A.C. THALWAL versus HIGH COURT OF HIMACHAL PRADESH AND ORS.

Citation: [2000] SUPP. 2 S.C.R. 428 · Decided: 17-08-2000 · Supreme Court of India · Bench: A.S. ANAND · Disposal: Dismissed
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Judgment (excerpt)

A 
A.C. THALWAL 
v. 
HIGH COURT OF HIMACHAL PRADESH AND ORS. 
AUGUST 17, 2000 
B 
[DR. A.S. ANAND, CJ., R.C. LAHOTI AND K.G. J3ALAKRISHNAN, JJ.) 
c 
D 
.Constitution of India-Article 234-Consultation with the High Courts-
Appellant claimed benefit of seniority and pay fixation on the basis of 
Reservation Rules notified against opinion of the Full Court-Benefit given as 
per order of the High Court-Writ petition filed against decision dismissed, 
thereafter SLP also dismissed-Further benefit also granted by High Court 
which was again challenged by two sets of writ petitions questioning validity 
of the Reservation Rules-Writ Petitions allowed-On appeal Held, consulta-
tion contemplated is not a mere formality, it has to be effective and meaning-
ful-High Court possesses requisite expertise and experience to be assigned 
a place of primacy in the process of consultation-Reservation Rules are ultra 
vires, hence ineffective and unenforceable, the previous orders giving benefit 
of seniority and pay fixation struck down-Continuance in present post held 
by appellant allowed as a special case till appellant becomes eligible for the 
same, subject to consideration and approval of High Court-Service Law-
E 
Ex-Servicemen (Reservation of Vacancy in Fl.P.J.S.) Rules, 1981. 
The appellant served in the Air Force till 1980 and then joined as 
Sub-Judge - Judicial Magistrate in 1983 under ex-servicemen quota. He 
claimed benefit of 11 years of approved military service in pay fixation and 
seniority under the Ex-Servicemen (Reservation of Vacancy in H.P.J.S.) 
F 
Rules, 1981 through representation made to the High Court. The said rules 
had been notified and implemented by the State Government without 
considering the opinion expressed in a Full Court meeting of the High 
Court, in an earlier reference, which was against reservation in judicial 
services. However, the representation was allowed on 1.11.91 and he was 
G 
placed at the bottom of the 1974 batch of judicial officers. A writ petition 
was filed against the decision and it was dismissed by the Division Bench of 
the High Court. This Court also dismissed the SLP filed against that order. 
The appellant made another representation as his placement in fact 
resulted in a benefit of about 10 years and not of 11 years. This representa-
H 
tion was also allowed on 6.8.93 and he was placed at the top of 1974 batch 
428 
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A.C. THALWAL v. HIGH COURT OF H.P. 
429 
of judicial officers. 
Tuo writ petitions were filed by judicial officers who were affected 
by the said orders. Division Bench allowed the writ petitions but did not 
disturb the appellant's pay fixation and his appointment under the re-
served quota. Hence this appeal. 
Appellant contended that the order dated 1.11.91 had achieved final-
ity after the dismissal of the SLP and, therefore, the benefit thereunder 
cannot be denied to him. 
Dismissing the appeals, the Court 
HELD : 1. The Division Bench of the High Court in its judgment 
under appeal has recorded a finding, based on the material available as 
well on the records available in the Registry of the High Court, that the 
Reservation Rules, 1981 were never referred by the Governor to the High 
Court, which had never had any occasion to consider the Rules and there 
was no consultation much less effective and meaningful consultation by the 
State Government, with the High Court as contemplated by Article 234 of 
the Constitution in so far as the Reservation Rules, 1981 are concerned, 
and, therefore, the preamble of the rules is factually incorrect. [436-A-B] 
A 
B 
c 
D 
2. The consultation contemplated by Article 234 of the Constitution is 
E 
not a matter of mere formality; it has to be meaningful and effective. Judi-
·cial services have to be independent of execution influence and so the Con-
stitution has placed them on a pedestal different from other services under 
the State. The constitutional scheme aims at securing an independent judi-
ciary, which is the bulwark of democracy. The status which the High Court 
as an institution enjoys in the constitutional scheme and the expertise and 
the experience which it possesses command with justification a place of pri-
macy being assigned to it in the process of consultation. [436-D-E] 
Supreme Court Advocaf.qs-on-Record Association and Ors. v. Union of 
India, [1993] 4 SCC 441; Chandramou/eshwar Prasad v. The Patna High 
Court and Ors., A.I.R. (1970) SC 370; Hari Datt Kainthla and Am: v. State of 
Himach
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