B.S. Patil, J.@mdashPetitioners are all employees of the High Court of Karnataka They axe the applicants for the post of Civil Judge (Junior Division). Petitioners have presented this writ petition challenging the communication dated 01.03.2007 issued to them individually rejecting their applications on the ground that they were not eligible to apply for the post as per the Karnataka Judicial Services (Recruitment) Rules, 2004 (hereinafter referred to as the Recruitment Rules, 2004) and the Notification dated 01.04.2006 calling for applications, according to which enrollment as Advocate is an essential qualification. The applicants have also challenged the validity of the Recruitment Rules, 2004, in so far as they require that enrollment as Advocate is an essential qualification for recruitment to the post of Civil Judge (Junior Division). They have further sought for either quashing the Notification advertising the posts and calling for applications or a direction to the respondents to consider their applications without insisting on the requirement of enrollment as advocate.
2. While admitting the writ petition, an interim order was passed on 30.5.2007 permitting the petitioners to appear in the written examination subject to further orders to be passed in the case. It was also made clear that the petitioners will not be entitled to plead equity for having appeared in the written examination. Though initially eleven persons joined together to file this writ petition, as petitioners 3 to 9 and 11 did not pass the written examination, the writ petition survives only in respect of petitioners 1, 2 and 10, who have passed the written examination.
3. The facts relevant for the purpose of appreciating the questions raised in this writ petition, stated in nutshell, are that the recruitment to the post of Civil Judge (Jr. Dn.) earlier known as Munsiffs was previously regulated by the Karnataka Judicial Services (Recruitment) Rules, 1983. The minimum qualification as stipulated in 1983 Rules was that the applicant must be holder of a degree in Law or equivalent qualification and must on the last date fixed for submission of application be: (a) practising as an Advocate and must have so practised for not less than four years as on such date; or (b) working as a Senior Assistant Public Prosecutor or as an Assistant Public Prosecutor in the Department of Prosecutions and must have so worked for not less than four years as on such date.
4. The First National Judicial Pay Commission headed by Hon''ble Mr. Justice K. Jagannatha Shetty, Former Judge, Supreme Court of India, in its report dated 11.11.1999 recommended certain changes in the qualifications for appointment as Civil Judge (Jr. Dn.). Paragraphs 8.31 to 8.36 of the said report which have bearing on the question in issue in this writ petition can be usefully extracted as under:
8.31. In the present system of legal education of 3 years or 5 years, Law Practice is one of the subjects prescribed for the students. Particularly in the curriculum under the present 5 years Law Degree course, the students have to attend Court compulsorily to get themselves educated in the practical training in Court craft.
8.32. It would be, therefore, futile to prescribe three years practice as an Advocate to have intimate knowledge of the Court work as a condition for recruitment to the cadre of Civil Judges (Junior Division).
8.34. Further, in our opinion 3 years standing at the Bar as the minimum qualification for entry into the judicial service may be wholly unnecessary and uncalled for in view of the Commission''s recommendations on Institutional training for the selected candidates. Attention of the concerned authorities is invited to the report of the Commission on judicial education and training and in particular the broad themes of the curriculum for induction training. It includes among other things, practical training through field placement. The Commission has recommended the induction training course for about one year by qualified trainers.
8.35. If intensive training is given to young and brilliant Law Graduates, it may be unnecessary to prescribe three years practice in the Bar as a condition for entering the judicial service. It is not the opinion of any High Court or State Government that induction to service of fresh Law Graduates with brilliant academic career would be counter productive. We consider that it is proper and necessary to reserve liberty to High Courts and State Governments, as the case may be, to select either Advocates with certain standing at the Bar or outstanding Law Graduates with aptitude for service. It is not correct to deny such discretion to High Authorities like, High Courts and State Governments.
8.36. Those High Courts and State Governments who are interested in selecting the fresh Law Graduates with a scheme of intensive induction training may move the Supreme Court for reconsidering the view taken in All India Judges'' Association Case for deleting the condition of three years standing as Advocate for recruitment to the cadre of Civil Judge (Junior Division). We trust and hope that the Supreme Court will reconsider that aspect.
5. The report of the First National Judicial Pay Commission was considered by the Supreme Court in
32. In All India Judges'' Association case (SCC at p.314) this Court has observed that in order to enter the judicial service, an applicant must be an advocate of at least three years standing. Rules were ed accordingly. With the passage of time, experience has shown that the best talent which is available is not attracted to the judicial service. A bright young Law Graduate after three years of practice finds the judicial service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by various authorities that the need for an applicant to have been an advocate for at least 3 years should be done away with. After taking all the circumstances into consideration, we accept this recommendation of the Shetty Commission and should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of at least three years standing. We, accordingly, in the light of the experience gained after the Judgment in All India Judges Case direct to the High Courts and to the State Governments to amend their Rules so as to enable a fresh Law Graduate who may not even have put in three years of practice to be eligible to compete and enter the Judicial Service. We, however, recommend that a fresh recruit into the Judicial Service should be imparted training of not less than one year preferably two years.
6. Following the judgment of the Apex Court, the Karnataka Judicial Service (Recruitment) Rules, 2004 were framed and were notified as per the notification published in the Karnataka Gazette dated 09.09.2005. The said rules came into force with effect from the date of their publication in the Official Gazette. In Rule 4 of the Recruitment Rules, 2004, in the table given regarding recruitment to the post of Civil Judge (Jr.Dn.), under the head ''Qualifications'', it is provided as under:
(1) Must be holder of a degree in law granted by a University established by law in India and must have been enrolled as an advocate;
(2) Must not have completed as on the last date fixed for receipt of applications 38 years of age, in the case of a candidate belonging to Scheduled Caste or Scheduled Tribe and 35 years of age in the case of others.
As already referred to above, it is the requirement of enrollment as an advocate as stipulated by the Recruitment Rules, 2004 that is under challenge in the present writ petition.
7. Learned Counsel appearing for the petitioners Sri. P.S. Rajagopal has raised the following contentions:
(i) The publication of the draft rules as per Annexure-''B'' on 29.06.2004 was not in accordance with Section 3(2)(a) read with Section 8 of the Karnataka State Civil Services Act, 1978.
(ii) As per Section 23 of the Karnataka General Clauses Act, 1899, it is only the authority having power to make the rules which shall, before making them, publish a draft of the proposed rules for the information of persons likely to be affected, whereas, in the instant case though the authority who is empowered to make rules is the Governor of Karnataka, the draft rules were published by the High Court of Karnataka. As per Section 23(3) of the Karnataka General Clauses Act, 1899, the rule making authority is required to publish the draft rules and a notice specifying the date on or after which the draft will be taken into consideration, but as could be seen from the draft rules published vide Annexure - ''B'', no such notice specifying the date on or after which the draft will be taken into consideration was issued and hence the procedure prescribed in law for framing the rules was not followed. The cumulative effect of the aforementioned violations in the matter of publication of the draft rules, it is urged, has resulted in publication of draft rules by an incompetent authority depriving a reasonable opportunity to the persons likely to be affected by the publication of the rules to file their objections and suggestions. It is also contended that as per Section 8 of the Karnataka State Civil Services Act, 1978, the Government is competent to make the rules and therefore the 2nd respondent-High Court of Karnataka, could not have published the draft rules or considered the objections or suggestions made to the draft rules as rule making power includes the power to make the draft rules, publish them and consider the objections and suggestions given. Learned Counsel for the petitioners has further elaborated his contentions emphasizing that the Karnataka State Civil Services Act, 1978, applies to the recruitment to the post of Civil Judge (Jr.Dn.), as the said appointments are made to the. posts in connection with the affairs of the State. He contends that persons appointed to the judicial service are also persons appointed to the public service but are placed under the High Court. Reliance is placed on the decisions reported in
(iii) He has further contended that the rules framed by the Government making provision for recruitment and providing eligibility conditions are traceable to the power of the Governor to frame rules under Article 309 of the Constitution. In this connection, reliance is placed on the judgments reported in
(iv) The last contention urged by Sri Rajagopal is that the rules framed are contrary to the judgment of the Apex Court and the recommendation made by the First National Judicial Pay Commission. He submits that insisting on enrollment as an advocate and making it a condition for eligibility defeats the very recommendation of the Commission and the judgment of the Hon''ble Supreme Court.
8. The 2nd respondent has filed statement of objections. It is contended by the respondents that the prescription of qualification and other eligibility criteria are essentially matters for the employer and no one has a vested right to claim any particular prescription. It is also contended that the Karnataka Judicial Services (Recruitment) Rules, 2004, are framed in exercise of powers under Articles 233 and 234 of the Constitution of India replacing the earlier rules of 1983. It is specifically urged that previous publication of the rules inviting objections and consideration of the same are not contemplated or required under Article 234 of the Constitution of India. It is also urged that the provisions of Karnataka General Clauses Act has no application to the facts of the present case where powers contained under Article 234 of the Constitution were exercised for framing the recruitment rules. In so far as the contention urged by the petitioners regarding the violation of recommendation of the First National Judicial Pay Commission and the judgment rendered by the Apex Court in the case of
9. Learned Senior Counsel appearing for the 2nd respondent Sri Naganand has placed strong reliance on the judgment of the Apex Court in the case of
10. We have heard the learned Counsel for the parties and carefully examined the respective contentions. We do not find any substance in any of the contentions urged by the petitioners.
11. Recruitment of Judicial Officers other than District Judges to the judicial service of a State is governed by Article 234 of the Constitution of India, which reads as under:
234. Recruitment of persons other than district judges to the judicial service - 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 made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
12. It is clear from Article 234 that the Governor of the State has power to make rules regulating the appointments to the judicial service after consultation with the State Public Service Commission and with the High Court. The impugned rules are made by the Governor of Karnataka in exercise of the powers conferred under Articles 233 and 234 of the Constitution of India. Article 233 deals with the appointment of District Judges. As we are concerned with the recruitment of Civil Judges (Jr.Dn.), the relevant provision applicable is Article 234. Though the impugned rules also make reference to the proviso to Article 309 of the Constitution of India and as also to the publication of draft rules as required under Clause (a) of Sub-section 2 of Section 3 read with Section 8 of the Karnataka State Civil Services Act, 1978, as rightly contended by the learned Counsel for the respondents, the recruitment of Civil Judge (Jr.Dn.), to the judicial service in the State being governed by the rules to be framed under Article 234 of the Constitution after consultation with the High Court and the State Public Service Commission, neither Article 309 nor the provisions of Karnataka State Civil Services Act, 1978, can regulate the exercise to be made by the Governor in framing the rules for recruitment in this connection. In fact, Article 309 pertains to recruitment and conditions of service of persons appointed in public services and posts in connection with the affairs of the Union or of any State. The appropriate legislature is competent to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State as per Article 309. However this power is made expressly subject to the other provisions of the Constitution. The proviso to Article 309 empowers the President or his delegate including the Governor of a State to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under the Act of the appropriate legislature under Article 309. However, it is made clear in the opening sentence itself that the power conferred by Article 309 is subject to the other provisions of the Constitution. There are other provisions in the Constitution which empower other authorities to make rules relating to the conditions of service of certain classes of public servants and officers. For example: Article 98 provides for the recruitment and conditions of service of persons appointed to the secretarial staff of either House of Parliament Clause 3 of Article 98 empowers the President, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be; to make rules regulating the recruitment and conditions of service of persons appointed to the secretarial staff of the House of the People or the Council of States. Likewise, Article 187 deals with the secretarial staff of the State Legislature. Article 146(2) relates to the officers of the Supreme Court and Article 148(5) deals with the persons serving in Indian Audit and Accounts Department In these cases, Article 309 of the Constitution has no application. Likewise, for rules to be framed regulating recruitment of judicial officers (Civil Judge (Jr. Dn.)) as provided under Article 234 of the Constitution, the provisions contained under Article 309 have no application. In fact the scope and ambit of the power conferred under Articles 233 and 234 fell for consideration before the Apex Court in the case of
13. In paragraph-20 of the judgment, the Apex Court has held that ''Article 309, which, on its express terms, is made subject to other provisions of the Constitution, does get circumscribed to the extent to which from its general field of operation is carved out a separate and exclusive field for operation by the relevant provisions of articles dealing with the Subordinate Judiciary as found in Chapter-VI of Part-VI of the Constitution''.
14. The Apex Court has further observed in paragraph-30 of the judgment as under:
It has also to be kept in view that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by the appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter articles contain provisions regarding the rule-making power of the concerned authorities subject to the provisions of the law made by the Parliament or the Legislature. Such provision is conspicuously absent in Articles 233 and 234 of the Constitution of India Therefore, it is not possible to agree with the contention of learned Counsel for the appellant-State that these articles only deal with the rule-making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete code for regulating recruitment and appointment to the District Judiciary and to the Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete code regarding appointment of District Judges and Judges in the Sub-ordinate Judiciary.
15. In paragraph-31, the Apex Court has observed as under:
In this connection, we have also to keep in view Article 245 which, in its express terms, is made subject to other provisions of the Constitution which would include Articles 233 and 234. Consequently, as these twin articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate in this field clearly gets excluded by the constitutional scheme itself. Thus both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former articles themselves.
In this context only, the Apex Court has further observed in paragraph-37 in the following terms:
It is, therefore, obvious that the State Legislature has no role to play while controlling appointments of District Judges under Article 233 or appointment of Civil Judges to the Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to the Judiciary at grass-root level as enjoined by Article 234 and can only act on recommendation by the High Court for direct recruitment from the Bar for being appointed as District Judges as laid down by Article 233(2). There is no third method or third authority which can intervene in the process or can have its say, whether legislative authority or executive authority, as the case may be, independently of the complete scheme of such recruitment as envisaged by the aforesaid two articles. It is, therefore, difficult to appreciate the contention of learned Senior Counsel for the appellant State that paramount legislative power of the State Legislature stands untouched by he scheme of the aforesaid two articles of the Constitution.
16. The views expressed by the Apex Court in Bal Mukund Sah''s case, as referred to herein above fully and completely answer the contentions raised by the learned Counsel for the petitioners regarding the violation of the provisions contained u/s 3(2)(a) read with Section 8 of the Karnataka State Civil Services Act, 1978, Section 23 of the Karnataka General Clauses Act, 1899 and Article 309 of the Constitution of India. None of these provisions can control the recruitment and the power of the Competent Authority namely the Governor of the State to make rules in consultation with the High Court regulating recruitment to the post of Civil Judge (Jr. Dn.). Therefore, in the absence of any requirement under Article 234 of the Constitution requiring previous publication of the rules, such requirement cannot be read in by resorting to several legislative enactments. As the publication of the draft rules itself was not necessary, the alleged defects pointed out in the publication of the draft rules and in the omission to specify the date on or after which the draft rules will be taken into consideration will not vitiate the impugned rules framed by the Governor of the State.
17. In the light of the pronouncement made by the Apex Court in Bal Mukund Sah''s case, the judgment cited by the learned Counsel for the petitioners, in the case of
18. The further reliance placed by the learned Counsel for the petitioners on the judgments in
19. It is also relevant to point out here that in Bal Mukund Sah''s case, the Apex Court has referred to the decision in
Now it must be kept in view that these observations (observations made in B.S. Yadav''s case) are made in the light of the second part of Article 235 which expressly saves laws regulating the conditions of service of already-recruited judicial officers and who are functioning under the control of the High Court under Article 235. Once the very same article permits the limited field for operation of law-makers or rule-makers under Article 309 for regulating the conditions of service of such already appointed judicial officers by way of enacting any appropriate statutory provision either by exercise of the rule-making power of the Governor under Article 309 proviso or by appropriate legislation under the said article, it cannot be said that these observations have laid down even impliedly, that while recruiting judicial officers either at the grass-root level under Article 234 or at the district level under Article 233 any legislation can be enacted by the Legislature or that the Governor by independent exercise of his rulemaking power can make such a provision.
20. The only other contention that remains to be considered is regarding the requirement of enrollment as Advocate to apply for the post of Civil Judge (Jr.Dn.). The First National Judicial Pay Commission has held that three years standing at the Bar as minimum qualification for entry into the judicial service may be wholly unnecessary, particularly in the light of its recommendation regarding institutional training for the selected candidates in the form of induction training course for about one year. The Commission in paragraph-8.35 has observed thus:
We consider that it is proper and necessary to reserve liberty to High Courts and State Governments, as the case may be, to select either Advocates with certain standing at the Bar or outstanding Law Graduates with aptitude for service. It is not correct to deny such discretion to High Authorities like, High Courts and State Governments.
21. In paragraph-8.36, the Commission further observed as follows:
Those High Courts and State Governments who are interested in selecting the fresh Law Graduates with a scheme of intensive induction training may move the Supreme Court for reconsidering the view taken in All India Judges'' Association Case for deleting the condition of three years standing as Advocate for recruitment to the cadre of Civil Judges (Junior Division). We trust and hope that the Supreme Court will reconsider that aspect.
22. The Apex Court in
23. There is nothing arbitrary or illegal in prescribing enrollment as an advocate as eligibility condition for applying to the post of Judicial Officer in the Subordinate Courts. In fact, enrollment as an Advocate shows the mental frame, intention and commitment of the person concerned to engage himself in the legal profession from where persons in judicial services originate. Enrollment as advocate is an indication of the person''s potential and commitment to become a good judicial officer. At any rate, the wisdom of the rule-making authority in prescribing such a requirement cannot be questioned unless it is shown that the criterion prescribed is manifestly arbitrary or illegal.
24. During the course of arguments, it was stated by the learned Counsel for the parties that the petitioners who had been appointed as employees of the High Court joined the course for a law degree and passed the examination while they were in service. Obviously they attended the part-time course in the Evening Law Colleges. They have not been enrolled as Advocates as they are already in the employment. The study of law and the degree in law may help the petitioners in qualifying themselves for promotion/appointment to higher posts such as Court Officers. They cannot make any grievance stating that they, are arbitrarily denied of the opportunity to participate in the process of recruitment for the post of Civil Judges (Jr.Dn.). Therefore, the argument based on Article 14 alleging hostile discrimination against the petitioners is untenable.
25. In view of the above discussion, we find no merit in this writ petition and the same is therefore dismissed with no order as to costs. Though the petitioners were permitted to appear in the written Test and Viva Voce on a provisional basis and subject to the final decision in the writ petition and though the results are available in a sealed cover, it is unnecessary to open the sealed cover and declare the results in view of the dismissal of the writ petition.
