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Telangana High Court
Shaik Mahammad Imran vs The State Of Telangana on 3 May, 2024
Author: N.Tukaramji
Bench: N.Tukaramji
THE HON'BLE SRI JUSTICE SUJOY PAUL
AND
THE HON'BLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION Nos.12636, 12983, 12886, 11452, 11843,
12165, 12189, 12762, 12846 and 13155 of 2024
COMMON ORDER:
(Per Hon'ble Sri Justice Sujoy Paul)
1. These batch of petitions challenge the constitutionality of Rule (5.2) (A) of the Telangana State Judicial Services Rules, 2023 (Rules of 2023).
2. A batch of petitions challenging the same Rules came up for consideration before this Bench on 02.05.2024 and those Writ Petitions were decided by a common order. The petitioners in these matters have raised similar points which have been raised in previous batch of petitions which were decided by common order dated 02.05.2024.
W.P.No.12636 of 2024:
3. In this petition, the petitioners raised two fold submissions. It is submitted that few petitioners have crossed the maximum age of 26 years and prescription of maximum age is unconstitutional. The 2 second attack is on prescription of 60% of marks for Open Category (OC) candidates and 55% of marks for others.
W.P.No.12983 of 2024:
4. It is submitted that Rules 2 (k) and (5.2) (A) are worded in such a fashion which permits Advocates practicing in the Courts of Telangana alone to participate in this selection. This promotes provincialism.
W.P.Nos.12886, 11452, 11843, 12165, 12189, 12762, 12846 and 13155 of 2024:
5. In these petitions the grounds of attack on Rules of 2023 are
(a) the minimum and maximum age prescribed are bad in law and
(b) the requirement of Bar Association Certificate of concerned Bar and (c) confining the selection of Advocates of Telangana State alone is bad in law.
6. The petitioners in W.P.No.12846 of 2024 urged that petitioner completed his LLB in August, 2023. He is 32 years of age and OBC candidate, yet he is held to be ineligible because he is more than 26 years of age.3
7. The learned counsel for petitioners argued in the same lines on which arguments were advanced yesterday i.e., on 02.05.2024.
8. Sri Harender Pershad, learned Senior Counsel appearing for respondents has reiterated the stand which he has taken in W.P.No.12527 of 2024 and batch.
9. We have passed a detailed order declining admission of the aforesaid batch of petitions. We are inclined to follow the same view while dealing with the same argument.
10. The singular different point raised is in W.P.No.12636 of 2024 where challenge is mounted to percentage of marks i.e., 60 and 55 for OC candidates and others respectively. This point raised is also no more res integra. The High Court of Madhya Pradesh in Devanch Kaushik vs. State of Madhya Pradesh1 considered this aspect in sufficient detail and held as under:
"I.B The requirement of securing 70% marks in aggregate violates Articles 14, 16 and 19(1)(g) of the Constitution of India:
33. (a) It is contended that the amendment does not satisfy the test of equality. It violates Articles 14, 16 and 19(1)(g) of the Constitution of India. That the score in an exam is not the sole criterion to determine excellence or capability. That it is not the only 1 2024 SCC OnLine MP 2272 4 value that is considered as a social good. Merit should be assessed if it mitigates or entrenches inequalities. Therefore, it is contended that securing 70% marks in aggregate, in the first attempt, cannot form the only basis of merit. Since the object of the respondents is to ensure that meritorious candidates are selected, the impugned amendment does not satisfy the said requirement. It is therefore contended that, the requirement of securing 70% marks in aggregate, distinguishes those candidates who have not secured 70% marks in aggregate. That a class in a class is sought to be made by the impugned amendment. That all law students are alike as long as they have passed the exam and obtained a law degree. There cannot be a distinction between one who has secured 70% marks and above in aggregate and another who has secured less than 70% marks in aggregate. Therefore, it offends Articles 14, 16 and 19(1)(g) of the Constitution of India. The right of equality is being denied to the students who have secured less than 70% marks in aggregate.
(b) It is further contended that the requirement of securing 70% marks in aggregate in the law degree is neither just nor fair. That there are certain universities which are extremely liberal in granting marks whereas there are other universities, which are extremely strict in granting marks. Therefore, the candidates who are studying in a strict university would secure less marks and a candidate studying in a liberal university would secure high marks, even though the merit of the two candidates may be similar. Reliance is placed on the judgment of the Hon'ble Supreme Court in the case of Neil Aurelio Nunes v. Union of India, (2022) 4 SCC 1 with reference to paras 37 and 39 to 43, which reads as follows:--
"37. At the best, an examination can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence, [Satish Deshpande, "Pass, Fail, Distinction :
The Examination as a Social Institution", Marjorie Sykes Memorial Lecture, Regional Institute of Education, Ajmer, 3-3-2010, published by the National Council for Educational Research and Training, New Delhi.] which are also shaped by lived experiences, subsequent training and individual character. The meaning of "merit" itself cannot be reduced to marks even if it is a convenient way of distributing educational resources. When examinations claim to be more than systems of resource allocation, they produce a warped system of ascertaining the worth of individuals as students or professionals. Additionally, since success in examinations results in the ascription of high social status as a "meritorious individual", they often perpetuate and reinforce the existing ascriptive identities of certain communities as "intellectual" and "competent" by rendering invisible the social, 5 cultural and economic advantages that increase the probabilities of success. Thus, we need to reconceptualise the meaning of "merit". For instance, if a high-scoring candidate does not use their talents to perform good actions, it would be difficult to call them "meritorious"
merely because they scored high marks. The propriety of actions and dedication to public service should also be seen as markers of merit, which cannot be assessed in a competitive examination. Equally, fortitude and resilience required to uplift oneself from conditions of deprivation is reflective of individual calibre.
*** *** ***
39. However, after contextualising the meaning of merit, in the next paragraph this Court reverted to equating the selection process adopted for admission to merit. However, irrespective of the true purport of merit, this Court notes that the selection process for admission must satisfy the test of equality. This Court observed thus: (Pradeep Jain case [Pradeep Jain v. Union of India, (1984) 3 SCC 654], SCC pp. 676-77, para 13) "13. We may now proceed to consider what are the circumstances in which departure may justifiably be made from the principle of selection based on merit. Obviously, such departure can be justified only on equality-oriented grounds, for whatever be the principle of selection followed for making admissions to medical colleges, it must satisfy the test of equality. Now the concept of equality under the Constitution is a dynamic concept. It takes within its sweep every process of equalisation and protective discrimination. Equality must not remain mere idle incantation but it must become a living reality for the large masses of people. In a hierarchical society with an indelible feudal stamp and incurable actual inequality, it is absurd to suggest that progressive measures to eliminate group disabilities and promote collective equality are antagonistic to equality on the ground that every individual is entitled to equality of opportunity based purely on merit judged by the marks obtained by him. We cannot countenance such a suggestion, for to do so would make the equality clause sterile and perpetuate existing inequalities. Equality of opportunity is not simply a matter of legal equality. Its existence depends not merely on the absence of disabilities but on the presence of abilities. Where, therefore, there is inequality, in fact, legal equality always tends to accentuate it. What the famous poet William Blake said graphically is very true, namely, "One law for the Lion and the Ox is oppression". Those who are unequal, in fact, cannot be treated by identical standards; that may be equality in law but it would certainly not be real equality. It is, therefore, necessary to take into account de facto inequalities which exist in the society and to take affirmative action 6 by way of giving preference to the socially and economically disadvantaged persons or inflicting handicaps on those more advantageously placed, in order to bring about real equality. Such affirmative action though apparently discriminatory is calculated to produce equality on a broader basis by eliminating de facto inequalities and placing the weaker sections of the community on a footing of equality with the stronger and more powerful sections so that each member of the community, whatever is his birth, occupation or social position may enjoy equal opportunity of using to the full his natural endowments of physique, of character and of intelligence. We may in this connection usefully quote what Mathew, J., said in Ahmedabad St. Xavier's College Society v. State of Gujarat [Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717] : (SCC p. 799, para 132) '132. ... it is obvious that "equality in law precludes discrimination of any kind; whereas equality in fact may involve the necessity of differential treatment in order to attain a result which establishes an equilibrium between different situations." [The Advisory opinion on Minority Schools in Albania, 6-4-1935 publications of the Court, Series A/B No. 64, p. 19.]' We cannot, therefore, have arid equality which does not take into account the social and economic disabilities and inequalities from which large masses of people suffer in the country. Equality in law must produce real equality; de jure equality must ultimately find its raison d'être in de facto equality. The State must, therefore, resort to compensatory State action for the purpose of making people who are factually unequal in their wealth, education or social environment, equal in specified areas. The State must, to use again the words of Krishna Iyer, J., in Jagadish Saran case [Jagadish Saran v. Union of India, (1980) 2 SCC 768] : (SCC p. 782, para 29) '29. ... weave those special facilities into the web of equality which, in an equitable setting, provide for the weak and promote their levelling up so that, in the long run, the community at large may enjoy a general measure of real equal opportunity. ... equality is not negated or neglected where special provisions are geared to the larger goal of the disabled getting over their disablement consistently with the general good and individual merit.'' The scheme of admission to medical colleges may, therefore, depart from the principle of selection based on merit, where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals."
(emphasis in original) 7
40. It is important to clarify here that after the decision in N.M. Thomas [State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 : 1976 SCC (L&S) 227] there is no constitutional basis to subscribe to the binary of merit and reservation. If open examinations present equality of opportunity to candidates to compete, reservations ensure that the opportunities are distributed in such a way that backward classes are equally able to benefit from such opportunities which typically evade them because of structural barriers. This is the only manner in which merit can be a democratising force that equalises inherited disadvantages and privileges. Otherwise claims of individual merit are nothing but tools of obscuring inheritances that underlie achievements.
41. If merit is a social good that must be protected, we must first critically examine the content of merit. As noted above, scores in an exam are not the sole determinant of excellence or capability. Even if for the sake of argument, it is assumed that scores do reflect excellence, it is not the only value that is considered as a social good. We must look at the distributive consequences of merit. Accordingly, how we assess merit should also encapsulate if it mitigates or entrenches inequalities. As Amartya Sen argues:
"If, for example, the conceptualization of a good society includes the absence of serious economic inequalities, then in the characterization of instrumental goodness, including the assessment of what counts as merit, note would have to be taken of the propensity of putative merit to lessen--or generate--economic inequality. In this case, the rewarding of merit cannot be done independent of its distributive consequences.
*** In most versions of modern meritocracy, however, the selected objectives tend to be almost exclusively oriented towards aggregate achievements (without any preference against inequality), and sometimes the objectives chosen are even biased (often implicitly) towards the interests of more fortunate groups (favouring the outcomes that are more preferred by "talented" and "successful"
sections of the population). This can reinforce and augment the tendency towards inequality that might be present even with an objective function that inter alia, attaches some weight to lower inequality levels." [Amartya Sen, "Merit and Justice" in Arrow K.J., et al (Eds.), Meritocracy and Economic Inequality (Princeton University Press, 2000).]
42. A similar understanding of merit was advanced by this Court in B.K. Pavitra [B.K. Pavitra v. Union of India, (2019) 16 SCC 129], where this Court held : (SCC p. 218, para 131) 8 "131. Once we understand "merit" as instrumental in achieving goods that we as a society value, we see that the equation of "merit" with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value."
43. An oppositional paradigm of merit and reservation serves to entrench inequalities by relegating reserved candidates to the sphere of incompetence, and diminishing their capabilities. We have already stated that while examinations are a necessary and convenient method to allocate educational resources, they are not effective markers of merit. The way we understand merit should not be limited to individual agency or ability (which in any event is not solely of our own doing) but it should be envisioned as a social good that advances equality because that is the value that our Constitution espouses. It is important to note that equality here does not merely have a redistributive dimension but also includes recognising the worth and dignity of every individual. The content of merit cannot be devoid of what we value in society. Based on the above discussion, we find it difficult to accept the narrow definition of merit (that is, decontextualised individual achievement). We believe such a definition hinders the realisation of substantive equality."
34. The respondents while objecting to the same have stated in their statement of objection, that the petitioners' claim that the requirement of 70% is arbitrary, is not acceptable. It is submitted that it is the prerogative of the recruitment agency to decide the benchmark and qualifications as per their requirements. Further, brilliant candidates have been granted an opportunity to appear without the requisite three years experience at the bar. All candidates are subject to uniform rules. The decision to amend the rules has been taken after due consideration so as to have only the best candidates as Judges. Judicial services cannot be equated with other services, as judicial officers are concerned with dispensation of justice. In the present case a criterion has been prescribed to attract an outstanding law graduate with a brilliant academic career.
35. (a) On considering the contentions, we are of the considered view that the aforesaid judgment is not applicable to the case on hand. In the aforesaid judgment of the Hon'ble Supreme Court, what was being considered was the permissibility of reservations in the All India Quota seats and the constitutionality of the OBC and EWS reservation in the All India Quota seats. Therefore, the issue for consideration was whether reservation was permissible in the AIQ 9 seats and whether the reservation for OBC and EWS in the AIQ seats is constitutionally valid. In the course of discussion, the Hon'ble Supreme Court noted that marks alone cannot form the criteria to assess the merit of the candidates. The social background and other factors have to be considered in order to offer a level playing field to all the candidates. There are candidates who, based on their education background etc. were able to obtain high marks. On the other hand, there were candidates who due to their social background, inadequacy etc. were not in a position to obtain high marks. Therefore if an equal opportunity is to be granted to all, then the marks alone cannot form the said criteria. In order that equals be treated alike, reservations were granted for the particular seats in question. In so holding the Hon'ble Supreme Court came to the view that an individual's potential, capability or excellence come from the background of experiences, training, character etc. Therefore, the underprivileged could not necessarily compete with others, if merit in terms of marks alone becomes the criteria. Therefore, in order to have a level playing field, the reservation granted to the said category was upheld. It is in this background, the Hon'ble Supreme Court made references to the fact that marks alone does not reflect the competence or otherwise of the candidate. Other factors also would have to be considered. However, that is not the case herein. The very requirement in terms of the judgment of the Hon'ble Supreme Court is that one should be an outstanding law graduate with a brilliant academic career. However, relaxation in the marks has been granted in the case of candidates belonging to the Scheduled Castes and the Scheduled Tribes to ensure equality and a level playing field. Similar is the situation in the aforesaid judgment of the Hon'ble Supreme Court where reservations were provided for certain reserved categories.
(b) Furthermore, it could be seen that there has to be some criteria to assess a candidate. For example, for the candidates appearing in the exam in the police department or the army, one of the criteria is physical statistics. If a person does not have the requisite height or other requirements, he is disabled. This is so because the particular job requires the particular requirements. Therefore, one cannot say that the right to equality has been violated only because he does not have the requisite height but is otherwise meritorious. However, so far as the examination to the post of a Civil Judge is concerned, what is relevant is the merit of the candidate, who has the potential to become a good judge. Such potentiality can be measured based on his previous performances in the academic examinations, which are in turn reflected into marks. Therefore, what the candidate 10 deserves or what he is capable of, is based on the marks that he obtains. Therefore, the assessment of the candidate, on the basis of marks is a criteria to determine the merit or otherwise of the candidate. On the other hand, if the contention of the petitioners is to be accepted, that marks cannot form a criteria to judge merit, then in such an event, every candidate would become eligible whether he has passed or failed. In furtherance to the contention of the petitioners, it could be said that if marks are not the criteria to assess the candidate, then, even though a candidate has failed, he has abundance potentiality and capability to be a good judge. Therefore, according to the petitioners, a candidate who secures 40% marks is equivalent to a candidate who secures 90% marks. Therefore, the contention of the petitioners appears to be fallacious. The marks of the candidate is certainly a criteria to assess his merit.
(c) Further, it could be seen that in terms of the judgment of the Hon'ble Supreme Court as aforesaid, outstanding law graduates with a brilliant academic career were permitted to compete in the exam. Who is brilliant and what is a brilliant academic career has not been defined. Therefore, in order to define what is brilliance and what is a brilliant academic career, the said criteria has been adopted. It is in furtherance to the direction issued by the Hon'ble Supreme Court. If the contention of the petitioners is to be accepted then each and every law graduate would be eligible to compete in the exam, which would go against the direction of the Hon'ble Supreme Court. When the direction of the Hon'ble Supreme Court is to allow brilliant law graduates with a brilliant academic career to compete, the same is achieved by defining it as 70% marks in aggregate. Therefore, we are of the view that the contention of the petitioners on this score, cannot be accepted.
36. (a) The judgment of the Hon'ble Supreme Court in para 32 in the case of All India Judges' Association v. Union of India, (2002) 4 SCC 247 is the acceptance of the recommendation made by the Shetty Commission. The recommendation of the Shetty Commission with regard to this issue at hand is as follows:--
"8.35 If intensive training is given to young and brilliant law graduates, it may be unnecessary to prescribe three years practice in the Bar as a condition for entering the judicial service. It is not the opinion of any High Court or State Government that induction to service of fresh law graduates with brilliant academic career would be counter-productive. We consider that it is proper and necessary to reserve liberty to High Court and State Governments, as the case may be, to select either Advocates with certain standing 11 at the Bar or outstanding law graduates with aptitude for service. It is not correct to deny such discretion to High Authorities like, High Courts and State Governments."
(emphasis supplied) 8.36 Those High Courts and State Governments who are interested in selecting the fresh law graduates with a scheme of intensive induction training may move the Supreme Court for reconsidering the view taken in All India Judges' Association Case for deleting the condition of three years standing as Advocate for recruitment to the cadre of Civil Judges (Jr. Divn.). We trust and hope that the Supreme Court will reconsider that aspect."
(b) The Hon'ble Supreme Court in para 32 of the judgment in the case of All India Judges' Association v. Union of India, (2002) 4 SCC 247 held as follows:--
"32. In All India Judges' Assn. case [(1993) 4 SCC 288 : 1994 SCC (L&S) 148 : (1993) 25 ATC 818] (SCC at p. 314) this Court has observed that in order to enter the judicial service, an applicant must be an advocate of at least three years' standing. Rules were amended accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities, that the need for an applicant to have been an advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned amicus curiae that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of at least three years' standing. We, accordingly, in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter the judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted training of not less than one year, preferably two years.."
(emphasis supplied) 12
(c) It was stated by the Hon'ble Supreme Court, that by taking all the circumstances into consideration, the recommendation made by the Shetty Commission was accepted and also the argument of the learned amicus curiae that it should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of at least three years standing. The language used in the recommendation of the Shetty Commission is to young and brilliant law graduates with a brilliant academic career. In the very same paragraph, it is narrated that a brilliant law graduate is also referred to as an outstanding law graduate. Therefore, it has to be presumed that a brilliant law graduate and an outstanding law graduate, constitute one and the same class of law graduates.
(d) The said para would also indicate that such brilliant law graduates would have to undergo a training preferably for two years in comparison with a lawyer with a three years practice who has been appointed as a judge. Therefore, the importance of training, experience etc. for fresh law graduates was an important consideration before the Hon'ble Supreme Court. The earlier position was that it was mandatory for a candidate to have a practice for three years before he seeks to compete in the exam. A window was created to allow outstanding law graduates with a brilliant academic career to participate in the exam, ostensibly on the ground that a brilliant law graduate with a brilliant academic career who undergoes a two years intensive training may substitute a three years experience of an advocate. Therefore, probably a three years experience was co-related to an outstanding law graduate with a brilliant academic career with the aforesaid training. It is for this reason that a candidate who is neither brilliant nor who has a brilliant academic career could never ever substitute a three years practice. Therefore, the intention of the recommendation by the Shetty Commission was probably to the effect that a three years practice can be equated only with such a law graduate who is an outstanding law graduate and who has a brilliant academic career with training. Therefore, one who does not possess the said requirement, would necessarily have to practise for three years in order to compete in the exam. If not, it could be said that any law graduate who has passed in any manner whatsoever, even by failing in subjects, can always be compared to a candidate who has put in three years experience. Hence, a window is open only for an outstanding law graduate with a brilliant academic career who could be considered as an equivalent to an advocate who has put in three years experience.
13(e) Who is a young and brilliant law graduate with a brilliant academic career, has neither been defined by the Shetty Commission, nor by the judgment of the Hon'ble Supreme Court. It is this, that is sought to be defined by virtue of the impugned amendment. According to the Oxford English Reference Dictionary (Second Edition), the word 'brilliant' means "outstandingly talented or intelligent". As per the Chambers Dictionary, the word 'brilliant' is defined as "excellent; exceptionally good" also "outstanding intelligence or talent". A brilliant law graduate by the very term used, is not an ordinary law graduate. One becomes a law graduate and is categorized based on the marks that he obtains. For example, in the grading of marks, the bottommost is the one who has failed, thereafter a pass class, followed by a second class, then a first class, then a distinction, then probably one who has maxed the papers, as follows:--
Less than 35 marks = Fail 35 to 45 marks = Pass class 45 to 60 marks = Second class 60 marks and above = First class 70 marks and above = Distinction
(f) The aforesaid is narrated only as an example, since the marks may vary slightly from university to university. However, the classification of the students is generally done in the aforesaid categories. Therefore, while attempting to define, who is a brilliant law graduate, it can necessarily not be those who have secured less than a distinction. If a student has secured less than a distinction, then he would be called a first class law graduate or a second class law graduate or a pass class law graduate based on the marks that he secures. The definition of 'outstanding' is somebody who is par excellent. As per Collins Cobuild English Language Dictionary, the meaning of 'outstanding' is "abilities and achievements are very remarkable and impressive". The meaning of 'outstanding' as per Merriam-Webster dictionary is "marked by eminence and distinction". Therefore, in real terms an outstanding law graduate is one who has secured somewhere close to the maximum number of marks possible. However, keeping in mind various factors, the High Court has thought it fit and appropriate to define a brilliant 14 law graduate as one who has secured 70% and above in the aggregate.
(g) The second requirement is that it is not sufficient to be a brilliant law graduate but one has also to possess a brilliant academic career. Having defined who is a brilliant law graduate, what constitutes a brilliant academic career needs to be considered. Therefore, the reference is not just being a brilliant or an outstanding law graduate, but he must also possess a brilliant academic career. When a brilliant law graduate has been defined as one who possesses 70% in aggregate, necessarily a brilliant academic career cannot include one who has failed in any subject. In case a candidate has failed in any subject, necessarily he cannot be considered to possess a brilliant academic career. We need not labour much on this point since it is quite clear that brilliance and failure are antonyms. The issue pertaining to a candidate who has failed has been dealt with in detail in Chapter I Part I.C and hence, the same may be read herein also. Therefore, the contention that the impugned amendment is ultra vires the Constitution of India, in our considered view, cannot be accepted.
(h) The requirement is to be an outstanding law graduate who has secured 70% marks in aggregate in all subjects in the first attempt and who has a brilliant academic career. The requirement of having 70% marks in aggregate would act as an indicator of the brilliance of the candidate. This is in juxtaposition with a candidate obtaining high marks only in the final year exam. If a candidate obtains high marks only in the final year exam, he cannot be said to be possessing a brilliant academic career. Brilliant academic career therefore implies consistency throughout his academic career. On the other hand, obtaining high marks only in the final year exam is not proof of a brilliant academic career. The question of obtaining 70% marks in aggregate in the first attempt has already been discussed hereinabove. However, to constitute a brilliant academic career, a student must be consistent in his brilliance. Therefore, during the course of his career, he should secure appropriate marks and not just in the final year exam. Therefore, the effort and result of the student should be consistent throughout his law degree course. It is not sufficient that he ignores all the exams and concentrates only in the final year exam to obtain marks. Hence, the requirement of a brilliant academic career would mean obtaining appropriate marks throughout his law degree course and not just in the final year exam.
15(i) Furthermore, equality before law as enunciated in Article 14 of the Constitution of India is that there shall not be a denial of any person equality before law or equal protection of the laws within the territory of India. The impugned amendment does not violate Article 14 of the Constitution of India since an equal opportunity has not been denied to the petitioners. Furthermore, so far as Article 19(1)(g) of the Constitution of India is concerned, by the impugned amendment, the right to practise any profession, or to carry on any occupation, trade or business has not been affected. It is for the candidate to choose as to from what source, he would like to apply for the said post. The option given to him is twofold. He could either be an advocate who has practised for three years or an outstanding law graduate with a brilliant academic career.
(j) It is needless to mention that all restrictions imposed on fundamental rights cannot be said to be invalid. The restriction imposed herein necessarily flows from the judgment of the Hon'ble Supreme Court in the case of All India Judges' Association v. Union of India, (2002) 4 SCC 247. The Hon'ble Supreme Court deleted the mandatory condition of a three years practice. What was done away with was a mandatory condition. However by the impugned amendment, it is no longer a mandatory condition but an optional condition. Therefore, the contention that Article 19(1)(g) of the Constitution of India is violated, in our considered view, cannot be accepted.
(k) The requirement is that a brilliant law graduate with a brilliant academic career can compete for the exam. This is intended to ensure that the finest of law graduates would turn out to be the finest of judges which in turn would lead to qualitative judgments being rendered. This is in comparison with law graduates who are not outstanding and cannot be compared with the outstanding law graduates. The requirement of obtaining 70% marks in aggregate is to ensure the desired object of enhancing the quality in the justice delivery system. By enhancing the quality of the judgments, the ultimate benefit directly goes to the litigants, namely the citizens of this country. It is in order to ensure that they receive the highest quality of judgments that such a requirement has been introduced. The requirement is to achieve excellence in the justice delivery system in order that the litigants receive a corresponding excellent result. This would be the object of the legislation. Therefore, in order 16 to achieve this object, the instant amendment has been brought about.
(l) So far as the classification is concerned, the same is directly relatable to the object sought to be achieved. The impugned amendment has a direct nexus with the object sought to be achieved. The said issue is being considered by this Court under Chapter I Part I.D relatable to the impugned amendment having a nexus with the object sought to be achieved. Therefore, it may not be necessary to repeat the same herein. For the reasons assigned in Chapter I Part I.D, the classification of law graduates between those who have secured 70% in aggregate and those who have not, is a just and fair classification which promotes the object sought to be achieved of ensuring excellence and quality in the justice delivery system.
(m) It is further contended that due to various reasons, the petitioners were not in a position to obtain 70% marks in aggregate. For instance, during the period of Covid, they could not secure appropriate marks. In some cases a student was unwell or for various other reasons, he could not write the exam effectively and as a result of which he has secured lesser marks than 70% in aggregate and in some cases he may have also failed. Therefore, the impugned rule requires to be set aside since it causes harm and hardship to the petitioners. The same is disputed by the learned counsel for the respondents.
(n) We are unable to accept such a contention of the petitioners. The plea that they could not secure enough marks either because of Covid or because of they being unwell or for other reasons and as a consequence of which, they have obtained less marks which has caused hardship to them, cannot be accepted. The question of hardship or otherwise would only arise when on a plain reading of the rule the only interpretation that could be made is that it leads to hardship. The grievance of hardship to the petitioners, cannot constitute a ground to read the impugned rule as being unconstitutional or ultra vires the Constitution. The impugned rule should be read for what it is intended and nothing beyond that. On the other hand, scores of students fall within the requirements of the rule. Therefore, the contention of the petitioners is personal and not universal.
17(o) With regard to hardship and construing a statute, the Hon'ble Supreme Court in the case of Dr. Ajay Pradhan v. State of Madhya Pradesh, (1988) 4 SCC 514 held in para 7 as follows:--
"7.....If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary sense and give them full effect. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of construction. Where the language is explicit its consequences are for Parliament, and not for the courts, to consider."
(emphasis supplied)
(p) Therefore, no other interpretation could be made as sought to be made by the petitioners. The question of hardship and other reasons that are assigned by the petitioners as to why they have obtained less marks cannot be considered by the court. In the aforesaid judgment of the Hon'ble Supreme Court, it was held that the argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are alternative methods of constructions. It was further held that consequences of the amendment are not the concern of the court but that of the Parliament or the authority which has made the legislation.
(q) In the case of Philips India Ltd. v. Labour Court, Madras, (1985) 3 SCC 103, the Hon'ble Supreme Court held in para 15 as follows:--
"15. No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus......."
(r) In the case of Lt. Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140, the Hon'ble Supreme Court in para 8 held as follows:--
"8. The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of 18 construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act."
(s) The language used in the instant amendment is neither ambiguous nor calls for any interpretation. The expression used in the amendment is clear and cogent.
(t) Therefore, a reading of the impugned rule does not suggest that there is any ambiguity in the language or that it leads to absurdity. The intention of making the rule has to be seen. It is only when the reading of the rule would lead to absurdity, that external aids of construction can be resorted to. The Court has to ascertain whether the literal meaning of the rule calls for any interpretation or not. Whether the rule causes inconvenience or hardship is not the consideration of the Court. It is suffice for the Court to ascertain as to whether the impugned rule has any nexus with the object sought to be achieved. If that is established, the question of hardship would take a back seat.
(u) The Hon'ble Supreme Court in the case of Mohd. Hanif Quareshi v. State of Bihar, 1957 SCC OnLine SC 17 has observed in para 21 as follows:--
"21. Clause (6) of Article 19 protects a law which imposes in the interest of the general public reasonable restrictions on the exercise of the right conferred by sub-clause (g) of clause (1) of Article 19. Quite obviously it is left to the court, in case of dispute, to determine the reasonableness of the restrictions imposed by the law. In determining that question the court, we conceive, cannot proceed on 19 a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (6), the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot be decided on that basis. What the court has to do is to consider whether the restrictions imposed are reasonable in the interests of the general public. In the State of Madras v. V.G. Row [(1952) 1 SCC 410 : 1952 SCR 597, 607] this Court has laid down the test of reasonableness in the following terms:
"It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable."
These observations have been adopted by this Court in later cases, e.g. The State of West Bengal v. Subodh Gopal Bose [(1953) 2 SCC 688 : 1954 SCR 587, 627] and Ebrahim Vazir Mavat v. The State of Bombay [(1954) 1 SCC 194 : 1954 SCR 933, 949-950]. In this connection it will also be well to remember the observation of Mahajan, J., in The State of Bihar v. Maharajadhiraj Sir Kameshwar Singh of Dharbangha [(1952) 1 SCC 528 : 1952 SCR 889, 941], namely, that "the legislature is the best judge of what is good for the community, by whose suffrage it comes into existence......". This should be the proper approach for the court but the ultimate responsibility for determining the validity of the law must rest with the court and the court must not shirk that solemn 20 duty cast on it by the Constitution. We have, therefore, to approach the problem now before us in the light of the principles laid down by this Court".
(v) Therefore, the reasonableness of the restriction has to be determined in an objective manner keeping in mind the interest of the general public and not the interest of the petitioners or a restricted class of society. In the instant case that is exactly what is being contended by the petitioners in support of their individual cases. Moreover, the hardship pleaded is by some of the petitioners. It is not a hardship for each and every law graduate in the country. The personal reasons of some of the petitioners cannot be a ground to consider the rule to be bad. In the larger interest of the society, namely the interest of the litigants, the attempt is to have outstanding law graduates with a brilliant academic career to be eligible to compete for the exam. Therefore, the quality of the judge is extremely important to the object sought to be achieved of having quality dispensation of justice. That is the requirement of the society namely the litigants and even if it runs contrary to the interest of certain individuals like the petitioners, the cause of the litigants would far outweigh the personal requirements of the petitioners.
(w) The contention that students in different universities secure different marks, which therefore leads to disparity in assessing the merit of the candidates, in our considered view, cannot be accepted. Whether a student obtains high marks or low marks, is not only dependent on the university. It may be dependent on the lecturer or professor correcting the examination papers. It cannot be said that one university is strict and another is liberal. For example, a strict lecturer in a liberal university will continue to be a strict lecturer and will not become a liberal lecturer only because of the university. So also a liberal lecturer in a strict university will continue to be liberal and will not become a strict lecturer only because of the university. Even if they change their university, the marks that they award, will continue on the same principle and logic as they have been doing in the past. It does not change only because of the change of the university. The grant of marks is therefore professor centric and not university centric. Furthermore, if one has to consider the said contention, it could also be said that a student has failed to obtain high marks. The result of obtaining a lower mark cannot necessarily be attributed to the professor or university but there is every possibility that the student does not 21 deserve higher marks. If a student works hard and is deserving, necessarily he will get high marks. If he does not work hard, he will not get high marks. Therefore, the contention of the petitioners that they belong to a very strict university and even though they are meritorious, hardworking and deserving, such universities do not grant marks, cannot be accepted. There is absolutely no data in support of such a contention. It is an assumption without any basis. The contention is being advanced in the self interest of the candidate and nothing else. Therefore, the question of comparing professors or universities on the issue of grant of marks may not be appropriate. Therefore, to contend that the student in one university is far superior to a student from another university may not be fair to the candidates. Marks is an indication of the merit of the student. Therefore, the contention of differential marks from different universities which would lead to unfairness in identifying brilliant candidates, cannot be accepted. The methodology used in order to assess the merit of the candidate is just and appropriate. Therefore, we are of the view that such a contention cannot be accepted.
(x) A similar situation arose before the Hon'ble Supreme Court in the case of State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220. Therein, an advertisement was published by the Government that the Haryana Public Service Commission would hold an examination for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). A number of candidates appeared for the examination. A list of 40 successful candidates who had obtained 45% or more marks in the examination was declared. The State Government which was the appointing authority, made seven appointments in the serial order of the list according to merit, wherein respondents ranked 8, 9 and 13 did not get an order of appointment although there were vacancies. The reason for not making the appointment was that in view of the State Government, which was the same view as that of the High Court previously intimated to the State Government, the candidates obtaining less than 55% of the marks in the examination should not be appointed as judges in the interest of maintaining high standards and competence in the judicial service. Therein the Hon'ble Supreme Court held in paras 8 and 12 as follows:--
"8. This will clearly go to show that the High Court itself had recommended earlier to the Punjab Government that only candidates securing 55% marks or more should be appointed as Subordinate 22 Judges and the Haryana Government in the interest of maintaining high standards in the service had agreed with that opinion. This was entirely in the interest of judicial administration.
*** *** ***
12. It was, however, contended by Dr. Singhvi on behalf of the respondents that since Rule 8 of Part C makes candidates who obtained 45% or more in the competitive examination eligible for appointment, the State Government had no right to introduce a new rule by which they can restrict the appointments to only those who have scored not less than 55%. It is contended that the State Government have acted arbitrarily in fixing 55% as the minimum for selection and this is contrary to the rule referred to above. The argument has no force. Rule 8 is a step in the preparation of a list of eligible candidates with minimum qualifications who may be considered for appointment. The list is prepared in order of merit. The one higher in rank is deemed to be more meritorious than the one who is lower in rank. It could never be said that one who tops the list is equal in merit to the one who is at the bottom of the list. Except that they are all mentioned in one list, each one of them stands on a separate level of competence as compared with another. That is why Rule 10(ii), Part C speaks of "selection for appointment". Even as there is no constraint on the State Government in respect of the number of appointments to be made, there is no constraint on the Government fixing a higher score of marks for the purpose of selection. In a case where appointments are made by selection from a number of eligible candidates it is open to the Government with a view to maintain high standards of competence to fix a score which is much higher than the one required for more eligibility. As shown in the letter of the Chief Secretary already referred to, they fixed a minimum of 55% for selection as they had done on a previous occasion. There is nothing arbitrary in fixing the score of 55% for the purpose of selection, because that was the view of the High Court also previously intimated to the Punjab Government on which the Haryana Government thought fit to act. That the Punjab Government later on fixed a lower score is no reason for the Haryana Government to change their mind. This is essentially a matter of administrative policy and if the Haryana State Government think that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, those who got less than 55% have no right to claim that the selections be made of also those candidates who obtained 23 less than the minimum fixed by the State Government. In our view the High Court was in error in thinking that the State Government had somehow contravened Rule 8 of Part C"
(emphasis supplied) (y) The Hon'ble Supreme Court held that there is no constraint to fix a higher score of marks with a view to maintain high standards of competency in the judicial services. Furthermore, the stand of the High Court to have a minimum of 55% marks for appointment was held to be a matter of administrative policy. The impugned amendment is purely in terms of the aforesaid judgment of the Hon'ble Supreme Court where standards have been fixed of 70% marks in aggregate in order to ensure high standards of competence.
(z) It is also relevant to notice that in similar circumstances, an amendment was brought about to Rule 5 of the Maharashtra Judicial Services Rules, 2008, with regard to recruitment of Civil Judges. Clause 4 of the advertisement relates to conditions of eligibility which reads as follows:--
"4) Conditions of Eligibility--
(i) Age and Qualification-(Any one of the following A, B, C, D, E or F) A) For Advocate, Attorney or Pleader:
Age Limit - As on 1st April, 2009 - not less than 21 and not more than 35 years.
Qualification - Candidate must hold a degree in law and must have practiced as an Advocate, Attorney or Pleader in the High Court or Courts Subordinate thereto, for not less than 3 years on 17th December, 2008 Note : - In case of Public Prosecutors, their service in that capacity will be taken as practice at the Bar.
B) For Fresh Law Graduates Age - As on 1st April, 2009, not less than 21 and not more than 25 years. Qualification 24
(i) Candidates must have secured the degree in law by passing all the examinations leading to the degree in the first attempt and
(ii) has secured in the final year examination of the degree in law, not less than 55% marks OR
(iii) In case of candidates holding Masters Degree in Law not less than fifty five percent marks; OR C) Members of ministerial staff to the High Court; OR D) Members of ministerial staff to the Courts subordinate to High Court; OR E) Members of staff working as Legal Assistant and above in the legal section of the Law and Judiciary Department in Mantralaya, OR F) Members of ministerial staff of the office of the Government Pleaders attached to those Court.
Age - For C, D, E and F - As on 1st April, 2009, not less than 21 and not more than 45 years, provided such employee has put in minimum three years of service after obtaining degree in law".
(emphasis supplied) (za) Therein it was mandated that a candidate should have secured not less than 55% marks in the final year examination of the degree in law and should have passed all the exams leading to the degree in the first attempt. When the same was challenged, it same was affirmed by the High Court of Maharashtra in the case of Bar Council of Maharashtra and Goa, Mumbai v. State of Maharashtra, 2009 SCC OnLine Bom 424 wherein it was held in para 4 as follows:--
"4. These Rules are statutory rules and the advertisement issued by the Commission on 17th December, 2008, impugned in the present Writ Petition, is in consonance with the Rules. In fact, in the Writ Petition and even during the course of the argument, there was no 25 contention raised before us that the impugned advertisement is violative or ultra vires of the Rules. The advertisement being in consonance with the Rules, in law the impugned advertisement can hardly be faulted. The argument that the eligibility conditions are arbitrary and/or discriminatory is also without any merit. In consonance with the recommendations of the Shetty Commission, clear objective is sought to be achieved by the advertisement for such classification. The purpose is to capture talent from amongst fresh Law Graduates for induction into the service at the very threshold. Other classes specified under the Rules and in the advertisement is intended to let Law Graduates optionally acquire some experience at the Bar and then take up the entrance examination. To provide some age difference between these two classes thus is essential. This can neither be termed arbitrary nor discriminatory. These are classes of different persons belonging to a different class and persons of the same classes are not being treated differently. The option lies with the applicant as to which class he desires to come in, whether at the threshold or after gaining experience at the Bar. It is not only a laudable object but also squarely takes care of the practical objective and problems which may arise in appointment of Judges of the Junior Division."
(emphasis supplied) (zb) The impugned amendment is similar to the aforesaid rule in the State of Maharashtra. There also the requirement of passing all the examinations leading to the degree in law in the first attempt was a condition. In the impugned amendment also, it is a condition. The second condition is that he should have secured 55% marks in the final year. In the impugned amendment, the requirement is 70% marks in aggregate in the first attempt. Therefore, the principle and object on which both the amendments have been brought about are identical. It is also narrated in the aforesaid judgment that the impugned rule therein, is in consonance with the recommendation of the Shetty Commission. Furthermore, the classification is relatable to the object sought to be achieved namely to capture talent from fresh law graduates. There also, there were two options to compete, namely, by advocates who have put in three years of practice and fresh law graduates who have passed all the exams in the first attempt by securing 55% marks. Here too, is a similar amendment. Therefore, we find that the underlying objective and principle being one and the same and being founded on the recommendation of the Shetty 26 Commission, the impugned amendment is purely in accordance with law and no interference is called for. The requirement of securing 70% marks in aggregate in all subjects has a direct nexus with the object sought to be achieved. So far as nexus between the amendment and the object sought to be achieved is concerned, the same has been considered in Chapter I Part I.D.
37. (a) The further contention of the petitioners is that there is no material to show as to how and in what manner the figure of 70% has been arrived at. That it is without any basis. The same is disputed by the learned counsel for the respondent. He contends that 70% is not a random figure. It has been arrived at after a great deal of thought and deliberations. Notwithstanding the same, he contends that it is the recruiting agency, who has the right to prescribe the minimum eligibility qualification since it is they, who determine the quality of persons who can apply. He relies on the judgment of the Hon'ble Supreme Court in the case of Maharashtra Public Service Commission v. Sandeep Shriram Warade, (2019) 6 SCC 362, wherein, it was held in para 9 as follows:--
"9. The essential qualifications for appointment to a post are for the employer to decide. The employer may prescribe additional or desirable qualifications, including any grant of preference. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being on a par with the essential eligibility by an interpretive re-writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review. If the language of the advertisement and the rules are clear, the court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law. In no case can the court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same."
(emphasis supplied) 27
(b) The Hon'ble Supreme Court in the case of Punjab National Bank v. Anit Kumar Das, (2021) 12 SCC 80 has observed in para 17.3 as follows:--
"17.3. Thus, as held by this Court in the aforesaid decisions, it is for the employer to determine and decide the relevancy and suitability of the qualifications for any post and it is not for the courts to consider and assess. A greater latitude is permitted by the courts for the employer to prescribe qualifications for any post. There is a rationale behind it. Qualifications are prescribed keeping in view the need and interest of an institution or an industry or an establishment as the case may be. The courts are not fit instruments to assess expediency or advisability or utility of such prescription of qualifications. However, at the same time, the employer cannot act arbitrarily or fancifully in prescribing qualifications for posts. In the present case, prescribing the eligibility criteria/educational qualification that a graduate candidate shall not be eligible and the candidate must have passed 12th standard is justified and as observed hereinabove, it is a conscious decision taken by the Bank which is in force since 2008. Therefore, the High Court has clearly erred in directing the appellant Bank to allow the respondent-original writ petitioner to discharge his duties as a Peon, though he as such was not eligible as per the eligibility criteria/educational qualification mentioned in the advertisement."
(emphasis supplied)
(c) Therefore, firstly the contention that the fixation of the requirements by the employer is arbitrary, cannot be accepted. It is for the employer to decide what should be the requisite qualification for the particular job. The High Court has arrived at 70% after applying its mind. While discussing the issue as to who is a brilliant law graduate with a brilliant academic career, substantial reasons have been assigned hereinabove. Hence, for the reasons assigned therein, the contention of the petitioners on this score is answered. Furthermore, in the aforesaid judgment of the Hon'ble Supreme Court it has been held that it is for the employer to choose what is the requirement of a particular job and to decide what are the requirements thereof. The Court cannot sit in judgment and determine what is the right qualification or not. For instance, in Writ Petition Nos. 30727 of 2023 and 30740 of 2023, the contention of the petitioners is that 70% marks in aggregate are too high and it should be reduced to 60%. Some of the learned counsels had also made a submission to the effect that 28 even though the employer may have a right to choose the eligibility qualification, 70% marks in aggregate may be too high and it should be appropriately reduced. We are of the view that this contention is against the rule that the employer is the right person to decide the eligibility criteria. It is not for the Court to determine whether 70% is appropriate or 60% or 50% or 40%. The eligibility criteria cannot be thrust upon by the Court on the employer and to direct him to accept a lower eligibility criteria. Therefore, we are of the considered view that the eligibility criteria of 70% marks in aggregate is just and reasonable and no grievance can be made against the same."
11. This judgment of Madhya Pradesh High Court was unsuccessfully challenged before the Supreme Court. By reasoned order dated 06.04.2024 the SLP (C) No.9570 of 2024 was dismissed. The relevant portion is as under:
"Learned counsel has made elaborate argument to challenge the impugned judgment of the Division Bench upholding the validity of the Rule 7 (g) of the Madhya Pradesh Judicial Service (Recruitment and Condition of Service) Rules, 1994. The justification given by the High Court to uphold the validity of the Rule has been taken into account. We see no reason to interfere with the said view. The Special Leave Petitions are accordingly dismissed."
(Emphasis Supplied)
12. Thus, in terms of order passed in W.P.No.12527 of 2024 and other connected matters decided on 02.05.2024, the admission of these petitions is declined.
13. In the result, these Writ Petitions are dismissed.
29There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
__________________ SUJOY PAUL, J __________________ N.TUKARAMJI, J Date: 03.05.2024 GVR