JUDGMENT G.C. Mathur, J. - Both these writ petitions have been filed by Sri Abu Saad, who, on the dates when the impugned orders were passed, was officiating as District Judge, Ballia. In writ petition No. 1677 of 1910 the petitioner has challenged an order reverting him from his officiating post of District judge to that of Civil and Sessions Judge. In writ petition No. 4861 of 1970 the petitioner has challenged an order compulsorily retiring him from service under the first proviso to Fundamental Rule 56 (a) . 2. The petitioner was selected in the U.P. Judicial Service in the year 1942 on the basis of a competitive examination. He was posted as a Munsif in 1942 in which post he was confirmed in August, 1944. Thereafter the petitioner was promoted as Civil Judge in which post lie was confirmed with effect from April 1, 1955. Thereafter he was appointed as temporary Civil and Sessions Judge after being selected to the U.P. Higher Judicial Service. In 1962 the petitioner was posted as Additional District and Sessions Judge. He continued to hold this post at Bulandshar, Meerut, Jhansi and then at Varanasi. In 1967 he was posted as District Judge, Banda and in 1969 he was posted as District Judge, Ballia,. It appears that Government was not satisfied about the suitability of the petitioner for appointment as a District Judge. By a telegram dated September 23, 1967, the Chief Secretary to the Government enquired from the High Court about the number and date of the High Court's letters proposing the initial promotion of the petitioner as Additional District judge and about sanction of the Government for the same. The information sought by this telegram was sent by the Registrar. Thereupon by a letter dated October 21/23, 1967. Government informed the High Court that it had come to the conclusion that the petitioner's work was not such as would justify his continuance as Additional District and Sessions judge and intimated its decision to revert the petitioner as Civil and Sessions Judge. Nothing seems to have been done by the High Court in this matter and on September 8, 1969. Government sent another telegram to the High Court requesting it to implement Government's earlier decision to revert the petitioner. Nothing seems to have been done by the High Court in this matter and on September 8, 1969. Government sent another telegram to the High Court requesting it to implement Government's earlier decision to revert the petitioner. The matter was then placed before the Administrative committee of the High Court on October 10, 1969, at which it was decided that there were not sufficient grounds for the reversion of the petitioner. Accordingly Government was informed of this and was requested to reconsider the matter. In the mean time the High Court made certain remarks in the petitioner's character roll which adverse to him. On a representation made by the petitioner, the adverse remarks were expunged and a normal entry of satisfactory work was entered in the character roll. In spite of the decision of the Administrative Committee, Government again wrote to the High Court that it was still firmly of opinion that the petitioner was not fit to be continued on the higher post of District and Sessions Judge. The matter was again considered by the Administrative Committee on January 27, 1970, and it was resolved that the amended entry in the petitioner's character roll be forwarded to Government and Government be requested to reconsider the matter in the light of amended entry. In spite of all this Government by its letter dated March 16, 1970, informed the High Court that Government had given careful consideration to the matter and was still of the view that the petitioner was not fit to be continued on the post of District and Sessions Judge. It requested the High Court to revert the petitioner and to inform the Government that this had been clone. Thereupon the Registrar of the High Court wrote to the petitioner on April 20. 1970, informing him that it had been decided to revert him as Civil and Sessions Judge, Gorakhpur. The petitioner was directed to hand over charge of his post at Ballia immediately and to proceed to Gorakhpur after availing of the usual joining time. The petitioner thereupon filed writ petition No. 1677 of 1970 before this Court on April 27, 1970. The writ petition was admitted on April 30. 1970, and on the same day an order was passed staying the operation of the order of reversion against the petitioner. This writ petition was directed to be listed for final hearing on July 20, 1970. The writ petition was admitted on April 30. 1970, and on the same day an order was passed staying the operation of the order of reversion against the petitioner. This writ petition was directed to be listed for final hearing on July 20, 1970. It appears that several adjournments were sought by the respondents on the ground that the Advocate General, who had been instructed to appear in the case for respondents, was not available. 3. Some time in April 1970 Government sent a list of Officers of the Higher Judicial Service, who were likely to attain the age of 55 years or had crossed that age to the High Court requesting it to review the work and conduct of such Officers and to report to Government on the suitability or otherwise of further retention of these Officers in service. By June 6, 1970, the names of twenty three such Officers were sent to the High Court included the name of the petitioner also. The matter was considered in the judges' meeting held on August 29, 1970, and it was decided that out of the twenty-three Officers, four Officers including the petitioner should be compulsorily retired. This decision was conveyed to the Government by a letter dated September 3, 1970. Government accepted the recommendations of the High Court and passed an order on September 29, 1970, compulsorily retiring the petitioner on the expiry of three months from the date of the receipt of this order. This order was passed under the first proviso to clause (a) of Fundamental Rule 56. which was introduced by the U.P. Fundamental Rule 56 (Amendment and Validation) Act, 1970 (hereinafter referred to as Act No. 5 of 1970). Against the order of compulsory retirement the petitioner filed writ petition No. 4861 of 1970 on October 13, 1970. The writ petition was admitted on the same day. This petition was directed to be heard along with writ petition No. 1677 of 1970. 4. Both the writ petitions have been heard by me together. It is obvious that if writ petition No. 4861 of 1970, which is directed against the order of compulsory retirement, fails then no effective relief can be granted to the petitioner in writ petition No. 1677 of 1970. It is, therefore, convenient to first deal with writ petition No. 4861 of 1970. 5. It is obvious that if writ petition No. 4861 of 1970, which is directed against the order of compulsory retirement, fails then no effective relief can be granted to the petitioner in writ petition No. 1677 of 1970. It is, therefore, convenient to first deal with writ petition No. 4861 of 1970. 5. Sri M. A. Ansari learned counsel for the petitioner, has raised the following three contentions in writ petition No. 4861 of 1970 :- 1. That the proviso to clause (a) of Fundamental Rule 56, which has been introduced by Act No. 5 of 1970, is not applicable to the petitioner and, therefore, the impugned order is invalid and ineffective; 2. that the impugned order has been passed mala fide and is, therefore, void; and 3. that the impugned order is illegal inasmuch as it is based upon certain extraneous material, namely, executive instructions (Annexure `XVI' to the writ petition) issued by the State Government under the explanation to the proviso to clause (a) of Fundamental Rule 56 introduced by Act No. 5 of 1970. I will deal with these contentions in the order in which they have been urged. 6. In order to appreciate the first contention of learned counsel, it is necessary to refer to certain provisions of the Constitution. Chapter VI of the Constitution, which consists of Article 233 to 237, deals with subordinate courts. Article 233 relates to the appointment of District Judges. Clause (1) of this Article provides that "appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State. "Article 234 relates to the recruitment of persons to the judicial Service other than District Judges. It runs thus :- "Appointment of person 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 235 provides for the control of the High Court over Officers of the subordinate courts. The petitioner substantively held a post in the judicial Service other than of a District Judge. The petitioner substantively held a post in the judicial Service other than of a District Judge. He was holding the post of the District Judge only in an officiating capacity and had not been confirmed in the Higher Judicial Service. The argument of Sri Ansari is that the petitioner is governed by Article 234 and that the conditions of his service can be prescribed under Article 234 only by the Governor by rules made by him after consultation with State Public Service Commission and with the High Court. It is his further contention that since Article 234 makes a special provision for the making of rule relating to the conditions of service of Officers of the judicial Service other than District Judges, Article 309 is not applicable to such Officers and no rule or enactment made under Article 309 can apply to such Officers Article 309 opens with the words "subject to the provisions of this Constitution". It is, therefore, clear that if some other provision of the Constitution provides for the conditions of service of a particular class of Officers then no rules regulating the conditions of service of such Officers can be made under Article 309. There is no doubt that there are certain provisions in the Constitution apart from Article 309 which provide for the conditions of service of certain classes of person, appointed to public service and posts. Reference need be made only to some of them. Articles 124 and 125 provide for the appointment of the judges of the Supreme Court and for their terms of service. Articles 217 and 218 make similar provision relating to the judges of the High Courts. Article 148 makes provision regarding the Comptroller and Auditor General of India, In view of these special provisions, it is obvious that no rules can be made regarding these classes of persons under Article 309 either by the President or by the legislature. Likewise, Article 318 makes provision regarding the conditions of service of the member of the Public Service Commission and of the members of their staff. Article 324 (5) makes provision regarding the conditions of service of the Election Commissioners. It cannot be denied that no rules regulating the conditions of service of these class of persons can be made under Article 309. 7. Article 324 (5) makes provision regarding the conditions of service of the Election Commissioners. It cannot be denied that no rules regulating the conditions of service of these class of persons can be made under Article 309. 7. The question then arises whether Article 234 makes provision for the making of rules relating to the terms and conditions of service of Officers or the Judicial Service other than District Judges. Article 234 like Article 233 talks of "appointments". The contention of Sri Ansari is that the word "appointments" in these two Article includes dismissal, removal and compulsory retirement. The contention of learned counsel for the respondents on the other hand, is that Articles 233 and 234 deal only with the initial recruitment of persons to the judicial Service and they have no concern with the other terms and conditions of service of Officers of the Judicial Service. In support of his contention Sri Ansari has relied upon two decisions of the Supreme Court in the first case, The State of West Bengal v. Nripendra Nath Bagchi, A.I.R. 1966 S.C. 447, a District Judge was dismissed by the Governor on the basis of an enquiry held by an Officer appointed by the Governor. The question arose whether the disciplinary enquiry could be held by an Officer appointed by the Governor or should have been held by the High Court. The Supreme Court held that the High Court alone could have held the enquiry and, therefore, the dismissal on the basis of an enquiry held by an Officer appointed by the Governor was invalid. The Supreme Court was of the view that the control, which is vested in the High Court under Article 235, is a complete control subject only to the power of the Governor in the matter of appointment including dismissal and removal and posting and promotion of District Judges. It held that the holding of the disciplinary enquiry was part of the control vested in the High Court by Article 235. This case is of no assistance in determining the question whether rules relating to the terms and conditions of service either of District judges or of subordinate Officers of the Judicial Service can be made under Article 309 or not. In the second case. The State of Assam v. Ranga Muhammad, A.I.R. 1967 S.C. 903. This case is of no assistance in determining the question whether rules relating to the terms and conditions of service either of District judges or of subordinate Officers of the Judicial Service can be made under Article 309 or not. In the second case. The State of Assam v. Ranga Muhammad, A.I.R. 1967 S.C. 903. The question which arose for determination was whether the transfer of a District judge was included in the word "Posting" in Article 233. The Supreme Court had to decide whether the transfer of a district judge could be made by the Governor in exercise of his power under Article 233 on by the High Court in exercise of its power of control under Article 235. The Supreme Court held that in Article 233 the word "Posting" meant the initial appointment in the cadre of District judges and did not include a transfer after a person had been appointed to the cadre. It further held that transfer was included on the power of control conferred upon High Court by Article 235. This case also does not support the contention of Sri Ansari. The learned Chief Standing Counsel has brought to my notice two decisions which are directly in point. In Rajvi Amar Singh v. State of Rajasthan, A.I.R. 1956 Rajasthan 104, a similar question arose before a Division Bench of the Rajasthan High Court. The Division Bench observed:- "Article 309 is stated to be subject to the other provisions of the Constitution. It is thus subject to Articles 234 and 233 of the Constitution. Articles 234 and 233 do not make any mention of the conditions of judicial Service, though make provision for the manner of appointment (which includes the recruitment) of judicial Service. The Division Bench observed:- "Article 309 is stated to be subject to the other provisions of the Constitution. It is thus subject to Articles 234 and 233 of the Constitution. Articles 234 and 233 do not make any mention of the conditions of judicial Service, though make provision for the manner of appointment (which includes the recruitment) of judicial Service. It is, therefore, clear that while conditions of Judicial Service can be prescribed by the Rajpramukh or the Legislature, as the case may be, under Article 309, the recruitment for that service (other than District Judges) has to be made in accordance with the rules referred to in Article 234 and from amongst the members of judicial Service so recruited the appointment of District Judges can be made under Article 233 of the Constitution." This case decides that rules relating to the initial recruitment to the Judicial Service (other than District judge) call be made under Article 234 and the other rules relating to the terms and conditions of service can be made under Art. 309. A similar question arose for consideration before a Full Bench of the Kerala High Court in N. Srinivasan v. State of Kerala, A.I.R. 1968 Kerala 158. In this case the question directly arose whether a rule relating to compulsory retirement of members of judicial Service could be made under Article 309 of the Constitution or not. The Full Bench was of opinion that terms of service including provision regarding compulsory retirement of persons governed by Articles 233 and 234 could be made under Article 309. It observed:- "It will be noticed that Articles 233 and 234 confine themselves to appointment to the judicial service; neither article has anything to say about conditions of service after appointment and the age of superannuation is a condition of service so that there is nothing in either to attract the opening words "subject to the provisions of this Constitution" of Article 309 so far as conditions of service so that there is nothing in either to attract the opening words "subject by Article 309 is altogether untrammelled by anything in Article 233 or 234." I am in respectful agreement ith the view taken in these two cases. There is nothing in the language of Art. 234 to indicate that rules relating to the terms and conditions of service particularly compulsory retirement have to be made under this Article. There is nothing in the language of Art. 234 to indicate that rules relating to the terms and conditions of service particularly compulsory retirement have to be made under this Article. Even if it is accepted that the word "appointments" includes dismissal and removal, it only means that appointment, dismissal and removal of a person other than District judges can be made by the Governor. The Article does not lay down that rules relating to dismissal removal shall also be made by the Governor in the manner provided in this Article. The Article only speaks of rules relating to appointment of persons other than District judges to the Judicial Service of a State. Therefore, under this Article only rules for recruitment of persons to the judicial Service can be made. Rules relating to other terms and conditions of service are not contemplated by Article 234. Therefore, Article 234 cuts down the ambit of Article 309 only so far as provisions regarding recruitment to the service are concerned. But it does not affect the power conferred by Article 309 in respect of rules relating to other conditions of service. That being so, the first proviso to clause (a) of Fundamental Rule 56, which has admittedly been made under Article 309, fully applies to the petitioner. 8. So far as the ground of mala fides is concerned, the petitioner has made thee types of allegations. The first is that respondent No. 3, Sri Shyam Lal Yadav, who was the Law Minister in the U.P. Government at the time when the petitioner was posted at Varanasi, was annoyed with the petitioner for granting a certificate to a lawyer, Sri Raj Kishore Lal, who had been removed from the Office of D. G.C. (R) at Varanasi. Sri Shyam Lal Yadav also belongs to Varanasi, but no reason has been given why he should have felt displeased at the granting of the certificate by the petitioner. It is alleged that on account of this displeasure Sri Shyam Lal Yadav initiated the enquiries which ultimately resulted in the order of reversion being passed against the petitioner. Admittedly Sri Shyam Lal Yadav was not the law Minister at the time when the order of reversion was passed and when the order of compulsory retirement was passed. It is alleged that on account of this displeasure Sri Shyam Lal Yadav initiated the enquiries which ultimately resulted in the order of reversion being passed against the petitioner. Admittedly Sri Shyam Lal Yadav was not the law Minister at the time when the order of reversion was passed and when the order of compulsory retirement was passed. It is, therefore, not possible to accept that the impugned order were passed on account of the displeasure of respondent No. 3. The second allegation of mala fides has been made against Sri Swami Prasad Singh who succeeded Sri Shyam Lal Yadav as the Law Minister. No allegation of personal malice or bias has been made against Sri Swami Prasad Singh. All that is alleged against him is that he listened to certain anonymous complaints against the petitioner made by certain clerks whom the petitioner had dismissed when he was posted at Banda and there by allowed himself to be influenced against the petitioner. The allegations hardly amounts to allegations of mala fide. The petitioner made in the petition has failed to establish that Sri Swami Prasad Singh had any reason to get the impugned orders passed against the petitioner. The third and the last allegation of mala fides is that the order of compulsory" retirement was passed mala fide so as to make the petitioner's writ petition against the order of reversion in fructuous. It is alleged that several adjournments were taken by the respondents on the ground that the Advocate General Was not available on the dates of hearing and that before that petition could come up for final hearing, the order of compulsory retirement was passed. There is nothing on the record to substantiate the petitioner's suggestion that the adjournments were obtained on false pretences. From the counter affidavits and from the facts recited in the beginning of this judgment it is obvious that the Government had sent, in April and June, 1970, the names of twenty-three Officer:; including that of the petitioner who had reached the age of 55 years or were about to reach that age for considering the question as to which of them were fit for further retention in service and as to which of them should be compulsorily retired. After considering the matter at a judges' meeting, the High Court informed the Government that the petitioner and three other Officers should be compulsorily retired from service. The Government accepted the recommendations of the High Court and retired all the four Officers. including the petitioner. Since the Government acted on the recommendations of the high Court, it is not possible to accept the petitioner's contention that the order of compulsory retirement was made mala fide. The petitioner has failed to establish that the order of compulsory retirement was passed mala fide. 9. In order to appreciate the third and the last contention of the petitioner it is necessary to set out Explanation (I) to the first proviso to clause (a) of Fundamental Rule 56 introduced by Act No. 5 of 1970. This explanation read thus :- "The decision of the appointing authority Under the first proviso to require the Government servant to retire as specified therein shall be taken if it appears to the said authority to be in the public interest and the State Government may, from time to time, issue executive instructions indicating guiding principles in that behalf but nothing herein contained shall be construed to require any, recital, in the order, of such decision having been taken in the public interest or to require the publication of such instructions." Under the second part of the explanation, which has been underlined above, the State Government issued certain executive instruction, a copy of which is annexure `XVI' to the writ petition. Paragraph 5 of these executive instructions provided that such Government servants, whose work and character during the last ten years of service were not above the average, may be compulsorily retired on payment of three months' wages in lieu of notice. This part of the explanation italicised above has been struck down by a Full Bench of this, Court in Iqbal Narain Srivastava v. State of Uttar Pradesh, 1971 A.L.J. 169. The argument of Sri Ansari is that the impugned order of compulsory retirement has been passed in accordance with these executive instructions, which, in view of the decision of the Full Bench, could not be issued and were, therefore, extraneous material. It is true that in view of the decision of the Full Bench it was not permissible to retire any Government servant on the basis of the executive instructions. It is true that in view of the decision of the Full Bench it was not permissible to retire any Government servant on the basis of the executive instructions. But I am not satisfied that the impugned order has been passed on the basis of these executive instructions. The relevant records of the High Court were placed before me by the learned counsel for the High Court. From these it does appear that a copy of the executive instructions were forwarded to the High Court and in the note prepared for the consideration of the cases of the twenty-three Officers referred by the Government, a mention is made of paragraph 5 of the executive instructions. But the entire character roll of the petitioner and not only of the last ten years was placed before the judges' meeting. This indicates that the High Court was not considering the matter on the basis of paragraph 5 of the executive instructions. Further, the High Court decided that out of twenty-three Officers only four should be compulsorily retired. This also indicates that the High Court was not applying the test of compulsorily retiring all those who were not above the average as contemplated in paragraph 5 of the executive instructions. If the test of paragraph 5 of the executive instructions had been applied by the High Court then many more Officers would have been compulsorily retired. On the material on the record, I am unable to hold that in taking the decision that the petitioner should be compulsorily retired, the High Court acted on the basis of the executive instructions. So far as the Governor is concerned, he has accepted the recommendation of the High Court and it cannot be urged that he has been influenced in his decision by the executive instructions. For these reasons the petitioner's contention that the impugned order is vitiated by the taking into consideration of extraneous material has to be rejected. 10. All the three grounds, on which the petitioner challenged the impugned order of compulsory retirement, are without substance. Writ petition No. 1861 of 1970, therefore, fails. 11. Since I have held that the order of compulsory retirement from service passed against the petitioner is a good and valid order, no effective relief can be granted to him in writ petition No. 1677 of 1970, which is directed against the order of reversion. Writ petition No. 1861 of 1970, therefore, fails. 11. Since I have held that the order of compulsory retirement from service passed against the petitioner is a good and valid order, no effective relief can be granted to him in writ petition No. 1677 of 1970, which is directed against the order of reversion. No direction can now be given, even if the petitioner's contentions in this writ petition are held to be well founded, to restore the petitioner to the post from which he was reverted. 12. Both the writ petitions are accordingly dismissed. In the circumstances of the case the parties will bear their own costs of both the petitions.