However, the court has permitted the Bihar government 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 services of the state.
The Supreme Cour,t in Govt. Of Bihar and ors. Vs. Dayanand Singh, has upheld the Patna High Court judgment, which had quashed Rules 4A and 3A introduced by amending the Bihar Superior Judicial Service Rules, 1951, and Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1965, respectively, providing for reservation of posts in the judicial services in favour of various backward classes of citizens.
The Bench comprising Justice J. Chelameswar and Justice Abhay Manohar Sapre agreed with the high court observation that those amendments were not preceded by appropriate consultation with the high court contemplated under Articles 233 and 234, and confirmed the judgment. The apex court also held that 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 court opined that there was a need for providing appropriate reservations in favour of the various backward classes of citizens even in the judicial services of the State of Bihar. But, the Bench added that the executive is not the only authority to formulate such policy or to give effect to, and it is under a constitutional obligation to consult the high court both for framing and giving effect to such policy.
The Bench further said: “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 governing the exercise of such power. Such an exercise is required to be undertaken... ‘not to determine 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’.”
The court also said that the whole exercise must be completed expeditiously preferably by the 1st of January, 2017, and the process for filling up of the vacancies in the judicial services shall be taken up expeditiously by all concerned and completed by 30th June, 2017.
The court noted that some of the candidates belonging to certain backward classes would have been entitled to get appointed pursuant to the 2012 notification, if Rule 3A were to be valid. The court then directed that these candidates be appointed to the service against the vacancies which arose subsequent to the 2012 notification.
The Bench also criticised the high court for making certain observations in the judgment regarding the manner in which the amendments were made and the desirability of such amendments.
Opining that those were not warranted, the Bench said: “The high court ought to have kept in mind that it was the legislative 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.”
Read the Judgment here.