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Judgment
P.K. Misra, J.—The two writ petitions have been filed for quashing the Communications, dated 10.5.2008 and 28.1.2009, respectively,
issued by the Respondents, wherein it is indicated that the Petitioners were ineligible to appear at the examination for recruitment to the post of
Civil Judge (Junior Division) in the Tamil Nadu State Judicial Service for which an advertisement has been issued as per notification, dated
10.5.2008. In such communication, the main ground indicated is that the two Petitioners had passed B.L., examination held during the month of
April, 2004, whereas according to the Rules and the consequent Advertisement issued by the TNPSC., only law graduates who had obtained the
degree of law, within a period of three years preceding the date of Notification, were eligible.
When the matter was called on 12.2.2009, we had heard at length the Petitioners, who had appeared in person on account of boycott by the
Advocates. Subsequently, today we have also heard such Petitioners in person as well as their counsel. We have also heard Mr. S.C. Herold
Singh, learned Counsel appearing for the Respondents.
The question in these writ petitions relates to eligibility of the Petitioners to be recruited as Civil Judges (Junior Division) in the Tamil Nadu State
Judicial Service. One of the Petitioners (Petitioner in WP 7048/2008) had, after passing B.L. degree in the year 2004, passed LL.M. in the year
2006. The other Petitioner (Petitioner in WP 1191/2009), after passing B.L. degree in the year 2004, has completed LL.M. course and has
passed in all the papers, except in one paper. She can appear in future and clear such back-paper. In fact, from the records, it appears that she
has scored 61.2% of marks in other papers.
It is contended by the Petitioners and their counsel that the only ground for withholding the results of the examination and the interview is that
such Petitioners had passed B.L. in the year 2004 and were not eligible to appear as ''fresh law graduates"". It is contended by them that since they
had either passed the higher course of LL.M. or completed the course and they were otherwise eligible, being within the prescribed age limit, their
results should not have been with held. In the alternative it has been submitted that even assuming that they could not have been considered as
fresh law graduates"", since they had obtained their licence as Advocates in the year 2004 itself and had started their practice and thereafter had
assumed active practice after the completion of LL.M. course, they can otherwise be treated as eligible as Advocates having three years
experience. It is further submitted that the two Petitioners had only claimed eligibility as ""fresh law graduates"" and, therefore, the alternative
submission is untenable.
The contention raised by the counsel for the Tamil Nadu public Service Commission is to the effect that as per the definition in the Tamil Nadu
State Judicial Service (Cadre & Recruitment) Rules, 2007 (hereinafter referred to as ""the Recruitment Rules) and as per the Advertisement, a
person who claims eligibility as a ""fresh law graduate"" should have completed law within a period of three years from the date of the Notification.
The relevant provision contained in the Tamil Nadu State Judicial Service (Cadre & Recruitment) Rules,2007 is as follows:
Method of Appointment, Qualification and Age:
...
9(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 at the final year examination of the Degree in Law not less than an average of 50%
marks in case of open categories. In respect of the other reserved categories, they must have secured an average of 45% marks.
Fresh Law Graduates are those who have obtained the Degree of Law within a period of | three years prior to the dale of notification.
(and) Age: Must have attained the age of 22 years and must not have completed the age of 27 years as on 1st July of the year in which the
selection for appointment is made.
Rule 12(d)(ii), 52 and 53 of the General Rules for the Tamil Nadu State and Subordinate Services shall not apply in the recruitment of fresh Law
Graduates, (i.e) This upper age limit prescribed above applies to all categories.
1 The relevant portion of the Advertisement issued by the Tamil Nadu Public Service Commission indicates as hereunder:
II. For Fresh Law Graduates:
(i) Must be a fresh Law Graduate possessing a Degree in Law from a recognized University as mentioned in Clause-1 (i) above, (ii) Must be
eligible to be enrolled or enrolled as an advocate.
(iii) Must have secured an overall percentage of a) 45% Marks in case of S Cs, S Ts, MB Cs/D Cs and B Cs (Other than BC Cs and BC Ms),
BC Cs and BC Ms b) 50% Marks in case of open categories.
(iv) Must have obtained the degree of Law within a period of three years prior to the Date of Notification.
6.2 Clause 9 of the Instructions to the Candidates, issued by the Tamil Nadu Public Service Commission, is as follows:
EQUIVALENT QUALIFICATIONS -Candidates who apply for a particular post . should possess the prescribed qualification for the post or
such other qualification which have been declared to be higher than or equivalent to the said qualification by the State Government in consultation
with the Committee constituted under the Chairmanship of the Chairman, Tamil Nadu Public Service Commission for the purpose.
In view of the aforesaid instructions, it has been submitted that a person who possess a higher qualification is also eligible.
There is no dispute and there cannot be any dispute that a person, who is in possession of M.L. or LL.M. qualification, possesses a higher
qualification than B .L. or LL.B., which is the basic degree required for being eligible to apply for the post. The Petitioner in WP 7048/2008 has
passed LL.M. in April, 2006 and, therefore, had possessed the prescribed qualification within a period of three years.
Even assuming that LL.B., was the basic qualification required, Clause 9 of the instructions indicates that a person having higher qualification,
namely LL.M., would be eligible. Thus, so far as the Petitioner in W.P. No. 7048 of 2008 is concerned, even by giving a literal interpretation to
the Rules and the Advertisement, such Petitioner was clearly eligible as she had passed the higher qualification, namely LL.M., in April 2006,
within the prescribed period of three years preceding the date of notification.
So far as the other Petitioner is concerned, it is no doubt true that she is yet to pass LL.M. but, she is eligible to appear in the remaining one
paper and get the higher qualification. She has passed LL.B., in April 2004 and pursued her higher education of LL.M., and has completed the
course. The question as to whether such a candidate, who was pursuing a course for obtaining higher qualification than the basic qualification
required can be made ineligible by giving a literal interpretation to the provisions contained in the Rules and the advertisement. If literal
interpretation would be given and the candidates pursuing higher studies for obtaining higher qualification in addition to the prescribed qualification
would be declared ineligible, the basic intention of the Rules would be frustrated and would give rise to anomalous situation. A person who passes
the basic qualification of LL.B., within the cut-off date of three years would become eligible, but a student who had passed the basic qualification
of LL.B. more than three years prior to the cut-off date and was pursuing higher qualification in Law itself would become ineligible. Such a literal
interpretation would give rise to arbitrary discrimination. What is important to be noted is that the person who had passed the prescribed
qualification is in fact pursuing a higher course for obtaining a higher qualification in the same subject, namely, Law.
In the above context, we must try to analyse the background for the amendment of the Rules making ""fresh Law Graduates"" eligible for the
examination.
Before amendment of the Recruitment Rules, the normal convention almost throughout the country was to make Advocates with certain years
of experience as eligible (usually with three years practice) and the Law Graduates who were not enrolled as Advocates were not eligible. The
Shetty Commission, which had gone into the matter, had given a recommendation to make a Law Graduate eligible for such recruitment as Judicial
Officer, even though such Law Graduate does not have the experience as an Advocate. The main intention was to attract bright students who were
inclined to join Judicial Service, even though they may not be otherwise inclined to become Advocates. The relevant extract from the Shetty
Commission Report is to the following effect:
8.35 If intensive training is given to young and brilliant law graduates, it may be unnecessary to prescribe three years practice in the Bar as a
condition for entering the judicial service. It is not the opinion of any High Court or State Government that induction to service of fresh law
graduates with brilliant academic career would be counter-productive. We consider that it is proper and necessary to reserve the liberty to High
Court and State Governments, as the case may be, to select either Advocates with certain standing at the Bar or outstanding law graduates with
aptitude for service. It is not correct to deny such discretion to High Authorities like, High Courts and State Governments.
As a matter of fact, such Report, on this aspect, was accepted in no uncertain terms by the Supreme Court in All India Judges Association and
Others Vs. Union of India (UOI) and Others, , wherein it was observed as follows:
In All India Judges'' Association and Others Vs. Union of India and Others, this Court has observed that in order to enter the judicial service, an
applicant must be an advocate of at least three years'' standing. Rules were amended accordingly. With the passage of time, experience has shown
that the best talent which is available is not attracted to the judicial service. A bright young law graduate after 3 years of practice finds the judicial
service not attractive enough. It has been recommended by the Shetty Commission after taking into consideration the views expressed before it by
various authorities, that the need for an applicant to have been an advocate for at least 3 years should be done away with. After taking all the
circumstances into consideration, we accept this recommendation of the Shetty Commission and the argument of the learned amicus curiae that it
should be no longer mandatory for an applicant desirous of entering the judicial service to be an advocate of at least three years'' standing. We,
accordingly, in the light of experience gained after the judgment in All India Judges case direct to the High Courts and to the State Governments to
amend their rules so as to enable a fresh law graduate who may not even have put in three years of practice, to be eligible to compete and enter die
judicial service. We, however, recommend that a fresh recruit into the judicial service should be imparted with train-Part 7 M Sivasakthi and Anr.
v. Tha Secretary. Tamil Nadu Public Service Commission and Anr. (Madurai Bench) (D.B. ? P.K. Misra, J.) 607 of not less than one year,
preferably two years.
Thereafter, on the basis of such recommendation, Rules have been changed. The clear intention as evinced in the judgment was to encourage
fresh Law Graduates to join, even though such persons may not be inclined to become Advocates.
In order to effectuate the aforesaid intention and in order to avoid absurdity and arbitrariness, we are of the considered view that a law
graduate who had passed three years prior to the date of notification and was pursuing higher qualification in law such as LL.M., would also be
eligible as a ""fresh law graduate"" if he or she is otherwise within the prescribed age limit. There is no dispute that at the relevant time both the
Petitioners were within the prescribed age limit applicable to a ""fresh law graduate
The alternate contention raised by both the Petitioners to the effect that even otherwise they should have been considered as Advocates having
three years practice also appears to be justified, particularly in view of the decision of the Punjab and Haryana High Court, reported in The 1996
114 PLR 3 Karon Jagdish Kaur v. The Punjab School Education Board, Sas Nagar (Mohali) wherein it was observed as follows:
The next ground on which the appointment: of Respondent 3 was challenged is that she was not eligible in terms of the qualifications prescribed
in the advertisement. It is submitted that she did not possess three years'' experience as an Advocate on the last date of receipt of applications. The
argument is that Respondent 3 who was enrolled as an Advocate in March, 1992 joined the L.L.M Part-I course in Panjabi University, Patiala as
a regular student and, therefore, she did not practice thereafter and for this reason it is contended that she did not possess three years'' experience.
On the other hand, what is urged by die Respondents is that in terms of the instructions issued by the Bar Council of India practicing Advocates
can join the L.L.M. course without having to suspend their practice and their decision is being followed by the Bar Council of Punjab and Haryana.
In our opinion, the argument of the learned Counsel for the Petitioner deserves to be rejected. When a practicing Advocate joins the L.L.M course
as a regular student, he is not required to suspend his practice and can simultaneously continue with the same. Practice does not mean appearing in
Courts only. One can even practice by making himself available for consultation and by giving legal opinion so long as he/she remains on the rolls
as an Advocate. Admittedly, Respondent 3 was enrolled as an Advocate in March, 1992 and was continuing to possess the licence till she was
selected. Thus, she had to her credit more than three years'' experience as an Advocate and was, therefore, eligible. Moreover, Respondent 3 was
a Retainer to the Board on a monthly honorarium for giving legal advice from time to time and she continued to be Retainer while she was pursuing
the L.L.M course. She was, therefore, practicing even during the period when she was studying for the L.L.M course. This ground of attack is,
therefore, without any merit and is repelled.
It is no doubt true that in the advertisement it was indicated that one should get experience certificate. However, in the advertisement, it has not
been indicated from where or from whom such experience certificate should be obtained. On the other hand, it is not the case of the Respondents
that the licences of these Petitioners have ever been suspended by the Bar council. It is also not in dispute that the Petitioners have enrolled
themselves as Advocates in August, 2004. In addition to that, certain certificates have been produced from Advocates indicting that the Petitioners
were in practice along with those Advocates, from August, 2006. Having regard to all these aspects, even the alternative Writ Law Reporter, July
2009 17 contention that even otherwise as Advocates they had three years experience is acceptable.
For the aforesaid reasons, we allow both the writ petitions and quash the impugned orders, dated 25.7.2008, challenged in W.P. No. 7048 of
2008 and 28.01.2009, challenged in W.P.(MD) No. 1191/2009. We direct the Tamil Nadu Public Service Commission to declare the results of
the Petitioners and if they, are found to be successful, issue necessary orders relating to selection/appointment, after completing the necessary
formalities. This may be done within a period of ten days as the training for the newly recruited Civil Judges (Junior Division) is likely to commence
from the second week of March, 2009. Connected M.P.(MD) No. l/2008 in W.P.(MD) No. 7048 of 2008 and M.P.(MD) No. 1/2009 in W.P.
(MD,) No. ll91 of 2009 are closed. As already indicated, the two Petitioners had made their submissions in person on earlier occasion as
Advocates had abstained from attending the court due to boycott. We place on record the fact that we are quite impressed by the manner in which
the two Petitioners in person had placed their cases. We must also place on record the fact that the counsel for the Petitioners and the counsel for
the Respondents have made pertinent submissions in a very fair and efficient manner.