Judgment U. P. Singh, J. 1. These two writ applications have been heard together since common questions are involved and they are being dispose of by this judgment. 2. The petitioners have praved for issuance of a writ mandamus and/or suitable direction that under the provisions of the Bihar Superior Judicial service Rules, 1946 (in short "the Rules") one-third vacancies of the sanctioned strength of the Service be filled up by direct recruitment to the posts of additional District and Sessions Judge from amongst the petitioners in pursuance of the merit list prepared by the High Court on the basis of the written test held on 9th September, 1990, and the viva \oce test held in November, 1990. In other words, one-third existing vacancies of the quota of direct recruits or the Superior Judicial Service be filled up from the existing panel prepared by the High Court on the basis of the merit list dated 24th November, 1990, the validity of which will expire after November, 1991, and, therefore, until the expiry of the said merit list which is valid till November, 1991, no fresh advertisement for any such vacancy of the said posts be made. 3. In briefs the facts are that the Government of Bihar in the Department of Personnel and Administrative Reforms issued an advertisement to the posts of Additional District and Sessions Judge (Advocates Group ). One of the essential pre-requisites for making an application was that the application should have minimum experience of seven years of practice as an Advocate and that persons, who will not be more than 45 year of age, shall be given preference in that appointment. It is further provided after laying down the details of scale of pay probation, etc. , that those applicants who had applied earlier in response to the earlier advartisement should not apply over again. 4. In response to the said advertisement, the petition filed their applications with all complete papers and no causecertificates, etc. , on which there is no controversy. The Registrar of the Patna High Court (respondent No.2)informed the petitioners that they were required to attend the written test to be held in the premises of the High Court on the 9th September, 1990. The written test was held for all the applicant on the said date in the premises of the High Court. The Registrar of the Patna High Court (respondent No.2)informed the petitioners that they were required to attend the written test to be held in the premises of the High Court on the 9th September, 1990. The written test was held for all the applicant on the said date in the premises of the High Court. The successful candidates were called for the viva voce test which was held from 3rd November, 1990, in the premises of the High Court. Subsequently, the merit list of 129 candidates was prepared and out of them 32 candidates were initially appointed. 5. It may be pointed out that, since 1979 not a single member of the bar was appointed on the post of Additional District and Sessions Judge, against their one-third quota fixed under the Bihar Superior Judicial Service rules. The Bihar State Bar Council in their meeting held on 17th March, 1991, also resolved to request the High Court as also the State Government to fill up the posts of Additional District and Sessions Judge on the basis of one-third quota as provided under the Rules, for which written as well as oral tests were held and a merit list of 129 candidates was prepared by the High Court which was to remain valid only till November, 1991. It is shocking to notice that, since 1979, no such appointed of a single person from the Bar was made on the post of Additional District and Sessions Judge and for this no reasonable explanation has been offered. Thus, one-third quota fixed under the Rules, for direct recruitment from the Bar was being filled up from the members of the Bihar Judicial Service ignoring the said quota m ant for direct recruits It may be stated that the so-called temporary posts in the Superior Judicial Service of Additional District and Sessions judge is in existence for more than 12 years and the same pay scale and allowances, as that of the permanent posts of Additional District and sessions Judge, had been sanctioned even for those holding temporary posts of Additional District and Sessions Judge. The persons holding permanent and temporary posts as Additional District and Sessions Judge are performing the same and identical work and are getting the same pay scale and allowance. 6. The persons holding permanent and temporary posts as Additional District and Sessions Judge are performing the same and identical work and are getting the same pay scale and allowance. 6. While the main writ application (C. W. J. C. No.945/91 was being heard at the admission stage, a Division Bench of this Court passed on interim order on 25-4-1991 directing that the State Government shall be entitled to make appointment to Superior Judicial Service by promotion in accordance with law, but such promotion and the question of seniority of the persons so promoted shall abide by the final result of this writ petition. The order reads : - "mean while, as this matter cannot be he and disposed of before the summer Vacation, the safe-guard the interest of all concerned, including the members of the subordinate Judicial as such, we direct that the State Government shall be entitled to make appointment to the Superior Judicial Service by promotion in accordance with law, but such promotion and the question of seniority of the persons so promotion shall abide by the final result of this written the petition and/or any other order of this Court, it, is further directed that this direction should be incorporated in each letter/order relating to such appointment/promotion as one of the conditions of such appointment/promotion and unless such condition is accepted by the person concerned no such appointment/promotion is to be given effect to. " 7. According to the petitioners, the present strength of the Service is 251 comprising both permanent and temporary posts. One-third of the same would be 83 posts of Additional District and Sessions Judges which are to be filled up by direct recruitment from amongst the petitioners. Out of the aforesaide 83 posts 6 officers are already in the Service and 32 more have been appointed, thus, 45 more posts of Additional District and session Judges are required to be filled up by direct recruitment in the said cadre on the basis of the merit list which is was to remain valid till november, 1991. 8. The cadre has been defined in the Rules. According to Rule 2 (a), cadre means the cadre of the Bihar Superior Judicial Service and Rule 2 (d)defines service which means the Bihar Superior Judicial Service. 8. The cadre has been defined in the Rules. According to Rule 2 (a), cadre means the cadre of the Bihar Superior Judicial Service and Rule 2 (d)defines service which means the Bihar Superior Judicial Service. According to Rule 3 (1) of the Rules, the strength of the Service and the number and character of the posts shall be specified in the schedule to these rules. According to Rule 3 (2), the State Government may, from time to time, after consultation with the High Court amend the said schedule. According to Rule 4, every post in the cadre of the Service shall b 5 filled up by person. !. (iii) who is appointed as a member of the Bihar Superior Judicial service under Rule 5. Rule 5 provides : - "appointments to the Bihar Superior Judicial Service, which shall, in the first instance, ordinarily be to the post of Additional district and Sessions Judge, shall be made by the Governor in consultation with the High Court - (a) by direct recruitment, from amongst persons qualified and recommended by the High Court for appointment under clause (2) of Article 233 of the Constitution ; or (b) by promotion, from among members of the Bihar Civil service (Judicial Branch ). " Rule 6 is relevant to be noticed : - "of the posts in the cadre of the Service, two-thirds shall be filled by promotion and one-third by defect recruitment. Provided that the State Government may in consultation with the High Court deviate from the said promotion in either direction. " Under the Rules, every post in the Cadre is to be filled up as per the provisions contained in Rule 4 of the Rules. The total posts in the Service have been indicated in the Schedule as "sanctioned strength of the Service". Under Rule 6 of the Rules, one-third posts in the cadre of the Service are to be filled up by direct recruitment and two-thirds by promotion. Since the cadre has been defined to mean the cadre of the Bihar Superior judicial Service, it nowhere excludes temporary posts and it inclusive of both permanent as well as temporary posts. The sanctioned strength of the service is also inclusive of temporary posts. Since the cadre has been defined to mean the cadre of the Bihar Superior judicial Service, it nowhere excludes temporary posts and it inclusive of both permanent as well as temporary posts. The sanctioned strength of the service is also inclusive of temporary posts. Therefore, it has been contended on behalf of the petitioners that the appointment of the direct recruits only to the permanent posts excluding the temporary posts from the sanctioned strength of the service would be arbitrary and illegal and contrary to the aforesaid provisions of the Rules. 9. The appointment to the posts of Additional District and Sessions judge is governed by the Bihar Superior Judicial Service Rules, 1946 , which was framed in exercise of the powers conferred by the proviso to Article 309 of the Constitution read with Article 233 of the Constitution. In accordance with these provisions, two-thirds of the posts in the cadre of the Bihar superior Judicial Service are to be filled up from its Judicial Officers by promotion and one-third by direct recruits. When the rules were notified in the year 1946, the schedule oppended with the rules recorded five nomenclatures and categories of Judicial Officers in the Service numbering only 26. The Rules provided that the State Government may, from time to time, amend the said schedule after consultation with the High Court. 10. On behalf of respondent No.3, the Secretary, Bihar Judicial Service association, it was contended that the Schedule has not been amended and, therefore, the sanctioned strength under the schedule is not 253. According to the affidavit on behalf of respondent No.2, the Joint Registrar of the high Court the total number of posts in the Bihar Superior Judicial Service is 253, such as, (a) permanent posts 156 (b) temporary posts 64, (c) temporary posts under the Essential Commodities Act 33, the total being 253. According to the petitioners, by the end of 1990, and at the relevant time, the scheduled consisted of 114 permanent posts and 137 temporary posts (total 251 posts ). 11. According to the petitioners, the schedule of the Rules gives sanctioned strength of the Service and the present sanctioned strength of the service is 251. According to the petitioners, by the end of 1990, and at the relevant time, the scheduled consisted of 114 permanent posts and 137 temporary posts (total 251 posts ). 11. According to the petitioners, the schedule of the Rules gives sanctioned strength of the Service and the present sanctioned strength of the service is 251. Therefore, one of the contentions raised by the petitioners was that, in accordance with Rule 6, the total available posts required to be filled up by direct recruits under one-third quota would be one-third of 251 posts, which is the sanctioned strength of the service at present, and it will mean 83 posts, against which, 6 officers have already been in Service and 32 more officers have been appointed, thus, leaving 45 more posts to be filled up by direct recruits 12. Whatever may be the sanctioned strength of the Service either 251 according to the petitioners or 251 according to the affidavit of the High court, certainly, the contention on behalf respondent No.3, the Bihar judicial Service Association, cannot be upheld that the sanctioned strength of the Service according to the schedule of the Rules even today continues to be 26, since 1946 when the Rules came into force. It is well settled principle that, if there is no specific provision in the Rules, it does not mean that till the statutory rules are framed, the Government cannot issue administrative instructions regarding the principle to be fallowed. It is true that the government cannot amend or supersede the statutory rules by administrative instructions, but, if the rules are silent at any particular point, the Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed. See Sant Ram V/s. State of Rajaathan air 1967 SC 1910 . According to the affidavit of the Highcourt, which is not being disputed by the State, the sanctioned strength of the Service as of today and at the relevant time by the end of 1990 is 253. See Sant Ram V/s. State of Rajaathan air 1967 SC 1910 . According to the affidavit of the Highcourt, which is not being disputed by the State, the sanctioned strength of the Service as of today and at the relevant time by the end of 1990 is 253. On correct interpretation of Rule 6, we have no doubt in holding that of all the posts in the cadre of the Service, one-third shall be filled up by direct recruits and, therefore, without entering into the disputed question of vacancy, whether it is 253 or 251, it has to be held that one-third of the same shall have to be filled up by direct recruits. If, according to the contention of the Bihar judicial Service Association, respondent No.3, the sanctioned strength of the service according to the schedule published in the year 1946 has remained only 26, then how they have been promoted all these years and much more in number than the total strength of the service being shown as 26. Further, the calculation made by the respondents and the contention that the direct recruits would be entitled to one-third of the available permanent posts of 114 only would be equally erroneous and would be contrary to Rule 6 which clearly stipulates that of the posts in the Cadre of the Service, one-third of the same shall be filled up by direct recruits. It does not include only permanent posts but all the posts in the cadre of the Service. In the case of o. P. Garg and others V/s. State of U. P. , AIR 1991 SC 1202 , it was held : - "the quota rule will be enforced with reference to vacancies in all posts, whether permanent or temporary included in the sanctioned strength of the cadre (except such vacancies as are purely of a fortuitous or adventitious nature. " Reference may be made to the case of A. K. Subraman and others V/s. Union of india, AIR 1975 SC 483 , wherein while referring to the case of P. S Mahal v. Union of India, (1984) 3 SCR 847 it was said : - "it is, therefore, apparent that what has to be considered for the applicability of the quota rule is a vacancy in a post included is the sanctioned strength of the Cadre. " In the present case, the Cadre has been defined in the Rules to mean the cadre of the Bihar Superior Judicial Service and it does not exclude temporary posts and according to Rule 4 of the Rules, every post in the cadre has to be fill up in accordance with the provisions contained therein. 13. As early as on 24-11-1990, the Full Court had unanimously adopted a resolution that any further vacancy in the quota of the direct recruits from the Bar is required to be filled up within a period of one year from that date. The same would be filled by recommending candidates in order of merit from amongst the remaining candidates in the merit list. 14. Accordingly, the High Court initially recommended the names of 32 Advocates, from the merit list prepared for direct recruitment and all of them were appointed. Further, when one more vacancy in this category occurred, the High Court, vide its letter No.3271 dated 4-3-1991 and another letter No.7901 dated 3-6-1991 requested the Government to appoint the candidate at Serial No.33 in the merit list. The affidavit filed by the Deputy registrar on behalf of the High Court categorically stated : "that this Hon ble Court initially recommended the names of 32 advocates for direct recruitment to the posts of Additional district and Sessions Judge. The said recommendation was considered by the Government of Bihar and since all of them have been appointed and posted against their respective place of posting. " "that in the meantime one mere vacancy in this Category of additional District Judge occurred due to retirement of Sri sbamim Ahsan. District Judge, Bettiah, and accordingly the High court vide its letters No.3271 dated 4-3-1991 and 7901 dated 3rd june, 1991, requested the Government to appoint Sri Pratap Singh against the said vacancy, who was at Serial No.33 in the merit list prepared by this Court. " The said letters of the High Court dated 4-3-1991 and 3-6-1991 have been marked Annexures-A and A/1. 15 While the main writ application (C. W. J. C. No.945 of 199l) filed in February, 1991, was pending, the Government of Bihar in the Department of Personnel and Administrative Reforms issued a letter dated 17th July, 1991, according to which the State Government decided not to appoint any more person from amongst the existing panel and decided to advertise the vacancies afresh. Therefore, an additional prayer was made for quashing the said letter contained in Annexure-6. The contents of the said letter is relevant to be noticed : - 15_200_BLJ1_1992.htm 16. In the affidavit of the High Court, it has also been stated that the government, through its Joint Secretary in the Department of Personnel and Administrative Reforms vide letter No.10300 dated 6th August, 1991, intimated to the High Court that it has been decided to convert 34 temporary posts of Additional District Judge and 99 Munsifs into permanent posts. The said letter has been annexed marked Annexure-C to the affidavit filed on behalf of the High Court. 17. It is apparent from the statement contained in the affidavit filed on behalf of the High Court, respondent No.2, that much before the issuance of the impugned letter dated 17th July, 1991, contained in Annexure-6, the high Court had already communicated its unanimous resolution passed in its meeting held on 24th November, 1990, that if any further vacancy in the quota of direct recruits from the Bar is required to be filled up within a period of one year, the same had to be filled up by recommending candidates in order of their merit from amongst the candidates on the merit list. 18. While challenging the decision of the Government abruptly taken on 17th July, 1991, contained in Aunexure-6, the learned counsel appearing for the High Court contended that the action of the State Government in issuing the said letter is arbitrary and it assigns no reason for taking the said decision. The merit list prepared by the High Court was operative for one year as decided by the High Court and the vacancy in the quota of direct recruits from the Bar was to be filled up within a period of one year in accordance with the said merit list by recommending candidates in order of merit from the said merit list. As on the publication of the advertisement, the vacancies according to one-third quota of the sanctioned strength of 253 in the Service would come to 84 for the direct recruits from the Bar. 19. As on the publication of the advertisement, the vacancies according to one-third quota of the sanctioned strength of 253 in the Service would come to 84 for the direct recruits from the Bar. 19. According to the learned Advocate General appearing for the State, the High Court having initially recommended the names of 32 candidates from the merit list prepared in pursuance of the advertisement, the process of selection at the level of the High Court exhausted and came to an end. Therefore, future vacancies should not be kept reserved to be filled up from amongst the candidates who were interviewed earlier and found suitable as per the merit list, because there may be more persons available who are eligible for appointment and, therefore, equal opportunity should be given to all in accordance with Articles 14 and 16 of the Constitution. The letter of the High Court dated 4th March, 1991, contained in Annexure-A requesting the Government to appoint Shri Pratap Singh against the 33 vacancy occurred on account of the retirement of one District Judge was received in the Department of Personnel and Administrative Reforms on 7th March, 1991, and after examining the same at various level the Government took the said decision contained in the impugned letter dated 17th July, 1991, (Annexure-6 ). 20. Relying on the case of Shankarsan Dash V/s. Union of India, AIR 1991 sc 1612 , it was contended that merely because a number of vacancies are notified for appointment and adequate number of candidates are found fit, it cannot be said that the successful candidates acquired indefeasible right to be appointed, which cannot be legitimately denied. As against the aforesaid contention raised on behalf of the State, the learned counsel appearing for the petitioners and the High Court contended that the impugned letter contained in Annexure-6 was issued without consulting the High Court and, therefore, it was violative of Article 233 of the Constitution. It was further contended that it would appear from the said impugned letter of four lines that no reason has been assigned whatsoever while taking such a decision not to appoint any person from the merit list. Therefore, the decision is arbitrary and it was abruptly taken without consulting the High Court. It was further contended that it would appear from the said impugned letter of four lines that no reason has been assigned whatsoever while taking such a decision not to appoint any person from the merit list. Therefore, the decision is arbitrary and it was abruptly taken without consulting the High Court. Tt was submitted that, when the advertisement in question contained in Annexure 1 was issued, no vacancy whatsoever was disclosed and there is no statement on behalf of the State as to when these vacancies were communicated. It was pointed out that, in accordance with the resolution of the Full Court dated 24th November, 1990, much before the issuance of the impugned letter of the government contained in Annexure-6, the merit list remained operative and within the period of one year from that date, any further vacancy in the quota of direct recruits to be filled up from amongst the candidates of the said merit list in their order of merit. 21. The contention raised by the learned Advocate General has to be rejected. It is true that merely because adequate number of candidates are found fit, therefore, these successful candidates acquire such indefeasible right to be appointed, that it cannot be legitimately denied, as their Lordships said but it was further pointed out in the said judgment of Shankarshan Dash (Supra) that it would not mean that the state has the licence of acting in an arbitrary manner. The relevant passage reads : - "ordinarily, the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And, if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And, if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. " Thus, in accordance with the principle enunciated in the said case, the state has no licence of acting in an arbitrary manner and the decision not to fill up the vacancies had to be taken bona fide and for appropriate reasons. We do not see any appropriate reason stated in the impugned order (Annexure-6) deciding not to appoint any person from amongst the merit list which was operative. The aforesaid decision of the Government which has been quoted above, not to fill up the vacancies from amongst the candidates of the merit list in their order of merit, had to be taken bona fide. It has to be remembered that in the State of Bihar, since 1979, not single member of the Bar was appointed on the post of Additional District and Sessions Judge against one-third quota fixed for direct recruits under the Bihar Superior judicial Service Rules, and for this, no reasonable explanation has been offered. After long ten years, an advertisement wa issued on 28th September, 1989. inviting applications for appointment to the posts of Additional District and Sessions Judge (Advocates Group ). With great difficulty, the High court conducted the examination and the written test was held in the premises of the High Court on 9-91990. In November, 1990, viova voce test was held and a merit list of 129 candidates was prepared. Out of them, thirty-two vacancies were filled up and the candidates were recommended in order of merit and they were so appointed. In November, 1990, viova voce test was held and a merit list of 129 candidates was prepared. Out of them, thirty-two vacancies were filled up and the candidates were recommended in order of merit and they were so appointed. When thirty-third candidate was recommended for being appointed out of the said merit list on account of the vacancy occurring for which the High Court requested in its letter dated 4th March, 1991, and again, reminded on 3rd June, 1991, which are contained in Annexures-A and A/1 and also when the unanimous resolution of the High Court dated 24th November, 1990, had been communicated to the government that future vacancies in the quota of direct recruits from the bar required to be filled up within a period of one year would be from the said merit list in order of merit, the decision of the Government not to fill up the vacancies in the said manner was abruptly and arbitrarily taken on 17-7-1991 without assigning any reason whatsoever. The decision not to fill up the vacancies had to be taken bona fide and for appropriate reasons. 22. We do not appreciate how Article 16 can be applied against the petitioners. It is difficult to accept the contention of the learned Advocate general that the Government can decide at any point of time not to appoint any person from the merit list although he might have been so selected because there may be more persons available who are eligible for appointment. If that would be the reason for calling fresh advertisement in the garb of giving equal opportunity to all, then there would be no end to it. Non-consideration for appointment of all those who have already been found eligible after having already been tested on merit would itself be denial of equal opportunity. Such eligible and meritorious persons, who have been awaiting for long after having passed the test and found fit according to the merit list for such appointment, would then have their career hanging in uncertainty because the appointing authority would come forward and say stop here and no more because many more may be awaiting. The present on is not such a case where the merit list has continued for a longer period so as to deny equal opportunity to others. The present on is not such a case where the merit list has continued for a longer period so as to deny equal opportunity to others. Here is the case where since 1979 not a single member of the Bar was appointed on the post of Additional district and Sessions Judge against their one-third quota fixed under the bihar Superior Judicial Service Rules. After awaiting for long ten years and without their being any explanation for such long delay, the advertisement was published only in the year 1989 and the High Court conducted the examination in September 1990, and, after selecting the candidates, a merit list of 129 candidates was prepared. It had already communicated its views in November, 1990, that if any further vacancy in the quota of direct recruits from the Bar was required to be filled up within a period of one year, the same had to be filled up by recommending the candidates from amongst the remaining candidates in the merit list and in order of their merit. Therefore, in the facts of the present case, the contention of the learned Advocate general cannot be accepted that the High Court having initially recommended the names of only 32 candidates as per the existing vacancies, the process of selection at the level of the High Court exhausted and came to an end. The decision of the State Government contained in Annexure-6 dated 17-7-1991 is arbitrary and violative of Articles 14 and 16 of the Constitution. It is true that a candidate does not get any right 1o the post by merely making an application for this, but the fight is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules. 23. There is no averment in the affidavit filed on behalf of the State of bihar that before issuing the impugned order contained in its letter dated 17-7-1991 (Annexure-6) that there was any consultation with the High Court before issuing the same. There is also no averment in the affidavit filed on behalf of the State as to when the vacancies were communicated and admittedly when the advertisement in qeestion contained in Annexurc-1 was issued, no vacancy was disclosed. There is also no averment in the affidavit filed on behalf of the State as to when the vacancies were communicated and admittedly when the advertisement in qeestion contained in Annexurc-1 was issued, no vacancy was disclosed. Thus, there is no denying the fact that there was no consultation with the High Court before issuing the impugned letter contained in Annexure-6 taking abrupt decision that no further appointment shall be made out of the merit list. 24. In the case of State of Kerala V/s. A. Lakshmikutty, AIR 1987 SC 331 , it was said : "the heart of the matter is that consultation between the State government and the High Court in the matter of appointment of district Judges under Article 233 (1) of the Constitution must be real, full and effective. To make the consultation effective, there has to be an interchange of views between the High Court and the state Government so that any departure from the advice of the high Court would be explained to the High Court by the State government. If the State Government were simply to give lip service to the principle of consultation and depart from the advice of the High Court in making judicial appointments without referring back to the High Court the difficulties which prevent the Government from accepting its advice, the consultation would not be effective in any appointment of a person as a District judge by direct recruitment from the Bar or by promotion from the Judicial Service under Article 233 (1) would be invalid. Unless the State Government were to convey to the High Court the difficulties which prevent the Government from accepting its advice by referring back the matter, the consultation would not be effective". After considering several decisions on the point, their lordships in paragraph 34 thereof state : - "in our considered opinion, the decision of these appeals must ultimately turn on the question whether there was real, full and effective consultation by the Governor with the High Court within the meaning of Article 233 (1) before the State Government reached a decision to reject the panel forwarded by the High court. As well settled, the duty of the Governor to consult the high Court in the matter of appointment of District Judges is so integrated with the exercise of his power that the power can only be exercised in the manner provided by Article 233 (1) or not at all. Normally as a matter of rule, recommendations of the High court for an appointment of a District Judge should be accepted by the State Government and the Governor should act on the same. If, in any particular case, the State Government for all good and weighty reasous finds it difficult to accept the recommendation of the High Ccurt. the State Government should communicate its view to the High Court and must have complete and effective consultation with the High Court in the matter. It must, therefore, follow that before rejecting the panel forwarded by the High Court, the State Government should have conveyed its views to the High Court to elicit its opinion. It should have taken the High Court into confidence and placed before it the difficulties that faced the Government in acting upon recommendations. The fulfilment by the Governor of his constitutional obligation to place full facts before the High Court was a precondition before the State Government could arrive at a decision not to appoint. " 25. Considering the full facts of the present case and various averments in the affidavits and counter-affidavits, we have no doubt in holding that there was no consultation at all with the High Court much less the real, full and effective consultation before issuing the impugned order contained in annexure-6. The High Court was not taken into confidence. There was no interchange of views between the High Court and the State Government so that any departure of the advice of the High Court would be explained to the high Court by the State Government. In the present case, the State Government departed from the advice of the High Court in making judicial appointments without referring to the High Court the difficulties which prevented the Government from accepting its advice. In the present case, the State Government departed from the advice of the High Court in making judicial appointments without referring to the High Court the difficulties which prevented the Government from accepting its advice. Thus, in our considered opinion, there was no consultation with the High Court within the meaning of Article 233 (1) of the Constitution before the State Government reached the decision to reject the panel forwarded by the High Court and not to make any appointment out of the said panel prepared by the High Court. Therefore, the order of the State Government contained in the letter dated 17-7-1991 contained in Annexure-6 is violative of Article 233 (1) of the Constitution and is, accordingly, quashed. 26. Another development took place when almost the arguments on behalf of the patties were nearly over. On 3-11-1991 an Ordinance known as "the Bihar Reservation of Vacancies in Courts Service (For Scheduled castes, Scheduled Tribes and other Backward Classes) Ordinance, 1991" (hereinafter referred to as "the Ordinance) was promulgated. This Ordinance provides for percentage of reservation of Scheduled Castes, Scheduled tribes and Extremely Backward Classes, Backward Classes and Economically backward Classes. Therefore, the petitioners challenged this ordinance with an additional prayer that the same may be declared as not applicable to the direct appointment of Additional District and Sessions Judges from the Bar and, further, that it is ultra rires Articles 233 (2) read with Articles 200, 245 and 309 of the Constitution. 27. The petitioners contended that they are challenging the validity of the said Ordinance by way of abundant caution so that their claim and right to be considered for appointment may not be frustrated by the sute Government on the basis of this Ordinance, in case Ihe writ applications are allowed. 28. Challenging the said Ordinance, various contentions were raised on behalf of the petitioners : - (a) Director appointment of Additional District and Sessions Judges from the Bar under Article 233 (2) lies exclusively with the High court. 28. Challenging the said Ordinance, various contentions were raised on behalf of the petitioners : - (a) Director appointment of Additional District and Sessions Judges from the Bar under Article 233 (2) lies exclusively with the High court. Therefore, the application of this Ordinance of the direct appointment circumscribes the power of the High Court and is, thus, violative of the mandate of Article 233 (2) of the constitution ; (b) The Ordinance is also violative of Article 200 of the Constitution and puts a feter upon the power of the High Court touching the independence of the judiciary and the Ordinance has been passed in derogation of the powers of the High Court. It was contended that the legislative power even under the Ordinance is subject to the Constitution and more so in a case where the fundamental rights or basic features are concerned. In the case of A. L. Kalra V/s. Project and Equipment Corporation of India ltd. , AIR 1984 SC 1361 , it was held : "wisdom of the legislative Policy may not be open to judicial review but when the wisdom takes the concrete form of Jaw, the same must stand the test of being in tune with the Fundamental Rights and if it trenches upon any of the Fundamental Rights, it is void as ordained by Article 13. Article 14 strikes at arbitrariness in executive/administrative action because any action that is arbitrary must necessarily involve the negation of equality. " (c) In the present case, the vacancy occurred prior to the amended rules and, therefore, the same would be governed by the old rules and not by the new rules. When final selection was to be made, the Government by this Ordinance purported to change the basis of selection, which is not permissible because it is violative of Articles 14 and 15 (1) of the Constitution ; (d) The rule has been made under Article 309 read with Article 233 of the Constitution. In this State, fifty per cent reservation is already being carried before this Ordinance was passed and, therefore, this Ordinance was brought in only with a view to interfere with the judicial appointments and the date 1-11-1990 was selected, as the effective date, only with a view to make the resolution of the High Court dated 24-11-1990 ineffective. In this State, fifty per cent reservation is already being carried before this Ordinance was passed and, therefore, this Ordinance was brought in only with a view to interfere with the judicial appointments and the date 1-11-1990 was selected, as the effective date, only with a view to make the resolution of the High Court dated 24-11-1990 ineffective. It was further pointed out that the dated 1-11-1990 interview of candidates in this case had been started by the High Court from that ; (e) Referring to Sec.2 (a) of the Ordinance which defines state and includes the Government, the Legislature and the Judiciary of the State of Bihar and all local or other authorities within the state or under the control of the State Government it was pointed out that the said provision intends to cover the Bihar superior Judicial Service also which is not permissible and the same is violative of Article 233 (I) of the Constitution. The judiciary of the State of Bihar will also include the High Court. It was further contended that administration of the justice is within the domain or the High Court and the independence of the judicial can be maintained only when the appointment is made in a particular manner as provided in the rules which have been framed under Article 309 read with Article 233 of the constitution ; (f) Adopting the arguments raised on behalf of the petitioners, the learned counsel appearing for the High Court further contended that there was no effective consultation before this Ordinance was introduced. Previous consultation regarding the reservation had already been rejected by the High Court and the advertisement proposed did not introduce such reservation and, therefore, it has to be construed that the State Government accepted such rejection by the High Court regarding reservation; (g) The learned Advocate General conceded and submitted that the provisions contained in Sec.2 (n) of the Ordinance should mean only the subordinate Judiciary and will not include the high Court ; (h) Relying on a decision in the case of B. S. Yadav and others V/s. State of Haryana, AIR 1981 SC 561 , it was contended that the rule making power or administrative power is not controlled by article 235 and, therefore, the only scope or examination is whether fo power of the High Court is in any against that, the petitioners also placed reliance on Paragraphs 49 and 50 of the said decision rendered in the case of B. S. Yadav (Supra) and contended that the power is subject to all other provisions of the Constitution which means that the power cannot be exercised in a manner which will lead to violation of Articles 14 and 16 or pervasive ambit of the first part ot article 235. 29. After having raised all these cantentions, finally, the petitioners limited their argument to the violation of Articles 14 and 15 of the Constitution. It was contended that a group of persons have already been appointed on the basis of the merit list and, therefore it would not be permissible for the Government now to change the basis of selection sought to be introduced by the impugned Ordinance. A few other cannot now be appointed on different conditions and/or by changing the basis of selection, which would amount to violation of Articles 14 and 15 (I) ot the Constitution. Since the contention of the petitioners has now been limited to this ground alone and no further points were pressed for consideration. We leave all other contentions open and proceed to decide the validity ot the impugned ordinance on this sols ground. 30. At the outset, we must say that it is a wise tradition with Courts not to adjudicate a Constitutional question unless it is absolutely necessary for disposal of the case in band. 31. We leave all other contentions open and proceed to decide the validity ot the impugned ordinance on this sols ground. 30. At the outset, we must say that it is a wise tradition with Courts not to adjudicate a Constitutional question unless it is absolutely necessary for disposal of the case in band. 31. In order to appreciate the above contention, it may be noticed that, in the instant case the process of selection started with an advertisement published on 28-9-1989 without disclosing any reservation tor any category in the direct recruitment of Additional District and Sessions Judge. The undisputed fact has already been enumerated in the earlier part of this judgment that for long years since 1979 no appointment to the posts of additional District and Sessions Judgs, out of the direct recruitment quota was made from the Mar and only in the year 1989 an advertisement was published calling for applications for such appointment as direct recruits from the Bar without mentioning any vacancy. Not only the process of selection commenced but it ended with the completion of the viva voce test held by the High Court which started on 3-11-1990. A merit list of 129 candidates was then prepared and out of that list 32 persons were initially recommended and appointed against the vacancies. The said merit list was valid for one year. When the 33 vacancy arose, the High Court requested the State Government with a recommendation of the 33 person in the merit list for being appointed to the said post. Instead of making such appointment out of the same merit list which was validly continuing the process was intercepted by an abrupt and unilateral decision of the State government, without stating any reason, and expressing its inability in four lines for making fresh advertisement. For the reasons already disclosed in the earlier part of our judgment we have quashed the impugned letter contained in Annexure-6. 32. While this writ petition was being argued and the arguments were at fag end and almost nearing its closure, the impugned Ordinance was brought in introducing reservation at this stage in the process of selection and appointment of direct recruits from the Bar to the posts of Additional district and Sessions Judges. 32. While this writ petition was being argued and the arguments were at fag end and almost nearing its closure, the impugned Ordinance was brought in introducing reservation at this stage in the process of selection and appointment of direct recruits from the Bar to the posts of Additional district and Sessions Judges. It may be pointed out that the said merit list had not spent its force and was valid upto November, 1991, and, therefore, any change in the process of selection in a different manner for those few others out of the same merit list would not be permission and it would be violative of Articles 14 and 15 (1) of the Constitution. Thirty-two persons as recommended out of the said merit list in accordance with their position had already been appointed and, now, for those others, who are existing at serial number 33 and onwards, out of the same merit list, which continued to be valid for one year until November, 1991 a different standard prescribed and/or different conditions laid for their appointment, even by introducing reservation would be violative of Articles 14 and 15 (1) of the Constitution. In the case of Prakash Chandra Agrawal V/s. The State of Bihar and others, air 1985 SC 1709 , while prescribing two different qualifying marks at two different stages in respect of the same examination for recruitment of munsif, the Supreme Court said : - "acceptance of the view of the High Court would also lead to anamolous result of prescribing two different stages in respect of the same examination, i. e. , one for the first batch of 83 candidates appearing in the same examination who were appointed on september 16.1982, before any dispute arose about the appointments in question and another for the next batch of 38 candidates whose names were forwarded to the Governor after judgment in the writ petitions C. W. J. C.1868 of 1983 and C. WJ. C, 2209 of 1983. This incongruity cannot be allowed to remain in existence. C, 2209 of 1983. This incongruity cannot be allowed to remain in existence. It may be that in fact there was no candidate belonging to the unreserved category who had secured less than 40 per cent marks in the written papers amongst the first batch of 83 candidates but what is relevant is the standard which was applied when the said list was prepared, that list must have been prepared without any doubt in the light of the qualifying marks fixed by the Commission and 38 percent of the unreserved category on the basis of which the viva voce test of all the candidates belonging to both the batches including the appellant had been held. That standard cannot be varied when the next list was prepared. The High Court has failed to appreciate this aspect of the case. " 33. Making such provision of the Ordinance applicable to the remaining meritorious persons in the list for direct recruitment to the posts of Additional district and Sessions Judge from the Bar would mean that recommendation of the High Court under Articles 233 (2) is being fettered by this impugned ordinance, which is impermissible. Any Ordinance taking place of legislation by the State Legislature either under Article 309 or Article 245 of the Constitution is subject to the provisions of the Constitution, Article 233 (2) of the constitution mandates that direct recruitment to the posts of Dirstrict Judges including Additional District and Sessions Judges can be made only if it is recommended by the High Court for appointment. The High Court alone is the competent authority to recommend such appointment, as the names are to be recommended by the High Court in consultation with the Governor of the State. It has been well settled by now that Article 233 of the Constitution deals with the independence of judiciary, which is one of the basic features of the Constitution. A constitutional authority cannot do indirectly which is not permitted to do directly and, in other words, this Ordinance seeks to do which could not have been done even by proper legislation. A constitutional authority cannot do indirectly which is not permitted to do directly and, in other words, this Ordinance seeks to do which could not have been done even by proper legislation. For these reasons, the contention on behalf of the petitioners confined to the challenge of the impugned ordinance in so far as its application to the case of appointment by direct recruitment Additional District and Sessions Judges from the Bar is concerned the same is upheld on the facts and in the circumstances of the present case. 34. In the case of State of Gujarat V/s. Raman Lal, Keshav Lal Soni and others, AIR 1984 SC 161 , the Supreme Court said : "no law can be made to destroy today accrued constitutional rights by artificially revering to a situation which has existed many years ago. The legislature is undoubtedly competent to legislate with retrospective effect to take away or impal any vested right acquired under existing laws but since laws are made in the written Constitution, and have to conform to the do and don of the Constitution, neither prospective nor retrospective laws can be made so as to contravene the Fundamental Rights. The law must satisfy requirements of the Constitution today taking into account the accruit or acquired rights of the parties today. " 35. In the case of Surya Narain Yadav and others V/s. Bihar State Electricity board and others, AIR 1985 SC 941 , it was said : - "whether it is an equity recognised in Ransdens case or it is some other form of equity, is not of much importance. The Courts must do justice by the promotion of honesty and goodfaith, as far as it lies in their power. " "if our nascent democracy is to thrive different standards of conduct for the people and public bodies cannot be permitted. " 36. In the case of Shri Anadi Mukta Sadguru Shree Mukatjee Vandanji swami Swarna Jayanti Mahotsav Smarak Trust and others V/s. V. R. Rudani and others, AIR 1989 SC 1607 , while considering the question of issuance of mandamus under Article 226 of the Constitution, the Supreme Court said : - "that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law. Prof. Commenting on the development of this law. Prof. De Smith states: - to be enforceable by mandamus a public duty does not necessarily have to be one imposed by the statute. It may be sufficient for the duty to have been imposed by Charter, common law, custom or even contract. (Judicial Review on Administrative Act-4th Ed. P.540). We share this view The Judicial control over the fast expanding maze of bodies affecting rights of people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226. " 37. Having given our anxious consideration to the facts and circumstances of the present case and various contentions raised by the parties, we direct the respondent State and its authorities to consider the appointment of the petitioners and others to the posts of. Additional District and Sessions judge out of the said merit list in accordance with their position existing in the merit list which continued to be valid-for one year until November, 1991. Since the date of recommendation of the 33 candidate make by the High court on 3rd June, 1991, the petitioners and other suitable candidates have suffered on account of litigation and illegal action of the respondent State and its authorities which was beyond their control, we have no option but