JUDGMENT : U. P. Singh, J. - In this writ application under Articles 226 & 227 of the Constitution the petitioners have challenged the validity of the Ordinance called (The Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Ordinance, 1991 issued by the Governor of Bihar in exercise of powers under Articles 213 of the Constitution of India. Further prayer has been made for issuing a writ of mandamus restraining the respondents from giving effect to the Ordinance in respect of 24th Judicial Services Competitive Examination held in April 1991. The validity of Annexure 4, annexed with the Supplementary Affidavit, dated 1st October 1991, issued under the signature of the Joint Secretary, Personnel and Administrative Reforms Department, Government of Bihar, addressed to the Secretary, Public Service Commission, has also been challenged by the petitioners, whereby a direction has been issued to the effect that the vacancies of 24th Judicial Competitive Examination shall be filled up in accordance with the said Ordinance (now an Act). 2. The petitioners are practicing lawyers in the Civil Court, Gopalganj. In pursuance of the advertisement published in the daily Newspaper 'Nav Bharat Times' on 3.9.90, they applied for the 24th Judicial Services Competitive Examination. The aforesaid examination was held in April 1991. The petitioners appeared in the said examination but the result is awaiting. In the meanwhile, the said Ordinance was promulgated, whereby the reservation for direct recruitment in all appointments to services and posts in a establishment, which are to be filled up by direct recruitment, has been made with effect from 1st November 1990. 3. In pari materia, the provisions of the Ordinance and the Act are the same. Section 2(c) of the Ordinance defines 'Establishment' and according to it "Establishment" means any office or department of the State concerned with the appointments to public services and posts in connection with the affairs of the Stale and includes (i) local or statutory authority constituted under any Stale Act for the time being in force, or (ii) A co-operative institution registered under the Bihar Co-operative Societies Act, 1935 (Act 6 of 1935) in which share is held by the State Government or which receives aid from the State Government or which receives aid from the State Government in terms of loan, grant, subsidy etc. and (iii) Universities and Colleges affiliated to the Universities, Primary, Secondary and High Schools and also other educational institutions which are owned or aided by the State Government and (iv) an establishment in public sector. Sub-clause (d) defines "Establishment" in public Sector" - means any industry, trade, business or occupation owned, controlled or managed by : (i) the State Government or any department of the State Government; (ii) A Government Company as defined in section 617 of the Companies Act, 1956 (Act 1 of 1956) or a Corporation established by or under a Central or State Act, in which not less than fifty one per cent of the paid-up share capital is held by the State Government. 4. Section 3 of the Ordinance states that it shall not apply in relation to : (a) any• employment under the Central Government; (b) any employment in private sector; (c) any employment in the domestic services; (d) those which are filled up by transfer or deputation; (e) those which fall vacant when a person goes on deputation; (f) temporary appointments of less than 45 days duration; (g) appointments made on compassionate ground on the death of a government servant while in service; (h) such other posts as the State Government may from time to time by order specify: Provided that every order made under this section shall be laid as soon as may be, after it is made, by the State Legislature while it is in session for a total period of fourteen days, which may comprise in one session or in two successive sessions. 5. Sections 4 provides for reservation for direct recruitment and states : All appointments in services and posts in an establishment which are to be filled by direct recruitment shall be regularised in the following manner, namely: (I) The available vacancies shall be filled up (a) from open merit category.... 50% (b) from reserved category .... 50% (2) The vacancies from different categories of reserved candidates from amongst the 50% reserved category shall subject to other provisions of this ordinance, be as follows : (a) Scheduled Castes 14% (b) Scheduled Tribes .... 10% (c) Extremely Backward Class .... 12% (d) Backward Class .... 8% (c) Economically Backward Women .... 3% (f) Economically Backward .... 50% (2) The vacancies from different categories of reserved candidates from amongst the 50% reserved category shall subject to other provisions of this ordinance, be as follows : (a) Scheduled Castes 14% (b) Scheduled Tribes .... 10% (c) Extremely Backward Class .... 12% (d) Backward Class .... 8% (c) Economically Backward Women .... 3% (f) Economically Backward .... 3% Total 50% Provided that the State Government may by notification in the official Gazette, fix different percentage for different districts in accordance with the percentage of population of Scheduled Castes/Scheduled Tribes and other backward classes in such districts : Provided further that in case of promotion, reservation shall be made only for Scheduled Castes/Scheduled Tribes in the same proportion as provided in this section. 6. Section 16 of the Ordinance mentions about the overriding effect of the Ordinance and states : Notwithstanding anything contrary in any other law and Rules for the time being in force, any judgment or decree of Court, any order, notification, circular, scheme, rule or resolution made or issued the provisions of this Ordinance shall have effect: Provided that any other law, rule for the time being in force, any order, notification, circular, scheme, resolution made, issued or passed prior to this Ordinance, so far as it is not inconsistent with the ordinance, shall continue to be in force and shall be deemed to have been. made, issued or passed under this Ordinance. 7. The appointment in. the judicial services is governed by the Rules called "Bihar Judicial Service Recruitment Rules, 1955", made by the Governor in exercise of his power conferred under Article 234 of the Constitution of India after consultation with the High Court and the Bihar Public Service Commission. 8. The validity of the said Ordinance has been challenged only in so far as its applicability to the recruitment in the subordinate judiciary is concerned and it has been contended on behalf of the petitioners that the recruitment in the subordinate judiciary could not be regulated in any other manner except by Rules framed under Article 234 of the Constitution of India. The recruitment in the subordinate judiciary is governed by the provisions contained in the Bihar Judicial Services Recruitment Rules, 1955 made by the Governor in exercise of his powers conferred under Article 234 of the Constitution of India in consultation with the High Court of Judicature at Patna and the Bihar Public Service Commission. Therefore, without amending the said Rules framed under Article 234 of the Constitution of India, reservation could not be introduced through an Act or Ordinance without following the procedure under Article 234 of the Constitution. It is contended that the said Act or Ordinance was not made after consultation with the High Court of Judicature at Patna and as such it is ultra vires Article 234 of the Constitution. The Bihar Judicial Services Recruitment Rules, 1955 did not provide any reservation for Backward classes save and except the reservation for Scheduled Castes and Scheduled Tribes. By the impugned Ordinance, the State has introduced reservation for Backward classes in the Subordinate Judiciary in the manner provided under section 4 of the Ordinance. 9. On the other hand, the contention raised on behalf of the respondents is that the power to make law is vested in the legislature and not in the High Court and thus the law making power of the Legislature is absolute and untrammelled. The impugned legislation does not infringe Article 234 of the Constitution. It was submitted that the power to make law is vested in the State Legislature of the Governor under Article 213 or Article 309 and that by making law, power of High Court with regard to its control over subordinate courts is not at all interfered with and power of control of the High Court over the subordinate courts has been kept untouched. 10. In order to appreciate the contentions raised it is relevant to notice the provisions contained in Article 234 of the Constitution: "The appointment of persons other than the District Judges to the judicial services of a State shall be made by the Governor of the State in accordance with the 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." 11. It is not in dispute that the Bihar Civil Service (Judicial Branch) (Recruitment) Rules, 1955 was framed under Article 234 of the Constitution by the Governor of Bihar after consultation with the High Court and the Bihar Public Service Commission for regulating the recruitment to the Bihar Civil Service (Judicial Branch). On a plain reading of the provisions contained in Article 234 of the Constitution, it is obvious that the appointment of persons other than the District .Judges have to be made in accordance with Rules framed under that Article. It further provides that the Rules have to be made after consultation with the State Public Service Commission and the High Court. 12. In the case of Vijay Kant Jim and others Versus State of Bihar & others (1988 B.B.C.J. 677) the grievance of the petitioners was raised in respect of appointment of 14 persons belonging to Backward Classes on the basis of reservation. Now, on the settled law, Article 16(4) of the Constitution empowers the State providing reservation of appointments or posts in favour of any backward classes or citizen which, in the opinion of the State, is not adequately represented in the services under the State. There is not much controversy now that any reservation made for backward classes on some rational basis is permissible. In the said case it was conceded by the learned Advocate General that the 1955) Recruitment Rules provided reservation only for members of Scheduled Castes and Scheduled Tribes and did not mention about such reservation in respect of the backward classes. In the said case, the contention raised by the Additional Advocate General, that the Rules only provide the procedure for selection and that it was for the State in exercise of its executive powers to decide the question of reservation, reserving different number of posts for different classes, was repelled by the Division Bench of this Court and it was held : "The Bihar Civil Services judicial Branch) (Recruitment) Rules, 1955 have been framed under Article 234 of the Constitution by the Governor of Bihar after consultation with the High Court and the Bihar Public Service Commission "for regulating the recruitment to the Bihar Civil Service (Judicial Branch)". Article 234 of the Constitution provides that appointments of persons other than the District Judges to the Judicial Service of the State shall be made by the Governor of the State "in accordance with the Rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction relating to such State." On a plain reading, appointments of persons other than District judges have to be made in accordance with the Rules framed under that Article. In other words, in accordance with the said Rules. So far as the grievance of the petitioners in respect of appointments of 14 persons on basis of the reservation, as they belong to backward classes, is concerned, that has to be examined in the context of the Rules and constitutional provisions. Article 16(4) of the Constitution vests power in the State for making any provision for reservation of appointments or posts in favour of any backward class citizen which, in the opinion of the State, is not adequately represented in the services under the State. In view of series of decisions of the Supreme Court there is not much controversy that any reservation made for backward classes on some rational basis in the light of the guidelines given by the Supreme Court is permissible. But, in the instant case, the question which has been raised is that the Rules which have been framed under the power conferred by Article 234 of the Constitution by the Governor in consultation with the Bihar Public Service Commission and the Patna High Court do not conceive of reservation for backward classes. Learned Additional Advocate General appearing for the respondents had to concede that there is no specific mention in respect of the backward classes in any of the rules; the Rules take note of only members of the Scheduled Castes and Scheduled Tribes. But, according to the learned Additional Advocate General, the Rules only provide procedure for selection, it is for the State in exercise of its executive power to decide the question of reservation, reserving different number of posts for different classes. In my opinion, this argument cannot be accepted. In the Rules, Scheduled Castes and Scheduled Tribes have been defined. But, according to the learned Additional Advocate General, the Rules only provide procedure for selection, it is for the State in exercise of its executive power to decide the question of reservation, reserving different number of posts for different classes. In my opinion, this argument cannot be accepted. In the Rules, Scheduled Castes and Scheduled Tribes have been defined. I have already pointed out that in their favour different relation in respect of appearing at the written examination, age, chances at examination, minimum qualifying marks and for inclusion in the merit list has been made in rules 5, 6, 15, 17 and 20. No such exception has been provided for any other class or citizen. As such, in the merit list any departure can be made only in respect of the members of the Scheduled Castes and Scheduled Tribes, but not in respect of any other class or category. Faced with this situation the learned Additional Advocate General submitted that in Rules 3, 4 and 19 wherever the expression "number of vacancies" are mentioned they should be read as "number of vacancies in different classes." In other words, the Governor is to inform the Commission the number of vacancies in different classes and. the Commission has to advertise those vacancies; occuring for different classes which may include even the members of the backward class. It is not possible to accept this contention. If this contention is accepted, we have to perform the function which the framers of the Constitution have vested in the Governor, Public Service Commission and the High Court. I have already pointed out that Article 234 not only required a Rule to be framed as prescribed under that Article, but also requires that the appointments be made in accordance with the Rules so framed. Once it is held that the Rules do not permit relaxation in merit in favour of a class other than Scheduled Castes and Scheduled Tribes, it is not possible for this Court to read in those rules power in favour of the State Government making reservation in respect of other classes of citizens. There is no escape from the conclusion that appointments of 14 persons belonging to backward classes on the basis of reservation, have been made in contravention of the Rules which shall render their appointments illegal and invalid." 13. There is no escape from the conclusion that appointments of 14 persons belonging to backward classes on the basis of reservation, have been made in contravention of the Rules which shall render their appointments illegal and invalid." 13. In my view Article 309 of the Constitution empowers the Governor to make rules regulating the recruitment and the conditions of service of persons appointed to the Civil Services of the State. But that Article, as its opening words themselves indicate, is subject to other provisions of the Constitution. Article 234 is one such provision. The power of the Governor to make rules under Article 309 of the Constitution is not only subject to any Act of the appropriate legislature. But the Rules to be made by the Governor under Article 234 are not subject to any Act that may be enacted by the appropriate Legislature. They can be made only after consultation with the State Public Service Commission and the High Court. 14. Article 234 directs the appointment of persons to certain cadres of the judicial service of the State only in accordance with the Rules made under that Article and which appoints the Governor of, the State, the authority to make these rules after consultation with the High Court and the Public Service Commission. It is manifest from Article 234 of the Constitution that the constitutional intent was that appointments to the judicial services in a State, unlike other State services, should be regulated only by rules made under that Article and not by a law made by the Legislature of the State, which was conferred power by Article 309 to make laws for recruitment to other services. The judicial service was selected for special treatment and appointments to it were excepted out of the operation of Article 309, and out of the orbit of ordinary Legislative Control. Article 234 incorporates a command of the Constitution on the subject of appointments to the cadres of the judicial service referred to in it and constitutes the Governor in a sense a select Legislative organ for the enactment of rules for the accomplishment of that constitutional purpose. The status of the rules so enacted is as high as that of a law made by the Legislature under Article 309 and of the Rules made under the proviso to it. The status of the rules so enacted is as high as that of a law made by the Legislature under Article 309 and of the Rules made under the proviso to it. The attributes of a Governor to enact Rules under Article 234 therefore resemble those of a Legislature enacting legislation in its own legislative field. The similitude between the power of the Legislature and the power of the Governor being so obvious, it is clear that the bounds of permissible delegation in each case should also be similar. 15. It is clear that no rule relating to the appointment of the persons mentioned in Article 234 of the Constitution can be validly made by the Governor without consulting the High Court and the Public Service Commission. Article 234 which imposes on the Governor a constitutional duty to enact Rules also confers power exercisable for its discharge and that power undoubtedly involves the exercise of the discretion by the Governor as to what the rules should be. It is by the exercise of such discretion that he determines in consultation with the High Court and. the Public Service Commission, the method to be adopted for making the appointments, the principles on which they should be made, and the standards by which the suitability of the person to be appointed should be judged. 16. The consultation with the High Court under Article 234 of the Constitution is not something nominal. It is the very essence of the matter. It must be borne in mind that our constitution visualises the separation of the judiciary from the executive. It is no doubt true that the judicial service is also one of the State Services. But it has got its own individualistic character. Unlike the other services of the State, the judicial service is expected to be independent of the executive. Often times, it has to pronounce on the legality of an action taken by the Government or even the Governor. Such being the case, it would not be proper to consider the judicial branch as being just one of the branches of the State. It is for that reason, the Constitution makers thought it 'proper to make separate provisions for the appointment of judicial officers. The consultation with the High Court and• the Commission is imperative. Such being the case, it would not be proper to consider the judicial branch as being just one of the branches of the State. It is for that reason, the Constitution makers thought it 'proper to make separate provisions for the appointment of judicial officers. The consultation with the High Court and• the Commission is imperative. Thus, any variation in the Bihar Civil Services (Judicial Branch) (Recruitment) Rules, 1955 framed under Article 234 of the Constitution by the Governor of Bihar made after consultation with the High Court and the Bihar Public Service . Commission for regulating the recruitment to the Bihar Civil Service (Judicial Branch) could be made only under Article 234 and in accordance with the requirements of that Article. The impugned Ordinance does not comply with the requirements of Article 234. 17. Article 234 postulates not only a rule to be framed as prescribed under that Article, but it also requires the appointments to be made in accordance with the Rules so framed. It has been shown above that the recruitment Rules, 1955 did no provide any reservation in favour of any class other than Scheduled Castes and Scheduled Tribes, and, therefore, it is not possible to read in those Rules, power in favour of the State Government making reservation in respect of other class of citizens. The provision for consultation is not an empty formality. Consultation or deliberation is not complete or effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other who has counter-proposal in his mind which' is not communicated to the proposer, the direction to give effect to the counter-proposal without anything more, cannot be said to have been done after consultation (A.I.R. 1982 S.C.1579). 18. For the reasons aforesaid the contention raised on behalf of the respondents is rejected. The impugned Ordinance (now an Act) as contained in Annexure 1 as also the letter dated 1.10.1990 contained in Annexure 4, only in so far as its applicability to the recruitment of persons other than District Judges to the judicial services of the State is concerned, is held to be ultra-vires Article' 234 of the Constitution. 19. In the result this application is allowed but without any order as to cost.