Rajesh Kumar and Ors. vs State and Ors.

Aggrieved by the notification issued by the J&K. Public Service Commission, dated 18111992 prescribing two years actual practice for being

entitled to appear in the competitive examination for recruitment to the J&K judicial service, the appellants herein filed a petition in this court

praying for quashing of the said condition and permitting them to appear in the said examination notwithstanding the condition pertaining to the

actual practice. The writ pettition was disissed by the learmed Single Judge holding that the notification did not suffer from any vice, legal or

constitutional vide the judgment impugned in this Appeal. It is submitted that the learned Single Judge has not properly appreciated the points of

law raised and has not passed a speaking order.

We have heard learned counsel for the appellants and perused the record.

The relevant conditions alleged to be violative of the constitution being unreasonable, provides :

A candidate seeking admission must be :

XX XX XX XX

ii) having atleast two years actual practice at the bar by the date on which he submits his application.

The conditions have been incorporated on the basis of Rule 9 of the J&K Civil Service (Judicial) Recruitment Rules 1967 which provide:

A Candidate for Recruitment to the service must have put in atleast 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 District Judge within the local limits of whose jurisdiction he

has practised at Bar"".

It is contended that after the coming into force of the provisions of Advocates Act and repeal of the Legal Practitioners' Act, relevance of the rule

has lost its importance or significance. It is submitted that the persons enrolled as advocates are presumed to have gained practical experience on

the basis of the curriculum provided in the three years degree (professions) course, granted to them before, being enrolled as an advocate under

the Advocates' Act. It is well settled proposition of law that the employer has the option to prescribe any condition for enrolment to the service

provided the said condition is neither unreasonable nor arbitrary. Rule 9 impugned in the writ petition has not been shown to be in any way either

unreasonable or arbitrary. The requirement of suitability for a service or job be better not left to the convenience or choice of a candidate. It is for

the employer to lay down the yardstick in accordance with the needs of a service or post and for the candidate to come up to it. Of course, the

eligibility Kiid down should not be irrational or repugnant to the provisions of the constitution or law.

Viewed thus, we are of the view that the condition prescribing the two years actual practice at the bar is a reasonable one meant only to meet

requirements of the service and M secure efficiency in it. The mere fact that petitioners have obtained the Law degree after undergoing three year

course which also includes some practical training program me does not render the eligbility prescribed redundant or unreasonable nor does it

furnish any justification for doing away with it.

The reliance of the learned counsel upon AIR 1967 SC: 1211 and AIR 1981 SC: 1829 is misplaced. Similarly, the judgement of the Supreme

Court reported in AIR 1986 SC: 2105 is not attracted in the instant case because the learned Single Judge after application of mind, found, on

facts, that the Notification did not suffer from any vice, legal or constitutional and was justified in holding that the Notification as well as rule were in

accordance with the relevant constitutional provisions.

Having said so it still remains to be seen whether the condition prescribed suffers from any vice or arbitrariness or absence of guide line, in its

actual implementation. The LC for the appellant submits that the District Judges do not go by any guide line or criteria while issuing the crucial

certificates of actual practice at the bar and it is left to their whim to issue or to refuse a certificate to a candidate of their choice.

The grievance is not made off the cuff and we feel it is Dot wholly without' substance. Instances are not lacking where the certificates were

found to have been issued to undeserving and perhaps denied to those who could have had a better claim. It also goes without saying that the

District Judges do not go by any criterion or guideline while issuing or refusing the crucial certificate. All that perhaps he looks into is whether the

candidate is enrolled with him which does not necessarily mean that he is actually practising also. There is nothing before him to ascertain whether

the candidate has appeared in a court and has handled a brief and how consequently, he may issue a certificate to a candidate who may be

enrolled alright but who might be sitting home and doing some business. Similarly, he may refuse it to a candidate who is actually practising, for

reasons no difficult to imagine. It all depends upon his sense of fairness. But as it is, the matter leaves all possibility and scope for misuse and

arbitrariness which in turn is capable to breed favouritism, nepotism and even corruption and if left unchecked shall defeat the very purpose which

is sought to be achieved.

In this state of affairs, we feel no reluctance in indicating that the manner of issuing the all important certificate suffers from vice or arbitrariness in

the absence of any guide line or criteria. This may not render the prescribed eligibility unreasonable, but there is certainly a dire need to stem the rot

before the situation gets out of band. Realising the gravity of the matter, we wanted to issue necessary directions for framing of appropriate

guidelines for the ensuing K.C.S (Judicial) examination. But we are informed the process has already begun and it would delay the examination if

the certificates already issued are directed to be cancelled or rechecked. While High Court to take immediate steps for framing of appropriate

criteria/guide lines for issuance of ""actual practical certificates by the District Judges. AH the District Judges are directed not to issue any such

certificate till then. The appeal is accordingly dismissed with the observations made above.

CMP No 3236 of 1992 shall also stand dismissed.