Madhya Pradesh High Court
Abhishek Gour vs The State Of Madhya Pradesh on 1 March, 2025
1 WP-308-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
WP No. 308 of 2016
(SMT. SAPNA JHUNJHUNWALA Vs THE STATE OF MADHYA PRADESH AND OTHERS )
WP/19331/2016, WP/6345/2020
Dated : 01-03-2025
Shri Anil Khare - Senior Advocate with Shri Ashle John Mathew -
Advocate for petitioner in W.P. No.308/2016.
Shri Sanjay Agrawal - Senior Advocate with Shri Arpit Agrawal -
Advocate for petitioner in W.P. No.19331/2016.
Shri Anubhav Jain - Government Advocate for respondents/State.
Shri K.C. Ghildiyal - Senior Advocate with Ms. Warija Ghildiyal -
Advocate for respondent No.3 in W.P. No.308/2016.
Shri B.N. Mishra - Advocate for respondent No.1 in W.P.
No.6345/2020.
Shri Anshuman Singh - Advocate for respondent No.2 in W.P.
No.308/2016 and W.P. No.19331/2016.
Shri Praveen Dubey - Advocate for intervenor in W.P. No.308/2016.
Shri Rohan Harne - Advocate for intervener in W.P. No.308/2016.
I.A. No.1772/2025:
The present application has been filed for deferment of hearing on the
ground that the judgment passed by the Hon'ble Apex Court in the case of
Dheeraj Mor Vs. High Court of Delhi reported in (2020) 7 SCC 401 is under
review in the case of Rajanish K.V. Vs. K. Deepa and others in C.A.
No.3947/2020.
The issue in hand is that the petitioners are challenging the proviso to
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impugned Rule 5(1)(c) which provides that quota from the Bar for
appointment on the post of Higher Judicial Service, if not filled up for two
consecutive selection processes then the said posts would be filled up by
promotion amongst the eligible Civil Judges (Senior Division).
The issue herein is that the respondents issued impugned Rule 5(1)(c)
in the year 2015, however, without waiting for two consecutive selection
processes, the respondents applied that proviso to impugned rule in the next
vacancy in the years 2016 and 2017 itself reducing the number of seats from
the quota meant for direct recruitment from Bar, which seems to be in
violation of the judgment passed by the Hon'ble Apex Court in the case of
All India Judges Associations' case reported in (2002) 4 SCC 247 and (2010)
15 SCC 170. Hence, the issue in hand is different from the issue which is
under review before the Apex Court, therefore I.A. No.1772/2025 being
misconceived, is hereby dismissed.
After perusing the material on record, it is pertinent to mention herein
that respondents issued impugned rule which provides that if the quota meant
for direct recruitment from the Bar is not filled up for two consecutive
selection processes, then the said posts would be converted and filled up by
the promotion amongst the eligible Civil Judges (Senior Division).
Thereafter, in the year 2017, realizing the mistake, the respondents withdrew
the said proviso to impugned rule. The proviso to impugned Rule 5(1)(c) of
the Madhya Pradesh Higher Judicial Service (Recruitment and Conditions of
Service) Rules, 1994 reads as under:-
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"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 1 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."
On perusal of the proviso to the impugned Rule, the same does not
seem to have the application with retrospective effect. It is settled position of
law that the legislation made by the legislature is always prospective in
nature unless it has been specifically stated in the statute itself about its
retrospective operation. But in the impugned rule there is no word to suggest
that the respondents intend to apply the said proviso retrospectively.
It is further pertinent to mention that the proviso to impugned rule has
created a fourth channel for appointment on the posts of Higher Judicial
Service (Entry Level), which seems to be against the judgment passed by the
Hon'ble Apex Court in the case of All India Judges Associations' case
reported in (2002) 4 SCC 247 and (2010) 15 SCC 170 which provides that
quota for promotion amongst the eligible Civil Judges (Senior Division)
should be 50% and quota for limited competitive examination was fixed at
25% and recruitment from the Bar was fixed at 25%. Furthermore, in the said
judgment the Hon'ble Supreme Court revised the said quota and enhanced
the quota for promotion from 50% to 65%, reducing the quota meant for
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limited competitive examination from 25% to 10% but the quota for
recruitment from the Bar i.e. 25% remained intact. The Supreme Court
provides only three channels for appointment to the post of High Judicial
Service but in the case in hand, the respondents created a fourth channel for
appointment to the post of Higher Judicial Service.
On perusal of the proviso to impugned Rule, it provides that if the
quota from Bar is not filled up for two consecutive selection processes then
the said posts would be filled up from promotion channel amongst the
eligible Civil Judge (Senior Division). Surprisingly, without waiting for two
consecutive selection processes, the respondents applied that quota in the
advertisement of 2016 and 2017 itself reducing the number of posts fixed for
direct recruitment from the Bar. Furthermore, under the said proviso to
impugned Rule, respondents issued a notification for recruitment from the
promotion amongst the Civil Judges (Senior Division) and from direct
recruitment from the Bar under the same exam and same interview.
Learned counsel for the petitioners state that less meritorious
candidates are placed above the meritorious candidates who secured more
marks.
Counsel for the respondents, at this stage, seeks time to take
instructions and assist the court on the next date of hearing.
List on 05.03.2025.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
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