G.M. Lodha, C.J.
1. Petitioner R.R.P. Bhatnagar has filed this writ petition praying that the proviso to Rule 9 of the Rajasthan Higher Judicial Service Rules be declared to be invalid and ultra vires of Article 236(b) of the Constitution of India. He has further prayed that the orders Annexures 2 and 3 dated 17-12-1975 appointing Shri S.D. Godara and Shri N.L. Chhangani as Additional District Judges and an order dated 13-7-1976 appointing Shri G.L. Acharya and Shri R.C. Sud as Addl. District Judges be set aside and quashed. A further prayer has been made that the respondents No. 1 and 2 State of Rajasthan and the High Court of Judicature for Rajasthan Jodhpur, be directed to consider the candidature of the petitioner along with other persons, of judicial service who are persons exclusively intended to fill the post of District Judge and lastly it has been prayed that a direction may be issued that in future all posts Additional District Judges & p strict Judges in the Rajasthan High for Judicial Service be filled by promotion from members of the Rajasthan Judicial Service who are persons exclusively intended to fall the pest of District Judge.
2. This writ petition has beer opposed by all the respondents. Mr. Bhatnagar who has argued this casein person, has made a brief submission to substantiate his writ petition, which is based on the interpretation to be given to Articles 233, 234 and 236 of the Constitution. He has invited my attention to Sub-clause (b) of Article 236 which is as under:
236(b) the expression 'judicial service' means a service consisting exclusively of persons intended to (sic) the pest of District Judge and other civil judicial posts inferior to the post of District Judge.
Mr. Bhatnagar's contention is that so long as any member of judicial service is available for being promoted to the post of District Judge which includes Additional District Judge, no other persons from outside judicial service can be appointed by direct recruitment. According to him Clause (b) of Article 236 while using the word 'exclusively' in it expressly shows the intention of the Parliament to create a source of exclusive intendment of the members, of judicial service for promotion to the putt of District Judge including the Additional District Judge. In view of this, it is contended, that the proviso to Rule 9 which provides that after every three appointments by promotion, 4th person shall as tar as possible be appointed by direct recruitment, is invalid and ultra vires. It is submitted that the 4th person is available from judicial service, should be promoted and that process should continue till a situation arises where there is the member of judicial service available who is eligible for being promoted to the post of Addl. District Judge or District Judge as the case may be. That hearing so, it is argued that proportion 3 : 1 for recruitment of RHJS between the members of the judicial service and the direct recruits from Advocates is liable to be struck down being violative of Article 236(b) and Article 16 of the Constitution.
3. Mr. J.S. Rastogi, learned Government Advocate and Mr. Singhvi learned Counsel for the respondents No. 3, 4, 5 and 6 have vehemently opposed this writ application. My attention has been invited to Sub-clause (2) of Article 233 which is as under:
133(2) - 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 on advocate or a pleader and is recommended by the High Court for appointment.
It is contended that Sub-clause (2) of Article 233 expressly says that these Advocates who have put up seven years practice as an advocate or a pleader, and are recommended by the High Court for such appointment, can be appointed as District Judges by the Governor of State under Article 233(1). According to, Mr. Rastogi, there are two sources from which the Rajasthan Higher Judicial Service is formed one is of promotees from Rajasthan Judicial Service and the second one is advocates or pleaders having seven years standing. It is submitted that there is no express or implied intention to exclude the advocates and to make promotions from judicial service only as long as they are available as contended by Mr. Bhatnagar. The interpretation put by Mr. Bhatnaga to the word 'exclusively' in Article 256(b) is being challenged. Reference Was also made to Article 234 wherein it has been mentioned that appointment of persons other than District Judges to the judicial service of a State shall be made by the Governor of the Sate in accordance with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State Article 234 reads as under:
234. Appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules in that behalf after consultation with the State Public Service Commission & with the High Court exercising jurisdiction in relation to such State.
Mr. Singhvi appearing for the respondents No. 3 to 6 has raised further objection to the maintainability of the writ application on the ground of delay and also challenged the locus-standi of the petitioner to file this writ application.
4. I have bestowed my earnest consideration to the above rival contentions of the parties. It should be mentioned in the very beginning that the Rajasthan Higher Judicial Service Rules, 1969 have been framed under Article 231 and the proviso to Article 309 of the Constitution of India as expressly mentioned in the notification dated 17-1-1969 published in the Rajasthan Gazette (Extraodinary, Part IV-dated 21-1-69 Part III of these rules contained the principles and procedure of Recruitment and Promotion. The sources of recruitment are mentioned in Rule 8 which is as under:
8. Sources of recruitments-Recruitment to the service shall be made-
(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.
5. Then comes Rule 9 which is about appointment to the service and which contains the proviso challenged by the petitioner. The procedure of recruitment by promotion is given in Rules 11 to 13 and for direct recruitment is contained in Rules 14 to 21. A perusal of Rule 9 and the proviso thereto shows that two limitations have been pat by the rule making authority in the matter of appointment to the service. The first being that so far as direct recruitment is concerned, the number of persons recruited by this method shall at no time exceed one-third of the total strength of the service. The second rider is that so far as direct recruitment is concerned, it is only after three persons are appointed by promotion, that the fourth person can be appointed by direct recruitment.
6. The crucial question which now requires adjudication and decision by this Court is whether the Rule 9 in so for as it permits the fourth person to be recruited by direct recruitment, even though a member of judicial service, like the petitioner may be available for consideration for promotion to fill up this fourth vacancy, is unconstitutional. It is well established principle of statute that constitutionality of statute is to be presumed unless it is expressly shown that a particular piece of legislation is unconstitutional being violative of constitutional provision. It is, therefore, to be seen whether the argument developed by Mr. Bhatnagar based on Article 236(b) can be accepted and it ran be held that by use of the word 'exclusively' in Clause (b) of Article 236, the intention of the legislature was that the R.H.J.S. vacancy should be filled be treating that there is a creation, of exclusive area of members belonging to the Rajasthan Judicial Service from whom the vacancy can be filled by promotion to the exclusion of the direct recruits from advocates. Incase such an intention can be conclusively inferred then of course the proviso to Rule 9 trust give wav because the constitution mandate given in Article 236 is bound to prevail and the rules can be framed for the purpose of carrying out the constitutional mandate Rules of course cannot create which is contradictory or in direction or which would result undermining the constitutional mandate given in Chapter VI of the Constitution for the purposes of appointments of the District Judges which includes Addl District Judges.
7. Article 236(b) in my view 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. The exclusion here is of all other services and it say that all those persons who are holding judicial posts inferior to the post of District Judge are members of judicial set vice It in difficult to interpret Article 236 to mean that Clause (b) was (sic) in the Constitution to create a cadre of occupied field on members of judicial service for the purposes of sources, and cadre of persons who can be made distict judges or who can be reunited to the Rajasthan Higher Judicial service. Article 233(b) would become nugatory in case it is held that the only members of judicial set vice can be taken in the higher judicial service and the seven years advocates who are eligible for this recruitment by virtue of Sub-clause (2) of Article 233 cannot be considered so long as the entire list of the members of the judicial service is not exhausted, or in other words if all the members of judicial service in the Rajasthan State or for that put pose any other State are considered and exhausted then and then only an Advocate having seven years standing can be considered, for the Rajasthan Higher Judicial service. Whatever may be theortical aspect of it, for all intents and purposes such a situation can never arise because the moment if judicial service are promoted to the higher judicial set vice, the posts falling vacant in judicial service are filling up by fresh recruitment to the judicial service. I am, therefore, not inclined to accept the contention of Mr. Bhatnagar that by virtue to Article 236(b) exclusion has been made in favour of the members of judicial service and to the detriment of the advocates of seven years standing for the purposes of filling up the vacancies in the Rajasthan Higher Judicial service, and proviso to rule which permits every fourth appointment to the RHJS to be made from advocates of seven years standing after three posts are filled by promotes from RJS, is invalid. I am of the opinion that the proviso is valid and in consonance with the provisions of Articles 233, 234 and 236 of the Constitution.
8. Since on merits I have taken the view that the proviso to Rule 9 is intra vires and not ultra vires. I am not inclined to consider the objections of Mr. Singhvi, regarding objection of locus standi. Suffice it to say that in matters where vires of rules or Act are challenged and writ application has been admitted aid arguments have been heard on merits, it is always in the interest of all concerned that the High Court should make an authentic pronouncement regarding the validity of law aid not leave it to uncertainty by rejecting the writ applications on the technical grounds of delay, latches or of similar type I am further of the opinion that since Mr. Bhatnagar happens to be a member of the Rajasthan Judicial service, he has got every legal right to challenge the validity of the rules which concern the further venues of promotion of his own and the members pertaining to the RJS. The preliminary objections of Mr. Singhvi are, therefore, rejected. The writ application fails on met its and is dismissed without any order as to costs.