STATE OF JAMMU AND KASHMIR versus A. R. ZAKKI AND ORS.

Citation: [1991] SUPP. 3 S.C.R. 216 · Decided: 06-12-1991 · Supreme Court of India · Bench: L.M. SHARMA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
STAIB OF JAMMU AND KASHMIE. 
v. 
A. R. ZAKKI AND ORS. 
DECEMBER 6, 1991. 
B 
[L. M. SHARMA, J. S. VERMA ANDS. C. AGRAWAL, JJ.] 
Constitution of Jammu & Kashmir, 1956: ss. 103, 109,110,111 :-
Amendments proposed by High Court to Jammu & Kashmir Civil Service 
C (Judicial) Recruitment Rules, 1967:-Whether can be got incorporated by 
issuance of a writ. 
D 
Constitution of India, 1950: Articles 234, 226: Subordinate Judiciary-
Power of Governor to frame Service Rules-Co11$ultation with High Courl-:-
Purpose and scope of. 
Service Law : 
Jammu & Kashmir Civil Service (Judicial) Recruitment Rules, 1967: 
r.4:--State Judiciary-Recruitment through competitive examination-Provi-
E sion for promotion/transfer of employees of High Court-Propriety of. 
F 
Promotion-Creation of promotional avenue-Need and purpose oj--
Cl.ubbing of unequal posts of different Services having dissimilar nature of 
work-Whether permissible. 
Administrative_ Law :Delegated Legislation-State Judiciary-Power of 
Governor to frame Service Rulea--Whether legislative in nature-Writ petilion 
to get Service Rules amended-Maintainability. 
The respondents, employees of the Jammu & Kashmir High Court, 
G in quest of their promotional prospects made a representation to the Chief 
Justice or the High Court praying that a quota may be reserved for the em-
ployees or the High Court for recruitment to the Jammu & Kashmir Civil 
Service (Judicial). The representation was considered at a full Court 
meeting and in pursuance of the resolution pas~ therein a proposal was 
1 ,H 
sent to the State Government to amend r. 4 of the Jammu & Kashmir Civil 
Service (Judicial) Recruitment Rules, 1967, (which prescribes ~ecruitment 
216 
•
STATE OF J & K v. A.R. ZAKKI 
217 
to the Service on the basis or competitive examination conducted by the A 
Public Service Commission) so as to provide for reservation or 25% 
vacancies in the Service by way of promotion/transfer or Assistant Regis-
trars, Readers, Court Officers and Librarians of the High Court. 
The State Government sent the proposal to the Public Service Com-
mission for its opinion which adverted to certain aspects for consideration. B 
The matter was sent back to the High Court which, after obtaining a re-
port from the Vigilance Commissioner (Judicial) on the matter, resolved 
at a full Court meeting that "the Court did not agree with the proposal of 
the Commission and sticks to the amendments already proposed". The 
Government was accordingly informed. Since no action was taken by the 
State Government, the respondents filed a writ petition before the High C 
Court praying for a writ or mandamus to be issued commanding the Sta!_e _ 
Government to implement and give effect to the recommendations or the 
High Court. 
· 
The writ petition was allowed by a Single-Judge Bench and the 
Letters patent appeal filed by the appellant was summarily dismissed by D 
a Division Bench or the High Court. Aggrieved, the appellant tiled the 
appeal by special leave to this Court. 
It was contended by the appellant that the order or the High Court 
was to the effect of requiring the State Government to amend the Rules in 
E 
the manner proposed by the High Court and that such a direction by way 
of a writ of mandamus could not be issued in the matter of exercise or the 
rule making power under s.110 of the Constitution of Jam mu & Kashmir, 
which is legislative in character .. 
Allowing the appeal, this Court, 
HELD :1.1 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 sub~ 
_;;;.. -
ordinate legislation. (223 AB] 
F 
G 
1.2 Section 110 or the Constitution of Jammu & Kashmir, which is 
on the same lines as Article 234 or the Constitution or India, vests in the 
Governor, the power to make rules .tor appointment or persons other than 
-
the District Judges to the Judicial Service of the State and for framing 
such rules, the Governor is requfred to consult the Commission and the 
High Court. This power to frame rules is legislative in nature. A writ of H 
218 
SUPREME COURT REPORTS 
' 
[1991] SUPP. 3 S. C.R. ; 
A 
mandamus cannot, therefore, be issued directing the State Government to 
make rules in accordance with the proposal made by the High Court. 
[ 223 BC] 
State of Andhra Pradesh v. T. Gopa/akrishna Murthi & Ors., [1976] 1 
SCR 1008 & Supreme Court Employees Welfare Associatio
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