T.K. Chandrashekhara Das, J.
1. Rule. By consent rule is made returnable forthwith.
2. The petitioner is an association of Judicial Officers working in the subordinate courts in Goa. In this writ petition the petitioner challenges the validity of the Goa Civil Service (Judicial Branch) Rules, 1992, particularly Rule 17(b) and Rule 18(2) thereto. The said rules are hereinafter called the '1992 Rules'. The attack on the rules is on two counts. Firstly, the rules under challenge are arbitrary and violative of Articles 14 and 16 of the Constitution of India inasmuch as they take away the chances of promotion of the members of the petitioner's Association. Secondly, the rules under challenge have been framed in violation of the mandates contained in Article 234 of the Constitution of India as they are framed without the consultation of the Public Service Commission and of the High Court.
2A. A galaxy of lawyers of the Goa High Court Bar including the Advocate General is arrayed on either side; lawyers appearing for the State of Goa and the High Court on one side whereas lawyers appearing for the petitioner and the Goa Public Service Commission on the other. Authorities running more than forty or so have been cited across the Bar to substantiate their respective contentions. Arguments with passion and reason continued days together. Since the major portion of the arguments has been advanced with regard to the second point, we wish to deal with the second point first in this Judgment. Before we embark upon the controversy, the brief facts of the case can be stated, as follows:
3. In the State of Goa 'The Goa, Daman and Diu Civil Services (Judicial Branch) Rules, 1973' were in force and under those Rules the Civil Service (Judicial Branch) was constituted consisting of three grades, namely (1) Selection Grade; (2) Grade I; and (3) (a) Grade II (Senior) and (b) Grade II (Junior). As per these rules the posts of Grade II (Junior) were recruited directly and Grade II (Senior) would be filled up by promotion from Grade II (Junior). So also Grade I would be filled up by promotion from Grade II (Senior) and/or Grade II (Junior) and the Selection Grade was filled in by promotion from among the members of the Judicial Service in Grade I. These Rules of 1973 were substituted by another set of Rules of 1983 with effect from 27th September, 1985 known as the 'Goa, Daman and Diu Civil Services (Judicial Branch) Rules, 1983' under which the service consisted the following grades:
(1) Selection Grade, consisting of District and Sessions Judges;
(2) Grade I, consisting of Additional District Judges and Additional Sessions Judges.
(3) Grade II, consisting of: (a) Senior Branch Civil Judges, Senior Division;
(b) Junior Branch-Civil Judges, Junior Division.
In terms of 1983 Rules also the Junior Branch, Grade II was filled up by direct recruitment from among the members of the Bar by holding an interview by a committee appointed for the said purpose. The appointment to Junior Branch, Civil Judge, Grade I (Senior Division) was to be made by the High Court by promotion from Grade I (Junior Division) to be made by the Administrator in consultation with the High Court and further selection from Grade I to the Selection Grade which consists of District and Sessions Judges was to be made by the High Court alone. According to the 1992 Rules the total strength of the Judicial service is as follows:
(1) Grade II (Junior) - 13;
(2) Grade II (Senior) - 9; and
(3) Grade I - 5.
Promotion to the post of Grade II (Senior Branch) is from amongst the Grade II (Junior Branch) with at least four years service in the Grade. As stated earlier all the posts in Grade II (Senior Branch) and Grade II (Junior Branch) and District Judges were to be filled up by promotion amongst the judicial officers of the State of Goa.
4. In supersession of the 1983 Rules, the Rules under challenge have been introduced by the first respondent whereby the constitution and classification of the judicial service is stated, as follows :
(1) Grade I, consisting of District Judges and Additional District Judges;
(2) Grade II - Senior Branch - Civil Judge, Senior Division;
Junior Branch - Civil Judge, Junior Division.
The strength of the service has been stated to be determined by the Governor from time to time in consultation with the High Court. According to these Rules the lowest rung of hierarchy of subordinate judiciary in Junior Branch is Civil Judge, Junior Division which has to be filled by direct recruitment from amongst the members of the Bar on the basis of an interview by a committee constituted for that purpose consisting of:
(1) A Judge of the High Court nominated by the Chief Justice as the Chairman;
(2) A Judge of the High Court nominated by the Chief Justice as Member;
(3) Chief Secretary, Government of Goa as Member; and
(4) Law Secretary as Member Secretary;
Under the Rules this Committee is required to prepare a select list of candidates in order of merit and once the list is prepared it would be valid for a period of two years. The Committee is also authorised to evolve a reasonable method or formula for short-listing of candidates for holding interviews. The eligibility for the post namely Junior Branch, Grade II (C.J. Jr.Div.) is possession of a degree in law of any recognised university in India and knowledge in the language of Konkani or Marathi and also that he has practised as an Advocate in the High Court or any Court subordinate thereto or the former Judicial Commissioner's Court for not less than three years on the last date prescribed in the application.
5. The appointment to the post of Grade II Senior Branch about which the controversy centres around in this case is as per Rule 17(a). It has to be filed up by two methods; one is by promotion from amongst officers of Grade II Junior Branch who have a standing of at least four years. There is a proviso to relax the condition of minimum years of standing by the High Court. And as per the second method, these posts can be filled up by nomination by the Governor on the recommendation of the High Court from amongst the members of the Bar who have practised as Advocates for not less than five years in the High Court or courts subordinate thereto. A proviso to Rule 17(b) has been made for this purpose which reads as follows:
'Provided that as far as possible not more than 33% posts in Grade II Senior Branch shall be filled in by nomination.'
Rule 18 deals with appointment to posts in Grade I. These are required to be filled up by the Governor by promoting from amongst the members of Grade II selected by the High Court. It has also been provided in that Rule that a Grade II Junior Branch also will be considered for promotion if he has put in ten years of service. The appointment to posts in Grade I can also be made by nomination as per Rule 18(a)(ii) on the basis of the recommendation of the High Court from members of the Bar who have been for not less than seven years, practising as Advocates in the High Court or courts subordinate thereto. The proviso to Rule 18(ii) provides as follows:
'Provided that the proportion of posts filled in by nomination shall as far as possible be equal.'
As we have seen here, the 1992 rules have been framed by the Governor as its preamble indicates in exercise of its powers under Articles 233 and 234 of the Constitution of India read with the Goa, Daman and Diu Reorganization Act, 1987. It has also been stated in the preamble that these rules have been framed after consultation with the High Court at Bombay as required by Articles 233 and 234 of the Constitution of India. In view of the major departure that has been made from the existing rules, by virtue of Rules 17 and 18 whereby 33% and 50% posts in Grade II and Grade I are to be filled by nomination from the Bar. The contention of Mr. Rebello, the learned Counsel for the petitioner is that this newly introduced provision will work against the interest of members of the petitioner Association inasmuch as it will undermine the promotional avenues which they were enjoying under the existing rules. He submits that the total strength of Grade II (Senior Branch) at present is 9 and seven posts were filled up by promotion from amongst the Grade II, Junior Branch. At the commencement of the rules the number of posts of Grade II Senior Branch earmarked for promotion from amongst Grade II, Junior Branch will be reduced to 6, resulting in reversion of one judicial officer who is working as Civil Judge (Senior Division) because of the working of the proportion introduced by the new rules for promotion and the nomination as 67% and 33% respectively. Moreover, the Counsel for the petitioner alleges that the present incumbent who is working in Grade II Junior Branch can aspire for promotion only in the year 2001 if the rule is strictly implemented by nominating 33% from amongst the members of the Bar. Another grievance that has been made out by the petitioner is that the Judges working as Junior Division are not eligible to be considered for appointment by nomination though they were more experienced than the Advocates who are coming from the Bar who were required to put only a minimum practice of five years in the Bar. A Grade II Judicial Officer working as Civil Judge (Junior Division) at time of recruitment has four years practice as Advocate and after being appointed as a Judicial Officer, his added experience has not been preferred to a raw Junior Lawyer's practice who is having only minimum five years of practice at the Bar. In other words the rules are unreasonable that a Judge having experience of more than five years has not been considered against a lawyer having only five years minimum experience found to be eligible for nomination to the post of Grade II Senior Branch. This is clearly arbitrary and illegal according to the petitioner. Similarly, the petitioner has also made a grievance that the post of District Judges and Additional District Judges, the number of which are very limited, the reservation of 50% from among the Bar will also work prejudicial to the interest of the members of the petitioner association. Mr. Rebello, further submits that before the impugned rules have been framed the petitioner made a representation to the Chief Justice of the Bombay High Court pointing out the grievance of the petitioner and it is alleged that the Chief Justice has agreed to delete that portion which is likely to operate against the members of the petitioner from the rules (no materials to substantiate such assurance was produced). However, the Rules have been framed contrary to the assurance given by the Chief Justice. Apart from this challenge on merit, the petitioner has also challenged, as we pointed out earlier, that these Rules are illegal as it has been framed without proper consultation with the High Court and without consultation with the Goa Public Service Commission.
6. The Government of Goa in its Affidavit-in-reply stated that the petition is not maintainable. On behalf of the Government, the Under Secretary (Law) of the Government of Goa has filed an affidavit stating that in another writ petition being Writ Petition No. 235/94 filed by one Shri Sandeep J. Natekar in which the then Under Secretary (Law) had filed an affidavit-in-reply which has been referred to and relied upon. As per the affidavit filed in the said writ petition, it is inter alia contended, that the petitioner has no locus standi; that the writ petition is not maintainable and as such if at all the petitioner has a locus standi the claim of the petitioner has no legal basis as its members are deprived of the only chance of promotion which is not a vested right. Regarding consultation with the Public Service Commission and the High Court, it is stated on behalf of the Government that after the rules have been framed by the State Government, the same have been submitted to the High Court in terms of Article 234 of the Constitution under covering letter dated 29-4-1992 of the Under Secretary (Law) alongwith a copy of the proposed rules. A letter was addressed to the Registrar of the High Court and the Registrar was also requested to communicate concurrence of the High Court to enable the Government to publish the same in the Official Gazette at an early date. It is further stated in the said affidavit that by letter dated 19-12-1992 the Registrar of the High Court referring to the said letter informed the State Government that their Lordships of the High Court were pleased to approve the draft amendment rules in respect of the Goa, Daman and Diu Civil Services (Judicial Branch) Rules, 1983. It is further stated in the affidavit that prior to the said rules being sent for approval of the High Court, the same were forwarded to the Goa Public Service Commission for its consultation and the same were enclosed alongwith a letter dated 14-8-1990. The Commission, of course, had made certain recommendations to the said amendment by letter dated 5th October, 1990 addressed to the Chief Secretary, Government of Goa and requested the Government to consider the suggestions made by it. It is further alleged that the amendments suggested by the Commission were considered by the Government but it was found unacceptable. It is further stated that consultation of the Goa Public Service Commission was no longer necessary as it was exempted from consultation by Article 320(3) as per the Notification No. 18-11-87-PER dated 26-5-1988 published in the Government Gazette, Extra Ordinary dated 27th May, 1988 whereby all civil and criminal judicial posts in the State under the control of the High Court were exempted from the purview of consultation of the G.P.S.C. As far as the Goa Public Service Commission is concerned no reply has been filed, though it has been represented through a lawyer and he has urged that the rules are framed in violation of Article 234 of the Constitution of India.
7. We, therefore, would like to proceed to consider the main issue in this case as to whether the rules are framed strictly in terms of Article 234 of the Constitution of India and whether the consultation with the High Court and the Public Service Commission as required by the said Article is mandatory or directory.
8. Learned Advocate General strenuously contended that under Article 234, in view of the above facts, the rules are framed after consultation with the High Court. He further contended that the consultation with the High Court alone is mandatory, but consultation with the Public Service Commission is only directory. Senior Counsel Mr. Kakodkar appearing for the High Court supports this contention. He also supplements the argument of the learned Advocate General by saying that 'consultation with Public Service Commission' occurring in Article 234 is only descriptive of what is found in Article 320. Under the said Article 234 the Governor has the power to decide without consulting the Public Service Commission.
9. Counsel for the petitioner Mr. Rebello and Senior Counsel Mr. Usgaoncar, appearing for the Goa Public Service Commission contested this contention by stating that under the scheme of the Constitution independence of judiciary should always be upheld for this purpose and in the matter of recruitment to the lowest rung of the judiciary any interference by the executive should zealously be avoided. With this end in view, recruitment of judicial officers has been kept out of the provision of Article 309 of the Constitution of India and has been entrusted with the High Court and Public Service Commission. Various judgments from High Courts and Supreme Court have been ingeniously and efficiently pressed into service by the learned Counsel appearing for the parties to substantiate their respective contentions. We would like to refer to a few of them for the purpose of this case.
10. In order to appreciate these rival contentions, we have to examine the relevant Articles of the Constitution of India. Part VI, Chapter VI of the Constitution of India deals with subordinate courts. By this Chapter judicial service has been conferred a separate and distinct status and has been given a separate treatment. Under Article 236(b) judicial service is defined to include District Judges and other lower Civil judicial posts. Article 233 deals with appointment of District Judges. The appointments of District Judges as per that Article should be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. It also provides for direct recruitment to the post of District Judges as recommended by the High Court from the Bar, but this Article does not refer to any rules as we see in Article 234. Article 234 deals with appointments of persons other than District Judges to the judicial service of a State which shall be made by the Governor in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 deals with the control over subordinate courts to be exercised by the High Court.
11. Part XIV, Chapter I relates to service. Article 309 falls under the said Chapter. For our purpose, we extract below Articles 234 and 309.
'Article 234 reads as follows:
'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 consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.'
Article 309 reads as follows:
'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 service 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.'
Article 309 is intended to make the law governing recruitment of persons serving the Union or the State. Article 310 provides for the tenure of office of persons to be during the pleasure of the President or the Governor and Article 311 provides for their removal etc. Scope of Article 309 has been examined by various High Courts and by Supreme Court of India in different lights and shades. While so examining, the judicial service has separately and distinctly been treated in those decisions. We have to resort to some of the decisions in order to decide the contentious issues raised above by the respective Counsel.
12. Judicial service is not to be identified or confused with Public services and posts which are provided in Article 309. Judicial service has been separately provided for and has been given a distinct treatment. The Supreme Court as early as in 1976 in Baldev Raj Guliani v. The Punjab and Haryana High Court, : [1977]1SCR425 , has stated, thus:
'Articles 233 to 237 relating to the subordinate judiciary are specially carved out and placed in the safe niche of a separate chapter, Chapter VI in Part VI of the Constitution under sub-title 'Subordinate Courts'. This by itself is significant. It is a major breakthrough in the Constitution from the position under the Government of India Act, 1935 so far as the subordinate judiciary is concerned and clearly unfolds the keen awareness of the founding fathers in what has been a passionate and raging topic with regard to independence of the judiciary all through, over the years.'
Judicial officers' recruitment/appointment and their continuance is separately dealt with by Chapter VI, Part VI of the Constitution and this responsibility is given exclusively to the High Court. This scheme of the Constitution as regards recruitment/appointment and conditions of service of judicial officers is aimed at securing the independence of the judiciary. The judicial system in this country must be above board from the clutches of the executive and legislature. In a recent decision of the Supreme Court in All India Judges' Association v. Union of India and others, : (1993)ILLJ723SC it has been in very categoric terms held that persons serving the judiciary are not Government servants. In paragraph 8 it has been observed by the Supreme Court, thus:
'The control over the subordinate judiciary has been vested in the High Court and the administrative control has been construed to be complete and exclusive. Yet, in certain aspects, and particularly in regard to service conditions, the distinction has not been maintained. That is why very often when any specific aspect relating to conditions of service is taken up or benefits for judicial service is considered, comparative basis between the two is adopted for review. It is high time that this aspect is appreciated and the administrative authorities remain alive to it.'
Subsequently, when the above case came up for Review : (1993)IILLJ776SC the Supreme Court has reiterated, thus:
'The judicial service is not service in the sense of 'employment'. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the Council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislatures and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The Council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive.'
It has to be observed that the separate setting of Chapter VI in Part VI in the Constitution dealing with judicial service by giving it a distinct and separate treatment is with the sole object of subserving the rule of law. It is separating the judiciary from the executive in the public services of the State as enshrined in Article 50 of the Constitution of India. The Counsel for the petitioner, therefore, argues that the treatment meted out by the Constitution vis-a-vis the judicial officers is not governed by the Rules or law made by the legislature which is to be made under Article 309. As we see, under Article 309 the main responsibility for making law or rules governing recruitments and conditions of service of persons appointed to public services rests with the legislature. The Governor is given power under that Article only to deal with the interregnum period till the proper legislation is made by the Legislature governing the subject. Whether the setting of that Article is appropriate in keeping the object of independence of the judiciary in mind? Whether the subject matter of judicial service can safely be entrusted to the legislature which is always managed by the will of majority of the legislators having different political philosophy coming into power from time to time. This question in substance has been answered by the Supreme Court in B.S. Yadav and others v. State of Haryana and others, : (1981)ILLJ280SC the Supreme Court deal with the subject, thus:
'............ The power of control vested in the High Court by Article 235 is thus expressly, by the terms of that Article itself, made subject to the law which the State legislature may pass for regulating the recruitment and service conditions of judicial officers of the State. The power to pass such a law was evidently not considered by the Constitution makers as an encroachment on the 'control jurisdiction' of the High Courts under the first part of Article 235. The control over the district courts and subordinate courts is vested in the High Court in order to safeguard the independence of the judiciary.'
13. We have to look at this subject in another angle. The question to be asked, bearing in mind the concept of independence of judiciary, is as to whether there is any conflict between Article 234 and Article 309 and whether their provisions in so far as they relate to the recruitment of the judicial officers, are required to be reconciled with each other. The Supreme Court has found the source of power to legislate law or rules relating to recruitment and conditions of service in Article 309. The Supreme Court in 'B.S. Yadav's case' (supra) again in para 43 states as follows:
'Having seen that the Constitution does not confer upon the High Court the power to make rules regulating the conditions of service of judicial officers of the district courts and the courts subordinate thereto, we must, proceed to consider, who, then, posses that power? Article 309 furnishes the answer.'
The legal position explained above makes our task more onerous for reconciling the provisions of Articles 234 and 309. Article 309 speaks about legislature as repository of the power to make law or rules regarding recruitment and conditions of service. Whereas Article 234 speaks only about making of rules by the Governor. We have to, therefore, find out a harmonious formula to reconcile these two spheres. Article 234 provides for recruitment of the judicial officers by the Governor in accordance with rules made by him after consultation with the High Court and the Public Service Commission. It is clear from the wording of Article 309 that the said Article is controlled by other provisions of the Constitution. Its opening sentence is very clear that it is subject to other provisions of the Constitution, whereas Article 234 has not placed any such rider.
More or less the same view has been taken by a Division Bench of the High Court of Mysore in M.I. Nadaf v. The State of Mysore and another A.I.R. 1967 Mys 77, wherein it has been held, thus, in para 9:-
'(9) Article 309 of the Constitution empowers the Governor to make rules regulating the recruitment and the conditions of services of persons appointed to the Civil Services of the State. But that Article, as its opening words themselves indicate, is subject to the other provisions of the Constitution. Article 234 is one such provision. The power of the Governor to make rules under Article 309 of the Constitution is not only subject to the other provisions of the Constitution, but it is also subject to any Act of appropriate Legislature. But the rules to be made by him under Article 234 are not subject to any Act that may be enacted by the appropriate Legislature. But they can be made only after consultation with the State Public Service Commission and the High Court. The consultation with the High Court is not something nominal. It is the very essence of the matter. It must be borne in mind that our Constitution visualises the separation of the judiciary from the executive. It is no doubt true that the judicial service is also one of the State services. But it has got its own individualistic character. Unlike the other services of the State, the judicial service is expected to be independent of the executive. Often times, it has to pronounce on the correctness or the legality of the action taken by the other services of the State. There are occasions when it is required to pronounce on the legality of an action taken by the Government or even the Governor. Such being the case, it would not be proper to consider the judicial branch as being just one of the branches of the State. It is for that reason, the Constitution makers thought it proper to make separate provisions for the appointment of Judicial Officers.'
Article 234 itself provides us the clue. This Article speaks about recruitment. Sub-title of the Article says: 'Recruitment of persons other than District Judges to the judicial service.' The Article is so worded that the legislature is excluded from the task of framing rules with regard to the recruitment/appointment of judicial officers to the subordinate judicial service and that power has been conferred exclusively on the Governor, of course after consultation with the High Court and the Public Service Commission. Article 309, no doubt, also confers power on the President and Governor to make rules but that is a power to be exercised in interregnum pending the passing of Acts of Legislature. As far as appointments of judicial officers is concerned Article 234 only provides for making of rules by the Governor. No provision is made therein for passing of acts or making of rules by the Legislature. This Article is not subjected to any other provision of the Constitution as we see in the case of Article 309. Therefore, only irresistable and possible view that can be taken in the context is the one taken by the Mysore High Court referred above. Makers of the Constitution thought it proper in their wisdom that great care and caution are more necessary where the selection of the judicial officers in the lowest rung of the hierarchy of the judiciary is involved. Therefore, their initial recruitment should be kept untrammeled by any interference of another authority. That is why Article 234 has been worded in such a manner that the Rules regarding recruitment of judicial officers to subordinate judiciary has to be made by the Governor and not by the legislature, with the consent of the Public Service Commission and the High Court. The importance highlighted in the scheme of the Constitution as regards the recruitment of judicial officers, as we pointed out earlier, has been emphasised by the Supreme Court in All India Judges' Association v. Union of India and others (supra). Moreover, in that decision, the Supreme Court, in para 10, has also suggested that, to achieve this end an amendment to Article 234 would become necessary. We quote paragraph 10.
'10. This proposal of the Law Commission and the follow up governmental action led to consultation and dialogue in the Conference of Chief Justices of the High Courts but many of the High Courts were of the view that setting up of an All India Judicial Service would affect the constitutional scheme of control of the High Courts over the subordinate judiciary and in particular Article 235 of the Constitution. Article 233 makes provision for appointment of District Judges and requires that appointment to such posts has to be made by the Governor of the State in consultation with the appropriate High Court. Article 234 provides for recruitment of persons other than District Judges to judicial service by prescribing that appointments shall be made by the Governor of the State in accordance with the rules made by him in that behalf after consulting the State Public Service Commission and the High Court exercising the jurisdiction in relation to such State. The post of District Judge has ordinarily been equated with the senior scale status in the All India Services. It was perhaps not contemplated by the Law Commission that on appointment members of the proposed All India Judicial Service were to hold the post of District Judge. Like all other All India Services the initial recruitment could be to a lower rank equal to civil judge and after serving in such post for a reasonable time appointment to the post of District Judge could be made. Since the Law Commission itself was of the view that a percentage should be filled up by direct recruitment from the Bar, the scheme envisaged by the Law Commission would not require amendment of Article 233. It is to be examined whether any alterations in Article 234 would be necessary or recruitment to All India Service could be made by appropriate amendment of the State Rules contemplated under that Article.'
It is, therefore, clear that the recommendation of the Law Commission and the proposal put forth by the Supreme Court is that the initial recruitment as regards the subordinate officers to the subordinate judiciary should be under a scheme where the control of the High Court should have the primacy. That means the rules intended to be framed under Article 234 with regard to initial recruitment of judicial officers is independent of the rules that have been contemplated under Article 309 of the Constitution of India and such rules under Article 234 can be framed by the Governor only after consultation with the High Court and also after consultation with the Public Service Commission.
14. From the foregoing reasons it is clear that before making rules for the initial appointment to the subordinate judiciary, consultation of the High Court is mandatory.
15. Then, the next question is, whether the consultation of the Public Service Commission is mandatory or whether the President or Governor can, in terms of Article 320(3) proviso, exempt the consultation of the Public Service Commission while framing rules with regard to the initial recruitment of the judicial officers. Going by the grammatical construction of Article 234, consultation with Public Service Commission is mandatory as the word employed therein is 'shall'. Then how does Article 320 of the Constitution of India operate? What is the effect of proviso to Article 320(3) of the Constitution empowering the Governor to exempt such consultation with Public Service Commission?
16. Mr. Usgaonkar, learned Senior Counsel appearing for Public Service Commission has urged that the obligation on the part of the Governor to consult both the High Court and the Public Service Commission, is mandatory, because the exercise of Governor's power of appointment is conditioned upon obligation to consult the High Court and the Public Service Commission. The obligation to consult the High Court and the Public Service Commission also in the matter of framing rules is so integrated with the exercise of power by the Governor to appoint and that power must be exercised as provided by Article 234 of the Constitution. Mr. Usgaonkar argues further that the exercise of power of exempting such consultation with the Public Service Commission can be exercised by the Government only with regard to the rules made under Article 309 which is made subject to other provisions of the Constitution. But the power of the Governor to make rules under Article 234 of the Constitution is conditioned with an obligation to consult the Public Service Commission. The Governor to exempt such consultation as per the proviso to Article 320(3) cannot be exercised with regard to rules made under Article 234. Article 234 stands on a different footing inasmuch as the consultation with the Public Service Commission is independent of the consultation envisaged under Article 320. Even in the absence of Article 320, Article 234 can independently operate. Therefore, the consultation envisaged under Article 234 is not the consultation under Article 320 of the Constitution. Article 234 appears in a separate chapter dealing with subordinate courts which include all courts subordinate to the High Court. Therefore, no recourse can be taken to proviso to Article 320(3) the consultation envisaged under Article 234 cannot be exempted by using the power of the Governor under Sub-Clause (3) of Article 320. Mr. Usgaonkar, therefore, urged that the consultation with the Public Service Commission as mandated under Article 234 is also a condition closely integrated with framing rules for recruitment to the subordinate judicial service.
17. We find considerable force in the submission of Mr. Usgaonkar. In order to appreciate the arguments of Mr. Usgaonkar, reference to a decision of the Supreme Court in State of Jammu & Kashmir v. A..R. Zakki and others, : AIR1992SC1546 can usefully be made. It is a case arising from the State of Jammu & Kashmir. Sections 109, 110 and 111 of Jammu & Kashmir Constitution correspond to Articles 233, 234 and 235 of the Constitution of India, respectively. In paragraph 10 of the judgment, the Supreme Court has held:
'Section 110 of the J. & K. Constitution, which is on the same lines as Article 234 of the Constitution of India, vests on the Governor, the power to make rules for appointments of persons other than the District Judges to the Judicial Service 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.'
In paragraph 16, the Supreme Court has observed, thus:
'We may at this stage indicate that section 110 of the J. & K. Constitution has to be read along with section 109, which relates to appointments of District Judges, and section 111 relating to control over Subordinate Courts. The object underlying these provisions is to secure and maintain the independence of the subordinate judiciary. With the same end in view section 110 prescribes that rules relating to appointments of persons other than the District Judges to the Judicial Service of the State shall be made by the Governor in consultation with the High Court. Consultation with the High Court is insisted because it is the High Court which has been primarily entrusted with the judicial administration in the State and for efficient and due discharge of its responsibility, the High Court needs to have proper officers. The High Court would be the best Judge of the requirements for proper and efficient judicial administration. Consultation with the Commission is also required for the reason that the Commission is envisaged by the Constitution of Jammu & Kashmir as an expert body to advise the Government on matters relating to public services. It has been entrusted with the task of selecting suitable persons for appointments to the service of the State, and required to be consulted on all matters relating to methods of recruitment to civil service and for civil posts, on the principles to be followed in making appointments to civil services and posts as well as promotions and transfers and on all disciplinary matters (section 133). In relation to judicial service the Commission has a limited role in consultation at the stage of making of rules under section 110. Whether and to what extent the Commission is to be associated with the process of selection of personnel's appointment would depend on the provisions of the rules so made.' (underlining supplied).
As observed by the Supreme Court in the above decision, consultation with the Public Service Commission is a Constitutional mandate required to be complied with before framing rules, by the Governor. The Supreme Court has made it clear in the above pronouncement that consultation with the Public Service Commission as envisaged under Article 234 is limited at the stage of making rules as far as Judicial Officers are concerned. We are of the view that this Constitutional mandate cannot be taken away by the President or Governor by exercising power under the proviso to Article 320(3) of the Constitution. If the consultation with the Public Service Commission as envisaged under Article 234 were to be only directory, then there was no necessity for the makers of the Constitution for providing for the same in Article 234 as the same could have even otherwise be achieved by exercising power under Article 320. Article 309 does not expressly put any obligation on the State Government to consult the Public Service Commission at the stage of framing rules for recruitments. Probably for this reason that at the stage of framing rules regarding the recruitment of the Judicial Officers to the subordinate Judiciary, consultation has been expressly provided in Article 234. Therefore, it cannot be visualised that before making rules to subordinate Judiciary, consultation with Public Service Commission can be dispensed with by using proviso to sub-Clause (3) of Article 320. Therefore, the conclusion that could be arrived at on a close reading of Articles 233, 234, 235, 309 and 320 is that the rules relating to recruitment to judicial service, or in other words, the appointment to the lowest rung of the hierarchy of the judiciary, consultation with the High Court and the Public Service Commission is a must before framing of the rules relating to it. The only logical conclusion that could be deduced from the above discussion is that the consultation contemplated under Article 234 with the High Court and with the Public Service Commission is mandatory.
18. It may be possible to contend that Article 234 only deals with initial recruitment to the subordinate Judiciary and other conditions of service of personnel of subordinate Judiciary still rests with Article 309 and that any rule that has been framed relating to conditions of service, provision can be validly made to exempt consultation with Public Service Commission under Article 320. It is also possible to contend that as the impugned rule is a composite one which deals with both recruitment and other conditions of service, Government is well within its right to exclude the Public Service Commission in the matter of consultation. In our judgment, when rules are framed with provision relating to initial recruitment of Judicial Officers, even if the rules contain other ancillary matters, the obligation to consult with Public Service Commission is mandatory. In view of the foregoing discussions, we have no hesitation in holding that the consultation with the Public Service Commission is equally mandatory as consultation with the High Court before making rules with respect to the recruitment of the Judicial Officers in the lowest rung of the hierarchy of the subordinate Judiciary.
19. Coming to the present rules under challenge, we cannot say that there has been no consultation with the Public Service Commission. In fact , there has been a consultation with the Public Service Commission. Sufficient material has been placed before us to show that the Public Service Commission has been furnished with Draft Rules for their remarks and they in turn have sent their remarks. Only thing that has happened is that after the remarks have been offered by the Public Service Commission, no further steps have been taken with regard to the suggestions made by the Public Service Commission. Since no reply was received for a long time after the suggestions were made by the Public Service Commission, on a further query being made by the Public Service Commission, the Government has come with the contention that no consultation with the Public Service Commission is necessary because of the exemption notification issued by the Government as early as 1985. The exemption notification has not been challenged in this case. However, we cannot hold in the face of the aforesaid facts that there was no consultation with Public Service Commission, notwithstanding the exemption. What is required is consultation and not concurrence and we are inclined to hold, in view of the aforesaid developments, that there has been a consultation with the Public Service Commission.
20. This controversy, however, need not detain us for long, because even assuming that there was no consultation at all, whether the petitioner is entitled to get any relief in this petition on that score is to be examined. The consultation or non-consultation is a matter between the Public Service Commission and the Government and that too at the stage of framing rules. Therefore, individual candidates are not very much concerned with that. Their rights are not dependent upon or decided upon the consultation or non-consultation with either the High Court or with the Public Service Commission. Therefore, non-consultation with the Public Service Commission will not give any cause of action to the petitioner or any one of the members of the petitioner's Association to maintain this writ petition.
21. In an earlier case in State of U.P. v. Manbodhan Lal Srivastava, and Manbodhan Lal Srivastava v. State of U.P., : (1958)IILLJ273SC of the Judgment, the Supreme Court says:
'The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of non-compliance with the requirements of Article 320(3) It does not, either in express terms or by implication, provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government.'
In paragraph 12 the Supreme Court observed:
'We have already indicated that Art. 320(3)(c) of the Constitution does not confer any rights on a public servant so that the absence of consultation, or any irregularity in consultation, should not afford him a cause of action in a Court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of this Court under Art. 32. It is not a right which could be recognized and enforced by a writ.'
22. In another decision of the High Court of Punjab & Haryana in Tuhi Ram Sharma v. Prithvi Singh and another A.I.R. 1971 P. & H. 297 the aforesaid view has been followed. A promotion of an Officer which was made without the consultation with the Public Service Commission was challenged in that case. The Service Rules contained a mandatory provision prohibiting the Government from making any appointment of an Officer directly in service unless his name was amongst those recommended by the Commission. Dwelling upon this point the Punjab & Haryana High Court said in paragraph 8 of the above Judgment, as follows :
'8. The appellants then referred to the law laid down by Their Lordships of the Supreme Court in State of U.P. v. Manbodhan Lal Srivastava, : (1958)IILLJ273SC , and subsequently followed in Major U.R. Bhatt v. Union of India, : AIR1962SC1344 , to the effect that Art. 320(3)(c) of the Constitution does not confer any right on a public servant so that the absence of consultation or any irregularity in consultation with the Commission should not afford him a cause of action in a Court of law or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution. Special emphasis was laid on the observations of the Supreme Court to the effect that the requirement of consultation with the Commission on the relevant matters binding on the Government and in the absence of such a binding character, it is difficult to say how non-compliance with the provisions of Art. 320(3)(c) could have the effect of nullifying the final order passed by the Government.
Our pointed attention was again drawn by Counsel to the observations in paragraph 12 of the Judgment about no remedy against any irregularity in the matter of non-compliance with Art. 320(3)(c) being available to a Government servant. Mr. Harbans Singh Doabia, Senior Counsel for the writ petitioners, wanted to wriggle out of the judgment of the Supreme Court and of the earlier Division Bench judgment of this Court in J.L. Mair v. State of Punjab, by submitting (i) that those judgments related to cases of disciplinary proceedings covered by sub-clause (c) and not to cases of appointments or promotions covered by sub-clause (b) of C1. (3) of Art. 320 of the Constitution and (ii) that though mere non-compliance with the requirements of Art. 320(3) may neither be justiciable nor fatal to the order passed without complying with those provisions, the case is different when the principles of Art. 320(3)(b) are brought into a statutory rule and a writ petitioner comes to a High Court complaining of non-compliance with such a rule.'
'We are unable to find any force in either of these two contentions. In the matter of rigour and mandatory nature of the requirements of sub-clause (b) on the one hand and sub-clause (c) on the other, and in the matter of the effect of non-compliance with the requirements of those clauses, we are unable to see the slightest difference. For matters covered by Cl. (b) ( i.e. appointments, promotions etc.) as well as for matters covered by Cl. (c) (i.e. in regard to disciplinary proceedings), the duty of the concerned authorities is the same as mentioned in the opening part of Cl. (3) and in the closing part of that clause before the proviso. It requires the authority concerned to consult the Commission and it enjoins on the Commission a duty to advise the authority concerned on the matter so referred to it. In the matter of the requirement of consultation or the rendering of the advice, no distinction is drawn between the various classes of cases dealt with in sub-clauses (a) to (e) of Cl. (3) of Art. 320. That being so, the distinction sought to be drawn between the present case covered by Cl. (b) on the one hand and the case of disciplinary proceedings under Cl. (c) referred to in the judgments of the Supreme Court and this Court is really non-existent.'
'9. Nor does the mere transplantation of the requirement of Art. 320(3)(b) of the Constitution to a statutory rule enhance the status of the requirement or make it any more mandatory. ........'
23. Again in G.S. Lamba and others v. Union of India and others, : (1985)IILLJ282SC of its judgment, the Supreme Court has held that such a non-consultation will not confer right so that absence of consultation or irregularity in consultation does not afford a public servant a cause of action before a Court of law.
24. Apart from the above obstacle we find that there is one more hurdle in the challenge sought to be raised by the petitioner. We have already found that Article 234 relates to the recruitment to the lowest rung of the subordinate Judiciary and, therefore, provision for consultation with the High Court and the Public Service Commission is made compulsory. But the Rules of 1992 which are under challenge in this case relate to other subjects also, namely, the promotion of the Judicial Officers to their respective higher judicial posts. The petitioner's grievance is that under the 1992 Rules all the posts of Grade II Civil Judges, Senior Division, have not been earmarked for promotion from the posts of Grade II Civil Judges, Junior Division. The grievance of the petitioner is that the chances or opportunities of promotion to the presently working Grade II Junior Division Officers have been reduced to 67% and the remaining 33% has been intended for direct recruitment from the Bar. Article 234 will apply only in respect of that part of the rules which deal with recruitment to Grade II Civil Judges Junior Division i.e. to 33% of the posts to be filled in. Requirement of consultation will apply only in to this part of the rule. The other 67% is earmarked to the promotion to the members of the petitioner's Association. Promotion is not initial recruitment but is a condition of service and hence in the absence of a law or rule made by the Legislature the Governor will be entitled to frame rules under the proviso to Article 309 and in respect of any rule framed under Article 309, the provisions of Article. 320 will be attracted. Hence, a Notification issued under the proviso to Article 320(3) exempting consultation with the Public Service Commission is fully justified and can be treated as valid in so far as it relates to the Rule relating to the promotions of the members of the petitioner's Association. In fact, the Rule under challenge is a composite rule relating to direct recruitment and to promotions. Therefore, the entire Rule cannot become bad on the ground of the non-consultation with the Public Service Commission. Portion of the rules dealing with promotion of the members of petitioner's Association cannot be said to be invalid for non-consultation with Public Service Commission as that portion of the rules is governed by Article 309 and consequently Article 320 will be attracted. Viewing the impugned rules in this perspective, we do not find that the petitioner's challenge to the rules on the ground of non-consultation or inadequate consultation with the Public Service Commission will afford a cause of action to the petitioner or its members.
25. In addition to the above, we find that there is yet one more obstacle in the way of the petitioner for grant of the reliefs claimed in the petition. What, after all is the grievance of the petitioner? In substance the grievance is, whereas under the old rules entire promotions to the higher posts were drawn from the lower posts whereas under the impugned rules promotions have been restricted to 67% and 50% of the promotional posts and 37% and 50% have been earmarked for direct appointments in this context. The learned Advocate General has submitted that the petitioner or its members cannot maintain this petition under Article 226 of the Constitution unless they show to the Court any sort of infraction of any of their right as Judicial Officers. The learned Advocate General strongly contended that what, in substance, is the grievance of the petitioner is that the promotional avenue of the members of the petitioner's Association is likely to be reduced or has been taken away, which was there in the existing rule. As pointed out earlier, the reservation of 33% vacancies of the Civil Judges Senior Division and 50% of the vacancies of the District Judges is required to be filled up by direct recruitment. What is lost actually to the members of the petitioner's Association is a chance of promotion. According to the learned Advocate General, chance of promotion of a civil servant is not a vested right and the violation of the same will not afford him or them a cause of action to challenge the impugned rules. There is no fundamental right to a chance of promotion to a civil servant. Several cases have been cited on this subject to fortify his argument. The latest decision of the Supreme Court among the list cited by the learned Advocate General is Orissa Judicial Services Association, Cuttack and another v. State of Orissa and others, : AIR1991SC382 . That case is also related to judicial service. More or less similar contention had been raised in that case. The contention of the petitioner in that case has been narrated by the Supreme Court in para 2 of that judgment, which runs as follows:
'2. The petitioner Association, which represents the members of the Judicial Service of the State of Orissa has raised grievance that the Subordinate Judicial Service in the State continues to be in a pitiable condition and most of the judicial officers have been stagnating for many years for lack of promotional avenues. Though the members of the Subordinate Judicial Service have avenues of promotion to the Superior Judicial Service but since the Orissa Superior Judicial Service Rules, 1963 (hereinafter referred to as 'the Rules') provide for direct recruitment to the Superior Judicial Service from members of the Bar, it adversely affects the chances of promotion of the members of the Subordinate Judicial Service resulting into stagnation and frustration. Their grievance is that there should be no direct recruitment to the Superior Judicial Service and in that view they have challenged the Notification dated 24-2-1987 issued by the High Court inviting applications from the members of the Bar for direct recruitment to the Superior Judicial Service.'
Dealing with this point, the Supreme Court has stated, in paragraph 3:
'.... It is apparent that the Constitution as well as the statutory rules framed under Article 309 provide for recruitment to the Senior Branch of Service or direct recruitment from the members of the Bar. The constitutional mandate cannot be challenged merely because it may to certain extent adversely affect the chances of promotion of the Junior Branch of Judicial Service.'
In the light of the above pronouncement of the Supreme Court, which applies to the present case on all fours, we have no hesitation in holding that petitioner has failed to make out a case warranting interference by this Court to safeguard the right of the members of the petitioner's Association, as they do not have any such tangible or legal right.
26. The learned Counsel for the petitioner Mr. Rebello, has then urged that the taking away of 33% of the vacancies for direct recruitment for the post of Grade II Civil Judges Senior Division and 50% of the vacancies of the District Judge of the State is prescribed in the Rules in violation of the section 60(6) of the Goa, Daman and Diu Re-Organization Act, 1987. Section 60, sub-section (6) of the aforesaid Act provides as follows:
'Nothing in this section shall be deemed to affect, on or after the appointed day, the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the conditions of service of persons serving in connection with the affairs of the State of Goa or the Union:
Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section (1) or sub-section (2) shall not be varied to his disadvantage except with the previous approval of the Central Government.'
Of course, the benefit provided in the section can apply only to persons who were in service at the time of coming into force of the Act. From the petition it is not clear as to how many members of the petitioner's Association are entitled to have such benefit under this Act as were serving at the commencement of that Act. The learned Advocate General has submitted that assuming that all the members of the Association are entitled to the benefit conferred by that section, it cannot be said the chance of promotion is a right that could be protected under the aforesaid section. It is now well settled that, mere chance of promotion is not a condition of service. What is taken away by the impugned Rules is only a chance of promotion. This will not attract the proviso to sub-section (6) of section 60 of the Act. The learned Advocate General has cited the decision of Mohd. Shujat Ali v. Union of India, : (1976)IILLJ115SC to buttress his arguments. The case relates to sections 115(7) and 117 of State's Re-Organization Act 1956, which is in pari materia to section 60(6) of the aforesaid Act of 1987 and in that decision it is held that chance of promotion is not a right to be safeguarded under this provision. It has been observed, on page 1647, thus:
'It is said on behalf of the respondents that as their chances of promotion have been affected their conditions of service have been changed to their disadvantage. We see no force in this argument because chances of promotion are not conditions of service. Now here in the present case, all that happened as a result of the application of the Andhra Rules and the enactment of the Andhra Pradesh Rules was that the number of posts of Assistant Engineers available to non-graduate Supervisors from the erstwhile Hyderabad State for promotion, was reduced: originally it was fifty per cent, then it became thirty three and one-third per cent, then one in eighteen and ultimately one in twenty-four. The right to be considered for promotion was not affected but the chances of promotion were severely reduced. This did not constitute variation in the condition of service applicable immediately prior to 1st November, 1956 and the proviso to section 115, sub-section (7) was not attracted.'
In view of the decision, we find that the petitioner cannot have a legal grievance based on section 60(6) of the Goa, Daman and Diu Re-Organization Act, 1987.
27. The Senior Counsel Mr. Kakodkar, who is appearing for the High Court, has contended that a writ petition on behalf of petitioner Association is not maintainable under Article 226 of the Constitution of India because the petitioner is not the person aggrieved. In other words, he submits that the petitioner cannot identify itself with the grievances of its members. He has contended that even if the petitioner is a Corporate Body registered under the Societies Act, the petitioner cannot maintain a petition under Article 226 for and on behalf of its members. He has cited several decisions of different High Courts: Madhav Janardan v. Shrinivas Narayan Naik and another A.I.R. 1962 Mys 26, Director General Ordinance Factories Employees' Association v. Union of India and Director General Ordinance Factories, : (1970)ILLJ707Cal , Satyavart Sidhantalankar and others v. Arya Samaj, Bombay A.I.R. 1946 Bom. 516 and Chanranjit Lal Chowdhury v. The Union of India and others, : [1950]1SCR869 . We find considerable force in his arguments. A juristic person can maintain an action only when it is aggrieved or when its rights are infringed or violated by the action of an Authority. Here the grievance highlighted is that of the members and that grievance is that by the impugned Rules, the promotional avenues available to members of the petitioner's Association under the existing Rules have been taken away and, therefore, their chances of promotion have been in jeopardy. As we have already seen, that chance of promotion is not a right at all and, therefore, the members of the Association cannot have a legal right to maintain an application under Article 226 of the Constitution. Apart from that, the petitioner, as an Association of the Judicial Officers, cannot identify itself with the grievances of its members. The grievances of the members and the Association are distinct. This elementary principle has been stated by Salmond in 'Salmond on Jurisprudence', 12th Edition, at page 67, which reads thus:
'It is essential to recognise clearly that in neither of these forms of incorporation is the legal person identical with any single human being. A company is in law something different from its shareholders or members. The property of the company is not in law the property of the shareholders. The debts and liabilities of the company are not attributed in law to its members. The company may become insolvent, while its members remain rich. Contracts may be made between the company and a shareholder, as if between two persons entirely distinct from each other. The shareholders may become so reduced in number that there is only one of them left; but he and the company will be distinct persons for all that.'
In the case of The Bangalore District Hotel Owners' Association v. The District Magistrate, Bangalore and another A.I.R. 1951 Mys. 14, the Bangalore District Hotel Owners' Association filed an application before Mysore High Court against the District Magistrate, Bangalore and the Government of Mysore to cancel the order of the District Magistrate, Bangalore, notified in the Mysore Gazette on 10-11-1949, directing that all hotels, restaurants, milk bars and coffee clubs in the villages of the Bangalore District except those as are licensed by the Amildar of the Taluka under the Village Panchayat Act should be closed immediately. The hotel owners of Bangalore formed an Association and the said Association is said to have been registered under the Mysore Societies Registration Act, 1904. That Association challenged the validity of the Notification issued by the District Magistrate, Bangalore. A Division Bench of the Mysore High Court in the aforesaid decision in paragraph 5 of the Judgment, held as follows:
'Mr. Venkataranga Iyengar contends that the Association is a corporate body and that it can therefore make such application to the Court in its own name. Under section 7, Societies Registration Act, it is provided that a society which is registered under that Act may sue or be sued in its own name and for that purpose it may have a corporate existence of its own. And if there was any action or order by which the fundamental rights of the Association as such, say for example, under Article 19(b) or (c) or its rights of property or franchise were affected or jeopardised, it may be that such an application may be maintainable. But that is quite a different thing from saying that for some personal and individual grievance of some of its members the Association can agitate and apply for such extraordinary and discretionary writs which are clearly meant to prevent the taking away or abridging the fundamental rights conferred on individual citizens by Part III of the Constitution. Although no specific cases appear to have arisen on this aspect of the matter after the Constitution of India came into force we have some earlier rulings which are useful in deciding the matter.'
This principle has been again highlighted in a recent decision of Calcutta High Court. Considering various decisions of the High Courts and Supreme Court on the subject, the Calcutta High Court in Sand Carrier's Owners' Union and others v. Board of Trustees for the Port of Calcutta and others, : AIR1990Cal176 , has held that the Company has no locus standi for the grievances of the petitioner. It held:
'Unincorporated associations are not legal persons and as such, writ petitions are not maintainable. An association could be formed to protect the interest of consumers, tenants or other groups with the common interest but such group cannot move writ application. No aspect of the representative law has been changing more rapidly than the law governing standing and the standing barrier has been substantially lowered in recent years, but on the basis of the law relating to standing as in England or in America as also in India, it can be held without any difficulty that the writ petition at the instance of an association is not maintainable where the association itself is not affected by any order. The members of such association may be affected by common order and may have common grievance, but for the purpose of enforcing the rights of the members, writ petition at the instance of such association is not maintainable. The door of the writ Court could be made open at the instance of persons or authorities under the aforesaid four categories and to hold that every Tom, Dick and Harry can move the writ application would render the standing requirement meaningless and would introduce a procedure which is not judicially recognised. '
In this writ petition, the petitioner association of Judicial Officers of Goa, has not highlighted any grievance of its own, it has put up a grievance of its members. Therefore, as rightly pointed out by the learned Senior Counsel Shri Kakodkar, the petition is not maintainable at the instance of the petitioner. Existence of a right of the petitioner is the foundation of the exercise of jurisdiction under Article 226 by this Court. The petitioner, even if it is a registered Association cannot identify itself with the grievance of its members and maintain a writ petition unless a statute provides for such a right as has been done by Trade Union Act, Motor Vehicles Act, Industrial Disputes Act etc. Therefore, we have no hesitation to uphold the contention of Mr. Kakodkar that this petition is not maintainable at the instance of the petitioner.
28. Another argument advanced by Mr. Rebello, Counsel for the petitioner, is that the question of locus standi need not prevent this Court to grant relief to the petitioner, particularly, in the present context where the public interest litigation is widely accepted by the courts in India. He submits that after Maneka Gandhi's case the concept of locus standi has undergone an explosive expension, where even a person who is not directly affected can bring to the notice of the Court the instance of infraction of any fundamental rights. Therefore, according to Mr. Rebello, the principle of public interest litigation can be invoked here and the petition can be held to be maintainable on that score. We are afraid whether this contention is available to the petitioner. We see now a days public interest litigation has become a fashion and many a time basic principles and procedure to be observed in a lis before a Court of law is thrown to wind. It is true that public interest litigation is a recent development of a branch of law where public grievance could be brought to the notice of the Court even without observing procedural formalities. We very well remember the resounding remarks made by Mr. Krishna Iyer, J., when he delivered the judgment in Supreme Court in A.B.S.K. Sangh v. Union of India, : (1981)ILLJ209SC .
29. Still we have no doubt that public interest litigation is a weapon which has to be used with great care and circumspection and the Judiciary has to be extremely careful to see that under the guise of redressing a public grievance, it does not encroach upon basic primary principles that at least the petitioner is required to satisfy the Court, namely, a refraction of any right. Moreover, there is no public interest involved in the case pleaded by the petitioner. Public interest litigation must be one in which the downtrodden class of society by virtue of their position who cannot air their grievances, meeting the huge expenses of litigation, and find redressal of their individual or collective grievances. A communication received through a letter can be converted into a writ petition and the Court can look into the grievances focussed through that letter. There also the Court will be always very cautious in dealing with the public interest litigation. The Supreme Court in State of Himachal Pradesh v. A Parent of a Student of Medical College, Shimla and others, : [1985]3SCR676 held a word of caution in entertaining public interest litigation. In paragraph 5 of the same judgment, the Supreme Court has stated:
'.... We may of course make it clear that it is not every letter which may be treated as a writ petition by the Supreme Court or the High Court. It is only where a letter is addressed by an aggrieved person or by a public spirited individual or a social action group for enforcement of the constitutional or legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the Court for redress that the Supreme Court or the High Court would be justified, nay bound, to treat the letter as a writ petition.'
30. In the present case, we see no reason to treat this as a public interest litigation as no public interest is involved in this case. We also cannot hold that Judicial Officers of the State of Goa are a group of persons who are socially or economically down trodden. Therefore, the contention of the learned Counsel for the petitioner in this score cannot be countenanced. Another feature in the public interest litigation to be observed is that it does not partake the characteristic of adversary litigation. The Court is mainly focussed its attention not on the locus, but on the injury. Scope of the public interest litigation has been recently reviewed by the Supreme Court in The Janata Dal v. H.S. Chowdhary and others, : 1993CriLJ600 of this decision, the Supreme Court observed, thus:
'61. ... In a private action, the litigation is bipolar; two opposed parties are locked in a confrontational controversy which pertains to the determination of the legal consequences of past events unlike in public action. The character of such litigation is essentially that of vindicating private rights, proceedings being brought by the persons in whom the right personally inhere or their legally constituted representatives who are thus obviously most competent to commence the litigation.
62. In contrast, the strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved which gives the right of locus standi to any member of the public acting bona fide and having sufficient interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the provisions of the Constitution or the law which can be best achieved to advance the cause of community or disadvantaged groups and individuals or public interest by permitting any person, having no personal gain or private motivation or any other oblique consideration but acting bona fide and having sufficient interest in maintaining an action for judicial redress for public injury to put the judicial machinery in motion like actio popularise of Roman Law whereby any citizen could bring such an action in respect of a public delict.'
(underlining supplied).
31. Therefore, in order to maintain public interest litigation, essentially two things are necessary. One, is the problem highlighted therein must have nexus with the public and, therefore, must be an infraction of any right of public at large by the action or omission by the authority invested with a public duty. Secondly, in order to entertain a grievance of an individual or group, it has to be shown to the Court the helplessness of their position and predicament. None of these situations arise in this case.
32. Lastly, an argument has been advanced by Mr. Rebello, Counsel appearing for the petitioner, that the requirements of consultation with the High Court has not been in stricto senso complied with. In other words, he contested the fact that Full Court consultation was held. Only the Chief Justice and the Administrative Judges approved the Rules. He submits that in terms of Article 234, 'High Court' implies all the Judges of the High Court. To get over this technical argument advanced by Mr. Rebello, Mr. Kakodkar has submitted that the High Court can always evolve its own procedure in such matters. He submits that as per resolution dated 2-5-1981 adopted in a Chamber Meeting of all Judges of the High Court, subject like the one involved in this can be decided by the Chief Justice and two senior administrative Judges of the High Court. We find nothing illegal in adopting such a procedure.
33. The Supreme Court of India in its decision in State of Uttar Pradesh v. Batuk Deo Pati Tripathi and another 1978 Lab.I.C. 839, in para 9, observed, thus:
'9. ..... But though the control over subordinate courts is vested institutionally in the High Courts by Article 235, it does not follow that the High Courts have no power to prescribe the manner in which that control may in practice be exercised. In fact, the very circumstance that the power of control, which comprehends matters of a wide-ranging variety, vests in the entire body of Judges makes it imperative that rules must be framed to make the exercise of control feasible, convenient and effective. The seeds of the jurisdiction to frame rules regulating the manner in which the control over subordinate courts is to be exercised are thus to be found in the very nature of the power and in the fact that the power vests in the entire body of Judges. The High Court has, therefore, the power under Article 235 itself to frame rules for regulating the manner in which the control vested in it may be exercised. The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power.'
Considering the above observations of the Supreme Court, we hold that there is substantial compliance of the requirement of consultation with the High Court when consultation was had with the Chief Justice and two other Administrative Judges of the High Court.
34. The next result is that though we have found that before framing rules in respect of the recruitment of the Judicial Officers in the State, the Governor has statutory obligation under Article 234 to consult both the High Court and the Public Service Commission, we are not in a position to grant any relief to the petitioner. We have further found that both the authorities have, in fact, been consulted. We have further held that the petitioner cannot set up the grievances of its members in the present writ petition as no right of the petitioner Association itself is infringed. The grievance complained of is merely of reduction of chance of promotion which is not a right and hence the present writ petition is not maintainable. We further hold that the rule reserving 33% of the vacancies of the Grade II Civil Judges, Junior Division earmarked for recruitment from the Bar and 50% to the post of District Judges to be recruited from the Bar is not arbitrary and unreasonable.
35. In the result, we find the writ petition devoid of merit and is liable to be dismissed. We do so. Rule is discharged. In the circumstances of the case, there shall be no order as to costs.