9911796707
TMI Blog2001 (7) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate thereto, on grounds, inter alia, that the same were violative of Fundamental Right, guaranteed to a citizen of India, enshrined under Articles 14 and 16 of the Constitution. In the writ petition, out of which Civil Appeal No. 2411 of 1999 arises, apart from challenging validity of the said rules on the aforesaid grounds, the decision of the High Court on its administrative side was assailed whereby candidature of the writ petitioner was not considered as he was full time-salaried Deputy District Attorney in the State of Haryana and being in State service was not eligible for consideration under Article 233 of the Constitution, apart from the ground that he was not practising in any such court. In the third writ petition, out of which Civil Appeal No. 722 of 1999 arises, the selection was challenged on the ground that the same was made in violation of the Rules. The High Court issued an advertisement on 21st December, 1996 inviting applications for filling up eleven posts in the cadre of Rajasthan Higher Judicial Service to be filled up in terms of the Rules. The appellant in Civil Appeal No. 6469 of 1998, who was a practising Advocate in the District Court, Bareilly, a C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution as the condition of qualification of seven years practice as an Advocate in Rajasthan High Court or courts subordinate thereto prescribed in the Rules had a reasonable nexus with the object underlying the Rules in view of the fact that seven years practice will enable a person to be recruited to have sufficient knowledge of local laws, local conditions as well as regional language which are necessary for the discharge of duties of District and Sessions Judge efficiently and thus the Rules were based upon a reasonable classification founded on intelligible differentia having a reasonable nexus to the object sought to be achieved and thus were valid. The claim of the appellant in Civil Appeal No. 2411 of 1999 was resisted by the High Court on the ground that he being salaried employee of Haryana Government was already in the service of that State as such was not eligible for being considered on this ground as well apart from the fact that he never practised in any such court. In Civil appeal No. 722 of 1999, the High Court took the stand that there had been no relaxation whatsoever in favour of any candidate as there was no minimum marks fixed by the Committee. All the thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly dismissed the same having found the same devoid of any substance. While dismissing the writ application, the Court has passed severe strictures against the appellant observing that the writ application was filed by him without any sense of responsibility as the appellant who was practising Advocate had filed the writ application in a cavalier manner which was shocking to judicial conscience. While dismissing the writ application, the Court awarded cost of ₹ 5000/- against this appellant. Hence, these appeals by special leave. Shri Jagdeep Dhankhar, learned Senior Counsel appearing on behalf of the appellant in Civil Appeal No. 6469 of 1998 submitted that Rules 8(ii) and 15(ii) of the Rules requiring that only those Advocates are entitled to be considered for direct recruitment to Rajasthan Higher Judicial Service who have practised in Rajasthan High Court or Courts subordinate thereto for a period of not less than seven years and thereby debarring all other Advocates practising outside the State of Rajasthan though within the territory of India are ultra vires as the same violates fundamental rights of a citizen guaranteed under Articles 14 and 16 of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elections have been made in accordance with the Rules and even after the impugned judgment passed by the High Court, one post which was kept vacant by virtue of the interim order passed by the High Court in writ application filed by appellant in Civil Appeal No. 6469 of 1998 has been filled up by appointing one Shri Uma Kant Aggarwal who has been confirmed also after completion of probation period and has been discharging judicial functions. It was submitted that after the impugned selection, one more selection process started and the same has been also completed by making appointments. Thereafter, another process of selection has also started and the same will cause complications and delay the further selection in case the decision of this Court is not made prospective. In view of the rival submission, the question that calls for decision of this Court is as to whether Rules 8(ii) and 15(ii) are ultra vires Articles 14 and 16 of the Constitution? Rajasthan Higher Judicial Services Rules, 1969 have been framed by the Governor of Rajasthan in consultation with the Rajasthan High Court and Rule 3(b) whereof defines the Court as the High Court of Judicature for Rajasthan. Rule 8(ii) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r which would obviously mean that a lawyer of three years standing irrespective of the place of practice whether within the jurisdiction of the Rajasthan High Court or outside its jurisdiction. It further prescribes that a candidate must possess thorough knowledge of Hindi written in Devnagari Script. For proper appreciation, it would be necessary to quote aforesaid Rule which reads thus:- 11. Qualification:-(1) No candidate shall be eligible for recruitment to the service unless:- (a) he is a Bachelor of Laws (Two years Course under the old scheme) or Bachelor of Laws (Professional) of any University established by Law in India and recognised for the purpose by the Governor or a Barrister of England or Northern Ireland or a member of the faculty of Advocates in Scotland: and (b) he has not less than three years practice as a lawyer. (2) Every candidate must possess a thorough knowledge of Hindi written in Devnagri Script. [Emphasis added] Learned counsel appearing on behalf of both the parties have heavily relied upon Constitution Bench decision of this Court in the case of J.Pandhurangarao (supra) in which it was noticed that all the High Courts have the same st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second is that the differentia in question must have a reasonable relation to the object sought to be achieved by the Rule or a statutory provision in question. It was observed that the object of the Rule was to recruit suitable and proper persons to the judicial service in the State of Andhra Pradesh 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 regional language and adequate experience at the Bar may be prescribed as a qualification which the applicants must satisfy before they apply for the post. In that case, it was contended before this Court that the Rules were framed to require an applicant to possess knowledge of local laws. Though this Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.2, that purpose of framing such a rule is knowledge of local law and regional language in order to stand the test of Article 14 of the Constitution, is fallacious Indian Constitution is basically federal in form and is marked by the traditional characteristics of a federal system, namely, supremacy of the Constitution, division of power between the Union and States and existence of an independent judiciary. From Kashmir to Kanyakumari, the country is one and there is no intelligible differentia which distinguishes Advocates practising within the State of Rajasthan and those practising outside Rajasthan but within the territory of India. In the case of Pandurangarao( supra ), this Court observed that throughout the country in the curriculum, study of important local laws is generally included apart from general laws, which would meet the requirement of knowledge of important local laws. In that very case, as already stated, it was further observed that for knowledge of local laws, a suitable examination may be conducted which a candidate should pass. The Court thus observed in that case at page 717 which runs thus:- It is not clear that the impugned rule can effectively meet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ab Higher Judicial Service was challenged before the Punjab High Court by filing writ application on the ground that these persons had not practised for a period of seven years in the Punjab High Court but out of the period of seven years, for few years, they had practised in Lahore High Court before partition of the country and after partition, the Punjab High Court. The writ application was dismissed on the ground that for reckoning the period of seven years, the period of practice in both the High Courts shall be counted for the purpose of Article 233 of the Constitution and against said judgment, when appeal was brought to this Court, judgment of the High Court was upheld and it was laid down that for reckoning seven years standing of a person at Bar period of practice in both the High Courts shall be counted. Shri Rao appearing for the respondent No.2 submitted that as the Rules have been holding the field for the last more than 32 years, the law settled by Division Bench and Full Bench decisions of Rajasthan High Court in all these years should not be unsettled by reversing the same. In support of his submission, learned Counsel has placed reliance upon various decisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers(1980) 3 SCC 719 and Mahesh Kumar Saharia vs. State of Nagaland and others (1997) 8 SCC 176, the Courts refused to reconsider correctness of its own decisions on the ground that the same have been followed in several cases. From a perusal of these decisions, it appears that the same do not support the respondents much rather run more counter to their submission. It has been observed that there should be no interference with the law laid down in the old decisions merely on the ground that different view is possible but the Court would be justified in interfering if decision is manifestly wrong or unfair. In the present case, we have clearly held that the Rules are violative of Articles 14 and 16 of the Constitution, as such Division Bench and Full Bench decisions of Rajasthan High Court are manifestly wrong and if the law laid down therein is approved, the same would be unfair to members of the Bar practising in all the courts throughout the country, excepting the State of Rajasthan. Thus, we have no option but to hold that Rules 8(ii) and 15(ii) are ultra vires Articles 14 and 16 of the Constitution and liable to be struck down. Last submission of Shri Rao is that in case the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ordinary statutes. We find in the fitness of things, the law decided in this case be declared to be prospective in operation. Appellant in Civil Appeal No. 6469 of 1998 who was found eligible by the Committee, appeared in the interview, found fit by it and recommended for appointment to the Higher Judicial Service but could not be appointed as the Full Court found that he was not eligible and one post for him was kept reserved by virtue of interim order of the High Court but in view of dismissal of the writ application, the said post has been filled up by appointing one Shri Uma Kant Aggarwal-respondent No. 13. We feel it would be just and proper to direct the High Court to recommend his name to the Governor for appointment to Rajasthan Higher Judicial Service against one of the existing vacancies as according to the stand taken by the High Court, posts are still vacant. So far appellant in Civil Appeal No. 2411 of 1999 is concerned, the High Court has in view of decision of this Court in Civil Appeal No. 3021/97 (Sushma Suri vs. Govt. of National Capital Territory of Delhi and another) declined to grant relief in his favour. Learned counsel appearing on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
