@JUDGMENTTAG-ORDER
G. Rohini, J.@mdashThe provisional selection of 17 candidates for recruitment to the posts of District & Sessions Judges (entry level) by direct recruitment in the A.P. Judicial Service is under challenge in all these writ petitions. The facts in brief are as under:
By notification dated 10.08.2010 the High Court of Andhra Pradesh notified 18 vacancies for the year 2010 in the category of District & Sessions Judges (entry level) by direct recruitment in the A.P. Judicial Service. Accordingly, the Government of A.P. issued an advertisement in the newspapers, dated 18.08.2010 and 19.08.2010 inviting applications for appointment to the said 18 posts. The last date for receipt of applications was 3.9.2010.
2. The qualifications and age mentioned in the advertisement are as under:
Qualifications and Age: The applicant for the above said post should be (a) an Advocate of not less than seven years standing at the Bar (b) must not have completed 45 years of age on the first day of August, 2010 (relaxation by three years in the upper age limit in respect of persons belonging to the Scheduled Castes, the Scheduled Tribes and Backward Classes) and (c) of sound health and active habits and free from any body defect or infirmity which render him/her unfit for such appointment.
3. The mode of examination, syllabus, minimum qualifying marks to be secured and other particulars are also specified in the notification. Some of the particulars, which are necessary for the purpose of the present case are:
Mode of Examination etc. Selection to the above posts shall be by written examination comprising (a) Objective questions with multiple choice and (b) Subjective / Narrative, which is for 80 marks, followed by an interview.
Viva-Voce (Interview): The Viva-voce is for 20 marks.
Minimum qualifying marks to be secured: The candidate shall secure a minimum qualifying mark of 40% for OC category, 35% for BC category, and 30% for SC and ST categories in the written examination and minimum marks of 10 for OC category, 8 for BC category and 6 for SC and ST categories in the viva voce.
4. Altogether 2734 applications were received by the State Government and the same were forwarded to the High Court. After scrutiny of the applications, the High Court sent hall-tickets to all the eligible candidates informing them that the written examination would be held on 23.01.2011. However it was postponed and the written examination was held on 6.3.2011 for which 1743 candidates had appeared. On evaluation of the answer sheets, 52 candidates were declared to have been qualified by notification dated 8.8.2011 and they were required to appear for viva-voce from 7.12.2011 onwards.
5. In the meanwhile by G.O.Ms. No. 132, Law (LA&J SC.F) Department, dated 16.11.2011, the A.P. State Judicial Service Rules, 2007 have been amended in terms of the resolution dated 1.8.2011 passed by the Administrative Committee of High Court of Andhra Pradesh resolving to delete the requirement of minimum marks in viva-voce. Thus by G.O.Ms. No. 132, dated 16.11.2011, the expression ''and a minimum marks of 10 for OC category, 8 for BC category and 6 for SC & ST category in the viva-voce'' in the provisos to sub-rules (4) & (10) of Rule 6 of the A.P. State Judicial Service Rules, 2007 has been omitted.
6. The said G.O.Ms. No. 132, dated 16.11.2011 was uploaded to the official Website of the Government of A.P. on 16.11.2011 itself. On 17.11.2011 it was resolved by the Administrative Committee of the High Court of A.P. to conduct interview to the 52 qualified candidates by applying Rule 6 (4) as amended by G.O.Ms. No. 132, dated 16.11.2011.
7. Accordingly, the interviews were conducted from 7.12.2011 to 16.12.2011 as per schedule and 17 candidates were declared to have been provisionally selected for recruitment. One vacancy reserved for ST (women) remained unfilled as none was qualified. The list of 17 provisionally selected candidates was approved by the Administrative Committee and also the Full Court of the High Court of A.P. on 16.12.2011.
8. On 22.12.2011 the High Court of A.P. published the following list of candidates who are declared to have been provisionally selected for recruitment to 17 posts of District and Sessions Judge (Entry Level) by direct recruitment:
|
S. NO. |
REGD. NO. |
NAME OF THE CANDIDATE |
|
1. |
1275 |
NANDIKONDA NARSINGA RAO |
|
2. |
1317 |
SABBI PREMA VATHI |
|
3. |
1320 |
CHINTALAPUDI PURUSHOTTAM KUMAR |
|
4. |
1350 |
RAMA DEVI SAI |
|
5. |
1417 |
SASIDHAR REDDY SURA |
|
6. |
2044 |
SUJANA KALASIKAM |
|
7. |
2077 |
B.R. MADHUSUDHAN RAO |
|
8. |
2466 |
MOULANA JUNAID AHMED |
|
9. |
2560 |
YADAVALLI LAKSHMANA RAO |
|
10. |
2913 |
SUNITHA GANDHAM |
|
11. |
2963 |
ALAPATI GIRIDHAR |
|
12. |
3089 |
DUNNA RAMULU |
|
13. |
3106 |
GOKAVARAPU SRINIVAS |
|
14. |
3172 |
GUTTALA GOPI |
|
15. |
3299 |
DHULI THIRUMALA RAO |
|
16. |
3446 |
MAJJI BABITHA |
|
17. |
3727 |
RENUKA YARA |
9. On 30.12.2011 the High Court sent the above said list of provisionally selected candidates to the Government for issuing necessary orders of appointment.
10. At that stage, these four writ petitions came to be filed. Whereas the petitioners in W.P. Nos. 34683 of 2011, 34805 of 2011 and 894 of 2012 are the candidates who were qualified in the written examination, PIL W.P. No. 10 of 2012 is filed by a practicing advocate as a Public Interest Litigation assailing the selection of only one candidate who is shown at Sl. No. 5 of the list of provisionally selected candidates.
11. The petitioner in W.P. No. 34683 of 2011 by name Tirumala Devi Eada, seeks a declaration that G.O.Ms. No. 132, dated 16.11.2011 is arbitrary, illegal and unconstitutional and to quash the same. She also prayed for setting aside the selection of the respondents 3 to 19 therein i.e., all the provisionally selected candidates and to direct the respondents 1 & 2 to select and appoint her to the post of District & Sessions Judge (entry level). In the alternative the petitioner seeks a declaration that the amendment vide G.O.Ms. No. 132, dated 16.11.2011 is only prospective in nature and that the same shall not be made applicable to the selection process that was started pursuant to the notification dated 19.8.2010 and consequently to declare the action of the respondents 1 & 2 in not taking into account the requirement of minimum qualifying marks in the viva-voce is illegal and contrary to Rule 6 (1) of A.P. State Judicial Service Rules, 2007.
12. W.P. No. 34805 of 2011 is filed by one B. Sai Kalyan Chakravarthy seeking a declaration that the action of the respondents in applying G.O.Ms. No. 132, dated 16.11.2011 to the recruitment of the District & Sessions Judges pursuant to the notification dated 10.08.2010 is arbitrary and illegal and consequently to set aside the selection list published vide Notification dated 22.12.2011. The petitioner seeks a consequential direction to finalize the selections as per the Rules under G.O.Ms. No. 119, dated 2.8.2008 without reference to the amendment under G.O.Ms. No. 132, dated 16.11.2011.
13. The petitioner in W.P. No. 894 of 2012 by name Aruna Sarika seeks a declaration that the application of the amended rule vide G.O.Ms. No. 132, dated 16.11.2011 to the selection process that was initiated on 19.8.2010 is illegal and unconstitutional. Consequently the petitioner seeks a direction to nullify the selection process from the stage of the interviews and then to make fresh selection as per the unamended Rules under G.O.Ms. No. 119, dated 2.8.2008.
14. In PIL W.P. No. 10 of 2012 the selection of only one candidate i.e., the candidate at Sl. No. 5 in the list of provisionally selected candidates dated 22.12.2011 is assailed.
15. We have heard the learned counsel appearing for both the parties at length and perused the material available on record.
16. The contentions advanced on behalf of the petitioners in W.P. No. 34683 of 2011, W.P. No. 34805 of 2011 and W.P. No. 894 of 2012 are identical and almost all the provisionally selected candidates are arrayed as respondents. It is primarily contended in the said three writ petitions that Rule 6 (4) of the A.P. State Judicial Service Rules, 2007 as amended by G.O.Ms. No. 132, dated 16.11.2011 by virtue of which the requirement of minimum qualifying marks in viva voce is deleted cannot be made applicable to the selections in question since the selection process has already commenced pursuant to the advertisement dated 18/19.08.2010.
17. Consequently the selection of the candidates at Sl. Nos. 1, 2, 8, 11, 14, 15 & 16 of the list of provisionally selected candidates, dated 22.12.2011, who secured less than the required minimum marks, is sought to be declared illegal. Similarly the selection of the candidates at Sl. Nos. 4, 5, 9, 10, 12, 16 & 17 has also been challenged on various other grounds.
18. In PIL W.P. No. 10 of 2012 the selection of the respondent No. 4 therein (the candidate at Sl. No. 5 in the list of provisionally selected candidates dated 22.12.2011) alone is challenged alleging that he had not fulfilled the eligibility criteria since he did not have the seven years standing at the Bar as on the date of the notification inviting applications for appointment.
19. Since a preliminary objection is raised by the respondents as to the very maintainability of PIL W.P. No. 10 of 2012, we propose to deal with the contentions advanced in the said writ petition a little later after adverting to the common issues involved in W.P. No. 34683 of 2011, W.P. No. 34805 of 2011 and W.P. No. 894 of 2012.
20. For the sake of convenience, the unofficial respondents i.e., the candidates whose selection is under challenge, shall hereinafter be referred to as per their respective serial numbers in the list of provisionally selected candidates dated 22.12.2011.
21. It may also be mentioned that the selection of four candidates namely Chinthalapudi Purushotham Kumar, Sujana Kalasikam, B.R. Madhusudana Rao and Gokavarapu Srinivas who are shown at Sl. Nos. 3, 6, 7 & 13 respectively in the list of provisionally selected candidates dated 22.12.2011 is not challenged in any one of the writ petitions. The said fact has not been disputed before this Court by the learned counsel for the petitioners.
The grounds of challenge in W.P. No. 34683 of 2011, W.P. No. 34805 of 2011 and W.P. No. 894 of 2012:
22. In W.P. No. 34683 of 2011, it is contended that the amendment to Rules 6 (4) & (10) of the A.P. State Judicial Service Rules, 2007 vide G.O.Ms. No. 132, dated 16.11.2011 which has been effected by the Government but not the Governor solely in terms of the directions by the High Court of A.P. is without jurisdiction. It is further contended that the impugned amendment ought not to have been applied to viva-voce held from 7.12.2011 to 16.12.2011 firstly for the reason that the rules cannot be changed after the commencement of the selection process and secondly for the reason that G.O.Ms. No. 132, dated 16.11.2011 was not published in the official Gazette by the date of viva-voce held from 7.12.2011 onwards.
23. It is further contended that the selection of the candidate at Sl. No. 5 in the list of provisionally selected candidates dated 22.12.2011 who has not satisfied the requirement of 7 years standing at the Bar is illegal. The selection of the said candidate is assailed also on the ground that he has not completed the minimum age limit of 35 years.
24. The selection of the candidates at Sl. Nos. 9 & 16 in the list of provisionally selected candidates dated 22.12.2011 is also assailed on the very same ground that they have not completed the minimum age limit of 35 years.
25. Similarly the selection of the candidate at Sl. No. 4 in the list of provisionally selected candidates dated 22.12.2011 who is allegedly in full-time employment with a Private Limited Company and the selection of the candidates at Sl. Nos. 9, 10 & 12 in the list of provisionally selected candidates dated 22.12.2011 who are working as Assistant Public Prosecutors as on the date of submission of their applications is questioned contending that they are ineligible for appointment since they are already in service of the State Government. The allegation against the candidate at Sl. No. 17 is that she went abroad in 2001 and returned back to India only in December, 2004. Hence the said period ought not to have been taken into consideration for the purpose of the requirement of 7 years standing at the Bar.
26. It is also contended that in the absence of amendment to sub-rule (1) of Rule 6 of A.P. State Judicial Service Rules, 2007 which is the substantial provision, the impugned amendment to Rules 6 (4) & 6 (10) is unenforceable.
27. In W.P. No. 34805 of 2011 and W.P. No. 894 of 2012 it is contended that the entire selection list is liable to be set aside on the sole ground that the impugned amendment was not in existence by the date of the advertisement, dated 18/19.8.2010. It is also contended that the impugned amendment under G.O.Ms. No. 132, dated 16.11.2011, is irrational and unconstitutional since it has virtually rendered the process of viva-voce an empty formality.
Case of the respondents:
28. Counter-affidavits have been filed on behalf of the State Government and the High Court of A.P. Separate counter-affidavits have also been filed by all the unofficial respondents i.e., the candidates whose selection is under challenge.
29. The Registrar (Recruitment) filed the counter-affidavit on behalf of the High Court of A.P. stating that the Registry of the High Court placed an office note before the Chief Justice about the decisions of the Supreme Court of India in
30. So far as publication in official Gazette is concerned, it is pleaded that due to administrative delay G.O.Ms. No. 132, dated 16.11.2011 was published in the official Gazette only on 3.1.2012. However, it is contended that the petitioners as well as all the candidates applied in response to the advertisement dated 18/19.8.2010 are deemed in law to have knowledge of the amendment to Rule 6 since the same was uploaded to the official website of the State Government much prior to the viva-voce. It is further contended that uploading to the official website to which anybody can have access, has to be construed as a reasonable mode of publication of the amendment and therefore non-publication of G.O.Ms. No. 132, dated 16.11.2011 in A.P. State Gazette did not vitiate the selection process.
31. It is explained that the impugned amendment to Rule 6 (4) is only for the purpose of giving better chance to the candidates who have secured higher marks in the written examination and to qualify them for selection and such amendment which has not caused any prejudice to the petitioners but on the other hand has merely widened the field of consideration for selection cannot be held to be illegal on any ground whatsoever.
32. With regard to the contention that the candidate at Sl. No. 5 in the list of the provisionally selected candidates did not possess the required standing of 7 years at the Bar is concerned, it is explained that the period of 9 months during which he pursued his further studies i.e., Master of Laws in U.S.A. need not be deducted since no provision of the Advocates Act prohibits any advocate from pursuing further studies in Law. Thus it is contended that as on the date of his application the candidate at Sl. No. 5 has got 7 years 2 months standing at the Bar and as such he is eligible for consideration. With regard to the selected candidates at Sl. Nos. 9 & 12 it is contended that though they are working as Assistant Public Prosecutors, they are eligible for consideration in the light of the decision of the Supreme Court in
33. It is further contended that the petitioners cannot maintain the writ petitions challenging the selection since they have not suffered any prejudice on account of the application of amended rule 6 (4) to the selection process.
34. Counter-affidavit filed on behalf of the State is on the same lines. The other respondents/selected candidates in their separate counter-affidavits sought to justify the impugned action of the official respondents in applying the amended rule 6 (4) to the selection process as well as their selection for recruitment to the posts notified.
Points for consideration:
35. In the light of the above noticed pleadings, the following questions arise for consideration by this Court:
(1) Whether the amendment to Rule 6 (4) & (10) of A.P. State Judicial Service Rules, 2007 vide G.O.Ms. No. 132, dated 16.11.2011 is valid and enforceable?
(2) Whether Rule 6 (4) of the A.P. State Judicial Service Rules, 2007 as amended by G.O.Ms. No. 132, dated 16.11.2011 can be applied to the selection process already commenced pursuant to the notification dated 10.08.2010 (advertised in the newspapers on 18/19.8.2010)?
(3) Whether the selection of the candidates who have not satisfied the minimum age requirement of 35 years is valid?
(4) Whether the persons who are working as Assistant Public Prosecutors by the date of submission of their applications are eligible for recruitment to the post of District Judges and whether the selection of the candidates at Sl. Nos. 9, 10 & 12 of the list of provisionally selected candidates is valid?
(5) Whether the decision of the High Court that the candidates at Sl. No. 5 and Sl. No. 17 in the list of provisionally selected candidates have satisfied the requirement of 7 years standing at the Bar in spite of the fact that they went abroad for higher studies after their enrolment on the rolls of State Bar Council, is correct?
(6) Whether the selection of the candidate at Sl. No. 4 in the list of provisionally selected candidates is liable to be declared illegal on the ground that she is in full-time employment with M/s. Pro Agro Seed Company Private Limited?
Point No. 1: Whether the amendment to Rule 6 (4) & (10) of A.P. State Judicial Service Rules, 2007 vide G.O.Ms. No. 132, dated 16.11.2011 is valid and enforceable?
36. It is contended on behalf of the petitioners that the amendment under G.O.Ms. No. 132, dated 16.11.2011 is illegal, unconstitutional and without jurisdiction since the amendment was brought out merely on the directions of the High Court.
37. The above contention is sought to be substantiated by the learned counsel for the petitioners by relying upon para-2 of G.O.Ms. No. 132, dated 16.11.2011. The said paragraph shows that the Registrar (Recruitment), High Court addressed a letter dated 20.08.2011 informing the Government that the High Court had decided to amend the A.P. State Judicial Service Rules, 2007 omitting minimum marks in viva-voce for direct recruitment to the categories of District Judges and Civil Judges and interviews to the posts of District & Sessions Judges and written test to the post of Civil Judges (Junior Division) were deferred by the respective committees till the amendments were made to Rule 6 (4) & (10) and accordingly requesting the Government to consider the amendments to the said Rules and pass necessary orders in the matter.
38. Referring to the aforesaid paragraph in G.O.Ms. No. 132, dated 16.11.2011, it is argued by the learned counsel for the petitioners that the very fact that the High Court had written to the State Government and not to the Governor would clearly show that the Governor was not even consulted and the impugned amendment was made only by the Government on the directions of the High Court without application of mind to the purpose of such amendment. It is contended that the High Court which is only a recommendatory body for making appointment under Article 233 of the Constitution of India has no power or authority to direct any amendment to the Rules under Article 309. It is also contended that the Governor alone is competent to make the rules under the proviso to Article 309 or to make any amendment to the Rules and as the tenor of G.O.Ms. No. 132, dated 16.11.2011 shows that the Governor was not even consulted, the impugned G.O. was apparently made by the Government at the instance of the High Court and therefore on that ground alone the impugned amendment being unconstitutional is liable to be quashed.
39. In the counter-affidavit filed on behalf of the State, the allegation that the impugned amendment was made without application of mind has been categorically denied. The further allegation that the Governor was not consulted has also been denied and it is explained in the additional counter-affidavit that on receipt of the proposal from the High Court as to the proposed amendments, the Government after examination of the said proposal had circulated the file to the Governor through Secretary (Services) G.A.D./Chief Secretary/Minister (Law & Courts)/Chief Minister on 12.11.2011 and the orders had been passed by the Governor on the proposal on 14.11.2011. Thereafter, the G.O.Ms. No. 132, dated 16.11.2011 has been issued and a copy of the same has been sent to the Commissioner of Printing, Stationery and Stores Purchase (Printing Wing, Hyderabad) Department for publication in Andhra Pradesh Gazette, dated 19.11.2011.
40. Article 309 of the Constitution of India confers power on the Governor of a State to make Rules regulating the recruitment and the conditions of service of persons appointed to public services and posts. In exercise of the said power, the A.P. State Judicial Service Rules, 2007 are made by the Governor. Similarly G.O.Ms. No. 132, dated 16.11.2011 was also issued by the Governor in exercise of the power conferred under Article 309 of the Constitution of India and all other powers enabling him in this behalf.
41. It may be true that the amendment was proposed by the High Court and accordingly G.O.Ms. No. 132, dated 16.11.2011 came to be issued. However there is no basis for the allegation that the amendment was effected merely at the instance of the High Court without even application of mind to the purpose of such amendment.
42. As held in
43. The further contention advanced on behalf of the petitioners is that the amendment to Rule 6 (4) & (10) under G.O.Ms. No. 132, dated 16.11.2011 is unenforceable in the absence of amendment to Rule 6 (1) of the A.P. State Judicial Service Rules, 2007.
44. It is urged on behalf of the petitioners that Rule 6 (1) being the substantial provision providing for minimum marks in viva-voce, even after the impugned amendment to Rule 6 (4) & (10) the High Court is bound to follow the requirement of the minimum marks for viva voce notified in the advertisement, dated 18/19.8.2010 in terms of Rule 6 (1). It is contended that in the absence of corresponding amendment to Rule 6 (1), the requirement of minimum marks for viva voce still subsists and therefore it is mandatory to follow the requirement of minimum marks for viva voce notwithstanding the amendment to Rule 6 (4).
45. For proper appreciation of the above contention, we may refer to Rule 6 to the extent it is necessary. It may also be added that sub-rule (4) deals with recruitment to category of District Judges whereas sub-rule (10) deals with the category of Civil Judges. Since we are concerned in the present case only with the recruitment to the posts of District Judges, it would be suffice to notice sub-rules (1) to (4) of Rule 6.
6. Methodology for conducting examination:
(1) The High Court from time to time shall notify the number of vacancies for the category of District Judges to be appointed by direct recruitment indicating inter alia, the eligibility criteria, the syllabus, the number of marks allotted for written examination, the qualifying mark to be secured by a candidate, the number of marks allotted for the viva voce and the minimum to be secured therein by the candidate.
Provided that owing to the contingency it shall be open to the High Court to conduct a screening test which shall be objective type before conducting the written examination followed up by viva voce after duly notifying the same.
(2) While the written examination is meant to test the academic knowledge of the candidate, the viva voce is to test his communication skills; his tact; ability to defuse the situations to control the examination of witnesses and also lengthy irrelevant arguments and the like; and his general knowledge.
(3) The syllabus for written examination shall be from out of the procedural as well as substantive laws, Local laws and Constitution of India.
(4) The written examination shall invariably carry 80 marks limiting the viva voce to the remaining 20 marks.
Provided that the candidate shall secure a minimum qualifying mark of 40% for O.C. category, 35% for B.C. category and 30% for S.C. and S.T. category in the written examination and a minimum marks of 10 for O.C. category, 8 for B.C. category and 6 for S.C. and S.T. category in the viva voce.
(5) to (10)
(Emphasis supplied)
46. On a careful reading of the above Rule, it appears to us that what is mandatory under Rule 6 (1) is to notify the number of vacancies. Though it is also necessary to indicate the other particulars specified therein, Rule 6 (1) cannot be held to be the substantial provision and Rule 6 (4) which prescribes the marks to be carried by the written examination and viva voce as well as the minimum qualifying marks, in our considered opinion, is not controlled by Rule 6 (1). Therefore the contention that the amendment to Rule 6(4) cannot be enforced in the absence of corresponding amendment to Rule 6 (1) is untenable.
47. The decisions cited by the learned counsel for the petitioner namely
Publication in official Gazette whether mandatory?
48. Yet another contention raised on behalf of the petitioner is that in the absence of publication of G.O.Ms. No. 132, dated 16.11.2011 in the official Gazette, the same is unenforceable and therefore the High Court ought not to have applied the same to the viva voce held from 7.12.2011 to 16.12.2011.
49. Relying upon
50. It is not disputed before this Court by the respondents that G.O.Ms. No. 132, dated 16.11.2011 could not be published in the A.P. State Gazette by the date of viva voce due to administrative delay.
51. However, it is contended that it was uploaded to the official website of State Government on 16.11.2011 itself and therefore absence of publication in the A.P. State Gazette is immaterial.
52. At the outset, we may refer to Section 8 of the Information Technology Act, 2000:
8. Publication of rule, regulation, etc., in Electronic Gazette:-
Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the official Gazette or Electronic Gazette.
Provided that where any rule, regulation, order, bye-law, notification or any other matter is published in the official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.
53. Section 2(s) of the Information Technology Act, 2000 defines "electronic gazette" as "official gazette" published in the electronic form.
54. On a reading of Section 8 together with Section 2(s), it is clear that even where the law provides for publication in the official gazette, such requirement shall be deemed to have been satisfied if the rules, regulations, etc., are published in the electric gazette i.e., in the electronic form.
55. Nothing could be placed before this Court by the learned counsel for the petitioners to show that any specific mode of publication, much less publication in the official gazette is prescribed under any law to enforce the A.P. Judicial Service Rules, 2007 made under Article 309 of the Constitution of India or any amendment to the said rules.
56. In
57. In
58. In the light of the legal position noticed above, it is clear that the object of publication is only to draw the attention of the persons sought to be effected by it. Hence, there is no substance in the contention on behalf of the petitioners that publication in the official Gazette is mandatory. As rightly submitted by the learned counsel for the respondents, in the absence of any provision prescribing specific mode of publication, what is required is only the publication in a reasonable manner.
59. Admittedly G.O.Ms. No. 132, dated 16.11.2011 was uploaded to the official website of the State Government on 16.11.2011 itself and about three weeks thereafter the viva voce was held. As could be seen from the pleadings in the writ petition, all the petitioners had knowledge about the impugned amendment by the date of viva voce. Once it is established that they are aware of the amendment and its purport, as held in Rai Vimal Krishna''s case (11 supra) no special sanctity need be given to the mode of publication. Therefore, non-publication of G.O.Ms. No. 132, dated 16.11.2011 in the official Gazette by the date of viva voce is of no consequence and on that ground the impugned amendment cannot be held to have become ineffective or inoperative.
60. Thus in our considered opinion all the three contentions advanced on behalf of the writ petitioners with regard to the validity and enforceability of G.O.Ms. No. 132, dated 16.11.2011 are untenable.
Point No. 2: Whether Rule 6 (4) of A.P. State Judicial Service Rules, 2007 as amended by G.O.Ms. No. 132, dated 16.11.2011 can be applied to the selection process commenced pursuant to the notification dated 10.08.2010 (advertised in the newspapers on 18/19.8.2010) ?
61. Leading the arguments on behalf of the petitioners, Dr. K. Lakshmi Narasimha, the learned counsel for the petitioner in W.P. No. 34683 of 2011 vehemently contended that the application of the amended Rule 6 (4) to the selection process in question is impermissible under law in the light of the ratio laid down in
62. On the other hand, Sri P. Venugopal, the learned counsel appearing for the High Court of A.P. submitted that the impugned amendment was necessary so as to implement the law declared by the Supreme Court in
63. Sri L. Ravichander, the learned Senior Counsel appearing for one of the provisionally selected candidates by name Sabbi Premavathi, who is shown at Sl. No. 2 in the list of provisionally selected candidates, dated 22.12.2011, submitted that no prejudice was caused to any of the writ petitioners since the deletion of prescription of minimum marks for viva voce has merely enlarged the scope of consideration among the candidates qualified in the written examination. Relying upon
64. While submitting that non-application of the amended rule to the selection process in question would result in another illegality of acting contrary to the law laid down by the Apex Court, the learned Senior Counsel urged that it is not a fit case where this Court should exercise its discretionary jurisdiction in favour of the petitioners. In support of the said submission, the learned Senior Counsel relied upon
65. The learned Senior counsel has also relied upon
66. Relying upon
67. Sri S. Rajan, the learned counsel appearing for another provisionally selected candidate by name Majji Babitha, who is shown at Sl. No. 16 in the list of provisionally selected candidates, dated 22.12.2011, submitted that the ratio laid down in K. Manjusree''s case (12 supra) and Hemani Malhotra''s case (13 supra) is clearly distinguishable on facts. It is submitted by the learned counsel that in K. Manjusree''s case (12 supra) the rights accrued to the selected candidates were taken away by virtue of the change in the eligibility criteria resulting in serious prejudice to the petitioners therein, whereas in the instant case the rule has been amended even prior to the viva voce and the same has been applied equally to all the candidates qualified in the written examination. According to the learned counsel, since the selection process was still going on and no right as such was created in favour of the writ petitioners or any other candidate for appointment, the application of the amended rule was not to the prejudice to anybody and therefore the interference by this Court is not warranted. In support of his submission that a decision is a precedent on its own facts, the learned counsel has relied upon
68. Sri Posani Venkateswarlu, the learned counsel appearing for the provisionally selected candidate by name Alapati Giridhar who is shown at Sl. No. 11 in the list of the provisionally selected candidates, dated 22.12.2011, submitted that deletion of minimum marks for viva-voce by amending rule 6 (4) cannot be treated as a change of rule in the midst of the selection process. It is submitted by the learned counsel that in fact the advertisement dated 18/19.08.2010 which was issued contrary to the law declared by the Supreme Court was irregular and the said irregularity has been cured by application of the amended rule 6 (4) to the selections in question.
69. Sri Anand Kumar Kapoor, the learned counsel appearing for the provisionally selected candidate by name N. Narsinga Rao, who is shown at Sl. No. 1 in the list of provisionally selected candidates, dated 22.12.2011, relied upon
70. We have also heard Sri K.G. Krishna Murthy, the learned Additional Advocate General on behalf of the State, Sri A.V. Sesha Sai, Sri B. Purushotham Reddy and Sri M. Sreerama Rao, the learned counsel appearing for the provisionally selected candidates by name G. Gopi, Moulana Junaid Ahmed and Dhuli Thirumala Rao respectively, who are shown at Sl. Nos. 14, 8 & 15 in the list of provisionally selected candidates, dated 22.12.2011 and whose selection is challenged on the ground that they failed to secure minimum qualifying marks in viva voce.
Consideration of rival submissions:
71. Admittedly Rule 6 (4) of the A.P. State Judicial Service Rules, 2007 has been amended by G.O.Ms. No. 132, dated 16.11.2011 after the written examination was held and 52 candidates were declared to have been qualified by notification dated 8.8.2011. The said amended rule, by virtue of which the prescription of minimum marks for viva voce is deleted, was made applicable to the viva voce that was held from 7.12.2011 to 16.12.2011. Thus no minimum marks for viva voce were insisted upon and no candidate was excluded on the ground of not securing minimum marks in the viva voce. The marks secured in the viva voce were simply added to the written examination marks and accordingly the list of provisionally selected candidates dated 22.12.2011 was prepared.
72. Consequently, 7 candidates namely N. Narsinga Rao, Sebbi Premavathi, Moulana Juvaid Ahmed, Alapati Giridhar, Guttala Gopi, Dhuli Thirumala Rao and Majji Babitha who secured less than the required minimum marks in viva voce have been selected. They have been shown at Sl. Nos. 1, 2, 8, 11, 14, 15 & 16 respectively in the list of provisionally selected candidates, dated 22.12.2011.
73. The selection of the above said 7 candidates is challenged before us primarily on the ground that Rule 6 (4) as amended on 16.11.2011 i.e., after the commencement of the selection process cannot be applied to the selections in question.
74. Before adverting to the rival contentions, it is necessary to notice the events that have led to the amendment to rule 6 (4) of A.P. State Judicial Service Rules, 2007.
75. Justice K.J. Shetty Commission: In
76. The Union of India filed a review petition seeking certain modifications/clarifications in the directions given by the Supreme Court in All India Judges Association (1) v. Union of India (27 supra). The review petition was disposed of with certain directions (vide
77. Pursuant to the above said directions, the Government of India constituted First National Judicial Pay Commission under the Chairmanship of Justice K.J. Shetty. One of the terms of the reference was to examine and recommend in respect of minimum qualifications, age of requirement, method of recruitment, etc., for judicial officers keeping in view the relevant provisions of the Constitution of India and the directions of the Supreme Court.
78. On 11.11.1999 Justice Shetty Commission submitted its report. Certain questions arising out of the recommendations of Justice Shetty Commission again fell for consideration by the Supreme Court in All India Judges Association (3) v. Union of India (15 supra) and subject to the various modifications, all other recommendations of the Shetty Commission have been accepted by the Supreme Court.
79. The recommendations so accepted by the Supreme Court in All India Judges Association (3) v. Union of India (15 supra) included that there shall be no cut-off marks in viva-voce. However, in paragraph-38 it was made clear that it was necessary for service and other rules to be amended so as to implement the said judgment.
80. In
81. The recommendation of Justice Shetty Commission for deletion of the cut-off marks in the viva-voce test as accepted in All India Judges Association (3) v. Union of India (15 supra) was again referred to in Hemani Malhotra''s case (13 supra) and it was held that the prescription of cut-off marks at viva-voce test which was introduced by the respondent therein after commencement of the selection process was illegal.
82. Again in Malik Mazhar Sultan (3) v. U.P. Public Service Commission (2008) 17 SCC 703, it was made clear by the Supreme Court that appointments in judicial service have to be made as per the existing statutory rules and direction was issued for amending the existing laws to adopt the recommendations of Justice Shetty Commission as approved in All India Judges Association (3) v. Union of India (15 supra) for future selections.
83. In
A.P. State Judicial Service Rules, 2007:
85. Coming to the judicial service in the State of Andhra Pradesh, A.P. State Judicial Service Rules, 2007 (for short, ''the Rules'') were made under the proviso to Article 309 of the Constitution of India vide G.O.Ms. No. 119, (LA&J SC.F) Department, dated 2.8.2008 thereby superseding the Special Rules of the A.P. State Higher Judicial Service Rules made under G.O.Ms. No. 1556, dated 10.10.1958 and the special Rules of the A.P. State Judicial Service made under G.O.Ms. No. 2207, dated 4.10.1962 which were hitherto in force.
86. Under Rule 6 (4) and (10) of the said Rules, minimum marks in viva voce are provided for the appointment to the category of District Judges by direct recruitment and appointment to the category of Civil Judges by direct recruitment respectively.
87. Since we are concerned only with the appointment to the category of District Judges by direct recruitment, Rule 6 (4) may be referred to:
6 (4). The written examination shall invariably carry 80 marks limiting the viva voce to the remaining 20 marks.
Provided that the candidate shall secure a minimum qualifying mark of 40% for O.C. category, 35% for B.C. category and 30% for S.C. and S.T. category in the written examination and a minimum marks of 10 for O.C. category, 8 for B.C. category and 6 for S.C. and S.T. category in the viva voce.
(Emphasis supplied)
88. Apparently the advertisement dated 18/19.08.2010 inviting applications for appointment to the 18 posts in the category of District & Sessions Judges (entry level) by direct recruitment was issued in terms of the above noticed Rule 6 (4) mentioning specifically that the candidate should secure minimum marks of 10 for OC category, 8 for BC category and 6 for SC & ST categories in the viva voce.
89. While the selection process pursuant to the said advertisement was in progress, Rule 6 (4) was amended by G.O.Ms. No. 132, dated 16.11.2011 omitting the prescription of minimum marks for viva voce so as to make it in conformity with the Justice Shetty Commission''s recommendations as accepted by the Supreme Court.
90. The said amended Rule 6 (4) which has come into force w.e.f. 16.11.2011 reads as under:
6 (4).The written examination shall invariably carry 80 marks limiting the viva voce to the remaining 20 marks.
Provided that the candidate shall secure a minimum qualifying mark of 40% for O.C. category, 35% for B.C. category and 30% for S.C. and S.T. category in the written examination.
91. Admittedly the amended rule has been applied to the viva voce that was held from 7.12.2011 to 16.12.2011 and accordingly the selections were finalized without insisting on securing minimum marks in viva voce.
92. The procedure so adopted by the High Court of A.P. is challenged in these writ petitions contending that the statutory rules cannot be changed after the commencement of the selection process. The petitioners relied upon K. MANJUSREE''S case (12 supra), HEMANI MALHOTRA''S case (13 supra) and RAMESH KUMAR''S case (14 supra) in support of their contention.
93. The above said decisions are sought to be distinguished on facts by the learned counsel for the respondents. It is contended on behalf of the respondents that the impugned selections cannot be found fault with on any ground whatsoever since the amendment to Rule 6 (4) was effected prior to commencement of viva-voce and the same was made applicable to all the qualified candidates equally.
94. In support of the contention that the change of rules after the commencement of the selection process is not illegal where such change has enlarged the field of choice, the learned counsel for the respondents relied upon
95. We have carefully gone through the decisions cited by the learned counsel for the petitioners as well as the respondents.
97. In K. Manjusree''s case (12 supra) applications were invited for recruitment to the 10 posts of District & Sessions Judges Grade-II by advertisement dated 28.5.2004 issued in terms of A.P. State Higher Judicial Service Rules, 1958, under which there was no prescription of minimum marks for viva voce. However after completing the entire selection process, an objection was raised by the Administrative Committee of the High Court on the ground of failure to provide minimum marks for interview. Pursuant thereto, a sub-committee of two judges was appointed to examine the matter and the said committee submitted a revised merit list applying the minimum percentage of 50%, 40% and 35% for OC, BC and SC/ST even with regard to interviews. Consequently, those who secured less than the minimum in the interview were eliminated from the process of selection. The said selection list was accepted by the Full Court and aggrieved by the same the candidates who were eliminated on the ground that they failed to secure the minimum marks in the interview filed writ petitions before this Court. The writ petitions were dismissed by common judgment and then the matter was carried to the Supreme Court. While holding that the action of the Full Court in revising the merit list by adopting a minimum percentage of marks for interviews was impermissible, the Supreme Court set aside the judgment of the High Court and directed to redraw the merit list without applying minimum marks for interview. It was observed:
Para-27. ... ... ... The minimum marks for interview had never been adopted by the Andhra Pradesh High Court earlier for selection of District & Sessions Judges, (Grade II). In regard to the present selection, the Administrative Committee merely adopted the previous procedure in vogue. The previous procedure as stated above was to apply minimum marks only for written examination and not for the oral examination. We have referred to the proper interpretation of the earlier Resolutions dated 24-7-2001 and 21-2-2002 and held that what was adopted on 30-11-2004 was only minimum marks for written examination and not for the interviews. Therefore, introduction of the requirement of minimum marks for interview, after the entire selection process (consisting of written examination and interview) was completed, would amount to changing the rules of the game after the game was played which is clearly impermissible. We are fortified in this view by several decisions of this Court. It is sufficient to refer to three of them
98. It is relevant to note that there was no prescription of minimum marks for viva voce under A.P. State Higher Judicial Service Rules, 1958 under which the advertisement dated 28.5.2004 was issued in K. Manjusree''S case (12 supra). Accordingly the selections were made on the basis that there was no prescription of minimum marks for interview. After the entire selection process was over, on purported interpretation of the earlier resolutions dated 30.11.2004, 24.7.2001 and 21.2.2002 it was decided by the High Court to introduce the prescription of minimum marks for interview. After considering the entire matter, the Supreme Court held that the Full Court introduced a new requirement as to minimum marks in the interview by an interpretative process which was not warranted and which was at variance with the interpretation adopted while implementing the selection process and that such a new requirement of minimum marks in interviews which had the effect of eliminating candidates who would otherwise be eligible and suitable for selection could not have been introduced.
99. As could be seen, in K. Manjusree''s case (12 supra) the entire selection process was completed on the understanding that no minimum marks were specified for viva-voce and selection list was also prepared accordingly. Thereafter the selection list was redrawn applying cut-off marks for viva voce. The Supreme Court held that introduction of the requirement of minimum marks for interview after the entire selection process was completed would amount to changing the rules of the game after the game was played which is clearly impermissible.
100. Coming to Hemani Malhotra''s case (13 supra), it is a case where the High Court of Delhi invited applications from eligible candidates for 16 vacant posts to be filled up by direct recruitment to Delhi Higher Judicial Service mentioning that there shall be a written examination comprising one paper only of 250 marks and interview/viva voce. Accordingly, written examination was conducted. Though result of the written examination was not declared and the merit list of the successful candidates was not displayed, the petitioners therein were asked to appear for interview on 12.7.2006 by letter dated 14.6.2006. However, the interview was deferred several times and in the meanwhile it was resolved by the Selection Committee to prescribe minimum marks for the viva voce. The Full Court accepted the same and consequently the viva voce was held applying the minimum qualifying marks of 55% for general candidates and 50% for SC & ST categories. The petitioners therein who were not selected challenged the said action by filing a writ petition under Article 32 of the Constitution of India contending that they were excluded illegally on the basis of cut-off marks prescribed at the stage of viva voce test. It was also contended that minimum cut-off marks would not have been prescribed for viva voce test after process for selection had commenced. The said writ petition was disposed of by the Supreme Court following the decision rendered in All India Judges Association (3) v. Union of India (15 supra), wherein the recommendation of the Justice Shetty Commission that there should not be cut-off marks at viva voce test was accepted. Accordingly the respondents were directed to add the marks obtained by the petitioners in the written examination to the marks obtained by them in the viva voce test and prepare a combined merit list along with the other selected candidates. Though it was argued on behalf of the respondents that the decision in K. Manjusree''s case (12 supra) required reconsideration since it was rendered without noticing the decisions in
101. The above analysis shows that in both K. manjusree''s case (12 supra) and Hemani Malhotra''s case (13 supra), there was no prescription of minimum marks for viva voce when the applications were invited. However minimum marks for viva voce were prescribed subsequently and the selections were accordingly made in Hemani Malhotra''s case (13 supra) whereas the selection list was redrawn in K. Manjusree''s case (12 supra) applying the cut-off marks for viva voce after the entire selection process was over. In both the said cases, the prescription of minimum marks in the interview after the commencement of the selection process amounted to adding an additional requirement/qualification and therefore the impugned action was declared illegal observing that the criteria for selection cannot be changed during the selection process or after the selection process.
102. In Ramesh Kumar''s case (14 supra) cut-off marks were prescribed at the interview level and the petitioners therein were found to be unsuitable on the ground that they did not secure the required minimum marks in the interview. It was contended on behalf of the respondent therein (High Court of Delhi) that the said criteria was fixed by the High Court being empowered by Rule 10 of Delhi Higher Judicial Service Rules, 1970 which provides that the High Court "may hold such tests as may be considered necessary". Observing that the rule did not provide for any particular procedure / criteria for holding the tests rather it enabled the High Court to prescribe the criteria, the Supreme Court held:
18. These cases are squarely covered by the judgment of this Court in
103. It is clear that even in Ramesh Kumar''s case (14 supra) the minimum marks in the interview were introduced after the commencement of the selection process. Thus all the three cases noticed above are converse cases where the applications were invited on the basis of the rule that there was no requirement of minimum marks in viva voce, but subsequently in the midway of selection process the minimum marks in viva voce were introduced resulting in adding an additional qualification. In the said facts and circumstances, it was concluded by the Supreme Court that the criteria for selection cannot be changed after the commencement of the selection process.
104. Coming to the case on hand, by the date of advertisement dated 18/19.08.2010 inviting applications for appointment to 18 posts in the category of District & Sessions Judges (entry level) by direct recruitment, the prescription of minimum marks for viva voce was subsisting under Rule 6(4) of the A.P. State Judicial Service Rules, 2007. It is no doubt true that by that date the recommendation of the Justice Shetty Commission for deletion of the cut-off marks in viva voce was already accepted in All India Judges Association (3) v. Union of India (15 supra). However, as clarified in the said case itself as well as in Syed T.A. Naqshbandi''s case (29 supra), Hemani Malhotra''s case (13 supra), Malik Mazhar Sultan (3) v. U.P. Public Service Commission (30 supra) and Rakhi Ray''s case (31 supra), the appointments are required to be made as per the existing rules. Therefore, though the prescription of minimum marks for viva voce was not in conformity with the recommendation of the Justice Shetty Commission as accepted by the Supreme Court, the action of the High Court in issuing the advertisement dated 18/19.08.2010 inviting applications prescribing minimum marks for viva voce in terms of Rule 6(4) as it stood then, cannot be found fault with.
105. While the selection process was still in progress, Rule 6(4) of the A.P. State Judicial Service Rules, 2007 was amended by G.O.Ms. No. 132, dated 16.11.2011 deleting the prescription of minimum marks for viva voce thereby making it in conformity with the law declared by the Supreme Court. By that time though written test was already held in which 52 candidates were qualified, admittedly the viva voce was not held. Accordingly, the amended rule 6(4) which has come into force w.e.f. 16.11.2011 has been applied to the viva voce held from 7.12.2011 to 16.12.2011 and the selections were finalized without insisting upon securing minimum marks in viva voce.
106. It is relevant to note that the prescription of minimum marks for viva voce in the advertisement dated 18/19.8.2010 as well as the finalization of selections in December, 2011 without insisting upon minimum marks in viva voce is in accordance with Rule 6 (4) of A.P. State Judicial Service Rules, 2007 as it existed at the relevant time. Moreover the amendment was only for the purpose of deletion of the prescription of minimum marks for viva voce which was yet to be held. The said amendment has nothing to do with the written test that was already held and it has not effected the selection process upto the stage of viva voce in any manner whatsoever. That apart the amendment is to the effect of deletion of cut-off marks but not introducing cut-off marks. Thus the impugned amendment has only widened the field of consideration for selection by giving an opportunity of being considered to the candidates who are qualified and secured higher marks in the written examination. Had it been introducing minimum marks for viva voce, it would have been resulted in adding an additional requirement / qualification which was held to be impermissible in K. Manjusree''s case (12 supra), Hemani Malhotra''s case (13 supra) and Ramesh Kumar''s case (14 supra). However that is not the case here. In fact, the purpose of the amendment itself is to make Rule 6 (4) in conformity with the recommendation of the Justice Shetty Commission as accepted by the Supreme Court.
107. Therefore, the contention on behalf of the petitioners that in the light of the law laid down in K. Manjusree''s case (12 supra), Hemani Malhotra''s case (13 supra) and Ramesh Kumar''s case (14 supra), the High Court of A.P. ought not to have applied the amended rule 6 (4) to the selections in question is liable to be rejected.
Whether the petitioners acquired a right to be considered strictly in accordance with the terms and conditions of the advertisement, dated 18/19.08.2010?
108. The learned counsel for the petitioners advanced yet another contention that the petitioners who appeared for selection based on the advertisement dated 18/19.08.2010 acquired a right to be considered strictly in accordance with the terms and conditions of the said advertisement as well as the rules existing at that point of time since the amended Rule 6 (4) has not been enforced with retrospective effect.
109. To substantiate the above said contention, the learned counsel for the petitioners relied upon
110. In P. MAHENDRAN''S case (37 supra) the Karnataka General Service (Motor Vehicles Branch) (Recruitment) Rules, 1962 prescribed a diploma in Automobile Engineering or Mechanical Engineering as the minimum qualification for appointment of Motor Vehicles Inspector. Accordingly, the Karnataka Public Service Commission invited applications in the year 1983 for the said posts from holders of Diploma in Automobile Engineering or Mechanical Engineering. There was delay in completion of the said process on account of the stay order issued by the Karnataka High Court and ultimately on 23.07.1987 the selections were finalized and published on 23.07.1987. In the meanwhile by notification dated 4.5.1987 the recruitment rules were amended omitting the diploma in Mechanical Engineering from the prescribed qualifications. The Karnataka Administrative Tribunal quashed the selection list as well as the advertisement inviting applications on the ground that subsequent to 1987 amendment selection could not be made on the basis of pre-amendment eligibility criteria. On appeal, the Supreme Court reversed the decision of the Tribunal and held:
Since the amending rules were not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending rules came into force, the amended rules could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the rules before its amendment. Moreover construction of amending rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter.
111. It was also observed that the rules which are prospective in nature cannot take away or impair the right of candidates holding diploma in Mechanical Engineering as on the date of making application as well as on the date of scrutiny by the Commission they were qualified for selection and appointment.
112. The ratio laid down in the above decision was followed in Gopal Krushna Rath''s case (42 supra) and Secy., A.P. Public Service Commission v. B. Swapna (44 supra).
113. In Distt. Collector & Chairman, Vizianagaram S.W.R.S. Society v. M. Tripura Sundari Devi (38 supra) minimum qualification prescribed in the advertisement for Grade-I and Grade-II Teacher posts was a second class postgraduate degree. However the respondent therein who was having a third class postgraduate degree was selected and appointed inadvertently without scrutinizing the copies of the certificates. The Supreme Court held that the said candidate was rightly not permitted to resume his duties since the appointment was made in disregard of the qualification mentioned in the advertisement. It was also observed that when an advertisement mentioned a particular qualification and an appointment was made in disregard of the same, it was not a matter only between the appointing authority and the appointee concerned but the aggrieved are all those who had similar or even better qualifications than the appointee but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement.
114. In A.A. CALTON''S case (39 supra), the selection and appointment to the post of Principal of a minority institution was under challenge. Though the selection process commenced in the year 1973 in accordance with the procedure prescribed u/s 16-F of the U.P. Intermediate Education Act, 1921, the Deputy Director who has to approve the recommendation of the Selection Committee u/s 16-F (1) had disapproved the recommendations twice and when a third recommendation was made, its validity was challenged before the High Court of Allahabad. The High Court by judgment dated 19.08.1975 allowed the writ petition and directed the Director of Education to make an appointment in accordance with Section 16-F (4) of the U.P. Intermediate Education Act, 1921. The appointment so made was again questioned contending that by virtue of the amendment to Section 16-F (4) of the U.P. Intermediate Education Act, 1921 which came into force on 18.08.1975 the power of the Director to make an appointment had been taken away in relation to minority institutions.
114. Rejecting the contention of the appellant therein that the law as amended by the Amendment Act, 1975 should have been followed, the Supreme Court held:
5. ... .... ... The process of selection u/s 16-F of the Act commencing from the stage of calling for applications for a post up to the date on which the Director becomes entitled to make a selection u/s 16-F(4) (as it stood then) is an integrated one. At every stage in that process certain rights are created in favour of one or the other of the candidates. Section 16-F of the Act cannot, therefore, be construed as merely a procedural provision. It is true that the legislature may pass laws with retrospective effect subject to the recognised constitutional limitations. But it is equally well settled that no retrospective effect should be given to any statutory provision so as to impair or take away an existing right, unless the statute either expressly or by necessary implication directs that it should have such retrospective effect. In the instant case admittedly the proceedings for the selection had commenced in the year 1973 and after the Deputy Director had disapproved the recommendations made by the Selection Committee twice the Director acquired the jurisdiction to make an appointment from amongst the qualified candidates who had applied for the vacancy in question. At the instance of the appellant himself in the earlier writ petition filed by him the High Court had directed the Director to exercise that power. Although the Director in the present case exercised that power subsequent to August 18, 1975 on which date the amendment came into force, it cannot be said that the selection made by him was illegal since the amending law had no retrospective effect. It did not have any effect on the proceedings which had commenced prior to August 18, 1975. Such proceedings had to be continued in accordance with the law as it stood at the commencement of the said proceedings.
115. UMESH CHANDRA SHUKLA''S case (40 supra) is a case where by filling the posts of Subordinate Judges in the Delhi Judicial Service after announcing the list of the candidates qualified for viva voce test, moderation of 2 marks was done at the instance of the High Court and 8 more candidates were also qualified for viva voce test. The validity of the said proceedings was challenged by filing a writ petition under Article 32 of the Constitution of India. Holding that the High Court has no such power to add marks by way of moderation which would amount to enlarging the scope of competition affecting the rights acquired by the candidates who were selected and striking down the list prepared by the High Court after adding the moderation marks, it is observed:
13. ... ... The candidates who appear at the examination under the Delhi Judicial Service Rules acquire a right immediately after their names are included in the list prepared under Rule 16 of the Rules which limits the scope of competition and that right cannot be defeated by enlarging the said list by inclusion of certain other candidates who were otherwise ineligible, by adding extra marks by way of moderation. In a competitive examination of this nature the aggregate of the marks obtained in the written papers and at the Viva Voce test should be the basis for selection. On reading Rule 16 of the Rules which merely lays down that after the written test the High Court shall arrange the names in order of merit and these names shall be sent to the Selection Committee, we are of the view that the High Court has no power to include the names of candidates who had not initially secured the minimum qualifying marks by resorting to the devise of moderation, particularly when there was no complaint either about the question papers or about the mode of valuation. Exercise of such power of moderation is likely to create a feeling of distrust in the process of selection to public appointments which is intended to be fair and impartial. It may also result in the violation of the principle of equality and may lead to arbitrariness. The cases pointed out by the High Court are no doubt hard cases, but hard cases cannot be allowed to make bad law.
116. In Maharashtra SRTC v. Rajendra Bhimrao Mandve (43 supra) by advertisement dated 20.09.1995 applications were invited for the posts of Drivers and Conductors in Maharashtra State Road Transport Corporation. By that time, admittedly no statutory rules or regulations were in force governing the selections. As per the existing circulars, written/trade test and oral interview shall be held and 87.5% and 12.5% respectively were assigned for the same. However after the driving test was conducted on 27.11.1995 the qualified candidates were subjected to oral interview on 26.7.1996 allotting 25% for interview in accordance with the Circular dated 24.6.1996 and the selections were finalized accordingly. The said selections were challenged by the unsuccessful candidates contending that the selection should be governed only by the Circulars dated 23.01.1995 and 04.04.1995 which were existing as on the date of the advertisement inviting applications for the posts and that by application of the Circular dated 24.6.1996 under which 25% marks were allotted for interview, the marks obtained by them in the driving test lost significance. While observing that in the absence of a written examination for selection of drivers for appointment, the selection process has to be on the basis of only circular orders dated 21.08.1980 and 23.01.1995, the Supreme Court held that the rules of the game meaning thereby that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.
117. In N.T. Devin Katti''s case (41 supra) the Karnataka Public Service Commission issued a notification dated 23.5.1975 inviting applications from in-service candidates for recruitment to 50 posts of Tahsildars. Para-14 of the Notification stated that the provisions of the Karnataka Administrative Services (Tahsildars) Recruitment (Special) Rules, 1975 shall apply to the conduct of the competitive examination. After the written examination and viva voce test, the Commission finalized the list of successful candidates following the directions and the procedure as contained in the Government Order dated 6.9.1969. However, the State Government refused to approve the said list on the ground that the reservation for SC, ST & BC should have been made in accordance with the directions and procedure contained in the Government Order dated 9.7.1975. Accordingly, the Commission prepared the select list afresh after making reservations in accordance with the procedure prescribed by the Government Order dated 9.7.1975. The said selections was challenged contending inter alia that the mode of selection and procedure for making reservation as prescribed by the Government Order dated 9.7.1975 was not applicable to the selection as advertisement had been issued in May, 1975 and the process of selection had already commenced prior to the issue of the Government Order dated 9.7.1975. After considering the rival contentions the Supreme Court held:
11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and the advertisement expressly states that selection shall be made in accordance with the existing rules or government orders, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
118. As could be seen from the above noticed decisions, it has been consistently held by the Courts that though a candidate who made application for a post pursuant to an advertisement does not acquire any vested right of selection, he acquires a vested right of being considered for selection in accordance with the Rules as they existed on the date of advertisement and that he cannot be deprived of such right of being considered for selection on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature.
119. It is also relevant to note that in almost all the cases noticed above, the rules that were amended midway had altered the eligibility criteria which were originally notified. Thus in all the judgments the Court has proceeded on the premise that the rule shall not cause prejudice to a prospective candidate by depriving him of a vested right for consideration in accordance with the terms and conditions notified.
120. As noticed above, the law is well-settled that a candidate does not have any legal right to be appointed. However, in terms of Article 16 of the Constitution of India, he has only a right to be considered therefor. Reiterating the settled legal position, it is held in Pitta Navin Kumar''s case (32 supra):
32. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.
121. It is also relevant to note the following observations made in paras 51 & 52 of the judgment in Pitta Navin Kumar''s case (32 supra):
51. In this case, we are dealing with a peculiar situation. The Government took a sympathetic view about the fate of those candidates who could not be accommodated earlier. Such consideration was made to broad-base the field of selection in view of the fact that since 1997 there had been no further recruitment. It is also not in dispute that the vacancies were notified from time to time as they were brought to the notice of the department concerned by the other departments.
52. The authority of the State to frame rules is not in question. The purport and object for which the said notifications were issued also cannot be said to be wholly arbitrary so as to attract the wrath of Article 14 of the Constitution of India. The appellants herein no doubt had a right to be considered but their right to be considered along with other candidates had not been taken away. Both the groups appeared in the preliminary examination. Those who had succeeded in the preliminary examination were, however, allowed to sit in the main examination and the candidature of those had been taken into consideration for the purpose of viva voce test who had passed the written examination.
122. Following the ratio laid down in Pitta Navin Kumar''s case (32 supra), it was further held in Union of India v. S. Vinodh Kumar (33 supra) that the petitioners therein who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
123. Similar view was expressed in Sadananda Halo''s case (34 supra) while negativing the contention of the petitioners therein that allotment of 50 marks for the personal interview/viva voce while making appointment to the posts of Constables was illegal.
124. Having regard to the ratio laid down by the Apex Court in the various decisions noticed above, it appears to us that the amendment effected after the commencement of the selection process cannot be enforced when it affects the existing rights of the candidates. If any amendment is made which does not alter the criteria for selection in any manner and does not result in depriving the candidates of their right to be considered for selection, application of such amendment cannot be held to be impermissible merely on the ground that the selection process has already commenced. This has to be determined on the facts of each case having regard to the terms and conditions set out in the advertisement and the purport of the amendment sought to be made to the rules.
125. In the case on hand, by the date of the advertisement dated 18/19.08.2010 the prescription of minimum marks for viva voce was subsisting in Rule 6 (4) of the A.P. State Judicial Service Rules, 2007 and the same was also mentioned in the advertisement. However by the date of viva voce held from 7.12.2011 to 16.12.2011, Rule 6 (4) was amended and it came into force with effect from 16.11.2011. In terms of the said amended rule, the prescription of minimum marks was not applied in the viva voce held from 7.12.2011 to 16.12.2011.
126. As expressed above, the amendment to Rule 6 (4) has nothing to do with the written examination test that was already held pursuant to the advertisement dated 18/19.08.2010, but it has only altered the procedure with regard to viva voce by deleting the prescription of minimum marks. Though the amendment to Rule 6 (4) has not been given retrospective effect, admittedly it has come into force much prior to the date fixed for viva voce. Thus by the date of viva voce, the amended rule is very much in force. It is also relevant to note that Rule 6 merely provides for methodology for conducting examination and in a way it is only a procedural provision.
127. We may also mention at the cost of repetition that the amended Rule 6 (4) whereunder the prescription of minimum marks for viva voce is deleted has been applied equally to all the 52 candidates that were qualified in the written test. Application of the amended rule to the selection process at that stage did not in any way enlarge the list of the qualified candidates nor excluded any of the qualified candidates from being considered for selection. It may be true that a right was created in favour of the petitioners as well as the other candidates qualified in the written examination to participate further in the selection process and for being considered for selection in accordance with law. However, there is no reason to hold that by application of the amended rule to the selection process at the stage of viva voce, the right so created in favour of the writ petitioners for being considered along with the qualified candidates is adversely affected. Neither the eligibility criteria is affected in any manner whatsoever nor any vested right of the petitioners is taken away by application of the amended rule to the selection process. On the other hand, the amendment has only relaxed the rigour of Rule 6 (4) to the extent of obtaining minimum marks in viva voce and widened the scope of consideration among the 52 candidates qualified in the written examination. The relaxation of minimum marks was applied to all the 52 candidates who are qualified in the written examination equally. In fact, the record shows that the marks obtained in the written examination by the said 52 candidates were not disclosed either to the candidates or to the Members of the Selection Committee who conducted the interview. All the candidates were admittedly aware of the amendment to Rule 6 (4) and they had the knowledge that the selections would be finalized by adding the marks obtained in the written examination to the marks secured in the viva voce without having regard to any cut-off marks in the viva voce. Thus it is clear that all the 52 candidates who are qualified in the written examination stood on the same footing as on the date of viva voce and all of them were treated equally and were given equal opportunity of participation in the viva voce. It is also relevant to note that there is no allegation of mala fides and there is no allegation that the amended rule was applied selectively to some of the candidates to see that they are selected.
128. We may also mention that by application of the amended rule no candidate over and above the 52 candidates was allowed to participate in viva voce nor any of the said 52 candidates was eliminated from participating in the viva voce. It is also not a case of introducing an additional requirement/qualification for selection. Above all, the amended rule has made the selection process in conformity with the law declared by the Supreme Court.
129. It may be true that if the impugned amendment is not applied to the selection in question, the petitioners would have been appointed since the seven candidates who failed to secure the minimum marks in viva voce would have been discarded. However on that ground it cannot be held that the interest of the petitioners is adversely affected. Moreover, though the petitioners had knowledge of the impugned amendment and its application to the selection process, they had participated in the viva voce without raising any objection. Therefore, they are estopped from assailing the selection process after they were declared unsuccessful. In identical circumstances, in
130. Hence in our opinion the selection process cannot be held to be vitiated merely for the reason that Rule 6 (4) was amended after commencement of selection process and the selections were finalized on the basis of the said amended rule.
Point No. 3: Whether the selection of the candidates who have not satisfied the minimum age requirement of 35 years is valid?
131. Out of the 17 candidates who are provisionally selected, it is alleged by the writ petitioners that three candidates namely Sasidhar Reddy Sura, Yadavalli Lakshmana Rao and Majji Babitha have not completed 35 years of age as on 1.8.2010. They are shown in the list of provisionally selected candidates dated 22.12.2011 at Sl. Nos. 5, 9 & 16 respectively. According to the writ petitioners, the selection of the above said candidates is illegal since as per the law declared by the Supreme Court in All India Judges Association (3) v. Union of India (15 supra) the minimum age shall be 35 years for direct recruitment to the cadre of District Judges.
132. Admittedly no minimum age is prescribed either in Article 233 of the Constitution of India or under A.P. State Judicial Service Rules, 2007.
133. The only requirement with regard to age is prescribed in Rule 5 (1) (b) of the A.P. State Judicial Service Rules, 2007 as under:
5. Eligibility:
1) District Judges: A person to be appointed to the category of District Judges by direct recruitment shall be:
a) An advocate of not less than seven years at the Bar;
b) A person, who has not completed forty five years of age on the first day of the month in which the notification inviting applications for such appointment is published in the Andhra Pradesh Gazette.
c) A person of sound health and active habits and free from any bodily defect or infirmity, which render him, unfit for such appointment.
Provided that the upper age limit in respect of persons belonging to the Scheduled Castes, the Scheduled Tribes and Backward Classes is relaxable by three years.
(Emphasis supplied)
134. However, Justice Shetty Commission in its report recommended that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates.
135. It is not disputed before us in All India Judges Association (3) v. Union of India (15 supra) the Supreme Court has accepted the recommendations of the Justice Shetty Commission subject to the modifications therein.
136. In para-37 of the said judgment it was made clear by the Supreme Court that subject to the various modifications in this judgment, all other recommendations of the Justice Shetty Commission are accepted. Admittedly no modifications were suggested by the Supreme Court with regard to the recommendations of Justice Shetty Commission regarding minimum age. Thus the recommendation at para-10.93 of Justice Shetty Commission that the minimum age for direct recruitment to the cadre of District Judges shall be 35 years has been accepted by the Supreme Court.
137. Reiterating the view expressed in All India Judges Association (3) v. Union of India (15 supra), it was held in Rakhi Ray''s case (31 supra) that in the absence of statutory rule governing a particular issue, the High Courts are bound to give effect to the above directions issued by the Supreme Court.
138. Therefore, it is contended on behalf of the petitioners that in the absence of any specific provision for minimum age limit in A.P. State Judicial Service Rules, 2007, the respondents are bound to follow the minimum age of 35 years as recommended by Justice Shetty Commission and accepted by the Supreme Court.
139. Per contra, Sri P. Venugopal, the learned counsel appearing for the High Court contended that in the absence of any specific provision either in Article 233 of the Constitution or in the A.P. State Judicial Service Rules, 2007, there is no need to insist upon the minimum age requirement.
140. Relying upon Syed T.A. Naqshbandi''s case (29 supra), Malik Mazhar Sultan (3) v. U.P. Public Service Commission (30 supra) and Ramesh Kumar''s case (14 supra), it is further contended by him that the conditions of service are governed by the statutory rules so long as they are not replaced or amended in the manner known to law.
141. Sri S.R. Ashok, the learned Senior Counsel appearing for the candidate at Sl. No. 5 of the list of provisionally selected candidates, dated 22.12.2011 while reiterating the above contention further submitted that the recommendations in the report of Justice Shetty Commission are only recommendatory and its implementation requires Constitutional amendment apart from promulgation of new rules or making amendment to the existing rules. It is argued that in the absence of a provision with regard to the minimum age limit in the A.P. State Judicial Service Rules, 2007, no candidate can be disqualified on the ground of minimum age limit. Pointing out that the A.P. State Judicial Service Rules, 2007 are made subsequent to the decision in All India Judges Association (3) v. Union of India (15 supra), the learned Senior Counsel contended that the fact that no minimum age is prescribed in the Service Rules in spite of the recommendations of Justice Shetty Commission itself shows that the State and the High Court of A.P. never intended to insist upon the minimum age limit.
142. Sri S. Rajan and Sri T. Lakshminarayana, the learned counsel appearing for the candidates at Sl. Nos. 9 & 16 in the list of provisionally selected candidates whose selection is also questioned on the ground that they are below 35 years of age, argued that since the advertisement dated 18/19.8.2010 prescribed only the upper age limit of 45 years and the same has been satisfied, their candidature cannot be rejected on a new ground of non-fulfilling the minimum age criteria of 35 years. It is also argued that the selection process shall be only as per the existing rules and at any rate no additional qualification than the one prescribed under the Constitution of India can be fixed.
143. We have bestowed our thoughtful consideration to the submissions advanced on behalf of both the parties.
144. It is to be noticed that Article 233(2) of the Constitution of India does not prescribe any age restriction either maximum or minimum. Having found that the method of direct recruitment to the cadre of District Judges requires to be radically overhauled so as to ensure fairness to promotees as well as to direct recruits, Justice Shetty Commission has formulated certain questions, including the minimum age requirement for direct recruitment to the cadre of District Judges and requested the views and comments from all the concerned. After considering the views and comments so received, it was found by the Commission that there was no uniformity either as to the minimum age or maximum age for recruitment of District Judges in different States. It was found that though the rules of Higher Judicial Service of Andhra Pradesh had specified only the upper age limit of 45 and no minimum age had been prescribed, the High Court of Andhra Pradesh in its views communicated to the Justice Shetty Commission had indicated that the minimum age of 35 be uniformly followed by all the States. After referring to the views and comments received from the other High Courts, State Governments, jurists and etc., with regard to age limit, it was observed by Justice Shetty Commission as under at para-10.87 and 10.88 of its report:
Para-10.87 The next question is whether it is proper not to prescribe any minimum age for such direct recruitment as it has been the practice in some of the States. We do not think that it is a correct practice. Judicial work requires heavy responsibility at the District Judge level by matured people. They are entrusted with the important Sessions trials apart from other diverse works which involve the demand for greater professionalism in the process of judging. It requires proper development of an attitude of mind and compatible behavioural patterns. The Constitution provides only the minimum standard with seven years practice at the Bar, but Advocates with seven years practice are sometimes selected as Civil Judge (Junior Division). By seven years of practice, one will not get the required maturity to handle Sessions cases. The life and liberty of the persons are at stake in Sessions cases. (emphasis supplied)
Para-10.88 We consider that there should be minimum age for direct recruitment and it should be not less than 35 years. To put it more explicitly, the minimum age should be 35.
Thus in paras-10.93 and 10.94 it was recommended as under:
Para-10.93 For the aforesaid, we recommend that the candidates for direct recruitment to the cadre of District Judges should be between 35 and 45 years and the upper age may be relaxed by 3 years for SC/ST candidates.
Para-10.94 The same age limit must be applicable to services judges also as and when they are made eligible for such direct recruitment.
145. As noticed above, the above recommendations with regard to age limit have been accepted in toto by the Supreme Court in All India Judges Association (3) v. Union of India (15 supra) and thus it has become law of the land in terms of Article 141 of the Constitution of India and it shall be binding on all the Courts within the territory of India.
146. It may be true that the A.P. State Judicial Service Rules, 2007 which are made long after the law declared by the Supreme Court in All India Judges Association (3) v. Union of India (15 supra) are silent about the minimum age limit. However that by itself does not entitle the State Government and the High Court of A.P. to act contrary to the law declared by the Supreme Court.
147. We do not find any substance even in the contention on behalf of the respondents that the application of minimum age limit of 35 years at the stage of the selections would amount to introducing a new condition which was neither prescribed under Article 233(2) of the Constitution of India nor under the service rules or even in the advertisement dated 18/19.08.2010.
148. We are of the view that the qualification prescribed under Article 233(2) of the Constitution of India is only a minimum qualification fixed and it is always open to the Rule Making Authority to prescribe additional qualifications. In fact, that is how the maximum age limit of 45 years has been prescribed in Rule 5 (1) (b) of the A.P. State Judicial Service Rules, 2007. Though the said Rules did not prescribe the minimum age limit, in the light of the law declared by the Supreme Court, the High Court is bound to insist upon compliance with the requirement of minimum age limit of 35 years.
149. We may also add that had it been a case where the minimum age prescribed in the advertisement is sought to be altered, the respondents would have been justified in contending that it would amount to alteration of the terms and conditions prescribed in the advertisement. However this is a case where the advertisement as well as the service rules were totally silent about the minimum age limit. Therefore, the candidates cannot have any grievance upon insistence of the minimum age limit while finalizing the selections.
150. In fact, at the stage of the scrutiny of the applications itself the High Court ought to have rejected the candidature of those candidates who are less than 35 years of age. Merely because the High Court failed to do so at the stage of scrutiny of applications and allowed the candidates who are less than 35 years of age to appear for the written examination and viva voce contrary to the law declared by the Supreme Court, they cannot claim any legal right for appointment and the illegality cannot be allowed to be perpetuated.
151. For the aforesaid reasons, in our considered opinion, the selection of the candidates of less than 35 years of age being contrary to the law declared by the Supreme Court cannot be sustained.
Point No. 4: Whether the persons who are working as Assistant Public Prosecutors by the date of submission of their applications are eligible for recruitment to the post of District Judges and whether the selection of the candidates at Sl. Nos. 9, 10 & 12 of the list of provisionally selected candidates is valid?
152. The selection of candidates by name Yadavalli Lakshmana Rao, Sunitha Gandham and Dunna Ramulu who are shown at Sl. Nos. 9, 10 & 12 respectively in the list of the provisionally selected candidates, dated 22.12.2011, is challenged on the ground that the said candidates who are working as Assistant Public Prosecutors are not eligible to be considered and selected.
153. The candidate at Sl. No. 9 (Yadavalli Lakshmana Rao) is arrayed as respondent No. 13 in W.P. No. 894 of 2012 and as respondent No. 11 in W.P. No. 34683 of 2011 whereas the candidate at Sl. No. 10 (Sunitha Gandham) is arrayed as respondent No. 14 in W.P. No. 894 of 2012 and as respondent No. 12 in W.P. No. 34683 of 2011. So far as the candidate at Sl. No. 12 (Dunna Ramulu) is concerned, he is arrayed as respondent No. 16 in W.P. No. 894 of 2012 and as respondent No. 14 in W.P. No. 34683 of 2011.
154. It is contended on behalf of the writ petitioners that the above said three candidates are holding full time posts in the State Government and therefore they are ineligible for consideration and selection. It is also contended that the post of Assistant Public Prosecutor is not a temporary post or tenure post but it is a State service governed by the Special Rules made under Article 309 of the Constitution of India and therefore the selection of the above said candidates is illegal being contrary to Article 233(2) of the Constitution of India.
155. The said three candidates in their respective counter-affidavits admitted that they are working as Assistant Public Prosecutors by the date of submission of their applications in response to the advertisement dated 18/19.08.2010. However it is pleaded that the nature of duties required to be performed by them are to act or plead in Courts on behalf of the State and thus they continue to be the advocates for the purpose of the Advocates Act, 1961 and the Rules made thereunder and therefore they are eligible for appointment to the post of District Judge.
156. It is pleaded by Yadavalli Lakshmana Rao in his counter affidavit that he enrolled himself as an Advocate on the rolls of A.P. State Bar Council on 06.04.2000 and practiced in the Courts at Nellore and Hyderabad for about 8 years. Thereafter, he was appointed as Assistant Public Prosecutor on 03.05.2008. The other candidate Sunitha Gandham in her counter-affidavit has stated that she enrolled herself as an advocate on the rolls of A.P. State Bar Council on 01.07.1999 and practiced as an advocate at Vijayawada for about 9 years. Thereafter, she was appointed as an Assistant Public Prosecutor in the year 2008. Similarly, Ramulu Dunna, the other candidate whose selection is also questioned on the same ground filed his counter affidavit stating that he enrolled himself as an Advocate on the rolls of A.P. State Bar Council on 17.06.1999 and practiced as an advocate at Hyderabad for about 9 years and thereafter he was appointed as an Assistant Public Prosecutor in the year 2007. It is further stated that he belongs to SC category and is a physically challenged person.
157. All of them pleaded that they have never suspended their practice and that they are continuing on the rolls of the Bar Council of State of Andhra Pradesh and therefore, despite their being appointed as Assistant Public Prosecutors, they continue to be the advocates and are eligible for recruitment to the posts of District Judges.
158. Dr. K. Lakshmi Narasimha and Sri C. Ramachandra Raju, the learned counsel appearing for the writ petitioners vehemently contended that the posts of Assistant Public Prosecutors are full time posts of the State Government, and therefore the bar under Article 233(2) of the Constitution of India is attracted.
159. Relying upon Rule 49 of the Bar Council of India Rules which provides that an advocate who is a full-time salaried employee of any person or Government ceases to practice as an advocate so long as he continues in such employment, it is also contended that they cannot be treated as practicing advocates after their appointment as Assistant Public Prosecutors.
160. On the other hand, Sri P. Venugopal, the learned counsel appearing for the High Court, Sri T. Lakshminarayana and Sri Kondaveeti Ravi, the learned counsel appearing for the above said three candidates working as Assistant Public Prosecutors contended that for the purpose of the Advocates Act, 1961 and the Rules made thereunder all the Law officers, including the Assistant Public Prosecutors, continue to be the advocates since they are regularly practicing before the Courts. It is also pointed out that even by the date of their appointment as Assistant Public Prosecutors, all of them have completed 7 years standing at the Bar and therefore the fact that they are working as Assistant Public Prosecutors on the date of submission of their applications is of no consequence.
161. Article 233(2) of the Constitution of India may be reproduced hereunder for ready reference:
233. Appointment of district judges:-
(1) ... .... ... ... ... ...
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment."
A plain reading of Article 233(2) shows that a person to be eligible to be appointed to the post of District Judge by direct recruitment shall not already be in service of the Union or of the State and that he shall be an advocate or a pleader for not less than seven years.
162. We may also refer to Rule 5 of A.P. State Judicial Service Rules 2007, which provides for eligibility for appointment to the category of District Judges by direct recruitment:
5. Eligibility:
1) District Judges: A person to be appointed to the category of District Judges by direct recruitment shall be:
a) An advocate of not less than seven years at the Bar;
b) A person, who has not completed forty five years of age on the first day of the month in which the notification inviting applications for such appointment is published in the Andhra Pradesh Gazette.
c) A person of sound health and active habits and free from any bodily defect or infirmity, which render him, unfit for such appointment.
Provided that the upper age limit in respect of persons belonging to the Scheduled Castes, the Scheduled Tribes and Backward Classes is relaxable by three years.
Provided further that no person shall be eligible for appointment to the category if:
i) he is not a citizen of India.
ii) he is dismissed from service by any High Court;
iii) he has been convicted of an offence involving moral turpitude;
iv) he is or has been permanently debarred or disqualified by the High Court or Union Public Service Commission or any State Public Service Commission from appearing for examinations or selections conducted by it;
v) he directly or indirectly influences the recruitment authority by any means for his candidature;
vi) he has more than one wife living;
vii) she marries knowingly a person having a wife; and
viii) he is arrested in connection with any crime involving moral turpitude and concerned with the same." (emphasis supplied)
163. In the light of the above noticed provisions, we shall now proceed to consider whether the three candidates in question, who are working as Assistant Public Prosecutors as on the date of submission of their applications in response to the advertisement dated 18/19.08.2010 are eligible to be considered for recruitment to the post of District Judges.
164. At the outset, it may be pointed out that the appointment and conditions of service of the Assistant Public Prosecutors in the State are governed by the A.P. State Prosecution Service Rules, 1992 which are made by the Governor of Andhra Pradesh in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India read with Sections 24 & 25 of the Code of Criminal Procedure, 1973. There are seven categories of posts in A.P. State Prosecution Service in which the Assistant Public Prosecutor falls in category-7. Rule 3 which deals with method of appointment provides that the appointment to the category of Assistant Public Prosecutors shall be by direct recruitment and that the appointing authority is the Director of Prosecutions. The appointment to the post of Senior Assistant Public Prosecutor which is category-6 shall be by promotion from the Assistant Public Prosecutors with a service of not less than two years. As per Rule 4, the rules relating to the reservations are also applicable to the direct recruitment to the posts of Assistant Public Prosecutors. Specific qualifications are prescribed under Rule 5 for appointment as Assistant Public Prosecutors by direct recruitment. The qualifications included that they must possess a Bachelors Degree in Law and must have practiced as an advocate and must have not less than 3 years active practice in Criminal Courts in the State. As per Rule 6, the minimum age is prescribed as 30 years and the maximum age as 35 years on the 1st day of July of the year in which the notification for recruitment is made. Rule 7 provides that every person appointed by direct recruitment shall be on probation for a total period of two years on duty within a continuous period of three years. Rule 8 provides that every person appointed by direct recruitment shall undergo immediately after appointment a course of training for such period as may be prescribed by the Director of Prosecutions. Further, every person appointed by direct recruitment as Assistant Public Prosecutor shall before the commencement of the training execute an agreement bond that he shall serve the department for a period of not less than three years after the completion of the training. They shall also pass the Accounts Test for Executive officers within the period of probation. On a reading of the above noticed rules of A.P. State Prosecution Service Rules, 1992 it is clear that the post of Assistant Public Prosecutor is a civil post.
165. Admittedly, the three candidates in question have been appointed as Assistant Public Prosecutors by way of direct recruitment following due process of selection in terms of A.P. State Prosecution Service Rules, 1992. It is also not disputed before this Court that they are entitled to be appointed to the posts of category-6 i.e., Senior Assistant Public Prosecutors and thereafter to the other higher categories by way of promotion in accordance with Rule 3. Therefore, apparently, it is not a tenure post, but a regular service in the State Government.
166. In
167. The provisions of the West Bengal Assistant Public Prosecutors (Qualifications, Method of Recruitment and Conditions of Service) Rules, 1974 are identical to the provisions of the A.P. State Prosecution Service Rules, 1992 and therefore it can be safely concluded that as on the date of submission of applications in response to the advertisement dated 18/19.08.2010, the three candidates in question are in the service of the State.
168. It is also relevant to note that relying upon the decision in Samarendra Das v. State of West Bengal (46 supra), a three-Judge Bench in
38. A distinction is to be borne in mind between appointment of a Public Prosecutor or Additional Public Prosecutor, on the one hand, and Assistant Public Prosecutor, on the other. So far as Assistant Public Prosecutors are concerned, they are employees of the State. They hold civil posts. They are answerable for their conduct to higher statutory authority. Their appointment is governed by the service rules framed by the respective State Governments. (See
39. The appointment of Public Prosecutors, on the other hand, is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. Proviso appended to Article 309 of the Constitution of India is not applicable in their case. Their appointment is a tenure appointment. Public Prosecutors, furthermore, retain the character of legal practitioners for all intent and purport. They, of course, discharge public functions and certain statutory powers are also conferred upon them. Their duties and functions are onerous but the same would not mean that their conditions of appointment are governed by any statute or statutory rule.
169. In the light of the law laid down in the above cited decisions, it is clear that the bar under Article 233 (2) of the Constitution of India is attracted to those persons who are working as Assistant Public Prosecutors as on the date of submission of their applications in response to the notification inviting applications for appointment to the category of District Judges by direct recruitment.
170. However, the learned counsel for the respondents relied upon the decision of a Constitution Bench of the Apex Court in Chandramohan v. State of Uttar Pradesh AIR 1966 SC 1987, wherein it was held that the expression ''the service'' in Article 233(2) of the Constitution of India can only mean the judicial service. The learned counsel have also cited the decision in
171. In CHANDRAMOHAN''S case (48 supra) one of the issues that fell for consideration by the Constitution Bench was whether the Governor could appoint as District Judges persons from services other than the judicial service. Speaking for the Constitution Bench, Sri K. Subba Rao, Chief Justice of India observed:
16. ... ... ... But the real conflict rests on the question whether the Governor can appoint as district Judges persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district Judge? The acceptance of this position would take us back to the pre-independence days and that too to the conditions prevailing in the Princely States. In the Princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Art. 233 (1) stood alone, it may be argued that the Governor may appoint any person as a district Judge, whether legally qualified or not, if he belongs to any service under the State. But Art. 233 (1) is nothing more than a declaration of the general power of the Governor in the matter of appointment of district Judges. It does not lay down the qualifications of the candidates to be appointed or denote the sources from which the recruitment has to be made. But the sources of recruitment are indicated in Cl. (2) thereof. Under Cl. (2) of Art. 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Ch. VI of Part VI of the Constitution "the service of the union or of the State" means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting, viz., the chapter dealing with subordinate Courts, in which the expression "the service" appears indicates that the service mentioned therein is the service pertaining to Courts. That apart, Art. 236 (2) 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. If this definition, instead of appearing in Art. 236, is placed as a clause before Art. 233 (2), there cannot be any dispute that "the service" in Art. 233 (2) can only mean the judicial service. The circumstance that the definition of "judicial service" finds a place in a subsequent Article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression "the service" is used whereas in Arts 234 and 235 the expression "judicial service" is found is not decisive of the question whether the expression "the service" in Art. 233 (2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district Judges. The expressions "exclusively" and "intended" emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined "judicial service" in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district Judge.
172. In that context while posing the question whether the expression ''the service of the Union or of the State'' meant any service of the Union or of the State or whether it meant the judicial service of the Union or of the State it was expressed by the Constitution Bench that the expression ''the service'' in Article 233(2) could only mean the judicial service.
173. Referring to the above said statement of the Constitution Bench that the expression ''the service'' in Article 233(2) could only mean the judicial service it was explained in a later decision in Satya Narain Singh''s case (49 supra) as under:
Two points straightway project themselves when the two clauses of Article 233 are read'': The first clause deals with "appointments of persons to be, and the posting and promotion of. District Judges in any State" while the second clause is confined in its application to persons "not already in the service of the Union or of the State". We may mention here that "service of the Union or of the State" has been interpreted by this court to mean Judicial Service. Again while the first clause makes consultation by the Governor of the State with the High court necessary, the second clause requires that the High court must recommend a person for appointment as a District Judge. It is only in respect of the persons covered by the second clause that there 229 is a requirement that a person shall be eligible for appointment as District Judge if he has been an advocate or a pleader for not less than 7 years. In other words, in the case of candidates who are not members of a Judicial Service they must have been advocates or pleaders for not less than 7 years and they have to be recommended by the High court before they may be appointed as District Judges, while in the case of candidates who are members of a Judicial Service the 7 years rule has no application but there has to be consultation with the High court. A clear distinction is made between the two Sources of recruitment and the dichotomy is maintained.
174. Having regard to the legal position explained in Satya Narain Singh''s case (49 supra), the contention advanced on behalf of the respondents that the bar under Article 233(2) shall be confined only to judicial service needs no consideration.
175. Relying upon another decision of the Apex Court in
176. In SUSHMA SURI''S case (50 supra), the appellant therein was working as Additional Government Advocate in Government of India. She was also advocate on record of the Supreme Court and in response to an advertisement issued by the Delhi High Court, she applied for appointment to Delhi Higher Judicial Service. However, she was not called for interview on the ground that she was not eligible. The Delhi High Court dismissed her writ petition holding that she was not a member of the Bar for the purpose of Rule 7 of the Delhi Higher Judicial Service Rules, 1970 and then the matter was carried to the Supreme Court. The question that arose before the Supreme Court was whether the appellant therein was an advocate for the purpose of Article 233(2) of the Constitution of India and whether she was from the Bar for the purpose of Rule 7 of the Delhi Higher Judicial Service Rules, 1970.
177. Answering the said question in the light of Rule 49 of the Bar Council of India Rules, it was held by the Supreme Court that an advocate employed by the Government or a body corporate as its law officer even on terms of payment of salary would not cease to be an advocate if the condition is that such advocate is required to act or plead in Courts on behalf of the employer. It was also held that the test is not whether such person is engaged on terms of salary or by payment of remuneration but whether he is engaged to act or plead on its behalf in a Court of law as an advocate.
178. Placing reliance upon SUSHMA SURI''S case (50 supra) and reiterating the claim of the three candidates in question that as per the terms of their employment they act and plead in Courts on behalf of the State exclusively, the learned counsel appearing for the respondents argued that the persons working as Assistant Public Prosecutors never ceased to be the advocates and therefore they are eligible to be appointed as District Judges by direct recruitment. In support of the said contention, the learned counsel has also relied upon a Division Bench decision of this Court in
179. However, relying upon
180. Pointing out that the appellant in SUSHMA SURI''S case (50 supra) was working as Additional Government Advocate in Government of India and her services were not governed by any specific set of rules, whereas the three candidates in question are in a regular service of the State, it is contended by the learned counsel for the writ petitioners that the ratio laid down in the said decision is clearly distinguishable on facts. It is also pointed out that the said decision was rendered on the basis of the exception provided in para-2 of Rule 49 of the Bar Council of India Rules, 1975, which does not exist as of today.
181. In this context, it is necessary to refer to some of the relevant provisions of the Advocates Act, 1961 and the rules made thereunder. As per Section 2(1)(a) of the Advocates Act, 1961, ''advocate'' means an advocate entered in any roll under the provisions of the said Act. Section 2(1)(n) defines ''State Roll'' as a roll of advocates prepared and maintained by a State Bar Council u/s 17. As per sub-section (1) (b) of Section 17, every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of all persons who are admitted to be advocates on the roll of the Bar Council under the Act on or after the appointed day. u/s 24 of the Advocates Act, 1961 the persons who may be admitted as advocates on a State roll are specified. Further Section 28 empowers the State Bar Councils to make rules to carry out the purposes of Chapter-III of the Act i.e., admission and enrolment of advocates. Similarly Section 49 empowers the Bar Council of India to make rules for discharging its functions under the Act, particularly with regard to the aspects specified in clauses (a) to (j) of Section 49 (1).
182. In exercise of the said powers conferred u/s 49 of the Act, the Bar Council of India made the Rules called the Bar Council of India Rules, 1975. Chapter II - Part VI of the said Rules provides for standards of professional conduct and etiquette to be observed by the advocates and u/s VII of Chapter II, consisting of Rules 47 to 52, restrictions are imposed on the advocates taking up certain other employments or engaging in business specified therein. For the purpose of the present case, we are concerned with Rule 49 which reads as under:
49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
*[Nothing in this rule shall apply to a Law officer of the Central Government or a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of the State Bar Council made u/s 28(2)(d) read with Section 24(1)(e) of the Act despite his being a full-time salaried employee.
Law officer for the purpose of the rule means a person who is so designed by the terms of appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer].
*[Paras 2 & 3 omitted by Resolution of Bar Council of India, dated 22.6.2001]
183. As could be seen, Para-1 of Rule 49 prohibits an advocate from being a full-time salaried employee. However as per paras- 2 & 3, an advocate who is entitled to be enrolled under the rules of State Bar Council made u/s 28(2)(d) read with Section 24(1) (e) of the Advocates Act and appointed as a Law officer of the Central Government or of State and etc., and is required to act or plead in Courts on behalf of his employer by terms of employment is exempted from the prohibition contained under para-1 despite his being a full-time salaried employee.
184. In the light of the said exception contained in paras-2 & 3 of Rule 49, it was held in SUSHMA SURI''S case (50 supra) that the test is as to what the law officer engaged by the Government does - whether he acts or pleads in Court on behalf of his employer or otherwise.
185. However, paras 2 & 3 of Rule 49 are omitted by virtue of the Resolution of the Bar Council of India, dated 22.6.2001. Consequently, the bar under para-1 of Rule 49 has became absolute and there is no exception to it. Once an advocate is engaged by any person, Government, firm, Corporation or concern as a full-time salaried employee, he shall intimate the said fact to the Bar Council on whose rolls his name appears and thereupon he shall cease to practice as an advocate so long as he continues in such employment.
186. Though it is sought to be contended on behalf of the respondents that the amendment to Rule 49 of the Bar Council of India Rules, 1975 by way of resolution passed by the Bar Council of India has no statutory force, we are unable to agree.
187. Section 49 of the Advocates Act, 1961 empowers the Bar Council of India to make Rules for discharging its functions under the Act and such rules may prescribe in particular with regard to clauses (a) to (j) specified therein. Chapter-II of the Bar Council of India Rules, 1975, which included Rule 49, with which we are concerned in the present case, is made u/s 49 (1) with reference to clause (c). Therefore, it is no doubt true that as per the 1st proviso to Section 49 (1) approval by the Chief Justice of India is required. However, there is neither a plea in the writ petitions nor any other material is produced before us to show that there was no such approval. Therefore, it shall be presumed that the amendment to Rule 49 was properly made in accordance with Section 49 (1) (c) read with the proviso.
188. Hence, the learned counsel for the petitioners are right in submitting that SUSHMA SURI''S case (50 supra) which was decided prior to 22.6.2001 on the basis of the exception contained in paras 2 & 3 of Rule 49 of the Bar Council of India Rules as it existed then, has no relevance for deciding the issue involved in the present case. Moreover, as already noticed above, the appellant in SUSHMA SURI''S case (50 supra) was holding the post of Additional Government Advocate in Government of India only on tenure basis and her conditions of service were not governed by any Service Rules.
189. The other decision cited on behalf of the writ petitioners i.e., Satish Kumar Sharma v. Bar Council of Himachal Pradesh (53 supra) was also decided on the basis of Rule 49 of the Bar Council of India Rules as it stood prior to the amendment dated 22.6.2001. However the earlier decision in SUSHMA SURI''S case (50 supra) was distinguished on facts observing:
... ... .... As is clear from the rules contained in Chapter II of the Rules an advocate has a duty to the court, duty to the client, duty to the opponent and duty to colleagues unlike a full-time salaried employee whose duties are specific and confined to his employment. Rule 49 has a specific purpose to serve when it states that an advocate shall not be a full-time salaried employee of any person, Government, firm, corporation or concern. As already noticed above, Section 24(1) specifically states that a person in addition to satisfying other conditions has also to satisfy the provisions of the Act and the Rules. In other words, the Rules made by the Bar Council of India are to be satisfied. Mere non-framing of rules by a State Bar Council u/s 28(2)(d) read with Section 24(1)(e) of the Act cannot dispense with obedience to Rule 49.
190. The High Court of Allahabad in Sanjay Agarwal v. State of U.P. & Ors. (Civil Miscellaneous WP. No. 20016 of 2007, dated 15.6.2007) and this Court in Thota Padma''s case (51 supra) have merely followed the ratio laid down in Sushma Suri''s case (49 supra).
191. In fact in an earlier decision rendered by a Division Bench of this Court in P. Jeevan v. Chief Secretary to Government of A.P., Hyderabad 1997 (1) ALD 73 while considering an identical question it was held that only practicing advocates who had put in not less than seven years of practice are eligible for appointment as District Judges and that those who are in service other than the Judicial Service on the date of the application are not eligible though they had practiced earlier as members of the Bar for not less than 7 years. It appears that the said decision was not brought to the notice of this Court while deciding Thota Padma''s case (51 supra). Be that as it may, in both the above decisions there was no occasion for this Court to consider the effect of omission of the exception contained in Rule 49 of Bar Council of India Rules.
192. The change in the rule position has been taken note of by the High Court of Madhya Pradesh in Jyoti Gupta''s case (52 supra) while dealing with a question whether a Public Prosecutor or Assistant Public Prosecutor who has been an advocate for not less than seven years is eligible for appointment by direct recruitment to the posts of District Judges (Entry Level) in the M.P. Higher Judicial Service. However it was found that Rule 143 of the State Bar Council of Madhya Pradesh, Jabalpur Rules made by the Bar Council of State of Madhya Pradesh in exercise of the powers conferred by Section 28(2)(d) of the Advocates Act, 1961 contained a specific provision which is in pari materia to paras 2 & 3 of Rule 49 of the Bar Council of India Rules. It was noticed that though Rule 143 of the said Rules provides that a person who is otherwise qualified to be admitted as an advocate, but is either on full or part-time service or employment or is engaged in trade, business or profession, shall not be admitted as an advocate, the proviso (1) to the said Rule 143 says that the said rule shall not apply to any person who is a law officer of the Central Government or of a Government of the State or of any Public Corporation or Body constituted by a Statute. It is also clarified in the said proviso that for the purpose of the said clause, a law officer shall mean a person who is so designated by the terms of his appointment and who by the said terms is required to act and/or plead in Courts on behalf of his employer.
193. In the light of the proviso (1) to Rule 143 of the State Bar Council of Madhya Pradesh, Jabalpur Rules, the Division Bench of Madhya Pradesh High Court in JYOTI GUPTA''S case (52 supra) held that the position of law has not materially altered even after the deletion of the exception contained in paras 2 & 3 of Rule 49 of Bar Council of India Rules by resolution dated 22.6.2001. Accordingly, the ratio laid down in Sushma Suri''s case (50 supra) was followed and it was concluded:
In the result, we hold that if a person has been enrolled as an Advocate under the Advocates Act, 1961 and has thereafter been appointed as Public Prosecutor/Assistant Public Prosecutor or Assistant District Public Prosecutor and by the terms of his appointment continues to conduct cases on behalf of the State Government before the Criminal Courts, he does not cease to be an Advocate within the meaning of Article 233(2) of the Constitution and Rule 7 (1) (c) of M.P. Uchchatar Nyayik Sewa (Bharti Tatha Sewa Shatein) Niyam, 1994 for the purpose of recruitment to the post of District Judge (Entry Level) in the M.P. Higher Judicial Service.
194. Coming to the State of A.P., the Bar Council of the State of Andhra Pradesh made Rules in exercise of the powers conferred by Section 28(2) (d) & Section 24(1) (e) of the Advocates Act, 1961 providing for the conditions subject to which a person may be admitted as an advocate on its roll. However no exception is available in the said Rules to the law officers of the Central Government, Government of a State and etc., who by terms of their appointment are required to act and/or plead in Courts on behalf of their employer. On the other hand, Rule 70 of the Bar Council of A.P. Rules expressly prohibits undertaking full or part-time service of employment or engaging in any trade, business or profession by an advocate. The said Rule 70 of Bar Council of A.P. Rules reads as under:
70. A person who is otherwise qualified to be admitted as an advocate but is either in full or part-time service or employment or is engaged in any trade, business or profession shall not be admitted as an advocate:
Provided however that this rule shall not apply to:-
(i) Any person who is an Articled Clerk of an Attorney;
(ii) Any person who is an assistant to an Advocate or to an Attorney who is an advocate;
(iii) Any person who is in part-time service as a Professor/Lecturer or Teacher-in-Law;
Provided that in the opinion of the State Bar Council the nature of employment does not conflict with his professional work, and is not inconsistent with the dignity of the profession. This shall be subject to such directions, if any, as may be issued by the Bar Council of India from time to time.
(iv) Any person who by virtue of being a member of a Hindu joint family has an interest in a Joint Hindu family business, provided he does not take part, in the management thereof and
(v) Any class of persons as the Bar Council may from time to time exempt with the approval of the Bar Council of India.
195. It may also be added that as per Section 24 of the Advocates Act, 1961, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the conditions specified therein. One of the conditions so specified in clause (e) of Section 24(1) is fulfillment of such other conditions as may be specified in the rules made by the State Bar Council under Chapter III. Therefore, compliance with Rule 70 of A.P. State Bar Council Rules is mandatory for a person to be qualified to be admitted as an advocate on a State roll.
196. On a combined reading of Rule 49 of the Bar Council of India Rules as it stands as of today and Rule 70 of the Rules of Bar Council of State of Andhra Pradesh, it is clear that the bar provided under the said Rules is absolute and no exception is available in the State of A.P. even if the law officers of the Central Government or of State Government even if they are engaged to act or plead in the Courts on behalf of their employer as per the terms of their appointment.
197. Though Jyoti Gupta''s case (52 supra) cited on behalf of the respondents was rendered after the amendment to Rule 49 of the Bar Council of India Rules, apparently the said decision was based upon the proviso to Rule 143 of the Madhya Pradesh State Bar Council Rules which contained an exception to the bar provided under Rule 143. No such rule is available in the Rules of the Bar Council of State of A.P.
198. The learned counsel for the respondents, however, made an attempt to contend that Rule 70 of the Bar Council of A.P. Rules also contains a proviso similar to the exception contained in Rule 143 of Madhya Pradesh State Bar Council Rules. To substantiate their plea, they relied upon the Bar Council of A.P. Rules as they stood in the year 1999. However, we have observed that Rule 70 of the Bar Council of A.P. Rules existing as on today does not contain any such exception. We are also informed by the A.P. State Bar Council that Rule 70 of the A.P. State Bar Council Rules was amended so as to make it in conformity with Rule 49 of the Bar Council of India Rules. However the exact date of amendment could not be furnished.
199. Be that as it may. Even assuming that Rule 70 does contain an exception as claimed by the respondents, on deletion of paras 2 & 3 of Rule 49 of the Bar Council of India Rules, we are of the opinion that there is no scope for falling back on the rules of the State Bar Council made u/s 28(2)(d) read with Section 24 (1) (e) of the Advocates Act. Therefore even if any provision akin to the 1st proviso to Rule 143 of Rules of Madhya Pradesh State Bar Council is available, it cannot be of any assistance to contend that the law officer who is required to act and/or plead in Courts on behalf of his employer is exempted from the bar under Rule 49 of the Bar Council of India Rules despite his being a full-time salaried employee.
200. We may also add that a Division Bench of the Karnataka High Court in Mallaraddi H. Itagi & Others v. The High Court of Karnataka (W.P. Nos. 47330 to 47339 of 2001) by judgment dated 1.3.2002 held that the petitioners therein who were the Government Servants holding the regular posts of Assistant Public Prosecutors and Public Prosecutors, etc., were not eligible to be considered for appointment as District Judges.
201. In the said case, the question that arose for consideration was whether the petitioners therein who were working as Assistant Public Prosecutors or Senior Assistant Public Prosecutors on the date of submission of their applications for appointment of the District Judges are eligible to be considered for recruitment. Holding that the decision in Sushma Suri''s case (50 supra) was not applicable, the Division Bench answered the said question in negative. Confirming the view taken by the Division Bench on appeal, the Supreme Court held in Civil Appeal Nos. 947-956 of 2003:
... ... After considering the concerned Rules as also the provisions of Article 233(2), we have no hesitation in holding that since the appellants were members of the regular Government service having been regularly employed under the State Government Rules called "Karnataka Department of Prosecution and Government Litigation Recruitment Rules, 1962" they could not be said to be the Advocates while serving as Assistant Public Prosecutors or Public Prosecutors.
202. Therefore, in our considered opinion, neither SUSHMA SURI''S case (50 supra) nor any of the other decisions cited by the learned counsel for the respondents is of any assistance to support their contention that notwithstanding the fact that an advocate is a law officer on payment of full-time salary, he continues to be an advocate on the rolls of the Bar Council.
203. In the light of the above discussion, it can safely be concluded that all the three candidates in question ceased to be the advocates on being appointed as the Assistant Public Prosecutors and thus they cannot be treated as advocates as on the date of submission of their applications in response to the advertisement dated 18/19.08.2010.
204. However, as could be seen from the dates of their enrolment as advocates on the rolls of the Bar Council of A.P., all of them have completed seven years standing even by the date of their respective appointments as Assistant Public Prosecutors.
205. Hence the next question that requires consideration is whether it is necessary for a person to be an advocate on the rolls of the State Bar Council as on the date of submission of the application or is it sufficient if he possessed the requisite seven years standing at the Bar.
206. Referring to the expression used in Rule 5 of the A.P. State Judicial Rules, 2007, i.e., ''shall be an advocate of not less than seven years standing at the Bar'', it is contended on behalf of the respondents that it cannot be presumed that a candidate eligible for appointment to the post of District Judge must be a practicing advocate on the date of submission of his application.
207. Per contra, the learned counsel for the writ petitioners relied upon the decision of the Karnataka High Court in Mallaraddi H. Itagi & Others v. The High Court of Karnataka (W.P. Nos. 47330 to 47339 of 2001), wherein the validity of Rule 2 of the Karnataka Judicial Services (Recruitment) Rules 1983, which prescribed the qualification that the applicant ''must be practicing on the last date fixed for submission of application as an advocate and must have so practiced for not less than seven years as on such date'' was upheld. Pointing out that the above said decision of the High Court was confirmed by the Supreme Court in C.A. Nos. 947-956 of 2003, it is contended on behalf of the writ petitioners that it is essential for an applicant to be a practicing advocate by the date of submission of application.
208. At the outset we may point out that Rule 2 of Karnataka Judicial Services (Recruitment) Rules 1983, itself contains a specific provision that the applicant must be a practicing advocate on the date of submission of application. The validity of the said Rule was questioned before the High Court of Karnataka contending inter alia that such requirement would amount to prescribing a higher qualification than the one prescribed under Article 233(2) of the Constitution of India. The said contention was not accepted by the High Court holding that the qualification prescribed in Article 233(2) of the Constitution of India that ''not less than seven years as an advocate'' is the minimum qualification and that it does not prevent the Rule making authority from prescribing higher qualification. It was also held that the qualification prescribed in Rule 2 cannot be considered as either arbitrary or unreasonable or discriminatory in nature or violative of the rights guaranteed under Article 14 of the Constitution of India.
209. Apparently, the language employed in Rule 5 of the A.P. State Judicial Service, 2007 is different. The said rule does not provide that the applicant must be practicing by the date of submission of his application as an advocate. In the absence of such express provision, the ratio laid down in Mallaraddi H. Itagi & Others v. the high court of karnataka (W.P. Nos. 47330 to 47339 of 2001) cannot be taken as a precedent to conclude that the applicant must be a practicing advocate as on the date of submission of application in response to the notification.
210. However, we find that Rule 3 of the repealed A.P. State Higher Judicial Service Rules, 1958 prescribed a similar qualification i.e., "a person shall be an advocate or a pleader of not less than seven years standing at the Bar" for direct recruitment of District & Sessions Judges. The meaning of the language employed in the said rule and the object of such requirement were considered in detail by a Division Bench of this Court in P. Jeevan''s case (53 supra). Referring to the decision of the Supreme Court in
... ... We are of the view that Rules 2 and 3 of H.J.S. Rules providing for direct recruitment from the Bar and the qualifications therefor clearly entail that for direct recruitment a person should be an advocate i.e., should be practising the profession of law and should also have not less than seven years standing at the Bar. ... ...
211. While respectfully agreeing with the opinion expressed by the Division Bench in P. JEEVAN''S case (54 supra), we may also add that permitting a person who is not a practicing advocate on the date of submission of application would amount to giving an interpretation contrary to the scheme of the Constitution of India that the judiciary shall be an independent service. If such interpretation is given, it would permit appointment as District Judges of those persons, who had been advocates for not less than seven years, but ceased to be advocates and are in other avocations or professions or services unrelated to the legal profession. It seems to us that the very intendment of Article 233(2) is appointment of a person who is actually practicing the profession of law. Any other interpretation would enable a person who at the time of submission of application is in a service unrelated to profession of law but completed seven years standing at the Bar sometime back to qualify himself for appointment to the post of District Judge. This is what the Supreme Court had actually deprecated in Chandramohan''s case (48 supra) while answering the question whether the Governor can appoint a person who is in the Police, Excise, Revenue or such other service as a District Judge.
212. In the light of the above discussion, in our considered opinion a person shall continue to be on the rolls of Bar Council on the date of submission of application. It may be true that the three candidates who are working as Assistant Public Prosecutors are acting/pleading in the Courts on behalf of the State. However, as per Rule 49 of the Bar Council of India Rules read with Rule 70 of the Rules of Bar Council of State of Andhra Pradesh, they ceased to be the advocates on their appointment as Assistant Public Prosecutors i.e., as full-time salaried employees in the service of the State and they continued to be so as on the date of submission of their applications in response to the advertisement dated 18/19.08.2010. The mere fact that they did not suspend their practice on being appointed as Assistant Public Prosecutors, in our opinion is of no consequence. Once it is admitted that they are appointed as full-time salaried employees in State service, automatically they cease to be the advocates as per Rule 49 of the Bar Council of India Rules.
213. For the aforesaid reasons, the selection of the three candidates shown at Sl. Nos. 9, 10 and 12 in the list of provisionally selected candidates dated 22.12.2011 who are serving as Assistant Public Prosecutors cannot be sustained.
Point No. 5: Whether the decision of the High Court that the candidates at Sl. No. 5 and Sl. No. 17 in the list of provisionally selected candidates have satisfied the requirement of 7 years standing at the Bar in spite of the fact that they went abroad for higher studies after their enrolment on the rolls of State Bar Council, is correct?
214. It is alleged by the petitioners that the candidate at Sl. No. 5 of the provisionally selected list by name Sasidhar Reddy Sura though stated to have 7 years and 2 months standing at the Bar by 1.8.2010 since he went abroad for further studies during the said period for about 9 months, it cannot be said that he possessed the prescribed 7 years standing at the Bar. Thus it is contended that the action of the High Court in allowing him to participate in the selection process itself is illegal and consequently his provisional selection is liable to be set aside.
215. In the counter affidavit filed by the said candidate by name Sasidhara Reddy Sura, the fact that he pursued studies for a Master of Laws Degree in United States for a period of nine months from September, 2006 to May, 2007 is not disputed. However it is contended that there is nothing in the provisions of the Advocates Act, 1961 and the various rules framed by the Bar Council of India and the A.P. State Bar Council prohibiting an advocate from undertaking postgraduate studies. It is further contended that there is not even a requirement to inform the Bar Council or seek its permission for pursuing postgraduate study and on the other hand, the Bar Council of India by Resolution No. 160 of 2009, dated 20.12.2009 had permitted the practicing advocate to undertake regular L.L.M. without suspending practice. That apart, a Master of Laws Degree has always been considered a higher qualification both in the practice of law as well as in the judicial service. The prescription of seven years standing is only to ensure a level of familiarity with the procedure of the Courts and knowledge of the law. Therefore, such specialization is to be considered to be only in furtherance of professional career. It is also stated that the fact that he had pursued further studies in United States for a period of nine months was mentioned in the application submitted by him in response to the advertisement dated 18/19.08.2010 and having found the same to be proper he was allowed by the High Court to participate in the selection process.
216. In the counter affidavit filed on behalf of the High Court, it is explained that his application was scrutinized in terms of the decision in SUSHMA SURI''S case (50 supra) and accordingly, hall ticket was issued to him treating him as eligible candidate.
217. Reiterating the above said submissions and drawing the attention of this Court to various provisions of the Advocates Act and the Rules made thereunder, Sri S.R. Ashok, the learned Senior Counsel and Sri P. Venu Gopal, the learned Counsel appearing for the High Court contended that the Bar Council had prohibited only employment and business but not pursuit of academic excellence.
218. It is also brought to our notice that the Bar Council of India passed a resolution at its meeting held on 20.12.2009 vide Resolution No. 160/2009 resolving that the practicing advocates can join in LLM course as a regular student without suspending the practice.
219. In the light of the said resolution, it is contended by the learned counsel for the respondents that the nine months period during which the candidate pursued LLM course in United States was rightly taken into consideration by the High Court while reckoning his period of standing at the Bar.
220. On the other hand, the contention on behalf of the petitioners is that the admitted fact that the candidate was out of the country for a period of nine months itself is sufficient to hold that the said period cannot be included for the purpose of reckoning his standing at the Bar. Even assuming that there is no prohibition under the Advocates Act and the Bar Council of India Rules to pursue LLM Course as a regular student, it is contended by the learned counsel for the petitioners that as the candidate was not physically present in the country, the said period cannot be counted and the High Court of A.P. ought to have rejected his application at the threshold.
221. Relying upon Syed Rahamtullah Khadri v. Govt. of A.P.56 it is vehemently contended by the learned counsel for the petitioners that actual practice is necessary for the purpose of reckoning the standing at the Bar. In the said case, the petitioner therein who was a practicing advocate at Chirala was working as a Part-time Lecturer at Karimnagar. Having regard to the fact that Chirala is 500 kms far away from Karimnagar, a Division Bench of this Court held that it was not possible to practice and teach and thus rejected his claim that he was also practicing at Chirala during that time.
222. As could be seen from the pleadings, the fact that the candidate at Serial No. 5 went abroad for a period of nine months from September, 2006 to May, 2007 to pursue the post-graduation course is not in dispute. If the said period of nine months is excluded, he does not satisfy the requisite seven years standing at the Bar as on 1.8.2010 is also not disputed before this Court.
223. However, the contention on behalf of the respondents is that no provision of the Advocates Act prohibits any advocate from pursuing further studies in law and as such, the period of his further studies in U.S.A. for nine months was rightly taken into consideration by the High Court.
224. Article 233 of the Constitution which provides for appointment of District Judges reads as under:
233. Appointment of district judges:- (1) Appointments of persons to be, and the posting and promotion of, district judges, in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
(Emphasis supplied)
225. In terms of Article 233 (2) of the Constitution of India, a specific provision is made in Rule 5 (1) (a) of A.P. State Judicial Service Rules, 2007 prescribing that a person to be appointed to the category of District Judges by direct recruitment shall be an advocate of not less than seven years standing at the Bar.
226. However, the question that requires consideration is whether the period of nine months during which the candidate had pursued higher studies in United States can be taken into consideration while reckoning the seven years standing at the Bar.
227. Section 2 (a) of the Advocates Act, 1961 defines the expression "advocate" as:
''Advocate'' means an advocate entered in any roll under the provisions of this Act.
228. As per Section 17 (1) (b) of the Advocates Act, 1961, every State Bar Council shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of the persons who are admitted to be advocates on the roll of the State Bar Council under the said Act on or after the appointed day. Section 49 of the Advocates Act, 1961 empowers the Bar Council of India to make rules for discharging its functions under the said Act. Section 49 (1) (ah) stipulates that the Bar Council of India may make rules prescribing the conditions subject to which an advocate shall have the right to practice and the circumstances under which a person shall be deemed to practice as an advocate in a Court. Chapter III of part VI of the Bar Council of India rules made u/s 49(1) (ah) of the Advocates Act, 1961 does not require that an advocate pursuing higher studies in law shall suspend his practice. It is also relevant to note that Chapter II of the part VI of the BCI Rules made u/s 49(1) (c) of the Advocates Act, 1961 which provided for the standards of professional conduct and etiquette, does not impose any restriction on the advocates pursuing higher studies in law. The Rules contained in Section VII of Chapter II are as under:
47. An advocate shall not personally engage in any business; but he may be a sleeping partner in a firm doing business provided that in the opinion of the appropriate State Bar Council, the nature of the business is not inconsistent with the dignity of the profession.
48. An advocate may be a Director or Chairman of the Board of Directors of a Company with or without any ordinary sitting fee, provided none of his duties are of an executive character. An advocate shall not be a Managing Director or a Secretary of any Company.
49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.
50. An advocate who has inherited, or succeeded by survivorship to a family business may continue it, but may not personally participate in the management thereof. He may continue to hold a share with others in any business which has descended to him by survivorship or inheritance or by will, provided he does not personally participate in the management thereof.
51. An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.
52. Nothing in these rules shall prevent an advocate from accepting, after obtaining the consent of the State Bar Council, part-time employment provided that in the opinion of the State Bar Council, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives if any as may be issued by the Bar Council of India from time to time.
229. A reading of the above Rules shows that an advocate shall not personally engage in any business and shall not be a Managing Director or a Secretary of any company. Similarly an advocate shall not be a full-time salaried employee of any person, Government and etc. If he takes up any such employment he shall intimate to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment. There is also a bar that the advocate should not personally participate in the management of a family business. However as per Rule 51 an advocate can edit legal text books at a salary, he can do press-vetting for newspapers, he can coach pupils for legal examination, he can set and examine question papers. He can also engage in broadcasting, journalism, lecturing and teaching subjects both legal and non-legal subject to the rules against advertising and full time employment. Rule 52 further provides that an advocate with the consent of the State Bar Council can accept part time employment provided that in the opinion of the State Bar Council the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession.
230. As could be seen, none of the above rules prohibits an advocate from undertaking post-graduation course or any further studies. Nothing in the above rules either expressly or by necessary implication requires seeking permission of the State Bar Council or suspending his practice during the period when an advocate undertakes further studies either part time or full time.
231. The Advocates Act and the Rules made thereunder are also silent as to the steps required to be taken when an advocate on rolls of the State Bar Council goes out of the country for pursuing higher studies or in connection with his personal work. There is no provision requiring the advocate even to suspend his practice when he is out of the country. Therefore, it can be safely concluded that there is no prohibition as such for pursuing further studies in Law as a regular course.
232. Be it noted that as per Article 233 (2) of the Constitution of India the only requirement is that the candidate should be an advocate for a minimum period of seven years. Rule 5 (1) (a) of A.P. State Judicial Service Rules, 2007 also contains a similar provision. Though the 2nd proviso to the said Rule specified certain disqualifications, the same have nothing to do with pursuing higher studies by an advocate.
233. Therefore, on a combined reading of the definition of advocate u/s 2 (a) of the Advocates Act together with the other provisions under the Bar Council of India Rules noticed above, particularly in view of the fact that the advocate is not required to suspend his practice while pursuing further studies in Law either in India or abroad, we are of the opinion that it is sufficient if it is made out that the candidate has been on the rolls of the State Bar Council as an advocate for a minimum period of seven years.
234. Therefore, the contention on behalf of the petitioners that the nine months period during which the candidate at Sl. No. 5 pursued LLM Course in United States ought to have been excluded while reckoning his standing at the Bar deserves to be rejected.
235. So far as the candidate at Sl. No. 17 in the list of provisionally selected candidates by name Yara Renuka is concerned, though there was no plea in any of the writ petitions, it is contended across the Bar on behalf of the petitioners that she did her LLM course in U.S.A. during 2001-2004 and therefore she has not satisfied the requirement of seven years standing at the Bar.
236. The above said allegation is denied in the counter-affidavit filed by the said candidate Yara Renuka. It is explained in her counter-affidavit that she enrolled herself as an advocate on the rolls of A.P. Bar Council on 16.4.1999 and that she practiced in the Courts at Hyderabad upto August, 2001. She joined LLM Course in Temple University, Philadelphia, U.S.A. and completed the said course in May, 2002. Thereafter, she obtained the Newyork Bar Certificate in March, 2004. However, due to personal reasons, she returned to India in December, 2004 and continued her practice at Hyderabad. Thus it is explained by her that even after excluding the period from August, 2001 to December, 2004, she had put in 8 years 1 month and 14 days of practice as on 1.8.2010.
237. The record placed before this Court by the High Court shows that all the aforesaid facts were disclosed by her while making the application and after considering the same as well as certain clarifications called for, she was rightly held eligible to appear for the written examination and oral interview.
Point No. 6: Whether the selection of the candidate at Sl. No. 4 is liable to be declared illegal on the ground that she is in full time employment with M/s. Pro Agro Seed Company Private Limited?
238. It is alleged on behalf of the petitioners that the provisionally selected candidate at Sl. No. 4 (Rama Devi Sai) is a full time salaried employee of M/s. Pro Agro Seed Company Private Limited and as such as per Rule 49 of the Bar Council of India Rules, she is not eligible to be considered for the post of District & Sessions Judge.
239. In the counter-affidavit filed by the said candidate (Rama Devi Sai) it is stated that she was enrolled as an advocate on 3.2.2000 on the rolls of the Bar Council of A.P. and that she has been practicing since then. In the month of March, 2003, she was offered appointment by M/s. Pro Agro Seed Company Private Limited (now known as Bayer Crop Science Group) a company incorporated under the provisions of the Indian Companies Act, 1956 as Law officer and she was appointed as such on 14.2.2003. The essential functions entrusted to her are to act and plead on behalf of the company which is a body corporate. It is stated that she never suspended the membership of the Bar Council and that she has been practicing in various Courts / Tribunals / Consumer Redressal Fora / Statutory Authorities / Quasi Judicial Authorities / Bodies etc., throughout India. Thus it is contended that she is eligible to be considered for the post of District & Sessions Judge in the light of the ratio laid down in SUSHMA SURI''S case (50 supra).
240. Reiterating the stand taken in the counter-affidavit, Sri E. Madanmohana Rao, the learned counsel appearing for the said candidate contended that having regard to the nature of duties required to be performed by her as Law officer of M/s. Pro Agro Seed Company Private Limited i.e., to act and plead in Courts on behalf of the said Company mainly and exclusively, particularly keeping in view that she has not suspended her practice she never ceased to be an advocate. Thus it is contended that her selection is in accordance with law.
241. While dealing with Point No. 4, we have already considered the above said contention in detail. Having regard to the fact that the exception contained in paras 2 & 3 of Rule 49 of the Bar Council of India Rules was omitted long back and even under Rule 70 of the Rules of A.P. State Bar Council no exception is provided to a Law officer of the Government or of any Public Corporation or body constituted by a statute, and on the other hand Rule 70 expressly prohibits a person in full or part time service to be admitted as an advocate, we have concluded that once an advocate is engaged as full-time salaried employee he ceases to be a member of the bar.
242. For the same reasons the candidate at Sl. No. 4 in the list of provisionally selected candidates, who is admittedly working on full time service as the Law officer of a company as on the date of submission of her application is ineligible for consideration. We have also observed that she was enrolled as an advocate in the year 2000 and after practicing for about 3 years she was appointed as Law officer of the said company. Admittedly she is continuing as such as on the date of submission of her application in response to the notification dated 18/19.08.2010. Thus, virtually, she had put in only 3 years standing at the bar. Therefore, in our considered opinion her selection cannot be sustained.
PIL W.P. No. 10 of 2012:
243. A preliminary objection has been raised on behalf of the respondents as to the maintainability of the writ petition relying upon
244. However it is contended by Sri Prabhunath Vasireddy, the petitioner appearing-in-person, that since he is seeking observance of a Constitutional provision, the writ petition is maintainable by way of Public Interest Litigation. It is also contended that since the process of the selection is still going on and is not concluded, it cannot be held to be a service matter. The further contention is that the post of District Judge is not a mere executive post but it falls under judicial service covered by Article 236 (b) of the Constitution of India. He also relied upon Rule 3 of the A.P. State Judicial Service Rules, 2007 and
245. It is to be noticed that the contentions advanced by the petitioner with regard to the validity of selection of the candidate at Sl. No. 5 have already been considered by us in detail and decided in Points 3 and 5 supra. Since the grounds raised by the petitioner are already decided on merits, we are not inclined to record any finding as to the maintainability of PIL W.P. No. 10 of 2012.
Conclusion:
246. For the reasons stated above and in the light of the issues decided, we conclude as under:
(i) The amendment to Rule 6 (4) & (10) of A.P. State Judicial Service Rules, 2007 vide G.O.Ms. No. 132, dated 16.11.2011 is valid and enforceable.
(ii) The finalization of the selections without insisting on the requirement of minimum marks in the viva voce/interview in terms of Rule 6(4) as amended by G.O.Ms. No. 132 dated 16.11.2011 has not vitiated the selection process.
(iii) The selection of the candidates of less than 35 years of age is impermissible under law being contrary to the law declared by the Supreme Court in
(iv) The persons who are working as Assistant Public Prosecutors as well as the persons who are in full-time employment/service as on the date of submission of their applications in response to the notification inviting applications for appointment to the category of District Judges by direct recruitment are not eligible to be considered.
(v) In the absence of any express provision under the Advocates Act or the Rules made thereunder prohibiting pursuing further studies in law as a regular course, there is no need to exclude the period during which the candidate pursued further studies in law in a foreign country.
247. In view of the above conclusions, all the Writ Petitions are disposed of as under:
(a) The selection of the candidates at Sl. Nos. 3, 6, 7 & 13 in the list of provisionally selected candidates which is not challenged in any of the writ petitions is upheld.
(b) The selection of the candidates at Sl. Nos. 1, 2, 8, 11, 14 & 15 which was made without insisting on minimum marks in viva voce as per the amended Rule 6 (4) is valid.
(c) The selection of the candidate at Sl. No. 17 is valid.
(d) The selection of the candidates at Sl. Nos. 5 and 16 in the list of provisionally selected candidates dated 22.12.2011 is not valid and cannot be sustained since they failed to satisfy the minimum age requirement of 35 years as on the date of submission of their applications.
(e) The selection of the candidate at Sl. No. 9 in the list of provisionally selected candidates dated 22.12.2011 is not valid and cannot be sustained since he is serving as an Assistant Public Prosecutor as on the date of submission of his application and also on the ground that he has not satisfied the minimum age requirement of 35 years.
(f) The selection of the candidates at Sl. Nos. 10 & 12 in the list of provisionally selected candidates dated 22.12.2011 is also not valid and cannot be sustained since they are serving as Assistant Public Prosecutors as on the date of submission of their applications and are ineligible for consideration.
(g) The selection of the candidate at Sl. No. 4 in the list of provisionally selected candidates dated 22.12.2011 is not valid and cannot be sustained since she is in full-time employment in a Private Limited Company as on the date of submission of her application and ineligible for consideration.
All the Writ Petitions are accordingly disposed of with a direction to delete the above said 6 ineligible candidates from the list of provisionally selected candidates dated 22.12.2011 and to prepare a fresh category wise merit list with reference to the roster points and the total marks secured in the written examination and the interview. No costs.
