exemption to members belonging to Scheduled Castes and Scheduled Tribes from passing tests was a valid provision. According to that judgment Article 16(4) is capable of being interpreted as an exception to Article 16(1) and the exemption was really under Article 16(1) and not under Article 16(4). In K.C. Vasanth Kumar and Another Vs. State of Karnataka, the five Judges constituting the Constitution Bench of the Supreme Court wrote separate opinions. Chandrachud, C.J. was of the opinion that the reservations should continue for a further period of 15 years making a total of 50 years from the date of commencement of the Constitution. He added that the ''means test'' must be applied to ensure that the benefit of reservations actually reaches the deserving sections. Desai, J. was of the view that the only basis upon which backward class should be identified is the economic one and that a time has come to discard all other bases. Chinnappa Reddy, J. was of the view that identification of backward classes on the basis of caste cannot be taken exception to for the reason that in the Indian context caste is the primary index of social backwardness.
Now that all these cases are considered by the nine Judges Bench of the Supreme Court in Indra Sawhney v. Union of India 1922 Supp. (3) S.C.C. 217 it is not necessary to consider the above judgments in detail. The Supreme Court referred to and considered these and other judgments. The Supreme Court also considered the judgments of the U.S. Supreme Court with a view to understand how another democracy is grappling with a problem similar in certain respects to the problem facing this country. The Supreme Court emphasized the fact that public employment always gave a certain status and power besides the means of livelihood and therefore, special care is to be taken to assure equality of opportunity in the matter of public employment. At the same time, care was taken to declare that nothing in the said article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the services under the State.
The Supreme Court observed as follows:
The basic policy of reservation is to off-set the inequality and remove the manifest imbalance, the victims of which for bygone generations lag far behind and demand equality by special preferences and their strategies. Therefore; a comprehensive methodological approach encompassing jurisprudential, comparative, historical and anthropological conditions is necessary. (Para 146)
Reservation must one day become unnecessary and a relic of an unfortunate past. Every such action must be a transient self-liquidating programme. That is the hope and dream cherished by the Constitution Makers and that is the end to which the State has to address itself in making special provisions for the chosen classes of people for special constitutional protection. (Para 258)
Article 16(4) is not an exception to Article 16(1). It is an instance and an illustration of classification implicit in and permitted by Clause (1). Article 16(1) being a facet of Article 14 permits reasonable classification and affirmative action. (Paras 741-742)
The power-conferred on the State under Article 16(4) is one coupled with a duty and, therefore, the State has to exercise that power for the benefit of all those, namely, backward class for whom it is intended. [Paras 173 and 243(6)]
The benefit of reservation cannot be given to the advanced sections of the Socially and Educationally Backward Classes because they no longer belong to the Socially and Educationally Backward Classes although they may be members of the caste, occupational groups or other social groups which might have been named as Socially and Educationally Backward Classes. (Para 553)
The answers to the questions formulated by the Supreme Court so far as relevant for this case are the following:
Para 859 (2)(a)-Clause (4) of Article 16 is not an exception to Clause (1). It is an instance and an illustration of the classification inherent in Clause (1). (Paras 741-742)
(b) Article 16(4) is exhaustive of the subject of reservation in favour of Backward Class of citizens, as explained in this judgment. (Para 743)
(c) Reservations can also be provided under Clause (1) of Article 16. It is not confined to extending of preferences, concessions or exemptions alone. These reservations, if any, made under Clause (1) have to be so adjusted and implemented as not to exceed the level of representation prescribed for ''Backward Class of citizens''-as explained in this judgment. (Para 745)
(3) (a) A caste can be and quite often is a social class in India. If it is backward socially, it would be a Backward Class for the purposes of Article 16(4). Among non-Hindu, there are several occupational groups, sects and denominations, which for historical reasons, are socially backward. They too represent, backward social collectivities for the purposes of Article 16(4). (Paras 746 to 779)
(b) Neither the Constitution nor the law prescribes the procedure or method of identification of Backward Classes. Nor is it possible or advisable for the Court to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method/procedure as it thinks convenient and so long as its survey covers the entire populace, no objection can be taken to it. Identification of the Backward Classes can certainly be done with reference to castes among, and along with, other occupational groups, classess and sections of people....(Paras 780 and 785)
(c) It is not correct, to say that the Backward Class of citizens contemplaled in Article 16(4) is the same as the Socially and Educationally Backward Classes inferred to in Article 15(4). It is much wider. The accent in Article 16(4) is on social backwardness. Of course, social, educational and economic backwardness are closely inter-twined in the Indian context. (Paras 786-789)
(d) ''Creamy layer'' can be, and must be excluded. (Paras 790-793)
(e) It is not necessary for a class to be designated as a Backward Class that it is situated similarly to the Scheduled Castes/Scheduled Tribes. (Paras 794 and 797)
(f) The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. (Para 798)
(a) A Backward Class of citizens cannot be identified only and exclusively with reference to economic criteria. (Para 799)
(b) It is, of course, permissible for the Government or other authority to identify a Backward Class of citizens on the basis of occupation-cum-income, without reference to caste, if it is so advised. (Para 800)
(5) There is no constitutional bar to classify the Backward Classes of citizens into backward and more backward categories. (Paras 801 to 803)
(6) (a) and (b) The reservations contemplated in Clause (4) of Article 16 should not exceed 50 percent. While 50 per cent shall be the rule, it is necessary not to put out of consideration certain extraordinary situations inherent in the great diversity of this country and the people...(Paras 804 to 813)
(c) The rule of 50 per cent should be applied to each year. It cannot be related to the total strength of the class, category, service or cadre, as the case may be. (Para 814)
(d) Devadasan was wrongly decided and is accordingly overruled to the extent it is inconsistent with this judgment. (Paras 815 to 818)
(7) Article 16(4) does not permit provision for reservations in the matter of promotion.... (Paras 819 to 831)
(8) While the rule of reservation cannot be called anti- meritarian, there are certain services and posts to which it may not be advisable to apply the rule of reservation. (Paras 832 to 841)
(9) There is no particular or special standard of judicial scrutiny applicable to matters arising under Article 16(4). (Para 842)
(10) and (11) omitted.
(13) The Government of India and the State Governments have the power to, and ought to, create a permanent mechanism - in the nature of a Commission - for examining requests of inclusion and complaints of oveR-1nclusion or non-inclusion in the list of O.B.Cs., and to advise the Government, which advice shall ordinarily be binding upon the Government. Where, however, the Government does not accept the advice, it must record its reasons therefore. (Para 847)
On the basis of these and other findings the Supreme Court issued certain directions to the Government of India and the State Governments and the Administrations of Union Territories which are contained in para 861 of the judgment. The Court while directing to constitute a permanent body for entertaining, examining and recommending upon requests for inclusion and complaints of oveR-1nclusion and undeR-1nclusion in the lists of other Backward Classes of citizens, directed that the implementation of the reservation shall be subject to exclusion of socially advanced persons/sections (''creamy layer''). The Court also directed that the States where the reservations in favour of Backward Classes are already in operation, can continue to operate them. However, such States shall evolve the criteria within six months and apply the same to exclude the socially advanced persons/sections (creamy layer) from the designated ''Other Backward Classes''. All matters arising out of implementing these directions and the criteria evolved for excluding the creamy layer and the classification into Backward and more Backward Classes and all petitions questioning the validity and arising out of the operation and implementation of the official memoranda, must be filed only in the Supreme Court. The advice tendered by such bodies shall ordinarily be binding upon the Government. Within four months the Government of India shall specify the bases, applying the relevant and requisite socio-economic criteria to exclude socially advanced persons/sections (''creamy layer'') from ''Other Backward Classes''.
In the counter-affidavit filed by the 2nd Respondent it was stated that there were 533 employees in the High Court Service as on 28th June 1984. Out of these 222 belonged to ''Other Backward Classes''. A copy of the statement showing the number of staff in the High Court as on 28th June 1984 is produced as Ext. R-1 (a). From Ext. R-1 (a) it is seen that 41.65 per cent of the posts were held by members of Other Backward Classes as against 40 per cent contemplated under Rules 14 to 17 of the general rules in Part II of K.S. and S.S.R. As on 31st December 1985 there were a total number of 591 posts in the High Court Service, of which 19 posts were vacant. Out of the remaining 572 posts, 270 posts were occupied by the Forward Communities, 44 posts by members of the Scheduled Castes or Scheduled Tribes and the remaining 258 posts by Other Backward Classes. Out of the 258 posts, 98 posts were occupied by Ezhavas, 26 posts by Muslims, 63 posts by Latin Catholics and 71 posts by Other Backward Classes. Thus 45.10 per cent of the total number of posts were occupied by members of Other Backward Classes including Ezhavas, Muslims and Lathin Catholics as on 31st December 1985 as against the 40 per cent contemplated by the general rules. Therefore, according to the counter-affidavit even without making a formal reservation in the rules, there was adequate representation of Other Backward Classes in the service of the High Court on 28th June 1934. According to the counter-affidavit these figures would indicate that the Other Backward Classes even without the aid of reservations were able to secure a fair share of the posts in the High Court Service on the basis of their merit alone. The principle of reservation could be thought of, if the community in whose favour reservation is to be made, is in such an educationally or economically, or socially backward condition which prevents them from competing with the other communities in order to obtain a due share in the appointments. Even though there was no rule providing for community reservation from 1958 to 1984, a reasonable share of the posts were being occupied by members of the Other Backward Communities and therefore, according to the counter-affidavit there is no justifiction at all for making any reservation of additional posts in their favour.
It is further submitted that the High Court Service is a small establishment with only less than 600 employees as on 31st December 1985. Direct recruitment is resorted to mainly to the categories of Assistant Grade II and Peons since, the possibility of vacancies arising in the other categories is fairly remote. The counter-affidavit also states that the general rules in K.S. and S.S.R. for communal reservation provides for reservation in favour of various communities without reference to their economic background. More affluent members of the communities were thus likely to be benefited at the cost of the poorer sections of those communities thus defeating the dominant purpose of reservation. It was under these circumstances that the Honourable Chief Justice took a decision to issue Ext. P-3 notification. The counter-affidavit also states that Ext. P-3 was issued after due application of mind to all relevant aspects.
A statement showing the community-wise selection of the candidates appointed to the High Court Service after 1st January 1986 upto 1st August 1986 is produced and marked as Ext. R-1 (b). A list of posts to which direct recruitment is normally made and the communities in each of these categories is produced and marked as Ext. R-1 (c). These statements would show that more than 40 per cent appointments were made from Other Backward Classes even now and that the averment in the original petition that only members of the Forward Communities are being appointed after 1st January 1986 is not factually correct.
In view of the judgment in Indra-Sawhney [1992 Supp. (3) S.C.C. 217] it would appear that the rules in the general rules in Part II of K.S. and S.S.R., 1958 regarding reservation of appointments for Other Backward Classes are not strictly in conformity with several of the direction 5 of the Supreme Court especially for exclusion of the creamy layer. Within the six months period given by the Supreme Court in para 861 (B) of the judgment the directions will have to be implemented by the State evolving the criteria for excluding socially advanced persons/sections from Other Backward Classes. Attention will also have to be given to para 859(8) to specify the services and posts to which it may not be advisable to apply the rule of reservation (see in this connection para 839 of the judgment).
Whether it is mandatory for the State to provide for reservation under Article 16(4)? According to the Petitioners, under Article 16(4) a duty is cast on the State to provide for reservation. In this connection reference was also made to Articles 38, 39(c) and 39A of the Constitution. Under Article 38, the State shall strive to eliminate inequalities in status, facilities and opportunities among groups of people residing in different areas or engaged in different vocations. Under Article 39(c) the State shall direct its policy towards securing that the operation of the economic system does not result in concentration of wealth and means of production to the common detriment. Under Article 39A the State shall ensure that opportunities are not denied to any citizen by reason of economic or other disabilities.
Article 16(4) specifies that nothing in Article 16 shall prevent the State from making any provision for reservation of appointments in favour of any Backward Class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. In para 798 of the judgment in Indra Sawhney [1992 supp. (3) S.C.C. 217] it is clarified that not only should a class be a Backward Class for meriting reservations, it should also be inadequately represented in the services under the State. The Supreme Court also held that the language of Clause (4) makes it clear that the question whether a Backward Class of citizens is not adequately represented in the services under the State is a matter within the subjective satisfaction of the State. All that is required is, there must be some material upon which the opinion is formed. The scope and reach of judicial scrutiny in matters within the subjective satisfaction of an authority are stated in The Barium Chemicals Ltd. and Another Vs. The Company Law Board and Others, . Since the question of adequacy of representation is a fact within the subjective satisfaction of the Chief Justice, the scope and reach of its judicial scrutiny is very much restricted. There is no allegation of mala fides, dishonesty or corrupt purpose in these cases. Ext. P-3 is passed within the limits of the legislative powers of the Chief Justice. It is not passed on grounds extraneous to the legislation. It cannot be said that there are no grounds at all for passing it or that the grounds are such that no one can reasonably arrive at the opinion requisite for the legislation.
In the counter-affidavit of the 2nd Respondent it is stated as follows:
... Detailed particulars regarding the social and educational backwardness of various communities and the adequacy or inadequacy of their representation in the High Court Service was not available and such factors are not seen to have been taken into account at the time when the notification Ext. P-2 was issued. This would be clear from a perusal of the files. On the other hand Ext. P-2 Was issued by the then Hoh''ble Chief Justice on the ground that reservations contemplated by the general rules in Part II of the K.S.S.R. were being given effect to in all departments of the Government and quasi Government Service including public sector undertakings. For this reason, it was then felt that it was just and proper to adopt these principles for purposes of direct recruitment to the High Court Service also. The Kerala State and Subordinate Services Rules were promulgated in 1958 on the basis of data collected much earlier. Even assuming that communal representation as a principle is to be adopted in the High Court Service Rules also, the same could be done only on the basis of the backwardness, economic or otherwise, of the various communities as it existed in 1984. Unfortunately there were no materials available on these points.
We have already referred to the statements in paragraph 7 of the counter-affidavit where it is submitted that Ext. P-3 was issued after a due application of the mind to all relevant aspects. No reasons were urged to reject those statements. So much so, it cannot be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts. Moreover, the statements filed in this Court show, as a matter of fact, that there was adequate representation of the Backward Communities in the High Court Service. Hence the contention that the Chief Justice was bound to provide for reservation in the High Court Service and was under an obligation to provide for reservation even when there is adequate representation in the High Court Service, cannot be accepted.
Learned Counsel for the Petitioners referred to Malayali Memorial, 1891 (Visvavijnanakosham, Volume-9, Page 496), Ezhava Memorial, 1896 (Visvavijnanakosham Volume-2, Page 542) and Nivarthana Prakshobanam, 1931-1938 (Visvavijnanakosham, Volume-7, Page 759) in order to emphasize their argument that the Backward Communities in erstwhile Travancore State, especially, the Ezhavas were socially and economically backward and were not getting any Government employment. It is not necessary to deal with these aspects in great detail since it cannot be disputed that in the erstwhile Travancore State Backward Communities like Ezhavas were economically and socially backward. But after the social changes in the State especially, after the temple entry proclamation of 1936 and the efforts of Sree Narayana Guru (1854-1928) Backward Communities like Ezhavas have advanced socially, educationally and economically. No material was placed before us about the backwardness of communities like Ezhavas/Thiyyas in Cochin and Malabar areas of the Kerala State which form about 2/3rd area of the State. It is well-known that Ezhavas/Thiyyas in Cochin and Malabar areas of the Kerala State were not as backward as the Ezhavas of Travancore area. So also in the State Backward Classes were given reservation in appointments from very early days (see rules 14 to 17 of general rules under Part II, K.S. and S.S.R., 1958, which came into force on 17th December 1958).
No material is placed before us regarding any review about the adequacy of representation of any of the Backward Communities in the services under the State, after the framing of K.S. and S.S.R. Now that the Supreme Court has given certain directions on this subject, the backwardness that existed about a century ago in a part of Kerala State alone cannot be a proper guideline for deciding the adequacy or otherwise in the representation of any of the backward class of citizens enumerated in K.S. and S.S.R. In any view of the case, in so far as the High Court Service is concerned, the different statements filed in these proceedings reveal that there is a fair representation of the Backward Classes in the High Court Service. One of the contentions of the Petitioners is that the adequacy of representation must be examined in each of the category and not in the High Court Service as a whole. Such a contention seems to be not warranted especially, in view of the wording in Article 16(4) itself. The opinion as to the adequacy or inadequacy of representation will have to be formed in respect of ''services under the State'' and not in respect of one or the other of the service or category. There may be several categories where there is only one post. It will be very difficult to apply the reservation rule in such cases if that category is considered separately. The High Court office is a small establishment with only about 600 employees as on 31st December 1985. As on October, 1993 the total number of employees was 812. Out of these, 370 employees belonged to the Forward Communities viz. Brahmin, Nair and Christian. 366 employees belonged to Other Backward Communities. Out of this, the number of Ezhavas is 148, number of Latin Catholics 77, number of Muslims 42 and Other Backward Class 99, Scheduled Castes and Scheduled Tribes number 66. The caste or community of 10 persons are not specified or not known. Learned Counsel for Petitioners relied on The General Manager, Southern Railway Vs. Rangachari, para 26 in support of their contention. However, we may point out that this judgment was overruled in Indra Sawhney [ 1992 Supp. (3) S.C.C. 217]. Therefore, the contention of the Petitioners that the adequacy of representation must be examined in respect of each category, cannot be accepted. We are of the view that Ext. P-3 cannot be successfully challenged on any ground including the ground that the Backward Communities are inadequately represented in the High Court service.
In view of this, it is not necessary to go into the question whether even in case Ext. P-3 is declared as invalid or void, Ext. P-2 will automatically revive.
The ranked list Ext. P-1 was prepared on the basis of a notification dated 24th October 1983 calling for applications for direct recruitment to the category of Assistant Grade II in the High Court Service. The notification was issued at a time when the unamended Rule 8 was in force viz. before Ext. P-2 notification. Ext. P-2 notification was issued on 28th June 1984 and Ext. P-3 notification was issued on 20th December 1985. Therefore, none of the candidates included in the select list can have any legitimate reason or grievance on account of Ext. P-3. Moreover, Ext. P-1 ranked list mentioned the principle of communal rotation only because of Ext. P-2 notification and was only in respect of 50 anticipated vacancies. Ext. P-3 was issued after the appointment of 50 persons from the select list and long after the normal period of validity of the list. The circumstance that the list was revived by a retrospective amendment cannot be taken advantage of by the Petitioners as conferring on them a right to challenge the validity of Ext. P-3. The Petitioners who had obtained ranks much below the 50th rank had no chance of being appointed against the original anticipated vacancies. Moreover, the list itself lapsed on 18th October 1985. It was at a time when the list was not in operation, Ext. P-3 amendment was notified. Therefore, any subsequent action taken for reviving the list or for the preparation of a fresh list can only be subject to the amendment made as per Ext. P-3.
It is well settled that inclusion in a select list does not confer any right of appointment and does not create a right which can be enforced by a mandamus (see Jatinder Kumar and Others Vs. State of Punjab and Others, and State of Kerala Vs. Smt. A. Lakshmikutty and others, .
After the selection, in respect of which these original petitions are filed, there were two or three subsequent recruitments in the High Court Service. None of those recruitments are challenged before this Court. Learned Counsel for the Petitioners brought to our notice a direction in C.M.P. No. 15065/83 in O.P. No. 4626/86 that all appointments will be subject to the final orders in the main petition. However, in view of the findings in this judgment no directions regarding the subsequent selections are required.
W.A. No. 537/1986.-This is an appeal filed by the Petitioner in O.P. No. 3794/86. The Petitioner was a member of the Board of Directors of Sree Narayana Dharma Paripalana Yogam, which Was founded more than eight decades ago by Sree Narayana Guru. The Petitioner submits that it is absolutely necessary that the fundamental rights guaranteed by the Constitution under Article 16 should not be curbed or taken away. His prayer in the original petition was to quash the 1985 amendment of Rule 8 of the High Court Service Rules. Bhat, J. (as the learned Judge then was) dismissed the O.P. by judgment dated 3rd June, 1986. For the reasons discussed in the main part of this judgment, this writ appeal is dismissed.
O.P. No. 4626/1986.-This is a petition filed by one of the applicants for the post of Assistant Grade II in the High Court Service. The Petitioner belongs to a backward class and is aggrieved by Ext. P-3 notification of 1985. For the reasons stated in the main part of the judgment the original petition is dismissed.
O.P. No. 6607/1986. - The Petitioner was an applicant for the post of Assistant Grade II in the High Court Service. She belongs to a backward class. Her prayer is to quash Ext. P-3 notification of 1985. For the reasons discussed in the main part of the judgment the original petition is dismissed.
O.P. No. 5959/1986.-The Petitioners were applicants to the post of Assistant Grade II in the High Court Service. They belong to the Ezhava community which is a backward community. Their prayer is to quash Ext. P-3 notification of 1985. For the reasons stated in the main part of the judgment the original petition is dismissed.
O.P. No. 4803/1993.-The Petitioner, is a practising Advocate. He is a social worker and a public spirited person interested in public interest litigation and belongs to Nadar Community. His prayer is to quash Ext. P-3 notification of 1985. For the reasons discussed in the main part of the judgment the original petition is dismissed.
O.P. No. 7104/1986.-The Petitioner was an applicant for the post of Assistant Grade II in the High Court Service. Her prayer is to quash Ext. P-3 notification of 1985. For the reasons mentioned in the main part of the judgment the original petition is dismissed.
O.P. No. 6210/1986.-The Petitioner was an applicant for the post of Typist-Copyist Grade II in the High Court Service. He belongs to Muslim community which is a backward community. In the ranked list which is produced as Ext. P-1 he was given the 11th rank. According to him, if Rule 8 as amended by the 1984 notification (Ext. P-2 in this O.P.) was applied, he would have got appointment. He is challenging the 1985 amendment which is produced as Ext. P-3. As per order on C.M.P. No. 19905/93 the Petitioner has impleaded as additional Respondents, the persons who may be affected in case this original petition is allowed. Apart from the general contentions taken by the other Petitioners, learned Counsel for the Petitioner in this O.P. relied on Rule 16(g) of the High Court Service Rules, 1970 which is as follows:
16(g) Shorthand Writers Grade II and all other members of the service below category 11 (Assistant Grade II), shall be eligible for appointment as Assistant Grade II if they have passed S.S.L.C. or E.S.L.C. Examination or examination equivalent thereto and if they are considered suitable by the Registrar for such appointment, subject to the following conditions
(1) to (3) omitted.
(4) there shall be a ratio of 1:2 as between appointment made under this clause and direct recruitment or recruitment by transfer.
(5) and (6) omitted
According to the learned Counsel, if the proportion 1:2 specified in Rule 16(g)(4) was applied the Petitioner would have got appointment. Under the High Court Service Rules appointment to the category of Typist-Copyist Grade II is to be made by promotion, transfer or direct recruitment. The rules do not prescribe any ratio regarding the three modes of appointment. As seen from the statement filed by the 2nd Respondent (dated 19th October, 1993) the Hon''ble Chief Justice ordered in July, 1978 that the vacancies in the category of Typist-Copyist Grade II may be filled up 50 per cent by direct recruitment and 50 per cent by promotion. This was followed for a few years. Till August, 1989 37 places were filled up by direct recruitment and 27 by promotion. As it was then found that there were quite a large number of persons in the various categories in the High Court Service with the prescribed educational and special qualifications required for appointment to the post of Typist-Copyist Grade II, it was decided that the vacancies in the category of Typist- Copyist Grade II may be filled up by promotion. All the vacancies in the category of Typist-Copyist Grade II were thereafter filled up by promotion only. There are quite a large number of Class IV employees even now possessing the prescribed qualifications for appointment as Typist-Copyist Grade II. The ratio of 1:2 mentioned in Rule 16(g)(4) applies only for the appointment as Assistant Grade II and not for appointment as Typist-Copyist Grade II. Therefore, the contention of the learned Counsel based on this rule is without any merit. Learned Counsel for the Petitioner also submitted that a perusal of Ext. P-1 itself will show that there is no adequate representation for the Muslim community as Typist-Copyist. Learned Counsel also referred to the list of employees in the High Court Service, in support of his contention that the Muslim community is not adequately represented in the High Court Service. We have already considered this contention and rejected the same. Moreover, in the original petition no specific ground is raised that the Muslim community ought to have been separately considered or that the adequacy of representation ought to have been tested vis-a-vis the Muslim community. There are also no materials or basic data to consider this contention on merits. The original petition is dismissed.
K. Narayana Kurup, J. (concurring):
I have had the advantage of perusing the opinion rendered by my learned brother John Mathew, J. and while agreeing with the reasoning and conclusions reached by him, I would like to add a few words of my own, since the point at issue here is of no little importance. While doing so, I propose to examine the question from a slightly different angle.
In these Original Petitions and the connected writ appeal the common question that arises for consideration is whether Rule 8 of the Kerala High Court Service Rules, 1970 as substituted by notification dated 20th December 1985 is ultra vires the powers of the first Respondent, Chief Justice, High Court of Kerala, under Article 229 of the Constitution of India. The main plank of the submission made by the learned Counsel for the Petitioners was based on Article 16(4) of the Constitution of India which provides that nothing contained in the said article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the Services under the State. The controversy centers round the true import of the expression "services under the State" occurring in Article 16(4) of the Constitution. The question is whether the officers and servants of the High Court could be considered as members in the "services under the State" within the meaning of Article 16(4) of the Constitution.
In Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, two questions came up for consideration before the Constitution Bench of the Supreme Court, namely, (1) whether the Chief Justice of a High Court has the power to dismiss from service an officer of the High Court (in this case Registrar of the High Court)? (2) If so, whether the Chief Justice can pass an order of such dismissal without previous consultation with the Public Service Commission as provided in Article 320(3) of the Constitution? The Court while answering both the questions in the affirmative and holding that officers and servants of the High Court must be taken to hold posts in connection with the affairs of the State and to be members of the civil service of the State, posed the following question, viz:-But can it be said that members of the High Court staff are "persons serving under the Government of a State in a civil capacity" which is the phrase used in Article 320(3)(c) and observed as follows:
The use of different terminology in the various articles was not likely to have been accidental. It is to be noticed that even Article 320 in its various clauses uses different phrases. Article 320(1) refers to "appointments to the services of the Union and the services of the State" and the proviso to Article 320(3) refers to "services and posts in connection with the affairs of the Union and to services and posts in connection with the affairs of the State.
It appears, therefore, note unlikely that in using somewhat " different phraseology the intention was to demarcate the staff of the High Courts from the other civil services of the Union or the State. The phrase "persons serving under the Government of India or the Government of a State" seems to have reference to such persons in respect of whom the administrative control is vested in the respective executive Government functioning in the name of the President or of the Governor or of a Rajpramukh.
The officers and staff of the High Court cannot be said to fall within the scope of the above phrase because in respect of them the administrative control is clearly vested in the Chief Justice, who under the Constitution, has the power of appointment and removal and of making rules for the conditions of service....
It was, however, conceded that for purposes of Article 311, the phrase "a person who is a member of a civil service of a State" used in that Article includes the officers and servants of the High Court.
The powers of the Chief Justice under Article 229 of the Constitution again came up for consideration before the Constitution Bench of the Supreme Court in M. Gurumoorthy Vs. Accountant-General, Assam and Nagaland and Others, under the following facts: The Chief Justice appointed the Appellant as Secretary-cum-Selection Grade Stenographer after merger of the two posts. The State Government objected that the post of Secretary could not be merged with that of Selection Grade Stenographer. The Accountant General under the instructions of the Government withheld the Appellant''s payslips. Thereupon the Appellant moved the High Court by a writ petition which was dismissed. On appeal the Supreme Court held that the Government had authority to sanction the post, but it could not interfere with the choice of the incumbent, which undoubtedly was left to the Chief Justice under Article 229 of the Constitution. In that context, Grover, J. speaking for the Court, summed up the position, as follows:
The unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the executive except to the limited extent that is provided in the Article. This was essentially to secure and maintain the independence of the High Courts. The anxiety of the Constitution makers to achieve that object is fully shown by putting the administrative expenses of a High Court including all salaries, allowances and pensions payable to or in respect of officers and servants of the Court at the same level as the salaries and allowances of the Judges of the High Court nor can the amount of any expenditure so charged be varied even by the legislature. Clause (1) read with Clause (2) of Article 229 confers exclusive power not only in the matter of appointment but also with regard to prescribing the conditions of service of officers and servants of a High Court by Rules on the Chief Justice of the Court. This is subject to any legislation by the State legislature but only in respect of conditions of service. In the matter of appoitments even the legislature cannot abridge or modify the powers conferred on the Chief Justice under Clause (1). The approval ofthe Governor, as noticed in the matter of rules, is confined only to such rules as relate to salaries, allowances, leave or pension. All other rules in respect of conditions of service do not require his approval. Even under the Government of India Act, the power to make rules relating to the conditions of service of the staff of the High Court vested in the Chief Justice of the Court u/s 242(4) read with Section 241 of the Government of India Act, 1935.
In the result, the Supreme Court held that any restriction imposed by the Government while communicating the sanctioning of the post could not be binding on the Chief Justice in view of Article 229 of the Constitution.
In Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, the facts of the case were as follows:
The Supreme Court was disposing of two civil appeals, namely, civil appeal Nos. 2826/77 and 278/78.
In civil appeal No. 2826/77 the first Respondent was one L.V.A. Dikshitulu, a former employee of the High Court. The validity of his premature retirement was involved in that appeal. He was a permanent employee of the former Hyderabad High Court. At the time of his confirmation he was serving on deputation as a Law Officer in the Ministry of Law, Government of India. In March 1965, with the concurrence of the Chief Justice of the High Court of Andhra Pradesh he was temporarily appointed as Deputy Secretary in the Law Department of the Government of Andra Pradesh. By an order dated 6th February 1968 the State Government replaced his services at the disposal of the Chief Justice. On his reversion from deputation, he joined the establishment of the High Court as Sub Assistant Registrar on 8th February, 1968. On that very same day, the High Court received a complaint petition against the first Respondent alleging misconduct relating to the period during which he was working as Deputy Secretary in the State Government. After preliminary enquiry the Chief Justice placed the first Respondent under suspension and later after a departmental enquiry he was found guilty of misconduct and was compulsorily retired from service. The first Respondent then moved the High Court of Andhra Pradesh under Article 226 of the Constitution assailing the order of his compulsory retirement. This writ petition was dismissed on the preliminary ground that it was not maintainable because the jurisdiction of the High Court which was hitherto being exercised under Article 226 of the Comstitution to correct orders of the Chief Justice on the Administratice Tribunal by reason of Clause 6(1) of the Administrative Tribunal Order made by the President under Article 371-D of the Constitution. Thereafter, the first Respondent moved the Andhra Pradesh Administrative Tribunal impugning the order of his compulsory retirement. In the petition he contended inter alia that the enquiry conducted against him was vitiated by bias of one of the judges and the Tribunal however set aside the impugned order of the first Respondents premature retirement made by the Chief Justice on the sole ground that it was arbitary and amounts to a penalty of dismissal or removal from service and was hit by Article 311(2) of the Constitution. The said order was challenged before the Supreme Court in civil appeal No. 2826/77.
Civil appeal No. 278/78 involved the validity of the premature retirement of the first Respondent therein who, at the material time, was a member of the Andhra Pradesh State Judicial Service. He was prematurely retired in public interest by an order of the State Government on the recommendation of the High Court. Thereupon, the first Respondent filed a petition before the Andhra Pradesh Administrative Tribunal challenging the order of his premature retirement made by the State Government on the recommendation of the High Court. It was contended by him that his service record had throughout been good and he was not liable to premature retirement. Before the Tribunal the High Court resisted the Respondent''s petition on the ground that the order of premature retirement was passed based upon the overall performance of the Respondent and the order had been passed in public interest and was in accordance with the rules. On behalf of the first Respondent it was contended before the Tribunal that since, according to the Andhra Pradesh State Judicial Service Rules, the High Court in the case of Subordinate Judges is the appointing authority, the Governor had no power or jurisdiction to pass an order of premature retirement of a member of the State Judicial Service. The Tribunal accepted this contention and allowed the Respondent''s petition without considering the other contentions raised in the petition and set aside the order of the Respondent''s premature retirement. Civil appeal No. 278/78 by special leave was filed against that order of the Tribunal.
After a survey of the provisions of Article 371D of the Constitution Sarkaria, J. referred to the provisions of Andhra Pradesh Administrative Tribunal Order. The explanation to sub-para 3 defined "public post" for the purpose of para 6 to mean (a) all classes of posts of all civil servants of the state; (b) all classes of civil posts under the State; and (c) all classes of posts under the control of any local authority within the State. It was held that posts in the High Court establishment are not posts under a local authority for neither the High Court nor the Chief Justice is a local authority. It was also held that persons holding posts on the staff of the High Court do not hold their posts under the control of the State. Vide para 60 of the judgment at page 205.
From a conspectus of the decisions of the Supreme Court noted above and after a careful scanning of the relevant constitutional provisions in this regard, namely, Articles 14, 16, 50, 309, 310, 311, 320(3), 371D, etc. I am of the view that the position which the officers and servants of the High Court occupy under our constitutional set up is a unique one. No doubt, they hold posts in connection with the affairs of the state and belong to civil services of the State, but nevertheless they do not hold posts under the State nor do they belong to any services under the State within the meaning of that expression under Article 16(4) of the Constitution. Having regard to the decision of the Supreme Court in Pradyat Kumar Bose Vs. The Hon''ble The Chief Justice of Calcutta High Court, to the effect that officers and servants of the High Court are "not persons serving under the Government of a State" and the decision of that Court in Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, to the effect that persons holding posts on the staff of a High Court do nothold posts under the control of the State and having regard to the fact that the salaries and allowances of the officers and servants of the High Court are treated on a par with that of the High Court Judge themselves, it is difficult to conceive of a position in which it has to be held that they are holders of service under the State within the meaning of that expression under Article 16(4) of the Constitution. In this connection, it has to be remembered that as far as the officers and servants of the High Courts are concerned, the Chief Justice is the appointing authority and in respect of them, the administrative control is vested in the Chief Justice who, under the constitution, has the power of appointment and removal and of making rules prescribing the conditions of their service. The obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointment of officers and servants of the High Court, it is the Chief Justice who is to be the supreme authority and there can be no interference by any other authority with the powers of the Chief Justice in the matter of appointment of officers and servants of the High Court and prescribing their conditions of service except to the limited extent provided in the Article itself. This was essentially intended to ensure the independence of the High Courts which is fully shown by charging the administrative expenses of a High Court including all salaries, allowances and pension payable to the officers and servants of the High Court at the same level as the salaries and allowances of the judges of the High Court. Nor can the amount of any expenditure so charged be varied even by the legislature.
In the light of the above discussion, I have no hesitation in holding that officers and servants of the High Court are not holders of any service under the state within the meaning of Article 16(4) of the Constitution.
Having found that the officers, and servants of the High Court do not belong to any service under the State, the next question to be considered is the applicability of the provisions of Article 16(1) of the Constitution which guarantees equality of opportunity in matters of public employment. Article 16(1) guarantees equality of opportunity for all citizens, in matters relating to employment or appointment to any office under the State. The constitutional mandate uses two expressions in Article 16(1), namely, "employment" or "appointment" to any office under the State. The expression "employment" is undoubtedly far more comprehensive than the expression "appointment" to any office under the State with the result that as far as officers and servants of the High Court are concerned, it can be argued that they fall within the ambit of the expression "employment" occurring in Article 16(1) though it may not be an appointment to any office under the State. Even assuming that this distinction between the expression "employment'' and the expression or appointment to any office under the State is very subtle, what at best could be contended for is that Article 16(1) as such may not be applicable to the staff of the High Court. Even then, what follows is that Article 14 which provides for equality before the law and the equal protection of the laws will apply with full force and vigour and there cannot be any discriminatory treatment by the State in the matter of employment in High Court service.
There is yet another reason why the provisions of Article 16(4) may not apply to the officers and servants of the High Court viz. the officers and staff of the High Court constitute only a fraction of those in public employment so that their exclusion from Article 16(4) would not result in any miscarriage of justice so as to ''rob that Article of its effect''. See Constitutional Law of India by H.M. Seervai, Third Edition-Vol. II, page 2595.
In the result, the challenge against Ext. P-3 fails for the added ground that the officers and servants of the High Court do not belong to the services under the State within the meaning of that expression occuring in Article 16(4) of the Constitution of India.
The original Petitions and the connected writ appeal arc accordingly dismissed.