K.S.Salathia vs Sanjay Dhar

This letters patent appeal is directed against an interim direction dated:21.09.94 passed by a learned single Bench in O.W.P.No:675 of 1993.

The brief facts of the case are these. The appellant had invited applications for making selection to the posts of Munsiffs some time in the year

1992. The respondent considering himself eligible applied for appearing in the competative examination to be conducted in accordance with the

J&K Civil Service (Judicial) Recruitment Rules, 1967(for short the recruitment Rules), but his application was rejected on the ground that he did

not satisfy the eligibility criteria prescribed under the Rules. He challenged the order dated:02.7.1993 rejecting his application and by this court

order dated:21.07.1993, the appellant was directed to permit the writ petitioner to appear in the examination at his own risk and responsibility.

While admitting the position on 21.09.1994, the order dated:21.07.1993 was modified and the appellant was directed to communicate the result

of the writ petitioner to the Government and in case he was selected, the Government was directed to consider him for appointment.

The appellant challenges the order dated:21.09.1994 on the ground that it has virtually granted final relief to the writ petitioner before the legality of

the order of rejecting his application was determined.

Mr.Raina, learned counsel appearing for the appellant, submits that the entire controversy rests on the interpretation of Rule 9 of the recruitment

Rules. Under Rule 9, eligibility certificate was to be issued by the District Judge only. The certificate issued by an authority other than the District

Judge, it is argued, does not satisfy the eligibility criteria and the appellant was, therefore, justified in rejecting the application of the writ petitioner

because the certificate issued in this case was issued by the Registrar of the High Court of Delhi.

The contention of Mr.Kotwal learned counsel appearing for the respondent on the other hand, is that the purpose of the certificate is only to

authenticate the actual practice at the Bar. Since this fact has been certified by the Registrar of the High Court of Delhi, the authentication of the

certificate by the District Judge.Delhi answers the requirement of the Rule.

Rule 9 of the Recruitment Rules reads as under:

Practice at Bar: A candidate for recruitment to the service must have put in at least two years actual practice at the bar by the date on which he

submits his application for such recruitment and must produce a certificate to this effect from the Distrtict Judge within the local limits of whose

jurisdiction he has practised at the Bar."" Twofold requirements of the Rule are: actual practice at the Bar and this must be certified by the District

Judge within local limits of whose jurisdiction the candidate has practised at the Bar. The writ petitioner has first produced a certificate issued by

the Registrar High Court of Delhi dated:22.12.1992, which reads as under:

On the basis of the material/documents made available to this court, it is certified that Shri Sanjay Dhar, Advocate, c/o A.K.Singla & Co., flat

'L'Sager Apartment,6Tilk Marg, New Delhi, who was enrolled as an Advocate with Bar council of J&K in January, 1990, is practising as

Advocate in Delhi since October, 1990"". As this certificate was not in accord with Rule 9 of the recruitment Rules, therefore, vide leter dated:

12.03.1993, the appellant asked the respondent to make up the deficiency in his application regarding actual practice certificate from District &

Sessions Judge based on the personal knowledge or official records of courts giving relevant dates of actual practice.Instead of complying this, the

writ petitioner, it appears,submitted a copy of the certificate issued by the Registrar duly countersigned by the District & Sessions Judge, Delhi

dated: 17.03.1993. Since this certificate was not in accord with Rule 9, the appellant rejected his application on the ground that he has failed to

produce actual practice certificate as required under Rule 9 of the Recruitment Rules and the decision was conveyed to him vide letter

dated:02.07.1993. The writ petitioner sought quashment of letter dated:02.07.1993 and also a direction to the appellant to allow him to appear in

the competative examination, interalia on the grounds: 1.) that the post of Registrar of High Court of Delhi being equivalent to the post of District &

Sessions Judge, the certificate of actual practice issued by the former should be deemed to be the certificate issued by the latter;

2) that Rule 9 of the Recruitment Rules is defective and the words""Districe Judge"" should be substituted by the words ""Registrar"" because in case

of a person practising at the High Court or in the Supreme Court, a District Judge is unable to issue such a certificate; and

3) that the certificate having been duly countersigned by the District Judge should be treated as issued by him and accordingly accepted.

The question involved for consideration is, whether the obligation cast on the District Judge by Rule 9 to certify actual practice is discharged

when he countersigns the certificate issued by any other authority, including the Registrar, Delhi High Court. As noticed above, the emphasis is on

actual practice at the bar. Since a District Judge holds a regular court, therefore, the rule insists that the certificate of actual practice at the bar must

be issued by the District Judge. The object of the purpose purported to be achieved by the Rule is to ensure that such certificates are not issued in

routine. This alone explains the emphasis on the expression ""actual practice at the Bar"".Even a cursory reading of the certificate produced by the

writ petitioner does not answer the requirement of the Rule because it merely contains a statement that it has been issued on the basis of the

material/documents made available to the Registrar. The certificate is not based on the personal knowledge of the Registrar. Since the certificate

was issued on the basis of the material/documents, the appellant vide letter dated"" 12th March, 1993, asked the respondent to furnish a fresh

certificate in terms of the following:

Actual practice certificate from the District & Sessions Judge based on the personal knowledge or official records of courts giving relevant dates

of actual practice."" This was an opportunity provided to the writ petitioner to satisfy the requirement of the Rules. He failed to avail of it and instead

he produced the same certificate though was countersigned by the District Judge Delhi.

Mr.Kotwal argued that after the certificate was countersigned by the District Judge, Delhi, it is to be treated as a certificate issued by him. In

support of this, he placed reliance on the decision of the apex court in M.Duraiswami v/s Sri Murugan Bus Service, AIR 1986 SC 1980.

We are unable to accept this contention because no cuch proposition has been laid down in the case of Duraiswami. The relevant portion of the

observations of their Lordships in the aforesaid case reads as follows:

...to countersign, means to sign opposite to along side of or in addition to another signature or to add one's signature to a document already sigped

by another for authantication or confirmation"".

From this it follws that unless the certificate is issued by the authority required to issue it under the Rules or provisions of law, the authentication will

be meaningless. Had the certificate been issued by the District Judge, Delhi and there was doubt about the signature of the District Judge and the

same if authenticated by the Registrar, the position might have been different. But as long as the rule stands, the certificate contemplated by it has to

be issued by the District Judge and none else. Merely because it has been countersigned by the District Judge it does not become a certificate

issued in terms of the Rule. Moreover, by countersigning the certificate, the District Judge has only vouched for the authenticity of the certificate

issued by the Registrar, Delhi High Court, whereas it was for the District Judge to have certified the fact of actual practice. Since the certificate has

not been issued on the basis of personal knowledge, the writ petitioner should have availed of the opportunity provided to him vide letter dated:

12.03.1993 by furnishing the details to the District Judge Delhi. In Black's law Dictionary 5th Edition/'countersign"" means as under :

As a noun, the signature of a Secretary or other subordinate officer to any writing signed by the Principal or superior to vouch for the authenticity

of it.

The District Judge being not superior to Registrar he could not authanticate the signature of the latter. The certificate thus does not answer the

requirment of Rule 9 of the Recruitment Rules, because it has been issued by the Registrar and not by the District Judge which alone determines

the eligibility. May be that a certificate issued by a District Judge of a State other than the State of Jammu & Kashmir is not accepted without

authentication by the Registrar of the High Court, but vice versa is not true Since the certificate has to be issued by the District Judge, it is

immaterial whether the candidate practises in the High Court or courts subordinate to it. It was for him to produce material documents to enable

the District Judge to issue the certificate. This he has failed to do. The appellant was thus justified in rejecting the application for permission to sit in

the K.C.S(Judicial) Examination as the writ petitioner did not satisfy the eligibility criteria prescribed under the Rules.

It was next argued that Rule 9 should be interpreted in a manner so as to advance the object sought to be achieved and not to defeat it. In case

the certificate issued by the Registrary of High Court is ignored, the object of the Rule will be defeated. In support of this, reliance is placed on a

decision of the Apex court in Girdhari Lal v/s Balbir Nath Mathur & others, (1986)2SCC 237.

In our opinion, the object of the rule can best be achieved by enforcing the rule as it stands and not substituting the words ""Registrar"" for District

Judge, as has been pleaded and argued. The District Judge under Section 29 of the Civil Courts Act enjoys a pivotal position in the hierarchy of

subordinate courts, as he knows best about the Advocates. The respondent has failed to give particulars of the documents or the material referred

to in the certificate, even after being asked to do so. This was sufficient to reject the certificate which even otherwise was not valid.

Moreover, the object of the Rule being co ensure actual practice at the Bar can be best achieved only by enforcing it and not be reading it, as

suggested. The plain language of the Rule must be followed instead of doing violance to it. In case it is found deficient amendment can be

considered. Even in case of Girdhari Lal(Supra) it was held that the plain language should ordinarily be adopted by observing as under

Our own court has generally taken the view that ascertainment of legislative intent is a basic rule of statutory construction and that a rule of

construction should be preferred which advances the purpose and object of a legislation and that though a construction, according to plain

language, should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or obsurdities.........

For the aforesaid reasons, this appeal is allowed and the order impugned dated Sep.21,1994 set aside and consequently the writ petition

(O.W.P.No:675 of 1993 and O.W.P.No:415 of 1995) shall also stand dismissed.