Mr. Uma Nath Singh, C.J.—Mr A Sinha, learned senior counsel/Amicus Curiae, assisted by Mrs S Bhattachaarjee, learned counsel, appears for the petitioner.
2. Mr KS Kynjing, learned Advocate General, assisted by Ms Y Shylla, learned GA, represents the State respondents.
3. We have heard learned counsel for parties and perused the records.
4. The Full Court in its meeting on 19.05.2015 adopted the Draft HJS Rules. The Draft Rule was sent to Department of Law, Govt. of Meghalaya on 20.05.2015 for notification. However, the Government notified the Rules with certain changes contrary to law laid down by Hon''ble the Supreme Court. Therefore, the Registrar General of this Court put up the note-sheet while referring to various judgments pronounced by Hon''ble the Apex Court as well as by the Gauhati High Court as under :
"In All India Judges Association & Ors. v. Union of India & Ors. : (2002) 4 SCC 247, Hon''ble B.N. Kirpal, J. while speaking for the Bench said:
"An independent and efficient judicial system is one of the basic structures of our Constitution. If sufficient number of judges are not appointed, justice would not be available to the people, thereby undermining the basic structure. It is well known that justice delayed is justice denied."
Article 235 of the Constitution of India provides that the control over the District Courts and Courts Subordinate thereto shall be vested in the High Court. The Apex Court way back in Chandra Mohan v. State of U.P.: AIR 1966 SC 1987 observed that the makers of the Constitution realized that it is the Subordinate Judiciary in India who are brought most closely into contact with the people, it is not less important, perhaps indeed even more important, that their independence should be placed beyond question in the case of superior judges. Chapter VI of the Constitution dealing with subordinate courts seeks to achieve the avowed object of insulating even the subordinate judiciary from the influence of the executive and the legislature.
Article 233 of the Constitution of India provides as follows: -
"233. Appointment of district judges -
(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
Article 309 of the Constitution of India provides as follows: -
"309. Recruitment and conditions of service of persons serving the Union or a State -
Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act."
In State of West Bengal & Anr. v. Nripendra Nath Bagchi AIR 1966 SC 447,the apex court after referring to Articles 233, 234 and 235 of the Constitution held that the aforesaid Articles were intended to make special provision for the judicial service of the State.
The Gauhati High Court (Division Bench) through Justice A.K. Patnaik (as His Lordship then was) in Subhasis Chakravorty v. State of Meghalaya & Ors: 2002 (1) GLT 227 directed the State of Meghalaya to take steps for separating the Subordinate judiciary from the executive and for vesting control over all Subordinate courts in the High Court. Now the matter is pending in civil appeal before Hon''ble the Apex Court wherein various directions have been issued from time to time.
Hon''ble the Apex Court in State of Assam & Anr. v. Kuseswar Saikia & others AIR 1970 SC 1616 held that separate judicial service was provided to make the office of a District Judge completely free of executive control.
It may not be out of place to mention that the changes carried out in the H.J.S Rules notified by State Government have not been made in consultation with the High Court, as envisaged under the proviso to Article 309, read with Article 233 of the Constitution.
In Chandra Mohan v. State of U.P. AIR 1966 SC 1987 Subba Rao, C.J. speaking for a unanimous court observed as follows: -
"The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court. The object of consultation is apparent. The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the Judicial Service or to the bar, to be appointed as a District Judge. Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him. These provisions indicate that the duty to consult is so integrated with the exercise of the power that the power can be exercised only in consultation with the person or persons designated therein."
The above view was reaffirmed in Chandramouleshwar Prasad v. Patna High Court AIR 1970 SC 370, observing: -
"The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges. The High Court alone knows their merits as also demerits."
To the same effect are the decisions in High Court of P & H v. State of Haryana (1975) 1 SCC 843, A. Panduranga Rao v. State of A.P., (1975) 4 SCC 709 and M.M. Gupta v. State of J & K (1982) 3 SCC 412.
The Apex Court also in State of Bihar v. Bal Mukund Sah(2000) 4 SCC 640 has held that,
"For judicial appointments the real and efficacious advice contemplated to be given to the Governor while framing rules under Article 234 or for making appointments on the recommendations of the High Court under Article 233 emanates only from the High Court which forms the bed-rock and very soul of these exercises. It is axiomatic that the High Court, which is the real expert body in the field in which vests the control over Subordinate Judiciary, has a pivotal role to play in the recruitments of judicial officers whose working has to be thereafter controlled by it under Article 235...
Under these circumstances, it is impossible to countenance bypassing of the High Court either at the level of appointment at grass-root level or at the apex level of the District Judiciary."
Similarly, in Gauhati High Court v. Kuladhar Phukan (2002) 4 SCC 524, it said,
"Article 235 vests in the High Court the control over district courts and courts subordinate thereto. All the matters touching the service career of incumbents in subordinate judiciary including their posting and promotion are subject to the control of the High Court. Once a person has entered in the judicial service, he cannot depart therefrom save by the leave of the High Court.
It is settled by a catena of decisions that the word ''control'' referred to in Article 235 of the Constitution has been used in a comprehensive sense and includes the control and superintendence of the High Court over the subordinate courts and the persons manning them, both on the judicial and the administrative side. Even in such matter in which the Governor may take a decision, the decision cannot be taken save by consultation with the High Court. The consultation is mandatory and the opinion of the High Court is binding on the State Government; else the control, as contemplated by Article 235, would be rendered negated. Such control and consultation are not a matter of mere formality; they are the constitutional power and privilege of the High Court, also its obligation, and cannot be diluted by sheer inaction or failing to act when the High Court must act. The Governor cannot proceed to act in any matter relating to subordinate judiciary and bypass the process of consultation merely because the High Court, though ''informed'', did not act or respond."
In this regard, it is pertinent to mention that the Apex Court in Advocates-on-Record Association & Anr. v. Union of India, AIR 1994 SC 268, has observed that whenever such a question arises and any scheme of reservation is sought to be introduced by the Governor in consultation with the High Court, the opinion of the High Court shall have primacy.
Similarly, in State of Bihar v. Bal Mukund Sah(2000) 4 SCC 640 has held that the High Courts having been entrusted with the full control of Subordinate judiciary has got to be consulted in framing appropriate rules regarding reservation for governing recruitment under Articles 233; 234 and 235. But so long as it is not done, the Legislature cannot, by an indirect method, completely by-pass the High Court and exercise its legislative power, and circumvent and cut across the very scheme of recruitment and appointment to District Judiciary as envisaged by the makers of the Constitution. Such an exercise, apart from being totally forbidden by the constitutional scheme, will also fall foul on the concept relating to "separation of powers between the legislature, the executive and the judiciary" as well as fundamental concept of an "independent judiciary".
Besides, in view of the decision of the Apex Court (Nine Judges) in Indira Sawhney & Ors v. Union of India & Ors reported in (i) 1992 Supp (3) 217; (ii) (1996) 6 SCC 506 and; (iii) (2000) 1 SCC 168and Article 16 (4-A) and (4-B) of the Constitution of India, there cannot be reservation of more than 50% of the vacancy".
5. Vide the order of Chief Justice dated 18.08.2015 the matter was taken up on judicial side. The Full Bench of this Court on careful consideration of the Note-sheet passed the following order:
"25.08.2015
Mr Aman Sinha, learned senior counsel, assisted by Mrs. S Bhattacharjee, learned counsel, is appointed as Amicus Curiae in this matter.
Mr KS Kynjing, learned AG, and Mr ND Chullai, learned senior GA, assisted by Mr S Sen Gupta, learned GA, represents the State.
A notification dated 21.08.2015 of Government of Meghalaya, Department of Law, has been placed on record. It reads as :
"GOVERNMENT OF MEGHALAYA
LAW (A) DEPARTMENT
Dated Shillong the 21st August 2015
NOTIFICATION
No.LJ(A)23/85/Pt-I/105. - The Meghalaya High Judicial Service Rules, 2015 as notified vide Notification No. LJ(A)23/85/Pt-1/71 dated 05.08.2015 is put on hold and will be re-notified after consultation with the Hon''ble High Court of Meghalaya.
Sd/-
(LM Sangma)
Special Secretary to the Govt. of Meghalaya
Law Department."
Thus, we adjourn the matter for four weeks with direction to Department of Law, Govt. of Meghalaya to settle the issue at the earliest say, six weeks after consultation with the High Court in the light of pronouncement in State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 and other judgments mentioned in the Office 3 note forming basis for taking suo motu judicial notice by way of writ petition. It may also not be out of place to observe that one of us Hon''ble TNK Singh, J. sitting at Tripura, the then Bench of Gauhati High Court has also dealt with the issue. The said judgment has been rendered in Prabal Kumar Ghosh v. State of Tripura : (2011) 5 GLT 671. List the matter on 08.10.2015."
6. Thereafter, the matter was again listed on 02.11.2015 but adjourned on the request of learned Advocate General for today.
7. Mr A Sinha, learned senior counsel/Amicus Curiae appearing for the High Court contends that under Chapter VI of Part VI of the Constitution of India, it is only the High Court which is empowered to exercise complete control and superintendence over the District Courts and Subordinate judiciary in respect of all matters relating to service condition of the Judicial Officers including framing of Service Rules, Recruitment, Posting, Transfer, Promotion, etc. Besides, it is also mandatory to have consultation with the High Court in such matters and the opinion of the High Court is always binding on the State Government, or else, the very purpose of such exercise of control and superintendence as envisaged by Article 235 of the Constitution shall be completely negated.
8. According to learned senior counsel, it is now fully settled in a catena of judgments that the word ''Control'' as referred to in Article 235 of the Constitution of India has been used in a comprehensive sense so as to provide complete control and superintendence of the High Court over Subordinate judiciary on judicial as well as the Administrative side. Mr Sinha further submits that he is also representing this High Court in the matter relating to separation of executive and judiciary in the State of Meghalaya before the Supreme Court. He contends that despite significant contribution made by the High Court to, in establishing; operationalising and segregating the subordinate judiciary from the executive in the State of Meghalaya in the past over one year, the State Government has been taking a plea before the Supreme Court that the High Court has not been able to fill in the vacancies of Higher Judicial Service. However, this fact stands belied by contradictory acts of the State Government, inasmuch as, it has unilaterally and without authority of law changed the Draft Higher Judicial Service Rules and delayed the matter by keeping it pending for more than six months. Had this matter not been taken up on judicial side by this Court, perhaps the rules may not have been notified for a long time. Mr Sinha placed heavy reliance on the judgment of Hon''ble the Supreme Court in the matter of State of Bihar v. Bal Mukund Sah (2000) 4 SCC 640 to contend that the framing of rules regarding the service conditions as well as appointment of judicial officers originates in the High Court which alone forms the bed rock and very soul of such exercise. The High Court being the real expert body in the field has a very pivotal role to play as it alone controls the functioning of the subordinate judiciary under Article 235 of the Constitution of India. Thus, according to Mr Sinha, the delay caused in notifying the Meghalaya Higher Judicial Service Rules has been occasioned only because of slow processing and indifferent attitude of the State Government.
9. As referred to and discussed herein above, the power of the High Court to exercise complete control and superintendence over the subordinate judiciary under Article 235 of the Constitution is not subject to any interference by the State Government and its opinion is always binding on the State. However, during the course of hearing, as learned Advocate General submitted Notification No. LJ(A)23/85/Pt-I/157 dated 19th November, 2015 issued in supersession of earlier Notification No. LJ(A)23/85/Pt-I/71 dated 5th August, 2015, we need not proceed further and this case is closed and disposed of with direction to Registry to proceed in accordance with the Rules.
