G.M. Lodha, J.
1. In exercise of the powers conferred by clause (2) of Article 233 of the Constitution of India, and in pursuance of Rule 8(ii) of the Rajasthan Higher Judicial Service Rules, 1969, the Governor of Rajasthan in consultation with the Rajasthan High Court, Jodhpur. is pleased to make appointments of the folowing candidates to the Rajasthan Higher Judicial Service as Additional District and Sessions Judges with effect from the date of assuming charge of their respective offices by them, on an initial pay of Rs. 900-50-1000-60-1600-80-1800., pending its fina' determination as per Rule 29 of the R.H.J.S. Rules.
1. Shri Shivcharan Lal Singhal
2. Shri Mangat Rai Mitruka
2. The appointments will be on probation for a period of two years.
3. The senioritv of the aforesaid newly appointed candidates in relation to officers appointed by promotion would be determined later on in consultation with the High Court.
Copy forwarded to:
1. Secretary to Governor.
2. Secretary to Chief Minister.
3. P.S. to Law Minister.
4. P.S. to Chief Secretary.
5. Special Secretary, Department of Personnel-A. 1 Department.
6. Registrar, Rajasthan High Court, Jodhpur with 3 spare copies with remarks that as soon as the officers take charge of their duties, they should be required to take an oath of allegiance or make a solemn affirmation that they will be loyal to the Constitution of India, as by law established. The posting orders of the above named candidates may also be issued immediately under intimation to this Department. Proposals determining the seniority and fixing the pay of these candidates may also kindly be sent immediately.
7. Shri Shiv Charan Lal Singhal, Advocate, Deeg (Bharatpur).
8 .Stri Mangat Rai Mitruka, Advocate Hanumangarh (Ganganagar).
9. Accountant General, Rajasthan Jaipur with 4 spare copies.
10. Personal files of the respective candidates.
11.Director of Public Relations, Rajasthan Jaipur.
12. All District and Sessions Judges concerned.
13. Guard file.
3. The petitioner's initial pay was fixed by the State Government at Rs. 1060/- vide Annexure Rule 2, which reads as under:
'GOVERNMENT OF RAJASTHAN
The Accountant General,
Sub: Fixation of pay of Additional District and Sessions Judge appointed
by direct recruitment.
In continuation to this Department order of even No. dated 9.4.74, I am directed to say that Shri M.R. Mitruka was enrolled as an Advocate 3.12.63. He had put in eleven years practice and ten years practice before joining the Rajasthan Higher Judicial Service, under Sub-rule (1) of Rule 29 of R.H.J.S. 1969, the initial pay of persons appointed by direct recruitment is fixed Rs. 1060/- in case he had practised for ten years. Accordingly the initial pay of Shri Manaat Rai Mitruka should be fixed Rs. 1060/- p.m. in the scale of Rs. 900-50-1000-60-1600-50-1800 with effect from the date they joined duty in the Rajasthan High Judicial Service.
It is therefore requested that necessary pay slip fixing the salary as mentioned above may be issued to the Shri M.R. Mitruka under intimation to this Department.
Copy forwarded to the:
1. Registrar, Rajasthan High Court, Jodhpur with reference to letter No. 6918 dated 22.10.74.
2. Shri Mangat Rai Mitruka, Addl. District and Sessions Judge Jaipur city-3.
The pay fixation was done by the State Government in terms of Rule 29 subclause (b) of the Rajasthan Higher Judicial Service Rules, hereinafter referred to as 'the Rules! Rule 29 (b) of the Rules as under:
29. Initial pay: (1) The initial pay of a person appointed to the service shall be fixed in the ordinary time scale.:
(b) if such appointment has been made by direct recruitment under clause (ii) of Rule 8,
at Rs. 900 in case such person had practised for seven years ' 950 ' Eight years' 1000 ' Nine years' 1060 ' Ten years' 1120 ' even years' 1180 ' Twelve years or more.............'
The above fixation was made in consultation with the High Court. The High Court (Administrative side) was of the view that the practice to be considered for the purpose of fixation should be the practice as an Advocate and since Shri Mitruka was enrolled as an Advocate on 3.12.1963 according to the Rules of the Bar Council, he had 10 years practice as an advocate to his credit.
4. Against the above fixation of pay, by the Government after consultation with the High Court, the petitioner made representations. As per the record of the High Court (Administrative side) which has been placed before the Court, during arguments and which was read for the benefit of learned counsel for the parties also during arguments, the Registrar of the High Court on 7.6.1975 opined that in view of the decision of the Rajasthan High Court (Full Bench) Munnalal v. The State of Rajasthan and Ors. I.L.R. (1970) 20 Raj. 179, 'Practice' in Rule 29 should mean the 'practice' as interpreted in Rule 15. It was opined that the 'practice' in Rule 29 cannot mean the 'practice' partly as an Advocate and partly as a pleader and it has to be assigned the same meaning as has been assigned in the above judgment of the Full Bench i.e. as an Advocate. The Registrar, therefore, recommended that the representation of the petitioner should be filed. The High Court (Administrative side) Hon'ble Justice Kan Singh and the Hon'ble Chief Justice P. N. Shinghal on the above representation passed the following order:
The Rule regarding fixation of salary of an Advocate appointed as a direct recruit to R.H.J.S. has to be construed pari materia with Rule 8 of the R.H.J.S. Rules as interpreted in I.L.R. (1970) 20 Raj. 179 F.B. That being so, the representation has to be filed.
5. It appears from Annexure Rule 3 dated 8.8.77 that the petitioner was in formed of rejection of his yet another representation dated 11.5.77 on this sub. ject vide letter dated 8.8.77 and while doing so his attention was specifically invited to the Full Bench decision in the case of Munnalal v. State of Rajasthan I.L.R. (1970) Raj. 179. This was done obviously as per the record on the note of the Registrar and after the Administrative Judge (Hon'ble S.N. Modi) approved of the Registrar's note that in view of the Full Bench authority the issue stands firmly clinched against Shri Mitruka.
6. It would be significant to note that the petitioner did not challenge either the initial fixation or the rejection of the first representation or second representation in the judicial side and seemingly felt satisfied with the administrative decision of the High Court in this matter of fixation of pay. Suddenly on 11.8.78 he filed another representation dated 9.8.78 as would be obvious from the representation on record of the High Court placed before this Court and a copy of which has not been fired by the petitioner which would have enabled this Court to know in what circumstances the later order of altering the fixation of 1974 was passed in 1978. It is clear that the petitioner who was vigilance Registrar of the High Court, represented to the Chief Justice against the order of initial fixation without mentioning that a representation aeainst this was filed earlier and was rejected by the Chief Justice Hon'ble P.N. Shinghal and the Administrative Judge Hon'ble Kan Singh and Hon'ble Justice S.N. Modi and this has been done twice. A petitioner making representation to the Chief Justice normally is expected to mention the entire history of the case and more particularly the earlier orders which have been passed by none the less than the Chief Justice and Administrative Judge who have rejected his two successive representations earlier.
7. The matter having been examined thrice by the High Court first at the time of fixation in 1974 when the High Court on the Administrative Side came to the cone usion that the 'practice' means 'practice' of an Advocate for the purpose of Rule 29 also and second and third time when the successive representations against that were examined and rejected, it was all the more necessary that the Chief Justice before whom the third representation was made in 1978 should have been informed in the representation itself of the earlier view.
8. This third representation of the petitioner which was presented on 11.8.1978 was sent to the Office Superintendent General Section to be dealt very early by the Registrar and on 18th August, 1978, the General Section submitted that similar representation was considered and filed earlier. Surprisingly this was not placed before the Deputy Registrar or the Administrative Judges. As per the file placed before this Court during arguments there is order of the then Hon'ble Chief Justice dated 15th September 1978 mentioning that the word 'practised' cannot be taken as practice of an Advocate and the petitioner's contention should be accepted and his practice both as an Advocate and Pleader should be counted for fixation.
9. The above order of the then Chief Justice C. Honniah was relied upon by another Sessions Judge Shri Shivcharanlal for his similar fixation. It was in this context that the High Court in Administrative Side became seized of this issue again. When the issue came up before the Registrar as per the conflict of opinion between the Hon'ble. Kansingh Administrative Judge, Hon'ble Chief Justice P.N. Slvnghal and Hon'ble S.N. Modi Administrative Judge, with Hon'ble C.J. Honniah the matter was placed before the Administrative Judge Hon'ble M.L. Joshi who opined that the view taken by Full Bench in Munnctlal v. State of Rajasthan I.L.R. (1970) 20 Raj. 179 and followed by the then Chief Justice Hon'ble P.N. Shinghial Administrative Judge and Hon'ble Kansingh is the correct view and the view of the then Chief Justice Hon'b'e Shri Honnaih that practice as a pleader should also be considered for the purpose of pay fixation under Rule 29 is. not correct. The orders of Hon'ble Chief Justice Honniah and Hon'ble A.J. Shri M.L. Joshi reads as under:
56. 'I have called for the file relating to the fixation of the pay of Shri M.R. Mitruka, Registrar vigilance and have gone through his representation and also the previous decision taken by this Court. The case on which the previous decision was based ILR 1970 (20) Raj 179) related to the interpretation of Rule 8(ii) to Rule 15 (ii) of the RHJS Rules. Rule 29 never came for interpretation before this Court. Rule 8(ii) to Rule 15(ii) are subject to each other while Rule 29 relates to the fixation of pay of an officer promoted in the RHJS cadre and appointed under direct recruitment. It has got a separate identify and is not subject to any other rule. The word used 'practice', therefore, cannot be taken as practice as an Advocate. I am inclined to accept the contention put forward by Mr. Mitruka. and hereby order that his pay should be fixed according to the year of practice, both as an Advocate and Pleader, he has put in before joining in the RHJS.
Sd/- C. Honniah.'
The office has pointed out the conflict between the views of Hon'ble Kansingh A.J. and the then Hon'ble Chief Justice Shri P.N. Shinghal on the one hand and that of the then Hon'ble Chief Justice Shri Honniah on the other, on the interpretation of the word 'practice' occurring in Rule 8 (ii) and Rule 15 (ii) and Rule 29 of the R.H.J.S. Rules. The Full Bench decision of this Court has clearly laid down that words 'who has practised in the Court or courts subordinate thereto' have been used in Rule 8(ii) and Rule 15(h) of the R.H.J.S. Rules to mean practice as an advocate and not as a pleader. The view taken by Singhal, C.J., and Kansingh, A.J., is in conformity with the Full Bench decision. The decision of the Full Bench is a judicial decision and is binding on the administrative side. Chief Justice Honniah has observed that Rule 29 is an independent rule and is not subject to Rule 8(ii) and Rule 15(ii). There is no warrant for such an interpretation. Rule 29 is to be read harmoniously with Rule (8ii) and Rule 15(ii) and the same meaning is to be given to the word 'practice' occurring in the above rules. There is no reasonable justification to depart from the view taken by Shinghal, C.J. and Kansingh, A.J., which is based on a Full Bench decision of this Court. Rule 29 contemplates the fixation of the salary of the direct recruits under the R.H.J.S Rules. It has to be construed para materia to Rule 8(ii) of the R.H.J.S. Rules, as interpreted in I.L.R. 20 (1970) Raiasthan 179(F.B.), Rule 29 has to be harmoniously read with Rule 8(ii) and Rule 15(ii) and if so read the direct recruits under the R.H.J S. Rules cannot take advantage of the period of practice as a pleader in the matter of fixation of salary under Rule 29. In my opinion the view taken by the then Chief Justice Shri Honniah is not correct and we should follow the view taken by Shinghal, C.J., and Kanghsingh A J.
Sd/- M.L. Joshi 9/5.'
The then Chief Justice Hon'ble CM, Lodha agreeing with the view of the Administrative Judge Hon'b'e M.L. Joshi directed that the action should be taken in all cases on the basis of the view expressed by the Hon'b'e Administrative Judge. The relevant order reads as under:
I agree with Hon'ble A.J. Let action be taken in all cases on the basis of the view expressed by Hon'ble A.J.
It was in pursuance of the above order of the High Court on the Administrative Side that the representation of Shri Shivcharanlal was rejected and at the same time the impugned order which is under challenge in this writ petition was passed by which the earlier order of Hon'ble Chief Justice P.N. Shinghal as he then was restored and given effect to by putting at naught the later order of Hon'ble Chief justice C. Honniah.
10. I have given in details the history of the case as based on the facts that have been revealed partly from the pleadings of the parties and partly by oral submissions which were made during arguments, but which are substantiated by the Administrative File of the High Court bearing Establishment No. 132(1) 16/74 subject-fixation of pay of Additional District and Sessions Judge appointed by direct recruitment 1974 which was candidly and frankly placed before this Court with fairness to both the parties by Mr. Shishodia Government Advocate representing the High Court and the relevant portions of which have been referred above were referred during arguments and readover in the Court so that both the parties can make any comments if they so desire.
11. It would be thus seen that the controversy which has now been raised by Mr. Mathur appearing for the petitioner has got important legal dimensions. One of the delicate feature of this dimension is that a Judicial Officer is the petitioner, the High Court is the Respondent and a Singhle Bench is required to adjudicate the correctness of the interpretations put by two Chief Justices and three Administrative Judges who claimed to follow a Full Bench decision of three Judges on the one side and another Chief Justice who has chosen to interpret the Full Bench decision of this Court as being inapplicable in the instant case of the petitioner on the other side. The task undoubtedly is difficult, but it would be shirking the responsibility of and the Constitutional duty if the same is avoided on any pretext or by adopting short-cut method.
12. Both the learned counsel Mr. A.K. Mathur and Mr. D.S. Shishodia, the Government Advocate, who have argued the case for more than a day have very fairly and frankly finally conceded that the entire fate of the case would depend on the application of the principles of law laid down in celebrated judgment of the Hon'ble Supreme Court in S.L. Kapoor v. Jagmohan AIR 1981 SC 186. Of course before this concession was made by both the sides very long arguments were made and in all fairness I would mention them also a little later. I am not only in agreement with both the learned counsel but even more than, that I am also of the firm view, that, all said and done, ultimately my decision would be clinched on the application of the following principles laid down in that case:
Where on the admitted or undisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs.
13. After mentioning the above principles which would be pivot of this judgment let me now deal in details the issues of controversy raised at the Bar in this case. The initial mention of the facts which are not in dispute in this case would show that the entire controversy is about the interpretation to be put on the word 'practised' as used in Rule 29 because whereas the petitioner insists that it should mean practice as a pleader also, the High Court on the Administrative side consistently with the exception of the order of Hon'ble Chief Justice Honniah has been taking the view that it means practice only as an Advocate and placed reliance, upon the Full Bench judgment of this Court Munnalal v. State of Rajasthan I.LR. (1970) 20 Raj. 179). Mr. Mathurls principal contention is that even if two interpretations are possible which according to him are naught, then also once an order was passed by the then Chief Justice Hon'ble Honniah revising the fixation of the petitioner by inclusion of the practice of as a pleader, that order could not have been rescinded, varied or altered to the detriment of the petitioner without providing him an opportunity of showing cause and hearing against it. Since admittedly no fair opportunity was given the later impugned order by which the fixation done by the High Court in compliance of Hon'ble Chief Justice Honniahls direction could not have been set aside. Reliance was placed by Mr. Mathur also on the latest judgment of S.L. Kapoor : 1SCR746 ) mentioned above and particularly the following observations:
The requirement of natural iustice are met only if opportunity to represent is given in view of proposed action. The demands of natural iustice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose.
The person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met.
The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will come from a person who has denied justice that the person who has been denied justice is not prejudiced.
14. Mr. Mathur further submitted that the view taken by Hon'ble Chief Justice Honniah was a so correct because the Full Bench decision referred to above relates to initial appointment only and not to fixation of pay as correctly pointed out by the then Chief Justice in his order. According to him, the earlier view taken by the then Chief Justice Hon'ble Shri P.N. Shinghal and by Administrative Judges Hon'ble Kansingh, Hon'ble S.N. Modi and Hon'ble M.L. Joshi and Chief Justice Hon'ble Shri CM. Lodha is incorrect and their placing reliance upon the judgment of the Full Bench is also based on wrong understanding of that judgment of Full Bench. According to Mr. Mathur only one view is possible in respect of the interpretation of Rule 29 (b) and that is the view taken by Chief Justice Honb'le Honniah. Mr. Shishodia appearing for the Respondents has not contested the factual allegation that before the impugned order was passed by the High Court, opportunity to show cause was not given to the petitioner. His contention is that it was not necessary and in any case the issue of a writ would be futile because of the following:
(a) that the order of the then Chief Justice Hon'ble Honniah was without jurisdiction nonest and nullity.
(b) that the fixation of initial pay can only be done by the Governor and therefore as after the view of Chief Justice Hon'ble Honniah, no order was passed by the Governor, nor any concurrence was taken from the Government, the fixation order revising the earlier fixation of 1974 is patently illegal and without authority of law.
(c) That granting of any writ by directing the setting aside of the impugned order and restoration of the order of 1978 passed in pursuance of Chief Justice Hon'ble Honnlah's direction would result in purporting and restoring a patent legality which this Court should not do under equitable jurisdiction of Article 226 of the Constitution of India.
(d) That after the authoritative pronouncement of Full Bench of This Court in Munnalal v. State of Raj I.L.R. (1970) Raj. XX page 179, the High Court on the Administrative side cannot treat the practice as a pleader as practice for the purpose of Rule 29.
(e) That since the facts are not in dispute the exception carved out by para 24 of S.L. Kapoor's case : 1SCR746 , relevant portion of which has been extracted above would apply. One conclusion and one conclusion only is possible on the admitted facts that the period of practice as a pleader cannot be termed as period of practice for the purpose of Rule 29 after the authoritative pronouncement of the Full Bench from judicial side.
(f) That even if principles of natural justice have been violated since there has been no substantial failure of justice by restoration of the original order, no interference can be made.
15. In order to appreciate the above contention of the learned counsel and to adjudlcate the controversies raised herein it would be necessary first to extract the principles which were laid down in the Full Bench decision which contains a judicial pronouncement on the import and meaning of the phrase 'the practice'. As sitting in Single Bench I have got to First respect the well established principles and practice of precedent. Munnalal's case, I.L.R. (1970) 20 Raj. 179 relates to the challenge by an Advocate for quashing the selection made for Higher Judicial Service of Rajasthan because only Advocates of 7 years' practice were allowed and the petitioner's application was rejected on the ground that he has not put in 7 year's of service as an Advocate.
16. The contention No. 2 raised before the Full Bench may now be first extracted. It reads as under:
'That respondent No. 2 while calling the applicants for interview, wrongly interpreted Rule 15 of the Rules. According to the petitioner,Rule 15 provides only that on the date of the application the applicant should be an advocate with a practice of seven years and it no where lays down that the period of seven years' practice should be as an advocate.
17. Dealing with the second contention after tracing out the history of the decision of Single Bench and Division Bench in Daulat Raj Singhvi v. State of Rajasthan and Anr. I.L.R. (1970)20 Raj. 36 the Full Bench held as under:
We have given our careful consideration to the reasoning adopted by the Division Bench, but we do not feel persuaded to accept the view taken by the Division Bench as regards the interpretation of rr. 8(ii) and 15 (ii). In our opinion, the words 'who has practised in the court or courts subordinate thereto have been used in rr. 8(ii) and 15(ii) of the Rules to qualify the words 'an advocate' and according to the plain grammatical meaning the practice referred to in the Rules must mean 'practice' as 'an advocate' and we see no adequate justification for adding to the Rules words such as 'as a pleader' or 'as any other kind of legal practitioner' after the word 'practised in the Rules. It may be pointed out here that before the promulgation of the Advocates Act, 1961, there were several laws dealing with legal practitioner and there were various categories of legal practitioner such as Advocates Barristors, Pleaders, Mukhtiars, vakils etc. It may also be mentioned that the Connotation of the word 'pleader' was not identical in the different States and that in some States the Pleaders were entitled, as of right to practise in the High Court. This position was examined by the All India Bar Committjee, which made important recommendations for the creation of a unified AU India Bar and a common roll for advocates. In pursuance of the recommendations of the Bar Committee the Advocates Act, 1961 came into force. One important feature of the law was the Integration of Bar into a class of legal practitioners known as 'Advocates'. The Rules were promulgated either years after the Advocates Act, when there was no provision for enrolment as pleaders or any other kind of legal practitioners, the only provision being for enrolment as 'Advocates' and when the other categories of legal practitioners were nearing extinction. In such a background the rule making authority could not have intended to include practice as a pleader for the purpose of seven vears' practice to enable an advocate to be eligible under Rule 15(ii) of the the Rules.
Reference to the provisions of the Constitution in Articles 233 and 217 also cannot, in our opinion, be of any help to interpreting rr. 8(ii) and 15(ii). The Constitution was passed in the year 1950 when, as observed above, there were various categories of legal practitioners and various enactments dealing with them and when, in some cases, pleaders couM practise in the High Courts. Article 236 of the Constitution defines 'District Judges' to include 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, Additional Chief Presidencv Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge. It appears to us that having regard to the varying conditions in the different States, both as regards the categories of the legal practitioners and their rights and the nature of judicial service including the Higher Judicial Service, the Constitution provided the minimum qualifications for appointment as District Judge in general terms and it will hardly be proper to allow our interpretation of rules 8(ii) and 15(ii) passed after the promulgation of the Advocates Act to be coloured by reference to the provisions of Article 233 of the Constitution made in general terms. The conitention of the petitioner relating to the interpretation of the rules. 8(ii) and 15(h) is rejected.
The Full Bench therefore decided unanimously that the practice could mean the practice as Advocate only.
18. It is important to note that after tracing out the history of evolution of the legal practitioners and the recommendation of All India Bar Committee and passing of the Advocates Act 1961, the Hon'b'e Court explicitly, clearly while discussing the Rules of 1969 made the following observations:
One important feature of the law was the integration of the Bar into a class of legal practitioners known as Advocates.
The rules were promulgated 8 years after the Advocates Act when there was no provision for enrolment as Pleader or any other kind of legal practitioners, the only provision being for enrolment as 'Advocate' and when the other categories of legal practitioners were near extinction.
19. In order to further appreciate the dictum of law laid down in the above Full Bench case it would be not only relevant but essential to compare the language used in Rule 8 Sub-clause (2), Rule 15 Sub-clause (2) with Rule 29 Sub-clause (b). In Sub-clause (2) of clause (8) which deals with source of recruitment, the phrase used is 'the Advocates who have practised in the Court for a period of not less than 7 years. In clause (15) while dealing with qualification for direct recruitment Sub-clause (2) again used the same word' an Advocate who has practised in the Court or Courts subordinate thereto for a period of not less than 7 years. In Rule 29 which is in part and which deals with scales of pay and fixation of initial pay, Clause (2) mentions if such appointment has been made by direct recruitment under clause (2) of Rule 8 and then comes the scale which says at Rs. 900 in case such person had practised for 7 years. In clause (b) of Rule 29 'such person' and practised' directly refer to clause (2) of Rule 8. Thus it would be seen that exactly the same meaning which has been given to Rule 8 clause (2) in the matter of counting of practice would apply to such person for the purpose of clause (b) of Rule 29 to test the correctness of this proposition
20. It would be useful to examine whether a person having two years practice as pleader and five years practice as Advocate can be contemplated in the first clause of Rule 29 Sub-clause (b) for fixation at Rs. 900/. Even Mr. Mathur putting his argument at the best would not be able to visualise a position where such person for the purpose of fixation at Rs. 900/- which is the first category under clause (b) of Rule 29 ca' be a person who has put up practice as an Advocate for 5 years or 6 vears and who has got 7 years practice by inclusion of his practice as Pleader. In clause (b) of Rule 29 the phrase used is such person has practised for 7 years. 'Had practised for 7 years' means as contemplated by Rule 8 clause (2) only, which means as an Advocate. Can it be said that even though for the first category while interpreting the meaning of 'had practised for 7 years' it would mean the meaning for practice which has been given in Rule 8 clause (2). but for subsequent use of the same words 'such person had practised for' the meaning would be different when it comes to 8 years or 9 years.
21. It is well established principle of interpretation of Statutes that when the same word is used in the same section or clause. it must mean the same thing unless expressly intended to be otherwise. Sub-clause (b) reads as un If such appointment has been made by direct recruitment under clause (ii) of Rule 8, at Rs. 900 in case such person had practised for seven years...
If for fixation of Rs. 900/- the meaning to be given to word 'practised' is an Advocate then the same meaning would follow for fixation and Rs. 950/-, Rs. 1000/- and so on. If Mr. Mathur's contention is accepted it would mean that the phrase 'practised' for the first category for fixation at Rs. 900/- would mean as an Advocate but later on it would mean as a Pleader also and if it is further extended to its logical conclusion as a Revenue Agent an Income-tax Practitioner a Taxation Practitioner etc. Such an inconsistent interpretation which would also become ignoble in the last category of cases cannot be given by any stretch of imagination. That being so, the deduction of legal dictum laid down by the Full Bench leads to only one conclusion which even otherwise is the only conclusion, if these Rules are interpreted independently that the word 'practised' used in the Rajasthan Higher Service Rules 1969 means for the entire set of Rules irrespective of the part or dause wherein they are mentioned as 'practised as an Advocate and an Advocate only. It cannot mean the practice which one might have had in any other capacity than that of an Advocate which can be in different status of Pleader or a Revenue Agent or a Tax Practitioner or a Mukhtiar etc., can also be included
22. It was precisely on account of the above clear and categorical position of law and the meaning of the word 'practice' in these Rules which admitted of no doubt after the judicial pronouncement of a Full Bench in Munnalal v. State of Rajasthan and Ors. I.L.R. (1970) 20 Raj. 179 that one after the other Judges of the High Court on the Administrative side either functioning as Administrative Judge or Chief Justices rejected the prayer for inclusion of practice as a pleader also for giving higher pay to the petitioner. The original file placed by the Government Advocate before this Court amply proves that this view was taken at the time of initial fixation by the then Chief Justice Hon'b'e Shri P.N. Shinghal on 16.10.1974 and the Government also made the fixation accordingly vide Ex. Rule 1 and Ex. Rule 2. Annexure Rule 2 at page 40 is the letter of the Government of Rajasthan expressly mentions that since the petitioner was enrolled as an Advocate on 3.12.63 he had put up 10 years practice and was entitled to be fixed at Rs. 1060/-. This order has been issued by the Government of Rajasthan
23. It is little surprising how this Order was altered by the REGISTRAR without even making a reference to the Government and taking concurrence of the Finance Department. This aspect of the case would be dealt with little later when the precise objections of Mr. Shishodia in this respect are considered
24. The net result of the above discussion is that Rule 29 Sub-clause (b) cannot be interpreted in more than one ways. The phrase 'practised' used in it for the purpose of fixation from Rs. 900/- to Rs. 1180/- can mean 'practised as an Advocate only and not in any other capacity. This is so on a plain reading of Rule 29 Sub-clause (b) along with Rule 8(2) and Rule 15 of these Rules. This is more so and becomes the only conclusion possible as contemplated by para 24 of S.L. Kapoor's case : 1SCR746 on account of the decision of the Full Bench judgment of Munnalal's case, (I.L.R. (1970) 20 Raj. 179) along with the relevant rules.
25. That being so it also follows that the facts in the present case being admitted or undisputed and the only conclusion being one, the consequence would have also been one i.e. the fixation of petition after taking note of his practice as an Advocate and excluding his practice as a Pleader. The issue of any writ in the present case would be an exercise of futility as held in S.L. Kappor's case : 1SCR746 . It has been, recognised by the Hon'ble Supreme Court that futile writ should not be issued and while observing this principle it is not material whether principles of natural justice have not been observed, The above principle was deduced in para 17 in S.L. Kapoor's case : 1SCR746 which reads as under:
Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.
Since I have come to the conclusion that in the instant case neither the conclusion are controversial, nor the results of those conclusions are discretionary and as once it is held that only practiced as an Advocate can be considered for these Rules which include Rules 8, 15 and 29, neither the High Court nor the Government had any discretion to give higher pay treating the practice of Pleader as practice for the purpose of Rule 29. The remedy, result or decision of fixation not being discretionary and the controversy if any haying been clinched by the Full Bench judgment, and does not appear to be even latent much less patent now, the exception carved out by S.L. Kapoor's case judgment' to not to issue futile writs, in such cases, square y covers the instant c
26. The submission of Mr. Shishodia that the issue of the Order by the Registrar of refixation of the petitioner's pay dated 20th of May, 1978 also requires serious consideration. As mentioned above, the earlier order was issued by the Government. Admittedly this order dated 20th September, 1978 not only was issued without even prior concerrence of the Government or prior consultation of the Government, but the endorsement would show that even a copy of it was not sent to the Government or the Accountant General Rajasthan. Mr. Mathur when confronted with the above submission of Mr. Shishodia pointed out that under Article 233 of the Constitution, the fixation of the salary of the Higher Judicial Service is to be made by the High Court alone. The Rules of 1969 have been made by the Governor of Rajasthan in consultation with the High Court and is clear from the notification dated 17th January 1969 attached to it. The earlier order of appointment as well as fixation which are Annexures Rule 1 and Rule 2 have been issued by the Government. The second order of fixation for appointment expressly mentions that fixation is being done by the Government under Rule 29 Sub-cause (1) of these Rules. It is the Government who has written to the Accountant General. The Rules also make a mention of Rajasthan Service Rules in Rule 29 itself. Even Rule 29 Sub-clause (2) makes a mention of counting of extension for increment on the directions of the Governor only, although it is to be on the recommendation of the Court. The Schedule IV attached to these Rules refers to the Rajasthan Service Rules. A reading of the Rules as a whole would clearly show that though primarily the High Court is concerned in the matter of Higher Judicial Service but the orders for payment and fixation of salary etc. are to be passed by the Government. It is not the scope of the inquiry and decision of this Court to consider whether these Rules are valid as the validity has not been challenged before me. That being so, I have got no hesitation in accepting the contention of Mr. Shishodia that the Registrar should not have directly issued the order of refixation of pay of the petitioner in pursuance of the order of the Chief Justice without moving the Government for the same and without consulting the Finance Department. It was all the more necessary because the earlier order was of the Government and the Government, alone should have been asked to alter or amend it as it had financial implication also. Whether on account of this the High Court was justified in recalling it is not a question which requires adjudication from this Court in view of my earlier finding that the order of Chief Justice Hon'ble Honniah treating the practice as Pleader to be counted for fixation of higher salary was patently without jurisdiction being against the Full Bench judgment mentioned above and the earlier decisions of Hon'ble P.N. Shinghal of 74-75 Justice Hon'ble Kansingh, Hon'ble S.N. Modi, on the Administrative side.
27. Since the original order of fixation was issued by the State Government and as its refixation by the Registrar was done without concurrence or consultation with the Government, the Registrar by issuing the impugned order only restored the legal position by removing the clouds illegally created by the 1978 order. That being, so, in 1979 the High Court was not required to consult or take concurrence of the State Government for restoring the Government order and for setting at naught the unlawful order passed in between.
28. Mr. Shishodia in support of his above contention placed reliance upon the judgment of A. Pandurangan v. State of A.P. : 1SCR620 and M.S. Jain v. State of Haryana : 2SCR361 wherein it has been held that the final authority in such matters of appointment was the Government. In A Pandurangan : 1SCR620 the High Court observed as und
The final authority is the Government in the matter of appointment and for good reason it can reject the recommendation of the High Court.
In M.S. Jain v. State of Haryana : 2SCR361 the Supreme Court observed as under:
The initial appointment of District Judges under Article 233 is within the exclusive jurisdiction of the Government after consultation with the High Court. The Governor is not bound to act on the advice of the High Court. The High Court recommends the names of the persons for appointment, but it is not obligatory on the Governor to accept the recommendation. Nor is the Government bound to give reasons for not accepting the recommendations of the High Court.
Confronted with the above, Mr. Mathur submitted that when the Chief Justice of the High Court puts one interpretation the Government cannot over-rule it. I am of the opinion that the contention of Mr. Mathur is correct in case a judicial verdict is given by the High Court and in that case it would be immaterial whether the judgment is of Chief Justice or a puisne Judge. But that principle would not apply when on the Administrative side the opinion is expressed by the Chief Justice or even the Full Court, provided the Government under the law of the land has got legal power to approve or reject it. The matter in relation to the financial implications and involvement of the State by and large concerns the Government. Except the Constitutional provision regarding the salary or emoluments of the Judges or the Governor or the President as the case may be, the other matters of salary, allowance and fixation normally are to be decided by the Finance Department of the Government in consultation with the parent Department and in accordance with the Rules or the law of the land. I would not like to expand the inquiry on this aspect of the matter further as for the reasons mentioned above I have held that so far as the fixation of salary on interpretation of Rule 29 of the Rules is concerned, it is to be done by Government in consultation with the High Court which was not done at the time the order dated 20th September, 1978 Ex. 1 was issued by the Registrar. The decisions and judgments cited by Mr. Shishodia referred to above would not provide much guidance because they are not cases of fixation of pay or salary of Judicial Officers.
29. Mr. Shishodia next submitted that if the impugned order is set aside it would result in restoration of an illegal order and thereby this-Court would be perpetuating illegality. For the above proposition of law he relied upon venka-teswara Rao v. Government of Andh-Pra : 2SCR172 and jagansingh v. S.T.A.T. . In venkateshwaran Rao's case the Supreme Court first considered whether the opportunity to show cause was necessary and then observed as under.
But there is another flaw in the order of the Government dated April 18, 1963, i.e. it made the order without giving an opportunity to the representatives of Dharmajigudem who were prejudically affected by the said order. Learned counsel for the State said that the appellant could not be considered to be a party prejudicial y affected by that order. But, as we have stated earlier, the appellant was the President of the Committee which collected the amount, he was representing the village all through and he also deposited the prescribed amount with the Block Development Officer. The Government should have therefore given notice either to him or to the Committee, which was representing the village all through for the purpose of securing the location of the Primary Health Centre in their village. The order made in derogation of the proviso to Sub-section (1) of Section 72 of the Act is also bad.
After giving a categorical finding that the impugned order was illegal on a number of grounds, refused to interfere under Article 226 of the Constitution of India precisely because that would have resulted in restoring an illegal order. The relevant observations which have got important bearing in the instant case also reads as under.
The result of the discussion may be stated thus: The Primary Health Centre was not permanently located at Dharmajigudem. The representatives of the said village did not comply with the necessary conditions for such location. The Panchayat Samithi finally cancelled its earlier resolution which they were entitled to do and passed a resolution for locating the Primary Health Centre permanently at Lingapalem. Both the orders of the Government, namely, the order dated March 7, 1962, and that dated April, 18, 1963 were not legally passed: the former because it was made without giving notice to the Panchayat Samithi and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmajigudem visage. In those circumstances, was it a case for the Hisjh Court to interfere in its discretion and quash the order of the Government dated April 18, 1963. If the High Court had quashed the said order, it would have restored an illegal order-it would have given the Health Centre to a village contrary to the valid resolution passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise its extra ordinary discretionary power in the circumstances of the case.
In Jagansingh v. S.T.A.T. the Full Bench consisting of five Hon'ble Judges of this Court refused to interfere on the ground that even though the impugned order was without jurisdiction, but restoring the earlier order would result in restoring illegal order. The Court observed as under
Where the State Transport Appellate Tribunal, allowed the appeal and set aside the order of the R.T.A., varying a condition of the petitioner's permit, as respects the route on the ground that the R.T.A admittedly did not follow the procedure prescribed under Section 57(3), (4) to (5) of the Act and the order of the Tribunal was challenged by a writ petition on the ground that the Tribunal had no jurisdiction to entertain the appeal under Section 64(1) (b) of the Motor vehicles
Held (without deciding the controversy) that, as allowing the writ petition would result in restoring the illegal order of the R.T.A. and as there had been no failure of justice in the instant case, the High Court refused to interfere with the appellate order.
It may be noticed that while taking this view the High Court relied upon the above judgment of the Supreme Court in G. venkatswarao v. Government of Andh-Pra : 2SCR172 and also referred to the earlier judgment of Rajasthan High Court in Gani Mohammed v. STAT 1976 R.L.W. 201. Paras Nos. 11 and 12 of this Full Bench judgment which have got great bearing in the instant case read as under.
As we have already stated above, we do not feel inclined to decide this question in the facts and circumstances of this case; whether Sagruddin, non-petitioner No. 2 can be considered as a person aggrieved by the variation in the conditions of the petitioner's permit. We have already held above that the order of the Regional Transport Authority, whereby the variation in the conditions of the permit of the petitioner was allowed, was not legal and proper as it had been passed without following the procedure prescribed under Section 57, Sub-sections (3), (4) and (5). Assuming for argument's sake, that the non-petitioner No. 2 Sagruddin, had no locus stand to file an appeal or revision before the State Transport Appellate Tribunal against the order of the Regional Transport Authority dated May 27, 1978, the fact remains that the said order of the Regional Transport Authority is illegal and if we were to allow this writ petition and set aside the impugned order by the State Transport Appellate Tribunal, the result would be that the illegal order of the Regional Transport Authority would be restored. It may be noted that there has been no failure of justice in the present case and we would be justified in refusing to interfere unless we are satisfied that the justice of the case requires it. We are of opinion, that having regard to the facts of the case and the law bearing on the subject, we should decline to interfere
In Gani Mohammed v. State Transport Appelate Tribunal, 1976 Raj. LW 201, it was observed that while granting a writ of certiorari this court would not exercise its discretion in such a manner which would have the effect of restoring an illegal order passed by the Regional Transport Authority. As we have already pointed out above, the effect_of setting aside the impugned order passed by the Tribunal by a writ of certiorari would be restoring an invalid and illegal order passed by the Regional Transport Authority. Reference may also be made to G. venkateswara Rao v. Govt, of Andhra Pradesh. AIR. 1966 SC 828 wherein the Supreme Court came to the conclusion that the State Government had no power under Section 72 of the Andhra Pradesh Panchayat Samitis & Zila Parishad Act to review its previous order, yet their Lordships refused to interfere with the order passed by the State Government upon such a review on the ground that quashing of that order would lead to restoration of an illegal order passed earlier by the State Government. In this connection, their Lordships further observed that the High Court rightly refused to exercise its extra ordinary discretionary power under Article 226 of the Constitution of India. In this view of the matter, this writ petition deserves to be dismissed
30. Mr. Shishodia further invited my attention to lyyappan Mills v. I.M Workers Union A.I.R. 1962 Kerala 11, Veerappa v. Raman & Raman Ltd. : 1SCR583 , D. N. Banerji v. P.R. Mukherjee : 4SCR302 ) and Sangramsingh v. Election Tribunal : 2SCR1 to substantiate his submission that even if there is an illegal order passed without jurisdiction interference should not be made unless there has been substantial failure of justice. I am not inclined to go into details of these decisions as in my opinion, firstly my first finding on the principal point involved in the case is sufficient for holding that the impugned order calls for no interference. Secondly the decisions of the Supreme Court in Venkateswara Rao v. Government of Andhra Pradesh : 2SCR172 read with the Full Bench judgment of this Court in Jagansingh v. S.T.A. Tribunal (F.B. clinches the issue so far as the principle that a writ should not be issued to perpetuate an illegality is concerned. Undoubtedly in the instant case if the impugned order is quashed it would result in perpetuating an illegality by restoring a patently illegal order. That being so, no interference can be made
31.So far as the question of failure of justice is concerned, I would not like to enter into this controversy as it is unnecessary for the purpose of this case.
32. I am conscious that all said and done, the ultimate fate of this case where a positive finding of failure of principles of natural justice has been given, by me depends upon the application of the principles of S.L. Kapur's case : 1SCR746 . The earlier decisions are to be considered and viewed in the light of S.L. Kapoor's case : 1SCR746 . In this case the Hon'ble Supreme Court has positively held that nonobservance of natural justice is itself prejudiced to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. In view of this clear and categorical dictum of law it has become unnecessary now to have an excursion in the debate of prejudice to the petitioner in this case. Even otherwise if I would not have given the finding on the first point against the petitioner the prejudice would have been apparnet.
33. Even after the earlier findings of mine if the present case would not have come in the exception carved out by S.L. Kapoor's case : 1SCR746 I would have hastened to accept the writ petition and quash the impugned order because nonobservance of principles of natural justice is patent and speaking in this case. Unfortunately for the petitioner, the application of the exception carved out by para 24 read with para 17 of the above judgment is equally patent and speaking in the instant case. That being so, applying the judgment of S.L. Kapoor's case : 1SCR746 as a whole, in the net analysis, there is no escape but to hold that on the admitted and undisputed facts of the case, that the petitioner practised as an Advocate only from 1963, the earlier period of practice as a Pleader cannot be counted for the purpose of Rule 8, Rule 15 and Rule 29 of the Rules. That being the only conclusion and the only consequence being laid down in Rule 29 Sub-clause (b) of fixing the salary at Rs. 1060/- by the State Government vide Annexure Rule 2, this Court cannot issue writs to now compel the observance of natural justice by quashing the impugned order because it would be issuing a futile writ.
34. A reference was also made during the arguments to clause (2) of Article 233 of the Constitution of India which reads as under:
233(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed as 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.
It was pointed out that in the above Article the words used are 'practised as an Advocate or Pleader' and therefore the Rule making authority could not have gone beyond it for the purpose of Rule 29. This indirectly would have raised the question of the validity of the Rules, but Mr. Mathur was conscious of the decision of Munnalal's case I.L.R. (1970) 20 Raj. 179 and therefore he confined it for interpretation to Rule 29 only. I am of the opinion that it is not possible to hold that on account of Article 233 of the Constitution even after holding Rule 15 as valid by Full Bench of this Court in Munnalal v. State of Rajasthan and Ors. I.L.R. (1970) 20 Raj. 179, this Court can interpret the phrase 'practised' differently for Rule 29. The. Full Bench in Munnalal's case observed as under:
Article 233(2) laid down only this minimum qualifications and it was open to the rule making authority to prescribe more stringent qualifications for the recruitment of the persons to the Higher Judicial Service. The contention that the Rule 15(H) is ex facie ultra vires Article 233(2) was repelled (I.L.R. (1970)20 Raj. 36 followed).
If the rule making authority while laying down the minimum qualification is competent to prescribe more stringent qualification for the recruitment of the persons to the Higher Judicial Service inspite of the minimum qualification prescribed in Article 233 clause (2), the same power would be enjoined by the Rule making Authority for the purpose of prescribing high pay scales depending upon the period of practice which will certainly have the same meaning as Rule 15 clause (ii). In Guruswamy v. State of Mysore A.I.R. 1954 S.C. 592 their Lordships of the Supreme Court laid down the following principles for interpretation of the statutes when in the same set of rules if the same word is used and observed as under:
The same word appearing in the same section of the same set of Rules must be given the same meaning unless there is anything to indicate the contrary. Thus the full content of the expression 'otherwise' as specified in Rule 1-1 must be construed in the same sense in Rule 11-10 of the Rules under the Mysore Excise Act, 1901.
The Court was concerned with interpreting Rule 1(1) and Rule 2(1) of the Mysore Excise Rules wherein the phrase 'otherwise' was used. A similar argument like the one raised by Mr. Mathur in the instant case was raised in that case also and it was argued that the phrase otherwise should be construed differently. The only difference is that in the present case instead of Rule 1(1) there is Rule 8(ii) and Rule 15 of the Rajasthan Higher Judicial Service Rules and instead of Rule 2(10) of the Mysore Excise Rules which was under consideration in the Supreme Court, in the present case Rule 29 clause (2) (b) is under consideration and there the common word used was 'otherwise' and here it is 'practiced'. I am convinced that the principle regarding interpretation of statutes for the same words used in the same set of Rules laid down in K.N. Guruswami's case : 1SCR305 discussed above, squarely applies in the present case leaving no scope of doubt, debate' or discussion. In that view of the matter the issue is further clinched that no two views are possible on the interpretation of phrase 'practised' used in Rule 29 clause 2(b) of the Rules and one only interpretation is possible which was rightly and correctly given by the then Chief Justice Hon'ble P.N. Shinghal twice in 1974 and 1975, Justice Kan Singh. Justice S.N. Modi and Justice M.L. Joshi in 1975 and 1979 respectively and Chief Justice CM. Lodha in 1979 on the administrative side though following the authoritative pronouncement of the Full Bench in Munnalal's case I.L.R. (1970)20 Raj; 179 and with which I do not find any possible, relevant and logical legal contention to doubt or differ.
35. The irresistible conclusion therefore is that the issuance of any writ or direction for rehearing in this case on account of violation of principles of natural justice would be an exercise of futility. I have examined all the relevant Rules and the Full Bench judgment of this Court which has been relied upon and on account of which there is no escape but to hold that 'practice' for the purpose of Rule 29 mean's practice as an Advocate' only. The interpretation put by the Full Bench on Article 233 of the Constitution also is binding so far as this Court or the Judges deciding the issue involved in this case on the administrative side is concerned, and, therefore, on all counts i.e. on the plain reading of Rule 29, on account of judgment of a Full Bench and on account of the exception carved out in the Kapoor's case (supra) the petitioner cannot succeed and writ petition deserves to be dismissed.
36. Mr. Mathur's submission that the High Court Administrative side at least should have respected the principles of natural justice is not without force and, therefore, I have examined in details all the aspect of the case with a view to find out if there is any possibility of the petitioner's succeeding ultimately or taking of two views. Since I could not find any substance in the argument of Mr. Mathur on the merits of the case, even after a miscroscopie examination and giving of benefit of interpretation to his client, there is no escape but to dismiss the writ petition.
37. The writ petition is, therefore, dismissed. But since the petitioner had a plausible and prima facie case which merited full consideration, there will be no order as to costs.