Telangana High Court

Konkyana Sravan Kumar vs The State Of Telangana on 27 December, 2023

Author: T.Vinod Kumar

Bench: T.Vinod Kumar

     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                               AND
          THE HON'BLE SRI JUSTICE T.VINOD KUMAR


    + WRIT PETITION Nos. 18002, 18842, 18880 and
                        19179 of 2023


% Date:27.12.2023

# Bodugula Brahmaiah and others


                                                      ... Petitioners
                                v.

$ State of Telangana, rep.
  by its Chief Secretary, Secretariat Buildings, Hyderabad
  And others.
                                                      ... Respondents


!     Counsel for the petitioners in
      in W.P.No.18002 of 2023          : Mr. C.Ramachandra Raju

      Counsel for the petitioners in
      in W.P.No.18442 of 2023          : Mr. R.Vishnu Vardhan Reddy

      Counsel for the petitioners in
      in W.P.No.18880 of 2023          : Mr. S.R.Sanku

      Counsel for the petitioners in
      in W.P.No.19179 of 2023          : Mr. P.Bhaskar


^     Counsel for the respondent No.2    : Mr. G.Vidya Sagar,
                              learned Senior Counsel representing
                               Mr.Swaroop Oorilla, learned counsel


< GIST:
                               2




   HEAD NOTE:


? CASES REFERRED:


      1. (2002) 4 SCC 247
      2. AIR 1963 SC 268
      3. (2001) 6 SCC 89
      4. AIR 2018 SC 5510
      5. AIR 1961 SC 816 : (1961) 2 SCR 874
      6. (1997) 6 SCC 623
      7. (2013) 5 SCC 277
      8. 2019 (1) Mh.L.J. 190 : 2018 SCC OnLine Bom 2248
      9. (2006) 1 SCC 368
      10. (2022) 4 SCC 643
      11. AIR 1984 SC 161
      12. AIR 2003 SC 1329
      13. (2022) 12 SCC 696
      14. 1995 Supp (2) SCC 348
      15. (2007) 4 SCC 685
      16. AIR 1952 SC 75
      17. (1974) 4 SCC 3
      18. (2007) 1 SCC 732
      19. AIR 1964 SC 1135
      20. (1972) 1 SCC 421
      21. (2007) 5 SCC 447
      22. (2004) 12 SCC 673
      23. (2006) 1 SCC 368
                                        3




          THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                                    AND
            THE HON'BLE SRI JUSTICE T.VINOD KUMAR


      WRIT PETITION Nos.18002, 18842, 18880 and
                            19179 of 2023
COMMON ORDER:

(Per the Hon'ble the Chief Justice Alok Aradhe)

In this batch of writ petitions, some of the petitioners

who are practising as advocates and some others as

Additional Public Prosecutors in the State of Andhra

Pradesh, seek quashment of order dated 03.07.2023 by

which applications submitted by them seeking recruitment

to the post of District Judge in the State of Telangana have

been rejected. Alternatively, the petitioners have sought a

declaration that Rule 5(1)(a) of the Telangana State Judicial

(Service and Cadre) Rules, 2023 (hereinafter referred to as

'2023 Rules') be struck down as arbitrary and

discriminatory. The petitioners have sought a

consequential direction to respondents to permit them to

appear in written examination of District Judge.

(i) BACKGROUND FACTS:

2. Facts giving rise to filing of these writ petitions in

nutshell are that the Government of Telangana issued

notification dated 12.04.2023 for direct recruitment to

eleven posts of District Judges (Entry Level) in Telangana

State Judicial Service. The last date of submission of

applications was 01.05.2023. The dates of examination

tentatively were fixed as 24.06.2023 and 25.06.2023.

Paragraph 3 of the aforesaid advertisement provides that

recruitment to the posts shall be made in accordance with

2023 Rules. Paragraph 4 of the aforesaid notification dealt

with the eligibility criteria and inter alia provides that a

practising advocate in the High Court or Courts working

under the control of High Court for not less than seven

years as on the date of notification shall be eligible to

appear in the aforesaid examination.

3. In the light of decision of Supreme Court in All India

Judges' Association vs. Union of India1 and in exercise

of powers conferred under Articles 233 to 235, Article 237

1 (2002) 4 SCC 247

read with proviso to Article 309 and proviso to clause (3) of

Article 320 of the Constitution of India, the State

Government in consultation with the High Court for the

State of Telangana by a notification dated 10.06.2023 has

framed the Rules, namely 2023 Rules. Rule 1.3 provides

that the Rules shall be deemed to have come into force

with effect from 01.01.2023. Rule 5 deals with eligibility for

direct recruitment and recruitment by transfer. Rule 2(k) of

the Rules defines the expression 'High Court' to mean and

include the High Court for the State of Telangana with

effect from 02.06.2014. Rule 5(1)(a) provides that a person

shall be eligible for appointment by direct recruitment to

the post of District Judge who has been practising as an

advocate in High Court or the Courts working under the

control of High Court for not less than seven years as on

the date of notification.

4. The High Court by an order dated 03.07.2023

rejected the candidature of the petitioners inter alia on the

ground that they do not fulfil the eligibility criteria as laid

down in Rule 5(1)(a) of the 2023 Rules. The petitioners,

thereupon, have filed these writ petitions seeking the reliefs

as stated supra.

5. A Bench of this Court by an interim order dated

12.07.2023 permitted the petitioners to appear in the

written examination which was scheduled to be held on

22.07.2023 and 23.07.2023. It is not in dispute that the

petitioners in pursuance of the aforesaid interim order

have appeared in the written examination and the result of

the said examination is awaited. In the aforesaid factual

background, these writ petitions arise for consideration.

(ii) SUBMISSIONS OF PETITIONERS:

6. Learned counsel for the petitioners submitted that

the State Government does not have power to amend the

Rules with retrospective effect i.e., with effect from

01.01.2023. It is further submitted that the Rules cannot

be amended in such a manner so as to render the

petitioners ineligible from consideration. It is also

submitted that Rule 2(k) defines the expression 'High

Court' to mean and include the High Court for the State of

Telangana which includes the other High Courts as well. It

is further contended that in other States like Delhi and

Haryana, the post of District Judges by way of direct

recruitment were sought to be filled up on pan-India basis.

The attention of this Court has also been invited to

notification dated 16.04.2022 and it has been submitted

that in the previous year, the advocates from the State of

Andhra Pradesh were also considered eligible for

appointment to the post of District Judge in the State of

Telangana.

7. It is submitted that Rule 5(1)(a) of the 2023 Rules is

discriminatory and violative of Article 14 of the

Constitution in as much as it makes advocates

practising in the State of Andhra Pradesh ineligible for

consideration to the post of District Judge in the State of

Telangana. It is contended that there appears to be no

rational basis for differentiating the advocates belonging to

the State of Telangana as well as the advocates practising

in other parts of the country. In support of the aforesaid

submissions, reliance has been placed on the decisions of

the Supreme Court in J.Pandurangarao vs. the Andhra

Pradesh Public Service Commission 2, Ganga Ram

Moolchandani vs. State of Rajasthan 3 and Telangana

Judges' Association vs. Union of India 4.

8. Learned counsel for the petitioners in W.P.No.18842

of 2023 submitted that the right in the petitioner accrued

to him cannot be taken away by the Rules made with

retrospective effect. It is further submitted that Rule 5(1)(a)

of the Rules is in contravention of Article 233 of the

Constitution of India as the same only prescribes for

requirement of practice as an advocate or pleader for a

period of not less than seven years. It is also urged that the

Rule has to conform with the requirement contained in

Article 233 of the Constitution of India. In support of the

aforesaid submissions, reliance has been placed on the

decisions of the Supreme Court in Rameshwar Dayal vs.

State of Punjab 5; Chairman, Railway Board vs.

2 AIR 1963 SC 268 3 (2001) 6 SCC 89 4 AIR 2018 SC 5510 5 AIR 1961 SC 816 : (1961) 2 SCR 874

C.R.Rangadhamaiah 6 and Deepak Aggarwal vs. Keshav

Kaushik 7.

(iii) SUBMISSIONS OF RESPONDENTS:

9. Learned Senior Counsel for respondents contended

that 2023 Rules is in conformity with Article 233 of the

Constitution of India, which confers the power to frame

Rules. While inviting attention of this Court to the decision

of Supreme Court in All India Judges' Association

(supra), it is submitted that other conditions of eligibility

for recruitment to the post in question can be prescribed

under the Rules and the Rules can be made with

retrospective effect. It is further submitted that even under

the unamended Rules, the petitioners were ineligible for

consideration for recruitment to the post of District Judge

as the expression 'High Court' used therein means High

Court for the State of Telangana. It is further submitted

that the condition of eligibility in Rule 5(1)(a) has been

prescribed with the object that a person who is recruited to

6 (1997) 6 SCC 623 7 (2013) 5 SCC 277

the post of District Judge is acquainted with the practice in

the Court of State of Telangana. It is urged that the

decisions in the case of J.Pandurangarao (supra) and

Ganga Ram Moolchandani (supra) were rendered in the

peculiar facts of the cases and have no application to facts

of cases in hand.

10. It is contended that the pari materia provision was

challenged before the Division Bench of the Bombay High

Court in Shobhit Gaur vs. State of Maharashtra 8. It is

pointed out that the judgment delivered by the Division

Bench of Bombay High Court has attained finality as

S.L.P., preferred against the said order has been dismissed

vide order dated 24.08.2018 passed in S.L.P. (C) No.27341

of 2018. In support of the aforesaid submissions, reliance

has been placed on the decisions of the Supreme Court in

Union of India vs. Major Bahadur Singh 9 and High Court

of Delhi vs. Devina Sharma 10.

8 2019 (1) Mh.L.J. 190 : 2018 SCC OnLine Bom 2248 9 (2006) 1 SCC 368 10 (2022) 4 SCC 643

(iv) ANALYSIS:

11. We have considered the submissions made on both

sides and have perused the record. Chapter VI of the

Constitution of India deals with Subordinate Courts.

Article 233 provides for appointment of District Judges.

Article 233(1) prescribes that appointment 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. Article 233(2) mandates that a

person not already in service of the Union or of the State

shall only be eligible to be appointed as a District Judge if

he has been for not less than seven years as advocate or a

pleader and is recommended by the High Court for

appointment. Article 234 empowers the Governor of a State

to make appointments of persons other than District

Judges to the judicial service of a State in accordance with

the rules made by him in that behalf after consultation

with the State Public Service Commission and with the

High Court exercising jurisdiction in relation to such State.

Article 235 provides for Control over the Subordinate

Courts.

(v) ISSUES:

12. Having noticed the relevant provisions of the

Constitution, we may state the issues which arise for

consideration in these writ petitions, which are as follows:

(i) Whether 2023 Rules are in contravention of Article

233 of the Constitution of India?

(ii) Whether 2023 Rules can be enacted on

10.06.2023 from 01.01.2023, i.e. with retrospective effect?

(iii) Whether under Rule 2(k) of 2023 Rules, High

Court means and includes High Court other than High

Court for the State of Telangana? and

(iv) Whether Rule 5(1)(a) of 2023 Rules is

discriminatory, arbitrary and is violative of Article 14 of the

Constitution of India as advocates as well as public

prosecutors practising in States other than State of

Telangana are ineligible for recruitment to the Post of

District Judge in the State of Telangana?

13. In exercise of powers conferred under Articles 233,

234, 235 and 237 read with proviso to Article 309 and

proviso to clause (3) of Article 320 of the Constitution of

India, the Governor of Telangana had framed Special Rules

in respect of Telangana State Judicial Service, namely the

Telangana State Judicial Service Rules, 2017. Rule 2(i)

defines the expression 'High Court' to mean the High Court

of Judicature at Hyderabad. Thereafter, vide G.O.Ms.No.3,

dated 06.01.2020, amendments were made to 2017 Rules

and the amended Rule 3(i) provided that 'High Court'

means High Court for the State of Telangana.

14. Before proceeding further, it is apposite to take note

of relevant clauses of Notification dated 12.04.2023.

A recruitment Notification was issued by Government of

Telangana on 12.04.2023 inviting applications from the

eligible candidates for appointment to eleven posts of

District Judge (Entry Level) by Direct Recruitment. Para 3

of the Notification reads as under:

3. The recruitment to the said posts shall be made in accordance with the Telangana State Judicial (Service and Cadre) Rules, 2023.

15. Para 4 of the Notification deals with Eligibility. The

relevant extract of para 4 reads as under:

4. Eligibility:

The applicant for the above said post shall be,

a) A practicing Advocate in the High Court or Courts working under the control of the High Court for not less than 7 years as on the date of notification.

Note: Full time salaried Law Officer in the employment of the Central Government or State Government or any Public Corporation or Body constituted by statute, shall not be eligible.

Thus, para 4(a) of the Notification, if read in

conjunction with Rule 2(i) of the Telangana State Judicial

(Service and Cadre) Rules, 2017, makes it clear that only

advocates practising in the High Court of Telangana or

under the Courts working under the control of High Court

for the State of Telangana for not less than seven years on

the date of notification i.e., 12.04.2023 alone were eligible

for consideration for recruitment to the post of District

Judge in the State of Telangana.

16. Thereafter, G.O.Ms.No.36, dated 10.06.2023 was

issued by which 2023 Rules came into force with effect

from 01.01.2023.

17. We may now proceed to deal with the issues at

seriatim.

Issue No.(i): Whether 2023 Rules are in contravention of Article 233 of the Constitution of India?

18. Article 233 of the Constitution of India reads as

under:

233. Appointment of district 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 seven years an advocate or a pleader and is recommended by the High Court for appointment.

19. The High Court of Delhi prescribed minimum age of

35 years for appearing for Higher Judicial Service

examination. In the Rules framed under Article 233 of the

Constitution of India, the validity of the aforesaid Rule

prescribing minimum age of 35 years was challenged

before a Division Bench of High Court of Delhi, which by

interim orders dated 04.03.2022 and 08.03.2022

postponed the examination held for recruitment for higher

judicial service. The validity of the aforesaid interim orders

were challenged before the Supreme Court in the case of

High Court of Delhi (supra), wherein the Supreme Court

in paras 25 and 26 held as under:

25. The submission of the appellants, to the effect that the prescription of a minimum age would be contrary to the constitutional provision contained in Article 233 of the Constitution cannot be accepted.

Article 233(2) of the Constitution stipulates that a person not already in the service of the Union or of a State shall only be eligible to be appointed a District Judge if he has been, for not less than 7 years, an advocate or a pleader and is recommended by the High Court for appointment. Clause (1) of Article 233 stipulates that appointments of persons, posting and promotion of District Judges shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to the State. Article 235 entrusts to the High Court control over the district courts and courts subordinate thereto including the posting and promotion of and the grant of leave to persons belonging to the judicial service to the State and holding any post inferior to the post of District Judge. The Constitution has prescribed the

requirement to the effect that a person shall be eligible for appointment as a District Judge only if he has been an advocate or a pleader for at least seven years. What this means is that a person who has not fulfilled the seven year norm is not eligible. The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment.

26. The silences of the Constitution have to be and are supplemented by those entrusted with the duty to apply its provisions. The Constitution being silent in regard to the prescription of a minimum age, the High Courts in the exercise of their rule making authority are entitled to prescribe such a requirement. Direct recruitment to the Higher Judicial Service is intended to be from members of the Bar who have sufficient experience. The post of a District Judge is at a senior level in the cadre. Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this. Except for a short period when the requirement of a minimum age of thirty-five was deleted, the Delhi High Court has followed the norm.

20. Thus, from aforesaid enunciation of law, it is evident

that if Constitution is silent with regard to qualification/

condition, Rule Making Authority is entitled to prescribe

such a qualification/condition. The qualification that a

candidate must have practised as an advocate in the High

Court or the Courts working under the control of High

Court for not less than seven years as on the date of

notification for recruitment to the post of District Judge

(entry level) is not prescribed under Article 233, however,

the same can be prescribed by the Rule Making Authority.

Therefore, the contention that the aforesaid requirement is

in contravention of Article 233 is misconceived. The first

issue is therefore answered in the negative.

Issue No.(ii): Whether 2023 Rules can be enacted on 10.06.2023 from 01.01.2023, i.e. with retrospective effect?

21. It is trite law that Union Parliament and State

Legislature have plenary powers of legislation within the

fields assigned to them and subject to certain

constitutional and judicially recognized restrictions can

legislate prospectively as well as retrospectively (see State

of Gujarat vs. Ramanlal Keshavlal Sons 11 and National

Agricultural Cooperative Marketing Federation of India

vs. Union of India 12). In G.Mohan Rao vs. State of Tamil

Nadu 13, it was held that constitutional scheme and

decisions of the Supreme Court untangle a settled position

that power to legislate includes power to legislate

retrospectively. Therefore, contention that State

Government did not have the power to make Rules with

retrospective effect is misconceived. Para 3 of Notification

dated 12.04.2023 issued for recruitment for the post of

District Judge (Entry Level) provided that the recruitment

shall be made in accordance with the 2023 Rules, which

came into force on 10.06.2023 with effect from 01.01.2023.

Even otherwise on the date of issuance of notification dated

10.04.2023, the petitioners were not eligible for

consideration for recruitment to the post of District Judge.

Therefore, no right had accrued to them for consideration

for the post of District Judge even prior to amendment of

11 AIR 1984 SC 161 12 AIR 2003 SC 1329 13 (2022) 12 SCC 696

the Rules. Therefore, on enactment of 2023 Rules, no right

of the petitioners has been affected. On this ground also,

the petitioners cannot make any grievance with regard to

retrospective operation of the Rules. The second issue is

answered in the affirmative by stating that the Rules can

be enacted with retrospective effect.

Issue No.(iii): Whether under Rule 2(k) of 2023 Rules, High Court means and includes High Court other than High Court for the State of Telangana?

22. Rule 2(k) of the 2023 Rules defines the expression

'High Court'. Rule 2(k) is extracted below for the facility of

reference:

2(k) High Court means and includes High Court for the State of Telangana with effect from 02.06.2014.

23. In the definition clause, Rule 2(k) uses the expression

'means and includes'. It is well settled rule of statutory

interpretation that when a particular expression is defined

by the legislature by using the word 'means and includes',

the use of word 'means' that the definition is hard and fast

definition and no other meaning can be assigned to the

expression that is put down in the notification. The word

'includes' when used enlarges the meaning of the

expression defined, so as to comprehend not only such

things as they signify according to their natural import but

also things which the clause declares that they shall

include. It is equally well settled in law that expression

'means and includes', on the other hand, indicate "an

exhaustive explanation of the meaning which, for the

purposes of the Act, must invariably be attached to these

words or expressions (See P.Kasilingam vs. P.S.G.College

of Technology 14). The aforesaid principle of statutory

interpretation was re-affirmed by a three Judge Bench of

Supreme Court in Bharat Cooperative Bank (Mumbai)

Limited vs. Cooperative Banks Employees' Union 15.

24. In the backdrop of aforesaid well settled legal

principles of statutory interpretation, we may refer again to

Rule 2(k) of the Rules. The erstwhile State of Andhra

Pradesh was bifurcated into two successor States, namely

State of Telangana and State of Andhra Pradesh with effect

from 02.06.2014. The High Court for the State of

14 1995 Supp (2) SCC 348 15 (2007) 4 SCC 685

Telangana was established with effect from 01.01.2019.

The Rule requires that an advocate must have put in seven

years of practice. In case the aforesaid requirement of

seven years would have been counted from the date of

establishment of the High Court, no candidate would have

been eligible. Therefore, the Rule Making Authority has

used the expression 'includes' to mean High Court for the

State of Telangana with effect from 02.06.2014 so that the

advocates practising before the erstwhile High Court for the

then State of Andhra Pradesh as well as the High Court for

the State of Telangana would be eligible for consideration

for recruitment to the post of District Judge. The

contention that the expression 'High Court' used in Rule

2(k) of the 2023 Rules includes other High Courts as well is

misconceived and the same is therefore negatived. The

third issue is answered accordingly.

Issue No.(iv): Whether Rule 5(1)(a) of 2023 Rules is discriminatory, arbitrary and is violative of Article 14 of the Constitution of India as advocates as well as public prosecutors practising in States other than

State of Telangana are ineligible for recruitment to the Post of District Judge in the State of Telangana?

25. The relevant extract of Rule 5 of the 2023 Rules

which has been challenged in these writ petitions, is

extracted below for the facility of Reference.

5. Eligibility for Direct Recruitment and Recruitment by transfer:

5.1 District Judges (Entry Level) Direct Recruitment:

(a) One who has been practicing as an advocate in the High Court or Courts working under the control of the High Court for not less than seven years as on the date of the notification;

Provided that a full time salaried Law Officer in the Employment of the Central Government or State Government or any Public Corporation or Body constituted by statute shall not be eligible for the post of District Judge.

26. A seven Judge Bench of the Supreme Court in State

of West Bengal vs. Anwar Ali 16 held that principles

underlying the guarantee in Article 14 only mean that

persons similarly circumstanced should be treated alike

both in privileges conferred and liabilities imposed. It was

further held that in making a classification, the Legislature

16 AIR 1952 SC 75

cannot be expected to provide "abstract symmetry". In

E.P.Royappa vs. State of Tamil Nadu17, a Constitution

Bench of the Supreme Court held that State action must

be based on valid principles applicable alike to all similarly

situate and it must not be guided by any extraneous or

irrelevant considerations because that would be denial of

equality. Article 14 prohibits dissimilar treatment to

similarly situated persons, provided such classification is

based on intelligible differentia and is otherwise legal, valid

and permissible (see Arun Kumar vs. Union of India 18).

27. It is trite law that a party invoking protection of

Article 14 has to make an averment with details to sustain

such a plea and has to adduce the material to establish

allegations made and the burden is on the party to plead

and prove that its right under Article 14 of the Constitution

of India has been infringed. The ground of challenge must

be based on factual foundation and for attracting Article

14, necessary facts are required to be pleaded (see State of

17 (1974) 4 SCC 3 18 (2007) 1 SCC 732

Uttar Pradesh vs. Kartar Singh 19, Dantuluri Ram Raju

vs. State of Andhra Pradesh 20 and Southern

Petrochemical Industries Company Limited vs.

Electricity Inspector 21). It is equally well settled legal

proposition that in the absence of any pleading, the

challenge to the constitutional validity of a provision has to

be rejected in limine (See State of Haryana vs. State of

Punjab22).

28. In W.P.No.18002 of 2023, the validity of Rule 5(1)(a)

of 2023 Rules has been challenged on the following

averments:-

11. I submit that the action of the 2nd respondent debarring the Advocates practicing in High Court of Andhra Pradesh and in its Subordinate Courts from applying to the posts of District Judge in the State of Telangana, is highly biased and discriminatory being violative of Articles 14 and 21 of the Constitution of India and liable to be set aside.

19 AIR 1964 SC 1135 20 (1972) 1 SCC 421 21 (2007) 5 SCC 447 22 (2004) 12 SCC 673

29. In W.P.No.18842 of 2023, the validity of Rule 5(1)(a)

of 2023 Rules has been challenged on the following

averments:-

12. It is submitted that Rule 5(1)(a) of the Telangana State Judicial Service Rules, 2023 is in derogation of the Fundamental Rights enshrined in the Constitution of India. There is no any constitutional backing for the said rule. The above Rule is a bad provision in law and the same shall be rendered as void and invalid by this Hon'ble Court.

30. In W.P.No.18880 of 2023, the validity of Rule 5(1)(a)

of 2023 Rules has been challenged on the following

averments:-

3 (g). In fact several Telangana advocates are working in Andhra Pradesh Judicial Service and vice versa. In fact, in Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh ((2021) 11 SCC 401) as well as in Satyajit Kumar vs. State of Jharkhand (2022 Live Law SC 651), the Hon'ble Supreme Court held that local domicile reservation can be provided only through a law enacted by the Parliament and the State Legislature has no power to do so, which violates Article 16(1), 16(2) and 16(3) and that even the Governor of the State does not have the power to violate the fundamental rights.

31. In W.P.No.19179 of 2023, the validity of Rule 5(1)(a)

of 2023 Rules has been challenged on the following

averments:-

11. I submit that the action of the 2nd respondent debarring the Advocates practicing in High Court of Andhra Pradesh and in its Subordinate Courts from applying to the posts of District Judge in the State of Telangana, is highly biased and discriminatory being violative of Articles 14, 16(2) and 21 of the Constitution of India and liable to be set aside.

32. Thus, no factual foundation has been laid in the

pleadings with regard to challenge to validity of Rule 5(1)(a)

of 2023 Rules. Even otherwise, the Rule has been enacted

to ensure suitable and proper persons in the judicial

service with a view to secure fair and efficient

administration of justice and the Rule Making Authority is

competent to prescribe qualifications for eligibility for

appointment. The object of enactment of the aforesaid Rule

is to recruit suitable candidates to Telangana State

Judicial Service who are acquainted with the practice of

local Courts in Telangana and have the knowledge of local

laws. The practice in subordinate courts or in the High

Court is also a relevant test to prescribe.

33. It is pertinent to note that validity of a pari materia

provision, namely Rule 5(3)(b) of Maharashtra Judicial

Service Rules, 2008 was challenged before a Division

Bench of High Court of Bombay in Shobhit Gaur (supra).

Relevant portion of Rule 5(3)(b) is extracted for the facility

of reference:

5(3)(b) Experience- Must have practiced as an Advocate in the High Court or Courts subordinate thereto for not less than three years on the date of publication of Advertisement; or Must be a fresh law Graduate who - (i) has secured the degree in law by passing all the examinations leading to the degree in the first attempt;

34. The said Rule was challenged on the touchstone of

Article 14 of the Constitution of India on the ground that it

unfairly discriminates between the advocates who are

practising in Maharashtra and the advocates who are

practising outside. The Division Bench of Bombay High

Court held that the petitioner in the said case was an

Advocate practising in Delhi. The Bombay High Court by

Judgment in Shobhit Gaur (supra) upheld the validity of

Rule 5(1)(b) of Maharashtra Judicial Service Rules, 2008. It

is also pertinent to note that a Special Leave Petition

preferred against the Judgment dated 24.08.2018 passed

by the Division Bench of Bombay High Court in Shobhit

Gaur (supra) was dismissed by the Supreme Court vide

order dated 09.12.2021 passed in S.L.P. (C) No.27341 of

2018.

35. Admittedly, the petitioners are not practising

advocates in the High Court for the State of Telangana or

the Courts subordinate thereto for a period of seven years.

For the aforementioned reasons, Rule 5(1)(a) of 2023 Rules

does not suffer from any infirmity. Accordingly, the fourth

issue is answered.

36. It is trite law that Court should not place reliance on

the decisions without discussing as to how the factual

situation fits in with the fact situation of the decision on

which reliance took place. Observations of the Court are

neither to be read as Euclid's Theorms nor as provisions of

the statute, that too taken out of their context. The

observations made in a judgment must be read in the

context of which they appeared to have stated and cannot

be treated as statute (See Union of India vs. Major

Bahadur Singh 23).

37. In the backdrop of aforesaid legal principles, we may

refer to the decision in Pandurangarao (supra). The

petitioner therein was an advocate practising in District

Court in Guntur in the erstwhile State of Andhra Pradesh,

who was disqualified on the ground that he was not

practising in the erstwhile Andhra Pradesh High Court. The

Supreme Court dealt with Rule 12(h) of the Andhra

Pradesh Judicial Service Rules, which is extracted below:

That at the time when the petitioner applies:-

(1) he is practising as an Advocate of the High Court; (2) he has been actually practising in Courts of Civil or Criminal jurisdiction in India for a period not less than three years;

While interpreting the aforesaid Rule, it was noticed

that advocates practising in Subordinate Courts in any

part of India were eligible under Rule 12(h)(2) and the same

did not serve the requirement of knowledge of local

23 (2006) 1 SCC 368

knowledge, whereas under Rule 12(h)(1) only Advocates

practising in Andhra Pradesh High Court alone were held

to be eligible. Therefore, the aforesaid Rule was struck

down. However, in paragraph 8 of the Judgment, it was

held as under:

8. The object of the rule is to recruit suitable and proper persons to the Judicial Service in the State of Andhra with a view to secure fair and efficient administration of justice, and so, there can be no doubt that it would be perfectly competent to the authority concerned to prescribe qualifications for eligibility for appointment to the said Service.

Knowledge of local laws as well as knowledge of the regional language and adequate experience at the bar may be prescribed as qualifications which the applicants must satisfy before they apply for the post. In that connection, practice in subordinate Courts or in the High Court may also be a relevant test to prescribe. The respondents contend that the impugned rule seeks to do nothing more than to require the applicant to possess knowledge of local laws and that being so, the validity of the rule cannot be impeached on the ground of discrimination. In support of this argument, reliance is placed on the decision of the Andhra High Court in Nallanthighal Bhaktavatsalam Iyengar v. Secretary, Andhra Public Service Commission, Kurnool [AIR 1956 Andhra 14] in which the validity of the impugned rule has been upheld.

38. In Ganga Ram Moolchandani (supra), the Supreme

Court dealt with Rules 8(ii) and 15(ii) of Rajasthan Higher

Judicial Service Rules, 1969 which dealt with Recruitment

to the post of District Judge. The Rules prescribed for

requirement of knowledge of regional language, i.e., Hindi

and practice in the High Court of Rajasthan or subordinate

court of Rajasthan. However, for recruitment to the post of

Munsiff in the State of Rajasthan, no such requirement

was prescribed. The Supreme Court therefore held that

prescription of requirement of knowledge of local laws or

regional language only in respect of post of District Judge

is discriminatory and is violative of Article 14 of the