TMI Blog1991 (12) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... to the K.C.S. (Judicial) Service (hereinafter referred to as 'the Service'). Under Rule 4 of the rules, selection for appointment to the service is made by direct recruitment on the basis of competitive examination conducted by the commission. 5. The readers and librarians employed in the High Court of Jammu Kashmir submitted a representation to the Chief Justice of the High Court wherein it was submitted that they do not have any prospects of future promotion in their service and it was prayed that a fixed quota may be reserved for the employees of the High Court for recruitment to the service. The said representation was considered by the Judges of the High Court at a full court meeting and it was resolved that the rules may be amended in a way as to provide for reservation of 25% vacancies in the Service by way of promotion/transfer of the following employees of the High Court: 1. Assistant Registrar 2. Reader 3. Court Officer 4. Librarian 6. The High Court proposed that Rule 4 of the rules may be substituted by the following provision: Rule 4. (1) Notwithstanding anything contained in these rules recruitment to the service shall be mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manding the State Government to implement and give effect to the recommendations of the High Court and to direct them to reserve quota for the service as recommended by the High Court. The said writ petition was allowed by a learned single Judge of the High Court by his judgment dated December 6, 1990 whereby a direction was issued to the appellant herein to consider effectively the amendments proposed by the High Court in the rules and to carry the process of amending the rules to its logical conclusion within a period of three months. A Letters patent appeal was filed by the appellant against the said judgment of the learned single Judge. It was dismissed summarily by a division bench of the High Court by order dated February 22, 1991. 10. The aforesaid direction given by the High Court has been assailed by the appellant on the ground that it has the effect of requiring the State Government to amend the rules in the manner as proposed by the High Court and that such a direction by way of mandamus, could not be issued under Article 226 of the Constitution in the matter of exercise of the rule making power under Section 110 of the Jammu Kashmir Constitution which is legislativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in it has been laid down: There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. (p. 219) 14. Shri D.D. Thakur, the learned Counsel appearing for the respondents, has, however, submitted that in the present case, the High Court has not issued a writ of mandamus to the State Government to make the amendments in the rules in accordance with the proposal made by the High Court but has only directed the State Government to consider effectively the amendments proposed by the High Court in the rules. We are unable to construe the judgment of the High Court in this manner. The learned single Judge in the ultimate paragraph of the judgment has observed: This petition, therefore succeeds and is allowed by issuance of a direction to the respondents to consider effectively the amendments proposed by the High Court in the J K Civil Services (Judicial) Recruitmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tration. Consultation with the Commission is also required for the reason that the Commission is envisaged by the Constitution of Jammu Kashmir as an expert body to advise the Government on matters relating to public services. It has been entrusted with the task of selecting suitable persons for appointments to the service of the State, and is required to be consulted on all matters relating to methods of recruitment to civil services and for civil posts, on the principles to be followed in making appointments to civil services and posts as well as promotion and transfers and on all disciplinary matters (Section 133). In relation to judicial service, the Commission has a limited role, viz., consultation at the stage of making of rules under Section 110. Whether and to what extent the Commission is to be associated with the process of selection of personnel for appointment would depend on the provisions of the rules so made. 18. While construing the expression consultation this Court has laid down that though consultation does not mean concurrence , it postulates an effective consultation which involves exchange of mutual view points of each other and examination of the rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates its views to the High Court, the High Court must undoubtedly reconsider the matter. The High Court as well as State Government must approach the question in a detached manner for achieving the true objective of framing rules which would secure appointment of proper persons to Judicial Service of the State for proper and efficient administration of justice. If the matter is thus approached, there should not be any difficulty. It need hardly be emphasised that while considering the recommendations of the High Court the State Government would proceed on the basis that in such matters the opinion of the High Court is entitled to the highest regard. 20. In the present case, we find that the High Court had recommended reservation of 25% vacancies in the Service to be filled by way of promotion/transfer from amongst the following employees of the High Court: 1. Assistant Registrars 2. Readers 3. Court Officers 4. Librarians 21. With that end in view, the High Court has suggested substitution of Rule 4 of the rules and addition of Chapter IV-A prescribing procedure for recruitment by promotion/transfer in the Second Part of the rules. In the letter of the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch as Public Law Officers have been promoted as CPOs of the Dy. Superintendent Police Rank and as Naib Tehsildars or as Prosecuting Officers. The report of the Vigilance Commissioner does not, however, deal with the other matters raised by the Commission with regard to fixing of proportion for the two categories of officers, viz., Assistant Registrars who were in a higher scale and other officers who were in the lower scales and about there being a combined or separate seniority for the three categories of the officers in the scale of ₹ 680-1240. There is also no reference in the said report to the question whether any similar provision exists in the judicial rules of other States. 23. The resolution passed at the full court meeting held on March 16, 1985 is cryptic. After referring to the proposal of the Commission and the report of the Vigilance Commissioner all that is stated in the said resolution is that the Court did not agree with the proposal of the Commission and sticks to the amendments already proposed. However that the Court has no objection if independent Part V after the existing Part IV, is inserted in the Draft Amendment . This would indicate that the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is made for reservation of a particular proportion of posts from amongst the categories of Asst. Registrars, Readers, Court Officers and Librarians for appointment to the service. It would also be relevant to examine the practice prevalent in the other High Courts in this regard. It may also be considered whether reservation in the judicial service is the only mode for providing the avenue for promotion for these officers or some other mode can be devised which can provide an avenue for promotion for them on the administrative side in the Court. In some High Courts, avenues for promotion for such officers exist on the administrative side i.e. as Deputy Registrar (Admn.), Additional Registrar (Admn.). Since these are matters which require a more careful examination, it would be appropriate if a Committee of Judges is constituted which can go in the matter in greater detail and the matter is considered by the full Court in the light of the report of such a committee. We hope and trust that the recommendation that are made by the High Court after such consideration would receive due weight and regard from the State Government and a solution would be devised which would meet the asp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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