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Daulat Raj Singhvi Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Special Appeal No. 81 of 1969
Judge
Reported in1969WLN495
AppellantDaulat Raj Singhvi
RespondentState of Rajasthan and anr.
DispositionAppeal dismissed
Cases ReferredPandurangarao v. Andhra Pradesh Public Service Commission
Excerpt:
rajasthan higher judicial service rules, 1969 - rules 8(ii) & 15(ii)--'advocates who have practised in courts for seven years'--whether it means persons who have practised 'as advocate for seven years.';having carefully considered rules 8(ii) & 15(ii) of the rules we are convinced that the expression 'advocates who have practised in the court or courts subordinate thereto for a period of not less than seven years' cannot be restricted to advocates who have practised as advocates for seven years or that it will not take in a person who was an advocate and has practised for not less than seven years though partly as an advocate & partly as pleader. rule 8(ii) or rule 15(ii) for that matter embody two qualifications (i) that the person should be an advocate, and (2) that he..........who have practised in the court or courts subordinate thereto for a period of not less than seven years.rule 15 lays down that a candidate for direct recruitment to the service must be a citizen of india & mut be an advocate who has practised in the court or courts subordinate thereto for a period, of not less then seven years. having carefully considered rules 8(ii) and 15(ii) of the rules we are convinced that the expression 'advocates who have practised in the court or courts subordinate thereto for a period of not less than seven years' cannot be restricted to advocates who have practised as advocates for seven years or that it will not take in a person who was an advocate and has practised for not less than seven years though partly as an advocate and partly as pleader, rule 8(ii).....
Judgment:

Kan Singh, J.

1. The appeal before us, which is brought under Section 18 of the Rajasthan High Court Ordinance against a judgment of a learned Single Judge of this Court dated 15-9-69 dismissing the appellant's writ petition, raises a question about the vires of Rules 15(ii) and 8(ii) of the Rajasthan Higher Judicial Service Rules, 1969, hereinafter to be referred as the 'Rules'.

2. The appellant was enrolled as a Pleader on 28-8-53 practised as pleader in Rajasthan till 4-11-62 when he was enrolled as an Advocate under the Advocates Act of 1961. He continued to practice as an Advocate in Rajasthan for some time but thereafter he shifted to Gujarat and was enrolled as on Advocate on the rolls of the Bar Council of Gujarat in the month of April, 1969 Accordingly, his name was removed from the rolls of the Bar Council, Rajasthan. The appellant in this way had to his credit about 16 years practice at the Bar, out of which he had practised for 6 years and 2 months as an Advocate. The appellant was born in Rajasthan and he had his education too in Rajasthan The Government of Rajaslhan made the Rules in exercise of his powers under Article 309 read with Article 233 of the Constitution and they came into force on 21-1-69. In accordance with these Rules the Rajasthan Higher Judicial Service which was till then governed by the Rajasthan Higher Judicial Service Rules, 1955 was reconstituted. The Rules of 1969 provided for two sources of recruitment to the service as in the previous Rules namely (1) by promotion from amongst the members of the Rajasthan Judicial Service; or (2) by direct recruitment from the Advocates who have practised in the Courts of Rajasthan for a period of not less than 7 years. It is the provision relating to the direct recruitment which is under challenge. In accordance with these Rules the Registrar, Rajasthan High Court ivied applications for direct recruitment to the Rajasthan Higher Judicial Service from Advocates who had practised in the Rajasthan High Court or Courts subordinate thereto for a period of not less than 7 years and who were otherwise eligible for appointment. Six vacancies were declared to be filled in by recruitment. A number of applications were received, but the appellant did not make any application thinking he was not eligible for appointment as a District Judge. He challenged the vires of Rules 8(ii) and 15(ii) of the Rules on the ground that they were violative of Articles 15, 16 and 233 of the Constitution. The appellant's contention before the learned Single Judge was as the eligibility for direct recruitment was confined to Advocates in Rajasthan only, the discrimination was brought about on account of the place of residence and this had no reasonable nexus with the object thought to be achieved by the Rules. It was next contended that the rules were violative of Article 233(2) of the Constitution on the ground that whereas the Article made both the pleaders as well as advocates eligible for recruitment to the service as District Judge, the Rules have cut down the eligibility to only advocates who have practised for 7 years in Rajasthan. The learned Single Judge, who heard the writ petition, repelled, the contentions. He held that the object of the Rules was to recruit suitable and proper persons to the Higher Judicial Service in the State with a view to securing an efficient administration of justice and the qualification of 7 years practice as an Advocate in the Rajasthan High Court and the Courts subordinate thereto had a reasonable nexus with the object underlying the Rules, as the 7 years' practice will enable a person to be recruited to acquire sufficient knowledge of local laws, local conditions as well as the regional language which was necessary for discharging the duties of a District Judge efficiently. As regards the second contention it was held by the learned Judge that Article 233(2) of the Constitution laid down only the minimum qualifications and it was open to the rule making authority to prescribe more stringent qualifications for the recruitment of persons to the Higher Judicial posts. The learned Judge fortified himself by observations of their Lordships of their Supreme Court in Pandurangarao v. Andhra Pradesh Public Service Commission, Hyderabad and Anr. : [1963]1SCR707 .

3. Learned Counsel for the appellant in assailing the judgment of the learned Single Judge reiterated there contentions. Learned Advocate General, however, raised a preliminary objection asking us to dismiss the appeal on the ground that the appellant having not applied for the recruitment to the service had no sufficient interest in the recruitment in question and, therefore, in exercise of our discretion under Article 226 of the Constitution we should dismiss the appeal on this ground alone. Learned Counsel for the appellant countered this by relying on a letter of the Registrar dated nil, available at page 31 of tie paper book, wherein he had conveyed to one Shri Roshanlal Gupta, Advocate, Vice President, Bar Association, District Courts, Sri Ganganagar that the expression 'applications are invited for direct recruitment to the Rajasthan Higher Judicial Service from Advocates who have practised in the Rajasthan High Court and the Courts subordinate there to for a period of not less than 7 years' to be given the same meaning as given to the corresponding expression in the Rules and under the aforesaid Rules practice has to be as an Advocate and not as a Pleader. With the result that the Advocates who have practised as Advocates for 7 years alone were eligible. On the basis of this letter learned Counsel contended that even if the appellant were to apply his application was bound to be rejected and, therefore, according to learned Counsel, the appellant was entitled to challenge the vires of the Rules inspite of has not having applied for the post. Besides this the learned Counsel for the appellant submitted that this objection had not been specifically taken in the reply of the respondents to the writ petition; nor was it argued before the learned Single Judge and, therefore, we should not entertain it.

4. Since the objection does not involve any new points and raises only ground we are inclined to examine it.

5. Rule 3(b) of the Rules defines the term to mean the High Court of Judicature for Rajasthan. The terms 'direct recruitment' means the recruitment in the manner prescribed by Clause (ii) of Rule 8, and the term 'District Judge' includes Additional District Judge, Sessions Judge, and Additional Sessions Judge. We may read rule 8 which provides for the sources of recruitment:

Rule Section Sources of recruitment - Recruitment to the service shall be under:

(i) by promotion from amongst the members of the Rajasthan Judicial Service: or

(ii) by direct recruitment from the advocates who have practised in the Court or courts subordinate thereto for a period of not less than seven years.

Rule 15 lays down that a candidate for direct recruitment to the service must be a citizen of India & mut be an advocate who has practised in the Court or Courts subordinate thereto for a period, of not less then seven years. Having carefully considered Rules 8(ii) and 15(ii) of the Rules we are convinced that the expression 'advocates who have practised in the Court or Courts subordinate thereto for a period of not less than seven years' cannot be restricted to advocates who have practised as Advocates for seven years or that it will not take in a person who was an advocate and has practised for not less than seven years though partly as an Advocate and partly as Pleader, Rule 8(ii) or Rule 15(ii) for that matter embody two qualifications: (i) that the person should be an advocate, and (2) that he should have practised for not less than seven years. The practice of seven years need not, in our opinion, be as an Advocate aid could partly be as an advocate and partly as a Pleader. From the various classes of legal practitioners the recruitment is to be. from the class of legal practitioners who are Advocates, but how long a person has been as Advocate is not of the essence. What is of the essence is his practice in the Rajasthan High Court or Courts subordinate thereto for a period of not less than seven years, which may be either as an Advocate or as a Pleader. Learned Advocate General submitted, when we put it to him, at the time of argument whether this would be a possible interpreted to take, that this was so and the rule is capable of being interpreted both in the way we suggested as ;t has been interpreted in the letter of the Registrar. Now even if we were to think that on account of the language of the rule being not clear enough two interpretations are possible, we would be inclined to prefer an interpretation which will be in keeping with the requirement of the Constitution. Article 233 of the Constitution inter alia lays down that a person not already in the 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 an Advocate or a Pleader. Thus the Constitution not only makes both pleaders and Advocates eligible for appointment but necessarily takes in a person who has practised for not less than seven years partly as a Pleader and partly as an Advocate. Now, if we compare and contrast Article 233 with Article 217 of the Constitution, which lays down the qualifications for persons for being appointed as a Judge of the High Court, a marked difference in the language will be noticeable in the Articles regarding the qualifications. Article 217(2)(b) makes a person who hrs for at least 10 years been an Advocate of a High Court in any State or two or more such High Courts in succession qualified for appointment as a Judge of a High Court. Having laid down the qualifications that the minimum period of 10 years as an Advocate is necessary for appointment as a Judge of the High Court the founding fathers framed Article 233 differently when for the appointment of District Judges they provided that a person to be appointed as a District Judge should have been an Advocate or Pleader for not less than seven years. Rule 8(i) or Rule 15(i) or the Rules would have been featured on the pattern of Article 217 of the Constitution if the intention of the rule making authority were that only a person who has practised for seven years as Advocate should be eligible. There should have been no difficulty in adding the words 'as such an Advocate' after the word 'practised' is Rule 8(ii) or Rule 15(ii). When the Constitution has made both Advocates and Pleaders eligible for appointment as District Judges provided they have been Advocates or pleaders for not less than seven years, one expects an unambiguous expression to exclude the practice as Pleaders altogether for the purpose of eligibility under the Rules. In these circumstances we feel constrained to say that the interpretation of the rule as given in the Registrar's letter available at page 34 of the paper book is not acceptable to us.

6. As regards the vires of the Rules 8(ii) and 15(ii) of the Rules on the ground of alleged violation of Article 15 or Article 233 of the Constitution we find ourselves in thorough agreement with the view taken by the Single Judge The learned Single Judge has referred to the following passage in Pandurangrao's case (i):

The object of the rule is 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 the regional language and adequate experience at the Bar may be prescribed as qualification 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.

We agree with the learned Judge that a person who has gained seven years' experience at the Bar in Rajasthan is likely to equip himself with the fair knowledge of local laws as well as knowledge of local dialects and the local conditions so that he will be a suitable person to hold a higher judicial post and would be able to discharge his duties efficiently. Thus there is a reasonable classification for persons who had practised for the requisite number of years in Rajasthan and those who had not so practised. Classification made by the rule making authority is thus not open to question on the ground of discrimination.

7. We also agree with the learned Single Judge that Article 233(2) of the Constitution only lays down the minimum qualifications that a person for direct recruitment as a District Judge should possess and it is open to the rule making authority under Article 309 of the Constitution to prescribe additional or higher qualifications if they are found necessary in the interest of the service to be constituted. Besides this we may notice that the definition of the term 'District Judge' as given in Article 236 of the Constitution is wide enough and would include a Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court,, Chief Presidency Magistrate. Additional Chief Presidency Magistrate Sessions Judge, Additional Sessions Judge and Assistant Session Judges. The Higher Judicial Service in Rajasthan which under the repealed rules of 1955 included Civil and Additional Sessions Judge as well in the grade of 500-1000, now consists of only District and Session ns Judge and Additional District and Sessions Judges and Additional District and Sessions Judges. The ordinary time scale for the District and Sessions Judges and Additional District and Sessions Judges is now 900-50-1000-66-1600-50-1800 (vide Rule 28) Apart from this a person now to be appointed to the service goes s a higher start depending on the length of his practice at the Bar and the starting salary incase of persons practising for 12 years or more is Rs. 1180/- In these circumstances when direct recruitment is now made at a higher leve1 with a higher salary and grade it was undoubtedly open to the rule making authority to have made provision for additional qualifications that the person concerned should have practised for a certain number of years in Rajasthan so that he could acquire sufficient knowledge of the local laws, local conditions and the regional language or dialects. We, therefore, do not find any substance in the contention that Rule 8(ii) or Rule 15(i) of the Rules ate, in any manner, violative of Article 5 or Article 233 of the Constitution. As the imppllant has not applied for the post advertised, we are not inclined to grant a he any relief even though we have come to the conclusion that the interpretation of the note as contained in the Registrar's letter available at page 34 of the paper book is not acceptable to us.

The appeal has no force and we accordingly hereby dismiss it, but leave the parties to bear their own costs of the appeal.


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