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Devendra Nath Tiwari Son of Sri Hari Krishna Tiwari Vs. State of U.P. Through Principal Secretary Law, - Court Judgment

LegalCrystal Citation
SubjectService
CourtAllahabad High Court
Decided On
Judge
Reported in2008(3)AWC2865
AppellantDevendra Nath Tiwari Son of Sri Hari Krishna Tiwari
RespondentState of U.P. Through Principal Secretary Law, ;union of India (Uoi) Through Secretary, Ministry of
DispositionPetition dismissed
Cases ReferredIn Diamond Sugar Mills Ltd. and Anr. v. State of Uttar Pradesh and Anr.
Excerpt:
- - the resolution of full court is based on sound consideration and is perfectly legal and valid & is liable to be upheld by this hon'ble court. 12. for better appreciation of controversy it would be appropriate to extract the provisions of of section 3 as stood initially in principal act 1993 as under: ' 23. the aforesaid constitutional provisions clearly indicate that independently of general provisions regarding services as mentioned in part xiv of the constitution, different types of services contemplated by the constitution in other parts have their own procedural schemes for recruitment and regulation of conditions of these services and, therefore, article 309 found in part xiv necessarily will have to be read subject to these special provisions regarding recruitment and.....anjani kumar and sabhajeet yadav, jj.1. in abovenoted writ petitions common question of facts and law are involved, therefore, they are decided together by common judgment. the facts of the writ petition no. 3046 of 2007 would also include the facts of other two connected writ petitions and it will be leading case.2. by these petitions, the petitioners have sought relief of certiorari for quashing the notification dated 7.12.2006 contained in annexure-12 of the writ petition and notification dated 27.8.2005 contained in annexure-11 of the writ petition and advertisement no. a-6/e-1/2006 employment news 7-13 october. 2006 (annexure-6) and order dated 2.8.2007 contained in annexure-13-f to the writ petition, the resolution of full court dated 30.4.2005 and 20.8.2005 by summoning the record......
Judgment:

Anjani Kumar and Sabhajeet Yadav, JJ.

1. In abovenoted writ petitions common question of facts and law are involved, therefore, they are decided together by common judgment. The facts of the Writ Petition No. 3046 of 2007 would also include the facts of other two connected writ petitions and it will be leading case.

2. By these petitions, the petitioners have sought relief of certiorari for quashing the notification dated 7.12.2006 contained in Annexure-12 of the writ petition and notification dated 27.8.2005 contained in Annexure-11 of the writ petition and advertisement No. A-6/E-1/2006 Employment News 7-13 October. 2006 (Annexure-6) and order dated 2.8.2007 contained in Annexure-13-F to the writ petition, the resolution of Full Court dated 30.4.2005 and 20.8.2005 by summoning the record. A relief in the nature of mandamus has also been sought for declaring the Rule 4 (m) of U.P. Judicial Service Rules 2001 as ultravires the Constitution of India so far as it includes the phrase 'in which the process of recruitment is initiated by Appointing Authority' and declaring the Rules 4, 5, 6 and 20 of Allahabad High Court Rules, Right to Information Act 2005 as ultravires the Constitution of India. In another Writ Petition No. 66816 of 2006 the petitioner has sought relief of mandamus directing the respondent to provide the benefit of Section 33 of Act No. 1 of 1996 to the petitioner and further directing the respondent to consider the petitioner under physically handicapped quota by providing reservation for physically disabled persons and to comply with the direction given by Full Bench in decision rendered in Sarika v. State of U.P. and Ors. decided on 24th February 2005 reported in 2005 (3) U.P.L.B.E.C, 2217.

3. The reliefs sought in aforesaid writ petitions rest mainly on the ground that petitioners of abovenoted writ petitions are physically handicapped persons and they have applied in pursuance advertisement No. A-6/E-1/2006, for being considered for selection on the post of Civil Judge (Junior Division) under the quota meant for physically handicapped persons being otherwise fully eligible and qualified for the selection and appointment on the said post. It is stated that in the said advertisement although the age of relaxation for 5 years has been provided to physically handicapped persons, but no post has been reserved for them. The petitioners have appeared in the written examination in pursuance of said advertisement. It is further stated that in States of Madhya Pradesh, Himachal Pradesh, Haryana, Rajasthan and Delhi the posts of Judicial service have been identified for the purpose of reservation to the physically handicapped persons but State of Uttar Pradesh has, however, not identified the posts to be offered to the physically handicapped persons. In this connection a Full Bench of this Court vide order dated 24.2.2005 had directed the State Government to identify Group A and Group B posts in all the services for reservation for physically disabled persons. It is stated that petitioner Devendra Nath Tiwari had sent a letter dated 3.5.2006 to the State Government by registered post for identifying the post of Group A and Group B services which in turn sent to the Hon'ble High Court, Allahabad for consultation, in pursuant thereof instead of providing reservation to the physically handicapped persons by resolution dated 30.4.2005 the Hon'ble Full Court of Allahabad High Court has declined to give reservation to physically handicapped persons. The resolution dated 30.4.2005 was never brought to the notice of public at large nor was in the knowledge of the petitioner. The petitioner Devendra Nath Tiwari filed a contempt petition in which short counter affidavit was given on 11.12.2006. In the said counter affidavit a letter dated 27.8.2005 was annexed along with notification dated 7.12.2006 which transpires that some decision has been taken by Full Court on 30.4.2005 and 20.8.2005. The true copy of letter dated 27.8.2005 of Joint Registrar Investigation, High Court Allahabad and notification dated 7.12.2006 of the Uttar Pradesh Government are on record as Annexures-11 and 12 of the writ petition.

4. It is further stated that under the provisions of Uttar Pradesh Public Service (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) Act, 1993, a quota of 5% has been fixed for aforesaid categories of persons. Thereafter by subsequent amendment in the said Act through U.P. Act No.6 of 1997 certain changes were brought under existing provisions of reservation. Thereafter the said Act was again amended in the year 1999 by U.P. Act No. 29 of 1999 whereby further amendments were made under the existing provisions of the said Act and legal position which stands after such amendments is that at the stage of direct recruitment, there shall be reservation in such public services and posts as the State Government may by notification identify, one percent of vacancies each for the persons suffering from (a) blindness or low vision; (b) hearing impairment; and (c) locomotor disabilities or cerebral palsy. It is stated that State Government did not discharge its aforesaid statutory obligation and did not identify the services and posts falling under Group-A and B services under the state by issuing notification under Section 3(1) (ii) of the Act 1993. Thus, the posts of Civil Judge Junior Division falling in Group-B posts of the state has not yet been identified by the State Government. It is further stated that under the provisions of Section 33 of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (Act No. 1 of 1996), the quota which shall be fixed for physically handicapped persons shall not be less than 3% of vacancies. It is further stated that inaction of respondent in not identifying the vacancies and proceeding with the advertisement for filling the vacancies without identifying the post for physically handicapped persons amounts to arbitrary act of respondents, which is violative of Articles 14 and 16 and also violative of provisions of Section 33 of Act No. 1 of 1996 inasmuch as Article 38 of the Constitution of India. It is also stated that the action of the respondents is also contrary to the direction given by Full Bench of this court inSarika's case referred herein before and resolution of full court is also contrary thereto.

5. In leading writ petition No. 3046 of 2007 two counter affidavits have been filed, one on behalf of respondent No. 4 U.P. Public Service Commission and another on behalf of High Court of Judicature at Allahabad through Registrar General of the High Court. The main counter affidavit appears to have been filed on behalf of High Court. In para 3 of the said counter affidavit it is stated that earlier to it the petitioner Devendra Nath Tiwari had filed a Writ Petition No. 27242 of 2006 in which he had sought a writ of mandamus directing the State Government to identify the post for reservation under the provisions of the U.P. Public Service (Reservation for Physically Disabled, Dependents of Freedom Fighters and Ex-servicemen) Act 1993. The said writ petition was dismissed by Division Bench of this Court vide judgement and order dated 2.11.2006 along with a bunch of writ petitions of which leading case was Writ Petition No. 59653 of 2006 Jai Prakash Tiwari and Ors. v. State of U.P. and Ors. In para 7 of the counter affidavit it is stated that merely because the States of Himachal Pradesh, Haryana and other States have identified posts for being given to the physically handicapped persons, does not imply that the same should be followed in State of Uttar Pradesh. It is further stated that the judgment of Full Bench of this Court in Sarika v. State of U.P. and Ors. placed before Full Court of Hon'ble High Court and the matter regarding reservation to physically handicapped persons in U.P. Higher Judicial Service and U.P. Judicial Services was duly considered by Hon'ble Full Court in its meeting held on 30.4.2005 and the Full Court had resolved that at present there is no scope or desirability of reservation for any physically handicapped persons in the U.P. Higher Judicial Service and U.P. Judicial Services and it was found that physically handicapped persons are not suited for discharge of judicial duties. It was, however, also resolved that if any physically handicapped person otherwise shows that he is in a position to discharge his judicial duties and abide by his service incidents, then there should be no bar to their appointments either in U.P. Higher Judicial Service or in U.P. Judicial Services. It is also stated that the decision taken by Hon'ble Full Court is based on an objective assessment of the practical difficulties which will necessarily have to be faced by a physically handicapped Judicial Officers during the course of his service. The resolution of Full Court is based on sound consideration and is perfectly legal and valid & is liable to be upheld by this Hon'ble Court. Copy of minutes of Full court meeting held on 30.4.2005 and 20.8.2005 are on record as Annexures C.A.-7 and C.A.-8 of the counter affidavit.

6. In paras 8 and 11 of the counter affidavit it is stated that the State of Uttar Pradesh has not identified posts for physically handicapped persons in Group A and Group B services. In para 12 (x) it has been further stated that post of Civil Judge (Junior Division) comes in category of Group B posts vide Rule 2 of U.P. Judicial Service Rules 2001. In view of G.O. Dated 31.1.2006 and 10.4.2006 the Ex-servicemen and physically handicapped persons are not entitled to get benefit of reservation in recruitment to the posts of Civil Judge (Junior Division) 2006. The copies of aforesaid G.Os. are on record as Annexures C.A.-5 and C.A.-6 of the counter affidavit. In para 14 of the counter affidavit it is also stated that the resolution of Full Court was communicated to the State Government vide a letter dated 27.8.2005 and vide G.O. Datd 7.12.2006 the State Government has taken the decision in response to the resolution dated 30.4.2005 and 20.8.2005 as contained in Annexures C.A.-10 of the counter affidavit.

7. We have heard Sri Arvind Srivastava Advocate for the petitioners and learned Counsel appearing for respondents and have also gone through the records.

8. From a perusal of para 3 of the counter affidavit filed on behalf of High Court, Allahabad in main writ petition no.3046 of 2007 it appears that the petitioner Devendra Nath Tiwari's writ petition No. 27422 of 2006 filed earlier has been dismissed by a Division Bench of this Court vide judgment and order dated 2.11.2006 along with bunch of cases, the leading case of which was writ petition no.59653 of 2006 Jai Prakash Tiwari and Ors. v. State of U.P. and Ors. In the aforesaid writ petition the petitioner Devendra Nath Tiwari had sought relief for mandamus directing the State Government to identify the post for reservation under the provisions of U.P. Public Services (Reservation for Physically Disabled and Dependents of Freedom Fighters and Ex Servicemen) Act 1993. From a careful reading of the judgement and order dated 2.11.2006 passed by Division Bench of this Court it appears that a bunch of writ petitions was filed questioning the process of recruitment on the post of Civil Judge (Junior Division) under U.P. Judicial Service Rules 2001 initiated vide advertisement dated 7-13 October 2006. From the perusal of aforesaid decision it appears that this Court as one of the issue has decided the upper age limit in respect of year of recruitment. Besides this, as point No. 2 the issue of reservation of dependents of physically handicapped persons has also been considered while taking note of decision of Full Bench of this Court rendered in Sarika v. State of U.P. decided on 24.2.2005, therefore, it cannot be said that both the writ petitions filed by Devendra Nath Tiwari are based on different cause of action arisen out subsequently after disposal of the aforesaid case. The relief prayed by the petitioners in respect of Rule 4 (m) of U.P. Judicial Service Rules 2001 is also covered by the aforesaid decision of Division Bench. At the most the petitioners can claim for fresh cause of action only in respect of notification dated 7.12.2006 whereby State Government has declined to given reservation in judicial services in favour of physically handicapped persons (Annexure-12 of the writ petition), therefore, in our opinion the question regarding the validity of aforesaid notification along with the validity of the resolutions of Full Court inasmuch as other incidental questions are still to be examined by this Court. However, so far as the relief claimed by the petitioners for declaration of Rules 4, 5, 6 and 20 of Allahabad High Court Rules and provisions of Right of Information Act as ultravires, learned Counsel appearing for the petitioner did not press the aforesaid relief, therefore, we need not to go into the merits of the aforesaid relief. Thus, in given facts and circumstances of the case, instead of dismissing the writ petitions filed by Devendra Nath Tiwari on the ground that these are second and third writ petitions in respect of same advertisement in question and for the same cause of action, we propose to entertain these writ petitions for another reason that there is no objection against another connected writ petition filed by Sri Anil Kumar Sharma wherein the question in controversy involved is identical to the aforesaid two writ petitions filed by petitioner Devendra Nath Tiwari.

9. Now in given facts and circumstances of the case, the questions which arise for our consideration are that (1) whether Section 3(1)(ii) of Act 1993 as amended by U.P. Act No.29 of 1999 entitles the physically handicapped candidates to claim reservation in the post of Civil Judge (Junior Division) in absence of requisite identification of the post in question, extending to it the benefits of such reservation? (2) whether the State Government has or it was permissible for it to have identified the post of Civil Judge (Junior Division) by issuing a notified order as contemplated by Section 3(1)(ii) of the Act 1993 as one of the posts for which reservation was to be provided for persons suffering from disabilities collectively known as physically handicapped until and unless High Court is consulted? (3) whether the State Government can be directed by mandamus to identify the post of Civil Judge (Junior Division) by issuing a notified order under the provisions of Section 3(1) (ii) of the Act 1993 and/or under the provisions of 33 of the Act No. 1 of 1996? (4) whether the resolutions Full Court of High Court dated 30.4.2005 and 20.8.2005 and State Government's notification dated 7.12.2006 are liable to be quashed on the grounds stated in the writ petition, if so, what relief can be given to the petitioners in given facts and circumstances of the case

10. Since the questions No. 1 and 2 formulated by us hereinbefore are interconnected, therefore, both are taken together, but before we proceed to deal with them, it is necessary to examine the relevant statutory provisions having direct impact upon the aforesaid questions formulated by us. In this connection it is to be noted that the recruitment on the post of Civil Judge (Junior Division) in State of U.P. is regulated by the provisions of U.P. Judicial Service Rules 2001. The aforesaid rules have been framed by the Governor of the State in exercise of power conferred by Article 234 and the proviso to Article 309 of the Constitution of India in consultation with the High Court and U.P. Public Service Commission. By virtue of Rule 2 of said rules the status of service is a State service comprising Group 'A' and Group 'B' posts. By virtue of Rule 3 of said Rules, these Rules are applicable to the members of Uttar Pradesh service comprising of Civil Judges (Junior Division) and Civil Judges (Senior Division). Rule 4 of said rules contains various expressions defined thereunder and used under the said rules. Rule 7 deals with the source of recruitment which provides that recruitment to the service shall be made on the post of Civil Judge (Junior Division) by direct recruitment on the basis of competitive examination conducted by the Commission. Rule 8 provides reservation to the post in service for members of scheduled castes, scheduled tribes and other categories which shall be in accordance with the provisions of law prescribing reservation for scheduled castes, scheduled tribes and other categories. It is not in dispute that at a relevant point of time Uttar Pradesh Public Services (Reservation for Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act 1994 was in operation and it is still in operation. Section 3 of which provides reservation in favour of scheduled caste, scheduled tribe and other backward classes at the stage of direct recruitment but this Act does not provide any reservation in favour of physically handicapped persons and other categories of persons.

11. To provide reservation to other categories of persons the State Legislature has enacted Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-servicemen) Act 1993 in short 'U.P. Act No. 4 of 1993' hereinafter referred to as 'the Act 1993'. This Act 1993 has come into force with effect from 11th December 1993. Section 2 of the Act 1993 defines various expressions employed under the said Act. Initially Section 3 of the said Act provided reservation in public services and posts in connection with the affairs of State to the extent of 5% of vacancies at the stage of direct recruitment in favour of (i) physically handicapped (ii) dependents of freedom fighters and (iii) ex-servicemen. Sub section (2) prescribed that respective quota of the categories specified in Sub-section (1) shall be such as the State Government may from time to time determine by 'notified order. Sub-section (3) of Section 3 provided that persons selected against the vacancies reserved under Sub-section (1) shall be placed in appropriate categories to which they belong, for example if selected person belong to scheduled caste category, he will be placed in that quota by making necessary adjustment; if he belongs to scheduled tribe category, he will be placed in that quota by making necessary adjustment; if he belongs to backward classes category, he will be placed in that quota by making necessary adjustment; similarly, if he belongs to open competition category, he will be placed in that category by making necessary adjustments. Sub-section (4) of Section 3 provided that for the purpose of Sub-section (1) of year of recruitment shall be taken as unit and not entire strength of cadre or service as case may be. A proviso has been appended to it to the effect that at no point of time the reservation shall in entire strength of cadre or service as case may be, exceed the quota determined for respective categories. Sub-section 5 provided that the vacancies reserved under Sub-section (1) shall not be carried over to the next recruitment year.

12. For better appreciation of controversy it would be appropriate to extract the provisions of of Section 3 as stood initially in principal Act 1993 as under:

3 Reservation of vacancies in favour of physically handicapped etc.- (1) In public services and posts in connection with the affairs of the State there shall be reserved five per cent of vacancies at the stage of direct recruitment in favour of-

(i) physically handicapped,

(ii) dependents of freedom fighters, and

(iii) ex-servicemen.

(2) The respective quota of the categories specified in Sub-section (1) shall be such as the State Government may from time to time determine by a notified order.

(3) The persons selected against the vacancies reserved under Sub-section (1) shall be placed in the appropriate categories to which they belong. For example, if a selected person belongs to Scheduled Castes category he will be placed in that quota by making necessary adjustments; if he belongs to Scheduled Tribes category, he will be placed in that quota by making necessary adjustments; if he belongs to Backward classes category, he will be placed in that quota by making necessary adjustments. Similarly if he belongs to open competition category, he will be placed in that category by making necessary adjustments.

(4) For the purposes of Sub-section (1) an year of recruitment shall be taken as the unit and not the entire strength of the cadres or service, as the case may be:

Provided that at no point of time the reservation shall, in the entire strength of cadre, or service, as the case may be, exceed the quota determined for respective categories.(5) The vacancies reserved under Sub-section (1) shall not be carried over to the next year of recruitment.

13. The Principal Act of 1993 has been amended by U.P. Act No. 6 of 1997 whereby certain amendments have been effected in definition clause of Section 2 of the principal Act and for Clause (f) following clause has been substituted as under:

(f) words and expressions used but not defined in this Act and defined in the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes ) Act, 1994 shall have the meaning assigned to them in that Act.

14. By Section 3 of Amending Act 1997 the provisions of Section 3 of Principal Act 1993 have been amended as under:

3. Amendment of Section 3.- In Section 3 of the Principal Act,-

(a) for Sub-section (1) the following sub-section shall be substituted, namely:

(1) There shall be reserved at the stage of direct recruitment,-

(i) in public services and post two per cent of vacancies for dependents of freedom fighters and one pet cent of vacancies for ex-servicemen;

(ii) in such public services and posts as the State Government may, by notification, identify one per cent of vacancies each for the persons suffering from,-

(a) blindness or low vision;

(b) hearing impairment; and

(c) locomotor disabilities or cerebral palsy.

(b) Sub-section (2) shall be omitted;

(c) in Sub-section (3) for the words 'Backward Classes', the words 'Other Backward Classes of citizens' shall be substituted;

(d) Sub-section (4) shall be omitted;

(e) for Sub-section (5), the following sub-section shall be substituted, namely:-(5) Where, due to non-availability of suitable candidates any of the vacancies reserved under Sub-section (1) remains unfilled it shall be carried over to the next recruitment.

15. Thus from a plain reading of Section 3 of the amending Act 1997 it appears that changes which were brought about under Section 3 of the principal Act 1993 were that in place of earlier Sub-section (1) of Section 3 of the Act 1993 where at the stage of direct recruitment 5 per cent vacancies were reserved in favour of (i) physically handicapped (ii) dependents of freedom fighters, and (iii) ex-servicemen, as determined by the State Government in respective quota by notified order from time to time. After amendment in the year 1997, at the stage of direct recruitment 2 percent vacancies were reserved for dependents of freedom fighters and one percent vacancies for ex-servicemen and one percent of vacancies were to be reserved for each category of the persons suffering from (a) blindness or low vision (b) hearing impairment; and (c) locomotor disability or cerebral palsy in such public services and posts as the State Government may by notification identify. By this amendment Sub-sections (2) and (4) of Section 3 of Principal Act have been omitted and Sub-section (5) was substituted by new provisions, whereby due to nonavailability of suitable candidates, the vacancies were liable to be carried forward to the next recruitment. Sub-section (3) of Section-3 of Principal Act remained intact with minor change in place of 'Backward Classes', 'Other Backward classes' have been substituted.

16. By U.P. Act No. 29 of 1999 the Principal Act of U.P. Act No. 4 of 1993 has been again amended. By Section 2 of Amending Act 1999 in Section 2 of Principal Act after Clause (d) clause (d-1) has been inserted whereby Group A posts or Group B posts are assigned the meaning to be specified by State Government from time to time. By Section 3 of Amending Act the provisions of Section 3 of Principal Act are again amended as under:

3. Amendment of Section 3.- In Section 3 of the principal Act, in Sub-section (1) for Clause (1) the following clauses shall be substituted, namely:

(i) in public services and posts two per cent of vacancies for dependents of freedom fighters;

(i-a) in public services and posts other than Group 'A' posts or Group 'B' posts, on and from May 21, 1999 two per cent of vacancies, and on and from the date on which the Uttar Pradesh Public Services (Reservation for Physically Handicapped, Dependents of Freedom Fighters and Ex-Servicemen) (Amendment) Act, 1999 is published in Gazette five per cent of vacancies, for Ex-Servicemen;

17. Thus, from perusal of Section 3 of amending Act 1999, it is clear that the changes which are brought about under existing provisions of Section 3 of the principal Act 1993 are confined to the extent of Clause (i) of Sub-section (1) of Section 3 of the Act 1993 and no amendments are made under existing Clause (ii) of Sub-section (1) of Section-3 of The Principal Act 1993, rather it remains intact as stood while amendment brought about by the Amending Act 1997, which provided that there shall be reserved at the stage of direct recruitment in such public services and posts as the State Government may by notification identify, one percent of vacancies each for persons suffering from (a) blindness or low vision (b) hearing impairment; and (c) locomotor disability or cerebral palsy, which are collectively defined as physically handicapped. However, by adding clause (1-a) in existing Clause (i) of Sub-section (1) of Section 3 of Principal Act-1993 the services and posts falling within Group A or B of State services are excluded from operations of reservation of ex-servicemen and only group C and D posts are made available for reservation to the extent indicated in the said clause.

18. Now before we deal with the aforesaid points for determination it will be necessary to keep in view the relevant provisions of the Constitution which have a direct impact on question in controversy projected by these points. Part XIV of the Constitution deals with Services under the Union and the States. Chapter I comprising of Articles 308 to 313 deals with Services, whereas Chapter II covering Articles 315 to 323 deals with Public Service Commissions. Article 308 defines the expression 'State' , which shall not include the State of Jammu & Kashmir. However, the relevant Article for our present purpose is Article 309 which reads as under:

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,

19. A bare look at this Article shows that it is expressly made subject to other provisions of the Constitution and subject to that, acts of appropriate Legislature can regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of Union or of any State. The proviso to Article 309 permits the President or such person as he may direct in the case of services and posts in connection with the affairs of Union, and for the Governor of his State or such person as he may direct in case of services and posts in connection with the affairs of State to fill up the gap by making rules regulating the recruitment, and the conditions of service of persons appointed to such services and posts until the provision in that behalf is made by or under an Act of appropriate Legislature under this Article, and any rules so made shall have the effect subject to provisions of any such Act.

20. It is pertinent to note that independently of general provisions of Article 309, the Constitution has made special provisions for certain Services. Even if they may be part of public services, still separate Constitutional schemes are envisaged for regulating recruitment and conditions of services of officers governed by such Services. Let us have a glance at such specially dealt with Services.

21. Part VI of the Constitution dealing with the States consists of six Chapters. Last Chapter VI of which deals with the Subordinate Courts, under which we find that provisions have been made for appointment of District, Judges under Article 233, recruitment of persons other than the District Judges to the Judicial Services under Article 234 and also Control of the High Court over the Subordinate Courts as laid down by Article 235. Article 236 deals with the topic of 'Interpretation' and amongst others, defines by Sub-article (b) the expression 'judicial service' to mean 'a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge.' It becomes, therefore, obvious that the framers of the Constitution separately dealt with 'Judicial Services' of the State and made exclusive provisions regarding recruitment to the posts of District Judges and other civil judicial posts inferior to the posts of the District Judge. Thus these provisions found entirely in a different part of the Constitution stand on their own and quite independent of Part XIV dealing with Services in general under the 'State' . Therefore, Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate and exclusive field for operation by the relevant provisions of Articles dealing with Subordinate Judiciary as found in Chapter VI of Part VI of the Constitution.

22. We may also refer at this stage to Article 146(2) dealing with Services of officers and servants of the Supreme Court which lays down the procedure for appointment and conditions of their services and provides that 'subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose.' Similar provision is found in Article 229 dealing with recruitment of officers and servants of the High Court. Sub-article (2) thereof lays down the rule making power of the Chief Justice of the Court concerned or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose subject to the provisions of any law made by Legislature of the State. Article 148 deals with Comptroller and Auditor-General of India. Sub-article (5) thereof deals with rule making power of the President regarding the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General subject to any provisions of the Constitution or any law made by the Parliament in this connection. Article 98 deals with Secretariat of Parliament. Sub-article (3) thereof provides 'Until provision is made by Parliament under Clause (2), the President may, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretariat staff of the House of the People or the Council of States, and any rules so made shall have effect subject to the provisions of any law made under the said clause.' Similarly, for Secretariat of State Legislature, we find Article 187 which deals with separate secretariat staff for the House or each House of the Legislature of a State. Sub-article (3) thereof provides that 'until provision is made by the Legislature of the State under Clause (2), the Governor may. after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretariat staff of the Assembly or the Council and any rules so made shall have effect subject to the provisions of any law made under the said clause.' Article 324 is found in Part XV which deals with Superintendence, direction and control of elections to be vested in an Election Commission. Sub-article (5) thereof provides that 'subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine.'

23. The aforesaid constitutional provisions clearly indicate that independently of general provisions regarding services as mentioned in Part XIV of the Constitution, different types of services contemplated by the Constitution in other parts have their own procedural schemes for recruitment and regulation of conditions of these services and, therefore, Article 309 found in Part XIV necessarily will have to be read subject to these special provisions regarding recruitment and conditions of services of diverse types governed by the relevant different constitutional provisions as indicated herein before.

24. Now at this juncture it would also be useful to refer the Part XI of the Constitution, Chapter I of which consisting of provisions of Articles 245 and 246, deals with legislative relations and distribution of legislative powers between Union and States. For ready reference it would be useful to extract the provisions of Articles 245 and 246 of the Constitution as under:

245. Extent of laws made by Parliament and by the Legislatures of States- (1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature or a State may make laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

246. Subject-matter of laws made by Parliament and by the Legislatures of States- (1) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this constitution referred to as the 'Union List').

(2) Notwithstanding anything in Clause (3), Parliament, and, subject to Clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the 'Concurrent List').

(3) Subject to Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the 'State List').

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.

25. Thus from a plain reading of Article 245 it appears that it is subject to other provisions of Constitution which in its clearest terms provides that subject to provision of this Constitution Parliament may make laws for whole or any part of the territory of India and the Legislature of State may make laws for the whole or any part of the State. Thus the legislative powers of Parliament and Legislature of State are expressly made subject to other provisions of Constitution. The provisions of Article 246 laying down the category of subject matter of laws made by the Parliament and by the Legislature of States enumerated in lists I, II and III of the Seventh Schedule will also have to be read subject to Article 245, which itself is made subject to the provisions of this Constitution, meaning thereby if other provisions of Constitution cut down or exclude the legislative powers of Parliament or the State Legislature qua given topics then those other provisions have to be given their full play and effect despite contrary provisions contained under legislative enactment.

26. So far as recruitment of District Judge and members of Subordinate Judiciary is concerned, we have to examine two articles found in Chapter VI of Part VI of the Constitution dealing with 'Subordinate Courts.' The relevant articles read as under:

233. Appointment of Judges:- (1) Appointment of persons to he, and the posting and promotion of, District Judges in any State shall be made by the Governor of the State on 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.

234. Recruitment of persons other than District Judges to the judicial service:- Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in

that behalf after consideration with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

27. Article 233 dealing with appointment of District Judges, on its own express terminology projects a complete scheme regarding the appointment of persons to District Judiciary as District Judges. Apart from laying down the eligibility criterion for candidates to be appointed from the Bar as direct District Judges the said provision is further hedged by the condition that only those recommended by the High Court for such appointment could be appointed by the Governor of the State. Similarly, for recruitment of judicial officers other, than District Judges to the judicial service at lower level, complete scheme is provided by Article 234 wherein the Governor of the State can make such appointments in accordance with the rules framed by him after consulting with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. So far as the Public Service Commission is concerned, its area of operation is clear from Article 320. The role of the Public Service Commission comes into action after the posts in a cadre are required to be filled in by direct recruitment and for that purpose due intimation is given to the Commission by the State authorities. They have obviously to act in consultation with the High Court so far as recruitment to posts in subordinate judiciary is concerned. Of course, it will be for the High Court to decide how many vacancies in the Cadre of District Judges and Subordinate Judges are required to be filled in by direct recruitment so far as the District Judiciary is concerned and necessarily only by direct recruitment so far as subordinate judiciary is concerned. This prime role of the High Court becomes more clear from Article 235 which deals with the control of the High Court over the subordinate Courts. The said article provides as under:

235. Control over subordinate Courts,

The control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

28. Thus from mere reading of the provisions of Article 235 of the Constitution, it is clear that the first part of Article 235 itself lays down that it is for the High Court to control the District Courts and Courts subordinate thereto and in exercise of that control vesting in the High court, regulation of posting and promotions and granting of leave to persons belonging to the judicial services has to be done by the High Court. It is no doubt true that in the second part of Article 235 judicial officers already appointed to the service have their statutory right of appeal and the right to be dealt with regarding other service conditions as laid down by any other law for the time being in force, expressly protected. But these provisions of the second part only enable the Governor under Article 309, in the absence of any statutory enactment made by the competent Legislature for regulating the conditions of service of judicial officers who are already recruited and have entered and become part and parcel of the State service, to promulgate appropriate rules on the subject. But so far as the entry points are concerned, namely, recruitment and appointment to the posts of Presiding Officers of the Courts subordinate to the High Courts, only Articles 233 and 234 would govern the field.

29. It has also to be kept in mind that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter articles contain provisions regarding the rule making power of the concerned authorities subject to the provisions of the law made by the Parliament or Legislature. Such a provision is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, there can be no scope for doubt to hold that while enacting the aforesaid Articles, the framers of our Constitution have provided a complete Code for regulating recruitment and appointment to District Judiciary and to Subordinate Judiciary, which has virtually excluded the interference of any other outside agency. This scheme of the Constitution is also in consonance with the concept of separation of Judiciary from the Executive. Therefore, in our opinion, the general sweep of Article 309 has to be read subject to this complete Code as carved out by Article 233 and 234 of Constitution regarding appointment of District Judges and Judges in the subordinate judiciary.

30. In this connection, it is to be further noted that similarly Article 245 which in its express terms is made subject to other provisions of the Constitution, which will also include the provisions of Article 233 and 234, which cover the field regarding the recruitment and appointment of District Judges and Judges of the sub-ordinate judiciary at base levei and are not made subject to any other provisions of Constitution, accordingly exclude the legislative powers of Parliament as well as state legislature to operate on this field and exercise of legislative powers by aforesaid constitutional functionaries, would be subject to the provisions of Article 233 and 234 so far as recruitment and appointment of District Judges and Judges of sub-ordinate judiciary at grass root level are concerned. Therefore, in our opinion, both the Articles 309 and 245 will have to be read subject to Article 233 and 234 of the Constitution. It also implies that the complete code projected by Article 233 and 234 of the Constitution would itself be an exclusion of the legislative powers of Parliament as well as Legislature of States and equally the Governor's power under Article 309 qua that field. Thus, the powers conferred upon aforesaid constitutional functionaries can not be exercised independently qua the exclusive field carved out by Articles 233 and 234, and the powers of Parliament, State legislature and Governor of State would stand excluded to the aforesaid extent.

31. At this juncture, it would be useful to refer the Constitution Bench decision of Hon'ble Apex Court in State of Bihar and Anr. v. Bal Mukund Sah and Ors. : [2000]2SCR299 , wherein Hon'ble Apex Court had occasion to consider somewhat similar issue of reservation for S.C./S.T. and other Backward Class persons in sub-ordinate judiciary of State of Bihar. The aforesaid reservation was sought to be effectuated by State enactment without consultation of concerned High Court. After dealing with relevant provisions of the Constitution and noticing earlier decisions Hon'ble Apex Court in para 32 and 37 of the majority judgement held as under:

32. It is true, as submitted by learned senior counsel Shri Dwivedi for the appellant-State that under Article 16(4) the State is enabled to provide for reservations in services. But so far as 'judicial service' is concerned, such reservation can be made by the Governor, in exercise of his rule making power only after consultation with the High Court. The enactment of any statutory provision dehors consultation with the High Court for regulating the recruitment to District Judiciary and to Subordinate Judiciary will clearly fly in the face of the complete scheme of recruitment and appointment to Subordinate Judiciary and the exclusive field earmarked in connection with such appointments by Articles 233 and 234. It is not as if that the High Court being constitutional functionaries may be oblivious of the need for a scheme of reservation if necessary in appropriate cases by resorting to the enabling provision under Article 16(4). The High Courts can get consulted by the Governor for framing appropriate rules regarding reservation for governing recruitment under Articles 233 and 234. But so long as it is not done, the Legislature cannot, by an indirect method, completely bypassing the High Court and exercising its legislative power, 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 the fundamental concept of an 'independent judiciary'. Both these concepts are now elevated to the level of basis structure of the Constitution and are the very heart of the constitutional scheme.

37. It is, of course, true as laid down by a catena of decisions of this Court, that topics of constitution of Courts and services, laying down of rules regarding the conditions of service other than those expressly placed within the jurisdiction of the High Court by Articles 233 and 235, providing for age of superannuation or other retirement benefits to judicial officers, fixing pay scales diversification of cadres may form part of general recruitment and conditions of services falling within the spheres of Governor's rule making power under Article 309 read with second part of Article 235 or may even be made subject-matter of legislation by competent Legislature in exercise of its legislative powers under Entry 41 of List II or for that matter Entry 11-A of List III of the Seventh Schedule. But save and except this permitted field, the State Legislature cannot enter upon the forbidden field expressly reserved for consultation with the High Court by the thrust of Articles 233 and 234 so far as the initial entry point of recruitment to judicial service at grass root level or at the apex level of the District Judiciary is concerned....

It is, therefore, obvious that the State Legislature has no role to play while controlling appointments of District Judges under Article 233 or appointment of Civil Judges to Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to judiciary at grass-root level as enjoined by Article 234 and can only act on recommendation by the High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233 Sub-article (2). There is no third method or third authority which can intervene in the process of can have its say, whether legislative authority or executive authority, as the case they be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two Articles. It is, therefore, difficult to appreciate the contention of learned senior counsel for the appellant State that paramount legislative power of the State Legislature stands untouched by the scheme of the aforesaid two Articles of the Constitution.

32. In view of aforestated legal position, it is clear that the State Legislature has no role to play while making appointments of Distrct Judge under Article 233 or appointment of Civil Judge to sub-ordinate judiciary at grass-root level on the post of Civil Judge, Junior Division under the district judiciary and it is only Governor of State who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to judiciary at grass- root level as empowered by Article 234 and can only act on recommendation by High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233(2). There is no third method or third authority which can intervene in the process or can have its say in the matter, whether legislative authority or executive authority as case may be independently of the complete scheme of such recruitment as envisaged by aforesaid two Articles.

33. Now before applying the aforestated legal principles in case in hand to answer the questions formulated by us, we must point out that a Full Bench of this Court in Sarika v. State of U.P. and Ors. 2005 (3) U.P.L.B.E.C. 2217 decided on 24.2.2005 has considered similar controversy and while answering the questions, Full Bench in para 44 of the decision has held as under:

44. We accordingly answer to questions placed before us as follows:

1. Physically disabled persons are not entitled to claim reservation under Section 3(1)(ii) of the Act 1993 as amended in 1997 and 1999, for the posts of Civil Judge (Junior Division) until the requisite identification of posts in question extending the benefit of such reservations.

2. It is not permissible for the State Government to identify the post of Civil Judge (Junior Division) by issuing a notification as contemplated under Section 3(1)(ii) of the Act of 1993, until and unless the High Court is consulted freshly in accordance with the law laid down in Bal Mukund Shah (supra).

3. The Full Court vide its resolutions dated 17.7.1993 and 7.3.1998, did not have an occasion to deliberate over the reservations for physically disabled persons. These resolutions approving draft of the U.P. Judicial Service Rules, did not given concurrence to the State Government for providing reservation for physically disabled persons.

4. The Division Bench judgment of this Court in Vinod Kumar Rai (supra) had not laid down the correct law.

34. After answering the aforesaid questions the Full Bench of this Court has made further observations and issued certain direction in concluding part of the decision in paras 48, 50 and 51 as under:

48. However, before parting with the matter, we find that the State Government has not carried out its statutory responsibility, cast upon it by both the Act No. 1 of 1996, and U.P. Act No. 4 of 1993, in identifying the post in Group 'A' and 'B' in the Public Services in the State, and to initiate a process of consultation with retard to such reservation in the judicial service with the High Court. We find substance in the submission of Sri Ashok Khare appearing for the petitioner that the State Government cannot escape its liability to give full effect to the constitutional and legislative mandate, and that effective dialogues must be initiated for identifying the posts in the judicial sen-ice for the purpose of reservation for such disabilities which may not effect the performance of judicial duties by such officer. Article 38 of the Constitution of India directs the State to strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice, social, economic and political shall inform all the institutions of the national life. The State shall in particular strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. The Parliament has accepted this responsibility towards physically disabled persons. The welfare of the disabled persons has been recognised, and accepted. The welfare of the disabled, to bring him in the main stream of the active social live, is a constitutional goal to be achieved by the State.

50. The physically disabled handicapped persons are no less citizens of the country. They are entitled to equality of opportunity, and deserve protection of their rights and full participation in all walks of life. The State cannot ignore the rights of such disabled persons and fails to perform statutory duty of identifying the posts for resenation for disabled persons in all the categories of public services. We are of the view that locomotor disability of a limited extent, and which does not affect the mental ability, vision and hearing impairment of a person shall not be of impediment in performance of judicial functions and that in view of the new found welfare approach and the duty to the rights of equality of physically disabled persons, the High Court may be willing in provide reservation to such persons in Judicial Sennces in the State.

51. The State Government is directed to identify Group 'A' and Group 'B' posts in all the services for reservation for physically disabled persons as expeditiously as possible as also the post of Civil Judge (Junior Division) after consultation with the High Court.

35. Now coming to the questions formulated by us for determination, it is to be noted that undisputedly the Act 1993 has been enacted by the State Legislature. The said enactment may be referable to the legislative powers of State Legislature conferred upon it under Article 245 and Article 246 of the Constitution. Since the subject matter of legislation pertains to the reservation of vacancies in State services and posts at the stage of direct recruitment in favour of physically handicapped, dependents of freedom fighters and ex-service men which would fall within the general sweep of public services of State, therefore, enactment in question would he covered by legislative field demarcated by entry No. 41 of list (II) i.e. State list of Seventh Schedule of the Constitution. Besides this, since it is also an Act to regulate the recruitment to public services and posts in connection of affairs of State, therefore, the same can also be treated to be an Act of appropriate legislature under enacting part of Article 309 of the Constitution. At this juncture, we would leave to deal in detail as to whether the Act 1993 would also fall under entry No. 23 of List III (concurrent list) which deals with social security and social insurance, employment and unemployment with reference to the pith and substance theory to which we would deal a little latter.

36. It is necessary to point out that by virtue of Rule 2 of Uttar Pradesh Judicial Service Rules 2001, the Uttar Pradesh Judicial Service is State service comprising of Group A and Group B posts. Section 2 (d-1) of 1993 Act defines Group A and B post to mean that the post specified as such by State Government from time to time as Group A or B posts, therefore, there can be no scope for doubt to hold that the Uttar Pradesh Judicial Service would be covered by general sweep of Act 1993 for the simple reason that it is a State service comprising of Group A and Group B posts. It is not in dispute that the Act of 1993 has been enacted by State Legislature which does not require any consultation with the High Court, therefore, in view of law laid down by Hon'ble Apex Court in Balmukund Shah's case (supra) any reservation to be effectuated by the aforesaid enactment cannot apply to the judicial services even if the U.P. Judicial Service falls within the ambit of State services comprising of Group A and Group B posts. It is also not in dispute that State Government did not identify the post of Civil 'Judge (Junior Division) by notification for reservation in favour of physically handicapped persons and unless High Court is consulted for such reservation in respect of posts of Civil Judge (Junior Division) and consent is given by the High Court, no notification can be issued by the State Government identifying the post of Civil Judge (Junior Division) as envisaged by Section 3(1)(ii) of Act 1993, therefore, we are in full agreement with the conclusion drawn by Full Bench of this Court in Sarika's case, so far as our answer with regard to the questions No. 1 and 2 formulated by us are concerned, we accordingly hold that physically handicapped persons are not entitled to claim reservation under Section 3(l)(ii) of the Act 1993 as amended by Amending Act 1997 and 1999 for the post of Civil Judge (Junior Division) until requisite identification of the post in question extending the benefit of such reservation is made by the State Government under aforesaid provisions of the Act 1993 by consulting the High Court in this regard and we further hold that it is not permissible for the State Government to identify the post of Civil Judge (Junior Division) by issuing a notification as contemplated under Section 3(1) (ii) of the Act 1993 until and unless the High Court is consulted in accordance with law laid down by the Hon'ble Apex Court in Bal Mukund Shah's case (supra).

37. Now next question which arises for our consideration is whether State Government can be directed by mandamus to identify the post of Civil Judge (Junior Division) by issuing a notified order under the provisions of Section 3(1)(ii) of the Act 1993 and/or under Section 33 of Act No. 1 of 1996? In this connection it is necessary to point out that from bare reading of the provisions of Section 3(1)(ii) of the Act 1993 as stands after 1997 and 1999 amendments, it is clear that the state legislature itself has provided reservation in public services at the stage of direct recruitment one percent of vacancies for each category of persons suffering from (a) blindness or low vision (b) hearing impairment and (c) locomotor disabilities or cerebral palsy but left its application in respect of services and posts, to which the State Government may by notification identify. Thus, in our opinion, the task of identification of services and posts for application of aforesaid reservation in favour of physically handicapped persons has been left over to the wisdom and discretion of State Government. In other words the State Legislature has delegated its legislative powers to the State Government in respect of identification of the services and posts and left it to the wisdom of the State Government to identify the services or posts which shall be reserved for physically handicapped persons without laying down any objective norms on the basis of which State Government would identify such services and posts. Therefore, the question which arises for our consideration is that as to whether State Government can be asked by this Court to issue notification by identifying the services and posts including the post of Civil Judge (Junior Division) extending the benefits of reservation in favour of physically handicapped persons? In this connection it would be useful to make reference of some cases in which similar controversy has received consideration of Hon'ble Apex Court.

38. In A.K. Roy v. Union of India and Anr. : 1982CriLJ340 by a notification the Central Government had brought into force all the sections of 44th Constitutional Amendment, except Section 3. While dealing with the controversy in respect of enforcement of 44th Constitutional Amendment Act 1978 Hon'ble Apex Court has held that no mandamus can be issued to enforce an Act which has been passed by legislature and left over to the Government to issue necessary notification for enforcement of provisions of Act. The pertinent observations made by Hon'ble Apex Court in this regard in Para 52 of the decision are extracted as under:

52. We may now take up for consideration the question which was put in the forefront by Dr. Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of Section 3 of the 44th Amendment Act in to force. That Amendment received the assent of the President on April 30, 1979 and more than two and half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act in to force, But we find ourselves unable to intervene in a matter of this nature by issuing mandamus to the Central Government obligating it to bring the provisions of Section 3 in to force. The Parliament having left to he unfettered judgement of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment in to force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment in to force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus. The Court's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that power: positively, by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting. If it were permissible to the Court to compel the Government by a mandamus to bring a constitutional amendment in to force on the ground that the Government has failed to do what it ought to have done, it would be equally permissible to the Court to prevent the Government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment in to force. We quite see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing in to force the provisions of Section 3 of the 44th Amendment, after the passage of two and half years. But the remedy, according to us, is not the writ of mandamus. If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment, it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon the standard or test prescribed by the Parliament. But, the Parliament has left the matter to the judgement of the central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgement for that of the Government on the question whether Section 3 of the Amendment Act should be brought in to force. This is particularly so when the failure of the Central Government it bring that section in to force so for can be no impediment in the way of the Parliament in enacting a provision in the National Security Act on the lines of that section. In fact, the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it. It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of Section 3 of the 44th Amendment in to force.

39. In Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh : [1972]1SCR940 , Hon'ble Apex Court observed as follows (at p. 2401 of AIR)-

What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact.

40. In Supreme Court Employees Welfare Association v. Union of India : (1989)IILLJ506SC in para 51 of the decision the Hon'ble Apex Court has held that no court can direct a legislature to enact a particular law. Similarly when an executive authority exercises a legislative power by way of Sub-ordinate legislation pursuant to the delegated authority of a legislature, such executive authority can not be asked to enact a law which he has been empowered to do under the delegated legislative authority. The pertinent observations made by Hon'ble Apex Court in para 51 of the decision are as under:

51. 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.

41. In State of Jammu & Kashmir v. A.R. Jakki and Ors. : AIR1992SC1546 it has been held that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. The same is true as regards the executive when it exercises powers to make rules which are in the nature of subordinate legislation. The pertinent observations made by the Hon'ble Apex Court in para 10 are extracted as under:

10. In our opinion there is considerable merit in this submission. A writ of mandamus cannot be issued to the legislature to enact a particular legislation. Same is true as regards the executive when it exercises the power to make rules, which are in the nature of subordinate legislation. Section 110 of the J&K.; Constitution, which is on the same lines as Article 234 of the Constitution of India, vests in the Governor, the power to make rules for appointments of persons other than the District Judge to the Judicial Services of the State of J&K; and for framing of such rules, the Governor is required to consult the commission and the High Court. This power to frame rules is legislative in nature. A writ of mandamus cannot, therefore, be issued directing the State Government to make the rules in accordance with the proposal made by the High Court.

42. Recently the aforesaid decisions of Hon'ble Apex Court have been reiterated by Hon'ble Apex Court in Bal Ram Bali and Anr. v. Union of India and Ors. 2007 AIR SCW 5551 wherein the pertinent observations made in para 3 of the decision are extracted as under:

3. It is not within the domain of the Court to issue a direction for ban on slaughter of cows, buffaloes and horses as it is a matter of policy on which decision has to be taken by the Government. That apart, a complete ban on slaughter of cows, buffaloes and horses, as sought in the present petition, can only be imposed by legislation enacted by the appropriate legislature. Courts cannot issue any direction to the Parliament or to the State legislature to enact a particular kind of law. This question has been considered in Union of India V. Prakash P. Hinduja and Anr. : 2003CriLJ3117 , wherein in para 30 of the reports it was held as under:

30. Under our constitutional scheme Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees' Welfare Assn. v. Union of India : (1989)IILLJ506SC it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. This view has been reiterated in State of J&K; v. A.R. Zakki (1992) Supp. (1) SCC 548. In A.K. Roy v. Union of India : 1982CriLJ340 it has been held that no mandamus can be issued to enforce an Act which has been passed by the legislature....

43. Now applying the aforesaid legal principles enunciated by Hon'ble Apex Court in present statutory backdrop of the case, we are of the considered opinion that the State Legislature while enacting the provisions of Section 3(1)(ii) of Act 1993 as amended by 1997 and 1999 amendments, has embodied the policy of reservation in public services at the stage of direct recruitment in favour of physically handicapped persons to the extent of one percent of vacancies for each category of persons indicated thereunder, but the services and posts in respect of which such reservation shall apply has been left over to the wisdom and discretion of the State Government. While delegating the power of legislation to State Government no objective standard or norm has been laid down by state legislature to guide the discretion and decision of the State Government, that makes it difficult for us to assess the situation judicially and substitute our judgement for judgement of government on the question whether particular service or post shall be identified and/or included in the notification of the government for extending the benefits of said reservation in favour of physically handicapped. If the State legislature would have laid down any objective standard or test governing the decision of state government in the matter of identification of services and posts to be reserved for physically handicapped, it would be possible to assess the situation judicially and government would be asked to correct its decision if found faulty within the parameters of scope of judicial review but here the matter pertaining to the sub-ordinate legislation has been entirely left over to the wisdom and discretion of state government, and in our opinion, rightly so, because of the simple reason, that having regard to the nature of work carried on in the particular service and post and the duties and responsibilities to be discharged by the persons appointed in such services or posts, consistently with the maintenance of efficiency of administration, the State Government would best judge to identify the services or posts in respect of which the reservation in favour of physically handicapped persons can be effectuated, therefore, we are of the considered opinion that the writ of mandamus is not a proper remedy where this court can direct the state government to identify any particular service or post for extending the benefits of reservation in favour of physically handicapped persons. Having regard to the scheme of the statute in question, it is not open for this court to issue writ, order or direction in the nature of mandamus directing the State Government to include and/or identify all the Group A and/or Group B services of State Government including the post of Civil Judge (Junior Division) falling withm Group B services of the state which is also dependent upon consultation with the High Court for extending the benefits of reservation in favour of physically handicapped persons.

44. In this connection we need to make it clear that we should not be understood to have approved any inaction on the part of State Government in undertaking the task of identification of public services and posts in connection with the affairs of State for application of reservation in favour of physically handicapped persons. What we mean to say that the State Government cannot be asked to identify all Group A and Group B posts in services of State Government including the posts of Civil Judge (Junior Division) which fall within Group B services of State to be reserved to the extent indicated under the aforesaid provisions in favour of physically handicapped persons. Such a direction, in our opinion, would be a direction to the State Government to legislate in a particular manner as delegate of subordinate legislation, which is not permissible in view of law laid down by Hon'ble Apex Court referred herein before. Therefore, the direction given by Full Bench of this Court in para 51 of the decision in Sarika's case (supra) should be understood in the terms of observation made herein before. It should not be interpreted to mean that the State Government must necessarily identify or include all Group A and Group B posts in state services to be reserved in favour of physically handicapped persons irrespective of the nature of duties and responsibilities attached to the posts consistently with the maintenance of efficiency of administration the State Government could not find feasible to make such reservation in respect of those posts in favour of physically handicapped persons.

45. Now the issue can be examined from the point of view of the provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act-1995 in short Act No. 1 of 1996. The Parliament has enacted the aforesaid Act with a view to give effect to proclamation on the full participation and equality of the people with disabilities in Asian and Pacific region. In a meeting conveyed by Economic and Social Commission for Asian and Pacific held at Beezing on 1st to 5th December 1992, the aforesaid proclamation was adopted and India was one of the signatory State to the said conference. Therefore, it was considered necessary to implement the proclamation aforesaid by enacting the Act in question. The Act has received assent of President on 1st January 1996 and published in Gazette of India on the same day, but it has come into force on 7th day of February 1996 by Central Government's notification by virtue of Section 1(3) of the Act No.l of 1996. The Act extends to whole of India except the State of Jammu and Kashmir. The Act comprises as many as 14th Chapters. Chapter I consisting of Section 2 defines various expressions used under the Act. We are only concerned with the expression 'establishment' defined under Section 2(k) of the Act. Chapters II and III are not relevant for our purposes. Chapter IV of the Act deals with prevention and early detection of disabilities. Chapter V deals with measures regarding education to the persons suffering from disabilities defined under the Act and Chapter VI deals with employment of such disabled persons. Chapter VII deals with affirmative action to be taken at the instance of appropriate Governments and Chapter VIII deals with non- discrimination in various respects including transport, road, in the built environment and in the Government employment. Chapter IX deals with research and manpower development, Chapter X deals with recognition of institution for persons with disabilities. Chapter XI deals with institution for persons with severe disabilities, Chapter XII deals with appointment of chief commissioner and commissioners for persons with disabilities, assigns various powers, duties and functions to be performed by them. Chapter XIII deals with social security and cast certain duties upon the appropriate Government and local authorities within the limit of their economic capacity in respect of disabled persons. Chapter XIV deals with miscellaneous provisions which includes Section 72 of the Act which specifically provides that the Act to be in addition to and not derogation of any other law.

46. For better appreciation of controversy, we may conveniently extract the provisions of Sections 2(k), 32, 33 and 72 of the Act which are relevant for our purposes as under:

(k) 'establishment' means a corporation established by or under a Central, Provincial or State Act, or an authority or a body owned or controlled or aided by the Government or a local authority or a Government company as defined in Section 617 of the Companies Act, 1956 and includes Departments of a Government;

32. Identification of posts which can be reserved for persons with disabilities.- Appropriate Governments shall-

(a) identify posts, in the establishments, which can be reserved for the persons with disability;

(b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.

33. Reservation of posts.- Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one per cent each shall be reserved for persons suffering from-

(i) blindness or low vision;

(ii) hearing impairment;

(iii) locomotor disability or cerebral palsy.

in the posts identified for each disability:

Provided that the appropriate Government may, having regard to the type of work carried on it any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.72. Act to be in addition to and not in derogation of any other law.- The provisions of this Act, or the rules made thereunder shall be in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions issued thereunder, enacted or issued for the benefit of persons with disabilities.

47. From perusal of expression 'establishment' defined under Section 2 (k) of the Act it is clear that it included a department of a Government and without going into detail scrutiny as to whether subordinate judiciary at District level falls within the definition of expression 'establishment', we assume for our purposes that subordinate judiciary at District level is covered by the aforesaid expression. Section 32 of the Act casts a duty upon the appropriate Governments to identify posts in establishments, which can be reserved for the persons with disability. Section 33 of the Act further provides that every Government shall appoint in every establishment such percentage of vacancies not less than 3 percent for persons or classes of persons with disability of which one percent each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment and; (iii) locomotor disabilities or cerebral palsy; in the posts identified for each disability. The proviso appended to Section 33 further provides that the appropriate Governments may having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

48. Although the proviso under a statute is meant for several purposes and played various role, which may vary from the context of the statute to which the proviso is appended but the function and purpose and the role which the proviso has to play in a statute has been explained in quite detail by Hon'ble Apex Court in S. Sundaram Pillai and Ors. v. V.R. Pattabhiraman : [1985]2SCR643 , wherein after considering several juristic opinion on the issue in para 42 of the decision the Hon'ble Apex Court has sum up its conclusion in respect of role which has to be played by the proviso in a statute as under:

42. We need not multiply authorities after authorities on this point because the legal position seems to be clearly and manifestly well established. To sum up, a proviso may serve four different purposes:

(1) qualifying or excerpting certain provisions from the main enactment;

(2) it may entirely change the very concept of the intendment of the enactment by insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;

(3) it may be so embedded in the Act itself as to become an integral part of the enactment and thus acquire the tenor and colour of the substantive enactment itself; and

(4) it may be used merely to act as an optional addenda to the enactment with the sole object of explaining the real intendment of the statutory provision.

49. From the aforestated legal position, having regard to the context of the statute to which the proviso in question is appended, we are of the considered opinion that the proviso used in Section 33 of the Act No. 1 of 1996 is just like exception to the main enactment for the simple reason that the duty which is cast upon the appropriate Government by the main substantive part of Sections 32 and 33 of the Act to identify the posts in the establishments which can be reserved for the persons with disability, the proviso has relaxed the rigour of statute and having regard to the type of work carried on in any department or establishment the appropriate Government is given liberty to exempt any establishment from the operation of the main provisions of Section 33 of the Act, subject to conditions, if any, as may be specified in such notification. Thus, in our opinion, the role which is played by the proviso is to carve out an exception to the substantive part of the statute contained under Section 33 of the Act.

50. Now, we will examine the Act No. 1 of 1996 from its constitutional point of view. From a mere survey of various provisions of the Act it appears that the Act in question is very comprehensive legislation, and has been enacted by the Parliament for implementing the decisions taken in the aforesaid international conference, which is referable to the provisions of Article 253 and entry No. 13 of List I (Union List) of Seventh Schedule of the Constitution. For ready reference the aforesaid provisions are extracted as under:

253. Legislation for giving effect to international agreements.- Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

List I - Union List

13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.

51. A bare reading of the provisions of Article 253 of the Constitution, indicates that the Parliament has power to make any law for whole or any part of the territory of India for implementing any treaty, agreement or convention with other country or countries or any decision made at any international conference association or other body, notwithstanding anything in foregoing provisions of this Chapter. It implies that irrespective of the fact that subject matter of legislation is otherwise covered by any other entry of any list of Seventh Schedule of the Constitution in respect of which Parliament may or may not be otherwise competent to legislate, but if the subject matter of legislation is such which is specially covered by Article 253 then the Parliament alone is sole repository of the power to legislate upon the same.

52. It is no doubt true that apparently there appears some conflict in between the legislative entries dealing with the subject matter of legislation in question but the question as to how such apparent conflict can be resolved by the court has to be answered with the help of doctrine of 'pith and substance'. The meaning and application of doctrine has received consideration of Hon'ble Apex court at several occasions, however, in this regard, we would refer only few cases. In Chaturbhai M. Patel v. Union of India and Ors. : 1978(2)ELT297(SC) , a Constitution Bench of Hon'ble Apex Court has held that if the matter comes substantially within an item in Union list, it is not deemed to come within an entry in the State list even though the classes of subjects looked at singly overlap in many respects. The same view has been reiterated by Hon'ble Apex Court in Atiabari Tea Co. Ltd. v. State of Assam : [1961]1SCR809 . In South Pharmaceutical & Chemicals v. State of Kerla : [1982]1SCR519 , it was held that a necessary corollary of the doctrine of 'pith and substance' is that once it is found in pith and substance, the impugned Act is law on a permitted field that incidently encroaches on a forbidden field does not affect the competence of legislature to enact the law.

53. In Prem Chand Jain v. R.K. Chhabra : 1984CriLJ668 , it has been held that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentaly encroaches on matters assigned to another legislature.

54. Recently in Union of India and Ors. v. Shah Goverdhan L. Kabra Teachers College : [2002]SUPP3SCR220 , the Hon'ble Apex Court has again explained the doctrine of 'pith and substance'. The pertinent observations made in para 7 of the decision in this regard are extracted as under:

7. is further a well-settled principle that entries in the different lists should be read together without giving a narrow meaning to any of them. Power of the Parliament as well as the State legislature are expressed in precise and definite terms. While an entry is to he given its widest meaning but it cannot be so interpreted as to override another entry or make another entry meaningless and in case of an apparent conflict between different entries, it is the duty of the Court to reconcile them. When it appears to the Court that there is apparent overlapping between the two entries the doctrine of 'pith and substance' has to be applied to find out the true nature of a legislation and the entry within winch it would fall. In case of conflict between entries in List I and List II, the same has to be decided by application of the principle of 'pith and substance'. The doctrine of 'pith and substance' means that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature which enacted it, it cannot be held to be invalid, merely because it incidentally encroaches on matters assigned to another legislature. When a law is impugned as being ultra-vires of the legislative competence, what is required to be ascertained is the true character of the legislation. If on such an examination it is found that the legislation is in substance one on a matter assigned to the legislature then it must be held to be valid in its entirety even though it might incidentally trench on matters which are beyond its competence. In order to examine the true character of the enactment, the entire Act, its object and scope and effect, is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine 'pith and substance' has to be applied not only in case of conflict between the powers of the two legislatures but in any case where the question arises whether a legislation is covered by particular legislative power in exercise of which it is purported to be made.

55. In Welfare Association A.R.P. Maharashtra and Anr. v. Ranjit P. Gohil and Ors. : [2003]2SCR139 , Hon'ble Apex Court while taking note of earlier decisions in para 27 to 29 of the decisions has observed as under:

27. The fountain source of legislative power exercised by the Parliament or, the State Legislatures is not Schedule-7; the fountain source is Article 246 and other provisions of the Constitution. The function of the three Lists in Seventh Schedule is merely to demarcate legislative fields between Parliament and States and not to confer any legislative power. The several entries mentioned in the three Lists are fields of legislation. The Constitution makers purposely used general and comprehensive words having a wide import without trying to particularize. Such construction should be placed on the entries in the Lists as makes them effective: any construction which will result in any of the entries being rendered futile or otiose must be avoided. That interpretation has invariably been countenanced by the constitutional jurists, which gives the words used in every entry the widest possible amplitude. Each general word employed in the entries has been held to carry an extended meaning so as to comprehend all ancillary and subsidiary matters within the meaning of the entry so long as it can be fairly accommodated subject to an overall limitation that the Courts cannot extend the field of an entry to such an extent as to result in inclusion of such matters as the framers of the Constitution never intended to be included within the scope of the entry or so as to transgress into the field of another entry placed in another List.

28. In every case where the legislative competence of a Legislature in regard to a particular enactment is challenged with reference to the entries in the various Lists. It is necessary to examine the pith and substance of the Act and to find out if the matter comes substantially within an item in the List. The express words employed in an entry would necessarily include incidental and ancillary matters so as to make the legislation effective. The scheme of the Act under scrutiny, its object and purpose, its true nature and character and the pith and substance of the legislation are to be focused at. It is a fundamental principle of Constitutional Law that everything necessary to the exercise of a power is included in the grant of the power. (See the Constitution Bench decision in Chaturbhai M. Patel V. Union of India and Ors. : 1978(2)ELT297(SC) ).

29. In Diamond Sugar Mills Ltd. and Anr. v. State of Uttar Pradesh and Anr. : [1961]3SCR242 , the Constitution Bench defined the two bounds between which the stream of interpretative process dealing with entries in Seventh Schedule must confine itself and flow. One bank is the salutary rule that the words conferring the right of the legislation should be interpreted liberally and the powers conferred should be given the widest amplitude; the other bank is guarding against extending the meaning of the words beyond their reasonable connotation in an anxiety to preserve the power to legislate.

56. Now testing the provisions of Act No. 1 of 1996 on anvil of legal principle aforestated, we find that the Act in question is very comprehensive legislation and has been enacted with a view to protect rights and provide opportunities and full participation to the persons with disabilities. To achieve the object of the enactment, various provisions have been engrafted thereunder, amongst them as seen earlier, some provisions have been made casting obligation upon appropriate Governments and local authorities for early detection of disabilities; providing education to disables and employment to them and some provisions have been made for taking affirmative actions, and further preventing discrimination with the persons suffering from disabilities and some provisions have been made in respect of social security like rehabilitation of persons with disabilities, insurance scheme for employees with disabilities and by providing them unemployment allowances. It is no doubt true that severally and individually some of these provisions may fall within different legislative entries of different lists of Seventh Schedule and some of which incidentally encroaches on matters assigned to another legislature and apparently seems in conflict with another legislative entries in respect of legislation in question but since the question of invasion into territory of another legislature is to be determined not by degree but by substance, therefore, on examination of entire legislation we are of the considered opinion that legislation in question falls substantially within the matters assigned to the Parliament under entry 13 of Union List, though it might incidentally trench upon the matters which are beyond its competence.

57. It is also well-settled by decision of Hon'ble Apex Court noted herein before that fountain source of legislative power exercised by the Parliament or State Legislatures is not Schedule-7; the fountain source is Article 246 and other provisions of the Constitution and the function of the three Lists in Seventh Schedule is merely to demarcate legislative fields between Parliament and State Legislatures and not to confer any legislative power. Undisputedly, as revealed from the aims and object of the legislation in question, it has been enacted by the Parliament for implementing the decision taken in the International conference, therefore, on that count alone the legislation in question is specially covered by Article 253 and would substantially fall within the ambit of entry 13 of List I (Union List) in respect of which Parliament alone is competent to legislate notwithstanding anything contained in foregoing provisions of Part XI Chapter I of the Constitution. Therefore, in our opinion, despite the Act No. 1 of 1996 contains some provisions, which may severally and individually otherwise fall within the ambit of entry 41 of State List in respect of which State legislature alone is competent to legislate and some of the provisions are covered by entry No. 23 of the concurrent list, in respect of which both Parliament and State legislature are competent to legislate but since the Act in question is enacted to implement the decisions taken in international conference of which India was one of the signatory state, therefore, the subject matter of legislation under the said Act is specially covered by Article 253 and squarely fall within the ambit of entry B No. 13 of the Union List and the Parliament is alone competent to legislate upon it.

58. Similarly, on careful examination of aims and objects of Act 1993 it is clear that the aforesaid Act has been enacted by the State Legislature to provide for reservation in favour of physically handicapped persons, dependents of freedom fighters and ex-servicemen in public services in connection of affairs of state. By provisions of Section 3 of the Act 1993 as amended from time to time the reservation has been made in favour of physically handicapped persons, dependents of freedom fighters and Ex-servicemen in public services and posts in connection with the affairs of State at the stage of direct recruitment. Undisputedly, public services and posts in connection of affairs of State fall within the ambit of entry 41 of List II (State List) of Seventh Schedule in respect of which State Legislature alone is competent to legislate. However, it might be possible that the reservation in public services of the State in favour of physically handicapped persons coincidently fall within the broader sweep of social justice and may be one of the measures to ensure social security, therefore, it would be possible that legislation in question would have invaded to the extent of certain degree the field demarcated by the legislative entry 23 of List III-concurrent list of Seventh Schedule, which deals with the matters pertaining to social security and social insurance; employment and unemployment which is also an entry of wide amplitude, but since the matter substantially falls within the public services of the State covered by entry 41 of State List, therefore, the subject matter of legislation even if encroaches upon the matter of entry 23 of concurrent list to certain degree and apparently seems in conflict therewith in respect of legislation in question, nevertheless by applying the doctrine of 'pith and substance' we are of the considered opinion that subject matter of legislation in question may substantially fall within the ambit of entry 41 of List II (State List) of Seventh Schedule of Constitution. Accordingly, we hold that State Legislature was competent enough to legislate on it irrespective of fact that the legislation in question has trenched on the matters which were beyond the competence of State legislature under which it was enacted.

59. At this juncture, it is also necessary to point out that there is no direct conflict between the provisions of the Act No. 1 of 1996 and the provisions of the Act 1993, as both the Acts operate in different fields altogether. The Act No. 1 of 1996, as seen earlier is very comprehensive legislation and covers various fields, whereas the Act 1993 specially deals with the matter of reservation in direct recruitment in favour of physically handicapped persons, dependents of freedom fighters and ex-servicemen in public services in connection of affairs of State, but so far as Chapter VI comprising of Sections 32 and 33 of Act No. 1 of 1996, which deals with the employment and reservation of posts by appropriate Government in every establishment in favour of persons with disability indicated thereunder is concerned, there appears some overlapping between the provisions of aforesaid enactments. The provisions of Section 3(1)(ii) of the Act 1993, as amended by Amending Act 1997 also deals with identical matter, and has virtually incorporated the provisions of Section 33 of the Act No. 1 of 1996 in verbatim, except the proviso appended to Section 33 of the said Act, therefore, there appears some conflict between them, not because of observance of one would be automatic disobedience of another instead thereof both the enactments cast similar duty upon State Government and/or respective appropriate governments, but that alone is not sole test for determination of inconsistency between two legislations. An inconsistency may also occur, if both the legislations cover the same subject matter of legislation and operate in the same field even to a little extent of their area of operation or even coincide on any points, irrespective of their different field of operation like Section 33 of Central Act which has wider circle of operation, whereas State Act has comparatively smaller circle but both the circle must coincide when they applied to the State services in any establishment under State Government.

60. In this connection, at this juncture it is also necessary to point out that neither the Central Act nor the State Act has been enacted on any legislative entry of concurrent list causing any inconsistency between them nor it can be said that State legislature has enacted the State Act on any matters enumerated in the Union list so as to become ultra-vires, being beyond legislative competence, rather as held earlier the State Act has been enacted on the matters of State list, therefore, the State Act to the extent of coinciding point with the central Act can neither be held as ultra-vires having been beyond legislative competence nor it can be held to be void on account of any repugnancy with the central Act, nor doctrine of implied repeal can be attracted under the circumstances of the case. Since we have already held that the Act No. 1 of 1996 has been enacted under the provisions of Article 253, which in its express terms overrides other preceding provisions of Chapter I, Part XI of the Constitution and the Act 1993 is referable to the provisions of Article 246 of the Constitution, therefore, by virtue of non-obstante clause contained under Article 253, the Act No. 1 of 1996 has overriding effect upon the provisions of the Act 1993, qua field covered by the provisions of the said Act. It is also well known in our Federal Constitution that the Parliament as well as State legislature exercise their sovereign powers independently and the State legislature is not subordinate to the Parliament, but it is by virtue of Article 253, Central Act has overriding effect upon the provisions of Section 3(1)(ii) of the Act-1993 and not because of the reason that it is enacted by the Parliament, which has any supremacy upon the State legislature. That apart, Section 72 of the Central Act also stipulates in clearest terms that the provisions of the aforesaid Act are in addition to other laws made in this regard and not in derogation thereto. It leaves no room for doubt to hold that the provisions of Section 33 of the Act No. 1 of 1996 have overriding effect upon the provisions of Section 3(1)(ii) of the Act 1993 qua the field carved out by the said Section.

61. Before we proceed further, it is to be noted that since power of Parliament contained under Article 253 is a part of general power of Parliament contained under Article 245 of the Constitution, which itself is subject to other provisions of the Constitution and we have already held that paramount legislative powers of Parliament and State legislature are subject to the complete code of Article 233 and Article 234 of the Constitution dealing with recruitment of District Judge and sub-ordinate judiciary at grass-root level, therefore, in our opinion, Article 253 has to be read subject to aforesaid Articles and exercise of powers under Article 253 qua the field covered by Article 233 and 234 shall be circumscribed by the complete code comprehended by the said articles. In other words, no reservation can be made in favour of physically handicapped in judicial services, even by the Parliamentary legislation without consultation of High Court concerned. Accordingly, we hold that the State Government which is appropriate Government in respect of State Services under Sections 32 and 33 of the Act No. 1 of 1996 would not be competent to identify the post of Civil Judge (Junior Division) falling under state services for the purpose of reservation in favour of physically handicapped persons unless consultation is made with the High Court and High Court has given green signal for such reservation.

62. Now coming again to the provisions of Section 33 of Act No. 1 of 1996 it is clear that while exercising its legislative powers the Parliament has enacted the provisions for making reservation in appointment in every establishment such percentage of vacancies not less than three percent for persons or class of persons with disability of which one percent each shall be reserved for persons suffering from (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability or cerebral palsy but the Parliament has delegated its legislative power and function to the appropriate government to identify the post for each such disability in respect of which reservation has to be applied. The proviso appended to Section 33 further provides that the appropriate Government may having regard to the type of work carried on in any department or establishment by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section. We have held earlier that the proviso appended to Section 33 of the Act No. 1 of 1996 is just an exception to the main enacting part of Section 33 as it has relaxed the rigour of statute which has cast duty upon the delegated authority i.e. appropriate Government to identify the posts or services in every department or establishment to be reserved for physically handicapped persons and given liberty to exempt any establishment from operation of the main provisions of Section 33 of the Said Act subject to condition, if any, as may be specified by the notification having regard to the type of work carried on in any department or establishment. It implies that the Parliament itself has left the task of identification of posts or services to which the reservation in favour of physically handicapped persons shall apply. It is not that the said policy of reservation shall apply in all the services or posts irrespective of the nature of work carried on in any department or establishment. In case the legislature would have intended said reservation in all categories of services or posts, in every department or establishment, there would have been no occasion to leave the task of identification of services or posts to the choice or discretion of appropriate Government and further no liberty would have been given to the appropriate Government to exempt any establishment from operation of provisions of said section.

63. Besides, no objective norm or test has been laid down by the Parliament to control or guide the discretion of appropriate Government to carry out the task of identification of post, instead thereof the same has been left over completely to the discretion and wisdom of appropriate Governments by giving liberty to them to exempt any establishment from operation of aforesaid section having regard to the type or nature of work carried on in such establishments. In absence of any objective norm or test laid down by Parliament to control or guide the discretion to be exercised by the appropriate Government, in our view, the situation cannot be assessed judicially so as to ask the appropriate Government to correct its decision if found faulty. Since the task of identification of posts or services for the application of said reservation is subject matter of subordinate legislation to be carried on by delegated authorities under the scheme of said section which can be best judge in the matter, therefore this Court under Article 226 of the Constitution cannot substitute its opinion for the judgment of delegated authorities and ask the appropriate Government to identify any service or post in any department or establishment to be reserved for physically handicapped persons and no writ of mandamus can be issued by this Court directing the appropriate Government/State Government in case of state services to identify any category of services or posts including the post of Civil Judge (Junior Division) of U.P. judicial service to be reserved for physically handicapped persons under Section 33 of the Act No. 1 of 1996. Accordingly, we hold that the State Government cannot be directed by mandamus to identify the posts of Civil Judge (Junior Division) by issuing a notified order under the provisions of Section 3(1)(ii) of the Act 1993 and under the provisions of Section 33 of the Act No. 1 of 1996 for extending the benefits of reservation in favour of physically handicapped persons.

64. The observations made in paras 48 and 50 and direction given in para 51 of the decision of Full Bench of this Court in Sarika's case (supra) in this regard, in our opinion, should be understood to mean that having regard to the statutory scheme under Section 33 of the Act No. 1 of 1996 the appropriate Government and State Government in respect of the services in connection with the affairs of state cannot escape from their duty to undertake the task of identification of services and posts to be reserved for physically handicapped persons in every establishment and/or department as case may be, but certainly they cannot be asked to reserve any particular category of post or service in such department and establishment for simple reason that having regard to the nature of work carried on in any department or establishment the appropriate Government has been given liberty to exempt any establishment from operation of provisions of said section. Therefore, in our opinion, while undertaking the task of identification of services or posts it is always open to the Government to exempt any services or posts or establishment itself from the operation of the provisions of aforesaid section, having regard to the type or nature of work carried on in such department or establishment. In case the aforesaid observations and direction would be taken to mean that appropriate Government is under statutory duty to extend the benefits of reservation in favour of physically handicapped persons in respect of all category of services or posts in every department or establishment, it would amount to asking the Government to legislate in a particular manner in exercise of its power of sub-ordinate legislation which is not even intended by the competent legislature, to us that would be contrary to the dictum of Hon'ble Apex Court laid down in A.K. Roy's case (supra), Narinder Chand Hem Raj's case (supra), Supreme Court Employees Welfare Association's case (supra), A.R. Jakki's case (supra) and Balram Bali's case (supra), therefore the aforesaid observation and direction given by Full Bench of this Court in Sarika's case (supra) must be read in conformity of law laid down by Hon'ble Apex Court in the aforesaid decisions.

65. Now coming to the last question it is pertinent to point out that we have explained the observations made in paras 48 and 50 and direction given in para 51 of the decision of the Full Bench of this Court in Sarika's case, in preceding paragraph and earlier part of our judgement, but it appears that in compliance of said direction the Government has undertaken the task of identification of posts in U.P. Higher Judicial Services and U.P. Judicial Services and matter has been referred for consultation with the High Court. In pursuance thereof the Full Court of the High Court after due deliberation passed resolutions on 30.4.2005 and 20.8.2005 whereby it has been resolved that physically handicapped persons are not suited for discharge of judicial duties which undertakes numerous transfer as part and parcel of sub-ordinate judicial services and as such at present there is no scope or desirability of reservation for any physically handicapped person in U.P. Higher Judicial Services or U.P. Judicial Services. However, if any physically handicapped person shows that he is in a position to discharge his judicial duties and abide by his service incidents, then there should be no bar to his absorption in U.P. Higher Judicial Services or in U.P. Judicial Services. The aforesaid resolutions of Full Court of this Court have been communicated to the State Government through registry of this Court vide letter dated 27.8.2005. Thereupon the Government has sought legal advice in the matter and taken a decision thereon holding that Hon'ble High Court has not given its consent for reservation in favour of physically handicapped persons in Judicial services. Therefore, the compliance of judgement of Full Bench of Hon'ble High Court in Sarika's case is legally not possible for the Government in absence of consent of High Court. In the impugned decision of the State Government dated 7.12.2006 contained in Annexure-12 of the writ petition, it is stated that the Governor of the State has agreed upon the aforesaid recommendation of High Court and further held that in judicial services of the State it is legally not possible for the Government to comply with the direction of Full Bench of Hon'ble High Court in Sarika's case without consent of Hon'ble High Court and accordingly it is not possible to give reservation to physically handicapped persons in U.P. Higher Judicial Services and U.P. Judicial services and the impugned order has been issued under the proviso of Section 33 of the Act No. 1 of 1996.

66. In this connection it is pertinent to mention as held earlier that High Court is entrusted with the task of full control of judicial administration in the subordinate judiciary under Article 235 of the Constitution. The High Court would be best judge of the requirements for proper and efficient judicial administration and any reservation in appointment in subordinate judiciary cannot be effectuated unless High Court has given green signal for such reservation at entry point. In absence of such green signal by High Court there can be no reservation in appointment in subordinate judiciary. The High Court having regard to the maintenance of efficiency in judicial administration has to take decision regarding the need and feasibility of reservation in subordinate judiciary and if, while undertaking such task, the High Court in the process of consultation has opined that having regard to the nature of work, duties and responsibilities discharged by the members of subordinate judiciary at district level, consistently with the maintenance of efficiency of judicial administration, it is not feasible or desirable to make reservation in favour of physically handicapped persons in judicial services of state, we do not find any fault in the impugned resolutions dated 30.4.2005 and 20.8.2005 and pursuant Government order dated 7.12.2006 impugned in the writ petition.

67. We are of the considered opinion that High Court is main constitutional functionary while undertaking the task of framing the rules for recruitment in subordinate judiciary at grass-root level under Article 234 of the Constitution and while deliberating with Governor of State, in the process of consultation, the High Court performs legislative function being main consultee under Article 234 of the Constitution. Similarly, in consultation process for identification of posts under judicial services for reservation in favour of physically handicapped persons under Section 33 of Act No. 1 of 1996 the High Court stands on the same footing of delegate of subordinate or delegated legislation, therefore, it makes further difficult for us to assess the aforesaid task of High Court judicially and impugned recommendation of High Court based on resolutions of Full Court of High Court and for that purpose we cannot substitute our judgement for the judgement of Full Court in the process of judicial review under Article 226 of the Constitution, otherwise also we do not find any illegality in the impugned resolutions of Full Court dated 30.4.2005 and 20.8.2005 and pursuant decision of State Government dated 7.12.2006.

68. Although another writ petition No. 66816 of 2006 filed by petitioner Sri Devendra Nath Tiwari pertains to other services of State Government wherein besides the relief for compliance of Full Bench decision of this Court in Sarika's case referred herein before, the petitioner has also sought relief of certiorari quashing the advertisement No. A-3/E-1/2006 dated 7th July, 2006 contained in Annexure-4 of the writ petition which pertains to Combined State Subordinate Services Examination 2006 but in view of foregoing discussions we are of the considered opinion that relief sought by the petitioner Devendra Nath Tiwari in this writ petition also cannot be given to him.

69. In given facts and circumstances of the case, in view of foregoing discussions we do not find any justification to grant any relief in the writ petitions. In our opinion, writ petitions are bereft from merits and are liable to be dismissed. Accordingly the same are hereby dismissed. There shall be no order as to costs.


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