Adv. R. Krishnamurthy Vs The Principal Secretary to Government Home Department, Government of Tamil Nadu Secretariat, Chennai 9 and The Registrar General, Hon'ble High Court of Judicature at Madras Chennai 104

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Judgment

346 paragraphs · 19,991 words

Ms. Justice K. Suguna

Since the issue involved in all these writ petitions is one and the same, these writ petitions are decided by this common order. W.P. No. 1932 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the entire records relating to Home Department Notification dated 21/01/2012, Government of Tamil Nadu calling for applications for the post of Civil Judge from the file of the first respondent and to quash the same and consequently direct the respondent to issue a fresh Notification in connection with the same direct recruitment, in accordance with law.

2.1 W.P. No. 2141 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for records pertaining to the impugned notification dated 21.1.2012 and in particularly clause 3 (A) of the notification issued by the 1st respondent and to quash the same and consequently direct the respondents to relax the age limit to the fresh law graduates.

2.2 W.P. No. 2353 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records pertaining to the notification issued by the 1st respondent dated 21.1.2012 and to declare the impugned clause I (ii) (a) of educational qualification of the notification as ultra vires and unconstitutional.

2.3 W.P. No. 2363 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records in respect of notification dated 21.1.2012 calling for the application to write Civil Judge examination and to quash the provisions of clause prescribing minimum three years practice as an advocate to write the examination and consequently direct the respondents 1 and 2 to permit the petitioner to apply for the post of Civil Judge and to write examination and also to attend viva voice as per notification.

2.4 W.P.No.2457 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for records from the 1st respondent pertaining to the impugned Notification dated 13.9.2011 and its consequent Notification dated 21.01.2012 in particularly Clause 3(A) of the Notification and quash the same and consequently direct the respondents to relax the age limit as no age limit.

2.5 W.P. No. 2537 of 2012 is filed for the issuance of a writ of certiorari to call for the records of the Notification calling for Applications for the post of Civil Judge dated 21.1.2012 issued by the 1st respondent and quash the same.

2.6 W.P. No. 2566 of 2012 is filed for the issuance of a writ of certiorari to call for the concerned records relating to G.O.Ms.No.81 Home (Courts-I) Department dated 13.01.2012 issued by the 2nd Respondent and the consequential notification dated 21.01.2012 issued by the 2nd respondent calling for the applications for appointment of 185 posts of Civil Judge in the Tamil Nadu State Judicial Service and quash both the orders.

2.7 W.P. No. 2549 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records relating to Notification dated 21.1.2012 of the 1st respondent and quash the same in so far as it relates to imposing age restriction in 3 (A) of the said Notification and consequently direct the respondents to permit the petitioner to apply and participate in the selection pursuant to the Notification dated 21.1.2012 for the post of Civil Judge.

2.8 W.P. No. 2652 of 2012 is filed for the issuance of a writ of declaration declaring para (3) in column (4) in serial No. 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules as amended and the consequential notification dated 21.1.2012 issued by the 1st respondent as unconstitutional and void.

2.9 W.P. No. 2916 of 2012 is filed for the issuance of a writ of certiorari to call for the records on the file of the 1st respondent in proceedings Nil dated 21.1.2012 and quash the proceedings therein as illegal, incompetent, irregular and without authority of law.

2.10 W.P.No.2960 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for records from the 1st respondent pertaining to the impugned notification dated 13.09.2011 and its consequent notification dated 21.01.2012 in particularly Clause 3(A) of the notification and quash the same and consequently direct the respondents to relax the age limit as no age limit.

2.11 W.P.No.2961 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records pertaining to the impugned notification dated 21.01.2012 issued by the 1st respondent and to quash the same as the 1st respondent was acting under the dictation of the 2nd and 3rd respondents and consequently direct the respondents to issue fresh and separate notification for the backlog vacancies numbering about 9 and the current year vacancies.

2.12 W.P. No. 3090 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records of the 1st respondent in his impugned notification dated 21.1.2012 and in particularly clause 3 (a)(1) of the notification issued by the 1st respondent and to quash the same so far as the petitioner is concerned and consequently direct the respondents to relax the age limit to the practising Advocates/Pleaders and APPs.

2.13 W.P.No.3201 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the entire records connected with the Impugned Notification calling for the post of Civil Judge dated 21.1.2012 issued by the 2nd respondent and quash the same and direct the respondents to re-fix the age limit of the fresh Law Graduates (for all Categories) for applying for the post of Civil Judge.

2.14 W.P.No.3210 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for records from the 1st respondent pertaining to the impugned amendment G.O.Ms.No.504, Home (Courts-I) dated 13th September 2011 to the Tamil Nadu State Judicial Service (Cadre and requirement) Rules 2007 and in particularly Rule 5 column (3) and subsequent notification of Civil Judge recruitment dated 21.1.2012 and in particularly clause 3 (A) and to quash the same and consequently to direct the respondents to relax the age limit to the fresh law graduates.

2.15 W.P. No. 3302 of 2012 is filed for the issuance of a writ of declaration declaring para (3) in column (4) in Serial No. 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules as amended dated 19.01.2007 and the consequential notification dated 21.01.2012 issued by the 1st respondent as unconstitutional and void.

2.16 W.P. No. 3308 of 2012 is filed for the issuance of a writ of certiorari to call for the records of the Notification calling for applications for the post of Civil Judge dated 21.01.2012 issued by the 1st Respondent and quash the same.

2.17 W.P. No. 3324 of 2012 is filed for the issuance of a writ of declaration declaring para (3) in the tabular column (4) in serial No. 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules as amended stipulating the calculation of age as on 1st July of the year in which the selection for appointment is made and the consequential notification dated 21.1.2012 issued by the 1st respondent as unconstitutional.

2.18 W.P. No. 3348 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records pertaining to 1st respondent Notification dated 21.01.2012 and set aside the said Notification dated 21.01.2012 in respect of Clause 3(A) (ii) pertains to maximum age limit only and consequently direct the 1st and 2nd respondents herein to relax the maximum age limit for 3 years i.e. from 27 years to 30 years in the Civil Judge (Jr. Division) Recruitment 2012 and allow the petitioner to participate in the Civil Judge (Jr. Division) Examination-2012 if the petitioner meets all other qualifications.

2.19 W.P.No.3364 of 2012 is filed for the issuance of a writ of declaration to declare the Notification dated 21.1.2012 published by the Home Department of Government Tamil Nadu as unconstitutional and illegal insofar as it fails to include service candidates with Degree in Law as eligible for recruitment to the post of Civil Judge.

2.20 W.P.No.3365 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the entire records in connection with the impugned notification of the 1st respondent dated 21.1.2012 and quash the said notification in so far as it relates to the qualification age as contained in clause 3 A (ii) relating to the fresh graduates and consequently direct the respondents 1 and 2 to consider the applications of the petitioners for the post of Civil Judge Tamil Nadu State Judicial Services on merits without reference to the age qualification contained in Clause 3A (ii) relating to fresh graduates.

2.21 W.P. No. 3413 of 2012 is filed for the issuance of a writ of mandamus directing the respondents to include the Clause in respect of service candidates in the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules 2007 as amended in G.O.Ms.No.504, Home (Courts-1) Department dated 13.9.2011 and permit the service candidates of the petitioners Association to write the examination to be held on 24.3.2012 and 25.3.2012.

2.22 W.P.No.3441 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records relating to impugned maximum age criteria of 27 years in column No. 4 of Sl.No.9 under schedule in Rule 5 of Tamil Nadu Judicial Service (Cadre and Recruitment) Rules 2007 and consequential Sl. No. 3 (A)(ii) of notification issued by the 1st respondent dated 21.1.2012 and quash the same and consequently direct the respondents to allow the petitioner to participate in the selection process by accepting his application and issuing Hall Ticket, etc.

2.23 W.P.No.3449 of 2012 is filed for the issuance of a writ of declaration to declare explanation to para (3) in tabular column (4) in serial No. 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules as amended and the consequential notification dated 21.1.2012 issued by the 1st respondent as unconstitutional and void.

2.24 W.P.No.3450 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the records of the 2nd respondent in respect of the Notification dated 21.01.2012 and quash fixing maximum age limit as 40 years for reserved categories in the said Notification dated 21.01.2012 in column 3A (i) maximum age limit 40 years (for reserved categories) of the same for the post of Civil Judge in the Tamil Nadu State Judicial Service vide the above Notification dated 21.01.2012 and consequently direct the 2nd respondent to permit the petitioner to apply and appear for the examination i.e. to be conducted on 24.03.2012 and 25.03.2012 or any other date.

2.25 W.P. No. 3662 of 2012 is filed for the issuance of a writ of declaration declaring that the maximum age limit prescribed as 40 years (Reserved Category) in the impugned notification dated 21.1.2012 issued by the 1st respondent calling for application for the post of Civil Judge in the Tamil Nadu State Judicial Service is unconstitutional, arbitrary and illegal.

2.26 W.P.No.3673 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the concerned records relating to G.O. Ms. No. 81, Home (Courts I) Department dated 13.1.2012 issued by the 2nd respondent and the consequential notification dated 21.1.2012 issued by the 2nd respondent calling for the applications for appointment of 185 posts of Civil Judge in the Tamil Nadu State Judicial Service and quash both the orders.

2.27 W.P.No.3953 of 2012 is filed for the issuance of a writ of declaration declaring Explanation to para (3) in tabular column (4) in Serial No. 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules as amended and the consequential notification dated 21.01.2012 issued by the 1st respondent as unconstitutional and void.

2.28 W.P.No.4150 of 2012 is filed for the issuance of a writ of certiorarified mandamus to call for the entire records in connection with the impugned notification of the first respondent dated 21.01.2012 and quash the said notification insofar as it relates to the qualification, age as contained in clause 3A(i) relating to the practising advocates/pleaders and consequently, direct the respondents 1 and 2 to consider the applications of the petitioners for the post of Civil Judge, Tamil Nadu State Judicial Services on merits without reference to the age qualification contained in clause 3A(i) relating to the practising advocates/pleaders.

2.29 W.P.(MD)Nos.1482 and 1483 of 2012 were filed before the Madurai Bench of this Court and are transferred to this Court for the issuance of a writ of declaration declaring that the Notification dated 21.01.2012 of the 1st respondent calling for applications for the post of Civil Judge in so far as it classified persons eligible to apply into two categories viz., practising Advocates/Pleaders and Assistant Public Prosecutors on the one side and Fresh Law Graduates on the order in class 3(A)(i)(ii) and prescribes a minimum practice of 3 years for practising advocates in Clause 3(B)(i)(ii)(a) etc., and clause 3(B)(ii) and (iv) in respect of fresh law graduates and also fixing their maximum age limit as 27 years as unconstitutional, arbitrary, ultra vires.

2.30 W.P.(MD)Nos.1450 to 1453 of 2012 were filed before the Madurai Bench of this Court and are transferred to this Court for the issuance of a writ of certiorarified mandamus to call for the records of the impugned notification dated 21.01.2012 calling for applications for the post of Civil Judge, on the file of the 1st respondent and quash the same as to the extent of fixing the maximum age limit for fresh candidate as 27 years as illegal and consequently directing the respondents to relax the maximum age limit as 30 years.

2.31 W.P.(MD)No.1454of 2012 was filed before the Madurai Bench of this Court and is transferred to this Court for the issuance of a writ of certiorarified mandamus to call for the records pertaining to the impugned notification dated 21.01.2012 calling for applications for the post of Civil Judge, on the file of the 1st respondent and quash the same as illegal and consequently directing the respondent to take necessary action for re-fixing the maximum age limit as 30 years instead of 27 years as in the Notification dated 21.01.2012 for the interest of the petitioner and some other candidates who pursued their law graduation in three years stream within the time stipulated by this Court.

2.32 W.P.(MD)No.1595 of 2012 was filed before the Madurai Bench of this Court and is transferred to this Court for the issuance of a writ of certiorarified mandamus to call for the records of the impugned notification issued by the 1st respondent dated 21.01.2012 regarding to the post of Civil Judges and quash the same as illegal and consequently direct the 1st respondent to permit the petitioner to write the Civil Judges Exam and consider his appointment as Civil Judge with consequential benefits within a time frame.

2.33 W.P.(MD)No.1915 of 2012 was filed before the Madurai Bench of this Court and is transferred to this Court for the issuance of a writ of certiorarified mandamus to call for the records of the impugned notification dated 21.01.2012 issued by the 1st respondent by the publication in Dinathanthi Newspaper and quash the same and consequently direct the 1st respondent to earmark six vacancies for Scheduled Tribe for carrying forward the unfilled backlog.

The main contention of the learned counsels for the petitioners is with reference to relaxation given to Category 9 of Rule 5 of the Tamil Nadu State Judicial Service (Cadre and Recruitment Rules, 2007 (hereinafter referred to as "the Rules") read with Annexure II, so as to enable the High Court to carry out the exercise of recruitment of 185 Civil Judges (Junior Division) as an one-time measure without the assistance of the Tamil Nadu Public Service Commission (hereinafter referred to as "the TNSPC"). Category 9 of Rule 5 of the Rules reads as under:

Sl. No.

Category

Method of Appointment

Qualification

Civil Judge

By direct recruitment on the basis of written examination and viva voce Examination conducted by the Tamil Nadu Public Service Commission in accordance with the rules specified in the Annexure II to these Rules.

Must possess a Degree in Law of a University in India established or incorporate by or under a Central Act or a state Act or an institution recognized by the University Grants Commission, or any other equivalent qualification and got enrolled in the Bar Council of Tamil Nadu; and in the case of candidates enrolled in the Bar Councils of other States, they should submit proof of transfer of their enrollment to the Bar Council of Tamil Nadu

(and)

Must be practicing as an advocate or Pleader in the High Court or Courts subordinate thereto and must have so practiced for not less than 3 years on the date of the Commission''s Notification for recruitment to the post

(Or)

Must bean Assistant Public Prosecutor having not less than 3 years of experience as an Advocate and/or Assistant Public Prosecutor.

(and)

Age: Must have attained the age of 25 years and must not have attained the age of 35 years in the case of General Category and 40 years in the case of General Reserved Categories, as on the 1st July of the year in which the vacancies in the posts are notified.

(or)

3) Must be a fresh Law Graduate Possessing a degree in law from a recognized University as mentioned in clause (1) above who is eligible to be enrolled or enrolled as an Advocate and who has secured an over all percentage of 50% marks in acquiring such a law degree in case of open categories and 45% marks in respect of other reserved categories. Fresh Law Graduates are those who have obtained the degree of law within a period of three years prior to the date of notification and

Age:Must have attained the age of 22 years and must not have completed the age of 27 years as on1st July of the year in which the selection for appointment is made.

Explanation:-Rules 12 (d)(ii), 52 and 53 of the General Rules for the Tamil Nadu State and Subordinate Services shall not apply for this recruitment.

By this impugned Government Order issued in G.O.Ms.No.81, Home (Courts-I) Department dated 13.01.2012, Rule 5 of the Rules read with Annexure II of the Rules has been relaxed as an one-time measure insofar as the selection process to the post of Civil Judges (Junior Division), i.e., the manner of recruitment has been relaxed by the said notification. As per the Rules, the TNPSC has to conduct the written examination and viva voce. But, a perusal of Rule 5 read with Annexure II of the Rules reveals that in the vital work, viz., setting the question paper and conducting viva voce, the major role is played by the High Court. Of course, there are certain other administrative works, otherwise called as ministerial work, which have to be done by the TNPSC. But, by the impugned Government Order, in the conduct of the said examination and in the selection process, the assistance of the TNPSC is dispensed with and that is under challenge.

The main argument of the learned counsels for the petitioners is that as far as appointment of Judicial Officers is concerned, it is governed by Articles 234 and 320 of the Constitution of India; power has been conferred only on the TNPSC, especially, as per Article 234 of the Constitution of India, appointment of persons other than District Judges to the Judicial service of a State, shall be made by the Governor of the State, in accordance with the rules made in that behalf, after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Apart from this, according to the learned counsels, as per Rule 5 of the said Rules, which has been referred to above, as far as direct recruitment is concerned, written examination as well as viva voce have to be conducted by the TNPSC in accordance with the procedure specified under Annexure II, but, as per the impugned notification, conducting the examination and selecting the candidates have to be done by the High Court without the assistance of the TNPSC; consequently, this impugned notification is contrary not only to the Rules but also contrary to the provisions of the Constitution of India, referred to above.

Yet another stand taken by the learned counsels for the petitioners is that even as far as making appointment to the Judicial service is concerned, as per the Rules, the High Court can only act in consultation with the TNPSC and that consultation should be as among the expert body of the TNPSC, High Court as well as the Government of Tamil Nadu; as far as the cases in hand are concerned, based on the letter of the Registrar General of this High Court dated 02.01.2012, this impugned notification has been issued; consequently, consultation is not in accordance with law. Apart from this, according to them, when an expert body is conferred with the power of conduct of examination and selection, the same cannot be diluted by the impugned Government Order. According to the learned counsels for the petitioners, dispensing with the assistance of the TNPSC by the impugned notification amounts to suspension of the members and the Chairman of the TNPSC. But, according to them, as per Article 317 of the Constitution of India, the power of suspension of the Chairman and the members of the TNPSC can be exercised only by the President of India or by the Governor of the State.

But, according to the learned Senior Counsel appearing for the High Court, in W.P.Nos.29956 and 30080 of 2011, the Government as well as the TNPSC gave consent for taking up the recruitment process for filling up 185 vacancies in the Civil Judges (Junior Division) by the High Court without the assistance of the TNPSC; based on the judgment rendered by the Hon''ble First Bench in the above said writ petitions, there was a correspondence between the three forums viz., the TNPSC, this High Court and the Government. According to the learned Senior Counsel, by the letter of the TNPSC dated 10.01.2012, even the TNPSC has given its consent to take appropriate steps, as an one-time measure, with regard to the recruitment process with reference to 185 vacancies of Civil Judges (Junior Division) by the High Court. Further, according to the learned Senior Counsel appearing for the High Court, based on the consent given by the Government and the TNPSC before the Hon''ble First Bench of this Court, the said writ petitions were disposed of in the following terms:-

21.

We appreciate the fact that the Government and the TNPSC have realised the difficulties which the State Judiciary is facing due to dearth of Judicial Officers. Since the Government and the TNPSC have agreed for the taking up of the recruitment process for Judicial Officers (Junior Division) by the High Court, no further direction needs to be issued in these matters. We expect that, in this regard, as assured by the Advocate General necessary Government Order will be issued forthwith. Consequently, the respondent/High Court is directed to proceed expeditiously after the receipt of Government Order and send the draft advertisement/notification inviting applications for the said post to the Government for its due publication.

Relying on the above said Judgment, according to the learned Senior Counsel appearing for the High Court, in view of the consent expressed by the State Government as well as the TNPSC, further steps were taken and the Government has issued the impugned notification under challenge; consequently, under the prevailing circumstances, Rule 5 of the said rules has been relaxed with regard to the manner of selection process. Further, according to the learned Senior Counsel, as far as the TNPSC is concerned, certain allegations have been levelled not only against the Chairman and members of the said Commission but also against the staff of the said Commission. Based on this, according to him, when such cloud is there as against the TNPSC, especially, when selection and appointment is to judicial service, that work cannot be entrusted to the TNPSC, though it is an expert body; under such exceptional circumstances, the High Court can conduct the said examination based on the impugned notification. In support of these contentions, the learned Senior Counsel also relied on the following Judgments:

State of Sikkim Vs. Dorjee Tshering Bhutia and others, 4. Before dealing with the points involved in the appeals it is necessary to notice the provisions of the rules in some detail. Rule 3 deals with the initial Constitution of the service. It provides that the persons holding the posts mentioned therein would be deemed to be members of the service on the enforcement of the rules. Rule 4 which provides for the method of recruitment to the service is as under:

Method of Recruitment to the Service: (1) Recruitment to the service after the publishment of these rules shall be by the following methods, namely:

(a) Competitive Examinations to be held by the Commission;

(b) Selection from among persons serving in connection with the affairs of the State of Sikkim.

(2) The proportion of vacancies to be filled in any year in accordance with Clauses (a) and (b) above, shall be 50: 50 respectively:

Provided that the number of persons, recruited under Clause (b) above, shall not at any time exceed 50 percent of the total strength of the Service.

(3) Notwithstanding anything contained in Sub-rule (I), if in the opinion of the Government exigencies of the service so require, the Government may, after consultation with the Commission, adopt such method of recruitment to the Service other than those specified in the said sub-rule, as it may by Notification in this behalf, prescribe.

The Memorandum was considered by the Cabinet in its meeting held on September 1, 1981 and it was decided to hold a written examination and viva voce test for selection to the Service. Consequently, the notification dated September 16, 1981 was issued, the operative part of which is reproduced hereunder:

NOTIFICATION

In pursuance of Sub-rule (3) of Rule 4 of the Sikkim State Civil Service Rules, 1977, the Government being of opinion that the exigencies of the Service as require, hereby adopts the method written examination-cum-viva voce test as a method of recruitment to the service for that purpose constitutes a Selection Committee and prescribe the conditions of eligibility and regulation of seniority among the selected officers as follows:

Constitution of the Selection Committee.

There shall be a Selection Committee comprising of the following officers, namely:

Chief Secretary Chairman 2. Home Secretary Member 3. Development Commissioner Member 4. Finance Secretary Member 5. Establishment Secretary Member

The Deputy Secretary in the Establishment Department shall act as the Secretary to the Selection Committee.

Functions of the Selection Committee:

The Selection Committee shall arrange to hold a written examination-cum-viva voce test for the eligible officers with a view to assess their suitability for appointment to Service.

Provided that any officer who fails to obtain forty per cent of the total marks at the written examination-cum-viva voce test shall not be considered for appointment to Service.

Officers eligible to appear at the written Examination-cum-viva voce test-(1) Every person who on the 1st day of August, 1981 is a gazetted officer under the Government of Sikkim not possessing the technical qualifications as specified in the Notification of the Government of Sikkim in the Establishment Department No. 350/GEN/EST dated 3rd Feb., 1978 shall be eligible to appear at the Written examination-cum-viva voce test.

12.

The High Court rejected the arguments advanced on behalf of the State of Sikkim. It was held by the High Court that the impugned notification was violative of the Rules, the Government could not have acted in its executive power when the statutory rules were holding the field, the two conditions-precedent under Rule 4(3) of the Rules were mandatory, there was no material before the State Government to form an opinion that exigencies of service required the issuance of the impugned notification and the Public Service Commission was not consulted. On these findings the High Court quashed the selection and the consequent appointments.

13.

The learned Counsel for the appellant contended that the Rules came into force in the year 1977 which provided recruitment to the service through the Public Service Commission. The service constituted under the Rules consisted of the top-ranking posts in the State-Service. It also served as a feeder-cadre for appointments to the Indian Administrative Service. After its initial Constitution no further appointments were made to the service under the Rules because in the absence of the Public Service Commission there was no mechanism to operate the Rules. According to him when recruitment to the service was not made for a long period there were representations from number of officers seeking opportunity to enter the service. It was under these circumstances that the cabinet decision to hold the special selection was taken and the impugned notification was issued. The learned Counsel vehemently contended that the Rules being inoperative the State Government was within its executive power to issue the notification. He also justified the Government action under Rule 4(3) of the Rules. According to him the necessary opinion regarding existence of ''Exigencies of Service'' was formed by the Government on the basis of the reasons contained in the Cabinet Memorandum (quoted above) and the High Court could not have gone into the sufficiency of the said reasons. He further argued that the requirement of consultation with the Public Service Commission was directory and its non-compliance could not have rendered the selection illegal.

15.

The executive power of the State cannot be exercised in the field which is already occupied by the laws made by the legislature. It is settled law that any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to any statutory provisions, is without jurisdiction and is a nullity. But in this case we are faced with a peculiar situation. The Rules, though enforced, remained unworkable for about five years. The Public Service Commission, which was the authority to implement the Rules, was not in existence during the said period. There is nothing on the record to show as to why the Public Service Commission was not constituted during all those five years. In the absence of any material to the contrary we assume that there were justifiable reasons for the delay in constituting the Commission. The executive power of the State being divided amongst various functionaries under Article 166(3) of the Constitution of India there is possibility of lack of co-ordination amongst various limbs of the Government working within their respective spheres of allocation. The object of regulating the recruitment and conditions of service by statutory provisions is to rule out arbitrariness, provide consistency and crystilise the rights of employees concerned. The statutory provisions which are unworkable and inoperative cannot achieve these objectives. Such provisions are non-est till made operational. It is the operative statutory provisions which have the effect of ousting executive power of the State from the same field. When in a peculiar situation, as in the present case, the statutory provisions could not be operated there was no bar for the State Government to act in exercise of its executive power. The impugned notification to hold special selection was issued almost four years after the enforcement of the Rules. It was done to remove stagnation and to afford an opportunity to the eligible persons to enter the service. In our view the State Government was justified in issuing the impugned notification in exercise of its executive power and the High Court fell into error in quashing the same.

Besides, according to the learned Senior Counsel, even as per the decision taken in the Conference of Chief Justices and Chief Ministers, the process of selection has to be entrusted to the High Court concerned and in support of this contention, the learned Senior Counsel has relied on the following portion of paragraph No. 5 of the judgment reported in (2008) 17 SCC 703, Malik Mazhar Sultan (3) and another v. Uttar Pradesh Public Service Commission and Others:

Before we issue general directions and the time schedule to be adhered to for filling vacancies that may arise in subordinate courts and District Courts, it is necessary to note that selections are required to be conducted by the authorities concerned as per the existing Judicial Service Rules in the respective States/Union Territories. We may, however, note that, progressively, the authorities concerned would consider, discuss and eventually may arrive at a consensus that the selection process be conducted by the High Court itself or by the Public Service Commission under the control and supervision of the High Court. In this regard, considerable progress has already been made. Reference can be made to the decision taken in a conference held between the Chief Justices and Chief Ministers, minutes whereof show that in some of the States, selection of subordinate judicial officers at all levels of Civil Judges is already being made by the High Courts. Some States, where selection is still being made by the Public Service Commission, were agreeable to entrust the selection to the High Courts whereas Chief Ministers/Ministers of Himachal Pradesh, West Bengal, Punjab and Kerala were of the view that the present system may continue but the decision taken jointly was that in the said States (Himachal Pradesh, West Bengal, Punjab and Kerala) setting up of question papers and evaluation of answer sheets be entrusted to the High Court. Further decision taken was that in other States where selection of subordinate judicial officers is not being done by the High Courts, such selection be entrusted to the High Courts by amending the relevant rules....

On the other hand, according to the learned Senior Counsel appearing for the TNPSC, though the TNPSC has not disputed the consent given before the Hon''ble First Bench and also by its letters, for the conduct of the said examination by this High Court, the consequential Government Order can be challenged by the TNPSC if the same is not in accordance with the rules. Apart from this, according to the learned Senior Counsel, after the appointment of the new Chairman, certain reforms have been introduced in the Commission, consequently, as on date, the TNPSC is in a position to conduct the said examination in accordance with the rules and regulations, hence, the statutory powers given to the TNPSC cannot be totally ignored and cannot be allowed to be exercised by the High Court.

According to the learned Advocate General appearing for the Government, the Government has also consulted the TNPSC. In support of this contention, the learned Advocate General has relied on the letter dated 10.01.2012. Further, according to him, the TNPSC has also given its consent in the letter which has been referred to above, consequently, as far as the Government Order issued, which is under challenge is concerned, it is in conformity with the judgment earlier rendered by the Hon''ble First Bench of this Court and in the event of any decision to be taken to the contrary, it will nullify the consent given and the orders passed by the Hon''ble First Bench of this Court.

10.

As far as this aspect is concerned, there is no doubt that the appointment to Judicial Service is governed by Articles 234 and 320 of the Constitution of India. From the process of rule-making itself, consultation of the TNPSC is mandatory. In normal circumstances, this can be accepted. But, when there is no dispute with regard to the consent given by the TNPSC before the Hon''ble First Bench of this Court in the above said writ petitions and also the consent given to the Government by letter dated 10.01.2012 which has been referred to above and having given such a consent for conduct of examination by this High Court, we are of the opinion that they cannot shift their stand. Apart from this, the stand taken by the TNPSC now is that by the appointment of the new Chairman, the situation has totally changed, consequently, as on date, the TNPSC is in a position to conduct the examination. The specific plea of the learned Senior Counsel appearing for the High Court is that not only as against the Chairman/members of the TNPSC, but also, as against the staff of the TNPSC, allegations are pending. This is not disputed by the learned counsel appearing for the TNPSC. Under such circumstances, based on this alone, the consent was given.

11.

As far as the stand taken by the learned Senior Counsel appearing for the TNPSC that now, a lot of reforms have been introduced by the TNPSC, consequently, they are in a position to conduct the examination is concerned, this stand of the TNPSC clearly indicates that on the date of the order dated 12.01.2012 passed by the Hon''ble First Bench in W.P.Nos.29956 and 30080 of 2011, the TNPSC was not in a position to conduct the said examination in view of the allegations levelled against its Chairman, members and staff. But, according to the learned Senior Counsel, in view of the appointment of new Chairman, reforms are introduced in the TNPSC; consequently, the TNPSC can conduct the examination. However, to substantiate this stand, no material is placed before this Court. Consequently, we are not in a position to go into that aspect and give a finding with regard to the same. Besides, till date, the allegations levelled against the Chairman, members and staff of the TNPSC still continue and the issue in this regard is not finalised. Under such circumstances, since the position of the TNPSC is unworkable, as per the judgment relied on by the learned Senior Counsel appearing for the High Court which is reported in State of Sikkim Vs. Dorjee Tshering Bhutia and others, and the relevant portion of which reads as follows:-

13.

15.

We are of the considered opinion that there is no illegality in the impugned Government Order with regard to relaxation of Rule 5 with regard to conduct of examination by the High Court without the assistance of the TNPSC. Even as per the judgment reported in (2008) 17 SCC 703, Malik Mazhar Sultan (3) and another v. Uttar Pradesh Public Service Commission and Others also, selection for judicial service can be entrusted to the High Court. Further, the issue involved in these cases is appointment to judicial service. As held by the Hon''ble Apex Court at paragraph No. 13 of the Judgment reported in High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil and another, , High Court of Judicature at Bombay through its Registrar vs. Shirishkumar Rangrao Patil and another which reads as under:

13....The Judges do not do an easy job. They repeatedly do what the rest of us seek to avoid, i.e., make decisions. Judges, though are mortals, they are called upon to perform a function that is utterly divine in character. The trial Judge is the kingpin in the hierarchical system of administration of justice. He directly comes in contact with the litigant during the day-to-day proceedings in the Court. On him lies the responsibility to build a solemn atmosphere in the dispensation of justice....

when the impugned Government Order and notification is issued for selection of candidates to the post of Civil Judges (Junior Division) who are required to decide the issues of the public, their selection should be in a proper manner, without giving rise to any doubt in the minds of the public.

12.

Apart from this, a perusal of Annexure II read with Rule 5 of the Rules also reveals that the major functions of the TNPSC with regard to appointment of Civil Judges (Junior Division) are ministerial in character. The relevant portion of the Rule reads as follows:-

Annexure II (under Rule 5)

CIVIL JUDGE BY DIRECT RECRUITMENT

(1) The Tamil Nadu Public Service Commission (hereinafter referred to as the ''Commission'') will invite applications for direct recruitment to the post of Civil Judge, with reference to the vacancies reported by the Government through one English daily and one Tamil daily.

....

(5) The Commission shall conduct the written examination and viva-voce as specified below:

(a) On receipt of applications from the candidates, scrutiny of applications will be done by the Commission strictly in accordance with the instructions and guidelines prescribed by it for the purpose.

(b) Hall Tickets will be dispatched to the candidates whose applications have been admitted by the Commission, sufficiently in advance to the date of examination.

(c) Sets of question papers for drawal for all the four papers of the written examination together with answer keys will be set by the Hon''ble Judges of the High Court nominated by the Hon''ble Chief Justice for the purpose.

(d) Five sets of question papers in the prescribed syllabi will be set by moderators appointed by the Hon''ble Chief Justice from time to time and these sets would be handed over to the Commission for safe custody.

(e) The Hon''ble Chief Justice would pick up, in the presence of other Hon''ble Judges, a set of question papers containing key answers from a minimum of three such sets. The picked up set would be signed by the Hon''ble Chief Justice and by other Hon''ble Judges present and handed over to the Controller of Examinations, Tamil Nadu Public Service Commission for printing. The other not picked question papers would be collected back by the Controller of Examinations for safe custody.

(f) The printed question papers will be received at the Commission''s office and will be transported to the designated Centres escorted by the officials from the Commission and the High Court. Each packet will contain 20 question papers and they will be bundled into larger parcels of cloth lined covers.

(g) At the point of arrival, the representatives of the High Court and the Commission will received the sealed bundles containing the question papers and the papers will be kept inside the Treasury Vault under armed security.

(h) Chief Invigilators will be appointed by the Commission as per the usual procedure. On the previous day of examination, the Chief Invigilator appointed, shall verify the adequacy of question papers at the Treasury ini the presence of the officials of the Commission and the High Court and keep them back in Treasury vault till the morning of the examination day.

(i) On the day of examination, the question papers will be taken from the vault of the Treasury and transported to the examination centre as per the procedure evolved by the Commission, so that it will reach the examination centre at least half-an-hour before the examination. The question paper packet(s) shall be opened by the Invigilators five minutes before the commencement of the examination.

(j)...

(k) The Commission''s staff as well as the High Court or Judicial Officers may be deputed for inspection of the examination halls. Flying squads are also appointed by the District Revenue Officer, who is the coordinator for the examinations conducted by the Commission.

(l) Hon''ble High Court Judges or District Judges, to be nominated by the Hon''ble Chief Justice, can also make surprise inspection. Members of the Commission will also make surprise inspection.

(m) Immediately on the completion of the examination, all the answer papers of the candidates will be collected by the invigilators and the same will be counted, packed and sealed by the Chief Invigilator. The same will be signed by him, handed over to the persons nominated by the Commission and deposited in the Treasury for onward transmission to the Commission in chartered vehicles with police bandobust accompanied by the staff of the Commission.

(n) Dummy numbers will be assigned to the answer papers by the persons deputed by the Controller of Examinations in the Commission''s office, after all the answer paper are received in the Commission''s office, from the respective Centres.

(o) After the dummy numbers are assigned to the answer papers, the same will be sent by the Commission to the Tamil Nadu State Judicial Academy situated at Greenways Road, Raja Annamalaipuram, Chennai - 600 028 or any other place designated by the Hon''ble Chief Justice of Madras High Court for evaluation, which will be the centralized evaluation centre.

(p)...

(q)...

(r) The staff and officers of the Commission will be present at the time of evaluation of the answer sheets and assist the Examiners in the evaluation process.

(s)...

(t)...

(u)...

(v) The viva-voce will be conducted in the Commission''s office with a minimum of five interview Boards per day, comprising of one Hon''ble Judge of the High Court and such number of Members of the Commission, as are available at the time of conduct of interview.

(w) An Hon''ble Judge of the High Court, to be nominated by the Hon''ble Chief Justice, for each of the interview Boards constituted will be the chairperson of the Board and his views in the matter of awarding marks or grades, which is by consensus will normally be accepted, unless there are cogent reasons for not accepting such advice, to be recorded in writing by the Chairman and Members of the Commission.

(x) The marks or grade sheets will be sealed and handed over to the Secretary to the Commission for safe custody. After the viva-voce is completed, the marks obtained by the candidates in written as well as viva-voce would be collated and published. The names of the successful candidates will, thereafter, be prepared by the Commission and sent to the Government of Tamil Nadu for appointment after due publication of the results as per Tamil Nadu State Judicial Service (Cadre and Recruitment) Rules, 2007.

(y)... (z) A tentative time schedule for the recruitment would be prepared by the Commission in consultation with Hon''ble High Court and the same would be adhered to, to the maximum possible extent for finalizing the selection process.

The above extracted portion reveals that the question papers have to be set by this High Court and viva voce is also to be done by the High Court along with the TNPSC. Thus, the major and vital function has to be done by the High Court. When there are some allegations as against the Chairman, members and staff of the TNPSC and when that has not been put to an end, the stand of the learned Senior Counsel for the High Court, has to be accepted. Besides, even as per paragraph 8 of the counter affidavit of the TNPSC, which reads as follows:

In such circumstances, writ petitions were filed in public interest to expedite the selection to the post of Civil Judges in the State. In the meantime, based on the letter from Registrar General, Madras High Court, vide D.O.Lr.No.14/2010/Con/B1, dated 02.01.2012, with a recommendation to issue orders enabling the High Court to carry out the exercise of recruitment of 185 Civil Judges as a one time measure, the Principal Secretary to Government, Home Department consulted this Respondent vide Letter No. 533/Courts-I/2012-4 dated 10.01.2012. It is respectfully submitted that this respondent vide Letter No. 676/RND-A3/2010 dated 10.10.2012 conveyed to the Government to take appropriate decision as a one time measure (i.e., for the instant recruitment of 185 Civil Judges). It is respectfully submitted that pursuant to the decision taken and conveyed to this Hon''ble Court by the Government, the Hon''ble Division Bench was pleased to dispose of the writ petitions by observing as follows:

We appreciate the fact that the Government and the Tamil Nadu Public Service Commission have realized the difficulties which the State Judiciary is facing due to dearth of Judicial Officers. Since the Government and the Tamil Nadu Public Service Commission have agreed for the taking up of the recruitment process for judicial officers (Junior Division) by the High Court, no further direction needs to be issued in these matters. We expect that, in this regard, as assured by the Advocate General necessary Government Order will be issued forthwith. Consequently, the respondent/High Court is directed to proceed expeditiously after the receipt of the Government order and sent the draft advertisement/Notification inviting applications for the said post to the Government for its due publication.

with regard to filling up of 185 vacancies for the post of Civil Judges (Junior Division) by the High Court, the Home Department had addressed a letter dated 10.01.2012 to the TNPSC and the TNPSC had also, on the same day, by its letter dated 10.01.2012, conveyed its decision to take appropriate decision, as an one-time measure, for the instant recruitment of 185 Civil Judges and this decision was conveyed to the Hon''ble First Bench of this Court and the same was also extracted in the above said judgment of the Hon''ble First Bench in the above said writ petitions. Under such circumstances, the stand of the learned counsel for the petitioners that there was no proper consultation is not sustainable.

13.

Apart from this, as per paragraph No. 51 of the Judgment reported in State of Bihar and Another Vs. Bal Mukund Sah and Others, which reads as follows:-

51.

As seen earlier, consultation with the High Court as envisaged by Article 234 is for fructifying the constitutional mandate of preserving the independence of the Judiciary, which is its basic structure. The Public Service Commission has no such constitutional imperative to be fulfilled. The scope of the examining body''s consultation can never be equated with that of consultation with the appointing body whose agent is the former. It is also pertinent to note that the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice which in turn depends on sufficient information and time being given to the party concerned to enable it to tender useful advice. It is difficult to appreciate how the Governor while consulting the Public Service Commission before promulgating the rules of recruitment under Article 234 has to solicit similar type of advice as he would solicit from the High Court on due consultation. The advice which in the process of consultation can be tendered by the Public Service Commission will confine itself to the constitutional requirements of Article 320. They are entirely different from the nature of consultation and advice to be solicited from the High Court which is having full control over the Subordinate Judiciary under Article 235 of the Constitution and is directly concerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stands on an entirely different footing as compared to the consultation with the Public Service Commission which has to discharge its functions of an entirely different type as envisaged by Article 320 of the Constitution.

consultation with the Public Service Commission as envisaged in Article 234 read with Article 235 of the Constitution of India is entirely on a different footing as compared to the consultation with the Public Service Commission as envisaged in Article 320 of the Constitution of India.

14.

The other stand of the learned counsel for the petitioners is with regard to recruitment of fresh hands. As far as induction of fresh law graduates as one of the eligible hands for recruitment is concerned, according to Mr. M. Radhakrishan, learned counsel, that has been introduced based on paragraph 32 of the Judgment reported in All India Judges Association and Others Vs. Union of India (UOI) and Others, According to him, even as per the said Judgment also, the words used therein are "fresh law graduates", but, under the Advocates Act, 1961, unless one is an Advocate, he is not eligible to be appointed as a Judge. Further, according to him, even as per paragraph No. 32 of the said Judgment also, there is no whisper to the effect that any fresh law graduate who had not enrolled as an Advocate, can be allowed to participate in the selection process. Consequently, according to him, as far as the term "fresh law graduates" used both in the notification as well as under category 9 of Rule 5 of the said Rule is concerned, it is in violation of the Advocates Act, 1961, as well as the Bar Council of India Rules and also the Judgment of the Hon''ble Apex Court. However, relying on the Judgment of the Division Bench of this Court reported in M. Radhakrishnan Vs. State of Tamil Nadu and High Court of Judicature at Madras, , the learned counsel also fairly conceded that as per the wordings of the said Division Bench Judgment, the term "eligible to be enrolled as an Advocate" has to be construed as "must be a fresh law graduate who is eligible to be enrolled as an Advocate and enrolled as an Advocate"; as per this, the word "or" used in between the two terms namely "must be eligible to be enrolled as an Advocate" and "enrolled as an Advocate" should be read as "and"; hence, as per the Division Bench Judgment referred to above, the word "or" used in between the above said two terms, has to be read conjunctively and not distinctively, consequently, the candidate who had enrolled as an Advocate alone is eligible to apply.

15.

The learned Senior Counsel appearing for the High Court also fairly submitted that in view of the above said Division Bench Judgment, this position has been clarified and as such, the applications of the candidates who have enrolled themselves as Advocates, as on the date of notification alone, will be considered and the applications of the candidates who have not enrolled as an Advocate will not be considered.

16.

In view of the above submission made by the learned Senior Counsel for the High Court, we are of the opinion that by recording the same, this issue can be put to an end.

17.

The other stand of the learned counsels for the petitioners is that as far as fresh law graduates are concerned, as per the Rules as well as the notification issued, even if they have less than 3 years of experience, they are eligible to apply to the said post, but, as far as other advocates are concerned, the experience of 3 years is mandatory and as such, this creates discrimination as among the advocates, i.e., according to them, once a candidate of law course finishes the said course and enrolls himself as an advocate, he becomes an advocate; after becoming an advocate, he cannot be differentiated from the general pool of advocates and consequently, the preferential treatment given to the fresh law graduates with regard to their dispensation of 3 years experience is discriminatory.

18.

As far as this aspect is concerned, as referred to above, as far as these fresh law graduates are concerned, based on paragraph 32 of the Judgment reported in All India Judges Association and Others Vs. Union of India (UOI) and Others, . As per the said Judgment, to avail the service of the bright, talented and capable young law graduates, they were permitted to appear for the selection and appointment to the Judicial service also, though they do not possess 3 years experience. As far as these fresh law graduates are concerned, as per the notification also and also as per the Rules, they are eligible to apply based on the marks secured by them, i.e., cut off mark has been prescribed for them to be eligible to contest the said selection. As far as the other candidates are concerned, no maximum or minimum marks or cut off marks have been prescribed at all and as such, the object of introducing these fresh law graduates is to avail their service to get the benefit of young talented advocates to the judicial service to render justice in a better manner. Under such circumstances, when they have been allowed to appear under a distinct category, the question of considering their case along with the hands of general pool does not arise at all. Consequently, this argument of the learned counsels for the petitioners cannot be allowed to stand.

19.

According to the learned counsel Mr. T.P. Prabhakaran, as far as fresh Law graduates are concerned, u/s 28(b) of the Bar Council of India Rules, maximum age is 30 years, but, as per the impugned notification, the maximum age limit is 35 years for the general category and 40 years for the reserved category. According to the learned counsel, 3 years experience is mandatory for the general category. Further, according to him, when one is allowed to join the course upto the age of 30 years, he will complete the course only in the age of 33 years and after 3 years experience, certainly, he will be of 36 years; under such circumstances, fixing the maximum age as 35 years is arbitrary and unreasonable.

20.

The learned counsels for the petitioners also submitted that for the last 4 years, no examinations were conducted and relying on paragraph nos.3, 7(d) and 11 of the judgment reported in (2008) 17 SCC 703, Malik Mazhar Sultan (3) and another v. Uttar Pradesh Public Service Commission and Others, which read as follows:

In this matter, by judgment and order dated 3-4-2006, it was observed that it is absolutely necessary to evolve a mechanism to speedily determine and fill vacancies of Judges at all levels. For this purpose, timely steps are required to be taken for determination of vacancies, issue of advertisement, conducting of examinations, interviews, declaration of final results and issue of orders of appointment. It was further directed that for all these above and other steps, it is necessary to provide to fix the time schedule so that the system works automatically and there is no delay in filling up of the vacancies. The dates for taking up these steps can be provided for on the pattern similar to filling up of vacancies in some other services. Adherence to strict time schedule can help in ensuring timely filling up of vacancies. In this view, all the State Governments, Union Territories and/or High Courts were directed to give suggestions regarding the time schedule to be fixed so that every year vacancies that may occur are filled. This Court also requested Mr Vijay Hansaria, Senior Advocate, to assist the Court.

For filling up of vacancies in the cadre of District Judge, accepting the proposal to which none has objected, except in the manner hereinafter noticed, we direct as under:

D. For appointment to the posts of Civil Judge (Junior Division) by direct recruitment

Sl. No.

Description

Date

Number of vacancies to be notified by the High Court.

Vacancies to be calculated including

(a) Existing vacancies.

(b) Future vacancies that may arise within one year due to retirement.

15th January

Advertisement inviting applications from eligible candidates

1st February

Last date for receipt of application.

1st March

Publication of list of eligible applicants. 2nd April The list may be put on the website.

Dispatch/Issue of admit cards to the eligible applicants.

2nd-30th April

Preliminary written examination

Objective questions with multiple choice which can be scrutinised by computer.

15th May

Declaration of result of preliminary written examination

(a) Result may be put on the website and also published in the newspaper

(b) The ratio of 1:10 of the available vacancies to the successful candidates be maintained.

15th June

Final written examination Subjective/Narrative.

15th July

Declaration of result of final written examination

(a) Result may be put on the website and also published in the newspaper.

(b) The ratio of 1:3 of the available vacancies to the successful candidates be maintained.

(c) Dates of interview of the successful candidates may be put on the internet which can be printed by the candidates and no separate intimation of the date of interview need be sent.

30th August

10.

Viva voce.

1st-15th Oct.

11.

Declaration of final select list and communication to the appointing authority

(a) Result may be put on the website and also published in the newspaper.

(b) Select list be published in order of merit and should be double the number of vacancies notified.

1st-Nov.

12.

Issue of appointment letter by the competent authority for all existing vacant posts as on date.

1st Dec

13.

Last date for joining.

2nd January of the following year

according to the learned counsels, every year, vacancies have to be filled up as per the directions of the Honourable Apex Court; for any reason, if the examination could not be conducted and selection could not be made for the post in question, permission should be sought from the Honourable Apex Court; for no fault of the petitioners, examination was not conducted for the past four years and if the examination had been conducted every year, then, a number of candidates would have got the eligibility to appear for the same; for the lapse committed by the 1st respondent, the petitioners should not be forced to suffer. Consequently, according to the learned counsels, the maximum age limit fixed should be relaxed.

21.

As far as this stand of the learned counsels for the petitioners is concerned, as per paragraphs nos.4, 5, 7, 10, 11 and 12 of the judgment reported in Dr. Ami Lal Bhat Vs. State of Rajasthan and others, which read as follows:-

Is such a cut-off date fixed by the Rules applicable to the relevant service, arbitrary? It has been urged before us by the petitioners and/or appellants that the cut-off date of 1st of January following the last date fixed for receipt of applications is arbitrary. The cut-off date should only be fixed with reference to the last date of making the application in question. It is submitted before us that the date of 1st of January has no nexus with the application in question and, therefore, must be struck down.

This contention, in our view, is not sustainable. In the first place the fixing of a cut-off date for determining the maximum or minimum age prescribed for a post is not, per se, arbitrary. Basically, the fixing of a cut-off date for determining the maximum or minimum age required for a post, is in the discretion of the rule-making authority or the employer as the case may be. One must accept that such a cut-off date cannot be fixed with any mathematical precision and in such a manner as would avoid hardship in all conceivable cases. As soon as a cut-off date is fixed there will be some persons who fall on the right side of the cut-off date and some persons who will fall on the wrong side of the cut-off date. That cannot make the cut-off date, per se, arbitrary unless the cut-off date is so wide off the mark as to make it wholly unreasonable. This view was expressed by this Court in Union of India v. Parameswaran Match Works and has been reiterated in subsequent cases. In the case of A.P. Public Service Commission v. B. Sarat Chandra the relevant service rule stipulated that the candidate should not have completed the age of 26 years on the 1st day of July of the year in which the selection is made. Such a cut-off date was challenged. This Court considered the various steps required in the process of selection and said,

when such are the different steps in the process of selection the minimum or maximum age of suitability of a candidate for appointment cannot be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection is delayed and more often it happens for various reasons, the candidates who are eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for the recruiting agency to scrutinise the applications.

This Court, therefore, held that in order to avoid uncertainty in respect of minimum or maximum age of a candidate, which may arise if such an age is linked to the process of selection which may take an uncertain time, it is desirable that such a cut-off date should be with reference to a fixed date. Therefore, fixing an independent cut-off date, far from being arbitrary, makes for certainty in determining the maximum age.

In the present case, the cut-off date has been fixed by the State of Rajasthan under its Rules relating to various services with reference to the 1st of January following the year in which the applications are invited. All Service Rules are uniform on this point. Looking to the various dates on which different departments and different heads of administration may issue their advertisements for recruitment, a uniform cut-off date has been fixed in respect of all such advertisements as 1st January of the year following. This is to make for certainty. Such a uniform date prescribed under all Service Rules and Regulations makes it easier for the prospective candidates to understand their eligibility for applying for the post in question. Such a date is not so wide off the mark as to be construed as grossly unreasonable or arbitrary. The time-gap between the advertisement and the cut-off date is less than a year. It takes into account the fact that after the advertisement, time has to be allowed for receipt of applications, for their scrutiny, for calling candidates for interview, for preparing a panel of selected candidates and for actual appointment. The cut-off date, therefore, cannot be considered as unreasonable. It was, however, strenuously urged before us that the only acceptable cut-off date is the last date for receipt of applications under a given advertisement. Undoubtedly, this can be a possible cut-off date. But there is no basis for urging that this is the only reasonable cut-off date. Even such a date is liable to question in given circumstances. In the first place, making a cut-off date dependent on the last date for receiving applications, makes it more subject to vagaries of the department concerned, making it dependent on the date when each department issues an advertisement, and the date which each department concerned fixes as the last date for receiving applications. A person who may fall on the wrong side of such a cut-off date may well contend that the cut-off date is unfair, since the advertisement could have been issued earlier; or in the alternative that the cut-off date could have been fixed later at the point of selection or appointment. Such an argument is always open, irrespective of the cut-off date fixed and the manner in which it is fixed. That is why this Court has said in the case of Parameswaran Match Works and later cases that the cut-off date is valid unless it is so capricious or whimsical as to be wholly unreasonable. To say that the only cut-off date can be the last date for receiving applications, appears to be without any basis. In our view the cut-off date which is fixed in the present case with reference to the beginning of the calendar year following the date of application, cannot be considered as capricious or unreasonable. On the contrary, it is less prone to vagaries and is less uncertain.

10.

It is next contended on behalf of the appellants/petitioners that under all the service rules concerned there is a provision for age relaxation. In Rule 11(A) of the Rajasthan Medical Services (Collegiate Branch) Rules, there is a provision for age relaxation by 5 years by the Government in consultation with the Commission. There is also Rule 35 in the said Rules which gives a general power to relax rules in exceptional cases where the Government is satisfied that it is necessary, inter alia, to relax any provision of these Rules with respect to age or experience of any person and this can be done with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Rajasthan Public Service Commission. It is urged that in the case of all those persons who are adversely affected because the advertisement for recruitment is issued later than the occurrence of the vacancy, corresponding age relaxation should be given to all candidates. In other words, what is contended is that if on the date when the vacancy occurred, the candidates were within the maximum age prescribed by reference to the cut-off date, then if the advertisement is delayed, their age should be considered with reference to the cut-off date of 1st January following the date of occurrence of vacancy. For example, if the vacancy has occurred on 1st of April of a given year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate will be considered as eligible even if the advertisement is issued not in April of that year but say February of the following year. All the candidates will get age relaxation of one year.

11.

In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.

12.

In the premises we do not see any reason to set aside the cut-off date fixed by the relevant rules. The judgments of the Division Benches of the Rajasthan High Court insofar as they strike down 1st of January of the following year as the cut-off date for determining the maximum age of a candidate for selection, require to be set aside.

relied on by the learned Senior Counsel appearing for the High Court, as far as fixing of maximum or minimum age limit is concerned, it is within the domain of the authority concerned and this argument has been advanced based on the Bar Council of India Rules. Admittedly, these Rules relate only to admission to Law Degree Courses and there is no reference at all in the said Rules with regard to age for recruitment to judicial service. If this argument of the learned counsels for the petitioners has to be accepted, then all the candidates, who have been permitted to join the Law Degree Course must be allowed to write the examination. As far as admissions to Law Degree Course is concerned, it is the first stage and as far as recruitment is concerned, one will get the eligibility subsequent to the completion of the said course alone and complying with the other conditions. Some may complete the course within the prescribed period, while some others may take a number of years to finish the same for so many reasons. But, that does not mean that whenever they complete the course, they should be made eligible to appear for the examination concerned. Further, not only in Judicial Service, but also in other services, for appointment to any post, minimum and maximum age limit is prescribed. When that is the position, Judiciary alone cannot be an exception to this. As far as Judiciary is concerned, a Judge is appointed to decide the issues involved in so many cases coming before him. Under such circumstances, taking note of this, when this is the normal procedure adopted and also in view of the judgment relied on by the learned Senior Counsel for the High Court, which has been referred to above, fixing the maximum age limit or minimum age limit cannot be said to be an illegal or arbitrary one. Consequently, the argument of the learned counsels for the petitioners, in this regard, cannot be allowed to stand.

22.

The other argument of the learned counsels for the petitioners is that the syllabus prescribed as per the Rules is different from the syllabus prescribed under the present notification for selection and appointment to the post of Civil Judges (Junior Division). In support of this, the learned counsels for the petitioners relied on the following portion of Annexure II to Rule 5 of the said Rules:

(4) The syllabi for the examinations shall be as follows:

(a) Written Examination:

(i) Translation Paper (Maximum marks 100)

Translation of passages in English into Tamil and Tamil into English. The passages will b e from (1) Depositions, (2) Judgements, and (3) Documents

(ii) Law Paper I ( Maximum Marks 100)

The Code of Civil Procedure, 1908, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872, Principles of pleading and the Constitution of India.

(iii) Law Paper II (Maximum Marks 100)Framing of Issues and Writing of Judgements in Civil Cases.

(iv) Law Paper III (Maximum Marks 100)

Framing of charges and Writing of Judgements in Criminal Cases.

But, according to the learned counsels, as per the notification, in addition to the papers prescribed under the Rules, under the caption "Law Paper III", the following subjects have been included:

d) Law Paper - III

Alternate Dispute Resolution Mechanism & Techniques;

Legal Services Authority Act;

Plea Bargaining.

and according to the learned counsels for the petitioners, this is contrary to the Rules. As rightly pointed out by the learned Senior Counsel for the High Court, as far as the above said subjects are concerned, they are governed by Section 89 of the CPC which reads as follows:

89.

Settlement of disputes outside the Court:-(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for -

(a) arbitration

(b) conciliation

(d) mediation.

(2) Where a dispute has been referred -

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act;

(b) to Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of sub-section (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so r eferred to the Lok Adalat;

(c) for judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of Legal Services Authority Act, 1987 ( 39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act;

(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed]

and Sections 265-A to 265-L of Code of Criminal Procedure, which deal with Plea Bargaining read as follows:

265A. Application of the Chapter.-

(1) This Chapter shall apply in respect of an accused against whom-

(a) the report has been forwarded by the officer in charge of the police station u/s 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses u/s 200, issued the process u/s 204, but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of sub-section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

265B. Application for plea bargaining.-(1) A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under sub-section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.

(3) After receiving the application under sub-section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.

(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under sub-section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-

(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;

(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under sub-section (1).

265C. Guidelines for mutually satisfactory disposition.-In working out a mutually satisfactory disposition under clause (a) of sub-section (4) of section 265B, the Court shall follow the following procedure, namely:-

(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:

Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:

Provided further that the accused may, if he so desires, participate in such meeting with his pleader, if any, engaged in the case;

(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:

Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.

265D. Report of the mutually satisfactory disposition to be submitted before the Court.-Where in a meeting u/s 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under sub-section (1) of section 265B has been filed in such case.

265E. Disposal of the case.-Where a satisfactory disposition of the case has been worked out u/s 265D, the Court shall dispose of the case in the following manner, namely:

(a) the Court shall award the compensation to the victim in accordance with the disposition u/s 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition u/s 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;

(b) after hearing the parties under clause (a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958 (20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;

(c) after hearing the parties under clause (b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;

(d) in case after hearing the parties under clause (b), the Court finds that the offence committed by the accused is not covered under clause (b) or clause (c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

265F. Judgment of the Court.-The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

265G. Finality of the judgment.-The judgment delivered by the Court u/s 265G shall be final and no appeal (except the SLP under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.

265H. Power of the Court in plea bargaining.-A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a case in such Court under this Code.

265-I. Period of detention undergone by the accused to be set off against the sentence of imprisonment.-The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

265J. Savings.-The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.

Explanation.-For the purposes of this Chapter, the expression "Public Prosecutor" has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed u/s 25.

265K. Statements of accused not to be used.-Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed u/s 265B shall not be used for any other purpose except for the purpose of this Chapter.

265L. Non-application of the Chapter.-Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000.

The subjects with regard to which objection has been raised are (i) Alternate Dispute Resolution Mechanism and Techniques, (ii) Legal Services Authority Act and (iii) Plea bargaining. As far as these three subjects are concerned, they are governed by Section 89 of the CPC as well as Sections 265-A to 265-L of Code of Criminal Procedure which are extracted above. Apart from this, as per the said Rules and even according to the learned counsels for the petitioners, under Law Paper I, the subjects prescribed are Code of Civil Procedure, 1908 and Code of Criminal Procedure, 1973. In addition to this, the Indian Evidence Act, 1872, Principles of Pleadings and the Constitution of India are also prescribed. As such, when the subjects prescribed under Law Paper III are coming under CPC and Code of Criminal Procedure, this argument of the learned counsels for the petitioners that the subjects prescribed under Law Paper III are contrary to the Rules will not hold good. Consequently, we reject this argument of the learned counsels for the petitioners.

23.

Yet another submission made by the learned counsels for the petitioners is as far as quota for women candidates is concerned, as per the notification, in the event of non-availability of suitable hands in the quota meant for women, the vacancies will be filled up by eligible male candidates, which is an injustice done to women candidates. However, the learned Senior Counsel appearing for the High Court, has fairly submitted that, as on date, a number of women advocates have applied for the post and in the event of their suitability, certainly, the vacancies in the quota for women will be filled up only by them. In view of this submission made by the learned Senior Counsel for the High Court, we are of the opinion that we need not go further into this aspect.

24.

As far as the stand of the learned counsels for the petitioners that no age relaxation has been given to Physically Handicapped Persons is concerned, this argument has been advanced based on Section 38 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995. A perusal of Section 38 of the said Act reveals that the word used therein is "may" and the discretionary power is given to the State. Consequently, the argument of the learned Senior Counsel for the High Court that the directions given therein are only directory and not mandatory, has to be accepted. As such, we are not inclined to accept this argument of the learned counsels for the petitioners.

25.

Yet another submission made by the learned counsels for the petitioners is that as far as the post of Civil Judges (Junior Division) is concerned, already, there are 9 backlog vacancies and the same have been clubbed with the present vacancies, consequently, the present notification is illegal. In support of this contention, the learned counsels have relied on paragraph No. 27 of the judgment reported in (2011) 2 SCC 105, (Uttar Pradesh and Others v. Sangam Nath Pandey and Others), which reads as follows:

27.

In any recruitment year, it may happen that the candidates belonging to the reserved category may not be available to fill the vacancies falling to the share of the particular reserved category. In such circumstances, sub-section (2) of Section 3 enables the State to carry forward the unfilled vacancy/vacancies to be filled through special recruitment as a separate class of vacancy. Such class of vacancy cannot be intermingled with the vacancies of the year of recruitment in which it is filled. It also cannot be counted for the purpose of determining of ceiling of 50% reservation of the total vacancies of that year. The provision contained in sub-section (2) is, notwithstanding anything to the contrary contained in sub-section (1), which provides for a total 50% reservation for the categories of Scheduled Castes, Scheduled Tribes and Other Backward Classes i.e. 21%, 2% and 27% respectively.

As per the counter affidavit filed by the High Court, it is admitted that the number of backlog vacancies is nine and the relevant papers relating to this are also produced before this Court. The break-up of the nine backlog vacancies is as hereunder:

GT (G Blind)

BC (W Deaf)

MBC/DC (G-Deaf)

SC (G � Blind)

Total

According to the learned Senior Counsel appearing for the High Court also, as far as these nine backlog vacancies are concerned, as per the roster mentioned above, the same will be filled up first and the remaining vacancies will be filled up by following the rule of reservation as well as the other Rules in this regard. In view of this submission made by the learned Senior Counsel for the High Court, we need not probe into this further.

26.

As far as the other stand taken by Mr. V. Raghavachari, learned counsel for the petitioners in W.P.Nos.2916 and 3364 of 2012, which have been filed by two associations, whose members are employees of this Court as well as subordinate judiciary, is concerned, they have challenged this notification insofar as it excludes their claim for selection and appointment to the post of Civil Judges (Junior Division). But, at the outset itself, it has been brought to the notice of this Court by the learned Advocate General that as far as the exclusion of these employees is concerned, the Government has already issued G.O. Ms. No. 885, Home (Courts-I) Department dated 20.12.2011 and a copy of the same has also been produced before this Court. But, the stand of the learned counsels for the petitioners is that the Government has already issued a Government Order prior to three months for inclusion of service candidates as one of the eligible hands to be considered for selection and appointment to the post of Civil Judges (Junior Division), but, within a period of 3 months, the above said Government Order, viz., G.O. Ms.No.885, Home (Courts-I) Department dated 20.12.2011, has been issued. Apart from this, according to the learned counsels for the petitioners, as far as the State of Pondicherry is concerned, as per rules, service hands are eligible to appear for selection to the said post and as such, denying the same as far as the ministerial staff of Tamil Nadu Judicial service is concerned, is discriminatory and violative of Article 14 of the Constitution of India.

27.

As far as this stand is concerned, rightly or wrongly, the Government has issued G.O. Ms. No. 885, Home (Courts-I) Department dated 20.12.2011 deleting this category from the eligibility criteria from the Rules. Unless this Rule is under challenge before this Court, this Court cannot examine their grievance at all. Apart from this, on the date of issuing the notification, they are not eligible hands to be included as per the Rules. Consequently, their claim need not be examined and need not be entertained at all.

28.

As far as W.P. No. 2566 of 2012 is concerned, it has been filed by an Association by way of Public Interest Litigation. Though many grounds have been raised by the learned Senior Counsel for the petitioner with regard to validity of the relaxation of Rule 5 read with Annexure II of the Rules and also the method of consultation done by the High Court as well as the TNPSC and the Government and also the power of Judiciary, but, unfortunately, this writ petition has been filed by way of a Public Interest Litigation. As per paragraph nos.14 to 19 of the Judgment reported in Girjesh Shrivastava and Others Vs. State of M.P. and Others, which read as follows:

14.

However, the main argument by the appellants against entertaining WP (C) No. 1520 of 2001 and WP (C) No. 63 of 2002 is on the ground that a PIL in a service matter is not maintainable. This Court is of the opinion that there is considerable merit in that contention. It is common ground that dispute in this case is over selection and appointment which is a service matter.

15.

In Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra a three-Judge Bench of this Court held that a PIL is not maintainable in service matters. This Court, speaking through Srinivasan, J. explained the purpose of administrative tribunals created under Article 323-A in the backdrop of extraordinary jurisdiction of the High Courts under Articles 226 and 227. This Court held: (SCC p. 281, para 18)

18.

... If public interest litigations at the instance of strangers are allowed to be entertained by the [Administrative] Tribunal, the very object of speedy disposal of service matters would get defeated.

Same reasoning applies here as a public interest litigation has been filed when the entire dispute relates to selection and appointment.

16.

In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees'' Assn. this Court held that in service matters only the non-appointees can assail the legality of the appointment procedure (see SCC p. 755, para 51 of the Report).

17.

This view was very strongly expressed by this Court in Dattaraj Nathuji Thaware v. State of Maharashtra by pointing out that despite the decision in Duryodhan Sahu, PILs in service matters "continue unabated". This Court opined that the High Courts should "throw out" such petitions in view of the decision in Duryodhan Sahu (SCC p. 596, para 16).

18.

Same principles have been reiterated in Ashok Kumar Pandey v. State of W.B. (SCC at p. 358, para 16).

19.

In a recent decision of this Court delivered on 30-8 2010, in Hari Bansh Lal v. Sahodar Prasad Mahto, it has been held that except in a case for a writ of "quo warranto", PIL in a service matter is not maintainable (see SCC para 15).

and as per paragraph nos.15 to 19 and 33 and 34 of the Judgment reported in (2010) 9 SCC 655, (Hari Bansh Lal vs. Sahodar Prasad Mahto and Others), which read as follows:-

15.

The above principles make it clear that except for a writ of quo warranto, public interest litigation is not maintainable in service matters.

Writ of quo warranto

16.

A writ of quo warranto lies only when appointment is contrary to a statutory provision. In High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat (three-Judge Bench) Hon''ble S.B. Sinha, J. concurring with the majority view held: (SCC pp. 730-31, paras 22-23)

22.

The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine at the outset as to whether a case has been made out for issuance of a writ of certiorari or a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one. While issuing such a writ, the Court merely makes a public declaration but will not consider the respective impact of the candidates or other factors which may be relevant for issuance of a writ of certiorari. (See R.K. Jain v. Union of India, SCC para 74.)

23.

A writ of quo warranto can only be issued when the appointment is contrary to the statutory rules. (See Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana.)

17.

In Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana the following conclusion in para 11 is relevant: (SCC p. 275)

11.

... The High Court did not exercise its writ jurisdiction in the absence of any averment to the effect that the aforesaid officers had misused their authority and acted in a manner prejudicial to the interest of the appellants. In our view the High Court should have considered the challenge to the appointment of the officials concerned as members of the Regional Transport Authority on the ground of breach of statutory provisions. The mere fact that they had not acted in a manner prejudicial to the interest of the appellant could not lend validity to their appointment, if otherwise, the appointment was in breach of statutory provisions of a mandatory nature. It has, therefore, become necessary for us to consider the validity of the impugned notification said to have been issued in breach of statutory provision.

18.

In B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees'' Assn. this Court held: (SCC p. 754, para 49)

49.

The law is well settled. The High Court in exercise of its writ jurisdiction in a matter of this nature is required to determine, at the outset, as to whether a case has been made out for issuance of a writ of quo warranto. The jurisdiction of the High Court to issue a writ of quo warranto is a limited one which can only be issued when the appointment is contrary to the statutory rules.

19.

It is clear from the above decisions that even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules. In the latter part of our judgment, we would discuss how the appellant herein was considered and appointed as Chairman and whether he satisfied the relevant statutory provisions.

33.

If we apply the same principles to the appellant, who was appointed as Chairman of the Electricity Board by the Chief Minister, after fulfilling the criteria, the said appointment cannot be interfered with lightly without adequate material about his integrity or inefficiency in service.

34.

From the discussion and analysis, the following principles emerge:

(a) Except for a writ of quo warranto, PIL is not maintainable in service matters.

(b) For issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.

(c) Suitability or otherwise of a candidate for appointment to a post in government service is the function of the appointing authority and not of the court unless the appointment is contrary to statutory provisions/rules.

and also as per paragraph No. 31 of the Judgment reported in Bholanath Mukherjee and Others Vs. R.K. Mission V. Centenary College and Others, which reads as follows:

31.

In the alternative, the learned senior counsel submits that the writ petition would have to be treated as public interest litigation. It is, however, settled by this Court that public interest litigation would not be maintainable in service law cases. In support of this submission, he relies on the judgments of this Court in the cases of Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., and Gurpal Singh Vs. State of Punjab and Others, . Therefore, again no relief can be granted to the writ Petitioners/Appellants

which have been relied on by the learned Senior Counsel for the High Court, as far as service matters are concerned, Public Interest Litigation cannot be entertained. However, the learned Senior Counsel for the petitioner had relied on the following Judgments in support of his contention that in service matters, Public Interest Litigation is maintainable:

Akhil Bharatiya Soshit Karamchari Sangh (Railway) represented by its Assistant General Secretary on behalf of the Association Vs. Union of India (UOI) and Others, - 62. A technical point is taken in the counter-affidavit that Petitioner 1 is an unrecognised association and that, therefore, the petitioner to that extent, is not sustainable. It has to be overruled. Whether the petitioners belong to a recognised union or not, the fact remains that a large body of persons with a common grievance exists and they have approached this Court under Article 32. Our current processual jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people-oriented, and envisions access to justice through "class actions", "public interest litigation" and "representative proceedings". Indeed, little Indians in large numbers seeking remedies in courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of "cause of action" and "person aggrieved" and individual litigation is becoming obsolescent in some jurisdictions. It must fairly be stated that the learned Attorney-General has taken no objection to a non-recognised association maintaining the writ petitions.

Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., 18. The constitution of Administrative Tribunals was necessitated because of the large pendency of cases relating to service matters in various courts in the country. It was expected that the setting up of Administrative Tribunals to deal exclusively in service matters would go a long way in not only reducing the burden of the courts but also provide to the persons covered by the Tribunals speedy relief in respect of their grievances. The basic idea as evident from the various provisions of the Act is that the Tribunal should quickly redress the grievances in relation to service matters. The definition of "service matters" found in Section 3(q) shows that in relation to a person, the expression means all service matters relating to the conditions of his service. The significance of the word "his" cannot be ignored. Section 3(b) defines the word "application" as an application made u/s 19. The latter section refers to "person aggrieved". In order to bring a matter before the Tribunal, an application has to be made and the same can be made only by a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal. We have already seen that the word "order" has been defined in the explanation to sub-section (1) of Section 19 so that all matters referred to in Section 3(q) as service matters could be brought before the Tribunal. If in that context Sections 14 and 15 are read, there is no doubt that a total stranger to the service concerned cannot make an application before the Tribunal. If public interest litigations at the instance of strangers are allowed to be entertained by the Tribunal, the very object of speedy disposal of service matters would get defeated.

....

20.

Learned counsel for the respondents relied upon the decision of this Court in S.P. Gupta v. Union of India and read out several passages from the judgment dealing with the question of "standing". In that case, the Court was not concerned with a Tribunal constituted under a statute. It was discussing the question of "standing" in a proceeding before the High Court or this Court. That ruling cannot help the respondents in the present case. Our attention is also drawn to a judgment in University of Mysore v. C.D. Govinda Rao wherein the scope of a writ of quo warranto has been discussed. That decision will not apply in the present case as there was no application for issue of a writ of quo warranto before the Tribunal. Learned counsel for the respondents submits that the proceedings before the Tribunal are in the nature of quo warranto and it could be filed by any member of the public as he is an aggrieved person in the sense public interest is affected. We have already pointed out that the applications in the present case have been filed before the appointment of the petitioner as a Lecturer and the relevant prayers are to quash the creation of the post itself and preventing authorities from appointing the petitioner as a Lecturer. Hence, the applications filed by the respondents cannot be considered to be quo warranto.

21.

In the result, we answer the first question in the negative and hold that the Administrative Tribunal constituted under the Act cannot entertain a public interest litigation at the instance of a total stranger.

1986 Supp. SCC 564, Advocates Association, High Court, Madras and another vs. Sate of Tamil Nadu and Others

Supreme Court Advocates-on-Record Association and another Vs. Union of India, and

Shanti Bhushan and Another Vs. Union of India (UOI) and Another,

But, unfortunately, as far as this is concerned, as per the principle laid down in the latest Judgment of the Honourable Apex Court which has been relied on by the learned Senior Counsel for the High Court, as referred to above, as far as service matters are concerned, Public Interest Litigation cannot be entertained and since that Judgment is binding on us, on the ground of maintainability, we reject this writ petition. Consequently, we do not want to go into the other arguments of the learned Senior Counsel for the petitioner in W.P. No. 2566 of 2012.

29.

As far as W.P.No.1932 of 2012 is concerned, the learned counsel for the petitioner has submitted that as per the impugned Government Order, the same has been issued by using the power of relaxation. But, according to him, that power is traceable to Rule 48 of the Tamil Nadu State and Subordinate Service Rules. But, there is no whisper in the said Government Order with regard to exercise of the power given under Rule 48. Consequently, according to him, that impugned Government Order has been issued not exercising the power of relaxation under Rule 48 of the Tamil Nadu State and Subordinate Service Rules.

30.

Replying to the said stand of the learned counsels for the petitioners, the learned Senior Counsel appearing for the High Court had relied on paragraph No. 16 of the Judgment reported in State of Sikkim Vs. Dorjee Tshering Bhutia and others, , which reads as follows:-

16.

The fact that the State Government purported to act under Rule 4(3) of the Rules in issuing the impugned notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labelled under a different provision.

and also the following portion of the Judgment reported in Assistant Commissioner of Commercial Taxes (Asst.) Dharwar and Others Vs. Dharmendra Trading Company and Others, etc. etc.:

... Again, the mere fact that the order of 30-6-1969 did not specify the power under which it was issued will make no difference because such a power is clearly there in Section 8-A and where the source of power under which it is issued is not stated in an order but can be found on the examination of the relevant Act, the exercise of the power must be attributed to that source. The second submission of the learned counsel for the appellants must, also, therefore, be rejected.

and contended that the mere fact that the impugned Government Order did not specify the provision under which it was issued, will not invalidate the impugned notification in view of the judgments of the Hon''ble Apex Court referred to above.

31.

In view of this settled position of the Hon''ble Apex Court, we are of the opinion that this stand of the learned counsel for the petitioner will not hold good at all.

32.

Apart from this, according to the learned counsels for the petitioners, as far as the members of the Bar are concerned, a number of young advocates are aspiring for this post and consequently, relaxation has to be given. But, when appointment is governed by the statutory rules and regulations, only in accordance with the said rules and regulations, each claim can be considered. Though we have sympathy for them, unfortunately, we are in a helpless position. As far as relaxation of age is concerned, it cannot be claimed as a matter of right, unless the same is permissible under the rules as held by the Hon''ble Apex Court in the following judgments:

(2011) 11 Scale 226, Jamaluddin vs. State of Jammu and Kashmir and Others - paragraph No. 15 15. ... If there is no age relaxation in the rules, the same cannot be brought in by any judicial interpretation. In the circumstance we do not find any error in the judgment of the Single Judge or that of the Division Bench

Tirumala Tirupati Devasthanams Vs. K. Jotheeswara Pillai (D) by LRs. and Others, 9. The learned Single Judge has also issued a writ of mandamus directing the appellant to consider the case of Writ Petitioner 5 as to whether he was entitled for exemption from age qualification. As already mentioned the Rules do not make any provision for granting exemption except to the limited extent as provided in the second para of Rule 11. The principles, on which a writ of mandamus can be issued, are well settled and we will refer to only one decision rendered in Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh where this Court observed as under: (SCC p. 152, 15)

[A] writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.

10.

There being no statutory provision or rule providing for exemption from eligibility criterion, the learned Single Judge clearly erred in issuing a writ of mandamus against the appellant directing it to consider the case of Writ Petitioner 5 for granting him exemption from the rule providing for upper age-limit for fresh appointment.

Union of India (UOI) and Another Vs. Arulmozhi Iniarasu and Others, 13. Thus, in these appeals the first and the foremost question to be examined is whether in the matter of relaxation of age limit, prescribed as eligibility criteria for appointment on a particular post, any principle of law has been laid down in the decision of this Court in Nagendra Chandra''s case (supra)? If so, whether it could be applied to the facts of the present case for directing the afore-stated relaxation in age limit?

15.

... Therefore, in our opinion, the said observation cannot be said to be an exposition of general principle of law on the point that a long length of service, dehors the relevant recruitment rules for the post, is a relevant factor for waiver or relaxation of any eligibility criterion, including age limit, for future regular selections for the post. Obviously, the observation, general in nature, was made by this Court in exercise of its jurisdiction under Article 142 of the Constitution of India and, therefore, cannot be treated as a binding precedent. It has to be confined to the peculiar facts of that case.

33.

As far as the argument of Mr. Radhakrishnan, learned counsel, with regard to inclusion of fresh hands is concerned, though this argument seems to be a reasonable one, in view of paragraph No. 32 of the judgment reported in All India Judges Association and Others Vs. Union of India (UOI) and Others, our hands are tied and we cannot go beyond that.

34.

Yet another argument advanced by the learned counsel for the petitioners is that the rule of reservation has been mentioned in respect of the general category, whereas, in case of fresh law graduates category, rule of reservation has not been mentioned. As far as this is concerned, rule of reservation, as it is, has to be followed for the entire vacancies. Consequently, we are of the opinion that when the vacancies are filled either under the heading fresh law graduates or under the general category, certainly, rule of reservation has to be followed for total number of vacancies and not under each heading.

35.

Further, according to Mr. M. Radhakrishnan, learned counsel, as far as candidates whose candidature has to be considered under the special category viz., fresh law graduates is concerned, there is no relaxation of age given with regard to reserved category viz., BC, MBC, SC & ST, but, in the general category, such relaxation has been given.

36.

As far as the above argument is concerned, the same cannot be accepted for the reason that the eligibility of a candidate is considered under this heading, based on his talent, ability and merit. Apart from this, the term used therein is "fresh law graduates". When recruitment is made, based on the term "fresh law graduates" and the rule also prescribes that within a period of three years, one should have completed the course to get the eligibility to consider his candidature under this category, if relaxation is given, the purpose of this special category, viz., fresh law graduates, will get defeated. Consequently, this argument of the learned counsel for the petitioner cannot be accepted.

37.

For all these reasons, we are of the considered opinion that no case has been made out to interfere with the impugned Government Order and the impugned notification. Hence, we are in a helpless situation except to dismiss the writ petitions. Consequently, all the writ petitions are dismissed except the writ petitions in W.P.Nos.2652, 3302, 3324 and 3449 of 2012. As far as these writ petitions, viz., W.P.Nos.2652, 3302, 3324 and 3449 of 2012 are concerned, the word "or" used in between the two terms, viz., "must be eligible to be enrolled as an Advocate" and "enrolled as an Advocate" has to be read conjunctively and not distinctively. Consequently, the candidates who had enrolled as advocates as on the date of the impugned notification dated 21.01.2012 are eligible to apply. Hence, the Government and the Administrative Side of the High Court are directed to take steps to make appropriate amendment of the concerned rule, forthwith, so as to avoid any ambiguity, at least, in future. As far as W.P. No. 2961 of 2012 is concerned, in view of the submission made by the learned Senior Counsel appearing for the High Court that nine backlog vacancies will be filled up first as per the roster, as far as this portion of the relief sought in this writ petition is concerned, by recording the said submission of the learned Senior Counsel appearing for the High Court, the said writ petition in W.P. No. 2961 of 2012 is closed.

In fine, W.P.Nos.2652, 3302, 3324 and 3449 of 2012 are ordered accordingly and W.P. No. 2961 of 2012 is closed and the other writ petitions are dismissed. No costs. Connected Miscellaneous Petitions are closed.

Adv. R. Krishnamurthy vs The Principal Secretary to Government Home Department, Government of Tamil Nadu Secretariat, Chennai 9 and The Registrar General, Hon'ble High Court of Judicature at Madras Chennai 104

Judgment