Madhya Pradesh High Court
Mrigendra Singh vs High Court Of Madhya Pradesh on 4 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 308 of 2016
SMT. SAPNA JHUNJHUNWALA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
AND
WRIT PETITION No. 6345 of 2020
MRIGENDRA SINGH
Versus
HIGH COURT OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Anil Khare - Senior Advocate with Shri Ashle
Ashley John Mathew - Advocate for
petitioner in W.P. No.308/2016.
Shri Rohit Mishra - Advocate for petitioner (W.P. No.6345/2020)
No.6345/2020).
Ms. Vibha Datta Makhija - Senior Advocate with Ms. Warija Ghildiyal-
Ghildiyal Advocate for
intervenor.
Shri Ajay Bagadiya - Senior Advocate with Siddharth Shukla and Shri Devmani
Bansal - Advocate for intervenor.
Shri Siddhant Kochar - Advocate for intervenor.
Shri Anshuman Singh - Advocate for respondent No.2- High Court of M.P. in W.P.
Signature Not Verified
Signed by: CHRISTOPHER
PHILIP
Signing time: 04-04-2025
19:47:07
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No.308/2016.
Shri B.N.Mishra - Advocate for respondent No.1- High Court of M.P. in WP
No.6345/2020.
Shri Praveen Dubey - Advocate for intervenor.
Shri Abhijeet Awasthi - Deputy Advocate General and Shri Anubhav Jain -
Government Advocate for respondent/State.
Shri Sanjay Kumar Singh - Advocate for respondent No.3.
Shri Sankalp Sharma - Advocate for intervenor.
Shri Siddharth Kumar Sharma - Advocate for intervenor in W.P. No.308/2016.
Shri Rohan Harne - Advocate for intervenor in W.P. NO.308/2016.
Shri Vasu Jain - Advocate for intervenor.
Reserved on - 06.03.2025
Pronounced on - 04.04.2025
ORDER
Per: Hon'ble Shri Justice Suresh Kumar Kait, Chief Justice:
1. Petitioner,, who is a practicing advocate, has filed
W.P.No.308/2016 seeking the following reliefs: -
7.1 Summon
ummon the entire relevant record from the possession of
the court below;
7.2 Upon holding that the inaction of the respondents
authorities in not calculating the correct number of vacancies
for appointment to the post of District Judge (Entry Level)
against the 25% of Advocates'
Advocates' quota for the year 2016 as bad in
law, command the respondents to add 74 unfilled vacancies of
the Examination Year, 201
2015, in the Examination Year, 2016 with
all consequential benefits arising thereto; if necessary set aside
the advertisement contained in Annexure P/1.
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7.3 Further command the respondents to display the numbers
obtained by the candidate in the pre pre-examination/screening
examination/screening test
in the official website to bring in transparency in the system.
7.4 Any other order/orders as deems fit by this Hon'ble
Court.
7.4A Award cost of the litigation in favour of the petitioner.
petitioner
7.5 Set aside Rule 5 sub-rule
sub rule 1 after clause 'c' is arbitrary,
unjust, unlawful and agains
againstt the directives issued by the Hon'ble
Apex Court in the matter of All India Judges Association &
others.
7.6 Advertisement dated 23.11.2015 (Annexure P/5) for 2016
HJS Exam (Civil Judge Senior Division) and its results
(Annexure P/6) be set aside, by issuing
issuing writ in the nature of
certiorari.
7.7. Direct that seats advertised in 2017 HJS Exam (Bar) be
increased in appropriate manner, by issuing writ in nature of
mandamus. In alternative, the petitioner is praying that
advertisement dated 16.03.2017 (Annexur
(Annexure P/10) and its
ts results
dated 22.03.2018 (Annexure P/11) be set aside, by issuing writ
in the nature of certiorari.
7.8 Advertisement dated 24.03.2017 (Annexure P/8) for 2016
HJS Exam (Civil Judge Senior Division) and its results
(Annexure P/9) be set aside, by issuing writ in the nature of
certiorari.
7.9 To set aside all appointments made in pursuance of
proviso to Rule 5(1)(c) of the Rules of 1994.
1994."
2. Petitioner, who is a senior advocate of this Court, has also filed
Writ Petition No.6345/2020 as a Public Interest Litigation praying for
following reliefs:-
(i) That the proviso to Rule 5(1)(c) of Madhya Pradesh
Higher Judicial Services (Recruitment and Conditions of
Service) Rules, 2017 may be declared as ultra-vires
ultra vires and be
deleted from the said Rule
Rules;
(ii) That the concerning office of the High Court may be
directed to ascertain the actual number of 25% posts in Higher
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Judicial Services meant for the eligible 'Advocates' since the
inception of quota system from the year 2007 and those posts
may be filled only from candidates who fall in the definition of
eligible 'Advocate' as laid down in the referred Judgment of
Hon'blee Supreme Court.
(iii) That the inservice candidates/judges occupying the post
meant for the Bar through promotion or direct recruitment, may
be identified and reverted to their original posts.
(iv) That the ineligible candidates selected and appointed
directly
rectly in the Higher Judicial Services, who were not in
continuous practice at Bar, may be removed from the services,
as ineligible (not qualified}.
(v) That the Civil Judges promoted through merit cum
seniority (suitability) and Limited Competitive Examination
(L.C.E.) in excess of the quota of 50% and 25% (later 10%)
respectively may also be reverted to their original post.
(vi) The roster system may be implemented for granting the
benefit to the selected members of the Bar in the Higher
Judicial Services
rvices since 2007 through direct recruitment.
(vii) That the judgments passed by the Hon'ble Supreme
Court in All India Judges Association (supra), Dhreej Mor
(supra) and High Court of Punjab and Haryana Vs. State of
Punjab (2019) 12 SCC 496 may be impleme
implemented
nted in its letter and
spirit.
This Hon'ble court be further pleased to pass such other orders
as it may deem fit under the facts and circumstances of the
case."
3. At the outset, Shri B.N.Mishra, learned counsel appearing for
the respondent No.1 High Court of M.P. raised a preliminary
objection that the PIL in service matter is not maintainable. He placed
reliance on various judgments of the Apex Court and argued that PIL
is not maintainable.
4. First of all, we deem it necessary to consider
consider the maintainability
of the writ petition filed by way of PIL. The Apex Court in a catena of
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judgments observed that the PIL is not maintainable in service matter,
recently the Apex Court has doubted the correctness of the earlier
judgments that in all se
service
rvice matters, PIL is not maintainable at all, but
the issue is left open to decide in appropriate case whether the PIL in
all service matters is maintainable or not
not.. But prevailing law on the
issue which is evident from the earlier judgments of the Apex Court
C
holds the field.
5. The Apex Court in the cases of Dr.Duryodhan Sahu Vs.
Jitendra Kumar reported in (1998) 7 SCC 273 and Vishal Ashok
Thorat and others Vs. Rajesh Shripambapu and others reported in
(2020) 18 SCC 67
673 has observed that a service dispute cannot be
raised by way of a PIL. The relevant judgment of Apex Court is in the
case of Dattaraj Nathuji Thaware Vs. State of Maharashtra reported
in (2005) 1 SCC 590, wherein the Apex Court in para 16 held as
follows:-
"16. As noted supra, a time has come to weed out the petitions,
which though titled as public interest litigations are in essence
something else. It is shocking to note that courts are flooded with
a large number of so so-called
called public interest litigations where
w
even a minuscule percentage can legitimately be called as public
interest litigations. Though the parameters of public interest
litigation have been indicated by this Court in a large number of
cases, yet unmindful of the real intentions and objectives,
objectives, courts
are entertaining such petitions and wasting valuable judicial
time which, as noted above, could be otherwise utilised for
disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v.
Jitendra Kumar Mishra [(1998) 7 SCC 273 : 1998 SCC (L&S)
1802 : AIR 1999 SC 114] this Court held that in service matters
PILs should not be entertained, the inflow of so so-called
called PILs
involving service matters continues unabated in the courts and
strangely are entertained. The least the High Courts could do is
to throw them out on the basis of the said decision. The other
interesting aspect is that in the PILs, official documents are
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being annexed without even indicating as to how the petitioner
came to possess them. In one case, it was noticed that an
interesting answer was given as to its possession. It was stated
that a packet was lying on the road and when out of curiosity the
petitioner opened it, he found copies of the official documents.
Apart from the sinister manner, if any, of getting such copies, the
real brain or force behind such cases would get exposed to find
out the truth and motive behind the petition. Whenever such
frivolous pleas, as noted, are taken to explain possession, the
court should do well not only to dismiss the petitions but also to
impose exemplary
plary costs. It would be desirable for the courts to
filter out the frivolous petitions and dismiss them with costs as
aforestated so that the message goes in the right direction that
petitions filed with oblique motive do not have the approval of
the courts."
6. The Apex Court in the case of Ayaaubkhan Noorkhan Pathan
v. State of Maharashtra, reported in (2013) 4 SCC 465 has observed
as follows:-
"15. Even as regards the filing of a public interest
litigation, this Court has consistently held that such a
course of action is not permissible so far as service matters
are concerned. (Vide Duryodhan Sahu v. Jitendra Kumar
Mishra [(1998) 7 SCC 273 : 1998 SCC (L&S) 1802 : AIR
1999 SC 114] , Dattaraj Nathuji Thaware v. State of
Maharashtra [(2005) 1 SCC 590 : A AIR
IR 2005 SC 540] and
Neetu v. State of Punjab [(2007) 10 SCC 614 : AIR 2007 SC
758])."
7. In view of the above pronouncement of the Apex Court, we are
of the considered view that challenging the dispute with regard to
service by way of PIL is not permissible.
permissible. Hence, Writ Petition
No.6345/2020 is hereby dismissed.
8. Now we may consider Writ Petition No.308/2016
No.308/2016.
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9. Brief facts as narrated in this petition are that the petitioner is a
practicing advocate and put in more than 7 years of practice as on
03.01.2016. It is the case of the petitioner that respondent No.2 vide
advertisement dated 23.11.2015 (Annexure P/l) advertised 9 posts of
District Judge (Entry Level) to be filled up amongst the eligible
advocates
dvocates as per the Rule 5(1)(c) of the Madhya Pradesh
desh Higher
Judicial Service (Recruitment and Conditions of Service) Rules, 1994
(for short "the Rules of 1994") indicating that total 9 posts were
advertised by the respondent No.2 wherein five posts were kept for
unreserved
nreserved candidates, one for Scheduled Caste candidate, two posts
for Scheduled Tribes candidates and one for Other Backward Class
candidates. As per the eligibility criteria, a candidate who has attained
the age of 35 years but has not attained the age of 48 years as on
1.1.2016, is found to be
b eligible to be appointed to the post of District
Judge (Entry Level). Apart from the aforesaid criteria, the advocate
should have rendered not less than seven years of active practice as on
3.1.2016. The petitioner wa
was eligible as per the aforesaid qualification
and applied for the post of District Judge (Entry Level).
10. Further the case of the petitioner is that the process of
appointment to the post of District Judge (Entry Level) wa
was monitored
under the garb of the provisions contained in the Rules
R of 1994. As per
Rule 3 of the Rules, 1994, the service consists of three categories viz.
(a) District Judge (Entry Level); (b) District Judge (Selection Grade)
and (c) District Judge (Super Time Scale). In the present matter, the
petitioner is concerned with the appointment to the post of District
Judge (Entry Level). As per Rule 5 of the Rules, 1994, the appointment
to the post in category (a) sub-rule
sub (1) of Rule 3 is made thus-
thus (a) 65%
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by promotion amongst the Civil Judges (Senior Division) oon the basis
of merit-cum-seniority
seniority and passing suitability test, the rest 35% is
divided (b) 10%
% by promotion strictly on the basis of merit through
Limited Competitive Examination (LCE) of the Civil Judges (Senior
Division) having not less than 5 years qualifying
ualifying service and the rest
25% is required to be filled up by direct recruitment through eligible
Advocates on the basis of written test followed by viva voce conducted
by the respondent No.2. That, as per the proviso appended to Rule 5 of
the Rules, 1994,
994, the recruitment to the post shall be made on the basis
of vacancies available till attainment of required percentage.
Considering the same, the posts
sts which were not filled up and remained
vacant against the Advocates' quota are being carried forward ffor the
selection process of the next examination year.
11. It is submitted that that earlier vide advertisement dated
28.11.2014 (Annexure
Annexure P/2
P/2),, the respondent No.2 notified 83 vacancies
to be filled up against the 25% Advocates' quota for appointment to the
post of District Judge (Entry Level). A bare perusal of the same would
go to show that an Advocate who is put in requisite length of seven
years of practice as on 1.1.2014 and has completed the age between 35
to 48 years as on 1.1.2014 was found to be eligible to be considered for
appointment to the post of District Judge (Entry Level). After
completion of the examination process, the results of the Higher
Judicial Service (Entry Level) Examination, 2015 was declared by the
respondent No.2. vide Annexure P/3. A bare perusal of the same would
go to show that out of total 83 vacancies; only 9 vacancies were filled
up amongst the eligible aspirants who were found to be suitable for
appointment to the post of Higher Judicial Service (Entry Level) and;
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accordingly, 74 vacancies were remained unfilled as no eligible
candidates were found to be selected. In all fairness, in view of the
provisions contained in Rule 5 of the Rules, 1994, the aforesaid unfilled
vacancies should have been carried forward to the next
ne examination
year and should have been clubbed alongwith the vacancies advertised
vide advertisement dated 23.11.2015. However, vide advertisement
dated 23.11.2015, only 9 vacancies were advertised for the post of
Higher Judicial Service (Entry Level) by the respondent No.2 without
taking into account the 74 unfilled vacancies from the 25% Advocates'
quota as mentioned in Rule 5(1)(c) of the Rules, 1994.
12. Further contention of the petitioner is that Rule 5(1)(c) was
amended vide notification dated 13.
13.8.2015
8.2015 whereby the State
Government in exercise of powers conferred by Article 233 read with
Article 309 of the Constitution of India and in consultation with the
High Court amended Rule 5 of the Rules of 1994 whereby the
impugned proviso has been added.
13. Shri Anshuman Singh, learned counsel appearing for the
respondent No.2-High
High Court of Madhya Pradesh argued that petitioner
is challenging the Rule 5(1)(c) of the Rules of 1994 specifically its
proviso, which was added by the amendment dated 13.08.2015 in
exercise of powers conferred under Articles 233 and 309 of the
Constitution of India. Supporting the proviso to the impugned rule, he
submitted that the challenge of the petitioner is on two aspects, one is
that the impugned rule seeks to create separate quota, which Article
233 of the Constitution does not contemplate and the second
second; the
applicability of this proviso to the extent that after thiss proviso came to
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effect, the High Court should have waited for two consecutive years
for the situation to arise which is mentioned in the proviso and
thereafter ought to have operated the proviso. The detailed submission
submissions
on behalf of the respondent No.2 on this point will be dealt with in
later part of the judgment.
14. Though the applications for intervention at the
th stage of final
hearing have been rejected by this Court vide order dated 06.03.2025
but for the sake of assistance in disposing of the matter,
matte we have
permitted the learned counsel to advance their arguments in the interest
of justice.
15. Ms. Vibha Datta Makhija
Makhija, learned Senior Counsel for alleged
intervenor, while pointing out the prayer clause and the grounds raised
in the petition submitted that there are only two grounds which have
been raised, one is that it is in violation of the judgment of All India
Judges' Association Vs. Union of India and others reported in (2002)
4 SCC 247 relating to pres
prescription of quota and the other is that it is
violative of Article 233(2) of the Constitution
Constitution.. The issue herein is
whether the employing authority has the autonomy to prescribe the
quota. She submitted that as far as the courts are concerned, the quota
has been controlled by the judgment of All India Judges' Association,
Association
2002 but nowhere the said judgment does not say that there should
remain unfilled vacancies. This issue started in 1994 then Shetty
Commission was appointed in 1996 and the issue has been going on
since then and the Supreme Court in Malik Mazhar Sultan (3) Vs.
U.P. Public Service Commission and others reported in (20
(2008) 17
SCC 703 has observed and held that every year there is a schedule and
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all High Courts have to fill all the existing vacancies and file those
reports before the Supreme Court. Learned counsel the intervenor
referred to para 5, 9 and 15 of the said judgment in All India Judges'
Association, 2002 in support of her contentions. She also referred to
recommendations of the Shetty Commission regarding appointment on
the post of Higher Judicial Service i.e. District Judge and Additional
District Judge through Direct Recruitment and for this purpose if
necessary there should be an amendment to Article 233(2) of the
Constitution. Learned counsel also referred to paras 22 and 24 oof the
All India Judges' Association,
Association 2002 regarding the recommendations of
the Shetty Commission.
16. The further submission is that periodically the Supreme Court
has been passing directions that all vacancies have to be filled and no
vacancies can be left
left unfilled and cannot be carried forward. She
referred to Para 27 and 28 of the said judgment regarding bringing of
methodology for appointment by three streams for recruitment of
District Judges. She further submitted that the Supreme Court
manifestly opined
ned and expected that in this way the calibre of the
members of the Higher Judicial Service will further improve. In order
to achieve this, while the ratio of 75 per cent appointment by
promotion and 25 per cent by direct recruitment to the Higher Judicial
Service is maintained, there should be two methods as far as
appointment by promotion is concerned: 65 per cent of the total posts
in the Higher Judicial Service must be filled by promotion on the basis
of principle of merit
merit-cum-seniority. For this purpose,
e, the High Courts
should devise and evolve a test in order to ascertain and examine the
legal knowledge of those candidates and to assess their continued
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efficiency with adequate knowledge of case
case-law.
law. The remaining 10 per
cent of the posts in the service shall be filled by promotion strictly on
the basis of merit through the limited departmental competitive
examination for which the qualifying service as a Civil Judge (Senior
Division) should be not less than five years.
years. The High Courts will have
to frame a rule in this regard. She submitted thatt in view thereof, LCE
came in, thus, 65%
% by promotion, 10%
% through LCE and 25% amongst
the advocates.
17. Placing reliance on the judgment of Supreme Court in the case
of All India
ndia Judges' Association Vs. Union of India and others
reported in (2010) 15 SCC 170 she referred paras 4 onwards where the
High Courts are facing difficulty
difficult in filling up the posts through LCE.
She also referred to para 9 to show that there is clear cut ddirection of
the Supreme Court that no vacancies will be carried forward to the next
year. The Supreme Court specifically directed to amend the existing
rule and there should not be any vacancies that should remain unfilled.
In this way, the quota system has
has been evolved by the High Court. The
argument of the petitioner is that the High Court after amendment of
Rule 5 in 2015 should have waited for two consecutive years but failed
to do so.
18. To sum up her arguments, she contended drawing the attention
of this Court to the order dated 12.07.2021 of the Supreme Court
passed in the case of Rejanish K.V. Vs. K.Deepa & others,
others Civil
Appeal No.3947/2020 dealing with review petition arising out of the
judgment of Dheeraj Mor
Mor, that the Supreme Court clearly
learly stated that
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the judgment under review shall not adversely affect the District
Judges who have been appointed and are working at present. The
Supreme Court has also clarified that the judgment under review shall
also not adversely affect the future pprospects
rospects of such District Judges.
She further submitted that even if the wrong method was adopted by
the High Court, the District Judges who were appointed should not be
disturbed.
19. Shri Praveen Dubey, learned counsel appearing for the District
Judges who were appointed by direct recruitment from Bar quota,
submitted that there is a specific bar provided under Article 233(2) of
the Constitution, which specifically provides that if a person
p is in
service of Union or State, which includes judicial service also, he
cannot be appointed under the quota which is fixed for the advocates.
Earlier there was no quota prescribed. It is in the year 2002 that the
Supreme Court came with a view tha
thatt let there be 25% quota for
advocates and 75% quota was there for the promotees. He particularly
referred to paras 28 and 40 of All India Judges' Association Vs. Union
of India and others reported in (2002) 4 SCC 247.
20. We have heard the learned counse
counsell for the parties in detail and
perused the material on record.
21. The brief facts as narrated are that the petitioner has challenged
validity of proviso to rule 5(1)(c) of the Rules of 1994 asserting that
respondent No.2 issued a notification incorporating proviso to
impugned rule 5(1)(c) of the Rules of 1994 on 13.08.2015 in which it
was provided that if the vacancies meant for direct recruitment from the
Advocates are lying vacant for two consecutive selection processes then
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the said vacancies shall be filled up by promotion through eligible
candidates from amongst Civil Judge (Senior Division). Though it was
specifically mentioned
ntioned that if the seats are lying vacant for two
consecutive selection processes, then the same shall be filled up
through promotion but the respondent No.2 applied said proviso
without waiting for two consecutive selection processes in the year
2016 and 2017 itself reducing the number of seats from direct
recruitment.
22. It is pertinent to mention that respondent No.2 issued an
advertisement for appointment to the post of District Judge (Entry
Level) through promotion from Civil Judge (Senior Division) Exam-
2016 on 23.11.2015, whereby 69 posts were advertised and for direct
recruitment from Bar Exam-2016 on the same date i.e. on 23.11.2015
whereby only 9 posts were advertised and 5 candidates were qualified
from Civil Judge (Senior Division) and initial
initially
ly 9 candidates were
qualified from direct recruitment from Advocates but by order dated
04.02.2016, 3 posts were to be filled by the advocates who fulfilled the
benchmark specified therein, thus total 12 candidates qualified from
Bar. By advertisement da
dated
ted 09.03.2017 for direct recruitment from Bar
Exam-2017, 42 seats were advertised and by advertisement dated
24.03.2017 for District Judge (Entry Level) through promotion from
Civil Judge (Senior Division) Exam - 2017,, 61 posts were advertised
and 42 candidates were qualified from the Civil Judge (Senior
Division) out of 61 posts and 42 candidates were qualified from direct
recruitment from Bar but in the said exam of 2017,, 19 posts still
remained unfilled out of 61 posts which were advertised for
appointment
ointment through promotion from Civil Judge (Senior Division) and
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taking note of the unfilled 19 posts, the Full Court by order dated
04.10.2017 resolved that these 19 unfilled posts should be filled up
from the eligible candidates from the quota meant for direct recruitment
from Bar.. Hence, 19 posts were added to the Bar quota and total 61
posts were filled up by direct recruitment from Bar.
23. For adjudication of this matter, the following questions which
emerge for consideration by this Court are as und
under:-
(i) Locus of the petitioner to challenge the impugned proviso?
(ii) Applicability of impugned proviso retrospectively or
prospectively?
(iii) Validity of impugned proviso?
(i) Locus of the petitioner to challenge the impugned proviso
proviso:-
24. The counsel for the respondent No.2 submitted that the petitioner
has no locus to challenge the impugned proviso. He specifically
submitted that the petitioner is not a candidate who participated in the
selection process and unless the petitioner is personally aggrieved or
affected, she cannot have locus to file the petition raising her grievance
with regard to determination of vacancies. He further
further argued that the
petitioner wass not a candidate and she did not participate in the
selection process. She challenges the mode of determination of the
vacancy of posts and certain number of quota. Once she has not
participated in the selection process and she iiss not a candidate, she is
not affected in any manner.
25. Per contra, llearned
earned counsel for the petitioner submitted that the
petitioner participated in the selection process though she was not
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selected due to the proviso to impugned rule
rule, therefore there is no
impediment for her to challenge the validity of the impugned rule.
rul He
submitted the documents in support of his contentions,, which are on
record.
26. We have heard learned counsel on this point and perused the
record. The material available on record shows that the petitioner
participated in the examination which was held in 2016 though she was
not selected because of the impugned proviso which erroneously
reduced the number of seats which was meant for advocates
advocates. Since she
is an aggrieved party, she can very well challenge
allenge the validity of
impugned proviso for the reason that she is directly affected by the
impugned proviso..
27. The Apex Court in the case of Dr (Major) Meeta Sahai v. State
of Bihar, (2019) 20 SCC 17 held as under:-
"17. However, we must differentiate from this principle
insofar as the candidate by agreeing to participate in the
selection process only accepts the prescribed procedure and
not the illegality in it. In a situation where a candidate
alleges misconstruction of statutory rules aand
discriminating consequences arising therefrom, the same
cannot be condoned merely because a candidate has
partaken in it. The constitutional scheme is sacrosanct and
its violation in any manner is impermissible. In fact, a
candidate may not have locus tto o assail the incurable
illegality or derogation of the provisions of the Constitution,
unless he/she participates in the selection process.
process."
28. Inn the above judgment
judgment, the Apex Court has categorically held
that by agreeing to participate in the selection process, a candidate
only accepts the prescribed procedure and not the illegality in it. A
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candidate may not have locus to assail the incurable illegality or
derogation of the provisions of the Constitution, unless he/she
participates in the selection process. In view of the above, the
petitioner has a locus to challenge the validity of impugned rule
rule,
therefore, wee find no merit in the objection raised by the respondent
No.2 and the same is hereby rejected.
(ii) Applicability of impugned proviso retrospectively or
prospectively
prospectively:-
29. Shri Anshuman Singh, learned counsel appearing for respondent
No.2 contended that with regard to proviso being applied
retrospectively to the posts
post that had already remained vacant in the
previous recruitment process, the argument of the petitioner is that it
should have been applied prospectively and not retrospectively and the
High Court should have waited for two consecutive years or two
consecutive selection process
processes for the posts that remained vacant and
then should have made the proviso operational. He contended that
when a proviso was inserted in the statute, the reference to past
p events
does not make it retrospective in operational. What is required to be
seen is the intent of the legislature and the purpose for which the
amendment was sought to be made. Referring to para 26 of the
judgment of the Supreme Court rendered in the case of Zile Singh vs.
State of Haryana reported in (2004) 8 SCC 1, he contended that the
Supreme Court was dealing with the disqualification clause with
having certain number of children to be a disqualification prior to the
cut-off
off date for contesting el
elections,
ections, obviously the provision referred to
children who had been born prior to the cut
cut-off date. So the
he argument
was that this makes it retrospective and this should have been applied
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only prospectively and the children born only after the amendment
came into effect should have been taken into consideration. The Apex
Court held in para 26 of the said judgment as under:
under:-
26. In Javed [(2003) 8 SCC 369] it was held that the right to
contest an election is neither a fundamental right nor a
common law right. It is a right conferred by a statute. The
statute which confers the right to contest an election can also
provide for the necessary qualifications and disqualifications
for holding an elective office. The bar by way of
disqualification created against holding the office of a member
of a municipality by clause (c) of sub-section
sub section (1) of Section 13-
A was absolute. Merely because a disqualification is imposed
by reference to certain facts which are referable to a date prior
to the enactment of disqualification, the Act does not become
retrospective in operation. No vested right was taken away. The
First Amendment was not a piece ooff legislation having any
retrospectivity. However, the legislature thought that it would
be more reasonable if the disqualification was not applied by
reference to a child born within a period of one year from the
date of commencement of the Act. The perio periodd of one year was
appointed keeping in view the period of gestation which is two
hundred and eighty days as incorporated in Section 112 of the
Evidence Act of 1872 and added to it a little more margin of
eighty-five
five days. The proviso spells out this meanin
meaningg but for the
error in drafting. Even if there would have been no amendment
(as introduced by the Second Amendment Act) the proviso as it
originally stood, if subjected to judicial scrutiny, would have
been so interpreted and the word "after" would have been be read
as "upto" or assigned that meaning so as to carry out the
legislative intent and not to make capital out of the draftsman's
folly. Or, the proviso -- if not read down -- would have been
declared void and struck down as being arbitrary and
discriminatory
ory inasmuch as the persons having more than two
living children on the date of enactment of the Act and within
one year thereafter and the persons having more than two
living children after the date of one year could not have formed
two classes capable of being distinguished on a well--defined
criterion so as to fulfil the purpose sought to be achieved by the
legislature. However, the legislature got wiser by realising its
draftsman's mistake and stepped in by substituting the mistaken
word "after" by the ccorrect
orrect word "upto" which should have
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been there since the very beginning. In our opinion the Second
Amendment is declaratory in nature. It alters the text of the
First Amendment in such manner as to remove the obvious
absurdity therefrom and brings it in cconformity
onformity with what the
legislature had really intended to provide. It explains and
removes the obvious error and clarifies what the law always
was and shall remain to be. The Second Amendment would
operate retrospectively from the date of the First Amendm
Amendment
and in giving such operation no mandate of any law or
principle is violated. Else, the evil sought to be curbed
continues to exist for some period contrary to legislative intent.
The application of rule against retrospectivity stands excepted
from the Second Amendment Act.
30. Learned counsel for the respondent No.2 thus submitted that the
reference to a past event or what had taken place previously, as is in
this case, reference to previous recruitment because of the quota rule
had broken down, could not make the provision retrospective in
operation. It takes care of a situation which has arisen on account of
what has happened in the past. The rule nevertheless has been applied
prospectively. Referring to para 22 of the said judgment, he contended
thatt the Apex Court was of the view tthat absence of a provision
expressly giving a retrospective operation to the legislation is not
determinative of its prospectivity or retrospectivity. Intrinsic evidence
may be available to show that the amendment was necessarily intended
to have retrospective effect and if the Court can unhesitatingly
conclude in favour of retrospectivity, the Court would not hesitate in
giving the Act that operation unless prevented from doing so by any
mandate contained in law or an established principle of interpretation
of statute. Relevant para 22 is reproduced as under:
under:-
22. The State Legislature of Haryana intended to impose a
disqualification with effect from 55-4-1995
1995 and that was done.
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Any person having more than two living children children was
disqualified on and from that day for being a member of a
municipality. However, while enacting a proviso by way of an
exception carving out a fact situation from the operation of the
newly introduced disqualification the draftsman's folly caused
cause
the creation of trouble. A simplistic reading of the text of the
proviso spelled out a consequence which the legislature had
never intended and could not have intended. It is true that the
Second Amendment does not expressly give the amendment a
retrospective
ctive operation. The absence of a provision expressly
giving a retrospective operation to the legislation is not
determinative of its prospectivity or retrospectivity. Intrinsic
evidence may be available to show that the amendment was
necessarily intended to have retrospective effect and if the
Court can unhesitatingly conclude in favour of retrospectivity,
the Court would not hesitate in giving the Act that operation
unless prevented from doing so by any mandate contained in
law or an established principle of interpretation of statutes.
31. It is further
urther submi
submitted that even if the certain retrospectivity is
required to be given to the provision, it is for the petitioner to show
what prohibits the provision to be applicable retrospectively. If it refers
to any past event, it does not become retrospective. Even if it does, then
there is no bar in the same. In this case there
here is no effort that has been
made by the petitioner because there is no vested right that has been
defeated. It is not a case where an advertisement or any recruitment
process was going on
on, midway while
ile the petitioner was selected, the
provision was brought in and then the rule of game was changed. That
is not the case and there were no vested rights. The petitioner cannot
argue to the contrary.
32. The respondent No.2 submitted that the rule was not made
applicable retrospectively. It is to cope up with the situation to fill up
the vacancies which are lying vacant for several selection processes that
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is why for application of rule
rule, it is not required to wait for next two
consecutive selection processes.. It is further submitted that as to
whether the rule made applicable retrospective or not, the intent of the
legislation requires to be considered not specific word should only be
seen. Relying on the judgment of the Apex Court in the case of Naval
Kishore Mishra and others Vs. High Court of Judicature of
Allahabad reported in (2015) 5 SCC 479
479, he submitted that the intent
of legislation is worth important and not the specific word used in the
legislation.
33. Per contra, learned counsel for the pe
petitioner
titioner submitted that the
rule cannot be applicable
appli retrospectively, itt is prospective in nature. He
further submitted that if that was the situation where the rule was
validly enacted then there is specifically mentioned in the proviso that
if the vacancies
ncies are not filled up for two consecutive selection processes
process
then the said vacancies shall be filled up through promotion. Therefore,
to apply said proviso, the respondent No.2 must have wait
waited for two
consecutive selection processes held for that purpose but respondent
No.2 applied said proviso retrospectively in the year 2016 and 2017
without waiting for two consecutive selection processes.
34. We have carefully perused the impugned rule; it is specifically
mentioned in the proviso to impugned rule that the said vacancies for
direct recruitment if lying vacant for two consecutive selection
processes, then the seats should be filled up through promotion
amongst the eligible Civil Judge (Senior Division).
35. The learned counsel for tthe respondent No.2 relied on the
judgment passed by the Apex Court in the case of Zile Singh (supra). In
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that judgment it was held that the second amendment was declaratory in
nature and has retrospective application. The Apex Court further held
that declaratory and clarificatory statutes have retrospective effect. If it
alters the text of the first amendment in such manner as to remove the
obvious absurdity therefrom and brings it in conformity with what the
legislature had really intended to provide, it has a retrospective effect
but in the case in hand the proviso to impugned rule does not have any
declaratory and clarificatory
clarifi tory nature which does not alter the text or to
explain or remove the obvious error and clarifies what the law was
intended. It was
as further held in para 13 as follows:-
follows:
"13. It is a cardinal principle of construction that every statute
is prima facie prospective unless it is expressly or by necessary
implication made to have a retrospective operation. But the rule
in general is appl
applicable
icable where the object of the statute is to affect
vested rights or to impose new burdens or to impair existing
obligations. Unless there are words in the statute sufficient to
show the intention of the legislature to affect existing rights, it is
deemed to be prospective only -- "nova constitutio futuris formam
imponere debet non praeteritis" -- a new law ought to regulate
what is to follow, not the past. (See Principles of Statutory
Interpretation by Justice G.P. Singh, 9th Edn., 2004 at p. 438.) It
is not necessary that an express provision be made to make a
statute retrospective and the presumption against retrospectivity
may be rebutted by necessary implication especially in a case
where the new law is made to cure an acknowledged evil for the
benefit of the community as a whole (ibid., p. 440)".
36. The language or intention are relevant to see whether the
legislature intended to give rule retrospective operation. If there is no
language which suggests that legislative intent to give retrospective
effect, it is prospective. The Apex Court in a catena of judgments held
that unless in the rule contrary intention appears to give retrospective
effect, every law or rule has prospective in operation.
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37. The word used in the impugned proviso provides
provides that if the
vacancies for direct recruitment are not filled up for two consecutive
selection processes
es then the said vacancies are to be filled up through
promotion amongst the eligible Civil Judge (Senior Division)
Division). The
proviso itself provides waiting for two consecutive selection processes
which means legislative intent was very clear that said proviso have
prospective operation and would apply even after two consecutive
selection processes,
processes if posts are lying vacant then the said posts
pos are to
be filled up by promotion. If the legislative intention was clear there is
no question to draw a contrary interpretation.
38. The Apex Court in the case of Excise Commr. v. Esthappan
Cherian,, (2021) 10 SCC 210 : 2021 SCC OnLine SC 664 held as
under:-
"16. There is profusion of judicial authority on the
proposition that a rule or law cannot be construed as
retrospective unless it expresses a clear or manifest
intention, to the contrary. In CIT v. Vatika Township (P)
Ltd. [CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1]
this Court, speaking through a Constitution Bench,
observed as follows : (SCC pp. 21
21-22, paras 28-29)
"28. Of the various rules guiding how a legislation has to be
interpreted, one established rule is that unless a contrary
intention
tion appears, a legislation is presumed not to be intended
to have a retrospective operation. The idea behind the rule is
that a current law should govern current activities. Law passed
today cannot apply to the events of the past. If we do something
today,, we do it keeping in view the law of today and in force
and not tomorrow's backward adjustment of it. Our belief in the
nature of the law is founded on the bedrock that every human
being is entitled to arrange his affairs by relying on the existing
law and d should not find that his plans have been retrospectively
upset. This principle of law is known as lex prospicit non
respicit : law looks forward not backward. As was observed in
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Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1] , a
retrospective legi
legislation
slation is contrary to the general principle
that legislation by which the conduct of mankind is to be
regulated when introduced for the first time to deal with future
acts ought not to change the character of past transactions
carried on upon the faith of the then existing law.
*** *** ***
29. The obvious basis of the principle against
retrospectivity is the principle of "fairness", which must
be the basis of every legal rule as was observed in L'Office
Cherifien des Phosphates v. Yamashita Yamashita-Shinnihon
Shinnihon
Steamship Co. Ltd. [L'Office Cherifien des Phosphates v.
Yamashita-Shinnihon
Shinnihon Steamship Co. Ltd., (1994) 1 AC 486
: (1994) 2 WLR 39 (HL)] Thus, legislations which modified
accrued rights or which impose obligations or impose new
duties or attach a new disa
disability
bility have to be treated as
prospective unless the legislative intent is clearly to give
the enactment a retrospective effect; unless the legislation
is for purpose of supplying an obvious omission in a
former legislation or to explain a former legislatio
legislation.
n. We
need not note the cornucopia of case law available on the
subject because aforesaid legal position clearly emerges
from the various decisions and this legal position was
conceded by the counsel for the parties. In any case, we
shall refer to few judg
judgments
ments containing this dicta, a little
later."
17. Another equally important principle applies : in the
absence of express statutory authorisation, delegated
legislation in the form of rules or regulations, cannot
operate retrospectively. In CIT v. M.C. Pon Ponnoose
noose [CIT v.
M.C. Ponnoose, (1969) 2 SCC 351 : (1970) 1 SCR 678]
this rule was spelt out in the following terms : (SCC p. 354,
para 5)
"5. ... The courts will not, therefore, ascribe retrospectivity to
new laws affecting rights unless by express words or ne
necessary
cessary
implication it appears that such was the intention of the
legislature. Parliament can delegate its legislative power
within the recognised limits. Where any rule or regulation is
made by any person or authority to whom such powers have
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been delegated
ed by the legislature it may or may not be possible
to make the same so as to give retrospective operation. It will
depend on the language employed in the statutory provision
which may in express terms or by necessary implication
empower the authority conc
concerned
erned to make a rule or regulation
with retrospective effect. But where no such language is to be
found it has been held by the courts that the persons or
authority exercising subordinate legislative functions cannot
make a rule, regulation or bye bye-law whichh can operate with
retrospective effect."
39. The Apex Court in the above case observed that a rule of law
cannot be construed as retrospective unless it expresses a clear or
manifest intention to the contrary, a legislation is presumed not to be
intended to have a retrospective operation. The rule is that a current law
should govern current activities. Law passed today cannot apply to the
events of the past. If we do something today
today, we do it keeping in view
the law of today and in force and not backward
backward adjustment of it. In the
absence of express statutory authorization, delegated legislation in the
form of rule or regulation, cannot operate retrospectively. The Apex
Court further observed that the Court will not ascribe retrospectivity to
new lawss affecting rights unless by express word or necessary
implication. It appears that such was the intention of the legislature. For
retrospective operation it will depend on the language employed in the
statutory provision which may in express terms or by necessary
n
implication empower the authority concerned to make a rule or
regulation with retrospective effect. In view of the above judgment, we
do not find any intention or any language which would suggest that the
proviso to impugned rule was made applicable
le retrospectively. Hence it
has a prospective operation which would be applicable on the date it
came into force.
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(iii) Validity of impugned proviso to rule 5(1)(c) of the Rules of
1994:-
40. Now we are coming to the question of validity of proviso to
impugned rule 5(1)(c) of the Rules of 1994
1994. The
he respondent no.1 issued
a notification on 13.08.2015 bringing proviso by amendment in
impugned rule. The proviso provides that if any post earmarked for
direct recruitment remains vacant even after two consecutive
consecutive selection
processes then the same shall be filled up by promotion amongst the
eligible Civil Judge (Senior Division). Relevant rule is as follows:-
follows:
"5. Method of Appointment
Appointment- (1) Appointment to the posts
in category (a) of sub
sub-rule (1) of rule 3 shall be made as
follows:-
*** *** ***
(c) 25 percent of the posts shall be filled by the direct
recruitment from amongst the eligible advocates on the
basis of the written test and viva voce conducted by the
High Court:
Provided that if any post earmarked for direct
recruitment remains vacant even after two consecutive
selection processes held for that purpose, the same shall
be filled by promotion from amongst the Civil Judges
(Senior Division), having not less then 7 years of
aggregate Judicial service and have attained the age of
35 years and have not attained the age of 48 years as on
the 1st January of the year in which applications for
filling up such vacant posts, are invited and strictly on
the basis of merit through written examination and viva-
voce conducted by the High Court keeping in mind
suitability of the candidate on the basis of his past
performance and reputation, on the assumption that
quota for direct recruitment to the extent of vacant posts
has broken down."
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41. A careful reading of the aforesaid rule, it is mentioned that the
proviso to impugned rule 5(1)(c) would apply if the seats are lying
vacant for two consecutive selection process
processes,
es, the same shall be filled
up by promotion amongst the Civil Judges (Senior Division).
Division)
42. The arguments advanced by Shri Anil Khare, learned Senior
Advocate appearing for petitioner are that the issue is in two folds, one
is that the quota could not have been transferred. He referred
documents to indicate that advertisement for the exam 201
2016 and 2017
to be filled from advocates and the advertisement issued pursuant to
proviso to rule 5(1)(c) of the Rules of 1994 indicates the posts are being
filled up by virtue of proviso which has been added to impugned rule
5(1)(c) which clearly indicat
indicates
es that the quota fixed for direct
recruitment from advocates is being transferred. As far as the quota
fixed for eligible advocates is concerned, this was created by the
Supreme Court in first All India Judges' Association's case (2002) 4
SCC 247, wherein it was clearly stated that 25% of the posts be filled
up by direct recruitment from amongst the lawyers. There was slight
change in the quota meant for the judges in the senior scale and limited
competitive examination. As ffar as lawyers are concerned
concerned, the quota
remained intact i.e. 25%. In this regard, he referred to para 28 of the
judgment of Supreme Court rendered in the case of All India Judges'
Association Vs. Union of India and others reported in (2002) 4 SCC
247 to contend
tend that it clearly stipulates a quota as far as the direct
recruitment is concerned through advocates from the Bar.
43. The learned senior counsel for petitioner also referred para 8 of
the second judgment i.e. All India Judges' Association Vs. Union of
India and others reported in (2010) 15 SCC 170 contending that as far
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as the quota from Bar is concerned, that remained intact but by the rule
which was amended, the quota has been diverted. By virtue of amended
proviso, the fourth category has been added whereas there were only
three categories, one by promotion from civil judge senior division,
second by limited competitive examination and third was from the Bar.
By virtue of impugned proviso, the respondents created a fourth
category, which was not permissible,
permissible, as was observed by the Supreme
Court in the case of Dheeraj Mor vs. High Court of Delhi reported in
(2020) 7 SCC 401 that the quota of 25% from advocates could not have
been diverted by virtue of Article 233 of the Constitution of India. This
appointment is basically from amongst the Bar and others are being
debarred by virtue of Article 23
233(2) of the Constitution. He referred to
rule 5 of the Rules of 1994 which provides method of appointment. The
advertisement clearly depicts that there is a diversion of quota meant
for advocates. The seats which remained unfilled in the year 2015 were
diverted
erted to that quota under proviso to rule 5(1)(c) of the Rules of 1994.
In support of his contentions, he has placed reliance on the judgment of
Dheeraj Mor (supra), contending that the quota meant for advocates
could not have been transferred. The relevantt paras are reproduced as
under:-
"29. The recruitment from the Bar also has a purpose behind
it. The practising advocates are recruited not only in the
higher judiciary but in the High Court and Supreme Court as
well. There is a stream (of appointment) for in in-service
service
candidates of higher judiciary
judiciary in the High Court and another
stream clearly earmarked for the Bar. The members of the
Bar also become experts in their field and gain expertise and
have the experience of appearing in various courts. Thus, not
only in the higher judiciary, in in-servicee candidates of
subordinate judiciary are given the opportunity as against 75
per cent to be appointed by way of promotion as provided
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in All India Judges Assn. case [All India Judges Assn.
(3) v. Union of India, (2002) 4 SCC 247 : 2002 SCC (L&S)
508] , andd the members of the Bar are given the opportunity
as against 25 per cent of the post having 7 years' standing at
Bar.
30. The makers of the Constitution visualised and the law
administered in the country for the last seven decades clearly
reveals that the
the aforesaid modes of recruitment and two
separate sources, one from in in-service
service and other from the Bar,
are recognised. We do not find even a single decision
supporting the cause espoused on behalf of candidates, who
are in judicial service, to stake their claim as against the posts
reserved for advocates/pleaders. In all the cases right from
beginning from Rameshwar Dayal [Rameshwar Dayal v. State
of Punjab, (1961) 2 SCR 874 : AIR 1961 SC 816] to date, a
dichotomy has been maintained, and we find absolutely no
room to entertain submission of discrimination based on
Articles 14 and 16.
31. We are not impressed by the submission that when this
Court has interpreted the meaning of service in Article 233(2)
to mean judicial service, judicial officers are eligib
eligible as
against the posts reserved for the advocates/pleaders. Article
233(2) starts with the negative "not", which disentitles the
claim of judicial officers against the post reserved for the
practising advocates/pleaders. They can be promoted to that
post as per the rules; this Court has further laid down a wider
horizon to in
in-service candidates in All India Judges Assn. [All
India Judges Assn. (3) v. Union of India, (2002) 4 SCC 247 :
2002 SCC (L&S) 508] as against the 75 per cent of the post
by including merit promotion. The argument that merit should
prevail and they should be given due opportunity under the
rules to prove their merit and to excel, in our opinion, cannot
prevail. Such judicial officer cannot claim merit in violation
of the provisions of rrules
ules framed under Article 234 of the
Constitution. The two classes are different. In terms of the
prevalent rules in-service
in service candidates lack eligibility. They
cannot contend that they are discriminated against and their
merit is ignored and overlooked.
overlooked."
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44. Learned counsel for the respondent No.2 vehemently argued that
this is not a case of creating a new quota. It is a case where after having
operated the quota, the quota has failed to yield recruitment from the
percentage which is prescribed for that par
particular
ticular quota and if this
repeatedly happens, the Hon'ble Supreme Court says that if the quota
breaks down then there is no point to insist upon continuously going
with the same quota and coming out with the result that the vacancy
remained unfilled after several consecutive years. Drawing attention of
this Court to the proviso which is added, he contended that this will be
operated on the assumption that the quota for direct recruit on the
vacant post has broken down. It does not create a new quota. It cat
caters
to a situation when the quota has broken down. This aspect has been
dealt with in a judgment by the Supreme Court in the case of Direct
Recruitment Class II Engineering Officers' Association Vs. State of
Maharashtra and others reported in (1990) 2 SCC 715. He referred to
para 21 and 23 of this judgment. He submits that the action of the
respondents was not arbitrary or illegal to meet the exigency. If the
quota has broken down on account of frustration over several years of
the vacancies going unfilled, then an appropriate amendment can be
brought to incorporate a situation to deal with the aspect that the quota
has broken down and therefore, that quota can be given to some other
source at which candidates are available. To substantiate his argument
as to
o how the quota has broken down and in what situation, they had to
amend the rule. He referred to his additional return, in which it was
stated that the enormity and seriousness of the situation can be
discerned from the fact that in Madhya Pradesh in the year 2011 and
2012, the recruitment process was undertaken for 33 and 42 vacancies
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respectively. However not a single candidate could qualify for
selection to those posts. Similarly in the selection process of 2014 for
filling up 77 vacancies, only one per
person
son qualified for interview out of
3209 candidates who appeared in the examination and he too could not
be selected.
45. The relevant paras of the judgment of the Apex Court in the
case of Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra, (1990) 2 SCC 715 are reproduced as under:-
"21. It has, however, been rightly suggested on behalf of
the appellants that when recruitment is from more than
one source, there is no inherent invalidity in introducing
quota system, but as was observed in Subraman case
[(1975) 1 SCC 319 : 1975 SCC (L&S) (L&S) 36 : (1975) 2 SCR
979] , the unreasonable implementation of such a rule may
attract the frown of the equality clause. Further, if a rule
fixing the ratio for recruitment from different sources is
framed, it is meant to be respected and not violated at the
th
whims of the authority. It ought to be strictly followed and
not arbitrarily ignored. This, of course, may not prevent
the government from making slight deviations to meet the
exigencies. If it is discovered that the rule has been
rendered impracticable, it should be promptly substituted
by an appropriate rule according to the situation. The
question, however, is as to what is the conclusion if the
quota rules is not followed at all continuously for a
number of years, after it becomes impossible to adhere to
the same. Admittedly in the present cases direct recruits
were not available in adequate number for appointment,
and appropriate candidates in the subordinate rank
capable of efficiently discharging the duties of Deputy
Engineers were waiting in their queue. The development
work of the State peremptorily required experienced and
efficient hands. In the situation the State Government took
a decision to fill up the vacancies by promotion in excess
of the quota, but only after subjecting the officers to the
th
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test prescribed by the rules. All the eligible candidates
were considered and the opinion of the Public Service
Commission was obtained. The appointments were not
limited to a particular period and as a matter of fact
continued till 1970 when the fresh rules
rules were introduced.
*** *** ***
23. Mr Tarkunde is right that the rules fixing the quota of
the appointees from two sources are meant to be followed.
But if it becomes impractical to act upon it, it is no use
insisting that the authorities must con
continue
tinue to give effect to
it. There is no sense in asking the performance of
something which has become impossible. Of course, the
government, before departing from the rule, must make
every effort to respect it, and only when it ceases to be
feasible to enfenforce
orce it, that it has to be ignored. Mr
Tarkunde is right when he says that in such a situation the
rule should be appropriately amended, so that the scope
for unnecessary controversy is eliminated. But, merely for
the reason that this step is not taken promptly,
promptly, the quota
rule, the performance of which has been rendered
impossible, cannot be treated to continue as operative and
binding. The unavoidable situation brings about its natural
demise, and there is no meaning in pretending that it is
still vibrant with life. In such a situation if appointments
from one source are made in excess of the quota, but in a
regular manner and after following the prescribed
procedure, there is no reason to push down the appointees
below the recruits from the other source whowho are inducted
in the Service subsequently. The later appointees may have
been young students still prosecuting their studies when
the appointments from the other source take place -- and it
is claimed on behalf of the respondents that this is the
position with respect to many of the direct recruits in the
present case -- and, it will be highly inequitable and
arbitrary to treat them as senior. Further, in cases where
the rules themselves permit the government to relax the
provisions fixing the ratio, the pos
position
ition for the appointees
is still better; and a mere deviation therefrom would raise
a presumption in favour of the exercise of the power of
relaxation. There would be still a third consideration
relevant in this context : namely, what is the conclusion to
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be drawn from deliberate continuous refusal to follow an
executive instruction fixing the quota. The inference would
be that the executive instruction has ceased to remain
operative. In all these cases, the matter would however be
subject to the scrutiny of the court on the ground of mala
fide exercise of power. All the three circumstances
mentioned above which are capable of neutralising the
rigours of the quota rule are present in the cases before us,
and the principle of seniority being dependent on
continuous
tinuous officiation cannot be held to have been
defeated by reason of the ratio fixed by the 1960 Rules.
*** *** ***
33. The petitioner in W.P. No. 5187 of 1983, S.B. Sohoni,
was directly appointed as a Deputy Engineer in March
1961 and was confirmed in 1963. It was, therefore, rightly
point out by Mr Singhvi that he was not concerned with the
1978 Rules at all. The writ petition, in absence of grounds
relating to the 1978 Rules, confirms this impression. He
has of course challenged the 1982 Rules, as they stood
before the amendment in 1984, but did not, after 1984
amendment, make any prayer for modification of his writ
petition. He also did not consider it necessary to file an
appeal against the High Court judgment. No additional
ground has been raiseraised
d on his behalf to be dealt with
separately.
*** *** ***
42. The two petitioners in Writ Petitions Nos. 3947-
3947-48 of
1983 are Executive Engineers in the Irrigation Department
of the Government of Gujarat. Although the case was
initially filed through aadvocates,
dvocates, at the hearing on a
request by them petitioner 1 was allowed to argue the case
in person on their behalf. Besides impleading the State of
Gujarat, the Government of Maharashtra and the Union of
India as respondents 1, 2 and 3 respectively, H.N. SShah,
another officer of the same department, was made a party
as respondent 4 in the writ petition. The case of the
petitioners is that respondent 4 was junior to them and was
erroneously treated as senior in the seniority lists for the
period November 1, 1956 to April 30, 1960 prepared in
accordance with the 1978 Rules.
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46. The Apex Court in the aforesaid judgment has observed that if a
rule fixing the ratio for recruitment for different sources is framed, it is
meant to be respected and not violated at the whims of authority. It
ought to be strictly followed and not arbitrarily
arbitrarily ignored. In the present
case, if the situation was that the quota was failed to yield recruitment
from past selection process and the quota required to be broken down
then there is no doubt about continuation of the same quota which was
failed to fulfill
ll the objects sought to be achieved. The quota meant for
the direct recruitment can be reduced from 25% to the desirable extent,
but the Apex Court in the case of All India Judges' Association, 2002
in para 40 specifically observed that if any clarification required in
respect of any matter arising out of this decision will be sought only
from the Apex Court. If any modification is required then the
respondent No.2 must require to obtain prior clarification
ication to modify the
aforesaid quota due to the reason that the prescribed quota failed to
yield recruitment. In the case in hand, the respondent No.2 admittedly
could not seek prior clarification from the Apex Court before
incorporating the impugned proviso.
proviso. As done in the case of All India
Judges' Association, 2010
2010,, the question before the Apex Court was
that a large number of vacancies remained unfilled under the quota for
limited competitive examination
examination, which was 25% because in the
normal course, the judges get promoted before completing the period
of five years in service then the Apex Court modif
modified their earlier
direction and reduce
reduced the quota for limited competitive examination
from 25% to 10%. In the present case, no clarification was sought from
the Apex Court, which is in violation of the judgment passed in the All
India Judges' Association, 2002.
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47. The submission advanced by the learned counsel for the
respondent No.2 is that the quota has failed to yield recruitment from
the percentage which is prescribed for that particular quota and if this
repeatedly happens, the Hon'ble Supreme Court says that if the quota
breaks down then there is no point to insist upon continuously going
with the same quota.
quota In our considered view that the quota m
meant for
direct recruitment from the Bar cannot be broken down, the reason is
that the Article 233(2) specifically provides eligibility to be appointed
as District Judge i.e.
(1) Not already in the service of Union or the State.
(2) He has been for not lless
ess than 7 years an advocate or a pleader
and recommended
ecommended by the High Court.
48. The prior condition to be appointed as a District Judge from the
quota meant for Bar is that a person should not already in the service of
Union or the State and he has not less than 7 years as an advocate or
pleader but in the case in hand the candidates who were appointed
under the garb of impugned proviso w
were already in service, they are
serving as Civil Judge (Senior Division) at that time. The Constitution
Bench of Apex Court in the case of Chandra Mohan Vs. State of U.P.
reported in AIR 1996 SC 1987 has observed that the expression "the
service" means "judicial
"judicial service". In any manner, they do not fulfill the
eligibility criteria which is prescribed by the Article 233(2) of the
Constitution of India. Hence, we are of the considered view that the
quota for direct recruitment cannot be broken down.
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49. The further argument of the learned counsel for the respondent
No.2 is that it was resolved in the Chief Justices'
Justices conference held on
3rd and 4th April, 2015 to leave it open to the respective High Courts
to evolve appropriate methods within the system to fill up the
vacancies for appointment of District Judges expeditiously. Therefore,
it became necessary to consider modification to the rules policy
relating to direct recruitment in Higher Judicial Service (Entry Level)
cadre for advocates by adopting multipron
multipronged
ged approach. The then
Chief Justice recommended to consider amendment in the Rules to
provide for automatic commensurate increase in the strength of
promotional posts of District Judge (Entry Level) cadre to be filled on
merit basis only, if more than 10% posts, reserved for direct selection
of District Judge (Entry Level) from the Bar remains vacant for two
consecutive years. This leads to amendment to Rule 5(1)(c) and
incorporation of the proviso. In this regard, he referred document
AR/2- Resolutions ad
adopted
opted in the Chief Justices' Conference, 2015
held on 3rd/4th April 2015 with regard to evolve appropriate method.
Ultimately after passing resolution by the Full Court of this Court
taking note of all the datas, the rule was amended.
50. The
he Supreme Court was monitoring the filling up of the
vacancies in the subordinate judiciary in Malik Mazhar Sultan (3) Vs.
Uttar Pradesh Public Service Commission and others reported in
(2008) 17 SCC 703 as to how the different High Courts are filling up
the vacancies. The High Court had to evolve a criteria to fill up the
vacancies. When the Chief Justices conference recommends to evolve
a system within the existing legal framework, it would necessarily
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imply that some changes
change were required and within the system would
mean that not to bring judges from outside but within the already
alread
prescribed quotas. Further learned counsel for respondent No.2
submitted that some changes were required to be made so that those
vacancies do not remain unfilled and therefore
therefore,, within the already
system itself, there was already a promotional quota and that
promotional quota was given one additional opportunity to get
recruited by applying the breakdown of quota rule. It is within the
system and not outside of system.
51. We have considered the submissions made by the learned
counsel for the respondent No.2 in this behalf and perused the material
available on record. In the Chief Justices' Conference which was held
on 3rd and 4th April, 2015, it was resolved that let leave it open to the
respective High Courts to evolve an appropriate method within the
existing system to fill up the vacancies. Therein it was specifically
mentioned to evolve an appropriate method but within the existing
exi
system which means that whatever method that can be evolved to fill
up the vacancies but that should be confined to the existing quota
system. The Chief Justices' Conference was also of the view that
existing system could not be disturbed and whateve
whateverr evolved should be
under the existing system. But in the present case, the quota meant for
direct recruitment has been diverted and created a fourth channel for
appointment to the post of District Judges, which is also against the
what has been resolved iin the Chief Justices' Conference. Thus, we are
unable to accept the submissions made by the learned counsel for the
respondent No.2 that after the resolution of the Chief Justices'
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Conference, it became necessary to consider the modification of the
rule relating
lating to direct recruitment in the Higher Judicial Service (Entry
Level).
52. The Article 233 of the Constitution of India provides the two
sources of recruitment, one is from judicial service and other is from
Bar. Article 233 of the Constitution of Ind
India
ia provides as under:-
under:
"233.Appointment
233.Appointment of district judges.-
judges
(1) Appointments of persons to be, and the posting and
promotion of, district judges in any State shall be made by
the Governor of the State in consultation with the High
Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of
the State shall only be eligible to be appointed a district
judge if he has been for not less than seven years an
advocate or a pleader and is recommended by the High
Court for appointment."
53. Article 233(2) provides the criteria for appointment to the post of
District Judge who is not already in service of Union or State and has
not less than 7 years as an advocate or a pleader. The Article 233(2)
specifically provides that the eligibility to bbee appointed as a District
Judge is that a person should not already in service of the Union or
State, the prior condition according to the Article 233(2) is that a person
should not be in a service of Union or State.
54. The Constitution Bench of the Apex
Apex Court in the case of
Chandra Mohan Vs. State of U.P. reported in AIR 1966 SC 1987 has
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considered the expression "the service" used in the Article 233(2) of the
Constitution means "judicial service" and held as follows:-
"The gist of the said provisions may be stated thus:
Appointments of persons to be, and the posting and
promotion of, district judges in any State shall be made by the
Governor of the State. There are two sources of recruitment,
namely, (i) service of the Union or of the State, and (ii) m
members
of the Bar. The said judges from the first source are appointed in
consultation with the High Court and those from the second
source are appointed on the recommendation of the High Court.
But in the case of appointments of persons to the judicial seservice
other than as district judges, they will be made by the Governor
of the State in accordance with rules framed by him in
consultation with the High Court and the Public Service
Commission. But the High Court has control over all the district
courts and d courts subordinate thereto, subject to certain
prescribed limitations.
So far there is no dispute. But the real conflict rests on the
question whether the Governor can appoint as district judges
persons from services other than the judicial service; that is to
say, can he appoint a person who is in the police, excise, revenue
or such other service as a district judge? The acceptance of this
position would take us back to the pre-independence
pre independence days and
that too to the conditions prevailing in the Princely SStates.
tates. In the
Princely States one used to come across appointments to the
judicial service from police and other departments. This would
also cut across the well
well-knit
knit scheme of the Constitution and the
principle underlying it, namely, the judiciary shall be b an
independent service. Doubtless, if Art. 233(1) stood alone, it may
be argued that the Governor may appoint any person as a
district judge, whether legally qualified or not, if he belongs to
any service under the State. But Art. 233(l)is nothing more than t
a declaration of the general power of the Governor in the matter
of appointment of district judges. It does not lay down the
qualifications of the candidates to be appointed or denote the
sources from which the recruitment has to be made. But the
sources
es of recruitment are indicated in cl. (2) thereof. Under cl.
(2) of Art. 233 two sources are given, namely, (i) persons in the
service of the Union or of the State, and (ii) advocate or pleader.
Can it be said that in tthee context of Ch. VI of Part VI of the t
Constitution "the service of the Union or of the State" means any
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service of the Union or of the State or does it mean the judicial
service of the Union or of the State? The setting, viz., the chapter
dealing with subordinate courts, in which the expres expression
sion "the
service" appears indicates that the service mentioned therein is
the service pertaining to courts. That apart, Art. 236(b) defines
the expression "judicial service" to mean a service consisting
exclusively of persons intended to fill the post of district judge
and other civil judicial posts inferior to the post of district judge.
If this definition, instead of appearing in Art. 236, is placed as a
clause before Art. 233(2), there cannot be any dispute that "the
service" in Art. 233(2) can only mea mean n the judicial service. The
circumstance that the definition of "judicial service" finds a
place in a subsequent Article does not necessarily lead to a
contrary conclusion. The fact that in Art. 233(2) the expression
"the service" is used whereas in Arts. 234 and 235 the
expression "judicial service" is found is not decisive of the
question whether the expression "the service" in Art. 233(2) must
be something other than the judicial service, for, the entire
chapter is dealing with the judicial service. The definition is
exhaustive of the service. Two expressions in the definition bring
out the idea that the judicial service consists of hierarchy of
judicial officers starting from the lowest and ending with district
judges. The expressions "exclusively" and "intended"
"intended" emphasise
the fact that the judicial service consists only of persons intended
to fill up the posts of district judges and other civil judicial posts
and that is the exclusive service of judicial officers. Having
defined "judicial service" in exclusive
exclusive terms, having provided for
appointments to that service and having entrusted the control of
the said service to the care of the High Court, the makers of the
world Constitution not have conferred a blanket power on the
Governor to appoint any person from any service as a district
judge.
Reliance is placed upon the decision of this court in
Rameshwar Dayal v. State of Punjab(1) in support of the
contention that "the service" in Art. 233(2) means any service
under the State. The question in that case was,
was, whether a person
whose name was on the roll of advocates of the East Punjab
High Court could be appointed as a district judge. In the course
of the judgment S. K. Das, J., speaking for the Court, observed:
"Article 233 is a self contained provision regarding
regarding the
appointment of District Judges. As to a person who is already in
the service of the Union or of the State, no special qualifications
are laid down and under cl. (1) the Governor can appoint such a
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person as a district judge in consultation with the relevant High
Court. As to a person not already in service, a qualification is
laid down in cl. (2) and all that is required is that he should be
an advocate or pleader of seven years' standing."
This passage is nothing more than a summary of the
relevant
ant provisions. The question whether "the service" in Art.
233(2) is any service of the Union or of the State did not arise
for consideration in that case nor did the Court express any
opinion thereon.
We, therefore, construe the expression "the service" in cl.
(2) of Art. 233 as the judicial service.
service."
55. The Apex Court in the above judgment held that in Article
233(2) of the Constitution of India, the expression used "the service"
means "judicial service".
56. The Apex Court in the case of Satya Narain Singh v. Allahabad
High Court, (1985) 1 SCC 225 interpreting Article 233 of the
Constitution of India held as under:-
under:
"3. Article 233 is as follows:
233(1) Appointments of persons to be, and the posting and
promotion of, District Judges in any State shall be made by the
Governor of the State in consultation with the High Court
exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the
State shall only be eligible to be appointed a District Judge if he
has been for not less than seven years an advocate or a pleader
and is recommended by the High Court for appointment.
Two points straightway project themselves when the two clauses
of Article 233 are read: The first clause deals with
"appointments
ents of persons to be, and the posting and promotion
of, District Judges in any State" while the second clause is
confined in its application to persons "not already in the service
of the Union or of the State". We may mention here that "service
of the Union
on or of the State" has been interpreted by this Court
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to mean Judicial Service. Again while the first clause makes
consultation by the Governor of the State with the High Court
necessary, the second clause requires that the High Court must
recommend a perperson
son for appointment as a District Judge. It is
only in respect of the persons covered by the second clause that
there is a requirement that a person shall be eligible for
appointment as District Judge if he has been an advocate or a
pleader for not less th
than
an 7 years. In other words, in the case of
candidates who are not members of a Judicial Service they must
have been advocates or pleaders for not less than 7 years and
they have to be recommended by the High Court before they may
be appointed as District JJudges,
udges, while in the case of candidates
who are members of a Judicial Service the 7 years' rule has no
application but there has to be consultation with the High Court.
A clear distinction is made between the two sources of
recruitment and the dichotomy is maintained. The two streams
are separate until they come together by appointment. Obviously
the same ship cannot sail both the streams simultaneously. The
dichotomy is clearly brought out by S.K. Das, J. in Rameshwar
Dayal v. State of Punjab [AIR 1961 SC 816816 : (1961) 2 SCR 874 :
(1961) 2 SCJ 285] where he observes:
"Article 233 is a self contained provision regarding the
appointment of District Judges. As to a person who is already in
the service of the Union or of the State, no special qualifications
are laid down and under clause (1) the Governor can appoint
such a person as a district judge in consultation with the
relevant High Court. As to a person not already in service, a
qualification is laid down in clause (2) and all that is required is
that he should
ould be an advocate or pleader of seven years'
standing."
Again dealing with the cases of Harbans Singh and Sawhney it
was observed:
"We consider that even if we proceed on the footing that both
these persons were recruited from the Bar and their appoint
appointment
has to be tested by the requirements of clause (2), we must hold
that they fulfilled those requirements."
Clearly the Court was expressing the view that it was in the case
of recruitment from the Bar, as distinguished from Judicial
Service that the rrequirements
equirements of clause (2) had to be fulfilled. We
may also add here earlier the Court also expressed the view:
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"... we do not think that clause (2) of Article 233 can be
interpreted in the light of Explanations added to Articles 124 and
217".
57. The Apex Court in the above judgment has observed that clear
distinction is made between the two sources of recruitment and the
dichotomy is maintained. The two streams are separate until they come
together by appointment. Obviously the same ship cannot sa
sail both the
streams simultaneously. The two steams mean that those in one stream
"judicial service" could not compete for vacancies falling in the quota
earmarked for advocates
advocates.
58. In view of the above judgment and in light of the Article 233(2)
of the Constitution,
onstitution, the candidates who were appointed to the post of
District Judge (Entry Level) through the impugned proviso were
already in service and were serving as Civil Judge (Senior Division) at
the time of applying for the said posts. The service candidates
candid cannot
participate under the quota meant for direct recruitment from Bar. If it
is allowed that in--service
service candidates can be appointed to the post of
District Judge from Bar quota, it would be direct violation of Article
233(2) of the Constitution of India, therefore, we are of the considered
view that the said proviso was in violation of Article 233(2) of
Constitution of India.
59. The Apex Court in the case of All India Judges' Association
and others Vs. Union of India and others reported in (2002) 4 SCC
247 considered the appointment in the Higher Judicial Service to the
posts off District Judge
Judge. The Apex Court in the said judgment provided
quota for appointment of District Judges. The said quota was fixed 50%
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by promotion, 25% fo
forr Limited Competitive Examination and 25% for
direct recruitment from Bar. The relevant para of the said judgment is
as follows:-
"28. As a result of the aforesaid, to recapitulate, we direct that
recruitment to the Higher Judicial Service i.e. the cadre oof
District Judges will be:
(1)(a) 50 per cent by promotion from amongst the Civil Judges
(Senior Division) on the basis of principle of merit
merit-cum-seniority
seniority
and passing a suitability test;
(b) 25 per cent by promotion strictly on the basis of merit
throughh limited competitive examination of Civil Judges (Senior
Division) having not less than five years' qualifying service; and
(c) 25 per cent of the posts shall be filled by direct
recruitment from amongst the eligible advocates on the basis of
the written and viva voce test conducted by respective High
Courts."
60. The Apex Court further held in para 40 that if any clarification
that may be required should be sought for only from the Apex Court.
The relevant para is as follows:-
follows:
"40. Any clarification that may be required in respect of any
matter arising out of this decision will be sought only from this
Court. The proceedings, if any, for implementation of the
directions given in this judgment shall be filed only in this Court
and no other court shall entertain
ente them".
61. The Apex Court specifically fixed the quota to be filled up only
by three channels. One is for promotion, second is for limited
competitive examination and the third is for direct recruitment from Bar
but the respondent No.2 in the instant case created a fourth channel by
breaking down the quota meant for direct recruitment only from Bar.
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The Apex Court further observed that if any clarification that may be
required in respect
spect of any matter arising out of this decision will be
sought only from th
the Apex Court and no other Court will entertain the
same but respondent No.2 before making such a significant changes by
bringing such proviso in the rule 5(1)(c) of the Rules of 19
1994, the
respondent No.2 did not take any clarification from the Apex Court,
which was the prior condition
condition. In our considered view,
view before
incorporating the said proviso to impugned rule which significantly
reduced the quota meant for direct recruitment from Bar and created a
fourth channel the respondent No.2 must have taken prior clarification
from the Apex Court before modifying or diverting the quota,
quota which
wass not done in the instant case.
case Hence, the impugned proviso is in
direct violation
iolation of the above judgment.
62. Furthermore, the Apex Court in the case of All India Judges'
Assn. v. Union of India
India, (2010) 15 SCC 170,, has revised the said quota
due to non-availability
availability of the suitable candidates for limited
competitive examination, therefore the Apex Court enhanced the quota
for promotion from 50% to 65% and reduced the quota for limited
competitive examination from 25% to 10%. But the quota meant for
Bar remained intact i.e. 25%. The relevant paras are as follows:
follows:-
"6. Having regar
regardd to various strategies available, we are of
the considered view that suitable amendment is to be made for
this 25% quota of limited departmental competitive
examination. We are also of the view, with the past experience,
that it is desirable that 25% quot
quota
a be reduced to 10%. We feel
so as the required result, which was sought to be achieved by
this process could not be achieved, thus it calls for
modification.
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7. Thus, we direct that henceforth only 10% of the cadre
strength of District Judges be filled up by limited departmental
competitive examination with those candidates who have
qualified service of five years as Civil Judge (Senior Division).
Every year vacancies are to be ascertained and the process of
selection shall be taken care of by the High C
Courts.
ourts. If any of the
post is not filled up under 10% quota, the same shall be filled
up by regular promotion. In some of the High Courts, process
of selection of these 25% quota by holding limited
departmental competitive examination is in progress, such
process
rocess can be continued and the unfilled seats, if meritorious
candidates are available, should be filled up. But if for some
reason the seats are not filled up, they may be filled up by
regular promotion and apply the usual mode of promotion
process. Thus we pass the following order.
8. Hereinafter, there shall be 25% of seats for direct
recruitment from the Bar, 65% of seats are to be filled up by
regular promotion of Civil Judge (Senior Division) and 10%
seats are to be filled up by limited departmental competitive
examination. If candidates are not available for 10% seats, or
are not able to qualify in the examination then vacant posts are
to be filled up by regular promotion in accordance with the
Service Rules applicable
applicable."
63. The Apex Court was con
concerned
cerned about a large number of
vacancies, which were remained unfilled under the quota for limited
competitive examination because in the normal course the judges get
promotion before completing the period of their five year in service.
The Apex Court obse
observed
rved that this is not good for the judicial
administration. That is why the Apex Court modified their earlier
direction and reduced the quota for limited competitive examination
from 25% to 10%. Further the Apex Court specifically observed that if
any post is not filled up under 10% quota, the same shall be filled up by
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regular promotion. But the quota meant for Bar remained unchanged
i.e. 25%.
64. The learned counsel for the petitioner relied on the judgment
passed by the Apex Court in the case of Dheeraj Mor (supra) wherein
it was held that the judicial officer cannot stake their claim against the
quota meant for direct recruitment from Bar i.e. 25%. The Apex Court
in the aforesaid judgment considered the three categories of persons,
one those who are in judicial
judicial service have claimed that in case before
joining judicial service the candidate has completed seven years
practice as an advocate, second category of persons, who having
completed only seven years of service as judicial officers and the third
category
ory of a candidates, who have completed seven years by
combining the experience serving as a judicial officer and as advocate.
They are claiming to be eligible under the direct recruitment quota. But
in the case in hand, the issue is different, what was co
considered
nsidered in the
said judgment and review of the same is pending for consideration
before the Apex Court. Herein the respondent No.2 by incorporating
impugned proviso on 13.8.2015 created a fourth channel for promotion
amongst the Civil Judge (Senior Divisi
Division)
on) to the post of District Judge
(Entry Level) by diverting the quota meant for direct recruitment from
the Bar and reduced the number of seats which was exclusively meant
for direct recruitment. Hence, the issue in hand is different what is
pending review
w of the judgment passed by the Apex Court in Dheeraj
Mor (supra), therefore, in our considered opinion the same is not
applicable in the present case.
65. In view of the above discussion, the Apex Court hass carved out
only three channels for appointment to the post of District Judges but iin
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the case in hand, the respondent No.2 created a fourth channel for
appointment to the post of District Judge by incorporating said proviso
to the impugned rule, which is clearly in violation of the judgment
passed by the Apex Court in All India Judges' Association Case, 2002
and 2010. On perusal of the proviso to impugned rule, it provides that
if the quota meant for Bar are not filled up for two consecutive
selection processes then the said post
posts would be filled up by promotion
amongst the eligible Civil Judge (Senior Division). Surprisingly,
without waiting for two consecutive selection processes, the respondent
No.2
.2 applied that quota in the advertisement of 2016 and 2017 itself
reducing the number of posts fixed for direct recruitment from Bar. But
after realizing their mistake, respondent No.2 withdrew the said
proviso to impugned rule.
66. Furthermore, under the impugned proviso to rule 5(1)(c),
respondent No.2 issued a notification for the year 2016 and 2017 for
recruitment by promotion amongst the Civil Judges (Senior Division)
and for direct recruitment from Bar under the same examination
exam and
same interview. The respondent issued a result,
result wherein shockingly the
less meritorious candidates who secured lesser marks are placed above
the meritorious candidates who secured more marks. Taking note of the
above, wee are therefore of the considered view that the proviso to
impugned rule 5(1)(c) of the Rules of 1994 is violative
olative of constitutional
mandate and the judgments passed by the Apex Court in All India
Judges' Association case, 2002 and 2010 on the following three
reasons;
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Firstly, the impugned proviso to rule 5(1)(c) of the Rules of 1994
is violative of constitutional mandate under Article 233(2) of
Constitution of India
India;
Secondly,, the proviso of impugned rule 5(1)(c) of the Rules of
1994 is creating fourth channel for appointment on the post of Higher
Judicial Service, which is in direct violation of both the judgments
passed by the Apex Court in All India Judges Associations' case
(supra) and;
Thirdly, the proviso of impugned rule provid
provides
es that if the quota
meant for direct recruitment from Bar are not filled up for two
consecutive selection processes
processes,, then the said posts would be filled up
by promotion amongst the eligible Civil Judges
udges (Senior Division) but
without waiting for two consec
consecutive selection processes,
processes the
respondents applied said proviso of impugned rule in 2016 and 2017
itself.
67. Coming to the issue with regard to proviso to the impugned rule,
we notice that the judicial officers at the time of filling up the
application form for the exam 2016 and 2017 were working as Civil
Judges (Senior Division) and under the impugned proviso they wer
were
appointed to higher post of District Judges though they were not
eligible to be appointed for the post of District Judge (Entry Level)
under the quota exclusively meant for direct recruitment from Bar.
68. Now we may consider the appointment made under the
impugned proviso for the year 2016 and 2017. The judicial officers
who were appointed under the impugned proviso were not at their fault
at the time of filling
ing of the applicatio
application form.. They had appeared in the
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examination and after successful
successfully cleared the same, they were
appointed to the post of District Judge (Entry Level). Now they have
been serving approximately for 9 years but the said provisional select
list which was published by the respondent No.2 had clearly mentioned
that result/all steps tak
taken
en on the basis of amended proviso will be
subject to final outcome of this petition. All the candidates were aware
about that their appointments are subject to outcome of this petition.
Hence, they cannot claim as a right to be appointed to such higher post
po
for which they are not eligible to be appointed under the garb of
impugned proviso which was violative of constitutional mandate and
judgments passed by the Apex Court in All India Judges' Association
case, 2002 and 2010. In Pramod
mod Kumar Vs. U.P. Secondary
Education Service Commission reported in (2008) 7 SCC 153, the
Apex Court held that the law is well settled that an appointment made
contrary to the statute/statutory rule would be void. Further the Apex
Court in the case of Ashok Kumar Sonkar Vs.. Union of India reported
in (2007) 4 SCC 54 has held that if an appointment is illegal, it is non-
non
est in the eye of the law, which renders the appointment to be a nullity.
At the time of filling up of the application pursuant to the advertisement
2016 and 2017, they were working as the Civil Judge (Senior Division)
and after that they are serving for 9 years to the higher post of District
Judge, it would not be appropriate to revert these judicial officers to
their original posts of Civil Judge (Senior Div
Division).
69. If that would have been the situation where the respondent No.2
validly inserted and applied said proviso then the proviso would have
come in operation for the vacancies arising in 2018 and 2019. We have
noticed that these judicial officers are belonging to the batches
batch of 2007
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and 2008 and the judicial officers belonging to said batch
batches have
already been promoted to the post of District Judge in the year 2018
and 2019 respectively. No prejudice would be caused to them if they
are placed in their
eir respective batches. As the petition is pending since
2016, we deem it appropriate on the ground of equity that these judicial
officers be placed in their respective batches of 2007 and 2008 and
their interse seniority should be fixed as per their grada
gradation list as
existed on the date of promotion of judicial officers of their respective
batches to the post of District Judge. We have noticed that for the
promotion to the post of District Judge, the judicial officers are
required to pass the suitability ttest
est conducted for that purpose. It is
however clarified that these judicial officers have been appointed after
passing the examination held in 2016 and 2017 and presently working
as District Judges since then. For the said reason, we deem it
appropriate that
at they are not required to pass the suitability test.
70. Hence, in view of the above, we are of the considered view that
impugned proviso to rule 5(1)(c) of the Rules of 1994 is not sustainable
in the eye of law and is hereby quashed and the appointment
appointments made in
pursuance thereof qua the Civil Judge
Judges (Senior Division) for the years
year
2016 and 2017 are also quashed and such judicial officers are placed in
their respective batches and their interse seniority shall be fixed
accordingly. The Registrar General of the High Court of Madhya
Pradesh is directed to carry out said exercise within two week
weeks from
today. In pursuance to this order, the vacant seats falling under the
quota meant for direct recruitment from Bar shall be filled up in future
recruitment.
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71. Consequently, the writ petition is allowed to the extent as
indicated above.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
C.
