and in the realm of policy choice. But the power to frame the policy is structured by certain constitutional imperatives and limitations. They are (i) the identification of the existence of backward classes in the State, (ii) the formation of the opinion that such classes are not adequately represented in the JUDICIAL SERVICES of the State, (iii) the determination of the question as to what would be the appropriate percentage of reservation required to be made with reference to the JUDICIAL SERVICE consistent with the obligation to maintain the efficiency of the JUDICIAL SERVICES. Such assessments are required to be made on objective and rational considerations consistent with the constitutional obligations of both the Executive and Judicial branches of the State.
17.We, therefore, hold that the State of Bihar is entitled to initiate the process of consultation by furnishing necessary information on its own assessment regarding the need to provide reservation in favour of specified backward classes in the JUDICIAL SERVICE of the State of Bihar. The existence of backward classes in the State of Bihar and their identity is not in dispute. The State should also furnish its own assessment regarding the inadequacy of representation of the backward classes in the JUDICIAL SERVICES of the State and the desirable percentage of reservation in the JUDGMENT JUDICIAL SERVICES and the relevant material on the basis of which the assessment is made. The High Court should thereupon consider the material furnished by the State, make an appropriate assessment of the correctness of the proposal made by the State and convey its opinion and the reasons for such opinion to the State. If there is a consensus of opinion between the State and the High Court, the State would be at liberty to make the appropriate rules providing for reservation. In the event of any difference of opinion, the Government must record reasons for its inability to accept the conclusions communicated by the High Court and proceed to amend the Rules in accordance with law keeping in mind the various constitutional principles governing the exercise of such power. Such an exercise is required to be undertaken “... not to determine who between them is entitled to greater importance or is to take the winners prize at the end of the debate. The task (before us) has to be performed with this perception”4.
18.In view of the existence of huge number of vacancies in the JUDICIAL SERVICES, it is desirable that the whole exercise must be completed expeditiously preferably by the 1st of January, 2017. Thereafter, the process for filling up of the vacancies in the judicial service shall be taken up expeditiously by all concerned and completed by 30th June,JUDGMENT2017.
19.We are left with a delicate problem. Some of the candidates5 belonging to certain backward classes would have been entitled to get appointed pursuant to the 2012 notification, if the Rule 3A (referred to supra) were to be valid. In view of the fact that the rule itself is declared to be illegal, they are not entitled as of right to be appointed against any reserved quota. Having regard to the facts 4 Supreme Court Advocates-on-Record Association & Others v. Union of India, (1993) 4 SCC 441, para 438 5 Their exact number is not very certain - it is something between 20 or 23. that (i) a large number of vacancies exist in the JUDICIAL SERVICE, (ii) the question of reservation is lingering for a quarter century, (iii) the remoteness of the possibility of the State completely failing to establish the need to provide for reservations in JUDICIAL SERVICES, we deem it appropriate to direct that these candidates be appointed to the service against the vacancies which arose subsequent to the 2012 notification (seeking to fill up 118 vacancies). Their appointment shall be appropriately adjusted against the vacancies which are the subject matter of recruitment under the notification dated 13.01.2016 (referred to supra) and the vacancies which arose thereafter. The candidates appointed pursuant to the above directions would take their place after the 118 candidates (some of whom are already appointed and other to be appointed without reference to Rule 3A) for all purposes. The appeals are accordingly disposed of. JUDGMENT SLP (C) Nos.11363-11364/2015 AND SLP (C) Nos. 14625-14626/2015
20.It is agreed that in view of the above order passed in Civil Appeals arising out of SLP(C) No.10163-10165 of 2015, nothing survives in these special leave petitions. These petitions are disposed of accordingly.
SLP (C) No. 22190/2015 Delay condoned.
21.The petitioner (an Advocate) appeared in person before us. In the judgment under appeal, certain adverse observations are made against the petitioner. The petitioner, we are informed, appeared before the High Court in one of the matters and made certain submissions before the High Court.
22.Having regard to the fact that the observations are made regarding the conduct of the petitioner in the High Court, we deem it appropriate not to examine the matter but leave it open to the petitioner to approach the High Court with an appropriate application praying that the observations be expunged. It is open to the High Court to consider such application in accordance with law. The special leave petition stands disposed of accordingly.